Dr. Shu Zhi Wu v. M.D. Anderson Cancer Center ( 2002 )

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion file November 14, 2002.                                                          

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01111-CV 

____________

DR. SHU ZHI WU, Appellant

V.

M.D. ANDERSON CANCER CENTER, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 99-06928

O P I N I O N

            Appellant Dr. Shu Zhi Wu began managing data for the Neurosurgery Department of M.D. Anderson Hospital in 1993 when he was 61 years old.  The Department gradually grew as the number of doctors and surgeries increased.  In 1995, Dr. Wu suffered a heart attack, but returned to work a month later.  In mid-1997, the Department hired Dr. Abi-Said, a 34-year-old epidemiologist, to create and manage a more sophisticated database and supervise Dr. Wu. 

In January 1998, a surgeon questioned the accuracy of Dr. Wu’s data.  After an investigation, Dr. Abi-Said wrote a memo to Dr. Wu on February 10, 1998 detailing certain inaccuracies and expressing confidence that Dr. Wu would address them.  Three days later, he resigned, though he was granted four months’ extended leave for his retirement to vest.  Shortly thereafter, Dr. Wu filed age and disability claims with the Texas Commission on Human Rights Act (“TCHRA”), and then this suit.[1] 

            The hospital moved for summary judgment on grounds that there was neither constructive discharge nor discrimination.  Because the trial court stated no reasons, we may affirm on any ground advanced in the motions.  See  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).   We review the summary judgment evidence in the light most favorable to Dr. Wu.  KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999).

Both of Dr. Wu’s claims require proof that discrimination was a motivating factor in an adverse employment decision. See generally Tex. Lab. Code Ann. §§ 21.051–21.306.  Although Dr. Wu resigned, he alleges he was constructively discharged.  Constructive discharge serves as a legal substitute for the discharge element of a prima facie case of discrimination.  Hammond v. Katy I.S.D., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ.).  But it occurs only when an employer makes conditions so intolerable a reasonable person in the employee's position would have felt compelled to resign.  Id.  In making our inquiry, we examine only the conditions imposed, not the state of mind of employer or employee.  Id. We have held that derogatory comments resulting from disciplinary proceedings, unfavorable work evaluations, or humiliation or embarrassment stemming from a transfer to a different position are insufficient to support a claim for constructive termination.  Id. at 178. 

In his brief, Wu lists ten occurrences that he says forced him to resign.  Three of these were trifling—he was moved from a small private office to a larger one he shared, his phone line was changed from a direct one to one answered by a receptionist, and his file cabinets were moved to a hallway. Five concerned conditions that, while not pleasant, must commonly be faced by employees—his workload increased as business grew, a younger person was made his supervisor, files were destroyed that made his work harder, his salary was frozen, and he heard that an administrator wanted to eliminate his job.  One—Wu’s unfavorable evaluation in the February 10^th memo—we held in Hammond was insufficient.

Dr. Wu’s final complaint is that a department administrator told him he should retire, and that he concluded from this that she thought he was too old and sick.  Wu admits this conversation took place more than two years before he resigned, thus belying any claim that it made his employment intolerable.

As a matter of law, we hold that Dr. Wu was not constructively discharged.  The trial court’s summary judgment is affirmed.

                                                                                                                                                                                                                                                                                                                                                                                                            /s/        Scott Brister

                                                                                                Chief Justice

Judgment affirmed and Opinion filed November 14, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish — Tex. R. App. P. 47.3(b).

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[1] Dr. Wu’s lawsuit also alleged intentional infliction of emotional distress, but on appeal he does not challenge the trial court’s summary judgment on this claim.