Opel Wiltshire v. Humpal Physical Therapy, P. C.

                              NUMBER 13-04-310-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

OPEL WILTSHIRE,                                                                          Appellant,

                                                             v.                               

HUMPAL PHYSICAL THERAPY, P.C.,                                          Appellee.

      On appeal from the 319th District Court of Nueces County, Texas.

                               MEMORANDUM OPINION

                          Before Justices Yañez, Castillo and Garza

                            Memorandum Opinion by Justice Garza

In this reverse discrimination case, appellant, Opel Wiltshire, appeals a summary judgment granted in favor of appellee, Humpal Physical Therapy, P.C.^[1]  Wiltshire generally contends the trial court erred in granting Humpal=s motion for summary judgment.  We affirm the judgment of the trial granting Humpal=s no-evidence motion for summary judgment, and reverse that portion of the judgment awarding attorney=s fees.

Wiltshire was employed by Humpal as a technician in February of 1999.  Subsequently, Humpal enacted a policy prohibiting the use of nail polish of unprofessional colors.  On September 16, 1999, Wiltshire=s supervisor, Russel Hanks, orally informed Wiltshire and other employees of the new policy.  On September 17, Wiltshire received a written memorandum informing her that the new policy prohibited the use of nail polish of unprofessional colors at work, and was advised that she should remove her neon green polish before returning to work.^[2]  On September 20, Wiltshire came to work still wearing neon green nail polish.  Hanks confronted Wiltshire and told her she must change the nail color before returning to work the next day.  The following day, Wiltshire again came to work wearing the green nail polish.  Hanks asked her to leave the clinic for the day.  Subsequently, Wiltshire called the owner of the company, Scott Humpal, to question him regarding the rationale for the policy.  Hanks terminated Wiltshire the following day stating as his reasons insubordination and failure to comply with the company=s nail polish policy.           Wiltshire filed claims with the Corpus Christi Human Rights Commission and the Equal Employment Opportunity Commission, alleging violations of the Texas Commission on Human Rights Act (ATCHRA@).  On June 13, 2000, Wiltshire filed suit alleging causes of action for race discrimination, hostile work environment, retaliation and intentional infliction of emotional distress.  Humpal filed a no-evidence motion for summary judgment and a traditional motion for summary judgment.  Wiltshire filed one response to both motions.  Without specifying its grounds, the trial court granted Humpal=s summary judgment on all of Wiltshire=s claims. This appeal ensued.

We review the decision to grant or deny a summary judgment motion de novo.  See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  Where, as in this case, the trial court does not state the specific grounds upon which the summary judgment was granted, the reviewing court must consider whether any theories set forth in the motion will support a summary judgment.  State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).  A summary judgment must be affirmed if any of the theories advanced by the movant are meritorious.  Id.

In a traditional summary judgment, the movant must establish that no genuine issue of material fact exists as to at least one element of the non‑movant=s claim and that the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex. 1990).  All doubts about the existence of a genuine issue of a material fact are resolved against the movant.  Cate, 790 S.W.2d at 562; see also Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301‑02 (Tex. 1990).

In a no‑evidence motion for summary judgment, the burden is on the non‑movant to present evidence raising a genuine issue of material fact in support of the challenged elements.  Smith v. Mossbacker, 94 S.W.3d 292, 294 (Tex. App.BCorpus Christi 2002, no pet.). As in traditional summary judgments, the evidence is viewed in the light most favorable to the non‑movant, disregarding all contrary evidence and inferences, and if there is Amore than a scintilla of probative evidence to raise a genuine issue of material fact,@ then the no‑evidence summary judgment should not be granted.  See Tex. R. Civ. P. 166a(i); see also Zapata v. The Children=s Clinic, 997 S.W.2d 745, 747 (Tex. App.BCorpus Christi 1999, pet. denied).  When 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.  Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

In support of her response to Humpal=s motion for summary judgment, Wiltshire attached the following evidence: excerpts from her own testimony via deposition and affidavit, excerpts from Hanks= deposition, and a copy of the charge of discrimination filed with the Corpus Christi Human Relations Commission (Athe charge@).  We first review the no-evidence motion for summary judgment.  Accordingly, we review this evidence to determine whether it rises to more than a scintilla of probative evidence on the elements challenged by Humpal.  See id.

