REVERSE and REMAND; and Opinion Filed July 15, 2014.
S Court of Appeals In The
Fifth District of Texas at Dallas No. 05-12-01654-CV
JOHN STILLWELL, Appellant V. HALFF ASSOCIATES, INC. AND DIANNE POPKEN, Appellees
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-01050
MEMORANDUM OPINION Before Chief Justice Wright and Justices Moseley and Richter 1 Opinion by Justice Richter John L. Stillwell appeals from a summary judgment granted in favor of Halff Associates,
Inc. and Dianne Popken in his wrongful termination lawsuit. On appeal, Stillwell contends the
trial court erred in granting summary judgment and in overruling his objections to Halff’s
summary judgment evidence. Concluding that fact issues exist, we reverse the trial court’s
judgment and remand this case to the trial court.
Background
In August of 2003, Halff hired Stillwell as a professional engineer. Stillwell was 50
years old when he was hired. Popken was his immediate supervisor for the duration of his
employment at Halff. Stillwell was an experienced engineer and became a project manager.
1 The Hon. Martin Richter, Justice, Assigned. As a project manager, Stillwell was required to manage the time utilized to complete his
projects. Stillwell worked with several Engineers-in-Training (EITs). In 2005, Stillwell began
complaining to Popken about the work ethic of three of the EITs. Each of these EITs was under
the age of forty. Specifically, Stillwell complained that they did not work full days and
improperly billed time on projects that he managed. In response, Popken reminded employees to
record their time accurately.
In 2008, the amount of Halff’s future expected work dropped significantly. As a result,
Halff laid off approximately thirty employees in the summer of 2008. In May of 2009, as a
result of the continued decline in future expected work, Halff laid off another sixty employees,
including Stillwell. Of these sixty employees, twenty-three were over the age of forty.
At the time of his termination, Stillwell was involved with nineteen projects. These
projects required from six months to one year to complete. Following the termination of his
employment, Stillwell filed a complaint with the Equal Employment Opportunity Commission
alleging that he was terminated because of his age and retaliated against. The EEOC found no
cause to believe any discrimination or retaliation had occurred and issued its right to sue letter.
Stillwell sued Halff and Popken alleging unlawful termination, hostile work environment,
and retaliation. The trial court granted the motion for summary judgment filed by Halff and
Popken. This appeal timely followed.
Standard of Review
Halff sought summary judgment on both traditional and no-evidence grounds. The
standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). The movant has the burden of showing
that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c). For a defendant to prevail on a traditional motion for summary
–2– judgment, he must either disprove at least one element of the plaintiff's claim as a matter of law,
or conclusively establish all elements of an affirmative defense. Kalyanaram v. Univ. of Tex.
Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied). We review a no-evidence
summary judgment under the same legal sufficiency standard used to review a directed verdict.
See TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet.
denied). Thus, we must determine whether the nonmovant produced more than a scintilla of
probative evidence to raise a genuine issue of material fact on the challenged element or
elements. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In conducting
our no-evidence summary judgment review, we review the evidence in the light most favorable
to the nonmovant, credit evidence favorable to that party if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). More than a scintilla of evidence exists when reasonable and fair-
minded individuals could differ in their conclusions. King Ranch, 118 S.W.3d at 751.
Age Discrimination
In his first amended petition, Stillwell alleged causes of action against Halff and Popken
for wrongful termination, hostile work environment, and retaliation. At oral argument, counsel
for Stillwell conceded that his claims against Popken should be dismissed and that the claim of
hostile work environment has been waived. Accordingly, we address only Stillwell’s claims for
wrongful termination and retaliation against Halff.
Stillwell alleged that Halff discriminated against him on the basis of his age when it
terminated his employment. Under the Texas Commission on Human Rights Act, an employer
commits an unlawful employment practice, if the employer discharges a person because of race,
color, disability, religion, sex, national origin, or age. See TEX. LAB. CODE ANN. § 21.051 (West
2006). Texas courts look to federal interpretation of analogous federal statutes for guidance
–3– because an express purpose of Chapter 21 is to “provide for the execution of the policies of Title
VII of the Civil Rights Act of 1964 and its subsequent amendments.” TEX. LAB. CODE ANN.
§ 21.001(1) (West 2006).
A claim for age discrimination, consists of four elements: (1) the plaintiff is a member of
the protected class; (2) the plaintiff was discharged; (3) the plaintiff was qualified for the
position from which he was discharged; (4) the plaintiff was replaced by someone outside the
protected class or was otherwise discharged because of his age. Russo v. Smith Int’l, Inc., 93
S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The protected class in an
age discrimination suit is restricted to people forty years of age or older. TEX. LAB. CODE ANN.
