Willrich v. M.D. Anderson Hospital & Tumor Institute ( 1999 )

Dissenting Opinion by

Justice DORSEY.

Because I do not find that Willrich has raised a genuine issue of fact concerning whether M.D. Anderson terminated him because of his race, I dissent. Once M.D. Anderson articulated a legitimate nondiscriminatory reason for Willrich’s termination, the burden shifted to Willrich to present evidence which raised a genuine issue of material fact regarding whether M.D. Anderson’s reason was a mere pretext for discrimination. I do not believe that Willrich met this burden.

Willrich failed to respond to M.D. Anderson’s motion for summary judgment. Thus, the scope of this court’s review is limited. While a party is not required to respond to a motion for summary judgment, failure to respond limits the issues the nonresponding party can raise on appeal if summary judgment is granted. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex.1998); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex.1979). An issue not presented in a response to a motion for summary judgment cannot later be raised on appeal. Kelley-Coppedge, Inc., 980 S.W.2d at 467; McConnell, 858 S.W.2d at 343; Clear Creek Basin Auth., 589 S.W.2d at 676. Neither the trial court nor the court of appeals has the duty to sift through the summary judgment record to see if there are other issues of law or fact that could have been raised by the non-movant in response but were not. McCord v. Memorial Med. Center Hosp., 750 S.W.2d 362, 364 (Tex.App.—Corpus Christi 1988, no writ).

Summary judgments must stand or fall on their own merits, and the nonmovant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right. Clear Creek Basin, 589 S.W.2d at 678. Still, when a party fails to respond to a summary judgment, the only issue he may raise on appeal is the legal sufficiency of the motion for summary judgment and the supporting proof. See McConnell, 858 S.W.2d at 343; Clear Creek Basin, 589 S.W.2d at 678. The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden to: (1) establish as a matter of law that there remains no genuine issue of material fact as to one or more essential elements of the plaintiffs cause of action, or (2) establish his affirmative defense to the plaintiffs cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Still, all reasonable inferences must be drawn in favor of the plaintiff, and evidence favorable to him must be taken as true. Nixon, 690 S.W.2d at 549.

Thus, in order to defeat M.D. Anderson’s summary judgment, Willrich would have been required to point to a genuine issue of material fact on the question of whether M.D. Anderson’s articulated nondiseriminatory reasons for firing him were a mere pretext. Assuming Will-rich made out his prima facie case of discrimination, the burden shifted to M.D. Anderson to articulate a legitimate nondiscriminatory reason for Willrich’s termination. When M.D. Anderson articulated its reason in its motion for summary judgment, the presumption of discrimination raised by Willrich’s prima fade case was rebutted and dropped from the case. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). At this point the burden shifted to Willrich to prove that M.D. Anderson’s proffered reason was a pretext for discriminatory conduct. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Willrich could have met this burden by either proving that a discriminatory reason more likely motivated M.D. Anderson in terminating Willrich or by showing that M.D. Anderson’s proffered reason was unworthy of credence. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The ultimate burden of showing that M.D. Anderson engaged in intentionally discriminatory conduct remained at all times with Willrich. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

I find no genuine issue of material fact regarding whether M.D. Anderson’s reasons were pretextual. Willrich was hired as a Utilities Station Operator by M.D. Anderson in 1981. During the course of his fourteen year career with M.D. Anderson, he claims he was subjected to five or six occasions where co-workers made racial slurs which he alleges amounted to racial discrimination. Willrich made formal complaints about the slurs a couple of times, and M.D. Anderson responded appropriately. Willrich also contends that in 1995 he was fired because of his race. M.D. Anderson responded to Willrich in its motion for summary judgment by articulating a legitimate nondiseriminatory reason for terminating Willrich.

In support of its motion, M.D. Anderson offered the affidavit of Howard W. Stanford, Director of the Research and Education Facilities. Stanford testified in his affidavit that Willrich had lost his job pursuant to a reduction-in-force (RIF) at the Facilities Management Division which affected thirty-five employees. The purpose of the RIF was to streamline the division and save money. In conducting the RIF, a panel consisting of six directors was appointed to devise a reorganization plan. Stanford served as one of these directors. Under the reorganization plan, all current positions were eliminated and an entirely new organization was created with new positions.

The panel then staffed the new organization based on the personnel files of existing employees. Consideration was given to experience, education, evaluations, performance, disciplinary record and the preference forms submitted by each employee. Rather than selecting employees to terminate, the panel staffed the newly created positions by using the personnel files of existing employees. The employees not placed after all the newly created positions were filled were subject to termination.

The staffing decisions were made during a two-day selection process. None of Will-rich’s current or former supervisors had any input into the selection process, and none of the panel members knew him. The directors were not allowed to inquire about employees during the selection process. Stanford states that Willrich was terminated because his former position was completely eliminated from the organization, and he was not selected for a position in the new organization because he was not the most qualified candidate for the three positions he listed on his preference form, all of which were night positions. Night positions were the least available, according to Stanford.

