Opinion
Civil Action No. 3:02-CV-1021-D
December 18, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Hernan A. Badilla ("Badilla") sues defendant Bombardier Aerospace Corporation ("Bombardier"), alleging that he was subjected to discrimination based upon his age, race, and/or national origin, in violation of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Labor Code Ann. §§ 21.001-21.556 (Vernon 1996 Supp. 2004), when Bombardier demoted him and later terminated his employment as part of a reduction in force ("RIF"). Bombardier moves for summary judgment. For the reasons that follow, the court grants the motion in part and denies it in part.
I
Badilla is a Hispanic whose nation of origin is Costa Rica. He began working for Bombardier in 1997 as a maintenance controller. Bombardier provides aircraft charter and management services to customers who seek fractional ownership interests in private aircraft. Badilla performed several different job functions and was demoted during his tenure. Bombardier ultimately terminated his employment in 2001 as part of a RIF in which it retained three of four maintenance planners but selected him for termination. At the time, he was 46 years old and was employed as the company's long-term maintenance planner. Three younger, Caucasian employees were retained as maintenance planners, and one of these individuals replaced him. Badilla alleges that Bombardier violated the TCHRA by demoting and later firing him based on his age, race, and/or national origin.
The court will generally recount the evidence favorably to Badilla as the nonmovant and draw all reasonable inferences in his favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
The court will assume arguendo that Badilla was demoted. For purposes of this motion, Bombardier concedes that there is a fact question whether he was demoted. See D. Mot. at 2 n. 1.
Bombardier states in its motion that, although it is unclear whether Badilla is alleging discrimination based on a negative performance evaluation, it will assume that he is. Bombardier moves for summary judgment dismissing this component of his suit on the grounds that he did not include this allegation in a timely discrimination charge or, alternatively, because a negative performance evaluation does not constitute an adverse harm that is actionable under the TCHRA. Badilla has not responded to Bombardier's arguments, and the court therefore concludes that the negative performance evaluation should not be treated as an independent claim. Therefore, the court will address only his demotion — and termination-based claims.
Bombardier moves for summary judgment, contending, inter alia, that Badilla's demotion-based claim is time-barred and that he cannot prove that Bombardier discharged him based on his age, race, and/or national origin. Badilla opposes the motion.
Badilla and Bombardier have both filed objections to, and motions to strike, the opposing party's summary judgment evidence. The court need not address these objections and motions because, in deciding Bombardier's summary judgment motion, the court has not relied on any of the evidence to which an objection has been made. In particular, Bombardier's objections all relate to the declaration of William L. Bauer, and the court has not relied on any of the evidence presented in his declaration.
II
The court first considers whether Bombardier is entitled to summary judgment on Badilla's claim that he was demoted because of his age, race, and/or national origin. Bombardier maintains, inter alia, that this cause of action is time-barred.The court need only decide whether Badilla filed his complaint with the Texas Commission on Human Rights ("TCHR") or the Equal Employment Opportunity Commission ("EEOC") within 180 days of the occurrence of the alleged unlawful act, as required under Tex. Labor Code § 21.202(a) (Vernon 1996). Failure to comport with the 180-day filing requirement deprives the court of subject matter jurisdiction. See Vincent v. W. Tex. State Univ., 895 S.W.2d 469, 473 (Tex.App. 1995, no writ); see also Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485-488 (Tex. 1991) (holding that plaintiff must first exhaust TCHRA administrative remedies before bringing civil action for such violation).
Badilla filed his charge of discrimination with the EEOC and the TCHR on January 7, 2002 alleging, inter alia, that the demotion was discriminatory. The parties dispute exactly when Badilla was demoted. Badilla testified in his deposition that the demotion occurred "[m]onths after" the arrival of Gary Scott Shatzer ("Shatzer"), Bombardier's Maintenance Planning Manager. It is undisputed that Shatzer arrived in November 2000, about fourteen months before Badilla filed his charge. Badilla argues that "months" is indeterminate and does not rule out the possibility that he may have been demoted after July 11, 2001 (i.e., within 180 days of filing his discrimination charge). The balance of the summary judgment evidence, however, would only permit a reasonable trier of fact to find that the demotion occurred before July 11, 2001.
