Elgaghil v. Tarrant Cty. Jr. College

• Decision Date: 28 September 2000
• Parties: (Tex.App.-Fort Worth 2000) MOHARRAM ELGAGHIL, APPELLANT v. TARRANT COUNTY JUNIOR COLLEGE, APPELLEE NO. 2-99-133-CV
• Court: Texas Court of Appeals

Page 133

45 S.W.3d 133 (Tex.App.-Fort Worth 2000)

MOHARRAM ELGAGHIL, APPELLANT v. TARRANT COUNTY JUNIOR COLLEGE, APPELLEE

NO. 2-99-133-CV

COURT OF APPEALS, SECOND DISTRICT OF TEXAS, FORT WORTH

SEPTEMBER 28, 2000

Rehearing Overruled Dec. 21, 2000.

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] PANEL A: DAY and GARDNER, JJ.; and WILLIAM BRIGHAM, J. (Retired, Sitting by Assignment).

OPINION

SAM J. DAY, JUSTICE

In this employment discrimination case, Moharram Elgaghil appeals the trial court's award of summary judgment in favor of Tarrant County Junior College ("TCJC") on his claims brought under chapter 21 of the Texas Labor Code. Tex. Lab. Code Ann. §§ 21.001-.556 (Vernon 1996 & Supp. 2000). In his lawsuit, Elgaghil claimed that TCJC failed to promote him because of his national origin and retaliated against him for filing an employment discrimination claim. Elgaghil also alleged TCJC engaged in an unlawful employment practice that had a disparate impact on his protected class, Egyptians.

Elgaghil raises two issues on appeal. First, he alleges the trial court erred in granting TCJC's motion for summary judgment on his employment claims. Second, he contends the trial court erred in granting TCJC's motion for summary judgment on the issue of attorney's fees.

Because the trial court did not err in granting TCJC's motions for summary judgment, we affirm.

BACKGROUND

Two years after receiving his master's degree in mechanical engineering from Cal-State Fullerton in 1983, Elgaghil secured a position as boiler room operator for the physical plant department at TCJC's Northeast Campus. In 1993, Elgaghil interviewed for three upper level management positions at TCJC, but the school selected other candidates to fill the positions.

On January 18, 1994, Elgaghil filed a complaint with the Equal Employment Opportunity Commission ("EEOC") contending that TCJC had unlawfully discriminated against him based on his national origin. After an investigation, the EEOC decided that no action would be taken in connection with Elgaghil's allegations and issued its right to sue letter in 1996. On January 2, 1996, Elgaghil filed his original petition alleging that TCJC had discriminated against him on the basis of national origin on three occasions: (1) when he was not selected for the position of assistant director of physical plants, Northeast Campus, in June 1993; (2) when he was not selected for the position of plant superintendent, Northwest Campus, in October 1993; and (3) when he was not selected for the position of plant superintendent, Northeast Campus, in November 1993.

Elgaghil continued to apply for upper management positions at TCJC. In July and November of 1996, Elgaghil applied for two plant superintendent positions but did not receive either job. In early 1997, he submitted applications for the positions of plant superintendent and construction representative. Again, he was not selected for either position.

In 1998, Elgaghil filed an amended petition adding allegations that TCJC had retaliated against him for filing his EEOC complaint. Specifically, he alleged that TCJC had retaliated by not selecting him for any of the four additional management positions he applied for in 1996 and 1997.¹ He also alleged that one of his supervisors had retaliated against him by making false allegations regarding his job performance, verbally harassing him, and making fun of his accent. Elgaghil also added a disparate impact claim to his lawsuit, alleging that TCJC's hiring and promotion policies had a disparate impact on Egyptians.

