ACCEPTED 13-15-00115-cv THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 12/21/2015 12:00:00 AM Dorian E. Ramirez CLERK
CAUSE NO. 13-15-00115-CV
FILED IN 13th COURT OF APPEALS In the CORPUS CHRISTI/EDINBURG, TEXAS 12/21/2015 8:00:00 AM Thirteenth Court of Appeal DORIAN E. RAMIREZ of Texas Clerk
Corpus Christi-Edinburg
Julie T. Chau, Appellant
v.
Prime Healthcare Services d/b/a Harlingen Medical Center, Appellee
Appellee’s Brief
ROSEMARY CONRAD-SANDOVAL State Bar No. 04709300
ROERIG, OLIVEIRA & FISHER, LLP 10225 N. 10th St. McAllen, Texas 78504 (956) 393-6300 (956) 386-1625 fax
Attorneys for Appellee Prime Healthcare Services d/b/a Harlingen Medical Center TABLE OF CONTENTS
Table of Contents……..…………………………………………………………….i
Index of Authorities .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iii
Statement of the Case .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .1
Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
1. The trial court did not err in granting Harlingen Medical Center’s Second Motion for Summary Judgment because there are no genuine issues of material fact on Plaintiff’s claim for age, national origin, and/or race discrimination, and the hostile work environment claims and Appellee was entitled to Summary Judgment as a matter of law. . . . . . . . . . . . . . .8 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 B. Analysis of Employment Discrimination Claims . . . . . . . . . . . . . . . 8 C. Age Discrimination Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 a.) Appellant has no evidence of age discrimination . . . . . . . . . . . 9 D. Racial National Origin Discrimination . . . . . . . . . . . . . . . . . . . . . . . 9 a.) Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 b.) Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 c.) Stray Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 E. Hostile Work Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 F. Legitimate Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 G. Termination was not Pre-textual . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. The trial court did not err in granting Harlingen Medical Center’s Second Motion for Summary Judgment on the issue of retaliation because there were no genuine issues of material fact and as a result Appellee was entitled to Summary Judgment as a matter of law and the Judgment should be affirmed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 B. Appellant did not engage in a protected activity . . . . . . . . . . . . . . .21 C. No causal connection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 D. Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 i Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ii INDEX OF AUTHORITIES Cases Azubuike v.Fiesta Mart, Inc. ……………………………………………………..21 870 S.W.2d 60, 65 (Tex. App. Houston [14th dist. 1998, no pet.)
Bartosh v. Sam Houston University ………………………………………………15 259 S.W.2d 317, 324 (Tex App Texarkana 2008, pet. denied).
Booker v. City of Austin …………………………………………………………..11 2013 WL 1149559 (Tex. App. Mar. 13, 2013)
Burlington N. & Santa Fe Ry. Co. v. White …………………………………13, 14 548 U.S. 53, 68, 126 S.Ct. 2405, 165 LEd2d 345 (2006)
Cal-Western Packaging Corp., ………………………………………………….19 602 F.3d 374, 379 (5th Cir. 2010)
Caballero v. Central Power & Light, ………………………..………………….9 858 S.W.2d 359, 361 (Tex. 1993).
Chandler v. CSC Applied Technologies LLC ……………………….14, 20, 22, 24 376 S.W.3d 802 (Tex App Houston [1st Dist.] 2012, pet. denied).
Crutcher v. Dallas Indep. Sch. Dist., ………………………………………..….23 410 S.W.3d 487, 498 (Tex. App. – Dallas 2013, no pet.)
Dias v. Goodman Mfg. Co., LP, ………………………………………………..20 214 S.W.3d 672, 676 (Tex. App. – Houston [14th Dist.] 2007, pet. denied.)
Elgahill v. Tarrant County Junior College, …………………………………14, 17 45 S.W.3d 133, 140 (Tex. App. Ft. Worth 2000, pet. denied)
Esparza v. University of Texas El Paso, ……………………………..…………21 2015 WL 4711612
Farrignton v. Sysco Food Services………………………………………..…….24 865 S.W. 2d 247 (Tex.App – Houston [1st Dist.] 1993, writ denied)
Ford Motor Co. v. Ridgeway …………………………………………………....8 - iii - 135 S.W.3d 598, 600 (Tex. 2004).
Greathouse v. Alvin Ind. Sch.Dist………………………….……………………..24 17 S.W 3d, 419, (Tex. App –Houston [1st Dist.] 2000, no pet)
Grimes v. Texas Dept. of Mental Health and Mental Retardation………..………18 102 F.3d 137, 141 (5th Cir. 1996)
Herbert v. City of Forest Hill …………………………………...……………17, 22 189 S.W.3d 369 (Tex. App – Ft Worth, 2006 no pet.)
