requiring the plaintiff meet the "but for" standard to establish pretext in a post Quantum case under § 21.055Summary of this case from Pineda v. United Parcel Service, Inc.
Opinion filed March 24, 2003.
Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV98-01954-E.
REVERSED AND REMANDED.
The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
This is an employment sex discrimination and retaliation case. In three issues, Sherri Menefee challenges the trial court's grant of summary judgment on both these claims in favor of McCaw Cellular Communications of Texas, Inc. d/b/a ATT Wireless Services (AWS). Because we conclude the evidence raises a fact issue on whether AWS unlawfully discriminated and retaliated against Menefee, we reverse the summary judgment and remand this case for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In September 1996, Mervin G. Tarde, AWS's vice president of Information Systems, hired Menefee as the manager of Network Systems (IT department) to oversee the local area network (LAN) and the wide area network (WAN) for AWS's southwestern region. On June 27, 1997, Menefee was terminated.
Menefee filed suit, pleading that AWS engaged in a continuing pattern and course of discriminatory conduct against her throughout her employment because she was female and/or in retaliation for her opposition to the sex discrimination conduct. Menefee specifically alleged that (1) Tarde discriminated against her in the terms, conditions, and privileges of employment, in a continuing course of conduct, and/or in retaliation for her opposition; (2) Tarde and/or Derin Duval, a member of the WAN group, subjected her to a less favorable environment based on sex, in a continuing course of conduct, and/or in retaliation for opposition; (3) Menefee complained to Tarde and the vice president of AWS's People Department (PD), Stacy Rapier, AWS's employees and/or agents, about the sex discrimination conduct; and (4) Tarde terminated Menefee at least in part because of sex discrimination shortly after complaints about sex discrimination conduct and/or in retaliation for opposition. Menefee alleged that AWS engaged in the conduct with malice or reckless indifference to Menefee's protected rights. She requested declaratory and injunctive relief, damages for the discriminatory treatment, compensatory damages for each violation, punitive damages, and attorney's fees.
AWS moved for summary judgment on the discrimination and retaliation claims. Menefee responded to the motion, supported by evidence. The trial court granted AWS's motion without specifying the grounds. Menefee appealed.
STANDARD OF REVIEW
In reviewing a traditional summary judgment, the moving party has the burden of establishing that no material fact issue exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). In determining whether a disputed material fact issue precludes summary judgment, we must take evidence favorable to the nonmovant as true, and indulge every reasonable inference in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Because the granting of summary judgment is a question of law, we review the trial court's decision de novo. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied).
A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). The party moving for summary judgment on this basis must specifically state the elements as to which there is no evidence. Tex.R.Civ.P. 166a(i). The burden then shifts to the nonmovant to produce evidence raising a fact issue on the challenged elements. Id. When reviewing a no-evidence summary judgment, we view the evidence in the light most favorable to the nonmovant disregarding all contrary evidence and inferences. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
When, as here, the trial court has granted summary judgment without stating the grounds for doing so, we must consider all grounds for judgment presented in the motion and affirm if any has merit. Weiner v. Wasson, 900 S.W.2d 316, 317 (Tex. 1995).
In the second issue, Menefee contends that the trial court erred in granting summary judgment in AWS's favor on the sex discrimination claim because genuine issues of material fact exist regarding whether she suffered sex discrimination including a discriminatory discharge. AWS moved for summary judgment on the discrimination claim on grounds that Menefee had no evidence that sexual animus motivated any of AWS's actions. AWS contended that Menefee had no evidence, other than her speculative beliefs, that she was treated differently than male employees, Menefee admitted or there was uncontroverted evidence that she was treated the same as male employees, and, as a matter of law, differences in treatment did not constitute an adverse employment action. In response, Menefee contended that she established a prima facie case of sex discrimination.
