Rincones v. WHM Custom Servs., Inc.

• Decision Date: 02 May 2013
• Docket Number: NUMBER 13-11-00075-CV
• Parties: GILBERTO RINCONES, Appellant, v. WHM CUSTOM SERVICES, INC., ET AL., Appellees.
• Court: Texas Court of Appeals

GILBERTO RINCONES, Appellant,

v.WHM CUSTOM SERVICES, INC., ET AL., Appellees.

NUMBER 13-11-00075-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

FILED: May 2, 2013

On appeal from the 445th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela¹

Memorandum Opinion by Chief Justice Valdez

By three issues, which we will re-number, re-order, and address as eleven issues, appellant, Gilberto Rincones, contends that the trial court erred with respect to the following: (1) granting a motion to dismiss filed by appellees WHM CustomServices, Inc. ("WHM") and Exxon Mobil Corporation ("Exxon") and dismissing appellant's pattern and practice discrimination claims against WHM and Exxon with prejudice for lack of jurisdiction; (2) granting summary judgment in favor of WHM on appellant's claims for discrimination, retaliation, and defamation; (3) granting summary judgment in favor of Exxon on appellant's claims for discrimination, retaliation, defamation, negligence, and tortious interference with a contract; and (4) granting summary judgment in favor of appellee DISA, Inc. ("DISA") on appellant's claims for defamation, negligence, tortious interference with a contract, and breach of contract.

For the reasons set forth below, we conclude that the trial court erred in the following respects: (1) dismissing appellant's pattern and practice discrimination claims against WHM and Exxon for lack of jurisdiction; and (2) granting summary judgment in favor of DISA on appellant's negligence and tortious interference with a contract claims. We overrule appellant's other issues. Accordingly, the judgment of the trial court is affirmed in part and reversed in part.

I. BACKGROUND

This is an employment-related case involving, among other things, a dispute over the accuracy of a workplace drug test and allegations of discrimination based on race or national origin. As set forth below, the issues in this case are hotly disputed. The following facts are not in dispute.

On April 10, 2008, DISA selected appellant for a random drug test. The parties agree that, at that time, appellant was employed by WHM and that WHM had engaged the services of DISA for purposes of administering its drug and alcohol policy. Appellant maintains that he was also employed by Exxon, but Exxon denies anyemployment relationship. Nevertheless, it is undisputed that appellant worked for WHM at a facility in Baytown, Texas that is owned and operated by Exxon.

On April 14, 2008, WHM's human resources manager, Mark Carter, informed appellant that there was a "problem" with his test and that he could not return to work for WHM or be assigned to work at Exxon facilities until he was "active" in DISA. Subsequently, appellant learned that he had allegedly failed his drug test because his urine sample allegedly tested positive for marijuana use. Appellant denies that he used marijuana, denies that his urine sample tested positive, and denies that he failed his drug test. As set forth below, appellant took a second drug test, conducted by a second facility, and the second test was negative for marijuana use. Appellant informed DISA and WHM of his second test. Nevertheless, appellant's DISA status remained "inactive," and he was not assigned further work.

On or about August 17, 2008, appellant filed for unemployment benefits with the Texas Workforce Commission ("TWC"). In September 2008, appellant received a letter from the TWC denying benefits on the basis that his employment with WHM had been terminated for drug use. On or about November 24, 2008, appellant filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Workforce Commission Civil Rights Division ("TWC-CRD"). Appellant named WHM and Exxon as his employers. On May 26, 2009, appellant received a "Notice of Right to File Civil Action" letter from the TWC-CRD dated May 21, 2009.

Thereafter, appellant filed suit against WHM, Exxon, DISA, and others.² Appellant asserted claims against WHM for discrimination, retaliation, and defamation. Appellant asserted claims against Exxon for discrimination, retaliation, defamation,negligence, and tortious interference with a contract. Appellant asserted claims against DISA for defamation, negligence, and tortious interference with a contract. In his fifth amended petition, appellant also asserted a claim against DISA for breach of contract.