LeMaire v. Louisiana Dept. of Transp. & Deb. ………………………………….18 480 F.3d 383, 391 (5th Cir. 2007)
Little v. Republic Refining Co., …………………………………………………..17 924 F.2d 93, 97 (5th Cir. 1991)
Mayberry v. Vought Aircraft Co., ……………………………………………….17 55 F.3d 1086, 1091 (5th Cir. 1995)
McDonnell Douglas v. Green; ……………………………………………….9, 10 411 U.S. 792, 802-804; 93 S.Ct. 1817, 36 Led 2d 668 (1973)
Nairn v. Kileen Ind. Sch. Dist ……………………………………………………16 366 S.W.3 229, 245 (Tex. App. El Paso, 2012 no pet).
Niu v. Revcor Molded Products Co., ……………………………………..……..20 206 S.W.3d 723, 731 (Tex. App. Ft. Worth 2006, no pet.)
Okoye v. University of Texas Health Sci. Center …….………………………11, 12 245 F.3d 507, 514 (5th Cir. 2001).
Perez v. Texas Dept of Crim Justice ……………………………………………..11 395 F.3d 206, 210 (5th Cir. 2004)
Provident Life & Accident Ins. Co., v. Knott ………………………………………8 128 S.W.3d 211, 216 (Tex. 2003)
Quantum Chem Corp. v. Toennies ………………………………………………..9 47 S.W.3d 374, 474 (Tex. 2001).
- iv - Reeves v. Sanderson Plumbing Prods., Inc., ……………………………………23 530 U.S. 133, 143 (2000);
Sandstad v. CB Richard Ellis, Inc., ………………………………………………23 309 F.3d 893, 899 (5th Cir. 2002).
Scales v. Slater ……………………………………………………………………17 181 F.3d 703, 709 (5th Cir. 1999)
Schroeder v. Texas Iron Works, …………………………………………………..10 813 S.W.2d 483, 485 (Tex. 1991).
Star Telegram Inc., v. Doe.................................................................................8 915 S.W.2d 471, 472 (Tex. 1995)
Strong v. Univ. Healthcare Sys. LLC, ………………………………………….…24 482 F.3d 802, 808 (5th Cir. 2007)
Univ. of Tex. SW Med. Ctr. v. Nassar, …………………………..………………22 __ U.S. __; 133 S.Ct. 2517; 18 L.Ed.2d 503 (2013).
Waggoner v. City of Garland, ………………………………………………...….14 987 F.2d 1160, 1166 (5th Cir. 1993)
Wallace v. Methodist Hospital System, …………………………………………..11 271 F 3d 221 (5th Cir. 2001);
Walmart Stores v. Canchola, ……………………………………………….……10 121 S.W.3d 735, 739 (Tex. 2003).
Warrick Motiva Enterprises, LLC ………………………………………………21 2014 WL 7405645 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014)
Williams v. Time Warner Operations, Inc. ………………………………………10 98 F.3d 179, 18 (5th Cir. 1996)
Yselta Indep. Sch. Dist. V. Monarrez, …………………………………………….11
-v- 177 S.W.3d 915, 917 (Tex. 2005).
Zuniga v City of San Antonio ………………………………………………..18 2014 WL 60929 (Tex. App. San Antonio January 8, 2014; rev. denied)
STATUTES Tex. Labor Code § 21.051 (TCHRA)…………………………………..………..8 Tex. Labor Code Ann. § 21.055………………………………………………….20 42 U.S.C.A. § 2000e et. seq. ………………………………………………….8, 9
- vi - TO THE HONORABLE COURT OF APPEALS:
Appellee, Prime Healthcare Services d/b/a Harlingen Medical Center
(hereinafter referred to as “Harlingen Medical Center”) files its Reply to
Appellant’s Brief and requests that the Court affirm the trial court’s ruling on the
Motion for Summary Judgment and the corresponding dismissal of the case as all
issues between the parties have been decided. Harlingen Medical Center would
show the Court the following:
STATEMENT OF THE CASE
Appellee would modify the statement of the case presented by Appellee to
reflect that on April 3, 2013, Appellee filed a First Motion for Summary Judgment
following written discovery. (CR 43-84) At that time, no depositions had been
taken. That Motion for Summary Judgment was set for hearing by submission on
May 8, 2013. Appellant did not timely respond to the Motion for Summary
Judgment and filed a Motion for Leave to File Plaintiff’s Response to Defendant’s
Motion for Summary Judgment along with Plaintiff’s proposed response. (CR 89 -
94) The court held a hearing on the Motion for Leave on May 29, 2013. The court
granted Plaintiff’s Motion for Leave to late file her response to the Motion for
Summary Judgment. (CR 95) The case was then set for submission on the
summary judgment on June 10, 2013. Without hearing oral arguments, a visiting
-1- trial court judge denied the Motion for Summary Judgment on September 18,
2013. (CR 88)
-2- ISSUES PRESENTED FOR REVIEW
Reply to Issue 1: The trial court did not err in granting Harlingen Medical Center’s Second Motion for Summary Judgment because there are no genuine issues of material fact on Plaintiff’s claim for age, national origin, and race discrimination, and the hostile work environment claims and Appellee was entitled to Summary Judgment as a matter of law.
