Shedrick Chandler v. CSC Appied Technologies, L. L .C. , 2012 Tex. App. LEXIS 5688 ( 2012 )

Opinion issued July 12, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00667-CV
———————————
SHEDRICK CHANDLER, Appellant
V.
CSC APPLIED TECHNOLOGIES, LLC, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2008-57092
OPINION
Shedrick Chandler sued his former employer, CSC Applied Technologies,
LLC (“CSC”), for race discrimination and retaliation under the Texas Commission
on Human Rights Act (“TCHRA”). CSC moved for both traditional and no-
evidence summary judgment and raised numerous objections to Chandler’s
summary judgment evidence. The trial court sustained seventy-four of CSC’s
objections and ultimately rendered summary judgment in favor of CSC. In three
issues, Chandler contends that the trial court (1) erroneously rendered summary
judgment on his race-discrimination claim because he raised genuine issues of
material fact on each element challenged by CSC; (2) erroneously rendered
summary judgment on his retaliation claim because he raised fact issues on each
element challenged by CSC; and (3) erroneously sustained CSC’s objections to his
summary judgment evidence;
We affirm.
Background
Chandler, an African-American, began working for CSC, a company that
“provides aerospace and aviation maintenance and modification service programs
to several clients,” in 1994. Throughout his thirteen years of employment with
CSC, Chandler worked as an electrician and avionics technician on several
different types of aircraft, including temporary assignments to the WB-57 aircraft.
While Chandler was employed at CSC, two opportunities arose for
employees to accompany the WB-57 aircraft to Afghanistan. Due to the danger of
traveling to Afghanistan, and pursuant to its collective bargaining agreement, CSC
management first asked the technicians specifically assigned to the WB-57 unit if
2
they wished to go on the trip, and it then looked for qualified volunteers outside of
the WB-57 unit if not enough personnel within the unit volunteered. Management
then compiled a “trip list” of qualified personnel to consider before making the
final selections.
Chandler, who had experience working on the WB-57, sought to be placed
on the trip list as an alternate avionics technician. CSC management ultimately
chose two Caucasian technicians, Bill Hughey and Jeff Geoff, as alternates for the
2007 Afghanistan trip.1 Chandler believed that he was qualified to accompany the
WB-57, and he complained on several occasions to various supervisory and
management employees at CSC that he believed he should be included as an
alternate on the trip list. Chandler admitted during his deposition that, although he
complained about not being included on the trip list, he never informed anyone at
CSC that he believed he was not included on the list because of his race.
On Friday, June 22, 2007, Stephen Armstrong, the supervisor of CSC’s
engine shop, was working as the acting supervisor of the avionics shop, which was
Chandler’s unit. He received a call from CSC Maintenance Control requesting that
an avionics employee work overtime on Saturday, June 23, beginning at 7:30 a.m.
as “engineering support” for the WB-57. Pursuant to CSC rules and strict union
1
CSC did not finalize the 2007 trip list until after Chandler’s employment with
CSC had ended; however, it is undisputed that CSC management had not included
Chandler on the list of potential alternates for the trip.
3
protocols, Armstrong consulted the avionics shop’s “overtime list,” which must be
consulted each time an overtime opportunity arises, and he ultimately called
Chandler and asked him if he could work overtime on Saturday. Armstrong
informed Chandler that he needed to be at CSC at 7:30 a.m. and that he would
work an eight or ten hour shift. Chandler agreed to work the overtime.
On June 23, Chandler arrived at CSC and clocked in shortly after 5:00 a.m.,
which he believed was proper according to Armstrong’s instructions. Due to a
prior engagement, Chandler informed Jack McGee, the WB-57 crew leader, that he
needed to leave at 1:00 p.m. He did not inform a supervisor that he was leaving at
that time. Chandler did not believe that this qualified as “leaving early” because,
since he had arrived at 5:00 a.m., he had worked a full eight-hour shift. According
to Chandler, during the course of his work on the WB-57 that Saturday, David
Lanmon, the supervisor of the WB-57 program, handed him four engineering work
orders and told him, “Be prepared to work the weekend, and do not work over 12
hours a day.” Chandler determined that the work orders were “not a one-day
project,” so he continued to work overtime on the WB-57 until he finished the
work orders, coordinating with the regular members of the WB-57 crew regarding
when they would arrive at work each day. On Monday, June 25, Lanmon
specifically asked Chandler how much time he needed to finish the work orders.
Chandler estimated that he would be finished by Tuesday, June 26, at the latest,
4
and he indeed finished working on the WB-57 on that date before returning to his
usual job in the avionics shop.
That week, Jackie Lankford, the Support Shops Manager, contacted Robert
Payne, the Program Manager of CSC’s NASA Aviation Services, regarding
concerns that Chandler had worked unauthorized overtime. On June 30, Payne
held an “investigatory meeting” with Chandler, along with Richard Philips, the
Chief Union Steward, Patrick Bousley, Director of Maintenance, Lankford, Heidi
Ruby, Division Contract Administration Manager, and Jose O’Campo, Chandler’s
supervisor. According to Chandler, Chandler informed Payne that Armstrong told
him to arrive at 5:00 a.m. on Saturday; that he then called David Wyckoff, an
avionics technician on the WB-57, who told him that he would arrive at 5:30 a.m.
on Saturday; and that Lanmon told him to “be prepared to work the weekend” in
order to finish the engineering work orders he had given Chandler. Chandler
stated that no one told him that he was not supposed to work on the WB-57 on
Sunday, Monday, and Tuesday.
After this meeting, Payne spoke to Lanmon and received written statements
from Armstrong, Lankford, and Wyckoff. Lanmon and Armstrong denied
authorizing Chandler to work overtime on the WB-57 for any day other than
Saturday, June 23. Wyckoff stated that he did not work that weekend, and he
5
denied speaking with Chandler regarding what time Chandler should arrive on
Saturday.
After concluding the investigation, Payne and Ruby made the decision to
terminate Chandler’s employment with CSC on August 9, 2007, due to his actions
involving the unauthorized overtime. Chandler was terminated for violating two of
CSC’s workplace rules, both of which require termination on the first offense:
(1) “Falsification of personnel or other Company or contract related records,” and
(2) “Deliberate falsification of facts to management or similar form of dishonesty.”
After obtaining a “Notice of Right to File a Civil Action” from the Texas
Workforce Commission, Chandler filed suit against CSC on September 26, 2008,
and asserted claims of race discrimination and retaliation. Specifically, Chandler
alleged that CSC discriminated against him based on his race when it (1) refused to
include him on the Afghanistan trip list and (2) terminated his employment.
Chandler alleged that CSC retaliated against him for complaining to management
about not being included on the Afghanistan trip list by terminating his
employment.
CSC moved for both traditional and no-evidence summary judgment. In its
no-evidence motion regarding Chandler’s race discrimination claims, CSC
contended that Chandler could present no evidence that (1) similarly situated non-
protected class members were treated differently, (2) CSC’s articulated reasons for
6
its employment decisions were false, or (3) racial discrimination was the real
reason CSC made these particular employment decisions. Regarding Chandler’s
retaliation claim, CSC contended that Chandler could present no evidence that
(1) he engaged in a protected activity, (2) a causal link existed between the alleged
protected activity and the adverse action of Chandler’s termination, (3) he would
not have been terminated but for his alleged complaints of discrimination, and
(4) CSC’s articulated reason for its actions was a pretext for unlawful retaliation.
