Louatrice Henderson v. the University of Texas M.D. Anderson Cancer Center

Opinion issued November 4, 2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00376-CV

____________

LOUATRICE HENDERSON, Appellant

V.

THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2006-34515

MEMORANDUM OPINION

          Appellant has filed a motion for reconsideration en banc from this Court’s April 29, 2010 opinion.  In light of the motion, we withdraw our opinion and judgment of April 29, 2010 and issue this opinion in its stead.  We overrule the motion for reconsideration en banc as moot.  See Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g) (noting that motion for en banc reconsideration becomes moot when new opinion and judgment issue).

          This is an employment discrimination case. Appellant Louatrice Henderson (“Henderson”) brought suit against the University of Texas M.D. Anderson Cancer Center (“M.D. Anderson”), alleging age and race–related employment discrimination in violation of the Texas Commission on Human Rights Act (“TCHRA”).²  Without specifying its grounds, the trial court granted summary judgment in favor of M.D. Anderson.  We affirm.

I. Background

          Henderson is a black female who worked for M.D. Anderson for approximately six years, beginning in 1997.  She was 47-years-old when last employed at the facility.  For five years Henderson worked as the Staffing Representative for Human Resources (“HR”) Recruitment.  Later, she obtained employment in the HR Department on the Job Change Team.  The main purpose of the Job Change Team was to identify and to assist M.D. Anderson employees wanting to transfer to different jobs within the institution.

          Kelly McDermott, a white female, became supervisor of the Job Change Team in August 2002.  Part of McDermott’s responsibility was to evaluate Henderson’s job performance. In June 2003, McDermott evaluated Henderson’s overall job performance as “substantially exceed[ing] expectations in most significant areas.”  In September, McDermott added a Caucasian female, Beverly Poulter, to the Job Change Team.

          During that same year, M.D. Anderson’s associate vice president for HR, Anne Speed, took steps to improve the HR Department’s communication skills and its efficiency.  She consolidated recruitment work and selected Martha Jones, a black female, to be the Director of the HR Recruiting Department.  Speed also began implementing plans recommended by a consulting firm that the Job Change Team and its positions be eliminated by April 2004.

          Between November 2003 and March 2004, Henderson informally met with Jones approximately three times.  Henderson alleges that during these meetings, she complained to Jones that her immediate supervisor, McDermott, was discriminating against her by giving Henderson’s co-worker, Poulter, special projects, jobs, and responsibilities.  Henderson also claimed that McDermott had instructed her on an occasion to “shut up.”

          Jones testified that she viewed the meetings with Henderson as instances when she counseled Henderson concerning her job performance.  Jones characterized Henderson’s personality as “defensive” and stated that Henderson lacked flexibility.  Jones allegedly told Henderson that she could “lose her job” if she either did not like her job or reported McDermott’s discriminatory treatment of her.  Jones never relayed Henderson’s allegations of discrimination to McDermott or anyone else.

          In March 2004, the Job Change Team was informed that its members would have to apply for positions under a new business model. Panel interviews of internal candidates for the new recruiter positions occurred in April 2004.  Jones and two other women conducted the interviews of the displaced members of the Job Change Team, including Henderson, and gave the results to Speed.  The panel’s recommendations to Speed addressed who they believed should be retained and who should be let go.  On April 19, 2004, everyone on the Job Change Team, except Poulter, was laid off. 

          Subsequently, Henderson filed a timely complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination, race discrimination, and retaliation.  The EEOC granted Henderson the right to sue, and she filed suit in federal district court.  The federal district court dismissed Henderson’s race-discrimination and unlawful-retaliation employment claims and the U.S. District Court for the Fifth Circuit affirmed.  Henderson v. Univ. of Tex. M.D. Anderson Cancer Ctr., No. H-06-569, 2007 WL 2913317 (S.D. Tex. July 25, 2007) (Hoyt, J.), aff’d, Henderson v. Univ. of Tex. M.D. Anderson Cancer Ctr., 260 Fed. Appx. 741 (5th Cir. 2008) (Weiner, Garza, and Benavides, JJ.) (per curiam) (affirming summary judgment).

          Henderson then filed suit in state court, again claiming race and age discrimination and retaliation in violation of the TCHRA. The trial court granted M.D. Anderson’s motion for summary judgment.  On appeal, Henderson contends that the trial court erred in granting appellee’s motion for summary judgment because (1) there is a disputed fact issue with regard to whether Henderson can prove pretext about two positions she sought under the reorganization, (2) the court failed to consider the evidence in the record, the standard of review, and prevailing case law in reaching its decision, (3) the court erred in concluding Henderson did not establish a claim for retaliation, and (4) the court erred in sustaining M.D. Anderson’s objection regarding the admissibility of the EEOC determination letter.