Reply to Issue 2: The trial court did not err in granting Harlingen Medical Center’s Motion for Summary Judgment on the issue of retaliation because there were no genuine issues of material fact and as a result Appellee was entitled to Summary Judgment as a matter of law.
-3- STATEMENT OF FACTS
Appellant, Julie Chau, was hired by Elizabeth Izaguirre, Director of ICU
Nursing at Harlingen Medical Center, on September 17, 2010. Ms. Chau
represented herself as being a well-trained, experienced, competent registered
nurse. She was employed a total of 67 days. During this brief tenure, she did not
orient to the department, made multiple performance errors and blamed others for
her shortcomings. After her discharge on November 23, 2010, Ms. Chau claimed
age, race and national origin discrimination. She claimed she was subjected to a
hostile work environment. (CR 68 – 70) The primary focus of her claim lies with a
co-worker, Payton McCloskey, who was assigned as a preceptor to orient Chau to
the hospital policies and procedures. Chau claims that on the first day of her
employment, McCloskey made a comment about Chau’s nationality and reportedly
said she hated Filipinos, even though Chau is not a Filipino. (CR 202) No other
racial remarks were made by McCloskey or anyone else. (CR 218)
During Chau’s first month of employment, McCloskey observed
performance issues which she reported to her supervisor, Elizabeth Izaguirre.
Izaguirre had a meeting with Chau on or about October 21, 2010 and moved Chau
to the day shift. Izaguirre wanted an opportunity to observe Chau herself and
evaluate her performance first hand. During this meeting, for the first time, Chau
expressed dissatisfaction with her preceptor, McCloskey. (CR 185 – 197)
-4- Once moved to day shift, Chau’s performance issues continued. The issues
included pre-charting medication and unsanitary behavior in a patient’s room
reported by a physician. (CR 185 – 199) Due to these problems during her
probationary period, Chau was legitimately terminated from her employment with
Harlingen Medical Center on November 23, 2010. Ms. Chau’s termination was
not motivated by discrimination, harassment or retaliation. The trial court’s ruling
on Appellee’s Second Motion for Summary Judgment is correct and should be
affirmed.
-5- SUMMARY OF THE ARGUMENT
There are no genuine issues of material fact concerning this employment
dispute. The trial court correctly granted Harlingen Medical Center’s Second
Motion for Summary Judgment. Appellant was terminated for legitimate, non-
discriminatory reasons having nothing to do with her age, national origin or race.
Appellant failed to raise a fact issue that Appellee’s reasons for her termination
were pre-textual.
The trial court correctly granted Harlingen Medical Center’s Second Motion
for Summary Judgment on Appellant’s hostile work environment claim. The
complaints Appellant raised concerning her work environment do not rise to the
level of creating a hostile work environment as a matter of law.
The trial court correctly granted Harlingen Medical Center’s Second Motion
for Summary Judgment on Appellant’s claim of retaliation. Appellant did not
make an internal report of discrimination, and even if a comment about her
inability to work with another nurse stated to her supervisor during the course of
being counseled rises to a level of a protected complaint, this had nothing to do
with Chau’s ultimate termination. There was no causal nexus between the two
events.
-6- There were no genuine issues of material fact and Appellant established
entitlement to judgment as a matter of law. The trial court’s judgment should be
-7- ARGUMENT AND AUTHORITIES
Reply to Issue 1: The trial court did not err in granting Harlingen Medical Center’s Summary Judgment because there are no genuine issues of material fact on Plaintiff’s claim for age, national origin, and race discrimination, and hostile work environment claims and Appellee was entitled to Summary Judgment as a matter of law.
A. Standard of Review
When a party moves for summary judgment under both rules 166a(c) and
166a(i), the trial court’s judgment is reviewed under the standards of rule 166a(i).
