Opinion
NO. 14-18-00938-CV
12-08-2020
James HUDGENS, Appellant v. The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Appellee
Appellant James Hudgens appeals a summary judgment in favor of The University of Texas MD Anderson Cancer Center on his age discrimination claims, alleging disparate treatment and wrongful termination. We conclude that Hudgens did not raise a genuine issue of material fact on either claim, and we affirm the trial court's judgment.
Background
Hudgens worked for MD Anderson as a Safety Specialist in the Fire Life & Safety Group of the Environmental Health & Safety Department for the duration of his employment. Born in August 1953, Hudgens was fifty years old when MD Anderson hired him in 2004. MD Anderson terminated him in 2015 when he was sixty-one.
Hudgens reported to Fire Life & Safety Supervisor, Mike Woods. Woods reported to Fire Life & Safety Supervisor Manager, Reginald Phipps. Phipps reported to Environmental Health & Safety Director, Brian Galloy. Galloy reported to Environmental Health & Safety Executive Director, Matthew Berkheiser. MD Anderson's disciplinary action policy outlines a progressive discipline process. The policy identifies five options for disciplinary action, depending on the circumstances, when an employee's work performance or conduct is below standard: notice, final notice, demotion, suspension without pay, and termination. When an employee is placed on "final notice," the manager documents (1) the type, reason for, and length of the final notice disciplinary period (from three to twelve months), (2) any previous discussions with the employee regarding below-standard performance, and (3) the consequences of failure to meet any stated future expectations.
A. First Alleged Adverse Employment Action
Hudgens complains of two adverse employment actions by MD Anderson. First, on February 12, 2015, MD Anderson issued Hudgens a twelve-month final notice for violating MD Anderson's Personal Protective Equipment ("PPE") Policy by failing to wear required safety equipment (a hard hat) in a construction area (the "Final Notice"). The Final Notice stated: (1) there were signs posted at the construction site indicating that PPE was required upon entering; and (2) Hudgens was asked by another individual about not wearing PFE and Hudgens still did not immediately leave the site to obtain PPE.
Wade Martin, another MD Anderson Fire Life & Safety Group employee, was with Hudgens at the time, and Martin also failed to wear a hard hat in the construction area. Like Hudgens, Martin received a twelve-month final notice on February 12, 2015 for failing to wear required safety equipment in a construction area. Martin was fifty-six years old when he received his final notice.
Hudgens appealed his Final Notice under MD Anderson's grievance process. Hudgens testified in his deposition that in a meeting related to the grievance, he was told by Phipps that another manager, Galloy, was "targeting" him. Hudgens also testified that Galloy asked him on five or six occasions, "Why are we paying you the big bucks?" Hudgens's Final Notice was upheld and not modified.
The final notices impaired Hudgens's and Martin's potential for a raise during part of 2015 because the notices state employees "are not eligible to receive a merit increase during the first 90 days of a Notice/Final Notice."
The record does not contain an employee grievance form signed by Martin, but Martin testified that he asked his supervisor, Phipps, if he could get his raise back, and Phipps agreed to this request. Martin did not consider his request for a raise as a grievance; he testified he filled out some paperwork but was not aware it was a grievance. Berkheiser testified in his affidavit that: (1) Martin did not appeal his final notice; (2) Martin's final notice was never reduced or rescinded; and (3) after showing improvement following his final notice, Martin received an off-cycle merit raise for fiscal year 2015 on July 1, 2015 (more than ninety days after his February 12, 2015 final notice).
Hudgens did not receive a raise in 2015 even though he was placed on the same twelve-month final notice as Martin. (As explained below, Hudgens was terminated in May 2015). Based on these events, Hudgens alleged in his lawsuit that MD Anderson discriminated against him based on his age, because Hudgens did not enjoy a 2015 raise but Martin—five years' Hudgens's junior—did.
B. Second Alleged Adverse Employment Action
The second adverse action at issue is MD Anderson's decision to terminate Hudgens on May 26, 2015 following an April flooding incident. On March 31, 2015, Hudgens, as site/facilities manager, prepared and submitted an outage request for the shutdown of a fire sprinkler system in operating room number 8 ("OR 8") on the fifth floor of the building. The sprinkler system shutdown was to allow contractors to extend and lower a fire sprinkler head in OR 8. Hudgens stated in his petition that "[t]he task to shut off the sprinklers was assigned to Hudgens and his crew." According to Hudgens, his subordinate, Ruben Dimas, was responsible for identifying and closing the valve feeding the sprinklers in OR 8. Although OR 8 was on the fifth floor, the shut off valve was located on sixth floor—a fact unknown to Hudgens or Dimas. Before work began, Dimas turned off valves located on the fifth floor but not the sixth floor. As a result, when the subject sprinkler head in OR 8 was removed by the contractor, the operating room flooded and caused at least $157,000 and as much as $250,000 in damage to the operating suite, adjacent areas, and surgical equipment.
On May 20, 2015, MD Anderson sent Hudgens an "Intent to Terminate" letter, stating "you have failed to perform job duties at an acceptable level." The Intent to Terminate stated:
On March 31, 2015 James "Jim" W. Hudgens submitted an outage request for the shutdown of the fire sprinkler system located on Alkek level 5 inside of operating room 8 (OR#8). This shutdown was necessary to allow a contractor to lower a sprinkler head inside of the operating room. On April 13, 2015 Jim assisted with the fire sprinkler system shutdown for this work. Two sprinkler valves on Alkek level 5 were closed, but these two valves did not shutdown the fire sprinkler system inside of the operating room. Expecting that the correct valves had been closed, the contractor removed the sprinkler head while the sprinkler system was still under pressure and this caused flooding in the room. The sprinkler water caused damage to the equipment inside of the operating room, the control room and other adjacent areas.
There is documentation which demonstrates that Jim Hudgens had prior knowledge of the correct valve location. Jim is an experienced safety specialist who routinely performs this type of task. He did not perform the necessary steps required to identify the correct valve of the system that serves the operating room. Jim's failure to perform the due diligence necessary to execute this type of task effectively resulted in damages to the operating room and its equipment.
The Intent to Terminate also noted "Hudgens was placed on a 12-month Final Notice on February 12, 2015 for conduct related issues." Hudgens sent a written response to the Intent to Terminate.
