Jacqueline Perry v. University of Houston Downtown

Opinion issued October 1, 2009

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-08-00807-CV

 

JACQUELINE PERRY, Appellant

V.

UNIVERSITY OF HOUSTON—DOWNTOWN, Appellee

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 0734040

MEMORANDUM OPINION

          After the University of Houston Downtown (UHD) fired Jacqueline Perry, Perry sued UHD, contending that it had fired her in retaliation for filing racial discrimination charges against UHD with the Equal Employment Opportunity Commission (EEOC) and a discrimination suit against UHD in federal district court.  The trial court granted summary judgment in favor of UHD.  On appeal, Perry contends that the trial court erred in granting summary judgment because (1) a fact issue exists as to whether she established a prima facie case of retaliation and (2) UHD committed fraud by attaching evidence of her federal lawsuit and her EEOC charges to its summary judgment motion.  We conclude that Perry failed to raise a material fact issue to support her retaliation claim and therefore affirm the judgment of the trial court.

Background

In August 1998, UHD hired Perry to work as a transcript analyst in the admissions department. Perry filed her first EEOC charge in April 2001, alleging racial discrimination.  She filed two more EEOC charges on April 30, 2004 and May 14, 2004.  These charges also allege racial discrimination, specifically, that numerous people—including her supervisors, co-workers, the university president, vendors, students, campus police, and Harris County sheriffs—participated in various wrongdoings, including wiretapping her home phone, spreading rumors about her, circulating a petition to get her fired, illegally obtaining her college transcripts, taunting her with hand gestures, making harmful remarks, and giving her unwarranted parking tickets.  In May 2005, Perry brought a federal suit against UHD based on these charges.  When Perry did not timely serve UHD with the summons or complaint, however, the federal court dismissed the suit for want of prosecution.

UHD hired Carmen Allen as director of admissions, and she became Perry’s supervisor in January 2005.  According to Allen, Perry soon began accusing her and others of harassment, but did not explain specific examples of the perceived harassment.   

At the same time, Allen had a number of concerns with Perry’s performance.  Several of Perry’s co-workers had complained to Allen about Perry’s conduct, indicating that she was uncooperative and producing deficient work.  Allen attempted to resolve these issues informally, but found Perry to be unreceptive.  When Allen addressed Perry about her performance problems, Perry made unsubstantiated claims that someone was sabotaging her work.

From 1999 through 2004, Perry received generally positive job evaluations from her supervisors, ranging from acceptable to outstanding.  Allen gave Perry her annual performance evaluation on May 18, 2005.  The evaluation rates Perry’s overall performance as “needs improvement”; however, it ranked many of Perry’s individual skills as “competent.”  Areas targeted for improvement include working relationships, interpersonal skills, professional development, and professionalism.  On the evaluation form, Perry noted her disagreement with most of the rankings and wrote in her own comments defending her work. 

Allen failed to see Perry’s performance improve on any of the areas targeted in her evaluation.  On June 2, 2005, Allen placed Perry on three weeks’ disciplinary probation for “inefficiency, incompetency, or negligence in the performance of duties.”  Perry was ordered to improve her performance in the following areas: (1) timely work completion, (2) positive and productive communication, (3) compliance with job-related requests by her supervisor, and (4) professional conduct.

When Perry failed to improve her performance during that probationary period, Allen took further disciplinary action, suspending Perry for three days without pay, followed by an additional two weeks’ probation.  Perry refused to sign the notice of disciplinary action. The notice cited eight incidents that had occurred during the first probationary period:

· June 7—When asked to correct work, Perry was unreceptive and argumentative, reminding Allen of her experience in her position.

· June 7—When asked to correct work, Perry claimed that the new process did not make sense and that her work was being sabotaged.

· June 8—Perry e-mailed Allen repetitively rather than making an initial effort to correct a problem or speaking with Allen in person, as requested.

· June 10—When asked to correct late work, Perry implied that her work was deleted and that she was not responsible.

· June 10—Perry attempted to request leave time that she did not have. When told that the leave could not be approved, she implied that Allen was incorrect.

· June 14—When asked to correct work, Perry replied that it was “a waste of time and totally outrageous,” then deleted the assignment rather than correct it.

· June 20—Allen again instructed Perry to correct the June 14 assignment. Perry insisted that she had done so, but someone else had deleted it.

· June 23—When asked to correct a mistake in her work Perry refused to accept responsibility for the error and instead blamed another employee.