Ford Motor Co. v. Ridgeway 135 S.W.3d 598, 600 (Tex. 2004). If Appellant failed
to produce more than a scintilla of evidence under that burden then there is no need
to analyze whether Appellee’s summary judgment satisfied the less stringent rule
166a(c).
When the trial Court’s order granting summary judgment does not specify
the ground or grounds relied on for its ruling, Summary Judgment will be affirmed
on appeal if any of the theories advanced are meritorious. Star Telegram Inc., v.
Doe, 915 S.W.2d 471, 472 (Tex. 1995); Provident Life & Accident Ins. Co., v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003)
B. Analysis of Employment Discrimination Claims
It is unlawful to discriminate against a person on the basis of their age, race
or national origin under both Texas and federal law. Texas Commission on Human
Rights Act; Tex. Labor Code § 21.051 (TCHRA); and Title VII Federal Civil Rights
-8- Act of 1964, 42 U.S.C.A. § 2000e et. seq. The Texas legislature patterned the
TCHRA after federal law “for the express purpose of carrying out the policies of
Title VII of the Civil Rights Act of 1964 and its subsequent amendments.
Quantum Chem Corp. v. Toennies 47 S.W.3d 374, 474 (Tex. 2001). Thus, Texas
courts look to both the state statute and cases interpreting the analogous federal
provisions when analyzing claims brought under the TCHRA. Id; Caballero v.
Central Power & Light, 858 S.W.2d 359, 361 (Tex. 1993).
C. Age Discrimination Claim
a.) Appellant has no evidence of age discrimination
Appellant’s counsel virtually conceded at the hearing on December 17,
2014, that he did not have a valid age discrimination claim. (RR p. 14) Other than
announcing the standard and establishing that Julie Chau was 63 years old,
Appellant has produced no evidence of age discrimination. Her own deposition
testimony failed to create a fact issue on this claim. (CR 156 – 157; 221) The trial
court correctly granted appellee’s Second Motion for Summary Judgment on the
age discrimination claim.
D. Racial National Origin Discrimination
a.) The Standard
The well-known burden shifting analysis for employment discrimination
claims was set forth by the United States Supreme Court in McDonnell Douglas v.
-9- Green; 411 U.S. 792, 802-804; 93 S.Ct. 1817, 36 Led 2d 668 (1973) This analysis
is utilized for both Title VII and TCHRA claims. Williams v. Time Warner
Operations, Inc. 98 F.3d 179, 18 (5th Cir. 1996); Schroeder v. Texas Iron Works,
813 S.W.2d 483, 485 (Tex. 1991). Specifically, to establish a prima facie case of
race and/or national origin discrimination, a plaintiff must first establish that she
(1) is a member of a protected class; (2) was qualified for the employment
position; (3) she was subject to an adverse employment decision; and (4) was
replaced by someone outside her protected class or treated less favorably than
similarly situated members of the opposite class. If these criteria are established,
the burden shifts to the defendant to show the termination or adverse employment
decision was legitimate and non-discriminatory. If a legitimate reason for the
adverse employment decision is proffered the burden shifts back to the plaintiff to
establish that the articulated reason was merely a pretext for discrimination.
Ultimately, the plaintiff must establish that her race and/or national original was a
motivating factor in the employment decision. Walmart Stores v. Canchola, 121
S.W.3d 735, 739 (Tex. 2003).
b.) Prima facie case
Appellant did not set forth a prima facie case of race and/or national origin
discrimination because she failed to establish she was replaced by someone outside
the protected class or treated less favorably than a similarly situated member of the
- 10 - opposite class. Here, appellant attempts to establish that she was treated
dissimilarly than a nurse aide named Lily. Lily is not a proper comparator. Lily
was a nurse aide and Appellant a registered nurse. A registered nurse such as Chau
would have the right to direct a nurse aide. (CR 395) If Chau could supervise
Lilly, they are not similarly situated.
The Texas Supreme Court has held that employees are similarly situated “if
their circumstances are comparable in all material respects, including similar
standards, supervisors, and conduct. Yselta Indep. Sch. Dist. V. Monarrez, 177
S.W.3d 915, 917 (Tex. 2005). The question of whether one or more employees are
“similarly situated” should be considered “from the perspective of their employer
at the time of the relevant employment decisions.” Perez v. Texas Dept of Crim
Justice 395 F.3d 206, 210 (5th Cir. 2004) Booker v. City of Austin, 2013 WL
1149559 (Tex. App. Mar. 13, 2013)
In order for Appellant to show disparate treatment, she must demonstrate
that the “misconduct for which she was discharged was nearly identical to that
engaged in by an employee not within her protected class, whom the company
retained”. See Wallace v. Methodist Hospital System, 271 F 3d 221 (5th Cir.
