UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50588 SUMMARY CALENDAR
ANTONIO VILLARREAL, JR.,
Plaintiff-Appellant,
v.
HORIZON/CMS HEALTHCARE CORPORATION, a.k.a. HORIZON SPECIALTY HOSPITAL,
Defendant-Appellee
Appeal from the decision of the United States District Court for the Western District of Texas (SA-97-CV-267)
December 30, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:1
Following his discharge from Horizon/CMS Healthcare
Corporation (“Horizon”), Antonio Villarreal, Jr., a Hispanic male,
filed suit in the Western District of Texas, claiming national
origin and gender discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Texas
Commission on Human Rights Act, Tex. Lab. Code Ann. §§ 21.051,
21.2585, and 21.259. The district court, partially adopting the
1 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
1 report and recommendation of the magistrate judge, granted
Horizon’s motion for summary judgment on both claims. Villarreal
timely appealed this judgment.
I.INTRODUCTION
Villarreal was employed by Horizon as a respiratory
therapist. While checking on a patient at Horizon, Villarreal
noticed that Ms. Robbins, the other patient in the room, was
cyanotic. Upon recognizing the emergency, Horizon’s emergency
procedures required Villarreal to “[d]etermine the absence of pulse
and/or respirations an[d] the code status of the patient.” The
undisputed evidence shows that Villarreal did not check the
patient’s pulse or respirations. Instead, he sought to determine
the code status of the patient -- i.e., whether the patient desired
to be resuscitated or not in the event of respiratory or cardiac
distress. After making inquiries with Torrez, Nurse Evangelista
and Nurse Martinez, over the course of several minutes, Villarreal
finally discovered that the patient was a “full code,”2 not a
“DNR.”3 Yet, even after pushing a crash cart to the patient’s
room, Villarreal admits that he did not stay to assist in
resuscitation efforts.
Following an internal investigation, Horizon discharged
Villarreal for failing to respond appropriately to an emergency
situation. Although the district court found that Horizon’s code
2 In other words, the hospital staff should have immediately sought to revive the patient. 3 Do not resuscitate.
2 policy was potentially ambiguous, universal standards of care still
require that if a therapist, such a Villarreal, finds a patient in
need of assistance and the patient’s code status is unknown, then
the therapist should call a “Code Blue” and initiate CPR.4 Thus,
although Villarreal may not have violated the arguably ambiguous
hospital code policy, the district court recognized that Horizon
terminated Villarreal based on his overall inappropriate response
to the emergency situation, not merely for his breach of hospital
policy.
II.ANALYSIS
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards as
the district court. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 205 (5th Cir. 1998). Summary judgment is appropriate
when, viewing the evidence in the light most favorable to the
nonmoving party, the record reflects that no genuine issue of
material fact exists, and the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-24, 106 S. Ct. 2548, 2552-53 (1986); see also Fed. R. Civ. P.
56(c).
4 In his deposition, Villarreal admitted that under universal standards of care, “if you’re in doubt about a patient’s status -- DNR status, you should start a [C]ode [B]lue.”
3 Villarreal has asserted that Horizon violated Title VII5
because he was subjected to disparate treatment, i.e. discharge,
based on the manner in which Horizon disciplined similarly situated
non-Hispanic, non-male employees involved in the care of Ms.
Robbins.
In order to establish his Title VII claim, Villarreal
must prove that Horizon treated other non-male, non-Hispanic
employees in “nearly identical circumstances” preferentially based
on a discriminatory motive. Little v. Republic Ref. Co., 924 F.2d
93, 97 (5th Cir. 1991); see also Davin v. Delta Air Lines, Inc.,
678 F.2d 567, 570 (5th Cir. Unit B 1982). Under the burden
shifting analysis set forth in McDonnell Douglas Corp. v. Green,
Villarreal must initially submit sufficient evidence to prove: (1)
he is a member of a protected class, (2) he was qualified for the
position he held, and (3) his employer treated him differently with
respect to his “compensation, terms, conditions, or privileges of
employment”6 than other employees in “nearly identical
5 Finding the legal analysis under Title VII similar to that employed under the Texas Commission on Human Rights Act, the district court dismissed Villarreal’s causes of action under Texas state law. On appeal, however, Villarreal does not challenge the district court’s dismissal of his state law claim, arguing the merits of his Title VII cause of action instead. See American States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (“Failure to provide any legal or factual analysis of an issue results in waiver.”). Regardless, the legal analysis employed under the state statute is the same as Title VII. See Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 90 (Tex. 1995) (applying Title VII burden shifting analysis to disability discrimination claim under the Texas Commission on Human Rights Act). 6 Under Title VII, an employer may not
discriminate against any individual with respect to his
4 circumstances.”7 411 U.S. 792, 802, 802 n.13, 93 S. Ct. 1817, 1824
n.13 (1973); see also Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-60, 101 S. Ct. 1089, 1093-97 (1981) (explaining
McDonnell Douglas burden shifting analysis).
