homas v Clayton Williams Energy

• Decision Date: 23 September 1999
• Citation: 2 S.W.3d 734
• Parties: <!--2 S.W.3d 734 (Tex.App.-Houston 1999) VINCENT THOMAS, Appellant v. CLAYTON WILLIAMS ENERGY, INC, TOM FETFORD, PETE SALDANA & CHARLES MCCAULEY, Appellees NO. 14-98-00583-CV In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 734

2 S.W.3d 734 (Tex.App.-Houston[14th Dist.] 1999)

VINCENT THOMAS, Appellant v CLAYTON WILLIAMS ENERGY, INC, TOM FETFORD, PETE SALDANA & CHARLES MCCAULEY, Appellees

NO. 14-98-00583-CV

In The Fourteenth Court of Appeals

September 23, 1999.

On Appeal from the 21st District Court, Burleson County, Texas, Trial Court Cause No. 21,526

[Copyrighted Material Omitted] Panel consists of Justices Yates, Fowler and Sondock.^*

O P I N I O N

Leslie Brock Yates, Justice

Vincent Thomas, appellant, appeals a summary judgment granted in favor of Clayton Williams Energy, Inc., et al. ("CWEI"), appellees, in his discrimination and retaliation action. CWEI is an oil company active in exploring and drilling for oil and gas. Thomas, one of CWEI's two African-American employees, worked for CWEI as a "roustabout," an outdoor manual laborer, from January 1993 to June 1995. Thomas alleges that beginning in the spring of 1993, CWEI supervisors initiated a campaign of racial harassment and discrimination against him, which caused him to suffer severe stress. According to Thomas, as a consequence, he was diagnosed with clinical depression and remained under medical care for two years.

In June 1995, Thomas sought paid time off from work. Thomas was informed that because of his prior absences, he had no available time off, and CWEI denied his request. Thomas thereafter left work and did not return. In response to CWEI's inquiry regarding Thomas's reason for leaving, Thomas offered a note from his physician indicating that he was suffering from stress and advising that Thomas should not return to work. Subsequently, CWEI asked Thomas to provide a definite date for his return to work; Thomas was unable to comply, and CWEI terminated his employment.

On January 22, 1996, Thomas sued CWEI for, inter alia, race discrimination and retaliation in violation of the Texas Commission on Human Rights Act ("TCHRA"), and intentional infliction of emotional distress. The trial court granted summary judgment on CWEI's motion, ordering that Thomas take nothing by his claims and dismissing the suit with prejudice. In six points of error, Thomas contends that the trial court erred in granting CWEI's motion for summary judgment because Thomas has exhausted all his administrative remedies and established a prima facie case of racial discrimination, intentional infliction of emotional distress, and retaliation. Moreover, Thomas asserts that the trial court erred in applying the wrong standard of review in granting summary judgment in favor of CWEI. We affirm the summary judgment in part and reverse and remand in part.

STANDARD OF REVIEW¹

In seeking summary judgment, a movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, the trial court must take evidence favorable to the non-movant as true. See id. Furthermore, the court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in the non-movant's favor. See id.

When a defendant seeks to obtain summary judgment based on a plaintiff's inability to prove its case, the defendant must conclusively disprove at least one element of each of the plaintiff's causes of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Only if a defendant disproves one of the essential elements of one of the plaintiff's causes of action does the plaintiff carry the burden of producing controverting evidence and raising a fact issue as to the negated element. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When a trial court does not state the basis for its decision in its summary judgment order, we must uphold the order if any of the theories advanced in the motion are meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989). Conversely, we must reverse the order if we find no valid legal basis in the motion. See id.

DISCRIMINATION AND RETALIATION

In points of error one and four, Thomas contends that the trial court erred in granting CWEI's motion for summary judgment because he proffered summary judgment evidence that raised material fact issues regarding CWEI's racially discriminatory conduct and retaliation, which violated TEX. LAB. CODE ANN. 21.001 et seq. (Vernon 1996). In his related second point of error, Thomas asserts that he exhausted all his administrative remedies and is, thus, entitled to bring a civil suit against CWEI.

