James Hudgens v. the University of Texas MD Anderson Cancer Center ( 2020 )

Affirmed and Majority and Concurring and Dissenting Opinions filed
December 8, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00938-CV
JAMES HUDGENS, Appellant
V.
THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER,
Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2016-40798
CONCURRING AND DISSENTING OPINION
Appellant James Hudgens filed suit against Appellee University of Texas MD
Anderson Cancer Center (“MD Anderson”) in Harris County, alleging claims of age
discrimination in violation of the Texas Commission on Human Rights Act
(“TCHRA”). See Tex. Lab. Code § 21.051. In this appeal, Hudgens seeks reversal
of the trial court’s order granting the traditional and no-evidence motion for
summary judgment of MD Anderson and dismissing with prejudice each of
Hudgens’s claims (a disparate treatment claim and a wrongful termination claim). I
concur with the majority’s affirmance of the summary judgment on the disparate
treatment claim, but I dissent from the majority’s affirmance of the summary
judgment on the wrongful termination claim because there are material issues of fact
that preclude summary judgment on the wrongful termination claim.
I. ANALYSIS
A. APPLICABLE LEGAL STANDARDS
For claims of wrongful termination, a prima facie case of age discrimination
requires proof that the plaintiff (1) is a member of a protected class; (2) was discharged;
(3) was qualified for the position from which he or she was discharged; and (4) was
either replaced by someone outside the protected class, replaced by someone younger,
or was otherwise discharged because of his or her age. Russo v. Smith Int’l, Inc., 93
S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
Once a plaintiff has established a prima facie case of discrimination, the burden
shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason
for the adverse employment action. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22, 24 (Tex. 2000) (per curiam).
“If the defendant presents a legitimate reason, the burden shifts back to the
plaintiff to show either (1) the stated reason was a pretext for discrimination, or (2) the
defendant’s reason, while true, is only one reason, and discrimination was another,
“motivating,” factor.” Navy v. Coll. of the Mainland, 407 S.W.3d 893, 899 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).
2
B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
We review the granting of a summary judgment under a de novo standard of
review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). “[W]e apply the familiar standard of review appropriate for each type
of summary judgment, taking as true all evidence favorable to the nonmovant, and
indulging every reasonable inference and resolving any doubts in the nonmovant’s
favor.” Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675–76 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied). Texas courts disfavor summary judgments and use them
merely to eliminate patently unmeritorious claims and untenable defenses. Gonzales v.
Hearst Corp., 930 S.W.2d 275, 279 (Tex. App.—Houston [14th Dist.] 1996, no writ)
(citing Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)).
C. HUDGENS’S WRONGFUL TERMINATION CLAIM
1. PRIMA FACIE CASE
For claims of wrongful termination, a prima facie case of age discrimination
requires proof that the plaintiff (1) is a member of a protected class; (2) was discharged;
(3) was qualified for the position from which he or she was discharged; and (4) was
either replaced by someone outside the protected class, replaced by someone younger,
or was otherwise discharged because of his or her age. Russo, 93 S.W.3d at 435.
MD Anderson does not dispute that Hudgens produced evidence of the first three
elements but argues that there is no proof of the fourth element because Mayne, who
replaced Hudgens, was only nine years and ten months younger that Hudgens. The
prima facie case requires evidence adequate to create an inference that an employment
decision was based on an illegal discriminatory criterion. O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996). “In the age-discrimination context, such an
inference cannot be drawn from the replacement of one worker with another worker
3
insignificantly younger.” Id. at 313 (emphasis added). See also Kaplan v. City of Sugar
Land, 525 S.W.3d 297, 306 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (the
replacement cannot be insignificantly younger than the plaintiff).
As support for its argument, MD Anderson cites Grosjean v. First Energy Corp.,
349 F.3d 332, 338 (6th Cir. 2003), in which the Sixth Circuit states, “The
overwhelming body of cases in most circuits has held that age differences of less than
ten years are not significant enough to make out the fourth part of the age discrimination
prima facie case.”1 In Kaplan, our court quoted this statement made in Grosjean. 525
S.W.3d at 306. However, in Blizzard v. Marion Tech. Coll., 698 F.3d 275, 284 (6th
Cir. 2012), the Sixth Circuit interpreted its decision in Grosjean as establishing the
following test for determining whether the age difference is significant:
This court established a bright-line rule in Grosjean when it held that
“in the absence of direct evidence that the employer considered age to
be significant, an age difference of six years or less between an
employee and a replacement is not significant.” Id. at 340. However,
while an age difference of ten or more years is generally considered
significant, id. at 336, replacement of the employee by a person who is
six to ten years her junior must be considered on a case-by-case basis.
