Chhim v. University of Houston

• Citation: 76 S.W.3d 210
• Decision Date: 02 May 2002
• Docket Number: No. 06-01-00129-CV.,06-01-00129-CV.
• Parties: Suzanne CHHIM, Appellant, v. UNIVERSITY OF HOUSTON and Tom Wray, Director, Physical Plant, Appellees.
• Court: Texas Court of Appeals

76 S.W.3d 210

Suzanne CHHIM, Appellant, v. UNIVERSITY OF HOUSTON and Tom Wray, Director, Physical Plant, Appellees.

No. 06-01-00129-CV.

Court of Appeals of Texas, Texarkana.

Submitted February 28, 2002.

Decided May 2, 2002.

Rehearing Overruled May 29, 2002.

Kevin R. Michaels, Law Offices of Kevin R. Michaels, PC, Houston, TX, for appellant.

Bradley D. McClellan, Office of the Attorney General, Tort Litigation Division MC-030, Austin, TX, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice ROSS.

Suzanne Chhim filed suit against the University of Houston (UH), and the director of UH's physical plant, Tom Wray, for wrongful termination and for violation of civil rights under Title VII, Civil Rights Act of 1964. Chhim filed suit April 25, 2000, alleging she was terminated because she notified UH and Wray of her intent to file a worker's compensation claim, and because she was discriminated against on the basis of national origin. UH and Wray filed a motion for summary judgment pursuant to Tex.R. Civ. P. 166a(b), (i). The trial court granted this motion on May 22, 2001. Chhim's motion for new trial was denied June 29, 2001.

In three points of error, Chhim asserts the trial court erred in granting summary judgment because: 1) genuine issues of material fact remain on each element of her wrongful termination claim; 2) the evidence brought forward by the appellees was incompetent and thus incapable of supporting the motion; and 3) she brought forward sufficient evidence of her wrongful termination claim to avoid summary judgment. Chhim has not presented any points of error or argument related to her Title VII claim.¹ Therefore, only the wrongful termination claim is before this Court.

Chhim was hired by UH as a lead custodian on July 27, 1997. Pursuant to UH policy, Chhim was hired on a probationary basis, meaning she was subject to termination without application of the standard discipline and dismissal policy procedure during her first six months of employment. Chhim was unable to work December 15, 1997, because she sustained an injury at her home. Chhim alleges that, while working at UH on December 16, 1997, she injured her back when she tripped over some equipment in a storage closet. Chhim went home, unable to continue working. The next day, she reported her injury to an unidentified receptionist at the UH custodial services/physical plant office. She requested paperwork from UH by telephone on December 18 in order to file a worker's compensation claim. Chhim cannot specifically identify to whom she spoke on either occasion.

After taking her to the doctor on December 17, Chhim's husband dropped off at UH a copy of a doctor's note explaining Chhim had been injured the night before. He states in his affidavit he took two additional medical notices to the custodial services/physical plant offices on December 22, 1997, or January 6, 1998. On at least one of those occasions, he also informed an unspecified person at UH of Chhim's intent to file a worker's compensation claim. He was also unable to identify any individual whom he contacted or who might have received information about Chhim's injury.

UH sent Chhim a letter, dated January 9, 1998, terminating her employment effective December 19, 1997. The stated reason was unsatisfactory job performance. Chhim called UH on January 12 and talked to Billy Underwood, the UH workers' compensation claims coordinator, and reported her injury to him. Chhim completed and submitted an "Employee's Report of Injury" to Underwood, which was forwarded to the state office of risk management for review.

Chhim brought this suit for wrongful termination under Tex. Lab.Code Ann. § 451.001 (Vernon 1996) and for violation of her federal civil rights under Title VII. She alleged, among other things, that she was fired only after and because she indicated her intent to file a worker's compensation claim for her injuries sustained on December 16, 1997. Chhim subsequently abandoned her Title VII claim, and that issue is not before this Court. UH and Wray jointly filed a motion for summary judgment based on Tex.R. Civ. P. 166a(b), (i). The trial court granted the motion after a hearing.

When reviewing a summary judgment, this Court must view the evidence in favor of the nonmovant, resolving all doubts and indulging all reasonable inferences in favor of reversal of the summary judgment. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985). The standards that must be applied when reviewing a summary judgment have been clearly mandated by the Texas Supreme Court:

1. The movant for summary judgment has 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.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Id. at 548-49. Further, this Court must not consider evidence that favors the movant unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

A defendant-movant is entitled to summary judgment if such party establishes, as a matter of law, that at least one element of the plaintiff's cause of action does not exist. Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107-08 (Tex.1984). The judgment of the trial court cannot be affirmed on any ground not specifically presented in the motion for summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex.1979). UH and Wray filed a joint motion for summary judgment on grounds that 1) the Title VII claim must be dismissed as untimely, 2) the Title VII claim must be dismissed for failure to exhaust administrative remedies, 3) Chhim failed to establish a prima facie case for retaliatory discharge, and 4) UH had a legitimate reason (poor performance) to terminate Chhim. We need not address the first two grounds, as Chhim has abandoned the Title VII claim on appeal.

Chhim argues the evidence brought forward by the appellees was incompetent and thus incapable of supporting the motion for summary judgment. The standards for determining the admissibility of evidence in a summary judgment are the same as those applied at trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). Decisions on the admissibility of evidence are left to the sound discretion of the trial court. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). To obtain reversal of a judgment based on the admission or exclusion of evidence, a party must show that the trial court committed error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992).

An affidavit for summary judgment must set forth specific facts, not legal conclusions. Texas Dep't of Corr. v. Sisters of St. Francis of St. Jude Hosp., 753 S.W.2d 523, 525 (Tex.App.-Houston [1st Dist.] 1988, no writ). The affidavit must allege specific facts of a nature that can be effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). If the credibility of the affiant is likely to be a dispositive factor in resolving the case, summary judgment is often inappropriate. Id. The mere fact the affidavit is self-serving does not necessarily make the evidence an improper basis for summary judgment. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997). Summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Id. (citing Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986)); see also Tex.R. Civ. P. 166a(c). "Could have been readily controverted" does not mean the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates the testimony could have been effectively countered by opposing evidence. Trico Techs. Corp., 949 S.W.2d at 310 (citing Casso, 776 S.W.2d at 558). In Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994), the Texas Supreme Court held affidavits of interested witnesses could be used to present evidence of a nonretaliatory reason for termination as long as the affidavits complied with Tex.R. Civ. P. 166a(c). Accord Trico Techs. Corp., 949 S.W.2d at 310.

Chhim contends the affidavits submitted by UH and Wray in support of the motion for summary judgment contained nothing beyond self-serving, conclusory statements by interested persons and were incapable of supporting a summary judgment even if uncontroverted. Specifically, she identifies the following statements as insufficient to support summary judgment: that Chhim was not qualified to perform her job duties, that she did not report her work-related injury until after she had been terminated, and that she had provided the incorrect date as to her work-related injury. The statement that Chhim was not qualified to perform job duties could not be located in the clerk's record, and no record citations were provided. Chhim did not show that the trial court even considered this statement, let alone demonstrate how it may have led to an error reasonably calculated to cause the rendition of an improper judgment. Both the other statements are specific assertions of fact that Chhim attempted to controvert in affidavits filed in response to the motion for summary judgment.

In support of the motion for summary judgment, UH and Wray submitted the affidavits of three individuals: 1) Tony Gonzales, manager of custodial services and grounds maintenance for UH; 2) Angela Hunter, a supervisor custodian for UH; and 3)...