Jurisdiction

One of the TCHRA=s purposes is correlation of state law with federal law in the area of discrimination in employment.  Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991).^[3]  Like Title VII, its federal counterpart, the TCHRA prohibits an employer from discriminating against an individual with respect to compensation, or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, and national origin.  See Tex. Lab. Code Ann. ' 21.051 (Vernon 1996); see also 42 U.S.C.A. ' 2000e‑2 (West 1994).  The TCHRA established the Texas Commission on Human Rights (TCHR) as the state Adeferral agency@ to investigate and resolve employment discrimination claims.  See Schroeder, 813 S.W.2d at 485. 

The Texas Supreme Court has held that exhausting the administrative remedies outlined in the TCHRA is a mandatory prerequisite to filing a civil action alleging a violation of the TCHRA.  See Schroeder, 813 S.W.2d at 485.  In order to comply with this exhaustion requirement, an employee must: (1) file a complaint with the TCHR within 180 days of the alleged discriminatory act; (2) allow the TCHR to dismiss the complaint or resolve the complaint within 180 days before filing suit; and (3) file suit no later than two years after the complaint is filed.  See Tex. Lab. Code Ann. '' 21.201‑.202, .208, .256 (Vernon 1996).  The TCHR shall inform the complainant of the dismissal or failure to resolve the complaint in writing by certified mail.  Tex. Lab. Code Ann. ' 21.208.

A complaint filed with the EEOC, and forwarded by the EEOC to the TCHR, satisfies the requirements of the TCHRA.  Price v. Philadelphia Am. Ins. Co., 934 S.W.2d 771, 774 (Tex. App.BHouston [14th Dist.] 1996, no writ).  A complaint must state: (1) that an unlawful employment practice has been committed; (2) the facts on which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and (3) facts sufficient to enable the TCHR to identify the respondent.  Tex. Lab. Code Ann. ' 21.201(c). The complainant may bring a civil action against the respondent within sixty days after the date a notice of the right to file a civil action is received from the TCHR.  See Tex. Lab. Code Ann. ' 21.254 (Vernon 1996).  A lawsuit under this section is limited to the complaints made in the discrimination charge and factually related claims that could reasonably be expected to grow out of the Commission=s investigation of the charge.  Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.BHouston [14th Dist.] 1999, no pet.). 

In its no-evidence motion for summary judgment, Humpal argued that Wiltshire=s claims are jurisdictionally barred because there was no evidence that she (1) filed her claim within the requisite 180-day period, and (2) exhausted her administrative remedies.  See Tex. Lab. Code Ann. ' 21.202.  On appeal, Humpal also contends that Wiltshire=s failure to include her TCHR right-to-sue letter in the appellate record amounts to no evidence that she exhausted her administrative remedies in the TCHR before filing suit.  See Tex. Lab. Code Ann. ' 21.252 (Vernon 1996).  Humpal also argued in its motion that Wiltshire=s original complaint to the Corpus Christi Human Relations Commission did not mention any specific occurrence of racial discrimination or hostile environment.^[4]  However, on appeal, Humpal now argues that Wiltshire=s complaint should be limited to the claims of reverse discrimination and hostile work environment, and should not include claims for retaliation or denial of opportunities for advancement because these claims were not included in her EEOC charge.^[5] 

Wiltshire=s summary judgment evidence reflects that on September 28, 1999, she filed her charge with the Corpus Christi Human Relations Commission and the EEOC.  The EEOC forwarded her charge to the TCHR pursuant to a AWorksharing Agreement.@  See Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 892 n.3 (Tex. AppBTexarkana 2001, ).^[6]  In her complaint, Wiltshire specifically alleged race discrimination and noted that the alleged discrimination took place on September 22, 1999.^[7]  She claimed she was terminated on that same date after she was Asubjected to a hostile work environment which included be [sic] referred to by racially discriminatory names such as >bolea [sic].=@^[8]  Wiltshire claimed that Hanks dismissed her because he did not approve of her phone call to Scott Humpal.  Wiltshire=s claim, which was filed September 28, alleged the date of discrimination as being September 22. The TCHRA requires that A[a] complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.@  See Tex. Lab. Code Ann. ' 21.202. Wiltshire=s complaint was clearly within the requisite 180-day period.           