In its traditional summary judgment motion, CSC asserted that it did not
include Chandler on the Afghanistan trip list because “Chandler did not have the
necessary knowledge and skills for the tasks and challenges he could potentially
face on the trip, including how to fix certain problems, such as the auto pilot and
radar, on the WB-57 aircraft.” CSC argued that Chandler could only speculate
regarding the qualifications of the individuals chosen as alternates on the trip list,
and he “has no firsthand knowledge of the breadth of their experience.”
CSC also asserted that it terminated Chandler based on his actions involving
the unauthorized overtime and his two workplace rule violations, both of which
required termination on the first offense. CSC argued that it “had a good faith
belief that Mr. Chandler worked unauthorized overtime and was untruthful in his
attempt to provide justification for the hours he worked during the week of June
23, 2007.” CSC further argued that its reasons for terminating Chandler were
7
“honest and legitimate,” based on Chandler’s inconsistent and contradictory
excuses for his actions and the statements from Armstrong, Lanmon, Lankford,
and Wyckoff, all of which contradicted Chandler’s explanation of events. CSC
also contended that Chandler could not establish that a fact issue existed regarding
whether CSC unlawfully terminated Chandler based on his race because he could
not point to any non-protected class members who engaged in the same rule
violations and were not terminated.
Regarding Chandler’s retaliation claim, CSC argued that Chandler could not
establish that he engaged in a protected activity, because although he testified in
his deposition that he complained to management that he was not included on the
Afghanistan trip list, he did not complain that he believed he was not included
because of his race. CSC also argued that Chandler could not establish a causal
link between any protected activity and his termination because the two events
were not temporally proximate, and Chandler could present no evidence that Payne
and Ruby, the decision makers regarding the termination, had any knowledge that
Chandler had complained about racial discrimination regarding the trip list. CSC
contended that it would have terminated Chandler regardless of any complaints he
made about the trip list because of his unauthorized overtime violations, which
required termination on the first offense.
8
As summary judgment evidence, CSC attached the affidavit of Robert
Payne—which included the statements of Lankford, Armstrong, and Wyckoff
relating to the overtime investigation—excerpts from Chandler’s deposition, and
affidavits from Armstrong and Lanmon.
Payne averred that, occasionally, aircraft serviced by CSC are deployed to
Afghanistan, and CSC must send a team of qualified employees to assist. CSC’s
collective bargaining agreement first requires it to request volunteers from the
particular unit normally assigned to the aircraft and then allows CSC either to
require low-seniority employees within the unit to go on the trip or to seek
qualified volunteers from outside of the unit. For the second Afghanistan trip,
Payne was required to look outside of the WB-57 unit for alternate technicians. He
did not include Chandler on the trip list because Chandler “did not have the
knowledge and skills required to handle certain problems that may arise on the
WB-57 aircraft, including problems with the aircraft auto pilot and radar.” Payne
averred that Chandler never complained to him that he felt discriminated against
based on his race for not being included on the trip list.
Payne further averred that, in late June 2007, Lankford approached him and
informed him that he believed the hours recorded on Chandler’s time card were
inaccurate. Payne held an investigatory meeting on June 30, 2007, to allow
Chandler to explain his hours and his conduct. During the meeting, Chandler
9
offered four different explanations for why he arrived at 5:00 a.m. on Saturday,
June 23, to begin work, including explaining that Armstrong told him to be there at
5:30 and that Chandler called Wyckoff to ask what time he was arriving at work
and he said 5:30.2 Due to the conflicting explanations, Payne believed Chandler
was not being truthful. Chandler admitted to Payne that he left work at 1:00 on
Saturday without informing Armstrong or Lanmon, although he did obtain
permission from Jack McGee, the WB-57 crew leader, who had no authorization to
allow employees to leave early. Chandler also admitted that a supervisor did not
instruct him to report to the WB-57 unit on Monday and Tuesday. Payne averred
that during the investigation, he met with Armstrong, Lankford, Wyckoff, and
Lanmon, all of whom contradicted Chandler’s version of events.
Payne held a second meeting on August 9, 2007, at which he informed
Chandler that CSC determined that Chandler had worked unauthorized overtime
and then “supplied the Company with false information in his attempt to justify his
actions.” Payne provided Chandler another opportunity to explain, and Chandler
repeated that he worked the overtime because Lanmon told him to “be prepared to
work the weekend.” Payne averred that Chandler then admitted that he “did not
have authority to work the overtime in question, and he had scheduled himself on
2
In his statement generated during the investigation, Wyckoff stated that he was not
working on this particular weekend and he “did not ask or tell [Chandler] to come
in at 0500.”
10
his own.” Payne gave Chandler a written letter of discharge, informing him of
why CSC was terminating his employment.
Included with Payne’s affidavit was a statement from Lankford dated June
29, 2007. Lankford stated that he reviewed the time sheets on Monday, June 25,
and he noticed that Chandler had failed to clock out on Saturday when he left,
which is not unusual for CSC employees, and he had then worked until Sunday
evening. Because Lankford “[knew] that [Chandler] was not scheduled to work
Sunday,” he contacted Lanmon, who confirmed that he had not scheduled
Chandler to work overtime on Sunday. On Tuesday, Lankford discovered that
Chandler was still working on the WB-57, so he told Lanmon to tell Chandler to
return to the avionics shop. Upon his return to the avionics shop, Chandler told
Armstrong that he had worked Sunday because Lanmon wanted him to do so.
Lankford noted that Chandler worked overtime on the WB-57 on Saturday through
Tuesday, even though he was only officially scheduled for Saturday.
CSC also included the affidavits of Armstrong and Lanmon. Armstrong
averred that he explicitly told Chandler that the engineer who would be working on
the WB-57 on Saturday did not want to start before 7:30 a.m. He also stated that
he did not give Chandler authority to work overtime on Sunday through Tuesday.
Lanmon averred that after Chandler left work on Saturday, he “did not want or
need Mr. Chandler to come back to work on the 990 WB-57 aircraft.” He also
11
stated that he did not directly speak to Chandler about overtime, and he did not
give Chandler authority to work overtime on the WB-57 on Monday and Tuesday.
When Lanmon saw Chandler working on the WB-57 on Monday and Tuesday, he
“assumed [Chandler] had been sent there by the direction of his supervisor or
Maintenance Control.”
In his summary judgment response, Chandler argued that CSC’s stated
reasons for not including him on the Afghanistan trip list and for terminating his
employment were merely pretexts for racial discrimination and retaliation. As
summary judgment evidence, Chandler attached his own deposition, as well as the
depositions of Dave Canales, a Hispanic avionics technician for the WB-57 unit,
Ricardo Hayes, an African-American egress technician, Armstrong, and Lanmon.
