McAllen Federal Court Finds Direct Evidence of Race and Sex Discrimination Against a White Applicant

Judge Michaela Alvarez of the Southern District of Texas decided a motion for summary judgment case involving allege race discrimination and sex discrimination in Fischer v. City of Donna, No. 7:12-CV-242 (May 14, 2013).

The plaintiff, who is a white female, applied for the position as city manager of Donna, Texas.  She was not hired.  Instead, the position went to a male Hispanic applicant.  The plaintiff sued for race discrimination.  Ms. Fischer testified that a city council member had admitted that the hiring decision was discriminatory:

Q. Now, you said that Councilwoman Muñoz told you that she was called for that by another councilperson and they discussed the applicants, correct?

A. Yes.

Q. Who was — who did she say was the councilperson that called her?

A. [Council member and Mayor Pro-Tem] Simon Sauceda.

Q. And what did she say Mr. Sauceda told her during that phone conversation?

A. What I had previously said, that they had had a meeting and had discussed the final applicants that they were considering and had basically eliminated me because they felt that the City of Donna was not ready for a white woman.

Nonetheless, the City moved for summary judgment.  Judge Sanchez noted that direct evidence of discrimination eliminates the need for the burden-shifting analysis used in cases involving circumstantial evidence:

"Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption."  In Jones v. Robinson Property Group. L.P., the Fifth Circuit stated the following regarding direct evidence: "We have previously held that statements or documents which show on its face that an improper criterion served as a basis -- not necessarily the sole basis, but a basis -- for the adverse employment action are direct evidence of discrimination."

Judge Sanchez found that the plaintiff had produced direct evidence.  Judge Sanchez also considered the possibility that the admission by the city council member could be treated as a "workplace remark."  Without deciding whether the "workplace remark" rule is applicable, Judge Sanchez found that the city council member's comment met the legal standard for consideration of the comment as direct evidence of discrimination:

In this case, Fischer has produced evidence that Councilman/Mayor Pro-Tem Simon Sauceda made a comment to Councilwoman Muñoz which on its face shows that improper criteria served as bases for Defendant's decision to not hire Fischer.  Additionally, assuming without deciding that Sauceda's comment to Muñoz should be analyzed as a workplace comment, the comment satisfies the four-prong test which applies to workplace comments.  First, the word "woman" relates to Fischer's sex and the word "white" in this context references Fischer's race and/or national origin.  Second, although the exact timing of the comment is unknown, it is clear that it was made to Muñoz soon before the city council voted to hire Oscar Ramirez instead of Fischer.  Third, the comment was made by Sauceda who was one of the decision makers and it strongly suggests that at least one other decision maker shared his opinion.  Fourth, the comments addressed the exact employment decision at issue in this case.

Judge Sanchez thus denied the summary judgment motion.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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