Cf. id. at 340 (explaining that bright-line rule “does not encroach on our
precedent holding that eight years can be a significant age difference”).
Thus, Grosjean essentially created a zone of discretion in age-
discrimination cases involving replacement by a person who is between
six and ten years younger than the plaintiff. Here, the district court
concluded that, although the six-and-a-half year age difference between
Blizzard and Teeter “is perhaps not the best evidence to create an
inference of age discrimination,” it was nonetheless sufficient to create
1
However, some decisions have held that age differences of nine years or less are sufficient to
establish a prima facie case. See Cicero v. Borg–Warner Auto., 280 F.3d 579, 588 (6th Cir. 2002)
(leaving the question of whether 43–year old was substantially younger than 51–year old to jury);
Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir. 2000) (replacement of 67–year old with 59–year
old sufficient); Fisher v. Vassar Coll., 66 F.3d 379, 1995 WL 527804, at *29 (2d Cir.) (table) (48–
year old and 44 year old professors were substantially younger than 53–year old), republished as
amended, 70 F.3d 1420, 1450–51 (2d Cir. 1995) (same).
4
an issue of material fact at the summary judgment stage.
I agree with the Blizzard and Grosjean decisions that hold there should be a
zone of discretion in age-discrimination cases involving replacement by a person
who is between six and ten years younger than the plaintiff. The almost ten years of
age difference between Mayne and Hudgens (approximately nine years and ten
months) is sufficient to create a material fact issue as to whether Mayne was
significantly younger than Hudgens. This conclusion is also consistent with Rachid
v. Jack In The Box, Inc., in which the Fifth Circuit held a four year difference in age
is insignificant for the purpose of establishing a prima facie case based on a claim
that plaintiff was replaced by a younger person and, without deciding the issue,
commented that five years is a “close call.” 376 F.3d 305, 313 (5th Cir. 2004).
Therefore, the summary judgment evidence in this case is sufficient to raise a prima
facie case for wrongful termination based on age discrimination.
2. EVIDENCE OF A NON-DISCRIMINATORY REASON FOR TERMINATING
HUDGENS
Accordingly, the burden shifted to MD Anderson to produce evidence of a
legitimate, non-discriminatory reason for terminating Hudgens’s employment. See
Willrich, 28 S.W.3d at 24. MD Anderson met this burden by producing evidence that
Hudgens was terminated for unacceptable work performance—failing to locate and
turn off the correct valve for the sprinkler system for Operating Room 8 (“OR 8),
which caused significant damage to the OR and equipment, while Hudgens was
under a 12-month Final Notice for failing to wear a hard hat in a construction area.
5
3. EVIDENCE THAT AGE DISCRIMINATION WAS A MOTIVATING FACTOR
The burden then shifted to Hudgens to produce evidence that the non-
discriminatory reason which MD Anderson presented for Hudgens’s termination (1)
was a pretext for discrimination, or (2) the reason, while true, is only one reason, and
discrimination was another, motivating, factor. Navy, 407 S.W.3d at 899. As discussed
below, Hudgens met this burden. The nonmoving plaintiff may respond to this burden-
shifting aspect of the summary judgment motion by presenting evidence raising a fact
issue on pretext or by challenging the employer’s summary judgment evidence as failing
to prove, as a matter of law, that the given reason for termination was a legitimate,
nondiscriminatory reason for termination. See Willrich, 28 S.W.3d at 24.
“It is permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer’s explanation.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 147–48 (2000). “When all legitimate reasons for rejecting an
applicant have been eliminated as possible reasons for the employer’s actions, it is more
likely than not the employer, who we generally assume acts with some reason, based his
decision on an impermissible consideration.” Id. at 148. “Thus, 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.” Id. However, an employer’s proffered reason for the adverse action is
not pretext for discrimination unless the plaintiff can show “both that the reason was
false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993) (emphasis in original); see also Wal-Mart Stores, Inc. v. Canchola,
