Shiyan Jiang v. Tex. Comm'n on Envtl. Quality
Shiyan Jiang v. Tex. Comm'n on Envtl. Quality
Opinion of the Court
Before the Court is a motion for summary judgment filed by Defendants Texas *742Commission on Environmental Quality ("TCEQ") and Kim Wilson ("Wilson"), individually and in her capacity as TCEQ's Director of Water Availability (together, "Defendants"). (Dkt. 16). Having considered the parties' arguments, the factual record, and the relevant law, the Court will deny Defendants' motion.
I. BACKGROUND
Plaintiff Shiyan Jiang ("Jiang") is a civil engineer who spent 23 years working for the Texas Commission on Environmental Quality ("TCEQ") as a hydrologist. (Jiang Decl., Dkt. 19-2, at 1-2). Jiang is 73 years old; he was born in China. (Id. at 1). In November 2014, Jiang filed an internal complaint that a supervisor had discriminated against him on the basis of his age and race. (Id. at 2). He alleges that he began to receive unjustified differential treatment after making that first complaint; he later filed a second internal complaint in August 2015. (Id. at 2-3).
In December 2015, Jiang's department director Kim Wilson ("Wilson") placed him on six-month disciplinary probation. (Id. at 3). According to Wilson, she placed Jiang on probation because he failed to follow policy directives from supervisors, reinitiated closed policy debates, and conducted himself unprofessionally. (Dec. 3 Memo, Dkt. 16-2, at 194-196). While on probation, Jiang participated in two progress meetings: one on February 11, 2016, and another on April 21, 2016. (Jiang Decl., Dkt. 19-2, at 3). At the April 21 meeting, he again complained that he was being discriminated against on the basis of his age and race. (Id. at 4). On April 22, Jiang's team leader Christine Peters ("Peters") drafted a recommendation to fire him. (Mot. Summ. J., Dkt. 16, at 11). Wilson agreed with Peters' recommendation and issued a notice of intent to discharge to Jiang on April 29. (Id. at 12). After unsuccessfully appealing the decision to terminate his employment, Jiang was fired in June 2016. (Id. ).
Jiang then filed this action against Defendants, alleging claims for: (1) discrimination on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"); (2) retaliation for engaging in protected activities under Title VII and the TCHRA; and (3) a violation of
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. ,
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, *743and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett ,
III. SUMMARY JUDGMENT EVIDENCE
Jiang began working for TCEQ in 1993. (Jiang Decl., Dkt. 19-2, at 1). According to Defendants, Jiang had a decade-long history of raising policy disagreements with management, such as disputing the correct criteria for evaluating stream-diversion applications. (Mot. Summ. J., Dkt. 16, at 4-6). Nonetheless, Jiang asserts without contradiction that he was not formally disciplined for any reason from 1993 until December 2015. (Jiang Decl., Dkt. 19-2, at 3). In fact, Jiang appears to have received satisfactory or better performance reviews until December 2015. (Id. ).
In October 2014, Jiang's supervisor confronted him about placing certain papers in permit application folders. (Complaint Form, Dkt. 16-1, at 183-89). Jiang thought the encounter reflected race- and age-related bias, and he filed a discrimination complaint within a week. (Id. ). The investigative report for that complaint was sent to the Action Review Committee ("ARC"), which included Human Resources Director Melissa Applegate ("Applegate") and Wilson. (Mot. Summ. J., Dkt. 16, at 7). The ARC met on June 29, 2015. (Id. ). Wilson became head of the Surface Water Availability Team ("SWAT") on July 1, 2015, making her part of the ARC that considered Jiang's complaint. (Id. ; see Resp. Mot. Summ. J., Dkt. 19, at 8). The ARC dismissed Jiang's complaint on July 1, 2015. (July 1 Memo, Dkt. 16-1, at 190).
After Wilson became the SWAT director, four employees-half of SWAT-filed discrimination complaints based on age or race. (See Wilson Dep., Dkt. 16-2, at 17; Nov. 6 Memo, Dkt. 16-2, at 191). Within a month of reporting those discrimination complaints to human resources, Wilson placed two of those employees, including Jiang, on disciplinary probation. (See Resp. Mot. Summ. J., Dkt. 19, at 9).
TCEQ listed a number of bases for Jiang's probation. First, Jiang had not complied with a directive not to place draft documents in permit application folders. (Id. ). Second, Jiang had taken too long to complete a project (the "Enterprise application"). (Id. ). Third, Jiang reinitiated debates *744about policy matters already considered and decided by management. (Id. ). Finally, Jiang raised his voice in meetings. (Id. ).
