Calixto Leija v. Laredo Community College ( 2011 )

MEMORANDUM OPINION
No. 04-10-00410-CV
Calixto LEIJA,
Appellant
v.
LAREDO COMMUNITY COLLEGE,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2008-CVQ-001592-D2
Honorable Raul Vasquez, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 20, 2011
AFFIRMED
In this employment discrimination case, Calixto Leija challenges the summary judgment
granted in favor of his former employer, Laredo Community College. We affirm the judgment
of the trial court.
BACKGROUND
Leija began working as a groundskeeper for Laredo Community College (“the College”)
in 1982 and was promoted to the position of Grounds Foreman in 1991. In 2006, Leija applied
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for the position of Grounds Manager. At about the same time, Jacob Flores, the Director of the
Physical Plant, asked Leija what religion he practiced. Leija responded that he was Catholic, to
which Flores replied, “you Catholics are a bunch of liars!” Flores, a fundamentalist Christian,
continued to make pejorative remarks in regard to Leija’s religion.
Shortly thereafter, Leija was notified that he was not selected for the Grounds Manager
position. Based on his twenty-five years of service, Leija believed he was the most qualified
applicant for the position, and felt he was not selected for the position due to Flores’ animus
against him due to his religion. Instead, the position was awarded to Rolando Martinez. 1 After
learning that he did not receive the promotion, and tired of Flores’ anti-Catholic remarks, Leija
filed a grievance against Flores for discrimination and favoritism on November 20, 2006.
According to Leija, the grievance filing started a campaign of retaliatory conduct by
Flores. Leija’s grounds crew was reduced to only one member, while other crews were provided
with at least three members to conduct the same amount of work. Under Flores’ direction, other
co-workers pressured Leija. Flores asked Martinez to scrutinize Leija’s work, and Daniel
Castillo, a fellow Grounds Foreman, was ordered to provoke Leija. At a College Board Meeting
in June 2007, Leija and Castillo got into a heated debate and had to be separated after Leija was
physically attacked by Castillo. As a result, Leija applied for and was issued a peace bond
against Castillo. In an effort to separate the two workers, the College divided the campus
between Leija’s grounds crew and Castillo’s grounds crew. Leija was given a map of the
campus and advised where his area of work would be; he was also provided a revised work
1
At the College, the Grounds Foreman answers to the Grounds Manager, a position Rolando Martinez held from
October 2006 until Leija was fired. The Grounds Manager answers to both the Director of the Physical Plant, a
position held by Jacob Flores, and the Assistant Director of the Physical Plant, a position held by Rodolfo Trevino
since September 2007.
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schedule as well as Castillo’s schedule so that they would not be clocking-in at the Physical Plant
Office at the same time.
On November 7, 2007, Leija and Castillo were involved in another incident. Leija
apparently confronted Castillo while in his work area. This led to two meetings on December 6,
2007—one between Flores, Trevino, Martinez, and Castillo, during which Castillo received a
written reprimand and warning, and one between Flores, Trevino, Martinez, and Leija. During
this meeting, Leija raised his voice at his superiors, refused to listen to Flores as Flores read the
reprimand, and then stormed out of the office without accepting a copy of the memorandum. As
Leija left the office, all three men heard him call Flores a “pendejo,” a pejorative Spanish term.
Flores, Trevino, and Martinez called campus police and provided statements regarding the day’s
incident. The next day, the College terminated Leija’s employment for insubordination.
After he was fired, Leija filed suit against the College alleging employment
discrimination and violations of his constitutional right of freedom of worship and of 42 U.S.C.
§ 1983 (2000). The College filed a traditional and no-evidence motion for summary judgment,
arguing that there was no evidence to support Leija’s § 1983 claim, and that Flores failed to
establish a prima facie case of discrimination, and that even if he did, there was a legitimate,
non-discriminatory reason for Leija’s discharge. Leija filed a response. The trial court granted
the motion for summary judgment and rendered a take-nothing judgment in favor of the College.
Leija now appeals.
STANDARD OF REVIEW
We review both a no-evidence and a traditional 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.
