Eaton-Stephens v. Grapevine Colleyville Indep. Sch. Dist., 2017 U.S. App. LEXIS 22704 (5th Cir. Nov. 13, 2017) (unpublished):

This appeal arises from the district court's grant of summary judgment in favor of Grapevine Colleyville Independent School District on all of Linda Eaton-Stephens's claims under Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act. While we agree the district court unduly discredited parts of Eaton-Stephens's deposition testimony, even considering that evidence we conclude that Eaton-Stephens cannot show there is a genuine issue of material fact that would preclude summary judgment, and therefore, we AFFIRM the district court's judgment.

I.

Grapevine Colleyville Independent School District employed Linda Eaton-Stephens, an African-American woman, as a counselor at Heritage Middle School from 2005 to 2014. Eaton-Stephens was the only black employee at the school. In 2013, Cheryl Harrison, a teacher at the school, was hired as the assistant [*2]  principal. Upon Harrison's hiring, Eaton-Stephens informed Principal Pete Valamides that she believed Harrison was prejudiced against non-white students and faculty because Harrison had ignored her during previous encounters. Eaton-Stephens also testified in her deposition that another counselor, Marsha Fields, called her "the little black counselor" and that when she told Valamides about the incident, his response was "fix it." According to Eaton-Stephen's testimony, Valamides had intervened on behalf of other employees who raised non-race-related complaints. Eaton-Stephens testified that this incident was part of a pattern of increasing friction with Fields and a registrar, Michaelanne Tapp, which had started in 2009 or 2010.

During the 2013-2014 school year, Eaton-Stephens was granted intermittent leave under the Family and Medical Leave Act (FMLA) due to migraine headaches. During that school year in early 2014, there was an incident at a parents' night where Fields chastised Eaton-Stephens about her use of the copier in front of the parents. Eaton-Stephens testified that following that incident Fields told her, "Don't worry. I'll get you." The next day, Becky Lamb, an assistant to the School District's human resources [*3]  executive director, Gema Padgett, came to the school and took possession of Eaton-Stephens's district-assigned laptop. Padgett and Fields were investigating an allegation that Eaton-Stephens was taking online college courses for Michael Capeda, a technical support employee of the School District. If true, the allegations against Eaton-Stephens would violate School District policies and the Texas Educator's Code of Ethics. Eaton-Stephens testified she believed the report that spurred the investigation originated with Fields and Tapp as retaliation for the parents' night incident. Padgett filed an affidavit stating, after finding two writing assignments under Capeda's name on Eaton-Stephen's laptop, that Eaton-Stephens admitted to writing and submitting one of the papers online. Eaton-Stephens testified that she explained to Padgett and Lamb that she only tutored Capeda and critiqued his papers.

At the conclusion of the investigation, Eaton-Stephens testified that Padgett and Lamb gave her two documents: a letter for administrative leave and a termination letter. Eaton-Stephens initially signed the administrative [*4]  leave letter, but after further reflection and because she believed any investigation would biased, she subsequently sent a resignation email to prevent what she believed to be an inevitable termination from harming her job prospects.

Eaton-Stephens filed a lawsuit against the School District, and in her first amended complaint, she alleged claims for racial discrimination, discrimination based on a disability, and retaliation. The district court granted summary judgment for the School District on all claims. Eaton-Stephens timely appealed the judgment.

II.

We review a district court's decision on summary judgment de novo. Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002). Summary judgment is proper only where the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Piazza's Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). We "must view the evidence in the light most favorable to the party opposing summary judgment." Porter v. Houma Terrabonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 942 (5th Cir. 2015) (footnote omitted). However, conjecture, conclusory allegations, unsubstantiated assertions, and speculation are not adequate to satisfy the non-movant's burden on summary judgment. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002).

III.

Eaton-Stephens argues that the district court [*5]  failed to give proper weight to her deposition testimony and therefore improperly granted summary judgment for the School District on her claims. We agree that the district court unduly discredited some of Eaton-Stephens's deposition testimony as conclusory. "A party's own testimony is often 'self-serving,' but we do not exclude it as incompetent for that reason alone." C.R. Pittman Const. Co. v. Nat'l Fire Ins. Co. of Hartford, 453 F. App'x 439, 443 (5th Cir. 2011) (unpublished) (citing Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir. 1999)). Even if self-serving, a party's own affidavit containing factual assertions based on firsthand knowledge is competent summary judgment evidence sufficient to create a fact issue. Id. at 443. Eaton-Stephens's testimony that Fields called her "the little black counselor" and that Valamides, in reference to that statement, told her to "fix it," is non-conclusory evidence that should have been considered by the district court. However, other statements by Eaton-Stephens in her deposition were conclusory, such as her allegations that Harrison was prejudiced against non-white students and faculty, or that Fields and Tapp treated her poorly because she was black. The district court properly identified these conclusory statements as non-competent summary judgment evidence.

Eaton-Stephens also argues she should [*6]  have received a spoliation inference because her computer's contents were erased, and that, because the School District's policy and rules required retention of the contents for several years, the only conclusion was that the action was taken in bad faith. Our cases indicate a violation of a rule or regulation pertaining to document retention is not per se bad faith and Eaton-Stephens cites no authority in support of such a per se bad faith rule. See, e.g., King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003) (holding the plaintiff bears the burden to establish the defendant acted in bad faith and allowing the defendant to present evidence showing there was an innocuous explanation where documents subject to federally mandated retention were destroyed). We decline to adopt a per se rule here. As such, Eaton-Stephens has not met her burden to show bad faith where the only evidence she put forth in support of her claim of bad faith was the alleged violation of School District policy and rules. The district court, therefore, did not err in declining to find Eaton-Stephens was entitled to an adverse inference due to spoliation of evidence.

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For the foregoing reasons, we AFFIRM the district court's grant of summary judgment for the School District on all of Eaton-Stephens's claims.