2001); Okoye v. University of Texas Health Sci. Center 245 F.3d 507, 514 (5th Cir.
2001).
- 11 - Appellant complains that Lily asked Chau to assist her in cleaning a patient,
but that Chau was too busy and suggested she seek help from others. Chau was
subsequently blamed for not helping out. McCloskey recalls the incident
differently and documented her recollections in an email to Elizabeth Izaguirre.
(CR 394 – 396; 195); There is a clear difference of opinion as to what occurred
with regard to the incident itself. (Compare CR 298 – 305 and 394 – 399)
Regardless, Appellee would submit it wasn’t the incident as to who should have
done what task for the patient that was necessarily of concern—but Chau’s
reaction to it that caused the “write up”. Lily didn’t engage in a 30 minute tirade
about the incident as Chau did. (CR 195, 398). A nurse aide is not nearly identical
to a Registered Nurse. Their conduct vis-à-vis this incident was not the same.
And, this incident was only one of a number of incidences contributing to the
ultimate employment termination. (CR 188 – 192) In short, there is no
comparison between the two employees. Chau cannot point to an individual with a
different job, different duties and responsibilities as an example of disparate
treatment. See Okoye, supra. Plaintiff has not established a prima facie case of
race and/or national origin discrimination.
c.) Stray Comment
With regard to her race/national origin claim; plaintiff relies almost
exclusively on an alleged comment made by a co-worker about Filipinos on her
- 12 - first day of employment. Specifically, Chau claims her preceptor, Payton
McCloskey stated she didn’t like Filipinos and questioned whether Chau was
Filipino. (CR 202) McCloskey denied making any derogatory comments. No other
nurse or hospital personnel made any comments regarding Chau’s race. (CR 218)
Additionally Chau complains that McCloskey was rude to her, didn’t help her
orient and made her do all the work while McCloskey read books or watched
videos. She also opines that McCloskey’s assessment of her work abilities was in
error. There does appear to have been a conflict between the two nurses.
Appellant contending that she did all the work, while her co-worker Payton
McCloskey was rude, spent her time reading or playing videos and incorrectly
assessed Appellant’s performance. For her part, although McCloskey felt that
Chau didn’t have a good bedside manner and was rough with the patients;
indicating after one incident involving Chau that she herself wanted to be fired
rather than continue to mentor Plaintiff. (CR 231 – 232) McCloskey and Chau
only worked together one month and then had no further interaction. (CR 219 –
220)
On or about October 21, 2010 Appellant was moved to day shift. No other
workers made any comments about her race or national origin and Appellant never
worked with McCloskey again. The sum total of these complaints does not
amount to actionable conduct under Title VII. Burlington N. & Santa Fe Ry. Co. v.
- 13 - White 548 U.S. 53, 68, 126 S.Ct. 2405, 165 LEd2d 345 (2006) (slights or minor
annoyances that often take place at work and that all employees experience . . . . .
personality conflict at work that generate antipathy and snubbing by supervisors
and co-workers are not actionable under the law).
For workplace comments to provide sufficient evidence of discrimination,
the comments must be (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 at issue, and (4) related to the employment decision
at issue. Chandler v. CSC Applied Technologies LLC 376 S.W.3d 802 (Tex App
Houston [1st Dist.] 2012, pet. denied). The remark complained of by Appellee
made on her first day of employment by a co-worker, does not establish
discrimination as a matter of law. First, McCloskey wasn’t a decision maker as it
relates to Chau’s termination. Once Chau moved to day shift they didn’t work
together again. The remark had nothing to do with the ultimate termination
decision. Plaintiff has no evidence that the ultimate decision maker bore any
animus toward her. (CR 222- 224) Indeed, Chau agreed that Izaguirre had not
made any racial or ageist remarks. Stray remarks made in the work place by non-
decision makers are not evidence of the employer’s intent to discriminate.
Elgahill v. Tarrant County Junior College, 45 S.W.3d 133, 140 (Tex. App. Ft.
- 14 - Worth 2000, pet. denied); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th
Cir. 1993) (a mere stray remark is insufficient to establish race discrimination).
E. Hostile Work Environment
Appellant claims direct evidence of hostile work environment based on
national origin based on this same alleged comment by McCloskey inquiring
whether Chau was Filipino and stating she disliked Filipinos. The record shows
that McCloskey worked with Chau for less than a month. At best, Chau can point
to one alleged racial comment on the first day of employment. Other than that,
Chau’s complaints amount to grievances between co-workers such as McCloskey
being critical of her work, and treating her differently than a nurse’s aide.