On May 26, 2015, Woods sent Hudgens a letter stating that Hudgens's employment was terminated immediately because of his unacceptable work performance. In the letter, Woods thanked Hudgens for providing a response but noted that the response contained no new information not already considered by MD Anderson.
Dimas was not terminated, but MD Anderson placed him on final notice. Dimas appealed his final notice but resigned before his appeal was completed.
Martin provided support for the OR 8 work, but he was not terminated or disciplined.
Hudgens was sixty-one years old when he was terminated. He was replaced in October 2015 by Stephen Mayne, who was fifty-two years old. After filing a charge of discrimination with the Equal Employment Opportunity Commission, Hudgens sued MD Anderson, asserting claims of age discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code ch. 21. Hudgens alleged that MD Anderson treated Hudgens less favorably than a similarly situated employee (Martin) because of Hudgens's age when MD Anderson gave a raise to Martin but not Hudgens following the February 2015 final notices, and that MD Anderson terminated Hudgens because of his age.
MD Anderson filed a combined traditional and no-evidence motion for summary judgment on both of Hudgens's claims, arguing among other things that there was no evidence that MD Anderson treated Hudgens differently than the comparator employee or that MD Anderson terminated Hudgens because of his age. MD Anderson also argued that Hudgens could not make a prima facie showing of age-based wrongful termination because his replacement was within the protected class or, alternatively, not significantly younger than Hudgens. Hudgens filed a timely response.
The trial court granted MD Anderson's motion on both traditional and no-evidence grounds.
Hudgens appeals. He argues that the trial court erred because a genuine issue of material fact exists as to both claims.
Standard of Review
We review a summary judgment under a de novo standard of review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). "[W]e apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor." Dias v. Goodman Mfg. Co., L.P. , 214 S.W.3d 672, 675-76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
To prevail on a traditional motion for summary judgment, a movant must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; Mann Frankfort , 289 S.W.3d at 848. Once the movant facially establishes its right to summary judgment, the burden shifts to the nonmovant to present a genuine and material fact issue that precludes summary judgment. See Dolcefino v. Randolph , 19 S.W.3d 906, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict and is governed by the standards of Texas Rule of Civil Procedure 166a(i). Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). After the movant specifically states the elements for which there is no evidence, the burden shifts to the nonmovant to produce more than a scintilla of probative evidence raising a genuine issue of material fact on those elements. See id. ; Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). Unless the nonmovant produces summary-judgment evidence that raises a genuine issue of material fact, the trial court must grant summary judgment. Tex. R. Civ. P. 166a(i).
Analysis
A. Framework For Discrimination Claims Based On Circumstantial Evidence
Hudgens asserts that MD Anderson discriminated against him on the basis of age in violation of the TCHRA. Under the act, an employer commits an unlawful employment practice if, because of age, the employer fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. Tex. Lab. Code § 21.051(1) ; Kaplan v. City of Sugar Land , 525 S.W.3d 297, 302 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The TCHRA provisions referring to discrimination because of age apply only to alleged discrimination against an individual forty years of age or older. Tex. Lab. Code § 21.101. Because the Texas Legislature patterned the TCHRA after federal law, see Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473, 474 (Tex. 2001), when analyzing a claim brought under the TCHRA, we look to state cases as well as to the analogous federal statutes and the cases interpreting those statutes. Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 633-34 (Tex. 2012) ; Remaley v. TA Operating LLC , 561 S.W.3d 675, 679 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
A plaintiff can establish discrimination under the TCHRA either by direct evidence or by circumstantial evidence that permits an inference of discrimination. See Garcia , 372 S.W.3d at 634. The second alternative is involved here. When the claimant's case is based on circumstantial evidence, we apply the familiar McDonnell Douglas burden-shifting framework. See id. (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). Initially, the plaintiff-employee must meet the minimal burden of establishing a prima facia case, which entitles the employee to a presumption of discrimination. Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and Wal-Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 739 (Tex. 2003) ). The initial presumption of discrimination is "merely an evidence-producing mechanism that can aid the plaintiff in his ultimate task of proving illegal discrimination by a preponderance of the evidence." Id. ; see also Remaley , 561 S.W.3d at 679.
If the employee meets his prima facie burden, the defendant-employer must produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 24 (Tex. 2000) (per curiam) ; Okpere v. Nat'l Oilwell Varco, L.P. , 524 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). If the employer provides a non-discriminatory explanation, the presumption arising from the prima facie case vanishes and the employee cannot prove a statutory violation without producing evidence that the employer's stated reason is false and a pretext for intentional discrimination. See Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 782 (Tex. 2018) ; Toennies , 47 S.W.3d at 477 ; Willrich , 28 S.W.3d at 24. Although the burden of production shifts between the employee and employer in circumstantial-evidence cases, in both direct- and circumstantial-evidence cases, the burden of persuasion always remains with the employee. Clark , 544 S.W.3d at 782 (citing Burdine , 450 U.S. at 253, 101 S.Ct. 1089 ). Hudgens alleged that MD Anderson violated the TCHRA by discriminating against him because of his age in connection with two adverse employment actions: (1) his failure to receive a raise following his February 2015 Final Notice; and (2) his May 2015 termination. We begin with the termination claim.
B. Wrongful Termination Claim
1. We presume without deciding that Hudgens met his prima facie burden as to his wrongful termination claim.
Hudgens asserts that he may establish an initial presumption of age discrimination concerning wrongful termination by showing that he was: (1) a member of a protected class (i.e., at least forty years old); (2) qualified for his position; (3) terminated by the employer; and (4) replaced by someone "significantly" younger, even if his replacement is also within the protected class. See Garcia , 372 S.W.3d at 632, 641. The first three elements are established in the record and not disputed. At issue is the final element, the formulation of which, courts have stated, will vary depending on the circumstances. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores , 612 S.W.3d 299, 305-06 (Tex. Nov. 20, 2020) ; Remaley , 561 S.W.3d at 679-82 (citing Canchola , 121 S.W.3d at 739 ; Burdine , 450 U.S. at 253, 101 S.Ct. 1089 ). But the plaintiff's burden at this stage of the case is not onerous. Canchola , 121 S.W.3d at 739.
This is a "true replacement" case in the sense that the parties agree Hudgens was replaced by a new employee hired to fill Hudgens's former position. See Tex. Tech , 612 S.W.3d at 305-09 (discussing true replacement age discrimination prima facie case).
