17 419 2000 DOUG GREATHOUSE v. ALVIN INDEPENDENT SCHOOL DISTRICT NO 01 99 00746 CV

• Decision Date: 04 May 2000
• Citation: 17 S.W.3d 419
• Parties: <!--17 S.W.3d 419 (Tex.App.-Houston 2000) DOUG GREATHOUSE, Appellant v. ALVIN INDEPENDENT SCHOOL DISTRICT, Appellee NO. 01-99-00746-CV In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 419

17 S.W.3d 419 (Tex.App.-Houston[1st Dist.] 2000)

DOUG GREATHOUSE, Appellant v ALVIN INDEPENDENT SCHOOL DISTRICT, Appellee

NO. 01-99-00746-CV

In The Court of Appeals For The First District of Texas

May 4, 2000

Rehearing Overruled June 2, 2000.

On Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 4182*RM98

[Copyrighted Material Omitted] Panel consists of Justices Mirabal, Taft, and Price.^*

OPINION

Tim Taft, Justice

Appellant, Doug Greathouse, challenges a no-evidence summary judgment rendered in favor of appellee, Alvin Independent School District (Alvin ISD), against his claim of wrongful discharge based on racial discrimination. We address whether Greathouse established a prima facie case of racial discrimination, whether Alvin ISD proved a legitimate, non-discriminatory reason for the alleged discriminatory treatment, and whether Greathouse brought forward some evidence showing that Alvin ISD's reasons were a pretext for a discriminatory motive. We reverse.

Facts

When reviewing a summary judgment, we look at the facts in the light most favorable to Greathouse, the nonmovant. Greathouse is a Caucasian male, who worked as a police officer within the DARE program for Alvin ISD and was fired for violating a facial hair policy.¹ Greathouse claims he did not violate the policy, and was fired as a result of racial discrimination directed against him.

Greathouse's supervisor was Officer Hubbard, an African-American male. Greathouse claims Hubbard discriminated against him based on his race. Greathouse maintains he was the victim of frequent false reports by Hubbard, who accused Greathouse of stealing a radio battery, an accusation Greathouse claims was a setup on Hubbard's part. Greathouse also claims Hubbard told him to wear a duty belt at all times, but that this was not proper under the DARE America agreement because wearing a duty belt would give children access to his radio and firearm. According to Greathouse, a co-worker, Sergeant Bobby Foerster, told Greathouse that Hubbard said anyone who wore a cowboy hat was a racist. Greathouse wore a cowboy hat. Greathouse claims Hubbard frequently humiliated him in public, by commanding him to stand at attention before Hubbard, and imposed impossible work demands that were not enforced on anyone else. In addition, Hubbard wears a tattoo on his hand that signifies African-American intolerance for Caucasians, according to Greathouse. Another co-worker, Guy Nichols, told Greathouse that Hubbard told him he hated Greathouse, that Greathouse was a "KKK kind of guy," and that Hubbard would do whatever it took to get rid of Greathouse. Chief Wayne Duncan, a Caucasian, was aware of conflict existing between Greathouse and Hubbard when he placed Greathouse under Hubbard's supervision.

Chief Duncan wrote a memo to Greathouse telling him to trim his moustache because it was too long. Greathouse claims that he did not violate this restriction, but complied. Chief Duncan then called Greathouse into his office and asked him why he had not shaved his moustache. Chief Duncan told Greathouse he was officially suspended, and recommended he be terminated.² Superintendent Tiemann terminated Greathouse soon thereafter.

Procedural History

Greathouse sued Alvin ISD, alleging racial discrimination in violation of the Texas Commission on Human Rights Act (TCHRA). Alvin ISD moved for summary judgment under rule 166a(i) of the Texas Rules of Civil Procedure. Alvin ISD argued it was entitled to summary judgment because Greathouse could not establish a prima facie case of discrimination and because Alvin ISD had legitimate, non-discriminatory reasons for firing Greathouse. The trial court granted Alvin ISD's motion for no-evidence summary judgment on Greathouse's claim of racial discrimination. Greathouse brings a single ground on appeal, complaining that the trial court erred in granting summary judgment for Alvin ISD. Greathouse argues: (1) he established a prima facie case of racial discrimination; (2) Alvin ISD did not establish a legitimate, non-discriminatory reason for its actions; and (3) Alvin ISD's reasons for terminating Greathouse were a mere pretext for discrimination.

