Willrich v. M.D. Anderson Hospital & Tumor Institute , 1 S.W.3d 831 ( 1999 )

OPINION

Opinion by

Justice CHAVEZ.

Harold Gene Willrich appeals from a summary judgment granted in favor of his former employer, M.D. Anderson Hospital, on his claim that he was terminated from his employment due to racial discrimination. Willrich contends that the trial court erred in failing to grant him an extension of time to respond to the motion for summary judgment and in ruling that M.D. Anderson had shown as a matter of law that Willrich was terminated for a legitimate, non-discriminatory reason. We hold that material fact issues exist concerning the reason for Willrich’s termination, and, therefore, reverse the summary judgment.

The first issue raised by Willrich is whether the trial court erred in failing to grant an extension of time for him to respond to M.D. Anderson’s motion for summary judgment. The granting or denial of a motion for extension of time is a matter reserved to the discretion of the trial court. See Manges v. Astra Bar, Inc., 596 S.W.2d 605, 612 (Tex.Civ.App.—Corpus Christi 1980, writ ref'd n.r.e.) (request for continuance under summary judgment rule is matter within trial court’s discretion). M.D. Anderson’s motion for summary judgment was filed May 15, 1997. Under Texas Rule of Civil Procedure 166(a)(e), a hearing could not be conducted until at least twenty-one days after the motion was filed, and Willrich’s response was due seven days before the hearing. Tex.R. Civ. P. 166(a)(e). In accordance with the rule, a hearing on the motion was set for June 9, 1997, and Will-rich’s response was due June 2,1997.

The sole basis for Willrich’s motion for extension of time was that he had not received a copy of Willrich’s deposition until May 29, 1997. However, a complete copy of Willrich’s deposition was attached to M.D. Anderson’s motion for summary judgment, which was filed and served on May 15. We hold that the trial court did not abuse its discretion in failing to grant Willrich’s motion for extension of time.

We next consider whether the trial court erred in granting summary judgment in M.D. Anderson’s favor. A defendant who moves for summary judgment has the burden of either establishing a defense as a matter of law or disproving as a matter of law at least one element of each of the plaintiffs causes of action. Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex.1975). When reviewing a motion for summary judgment, the court takes the non-movant’s evidence as trae, indulges every reasonable inference in favor of the non-movant, and resolves all doubts in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Willrich sued under the Texas Commission of Human Rights Act, which provides for the execution of Title VII of the Civil Rights Act of 1964. Tex. Lab. Code Ann. § 21.001 (Vernon 1996). These laws prohibit discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a) (West 1994); Tex. Lab.Code Ann. § 21.051 (Vernon 1996).¹ The plaintiff in a racial discrimination case must carry the initial burden of establishing a prima facie case of racial discrimination by showing that he belongs to a racial minority and that his employer took adverse action against him. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805, 93 S.Ct. 1817, 1824 (1973). The burden then shifts to the employer to produce evidence of some legitimate, non-discriminatory reason for the employee’s rejection. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). The plaintiff then has the burden of proving that the non-discriminatory reason is a pre-text, and that race is the true reason for the adverse employment decision. Id.

Although Willrich failed to respond to the motion for summary judgment, his version of the facts of the case is apparent from his deposition and responses to interrogatories attached to M.D. Anderson’s motion for summary judgment. Willrich had worked as a utility station operator for M.D. Anderson since June 1981. He testified in his deposition that “the ⅛’ word” (nigger) was “a very common phrase.” At some point in 1981 Willrich complained about the use of this slur by a coworker named Renstead. As a result of his complaint Willrich was considered a “troublemaker,” “taboo,” and someone with “a chip on his shoulder.”

In 1982 an employee was needed for the night shift, and Willrich was selected against his will. Willrich was the only African-American among those who could do the night shift job, and he believed he was selected because of his race. Willrich testified that the man he replaced was classified as a “Maintenance Worker II,” while Willrieh had the higher classification of “Utility Station Operator III.” Willrieh explained that other maintenance workers could have filled the night shift position, and that it had previously been the custom for the utility station operator to work the day shift, but, nevertheless, he was the one put on the night shift. He complained about his change in shifts to people “outside the department,” which angered his supervisor and caused Willrieh to be placed on ninety days “probation.”²

