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OPINION HEADING PER CUR
NO. 12-06-00213-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES T. MARTINEZ, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
TEMPLE-INLAND FOREST
PRODUCTS CORPORATION, § ANGELINA COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
James T. Martinez appeals the trial court’s order granting summary judgment in favor of Appellee Temple-Inland Forest Products Corporation (“Temple-Inland”). In one issue, Martinez contends that the trial court erred in granting the summary judgment because there were disputed fact issues regarding his claims of same sex harassment and retaliation. We affirm.
Background
James Martinez had a troubled relationship with David Thomas, his immediate supervisor at Temple-Inland. In September 2002, during a meeting with Thomas and Human Resources Manager T.J. Colwell, Martinez shouted a profanity at Thomas when confronted with his poor work attendance record. Under Temple-Inland’s Progressive Corrective Action Policy, which had gone into effect two months earlier, Martinez could have been immediately terminated. However, he was given a written warning signed by Thomas and Colwell informing him that any further such behavior could result in his immediate termination.
On February 24, 2004 Thomas and Martinez’s coworker, Monte Whisenhunt, began arguing over a corrective feature used by their plant’s press operators. Martinez interjected himself into the argument, calling Thomas an “asshole.” Thomas responded, and Martinez exclaimed “f*** you” to Thomas and left the room. Martinez admitted making these statements.
On Thursday, February 25, Martinez was sent home with pay pending an investigation of his behavior. Temple-Inland formed a three person team (the “Team”) to investigate the incident, consisting of Colwell, Jeff Mastro, and Temple-Inland’s human relations director, Jim Cumbie.
On Friday, February 26, following their investigation, the Team decided to terminate Martinez for his violation of company policy. The Team further decided that they would not notify Martinez until Monday, March 1, so that Temple-Inland’s senior management could approve their decision.
That afternoon, Martinez contacted Mastro alleging that Thomas had been sexually harassing him. Mastro, Cumbie, and Colwell decided to delay their meeting to notify Martinez of his termination until Colwell was able to investigate Martinez’s new claim of same sex harassment. Colwell investigated the claim on Monday, March 1, and determined that Thomas, Martinez, Whisenhunt, and five other men who worked in the lab had been involved in rowdy behavior and horseplay, which included the subject of homosexuality. Martinez later admitted his involvement in such behavior.
On March 2, Martinez was terminated by Temple-Inland for violating Temple-Inland’s written policy against cursing another company employee. Martinez subsequently brought the instant suit against Temple-Inland alleging same sex discrimination, retaliation, and intentional infliction of emotional distress. After adequate time for discovery, Temple-Inland filed both traditional and no evidence motions for summary judgment. On April 17, 2006, the trial court signed a general order granting Temple-Inland’s motion for summary judgment. Martinez timely filed this appeal.
Summary Judgment
In his sole issue, Martinez contends that the trial court erred in granting summary judgment in favor of Temple-Inland because genuine issues of material fact existed with regard to his allegations that he was sexually harassed by Thomas and that Temple-Inland retaliated against him for reporting the harassment.1
Standard of Review
The movant for traditional summary judgment must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, we consider the evidence in the light most favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). A movant must negate at least one central element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. Redmon v. Griffith, 202 S.W.3d 225, 232 (Tex. App.–Tyler 2006, pet. denied). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678–79 (Tex. 1979). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
A party may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A no evidence motion is properly granted if the movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. Redmon, 202 S.W.3d at 232 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). This is evidence that would enable reasonable and fair minded jurors to differ in their conclusions. Wal-Mart Stores v. Spates, 186 S.W.3d 566, 568 (Tex. 2006).
Same Sex Harassment Claim
The summary judgment evidence reflects that Martinez contended Thomas first began harassing him sexually by calling him “coongirl.” Yet Martinez conceded that he had introduced himself to Thomas and his fellow coworkers as a “Puerto Rican coonboy” and that he was not offended by being called “coonboy.” Martinez stated that he took offense when Thomas began calling him “coongirl.” He further stated that Thomas ceased calling him “coongirl” after he asked him to stop.
However, before he stopped calling Martinez “coongirl,” Thomas told Martinez’s coworkers that they could take Martinez out to San Francisco and pimp him out in gay bars there. Martinez stated that Thomas specifically talked about his “long legs” in that context. Martinez alleged that Thomas continually asked him if he would go to San Francisco with him. Martinez said Thomas increased the frequency of his comments in February 2004 when the city of San Francisco began issuing marriage licenses to homosexual couples.
Martinez’s suit against Temple-Inland for sex discrimination and retaliation was brought under the Texas Commission on Human Rights Act (“TCHRA”). See generally Tex. Lab. Code Ann. § 21.001 (Vernon 2006). The relevant parts of the TCHRA are patterned after Title VII of the Federal Civil Rights Act. Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001). We look to federal precedent for interpretive guidance to meet the legislative mandate that the TCHRA is intended to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Id.; Tex. Lab. Code Ann. § 21.001(1). Title VII provides that it shall be an unlawful employment practice for an employee to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex, or national origin. See 42 U.S.C.A. § 2000e-2(a)(1) (West 1994); Roberson v. Alltel Info. Svcs., 373 F.3d 647, 651 (5th Cir. 2004).
