Paula Salazar v. Toshiba International Corporation ( 2004 )

Affirmed in part, Reversed and Remanded in Part, and Memorandum Opinion filed December 16, 2004

Affirmed in part, Reversed and Remanded in Part, and Memorandum Opinion filed December 16, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00073-CV

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PAULA SALAZAR, Appellant

V.

TOSHIBA INTERNATIONAL CORPORATION, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 02-62489

M E M O R A N D U M   O P I N I O N

Paula Salazar appeals from a summary judgment favoring Toshiba International Corporation in Salazar’s gender discrimination lawsuit against it.  In her petition, Salazar alleged several discrimination causes of action.  On appeal, she expressly waives all but one of these claims, asserting that the trial court improperly granted judgment against her claim for disparate treatment because Toshiba’s motion for summary judgment did not address this claim.  We affirm in part and reverse and remand in part.

Background

The parties agree on most of the underlying facts.  Salazar began working for Toshiba in May 1996.  In 1999, she utilized Toshiba’s tuition assistance program to take several courses.  After completing the courses, she inquired about a position in Toshiba’s information systems department.  However, the available positions required practical experience in addition to course work, and Salazar had no such experience.

Salazar asserts that she expressed her dissatisfaction to her employers for their allegedly treating her differently than they had treated male employees by not offering to train her.  On January 31, 2002, Toshiba terminated Salazar’s employment.  Salazar claims that the termination was based on her gender and was in retaliation for her complaints.  Toshiba maintains that in late January 2002, Salazar was absent from work for three consecutive days without notifying her superiors.  This absence was in violation of Toshiba’s absence control policy, which was contained in the employee manual that Salazar received when she first began working for Toshiba.

Salazar sued Toshiba alleging gender discrimination: (1) for the failure to train or promote her, (2) for terminating her employment in retaliation for her complaints, and (3) for terminating her employment for violation of the absence control policy when male employees in the same situation had not been terminated or otherwise disciplined.  Toshiba filed a motion for summary judgment raising both traditional and no-evidence grounds.  The trial court granted final summary judgment without stating the basis therefor.

Standards of Review

We utilize the normal standards of review for traditional and no-evidence motions for summary judgment.  See Tex. R. Civ. P. 166a(c), (i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (no-evidence standards); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985) (traditional standards).  A court may not grant summary judgment against claims not addressed in the motion for summary judgment.  Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983); Espeche v. Ritzell, 123 S.W.3d 657, 663 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

In Texas, the Texas Commission on Human Rights Act prohibits employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age.  Tex. Lab. Code Ann. § 21.051 (Vernon 1996). One of the purposes of the Act is to execute the policies underlying Title VII of the Civil Rights Act of 1964; accordingly, we look to analogous federal statutes and caselaw in applying the Act’s provisions.  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).  Because Salazar alleges only circumstantial evidence of discrimination, her claims are governed by the three-step burden shifting process announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973).  Quantum, 47 S.W.3d at 476.  Under this process, the plaintiff initially has the burden to present a prima facie case of discrimination that includes, among other things depending on the nature of the claim, proof of an adverse employment action.  See McDonnell Douglas, 411 U.S. at 802; Quantum, 47 S.W.3d at 477.  Once the plaintiff presents a prima facie case, the defendant must then put forward a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Quantum, 47 S.W.3d at 477.  If the defendant meets that burden, the presumption of discrimination disappears and the burden of production shifts back to the plaintiff to present evidence that the stated reason was merely a pretext for discrimination.   McDonnell Douglas, 411 U.S. at 805-07; Quantum, 47 S.W.3d at 477.  When challenged to do so in a motion for summary judgment, a plaintiff must establish a prima facie case and present evidence raising a fact issue of pretext in order to survive such a motion.  Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 438-39 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

Analysis

Salazar’s petition appears to allege several causes of action based on gender discrimination, including: failure to promote, retaliation, and disparate treatment. Toshiba’s motion for summary judgment raised traditional and no-evidence grounds regarding the retaliation claim and the failure to promote claim, but instead of addressing the disparate treatment claim, the motion addressed a basic termination claim.  Salazar filed no response to Toshiba’s motion, but in her motion for new trial and on appeal she alleges that summary judgment was improperly granted against her disparate treatment claim because the motion for summary judgment did not address that claim.  We agree.^[1]

To establish a prima facie disparate treatment case, a plaintiff must show:  (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) others similarly situated were more favorably treated.  Rutherford v. Harris County, Tex., 197 F.3d 173, 184 (5th Cir. 1999).  Toshiba does not dispute that Salazar can establish the first three required elements, which were in common with claims addressed in Toshiba’s motion.  Regarding the fourth element, Salazar specifically alleged in her petition that “[o]ther male employees who failed to report their absences to management were not terminated,” and “Toshiba’s stated reason for firing Salazar was a pretext for unlawful sex discrimination because other male employees who had failed to ‘properly report’ absences were not disciplined or fired.”  Toshiba did not file special exceptions regarding Salazar’s petition; accordingly, we construe the petition liberally in favor of the pleader.  Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 81 (Tex. 2000).  Under this light, we find that the petition sufficiently alleged a claim for gender discrimination based on disparate treatment.

Toshiba’s motion lists the elements of a termination claim as:  (1) the plaintiff was discharged, (2) she was qualified for her position, (3) she was within a protected class, and (4) she was replaced by someone outside of her protected class, citing Sanstad v. C.B. Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).  The motion then asserts, in both the traditional and no-evidence sections, that Salazar cannot establish a prima facie case because she cannot show that she was replaced by someone outside her protected group.  However, at no point in her petition or other pleadings did Salazar allege that she was replaced by someone outside of her group.  Instead, as explained above, Salazar alleged disparate treatment.  The Fifth Circuit has made it clear that a disparate treatment case is not the same as a general termination case, even when the alleged disparate treatment resulted in termination.  See Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).  Specifically, in a disparate treatment case, the plaintiff need not prove that he or she was replaced by someone outside the protected class.  Id.  At no point in its motion does Toshiba address the disparate treatment claim.

In its brief, Toshiba further contends that its presentation of legitimate, non-discriminatory reasons for the adverse employment actions also applies to Salazar’s disparate treatment claim.  However, the motion for summary judgment clearly discusses only legitimate, non-discriminatory reasons in relation to the three claims listed in the motion and not in relation to the disparate treatment claim.  As stated above, a court may not grant summary judgment against claims not addressed in the motion for summary judgment.  Chessher, 658 S.W.2d at 564; Espeche, 123 S.W.3d at 663. Accordingly, we find that the trial court erred in granting summary judgment against the disparate treatment claim.

We affirm the summary judgment against all of Salazar’s gender discrimination claims except the claim based on disparate treatment.  We reverse the summary judgment on the disparate treatment claim and remand for further proceedings in accordance with this opinion.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed December 16, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  This case is not one in which the failure to address all of the claims rendered the judgment interlocutory.  In Ritzell v. Espeche, the Texas Supreme Court reversed an opinion from this court wherein we held that because a motion for summary judgment did not address all of the claims in the petition, the resulting judgment was interlocutory.  87 S.W.3d 536, 538 (Tex. 2002).  The supreme court explained that, because the trial court’s judgment contained language indicating finality, the judgment was final and appealable regardless of whether the underlying motion addressed all of the claims.  Id. (holding further that the trial court committed reversible error by granting judgment on claims not addressed in the motion). Here, the trial court’s opinion also contains language of finality.  It is titled “Final Judgment,” and it clearly states that “Plaintiff takes nothing by way of this suit” and that it “finally disposes of all parties and claims and is appealable.”  See id.