In 1983 Willrieh was transferred from M.D. Anderson’s hospital facility to its rehabilitation facility. Willrieh recounted an incident at the rehabilitation facility where his supervisor, Ernest Landgrebe, told a joke that had the word “nigger” in the punch line. Willrieh did not complain, however, because Landgrebe was his boss and he didn’t want to repeat the troubles he had earlier when he had complained. In 1990 Landgrebe referred to poor workmanship as “nigger-rigging” and Willrieh did file a grievance. Landgrebe apologized, but Willrieh did not feel that Land-grebe’s apology was sincere because, soon after this incident, Landgrebe gave Will-rich an oral evaluation that his work was unsatisfactory and Landgrebe’s attitude toward Willrieh became hostile. Pressed to recall other incidents where racial slurs had been used, Willrieh recalled being the butt of a joke involving the word “nigger” told by a coworker named Lu Pen Lu; coworker John Goodman discussing rap music in a manner that included the word “nigger;” and one other incident where Lu had called him a “nigger.”³ Willrieh said that Lu was directed to apologize to him, but he did not consider the apology sincere because Lu had a “catty grin” while apologizing.

Attached to M.D. Anderson’s motion for summary judgment were materials that it argued demonstrated legitimate, non-dis-eriminatory reasons for Willrich’s termination. Howard Stanford, director of M.D. Anderson’s research and education facilities, swore an affidavit stating that Willrieh was terminated because his former position was eliminated under the reorganization, and because Willrieh was not the best qualified for the jobs he specified on his preference sheet. He added that the only jobs Willrieh listed on his preference sheet were night jobs, which were the least available.

M.D. Anderson also attached its “Reduction in Force Policy” which specified that the criteria for determining terminations were past job performance, the ability to perform work required in the future, and when all else was equal, seniority.

The preference form employees were given had spaces for three preferences, and left blanks for employees to specify “department,” “section,” “position,” and “shift.” A memorandum sent to M.D. Anderson employees explaining the “facilities management restructuring” and the accompanying “reduction in force” told employees that they could specify a position which would constitute a promotion, but that they must specify at least one position in their current classification. The memorandum also explained: “while we will try to comply with your preference, we cannot guarantee we will be able to do so. If everyone applies for certain positions, and not for others, then we may have to assign you to a position that you didn’t indicate on your form.” Instructions accompanying the form also told employees:

Your preferences will be carefully considered and weighed against departmental needs. However, it is possible that you will be selected for a position other than your preferences. It is also possible that you may not be selected for any position. If you fail to return the preference form, you may be assigned to any position which needs to be filled.

Statistics pertaining to the reduction in force indicated that 24% of African-American employees lost their jobs, compared to 15% of white employees.

M.D. Anderson’s motion for summary judgment argued that it had produced evidence of legitimate, non-discriminatory reasons for Willrich’s termination, and Willrich failed to raise an issue of material fact concerning whether the alleged nondiscriminatory reasons were a pretext for illegal racial discrimination. We hold that a fact issue does exist regarding whether Willrich was terminated for racial reasons.

Willrich’s testimony showed that several people at M.D. Anderson, including a supervisor, used racial slurs. Viewing this evidence in the light most favorable to Willrich and indulging all reasonable inferences in his favor, it could be inferred that many individuals at M.D. Anderson, including supervisory personnel, held racist beliefs and were capable of racial discrimination. Willrich’s testimony that complaining about the racial slurs led to him being ostracized and labeled a troublemaker by many of his coworkers supports an inference that racist attitudes extended beyond the small group of individuals Will-rich recalled hearing use racial slurs. An inference that M.D. Anderson discriminated based on race is also supported by the incident when a maintenance worker retired and Willrich, who had a higher job classification but was the only available African-American, was moved to the night shift; while others, who were not African-Americans but were maintenance workers, kept their positions on the day shift. Finally, while the disparity between the percentage of African-Americans terminated and the percentage of whites terminated is hardly overwhelming, it does show that a higher percentage of African-Americans were terminated, providing further evidence that race may have been behind Willrich’s termination.

M.D. Anderson’s argument is also undermined by the disparity between the intended use of the preference forms described in the instructions given to employees and the actual handling of those forms described in Howard Stanford’s affidavit. The instructions given to employees indicated they should expect that, in case they were not the best qualified person for the jobs they expressed a preference for, they would be considered for other positions with M.D. Anderson. They were also advised that employees who failed to submit a preference sheet would be considered for “any position which needs to be filled.” Yet Stanford’s affidavit indicates that, once it was determined that Willrich was not the best qualified person for the jobs on his preference sheet, Willrich was designated for termination. If, as Stanford’s affidavit states, the night shift positions Willrich specified were the “least available,” then Willrich should have been considered for other positions. Stanford’s affidavit does not indicate that this was done.

