TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00653-CV
Conrad G. Deocariza, Appellant
v.
Central Texas College District, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 202,752-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Conrad Deocariza sued his former employer, Central Texas College District
("CTCD"), alleging that he was denied a promotion and later terminated because he is a
Pacific Islander, see Tex. Lab. Code Ann. § 21.051 (West 2005), and that he was terminated in
retaliation for complaining about discrimination in the promotion. Id. § 21.055 (West 2005). CTCD
sought summary judgment on traditional and "no evidence" grounds challenging various elements
of Deocariza's discrimination and retaliation claims. CTCD also asserted that limitations barred
Deocariza's claims and that the after-acquired evidence doctrine precluded the remedies of
reinstatement and front pay and limited any back pay award to the period between February 14, 2004,
(the date he was terminated) and October 12, 2004, (the date CTCD learned through discovery that
Deocariza had past employment problems that he had not disclosed on his CTCD job applications). (1)
The district court granted summary judgment in favor of CTCD without specifying the grounds on
which it relied. Deocariza appeals.
Deocariza does not dispute that partial summary judgment was appropriate under the
after-acquired evidence doctrine but contends that fact issues preclude summary judgment as to his
surviving claim for back-pay damages for the period between February 14 and October 12, 2003.
We disagree, and will affirm the district court's judgment.
STANDARD OF REVIEW
Under the "traditional" standard, a summary-judgment motion is properly granted
only when the movant establishes that there are no genuine issues of material fact to be decided and
that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc.
v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In reviewing a motion for summary judgment, we
accept as true all evidence favoring the nonmovant, indulging every reasonable inference and
resolving all doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546, 548-49 (Tex. 1985). A defendant moving for summary judgment must negate as a matter of
law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter
of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d
195, 197 (Tex. 1995). If the defendant meets this burden, the burden shifts to the plaintiff to present
evidence raising a fact issue. See id.
A "no-evidence" summary judgment is essentially a pre-trial directed verdict
and an appellate court applies the same legal sufficiency standard in reviewing a no
evidence summary judgment. See Tex. R. Civ. P. 166a(i); Rocha v. Faltys, 69 S.W.3d
315, 320 (Tex. App.--Austin 2002, no pet.). The appellate court views the evidence in the light
most favorable to the non-moving party, disregarding all contrary evidence and inferences. Id. A
no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact,
(b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (c) the evidence offered to prove a vital fact is not more than a mere scintilla,
or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc.
v. Harmer, 953 S.W.2d 706, 711 (Tex. 1997). More than a mere scintilla of evidence exists when
the evidence rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise of suspicion. Moore, 981 S.W.2d at 269.
Because the trial court granted CTCD's motion without specifying the grounds, the
summary judgment will be upheld if any of the theories advanced by CTCD are meritorious.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
EMPLOYMENT DISCRIMINATION CLAIMS
Chapter 21 of the labor code prohibits an employer from refusing to hire an
individual, discharging an individual, or discriminating in any other manner against an individual
in connection with compensation or the terms, conditions, or privileges of employment on the
basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.051.
The TCHRA is modeled on the federal Civil Rights Act of 1991; therefore, Texas
courts follow federal statutes and cases in applying the TCHRA. Quantum Chem. Corp.
v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); Winters v. Chubb & Son, Inc., 132 S.W.3d
568, 574 (Tex. App.--Houston [14th Dist.] 2004, no pet.). "In discrimination cases that have not
been fully tried on the merits, we apply the burden-shifting analysis established by the United States
Supreme Court." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53
(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)).
Under the burden shifting analysis, the plaintiff is first required to present a prima
facie case of discrimination. Winters, 132 S.W.3d at 574. To establish a prima facie case of
employment discrimination based on race, the plaintiff must show that: (1) he was a member of a
protected class, (2) he was qualified for the position, (3) he suffered an adverse employment action,
and (4) non-protected class employees were not treated similarly. McDonnell Douglas Corp.,
411 U.S. at 802; Winters, 132 S.W.3d at 574. The plaintiff's burden of establishing a prima
facie case "is not onerous." Burdine, 450 U.S. at 253. If established, the burden shifts to the
employer to "articulate some legitimate, nondiscriminatory reason" for the unequal treatment.
McDonnell Douglas Corp., 411 U.S. at 802. The employer's offer of a legitimate reason eliminates
the presumption of discrimination created by the plaintiff's prima facie showing. Burdine, 450 U.S.
at 254. At this point, the burden shifts back to the plaintiff to show either (1) the employer's stated
reason was not true, but a pretext for discrimination; or (2) the employer's stated reason, while true,
is only one of the reasons for the conduct and another "motivating factor" is the plaintiff's protected
characteristic. See Rachid v. Jack in the Box, 376 F.3d 305, 312 (5th Cir. 2004).
