Russo v. Smith Intern., Inc.

93 S.W.3d 428

Sharon L. RUSSO, Appellant, v. SMITH INTERNATIONAL, INC., Appellee.

No. 14-01-00203-CV.

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

October 3, 2002.

Rehearing Overruled November 7, 2002.

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Timothy A. Hootman, Houston, for appellants.

Holly H. Williamson, Stefanie Robin Moll, Houston, for appellees.

Timothy A. Hootman, for Sharon L. Russo.

Holly H. Williamson and Stefanie Robin Moll, for Smith International, Inc.

Panel consists of Justices YATES, SEYMORE, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

This is an employment discrimination case. Appellant Sharon Russo ("Russo") brought suit against Smith International, Inc. ("Smith"), alleging age-related employment discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA").¹ Without specifying its grounds, the trial court granted summary judgment in favor of Smith. We affirm.

I. BACKGROUND

Smith, an oil field services and equipment manufacturing company, consists of several business units. In 1998, Smith merged two of its drilling bit units, Smith GeoDiamond and Smith Tool, creating the newly consolidated business entity Smith Bits.² At the time of the merger, the oilfield service business faced a decline and Smith suffered losses to its business as a result of the industry-wide downturn.

Shortly after the merger, Smith appointed Michael Van Hook to the position of Area Manager and Wayne Miller to Houston Division District Manager. At the instruction of Van Hook, Miller evaluated the job duties and compensation of Smith employees that he supervised in the Houston District. Miller included Russo's position and compensation in this review. Russo's job title at the time of her review was Technical Sales Application Specialist. She had worked at Smith since 1977. According to Smith, the inquiry revealed a disparity between Russo's job responsibilities and her title and salary. In September 1998, Smith eliminated Russo's position of Technical Sales Application Specialist and reassigned her to a lower-paying Well Program Specialist position.

In the months following Russo's reassignment, Smith continued to face declining sales and revenues. As a result, Smith terminated Russo and approximately two thousand other employees during a company-wide force reduction. Russo was 53 years old at the time of her termination. As part of the reduction in force, Smith assigned Russo's job responsibilities to various positions, including members of its existing sales force, a clerk, and the position of Technical Sales Representative. John Wolfe, an employee in his early thirties, filled the Technical Sales Representative position. Claiming that age discrimination motivated the demotion and subsequent termination, Russo filed suit alleging that Smith acted in violation of the TCHRA. The trial court granted Smith's motion for summary judgment.

In three points of error, Russo contends: (1) the trial court erred in granting appellee's motion for summary judgment; (2) there was evidence that Smith intended to discriminate against her on the basis of her age; and (3) there was evidence rebutting Smith's articulated legitimate and nondiscriminatory reasons for Russo's termination.³

We overrule her points of error.

II. STANDARD OF REVIEW

Smith moved for summary judgment under rules 166a and 166a(i) of the Texas Rules of Civil Procedure.⁴ 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. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). The "no-evidence" motion for summary judgment shifts the burden of proof to the non-movant to produce evidence raising a genuine issue of material fact on the contested issue on which the non-movant would bear the burden of proof at trial. See TEX.R. CIV. P. 166a(i). As this court observed:

Such a motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Unlike a movant for traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. A no-evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review. A no-evidence summary judgment is properly granted if the non-movant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the non-movant would have the burden of proof at trial.

Lake Charles Harbor and Terminal Dist. v. Bd. of Trustees of Galveston Wharves, 62 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citations omitted). To defeat a "no-evidence" summary judgment motion, the non-movant need not marshal its proof but should only identify more than a scintilla of evidence raising a fact issue on the challenged elements. See TEX.R. CIV. P. 166(i) cmt. A non-movant puts forth less than a mere scintilla of evidence when that which is proffered is "so weak as to do no more than create a mere surmise or suspicion" — the effect being that there is no evidence offered. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App.-Eastland 2000, pet. denied).

III. DISCUSSION

A. TEXAS LAW AND THE McDONNELL DOUGLAS MINUET

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. 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, 28 L.Ed.2d 158 (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 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.

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, 36 L.Ed.2d 668 (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, 67 L.Ed.2d 207 (1981) (quotations and 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, Russo puts forth only circumstantial evidence that Smith 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 476.⁵

B. Russo's PRIMA FACIE CASE

Where, as here, the plaintiff asserts age discrimination claims based on two separate and distinct incidents, she must establish a prima facie case for each independently.⁶ 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 (7th Cir.2002). We consider separately the 1998 demotion and the 1999 termination. Russo 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 253, 101 S.Ct. 1089 (noting that the plaintiff's burden at this stage is "not onerous").

1. The Demotion

In employment discrimination cases based on circumstantial evidence, the plaintiffs prima facie case relates to the employee's burden of...