Allen gave Perry notice of her termination on July 26, 2005.  The notice cited four specific instances of Perry’s conduct during the prior two-week probationary period that demonstrated her failure to improve her performance:

· July 1—When instructed to make a correction, Perry argued that it was already correct.

· July 1—When instructed to make another correction, Perry argued that it was already correct, and that “this behavior” was hurting the students, while specifying that it was not her behavior.

· July 12—Perry turned in a leave form for the time of her suspension, listing the purposes of leave as “an act of retaliation”

· July 13—When instructed to correct a date, Perry did so, but replied that the error was “a big slip of the fingers on someone else’s part.”

In the notice’s comments section, Perry wrote that the termination constituted an act of retaliation.

Perry filed her EEOC retaliation charge on November 29, 2005, claiming that she was disciplined and ultimately discharged because of her prior EEOC charges and lawsuit.  Perry then filed this lawsuit.

UHD moved for summary judgment. Among other evidence, UHD attached Allen’s affidavit, in which Allen testified that before Perry’s termination, she was not aware that Perry had filed any EEOC charges or a federal lawsuit.  At the meeting culminating in Perry’s termination, Perry mentioned to Allen that she believed her termination was an act of retaliation, but Perry did not elaborate on the source of the claimed retaliation.  Allen did not learn of Perry’s prior discrimination charges until Perry filed her November 2005 EEOC charge.  No one at UHD knew of Perry’s federal lawsuit until after her discharge, when it was served.   Perry admitted during her deposition that she did not tell anyone at UHD about the suit.

Discussion

We review the trial court’s ruling on a summary judgment motion de novo.  Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  We view the evidence in a light most favorable to the non-movant, making all reasonable inferences and resolving all doubts in the non-movant’s favor.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  Because the summary judgment order does not specify the ground or grounds on which the trial court relied for its ruling, we affirm the judgment if any of the summary judgment grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

          Here, UHD sought summary judgment under rule 166a(c).  Tex. R. Civ. P. 166a(c).  Under this provision, the movant has the burden to show that no genuine issue of material fact exists and thus is entitled to judgment as a matter of law.  Id.; KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  Once the movant shows it is entitled to judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a fact issue to defeat the motion for summary judgment. Green v. Lowe’s Home Centers, Inc., 199 S.W.3d 514, 517–18 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  The same standards for evidence that would be applicable at a regular trial apply to a summary judgment proceeding.  United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).

Retaliation claim

Perry contends that (1) the trial court improperly granted summary judgment because a fact issue exists as to whether she has established a prima facie case of retaliation and (2) UHD committed fraud in its summary judgment motion by attaching evidence of her federal lawsuit and her EEOC charges.

Perry brings her claim under the Texas Commission on Human Rights Act (TCHRA), the state counterpart to Title VII of the Civil Rights Act of 1964.  See Tex. Lab. Code Ann. § 21.001(1) (Vernon 2006); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).  TCHRA provides that

“[a]n employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who, under this chapter:  1) opposes a discriminatory practice; 2) makes or files a charge; 3) files a complaint; or 4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.”

Tex. Lab. Code Ann. § 21.055 (Vernon 2006).

          To establish a prima facie case of retaliation, a claimant must show that (1) she engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link between the filing of the claim and the termination.  Green, 199 S.W.3d at 518; see Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67–68, 126 S. Ct. 2405, 2414–15 (2006).[1]

Once the employee establishes a prima facie case, the employer bears the burden to rebut the alleged improper termination by producing evidence that a legitimate reason exists for termination.  Green, 199 S.W.3d at 519.  If the employer satisfies its burden of production, the burden shifts back to the employee to raise a fact issue as to a retaliatory motive.  Id.

          UHD moved for summary judgment on the basis that Perry failed to raise a prima facie case of retaliation.  Perry satisfies the first two elements of her prima facie case. The undisputed evidence shows that (1) she filed EEOC discrimination charges and a federal lawsuit, and (2) UHD placed her on probation, suspended her, and then fired her. 

UHD’s motion focuses on the third element of the prima facie case, contending that Perry has adduced no evidence showing that a causal link between Perry’s earlier claims of discrimination and her discharge.  An employee may establish a link between termination and the protected activity through either circumstantial evidence or reasonable inferences from the evidence.  Id. at 519.  Circumstantial evidence sufficient to show a causal link between termination and the filing of a discrimination charge or suit may include (1) the employer’s failure to follow its usual policy and procedures in carrying out the challenged employment actions; (2) discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the discrimination charge or suit by those making the termination decision; (4) evidence that the stated reason for discharge was false; and (5) the temporal proximity between the employee’s conduct and discharge. Id.

