Dishner v. Huitt-Zollars, Inc.

• Decision Date: 11 May 2005
• Docket Number: No. 05-04-00110-CV.,05-04-00110-CV.
• Citation: 162 S.W.3d 370
• Parties: Tom E. DISHNER, Appellant, v. HUITT-ZOLLARS, INC., Appellee.
• Court: Texas Supreme Court

162 S.W.3d 370

Tom E. DISHNER, Appellant, v. HUITT-ZOLLARS, INC., Appellee.

No. 05-04-00110-CV.

Court of Appeals of Texas, Dallas.

April 4, 2005.

Rehearing Overruled May 11, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Tom E. Dishner, Dallas, pro se.

Katrin U. Schatz, Baker Botts, Dan Hartsfield, Baker & Botts, L.L.P., Gary Michael Ashmore, Dallas, for Appellee.

Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.

OPINION

Opinion by Justice FITZGERALD.

Tom E. Dishner appeals the trial court's judgment in his religious discrimination suit against his former employer, Huitt-Zollars, Inc. The trial court's final order (the "Order") decreed that Dishner take nothing from Huitt-Zollars and determined that Dishner was a vexatious litigant within the meaning of section 11.054 of the Texas Civil Practice and Remedies Code. We affirm the trial court's Order.

BACKGROUND

Dishner was employed by Huitt-Zollars, an architectural and engineering firm. Dishner filed his claim against Huitt-Zollars pursuant to the Texas Commission on Human Rights Act (the "TCHRA"), alleging that he was subjected to harassment and a hostile work environment on account of his religion. Specifically, Dishner's petition alleged that the employees of Huitt-Zollars are members of a powerful and extensive religious cult,

which has as part of [its] beliefs the systematic harassment of Tom Dishner, including the invasion of my privacy using high-tech surveillance, and the use of an electroconvulsive type signal which interrupts the thought process.

According to Dishner, the cult is led by one of his high school classmates, and its membership includes a long list of local and state public officials and members of the judiciary. At Huitt-Zollars, Dishner claims, the cult subjected him to physical and sexual hostilities, attempted to murder him by infecting him with smallpox, tortured and killed his cat, and held a gun to his head. Dishner objected to "their beliefs in evil and evil deeds being forced on [him]" to no avail. Ultimately, he claims, he could bear no more and left his employment.

During the course of proceedings in the trial court, Dishner filed a motion to recuse trial judge Jay Patterson on grounds Judge Patterson was a member of the cult. The motion was denied. Huitt-Zollars filed a motion to declare Dishner a vexatious litigant. That motion was heard twice, and it was granted the second time. At the same time, the trial court granted Huitt-Zollars's no-evidence motion for summary judgment and entered its Order that Dishner take nothing on his claim. The trial court determined it had no jurisdiction to hear Dishner's late-filed motion for new trial. Dishner appeals based on this series of adverse rulings.

MOTION FOR RECUSAL

In his first issue, Dishner complains that during the recusal proceedings he received "improper notification" of both the appointment of the assigned judge and the hearing itself. The record establishes Judge Patterson declined to recuse himself and properly referred the case to the presiding judge of the relevant administrative region. See TEX.R. CIV. P. 18a(d). Judge Patterson's December 6, 2002 order to that effect indicated a copy of the order was to be sent to the "Pro Se Plaintiff" and "Defendant Counsel of Record." Appellant denied receiving a copy of this order. Regardless, the presiding judge issued his order on December 12, 2002, assigning the motion to Judge Pat McDowell. That same order required the clerk to post a copy of the order "on the notice board so that attorneys and parties may be advised" of the assignment. Nothing in the record indicates the notice was not posted. Finally, appellant's brief concedes that he received notice by telephone on or about December 23, 2002, of the hearing to be held by Judge McDowell on January 3, 2003. Appellant appeared at the January 3 hearing and presented his own testimony in support of the motion to recuse. Judge McDowell denied the motion to recuse at the close of the hearing.

Dishner's complaints concerning notice are governed by rule 18a. That rule states in relevant part:

The presiding judge of the administrative judicial district shall immediately set a hearing before himself or some other judge designated by him, shall cause notice of such hearing to be given to all parties or their counsel, and shall make such other orders ... as justice may require.

