Rincones v. WHM Custom Servs., Inc.

• Decision Date: 12 February 2015
• Docket Number: NUMBER 13–11–00075–CV
• Citation: 457 S.W.3d 221
• Parties: Gilberto Rincones, Appellant, v. WHM Custom Services, Inc., et al., Appellees.
• Court: Texas Court of Appeals

457 S.W.3d 221

Gilberto Rincones, Appellant

v.WHM Custom Services, Inc., et al., Appellees.

NUMBER 13–11–00075–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed February 12, 2015

Ricardo R. Godinez, Law Offices of Ricardo R. Godinez, McAllen, TX, Gilberto Hinojosa, Attorney at Law, Brownsville, TX, for Appellant.

Cathryn L. Blaine, Exxon Mobil Corporation Law Dept., Fran Aden, Holly H. Williamson, Hunton & Williams, LLP, Houston, TX, Allison E. Moore, Attorney at Law, Clinton W. Twaddell III, Keith B. Sieczkowski, Branscomb, PC, Corpus Christi, TX, for Appellees.

Before Chief Justice Valdez and Justices Garza and Vela¹

OPINION ON REHEARING

Opinion on Rehearing by Chief Justice Valdez²

Plaintiff Gilberto Rincones appeals a take-nothing judgment entered in favor of defendants WHM Custom Services, Inc., Exxon Mobil Corporation, and DISA, Inc. As set forth below, the Court reverses the take-nothing judgment and remands in part, and affirms in part.

I. Background

Gilberto Rincones is a Hispanic male of Mexican descent and heritage. Between 2007 and 2008, he worked as a technician for WHM, a specialty maintenance company that builds, removes, repairs, and installs catalyst systems. At the time, WHM had a nonexclusive independent contractor service agreement with Exxon, which own and operates refineries and chemical plants. Most of WHM's catalyst work was performed at various Exxon facilities. WHM staffs each project according to the particular demands of the project.

Under the terms of its contract with Exxon, WHM is required to ensure that all of its employees who enter Exxon facilities conduct themselves in a safe manner and be subject to random drug screens. Exxon uses Substance Abuse Alliance Groups, or third party administrators, to monitor and track substance abuse testing. These groups attempt to standardize testing requirements and form databases of individual employee testing results to avoid unnecessary or redundant testing obligations and promote consistent standards. As required by Exxon, WHM contracted with DISA, a third party substance abuse administrator approved by Exxon, to assist WHM in its program. Before being eligible to work at an Exxon facility, all WHM employees are required to have an “active” DISA status.

Rincones had an “active” DISA status when he began working for WHM at Exxon's Baytown, Texas facility. Subsequently, however, his DISA status was changed to “inactive” after he submitted a urine sample for drug testing at DISA's request. According to DISA, the sample was positive for marijuana use. Rincones denied using marijuana and insisted that the sample must have been mixed with someone else's or was otherwise contaminated. Rincones tried to submit a new sample for testing, but DISA refused. WHM was no help to him either. WHM told him that because of his “inactive” status with DISA, he was no longer eligible to work for WHM at Exxon's Baytown, Texas facility. WHM told Rincones to work it out with DISA. According to Rincones, neither WHM nor DISA disclosed to him that they had a return to work policy and procedure for employees who test positive for drug or alcohol use.

A few days later, Rincones went to a different laboratory where he was tested for drug and alcohol use. The results were negative. Rincones contacted WHM in an effort to prove his innocence; however, WHM refused to consider the second test and insisted that Rincones work it out with DISA. According to Rincones, DISA would not return his calls. His DISA status remained “inactive.” Nevertheless, WHM did not consider Rincones fired. Later that year, after Rincones submitted a claim for unemployment benefits, WHM informed the Texas Workforce Commission that Rincones had been fired for violating the company's substance abuse policy, as evidenced by his “drug-test results.”

