Kurt Floersheim v. Motiva Enterprises, LLC ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00229-CV
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KURT FLOERSHEIM, Appellant
V.
MOTIVA ENTERPRISES, LLC, Appellee
________________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-189,793
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MEMORANDUM OPINION
In this appeal, we consider whether summary judgment was properly granted
in favor of an employer based on the employer’s motion for summary judgment,
which asserted that its former employee filed an age-discrimination claim outside
the applicable statutory filing period. See Tex. Lab. Code Ann. §§ 21.0015, 21.202
(West 2006) (requiring an employment discrimination claim to be filed with the
Texas Workforce Commission civil rights division “not later than the 180th day
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after the date the alleged unlawful employment practice occurred”). We hold the
trial court properly granted the employer’s motion for summary judgment.
Background
Kurt Floersheim, formerly employed by Motiva Enterprises, LLC, filed a
suit alleging that Motiva had violated the Texas Labor Code by discharging him
because of his age. See Tex. Lab. Code. Ann. § 21.051 (West 2006) (making it an
unlawful employment practice to discharge an individual because of the
employee’s age). Floersheim’s suit asserts that on June 15, 2009, Motiva informed
him that he would be terminated on November 30, 2009, as part of an overall
reduction of Motiva’s workforce. Floersheim’s deposition, which was part of
Motiva’s summary judgment proof, reflects that on June 15, 2009, Floersheim
attended a meeting with his supervisor and two other Motiva employees where he
was told that he was being laid off, effective November 30, 2009. Floersheim also
testified that the day after he learned that he was being laid off, he was told that he
could not return to the Motiva refinery where he had worked since 2006.
According to Floersheim, after he was sent home, Motiva replaced him the next
day with two younger employees. Floersheim remained on Motiva’s payroll until
November 30.
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Motiva challenged the trial court’s jurisdiction over Floersheim’s claim by
filing a traditional and no-evidence motion for summary judgment. See Tex. R.
Civ. P. 166a(b), 166a(i). Motiva’s motion for summary judgment alleges that
Floersheim failed to file a timely administrative complaint with the Commission.
See Tex. Lab. Code Ann. § 21.202(a). According to Motiva’s motion, Floersheim
should have filed his complaint with the Commission no later than 180 days after
June 15, 2009, the date Motiva notified him that he had been included in the group
being laid off.1 Motiva’s motion also asserts that there was no evidence that
Floersheim had filed a timely administrative complaint and no evidence that any
legally recognized excuse existed to extend the statutory 180-day filing period. A
copy of the complaint Floersheim filed with the Commission, file marked June 1,
2010, is included in the summary judgment evidence; additionally, Floersheim
acknowledged during his deposition that he filed the complaint at issue on June 1,
2010.
On appeal, Floersheim argues that the 180-day filing period did not
commence on June 15 when his supervisor told him that his employment was
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Based on Motiva’s argument, Floersheim was required to file his
administrative complaint by no later than December 14, 2009. See Tex. Gov’t
Code Ann. § 311.014(b) (West 2005) (extending a period that falls on a Saturday,
Sunday, or legal holiday to include the next day that is not a weekend or legal
holiday).
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being terminated. According to Floersheim, the filing period for his case did not
commence until he received Motiva’s severance offer and learned that he had been
replaced by someone younger. Floersheim contends the date he learned of his
official termination was not conclusively established by Motiva’s summary
judgment proof. Floersheim also argues that the filing period in his case was tolled
because he was not able to obtain the information needed to determine the
existence of his claim within the 180-day period at issue, despite his diligent
efforts to do so.
In its brief, Motiva asserts the 180-day filing period commenced on June 15,
when Floersheim learned from his supervisor that he was included in a group of
approximately thirty-five employees who would be laid off. Motiva also argues
that the date Motiva replaced Floersheim with others is not relevant to the date the
180-day filing period commenced. Finally, Motiva argues that the doctrine of
equitable tolling does not apply, but if it does apply, Floersheim cannot rely on that
defense because he failed to raise it in his pleadings.
Standard of Review
The standards governing the review of orders that grant summary judgments
are well established. “We review a summary judgment de novo.” Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The
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party filing a traditional motion for summary judgment has the burden to show that
no genuine issue of material fact exists on at least one element of each of the
plaintiff’s theories of recovery. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289
S.W.3d at 848. In resolving whether the movant met its summary judgment
burden, we resolve every reasonable inference in favor of the non-movant and take
all evidence favorable to the non-movant as true. See Nixon v. Mr. Prop. Mgmt.
Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
The standards that apply to no-evidence motions for summary judgment are
also settled. To defeat a no-evidence motion challenging one or more elements of
the non-movant’s theories of recovery, the non-movant must produce summary
judgment evidence raising a genuine issue of material fact on each element of
recovery that movant’s no-evidence motion has challenged. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant raises a genuine
issue of material fact by producing “more than a scintilla of evidence” establishing
the challenged element’s existence. Id. More than a scintilla of evidence exists
when the evidence is such that reasonable and fair-minded people can differ in
their conclusions. Id. at 601. If “‘the evidence offered to prove a vital fact is so
weak as to do no more than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect, is no evidence.’” Id.
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(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In
determining whether the non-movant has produced more than a scintilla of
evidence, we review the evidence in the light most favorable to the non-movant,
giving credit to such evidence if reasonable jurors could and disregarding contrary
evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006).
Analysis
The failure to file a timely administrative complaint creates a jurisdictional
bar to a claimant’s age-discrimination case. See Schroeder v. Tex. Iron Works, Inc.,
813 S.W.2d 483, 488 (Tex. 1991), overruled in part on other grounds by In re
United Servs. Auto. Ass’n, 307 S.W.3d 299, 310 (Tex. 2010). Therefore, Motiva’s
motion for summary judgment required the trial court to decide whether it could
exercise jurisdiction over Floersheim’s age-discrimination claim. The Texas
Supreme Court has held that the period within which an employee must file an
administrative complaint complaining of discrimination begins when the employee
is notified of a discriminatory employment decision. See Specialty Retailers, Inc. v.
DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996) (“The [180-day] limitations
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period begins when the employee is informed of the allegedly discriminatory
employment decision, not when that decision comes to fruition.”).
In Floersheim’s case, the summary judgment evidence reflects that
Floersheim was advised he was in a group of employees who were being laid off,
although he was provided that information several months before he received his
last paycheck. Nevertheless, Motiva’s decision to reduce the size of the company’s
workforce is not unlawful; however, in reducing its workforce, Motiva could not
illegally discriminate against employees who were protected from discrimination
by section 21.051 of the Texas Labor Code. See Tex. Lab. Code Ann. § 21.051.
In the context of a layoff, the alleged discriminatory act is focused on why a
certain employee was included in the layoff. See generally Prairie View A&M
Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (noting that in pay
discrimination cases, “the only act taken with a discriminatory motive is the pay-
setting decision”). This focus on the discrimination at issue is reflected in
Floersheim’s complaint, which alleged: “[Motiva]’s selection process for its
reduction in force resulted in the three oldest Process Engineers being laid off
(ages 50-65). No Process Engineers under the age of 40 were laid off.” The
discriminatory act identified by Floersheim’s complaint concerns the selection
process for the layoff.
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We conclude that the allegedly discriminatory decision at issue in this case
was Motiva’s decision to include Floersheim in the group to be laid off.
Floersheim learned of that decision on June 15. Section 21.202 of the Texas Labor
Code required Floersheim to file an administrative complaint complaining of
Motiva’s decision to lay him off with the Commission within 180 days of the date
he learned of Motiva’s decision. See Specialty Retailers, 933 S.W.2d at 493
(concluding that 180-day period began when employee was told she would be fired
if medical leave lasted over one year, not when she was actually fired);
Comptroller v. Landsfeld, 352 S.W.3d 171, 178 (Tex. App.—Fort Worth 2011, pet.
denied) (concluding that 180-day period began when employee was told that if he
did not retire, he would be fired, not on the last date the employee worked for the
employer).
While Floersheim acknowledges that he was informed on June 15 that he
was being laid off, he argues that Motiva’s decision to do so was not then official;
according to Floersheim, Motiva’s decision became official when he was
“officially terminated and replaced by someone younger or outside of his protected
class.” Floersheim cites Texas A&M University, Corpus Christi v. Vanzante, 159
S.W.3d 791, 797 (Tex. App.—Corpus Christi 2005, no pet), in support of his
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argument that a fact issue exists about when he received notice of Motiva’s
allegedly discriminatory decision.
In Vanzante, the dean of a state university’s business school told the plaintiff
to communicate with the chair of the accounting department about a professorship
in the department. Id. at 793. The evidence showed that in April, the plaintiff
learned from the dean of the business school that he had not been selected for a job
in the accounting department. Id. Subsequently, in June, the plaintiff received a
letter from the chair of the accounting department advising that he had not been
selected for a position. Id. In Vanzante, the court of appeals held that under these
circumstances, the trial court did not err in denying the employer’s motion to
dismiss because “[t]he first unequivocal notice Vanzante received of the
University’s decision came from [the accounting chair’s] letter.” Id. at 796.