Under the Texas Commission on Human Rights Act (TCHRA), an employer commits an unlawful employment practice if, because of sex, the employer "discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." Tex. Lab. Code Ann. § 21.051(1) (Vernon 1996). The TCHRA is modeled after federal law to carry out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 139 (Tex.App.-Fort Worth 2000, pet. denied) (citing Tex. Lab. Code Ann. § 21.001(1) (Vernon 1996)). Consequently, when reviewing an issue brought under the TCHRA, we may look not only to cases involving the state statute, but also to cases interpreting the analogous federal provisions. Id. (citing Caballero v. Cent. Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993)).
In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case. Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 142 (2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). In a sex discrimination case, the plaintiff establishes a prima facie case by showing: (1) she was a member of the protected class; (2) she was qualified for the position she held; (3) she was discharged or suffered an adverse employment action; (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class. Id.; Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999); Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995). In establishing a prima facie case, the plaintiff need only make a minimal showing. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 908-09 (Tex.App.-El Paso 2001, pet. denied).
Menefee's first issue is whether the trial court erred in not evaluating the evidence in light of the legal standards established by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), and Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001). Because it is undisputed that these authorities govern this case and the record shows that Reeves was argued to the trial court, we need not address this as a separate issue.
Upon the plaintiff's establishing the prima facie case, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason. Reeves, 530 U.S. at 142. This burden is one of production only, not persuasion, involving no credibility assessment. Id.
Once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision, the plaintiff "must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 143 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The plaintiff may attempt to establish that she was "the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). A plaintiff may establish pretext "by showing that a discriminatory motive more likely motivated" her employer's decision, such as through evidence of disparate treatment, "or that [her employer's] explanation is unworthy of credence." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001) (citation omitted), cert. denied, 122 S.Ct. 1961 (2002).
In the summary judgment setting, the plaintiff need not prove pretext but merely establish a genuine issue of material fact on this issue. Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991). Summary judgment is improper if the plaintiff makes a prima facie case and produces sufficient evidence for a jury to disbelieve the employer's stated reason for discharge. Id. (citing Reeves, 530 U.S. at 145-48). However, "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reasons was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148.
AWS did not challenge Menefee's membership in a protected class or her qualifications for the job, the first and second prongs of Menefee's prima facie case. For the challenged third and fourth prongs, Menefee's evidence showed that AWS terminated her and replaced her with a male, Darin McLaury. Termination is an adverse employment decision. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). Thus, we conclude that Menefee established a prima facie case. Summary judgment could not have been properly granted on the basis that Menefee failed to establish a prima facie case.
AWS then met its burden to come forward with a nondiscriminatory reason for termination by producing evidence that Menefee was fired because she failed to foster a good working relationship with members of her team, as well as with the vice presidents, directors, and other managers within the Southwest Region and she was told at her termination that she was not a "good fit." Thus, the burden shifted to Menefee to bring forth evidence that AWS's reason was a pretext for discrimination.
AWS contended that it was entitled to a presumption that its reasons for termination were not pretext for discrimination because Tarde was the same person who hired and fired Menefee. See Brown v. CSC Logic, Inc. 82 F.3d 651, 658 (5th Cir. 1996). Menefee's evidence shows that Tarde hired her, both Tarde and Rapier made the decision to terminate her employment, and Dan Yost, president of AWS's southwest region, approved the termination. Here, Tarde hired Menefee, and others were involved in her termination. The presumption is more compelling where the same individual who hired and fired the plaintiff is from the same protected class. See id.; see also Ralkin v. New York City Transit Auth., 62 F. Supp.2d 989, 1000 (E.D.N.Y. 1999) (same actor inference "weighty" when person who both hired and fired plaintiff is also member of same protected class as plaintiff). Tarde is not a member of the protected class. Thus, this case is distinguishable from cases that have applied the presumption. See Brown, 82 F.3d at 658. Nevertheless, the presumption is not conclusive. Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). The cases that apply the presumption assume that the plaintiff will be unable to come forward with proof of pretext under this set of circumstances. Id. A plaintiff still has the opportunity to present countervailing evidence of pretext. Id. We conclude that this presumption does not require that Menefee's evidence of pretext be disregarded and summary judgment be sustained. Therefore, we review whether Menefee raised a genuine issue of fact on pretext.