Humpal further contends in its no-evidence motion for summary judgment, that Wiltshire=s failure to include her TCHR right-to-sue letter in the appellate record amounts to no evidence that she exhausted her administrative remedies in the TCHR before filing suit.  See Tex. Lab. Code Ann. ' 21.252. However, mere possession of a right‑to‑sue letter is not mandatory before filing suit.  See Tex. Lab. Code Ann. ' 21.252 (providing that failure to issue the notice of a complainant=s right to file a civil action does not affect the complainant=s right to bring a civil action).  As the Fourteenth Court so aptly stated:

A complainant (who has received notice of dismissal or failure to resolve) is entitled to request the letter. The executive director mayBbut does not have toBissue it.  And, the failure to issue the letter does not impact the complainant's right to sue.

***

We conclude that it is the entitlement to the right‑to‑sue letter that exhausts the complainant's administrative remedies. The statute certainly supports an interpretation that the right‑to‑sue letter is notice of exhaustion, not actually part of exhaustion.

City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.BHouston [14th Dist.] 2002, no pet.); see also Rice v. Russell-Stanley, L.P., (Tex. App.BWaco 2004, pet. denied) (holding that because receipt of a right‑to‑sue letter is merely notice of the exhaustion of remedies and does not constitute part of actually exhausting administrative remedies, the trial court erred in granting summary judgment on this basis). We agree that the right‑to‑sue letter is not required to satisfy the exhaustion requirement, but rather, that it constitutes notice of exhaustion.     

The charge indicates claims for unlawful employment practices including race  discrimination and hostile work environment.  Whether these claims are properly before us is no longer an issue as Humpal now agrees that these claims were raised in Wiltshire=s charge.  On appeal, Humpal contends that Wiltshire=s claim for retaliation should not be considered because it was not included in her EEOC charge. 

While retaliation was not one of the causes of discrimination checked in the charge, Wiltshire=s statement on the charge contends that she was fired because AI made a phone call to the owner and my supervisor objected.@  From this statement, it is reasonable to conclude that she is claiming some form of retaliation.  This claim is one that could reasonably be expected to grow out of the Commission=s investigation of the charge (i.e., that she was fired because she called in a complaint). See Thomas, 2 S.W.3d at 738. 

We conclude that Wiltshire produced evidence demonstrating that she properly exhausted her administrative remedies and that the trial court had jurisdiction to consider her claims for race discrimination, hostile work environment and retaliation.  Accordingly, lack of jurisdiction was not a ground upon which summary judgment could have been granted.

Retaliation

Humpal also moved for no-evidence summary judgment claiming that Wiltshire failed to produce evidence establishing a prima facie case of retaliation.  Wiltshire=s petition alleged that Humpal retaliated against her in violation of section 21.055 of the labor code.  See Tex. Lab. Code Ann. ' 21.055 (Vernon 1996).  In order to establish a prima facie case of retaliation, Wiltshire must prove that (1) she engaged in a protected activity, (2) Humpal took some unlawful employment action against her, and (3) Humpal=s unlawful employment action was due to her engagement in the protected activity.  Mayberry v. Texas Dep=t of Agric., 948 S.W.2d 312, 315 (Tex. App.BAustin 1997, pet. denied).  The labor code sets forth four broad categories of protected activities. Section 21.055 provides that an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who: (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.  To establish that the employee opposed a discriminatory practice, the employee must demonstrate a good faith reasonable belief that the underlying discriminatory practice of the employer violated the law.  Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 224 (Tex. App.BSan Antonio 1998, pet. denied).  An employee=s subjective belief is not competent summary judgment evidence.  M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000). Second, the employee must demonstrate that she reported the challenged activity to the employer.  Cox & Smith, 974 S.W.2d at 224.