II. Standard of Review

            M.D. Anderson moved for summary judgment under rule 166a of the Texas Rules of Civil Procedure.  To prevail on a traditional motion for summary judgment under rule 166a, the party moving for summary judgment carries the burden of establishing that no material fact issue exists on the challenged elements and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a; M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).  We review summary judgments de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  And, when a trial court’s order granting summary judgment does not specify the grounds on which it relied, as is the case here, we must affirm summary judgment if any of the summary judgment grounds are meritorious.  FM Prop.  Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

III. Discussion

A.      Texas Law and McDonnell Douglas

          Like its federal counterpart, the TCHRA expressly prohibits employment discrimination with respect to race, color, disability, religion, sex, national origin, or age.  Tex. Lab. Code Ann. § 21.051 (Vernon 2006).  The Texas Legislature envisioned that the TCHRA would provide for “the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.”  Id. § 21.001(1); see also Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849 (1971) (“What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”).  Accordingly, Texas state courts follow analogous federal statutes and cases interpreting them to guide our reading of TCHRA.  See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Section 21.051 of the TCHRA provides:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Tex. Lab. Code Ann. § 21.051 (Vernon 2006).

          In McDonnell Douglas Corp. v. Green, the Supreme Court allocated the burden of production and ordered the presentation of proof in employment discrimination cases.  411 U.S. 792, 802–05, 93 S. Ct. 1817 (1973).  Texas courts invoke McDonnell Douglas in employment discrimination cases brought under state law.  See Quantum, 47 S.W.3d at 476; M.D. Anderson Hosp., 28 S.W.3d at 24; Waldmiller v. Continental Express, Inc., 74 S.W.3d 116, 122–23 (Tex. App.—Texarkana 2002, no pet.).

          The U.S. Supreme Court has summarized the allocation of proof in employment discrimination cases as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.  Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.  Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S. Ct. 1089 (1981) (citations omitted); see also Quantum, 47 S.W.3d at 476 (applying McDonnell Douglas in TCHRA age discrimination case).  Because direct evidence of discrimination is a rarity in employment cases, Henderson puts forth only circumstantial evidence that M.D. Anderson violated the TCHRA.  See Tyler v. Union Oil Co. of California, 304 F.3d 379, 393 (5th Cir. 2002) (“The McDonnell Douglas evidentiary framework is primarily concerned with the plaintiff’s initial burden when attempting to prove discrimination by circumstantial evidence.”).  Thus, without direct evidence of discrimination, this case merits the McDonnell Douglas “pretext” analysis.  Quantum, 47 S.W.3d at 476.³

B.      Estoppel

          As an initial matter, on appeal Henderson asserts claims based on race and age discrimination, as well as unlawful retaliation.  However, M.D. Anderson asserts that Henderson’s state court petition sets forth claims based on age discrimination and unlawful retaliation only, therefore we should not address her claims of race discrimination.  M.D. Anderson also contends that collateral estoppel should bar our consideration of Henderson’s retaliation claim. 

          It is unnecessary for us to resolve the merits of whether Henderson’s state court petition sets forth a claim of race discrimination, because, assuming it does, we agree with M.D. Anderson that such a claim would be barred by the principal of collateral estoppel.  As we have previously explained, Texas state courts follow analogous federal statutes and cases interpreting them to guide our reading of TCHRA.  See Quantum, 47 S.W.3d at 476; see also Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (“In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court.”).  In 2007, the U.S. District Court dismissed Henderson’s race discrimination and unlawful retaliation claims under the applicable prima facie and burden-shifting tests.  Henderson, 2007 WL 2913317.  Subsequently, the U.S. Court of Appeals for the Fifth Circuit affirmed.  Henderson, 260 Fed. Appx. 741.

          M.D. Anderson cites James v. City of Houston in support of its assertion that collateral estoppel should bar our consideration of Henderson’s race discrimination and retaliation claims.  138 S.W.3d 433 (Tex. App.—Houston [14th Dist.] 2004, no pet.). There, the Fourteenth Court of Appeals applied collateral estoppel to affirm the state district court’s grant of summary judgment for the City of Houston.  After losing his due process claim in federal court, under federal law, James brought an identical due process claim in state court.  The Fourteenth Court opined, “[a]t issue is whether James is barred by the doctrine of collateral estoppel from asserting his state-law claims when his parallel federal-law claims were dismissed in a separate proceeding in federal court.”  James, 138 S.W.3d at 434.  The court concluded that because the procedural due process protections provided under the Texas Constitution mirror those provided under the federal Constitution, the plaintiff was barred from raising his due process claim in state court. Id. at 439.