First, Shatzer testified that he instructed Badilla to relinquish the supervisory duties within the first several weeks after he arrived. This testimony is consistent with this assertion set out in the statement of facts contained in Badilla's brief:
After the hiring, [Badilla] began reporting to Mr. Shatzer, who was fifteen years his junior. Shortly thereafter, Mr. Shatzer told [Badilla] that [Badilla] would no longer be a supervisor of the other planners, and [Badilla] was moved to a maintenance planner position. [Badilla] no longer supervised the activities of the other maintenance plans approved their requests for vacation and overtime, or was involved in hiring decisions for maintenance planners. Mr. Bremer admits that he would consider it to be a significant change in his job duties if at one time he was able to hire individuals and later he could not.
P. Br. at 10-11 (citations omitted). Second, Bombardier's appraisal form, dated April 30, 2001, reflects that Badilla's position is "Long-Range Maintenance Planner," indicating that over two months before the 180-day deadline, Badilla had been demoted. Third, Badilla's discrimination charge filed with the EEOC and TCHR indicates the demotion occurred on or about May 1, 2001, also in excess of two months before the deadline.
Badilla asserts in a footnote that "when an unlawful employment practice manifests itself over time, the doctrine of continuing violation expands the scope of those discriminatory events that are actionable, as long as one of the events occurs within the 180-day period." P. Br. at 33 n. 6 (citing Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41-42 (Tex.App. 1998, pet. denied)). To the extent Badilla intends seriously to rely on this argument to avoid the limitations bar, the court rejects it.
The continuing violation doctrine does not apply when there are discrete acts, such as a demotion. See, e.g., Huckabay v. Moore, 142 F.3d 233, 239-240 (5th Cir. 1998). The continuing violation doctrine is ill-suited for demotion claims because a
demotion is a different sort of discrimination from the day-to-day harassment that makes his workplace a hostile environment. Moreover, he was demoted only once, and unlike the cumulative effect of the petty annoyances of daily harassment, demotion is the sort of discrete and salient event that should put an employee on notice that a cause of action has accrued.Id.
Accordingly, the court grants summary judgment dismissing Badilla's demotion claim on the ground that it is time-barred.
III
The court next considers Badilla's claim that Bombardier violated the TCHRA by terminating him based on his age, race, and/or national origin. Both parties have addressed all three grounds for the termination claim together, and the court will do so as well.
Badilla relies on indirect evidence to prove discrimination under the TCHRA. See P. Br. at 19 (conceding that "this is a circumstantial evidence, or a `pretext' case"). "The [Texas] Legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA." Wal-Mart Stores, Inc. v. Canchola, ___ S.W.3d ___, 2003 WL 22053417, at *2 (Tex. Sept. 4, 2003) (per curiam). Texas state courts construe the TCHRA consistently with federal law interpreting Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. See Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir. 1999) ("the law governing claims under the TCHRA and Title VII is identical"); Caballero v. Cent. Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993) ("Another stated purpose [of the TCHRA] is to coordinate and conform with federal law under Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act." (internal citations omitted)). Accordingly, the court will apply the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in deciding Bombardier's motion for summary judgment.
Under McDonnell Douglas Badilla must first establish a prima facie case of discrimination. See Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802-04). Once Badilla meets this burden, Bombardier is obligated to articulate a legitimate, nondiscriminatory reason for the employment decision at issue. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). This is a burden of production, not persuasion. Id. Once Bombardier meets this production burden, the presumption of discrimination disappears. Id. Badilla must then prove by a preponderance of the evidence that the legitimate reason offered is not the true reason but is a pretext for discrimination. Id. "[T]he plaintiff may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148. "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Id. at 147. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. At the summary judgment stage, Badilla need only raise a genuine issue of material fact. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1116 (N.D. Tex. 1990) (Fitzwater, I).
IV
It is undisputed, for purposes of this motion for summary judgment, that Badilla has met the requirements for establishing a prima facie case of discrimination under the TCHRA. The court therefore turns to whether Bombardier has met its burden of production.