Hudgens was sixty-one when he was terminated, and the disagreement is whether his replacement, who was fifty-two, is sufficiently younger than Hudgens to support an initial presumption that Hudgens was terminated because of his age. According to MD Anderson, "[t]he overwhelming body of cases in most circuits has held that age differences of less than ten years are not significant enough to make out the fourth part of the age discrimination prima facie case." Hudgens, on the other hand, cites countering authority for the proposition that a ten-year age difference, or less, is "significant" enough to trigger an initial presumption of discrimination.
Hudgens states in his reply brief that there is no dispute that Mayne was born on June 5, 1963. Hudgens's date of birth is August 9, 1953. Thus, the age difference between Mayne and Hudgens is nine years and ten months.
We need not decide the precise question, however, because, as we explain below, Hudgens has not offered a scintilla of evidence that MD Anderson's stated justification for terminating him was pretext for intentional age discrimination. Because the absence of a fact issue on pretext is dispositive, we may presume without deciding that Hudgens met his prima facie burden. Although our dissenting colleague would prefer to address this nonessential issue, it is not unusual for a court to presuppose an adequate prima facie showing and proceed to the remaining McDonnell Douglas steps. This court is known to entertain the assumption when warranted, as we did just weeks ago. In appropriate cases, presuming a claimant has articulated a prima facie case avoids addressing matters unnecessary to disposition, thereby ensuring our opinions are not advisory.
E.g., Butcher v. City of San Antonio , No. 04-15-00338-CV, 2016 WL 889306, at *2 (Tex. App.—San Antonio Mar. 9, 2016, no pet.) (mem. op.) ; Clemons v. Tex. Concrete Materials, Ltd. , No. 07-09-00034-CV, 2010 WL 4105662, at *4 (Tex. App.—Amarillo Oct. 19, 2010, no pet.) (mem. op.) ; Farrington v. Sysco Food Servs., Inc. , 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied).
Okpere , 524 S.W.3d at 828.
Fields v. Houston Indep. Sch. Dist. , No. 14-19-00010-CV, 2020 WL 6073758, at *6 (Tex. App.—Houston [14th Dist.] Oct. 15, 2020, no pet. h.) (mem. op.).
Tex. R. App. P. 47.1.
See Tex. Const. art. II, § 1.
2. MD Anderson articulated a legitimate, non-discriminatory reason for Hudgens's termination.
Given the presumption afforded Hudgens, the burden shifted to MD Anderson to produce evidence of a legitimate, non-discriminatory reason for terminating his employment. See Willrich , 28 S.W.3d at 24. MD Anderson met this burden by producing evidence that Hudgens was terminated for unacceptable work performance concerning the April 2015 flooding incident, which occurred during the pendency of his twelve-month Final Notice. On appeal, Hudgens does not argue that MD Anderson's stated reason is facially discriminatory; he instead focuses his arguments on the pretext issue. So we turn to that question.
3. Hudgens failed to raise a genuine issue of material fact that MD Anderson's reason for terminating him was pretext for age discrimination.
The burden shifted back to Hudgens to produce evidence that MD Anderson's non-discriminatory reason was merely a pretext for age discrimination. We conclude that he has not satisfied that burden. Hudgens's central shortcoming concerns his statement of the proof necessary to create a fact issue on pretext. Citing Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and Fifth Circuit decisions, Hudgens asserts that he need only present evidence that MD Anderson's stated reason was false or incredible. But this is an incomplete statement of law.
Palasota v. Haggar Clothing Co. , 342 F.3d 569, 576 (5th Cir. 2003) ; Laxton v. Gap, Inc. , 333 F.3d 572, 578 (5th Cir. 2003).
Hudgens bore the ultimate burden of presenting evidence that MD Anderson terminated him because of his age. Tex. Lab. Code § 21.051(1) ; see also Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (applying Age Discrimination in Employment Act of 1967). To create a genuine issue of material fact that the employer's reason is pretext for intentional discrimination, Hudgens had to show both that the reason proffered by MD Anderson was " ‘false, and that discrimination was the real reason.’ " Canchola , 121 S.W.3d at 740 (quoting St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original)). In addition to the state's highest civil court, id. , our court has repeated this legal standard on several occasions, as have most other intermediate appellate courts in the state. Taken as a whole, the evidence must create a genuine and material fact issue as to whether the employer's stated reason was not what actually motivated the employer and support a reasonable inference that age was a determinative factor in the actions about which the plaintiff complains. See Hicks , 509 U.S. at 516-17, 113 S.Ct. 2742 ; Latting , 2018 WL 1404501, at *6. "[I]t is not enough to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Reeves , 530 U.S. at 147, 120 S.Ct. 2097 (internal quotations omitted).
E.g., McNeel v. Citation Oil & Gas Corp. , 526 S.W.3d 750, 760 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) ; Okpere , 524 S.W.3d at 829 ; Navy v. Coll. of the Mainland , 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ; Gonzalez v. Champion Techs., Inc. , 384 S.W.3d 462, 466 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ; see also Fields , 2020 WL 6073758, at *6.
E.g., Tex. Dep't of Agric. v. Latting , No. 03-17-00603-CV, 2018 WL 1404501, at *6 (Tex. App.—Austin 2018, no pet.) (mem. op.) ; Sanchez v. Tex. A & M Univ.-San Antonio , No. 04-17-00197-CV, 2018 WL 6517407, at *4 (Tex. App.—San Antonio Dec. 12, 2018, no pet.) (mem. op.) ; Vanzante v. Tex. A & M Univ.-Kingsville , No. 13-15-00313-CV, 2016 WL 3366055, at *3 (Tex. App.—Corpus Christi June 16, 2016, pet. denied) (mem. op.) ; Moreno v. Tex. Dep't of Transp. , 440 S.W.3d 889, 895 (Tex. App.—El Paso 2013, pet. denied) ; Chandler v. CSC Applied Techs., LLC , 376 S.W.3d 802, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ; Baker Hughes Oilfield Operations, Inc. v. Williams , 360 S.W.3d 15, 22-23 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) ; Sw. Bell Tel., L.P. v. Edwards , No. 05-09-00606-CV, 2011 WL 3672288, at *8 (Tex. App.—Dallas Aug. 23, 2011, no pet.) (mem. op.) ; Elgaghil v. Tarrant Cty. Junior Coll. , 45 S.W.3d 133, 140 (Tex. App.—Fort Worth 2000, pet. denied) ; Baehler v. Fritz Indus., Inc. , 993 S.W.2d 181, 185 (Tex. App.—Texarkana 1999, pet. denied).