          We are persuaded by the reasoning of the James court and find it applicable to Henderson’s race discrimination and retaliation claims.  Because the Texas Supreme Court has determined that the protections provided under TCHRA mirror those provided under the analogous federal statutes, the order of the federal district court granting M.D. Anderson’s motion for summary judgment and the Fifth Circuit’s affirmance of such order precludes a contrary finding in the instant case.  See Quantum, 47 S.W.3d at 476; see also Canchola, 121 S.W.3d at 739. Therefore, having determined that Henderson’s race discrimination and retaliation claims are barred by the doctrine of collateral estoppel, we will consider only Henderson’s age-based discrimination claims.

C.      Henderson’s Prima Facie Case       

          Henderson must first establish a prima facie case for her discrimination claims.  The establishment of the prima facie case is a “condition precedent” to the pretext analysis.  See Jones v. Union Pac. R.R. Co., 302 F.3d 735, 741 (5th Cir. 2002).  Henderson need only make a minimal showing to establish her prima facie case.  See Gold v. Exxon Corp., 960 S.W.2d 378, 382 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see also Burdine, 450 U.S. at 523, 101 S. Ct. 1089 (noting that the plaintiff’s burden at this stage is “not onerous”).

          In employment discrimination cases based on circumstantial evidence, the plaintiff’s prima facie case relates to the employee’s burden of presenting evidence that raises an inference of discrimination.  See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 997 (2002).  A prima facie case of age discrimination requires proof that the plaintiff (1) is a member of a protected class; (2) was discharged; (3) was qualified for the position from which she was discharged; and (4) was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of her age.  See Baker v. Gregg County, 33 S.W.3d 72, 80 (Tex. App.—Texarkana 2000, pet. dism’d). 

          As Henderson was 47 years old at the time of her reassignment and subsequent firing, she falls within the relevant protected class, thereby meeting the first element of the prima facie case.  See Tex. Lab. Code Ann. § 21.101 (Vernon 1996) (limiting protection against age discrimination under the TCHRA to individuals who are forty years of age or older); cf. 29 U.S.C. § 631(a) (West 2009) (Age Discrimination in Employment Act protects individuals who are at least forty years of age).  M.D. Anderson’s decision to terminate Henderson constituted an adverse employment action. See Baker, 33 S.W.3d at 80.  Thus, she meets the second required element.  With regard to the third element, the record indicates that less than a year before the restructuring, McDermott evaluated Henderson’s overall job performance as “substantially exceed[ing] expectations in most significant areas.”  Moreover, with regard to the HR position that Henderson sought, the record indicates that Henderson had held a similar job previously.  Finally, with regard to the fourth element, the evidence indicates that no person over 40-years-old was interviewed or offered the HR position. 

          From the summary judgment evidence in the record, we find that Henderson met all of the elements of her prima facie case on the age-discrimination claim.

D.      M.D. Anderson’s Articulated Nondiscriminatory Reasons

          As Henderson has met the elements of her prima facie case, the burden shifted to M.D. Anderson to articulate legitimate nondiscriminatory reasons for Henderson’s termination.  See Quantum, 47 S.W.3d at 477.  The burden is one of production only, not persuasion.  See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097 (2000).  In promulgating its nondiscriminatory reason, the employer quickly and easily rebuts the presumption of discrimination, which summarily drops from the case.  See Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002); see also Pilditch v. Bd. of Educ. of the City of Chicago, 3 F.3d 1113, 1117 (7th Cir. 1993) (“[T]he employer need not persuade the court that he was actually motivated by the reason he gives and the mere articulation of the reason rebuts the prima facie case and puts the onus back on the plaintiff to prove pretext.”). Through the testimony of Speed, M.D. Anderson proffered nondiscriminatory reasons for Henderson’s termination.  First, M.D. Anderson claims it was motivated in implementing changes due to complaints and comments made to Speed by M.D. Anderson employees shortly after she started working there in 2002, and second, a consultant’s “Strategic Recruitment Review” report, which recommended eliminating Henderson’s position.  The Report identified “deficiencies” in areas including customer service, institutional perception, strategy, measurement, process management, and role definition.  The purpose of the report was to help “change the recruitment department from a largely administrative function to one that is truly a business partner to their clients,” so as to improve areas like the “manager satisfaction level” and department efficiency. 