Although the alleged racial comment was made on her first day of employment,
Chau waited until her performance was being questioned to even raise the subject
with her supervisor. (CR 185 – 186; 214)
A hostile work environment claim entails ongoing harassment based on the
employees protected characteristics so sufficiently severe or pervasive that it has
altered the conditions of employment and created an abusive working environment.
Bartosh v. Sam Houston University 259 S.W.2d 317, 324 (Tex App Texarkana
2008, pet. denied). To establish a prima facie case of hostile work environment
discrimination an employee must establish: (1) she was a member of a protected
group; (2) she was subjected to unwelcome harassment; (3) the harassment
- 15 - complained of was based on the protected characteristic; (4) the harassment
affected a term, condition or privilege of employment and (5) the employer knew
or should have known of the harassment and failed to take remedial action. Nairn
v. Killeen Ind. Sch Dist 366 S.W.3 229, 245 (Tex. App. El Paso, 2012 no pet).
Aside from Appellant being a member of a protected group, none of these elements
are present here. A comment on the first day of employment and apparent
differences of opinion about performance abilities are insufficient to support a
claim of hostile work environment as a matter of law.
F. Legitimate Termination
Assuming arguendo that a prima facie case was established, Appellee
presented ample evidence of a legitimate non-discriminatory reason for
Appellant’s termination. In short, Chau’s performance was inadequate. Appellee
presented affidavit testimony from Chau’s supervisor, Elizabeth Izaguirre, (CR 185
– 197) and another nurse, Ruby Byrd, (CR 199) outlining Chau’s performance
problems. At deposition, McCloskey testified to events she witnessed. (CR 392 –
399) Individually or as a whole; all of these performance problems resulted in
Chau’s termination. Any and all of the performance errors constitute a legitimate
reason for Chau’s termination. Loss of confidence caused by an employee’s job
performance has been held to be a legitimate non-discriminatory reason for
- 16 - termination. Herbert v. City of Forest Hill 189 S.W.3d 369 (Tex. App – Ft Worth,
2006 no pet.)
Chau disagrees that her performance was deficient. Regardless, the question
is whether the employer’s perception of the former employees performance,
accurate or not, was the real reason for her termination. Even an employer’s
incorrect belief that an employee’s performance is inadequate constitutes a
legitimate non-discriminatory basis for the employment decision. Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) citing Little v. Republic
Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
G. Termination was not pre-textual
To establish a fact question on the issue of pretext, the non-movant must
present credible evidence indicating that the non-discriminatory reason given is
false or not credible and the real reason was unlawful discrimination. Elgahill v.
Tarrant County Junior College, 45 S.W.3d 133 (Tex. App Ft. Worth, 2000, pet.
denied) citing Scales v. Slater 181 F.3d 703, 709 (5th Cir. 1999) A plaintiff can
avoid summary judgment on this element if the evidence, taken as a whole, creates
a fact issue as to whether each of the employer’s stated reasons was not what
actually motivated the employer and creates a reasonable inference that national
origin was a determinative factor in the actions the plaintiff is now complaining
- 17 - about. Id., citing Grimes v. Texas Dept. of Mental Health and Mental Retardation,
102 F.3d 137, 141 (5th Cir. 1996)
The issue at the pretext stage is not whether the employer made an erroneous
decision it is whether the decision, even if incorrect, was the real reason for the
employment determination The employer is entitled to be unreasonable so long as
it does not act with discriminatory animus. The job of a reviewing court
conducting a pretext analysis is not to “engage in a second guessing of an
employer’s business decision. LeMaire v. Louisiana Dept. of Transp. & Deb. 480
F.3d 383, 391 (5th Cir. 2007) In order to demonstrate pretext, the plaintiff must do
more than show that the employer made an incorrect decision; she must show that
it made a discriminatory one. Id.
There is no evidence of intentional discrimination in Chau’s termination. By
her own admission, the persons involved in the termination had no discriminatory
animus. They made no racial remarks. (CR 218) Here, plaintiff points to temporal
proximity (however only employed 67 days so everything has temporal proximity
arguably) and her opinion that the performance complaints were “lies”. Zuniga v
City of San Antonio 2014 WL 60929 (Tex. App. San Antonio January 8, 2014; rev.
denied)
Appellant asserts the termination was pre-textual because there is a
discrepancy in the report from the physician as to what date the incident with Chau
- 18 - “picking something from her nose and flicking it in the room” occurred. Appellant
contends it didn’t occur when she was working. As pointed out in Appellee’s
submission; the personnel file shows that while it was reported on November 22,
2010 it was apparently witnessed on Friday, November 19, 2010. (CR 196 – 197,
464).
