Hudgens v. Univ. of Tex. MD Anderson Cancer Ctr.

• Decision Date: 08 December 2020
• Docket Number: NO. 14-18-00938-CV,14-18-00938-CV
• Citation: 615 S.W.3d 634
• Parties: James HUDGENS, Appellant v. The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Appellee
• Court: Texas Court of Appeals

615 S.W.3d 634

James HUDGENS, Appellant

v.The UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Appellee

NO. 14-18-00938-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 8, 2020

Kevin Jewell, Justice

Appellant James Hudgens appeals a summary judgment in favor of The University of Texas MD Anderson Cancer Center on his age discrimination claims, alleging disparate treatment and wrongful termination. We conclude that Hudgens did not raise a genuine issue of material fact on either claim, and we affirm the trial court's judgment.

Background

Hudgens worked for MD Anderson as a Safety Specialist in the Fire Life & Safety Group of the Environmental Health & Safety Department for the duration of his employment. Born in August 1953, Hudgens was fifty years old when MD Anderson hired him in 2004. MD Anderson terminated him in 2015 when he was sixty-one.

Hudgens reported to Fire Life & Safety Supervisor, Mike Woods. Woods reported to Fire Life & Safety Supervisor Manager, Reginald Phipps. Phipps reported to Environmental Health & Safety Director, Brian Galloy. Galloy reported to Environmental Health & Safety Executive Director, Matthew Berkheiser.

MD Anderson's disciplinary action policy outlines a progressive discipline process. The policy identifies five options for disciplinary action, depending on the circumstances, when an employee's work performance or conduct is below standard: notice, final notice, demotion, suspension without pay, and termination. When an employee is placed on "final notice," the manager documents (1) the type, reason for, and length of the final notice disciplinary period (from three to twelve months), (2) any previous discussions with the employee regarding below-standard performance, and (3) the consequences of failure to meet any stated future expectations.

A. First Alleged Adverse Employment Action

Hudgens complains of two adverse employment actions by MD Anderson. First, on February 12, 2015, MD Anderson issued Hudgens a twelve-month final notice for violating MD Anderson's Personal Protective Equipment ("PPE") Policy by failing to wear required safety equipment (a hard hat) in a construction area (the "Final Notice"). The Final Notice stated: (1) there were signs posted at the construction site indicating that PPE was required upon entering; and (2) Hudgens was asked by another individual about not wearing PFE and Hudgens still did not immediately leave the site to obtain PPE.

Wade Martin, another MD Anderson Fire Life & Safety Group employee, was with Hudgens at the time, and Martin also failed to wear a hard hat in the construction area. Like Hudgens, Martin received a twelve-month final notice on February 12, 2015 for failing to wear required safety equipment in a construction area. Martin was fifty-six years old when he received his final notice.

Hudgens appealed his Final Notice under MD Anderson's grievance process. Hudgens testified in his deposition that in a meeting related to the grievance, he was told by Phipps that another manager, Galloy, was "targeting" him. Hudgens also testified that Galloy asked him on five or six occasions, "Why are we paying you the big bucks?" Hudgens's Final Notice was upheld and not modified.

The final notices impaired Hudgens's and Martin's potential for a raise during part of 2015 because the notices state employees "are not eligible to receive a merit increase during the first 90 days of a Notice/Final Notice."

The record does not contain an employee grievance form signed by Martin, but Martin testified that he asked his supervisor, Phipps, if he could get his raise back, and Phipps agreed to this request. Martin did not consider his request for a raise as a grievance; he testified he filled out some paperwork but was not aware it was a grievance. Berkheiser testified in his affidavit that: (1) Martin did not appeal his final notice; (2) Martin's final notice was never reduced or rescinded; and (3) after showing improvement following his final notice, Martin received an off-cycle merit raise for fiscal year 2015 on July 1, 2015 (more than ninety days after his February 12, 2015 final notice).

Hudgens did not receive a raise in 2015 even though he was placed on the same twelve-month final notice as Martin. (As explained below, Hudgens was terminated in May 2015). Based on these events, Hudgens alleged in his lawsuit that MD Anderson discriminated against him based on his age, because Hudgens did not enjoy a 2015 raise but Martin—five years' Hudgens's junior—did.