Applying the correct standard, it is apparent that Hudgens's wrongful termination claim has no merit. Hudgens's pretext argument is that MD Anderson's reason was false. According to MD Anderson, Hudgens "failed to perform job duties at an acceptable level" in connection with the OR 8 flooding incident and "did not perform the necessary steps required to identify the correct valve of the system that serves the operating room." Certainly, MD Anderson's reason is not "false" in the sense that the flooding incident was fabricated. OR 8 was flooded. The dispute is about MD Anderson's assessment of whether the flood resulted from a failure by one or more employees to adequately fulfill job duties. MD Anderson determined that both Hudgens and Dimas bore at least some responsibility. Hudgens, however, attached summary judgment evidence showing that responsibility to shut off the correct valve rested with Dimas, and that neither Hudgens nor Dimas knew where the correct valve was located. Crediting Hudgens those assertions, as we must in the summary judgment context, a disagreement with the employer's determination of inadequate work performance generally is not sufficient to raise a fact issue on pretext. See Kaplan , 525 S.W.3d at 308 ("Simply disputing the underlying facts of an employer's decision is not sufficient to create an issue of pretext."); Donaldson v. Tex. Dep't of Aging & Disability Servs. , 495 S.W.3d 421, 438 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) ; Winters v. Chubb & Son, Inc. , 132 S.W.3d 568, 578 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Nor is it sufficient to say, as Hudgens insists, that the employer "arrived at a possibly incorrect conclusion." Canchola , 121 S.W.3d at 740. The issue at the pretext stage is not whether the employer made an erroneous decision; it is whether the decision, even if incorrect, was the real reason for the employment determination. See Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 899 (5th Cir. 2002). "[E]ven an incorrect belief that an employee's performance is inadequate constitutes a legitimate, non-discriminatory reason." Little v. Republic Refining Co. , 924 F.2d 93, 97 (5th Cir. 1991). Indulging the proposition that Hudgens has created a material fact issue on whether MD Anderson's stated reason was false or not credible, Hudgens offered no evidence to show that age discrimination was the reason behind the decision to terminate him, and he does not argue otherwise in his brief. See Canchola , 121 S.W.3d at 740. There is no indication in the summary judgment record that would support a reasonable inference that MD Anderson terminated Hudgens because of his age. See, e.g., Kaplan , 525 S.W.3d at 308 (affirming summary judgment); Donaldson , 495 S.W.3d at 438 (affirming summary judgment); Moreno , 440 S.W.3d at 895 (affirming directed verdict); see also Lopez v. Exxon Mobil Dev. Co. , No. 14-16-00826-CV, 2017 WL 4018359, at *7-9 (Tex. App.—Houston [14th Dist.] Sept. 12, 2017, pet. denied) (mem. op.) (affirming summary judgment).
To be sure, the Supreme Court has stated that "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." Reeves , 530 U.S. at 148, 120 S.Ct. 2097. Though Hudgens does not assert this point explicitly, we infer from his reliance on Reeves that he believes the stated principle applies here. Of course, in Reeves and subsequent decisions, the Supreme Court has emphasized that a showing of falsity by the plaintiff would not "always be adequate to sustain a jury's finding of liability," and it recognized that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Id. at 148, 120 S.Ct. 2097. For example, the court said, "an employer would be entitled to judgment as a matter of law ... if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. ; see also Williams , 360 S.W.3d at 23. Whether judgment as a matter of law is appropriate in any particular case will depend on a "number of factors," including "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves , 530 U.S. at 148-49, 120 S.Ct. 2097 ; Williams , 360 S.W.3d at 23.
As noted, the Supreme Court of Texas has long followed these principles in construing the Texas act. See AutoZone, Inc. v. Reyes , 272 S.W.3d 588, 588 (Tex. 2008) (per curiam) ; Ysleta Indep. Sch. Dist. v. Monarrez , 177 S.W.3d 915, 915 (Tex. 2005) ; Canchola , 121 S.W.3d at 740. For instance, in a discrimination case brought under the TCHRA, even if the evidence could be sufficient to support an implied finding that the reasons cited by the employer for the employee's termination are false, the employee still bears "the ultimate burden" to prove that the employer discriminated against him because of a prohibited consideration. Canchola , 121 S.W.3d at 740 (citing Reeves , 530 U.S. at 147-49, 120 S.Ct. 2097 ).
Based on our review of the record in the light most favorable to Hudgens, we conclude that the present circumstances are not the sort the Reeves court contemplated when it left open the possibility that a reasonable inference of intentional discrimination may be based solely on the prima facie case combined with evidence that the employer's reason is false. Hudgens's prima facie case, while presumed, is still weak. Though Hudgens was replaced by someone younger, Mayne was fifty-two when hired and thus well within the protected group at that time—and notably older than Hudgens (fifty) when he was hired in 2004. Second, Hudgens's evidence is not strongly probative of falsity. His attack on MD Anderson's termination justification amounts to little more than disagreement over the employer's assessment of inadequate work performance, which generally is insufficient. See Canchola , 121 S.W.3d at 740 ; Kaplan , 525 S.W.3d at 308 ; Winters , 132 S.W.3d at 578. Other uncontroverted testimony from Hudgens reinforces the validity of MD Anderson's proffered reason for firing him. Hudgens, for example, refused to "accept full responsibility" (emphasis added), but he at least accepted some blame by acknowledging he "could have probably done a whole lot of stuff different." Hudgens also admitted that he reviewed the shop response to the outage request, which did not specify the correct location of the shut off valve on the sixth floor as it should have. His testimony buttresses to some extent MD Anderson's decision to discipline both Hudgens and Dimas. In this regard, moreover, Hudgens has not alleged or presented evidence that MD Anderson's termination decision deviated from its progressive disciplinary procedure.