Jiang filed a memo disputing the bases for his probation, (Jiang Rebuttal Memo, Dkt. 19-2, at 6-9), and he now produces evidence suggesting that those bases are pretextual, (Resp. Mot. Summ. J., Dkt. 19, at 9-11). According to one coworker, other SWAT employees kept draft documents in permit application folders while they worked on the application, but only Jiang was reprimanded for it. (Mughal Interview Notes, Dkt. 19-3, at 78). Jiang argues that he completed the Enterprise application as directed, (Jiang Rebuttal Memo, Dkt. 19-2, at 7-8), and that his supervisor had no issues with his memo, (Alexander Dep., Dkt. 16-3, at 92). Finally, Jiang's coworkers say that others use raised voices, (Peters Dep., Doc. 16-2, at 242-43; Mughal Dep., Doc. 16-3, at 497-98), but Wilson admits that she has not formally reprimanded anyone else for doing so, (Wilson Corp. Dep., Dkt. 16-3, at 135).
Jiang had two progress meetings while he was on probation. According to TCEQ's agenda for the first meeting in February 2016, Defendants told Jiang he had not complied with all of the requirements for probation, such as not reinitiating policy debates with his supervisors. (Feb. 11 Meeting Agenda, Dkt. 16-2, at 210). His second progress meeting took place on April 21, 2016. (Apr. 21 Meeting Agenda, Dkt. 16-2, at 213). According to TCEQ's agenda for that meeting, Defendants again told Jiang that he failed to comply with all of the requirements, including the policy-debate requirement. (Id. at 213-14). During the April 21 meeting, Jiang complained about race and age discrimination. (Jiang Decl., Dkt. 19-2, at 4). The meeting agenda indicates that Jiang was told that he "needs to demonstrate improvement" and that TCEQ was "hopeful that [Jiang's] attention to this matter will cause immediate correction." (Apr. 21 Meeting Agenda, Dkt. 16-2, at 217). The agenda says that Jiang's "failure to address" the concerns raised in the meeting "would result in further disciplinary action, including discharge." (Id. ).
On the morning after Jiang's second progress meeting, Peters drafted a memo recommending that Jiang be fired. (Peters email, Dkt. 16-2, at 261; Peters Apr. 21 Memo, Dkt. 16-2, at 315). Peters admits that there were no incidents between the second meeting and her discharge recommendation. (Peters Dep., Dkt. 16-2, at 251). On April 28, Peters and another supervisor, Lori Hamilton, issued a formal recommendation to Wilson recommending Jiang's termination. (Hamilton and Peters Apr. 28 Memo, Dkt. 16-2, at 391).
In their recommendation, Peters and Hamilton cite Jiang's failure to comply with TCEQ's internal policy on professional conduct, OPP 12.01. (Id. ). Specifically, they found that Jiang "continue[d] to argue with management and staff" and "sometimes uses an elevated tone." (Id. ). Jiang also "attempted to reinitiate debates on policies" and "fail[ed] to consistently follow reasonable instructions." (Id. ). They concluded that this conduct violated OPP 12.01. (Id. at 392). Wilson agreed with Peters' recommendation and issued a notice of intent to discharge to Jiang on April 29. (Apr. 29 Memo, Dkt. 16-2, at 321-22).
On May 11, Jiang filed an internal complaint alleging race and age discrimination. (See Mot. Summ. J., Dkt. 16, at 12). The ARC investigated Jiang's discrimination claim and concluded that he had not been discriminated against. (See
*745IV. DISCUSSION
A. Title VII and TCHRA Discrimination
Because Jiang attempts to prove race- and national origin-based discrimination under Title VII through circumstantial evidence, the Court must evaluate his claims under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green ,
To establish his prima facie case, Jiang must show that he "(1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside of the protected class, or, in the case of disparate treatment, shows that other similarly situated employees were treated more favorably." Standley v. Rogers ,
Defendants don't dispute that Jiang has satisfied the first three elements of his prima facie case; they argue only that Jiang cannot identify any similarly situated employees who were treated more favorably. (Mot. Summ. J., Dkt. 16, at 15-17). However, Jiang's claim does not require proof of disparate treatment because he has produced evidence that he was replaced by a non-Chinese employee. (Resp. Mot. Summ. J., Dkt. 19, at 17). The Court agrees that Jiang has stated a prima facie case.