Canales testified generally about the work requirements and procedures at
CSC, promotions, the Afghanistan trip lists, overtime, and the treatment of
minority employees at CSC. Canales testified that he had worked with Chandler
on the WB-57 and that Chandler had “several years of . . . engineering work order
installation procedure [experience] on the WB-57.” Canales was a “designated
system inspector” for the WB-57, and he stated that Chandler was a “very good
technician.” Canales testified that CSC chose two Caucasian avionics technicians
as alternates for the Afghanistan trip, “even though neither one of those [workers]
had worked on the aircraft as much as [Chandler] had” and even though one of the
12
chosen workers had less seniority than Chandler.3 Canales believed that Chandler
was the most qualified employee for the alternate position. Chandler spoke with
Canales about his frustrations and informed him that he tried to speak with several
individuals in management to see if he could be included on the trip list. Canales
testified that he thought Chandler was not included because of his race.
Canales estimated that ninety percent of the management at CSC is
Caucasian. Canales testified that several coworkers, including two supervisors and
a union steward, used to refer to Chandler by a derogatory, race-based nickname
and would ridicule his allegedly poor spelling by posting his written reports on a
bulletin board. Canales also testified that it could be hazardous to one’s career to
complain at CSC, and those who complained about how they were treated could be
moved to other locations. Canales stated that, in his particular unit, the workload
was “dumped on” the four non-Caucasians and that Caucasian employees could
come to work intoxicated, could leave work early, and could “goof off” at work by
playing video games and suffer no disciplinary repercussions. Canales named two
specific employees who, he testified, had arrived at work intoxicated, one on
multiple occasions in both Afghanistan and Las Vegas, neither of whom was
3
Canales himself accompanied the WB-57 to Afghanistan on two occasions as one
of the primary avionics technicians.
13
terminated by CSC.4 According to Canales, a Caucasian avionics technician in his
unit received twenty percent of the workload and Canales received the remaining
eighty percent, plus whatever work the Caucasian employee did not finish. When
he complained to management, he was told to “stop complaining.”
Regarding overtime and the completion of work orders, Canales testified
that technicians are given some discretion in how they finish their work.
Generally, he will work on a work order until it is completed or until he reaches a
“good stopping point,” and he has worked beyond a twelve-hour shift without
being reprimanded. He testified that if one of the supervisors had told him to “be
prepared to work the weekend,” he would be authorized to work the entire
weekend. He also stated that the technicians, who often worked in pairs, would
agree between themselves on what hours they would work and that they would
check with the supervisors to make sure they had no objections.
Chandler also attached the deposition of Ricardo Hayes, an egress
technician. Hayes testified that his unit is entirely African-American and the
“management team” at CSC is ninety-nine percent Caucasian. He estimated that
approximately nine percent of CSC’s entire workforce is African-American. He
testified that he has been treated differently at CSC because of his race: CSC
required greater qualifications for him to be hired than the next two Caucasian
4
Canales named the specific individuals involved, but he gave no detail regarding
when these alleged incidents occurred.
14
applicants for the same position. He stated that he had never heard anyone use
derogatory racial slurs at CSC, but he knew that Chandler had a race-based
nickname, although he had never heard it actually directed at Chandler.
Hayes also testified that, although his unit is “sometimes” specifically told
when to arrive for work and when to leave, the technicians normally agree among
themselves to come in early, and this is not a problem as long as they complete an
eight-hour shift. Hayes stated that he has been told to stay “as long as he needed”
to complete a work order. He opined that if he had been told to “be prepared to
work the weekend, just don’t exceed twelve hours,” he would not expect to be
reprimanded if he worked up to twelve hours on both Saturday and Sunday.
In its summary judgment reply, CSC objected to Canales’s testimony
“regarding his opinion of how Caucasian and minority employees of [CSC] are
treated, including his assertion that Caucasian employees who report[ed] to work
under the influence received no repercussions and minority employees receive[d] a
largely disproportionate amount of the work load” on the grounds that this
testimony constituted inadmissible hearsay and failed to set forth the basis of
Canales’s personal knowledge. CSC also objected to “[a]ny generalized assertions
Mr. Canales makes in his deposition testimony regarding start times, completing
work orders, overtime, and leaving early” as speculative.
15
At the hearing on CSC’s summary judgment motions, the trial court
requested that CSC clarify its objections to Chandler’s summary judgment
evidence by presenting its objections to Canales’s and Hayes’s testimony in a
“line-by-line” format. The trial court gave Chandler an opportunity to respond to
the clarified objections. CSC subsequently provided sixty-six objections to
Canales’s deposition testimony and ten objections to Hayes’s deposition testimony.
CSC objected on the basis that the testimony was conclusory and speculative, and
that it lacked the basis for personal knowledge, and, occasionally, constituted
inadmissible hearsay. The trial court sustained all but four of these objections, and
provided Chandler an opportunity to supplement the summary judgment record
with additional evidence. Chandler supplemented the record with Canales’s
affidavit, and the deposition testimony of Wyckoff, Payne, and Lankford.
CSC made two further objections to statements contained in Canales’s
affidavit. The trial court sustained both of these objections. The record contains
no indication that Chandler objected to the trial court’s ruling on these objections.
The trial court ultimately rendered summary judgment in favor of CSC on
Chandler’s racial discrimination and retaliation claims. The summary judgment
did not specify the grounds for the trial court’s decision. This appeal followed.
16
Standard of Review
We review de novo the trial court’s ruling on a summary judgment motion.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). When a party moves for both traditional and no-evidence summary
judgment, we first review the trial court’s ruling under the no-evidence standard of
review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
trial court properly granted the no-evidence motion, we do not consider the
arguments raised regarding the traditional summary judgment motion. See id.
After an adequate time for discovery, a party may move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of a claim on which the adverse party bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil
Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no
pet.). The burden then shifts to the nonmovant to produce evidence raising a
genuine issue of material fact on the elements specified in the motion. TEX. R.
CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
The trial court must grant the motion unless the nonmovant presents more than a
scintilla of evidence raising a fact issue on the challenged elements. Flameout
Design & Fabrication, 994 S.W.2d at 834; see also Goodyear Tire & Rubber Co.
v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (“An appellate court
17
reviewing a summary judgment must consider whether reasonable and fair-minded
jurors could differ in their conclusions in light of all of the evidence presented.”).
To determine if the nonmovant has raised a fact issue, we review the evidence in
the light most favorable to the nonmovant, crediting favorable evidence if
reasonable jurors could do so, and disregarding contrary evidence unless
reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. See Sw. Elec. Power
Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2001) (citing Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).
To prevail on a traditional summary judgment motion, the movant must
establish that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of
Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). When, as here, the trial
court’s summary judgment does not state the basis for the court’s decision, we
must uphold the judgment if any of the theories advanced in the motion are
meritorious. Providence Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
18
Race-Discrimination Claim
In his first issue, Chandler contends that the trial court erroneously rendered
summary judgment in favor of CSC on his race-discrimination claim because he
raised a fact issue (1) that similarly situated non-protected class members were
treated more favorably and (2) that CSC’s articulated reasons for its actions were
untrue, and thus a mere pretext for discrimination, or that race was a motivating
factor for its decisions.