          Agency restructuring is a legitimate, nondiscriminatory reason for an employee’s termination.  Burdine, 450 U.S. at 254, 101 S. Ct. 1089.  M.D. Anderson’s production of this legitimate nondiscriminatory reason eliminates the presumption of discrimination created by the plaintiff’s prima facie showing.  Quantum, 47 S.W.3d at 477.  Under the McDonnell Douglas framework, the burden shifts back to Henderson to call into question M.D. Anderson’s articulated reason.

E.      Establishing Pretext for Discrimination

In Reeves v. Sanderson Plumbing Products, Inc., the U.S. Supreme Court

clarified that when the plaintiff offers proof that the employer’s articulated reasons are false, the dispute must then be submitted to a jury to decide. 530 U.S. 133, 144–46, 120 S. Ct. 2097, 2107–2108 (2000).  Under Reeves, the plaintiff shows pretext by introducing evidence proving the reasons stated by the employer were not its true reasons, but were a pretext for discrimination or that said reasons were unworthy of credence.  530 U.S. at 143, 120 S. Ct. 2097.  In the summary judgment setting, however, the plaintiff need not prove pretext but merely establish a genuine issue of material fact on the matter.  See Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir. 1991).  Summary judgment will be improper if the plaintiff makes a prima facie case and produces sufficient evidence for a jury to disbelieve the employer’s stated reason for discharge.  See Reeves, 530 U.S. at 146–48, 120 S. Ct. 2097, 2108–2109.  However, the Court did state that “an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.”  Id. at 148, 120 S. Ct. 2097, 2109.  Thus, we analyze this step of the McDonnell Douglas inquiry in light of Reeves.

          M.D. Anderson claims it eliminated Henderson’s job because of departmental restructuring.  M.D. Anderson is entitled to reduce its force and structurally reorganize its operations to maximize efficiency, but an employer may not intentionally discriminate against an employee because of her age.  Gallo v. Prudential Residential Svs., Ltd., 22 F.3d 1219, 1225 (2d Cir. 1994). 

          To show pretext in a restructuring case, an employee must establish that an improper motive “tipped the balance” in favor of termination.  Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876 (7th Cir. 2002).  Bald assertions of impermissible age discrimination are insufficient to establish pretext.  See Amburgey, 936 F.2d at 814.  Here, Henderson failed to provide any evidence from which one could reasonably conclude that the restructuring and reduction was anything but bona-fide. 

          M.D. Anderson, through the testimony of Speed, proffered legitimate reasons that distinguished the successful position applicants from Henderson.  A chart summary of the interview assessment upon which Speed relied, in part, in making final decisions about the job offers shows that Henderson received an assessment of two out of four “points” in answering questions on the topics that the panel covered with her and the other applicants.  The summary states that the panel assessed Henderson’s interview performance as a three. 

          Panel member Jones testified that Henderson did not interview as well as some of the other staff with respect to recruitment questions and recruitment techniques and that she scored lower than the other applicants on each of the categories covered in the interview.  Likewise, panel member Brown testified that she remembered that she “generally scored other applicants higher than I scored Ms. Henderson.” Finally, Speed stated that her reason for declining to offer Henderson the positions she sought under the restructuring “resulted from my belief that the applicants hired into the recruiter positions stood the best chance of succeeding in the positions and would contribute more to M.D. Anderson in the roles offered them, when compared with Ms. Henderson and the facts of her candidacy.”

          To rebut M.D. Anderson’s nondiscriminatory reasons, Henderson must show she was “clearly better qualified” than the applicants who were retained.  See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996).  The evidence of relative qualifications must be more than merely subjective and speculative.  Id.  It must be specific and comparative in nature.  Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 959 (5th Cir. 1993). 

          With respect to the Candidate Recruiter position, Henderson alleges that she was “clearly better qualified” than Stephanie Perez, a 31-year-old Caucasian woman, Beverly Poulter, a 29-year-old Caucasian woman, and Sadia Jalali, a 25-year-old woman of Pacific Island descent, in terms of experience.  Henderson also alleges that she was clearly better qualified than Dana Stover, a 35-year-old Caucasian woman who had been employed exclusively as a recruiter while working for M.D. Anderson before the 2004 reorganization and hiring process, as well as earlier in her career.  Henderson asserts that Stover interviewed poorly and was subsequently terminated for unsatisfactory performance.

          Upon review of the record, we cannot conclude that Henderson’s claim that she was clearly better qualified than Perez, Poulter, and Jalali is more than a subjective and speculative assertion.  Nichols, 81 F.3d at 42.  Henderson states that she is more experienced than these three candidates, but does not explain with any specificity how she is more experienced. Likewise, with regard to Stover, Henderson makes the non-specific assertion that Stover “interviewed poorly,” but does not provide comparative evidence of Stover’s relative qualifications. Bodenheimer, 5 F.3d at 959. Additionally, the fact that Stover was subsequently terminated has no bearing on M.D. Anderson’s decision making process during the reorganization and hiring process. 

