Israel Hernandez v. Grey Wolf Drilling, L.P. ( 2011 )

OPINION
No. 04-10-00730-CV
Israel HERNANDEZ,
Appellant
v.
GREY WOLF DRILLING, L.P.,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 08-11-47599-CV
Honorable Richard C. Terrell, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: June 22, 2011
REVERSED AND REMANDED
Appellant, Israel Hernandez, appeals from the trial court’s order rendering a no-evidence
summary judgment in favor of appellee, Grey Wolf Drilling, L.P (“Grey Wolf”). We reverse
and remand.
BACKGROUND
Hernandez was fifty-three years old and an employee of Grey Wolf when Grey Wolf
terminated his employment on September 17, 2007. Following his termination, Hernandez sued
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Grey Wolf under the Texas Commission on Human Rights Act (“TCHRA”) for age
discrimination and retaliation. According to Hernandez’s petition, he worked for Grey Wolf
under the direct supervision of John Jansen, a truck manager at Grey Wolf’s Alice, Texas
location. Hernandez claimed Jansen repeatedly referred to him as “old man” and “old fart” in
the presence of other employees and did not use similar language when referring to younger
employees. In October 2006 and again in June or July 2007, Hernandez told Jansen that he was
offended and hurt by these comments, but Hernandez claimed Jansen continued to make similar
remarks until he fired Hernandez and replaced him with a younger worker. Grey Wolf filed a
no-evidence motion for summary judgment on both of Hernandez’s claims, and the trial court
rendered summary judgment in Grey Wolf’s favor.
STANDARD OF REVIEW
We review a no-evidence motion for summary judgment de novo. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004); O’Donnell v. Smith, 234 S.W.3d 135,
140 (Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009). “We review the
evidence presented by the motion and response in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the non-movant produces
more than a scintilla of probative evidence to raise a genuine issue of material fact, the trial court
cannot properly grant a no-evidence summary judgment. Reynosa v. Huff, 21 S.W.3d 510, 512
(Tex. App.—San Antonio 2000, no pet.). More than a scintilla of evidence exists when the
evidence “rises to a level that would enable reasonable and fair-minded people to differ in their
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conclusions,” while less than a scintilla exists when the evidence is “so weak as to do no more
than create mere surmise or suspicion.” Id.
When summary judgment is sought on multiple grounds and the trial court’s order does
not indicate the basis for its ruling, we will affirm the summary judgment if the movant advances
any meritorious theory. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Villanueva
v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.).
AGE DISCRIMINATION CLAIM
Under the THCRA:
An employer commits an unlawful employment practice if because of race, color,
disability, religion, sex, national origin, or age the employer:
(1) 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; or
(2) limits, segregates, or classifies an employee or applicant for employment in a
manner that would deprive or tend to deprive an individual of any employment
opportunity or adversely affect in any other manner the status of an employee.
TEX. LAB. CODE ANN. § 21.051 (West 2006). The TCHRA also provides:
(a) Except as otherwise provided by this chapter, an unlawful employment
practice is established when the complainant demonstrates that race, color, sex,
national origin, religion, age, or disability was a motivating factor for an
employment practice, even if other factors also motivated the practice, unless
race, color, sex, national origin, religion, age, or disability is combined with
objective job-related factors to attain diversity in the employer’s work force.
(b) In a complaint in which a complainant proves a violation under Subsection (a)
and a respondent demonstrates that the respondent would have taken the same
action in the absence of the impermissible motivating factor, the court may grant
declaratory relief, injunctive relief except as otherwise provided by this
subsection, and attorney’s fees and costs demonstrated to be directly attributable
only to the pursuit of a complaint under Subsection (a), but may not award
damages or issue an order requiring an admission, reinstatement, hiring,
promotion, or back pay.