Under the TCHRA, an employer commits an unlawful employment practice
if, because of an employee’s race, the employer “discharges an individual, or
discriminates in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment.” TEX. LABOR
CODE ANN. § 21.051(1) (Vernon 2006). 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.”
Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 139 (Tex. App.—Fort
Worth 2000, pet. denied); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d
473, 474 (Tex. 2001) (stating same). Thus, when analyzing a claim brought under
the TCHRA, we look not only to state cases, but also to the analogous federal
statutes and the cases interpreting those statutes. Toennies, 47 S.W.3d at 476.
19
When, as here, the plaintiff asserts race-discrimination claims based on two
separate and distinct incidents, he must establish a prima facie case of
discrimination for each incident independently. Russo v. Smith Int’l, Inc., 93
S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). To meet
this burden of establishing a prima facie case of race discrimination, the plaintiff
must show that: (1) he was a member of a protected class, (2) he suffered an
adverse employment action, and (3) non-protected class employees were not
treated similarly. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S. Ct. 1817, 1824 (1973); McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 554
(Tex. App.—Dallas 2006, no pet.). Subjective beliefs of discrimination alone are
insufficient to establish a prima facie case. McCoy, 183 S.W.3d at 554 (citing
Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston
[1st Dist.] 1993, writ denied)).
Once the plaintiff establishes a prima facie case, the burden of production
shifts to the defendant-employer to articulate legitimate non-discriminatory reasons
for any allegedly unequal treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.
Ct. at 1824; Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.
App.—Houston [1st Dist.] 2000, no pet.). After the employer articulates a non-
discriminatory reason, the burden then shifts back to the plaintiff to prove that the
articulated reason is a mere pretext for unlawful discrimination. McDonnell
20
Douglas, 411 U.S. at 804, 93 S. Ct. at 1825; Greathouse, 17 S.W.3d at 423.
Although the burden of production shifts between the parties, the burden of
persuasion “remains continuously with the plaintiff.” Greathouse, 17 S.W.3d at
423.
To raise a fact issue on the pretext element of a race-discrimination claim,
the nonmovant must present evidence “indicating that the non-discriminatory
reason given by the employer is false or not credible, and that the real reason for
the employment action was unlawful discrimination.” Elgaghil, 45 S.W.3d at 140.
A plaintiff can avoid summary judgment 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 [race] was
a determinative factor in the actions the plaintiff is now complaining about.” Id.
(emphasis in original); see also Little v. Tex. Dep’t of Criminal Justice, 177
S.W.3d 624, 632 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“[T]he United
States Supreme Court has made it clear that it is not sufficient merely to show that
the employer’s reasons are false or not credible; the plaintiff must prove that the
employer discriminated intentionally.”) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 146–47, 120 S. Ct. 2097, 2108 (2000)). An employee’s
subjective belief that his employer has given a false reason for the employment
decision is not competent summary judgment evidence. Elgaghil, 45 S.W.3d at
21
141; see also Greathouse, 17 S.W.3d at 425 (“Summary judgment for the
defendant is proper when a plaintiff claiming race discrimination presents only
conclusory allegations, improbable inferences, unsupportable speculation, or
subjective beliefs and feelings.”).
A. Trip to Afghanistan
Chandler first contends that CSC improperly considered his race as a
motivating factor in its decision not to include him on the list of employees to
accompany the WB-57 aircraft on a trip to Afghanistan. We assume, without
deciding, that Chandler established a prima facie case that CSC discriminated
against him based on his race when it did not include him on the trip list but did
include two Caucasian employees as alternate avionics technicians.
In its summary judgment motion, CSC stated that it did not include Chandler
on the trip list because he was not qualified to make the trip. Robert Payne
specifically averred that Chandler “did not have the knowledge and skills required
to handle certain problems that may arise on the WB-57 aircraft, including
problems with the aircraft auto pilot and radar.” Lack of qualifications is a
legitimate, non-discriminatory reason for not including Chandler on the
Afghanistan trip list. See Little, 177 S.W.3d at 631 (noting, in context of failure to
hire complainant, that “[s]electing a more qualified applicant generally constitutes
a legitimate, nondiscriminatory justification”). Thus, by providing a legitimate
22
reason for its actions, CSC “eliminate[d] the presumption of discrimination created
by [Chandler’s] prima facie case.” See McCoy, 183 S.W.3d at 554 (citing Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094–95
(1981)). The burden thus shifted back to Chandler to raise a fact issue that CSC’s
reason was a mere pretext for unlawful discrimination. See Greathouse, 17
S.W.3d at 423.
As evidence that this reason was a pretext for racial discrimination, Chandler
points to Canales’s testimony that neither of the two selected alternates had worked
on the WB-57 aircraft as much as Chandler had and that one of the alternates had
less seniority than Chandler. Canales stated that he knew that one of the alternates
had less experience on the WB-57 because he was assigned to the WB-57 “for
most of the tenure of [the alternate’s] presence with CSC and so [he was] aware of
what aircraft [the alternate] worked on and what aircraft [the alternate] had
experience on.”5 Canales also testified that Chandler had “several years of
installation or engineering work order installation procedure on the WB-57” and
5
Although Canales testified during his deposition that both alternates had less
experience on the WB-57 than Chandler, he refused to agree with defense
counsel’s question that both alternates “[were] less qualified than [Chandler] for
this particular job.” Chandler testified during his deposition that he believed that
he had more experience on the WB-57 than one of the alternates, but he then
agreed that he did not know what specific experience and qualifications that
alternate had.
23
that he believed Chandler was a “very good technician” and was qualified to
perform this work.
The summary judgment record included evidence that employees received
qualifications for working on specific systems on a particular aircraft. Although
Chandler presented summary judgment evidence that he had experience working
on the electrical systems of the WB-57, he presented no evidence regarding (1) the
specific qualifications that were required for CSC to consider him to accompany
the WB-57 to Afghanistan, (2) his own particular qualifications on the other
systems of the WB-57, or (3) the specific WB-57 qualifications of the two
alternates chosen for the trip list. “Merely disputing [the employer’s] assessment
of [the employee’s] qualifications will not create an issue of fact.” McCoy, 183
S.W.3d at 555 (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th
Cir. 2002)); Russo, 93 S.W.3d at 440 (“The evidence of relative qualifications
must be more than merely subjective and speculative. It must be specific and
comparative in nature.”). Employment discrimination laws “were not intended to
be vehicles for judicial second-guessing of employment decisions nor intended to
transform courts into personnel managers.” McCoy, 183 S.W.3d at 555–56 (citing
Jaso v. Travis Cnty. Juvenile Bd., 6 S.W.3d 324, 332 (Tex. App.—Austin 1999, no
pet.)).
24
Although Chandler presented evidence that minority workers were treated
differently at CSC—for example, Canales testified that he and the other non-
Caucasian avionics technicians in his particular unit had a much higher workload
than the Caucasian technicians and Hayes testified that CSC required additional
qualifications when it hired him as opposed to two later-hired Caucasians—
Chandler presented no evidence that CSC considered an employee’s race when it
made its selections for the Afghanistan trip list or that CSC failed to include
Chandler on the trip list because he is African-American. Canales, a Hispanic,
testified that he accompanied the WB-57 to Afghanistan as one of the primary
avionics technicians on two occasions.