In its no-evidence motion for summary judgment, Humpal alleged that Wiltshire could not establish elements one and three because her phone call to Scott to complain about Humpal=s policy regarding nail polish color does not qualify as engaging in a statutorily protected activity under the TCHRA.  Humpal argues that, because she was not engaged in a statutorily protected activity, there is not and cannot be evidence that Wiltshire=s termination was due to her engagement in any allegedly protected activity.  Humpal contended that even when evidence in Wiltshire=s favor is taken as true and all inferences are indulged in her favor, Wiltshire cannot establish that she was engaged in a protected activity or that Humpal terminated Wiltshire because of her alleged engagement in the protected activity.  We agree.

            In her response to Humpal=s motion for summary judgment, Wiltshire alleged that the protected activity was her complaint about the racial slurs made by her co-workers rather than her complaints about the nail polish policy.^[9]  Wiltshire claimed in the EEOC charge that she was terminated after she Amade a phone call to the owner and [Hanks] objected.@  Wiltshire=s evidence includes one conclusory statement in which Wiltshire says she believes her termination was in retaliation for calling Scott and because she made a lot of complaints about being picked on in the office.  Even if we accept this statement favorably to Wiltshire, her summary judgment evidence falls short of establishing that Humpal=s decision to terminate her employment was based on her complaints. See Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997) (finding that conclusory statements that are unsupported by facts are not proper summary judgment proof). Wiltshire=s deposition testimony, which she attached as evidence in her response, reflects that she called Scott because she wanted to inquire about the reasons for the new policy on nail polish color.  Wiltshire stated AI didn=t understand what the pointBwhat the reasoning for my nail color had to do with my ability to do my job.@  Wiltshire also admits in her deposition that she did not discuss the alleged name-calling with Scott during this conversation. 

Based on Wiltshire=s summary judgment evidence, we conclude that the phone call to Scott was related to the nail polish policy and had nothing to do with any alleged discriminatory practice. Therefore, there is no evidence that Wiltshire engaged in any protected activity or that her termination was due to her engagement in any protected activity.  Summary judgment was, therefore, proper on this cause of action.     

Race Discrimination

Wiltshire also alleged she was treated differently because of her race.  Wiltshire alleged discrimination in violation of section 21.051 of the labor code.  See Tex. Lab. Code Ann. ' 21.051(1). 

An employer may not discriminate against its employees because of race.  See id.  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. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam) (citations omitted). Under the burden-shifting test, the plaintiff must first establish a prima facie case of discrimination.  See McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  To meet this burden, a plaintiff must show (1) she was a member of a protected class, (2) she suffered an adverse employment action, and (3) non-protected employees were not treated similarly.  See Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.BHouston [1st Dist.] 2000, no pet.).  This burden is not onerous.  See Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).  The prima facie case Araises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.@  Id. at 255.  Once the plaintiff establishes a prima facie case, the burden of production then shifts to the employer to articulate legitimate, non-discriminatory reasons for any alleged unequal treatment.  McDonnel, 411 U.S. at 803; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001).  The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff=s prima facie case. Burdine, 450 U.S. at 256. The burden then shifts back to the plaintiff to show the employer=s stated reason was a pretext for discrimination.  Quantum Chem., 47 S.W.2d at 477.  The plaintiff retains the burden of persuasion to prove by a preponderance of the evidence she was discriminated against because of her race. See Burdine, 450 U.S.at 254. Also, subjective beliefs of discrimination alone are insufficient to establish a prima facie case.  See Montgomery v. Trinity I.S.D., 809 F.2d 1058, 1061 (5th Cir. 1987); Hornsby v. Conoco, Inc., 777 F.2d 243, 246‑47 (5th Cir. 1985).

            In its no-evidence motion for summary judgment, Humpal claimed (1) Wiltshire could not establish a prima facie case because there was no evidence that she was treated differently on account of her race, (2) there was no evidence establishing a causal connection between her discharge for insubordination and her race, (3) it had a legitimate nondiscriminatory reason for terminating Wiltshire, and (4) Wiltshire could not establish pretext.  Humpal challenged the last element of Wiltshire=s prima facie case in its motion for summary judgment.  Thus, our first inquiry is whether Wiltshire was treated differently than similarly situated Hispanic employees.  We must determine whether Wiltshire met her burden to present more than a scintilla of probative evidence to establish this element of her prima facie case.