B. Second Alleged Adverse Employment Action

The second adverse action at issue is MD Anderson's decision to terminate Hudgens on May 26, 2015 following an April flooding incident. On March 31, 2015, Hudgens, as site/facilities manager, prepared and submitted an outage request for the shutdown of a fire sprinkler system in operating room number 8 ("OR 8") on the fifth floor of the building. The sprinkler system shutdown was to allow contractors to extend and lower a fire sprinkler head in OR 8. Hudgens stated in his petition that "[t]he task to shut off the sprinklers was assigned to Hudgens and his crew." According to Hudgens, his subordinate, Ruben Dimas, was responsible for identifying and closing the valve feeding the sprinklers in OR 8. Although OR 8 was on the fifth floor, the shut off valve was located on sixth floor—a fact unknown to Hudgens or Dimas. Before work began, Dimas turned off valves located on the fifth floor but not the sixth floor. As a result, when the subject sprinkler head in OR 8 was removed by the contractor, the operating room flooded and caused at least $157,000 and as much as $250,000 in damage to the operating suite, adjacent areas, and surgical equipment.

On May 20, 2015, MD Anderson sent Hudgens an "Intent to Terminate" letter, stating "you have failed to perform job duties at an acceptable level." The Intent to Terminate stated:

On March 31, 2015 James "Jim" W. Hudgens submitted an outage request for the shutdown of the fire sprinkler system located on Alkek level 5 inside of operating room 8 (OR#8). This shutdown was necessary to allow a contractor to lower a sprinkler head inside of the operating room. On April 13, 2015 Jim assisted with the fire sprinkler system shutdown for this work. Two sprinkler valves on Alkek level 5 were closed, but these two valves did not shutdown the fire sprinkler system inside of the operating room. Expecting that the correct valves had been closed, the contractor removed the sprinkler head while the sprinkler system was still under pressure and this caused flooding in the room. The sprinkler water caused damage to the equipment inside of the operating room, the control room and other adjacent areas.

There is documentation which demonstrates that Jim Hudgens had prior knowledge of the correct valve location. Jim is an experienced safety specialist who routinely performs this type of task. He did not perform the necessary steps required to identify the correct valve of the system that serves the operating room. Jim's failure to perform the due diligence necessary to execute this type of task effectively resulted in damages to the operating room and its equipment.

The Intent to Terminate also noted "Hudgens was placed on a 12-month Final Notice on February 12, 2015 for conduct related issues." Hudgens sent a written response to the Intent to Terminate.

On May 26, 2015, Woods sent Hudgens a letter stating that Hudgens's employment was terminated immediately because of his unacceptable work performance. In the letter, Woods thanked Hudgens for providing a response but noted that the response contained no new information not already considered by MD Anderson.

Dimas was not terminated, but MD Anderson placed him on final notice. Dimas appealed his final notice but resigned before his appeal was completed.

Martin provided support for the OR 8 work, but he was not terminated or disciplined.

Hudgens was sixty-one years old when he was terminated. He was replaced in October 2015 by Stephen Mayne, who was fifty-two years old.

After filing a charge of discrimination with the Equal Employment Opportunity Commission, Hudgens sued MD Anderson, asserting claims of age discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code ch. 21. Hudgens alleged that MD Anderson treated Hudgens less favorably than a similarly situated employee (Martin) because of Hudgens's age when MD Anderson gave a raise to Martin but not Hudgens following the February 2015 final notices, and that MD Anderson terminated Hudgens because of his age.

MD Anderson filed a combined traditional and no-evidence motion for summary judgment on both of Hudgens's claims, arguing among other things that there was no evidence that MD Anderson treated Hudgens differently than the comparator employee or that MD Anderson terminated Hudgens because of his age. MD Anderson also argued that Hudgens could not make a prima facie showing of age-based wrongful termination because his replacement was within the protected class or, alternatively, not significantly younger than Hudgens. Hudgens filed a timely response.

The trial court granted MD Anderson's motion on both traditional and no-evidence grounds.

Hudgens appeals. He argues that the trial court erred because a genuine issue of material fact exists as to both claims.

Standard of Review

We review a summary judgment under a de novo standard of review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). "[W]e apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor." Dias v. Goodman Mfg. Co., L.P. , 214 S.W.3d 672, 675-76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

To prevail on a traditional motion for summary judgment, a movant must establish that no genuine issue of material...