TEX.R. CIV. P. 18a(d) (emphasis added). We find no specific directive requiring separate notice of the identity of the assigned judge. Accordingly, the presiding judge's posted notice of the assignment of Judge McDowell to hear the motion to recuse was more than adequate notice of that assignment. Notice of the hearing itself is required by the rule, but we conclude the court's telephonic notice to Dishner some ten days before the hearing setting was appropriate notice pursuant to rule 18a. The method of notice was clearly calculated to inform—and in fact did inform—Dishner of the hearing on his motion. Moreover, Dishner had sufficient time to object to the assigned judge or to the time of the hearing if either had been of concern to him. He did not object during the approximately ten-day period before the hearing; nor did he object at the hearing. We decide appellant's first issue against him.

Appellant's second issue complains of Judge McDowell's denial of appellant's recusal motion. We review the denial of this motion for abuse of discretion. TEX.R. CIV. P. 18a(f). Dishner's motion set forth three grounds supporting recusal: (1) a 2002 "confrontation" between Dishner and Judge Patterson, (2) a 1982 "encounter" between Dishner and Judge Patterson, and (3) Dishner's conjecture that his case was not randomly assigned to Judge Patterson's court because of the purported involvement by the district clerk and members of his staff in the cult described in Dishner's petition. However, Dishner stressed the 2002 meeting in his testimony at the hearing on the recusal motion, and only this ground is addressed in Dishner's brief before this Court. We will, therefore, limit our consideration to that proposed ground for recusal.

According to Dishner, the 2002 meeting took place at the Senate District 8 Republican Convention at Newman Smith High School. There, Judge Patterson purportedly made statements to Dishner indicating Judge Patterson knew about Dishner's employment at Huitt-Zollars and about his complaint against Huitt-Zollars. According to Dishner, Judge Patterson told Dishner there was an incorrect date in the complaint and that the case would end up in Judge Patterson's court. But at that time, Dishner's complaint was pending only before the Texas Commission on Human Rights; no case had been filed in district court. Therefore, according to Dishner, Judge Patterson must have "know[n] in some way or [been] involved in some way with the defendants." On cross-examination, Dishner testified that "[e]very indication would be" that Judge Patterson is a member of the cult he alleges was persecuting him at Huitt-Zollars. Dishner offered no evidence other than his own testimony to support the claim that Judge Patterson was somehow biased against him.

Judge McDowell was charged with evaluating Dishner's credibility in deciding the motion. Judge McDowell had the opportunity to view Dishner during the hearing and to question him concerning his allegations. We do not determine the credibility of any witness, nor will we substitute our judgment for that of the trial court. Reese v. Duncan, 80 S.W.3d 650, 661 (Tex.App.-Dallas 2002, pet. denied). We find no abuse of discretion in Judge McDowell's denial of the motion to recuse. We decide Dishner's second issue against him.

SUMMARY JUDGMENT

Dishner's third issue avers the trial court erroneously granted Huitt-Zollars's motion for summary judgment. Dishner argues the no-evidence motion was insufficient because it was global and lacked specificity as to the element or elements challenged, it offered evidence in support and thus should be read as a traditional motion under rule 166a(c), and it was proffered before adequate time for discovery had passed. We disagree with each of these arguments.

The United States Supreme Court has prescribed a shifting burden of proof in employment discrimination cases. At the outset, the employee has the burden of establishing a prima facie case of unlawful discrimination. Tex. Dep't of Human Servs. of State of Tex. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Dishner's religious discrimination claim is based on "accommodations being denied in the form of the intentional creation of a hostile work environment based on [his] bona fide beliefs." A plaintiff bringing such a claim under the TCHRA makes a prima facie case by establishing three elements: (1) he has a bona fide religious belief that conflicts with an employment requirement; (2) he informed the employer of this belief; and (3) he suffered an adverse consequence for failure to comply with the conflicting employment requirement. Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-23 (Tex.App.-Houston [14th Dist.] 2000, no pet.). When a no-evidence summary judgment is filed against a plaintiff making this claim, the plaintiff must provide more than a scintilla of proof for each of the three elements of his case to survive summary judgment. Id. at 423.

The rules of civil procedure require a no-evidence summary judgment motion to "state the elements as to which there is no evidence." TEX.R. CIV. P. 166a(i). In this case, Huitt-Zollars's motion correctly identified the elements of Dishner's religious discrimination claim. Then under the heading "Plaintiff Has No Evidence of an Adverse Employment Action," the motion charged that Dishner "cannot come forward with evidence showing that he was subjected to any adverse employment action during his tenure with...