Sections 1981 and 1983 Hostile Work Environment and Retaliation Claims Came Too Late

​A school employee could not amend his Title VII of the Civil Rights Act of 1964 complaint to avoid summary judgment by adding 42 U.S.C. Sections 1981 and 1983 hostile work environment and retaliation claims, which require proof of his employer's custom or policy, because it was too late to explore these issues, the 5th U.S. Circuit Court of Appeals ruled.

The Houston Independent School District (HISD) hired Larry Allen, a black man over age 50, as a senior manager support in HISD's transportation department in November 2010 under a "noncertified administrator performance contract." In an Aug. 12, 2012, e-mail to his co-workers, Allen said that his supervisor, Nathan Graf, wrongfully accused him of failing to complete a high-priority task. Following that incident, Allen contended that Graf began reassigning his duties and responsibilities to younger HISD employees. Allen also claimed that Graf harassed him by sharing a distorted photo of Allen's face that Graf created on his iPad with others in the office, remarking to a co-worker that Allen was slow in getting around and making a comment about Allen's gray hair.

On Sept. 28, 2012, Allen met with Graf's supervisor, Leo Bobadilla, to discuss his concerns but Allen believed that Bobadilla did nothing to stop Graf's behavior. On Oct. 2, 2012, Graf issued Allen a written reprimand about an assignment. Allen sent a letter to Graf and Bobadilla accusing Graf of harassing him and creating a hostile work environment. Allen also claimed that Graf admitted to disciplining him differently than a white subordinate at a meeting attended by an HR professional.

Allen claimed that, in the next four months, Graf removed job duties from him and promoted two employees above him without his knowledge. Allen lodged a complaint with the HISD equal opportunity office alleging age and race discrimination and a hostile work environment. Allen then learned from a co-worker that his position was being eliminated and his contract would not be renewed. Graf decided to combine the positions of senior management support and senior manager of operations to increase departmental efficiency. Graf chose Chester Glaude, a 46-year-old black man, for the new position and recommended that Allen's contract not be renewed.

Allen filed a discrimination charge with the Equal Employment Opportunity Commission, claiming that HISD had discriminated against him based on his age and race and retaliated against him for complaining about that discrimination. Allen filed a federal court lawsuit on June 19, 2014, claiming race discrimination under Title VII, age discrimination, hostile work environment, and retaliation under Title VII and state law.

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HISD moved for summary judgment on Allen's discrimination claims but not on the Title VII harassment or retaliation claims. The district court granted summary judgment on all of Allen's discrimination claims, mistakenly including the Title VII harassment and retaliation claims. Allen filed a motion for reconsideration of the dismissal of his harassment and retaliation claims. The district court granted Allen's motion for reconsideration. In the same order, the court determined that HISD was seeking summary judgment as to Allen's Title VII harassment and retaliation claims and that Allen would have to file an opposition to that motion.

In response, Allen filed a motion for leave to amend his complaint to add claims under 42 U.S.C. Sections 1981 and 1983 for hostile work environment and retaliation. HISD opposed this motion for leave, arguing that it was too late to make such claims because discovery part of litigation had ended and because Allen's Section 1981 hostile work environment claim was a rehash of his dismissed age discrimination claim. The district court held a hearing on the motions and denied Allen leave to amend his complaint and granted HISD summary judgment on Allen's Title VII harassment and retaliation claims.

Allen appealed the decision to the 5th Circuit, arguing that he should be allowed to amend his complaint to add Section 1981 and 1983 claims. The appeals court found that both statutes required Allen to show that HISD harassed and retaliated against Allen according to a custom or policy, which was an issue that could not be explored at that point because discovery had closed. The lateness of Allen's motion was determined thus to be unfair to HISD.

Allen v. Houston Independent School District, 5th Cir., No. 16-20573 (May 3, 2017).

Professional Pointer: In cases of alleged racial discrimination or harassment, a plaintiff has the option of bringing claims under 42 U.S.C. Section 1981 and 42 U.S.C. Section 1983 if his employer is a federal or state government entity, in addition to claims under Title VII and state law. While Sections 1981 and 1983 have expanded the forms of relief available to employees, they also require additional showings of misconduct, and thus may be harder for an employee to prove.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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