Unlike the facts before the court in Vanzante, the evidence was undisputed
that Floersheim was told during a meeting with his supervisor that he was being
laid off. There was no evidence before the trial court that Floersheim, as a
reasonable person, believed that some other Motiva employee was in charge of
delivering the news of the layoff to him. In Floersheim’s case, the evidence
conclusively demonstrated that the filing period for Floersheim’s claim
commenced on June 15.
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Floersheim also argues the trial court’s summary judgment is not supported
by sufficient evidence because the summary judgment record shows that he did not
receive his termination papers on June 15, and the date those documents were
received was not conclusively established. However, Floersheim’s deposition
testimony does not support his claim that he was required to sign any sort of
document formalizing Motiva’s decision terminating him; instead, his testimony
reflects that at some time after the June 15 meeting, he received a severance offer
that he refused to sign because he did not want to give up his right to litigate. In
age-discrimination cases, the filing period for the claim commences when the
employee receives notice of the allegedly discriminatory employment decision, not
when that decision comes to fruition. Specialty Retailers, 933 S.W.2d at 493.
Floersheim also argues that the 180-day filing period did not commence
until he learned that a younger employee had replaced him. In our opinion, the
replacement of an employee who is protected from discrimination under section
21.051 of the Texas Labor Code may be evidence that the employer’s decision was
discriminatory, but the discharge of the employee because of the employee’s age,
not the decision to hire someone else, is the unlawful employment practice. See
Tex. Lab. Code Ann. § 21.051. The summary judgment record, which includes
Floersheim’s deposition, reflects that on June 15 he learned of Motiva’s decision to
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lay him off. Hiring a younger employee to fill a job is not a prohibited act under
section 21.051 of the Texas Labor Code; but, discharging an employee because of
the employee’s age is a prohibited act. See id. In Floersheim’s case, the summary
judgment proof established that Floersheim learned on June 15 of his impending
discharge.
Finally, we address Floersheim’s argument that equity is available to toll the
date his filing period commenced. However, Motiva’s no-evidence motion asserted
that no evidence existed to show that Floersheim filed a timely administrative
complaint, that no legally recognized excuse existed to excuse that failure, and that
no evidence justified extending the filing period in Floersheim’s case. Floersheim
filed no evidence in his response to Motiva’s motion for summary judgment, and
in his response, he failed to point the trial court to any evidence in the summary
judgment record regarding his claim that Motiva’s conduct delayed the start of his
filing period.
Rule 166a(i) of the Texas Rules of Civil Procedure creates a burden of
production that Floersheim failed to meet. Tex. R. Civ. P. 166a(i) (requiring that
the trial court “grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact”). Moreover, Rule 94 of the Texas
Rules of Civil Procedure requires that affirmative defenses, like tolling, be
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pleaded; if not, such affirmative defenses and avoidances are deemed to be waived.
Tex. R. Civ. P. 94 (requiring that a party plead matters like estoppel and other
avoidances or affirmative defenses); see also KPMG Peat Marwick v. Harrison
Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (requiring that party
asserting fraudulent concealment to defend against a claim of limitations has
burden to plead defense and to provide sufficient evidence to raise questions of
fact); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988)
(requiring that a party plead the discovery rule to avoid a defense of limitations).
Floersheim cannot now, for the first time on appeal, raise affirmative defenses that
were not raised in the trial court.
Finally, although we expressly do not decide the issue on this record, we
note that other courts have refused to rely on equitable doctrines to create subject-
matter jurisdiction where it otherwise would not exist. See Czerwinski v. Univ. of
Tex. Health Sci. Ctr. at Houston Sch. of Nursing, 116 S.W.3d 119, 123 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied) (holding that equitable estoppel
could not be applied to extend 180-day filing requirement in age discrimination
case “because the statutory filing requirements are jurisdictional”); Guevara v.
H.E. Butt Grocery Co., 82 S.W.3d 550, 552-53 (Tex. App.—San Antonio 2002,
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pet. denied) (declining to apply the doctrine of equitable tolling to extend section
21.202 of the Labor Code’s 180-day filing requirement).
After considering the parties’ arguments, we conclude Motiva’s traditional
motion conclusively established that Floersheim’s 180-day filing period
commenced on June 15. Further, we conclude that Floersheim failed to
demonstrate that a fact issue existed regarding his tolling defense; alternatively, we
conclude that Floersheim waived his tolling claim because that claim is not
supported by Floersheim’s pleadings.
All of Floersheim’s issues are overruled, and we hold the trial court properly
granted Motiva’s motion for summary judgment. The trial court’s judgment is
affirmed.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on December 27, 2012
Opinion Delivered March 28, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
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