With regard to the counseling record, plaintiff agreed she had been verbally
counsel led on all areas outlined in the counsel ling and problem solving record.
(CR 471) Finally, the progressive corrective action policy states: “it will
generally be progressive in nature and take the form of verbal or written warning,
suspension or final written warning and discharge. In all cases, the behavior itself
and the severity of the outcome of the behavior shall be taken into account in
determining the appropriate level of corrective action to be imposed. (CR 369) The
verbal counseling was followed by continued lapses and the loss of confidence of a
physician who no longer wanted her working with his patients. (CR 191 – 192)
Such employees cannot continue in a hospital setting.
Poor performance is a legitimate non-pretextual termination reason.
Assertions of innocence do not create a fact issue as the falsity of the reason for
termination. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010)
Importantly, plaintiff does not dispute she pre-charted medication – an arguably
fire-able offense, in and of itself. (CR 468, 398)
- 19 - Reply to Issue 2: The trial court did not err in granting Harlingen Medical Center’s Motion for Summary Judgment on the issue of retaliation because there were no genuine issues of material fact and Appellee was entitled to Summary Judgment as a matter of law.
A. Retaliation
The TCHRA prohibits an employer from retaliating against an employee for
engaging in certain protected activities. Tex. Labor Code Ann. § 21.055. Protected
activities consist of (1) opposing a discriminatory practice; (2) making or filing a
charge; (3) filing a complaint (4) testifying assisting or participating in any manner
in an investigation, proceeding or hearing. Id. Chandler v. CSC Technologies, LLC
376 S.W.3d 802 (Tex. App. – Houston [1st Dist.] 2012, pet. denied). To prevail on
a retaliation cause under this section the plaintiff must establish a prima facie case
showing (1) she engaged in a protected activity; (2) an adverse employment action
occurred; and (3) a causal link between the protected activity and the adverse
employment action. Dias v. Goodman Mfg. Co., LP, 214 S.W.3d 672, 676 (Tex.
App. – Houston [14th Dist.] 2007, pet. denied.) If the employee sets out a prima
facie case, the burden shifts to the employer to establish a legitimate reason for its
employment action. Chandler supra at 822 - 823. However, an employee’s
subjective beliefs of retaliation are only conclusions and do not raise a fact issue
precluding summary judgment on a retaliatory discharge claim. Niu v. Revcor
Molded Products Co., 206 S.W.3d 723, 731 (Tex. App. Ft. Worth 2006, no pet.)
- 20 - B. Appellant did not engage in a protected activity
When being counseled about her poor performance, Appellant chose to raise
a complaint about a co-worker. (CR 185 – 186) She did not complain about
discrimination, harassment or a hostile work environment. She had a personality
conflict with a co-worker. Complaints about an inability to work with a co-worker
is not a “protected activity” within the meaning of the statute.
The employee must put the employer on notice that the employee is
opposing practices that she believes constitute prohibited discrimination. Esparza
v. University of Texas El Paso, 2015 WL 4711612, citing Warrick Motiva
Enterprises, LLC 2014 WL 7405645 (Tex. App. – Houston [1st Dist.] Dec. 30,
2014) (not designated for publication). A vague charge of discrimination will not
invoke protection under the statute. Azubuike v. Fiesta Mart, Inc. 870 S.W.2d 60,
65 (Tex. App. Houston [14th dist. 1998, no pet.) Even if Appellant’s complaint
about McCloskey were considered protected activity, it had nothing to do with
Chau’s termination. She was not able to perform the demanding tasks necessary
for an ICU nurse.
C. No causal connection
Assuming arguendo, that Chau’s “internal complaint” is considered a
protected activity, it was clearly not the basis for her termination. There is no
causal connection between this complaint and her ultimate termination.
- 21 - Plaintiff ignores the fact that whether she raised an internal complaint or not;
whether that was protected activity or not; she no longer worked with McCloskey
and her performance did not improve. Moreover, even if allegations regarding
McCloskey’s race based comments are true – McCloskey was not a decision maker
when it came to employment decisions.
A plaintiff asserting a retaliation claim must establish that, in the absence of
his protected activity the employer’s prohibited conduct would not have occurred
when it did. Chandler v. CSC Technologies at 823 citing Herbert v. City of Forest
Hill. In other words, the plaintiff must establish a “but for” causal nexus between
the protected activity and the prohibited conduct. Id.; See also, Univ. of Tex. SW
Med. Ctr. v. Nassar, __ U.S. __; 133 S.Ct. 2517; 18 L.Ed.2d 503 (2013).