When the plaintiff successfully sets forth his prima
facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions.
See Burdine, 450 U.S. at 254-56, 101 S. Ct. at 1094-95; McDonnell
Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824. Once articulated,
the presumption of discrimination established by the plaintiff’s
prima facie case is rebutted, and the plaintiff must show that the
articulated reason is merely a pretext for unlawful discrimination.
See Bodenheimer v. PPG Indus., Inc., 5 F.3d. 955, 957 (5th Cir.
1993). To prove pretext, the plaintiff must show by a
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-50588 SUMMARY CALENDAR
ANTONIO VILLARREAL, JR.,
Plaintiff-Appellant,
v.
HORIZON/CMS HEALTHCARE CORPORATION, a.k.a. HORIZON SPECIALTY HOSPITAL,
Defendant-Appellee
Appeal from the decision of the United States District Court for the Western District of Texas (SA-97-CV-267)
December 30, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:1
Following his discharge from Horizon/CMS Healthcare
Corporation (“Horizon”), Antonio Villarreal, Jr., a Hispanic male,
filed suit in the Western District of Texas, claiming national
origin and gender discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Texas
Commission on Human Rights Act, Tex. Lab. Code Ann. §§ 21.051,
21.2585, and 21.259. The district court, partially adopting the
1 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
1 report and recommendation of the magistrate judge, granted
Horizon’s motion for summary judgment on both claims. Villarreal
timely appealed this judgment.
I.INTRODUCTION
Villarreal was employed by Horizon as a respiratory
therapist. While checking on a patient at Horizon, Villarreal
noticed that Ms. Robbins, the other patient in the room, was
cyanotic. Upon recognizing the emergency, Horizon’s emergency
procedures required Villarreal to “[d]etermine the absence of pulse
and/or respirations an[d] the code status of the patient.” The
undisputed evidence shows that Villarreal did not check the
patient’s pulse or respirations. Instead, he sought to determine
the code status of the patient -- i.e., whether the patient desired
to be resuscitated or not in the event of respiratory or cardiac
distress. After making inquiries with Torrez, Nurse Evangelista
and Nurse Martinez, over the course of several minutes, Villarreal
finally discovered that the patient was a “full code,”2 not a
“DNR.”3 Yet, even after pushing a crash cart to the patient’s
room, Villarreal admits that he did not stay to assist in
resuscitation efforts.
Following an internal investigation, Horizon discharged
Villarreal for failing to respond appropriately to an emergency
situation. Although the district court found that Horizon’s code
2 In other words, the hospital staff should have immediately sought to revive the patient. 3 Do not resuscitate.
2 policy was potentially ambiguous, universal standards of care still
require that if a therapist, such a Villarreal, finds a patient in
need of assistance and the patient’s code status is unknown, then
the therapist should call a “Code Blue” and initiate CPR.4 Thus,
although Villarreal may not have violated the arguably ambiguous
hospital code policy, the district court recognized that Horizon
terminated Villarreal based on his overall inappropriate response
to the emergency situation, not merely for his breach of hospital
policy.
II.ANALYSIS
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards as
the district court. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 205 (5th Cir. 1998). Summary judgment is appropriate
when, viewing the evidence in the light most favorable to the
nonmoving party, the record reflects that no genuine issue of
material fact exists, and the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-24, 106 S. Ct. 2548, 2552-53 (1986); see also Fed. R. Civ. P.
56(c).
4 In his deposition, Villarreal admitted that under universal standards of care, “if you’re in doubt about a patient’s status -- DNR status, you should start a [C]ode [B]lue.”
3 Villarreal has asserted that Horizon violated Title VII5
because he was subjected to disparate treatment, i.e. discharge,
based on the manner in which Horizon disciplined similarly situated
non-Hispanic, non-male employees involved in the care of Ms.
Robbins.