          With respect to the HR position, Henderson states that she was “clearly better qualified” than Deborah Becerra, a 26-year-old Hispanic woman who was offered an HR position.  Supporting Henderson’s contention is the fact that Henderson scored a “four” in the experience category used by the interviewing panel, while Becerra scored a “3.8.”  Both women have bachelor’s degrees.  However, the record reveals that Becerra is bilingual, while Henderson is not.  Henderson also claims that one younger applicant, Jennifer Cazaraz, did not meet the basic experience requirement for the HR position.

          Again, Henderson fails to explain with any specificity how she is clearly better qualified than Becerra, or to discuss or elaborate on how her experience compared to that of Cazaras.  Bodenheimer, 5 F.3d at 959.  Moreover, M.D. Anderson, through the testimony of Speed, explained that the organization needed an individual who spoke both Spanish and English to accommodate Spanish-speaking applicants and telephone inquiries, which was the basis for its decision to offer Becerra a position.  

          Henderson has presented this court with her disagreement with M.D. Anderson’s decision but not with sufficient evidence to raise a fact issue that she was clearly better qualified for the Candidate Recruiter and Human Resources Assistant positions.  See Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993) (“The ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor was it intended to transform the courts into personnel managers.”).

          Here, the record supports M.D. Anderson’s contention that its decision to retain applicants rather than her was necessitated by legitimate business decisions.  Henderson thus failed to raise a fact issue rebutting M.D. Anderson’s nondiscrimination reason for her termination.  See Anderson v. Taylor Pub. Co., 13 S.W.3d 56, 59–60 (Tex. App.—Dallas 2000, pet. denied); cf. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 909–911 (Tex. App.—El Paso 2001, pet. denied).  As the plaintiff has not produced sufficient evidence for a jury to disbelieve the employer’s stated reasons, the trial court properly granted summary judgment in favor of M.D. Anderson on the termination claim.  See Reeves, 530 U.S. at 148, 120 S. Ct. 2097. Henderson’s first, second, third, and fourth points of error are overruled.

F.      EEOC Determination Letter

          In her fifth point of error, Henderson argues that the trial court erred in sustaining M.D. Anderson’s objection regarding the admissibility of an EEOC determination letter submitted by Henderson.

          Evidentiary rulings are committed to the trial court’s sound discretion.  Bay Area Healthcare Gr., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007).  We review a trial court’s decision to admit or to exclude evidence for an abuse of that discretion.  In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).  A trial court abuses its discretion when it acts without reference to any guiding rules or principles.  Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).  We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling.  Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek Fin.Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

          M.D. Anderson argued before the trial court that the EEOC determination was not valid, and therefore irrelevant, because it failed to take into account any data about the ages of the self-selected pool of people who applied for recruiter or other positions under the department reorganization, and because it omitted other relevant data, including the identity of applicants who were offered positions but declined them. 

          Given this legitimate basis for the trial court’s ruling, and based on our review of the record, we find no evidence supporting Henderson’s claim that the trial court acted in an arbitrary or unreasonable manner in failing to admit the EEOC determination letter.  Therefore, Henderson’s fifth point of error is overruled.

Conclusion

          Henderson presented no evidence sufficient to rebut the legitimate non-discriminatory reasons offered by M.D. Anderson on her termination claim.  Accordingly, we hold that the trial court did not err in granting M.D. Anderson’s motion for summary judgment.  We overrule Henderson’s points of error and affirm the judgment of the trial court.

                                                                   Sherry Radack

                                                                   Chief Justice

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

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²  See Tex. Lab. Code Ann. § 21.001 et seq. (Vernon 2006).

³              Federal courts allocate the various burdens depending on whether the plaintiff presents direct or circumstantial evidence of discrimination. While courts invoke the “pretext” model when the plaintiff presents circumstantial evidence, they use the “mixed motive” model when the plaintiff brings forth direct evidence.  When a plaintiff produces direct evidence of the employer’s discriminatory intent, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision.  Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 n.4 (3d Cir. 1995). Under this “mixed motive” model, the employer does not escape liability altogether; rather the employer earns only an affirmative defense on the question of “but for” cause or cause in fact. Id. (noting the interplay of Supreme Court opinions and 1991 Congressional amendments to the Civil Rights Act in this context).  In fact, McDonnell Douglas is simply “inapplicable where the plaintiff presents direct evidence of discrimination.”  Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613 (1985).