Navy v. Coll. of the Mainland

407 S.W.3d 893

Ernest NAVY, Appellant,

v.COLLEGE OF THE MAINLAND, Appellee.

No. 14–12–00528–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Aug. 1, 2013.

Anthony P. Griffin, Galveston, for Appellant.

Melissa Ann Mihalick, Jarvis V. Hollingsworth, Houston, for Appellee.

Panel consists of Justices BROWN, CHRISTOPHER, and McCALLY.

OPINION

JEFFREY V. BROWN, Justice.

Appellant Ernest Navy appeals the trial court's order granting summary judgment in favor of appellee College of the Mainland (“Mainland”) on Navy's claims for employment discrimination and retaliation. We affirm.

I

Navy began working at Mainland as an adjunct professor in 2001. In 2004, he applied for a full-time position as an associate professor of history in the Social and Behavior Science Department (“the department”). Pursuant to Mainland's team-based structure, the entire Social and Behavior Science team (“the team”) contributed to employment decisions, including hiring and awarding tenure. Although several members of the team—particularly Steve Sewell and Rafael Naranjo—doubted Navy's qualifications, he was ultimately hired for the position.

In August of 2007, Navy applied for tenure. Because his tenure file was disorganized and included numerous spelling and grammatical errors as well as several instances of plagiarism, the team unanimously voted to deny Navy tenure. The team further decided by a 6–4 vote to deny Navy the opportunity to revise and resubmit the file. Navy appealed, but the ad hoc committee that was formed to review the appeal affirmed the team's decision. Navy then appealed the committee's decision to the board of trustees.¹ The board affirmed the denial but voted to allow Navy to revise and resubmit his tenure file. After another committee reviewed his revised file, they denied Navy tenure, explaining that “the resubmitted file presentation [fell] significantly short of minimal or basic expectations.” Navy appealed again, and, in December of 2009, the board of trustees ultimately granted Navy tenure.

Meanwhile, in the fall of 2009, Mainland had switched from its team-based structure to a department structure. Pam Millsap was appointed as the department chair and became Navy's primary supervisor. Amy Locklear, the dean of general education, became Navy's secondary supervisor. James Templer was the vice president of academic affairs. Over the course of the spring semester, Millsap and Locklear progressively disciplined Navy several times for various conduct issues, including repeatedly making false and unsubstantiated allegations against his colleagues; repeatedly violating Mainland's policies for proctoring exams and administering student evaluations after being counseled on the proper methods; assigning an excessive number of incomplete grades; inappropriately soliciting emails from students; and receiving excessive student complaints regarding his incorrect grade calculations, his failure to respond to students' emails, and the lack of organization of his online courses. Despite these disciplinary interventions, Navy consistently failed to correct his behavior, so Millsap, Locklear, and Templer recommended his termination. Pursuant to those recommendations and with the support of the board of trustees, then-president Michael Elam terminated Navy in July of 2010.

Navy sued Mainland under the Texas Commission on Human Rights Act (the “Act”), alleging disparate-treatment racial discrimination and retaliation.² Mainland moved for summary judgment. The trial court granted the motion, concluding that Navy failed to provide competent summary-judgment evidence to allow a reasonable trier of fact to conclude that he was entitled to relief. Navy then filed this appeal.

II

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Because Mainland's motion for summary judgment is a hybrid traditional and no-evidence motion, we apply the applicable standards of review for each. SeeTex.R. Civ. P. 166a(c), (i); Brockert v. Wyeth Pharms. Inc., 287 S.W.3d 760, 764 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

In a traditional motion for summary judgment, the movant bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Am. Tobacco Co. v. Grinnell, Inc., 951 S.W.2d 420, 425 (Tex.1997). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact to defeat summary judgment. Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

A no-evidence motion for summary judgment must be granted if (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial, and (2) the respondent produces no summary-judgment evidence raising a genuine issue of material fact on those elements. SeeTex.R. Civ. P. 166a(i); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 908 (Tex.App.-Houston [14th Dist.] 2009, no pet.). We sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Lowe's Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283, 287–88 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). “Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or suspicion’ ” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.2009) (quoting Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006)).

In reviewing either type of summary-judgment motion, we indulge every reasonable inference from the evidence in favor of the non-movant, resolve any doubts arising from the evidence in his favor, and take as true all evidence favorable to him. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

III

In his first issue, Navy argues the trial court erred in granting summary judgment in favor of Mainland as to his disparate-treatment discrimination claim.

A

The Act prohibits discrimination in employment based on “race, color, disability, religion, sex, national origin, or age.” Tex. Lab.Code § 21.051. The relevant parts of the Act are patterned after Title VII of the federal Civil Rights Act. Thus, we look to federal precedent for interpretive guidance to meet the legislative mandate that the Act is intended to “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); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001).

In resolving disparate-treatment cases, courts utilize a system of “burden shifting” in which the burden of production shifts from the plaintiff to the defendant and then back to the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 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. Russo v. Smith Intern., Inc., 93 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). A prima facie case of racial discrimination requires proof that the plaintiff (1) is a member of a protected class, (2) was qualified for the employment position at issue, (3) was subject to an adverse employment action, and (4) was treated less favorably than similarly situated members outside of the protected class. See Reeves, 530 U.S. at 142, 120 S.Ct. 2097;Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005) (per curiam).

For purposes of discrimination, the Act only addresses ultimate employment decisions; it does not address every decision made by employers that arguably might have some tangential effect upon employment decisions. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997), abrogated on other grounds by Burlington Ne. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Generally, ultimate employment actions involve hiring, granting leave, discharging, promoting, and compensation, but not “events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee—anything which might jeopardize employment in the future.” See Mattern, 104 F.3d at 707–08.

Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to show a legitimate, non-discriminatory purpose for the adverse employment action. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. If the defendant presents a legitimate reason, the burden shifts back to the plaintiff to show either (1...