In 1998, the United States Supreme Court held that sex discrimination consisting of same sex sexual harassment is actionable under Title VII. Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 79–80, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201 (1998). The court emphasized that claims of same sex harassment are subject to the identical requirements as claims of opposite sex harassment, that is, a plaintiff making a claim of either same sex or opposite sex harassment “must always prove that the conduct at issue is not merely tinged with offensive sexual connotations, but actually constituted discrimination. . .because of. . .sex.” Id., 523 U.S. at 81, 118 S. Ct. at 1002. In a case of alleged same sex harassment, courts must first determine whether the harasser’s conduct constitutes sex discrimination. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). If the answer is “yes,” the court must decide whether the challenged conduct meets the applicable standards for either a quid pro quo or hostile environment claim. Id.
There are three methods by which a plaintiff alleging same sex sexual harassment can show he was harassed based on his sex:
....First, he can show that the alleged harasser made “explicit or implicit proposals of sexual activity” and provide “credible evidence that the harasser was homosexual.” Second, he can demonstrate that the harasser was “motivated by general hostility to the presence of [members of the same sex] in the workplace.” Third, he may “offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”
Id. (citations omitted) (quoting Oncale, 523 U.S. at 80–81, 118 S. Ct. at 1002).
In the case before us, there is no evidence in the record to demonstrate that Thomas was motivated by a general hostility to the presence of the other males in the lab where he and Martinez worked with six other men. The third factor is also inapplicable here because the record shows that there were no female workers in the lab where Martinez and Thomas worked together. Therefore, we will consider the summary judgment evidence only as to the first factor outlined in Oncale.
Martinez stated in his deposition that he was not alleging that Thomas had physically touched or abused him. He further testified in his deposition that he was not alleging Thomas had requested any sexual favors from or made sexual demands upon him. Martinez stated that he thought Thomas was getting too personal when he talked about Martinez’s long legs. Martinez conceded in his deposition that Thomas’s references to his long legs involved taking Martinez to San Francisco and pimping him out so that Thomas could be “rich in no time at all.” Martinez admitted that he never believed Thomas would actually physically take him to San Francisco and pimp him out to homosexuals. Martinez further stated that he thought Thomas’s behavior was “ridiculous and humiliating.”
Moreover, Martinez produced no evidence that Thomas was, in fact, a homosexual. There are two types of evidence that are likely to be specially “credible” proof that a harasser may be a homosexual. See Laday, 302 F.3d at 480. The first is evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons unrelated to sexual interests. Id. The second is proof that the alleged harasser made same sex sexual advances to others, especially to other employees. Id.
Martinez stated that Thomas’s conduct toward him was “humiliating.” Yet he has presented no evidence that demonstrates Thomas intended to have sexual contact with him. All of the references in the summary judgment record regarding homosexual activity involve conduct happening in San Francisco. Martinez’s testimony regarding what would happen in San Francisco was that Thomas would be pimping him out to homosexuals there. The record shows that Thomas was married with one young child. Martinez was married with four children. Further, there is no evidence in the record indicating that Thomas had made same sex advances to the other six men who worked in the lab or anyone else. Therefore, we hold there is no evidence in the summary judgment record to establish same sex harassment.
Retaliation
Martinez also alleges that Temple-Inland retaliated against him for filing the same sex harassment complaint against Thomas. Title VII provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees. . .because he has made a charge, testified, assisted or participated in any manner of an investigation, proceeding or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a) (West 1994). To make out a prima facia case of retaliation, Martinez must provide evidence that (1) he engaged in protected conduct, (2) he was thereafter subjected to an adverse employment activity (such as termination), and (3) the adverse employment action was taken in response to his protected conduct. See Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 330 (5th Cir. 2004).
A prima facie case, once established, raises a presumption of discrimination, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). If the defendant satisfies this burden, the plaintiff must prove that the proffered reasons are pretextual. Id. Once a Title VII case reaches the pretext stage, the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination. Id.
Martinez does not dispute that Temple-Inland acted pursuant to its policies in terminating him for “cursing out” Thomas. Rather, he contends that the fact that he was terminated five days after he made the allegations of Thomas’s same sex harassment is prima facie evidence Temple-Inland retaliated against him. We disagree. The mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough to establish a prima facie case of retaliation. Swanson v. General Svcs Admin., 110 F.3d 1180, 1188 n.3 (5th Cir. 1997). It is apparent from the summary judgment record that Temple-Inland was contemplating terminating Martinez for his violation of its established written policies before it learned of his same sex harassment allegations. Employers need not suspend contemplated employment actions simply because the employee affected by such actions alleges a Title VII violation. See Clark County School Dist. v. Breeden, 532 U.S. 268, 272, 121 S. Ct. 1508, 1510–11, 149 L. Ed. 2d 509 (2001). When an employer proceeds along lines previously contemplated though not definitely determined, the action does not amount to evidence of causality. Id. We conclude that Martinez’s argument is untenable. Therefore, we hold that the summary judgment record contains no evidence to support a prima facie case of retaliation. Martinez’s sole issue is overruled.
Disposition
Having overruled Martinez’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered July 18, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
1 Martinez does not make any argument on appeal that the trial court’s grant of summary judgment as to his claim for intentional infliction of emotional distress was improper. See Tex. R. App. P. 38.1(h).
Document Info
Docket Number： 12-06-00213-CV
Filed Date： 7/18/2007
Precedential Status： Precedential
Modified Date： 9/10/2015