To meet this burden, appellant makes a single conclusory statement: AIn the past, other Hispanic female staff members have placed calls to Mr. Humpal directly and never got fired or written up.@^[10]  Wiltshire was required to produce more than a scintilla of evidence establishing that the Hispanic employees were treated differently than she was.  However, Wiltshire did not produce any summary judgement evidence with respect to the circumstances under which the Hispanic employees called Scott, either with regard to the subject matter of the telephone calls, their duration or frequency, or any other information from which a determination could be made that the Hispanic employees were evenly situated or treated differently than Wiltshire. Wiltshire actually testified that she had no personal knowledge of the nature or subject matter of the alleged telephone calls made by the Hispanic employees.  Other than the above statement, Wiltshire does not direct this Court to any evidence to show she was similarly situated with these Hispanic employees such that Humpal=s failure to terminate all of them for making phone calls to Scott raises the inference she was terminated because of her race.  We conclude Wiltshire has failed to raise a fact issue by showing Humpal failed to terminate all of the Hispanic employees who also phoned Scott. 

If we assume, arguendo, that Wiltshire established a prima facie case that Humpal=s termination was racially motivated, the burden would then shift to Humpal to prove legitimate, non‑discriminatory reasons for any alleged unequal treatment. Here, the record shows Wiltshire was terminated for her refusal to comply with the nail polish color policy. Moreover, her deposition testimony also concedes that she was informed of the new policy and refused to comply. The burden of production would then shift back to Wiltshire to show that the reason proffered by Humpal was a pretext to race discrimination.  Wiltshire=s evidence is Aso weak as to do no more than create a mere surmise or suspicion of a fact.@  See Kindred, 650 S.W.2d at 63.  Wiltshire brings forward no evidence that implementation and enforcement of the nail polish policy was a pretext for discriminating against her.  Thus, Wiltshire has failed to establish a claim of race discrimination. Accordingly, summary judgment was properly granted on this ground.

Hostile Work Environment

Humpal also moved for summary judgment on Wiltshire=s hostile work environment claim. To establish a prima facie case of hostile work environment, Wiltshire had to show that (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 659 (Tex. App.BCorpus Christi 1994, writ denied). 

Wiltshire alleged that she was referred to as a Abolia@ by three Hispanic co-workers in the office.  For workplace comments to provide sufficient evidence of discrimination, those comments must be (1) related to plaintiff=s protected class; (2) proximate in time to the adverse employment decision; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue.  Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 140 (Tex. App.BFort Worth 2000, pet. denied).  AStray remarks made in the workplace by non-decision makers, without more, are not evidence of the employer=s intent to discriminate.@ Id.

Wiltshire=s summary judgment evidence amounts to mere conclusory statements.  In her affidavit and deposition, she testified that her co-workers referred to her as a Abolia@ beginning around May of 1999.  She claims the use of the term Agrew with increasing frequency@ to almost daily around the time of her termination.  However, Wiltshire opines that the term Abolia@ is offensive and derogatory, but does not describe the context in which the term was used except to state that Ait was a joke with them.@  Wiltshire provided no evidence that this so-called harassment Aaffected a term, condition, or privilege of employment,@ an element necessary for her prima facie case.  Additionally, she provided no evidence that the use of the term Abolia@ was by an individual with authority over the employment decision or that it related to her termination.  Accordingly, summary judgment was properly granted on this cause of action.

Intentional Infliction of Emotional Distress

To establish her claim of intentional infliction of emotional distress, Wiltshire had to produce evidence that (1) Humpal acted intentionally or recklessly, (2) its conduct was extreme and outrageous, and (3) its actions caused the plaintiff severe emotional distress.  Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).  It is well settled that a plaintiff must show that the defendant=s A[o]utrageous conduct is that which goes beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.@  Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993).

