Jessica deValentino v. Houston Indep School Distri ( 2020 )


Menu:
  •      Case: 20-20025      Document: 00515486330         Page: 1    Date Filed: 07/13/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 20-20025                            July 13, 2020
    Summary Calendar
    Lyle W. Cayce
    Clerk
    JESSICA DEVALENTINO,
    Plaintiff - Appellant
    v.
    HOUSTON INDEPENDENT SCHOOL DISTRICT,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:18-CV-393
    Before WIENER, HAYNES, and COSTA, Circuit Judges.
    PER CURIAM:*
    Jessica DeValentino appeals the district court’s grant of summary
    judgment to the Houston Independent School District (“HISD”) on her
    employment discrimination claims under Title VII of the Civil Rights Act of
    1964 and the Texas Commission on Human Rights Act (“TCHRA”).                                    We
    AFFIRM.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 20-20025    Document: 00515486330      Page: 2   Date Filed: 07/13/2020
    No. 20-20025
    I.    Background
    DeValentino, an African American woman, worked as an assessment
    administrator in HISD’s Student Assessment Department for approximately
    two years until she was fired in September 2016. In April 2016, DeValentino
    was moved to the online assessment team.              The team consisted of
    DeValentino, two additional online assessment administrators who were
    Hispanic, and their supervisor, Diana Bidulescu, who is Caucasian.
    DeValentino and Bidulescu did not get along.
    Just three days after joining the new team, DeValentino filed a formal
    complaint against Bidulescu. DeValentino, Bidulescu, and Leng Fritsche, the
    assistant superintendent of the Student Assessment Department, met to
    discuss DeValentino’s complaint. In May, Bidulescu issued three memoranda
    to DeValentino regarding her inability to follow instructions or comply with
    the department’s professional conduct standards. Around that same time,
    DeValentino filed two additional complaints against Bidulescu, one of which
    alleged racial discrimination.
    In August, following a poor performance evaluation by Bidulescu,
    DeValentino was placed on a Prescriptive Plan for Assistance (“PPA”) until
    September 2.    The PPA identified three specific areas for improvement:
    quality of materials, timeliness and teamwork, and organization.          It also
    entailed biweekly check-in meetings. In these check-in meetings, Bidulescu
    identified PPA goals that DeValentino had failed to meet. Citing continued
    poor job performance and inability to improve while on the PPA, HISD
    terminated DeValentino on September 27.
    DeValentino sued HISD, claiming that HISD violated Title VII and the
    TCHRA by terminating her because of her race and retaliating against her
    based on her discrimination complaints.       The district court referred the
    matter to a magistrate judge. HISD moved for summary judgment on both
    2
    Case: 20-20025     Document: 00515486330       Page: 3   Date Filed: 07/13/2020
    No. 20-20025
    claims, and the magistrate judge recommended granting the motion with
    respect to the racial discrimination claim only. The magistrate judge’s report
    and recommendation (“R&R”) warned that a failure to file written objections
    within fourteen days from service of the R&R would foreclose de novo review
    by the district judge or the appellate court.
    HISD timely objected to the R&R on the retaliation claim, but
    DeValentino did not timely object on the discrimination claim. The district
    court granted HISD’s motion in full. It found no plain error in the magistrate
    judge’s recommendation on the discrimination claim and adopted the R&R on
    that point, and it concluded that DeValentino failed to present a material fact
    dispute regarding pretext for her retaliation claim.          DeValentino timely
    appealed.
    II.    Discussion
    HISD’s argues that DeValentino’s arguments are inadequately briefed
    in violation of Federal Rule of Appellate Procedure 28 and our corresponding
    Fifth Circuit Rule 28 such that we should summarily affirm. DeValentino’s
    pro se brief is less than fulsome. We need not reach this question as to the
    discrimination claim, however, because even construing her arguments
    liberally, they still fail. See Grant v. Cuellar, 
    59 F.3d 523
    , 525 (5th Cir. 1995)
    (per curiam) (holding that we may consider a noncompliant brief when the
    noncompliance does not prejudice the opposing party).
    On the other hand, she provides nothing on the retaliation claim, so we
    conclude that it should not be considered on appeal. She broadly describes
    the issue as involving “the decision for summary judgment,” but she provides
    no evidentiary support regarding pretext for her retaliation claim. See Price
    v. Digital Equip. Corp., 
    846 F.2d 1026
    , 1028 (5th Cir. 1988) (per curiam)
    (observing that prejudice would likely exist if there were “disputed facts
    3
    Case: 20-20025      Document: 00515486330      Page: 4    Date Filed: 07/13/2020
    No. 20-20025
    cloud[ing] the resolution of [the] legal issue”). We thus summarily affirm on
    the retaliation claim and turn to the discrimination claim.
    We review the district court’s holding on that issue for plain error
    because DeValentino failed to timely object to the R&R. See Ortiz v. City of
    San Antonio Fire Dep’t, 
    806 F.3d 822
    , 825 (5th Cir. 2015) (holding that plain
    error review applies when a party fails to timely object to a magistrate
    judge’s R&R despite being served with notice of the consequences of failing to
    do so). To prevail under this standard, DeValentino must show that (1) the
    district court committed an error; (2) “the error was plain, which means clear
    or obvious;” (3) the error affected her substantial rights; and (4) “not
    correcting the error would seriously impact the fairness, integrity, or public
    reputation of judicial proceedings.” 1 
    Id.
     at 825–26 (internal quotation marks
    and citation omitted). We hold that the district court did not plainly err in
    granting summary judgment on DeValentino’s discrimination claim.
    The magistrate judge identified the correct legal standard: the
    McDonnell Douglass burden-shifting framework. See Shackelford v. Deloitte
    & Touche, LLP, 
    190 F.3d 398
    , 403–04 & n.2 (5th Cir. 1999) (analyzing Title
    VII and TCHRA discrimination claims under McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    , 801–03 (1973)). The magistrate judge also correctly
    applied the McDonnell Douglas framework. At step one, HISD conceded that
    DeValentino had presented a prima facie case. See Shackelford, 
    190 F.3d at 404
    . Thus, the magistrate judge proceeded to step two and concluded that
    HISD had asserted, and supported with sufficient evidence, a legitimate,
    nondiscriminatory reason to terminate DeValentino: poor work performance.
    See 
    id.
       On the third and last step, the magistrate judge concluded that
    DeValentino had failed to raise a genuine material fact issue regarding
    1  DeValentino misunderstands this standard. We review whether the court plainly
    erred, not whether she erred.
    4
    Case: 20-20025    Document: 00515486330     Page: 5   Date Filed: 07/13/2020
    No. 20-20025
    pretext. See 
    id.
     The R&R noted that DeValentino had failed to point to any
    evidence in the record supporting her claims that Bidulescu reported
    inaccurate information or that two similarly situated employees were treated
    more favorably than she was. Indeed, DeValentino confirms that she did not
    “address[] pretext when the case was at the District Court.” We identify no
    error in the magistrate judge’s R&R and thus hold that the district court did
    not    plainly   err   in   granting   summary    judgment    on   DeValentino’s
    discrimination claim.
    AFFIRMED.
    5
    

Document Info

Docket Number: 20-20025

Filed Date: 7/13/2020

Precedential Status: Non-Precedential

Modified Date: 7/13/2020