Chandler also points to his race-based derogatory nickname used by a few
CSC employees as evidence that CSC’s stated reasons for its actions were a mere
pretext and that Chandler’s race was a motivating factor in CSC’s employment
decisions.
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. Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 729–30 (Tex. App.—
Fort Worth 2006, no pet.) (citing Krystek v. Univ. of S. Miss., 164 F.3d 251, 256
25
(5th Cir. 1999)); Elgaghil, 45 S.W.3d at 140. “Stray remarks made in the
workplace by non-decision makers, without more, are not evidence of the
employer’s intent to discriminate.” Elgaghil, 45 S.W.3d at 140; see also M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000) (per
curiam) (“Stray remarks, remote in time from Willrich’s termination, and not made
by anyone directly connected with the RIF decisions, are not enough to raise a fact
question about whether UTMDA’s reason for terminating Willrich was
pretextual.”).
Chandler testified that two management supervisors and one union steward
at CSC referred to him by using a race-based derogatory nickname. He also
testified that these employees ridiculed his allegedly poor spelling by displaying
his written reports on bulletin boards. Chandler presented no evidence, however,
that these comments were made close to the time of the adverse employment
decision at issue here, that these employees had any authority over the employment
decision at issue or any influence over those who did have the authority, or that the
comments related to the employment decision at issue.6 See Niu, 206 S.W.3d at
729–30; Elgaghil, 45 S.W.3d at 140.
6
Canales testified that he heard Tom Wolfe, Stan Phillips, and Luther Levan use the
nickname for Chandler. Wolfe and Phillips were “supervisors” and Levan was a
union steward. There is no evidence that these men had any input in assembling
personnel for the Afghanistan trip.
26
We therefore conclude that Chandler has failed to raise a fact issue regarding
whether CSC’s stated non-discriminatory reason for not including him on the
Afghanistan trip list was a mere pretext for discrimination or whether his race was
a motivating factor in CSC’s decision. We hold that the trial court correctly
rendered summary judgment in favor of CSC on Chandler’s claim that CSC
discriminated against him by failing to include him on the Afghanistan trip list.
We overrule this sub-issue.
B. Termination of Employment
Chandler also contends that CSC discriminated against him based on his
race when it terminated his employment after an investigation into whether he
worked unauthorized overtime. CSC first argues that Chandler did not establish a
prima facie case of racial discrimination because he “fail[ed] to identify similarly
situated individuals who were treated more favorably with respect to his
termination.”
To prevail on his claim for race discrimination, Chandler had to prove that
he was treated less favorably than similarly situated members of a non-protected
class. See McCoy, 183 S.W.3d at 554 (listing whether non-protected class
employees were treated similarly as element of prima facie case in race
discrimination claim); see also Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d
915, 917 (Tex. 2005) (per curiam) (stating same for gender discrimination claim).
27
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.” Monarrez, 177 S.W.3d at 917. In a disparate discipline
case, “the disciplined and undisciplined employees’ misconduct must be of
‘comparable seriousness.’” Id. The Monarrez court noted that although the United
States Supreme Court had previously held that “precise equivalence in culpability
between employees is not the ultimate question,” the Fifth Circuit had held that
“the plaintiff must usually show ‘that the misconduct for which [the employee]
was discharged was nearly identical to that engaged in by a[n] employee whom
[the company] retained.” Id. at 917–18 (quoting McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n.11, 96 S. Ct. 2574, 2580 (1976) and Smith v.
Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir. 1990)). “Employees with
different responsibilities, supervisors, capabilities, work rule violations, or
disciplinary records are not considered to be ‘nearly identical.’” AutoZone, Inc. v.
Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (per curiam); see also Okoye v. Univ. of
Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (holding that
comparisons to other employees not terminated were inapplicable because other
employees violated different workplace rules and thus were not “nearly identical”).
CSC stated that it terminated Chandler because, after the investigation into
his allegedly unauthorized overtime, it determined that he committed the following
28
rule violations: (1) falsification of personnel or other company or contract related
records, and (2) deliberate falsification of facts to management or similar form of
dishonesty. Chandler produced evidence that Caucasian employees committed
“egregious” violations of other rules.7 Chandler also presented testimony that
Caucasian employees in the WB-57 unit were allowed to come to work early and
leave work past the usual stopping time, which constituted overtime, without
authorization from supervisory personnel. Canales testified that this happened
“routinely,” that he knows the supervisor had not told these employees to come in
early, and that one employee arrived at work an hour and a half early every day.
According to Chandler, these employees were not reprimanded or investigated, nor
was their employment terminated for working unauthorized overtime.
Chandler thus presented evidence that non-protected class members violated
the same workplace rule that he did—working unauthorized overtime—but CSC
did not terminate their employment. Assuming that Chandler raised a fact issue
that similarly situated members of a non-protected class were treated more
favorably, a requirement for his prima facie case, we consider whether Chandler
raised a fact issue regarding whether CSC’s articulated nondiscriminatory reason
for terminating him—that he violated two CSC rules by working unauthorized
7
For example, Canales testified that a Caucasian employee repeatedly arrived at
work intoxicated, including while on work-related trips to Afghanistan and Las
Vegas, and “[CSC] sent him home and then offered him the employee assistance
program, instead of termination.”
29
overtime and then lying to CSC management during the subsequent
investigation—was false and thus a mere pretext for racial discrimination.
CSC contends that even if Chandler raised a fact issue regarding whether he
actually worked unauthorized overtime, this fact is irrelevant, because the ultimate
inquiry is whether CSC had a good faith belief that Chandler had violated the
workplace rules. CSC also contends that Chandler presented no evidence that,
even if its reasons for terminating Chandler were false, CSC terminated him
because of his race. We agree with CSC.
When an employer’s decision to terminate a claimant’s employment is based
on the results of an investigation into whether the claimant violated workplace
rules, “evidence that the employer’s investigation merely came to an incorrect
conclusion does not establish a racial motivation behind an adverse employment
decision. Management does not have to make proper decisions, only non-
discriminatory ones.” Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 478 (5th
Cir. 2005); see also Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)
(“The existence of competing evidence about the objective correctness of a fact
underlying a defendant’s proffered explanation does not in itself make reasonable
an inference that the defendant was not truly motivated by its proffered
justification.”); Elgaghil, 45 S.W.3d at 141 (“[A]n employee’s subjective belief
30
that an employer has given a false reason for its employment decision is not
competent summary judgment evidence.”).
In Waggoner v. City of Garland, the City terminated Waggoner after it
received sexual harassment complaints from one of Waggoner’s coworkers. 987
F.2d 1160, 1162 (5th Cir. 1993). Waggoner, who disputed the sexual harassment
allegations, contended that his termination based on the harassment allegations was
a pretext for discriminating against him based on his age. Id. at 1163. In affirming
the summary judgment in favor of the City, the Fifth Circuit noted a distinction
between employment discrimination cases in which the employer’s stated reason
for the discharge relies upon “the employer’s own evaluation of the employee”—
e.g., the employee’s job performance was unsatisfactory or another employee was
better qualified—and cases in which the employer begins an investigation and
ultimately discharges the employee based on the complaints of other employees.
