Graves v. Komet

• Decision Date: 28 October 1998
• Docket Number: No. 04-98-00374-CV,04-98-00374-CV
• Citation: 982 S.W.2d 551
• Parties: Glenda GRAVES, Appellant, v. Harvey KOMET, M.D., P.A. d/b/a Hearing Solutions; Harvey Komet, M.D., Individually, Appellees.
• Court: Texas Court of Appeals

Page 551

982 S.W.2d 551

Glenda GRAVES, Appellant, v. Harvey KOMET, M.D., P.A. d/b/a Hearing Solutions; Harvey

Komet, M.D., Individually, Appellees.

No. 04-98-00374-CV.

Court of Appeals of Texas,

San Antonio.

Oct. 28, 1998.

G. Wade Caldwell, Denise M. Nixon, Martin, Drought & Torres, Inc., San Antonio, for Appellant.

Susan Stone, Akin, Gump, Strauss, Hauer & Feld, L.L.P., San Antonio, for Appellees.

Before HARDBERGER, C.J., and RICKHOFF and STONE, JJ.

OPINION

HARDBERGER, Chief Justice.

Glenda Graves appeals the grant of summary judgment in favor of the defendants, Harvey Komet, M.D. and Harvey Komet, M.D., P.A. d/b/a Hearing Solutions ("the Professional Association") (collectively, "Komet") on her retaliatory discharge claim. Graves complains on appeal that the trial court erred in granting Komet's motion for summary judgment because she had presented evidence sufficient to raise a genuine issue of material fact. We affirm the trial court's granting of Komet's summary judgment.

FACTS AND PROCEDURAL HISTORY

Graves was employed by the Professional Association as a sales and marketing director for Hearing Solutions, an ancillary business formed by Komet to provide hearing tests and dispense hearing aids. In her position, Graves was the immediate supervisor of Melissa Wiley, an audiologist employed by Hearing Solutions. Wiley reported to Graves that Dr. Milgrim, an ENT doctor who worked with Komet, had behaved in an inappropriate manner toward her. Graves reported this conduct to Komet, who requested that Wiley make a written statement. Wiley and Evelyn Crisp, the office manager, met the following day, at which time Wiley gave an oral statement and was questioned about the alleged conduct by Crisp. Graves was present at this meeting.

Komet met with Milgrim and told Milgrim he would fire him if it happened again. Komet then met with Wiley, again with Graves in attendance, to discuss the issue and its resolution. Subsequently, Komet spoke with Wiley by telephone about a statement regarding the issue that he wished for her and Milgrim to sign. Wiley called Graves to discuss the statement with her.

Graves later ran into Komet in the parking garage at the office and spoke briefly with him about the statement. Graves said that Komet told her (Graves) that Wiley would be fired if she did not sign the statement. Komet denies making this statement, and Wiley's testimony supports his contention that she was never told that her job was predicated upon her signing the document. Graves then went on vacation.

During Graves's vacation, Komet and Wiley met, at which time Wiley ended her employment relationship with Hearing Solutions. During this conversation, Komet told Wiley that he would "take care of Graves when she got back." Upon Graves's return, she was terminated by Komet. The stated reason for her termination was Graves's poor performance, namely, Hearing Solutions's projected net losses. There is some testimony that Komet also referred to the "turmoil" Graves had caused regarding the situation with Wiley.

Wiley and Graves both filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Subsequently, both Graves and Wiley filed suit against the Professional Association and Dr. Komet, individually, alleging sexual harassment, breach of contract (an alleged employment agreement between Graves and the Professional Association), fraud, and retaliatory discharge. Wiley's claims were severed from Graves's claims.

Komet moved for summary judgment as to all of Graves's claims. The trial court granted a partial summary judgment as to Graves's retaliatory discharge claim, as well as a commissions/bonus claim of which Graves does not appeal. Graves and Komet then severed the retaliatory discharge claim for purposes of perfecting this appeal. An order of severance was entered.