On March 23, 2010, the trial court granted Exxon's no-evidence motion for summary judgment on appellant's discrimination, retaliation, and defamation claims. On March 23, 2010, the trial court also granted Exxon's traditional motion for summary judgment on appellant's discrimination, retaliation, and defamation claims. On November 16, 2010, the trial court entered the following orders:

(1) order granting Exxon and DISA's motion to strike appellant's fifth amended original petition;

(2) order granting WHM and Exxon's motion to dismiss;

(3) order granting DISA's motion for summary judgment;

(4) order granting Exxon's traditional and no-evidence motion for summary judgment on all claims; and

(5) order granting WHM's traditional and no-evidence motion for summary judgment.

The trial court did not state the basis for any of its rulings. Appellant non-suited all claims that were not dismissed by the trial court. This appeal ensued.

II. PATTERN AND PRACTICE DISCRIMINATION CLAIMS

In his first issue, appellant argues that the trial court erred in dismissing his pattern and practice discrimination claims against WHM and Exxon for lack of jurisdiction.

A. Applicable Law

The Texas Commission on Human Rights Act ("TCHRA") "is modeled after federal law with the purpose of executing the policies set forth in Title VII of the federalCivil Rights Act of 1964." Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004) (citing Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). The TCHRA requires a complainant to first exhaust his administrative remedies before filing a civil action. Lueck v. State, 325 S.W.3d 752, 761 (Tex. App.—Austin 2010, pet. denied). Failure to exhaust administrative remedies creates a jurisdictional bar to suit. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). A subsequent suit "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." Johnson v. Hoechst Celanese Corp., 127 S.W.3d 875, 878 (Tex. App.—Corpus Christi 2004, no pet.).

B. Standard of Review

A plea to the jurisdiction is a dilatory plea that seeks to defeat a cause of action by questioning the trial court's subject matter jurisdiction and should be decided "without delving into the merits of the case." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is at the heart of a court's power to decide a case. See id. "We review a trial court's order granting or denying a plea to the jurisdiction de novo." Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). In our review, we examine the plaintiff's petition and evidence submitted by the parties "to the extent it is relevant to the jurisdictional issue." Id.

When a trial court's decision concerning a plea to the jurisdiction is based on the plaintiff's pleadings, we accept as true all factual allegations in the pleadings to determine if the plaintiff has met its burden to plead facts sufficient to confer jurisdictionon the court. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We examine the pleader's intent and construe the pleadings in the plaintiff's favor. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). A plea to the jurisdiction may be granted without allowing the plaintiff to amend if the pleadings affirmatively negate the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867.

C. Appellant's Relevant Pleadings

In his live petition, appellant alleged a claim for pattern and practice discrimination as follows:

Plaintiff Gilberto Rincones asserts and intends to prove that the treatment received by him from the Defendants WHM and EXXON was part of a pattern and practice engaged in by the Defendant employers and their employees towards several individuals similarly situated. This unwritten plan or scheme was to discriminate against, retaliate against, discharge or take some adverse employment action against Plaintiff and other similarly situated Hispanics of Mexican heritage/decent, thereby creating a hostile work environment.

Attached to appellant's live petition was a copy of his charge of discrimination, filed with the EEOC and TWC-CRD, which stated in relevant part as follows:

I am a 37 year old Hispanic male who worked for WHM since 2007. While working with WHM, I was assigned to work for Exxon, under their direction and control as a Technician. I was a loyal, hardworking, and dedicated employee at all times. As a requirement to work at Exxon, I was required to take a drug test. On April 10, 2008, I was given a random drug test by Turn Around Incorporated, along with other non-Hispanic employees. Thereafter, I was terminated due to allegedly being tested positive for drug use, even though I told my employers that the test was mixed up or false. On April 14, 2008, I went to a lab where I paid for a test to be done, with my own money, which was negative, I provided this information to my employers and complained that other non Hispanic employees were treated differently because they were retested or allowed to prove the test was wrong. However, I was refused my position. I feel I am being discriminated against because I am Hispanic.

I believe that I was discriminated against because of my race

...