Id. at 1165. In the latter situation,
[T]he validity of the initial complaint is not the central issue, because
the ultimate falseness of the complaint proves nothing as to the
employer, only as to the complaining employee. The real issue is
whether the employer reasonably believed the employee’s allegation
and acted on it in good faith, or to the contrary, the employer did not
actually believe the co-employee’s allegation but instead used it as a
pretext for an otherwise discriminatory dismissal. Thus, the inquiry is
limited to whether the employer believed the allegation in good faith
and whether the decision to discharge the employee was based on that
belief.
31
Id. at 1165–66; Ade v. KidsPeace Corp., 698 F. Supp. 2d 501, 517 (E.D. Pa. 2010)
(“It is not the veracity of allegations made against plaintiff by other employees
which is at issue, but ‘rather the integrity of [defendant’s] decision-making process
in terminating plaintiff.’”) (quoting Cange v. Philadelphia Parking Auth., No. 08-
3480, 2009 WL 3540784, at *12 (E.D. Pa. Oct. 30, 2009)); Evans v. Tex. Dep’t of
Transp., 547 F. Supp. 2d 626, 647 (E.D. Tex. 2007) (“The inaccuracy of reports,
absent evidence that management was somehow complicit, is not indicative of
discrimination or pretext.”).
The Fifth Circuit concluded that Waggoner’s summary judgment evidence
relating to his “innocence of the sexual harassment charge” was irrelevant and held
that “[h]e must, instead, produce evidence demonstrating that [the City’s decision-
makers] did not in good faith believe the allegations, but relied on them in a bad
faith pretext to discriminate against him on the basis of his age.” Waggoner, 987
F.2d at 1166 (emphasis in original). Because Waggoner did not produce such
evidence, the court held that he did not raise a fact issue on age-based
discrimination. See id.; see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1091 (5th Cir. 1995) (“The question is not whether an employer made an erroneous
decision; it is whether the decision was made with discriminatory motive.”);
Sagaral v. Wal-Mart Stores Tex. LP, 516 F. Supp. 2d 782, 799 (S.D. Tex. 2007)
(“[N]othing in the record creates a fact issue as to whether Wal-Mart’s termination
32
of Sagaral’s employment was made in bad faith. Wal-Mart made a detailed
investigation, talking to a number of employees, including Sagaral, who provided
inconsistent descriptions and explanations of his own conduct and statements to his
coworkers.”).
Here, the summary judgment record included evidence that Chandler, who
was a general avionics technician and was not specifically assigned to the WB-57
aircraft, worked overtime on the WB-57 on June 23 through June 26, 2007. After
observing Chandler working on the aircraft and reviewing his time reports, Jackie
Lankford believed that Chandler had worked unauthorized overtime and informed
Robert Payne. Payne began an investigation into the allegations. During the initial
investigatory meeting, Chandler provided inconsistent explanations for why he
arrived at work at 5:00 a.m. on June 23, and Payne believed that Chandler was not
being truthful. Over the next six weeks, Payne obtained written statements from
Armstrong, Lankford, Lanmon, and Wyckoff, all of whom disagreed with
Chandler’s account of events. After a second meeting with Chandler in which
Chandler repeated the same inconsistent explanations for his actions, Payne
ultimately made the decision to terminate Chandler’s employment with CSC for
violating two workplace rules. According to Payne, Chandler admitted during the
second meeting that “he did not have authority to work the overtime in question,
and he had scheduled himself on his own.”
33
During his deposition, Chandler testified to the contrary and asserted that he
had authority to work overtime on June 24–26. According to Chandler, when he
was present on Saturday, June 23, at Armstrong’s direction, Lanmon handed him
four engineering work orders and told him, “Be prepared to work the weekend, and
do not work over [twelve] hours a day.” Because these work orders were “not a
one-day project,” Chandler testified that he continued working on the WB-57 on
Sunday, Monday, and Tuesday until he completed the work orders. Chandler
further testified that he informed Payne during the first investigatory meeting that
Lanmon authorized him to work the entire weekend until the orders were
completed.8
By asserting that he had authority to work the overtime in question,
Chandler raised a fact issue regarding whether he appropriately worked overtime.
Although Chandler contends that the Waggoner analysis is inapplicable, and, thus,
he raised a fact issue that CSC’s reason for the termination was a pretext, we
disagree. See Sagaral, 516 F. Supp. 2d at 798 (applying Waggoner analysis in
8
In his deposition, Lanmon testified that he did not assign Chandler any work
orders on Saturday, June 23, 2007. He also testified that he told Jack McGee, the
crew leader on the WB-57, that the “B-57 guys” needed to be prepared to work the
weekend and that he would finalize the overtime list later that afternoon. He
acknowledged that Chandler was standing within earshot of this conversation and
with his back to Lanmon when Lanmon made this statement to McGee. He
testified that he was not speaking to Chandler and that he did not intend to include
Chandler in the conversation.
34
cases “involving an allegation of wrongful [employee] conduct, followed by an
investigation and discharge”).
CSC began its investigation into Chandler’s overtime after Jackie Lankford
suspected that Chandler was working overtime on the WB-57 without
authorization. CSC obtained statements from the two supervisors with authority to
assign Chandler overtime, Armstrong and Lanmon, interviewed Chandler twice,
and ultimately believed Armstrong’s and Lanmon’s statements that they did not
assign overtime to Chandler for June 24–26. Because this case involves
allegations of misconduct initially made by another employee, the central issue is
not whether the initial allegations of improper overtime were true; rather, the issue
is whether CSC reasonably believed the allegations of misconduct and acted on
them in good faith. See Waggoner, 987 F.2d at 1165. As such, Chandler’s
evidence asserting that he had authorization to work the overtime in question is
irrelevant. See id. at 1166. To demonstrate a fact issue, he had to present evidence
that those in charge of making the termination decision did not believe the
unauthorized overtime allegations, but instead used the allegations as a bad faith
pretext to discriminate against him on the basis of his race.9 See id. at 1165–66;
9
Chandler notes that the management personnel present during the weekend did not
question his presence at the WB-57 hangar or inform him that he was working
unauthorized overtime and that CSC originally approved his overtime. Jackie
Lankford testified that he began looking into Chandler’s overtime on Monday,
June 25, after he received a complaint from an engineer that Chandler had called
35
see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010)
(“[Jackson’s] own conclusory assertion that he did not behave inappropriately is
irrelevant, since he has provided no evidence to suggest that Cal-Western’s
decision to trust the results of the two investigations, rather than his self-serving
denial of wrongdoing, was unreasonable or in bad faith. Jackson’s assertion of
innocence alone does not create a factual issue as to the falsity of Cal-Western’s
proffered reason for terminating him.”). Chandler has presented no such evidence.
Chandler argues that he presented evidence of discriminatory intent because
CSC employees used derogatory racial slurs to refer to him and ridiculed his
spelling ability. Chandler presented testimony that Luther Levan, a union steward,
was one of the CSC employees who used derogatory nicknames to refer to him.