M.D. Anderson also attached to its summary judgment motion its April 1995 Reduction-in-Force Policy, which detailed the company’s plan for implementation of fair RIF plans that ensure retention of the most effective employees and that all termination decisions are made without regard to race, color, national origin, religion, sex, age, veteran’s status or disability. Unlike the majority, I find no irregularity in the implementation of the RIF policy that undermines the credibility of M.D. Anderson’s articulated nondiscriminatory reasons for terminating Willrich that raise a genuine issue of material fact. The RIF policy states that factors to be considered in determining whether an employee would be displaced under a reduction-in-force were past job performance, anticipated future job performance, and, in cases where those things were equal between employees in the same position, seniority.

Willrich’s termination fell under section 2(b) of the company RIF policy, which states that if a position is eliminated that is currently filled, the employee “falls under the provision of the RIF policy and will be eligible to receive notice in accordance with the Supplemental Notice Policy.” The policy requires that the responsible manager submit a written statement of the rationale for and impact of the planned reduction-in-force on each employee to be displaced. Also, the RIF policy provided a mandatory fourteen (14) day notice to displaced employees. Importantly, the policy expressly provided that:

[E]mployees terminated as a result of a RIF will have no displacement (‘bumping’) or reassignment rights into any other position. RIF’ed employees, who are otherwise eligible, may post and compete for other positions within the organization. RIF’ed employees have no rights to reinstatement or recall for any position, at any time.

M.D. Anderson also attached a memo from William Daigneau, Associate Vice President and Chief Facilities Officer, which advised the affected employees that their division had been restructured and instructed them to review the new organizational structure and descriptions of new positions. Then, Daigneau asked the employees to assess their own skills and interests in light of the newly created positions and their requirements, and to choose their top three preferred positions. The employees were given the opportunity to discuss with the director of each department or with Daigneau himself any aspect of a position and its responsibilities. Daig-neau’s reason for giving the employees the opportunity to place them preferences into the selection process was because he was “convinced” after the reorganization that “it was best to extend participation in the redesign by allowing every member of [the] organization to determine how they, individually, might contribute to the organization of the future.”

The memo outlined certain rules and procedures for submitting employees’ preferences:

First, if you are applying for a position outside your current classification, you must fill out and send in the attached application along with your preference form. All requests for promotions or classification changes will be made based on a review of the qualifications of all those applying for a particular position. Second, you must choose at least one position in your current classification as one of your preferences, if one exists.

Willrich’s completed preference form was also attached to M.D. Anderson’s motion.

Another informational letter distributed to all employees affected by the reorganization was attached to M.D. Anderson’s motion which emphasized the procedures they should follow in selecting their preferences. This document states that “preferences will be carefully considered and weighted [sic] against departmental needs. However it is possible that you will be selected for a position other than your preferences. It is also possible that you may not be selected for any position.” While this form does state that failure to return a preference form may result in an employee being placed in any position that needs to be filled, it also expressly notes that “Muring the reorganization, some current positions will be eliminated while new positions will be created. Therefore, in all likelihood, some employees will be RIF’d while there may also be new hires.”

By letter dated August 2, 1995, M.D. Anderson notified Wilkich that his position had been eliminated pursuant to the reduction in force. WilMeh admitted in his deposition, made a part of M.D. Anderson’s summary judgment evidence, that he did not know who made the decision to terminate him or how that decision was made. I find that Willrich’s evidence that he was terminated due to race amounts to nothing more than his own subjective beliefs. In Rios v. Texas Commerce Bancshares, this court held that where a plaintiff did not produce any evidence that the employer’s motive was discriminatory other than his own “subjective beliefs,” he could not survive summary judgment. 930 S.W.2d 809, 818 (Tex.App.—Corpus Christi 1996, writ denied). Both federal and state courts have uniformly held that a mere showing of “subjective beliefs” of discrimination is insufficient for a plaintiff to survive summary judgment. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.1996); Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1166 (5th Cir.1993); Montgomery v. Trinity Indep. Sch. Dist., 809 F.2d 1058, 1061 (5th Cir.1987); Sherrod v. Sears, Roebuck & Co., 785 F.2d 1312, 1315-16 (5th Cir.1986); Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir.1985); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 64 (Tex.App.—Houston [14th Dist.] 1998, no pet. h.); Rios, 930 S.W.2d at 818; Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 251 (Tex.App.—Houston [1st Dist.] 1993, writ denied). I do not find any evidence upon which a rational juror could base an inference that M.D. Anderson terminated Willrich due to his race.

Further, by not responding to M.D. Anderson’s motion for summary judgment, Willrich failed to present the issue of pretext to this court. When a defendant in an employment discrimination case brings forth summary judgment evidence of a legitimate non-discriminatory reason for the adverse job action, the plaintiff can survive summary judgment by raising a fact issue that the stated reason was a mere pretext for discrimination. Because Willrich failed to respond to the motion, though, he did not raise the issue of pretext. Therefore, this court is not permitted to reverse the summary judgment on the basis that M.D. Anderson’s articulated reason is a mere pretext. Thus, I would uphold the summary judgment granted in favor of M.D. Anderson.