To meet his prima facie case burden, Badilla must prove that he (1) belongs to the protected category, (2) was qualified for the position he held, (3) was discharged, and (4) after the discharge others who were not members of the protected class remained in similar positions. Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (citing Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990)). Bombardier assumes, for purposes of this motion, that Badilla can establish a prima facie case. See D. Br. at 12.
Bombardier has introduced evidence that it terminated Badilla's employment as part of a RIF caused by a business slowdown, after deciding, based on skill sets, experience, and job performance who from the maintenance planning group would be retained. Discussions concerning who would be kept or discharged concerned productivity, attitude, initiative, professionalism, teamwork, and ethics. According to Bombardier's proof, at no time during the RIF meetings was age, race, national origin, or any other protected trait or characteristic discussed. Bombardier decided that it could safely and efficiently accomplish maintenance planning functions with three maintenance planners. It decided to retain Robert Diezi ("Diezi"), age 27, and Shane Schubert ("Schubert"), age 28, as maintenance planners based on their strong performance and established skill sets. One of the four planners — Mark Bajaj ("Bajaj") — was transferred to the aircraft reliability group. Bombardier identified Mark Brandon ("Brandon"), age 32 — an employee with some prior maintenance planning experience and a strong performance review — as the best person for the third position. Diezi, Schubert, and Brandon are Caucasian. During the RIF planning process, issues arose concerning Badilla's performance. His last overall performance rating was "fair," a rating that was below that given Diezi and Schubert. Concerns were also expressed in RIF meetings concerning Badilla's work ethic, attitude, and willingness to be a team player. Bombardier does not assert that Badilla was discharged because of poor performance, but instead that he was terminated because, when compared to the other persons considered, he was not the best qualified.
A RIF is a legitimate, nondiscriminatory reason for discharge. See EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). A decision based on an employee's qualifications is also a legitimate, nondiscriminatory reason for discharging him. See, e.g., Manning v. Chevron Chem. Co., 332 F.3d 874, 881-82 (5th Cir. 2003) (holding that promoting persons on basis that they were better qualified stated legitimate, nondiscriminatory reason).
V
Because Bombardier has met its burden of production, the burden has shifted to Badilla to introduce evidence that would permit a reasonable trier of fact to find that the reason on which Bombardier relies is pretextual. Badilla maintains that he has met his burden by showing that he was clearly better qualified than were Diezi, Schubert, and Brandon, that Bombardier has not explained why it did not place him in other positions that remained available after the RIF, and that Bombardier's articulated business reason for including him in the RIF has changed since the date he was informed he was being discharged.
A
Before turning to the merits of this element of the burden-shifting paradigm, the court will address two issues presented directly in, or suggested by, the briefing: first, whether Badilla can only avoid summary judgment by adducing evidence that would permit a reasonable jury to find that he was clearly better qualified than were the persons retained in the RIF, and second, whether he must rebut each of the legitimate, nondiscriminatory reasons on which Bombardier relies for including him in the RIF.
1
A plaintiff who seeks to prove discrimination in the face of evidence that he was selected for termination because he was less qualified than another employee can rely on evidence of pretext or on proof that he was clearly better qualified. See, e.g., Price v. Fed. Express Corp., 283 F.3d 715, 721-23 (5th Cir. 2002). In Price the plaintiff argued that he was clearly better qualified for the position in question or, alternatively, that the employer's proffered reason was false, as evidenced by the absence of job qualifications in the person selected for the job. Id. at 721-22. The Fifth Circuit addressed this contention, and the plaintiff's assertion that he was clearly better qualified for the position, as independent arguments. The panel did not suggest that pretext could not be posited as separate ground to prove intentional discrimination, even though the grounds on which the plaintiff relied to establish pretext — the lack of qualifications of the person selected — were at least in some respects coextensive with those offered to demonstrate that he was clearly better qualified. Accordingly, to withstand summary judgment, Badilla is not limited to showing only that he was clearly better qualified.