121 S.W.3d 735, 740 (Tex. 2003).
As discussed below, Hudgens produced evidence that MD Anderson’s stated
reason for terminating Hudgens was false. On May 20, 2015, MD Anderson sent
Hudgens an “Intent to Terminate” letter, stating “you have failed to perform job
6
duties at an acceptable level.” The Intent to Terminate described the incident leading
to termination as follows:
On March 31, 2015 James “Jim” W. Hudgens submitted an outage
request for the shutdown of the fire sprinkler system located on Alkek
level 5 inside of operating room 8 (OR#8). This shutdown was
necessary to allow a contractor to lower a sprinkler head inside of the
operating room. On April 13, 2015 Jim assisted with the fire sprinkler
system shutdown for this work. Two sprinkler valves on Alkek level 5
were closed, but these two valves did not shutdown the fire sprinkler
system inside of the operating room. Expecting that the correct valves
had been closed, the contractor removed the sprinkler head while the
sprinkler system was still under pressure and this caused flooding in the
room. The sprinkler water caused damage to the equipment inside of
the operating room, the control room and other adjacent areas.
There is documentation which demonstrates that Jim Hudgens had prior
knowledge of the correct valve location. Jim is an experienced safety
specialist who routinely performs this type of task. He did not perform
the necessary steps required to identify the correct valve of the system
that serves the operating room. Jim’s failure to perform the due
diligence necessary to execute this type of task effectively resulted in
damages to the operating room and its equipment.
On May 26, 2015, Woods sent Hudgens a letter stating that Hudgens’s employment
was terminated immediately because of his “unacceptable work performance.” Thus,
MD Anderson’s stated reason for terminating Hudgens is that there is documentation
which demonstrates that Jim Hudgens had prior knowledge of the correct valve
location and that he did not perform the necessary steps required to identify the
correct valve.
Hudgens, as site/facilities manager, prepared and submitted an outage request
for the shutdown of a fire sprinkler system in order to extend a fire sprinkler head
and install an escutcheon in OR 8 on the fifth floor of the Alkek building. The
majority opinion correctly states, “Ruben Dimas, was responsible for identifying and
closing the valve feeding the sprinklers in OR 8. Although OR 8 was on the fifth
7
floor, the shut off valve was located on sixth floor—a fact unknown to Hudgens or
Dimas.” Hudgens testified that it was Dimas’s job to locate and turn off the correct
valve and that was not something that Hudgens had delegated to Dimas. And
Dimas’s supervisor was Woods, not Hudgens. Hudgens was not even present when
the flooding occurred, he was in a different building. Thus, Hudgens did not
participate in either locating or turning off the valve; that was Dimas’s job.
Wade Martin (“Martin”), an MD Anderson employee who worked under the
supervision of Hudgens, also testified that Dimas, not Hudgens, was in charge of the
outage [locating and turning off the valve] for the sprinkler system for OR 8 and that
Martin worked with Dimas on that outage in a support function:
Q. Okay. Did you work on that -- on that assignment with Mr. Hudgens?
A. Well, Jim was there. I wouldn’t say I worked with -- I mean, Ruben
Dimas -- it was Ruben’s outage.
Q. Okay.
A. He was in charge of the outage.
Q. Did you work on that outage as well?
A. Just as a support type function. It was in the OR. When you go into the
OR, you have to be dressed out. I decided, “Hey, I'll be out here not
dressed out in case you need me to run on something. I’ll be here for
you.”
Q. Okay. I got that. So you’re sort of on standby to jump in if needed?
A. Right.
There is also evidence that the failure to identify the correct turn-off valve for
OR 8 was not negligence. Martin testified that Dimas turned off the two valves on
the fifth floor and that Dimas, Hudgens, and Martin all believed that Dimas had
turned off the right valves to OR 8 on the fifth floor. However, when the flooding
occurred, they discovered that the sprinkler system for OR 8 was not tied to the rest
of the fifth floor, but that OR 8 was fed from another floor. Martin testified that
8
placing the cutoff valve on a different floor “is completely out of the ordinary” and
“for any building anywhere in the whole world, you don’t do that.” Martin testified
that Dimas “did everything right.”
In its brief, MD Anderson identifies the documentation that it alleges
demonstrates that Hudgens had prior knowledge of the correct valve location, as an
email sent by Brian Tague to Hudgens dated November 29, 2007, which states, “The
pricing listed below will include the labor and material needed to install a pre action
panel and devices for the system covering the OR Room on the 5th Floor (system is
located on the 6th Floor at Stairwell CC”). This email, that was sent more than seven
years before the 2015 flooding incident, did not concern a request to turn off a
sprinkler system, but concerned pricing for a pre action panel. Hudgens testified that
he did not understand from this email that the valve for OR 8 was on the sixth floor;
the email did not specifically mention OR 8 and there are sixty operating rooms on
the fifth floor. Hudgens testified that nobody ever told him that the system for OR 8
was moved from the fifth floor to the sixth floor.