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Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas
courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1);
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
There are two types of Title VII employment discrimination cases. Quantum Chem., 47
S.W.3d at 476. The first is the “pretext” case, in which the plaintiff claims the employer’s stated
reason for the adverse action was a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252–53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973). In a pretext case, federal and Texas courts traditionally follow the McDonnell
Douglas-Burdine framework for allocation of proof. E.g., Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 404 n.2 (5th Cir. 1999); Quantum Chem., 47 S.W.3d at 479–80; Claymex
Brick & Tile, Inc. v. Garza, 216 S.W.3d 33, 35 (Tex. App.—San Antonio 2006, no pet.). Under
the McDonnell Douglas-Burdine framework, the plaintiff-employee has the burden of producing
evidence that raises an inference of discrimination. Russo v. Smith Int’l, Inc., 93 S.W.3d 428,
435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The plaintiff’s burden at this stage “is
not onerous.” Quantum Chem., 47 S.W.3d at 477 (quoting Burdine, 450 U.S. at 253). A prima
facie case of age discrimination requires proof that the plaintiff (1) is at least forty years of age;
(2) was discharged; (3) was qualified for the position from which he was discharged; and (4) was
replaced by someone under forty, replaced by someone younger, or was otherwise discharged
because of age. Russo, 93 S.W.3d at 435. If the plaintiff makes this showing, the burden then
shifts to the defendant-employer to articulate a “legitimate, nondiscriminatory reason” for the
plaintiff’s discharge. Quantum Chem., 47 S.W.3d at 477 (quoting McDonnell Douglas, 411 U.S.
at 802). If the defendant can articulate such a reason, the presumption of discrimination created
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by the plaintiff’s prima facie showing is eliminated, and the burden shifts back to the plaintiff to
show the defendant’s stated reason was a pretext for discrimination. Id. The Texas Supreme
Court has held that under the TCHRA, a plaintiff need only prove that age discrimination was “a
motivating factor” in the termination decision. Id. at 480.
The second type of employment discrimination case is the mixed-motive case, in which
the plaintiff has direct evidence of discrimination in the employment decision. Price Waterhouse
v. Hopkins, 490 U.S. 228, 244–45 (1989). Whether a case will be classified as a pretext case or a
mixed-motive case “depends entirely” on whether the plaintiff has direct evidence that
discriminatory motives influenced the employer’s decision to terminate the plaintiff. Quantum
Chem., 47 S.W.3d at 476. If the plaintiff has only circumstantial evidence that the employment
decision was motivated by discrimination, the case will be classified as a pretext case “regardless
of how many motives the employer had.” Id. at 477.
Here, the only evidence of discriminatory animus Hernandez offers is his claim that
Jansen repeatedly referred to him as “old man” and “old fart,” which is circumstantial evidence
that he was actually terminated because of his age. Also, in his original petition, Hernandez
claims, “Following [my] rejection of age-based animus fostered by [Grey Wolf], [I] was
retaliated against when on or about September 17, 2007, [I] was terminated. Based upon
unsubstantiated allegations that [my] services were no longer good to maintain [my] work duties
and responsibilities for Grey Wolf Drilling, [Grey Wolf] terminated [me].” Thus, the pleadings
support classification of Hernandez’s case as a pretext case. Neither Hernandez nor Grey Wolf
argues this is a mixed-motive case. Therefore, the proper framework for our analysis is the
McDonnell Douglas-Burdine framework. See id. at 479.
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In its no-evidence motion for summary judgment and in its brief on appeal, however,
Grey Wolf argues the trial court should evaluate Hernandez’s pretext claim using the Gross v.
FBL Financial Services, Inc. “but for” test rather than the McDonnell Douglas-Burdine
framework. 129 S. Ct. 2343 (2009). In Gross, the United States Supreme Court held the federal
Age Discrimination in Employment Act of 1967 (“ADEA”) does not authorize mixed-motive
age discrimination claims. Id. at 2350. The Court reasoned that unlike Title VII, which contains
the “motivating factor” language discussed in Quantum Chemical, the ADEA provides only that
“[i]t shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment because of such individual’s age.” Id. (quoting 29 U.S.C. § 623(a)(1) (2006)
(emphasis added)). Thus, the Court explained, “the ADEA’s text does not provide that a plaintiff
may establish discrimination by showing that age was simply a motivating factor.” Id. at 2349.
The Court also held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA
must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the
challenged adverse employment action. The burden of persuasion does not shift to the employer
to show that it would have taken the action regardless of age, even when a plaintiff has produced
some evidence that age was one motivating factor in that decision.” Id. at 2352.
The law is currently unsettled as to whether Gross, which construed the federal ADEA,
also applies to age discrimination claims brought under the TCHRA. Houchen v. Dallas
Morning News, No. 3:08-CV-1251-L, slip op. at *11–12 (N.D. Tex. Apr. 1, 2010). However, we
believe Gross does not apply to this case for two reasons. First, the TCHRA contains the
“motivating factor” language that the Gross majority noted was critically absent from the ADEA.
TEX. LAB. CODE ANN. § 21.125(a). Thus, Gross’s analysis may not apply to TCHRA claims.