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2009). We will uphold a traditional summary judgment only if the movant has established that
there is no genuine issue of material fact and that the movant is entitled to judgment as a matter
of law on a ground expressly set forth in the motion. TEX. R. CIV. P. 166a(c); Am. Tobacco Co.,
Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690
S.W.2d 546, 548 (Tex. 1985). In deciding whether the summary judgment record establishes the
absence of a disputed material fact, we view as true all evidence favorable to the non-movant and
indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548-49.
When reviewing a no-evidence motion for summary judgment, we review the evidence in
the light most favorable to the respondent against whom the no-evidence summary judgment was
rendered, disregarding all contrary evidence and inferences. City of Keller v. Wilson, 168
S.W.3d 802, 823 (Tex. 2005); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio
2000, no pet.) (citing Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio
1998, pet. denied)). If the respondent brings forth more than a scintilla of probative evidence to
raise a genuine issue of material fact, a no-evidence summary judgment cannot properly be
granted. Reynosa, 21 S.W.3d at 512. 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
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. (internal citations omitted).
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 any theory advanced
by the movant is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Villanueva v.
Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.).
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DISCUSSION
On appeal, Leija asserts the trial court erred in granting summary judgment because
genuine issues of material fact existed on all elements of his causes of action and the trial court
drew all inferences in favor of the College.
A. No-Evidence Summary Judgment Motion as to Leija’s 42 U.S.C. § 1983 Claim
Generally, to succeed on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate the
violation of a right secured by the U.S. Constitution and laws of the United States committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Biliski v.
Harborth, 55 F.3d 160, 162 (5th Cir. 1995). To establish liability under § 1983, a plaintiff must
demonstrate that the enforcement of an official policy or custom was the moving force behind
the alleged illegal or unconstitutional action depriving the plaintiff of constitutional or federal
rights. Williams v. Kaufman County, 352 F.3d 994, 1013-14 (5th Cir. 2003). An official policy
or custom is: (1) “[a] policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the
lawmakers have delegated policy-making authority”, or (2) “[a] persistent, widespread practice
of city officials or employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that fairly represents
municipal policy” about which such officers of the governing body have actual or constructive
knowledge. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). There is
no vicarious liability against a governmental entity for the actions of its employee unless there is
a showing of a policy or custom approved by the entity. See Monell v. Dept. of Soc. Servs., 436
U.S. 658, 690-91 (1978).
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Here, the College moved for summary judgment arguing Leija had no evidence to show
the College deprived him of a right under the U.S. Constitution or the laws of the United States
because he had no evidence that the College employed a “policy” and/or “custom” of religious
discrimination and harassment. Thus, in order to establish liability on the part of the College for
violation of his freedom of worship, Leija was required to present more than a scintilla of
evidence that the discriminatory actions of a College employee were representative of an official
policy or custom of the College or were made by an official with final policy-making authority.
Id. He failed to do so. The summary judgment record confirms Leija produced no evidence in
response to the motion for summary judgment of the existence of any official policy or custom of
forbidding, prohibiting, or otherwise restraining the freedom of worship. Instead, Leija relied
entirely on the individual actions of Flores, an employee who was not a College official with
final policy-making authority. Accordingly, Leija’s claims under § 1983 as to the College were
properly dismissed on summary judgment.
B. Summary Judgment Motion as to Leija’s Claims of Religious Discrimination,
Harassment, and Retaliation
In an employment discrimination case, we employ the burden-shifting analysis affirmed
by the United States Supreme Court. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Quantum
Chem. Corp v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001); Romo v. Tex. Dept. of Transp., 48
S.W.3d 265, 270 (Tex. App.—San Antonio 2001, no pet.). A Texas employment discrimination
plaintiff has the initial burden to come forward with a prima facie case of discrimination.
Reeves, 530 U.S at 142. If a prima facie case is established, the plaintiff is entitled to a
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presumption of discrimination. 2 Id. The burden then shifts to the defendant/employer to
articulate—but not prove—a legitimate, non-discriminatory reason for the adverse employment
action. Id. “[S]ubjective beliefs of discrimination alone are insufficient to establish a prima
facie case.” Romo, 48 S.W.3d at 270 (quoting Farrington v. Sysco Food Servs., Inc., 865
S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).