In order to establish his Title VII claim, Villarreal
must prove that Horizon treated other non-male, non-Hispanic
employees in “nearly identical circumstances” preferentially based
on a discriminatory motive. Little v. Republic Ref. Co., 924 F.2d
93, 97 (5th Cir. 1991); see also Davin v. Delta Air Lines, Inc.,
678 F.2d 567, 570 (5th Cir. Unit B 1982). Under the burden
shifting analysis set forth in McDonnell Douglas Corp. v. Green,
Villarreal must initially submit sufficient evidence to prove: (1)
he is a member of a protected class, (2) he was qualified for the
position he held, and (3) his employer treated him differently with
respect to his “compensation, terms, conditions, or privileges of
employment”6 than other employees in “nearly identical
5 Finding the legal analysis under Title VII similar to that employed under the Texas Commission on Human Rights Act, the district court dismissed Villarreal’s causes of action under Texas state law. On appeal, however, Villarreal does not challenge the district court’s dismissal of his state law claim, arguing the merits of his Title VII cause of action instead. See American States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998) (“Failure to provide any legal or factual analysis of an issue results in waiver.”). Regardless, the legal analysis employed under the state statute is the same as Title VII. See Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 90 (Tex. 1995) (applying Title VII burden shifting analysis to disability discrimination claim under the Texas Commission on Human Rights Act). 6 Under Title VII, an employer may not
discriminate against any individual with respect to his
4 circumstances.”7 411 U.S. 792, 802, 802 n.13, 93 S. Ct. 1817, 1824
n.13 (1973); see also Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-60, 101 S. Ct. 1089, 1093-97 (1981) (explaining
McDonnell Douglas burden shifting analysis).
When the plaintiff successfully sets forth his prima
facie case, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions.
See Burdine, 450 U.S. at 254-56, 101 S. Ct. at 1094-95; McDonnell
Douglas, 411 U.S. at 802-03, 93 S. Ct. at 1824. Once articulated,
the presumption of discrimination established by the plaintiff’s
prima facie case is rebutted, and the plaintiff must show that the
articulated reason is merely a pretext for unlawful discrimination.
See Bodenheimer v. PPG Indus., Inc., 5 F.3d. 955, 957 (5th Cir.
1993). To prove pretext, the plaintiff must show by a
preponderance of the evidence that the employer’s articulated
reason is both false and that discrimination was the actual reason
for the discharge. See Walton v. Bisco Indus., Inc., 119 F.3d 368,
370 (5th Cir. 1997) (citing St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993)). Villarreal can
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or . . . classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee. . . .
42 U.S.C. § 2000e-2(a). 7 See Davin, 678 F.2d at 570 (applying McDonnell Douglas analysis to Title VII disparate treatment claim).
5 neither establish a prima facie claim of disparate treatment nor
prove that Horizon’s asserted reason for his dismissal was a
pretext for discriminatory conduct.
Villarreal is unable to show that any employees in
“nearly identical circumstances” were not discharged by Horizon.
Each employee who failed to respond adequately to the patient’s
emergency -- Rosemary Martinez, a Hispanic woman, Andrew Torrez, a
Hispanic male, and Villarreal -- was discharged by Horizon. While
Armida Evangelista and Gaye Padayao, two Filipino nurses, were
retained by the hospital following a reprimand, the undisputed
evidence clearly shows that their response to the patient’s
emergency was sufficiently dissimilar to warrant different
disciplinary treatment. Nurse Evangelista did not have the same
knowledge of Ms. Robbins’s condition and was not presented with the
same opportunity to call Code Blue, because Villarreal and Torrez
only told her to check Ms. Robbins’s feeding tube, while Nurse
Padeyo immediately began emergency procedures when she saw Ms.
Robbins. Cf. Nieto v. L & H Packing Co., 108 F.3d 621, 623 (5th
Cir. 1997) (rejecting disparate treatment claim when company
disciplined Hispanic differently from white because their degree of
participation in single incident was dissimilar).
Assuming, arguendo, that Villarreal could establish his
prima facie Title VII case, Horizon has articulated a legitimate,
nondiscriminatory reason for his discharge -- poor performance
during an emergency. Villarreal maintains, however, that Horizon’s
asserted reason is a pretext designed to conceal the true,
6 discriminatory basis for his discharge. Even if this were true,
Villarreal would still be unable to carry the ultimate burden of
proof that his discharge was motivated by intentional gender or
national origin discrimination. See Walton, 119 F.3d at 370
(citing St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S. Ct. at
2752). Villarreal offers only conclusory allegations and
subjective beliefs to support his claim of discrimination. These
are insufficient. See Elliott v. Group Med. & Surgical Serv., 714
F.2d 556, 567 (5th Cir. 1983) (citing Houser v. Sears, Roebuck &
Co., 627 F.2d 756, 758-59 (5th Cir. 1980)).
III.CONCLUSION
Villarreal has offered no evidence directly or indirectly
suggesting that his discharge was motivated by national origin or
gender discrimination. As Horizon asserted, Villarreal’s disregard
for the welfare of a patient under his care ultimately resulted in
his discharge. In fact, a Hispanic male was hired to replace him.
Cf. Nieto, 108 F.3d at 624 (replacing employee with individual of
similar protected class evidence of lack of discriminatory intent).
Under these circumstances, Villarreal cannot support a Title VII
claim.
AFFIRMED.