§ 21.101 (West 2006). Because plaintiffs in a workforce reduction case are laid off and
frequently unable to prove the replacement element, the Fifth Circuit requires direct or
circumstantial evidence from which a fact finder might reasonably conclude that the employer
intended to discriminate in reaching the decision at issue. Nichols v. Loral Vought Sys. Corp., 81
F.3d 38, 41 (5th Cir. 1996).
Under the burden-shifting framework established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-06, 93 S. Ct. 1817, 1824–26, 36 L. Ed.
668 (1973), the plaintiff must first establish a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If the plaintiff is successful, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
Id. The burden then shifts back to the plaintiff to show that the employer’s reason was a pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825-26. Proof that a
defendant’s explanation is not credible is one form of circumstantial evidence that is probative of
intentional discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147,
120 S. Ct. 2097, 2108, 147 L. Ed. 105 (2000).
–4– Stillwell made the initial showing that he was a member of a protected class, he was
discharged, and he was otherwise qualified for the position. Thus, the burden shifted to Halff to
demonstrate a legitimate, nondiscriminatory reason for Stillwell’s termination. See McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.
Halff moved for summary judgment on Stillwell’s claim of age discrimination on the
grounds that Stillwell could not overcome the nondiscriminatory reason that it needed to reduce
the number of its employees and that there was no evidence that age was a motivating factor in
his termination. To support its grounds for summary judgment, Halff relied upon, among other
things, Stillwell’s deposition testimony and the affidavits of Popken and Joni Caldwell.
Joni Caldwell has been the Human Resources Director at Halff since 2007. In her
affidavit, she stated that, as result of the downturn in the economy, Halff laid off thirty
employees in 2008. In May of 2009, Halff laid off an additional sixty employees, including
Stillwell, due to the continued drop in the company’s backlog or the amount of expected future
work. Caldwell stated the terminated employees were selected based on their performance and
their potential for contribution to the company. She further stated that Halff did not hire anyone
to replace Stillwell. She stated that Halff did not terminate Stillwell because of his age or
because he complained about the younger EITs.
Popken stated in her affidavit that she made the decision to hire Stillwell and that she was
his immediate supervisor while he was employed at Halff. Popken confirmed that beginning in
2005, Stillwell began complaining about the work ethic of three of the EITs. He complained that
these individuals came in late, chatted in their cubicles, and may have been improperly billing
time on certain projects. In response, Popken reminded the employees that they were to record
their time accurately. Like Caldwell, Popken testified to the economic downturn and the backlog
it created for Halff. TxDOT and NTTA ceased soliciting proposals for new projects. According
–5– to Popken, “NTTA placed all of its projects with Halff on hold at this time, including those
previously awarded to Halff.” Notably, on page 30 of the motion for summary judgment, Halff
referred to NTTA’s decision as “NTTA’s hold on his future expected projects.” (Emphasis
added). Popken testified that this decision by NTTA directly affected the expected work of
Stillwell. Like Caldwell, Popken stated that neither Stillwell’s age nor his complaints regarding
the EITs was a factor in terminating his employment.
Halff also attached excerpts from Stillwell’s deposition to support its motion. Stillwell
testified that during the period of time when he complained to Popken about the work ethic of
the EITs, he continued to receive raises and bonuses. He said Popken essentially ignored his
complaints.
Through its summary judgment evidence, Halff presented as its nondiscriminatory reason
for its decision to terminate Stillwell’s employment that the downturn in the economy forced it to
reduce the number of its employees. Thus, the burden shifted back to Stillwell to show that
Halff’s stated reason was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804,
93 S. Ct. at 1826-27.
Stillwell filed a response to Halff’s motion for summary judgment and as support relied
upon his own affidavit and the deposition testimony of both Caldwell and Popken. Stillwell
stated in his affidavit that, at the time of his termination, he was working on nineteen projects
that required an additional six months to one-year to complete. Moreover, in contrast to
Popken’s testimony that the NTTA and TxDOT projects had been placed on hold, Stillwell
testified that at the time of his termination, he was still working on both projects and they were
ongoing.
In determining whether Stillwell’s summary judgment evidence was sufficient to refute
Halff’s nondiscriminatory explanation, we find the United States Supreme Court’s opinion in
–6– Reeves instructive. See Reeves, 530 U.S. at 133, 120 S. Ct. at 2097. Roger Reeves was a
supervisor at Sanderson Plumbing Products, Inc. (Sanderson). Part of his duties included
recording the attendance and hours of the employees under his supervision. Reeves, 530 U.S. at
137, 120 S. Ct. at 2103. Russell Caldwell, the manager in Reeves’ department notified Powe
Chesnut, the company’s director of manufacturing that production was down because employees
were frequently absent, arrived late, or left early. Reeves, 530 U.S. at 137-08, 120 S. Ct. at 2103.