As noted, Deocariza alleged that he was both denied a promotion and later terminated
on the basis of his race or national origin--specifically, because he is a Pacific Islander. In its
summary-judgment motion, CTCD asserted no-evidence challenges to two elements of Deocariza's
prima facie case in regard to the promotion: (1) whether Deocariza was qualified for the position
to which he sought promotion; and (2) whether CTCD gave preferential treatment to employees
outside the protected class. CTCD similarly challenged the same two elements of Deocariza's prima
facie case in regard to his termination. Furthermore, as to both the failure-to-promote and
termination claims, CTCD asserted, under the traditional summary-judgment standard, that it had
conclusively established legitimate non-discriminatory reasons for its actions.
With the foregoing issues and standards in mind, we turn to the summary-judgment
record. It establishes that Deocariza worked for CTCD as a part-time instructor at its Fort Hood
campus from June 2001 until September 2002, at which point he was hired to be a student
coordinator at CTCD's Gatesville campus. It was from the latter position that Deocariza was
eventually terminated in February 2003.
In approximately July 2002, Deocariza was working as a part-time instructor
at CTCD's Fort Hood campus in the college's Basic Skills Education Program (BSEP). He
applied for a full-time teaching position in the program. Several other candidates also applied
for the position, including John Ingram and James Waters--both Caucasian males--and Marcus
Harris, an African-American male. Deocariza was the only applicant who was a Pacific Islander.
On July 30, 2002, Deocariza received a memorandum from Christy Garner, the director of the BSEP
Program, informing him that he had not been selected to interview for the position. The following
day, Deocariza complained about the decision not to grant him an interview to Garner and to Leo
Welsh, "Director, Human Resource Management." On July 31, Deocariza received a second
memorandum from Garner inviting him to interview for the position.
The interview took place on August 1, 2002, and was conducted by four members of
the selection committee. All four were Caucasian males. Six days after the interview, Deocariza
was informed that Harris, the African-American candidate, had been chosen for the position.
Dissatisfied with the decision to hire Harris, Deocariza submitted a written grievance with CTCD
on September 19, 2002. In it, he stated that he believed he had "been clearly discriminated against
based on Ethnicity, Origin and by Association." He asserted that when he complained to Garner
after his initial exclusion from the pool of interviewees, she told him that his "educational
background did not meet the requirements for the position." He then listed his qualifications, which
according to him, include eighteen years teaching experience in both public and private institutions,
a Bachelor of Science degree in Education, a Masters Degree in Health Care Administration and
38 units towards a Masters of Arts in Education. He added, "I am also tri-lingual in Pilipino,
Spanish, and English. I am a military veteran and am presently in the reserves as [a] Medical
Services Corps officer.[] I could not understand how I was not qualified for this teaching position." After noting that he was given the opportunity to interview after complaining to
Garner and Welsh, he then suggested that the interviewers were biased in favor of Harris. He stated:
[P]rior to the interview I asked Mrs. Garner if she will be one of the interviewers, and
she responded "No," as this would be bias on her part. Unfortunately for me the
interviewers were the "associates" of Mr. Harris. Mr. Harris works part time in the
NCO Leadership School which is where the interviewers were from.
Deocariza also intimated that he was more qualified for the position than Harris, who Deocariza
alleged "does not have a degree in education and does not have 18 years experience in the teaching
field" and "has worked with CTC[D] less than six months."
The day after he filed his grievance, Deocariza met with the dean of CTCD's
Fort Hood campus, James C. Nixon. Nixon documented his account of their discussion in a memo
addressed to Deocariza dated September 23, 2002. In his deposition, Deocariza testified that this
memo reflects an accurate account of his conversation with Nixon. In the memo, Nixon stated that
he and Deocariza "discussed in depth the fact that being qualified for a position does not mean that
the position will be offered to you since everyone who is considered to fill an open position is
qualified. The final selection is made using a two-part system of evaluation and interview." Nixon
stated that he asked Deocariza if he (Deocariza) "really believed that the selection committee agreed
to purposefully and methodically disqualify the white applicants and award the position to the black
applicant" and that Deocariza responded that "such a scenario was not probable and would be hard
to prove." Nixon stated that Deocariza indicated that he (Deocariza) "felt that members of the
selection committee were friends of the selected employee."