In her response and on appeal, Menefee contends that the "failure to create a cohesive team" reason is pretext because the reason she could not create a "cohesive team" between the LAN and WAN groups was due to Duval's discriminatory conduct and disruptive behavior and Tarde's and PD's failure to take action when she complained. Menefee's evidence showed that Duval told Menefee he did not want to work for her because she was a woman; Duval used inappropriate language towards Menefee and Villanueva, a female member of the LAN team hired by Menefee; and Duval sabotaged Villanueva's work by unplugging servers.
Further, Menefee's evidence showed that she complained about the problems with Duval and Villanueva's treatment and that neither Tarde nor the PD staff conducted any investigations relating to sex discrimination during Menefee's employment. Tarde took the WAN responsibilities away from Menefee in April 1997, well before she was terminated in June 1997. Tarde testified that the decision to terminate Menefee was taken within one or two days of the June 27, 1997 termination. Also, when asked who complained specifically about Menefee, Tarde named only Rapier. Menefee's evidence showed that the head of the Austin office told Menefee she was doing a good job on the e-mail system, and no one at the national office complained about Menefee. In addition, Villanueva testified that Yost told Villanueva and Menefee on several occasions that they were doing a good job. Tarde also indicated on AWS's "Employee Job Profile Form" that Menefee's termination was with "mutual consent." Menefee testified that "there was nothing consensual about my termination" and her termination was a complete surprise. This evidence indicates that two explanations were given for termination; Menefee was terminated following her complaints about other employees' behavior toward her; and she was doing a good job at the time of her termination. This evidence that AWS's explanation is unworthy of credence creates a genuine issue of fact on pretext by showing that a discriminatory motive more likely motivated AWS's decision to terminate Menefee. See Wallace, 271 F.3d at 220.
However, AWS contends that Menefee had no evidence other than her speculative beliefs that she was treated differently on the basis of sex. Menefee came forward with specific instances of different treatment of male and female employees, for example, that Menefee, but not male employees, had to submit detailed documentation for projects and get approval from male peers for changes to the computer system before changes were made. This evidence is more than mere subjective belief or conclusory statements. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995).
Further, AWS claims it offered evidence that the conduct was not motivated by discriminatory intent. In response, Menefee offered her own and Villanueva's testimony detailing different treatment between Tarde's male and female subordinates. When there is conflicting evidence regarding treatment of similarly situated employees, which indicates more favorable treatment of persons outside the protected class, summary judgment is improper. Norwood v. Litwin Eng'rs Constructors, Inc., 962 S.W.2d 220, 225 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). We conclude that Menefee's evidence of disparate treatment raised a genuine issue of fact on pretext by showing that a discriminatory motive more likely motivated AWS's decision to terminate Menefee. See Wallace, 271 F.3d at 220.
Because we conclude that Menefee raised fact issues regarding whether she suffered sex discrimination including a discriminatory discharge, we resolve Menefee's second issue in her favor.
In her third issue, Menefee contends the trial court erred in granting summary judgment on her claim for retaliation because there is a genuine issue of material fact regarding whether she suffered a retaliation discharge for having opposed discrimination in the workplace.
The TCHRA provides that an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who opposes a discriminatory practice. Tex. Lab. Code Ann. § 21.055(1) (Vernon 1996). A plaintiff establishes a prima facie case of retaliation by showing: (1) she 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 decision. Shackelford v. Deloitte Touche, L.L.P., 190 F.3d 398, 408-09 (5th Cir. 1999). The establishment of a prima facie case gives rise to an inference of retaliation. Id. at 409. This inference, in turn, shifts the burden of proof to the defendant, who must then articulate a legitimate non-discriminatory reason for the challenged employment action. Id. Once the defendant asserts such a reason, the inference of discrimination raised by the prima facie case dropped from this case. Id. At this point, summary judgment is appropriate unless the plaintiff can prove that the defendant's rationale is pretextual. Id. (citing McDonnell Douglas, 411 U.S. at 801-03).