In reviewing the summary judgment that Hudgens take nothing on his wrongful
termination claim, we are required to “take as true all evidence favorable to the
nonmovant, and indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.” Dias, 214 S.W.3d at 675–76. A factfinder could reasonably infer
from the above-evidence that (1) it was Dimas’s job to locate and turn off the correct
valve, not Hudgens’s, (2) Dimas, Martin, and Hudgens were not negligent for
believing that the turn-off valve for OR-8 was on the fifth floor where OR-8 was
located, not on the sixth floor where no one would expect the valve to be located,
and (3) MD Anderson’s statement—that there is documentation that demonstrates
that Jim Hudgens had prior knowledge of the correct valve location—is false. A
factfinder could also reasonably infer from this evidence that MD Anderson’s stated
9
reason for terminating Hudgens—for not remembering an email sent over seven
years before the flooding incident and not performing the necessary steps to identify
the correct valve —was false.
But proving “pretext for discrimination” requires the plaintiff to show not only
that the reason for termination was false, but also that discrimination was the real reason.
Hicks, 509 U.S. at 515. A plaintiff may prove that discrimination was a real reason for
the plaintiff’s termination by producing evidence that “the defendant’s reason, while
true, is only one reason, and discrimination was another, “motivating,” factor.” Navy,
407 S.W.3d at 899.
Generally, a comment is probative of discrimination when it is (1) related to the
plaintiff's protected class, (2) proximate in time to the adverse employment decision, (3)
made by an individual with authority over the employment decision, and (4) related to
the employment decision at issue. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 577
(Tex. App.—Houston [14th Dist.] 2004, no pet.).
There is evidence in the record from which a factfinder could reasonably infer
that age discrimination was a motivating factor in Hudgens’s termination, which
include comments by a high-ranking supervisor with authority over Hudgens.
Hudgens reported to Fire Life & Safety Supervisor, Mike Woods. Woods
reported to Fire Life & Safety Supervisor Manager, Reginald Phipps. Phipps
reported to Environmental Health & Safety Director, Brian Galloy. Hudgens
testified that he was told by Phipps that Galloy, was “targeting” him.
Hudgens also testified that Galloy asked him on five or six occasions, “Why
are we paying you the big bucks?” A factfinder could reasonably infer from this
testimony that Galloy was motivated to terminate Hudgens because MD Anderson
10
could then replace Hudgens with a younger employee that who MD Anderson would
not be required to pay “the big bucks.”2
In fact, MD Anderson did replace Hudgens with a much younger employee.
Hudgens was replaced by Mayne, who was approximately nine years and ten months
younger than Hudgens. In Blizzard, 698 F.3d at 284, the district court found that the
six-and-a-half year age difference between the plaintiff and the person who replaced
him was sufficient to create an issue of material fact as to age discrimination at the
summary judgment stage. The Sixth Circuit held that the district court’s decision in
this regard was a reasonable exercise of its discretion under Grosjean. Id. “[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. Hudgens’s prima facie
case combined with the evidence that MD Anderson’s stated reason for terminating
Hudgens was false, and that Galloy was targeting Hudgens because he was being paid
the “big bucks” creates a material issue of fact as to whether Hudgens was unlawfully
discriminated against because of his age.
2
The congressional proponents of the [Age Discrimination in Employment Act]
and the Secretary of Labor’s seminal report repeatedly emphasized that age
discrimination pervaded the economy and constituted a serious problem for older
employees earning higher salaries and benefits, both because employers can reap
the greatest financial benefits from replacing these employees with younger, lower
paid ones, and because these employees will have difficulty finding a comparable
position if discharged. (citation omitted). In fact, older employees in highly paid
positions may be in a particularly vulnerable position in that employers will have a
greater incentive to seek to replace them with younger employees earning lower
salaries.
Nicholson v. CPC Int’l. Inc., 877 F.2d 221, 230 (3d Cir. 1989), abrogated on other grounds by
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
11
II. CONCLUSION
For these reasons, I conclude that the trial court erred in granting summary
judgment against Hudgens’s wrongful termination claim and that the summary
judgment as to the wrongful termination claim should be reversed.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant. (Jewell, J., majority).
12