Howard Kucera v. Humble Independent School District ( 2004 )

Affirmed and Memorandum Opinion filed September 28, 2004

Affirmed and Memorandum Opinion filed September 28, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01200-CV

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HOWARD KUCERA, Appellant

V.

HUMBLE INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 02-36171

M E M O R A N D U M   O P I N I O N

This is an appeal from a summary judgment granted in favor of appellee Humble Independent School District (AHumble ISD@) against appellant Howard Kucera.  In three issues, Kucera argues that the trial court erred in granting summary judgment on his age discrimination and retaliation claims against Humble ISD and in sustaining Humble ISD=s objections to certain summary judgment evidence.  We affirm.

BACKGROUND

Humble ISD hired Kucera as the supervisor of its Heating, Ventilation, and Air Conditioning (AHVAC@) department in 1994.  As the HVAC supervisor, Kucera was responsible, among other things, for building temperatures and maintenance and repair of HVAC equipment.  Initially, Kucera was supervised by Don Uptegraph and Mark Krueger.  In 1999, Humble ISD hired Allan Scott, a mechanical engineer, to implement a new energy management plan.  Various aspects of this job required him to interact with Kucera and the HVAC department on a regular basis. 

In June 2000, Uptegraph reorganized the department and placed the HVAC department under Scott=s supervision.  Kucera continued his direct supervision of HVAC employees, but he now had three levels of supervision above him rather than two.  Humble ISD claims it made this change because Scott=s work with Kucera and the HVAC department revealed equipment and employee performance issues under Kucera that Uptegraph and Krueger had long suspected but could not verify due to their lack of technical expertise.  Kucera alleges the reorganization was in retaliation for his complaints to Uptegraph about perceived discrimination against two older employees in May 2000.  Kucera claims he was stripped of authority and that Scott, who was younger than he, was not qualified to supervise him due to his lack of HVAC experience. 

Kucera did not appear to take well to Scott=s supervision.  He made comments to the effect that he was not going to be told what to do by a Aforty-year-old valve engineer.@ Scott gave Kucera several deadlines, which Kucera missed, and Scott and Uptegraph also were concerned about what they saw as Kucera=s ineffective supervision of his employees.  In October 2000, Kucera was placed on a 60-day professional improvement plan (APIP@).  The PIP identified areas of deficiency and outlined several specific requirements on how to improve.  After the end of the 60-day period, Scott again had similar problems with Kucera. Therefore, in March 2001, Kucera was given a second PIP with 30-, 60-, and 90-day deadlines.  Uptegraph told Kucera that if he did not successfully complete this second PIP, his employment would be terminated.  In May 2001, Kucera asked Uptegraph for a written progress evaluation, and Uptegraph provided an evaluation that described eleven areas of deficiency.  When Uptegraph presented Kucera with this evaluation, Kucera became upset and challenged Uptegraph to terminate him, which Uptegraph did.  Kucera was replaced first with John Conn and then Kenneth Kendrick, and Kucera contends that Conn, who is younger, was less qualified.

Kucera sued Humble ISD, alleging that the events beginning with placing Kucera under Scott=s supervision and ending with his termination constituted age discrimination and retaliation under the Texas Commission on Human Rights Act (ATCHRA@).  Humble ISD moved for summary judgment, and both sides objected to much of the other=s summary judgment evidence.  The trial court sustained some of each party=s objections and then granted the motion.  Kucera complains that the trial court erred in sustaining certain of Humble ISD=s objections to his summary judgment evidence and in granting Humble ISD=s motion for summary judgment.

ANALYSIS

In his first two issues, Kucera contends the trial court erred in granting Humble ISD=s motion for summary judgment on his age discrimination and retaliation^[1] claims.  Humble ISD had the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  As a defendant, it must conclusively negate at least one essential element of each of Kucera=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  In deciding whether a disputed material fact issue exists precluding summary judgment, we resolve every reasonable inference in favor of Kucera and take all evidence favorable to him as true.  See id.

The TCHRA prohibits age discrimination and retaliation in employment.  Tex. Lab. Code Ann. '' 21.051, 21.055 (Vernon 1996).  The legislature intended to correlate state law with federal law in employment discrimination cases when it enacted the TCHRA.  Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).  Therefore, analogous federal law guides our reading of the TCHRA.  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). 