Because the monthly attendance reports did not show any problem, Sanderson ordered an audit.
The audit revealed numerous timekeeping errors and other misrepresentations by Reeves,
another supervisor, and Caldwell. Sanderson fired Reeves and the other supervisor. At the time
of his termination, Reeves was fifty-seven years old.
Reeves sued Sanderson alleging he was fired because of his age. Reeves, 530 U.S. at
138, 120 S. Ct. at 2103. At trial, Sanderson contended that it fired Reeves because he failed to
maintain accurate attendance records. Reeves, 530 U.S. at 138, 120 S. Ct. at 2103-04. To
support its nondiscriminatory explanation, Sanderson presented evidence that, as a result of an
audit in 1993, Reeves was placed on ninety days probation for poor performance and an
investigation in 1995 showed that Reeves was not accurately recording employees’ absences and
hours and that Reeves failed to discipline the absent and tardy employees. Reeves, 530 U.S. at
143-44, 120 S. Ct. at 2106-07.
To dispute Sanderson’s nondiscriminatory explanation, Reeves presented evidence
showing that the timekeeping errors referred to by Sanderson involved employees who were not
marked late but who were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift.
These employees were counted late because they were not at their workstations at 7 a.m. Reeves
also testified that the automated timeclock frequently failed to scan employees’ timecards so the
timesheets would not record any arrival times. When this occurred, Reeves would visually check
–7– the workstations and record whether the employees were present. Reeves also presented
evidence that it was not his responsibility to discipline employees for violations. Finally, Reeves
testified that when he was fired, Chesnut stated it was because Reeves had failed to report an
employee as absent on two days in September of 1995. Reeves countered with evidence that on
those two days, he had been in the hospital and, thus, not at work. Reeves, 530 U.S. at 145, 120
S. Ct. at 2107. Reeves also introduced evidence that Chesnut had made age-based derogatory
comments toward him. Reeves, 530 U.S. at 138, 120 S. Ct. at 2104. The case was tried to a jury
and the trial court rendered judgment in favor of Reeves in accordance with the jury’s verdict.
Reeves, 530 U.S. at 139, 120 S. Ct. at 2104
The court of appeals reversed holding that Reeves failed to introduce sufficient evidence
to sustain the jury finding of unlawful discrimination. Id. The court of appeals reasoned that,
although Reeves may have offered sufficient evidence for a reasonable jury to find that
Sanderson’s explanation for its decision to terminate Reeves was pretextual, such evidence was
not dispositive of the ultimate issue of whether Reeves’ age motivated the decision. Id.
The Supreme Court framed the issue as to whether a plaintiff’s prima facie case of
discrimination, combined with sufficient evidence for a reasonable trier of fact to reject the
employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of
liability for intentional discrimination. Reeves, 530 U.S. at 140, 120 S. Ct. at 2104. The
Supreme Court held that it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation. Reeves, 530 U.S. at 147, 120 S.
Ct. at 2108. In reversing the court of appeals, the Supreme Court held that Reeves’ evidence of
the falsity of Sanderson’s explanation was sufficient for the jury to infer liability. Reeves, 530
U.S. at 149, 120 S. Ct. at 2109.
–8– Unlike a jury verdict in Reeves, this case involves a summary judgment. If it is
permissible for a jury to infer unlawful discrimination from evidence of the falsity of the
employer’s explanation, we hold summary judgment is improper where a plaintiff raises a fact
issue as to the veracity of the employer’s explanation.
In her deposition, Popken testified that Halff chose to terminate employees based on their
potential value to the firm and their ability to perform work remaining to be done. She further
testified that NTTA and TxDOT “had put work on hold.” In her affidavit attached to Halff’s
motion for summary judgment, Popken stated that Halff selected the terminated employees based
on their past performance and their potential for future contribution to the company. She further
stated: “NTTA placed all of its projects with Halff on hold at this time, including those
previously awarded to Halff. NTTA’s decision to place its projects on hold directly affected the
expected work for Mr. Stillwell.”
In her deposition, Popken testified that Stillwell’s experience as an electrical engineer
could be used outside the context of the NTTA and TxDOT work. When asked if, at the time of
his termination, Stillwell had any projects that he was working on that had to be given to other
people to complete, Popken replied, “I don’t think so.”
The summary judgment evidence shows conflicting evidence as to whether NTTA and
TxDOT had placed their current projects on hold or whether they were ongoing. Popken was
unaware that Stillwell had numerous other projects he was working on in addition to the NTTA
and TxDOT projects. He testified that these projects required an additional six months to one
year to complete. We conclude Stillwell presented sufficient evidence as to the falsity of Halff’s
explanation to raise a fact issue precluding summary judgment on his age discrimination claim.
