IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-21026
Summary Calendar
_____________________
VERA L SCHOPPE,
Plaintiff-Appellant,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JAMES A COLLINS,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-93-CV-3561)
_________________________________________________________________
August 4, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Vera L. Schoppe brought claims against the Texas Department
of Criminal Justice (“TDCJ”) and James A. Collins for gender
discrimination under 42 U.S.C. § 1983 and the Texas Commission on
Human Rights Act (“TCHRA”). Schoppe appeals the district court’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
grant of summary judgment in favor of TDCJ and Collins. We
affirm.
I. FACTS AND PROCEDURAL HISTORY
Schoppe became employed as the Assistant Mental Health
Director at the TDCJ’s Clements Unit located in Amarillo, Texas
in March of 1990. In October 1991, Twilia Cook and Bernice
Batchelor filed internal grievances against Schoppe alleging,
inter alia, sexual and racial harassment. On October 8, 1991,
Warden R. D. McLeod requested that the TDCJ Labor Relations/Equal
Employment Opportunity (“EEO”) office investigate the
allegations.
As to sexual harassment, the investigation concluded 1) that
Schoppe had engaged in conversations with various staff members
about the alleged sexual misconduct of employees including Cook
and Batchelor, 2) that Schoppe compounded this inappropriate
behavior by asking co-workers to watch Cook and Batchelor
specifically for the sexual misconduct, and 3) that Schoppe’s
conduct created an intimidating hostile environment for Cook and
Batchelor. Based on these conclusions, the EEO investigation
sustained the allegation of sexual harassment.
As to racial harassment, the investigator found that Schoppe
made inappropriate racially-oriented comments on three separate
occasions. While the investigator concluded that Schoppe had not
intended the comments to be offensive, the investigation found
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that the comments were offensive and thus constituted racial
harassment.
Finally, during the course of investigating Cook and
Batchelor’s allegations of sexual and racial harassment, the
investigator found that Schoppe’s conversations concerning Ruth
Kendrick’s emotional state following an attempted rape and Cook’s
possible bulimia were unwelcome. Therefore, the investigation
concluded that harassment based on a perceived disability had
also occurred. Schoppe was in a supervisory position over each
of these employees at the time the harassing conduct occurred.
On January 2, 1992, McLeod conducted a disciplinary hearing
following the investigation and recommended that Schoppe be
terminated. In acknowledging that termination exceeded the
established TDCJ disciplinary guidelines for Schoppe’s work-rule
violation, he concluded that this action was justified, among
other reasons, because of her supervisory position at TDCJ and
over the employees complaining of harassment. On January 31,
1992, Schoppe was terminated. Pursuant to TDCJ’s grievance
procedures, in March 1992, Schoppe appealed her termination to
Collins, but the record does not show that any further action was
taken. Her position was subsequently filled by two females --
Rena Looney in June of 1992 and Vian Weller in January of 1993.
Schoppe claims that her termination was based on gender
discrimination. She contends that “TDCJ employs a double
standard of discipline in cases of alleged harassment,
3
disciplining women more harshly than men in such cases, for no
reason other than their gender and apparent stereotypical notions
of ‘appropriate’ conduct for women.” In support of her claims,
Schoppe asserts that her termination was not carried out
consistent with TDCJ’s disciplinary policies and brings forth
evidence that she was treated more harshly than three male
employees in similar circumstances. Schoppe further alleges that
the stated reasons for her termination are pretextual. In
support of this claim, she contends that there is evidence which
calls into direct question the fact that she harassed anyone,
that TDCJ deviated from its rules of discipline and hearing
procedures in reaching the decision to terminate her, and that
there is evidence of differential treatment of other employees
who were found to have engaged in harassment.
TDCJ and Collins contend that Schoppe was terminated for
violating the TDCJ policy prohibiting harassment. Further, they
assert that the discipline given Schoppe was permitted within
TDCJ’s disciplinary policies.
On July 1, 1993, Schoppe filed suit in federal district
court claiming gender discrimination in her termination from TDCJ
in violation of both the TCHRA, TEX. LAB. CODE ANN. §§ 21.001-.306
(Vernon 1996), and her right to equal protection under the United
States Constitution pursuant to 42 U.S.C. § 1983.