Nixon further recounted that he inquired as to what action would assure Deocariza
that Deocariza's grievance had "been properly explored." Deocariza replied that, because the
full-time instructor position was in a higher pay range than his current position, he wanted assurance
that he would be given the next job that became available within the pay range of the full-time
instructor position. Nixon responded "I can assure you that will not happen. You will be fairly
considered for any position for which you apply and that's the only assurance you will be given."
Nixon concluded that he and Deocariza agreed that Nixon would reexamine the selection documents,
interview the selection committee, "and confirm that proper procedure was followed in the
selection process."
In a memo dated September 30, 2002, Nixon informed Welsh that he had met with
Deocariza to discuss the grievance. Nixon stated that he
reviewed the complete process to include a review of the scoring documents and their
results. Further I met with members of the interview committee to explore the claim
that the interviewers were associates of the candidate that had been selected for the
position in question. After a very thorough discussion with the committee members
I am convinced that the claim of "association" is without merit.
After completing my review of the scoring process and the interview process I have
concluded that there are no grounds for grievance.
Nixon observed that, in his view, Deocariza "does not fully understand the selection
process"--believing that "since he meets the qualifications for the position, it should be awarded to
him"--and that Deocariza "fails to acknowledge the qualifications of other applicants." Nixon
concluded that Deocariza "did a poor job of presenting himself in the written portion of the
evaluation, and did not interview very well." In sum, Nixon found that "the entire selection process
was conducted in strict adherence to published policy." He added, "I can find nothing to substantiate
Mr. Deocariza's claim of discrimination."
After applying for and not receiving the full-time instructor position at the Fort Hood
campus, Deocariza applied for a Student Services Coordinator position at CTCD's Gatesville
campus. He was hired for this position on September 3, 2002. On January 4, 2003, Deocariza's
supervisor, Lisa Steele, filled out an employee performance appraisal evaluating Deocariza's
performance during his four month "initial training" period. The appraisal form required the
appraiser to evaluate the employee's performance on six elements: "Job Knowledge," "Quality of
Work," "Quantity of Work," "Initiative," "Dependability," and "Supports Institutional Policies."
For each element the appraiser was to rate the employee on a scale of 1 to 5; where 1 equaled
"Unsatisfactory," 2-- "Marginal," 3--"Satisfactory," 4-- "Above Average," and 5--"Outstanding."
The employee was given an "Overall Evaluation" ranging from "Unsatisfactory" to "Outstanding"
based on the total of the six scores. Steel rated Deocariza's "Job Knowledge" as "Marginal"; his
"Quantity of Work," "Initiative," and "Dependability" as "Satisfactory"; and his support of
"Institutional Policies" as "Above Average." Totaling these six scores, Steele rated Deocariza's
"Overall Evaluation" as "Satisfactory." In the "Comments" section of the evaluation Steele wrote:
"Mr. Deocariza comes to work on time, does not hesitate to work late and has a happy disposition.
He has been diligent in trying to learn the many aspects of his job. He will ask for help when
confronted with a new situation and is quick to correct errors."
Under the heading "Signature of Rater and Date," the performance appraisal is signed
"Lisa S. Steele" and dated January 4, 2003. Deocariza signed the appraisal on a line marked
"signature of employee" and wrote "Jan. 4, 2003" above a line marked "Date discussed with
Employee."
On January 22, 2003, Dean Nixon sent a memo to Steele stating that he had received
Deocariza's performance appraisal and could not "accept it in its current form." He explained:
Specifically, I will need clarification in the areas of Job Knowledge, and Quality of
Work. In the area of Job Knowledge you have assigned a numerical score of "2"
which is a marginal rating, but you have not addressed Mr. Deocariza's Job
Knowledge in your narrative. Secondly, I cannot understand how Mr. Deocariza's
Job Knowledge can be rated marginal with a satisfactory rating in Quality of Work.
Please resolve this inconsistency.
In your scoring and narrative please be thorough and specific. If necessary you may
attach comments to the appraisal form. Dates for the appraisal will remain the same
as the original appraisal.
After receiving Nixon's memo, Steele amended Deocariza's performance appraisal.
Specifically, she changed Deocariza's "Job Knowledge" and "Quality of Work" ratings to
"Unsatisfactory" and his "Initiative" and "Dependability" ratings to "Marginal." Based on the
new total score, she changed the "Overall Evaluation" rating to "Marginal." Steele also attached a
typed three page single-spaced "Evaluation Narrative," in which she gave numerous examples of
problems that she had encountered with Deocariza's job performance. Some of the problems she
described include:
- incorrectly alphabetizing student schedules and misfiling student transcripts;
- mistakenly sending a letter to a student stating that the school had received the student's
transcript when in fact the school had not;
- making mistakes when reading testing instructions to students, "such as the testing location
code, the codes for where to send scores, etc.";
- difficulty using the office computer system to check educational information on students,
despite the fact that "everyone in the office" had shown him how to use it, and that there
were written directions on a piece of paper under the keyboard;
- delivering paperwork to the wrong offices and forgetting things that he was supposed to pick
up; and
- making mistakes when registering students for classes such as signing up a student for two
classes that met at the same time of day, not filling out the registration form correctly, or not
printing out a student data form for a student.
