Opinion
No. 05-04-00547-CV
Opinion issued February 10, 2005.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-11208-H.
Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
In this employment retaliation case, Dwight Higgs appeals the summary judgment in favor of his former employer, Trammell Crow Company. In two issues, Higgs contends appellee was not entitled to judgment as a matter of law. Because the facts of this case and its procedural history are well-known to the parties, we do not recite them in detail. The dispositive issue being clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment.
Higgs worked for appellee as a security officer for fourteen years. Possession of a valid security license was a condition of employment. In September 2001, appellee fired Higgs after learning the Texas Commission on Private Security had suspended his license. On November 2, Higgs filed a charge of racial discrimination with the EEOC over his termination. Five days later, the Commission reinstated Higgs's private security license, and, on December 4, Higgs reapplied for a job with appellee. On his job application, Higgs stated that he expected the same salary as when he left and was available for work at the same hours as when he left. Appellee did not rehire Higgs. Higgs then filed a second complaint with the EEOC and ultimately this lawsuit, alleging appellee did not rehire him because he filed a racial discrimination complaint after he was terminated.
Appellee moved for both a traditional and no-evidence summary judgment, asserting seven grounds. In one ground, appellee asserted that Higgs could not make a prima facie case of retaliation because he could not establish a causal connection between his filing a complaint and appellee failing to rehire him. We agree.
This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). When reviewing a traditional summary judgment, we apply well-known standards. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
When a defendant seeks to obtain summary judgment based on a plaintiff's inability to prove its case, the defendant must conclusively disprove at least one element of each of the plaintiff's causes of action. See Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 737 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Only if the defendant disproves one of the essential elements of one of the plaintiff's causes of action does the plaintiff carry the burden of producing controverting evidence and raising a fact issue as to the negated element. Id.
To make a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See Marsaglia v. Univ. of Tex., El Paso, 22 S.W.3d 1, 4 (Tex.App.-El Paso 1999, pet. denied). In his petition, Higgs alleged appellee retaliated against him by refusing to rehire him after he had made a previous charge of discrimination with the EEOC.
To disprove the causal connection between the failure to rehire and Higgs's filing a complaint, appellee provided the affidavits of Angela Carter and Stephen Castor. Carter, who was appellee's senior manager of human resources, testified she received notice in early November that Higgs had filed a discrimination charge with the EEOC. The initial notice stated that no action was required by appellee. Because no action was required, Carter notified only her supervisor in San Antonio of the complaint. She told no one else. In February 2002, she received notice that Higgs had filed a second charge with the EEOC, this time alleging retaliation. She notified Castor of this charge in March after appellee had agreed to mediate the claim. Carter testified she was not involved in the decision to not rehire Higgs.
Castor was the appellee's senior manager of security and, in that position, regularly made employment decisions to hire and fire security personnel. He testified that he fired Higgs after learning his security license had been suspended. He told Higgs at the time that he would have to reapply if he was interested in employment with appellee. Castor testified that during the first week of December, Higgs asked to be reinstated to the Trammell Crow Center building on the same shift and at the same rate of pay. Castor told Higgs there were no openings in that building on that shift and that it was appellee's policy to pay persons reapplying due to loss of license at entry level. Higgs completed an application, but appellee did not rehire him. Castor testified that at the time he made the decision not to rehire Higgs, he was unaware that Higgs had filed a formal charge with the EEOC. Castor did not become aware of the initial complaint until informed of it by Carter in late March 2002.
This evidence establishes Castor, the decision maker in this case, had no knowledge at the time of his decision not to rehire Higgs that Higgs had filed a charge with EEOC. That being the case, the filing of the complaint could not have factored into Castor's decision not to rehire Higgs. Marsaglia, 22 S.W.3d at 5 (appellant could not show causal connection between protected activity and adverse employment action when appellee produced uncontradicted evidence that it was not aware of any complaint filed by appellant at the time of the decision to deny appellant tenure).
In his response to the motion for summary judgment and in his brief on appeal, Higgs relies solely on "temporal proximity" between the time he filed his original charge and the decision not to rehire him (which he calculates at four weeks) to raise a fact issue on causal connection. On appeal, he relies on a single case, Evans v. City of Houston, 246 F.3d 344 (5th Cir. 2001), to support his position.
In Evans, the plaintiff had been subpoenaed to testify against her own supervisor at a co-worker's grievance hearing for racial and age discrimination. Evans, 246 F.3d at 346. Five days after the scheduled hearing, the supervisor recommended Evans be demoted. Thus, the employer in Evans, the City of Houston, had knowledge that its employee had engaged in protected activity and, only five days later, took an adverse employment action. The Fifth Circuit concluded that the time lapse of "five days" was sufficient to provide a causal connection to enable Evans to satisfy the third prong of her prima facie case. Unlike Evans, however, appellee in this case established that its decision maker had no knowledge that Higgs filed an EEOC complaint when making the decision not to rehire him. Under these circumstances, we conclude Evans is inapplicable. Further, to the extent that Higgs argues evidence that he complained to management of discrimination on December 7 raises a fact issue on causal connection, we disagree.
The evidence relied on by Higgs is a memo, written by Castor, summarizing Higgs's firing and subsequent reapplication. In the memo, Castor states, "Higgs has expressed concern that he has been discriminated against by being terminated for a suspended registration." (Emphasis added.) That Higgs may have told Castor that he believed he was discriminated against when he was fired does not raise a fact issue on whether there was a causal connection between Higgs's filing a charge with EEOC and the failure to rehire him.
We conclude Higgs failed to raise a fact issue on the causal connection between the protected activity and adverse employment action. Accordingly, the trial court did not err in granting summary judgment to appellee on Higgs's retaliation claim. Issues one and two are without merit.
We affirm the trial court's judgment.