On June 11, 1996, the trial court granted summary judgment
in favor of TDCJ and Collins as to each of Schoppe’s claims.
4
Schoppe then filed a motion for a new trial claiming she was
entitled to a new trial on her claims under § 1983 for the
deprivation of her federal constitutional rights. On October 4,
1996, the court entered its Amended Memorandum on Summary
Judgment and Order Denying Motion for New Trial. The district
court concluded that Schoppe had failed to demonstrate any
discriminary motive for her termination and that she had not
shown that she had been treated differently by TDCJ because of
gender. As a result, she was unable to establish a claim under
either the TCHRA or § 1983. Additionally, the district court
found that because the Eleventh Amendment bars a suit for damages
against a state in federal court, the claims against Collins in
his official capacity must be dismissed.1 Schoppe timely
appealed.
II. STANDARD OF REVIEW
In reviewing the district court’s grant of summary judgment,
the appellate court reviews the issues de novo, applying the same
criteria used by the district court in initially evaluating the
motion. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
1
Because we affirm the district court’s dismissal of
Schoppe’s § 1983 claims against Collins on other grounds, we do
not discuss Schoppe’s assertion that the district court erred in
concluding that the Eleventh Amendment barred her § 1983 claims
against Collins seeking injunctive and declaratory relief.
5
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). The evidence and inferences to be drawn therefrom are
reviewed in the light most favorable to the nonmoving party.
FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied,
512 U.S. 1205 (1994). Summary judgment is not appropriate if the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). However, “Rule 56(c) mandates the entry of
summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an essential
element to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
III. DISCUSSION
A. TCHRA Claim
The TCHRA states that “an employer commits an unlawful
employment practice if because of . . . sex . . . the employer
. . . discharges an individual, or discriminates in any other
manner against an individual in connection with compensation or
the terms, conditions, or privileges of employment.” TEX. LAB.
CODE ANN. § 21.051 (Vernon 1996). The purpose of the TCHRA is “to
provide for the execution of the policies of Title VII of the
6
Civil Rights Act of 1964, and its subsequent amendments.” Id.
§ 21.001. Title VII of the Civil Rights Act of 1964 also
prohibits an employer from discharging an employee based on the
employee’s sex. 42 U.S.C. § 2000e-2. In analyzing a claim under
the TCHRA, courts use the same analysis as that provided for
Title VII claims. Deaver v. Texas Commerce Bank N.A., 886 F.
Supp. 578, 585 (E.D. Tex. 1995), aff’d, 79 F.3d 1143 (5th Cir.
1996).
The Supreme Court developed the framework for Title VII
discrimination claims in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). First, the plaintiff must establish a prima
facie case of discrimination. Id. at 802. Next, the burden of
production shifts to the employer “to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” Id.
The plaintiff then is given the opportunity to show the
employer’s stated reason was pretext. Id. at 804.
The analysis for summary judgment in employment
discrimination cases is provided in Rhodes v. Guiberson Oil
Tools, 75 F.3d 989 (5th Cir. 1996)(en banc).
[A] plaintiff can avoid summary judgment . . . if the
evidence taken as a whole (1) creates a fact issue as
to whether each of the employer’s stated reasons was
what actually motivated the employer and (2) creates a
reasonable inference that [the employee’s protected
status] was a determinative factor in the actions of
which plaintiff complains.
7
Id. at 994. “Rhodes makes clear that a plaintiff must present
evidence sufficient to create a reasonable inference of
discriminatory intent in order to avoid summary judgment.”
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 450 (5th Cir.
1996).
In a work-rule violation case such as this, Schoppe can
establish a prima facie case by showing “either that [s]he did
not violate the rule or that if [s]he did, [male] employees who
engaged in similar acts were not punished similarly.” Green v.
Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied,
449 U.S. 879 (1980). In order to uphold a claim of disparate
treatment as compared to male employees, Schoppe’s burden is to
show “that the misconduct for which she was discharged was nearly
identical to that engaged in by a male employee whom [the
company] retained.” Smith v. Wal-Mart Stores, 891 F.2d 1177,
1180 (5th Cir. 1990).