Once the employer has articulated a legitimate, non-discriminatory reason for its actions,
any presumption of discrimination disappears and the burden shifts back to the plaintiff to prove
the employer’s articulated reasons are merely a pretext for discrimination. Reeves, 530 U.S. at
143. “Even though the burden of production shifts, the burden of persuasion remains
continuously with the plaintiff.” Romo, 48 S.W.3d at 270. It is not sufficient merely to show the
employer’s proffered reasons are false or not credible; the plaintiff must also show the unfair
treatment was motivated by intent to discriminate. Reeves, 530 U.S. at 146-47; Walton v. Bisco
Indus., Inc., 119 F.3d 368, 370 (5th Cir. 1997). In some cases, “a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530
U.S. at 148. However, “an employer would be entitled to judgment as a matter of law if the
record conclusively revealed some other, non-discriminatory reason for the employer’s decision,
or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was
untrue and there was abundant and uncontroverted independent evidence that no discrimination
had occurred.” Id.
The College moved for summary judgment on the grounds that 1) Leija could not
establish a prima facie case for religious discrimination, harassment, or retaliation, and 2) Leija
2
In the summary judgment context, a plaintiff need not prove pretext, but merely establish a genuine issue of
material fact on the issue to avoid judgment as a matter of law. Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 438 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied).
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could not raise a genuine issue of material fact to contradict the College’s non-discriminatory
reason for terminating Leija’s employment. Assuming, without deciding, that Leija’s evidence
establishes a prima facie case for discrimination, harassment, and retaliation, the College
articulated a legitimate, non-discriminatory reason for the termination of Leija’s employment,
i.e., that Leija was fired due to insubordination for calling his superior a “pendejo” during the
December 6, 2007 meeting.
Once the employer has proffered a non-discriminatory reason for the adverse
employment action, the employee has the burden to prove that the employer’s articulated reasons
are merely a pretext for discrimination. Reeves, 530 U.S. at 143. A plaintiff can prove the
employer’s articulated reasons are pretext “in two ways, ‘either (1) directly by persuading the
court that a discriminatory reason more likely motivated the employer or (2) indirectly by
showing that the employer’s proffered explanation is unworthy of credence.’” Amburgey v.
Corhart Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir. 1991) (quoting Tex. Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In the summary judgment context,
however, the plaintiff need not prove pretext but merely establish a genuine issue of material fact
on the matter. See Amburgey, 936 F.2d at 813. “Summary judgment will be 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.” Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 438-39 (Tex.
App.—Houston [14th Dist.] 2002, pet denied) (citing Reeves, 530 U.S. at 146-48).
In his response to the motion for summary judgment, Leija maintains that being fired for
insubordination is pretextual and that “[u]p and until the point [he] was terminated several prior
acts and incidents occurred.” In support, Leija generally points to his 173-page deposition, but
does not cite a page number or specify what acts and incidents occurred. When a summary
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judgment respondent fails to direct the reviewing court to specific summary judgment evidence,
a fact issue cannot be raised sufficient to defeat summary judgment. See Arredondo v.
Rodriguez, 198 S.W.3d 236, 238-39 (Tex. App.—San Antonio 2006, no pet.) (holding neither
appellate court nor trial court is required to wade through a voluminous record to locate
summary judgment respondent’s proof, and that attaching entire documents and depositions to a
motion for summary judgment or to a response and referencing them only generally does not
relieve the party of pointing out to the trial court where in the documents the issues set forth in
the motion or response are raised). Accordingly, we cannot conclude Leija raised a fact issue as
to whether the College was more likely motivated by a discriminatory reason in discharging him,
nor did Leija present evidence to show that the College’s proffered explanation was unworthy of
credence. In his deposition, Leija himself acknowledged that calling his superior a “pendejo” is
grounds for termination.
Although Leija testified he believed his employment was terminated due to his religious
beliefs and for filing a grievance against Flores, we conclude that Leija did not meet his burden
to produce evidence raising a fact issue as to whether the ground for which he was terminated
was pretextual of discrimination. Accordingly, the summary judgment was properly granted on
Leija’s claims for discrimination, harassment, and retaliation.
We overrule Leija’s issues on appeal, and affirm the judgment of the trial court.
Phylis J. Speedlin, Justice
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