Steele concluded:
There have been many other instances similar to the ones I have related. In my
opinion [Deocariza] has very good intentions, and he wants to be successful at his job
duties. However, he is not making acceptable progress in learning his duties, and I
don't feel confident leaving him to perform his many duties unassisted. After four
months, I am still doing about half his job . . . .
On January 28, 2003, Dean Nixon sent a memo to Welsh stating that he reviewed
Deocariza's performance appraisal and had "adjusted the evaluation from Marginal to
Unsatisfactory." Dean Nixon explained:
This adjustment is based on a thorough and careful assessment of Mr. Deocariza's
performance during the appraisal period. The raters comments and a brief interview
with Mr. Deocariza indicate to me that he is not capable of performing the duties
prescribed to his position. I am particularly concerned that his supervisor has no
confidence in his ability to perform his duties and finds it necessary to do the work
herself. Mr. Deocariza has not demonstrated that he can work efficiently and
accurately without extensive supervision and assistance. To allow him to take over
the duties and responsibilities as Coordinator of Student Services at the Gatesville
site would result in a degradation of service, and have a negative impact on our
program there.
Accordingly I am adjusting his performance appraisal to reflect a rating of
Unsatisfactory and recommending that he be terminated.
Deocariza's employment with CTCD was terminated effective February 14, 2003,
the end of his initial training probationary period.
We turn first to Deocariza's claim of discrimination in failing to promote him to the
full-time instructor position in July 2002. Whether or not Deocariza made out a prima facie case of
discrimination, we agree with CTCD that it has established its entitlement to summary judgment with
regard to legitimate nondiscriminatory reasons for its hiring decision. The undisputed summary
judgment evidence shows that Dean Nixon investigated the entire selection process and found that
it "was conducted in strict adherence to published policy." Nixon concluded that Deocariza was not
selected for the position because he "did a poor job of presenting himself in the written portion of the
evaluation, and did not interview very well." Deocariza has not pointed to any evidence in the record
showing that these legitimate nondiscriminatory explanations were pretextual or that race was a
motivating factor in the decision.
During his deposition, Deocariza explained that he believed he did not get the full-time
instructor position because he "was the only Pacific Islander working at CTC[D] during the time"
or "on that capacity, in that level." When questioned, he was unable to point to anything more
than a personal, subjective belief that he was not promoted because he was a Pacific Islander.
This is insufficient as a matter of law to create a fact issue about whether CTCD's legitimate
non-discriminatory reason for not hiring him is pretextual. See M. D. Anderson Hosp. & Tumor Inst.
v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000). It is also insufficient to create a fact issue about whether
race was a motivating factor in the decision. See Herbert v. City of Forest Hill, 189 S.W.3d
369, 375 (Tex. App.--Fort Worth 2006, no pet.).
As for Deocariza's claim that his race or national origin played a role in the decision
to terminate him from the student coordinator position, we agree with CTCD that Deocariza did not
raise a fact issue with regard to whether CTCD gave preferential treatment to employees outside
Deocariza's protected class, an element of his prima facie case. See Winters, 132 S.W.3d at 574.
Even if Deocariza had overcome this hurdle, we further conclude that CTCD established its
entitlement to summary judgment regarding legitimate nondiscriminatory reasons for terminating him.
Nixon stated that he could not accept Steele's original appraisal of Deocariza's job performance
because there were inconsistencies in the scores and deficiencies in the narrative. Nixon stated that
he lowered Deocariza's performance appraisal to "Unsatisfactory" and recommended that Deocariza
be terminated because the "raters comments and a brief interview with Mr. Deocariza indicate[d] to
me that he is not capable of performing the duties prescribed to his position." Specifically, Nixon
stated that "allow[ing] Deocariza to take over the duties and responsibilities as Coordinator of Student
Services at the Gatesville site would result in a degradation of service, and have a negative impact
on our program there."
