Crye, Patricia K. v. Rohmax USA, Inc. ( 2003 )

Affirmed and Memorandum Opinion filed November 20, 2003

Affirmed and Memorandum Opinion filed November 20, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01153-CV

____________

PATRICIA K. CRYE, Appellant

V.

ROHMAX USA, INC., Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 01-32337

M E M O R A N D U M   O P I N I O N

            Patricia Crye appeals from a no–evidence summary judgment in her gender discrimination suit against her employer, Rohmax USA, Inc.  The sole issue on appeal is whether Crye presented evidence she suffered an adverse employment action.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.[1]  We affirm.

Discussion

            The parties are familiar with the facts, so we will not recount them here. We utilize the normal standards in reviewing the grant of a no-evidence summary judgment.[2]  Although it is difficult to determine Crye’s precise claim, she concedes she must prove an adverse employment action taken against her.[3]  Rohmax’s motion argued she failed to do so, and the trial court granted the motion.

            In her response, Crye alleged a number of instances of disparate treatment.[4]  But her proof was lacking—she attached only (1) her original petition, (2) her answers to interrogatories, (3) the deposition of Ronald Dale Bowman, and (4) an unsworn statement from a co-worker, Robert W. Bowden, Jr.  Neither a party’s petition nor its own answers to interrogatories constitute proper summary judgment proof.[5]  Similarly, an unsworn statement is not competent summary judgment proof.[6] 

            Lastly, while Bowman’s deposition was proper evidence, it does not support any of Crye’s allegations.  Bowman repeatedly denied either the incidents or knowledge of the incidents, and denied that Crye was treated differently from her male coworkers.  He did mention Crye was disciplined on at least one occasion for poor job performance, but a mere reprimand is not an adverse employment action.[7]  Accordingly, no evidence in Crye’s response raises a fact issue, and thus the trial court properly granted Rohmax’s motion.

            On appeal, Crye argues she suffered adverse employment actions because (1) she was constructively discharged, as her reprimands caused her stress requiring an extended medical leave, and (2) she lost a variety of company benefits due to her leave.  But because these issues were raised for the first time in her motion for new trial and there is no indication the trial court granted leave to supplement the summary judgment record, we cannot consider them.[8]  Accordingly, Crye’s issues are overruled.

            The trial court’s judgment is affirmed.

                                                                        /s/        Scott Brister

                                                                                    Chief Justice

Judgment rendered and Memorandum Opinion filed November 20, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

---

[1] See Tex. R. App. P. 47.4.

[2] See Tex. R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman, 46 Tex. Sup. Ct. J. 1093, 1097, 2003 WL 22025017 (Aug. 18, 2003).

[3] See generally Tex. Labor Code §§ 21.001–.306 (“Texas Commission on Human Rights Act”).  Although Crye uses the phrase “hostile work environment” in her petition, on appeal she does not assert the activities were so “severe and pervasive” as to justify that claim.  See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 743 (1998).

[4] Crye alleged that beginning in April 1999, she was:

more heavily scrutinized than her male co-workers, excluded from reviews which directly impacted her job, subjected to humiliation in the presence of her co-workers, required to perform tasks that were not her duties, but rather the duties of her foreman (a male) when other control men (operators) were not, and received disciplinary actions for mistakes when males who made the same or similar mistakes were not disciplined, all because of her sex, female.

Crye further alleged that Rohmax delayed investigating her reports of unfair treatment, and retaliated against her because of her complaints.

[5] See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–61 (Tex. 1995) (discussing impropriety of using pleadings as proof in summary judgment context); Dorsett Bros. Concrete Supply, Inc. v. Safeco Title Ins. Co., 880 S.W.2d 417, 420 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (“[O]ne’s own answers to interrogatories cannot be used by a party opposing a motion for summary judgment to raise a fact issue.”).

[6] See, e.g., Coastal Cement Sand Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex. App.—Houston [14th Dist.] 1997, writ denied) (“Without the notarization or jurat, the unsworn statement is not an affidavit, and it is not proper summary judgment proof.”).

[7] See, e.g., Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 139 (Tex. App.—Fort Worth 2000, pet denied) (citing  Messer v. Meno, 130 F.3d 130, 140 (5th Cir.1997)).  Crye cites Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999), for the proposition that a reprimand can be an adverse employment action.  Although Texas courts do look to federal case law regarding discrimination under the TCHRA, see M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000), we consider only Title VII cases for this purpose and not cases tried under 42 U.S.C. § 1983, see Nardini v. Cont’l Airlines, Inc., 60 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist] 2001, pet denied) (stating the TCHRA is modeled on federal law for purpose of executing policies in Title VII of the Federal Civil Rights Act of 1964).  Sharp was a section 1983 case, not a Title VII case.  164 F.3d at 933.  The definition of adverse employment action differs between cases tried under section 1983 and Title VII.  Id. at 933 n.21.  The definition in Sharp is therefore not applicable to the present case.

[8] See McMahan v. Greenwood, 108 S.W.3d 467, 482–83 (Tex. App.—Houston [14th Dist.] 2003, no pet. h.); Leinen v. Buffington’s Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.—Houston [14th Dist.] 1992, no writ).