M.D. Anderson argued in its motion for summary judgment that Willrich limited his chances by narrowly specifying his preferences and specifying positions that were promotions, while other employees wrote “any shift” on their preference forms, or specified positions that were demotions. This argument, like Stanford’s affidavit, is at odds with the instructions and design of the preference form. The form had blanks for employees to specify “department,” “section,” “position,” and “shift.” Certainly Willrich cannot be faulted for filling in the blanks provided. The instructions indicated that employees who did not get their “preferred” jobs would be considered for other jobs. Indeed, the word “preference” means “one that is liked better or best.” Webstee’s Collegiate Dictionary 918 (10th ed.1996). Therefore, the design of the form and the accompanying instructions suggested that employees could safely specify the jobs they “liked better or best,” and that it was unnecessary for an employees to specify that they would be available for “any shift,” or to indicate that they would accept a demotion. The irregularity in the actual use of the preference forms undermines the legitimacy of M.D. Anderson’s termination of Willrich, and leaves open the possibility that other factors, such as the racism asserted by Willrich, may have caused the decision to terminate him.

M.D. Anderson relies on Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981) as authority that a limited number of racial slurs, like those detailed by Willrich, do not constitute a violation of Title VII. However, Johnson is distinguishable in several important ways. First, Johnson was before the Eighth Circuit on appeal from a judgment in favor of the employer rendered after a bench trial. In that posture, the appellate court was required to “give regard to the opportunity of ... [the trial] court to judge the credibility of the witnesses” and “to resolve conflicts in the testimony.” Id. at 1253. In contrast, in reviewing the summary judgment before us, we must take the losing party’s evidence as true, indulge every reasonable inference in favor of the losing party, and resolve all doubts in that party’s favor. Nixon, 690 S.W.2d at 548-49. In reviewing the judgment following a bench trial, the Eighth Circuit would affirm the judgment of the trial court unless it found that the trial court’s judgment was “clearly erroneous.” Johnson, 646 F.2d at 1254. However, we may affirm the judgment of the trial court only if M.D. Anderson has shown its entitlement to judgment as a matter of law, and no question of fact exists. Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

Furthermore, the plaintiffs in Johnson alleged that the racial slurs they were subjected to, in and of themselves, constituted a discriminatory working condition violative of Title VII. Willrich does not make this claim. Rather, he argues that the racial slurs are evidence of racist attitudes at M.D. Anderson, and, therefore, evidence that race was a motivating factor in his termination. A limited number of racial slurs might constitute enough evidence to raise a fact issue regarding racist attitudes and racist employment decisions (Willrich’s claim) while not being enough to show, as the appellant tried in Johnson, that the slurs were such strong evidence of a hostile work environment that a trial judgment in favor of the employer was clearly erroneous.

We do not hold that any time a racial slur is used in a workplace and a minority employee is later terminated, an issue of fact is raised regarding whether race was the cause of the minority’s termination. However, where, as here, (1) a supervisor engages in racial slurs; (2) a minority’s complaint about racial slurs leads to ostracism among many employees; (3) there is evidence of other incidents where the minority was subjected to adverse treatment and the circumstances suggest that race may have been the motivation (in this case, Willrich’s transfer to the night shift); and (4) the employer’s asserted race-neutral procedures do not appear to have been followed, and the irregularity has an adverse impact on the minority (in this case, the apparent failure to consider Willrich for jobs other than those on his preference form); we hold that a material fact issue has been raised regarding whether the employee was terminated because of his race.

We reverse the judgment of the trial court and remand this case for further proceedings.

Dissenting Opinion by Justice J. BONNER DORSEY.

1 . Federal case law applying Title VII is persuasive for cases brought under section 21 of the Texas Labor Code. Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365, 370 (Tex.1997); Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d 771, 773-74 (Tex.App.—Hous. [14th Dist] 1996, no writ); see also William Conover Brooks, III, Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 Baylor L. Rev. 683, 691-92 (1995).

2 . The nature of this "probation” is not clear.