DISCUSSION

Komet moved for summary judgment under the new "no-evidence" summary judgment rule, Rule 166a(i) of the Texas Rules of Civil Procedure, or, alternatively, under the traditional summary judgment rule governing a defendant's motion, Texas Rule of Civil Procedure 166a(b). Summary judgment is proper when no genuine issue of material fact exists, entitling the moving party to judgment as a matter of law. TEX.R. CIV. P. 166a(c).

RULE 166A(I)

--NO EVIDENCE MOTION

Effective September 1, 1997, Rule 166a(i) allows a litigant to move for summary judgment as to all or part of a lawsuit on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX.R. CIV. P. 166a(i); W. Wendell Hall, Standards of Review in Texas, 29 ST. MARY'S L.J. 351, 418 (1998). A party may move for a "no-evidence" summary judgment only after an adequate opportunity for discovery. TEX.R. CIV. P. 166a(i). Rule 166a(i) requires the moving party to state the element(s) as to which there is no evidence, but it does not require the moving party to present summary judgment evidence.

"A no-evidence summary judgment is essentially a pretrial directed verdict," so we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Taylor-Made Hose, Inc. v. Wilkerson, No. 04-97-01025-CV, 1998 WL 553443 at * 2, --- S.W.2d ----, ---- (Tex.App.--San Antonio August 31, 1998, n. pet. h.) (quoting Judge David Hittner and Lynne Liberto, No-Evidence Summary Judgments Under the New Rule, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 20 ADVANCED CIVIL TRIAL COURSE D, D-5 (1997)); Moore v. K Mart Corp., 981 S.W.2d 266, 268 (Tex.App.--San Antonio June 24, 1998, n. pet. h.).

We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Taylor-Made, 1998 WL 553443 at * 2, --- S.W.2d at ----. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX .R. CIV. P. 166a(i); see also Merrell Dow, 953 S.W.2d at 711. 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" of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Taylor-Made, 1998 WL 553443 at * 2, --- S.W.2d at ----. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow, 953 S.W.2d at 711.

When viewed in the light most favorable to her, Graves has brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact, so the summary judgment cannot stand under a no-evidence Rule 166a(i) motion.

RULE 166A(B)

--DEFENDING PARTY'S MOTION

Rule 166a(b) permits a defending party to seek dismissal of a claim at any time. TEX.R. CIV. P. 166a(b). When reviewing the grant of a summary judgment, we follow these well-established rules: (1) the movant 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; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in favor of the non-movant. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985)). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's claims, or establishes all elements of an affirmative defense to each claim. Id.

RETALIATORY DISCHARGE

Graves alleged that Komet terminated her for opposing an unlawful employment practice, namely, sex discrimination as manifested by sexual harassment, in violation of the Texas Commission on Human Rights Act, as codified in section 21.055 of the Texas Labor Code. Section 21.055 provides that an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who, under chapter 21:(1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding or hearing. ¹ TEX. LAB.CODE ANN. § 21.055 (Vernon 1996) (emphasis added). Because our state statute tracks its federal counterpart in title VII of chapter 42 of the United States Code, we may consider analogous federal case law in the interpretation and application of our Texas statute. Trico Technologies Corp. v. Rodriguez, 907 S.W.2d 650, 652-53 (Tex.App.--Corpus Christi 1995, no writ); Benavides v. Moore, 848 S.W.2d 190, 193 (Tex.App.--Corpus Christi 1992, writ denied).

The burden-shifting analysis articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) governs retaliatory discharge claims brought under the Human Rights Act. See Department of Human Services v. Hinds, 904 S.W.2d 629, 636 (Tex.1995).

In order to successfully assert a claim of retaliatory discharge, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination, which, when established, gives rise to a presumption that the employer unlawfully discriminated against the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Burdine, 450 U.S. at 254, 101 S.Ct. 1089. A plaintiff proves a prima facie case of retaliatory discharge when sh...