Today's case presents circumstances distinguishable from those at issue when courts have determined a fact issue on pretext warranted a trial. See, e.g., Toennies , 47 S.W.3d at 482 ("Toennies submitted evidence that he was replaced by two considerably younger engineers, and statistical evidence that older Quantum engineers had a much higher rate of turnover than their younger counterparts."); Clemons , 2010 WL 4105662, at *4 (evidence of age-related remarks prior to termination); Menefee v. McCaw Cellular Commc'ns , No. 05-02-00142-CV, 2003 WL 1461469, at *4 (Tex. App.—Dallas Mar. 24, 2003, no pet.) (mem. op) (direct evidence of employees saying that they did not want to work with plaintiff because "she was a woman"). Hudgens's principal cases likewise are distinguishable. See Palasota , 342 F.3d at 576-77 (memo, prepared two months before plaintiff's firing, recommending severance packages for fourteen employees, all of whom were specifically identified as over fifty years of age, in order to "thin the ranks" was some evidence supporting plaintiff's age discrimination claim); Laxton , 333 F.3d at 580-82, 585 (in addition to "the strength of Laxton's prima facie case," "Laxton produced evidence of pretext and a discriminatory remark from which the jury could reasonably infer that intentional discrimination took place").
For these reasons, we conclude Hudgens failed to raise a genuine issue of material fact on pretext that would preclude summary judgment in MD Anderson's favor, and the trial court did not err in dismissing Hudgens's wrongful termination claim.
4. Response to the dissent
As discussed, Hudgens argues that MD Anderson's stated reason for his termination was false, but he has presented no evidence that age discrimination was the real reason for the challenged action. Our dissenting colleague fills in the blanks for him by discussing evidence she says is sufficient to raise a fact issue on discrimination, though Hudgens has not relied on the facts cited by the dissent to support his pretext argument. The dissenting justice says a jury could find that age was a motivating factor because Hudgens was told by Phipps that another manager, Galloy, was "targeting" him, and that Galloy asked Hudgens several times, "Why are we paying you the big bucks?" We disagree. During his deposition, Hudgens identified only one person, Galloy, he thought was discriminating against him because of his age. When pressed why he formed that belief, Hudgens testified that "it's the way [he] feel[s] when [he's] around [Galloy]," and Galloy is "just nipping at everything." Hudgens also said he thought Galloy was "targeting" him because that is what Phipps told him. However, Phipps did not say why he thought Galloy was targeting Hudgens. And the only other explanation Hudgens offered as to why he thought Galloy was targeting him was a reason unrelated to his age. This cumulative testimony shows nothing more than Hudgens's subjective belief or feeling of age-related animus, which is insufficient to defeat summary judgment in this context.
E.g., Gold v. Exxon Corp. , 960 S.W.2d 378, 385 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (employee's subjective belief that reasons given by employer for discharge were pretext for discrimination not sufficient to overcome summary judgment); see also Tex. Tech , 612 S.W.3d at 313-14 ; Clark , 544 S.W.3d at 773 (speculation and subjective beliefs not probative of improper conduct or discriminatory animus); Apache Corp. v. Davis , 573 S.W.3d 475, 497 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) ; Greathouse v. Alvin Indep. Sch. Dist. , 17 S.W.3d 419, 425 (Tex. App.—Houston [1st Dist.] 2000, no pet.) ("Summary judgment for the defendant is proper when a plaintiff claiming race discrimination presents only conclusory allegations, improbable inferences, unsupportable speculation, or subjective beliefs and feelings.").
In the mere three pages of Hudgens's deposition covering Galloy's "big bucks" remarks, Hudgens did not link the comments to his protected age group or his termination. Hudgens testified that Galloy made the statement in a meeting during the grievance process following the February Final Notice—not in connection with his May termination. According to Hudgens, moreover, the comment was Galloy's way of reminding him that "he should have known the rules." There was also an "allusion" to the sentiment during a March 19 meeting with the executive director, Matthew Berkheiser, though Hudgens acknowledged that Berkheiser did not use those words. Here again, Hudgens's description of the conversation with Berkheiser had no material relationship to his age group: Hudgens believed Berkheiser was telling him that he "should know better" than to enter a construction area without wearing PPE. In answering a final few questions about Galloy's "big bucks" remarks, Hudgens said he heard Galloy make the statement five or six times, but Hudgens provided no relevant context, did not know what Galloy intended by the remarks, and "[didn't] really care."
Even cursory review of Hudgens's testimony helps illuminate why the "targeting" and "big bucks" stray remarks cannot create a genuine and material fact issue that Hudgens's age was a motivating factor in the termination decision, as the dissenting justice contends. Generally, a comment is probative of discrimination when it is "(1) related to the plaintiff's protected class, (2) proximate in time to the adverse employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue." Winters , 132 S.W.3d at 578. Galloy's comments do not meet these criteria. Compare id. (rejecting probative value of comment that "I'm going to get you, and I don't like you") (citing Elgaghil , 45 S.W.3d at 140 ), with Jefferson County v. Davis , No. 14-13-00663-CV, 2014 WL 4262184, at *5-6 (Tex. App.—Houston [14th Dist.] Aug. 28, 2014, pet. denied) (mem. op.) (statements that Davis was "too old to be working here" and should retire held sufficient to support jury finding that age was a motivating factor in termination decision). While the dissenting justice cites this test—Hudgens does not—our colleague fails to explain why it is met. It is not met. Neither remark references Hudgens's protected age group, and Hudgens himself did not attribute any age-related motivation to them; rather, he said he did not know Galloy's intent and did not care. Further, after thoroughly reviewing the record, we see no indication that the remarks were proximate in time or otherwise related to the May termination decision. Neither statement is sufficient in itself to create a fact issue and, hence, together they cannot support a reasonable inference that "Galloy was targeting Hudgens because he was being paid the big bucks," as the dissent incorrectly states.
For his part, Hudgens has not argued that Phipps's "targeting" comment or Galloy's "big bucks" remarks support a fact issue on pretext, and it is easy to see why. Neither remark is probative of age discrimination under Texas law, and to the extent Hudgens imputed age-related animus to either of them, his belief is based on speculation and subjective feelings. Thus, Hudgens has made the sensible choice not to advance any argument based on the "targeting" or "big bucks" comments in support of the pretext issue. Indeed, that portion of his brief does not even allude to the stray remarks on which the dissenting justice relies. Hudgens referenced those remarks only once in his brief, and then only in connection with his complaint regarding the February Final Notice issue—a claim on which the panel agrees unanimously that summary judgment is appropriate. Hudgens did not cite to the law on stray remarks in his brief, or seek to apply it, or develop and file summary judgment evidence (such as an affidavit) clarifying the circumstances surrounding the remarks (such as when they occurred) that would cloak them with probative value of discrimination. Had Hudgens desired to contend that these comments create a fact issue on pretext as to the termination claim, he would have taken these steps in the trial court and in our court. He chose not to, prudently so given the evidence before us.