–9– Retaliation
Stillwell also contends the trial court erred in granting summary judgment on his
retaliation claim. It is unlawful for an employer to retaliate against a person 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. See TEX. LAB. CODE
ANN. § 21.055 (West 2006). To establish a prima facie case of retaliation, a plaintiff must show
that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action
against him; and (3) a causal link existed between the protected activity and the adverse
employment action. Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004). To
satisfy the causation requirement for a prima facie case of retaliation, a plaintiff must establish
that without the protected activity, the employee’s prohibited conduct would not have occurred
when it did. Id.
As with an age discrimination claim, if a plaintiff meets the burden to establish a prima
facie case of retaliation, the burden shifts to the defendant to demonstrate a legitimate,
nondiscriminatory purpose for the adverse employment action. Id. The plaintiff then assumes
the burden to present proof that the stated reason was pretextual. Id.
Circumstantial evidence sufficient to show a causal link between an adverse employment
decision and the filing of a discrimination charge or suit may include (1) the employer’s failure
to follow its usual policy and procedures in carrying out the challenged employment actions; (2)
discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the
discrimination charge or suit by those making the adverse employment decision; (4) evidence
that the stated reason for the adverse employment decision was false; and (5) the temporal
proximity between the employee’s conduct and discharge. Green v. Lowe’s Home Ctrs., Inc.,
199 S.W.3d 514, 519 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
–10– Stillwell contends his complaints regarding the engineers in training constituted a
protected activity. Opposition to a discriminatory practice is a protected activity. See City of
Waco v. Lopez, 259 S.W.3d 147, 151 (Tex. 2008).
Halff moved for summary judgment on Stillwell’s retaliation claims on the following
four grounds: (1) Stillwell did not engage in a protected activity; (2) even assuming his
complaints about the younger workers were a protected activity, there was no nexus between the
complaints and his termination; (3) Stillwell cannot overcome the proffered nondiscriminatory
reasons for his termination; and (4) there was no evidence his alleged protected activity was a
motivating factor in the termination of his employment. We have already held that Stillwell
raised a fact issue as to the veracity of Halff’s nondiscriminatory reason.
Stillwell testified that for several years he complained to Popken regarding the work ethic
of the three EITs under his supervision. His complaints included falsifying timesheets, chatting
in their cubicles, arriving late, and not requiring them to work past 5:00 p.m. Stillwell attached
as an exhibit to his affidavit, a typed general statement that was part of his EEOC Intake
Questionnaire. In that statement, he provided detailed information regarding a meeting held on
May 4, 2009, three days prior to his termination. Present at this meeting were Popken, N.
Bradstreet, and himself. Stillwell stated the following:
N. Bradstreet maintained that there needed to be [sic] way of “compensating” herself and the other EITs and Designers, and insisted that it was o.k. to charge time to all of the projects in the MEP Department, even though there was no actual work done on those projects, “because the projects belonged to the whole group.” J. Stillwell disagreed, and stated that it was a lie, dishonest, against company policy and illegal to do this, and that there would be no way to accurately track projects or accountability on any project if N. Bradstreet, B. Brla, V. Ruder and N. Hearn actually did this.
Halff contends that the alleged protected activity was objectively unreasonable because it
was wholly unrelated to any alleged unlawful employment practice. We disagree. Company
policy required that all Halff employees were required to record their time worked accurately. –11– Stillwell complained to Halff numerous times that three of the EITs were not recording their time
accurately and that they were not being held to comply with Hallf’s policies that applied to all of
its employees. Three days prior to his termination, Stillwell complained to Popken that allowing
the EITs to record time not actually worked was “a lie, dishonest, against company policy and
illegal.” Popken participated in the decision to terminate Stillwell. We conclude this evidence is
sufficient to raise a fact issue as to whether retaliation was a factor in Halff’s decision to
terminate Stillwell’s employment.
We sustain Stillwell’s issue. We reverse the trial court’s judgment and remand this case
to the trial court. 2
/Martin Richter/ MARTIN RICHTER JUSTICE, ASSIGNED
121654F.P05
2 Having concluded that appellant raised fact issues precluding summary judgment, we need not address his contention that the trial court erred in overruling his objections to Halff’s summary judgment evidence.
–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN STILLWELL, Appellant On Appeal from the 298th Judicial District Court, Dallas County, Texas. No. 05-12-01654-CV V. Trial Court Cause No. DC-10-01050. Opinion delivered by Justice Richter. Chief HALFF ASSOCIATES, INC. AND Justice Wright and Justice Moseley, DIANE POPKEN, Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant JOHN STILLWELL recover his costs of this appeal from appellees HALFF ASSOCIATES, INC. and DIANE POPKEN.
Judgment entered this 15th day of July, 2014.
–13–