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Second, no court has extended Gross to a pretext claim, and, in fact, Gross explicitly left open
the question of whether the McDonnell Douglas-Burdine framework is still the appropriate
framework for evaluating pretext claims brought under the ADEA. Gross, 129 S. Ct. at 2349
n.2. For these reasons, we disagree with Grey Wolf’s argument that we should apply the Gross
“but for” test to Hernandez’s pretext claim, and we instead apply the traditional McDonnell
Douglas-Burdine framework. See Quantum Chem., 47 S.W.3d at 479.
Turning to Grey Wolf’s no-evidence motion for summary judgment, we note that Grey
Wolf did not challenge any of the four elements of Hernandez’s prima facie claim under
McDonnell Douglas-Burdine. Instead, Grey Wolf’s motion alleges Hernandez failed to present
any evidence that: (1) he would not have been fired “but for” his age; (2) he was treated
differently than younger workers; (3) Grey Wolf did not have a legitimate, non-discriminatory
reason for terminating him; or (4) Grey Wolf’s reason for terminating him was pretextual.
Hernandez, however, did not have the burden of proof on any of these points. Hernandez did not
have the burden to prove that he would not have been fired “but for” his age, nor did he have the
burden to prove he was treated differently than other workers. Also, it was Grey Wolf’s burden
to prove it had a legitimate, nondiscriminatory reason for terminating him; it was not
Hernandez’s burden to prove the opposite. In addition, because Grey Wolf did not articulate a
legitimate, nondiscriminatory reason for terminating Hernandez, the burden to prove pretext
never shifted back to Hernandez.
In any event, we conclude Hernandez’s affidavit provided more than a scintilla of
evidence on all four elements of his prima facie claim. In response to the no-evidence motion for
summary judgment, Hernandez submitted his affidavit, which explicitly states Hernandez was
fifty-three years old when he was discharged by Grey Wolf in 2007 and replaced by a younger
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worker. Also, the affidavit raises more than a scintilla of evidence that Hernandez was qualified
for the position from which he was discharged. Hernandez’s affidavit states, “During my
employment at Grey Wolf I performed my job consistent with the directions and expectations
provided to me by Mr. Jansen.” The affidavit cites several instances where Hernandez followed
Jansen’s instructions and timely completed assignments. Finally, the affidavit states that Jansen
used an incident involving another employee “to support his decision to terminate [Hernandez]
the following week.” However, according to the affidavit, “Jansen knew that [Hernandez] had
no direct culpability in this incident.”
For these reasons, a no-evidence summary judgment could not properly be rendered on
Hernandez’s age discrimination claim.
RETALIATION CLAIM
In an action for retaliation brought under the TCHRA, the plaintiff-employee must make
a prima facie showing that: (1) he engaged in a protected activity, (2) an adverse employment
action occurred, and (3) a causal link existed between the protected activity and the adverse
action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied). Protected activities include: (1) opposing a discriminatory practice; (2)
making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in
any manner in an investigation, proceeding, or hearing. Id. (citing TEX. LAB. CODE ANN.
§ 21.055). If the plaintiff makes this showing, the burden shifts to the defendant-employer to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id.
Here, Grey Wolf’s no-evidence motion for summary judgment alleges Hernandez has no
evidence that: (1) Hernandez engaged in a protected activity or complained about alleged
discrimination or harassment, or (2) a causal connection existed between the protected activity
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and the termination. However, Hernandez’s affidavit states he complained to Jansen on two
occasions about his alleged use of the terms “old man” and “old fart,” which we believe raises
more than a scintilla of evidence that Hernandez complained about alleged discrimination or
harassment. Also, Hernandez claims in his affidavit: “[A]fter I expressed to Mr. Jansen my
displeasure with his age-related comments to me, he terminated my employment . . . based upon
unsubstantiated allegations against me.” According to the affidavit, Hernandez performed his
job consistently with Jansen’s expectations and directions and was fired as a direct result of his
complaints regarding Jansen’s alleged age-related comments. We conclude Hernandez met his
burden of producing summary judgment evidence raising more than a scintilla of evidence that a
causal connection existed between Hernandez’s complaints and his termination; therefore, Grey
Wolf was not entitled to a no-evidence summary judgment on Hernandez’s retaliation claim.
CONCLUSION
The trial court’s order rendering a no-evidence summary judgment in favor of Grey Wolf
is reversed, and this cause is remanded to the trial court for further proceedings consistent with
this opinion.
Sandee Bryan Marion, Justice
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