Presumably, the dissenting justice cites to this evidence because Hudgens references it in the statement of facts section of his brief, and our colleague construes his brief liberally to tie that evidence to Hudgens's pretext argument even though Hudgens has not drawn that connection himself. Of course, our duty to construe briefs liberally so as to reach the merits of issues the parties raise does not include abandoning our station as neutral judges and constructing merits arguments the parties have chosen not to make. In any event, were we to construe Hudgens's brief as contending that a fact issue on pretext exists based on his belief that he was being "targeted" or that he was fired because he was an older employee making "big bucks," we are compelled to reject those arguments for the reasons stated.
See Salazar v. Sanders , 440 S.W.3d 863, 872 (Tex. App—El Paso 2013, pet. denied) ("Appellate courts are required to construe briefs reasonably, yet liberally, so that the right to appellate review is not lost by waiver, and in so doing, we should reach the merits of an appeal whenever reasonably possible. At the same time, an appellate court should not make the appellant's argument for him because the court would be abandoning its role as a neutral adjudicator and would become an advocate for the appellant.") (internal citation omitted).
C. Disparate Treatment Claim
Next, we turn to Hudgens's second alleged adverse employment action: the failure to receive a raise after the February 2015 Final Notice. Hudgens contends he was treated less favorably than Martin because MD Anderson allegedly reduced Martin's final notice from twelve months to six months and, consequently, Martin received a raise on July 1, 2015; whereas Hudgens did not receive a raise at any time before his termination.
The summary judgment record contains no evidence that Martin received a raise because his final notice was reduced from twelve to six months. To attempt to prove his claim, Hudgens relies on Martin's testimony that at the time MD Anderson issued the final notice for failing to wear required PPE in a construction area, Martin was told that the final notice would be effective for six months. However, MD Anderson ultimately decided that Martin's final notice would last for twelve months, not six months, as the notice expressly states. The record contains no document supporting Hudgens's contention that Martin's final notice was reduced to six months. To the contrary, Berkheiser testified in his affidavit that (1) Martin's twelve-month final notice was never reduced, and (2) after showing improvement following his twelve-month final notice, Martin received an off-cycle merit raise for fiscal year 2015 on July 1, 2015.
Hudgens's theory of liability is also negated by the final notice's statement that employees "are not eligible to receive a merit increase during the first 90 days of a Notice/Final Notice." So, the final notice prohibited Martin from receiving a raise only during the ninety-day period following February 12, 2015; it did not preclude Martin from receiving a raise on July 1, 2015. Hudgens alleges in his petition that he should have received a raise effective March 1, 2015. But the raise to which Hudgens claims entitlement was clearly foreclosed by his February 12, 2015 Final Notice. Martin also did not receive a raise effective March 1.
We conclude that Hudgens presented no evidence that he was treated less favorably than another similarly situated employee. For that reason, Hudgens presented no evidence supporting the final element of his prima facie case, and the trial court did not err in granting summary judgment on Hudgens's disparate treatment claim. See Tex. Tech , 612 S.W.3d at 311-12 ; Remaley , 561 S.W.3d at 677-78 (claimant did not prove prima facie case when there was no evidence that he was treated less favorably than similarly situated employee); Donaldson , 495 S.W.3d at 435-36 (same).
Conclusion
We affirm the trial court's summary judgment as to both Hudgens's age discrimination claims for disparate treatment and wrongful termination.
( Poissant, J., concurring and dissenting).
CONCURRING AND DISSENTING OPINION
Margaret "Meg" Poissant, Justice
Appellant James Hudgens filed suit against Appellee University of Texas MD Anderson Cancer Center ("MD Anderson") in Harris County, alleging claims of age discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code § 21.051. In this appeal, Hudgens seeks reversal of the trial court's order granting the traditional and no-evidence motion for summary judgment of MD Anderson and dismissing with prejudice each of Hudgens's claims (a disparate treatment claim and a wrongful termination claim). I concur with the majority's affirmance of the summary judgment on the disparate treatment claim, but I dissent from the majority's affirmance of the summary judgment on the wrongful termination claim because there are material issues of fact that preclude summary judgment on the wrongful termination claim.
I. ANALYSIS
A. APPLICABLE LEGAL STANDARDS
For claims of wrongful termination, a prima facie case of age discrimination requires proof that the plaintiff (1) is a member of a protected class; (2) was discharged; (3) was qualified for the position from which he or she was discharged; and (4) was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his or her age. Russo v. Smith Int'l, Inc. , 93 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 24 (Tex. 2000) (per curiam).
"If the defendant presents a legitimate reason, the burden shifts back to the plaintiff to show either (1) the stated reason was a pretext for discrimination, or (2) the defendant's reason, while true, is only one reason, and discrimination was another, "motivating," factor." Navy v. Coll. of the Mainland , 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
We review the granting of a summary judgment under a de novo standard of review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). "[W]e apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor." Dias v. Goodman Mfg. Co., L.P. , 214 S.W.3d 672, 675–76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Texas courts disfavor summary judgments and use them merely to eliminate patently unmeritorious claims and untenable defenses. Gonzales v. Hearst Corp. , 930 S.W.2d 275, 279 (Tex. App.—Houston [14th Dist.] 1996, no writ) (citing Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989) ).
C. HUDGENS'S WRONGFUL TERMINATION CLAIM
1. PRIMA FACIE CASE
For claims of wrongful termination, a prima facie case of age discrimination requires proof that the plaintiff (1) is a member of a protected class; (2) was discharged; (3) was qualified for the position from which he or she was discharged; and (4) was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his or her age. Russo , 93 S.W.3d at 435.
MD Anderson does not dispute that Hudgens produced evidence of the first three elements but argues that there is no proof of the fourth element because Mayne, who replaced Hudgens, was only nine years and ten months younger that Hudgens. The prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion. O'Connor v. Consol. Coin Caterers Corp. , 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). "In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger." Id. at 313, 116 S.Ct. 1307 (emphasis added). See also Kaplan v. City of Sugar Land , 525 S.W.3d 297, 306 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (the replacement cannot be insignificantly younger than the plaintiff).