The court has found no direct assertion in Bombardier's brief that it disputes this conclusion. Nevertheless, in contrast with its principal brief, which focuses on pretext, see D. Br. at 14-16, Bombardier repeatedly urges in its reply brief that it is entitled to summary judgment because Badilla cannot demonstrate that he was clearly better qualified, see, e.g., D Rep. Br. at 9, 11.
The court disagrees with Badilla, however, that the clearly-better-qualified standard is no longer valid following Reeves. The Fifth Circuit has considered this argument and rejected it. See Manning, 332 F.3d at 882 n. 4. The court also rejects Badilla's contention that this requirement cannot stand after the Texas Supreme Court's decision in Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001). There is nothing in that decision that supports such an assertion. Badilla maintains that Quantum Chemical's holding that a "motivating factor," rather than "but for," standard applies supports rejecting the requirement that a plaintiff alleging discrimination show that he is clearly better qualified. But as the court explains below, the Fifth Circuit also applies a "motivating factor" or a "determinative factor" standard to the claims at issue here, and under these standards it requires a showing that the plaintiff was clearly better qualified. See, e.g., Price, 283 F.3d at 722 n. 4, 723.
Accordingly, although a plaintiff need not rely on proof that he was clearly better qualified, but instead may prove pretext via other means, if he does rely on his comparative qualifications to meet the third prong of the burden-shifting test, he must introduce proof that would permit the reasonable finding that he was clearly better qualified.
2
The court next addresses Badilla's contention that he need only rebut one of Bombardier's legitimate, nondiscriminatory reasons, not each of them, to withstand summary judgment. This discussion is largely academic because Bombardier does not rely on several discrete reasons to contend — but instead cites individual grounds to support the collective justification and assertion — that other employees were retained in the RTF because they were better qualified. Nevertheless, because this issue may recur in future cases, the court will address it.
As noted above, Texas state courts construe the TCHRA consistently with federal law interpreting Title VII and the ADEA. Badilla acknowledges that Texas generally follows analogous federal law, but he maintains that, in one significant area, causation, Texas has diverged from federal precedent. Badilla posits that he need only satisfy a standard that is less onerous than a "but for" standard. Although Badilla's argument is more involved, see P. Br. at 19-22, and the court would address it more extensively if necessary to decide this motion, it is clear that Badilla's purpose for presenting this argument is to contend that, to avoid summary judgment, he need only rebut one of Bombardier's reasons for terminating his employment. See id. at 22 ("Thus, if [Badilla] sufficiently rebuts one of [Bombardier's] proffered reasons for the termination, he should survive summary judgment under the `motivating factor' standard.").
Texas law refers to a employer's discriminatory reason for discharging an employee as 9causation." See Quantum Chem., 47 S.W.3d at 475.
Badilla appears to assume that federal law follows a "but for" standard for establishing discrimination that is more onerous than a requirement that discrimination be a motivating part of the employment decision. See id. at 20. The Fifth Circuit, however, applies "a motivating factor" standard to race and national origin discrimination cases under Title VII and "a determinative factor" standard to age discrimination cases under the ADE A. See, e.g., Garcia v. City of Houston, 201 F.3d 672, 676 (5th Cir. 2000) (Title VII) ("Currently, under Title VII an unlawful employment practice is established when the complaining party establishes that race, color, national origin, or sex was a motivating factor for any employment practice, even though other factors also motivated the practice."); Woodhouse v. Magnolia Hosp., 92 F.3d 248, 253 (5th Cir. 1996) (ADEA) (holding that court of appeals must examine sufficiency of evidence to support jury verdict that employer used age as a determinative factor in making adverse employment decision and that "[a]lthough age need not be the sole reason for adverse employment decision, it must actually play role in employer's decisionmaking process and have a determinative influence on outcome"). Thus contrary to Badilla's assumption, discrimination need only be a motivating or a determinative factor for the discriminatory act in question. But this does not mean, as Badilla concludes, that he need only rebut one proffered reason for termination to survive summary judgment. The Fifth Circuit requires that a plaintiff introduce evidence sufficient to prove pretext concerning each proffered reason on which the employer relies. This remains true following Reeves. In Laxton v. Gap, Inc., 333 F.3d 572 (5th Cir. 2003), the court held that the plaintiff "must rebut each nondiscriminatory reason articulated by the employer." Id. at 578 (pregnancy discrimination case addressing Title VII standards) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001), also a post- Reeves decision). In Ramirez v. Landry `s Seafood Inn Oyster Bar, 280 F.3d 576 (5th Cir. 2002), the panel held that "[t]o make a showing of pretext sufficient to submit her case to a jury, [plaintiff] `must put forward evidence rebutting each of the nondiscriminatory reasons the employer articulates.'" Id. at 577 (quoting Wallace, 271 F.3d at 220 (emphasis added) (citations omitted)).