Payne testified that after the improper overtime allegations came to his attention he
had a meeting with human resources and union representatives, including “maybe
Luther Levan because he was the steward of the B-57 unit,” during which the
participants discussed Chandler’s lack of authority to work the overtime at issue.
Payne also testified that he “reviewed the situation with union people,” including,
to the best of his recollection, Levan and Richard Phillips, the chief union steward.
him at home with a question on Saturday, and, when the engineer arrived at CSC,
Chandler was not present. Lankford also testified that CSC originally approved
Chandler’s time card, with Lankford’s objections to the overtime noted, so that
Chandler would be timely paid for the hours that he had properly worked during
the relevant pay period.
36
Neither Payne nor Chandler named Levan as one of the attendees at the meeting at
which CSC terminated Chandler’s employment, although they both testified that
Richard Phillips was present.
As we have already observed, for workplace comments to provide sufficient
evidence of discrimination the remarks must be (1) related to the 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. See Niu, 206 S.W.3d at 729–30; Elgaghil, 45
S.W.3d at 140. Although Chandler presented evidence that Payne consulted
Luther Levan, a union steward who allegedly called Chandler a derogatory
nickname, during the course of investigating Chandler’s allegedly unauthorized
overtime, he presented no evidence that Levan had any authority or influence over
the decision to terminate Chandler’s employment, which was ultimately made by
Payne and Heidi Ruby. See Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193 (2011)
(“As we have already acknowledged, the requirement that the biased supervisor’s
action be a causal factor of the ultimate employment action incorporates the
traditional tort-law concept of proximate cause. Thus, if the employer’s
investigation results in an adverse action for reasons unrelated to the supervisor’s
original biased action . . . then the employer will not be liable.”) (supervisors had
discriminatory motive in issuing “Corrective Action”; ultimate decision-maker
37
relied on supervisors’ accusation and terminated employment for alleged failure to
follow corrective action); see also Patel v. Midland Mem’l Hosp. & Med. Ctr., 298
F.3d 333, 344 (5th Cir. 2002) (“Moreover, Dr. Miller had no authority over the
decision to suspend Dr. Patel. Dr. Miller’s role in Dr. Patel’s suspension was
limited to the report he drafted on behalf of Dr. Brown and the Cardiovascular
Committee, which recommended outside review of Dr. Patel’s cases. Dr. Miller
was not a member of the MEC—the body that voted to suspend Dr. Patel—nor was
he a member of the MCC—the body that recommended suspension.”).
Furthermore, Chandler presented no evidence that the nickname was used
proximate in time to the adverse employment decision at issue. Although both
Chandler and Canales testified that Levan used the nickname, they did not state
that they heard it used close in time to when CSC terminated Chandler’s
employment. The only concrete time frame Chandler gives for when he heard
Levan use the nickname was when he was temporarily assigned to the WB-57 unit
in 2001, six years before CSC terminated Chandler’s employment. See Niu, 206
S.W.3d at 730 (holding comment made eight months prior to termination not
proximate in time to employment decision). Chandler also presented no evidence
that the nickname was related to this particular employment decision, his
termination. See Coastal Mart, Inc. v. Hernandez, 76 S.W.3d 691, 697 (Tex.
App.—Corpus Christi 2002, pet. dism’d) (upholding jury verdict finding gender
38
discrimination when employer replaced male store manager with female after
employer made comments that female could manage store better and he preferred
female for position and stating, “These remarks regarding a woman’s preferable
performance directly correspond with Flores’s decision to terminate Hernandez”).
These comments, therefore, do not constitute evidence that the CSC decision
makers did not in good faith believe the unauthorized overtime allegations and
instead used the allegations as a pretext for racial discrimination. See Waggoner,
987 F.2d at 1166.
Because Chandler has presented no evidence that CSC did not in good faith
believe the unauthorized overtime allegations, but instead used the allegations as a
pretext to terminate his employment because of his race, we conclude that the trial
court correctly rendered summary judgment in favor of CSC on Chandler’s claims
for race discrimination. See Jackson, 602 F.3d at 380–81 (“[An age-based]
comment alone, or in combination with Jackson’s uncorroborated denial of any
sexual harassment, is insufficient to establish a genuine issue of material fact as to
pretext. There is substantial evidence that Jackson was fired for violation of Cal-
Western’s sexual harassment policy, and Jackson’s only contravention of that
evidence comes from his own assertions.”); Wal-Mart Stores, Inc. v. Canchola,
121 S.W.3d 735, 740 (Tex. 2003) (per curiam) (“[I]t is not sufficient for Canchola
to present evidence that the harassment investigation was imperfect, incomplete, or
39
arrived at a possibly incorrect conclusion. He must show that the reason proffered
by Wal-Mart is ‘false, and that discrimination was the real reason.’”) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993))
(emphasis in original).
We overrule Chandler’s first issue.
Retaliation
In his second issue, Chandler contends that the trial court erroneously
rendered summary judgment in favor of CSC on his retaliation claim because he
raised fact issues that (1) he engaged in a protected activity by complaining to CSC
management that he was not included on the Afghanistan trip list because of his
race, (2) a causal link existed between his complaints and his termination, and
(3) CSC’s articulated reason for his termination was untrue or that retaliation was a
motivating factor in the decision to terminate his employment.
The TCHRA prohibits an employer from retaliating against an employee for
engaging in certain protected activities. TEX. LABOR CODE ANN. § 21.055 (Vernon
2006). To prevail in a retaliation action under this section, the plaintiff must first
establish a prima facie case showing that: (1) he engaged in protected activity,
(2) an adverse employment action occurred, and (3) a causal link existed between
the protected activity and the adverse action. Hernandez v. Grey Wolf Drilling,
L.P., 350 S.W.3d 281, 286 (Tex. App.—San Antonio June 22, 2011, no pet.); Dias
40
v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.]
2007, pet. denied). Protected activities consist of (1) opposing a discriminatory
practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying,
assisting, or participating in any manner in an investigation, proceeding, or
hearing. TEX. LABOR CODE ANN. § 21.055. If the plaintiff establishes a prima
facie case, the burden shifts to the defendant-employer to articulate a legitimate,
nondiscriminatory purpose for the adverse employment action. Hernandez, 350
S.W.3d at 286; Dias, 214 S.W.3d at 676; see also McCoy, 183 S.W.3d at 555
(noting that retaliation claims use “[t]he same burden-shifting analysis” as race-
discrimination claims). “[A]n employee’s subjective beliefs of retaliation are
merely conclusions and do not raise a fact issue precluding summary judgment in a
retaliatory discharge claim.” Niu, 206 S.W.3d at 731 (citing Tex. Div.-Tranter,
Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994)).
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. Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort
Worth 2006, no pet.). Thus, the plaintiff must establish a “but for” causal nexus
between the protected activity and the prohibited conduct. Id. The plaintiff is not
required to establish that the protected activity was the sole cause of the
employer’s prohibited conduct. Id.