Standard of Review

In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to produce evidence that raises a fact issue on the challenged elements. Id. When reviewing the grant of a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant, and disregard all contrary evidence and inferences. Flameout Design & Fabrication, Inc. v. Penzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. See Tex. R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

TCHRA

Greathouse brought his claim of discrimination under the TCHRA. Tex. Lab. Code Ann. § 21.001 - § 21.306 (Vernon 1996 & Supp. 2000). The TCHRA ensures the execution of the policies embodied in Title VII of the United States Code by implementing the "correlation of state law with federal law in the area of discrimination in employment." Tex. Lab. Code Ann. § 21.001(3) (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). Because the TCHRA seeks to promote federal civil rights policy and because little case law interprets the TCHRA, we look to analogous federal precedent. Schroeder, 813 S.W.2d at 485; Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.--Houston [1st Dist.] 1993, writ denied).

Prima Facie Case

Greathouse's first challenge concerns whether he established a prima facie case. To establish a prima facie case of employment discrimination, a plaintiff must show: (1) he was a member of a protected class, (2) he suffered an adverse employment action, and (3) non-protected class employees were not treated similarly. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Farrington, 865 S.W.2d at 251. Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate legitimate, non-discriminatory reasons for any allegedly unequal treatment. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Farrington, 865 S.W.2d at 251. After the employer articulates legitimate, non-discriminatory reasons, the burden shifts back to the plaintiff to prove that the employer's articulated reasons are a mere pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825; Farrington, 865 S.W.2d at 251. Although the burdenof production shifts, the burden of persuasion remains continuously with the plaintiff. McDonnell Douglas, 411 U.S. at 803, 93 S. Ct. at 1825; Farrington, 865 S.W.2d at 251.

Disparate Treatment

In moving for summary judgment, Alvin ISD argued that Greathouse did not produce any evidence showing that he was treated dissimilarly from other employees. This is the only element of the prima facie case that Alvin attacked in its motion for summary judgment.

Greathouse's response included excerpts of deposition testimony in which he stated that other officers were treated differently, specifically, that Hubbard was allowed to wear a moustache in violation of the facial hair policy. Greathouse also provided evidence that, while other officers were paid to attend a training school, Greathouse was not reimbursed for this expense. Greathouse was given what he described as impossible job duties that were not given to anyone else, and was disciplined and written up by Hubbard for omissions and minor violations for which other non-Caucasians were not written up or disciplined in any manner. Greathouse also claimed Alvin ISD did not perform a proper background check on his replacement, an African-American male. This evidence constitutes some evidence that Greathouse was treated differently than other employees.

Non-Discriminatory Reason

Because Greathouse produced some evidence to establish a prima facie case of race discrimination, the burden shifted to Alvin ISD to prove a legitimate, non-discriminatory reason for the allegedly discriminatory treatment. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Farrington, 865 S.W.2d at 251. In moving for summary judgment, Alvin ISD argued that Greathouse was terminated for the following non-discriminatory reasons:

(1) Ignoring his superior officer's direct order to wear his hand-held radio;

(2) Misrepresenting to Hubbard that he could not carry his hand-held radio because another officer had taken the battery;

(3) Failing to carry his hand-held radio after Hubbard again ordered him to do so;

(4) Violating AISD's policy on facial hair;

(5) Failing to abide by AISD policy regarding facial hair despite a direct order from Chief Duncan on July 17, 1996 and bragging to another officer that he was testing Chief Duncan's determination;

(6) Failing to comply with Hubbard's instructions to wait to receive a memorandum and then refusing to return to headquarters to retrieve the memorandum; and

(7) Refusing to comply with instructions from his superior officer in response to an alarm at a high school and then walking away while being questioned.

Alvin ISD's motion established the following facts. After Chief Duncan ordered him to carry a hand-held radio, Greathouse told Chief Duncan that he...