Rincones filed a charge of discrimination and was issued a right to sue letter. He proceeded to file suit against WHM, Exxon, DISA, and other defendants who are not parties to this appeal. The trial court granted summary judgment in favor of the defendants on all claims, except Rincones's claim for pattern or practice discrimination, which it dismissed for lack of jurisdiction. Rincones non-suited all claims that had not been dismissed by the trial court. He now appeals to this Court.

II. Claims Against WHM

Rincones asserted claims against WHM for discrimination based on race or national origin, retaliation, pattern or practice discrimination, defamation, and compelled self-defamation. On appeal, Rincones argues that the trial court erred in dismissing these claims.³

A. Discrimination Based on Race or National Origin

In his first issue, Rincones argues that the trial court erred by granting WHM's motion for summary judgment on his claim for discrimination based on race or national origin.

1. Applicable Law

The Texas Commission on Human Rights Act (“TCHRA”) was “enacted to address the specific evil of discrimination and retaliation in the workplace.” City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex.2008) ; see also Tex. Labor Code Ann. §§ 21.001 –.566 (West, Westlaw through 2013 3d C.S.). The TCHRA's “general purposes” include executing “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments” and securing “for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity.” Tex. Labor Code Ann. § 21.001(1) & (4). The TCHRA is intended to “make available to the state the full productive capabilities of persons in this state,” to “avoid domestic strife and unrest,” and to “preserve the public safety, health, and general welfare.” Id. § 21.001(5) -(7).

Under the TCHRA, “An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer ... fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment....” Id. § 21.051(1).⁴ “[A]n unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice....” Id. § 21.125(a). The Texas Supreme Court has explained “that ‘a motivating factor’ is the correct standard for the plaintiff in all TCHRA unlawful employment practice claims....” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001). This language states exactly “what a complainant must show in order to prevail in a lawsuit.” Id.⁵

“Texas courts follow the settled approach of the U.S. Supreme Court in recognizing two alternative methods of proof in discriminatory treatment cases.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.2012). The first method “involves proving discriminatory intent via direct evidence of what the defendant did and said.” Id. “Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002). “[M]otives are often more covert than overt, making direct evidence of forbidden animus hard to come by.” Garcia, 372 S.W.3d at 634. “There will seldom be ‘eyewitness' testimony as to the employer's mental processes.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). This limitation is not unique to discrimination cases—“[t]he law often obliges finders of fact to inquire into a person's state of mind.” Id. Discrimination is not treated “differently than other ultimate questions of fact.” Id.

Accordingly, the second method allows a plaintiff to prove discriminatory intent using circumstantial evidence. See El Paso Cmty. College v. Lawler, 349 S.W.3d 81, 86 (Tex.App.—El Paso 2010, pet. denied). This often involves “the burden-shifting mechanism of McDonnell Douglas. ” Garcia, 372 S.W.3d at 634 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff has his day in court despite the unavailability of direct evidence.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (quotations omitted). “Under this framework, the plaintiff is entitled to a presumption of discrimination if she meets the ‘minimal’ initial burden of establishing a prima facie case of discrimination.” Garcia, 372 S.W.3d at 634.⁶ “Although the precise elements of this showing will vary depending on the circumstances, the plaintiff's burden at this stage of the case is not onerous.” Id. (quotations omitted). The elements of a prima facie case of discrimination are not fixed,⁷ but they are often enumerated as follows:

To establish a prima facie case of employment discrimination the plaintiff must show (1) he was a member of a protected class, (2) he was qualified for his employment position, (3) he was subject to an adverse employment decision, and (4) he was replaced by someone outside of the protected class, or he was treated less favorably than similarly situated members of the opposite class (disparate treatment cases).

Michael v. City of Dallas, 314 S.W.3d 687, 690–91 (Tex.App.—Dallas 2010, no pet.).

“The McDonnell Douglas presumption is merely an evidence-producing mechanism that can aid the plaintiff in his ultimate task of proving illegal discrimination by a preponderance of the evidence.”Garcia, 372 S.W.3d at 634 (quotations omitted). “The prima facie case raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Id...