          Compliance with university policy

          UHD encourages a progressive system of discipline, which includes personal conference, written reprimand, suspension, and lastly, dismissal. UHD policy lists as grounds for discipline “inefficiency, incompetency, or negligence in the performance of duties.”  The policy instructs that the notice of disciplinary action should clearly identify the problem, identify the remedial action expected, state the results of failure to take the specified remedial action, and allow the employee an opportunity to respond.  The policy states that dismissal is appropriate when substandard performance persists despite one or more attempts at correction.

The records of Perry’s seven-year employment history with UHD do not reflect unsatisfactory performance until her final year of employment.  Her employment file contains positive job performance evaluations, and Perry produced several e-mails from co-workers and UHD professors praising her work, all of which predate the period in which she came under Allen’s supervision.

After Allen became Perry’s supervisor in 2005, Allen’s affidavit identifies, and Perry’s employment records confirm, specific instances of incompetent and insubordinate conduct.  The disciplinary actions taken against Perry during this period comply with UHD’s stated policies.  Each notice specified the problem, prescribed corrective action, and informed Perry of the results if the corrective action did not occur.  Perry had the opportunity to respond to each action.  The disciplinary actions started with an informal conference, and Perry’s persistent failure to correct her work performance as prescribed led to probation, suspension, and termination.  Perry did not produce any evidence to challenge UHD’s adherence to its progressive discipline policy or to show that UHD treated her less favorably than other similarly situated employees. 

Knowledge and timing

          Temporal proximity between the filing of an EEOC charge or a discrimination suit and a disciplinary action may be evidence of a causal connection when they are separated by weeks, as opposed to months or years.  Green, 199 S.W.3d at 523.  Perry’s retaliation claim relies on the EEOC charges she filed in 2001 and the spring of 2004.  UHD did not discipline Perry until June 2005.  A year between protected activity and a disciplinary action is not sufficiently proximate to show a causal link without other evidence that the firing was retaliatory.  See id.  Perry also fails to show a causal link between her federal lawsuit and her discipline and termination.  Perry admitted in her deposition that no one at UHD knew she had filed her lawsuit before it fired her, and she did not serve UHD with the suit until several months after her discharge.

Temporal proximity may be evidence of a causal connection between the filing of an EEOC charge and the adverse employment action only when a person with input into the employment decision was aware of the protected activity.  See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 320 (5th Cir. 2004); Marsaglia v. Univ. of Texas, El Paso, 22 S.W.3d 1, 5 (Tex. App.—El Paso 1999, pet. denied) (affirming summary judgment where evidence failed to show that decision-maker had any knowledge of appellant’s protected activity).  Allen’s uncontroverted testimony establishes that she was unaware of the lawsuit and the EEOC charges at the time she discharged Perry.  Thus, Perry failed to raise a fact issue to make the required causal link between her protected activity in filing those discrimination claims and the adverse employment action.

UHD produced summary judgment evidence that it had legitimate non-retaliatory reasons for terminating Perry. See Green, 199 S.W.3d at 519.  The evidence before the trial court uniformly showed that Perry had unsatisfactory work performance and failed to correct it.  Perry offers only her subjective beliefs to counter UHD’s proffered reasons for her discipline and discharge. To establish a genuine issue of material fact, evidence must be more than merely subjective and speculative. See id. at 522 (appellant’s subjective belief regarding reason for discharge is insufficient to raise fact issue); Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, pet. denied) (stating that subjective beliefs of discrimination alone are insufficient to establish prima facie case).   Thus, we hold that the Perry failed to raise a genuine issue of material fact supporting the causation element of her prima facie case.

Fraud complaint

Perry complains that UHD fabricated the evidence and misled the trial court concerning the reasons for Perry’s discharge. But Perry fails to produce any evidence to support her claim.  Her generalized assertions do not a raise fact issue as to pretext. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997).  Perry alleges that UHD committed fraud in their summary judgment motion by attaching the pleadings for her federal lawsuit and her EEOC charges, but she does not present evidence disputing the truth of any of the specific allegations Perry herself made within those documents.  The trial court could properly consider Perry’s prior EEOC and lawsuit filings, which establish the dates and subject matter of the protected activities that serve as grounds for her retaliation claim.

Conclusion

We hold that Perry has failed to adduce any evidence to support the causal link essential to her retaliation claim.  We therefore affirm the judgment of the trial court.

All pending motions are dismissed as moot.

Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

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[1] Because TCHRA seeks to promote federal civil rights policy, we may look to analogous federal precedent to interpret it.  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 524 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).