Wiltshire=s entire argument in response to Humpal=s no-evidence motion for summary judgment is: APlaintiff endured nearly five months of constant racial hostilities.  No one should be expected to tolerate this protracted verbal assault.  If this is not outrageous then the protection of the law is an illusion.@  However, Wiltshire did not produce any evidence that could even arguably come close to meeting the requisite elements.  Summary judgment was proper on this cause of action.

Attorney=s Fees and Costs

On appeal, Wiltshire contends that the trial court erred by awarding attorney=s fees under section 21.259 of the labor code because it did not make any finding that her claim was frivolous, unreasonable, or groundless.  See Tex. Lab. Code Ann. ' 21.259(a) (Vernon 1996); see also Christiansburg Garment Co. v. Equal Employment Opportunity Comm=n, 434 U.S. 412, 414 (1978).  Wiltshire also contends that the trial court=s denial of Humpal=s motion for sanctions under rule 13 evidences a finding that her claims were not groundless, frivolous, or brought in bad faith, as the motion for sanctions sought attorney=s fees on those grounds.  See Tex. R. Civ. P. 13.  We review a trial court=s award of attorney=s fees under section 21.259 for abuse of discretion. Greathouse v. Glidden, 40 S.W.3d 560, 571 (Tex. App.BHouston [14th Dist.] 2001, no pet.).  A trial court Aabuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.@  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).  Findings of fact are not required in an abuse of discretion review.  Crouch v. Tenneco, Inc., 853 S.W.2d 643, 646 (Tex. App.BWaco 1993, writ denied).  In the absence of findings of fact, a trial court=s judgment implies all necessary facts required to support it.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).  

The trial court=s decision to grant Humpal attorney=s fees is based on section 21.259, which provides, Ain a proceeding under this chapter, a court may allow the prevailing party, other than the commission, a reasonable attorney=s fee as part of the costs.@  Tex. Lab. Code Ann. ' 21.259(a); see Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 580 (Tex. App.BHouston [14 Dist.] 2004, no pet.).   

Texas courts of appeals that have addressed attorney=s fees under this provision have followed federal precedent, under which an employer may recover attorney fees if the plaintiff=s claims were frivolous, meritless, or unreasonable, or the plaintiff continued to litigate after it became clear that his claim was frivolous.  See e.g., Elgaghil, 45 S.W.3d at 144-45; Winters, 132 S.W.3d at 580.  Attorney=s fees are not appropriate simply because the plaintiff loses his case.  Christiansburg, 434 U.S. at 421.  Rather, to show that a lawsuit was without merit, the defendant must establish that the case was groundless or without foundation.  Id. 

Rule 13 authorizes a trial court to impose sanctions against an attorney, a represented party, or both, who file a groundless pleading brought in bad faith or brought for the purpose of harassment.  Tex. R. Civ. P. 13.  The rule defines Agroundless@ as having Ano basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.@  Id.

In its motion for summary judgment, Humpal requested attorney=s fees and court costs under section 21.259 of the labor code, claiming that, as the prevailing party, it was entitled to fees.  See Tex. Lab. Code Ann. ' 21.259.  Subsequently, Humpal filed a motion for sanctions seeking attorney=s fees pursuant to Texas Rule of Civil Procedure 13.  Tex. R. Civ. P. 13.  In this motion, Humpal claimed it was entitled to attorney=s fees because Wiltshire=s claims were groundless and brought in bad faith or for the purpose of harassment.  Humpal also filed a motion for costs, arguing that because it had prevailed in its defense against Wiltshire=s employment discrimination suit, the court should grant attorney=s fees and courts costs as a matter of law.  In a single order, the trial court denied Humpal=s motion for sanctions and granted its motion for costs.  The order stated Ahaving duly considered the Defendant=s Motion for Costs, hereby finds that the motion has merit and accordingly awards, as court costs, attorney=s fees in the amount of $20,210.48.@  The trial court further stated that Ahaving further duly considered the Defendant=s Motion for Sanctions, the evidence presented and the argument of counsel, hereby DENIES the motion.@           