On the other hand, Jiang does not dispute that Defendants have met their burden to articulate a legitimate, non-discriminatory reason for the decision to fire Jiang. (See Mot. Summ. J., Dkt. 16, at 17-18 (arguing that Jiang was fired for violating TCEQ's professional conduct policy, which requires that employees exercise good judgment, behave professionally, and provide excellent customer service) ). The question in this case is whether Jiang can offer sufficient evidence to create a genuine issue of material fact either that (1) TCEQ's stated reason is a pretext or (2) that its reason, while true, is only one reason for firing Jiang in addition to his race or national origin. See Burrell ,
At the pretext stage of the burden-shifting analysis, Jiang can survive *746summary judgment by showing that "the totality of the evidence, including the evidence raised at the prima facie case and pretext stages, raises a genuine issue of material fact" as to whether Defendants fired him because of his race. Shackelford v. Deloitte & Touche, LLP ,
Jiang has met his burden to establish a genuine issue of material fact as to whether TCEQ fired him because of his race. First, Jiang has produced evidence from which a reasonable jury might infer that TCEQ's bases for placing him on probation-which relate to his eventual termination-were untrue. See supra at 743-44. Second, Jiang states that he was treated differently than other employees because of his race. (See Jiang Decl., Dkt. 19-2 at 2; Jiang Dep., Dkt. 16-2, at 67-68 (stating that management had a "double standard" for him and for white employees, such as directing junior employees not to talk to him, having junior white employees review his work, or being less lenient about his punctuality) ). Third, other employees corroborate Jiang's allegations of differential treatment. (See Mughal Dep., Dkt. 16-3, at 171-75 (stating that he believed Jiang was discriminated against on the basis of race and discussing specific examples of differential treatment, such as speaking to him rudely); Mughal Decl., Dkt. 19-3, at 66 (same); Gable Interview Notes, Dkt. 19-3, at 11 (stating that management "targeted" Jiang for discriminatory reasons) ).
Defendants argue that Jiang fails to raise a genuine fact issue for several reasons. First, they argue that Jiang's denials of TCEQ's asserted bases for firing him are not competent summary judgment evidence. (Mot. Summ. J., Dkt. 16, at 18). While it is true that an "employee's subjective *747belief that he was discriminated against, standing alone, is not adequate evidence to survive a motion for summary judgment," Raina v. Veneman ,
Defendants also argue that the evidence provided by Jiang's coworkers is "extraordinarily weak," (Reply, Dkt. 20, at 2), and that Jiang's termination was supported by strong and consistent evidence of a legitimate purpose, (Mot. Summ. J., Dkt. 16, at 18-19). This argument is a request that the Court weigh the evidence, something normally prohibited at this stage but implicitly permitted by Reeves 's contemplation of granting judgment to an employer in cases where a plaintiff created only a weak issue of fact regarding pretext and there was abundant uncontroverted evidence that no discrimination had occurred. Reeves ,
Finally, Defendants argue that Jiang has only presented evidence relevant to some of the reasons he was given for his termination but has not disputed other bases. (See Reply, Dkt. 20, at 5 ("Dr. Jiang was not terminated for speaking at an elevated volume. He was terminated for unprofessional conduct in violation of TCEQ's OPP 12.01.") ). Even so, the Court is required to believe Jiang's evidence and draw all justifiable inferences in his favor. Anderson , 477 U.S. at 255,
B. Title VII and TCHRA Retaliation
To establish a Title VII or TCHRA retaliation claim,
There is no dispute that Jiang has engaged in a protected activity when he complained of race discrimination in August 2015 and on April 21, 2016.
To establish the causation element of his prima facie case, a plaintiff "must present either direct evidence of retaliation or circumstantial evidence creating a rebuttable presumption of retaliation." Washburn v. Harvey ,
Timing alone satisfies Jiang's burden to make a prima facie showing of causation for his retaliation claim arising out of his termination, which was recommended the day after he complained of race discrimination in his April 21 meeting and adopted by Wilson a week later. More is required for his claim arising out of his placement on probation, which occurred *749almost four months after his discrimination complaint on August 21, 2015. (Jiang Decl., Dkt. 19-2, at 3). But there is sufficient evidence to satisfy Jiang's prima facie burden with respect to that complaint, as well. On October 27, 2015, another SWAT employee, Grant Gibson, told Wilson he was being discriminated against on the basis of his age. (Nov. 6 Memo, Dkt. 16-2, at 191). Wilson placed him on disciplinary probation two weeks later. (Nov. 13 Memo, Dkt. 19-3, at 54). Another SWAT employee, Kathy Buckley, told Hamilton on October 27, 2015, that she felt she was being discriminated against on the basis of her age. (Nov. 6 Memo, Dkt. 16-2, at 191). Hamilton drafted a performance improvement plan for Buckley within a month of Buckley's complaint, (Buckley Draft PIP, Dkt. 19-3, at 57), but Buckley transferred out of SWAT before the plan could take effect. (See Resp. Mot. Summ. J., Dkt. 19, at 9).
As with Jiang's race-discrimination claim, there is no question that Defendants have met their burden to articulate a legitimate, non-discriminatory reason for the decision to fire Jiang. See supra at 745-46. Accordingly, "summary judgment is appropriate" unless Jiang can raise a genuine issue of material fact regarding whether TCEQ's "rationale is pretextual." Shackelford ,
Jiang has provided enough evidence to survive summary judgment. "The combination of suspicious timing with other significant evidence of pretext, can be sufficient to survive summary judgment."