As support for its argument, MD Anderson cites Grosjean v. First Energy Corp. , 349 F.3d 332, 338 (6th Cir. 2003), in which the Sixth Circuit states, "The overwhelming body of cases in most circuits has held that age differences of less than ten years are not significant enough to make out the fourth part of the age discrimination prima facie case." In Kaplan , our court quoted this statement made in Grosjean. 525 S.W.3d at 306. However, in Blizzard v. Marion Tech. Coll. , 698 F.3d 275, 284 (6th Cir. 2012), the Sixth Circuit interpreted its decision in Grosjean as establishing the following test for determining whether the age difference is significant:
However, some decisions have held that age differences of nine years or less are sufficient to establish a prima facie case. See Cicero v. Borg–Warner Auto. , 280 F.3d 579, 588 (6th Cir. 2002) (leaving the question of whether 43–year old was substantially younger than 51–year old to jury); Tarshis v. Riese Org. , 211 F.3d 30, 38 (2d Cir. 2000) (replacement of 67–year old with 59–year old sufficient); Fisher v. Vassar Coll. , 66 F.3d 379, 1995 WL 527804, at *29 (2d Cir.) (table) (48–year old and 44 year old professors were substantially younger than 53–year old), republished as amended, 70 F.3d 1420, 1450–51 (2d Cir. 1995) (same).
This court established a bright-line rule in Grosjean when it held that "in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant." Id. at 340. However, while an age difference of ten or more years is generally considered significant, id. at 336, replacement of the employee by a person who is six to ten years her junior must be considered on a case-by-case basis. Cf. id. at 340 (explaining that bright-line rule "does not encroach on our precedent holding that eight years can be a significant age difference"). Thus, Grosjean essentially created a zone of discretion in age-discrimination cases involving replacement by a person who is between six and ten years younger than the plaintiff. Here, the district court concluded that, although the six-and-a-half year age difference between Blizzard and Teeter "is perhaps not the best evidence to create an inference of age discrimination," it was nonetheless sufficient to create an issue of material fact at the summary judgment stage.
I agree with the Blizzard and Grosjean decisions that hold there should be a zone of discretion in age-discrimination cases involving replacement by a person who is between six and ten years younger than the plaintiff. The almost ten years of age difference between Mayne and Hudgens (approximately nine years and ten months) is sufficient to create a material fact issue as to whether Mayne was significantly younger than Hudgens. This conclusion is also consistent with Rachid v. Jack In The Box, Inc. , in which the Fifth Circuit held a four year difference in age is insignificant for the purpose of establishing a prima facie case based on a claim that plaintiff was replaced by a younger person and, without deciding the issue, commented that five years is a "close call." 376 F.3d 305, 313 (5th Cir. 2004). Therefore, the summary judgment evidence in this case is sufficient to raise a prima facie case for wrongful termination based on age discrimination.
2. EVIDENCE OF A NON-DISCRIMINATORY REASON FOR TERMINATING HUDGENS Accordingly, the burden shifted to MD Anderson to produce evidence of a legitimate, non-discriminatory reason for terminating Hudgens's employment. See Willrich , 28 S.W.3d at 24. MD Anderson met this burden by producing evidence that Hudgens was terminated for unacceptable work performance—failing to locate and turn off the correct valve for the sprinkler system for Operating Room 8 ("OR 8"), which caused significant damage to the OR and equipment, while Hudgens was under a 12-month Final Notice for failing to wear a hard hat in a construction area.
3. EVIDENCE THAT AGE DISCRIMINATION WAS A MOTIVATING FACTOR
The burden then shifted to Hudgens to produce evidence that the non-discriminatory reason which MD Anderson presented for Hudgens's termination (1) was a pretext for discrimination, or (2) the reason, while true, is only one reason, and discrimination was another, motivating, factor. Navy , 407 S.W.3d at 899. As discussed below, Hudgens met this burden. The nonmoving plaintiff may respond to this burden-shifting aspect of the summary judgment motion by presenting evidence raising a fact issue on pretext or by challenging the employer's summary judgment evidence as failing to prove, as a matter of law, that the given reason for termination was a legitimate, nondiscriminatory reason for termination. See Willrich , 28 S.W.3d at 24.
"It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147–48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "When all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration." Id. at 148, 120 S.Ct. 2097. "Thus, 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. However, an employer's proffered reason for the adverse action is not pretext for discrimination unless the plaintiff can show "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original); see also Wal-Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 740 (Tex. 2003).
As discussed below, Hudgens produced evidence that MD Anderson's stated reason for terminating Hudgens was false. On May 20, 2015, MD Anderson sent Hudgens an "Intent to Terminate" letter, stating "you have failed to perform job duties at an acceptable level." The Intent to Terminate described the incident leading to termination as follows:
On March 31, 2015 James "Jim" W. Hudgens submitted an outage request for the shutdown of the fire sprinkler system located on Alkek level 5 inside of operating room 8 (OR#8). This shutdown was necessary to allow a contractor to lower a sprinkler head inside of the operating room. On April 13, 2015 Jim assisted with the fire sprinkler system shutdown for this work. Two sprinkler valves on Alkek level 5 were closed, but these two valves did not shutdown the fire sprinkler system inside of the operating room. Expecting that the correct valves had been closed, the contractor removed the sprinkler head while the sprinkler system was still under pressure and this caused flooding in the room. The sprinkler water caused damage to the equipment inside of the operating
room, the control room and other adjacent areas.
There is documentation which demonstrates that Jim Hudgens had prior knowledge of the correct valve location. Jim is an experienced safety specialist who routinely performs this type of task. He did not perform the necessary steps required to identify the correct valve of the system that serves the operating room. Jim's failure to perform the due diligence necessary to execute this type of task effectively resulted in damages to the operating room and its equipment.
On May 26, 2015, Woods sent Hudgens a letter stating that Hudgens's employment was terminated immediately because of his "unacceptable work performance." Thus, MD Anderson's stated reason for terminating Hudgens is that there is documentation which demonstrates that Jim Hudgens had prior knowledge of the correct valve location and that he did not perform the necessary steps required to identify the correct valve.
Hudgens, as site/facilities manager, prepared and submitted an outage request for the shutdown of a fire sprinkler system in order to extend a fire sprinkler head and install an escutcheon in OR 8 on the fifth floor of the Alkek building. The majority opinion correctly states, "Ruben Dimas, was responsible for identifying and closing the valve feeding the sprinklers in OR 8. Although OR 8 was on the fifth floor, the shut off valve was located on sixth floor—a fact unknown to Hudgens or Dimas." Hudgens testified that it was Dimas's job to locate and turn off the correct valve and that was not something that Hudgens had delegated to Dimas. And Dimas's supervisor was Woods, not Hudgens. Hudgens was not even present when the flooding occurred, he was in a different building. Thus, Hudgens did not participate in either locating or turning off the valve; that was Dimas's job.