Schoppe’s theory on the prima facie case is that she was
treated more harshly than several men who she alleged engaged in
similar conduct because TDCJ deviated from disciplinary
guidelines and terminated her while giving less severe punishment
to the men. The evidence she brings forth to support this is
also what Schoppe uses to support her burden on pretext to show
that her gender was a determinative factor in her termination.2
2
Schoppe also argues that in relation to her disciplinary
hearing, she was “singled out” to be denied the benefits of
8
After reviewing Schoppe’s evidence in the light most favorable to
her, we conclude that her evidence does not show that male
employees who engaged in similar acts were not punished
similarly, and thus she has failed to make out a prima facie case
or show pretext (that her gender was a determinative factor in
her termination).
According to TDCJ, Schoppe was terminated for violating TDCJ
Rule 21 prohibiting harassment. Rule 21 prohibits “all forms of
harassment or discrimination relating to sex, gender, race . . .
or disability.” A Rule 21 infraction is considered a “level 2"
violation. TDCJ’s EEO investigation concluded that Schoppe
violated Rule 21 in three ways: (1) based on sex -- she created
an intimidating, hostile work environment due to remarks she made
to various staff members regarding alleged sexual misconduct of
other co-workers, (2) based on race -- on more than one occasion
Schoppe made inappropriate racially-oriented comments that were
offensive to others, and (3) based on disability -- Schoppe
engaged in conversation that addressed a perceived disability of
gathering information in support of her defense, talking to
witnesses, and presenting witnesses at the hearing. Schoppe
apparently believes that this treatment was based on her gender.
However, Schoppe presents no evidence that anyone else, male or
female, was provided any greater benefits at a disciplinary
hearing than those provided to her. Unsubstantiated assertions
are not competent summary judgment evidence. Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
9
another employee.3 Schoppe’s termination exceeded the general
TDCJ guidelines for a level 2 offense. For a first violation of
a level 2 offense the “range of disciplinary actions” includes
probation, suspension, reduction, and demotion. However, a note
below these possibilities states “[t]he Reprimanding Authority
may, if the circumstances warrant and documentation is deemed
sufficient, recommend dismissal at any step for the above
offenses.” TDCJ believed that termination was justified, among
other reasons, because of Schoppe’s supervisory position.
In response, Schoppe claims that she was treated more
harshly than several men who she alleges engaged in similar
conduct -- namely John Sims, John Wisener, and Jesse Brown. John
Sims,4 a corrections officer, was found to have violated Rule 24c
and 25c by the use of excessive force on an inmate without
provocation and failure to report completely or accurately such
use of excessive force. As a result, Sims received nine months
3
Presumably this infraction refers to either Schoppe’s
unwelcome conversations concerning Kendrick’s emotional state
following an attempted rape or Cook’s possible bulimia.
4
There is some confusion over who, exactly, John Sims is; in
her deposition Schoppe refers to Dr. John Simms, a psychiatrist,
but in the summary judgment evidence Schoppe offers evidence of
John Sims, a corrections officer. Dr. John Simms was accused of
sexual harassment but the allegations were never sustained.
Therefore there is no comparison of disparate treatment to be
made. Possibly because of the confusion, the district court
considered only the evidence on Dr. John Simms but not
Corrections Officer John Sims. However, because there is summary
judgment evidence in the record on Corrections Officer John Sims
that was before the district court, we will consider the
evidence.
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of probation and ten days of suspension, punishments which fall
within TDCJ’s guidelines for a level 2 violation. While Schoppe
and Sims were both found to have committed level 2 violations,
the work-rule violated was not the same, and Sims’s misconduct
cannot be said to be “nearly identical” to that for which Schoppe
was terminated.
Next, Schoppe offers Captain John Wisener as a comparison.
Wisener was found to have violated Rule 5 for gross negligence in
duty performance in failing to take steps to prevent serious
injury to an inmate during a hostage incident. He was demoted
and given nine months of probation, punishment within the
guidelines for this level 2 offense. Again, while like Schoppe
Wisener committed a level 2 violation, the work-rule violated was
not the same and his misconduct cannot be said to be “nearly
identical” to that of Schoppe’s.