When, as here, a discrimination claim is based on indirect evidence, the employee must first establish a prima facie case of discrimination.  Id. at 476B77.  The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions.  Id. at 477.  The burden then is on the employee to prove both that the employer=s proffered reason is false and that the real reason for its actions is discrimination.  Canchola, 121 S.W.3d at 740 (citing St. Mary=s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).  If the employer offers more than one legitimate, nondiscriminatory reason for its actions, the employee must rebut each one.  Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003); Taylor v. County Bancshares, Inc., 325 F. Supp. 2d 755, 772B73 (E.D. Tex. 2004) (collecting cases).  These same standards apply to a claim for retaliation. Jones v. Jefferson County, 15 S.W.3d 206, 210 (Tex. App.CTexarkana 2000, pet. denied). 

We assume without deciding that Kucera established a prima facie case of discrimination and retaliation.  Humble ISD articulated three reasons for its actions:  (1) Kucera failed to follow the requirements in his PIPs, (2) he failed to adequately supervise his employees, and (3) he had a confrontation with his supervisor in which he challenged his supervisor to terminate him. 

Kucera failed to rebut any of these three reasons.  He points to no evidence that he complied with the PIPs or that the issues identified in the PIPs were inaccurate or false.  Though he may have had good technical skills, Kucera presented no evidence to dispute Humble ISD=s evidence that he was a poor supervisor.^[2]  Kucera may have believed himself to be a good supervisor, but his subjective belief, no matter how genuine, is not competent summary judgment evidence.  Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 576 (Tex. App.CHouston [14th Dist.] 2004, no pet. h.).  Finally, Kucera does not identify any evidence to dispute that he challenged Uptegraph to terminate him.

On appeal, Kucera attempts to raise a fact issue regarding age discrimination solely by presenting evidence of Uptegraph=s supposed discriminatory treatment of other older workers.  He attempts to raise a fact issue regarding retaliation by emphasizing that the events leading up to his termination began soon after he made a complaint about others being discriminated against.  This evidence, even assuming it is all admissible, is insufficient to defeat summary judgment because he fails, as a threshold matter, to point to any evidence that each of Humble ISD=s specific reasons for its actions were in fact false.  See Canchola, 121 S.W.3d at 740; Laxton, 333 F.3d at 578; Taylor, 325 F. Supp. 2d at 772B73. Therefore, summary judgment as to both his age discrimination and retaliation claims was proper.  We overrule Kucera=s first and second issues.

Having disposed of all Kucera=s issues, we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  Kucera asserts that the trial court erred in granting summary judgment on his retaliation claim because Humble ISD did not specifically brief this claim in its motion.  We disagree.  Humble ISD=s motion contains several pages specifically addressing his retaliation claim, and many of its other arguments regarding age discrimination overlap with retaliation because the burdens of proof are the same. See Jones v. Jefferson County, 15 S.W.3d 206, 210 (Tex. App.CTexarkana 2000, pet. denied).  Therefore, the trial court did not err in considering Humble ISD=s summary judgment motion as moving on all of Kucera=s claims.

^[2]  In his third issue, Kucera complains that the trial court excluded some of his summary judgment evidence, including evidence regarding his qualifications, such as training certificates and performance evaluations.  Humble ISD had objected that these documents had not been authenticated.  The documents were attached to Kucera=s affidavit in support of his response to Humble ISD=s summary judgment motion, but he made no attempt to authenticate these documents in his affidavit and in fact never even mentioned them.  Kucera asserts in his brief that the documents Awould have been provided by Appellee during discovery@ and are therefore self-authenticating under Texas Rule of Civil Procedure 193.7.  However, he has no proof, such as a bates-stamp, that they were produced by Humble ISD during discovery, and Humble ISD denies that they were.  Because he made no attempt to authenticate these documents and has no proof that they are self-authenticating, the trial court did not abuse its discretion in excluding them.  See Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.CDallas 2002, no pet.).  None of the remaining evidentiary issues of which Kucera complains in his third issue are relevant to our disposition of the case, and therefore we do not address them.