A. Administrative Remedies

In its motion for summary judgment, CWEI argued that Thomas failed to exhaust his administrative remedies with respect to Thomas's retaliatory discharge claim. Specifically, CWEI complained that Thomas's claim regarding his retaliatory discharge was barred under section 21.201(a) of the Labor Code.²

Section 21.201(a) of the Labor Code provides that before a complainant may maintain a suit for employment discrimination, he must file a complaint with the Texas Commission on Human Rights ("TCHR"). See TEX. LAB. CODE ANN. 21.201(a) (Vernon 1996); Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). A lawsuit under this section is limited to the complaints made in the discrimination charge and factually related claims that could reasonably be expected to grow out of the Commission's investigation of the charge. See Fine v. GAF Chem. Corp.,995 F.2d 576 (5th Cir. 1993).

Thomas filed a complaint with the TCHR and the EEOC on November 14, 1994, alleging that because of his race CWEI denied him an opportunity to try out for a "pusher" position and subjected him to more disciplinary actions than other similarly situated white employees. In his suit against CWEI, Thomas restated these allegations and further alleged that after he filed his EEOC/TCHR complaint, CWEI increased its racial harassment and "[set] him up for termination." However, Thomas did not file a separate EEOC/TCHR charge complaining of CWEI's retaliation. Consequently, CWEI contends that Thomas failed to exhaust his administrative remedies under section 21.201.

In Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir. 1981), the plaintiff filed an EEOC charge alleging national origin and religious discrimination. In the suit, the plaintiff claimed that after he filed a complaint with the EEOC, his employer retaliated against him. See id. at 413. However, the plaintiff did not file an additional EEOC charge alleging retaliation. See id. Nonetheless, the court held that it was not necessary to file a charge for a retaliation claim when that claim grew out of a previously filed EEOC charge. See id. at 414. Thus, because Thomas's retaliation claim arose due to his filing a complaint with the EEOC and TCHR, it was not necessary for Thomas to file a second complaint. As a result, Thomas exhausted his administrative remedies, and the court erred in granting summary judgment on this ground.

B. Racial Discrimination

In his first point of error, Thomas contends that the trial court erred in granting CWEI's summary judgment because he established a prima facie case of racial discrimination. In his EEOC complaint, Thomas alleged that CWEI gave him written disciplinary notices and denied him the opportunity to try out for a "pusher" position because of his race.

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. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 64 (Tex. App.-Houston [14th Dist.] 1998, no pet.). 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. See id. 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. See id. Although the burden of production shifts, the burden of persuasion remains continuously with the plaintiff. See id.

Assuming arguendo that Thomas's allegations established a prima facie case of race discrimination, the burden then shifted to CWEI to prove a legitimate, non-discriminatory reason for the alleged unequal treatment. According to CWEI's summary judgment proof, Thomas was disciplined for his "absenteeism and tardiness." CWEI further stated that it denied Thomas promotional opportunities, in particular, it prohibited Thomas from trying out for a "pusher" position, because Thomas lacked the experience required for the position. The burden of production then shifted back to Thomas to show that CWEI's articulated reason was a pretext for racial discrimination. Thomas offered the affidavit of Philip Rosprim, a crew supervisor for CWEI. Rosprim stated his and Thomas's supervisor asked Rosprim to find fault with Thomas's work and asked him to "write-up Mr. Thomas for the few times that he was late, but . . . did not ask [him] to write-up employees who were late a lot more often than Mr. Thomas." Rosprim then stated that, "White employees were treated more favorably than black employees. Whites were written up less frequently than blacks. None of the blacks were promoted. White employees were allowed to work more overtime than blacks." This evidence suggests that CWEI's race-neutral reasons were a pretext for unlawful discrimination. Thus, the trial court improperly granted summary judgment on Thomas' claim of racial discrimination.

C. Retaliation

Thomas also alleged that after...