Wade Martin ("Martin"), an MD Anderson employee who worked under the supervision of Hudgens, also testified that Dimas, not Hudgens, was in charge of the outage [locating and turning off the valve] for the sprinkler system for OR 8 and that Martin worked with Dimas on that outage in a support function:
Q. Okay. Did you work on that -- on that assignment with Mr. Hudgens?
A. Well, Jim was there. I wouldn't say I worked with -- I mean, Ruben Dimas -- it was Ruben's outage.
Q. Okay.
A. He was in charge of the outage.
Q. Did you work on that outage as well?
A. Just as a support type function. It was in the OR. When you go into the OR, you have to be dressed out. I decided, "Hey, I'll be out here not dressed out in case you need me to run on something. I'll be here for you."
Q. Okay. I got that. So you're sort of on standby to jump in if needed?
A. Right.
There is also evidence that the failure to identify the correct turn-off valve for OR 8 was not negligence. Martin testified that Dimas turned off the two valves on the fifth floor and that Dimas, Hudgens, and Martin all believed that Dimas had turned off the right valves to OR 8 on the fifth floor. However, when the flooding occurred, they discovered that the sprinkler system for OR 8 was not tied to the rest of the fifth floor, but that OR 8 was fed from another floor. Martin testified that placing the cutoff valve on a different floor "is completely out of the ordinary" and "for any building anywhere in the whole world, you don't do that." Martin testified that Dimas "did everything right."
In its brief, MD Anderson identifies the documentation that it alleges demonstrates that Hudgens had prior knowledge of the correct valve location, as an email sent by Brian Tague to Hudgens dated November 29, 2007, which states, "The pricing listed below will include the labor and material needed to install a pre action panel and devices for the system covering the OR Room on the 5th Floor (system is located on the 6th Floor at Stairwell CC"). This email, that was sent more than seven years before the 2015 flooding incident, did not concern a request to turn off a sprinkler system, but concerned pricing for a pre action panel. Hudgens testified that he did not understand from this email that the valve for OR 8 was on the sixth floor; the email did not specifically mention OR 8 and there are sixty operating rooms on the fifth floor. Hudgens testified that nobody ever told him that the system for OR 8 was moved from the fifth floor to the sixth floor.
In reviewing the summary judgment that Hudgens take nothing on his wrongful termination claim, we are required to "take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Dias , 214 S.W.3d at 675–76. A factfinder could reasonably infer from the above-evidence that (1) it was Dimas's job to locate and turn off the correct valve, not Hudgens's, (2) Dimas, Martin, and Hudgens were not negligent for believing that the turn-off valve for OR-8 was on the fifth floor where OR-8 was located, not on the sixth floor where no one would expect the valve to be located, and (3) MD Anderson's statement—that there is documentation that demonstrates that Jim Hudgens had prior knowledge of the correct valve location—is false. A factfinder could also reasonably infer from this evidence that MD Anderson's stated reason for terminating Hudgens—for not remembering an email sent over seven years before the flooding incident and not performing the necessary steps to identify the correct valve—was false.
But proving "pretext for discrimination" requires the plaintiff to show not only that the reason for termination was false, but also that discrimination was the real reason. Hicks , 509 U.S. at 515, 113 S.Ct. 2742. A plaintiff may prove that discrimination was a real reason for the plaintiff's termination by producing evidence that "the defendant's reason, while true, is only one reason, and discrimination was another, "motivating," factor." Navy , 407 S.W.3d at 899.
Generally, a comment is probative of discrimination when it is (1) related to the plaintiff's protected class, (2) proximate in time to the adverse employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue. Winters v. Chubb & Son, Inc. , 132 S.W.3d 568, 577 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
There is evidence in the record from which a factfinder could reasonably infer that age discrimination was a motivating factor in Hudgens's termination, which include comments by a high-ranking supervisor with authority over Hudgens.
Hudgens reported to Fire Life & Safety Supervisor, Mike Woods. Woods reported to Fire Life & Safety Supervisor Manager, Reginald Phipps. Phipps reported to Environmental Health & Safety Director, Brian Galloy. Hudgens testified that he was told by Phipps that Galloy, was "targeting" him.
Hudgens also testified that Galloy asked him on five or six occasions, "Why are we paying you the big bucks?" A factfinder could reasonably infer from this testimony that Galloy was motivated to terminate Hudgens because MD Anderson could then replace Hudgens with a younger employee that who MD Anderson would not be required to pay "the big bucks."
The congressional proponents of the [Age Discrimination in Employment Act] and the Secretary of Labor's seminal report repeatedly emphasized that age discrimination pervaded the economy and constituted a serious problem for older employees earning higher salaries and benefits, both because employers can reap the greatest financial benefits from replacing these employees with younger, lower paid ones, and because these employees will have difficulty finding a comparable position if discharged. (citation omitted). In fact, older employees in highly paid positions may be in a particularly vulnerable position in that employers will have a greater incentive to seek to replace them with younger employees earning lower salaries.
Nicholson v. CPC Int'l. Inc. , 877 F.2d 221, 230 (3d Cir. 1989), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
In fact, MD Anderson did replace Hudgens with a much younger employee. Hudgens was replaced by Mayne, who was approximately nine years and ten months younger than Hudgens. In Blizzard , 698 F.3d at 284, the district court found that the six-and-a-half year age difference between the plaintiff and the person who replaced him was sufficient to create an issue of material fact as to age discrimination at the summary judgment stage. The Sixth Circuit held that the district court's decision in this regard was a reasonable exercise of its discretion under Grosjean . Id. "[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." Reeves , 530 U.S. at 148, 120 S.Ct. 2097. Hudgens's prima facie case combined with the evidence that MD Anderson's stated reason for terminating Hudgens was false, and that Galloy was targeting Hudgens because he was being paid the "big bucks" creates a material issue of fact as to whether Hudgens was unlawfully discriminated against because of his age.
II. CONCLUSION
For these reasons, I conclude that the trial court erred in granting summary judgment against Hudgens's wrongful termination claim and that the summary judgment as to the wrongful termination claim should be reversed.