Finally, Schoppe offers Jesse Brown for comparison. In
October 1991, an investigation was conducted concerning an
allegation of sexual harassment against Brown. Brown was given
two months probation for violating Rule 37 after it was
determined that his conduct had not met the criteria for sexual
harassment. This rule infraction constitutes a level 4 violation
and the resulting punishment was within the guidelines for this
level of offense. Since this incident involved a different rule
violation and a lower level offense and Brown’s conduct was not
11
“nearly identical” to that of Schoppe, it is not a valid
comparison.
In January of 1993, Brown was found to have violated Rule 21
prohibiting sexual harassment for making sexual verbal comments
to another employee and was given twelve months of probation and
twenty-one days of suspension; these punishments fall within the
guidelines provided for a second offense under the level 2
guidelines. This case is the only comparison of the same rule
violation that Schoppe offers. While Brown was found to have
violated the same work-rule as Schoppe, their conduct was not
“nearly identical.” Brown’s misconduct concerned only sexual
harassment of one employee while Schoppe’s offense concerned
three different types of harassment and involved three different
employees. We find that Brown fails as a valid comparison to
establish disparate treatment.
We conclude that the evidence offered does not support the
contention that female employees are treated dissimilarly from
male employees with respect to TDCJ’s Rule 21. Schoppe was
punished differently from one male employee involved in Rule 21
infraction (Brown). However, the conduct of Brown and Schoppe
was not so similar that TDCJ was required to treat the two
equally. Therefore, Schoppe has failed to make out a prima facie
case of gender discrimination. We also conclude that Schoppe, in
her effort to show pretext, has failed to offer sufficient
evidence to allow a rational factfinder to make a reasonable
12
inference that her gender was a determinative reason for her
termination. We affirm the district court’s holding that
Schoppe’s claim under the TCHRA fails.5
B. § 1983 Claim
Schoppe claims that the district court erred in holding that
there was no genuine issue of material fact regarding the merits
of her equal protection claim under the Fourteenth Amendment to
the United States Constitution. She contends that Collins
discriminated against her because she is female. This claim is
brought under § 1983 on the allegation that Collins, acting under
color of state law, upheld her termination even in light of
evidence that she was being singled out for discipline because of
her gender, thus making him liable, in his official capacity, for
the discriminatory acts as if he had made the initial decision.
“Section 1983 actions challenging [gender] discrimination under
the equal protection clause and Title VII disparate treatement
cases both require a showing of discriminatory motive, and the
nature of a prima facie showing is the same in either case.” Lee
v. Conecuh County Bd. of Educ., 634 F.2d 959,962 (5th Cir. 1981).
Based on the discussion above concerning a failure of Schoppe to
5
Schoppe asserts that the district court committed
reversible error because it erroneously considered evidence of
Schoppe’s supervisory position and made an incorrect conclusion
that she violated three different policies in concluding that she
could not establish her prima facie case. Assuming without
deciding that the district court incorrectly considered these
factors, it is irrelevant because we reach the same conclusion
without considering the factors.
13
establish a claim under the TCHRA (which is identical to Title
VII for this purpose), we affirm the district court’s grant of
summary judgment on Schoppe’s § 1983 claim.6
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment on Schoppe’s claims under TCHRA and
§ 1983.
6
In its first order, the district court dismissed Schoppe’s
§ 1983 claim in part based on Jackson v. City of Atlanta, 73 F.3d
60 (5th Cir.), cert. denied, 117 S. Ct. 70 (1996), because she
failed to raise a claim grounded on facts different from those
raised in her Title VII claim. In its second order, the district
court clarified that Schoppe’s claim under § 1983 was dismissed
because she failed to make a prima facie case of disparate
treatment or show discriminatory intent. Collins urges Jackson
as a basis for affirming the district court’s dismissal of the
§ 1983 claim. Because we affirm the district court’s dismissal
on other grounds, we need not address the merits of this
argument.
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