On November 12, 1997, TCJC filed a counterclaim requesting attorney's fees under section 21.259 of the labor code. Id. § 21.259(a) (Vernon 1996). TCJC also filed a motion for summary judgment on Elgaghil's claims, which included the following grounds:

* TCJC hired the best qualified applicants to fill the positions in question, thus establishing a legitimate non-discriminatory reason for not choosing Elgaghil;

* there was no evidence that the non-discriminatory reason offered by TCJC was a pretext for discrimination;

* Elgaghil was unable to meet his prima facie burden to establish his disparate impact claim because there was no evidence that TCJC had engaged in an employment practice that had a disparate impact on Egyptians, Elgaghil's protected class;

* Elgaghil was unable to meet his prima facie burden to establish his retaliation claim because there was no evidence of a causal connection between a protected activity and an adverse employment decision; and

* Elgaghil failed to exhaust his administrative remedies on the new claims raised in his amended petition.

Elgaghil filed a response addressing each ground raised by TCJC. Elgaghil attached numerous documents in support of his response, including his own affidavit and resume, the resumes and employment applications of the individuals hired to fill the positions he sought, and portions of deposition testimony from George Richardson, the individual responsible for interviewing applicants and making hiring recommendations at TCJC.

On July 21, 1998, the trial court granted TCJC's motion for summary judgment on Elgaghil's claims by general order. Elgaghil and TCJC then filed cross-motions for summary judgment on TCJC's claim for attorney's fees. The trial court granted TCJC's second motion for summary judgment, denied Elgaghil's motion, and entered a final order awarding $10,000 in attorney's fees to TCJC.

STANDARD OF REVIEW

To prevail on its motion for summary judgment, TCJC was required to prove there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). In reviewing a summary judgment, we accept as true all evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment only if it conclusively negated at least one element of the plaintiff's cause of action or conclusively established all of the elements of an affirmative defense. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When the trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Star Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

UNLAWFUL EMPLOYMENT DISCRIMINATION

Under Chapter 21 of the labor code, it is unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. Tex. Lab. Code Ann. § 21.051 (Vernon 1996). This chapter also prohibits retaliation by an employer against a person who files a charge of employment discrimination. See id. § 21.055(2).

The Texas Legislature modeled chapter 21 after federal law for the express purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. See id. § 21.001(1); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.--El Paso 1997, writ denied); Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 658 (Tex. App.--Corpus Christi 1994, writ denied). Consequently, when reviewing an issue brought under chapter 21, we may look not only to cases involving the state statute, but also to cases interpreting the analogous federal provisions. See Caballero v. Central Power and Light Co., 858 S.W.2d 359, 361 (Tex. 1993); Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 455 (Tex. App.--Tyler 1996, no writ).

DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT ON ELGAGHIL'S DISCRIMINATION CLAIMS?

Elgaghil first contends that TCJC unlawfully discriminated against him on the basis of national origin by failing to select him for the seven upper management positions he applied for in 1993, 1994, 1996, and 1997. When an individual infers discrimination from an employer's failure to promote him, we apply a modified version of the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). See Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999). Thus, to establish a prima facie case of employment discrimination based on the employer's failure to promote, a plaintiff must show that (1) he is a member of a protected class, (2) he sought and was qualified for an available employment position; (3) despite his qualifications, plaintiff was not selected for the position, and (4) the employer selected someone not in plaintiff's protected class or continued to seek applicants with the plaintiff's qualifications. See id.; Bernard v. Gulf Oil Corp., 890 F.2d 735, 745 (5th Cir. 1989), cert. denied, 497 U.S. 1003 (1990). Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its decision. See EEOC v. Louisiana Office of Community Servs., 47 F.3d 1438, 1443 (5th Cir. 1995). If the employer does so, the burden shifts back to the plaintiff to prove that the employer's articulated reasons are untrue and were given as a mere pretext for unlawful discrimination. See id.; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994).

As grounds for summary judgment on Elgaghil's discrimination complaint, TCJC alleged, among other things, that TCJC hired more qualified applicants to fill the positions in question and that there was no evidence that the non-discriminatory reason offered by TCJC was a pretext for discrimination. In reviewing TCJC's no-evidence summary judgment ground, we apply the same legal sufficiency standard as we apply...