On top of that evidence, there is the evidence rebutting Defendants' stated reasons for placing Jiang on probation and ultimately firing him. See supra at 743-44, 746. Finally, there is the lack of evidence that Jiang was formally disciplined in his more than 20 years at TCEQ before he filed his discrimination complaint in August 2015. See Shirley v. Chrysler First, Inc. ,
C.
Section 1981 claims against a state or state agency are barred by the Eleventh Amendment. Moore v. Univ. Mississippi Med. Ctr. ,
*751Accordingly, Jiang can state a Section 1981 claim only against Wilson in her individual capacity, and "[c]laims against individual public officials under § 1981 are subject to the defense of qualified immunity." Foley v. Univ. of Houston Sys. ,
Jiang has produced evidence from which a reasonable jury could find each element of a Section 1981 claim. Because Section 1981 claims are analyzed in the same manner as Title VII claims, summary judgment is inappropriate for Jiang's Section 1981 claim against for the same reason that it is inappropriate for his Title VII race discrimination claim, see supra at 744-48, unless Wilson is entitled to qualified immunity.
Public officials are entitled to qualified immunity when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald ,
Wilson argues that she is entitled to qualified immunity because Jiang "cannot show that it was objectively unreasonable for Wilson to terminate his employment under these facts (i.e. his ongoing conduct issues and failure to follow reasonable instructions from supervisors)." (Mot. Summ. J., Dkt. 16, at 29). Wilson believes she is entitled to qualified immunity based on the facts as viewed in the light most favorable to her. (See Reply, Dkt. 20, at 9-10 ("She allowed Dr. Jiang's April 29 discrimination complaint to proceed through the proper TCEQ channels and waited until a decision was rendered before moving forward with the termination. Any reasonable official in her position would have acted similarly.") ). The Court cannot conduct that analysis: "under either prong [of the qualified immunity analysis], courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment." Tolan ,
*752Southard v. Tex. Bd. of Crim. Justice ,
IV. CONCLUSION
For these reasons, Defendants' Motion for Summary Judgment, (Dkt. 16), is DENIED .
Jiang also alleged claims for violations of his right to engage in protected speech under the United States Constitution and the Texas Constitution, (Orig. Pet., Dkt. 1-4, at 13-14), but he has dropped those claims, (Stipulation, Dkt. 17).
The supervisor for a third of those four employees drafted a performance improvement plan for her within a month of Wilson's memo. (Buckley Draft PIP, Dkt. 19-3, at 57). That employee transferred out of SWAT before the plan could take effect. (See Resp. Mot. Summ. J., Dkt. 19, at 9).
The TCHRA was "modeled after federal civil rights law" and has as an express purpose to provide for the execution of the policies of Title VII. NME Hosps., Inc. v. Rennels ,
TCEQ's own internal investigation of the four discrimination complaints made by SWAT employees provides partial support for Jiang's position. On one hand, the investigation found that performance standards were not being applied consistently in Jiang's division. (Applegate Dep., Dkt. 19-2, at 122). On the other, the investigation also concluded that the inconsistent application was not based on race. (Id. at 122-23).
TCEQ asks the Court to disregard the statements made by Jiang's coworkers on the same grounds. (Reply, Dkt. 20, at 2-3 (citing Eugene v. Rumsfeld ,
Again, because Texas state courts look to federal law to interpret the TCHRA, NME Hosps. ,
In his complaint, Jiang alleges that he "was repeatedly disciplined for his complaints and ultimately terminated because of them." (Orig. Pet., Dkt. 1-4, at 13). The Court interprets Jiang's complaint to state causes of action for Title VII and TCHRA retaliation for adverse employment actions taken following each of his discrimination complaints. Although Jiang's complaint on April 21, 2016 was made informally during a progress meeting, the Court finds that informal complaints are protected activities under Title VII. See Brandon v. Sage Corp. ,
Another TCEQ employee stated in an email that Hamilton had an "unwarranted negative attitude" towards Buckley. (Betz email, Dkt. 19-3, at 63).
Defendants argue that the relevant conduct is not Peters' April 22 draft but Wilson's May 25 notice of discharge, since Wilson was the ultimate decisionmaker. (Reply, Dkt. 20, at 7). First, Wilson provided a notice of discharge to Jiang on April 29. (See Mot. Summ. J., Dkt. 16, at 12). Second, both one week and one month are tight enough temporal intervals to be probative of retaliatory intent under Fifth Circuit precedent. See Evans , 246 F.3d at 354 ; Richard ,
Reference
- Full Case Name
- SHIYAN JIANG v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and Kim Wilson, individually and in her capacity as Director of Water Availability
- Cited By
- 2 cases
- Status
- Published