Further, when there is a close timing between an employee's protected activity and an adverse employment action, the employer must offer "a legitimate, nondiscriminatory reason that explains both the adverse action and the timing." Id. (citation omitted).
AWS moved for summary judgment on the retaliation claim on grounds that Menefee could not establish the first and third elements of her prima facie case. As to the first element, AWS contended that Menefee could not establish that she engaged in a protected activity. Specifically, AWS argued that Menefee's written responses to performance memorandum were not a "protected activity" because she did not complain to Tarde that she was being discriminated against. However, Menefee testified that she "questioned why I had to follow different guidelines than the other members of my staff who were males" and that she told Tarde and Rapier, at a meeting in April 1997, that the issues were being brought against her "because I am a female and if I'm subjected to . . . this type of guideline and processes, then my male counterparts should be as well." These comments amount to complaints that Menefee was being treated differently because she was female. The anti-retaliatory statute is not limited to individuals who have filed formal complaints, but extends as well to those who informally voice complaints to their superiors. Rollins v. State of Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (applying federal anti-retaliation statute). Further, the anti-retaliatory statute shields an employee from retaliation regardless of the merit of her complaints so long as she can show a good faith, reasonable belief that the challenged practices are unlawful. Id. These oral comments were made after she submitted a "write up" on Duval regarding Duval's behavior towards Menefee and Villanueva and complained that Tarde took no action to discipline Duval. Thus, Menefee presented evidence raising a fact issue that she engaged in a protected activity.
Next, AWS moved for summary judgment on grounds that Menefee had no evidence of a causal nexus between her alleged complaints and her termination. To prove a causal link, a plaintiff must show that but for her complaints she would not have been subject to the adverse employment action. Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984). First, AWS contended that Menefee's complaints of sex discrimination relating to Duval could not have caused her termination because they occurred during the termination process. As evidence, AWS points to Menefee's statement in her deposition in which she admitted that a complaint about Duval occurred during "the termination process." However, Tarde terminated Menefee on June 27, 1997. Tarde testified that the decision to terminate Menefee was taken "a day or two before the termination." Therefore, any discussions in April 1997 about Duval's inappropriate behavior occurred during the disciplinary process, not during the termination process.
Next, AWS contended that Menefee could not show a causal link between alleged complaints and the removal of the WAN from her responsibilities. However, Menefee contended that she was terminated, thus suffering an adverse employment action. Thus, the relevant question is whether Menefee can establish a causal link between her complaints and her termination, the "ultimate employment decision" addressed by the retaliation statute. See Mattern, 104 F.3d at 707. Close timing between an employee's protected activity and an adverse action against her may provide a sufficient causal connection necessary for a showing of retaliation. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993). Here, AWS terminated Menefee two months after she filed a formal written complaint on Duval, based in part on her complaints about discriminatory treatment. This timing provides a sufficient causal connection necessary for a showing of retaliation. See O'Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995) (three months between employee's administrative complaints and termination sufficient to establish causal connection). We conclude that AWS did not show as a matter of law that Menefee could not establish the causal link element of her retaliation claim. We conclude that summary judgment on grounds that Menefee could not establish a prima facie case of retaliation was improper.
Because AWS did not move for summary judgment on the retaliation claim on grounds that it offered a nondiscriminatory reason for Menefee's termination, we need not consider any pretext argument. We resolve Menefee's third issue in her favor.
Having resolved Menefee's three issues in her favor, we reverse the trial court's judgment and remand this case for further proceedings.