Considering the ongoing performance problems documented by Elizabeth
Izaguirre, (CR 185 – 197) including the pre-charting incident (CR 199, 468) and
the fact that appellee had lost the confidence of a physician at the hospital (CR 197
and 469) – all of which were post working with McCloskey -- the record
establishes that Chau’s termination was not retaliatory; but rather a legitimate
business decision.
D. Pretext
To raise a fact issue on the pretext element of a retaliation claim, the
employee must present evidence proving the reasons stated by the employer were
- 22 - not its true reasons, but were a pretext for retaliation, or the reasons were not
credible. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000); Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 498 (Tex. App. –
Dallas 2013, no pet.) An employer is entitled to judgment as a matter of law if the
record conclusively establishes some another non-retaliatory reason for the
employer’s decision, or if the plaintiff creates 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 retaliation occurred. See Reeves, 530
U.S. at 148. The issue at the pretext stage is not whether the employer made an
erroneous decision; it is whether the decision, even if incorrect, was the real reason
for the employment determination. Sandstad v. CB Richard Ellis, Inc., 309 F.3d
893, 899 (5th Cir. 2002). The employer “is entitled to be unreasonable so long as it
does not act with discriminatory animus.” Id. It is the employee’s burden to
proffer evidence creating a fact issue regarding reasonableness. Id.
The record is full of evidence of plaintiff’s deficient performance. Other
than announcing it couldn’t be true, Chau has presented no evidence of falsity.
Indeed, Appellee presented evidence of performance problems at other hospitals
that Chau worked at besides Harlingen Medical (CR 238 - 260). Appellant has
presented only subjective beliefs to support her claim of pretext. This is not
enough under the law to survive summary judgment. Chandler v. CSC Applied
- 23 - Technologies, LLC 376 S.W.3d 802, 823, (Tex. App. – Houston [1st Dist.] 2012,
pet. denied); See also, Greathouse v. Alvin Ind. School Dist. 17 S.W.3d 419 (Tex.
App. – Houston [1st Dist.] 2000, no pet.) citing Farrington v. Sysco Food Services,
Inc. 865 S.W.2d 247, 251(Tex. App. – Houston [1st Dist.] 1993, writ denied)
(conclusory allegation, improbable inferences, unsupportable speculation or
subjective beliefs and feelings are insufficient to maintain a cause of action under
the TCHRA).
Chau complains that she didn’t receive the written complaint and did not
receive “progressive discipline”. She was verbally counseled regarding everything
in the written complaint and conceded as much. (CR 471) The progressive
discipline policy does not require progressive discipline in every case. It sets forth
a general policy; subject to the needs of the hospital.
While there was a “temporal proximity” between the two events; one must
not lose sight of the fact that Appellant was only employed 67 days. Temporal
proximity alone is not sufficient to prove a causal connection. Strong v. Univ.
Healthcare Sys. LLC, 482 F.3d 802, 808 (5th Cir. 2007) Everything that occurred
in this short period of time was proximate in time. Importantly, when Elizabeth
Izaguirre hired Appellant she was 63 and Vietnamese. When Elizabeth Izaguirre
fired Appellant she was 63 and Vietnamese. Harlingen Medical Center did not
- 24 - have any discriminatory animus towards Appellant. She was terminated for
legitimate, non-retaliatory reasons.
CONCLUSION
There are no issues of material fact concerning Appellant’s employment
discrimination claims. She was terminated for legitimate, non-discriminatory, non-
retaliatory reasons. There is no evidence the reasons presented were pre-textual or
an effort to intentionally discriminate. The trial court’s ruling on Harlingen
Medical Center’s Second Motion for Summary Judgment should be affirmed.
- 25 - PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee, Harlingen Medical
Center prays that the Court affirm the trial Court’s order. Harlingen Medical
Center prays that the Court award them the costs of this appeal and all further and
other relief to which it is entitled.
Respectfully submitted,
ROERIG, OLIVEIRA & FISHER, L.L.P. 10225 N. 10th St. McAllen, Texas 78504 (956) 393-6300 (956) 386-1625 (facsimile)
By: /s/ Rosemary Conrad-Sandoval Rosemary Conrad-Sandoval State Bar No. 04709300
ATTORNEY FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all counsel of record on this the 19th day of December, 2015.
R. Chris Pittard FORTE & PITTARD, PLLC 1777 NE Loop 410, Suite 610 San Antonio, Texas 78217
/s/ Rosemary Conrad-Sandoval Rosemary Conrad-Sandoval
- 26 -