Deocariza has not pointed to any evidence to show that Nixon's legitimate
non-discriminatory reasons for instructing Steel to revise her performance appraisal and for ultimately
changing the performance appraisal to "Unsatisfactory" and recommending Deocariza's termination
were pretextual or that race was a motivating factor. Although Deocariza either denied or stated that
he did not recall many of the job performance problems that Steele documented in her narrative
evaluation, he agreed that Steele was a truthful and honest person, and he has not pointed us to
any evidence creating a fact issue that Steele's complaints about his job performance were
pretextual or motivated by race. Unless there is evidence of a discriminatory motive, "a disagreement
between an employer and employee over assessment of job performance is not actionable." Winters,
132 S.W.3d at 578. "Even an incorrect belief that an employee's performance is inadequate
constitutes a legitimate, non-discriminatory reason." Id. (quoting Little v. Republic Refining Co.,
924 F.2d 93, 97 (5th Cir. 1991)). It is not our role in an employment discrimination case "to second
guess every personnel decision." Id. Furthermore, negative employment evaluations are not
considered actionable adverse actions. Id. at 575.
We conclude that the district court did not err in granting summary judgment on
Deocariza's claims that CTCD discriminated against him on the basis of race or national origin.
RETALIATION CLAIM
Under section 21.055 of the labor code, an employer commits an unlawful employment
practice if the employer "retaliates or discriminates against" an employee who "(1) opposes a
discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or
participates in any manner in an investigation, proceeding, or hearing." Tex. Lab. Code Ann.
§ 21.055. To establish a prima facie case of retaliation, an employee must show 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 employment action. Raggs v. Mississippi Power
& Light Co., 278 F.3d 463, 471 (5th Cir. 2002); Marsaglia v. University of Tex., El Paso, 22 S.W.3d
1, 4 (Tex. App.-- El Paso 1999, pet. denied). Once an employee establishes a prima facie case of
retaliation, the burden shifts to the employer, who must rebut the alleged retaliation by showing that
there was a legitimate, non-retaliatory reason for the adverse action. La Tier v. Compaq Computer
Corp., 123 S.W.3d 557, 561 (Tex. App.--San Antonio 2003, no pet.). If a non-retaliatory reason for
the adverse action is established, the burden shifts back to the employee to present evidence
raising a fact issue that without or "but for" the employee's protected activity, the employer's
adverse employment action would not have occurred when it did. Pineda v. United Parcel Serv. Inc.,
360 F.3d 483, 488-89 (5th Cir. 2004). (2)
Deocariza asserts that CTCD retaliated against him for his September 2002
"Grievance" with CTCD or for filing a charge of discrimination with the Texas Commission on
Human Rights in October 2002. He points to the fact that his evaluations were changed during
January 2003 and that he was eventually fired in February. CTCD sought summary judgment on
grounds that there is no evidence of a causal connection between any protected activity and any
adverse employment action, that employment evaluations are not actionable adverse employment
actions, and that CTCD had established legitimate non-retaliatory reasons for terminating Deocariza.
First, we again note that negative performance evaluations are not actionable adverse
employment actions. Winters, 132 S.W.3d at 575. Furthermore, whether or not Deocariza established
a prima facie case of retaliation based on his termination, CTCD has offered legitimate,
non-retaliatory reasons for terminating Deocariza. Deocariza has not pointed to anything in the record
to show that CTCD's proffered reasons were pretextual and that had Deocariza not filed a grievance
with CTCD and a charge of discrimination with the Commission, he would not have received the
negative employment evaluations and been terminated from the position. In short, there is nothing
in the record to suggest that CTCD's actions were undertaken to retaliate against Deocariza for
complaining of the alleged discrimination.
Accordingly, we conclude that the district court did not err in granting summary
judgment on Deocariza's retaliation claim.
CONCLUSION
Because we conclude that the district court properly granted summary judgment as to
all of Deocariza's claims on the grounds discussed above, we need not address the limitations ground
presented in CTCD's summary judgment motion. We affirm the judgment of the district court.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 19, 2008
1. See Trico Techs. Corp v. Montiel, 949 S.W.2d 308, 309-10 (Tex. 1997). Deocariza
acknowledged during his deposition that he had been charged with sexually molesting two teenagers
in California, leading to that state's revocation of his teaching certificate; that he had been fired from
a job in Nebraska for allegedly watching pornographic images on a work computer; that he had
resigned from a job at the Texas Department of Criminal Justice after being disciplined for trying
to have a relationship with a parolee; and that he had been accused of inappropriately touching
students while working at Killeen's Nolan Middle School.
2. We disagree with Deocariza's assertions that the "motivating factor" causation
standard applies to retaliation claims. See Pineda v. United Parcel Serv. Inc., 360 F.3d
483, 488-89 (5th Cir. 2004).