As discussed above, an employer may recover attorney fees pursuant to section 21.259 if the plaintiff=s claims were frivolous, meritless, or unreasonable, or the plaintiff continued to litigate after it became clear that his claim was frivolous.  See Christiansburg, 434 U.S. at 421‑22.  Here, Humpal did not claim itself entitled to attorney=s fees pursuant to section 21.259 because Wiltshire=s claims were frivolous, meritless, unreasonable or because Wiltshire continued to litigate after it became clear the claim was frivolous.  Instead, it merely sought attorney=s fees because it was the Aprevailing party.@  However, courts interpreting this statute have held that attorney=s fees are not appropriate simply because the plaintiff loses his case.  See id.; Elgaghil, 45 S.W.3d at 145.  To show that a lawsuit is without merit, the defendant must establish that the case was groundless or without foundation.  Elgaghil, 45 S.W.3d at 145 (citing Christiansburg, 434 U.S. at 421-22).  Although the trial court was not asked to consider the frivolousness or merit of Wiltshire=s case in the motion for costs, Humpal asked the court to do so in its motion for sanctions.  The trial court specifically considered Humpal=s argument that Wiltshire=s claims were groundless and brought in bad faith.  The trial court denied this motion, impliedly finding that Wiltshire=s claims were not groundless or brought in bad faith.  Because the trial court awarded attorney=s fees pursuant to this section based upon a motion which only alleged entitlement to fees as the prevailing party, and because the trial court found that Wiltshire=s claims were not groundless or brought in bad faith, we find the trial court abused its discretion in awarding attorney=s fees to Humpal.        

We affirm the judgment of the trial court granting Humpal=s no-evidence motion for summary judgment, and reverse that portion of the judgment awarding attorney=s fees.  We need not review the traditional motion for summary judgment.  See Tex. R. App. P. 47.1.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 31st day of August, 2005.

---

^[1] The United States Supreme Court has held that Title VII protects an employee from reverse discrimination, that is, employer discrimination against a member of a historically favored group.  McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976); see Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000) (holding that an employer=s decision to terminate an individual=s employment based on race is a violation of Title VII, regardless of whether that person is white or black).

^[2] Humpal suggests in its brief that the new policy was implemented after Wiltshire=s sister, who was employed by Humpal=s Corpus Christi clinic, wore neon green nail polish to work.   

^[3] When reviewing an employment discrimination case brought under Chapter 21, Texas appellate courts look to analogous federal precedent. See Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991).  

^[4] Humpal concedes that Wiltshire later amended her complaint to include claims for racial discrimination and hostile work environment.  The labor code provides: 

An amendment to a complaint alleging additional facts that constitute unlawful employment practices relating to or arising from the subject matter of the original complaint relates back to the date the complaint was first received by the commission.

Tex. Lab. Code Ann. ' 21.201(f) (Vernon 1996).  As such, we find Humpal=s argument to be without merit.  Nonetheless, Humpal is now arguing on appeal that these claims should be considered.

^[5] We have reviewed Wiltshire=s live pleading and have found no claim for denial of opportunities for advancement.  As stated above, the only four claims brought by Wiltshire include claims for (1) race discrimination, (2) hostile work environment, (3) intentional infliction of emotional distress, and (4) retaliation.

^[6] Under a AWorksharing Agreement,@ the EEOC and the TCHR designate each other as agents for the purpose of receiving complaints.  See Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000).  When a complainant files an initial charge with the EEOC, the charge is also considered filed with the TCHR. Id. at 462‑63. 

^[7] The EEOC form filled out by Wiltshire includes a section that states ACause of discrmination based on (Check appropriates box(es))@ and has the following options: Race, Color, Sex, Religion, National Origin, Retaliation, Age, Disability, Other (Specify).  The only box checked on Wiltshire=s form is ARace.@

^[8] ABolia@ is Spanish for Awhite girl.@

^[9] Specifically, Wiltshire argues that the Aprotected activity involved her protest and objection to the Clinic Director, Mr. Russell Hanks, about the constant racial slurs made by one of several Hispanic co-workers.@

^[10] See Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997) (finding that conclusory statements that are unsupported by facts are not proper summary judgment proof).