Kennedy v. Texas Department of Protective and Regulatory Services, No. 03-04-00608-CV (TX 12/22/2005)
| Decision Date | 22 December 2005 |
| Docket Number | No. 03-04-00608-CV.,03-04-00608-CV. |
| Parties | CATHREN KENNEDY, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Travis County, 126th Judicial District, No. GN302604, Honorable Charles F. Campbell, Jr., Judge Presiding.
Affirmed.
Before Justices B. A. SMITH, PURYEAR and PEMBERTON.
Appellant Cathren Kennedy retired as an employee of appellee Texas Department of Protective and Regulatory Services (the Department) and applied to be rehired to her position. The Department instead hired one of Kennedy's co-workers. Kennedy is Caucasian, while the co-worker is Hispanic. Kennedy filed a national origin discrimination claim with the federal Equal Employment Opportunity Commission (EEOC). Thereafter, Kennedy applied for another position with the Department; she did not receive an interview and was not hired. She then filed suit in district court, claiming national origin discrimination and retaliation. See Tex. Lab. Code Ann. §§ 21.051, .055 (West 1996). The district court granted traditional summary judgment on the national origin discrimination claim and no-evidence summary judgment on the retaliation claim, both in favor of the Department. We will affirm the judgment of the district court.
Kennedy worked for the Department for over twenty-eight years. During that time, she had been a licensing representative and a licensing supervisor, she had monitored residential facilities and child placement agencies, and she had been a program specialist in the Department's licensing division. On May 31, 2002, she retired from her position as a "Functional Analyst III" ("Position I"), a position she had held for nine months that dealt with the Department's new automated documentation system. The Department then posted Position I, and, on June 14, Kennedy applied to be rehired to it. According to Kennedy's pleadings, the Department, like other state agencies at the time, permitted certain employees to retire, then rehired them after waiting thirty days, enabling the employees to obtain certain pension benefits. After her retirement, Kennedy voluntarily continued working at her position on an unpaid basis during the ensuing thirty days.
The Department chose five applicants to interview for Position I, including Kennedy and Yolanda Hernandez. According to Kennedy, she was initially interviewed on June 5 or 6 by one Department employee, Scott Silverthorne. However, she was later notified that the Department needed to conduct another interview because the interview with Silverthorne had occurred before the Department had posted Position I and before Kennedy had applied for it.
The Department created a panel of four employees to conduct interviews, and two of those employees, Keith Elliot and Pat Smith, interviewed Kennedy. Both Kennedy and Hernandez had initially qualified for interviews based on background and qualifications—education, training, and previous work experience. The interview notes indicate that the interviewers felt that Hernandez performed well during her interview. However, they rated Kennedy's interview performance as "poor" and remarked that she appeared unprepared. The record contains minimal notes taken by the interviewers. The Department ultimately hired Hernandez over Kennedy for Position I.1
On August 27, Kennedy filed a national origin discrimination complaint with the EEOC concerning the Department's hiring decision for Position I. On August 30, the EEOC notified the Department of Kennedy's complaint and suggested mediation. Pedro Lopez, an employee relations specialist with the Department, drafted an internal memorandum concerning the complaint on September 23,2 suggesting that the Department reject mediation. On September 26, the Department's director of human resources, Frank Pearce, responded by letter to the EEOC, denying Kennedy's allegations.
On October 4, Kennedy learned that another functional analyst position ("Position II") had become open; she submitted her application that day. On October 9, she confirmed that the Department's human resources department had received the application. Kennedy was never interviewed for Position II. On October 23, Kennedy learned that the Department had filled Position II with another person and without interviewing her.
Kennedy filed suit against the Department on July 24, 2003. She first alleged national origin discrimination for the Department's hiring of Hernandez over her for Position I. See Tex. Lab. Code Ann. § 21.051.3 Second, she claimed the Department engaged in unlawful retaliation when it did not interview or hire her for Position II. See id. § 21.055. In response, the Department filed a traditional motion for summary judgment for the national origin discrimination claim, claiming a legitimate non-discriminatory reason for its selection of Hernandez and lack of causation. See Tex. R. Civ. P. 166a(c). At the same time, it moved for no-evidence summary judgment for the retaliation claim, asserting that Kennedy had no evidence that decisionmakers in the Department were aware of her EEOC charge of discrimination. See Tex. R. Civ. P. 166a(i). The district court granted the Department's motions.4 This appeal followed.
Kennedy brings two issues on appeal, arguing that the trial court erred in granting both motions for summary judgment. We will address each issue in turn.
National origin discrimination claim
In her first issue, Kennedy argues that the district court erred in granting traditional summary judgment against her on her national origin discrimination claim. In particular, she claims she "was the only candidate qualified for" Position I. She adds that the Department awarded Position I to Hernandez because, Kennedy alleges, Hernandez had threatened to sue the Department in the past for national origin discrimination.
Because the propriety of a summary judgment is a question of law, we review the district court's decision de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The standards for reviewing traditional summary judgments are well established: (1) the movant has the burden of showing that no genuine issue of material fact exists and entitlement 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 nonmovant will be taken as true; and (3) every reasonable inference must be indulged, and any doubts resolved, in favor of the nonmovant. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) ). We affirm if summary judgment is warranted on any ground asserted in the trial court. Tex. R. Civ. P. 166a(c); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). A defendant, when moving for summary judgment, need disprove only one essential element of the opponent's cause of action to prevail. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). However, the defendant must support its motion with proper summary-judgment evidence. Tex. R. Civ. P. 166a(c). Only if the defendant meets its burden does the burden shift to the plaintiff, as the nonmovant, to establish the existence of a genuine issue of material fact. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999).
One of the purposes of the Texas Commission on Human Rights Act (TCHRA) is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Lab. Code Ann. § 21.001(1) (West 1996); see id. §§ 21.001-.306 (West 1996 & Supp. 2004-05). Therefore, analogous federal statutes and the cases interpreting them guide our reading of the TCHRA. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001) (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)).
Federal courts recognize two types of Title VII employment discrimination cases, each requiring different elements of proof. Id. One type of case is the "mixed-motive" case, in which the plaintiff has direct evidence that discriminatory animus factored into the employment decision. Id. This direct evidence shifts the burden of proof to the employer to show that legitimate reasons would have led to the same decision regardless of any discriminatory motives. Id. ().
In the second type of case—the "pretext" case—there is no direct evidence of discriminatory animus but the plaintiff attempts to show that the employer's stated reason for the adverse action was a mere pretext for discrimination. Id. (). In this type of case, discrimination can be shown indirectly by following the "pretext" method of proof set out in McDonnell Douglas Corp., 411 U.S. at 802-05. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216-17 & n.11 (5th Cir. 1995). In general, the complainant must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Although the precise elements of this showing will vary depending on the allegations, id. at 802 n.13,5 the plaintiff's burden at this stage of the case "is not onerous." Burdine, 450 U.S. at 253. The burden of going forward then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff's prima facie showing.6 Burdine, 450 U.S. at 254. The burden then shifts...
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