Nor has Badilla demonstrated that Texas law requires that he rebut only one of Bombardier's reasons. Quantum Chemical, the case that Badilla cites, does not reach this conclusion. It merely holds that to prevail under the TCHRA, a plaintiff must prove that discrimination was a motivating factor. Quantum Chem., 47 S.W.3d at 482. And following Quantum Chemical, a Texas lower court has held that a plaintiff must rebut each reason on which the employer relies to justify the action taken. See Russo v. Smith Int'l, 93 S.W.3d 428, 438-441 (Tex.App. 2002, pet. denied).
Although the court rejects Badilla's contention that he need not introduce evidence that would permit a reasonable trier of fact to find that each reason on which Bombardier relies is pretextual, the court holds that Bombardier only relies on one reason: that based on several components for evaluation, it deemed others more qualified for retention than it did Badilla.
B
The court now turns to the question whether Badilla has presented evidence that would permit a reasonable trier of fact to find pretext or to conclude that he was clearly better qualified than were Diezi, Schubert, and Brandon. The court holds that Badilla has adduced evidence-albeit close to the irreducible minimum-that would permit a reasonable finding that Bombardier's stated reason for including him in the RTF is false.
For example, Badilla has introduced evidence that, before the RIF, there were four maintenance planners: one long-term (Badilla) and three short-term (Diezi, Schubert, and Bajaj). P. App. 53. Bombardier decided to reduce the number of maintenance planners from four to three. Id. at 65, 67. It transferred Bajaj to the aircraft reliability group. Id. at 66. Although this reduced the number of planners to three, Bombardier brought in Brandon from another department to be a short-term planner, id., retained Diezi as a short-term planner, id. at 25, and replaced Badilla with Schubert as long-term planner, id. at 68. Badilla had 20 years' experience in the aviation maintenance industry, see id. at 27, and experience in the long-range planning position, id. at 32. Schubert had no experience in long-range planning, id. at 66, and just over one year's experience in short-term planning, id. at 13. Badilla was Schubert's and Diezi's supervisor, participated in their hiring, and was responsible for their training. Id. at 31, 86. Brandon had to be trained for the position of short-term planner and had a lot to learn. Id. at 98-99. Given the disparity in experience, the relative supervisor-subordinate positions of the employees, and the fact that Bombardier brought in an employee from another department while also discharging Badilla, a reasonable trier of fact could doubt the veracity of Bombardier's stated reason for including him in the RIF.
When this court denies rather than grants summary judgment, it typically does not set out in detail the evidence that creates a genuine issue of material fact. See, e.g., Swicegood v. Med. Protective Co., 2003 WL 22234928, at *17 n. 25 (N.D. Tex. Sept. 19, 2003) (Fitzwater, J.).
Additionally, Eric Brammer ("Brammer"), the Director of Maintenance, acknowledged that Badilla had the skill sets to fill other jobs that were not eliminated as part of the RIF, id. at 91 A, yet he was not reassigned in lieu of termination. Brammer told Badilla on several occasions in 2000 that he was doing fine, should just keep on doing what he had been doing, and was doing everything he could to stay in line to advance with the company. Id. at 30.
Accordingly, although the summary judgment record contains extensive evidence that would permit a jury reasonably to find that Bombardier included Badilla in the RIF precisely for the reason it states — and the jury may in fact have little difficulty coming to this conclusion — the court holds that Badilla has introduced sufficient evidence to require a trial.
* * *
Bombardier's July 1, 2003 motion for summary judgment is granted in part and denied in part.