41
“[A]ctionable retaliation exists when an employer makes an adverse
employment decision against an employee who voices opposition to conduct made
unlawful under the [T]CHRA, regardless of whether the employee has already filed
a formal complaint with the Commission.” City of Waco v. Lopez, 259 S.W.3d
147, 152 (Tex. 2008) (emphasis added); see also Byers v. Dallas Morning News,
Inc., 209 F.3d 419, 427–28 (5th Cir. 2000) (noting that, under Title VII, employee
engages in protected activity if he “oppose[s] any practice made an unlawful
employment practice by [Title VII]” and holding that employee need not prove
employer’s practices were “actually unlawful” but only that employee had
“reasonabl[e] belief that the employer was engaged in unlawful employment
practices”); Marsaglia v. Univ. of Tex., El Paso, 22 S.W.3d 1, 5 (Tex. App.—El
Paso 1999, pet. denied) (noting that plaintiff’s burden is to establish that “conduct
was ‘opposition’ to an unlawful employment practice and thus a protected
activity”).
CSC contends that Chandler failed to establish a prima facie case of
retaliation because he presented no evidence that he engaged in the protected
activity of complaining that he was not included on the Afghanistan trip list
because of his race and was then subsequently terminated. We agree.
As summary judgment evidence, Chandler presented his deposition
testimony, in which he testified that he complained to numerous supervisors and
42
others in the management hierarchy at CSC that he was not included on the
Afghanistan trip list and that he repeatedly asked for explanations of why he was
not included on this list. During his deposition, Chandler had the following
exchange with CSC’s attorney:
[CSC’s counsel]: Did you complain to management, as you said you
complained to management about not being on the
list, did you complain to management and say,
“This is because of my race”?
[Chandler]: No, I did not.
Shortly thereafter, the following exchange occurred:
[CSC’s counsel]: So you complained that you felt you were eligible
to go [to Afghanistan]?
[Chandler]: Yes, I did.
[CSC’s counsel]: Okay. And did you complain that any reason why
you were considered not eligible to go was because
of your race?
[Chandler]: No, I didn’t.
Chandler presented no evidence that he complained to CSC that he felt he was not
included on the Afghanistan trip list because of his race. Thus, Chandler presented
no evidence that, by complaining to CSC that he was not included on the
Afghanistan trip list when he believed that he was “eligible” to go on the trip, but
not specifically informing CSC management that he believed his race was the
reason why he was not included on the list, he “voice[d] opposition to conduct
made unlawful under the [T]CHRA.” Lopez, 259 S.W.3d at 152; see Marsaglia,
43
22 S.W.3d at 5; see also Harris-Childs v. Medco Health Solutions, Inc., 169 Fed.
App’x. 913, 916 (5th Cir. 2006) (“Although her deposition demonstrates she
complained of unfair treatment . . . she has not demonstrated that she put the
employer on notice that her complainant was based on racial or sexual
discrimination. Because she has failed to show that she engaged in a protected
activity under Title VII, she cannot show retaliation.”); Evans, 547 F. Supp. 2d at
654 (“Specifically, although Evans complained of a purportedly hostile work
environment, at no time did she suggest that McCray’s conduct was related to
Evans’s race, sex, age, disability, or other characteristic protected by Title VII.”).
Because Chandler presented no evidence that he engaged in a protected
activity when he complained to CSC that he was not included on the Afghanistan
trip list but did not complain that he believed that this exclusion was racially
motivated, we conclude that Chandler did not establish an essential element of his
prima facie case of retaliation. We therefore hold that the trial court correctly
rendered summary judgment in favor of CSC on Chandler’s retaliation claim.
We overrule Chandler’s second issue.
Objections to Summary Judgment Evidence
Finally, in his third issue, Chandler contends that the trial court erroneously
sustained seventy-four of CSC’s objections to his summary judgment evidence.
44
We review a trial court’s ruling sustaining objections to summary judgment
evidence for an abuse of discretion. Finger v. Ray, 326 S.W.3d 285, 290 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). The appellant bears the burden to bring
forth a record sufficient to show that the trial court abused its discretion when it
sustained the objections. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—
Dallas 2006, no pet.). To reverse a judgment based on the erroneous exclusion of
evidence, the appellant must demonstrate that the exclusion probably resulted in an
improper judgment. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001); see also TEX. R. APP. P. 44.1(a)(1). A successful challenge to the trial
court’s evidentiary rulings generally requires the complaining party to demonstrate
that the judgment turns on the particular evidence excluded. Interstate
Northborough P’ship, 66 S.W.3d at 220 (citing Tex. Dep’t of Transp. v. Able, 35
S.W.3d 608, 617 (Tex. 2000)). Ordinarily, we will not reverse a judgment due to
the erroneous exclusion of evidence when the evidence in question is cumulative
and not controlling on a material issue dispositive to the case. Id.
Here, Chandler argues that the trial court erroneously sustained seventy-four
objections to his summary judgment evidence. CSC objected to various statements
in depositions of Canales and Hayes on the grounds that their testimony was
conclusory, speculative, not based on personal knowledge, and constituted
inadmissible hearsay. Although Chandler argues on appeal that CSC’s objections
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were not meritorious, he does not demonstrate how the allegedly erroneous
exclusions probably resulted in an improper judgment. See id. He also does not
demonstrate that the summary judgment turns on a particular piece of evidence that
was excluded or that the evidence excluded was not cumulative and was
controlling on a dispositive material issue. See id.
For example, Chandler argues that the trial court erroneously excluded
Canales’s testimony regarding the derogatory nickname that some CSC employees
used to refer to Chandler, because Canales heard this nickname applied to
Chandler and thus had personal knowledge regarding its use. However, not only
did the trial court admit evidence from Chandler’s deposition regarding this
nickname, we have held that this evidence does not create a fact issue on the
question of whether CSC’s articulated nondiscriminatory reasons for its actions
were a pretext because Chandler did not demonstrate that this racial slur was used
by CSC employees with authority over the particular employment decisions at
issue here, that employees used the slur proximate in time to the employment
decisions, or that the slur related to the employment decisions. See Niu, 206
S.W.3d at 729–30; Elgaghil, 45 S.W.3d at 140. Thus, Canales’s testimony on this
matter is both cumulative and not controlling on a material issue. See Interstate
Northborough P’ship, 66 S.W.3d at 220.
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Similarly, the trial court sustained CSC’s objection to Canales’s testimony
that Chandler was qualified to go on the Afghanistan trip and should have been
placed on the trip list. However, as we have discussed, Canales did not testify
regarding Chandler’s specific qualifications to work on the WB-57 or regarding the
WB-57 qualifications of the alternates selected to go on the trip. When the issue is
relative qualifications, the evidence “must be more than merely subjective and
speculative”; instead, it “must be specific and comparative in nature.” Russo, 93
S.W.3d at 440. Canales did not provide “specific and comparative” testimony
regarding the relative qualifications of Chandler and the selected alternates. Thus,
his testimony was not “controlling” on the issue of whether “similarly situated”
members of the non-protected class were treated more favorably than Chandler.
Because Chandler has not demonstrated that any of the summary judgment
evidence excluded by the trial court is not cumulative and is controlling on a
material issue and that the summary judgment turns on the particular evidence
excluded, we conclude that any error by the trial court in sustaining CSC’s
objections is harmless.
We overrule Chandler’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
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