Opinion
NUMBER 13-15-00115-CV
03-17-2016
JULIE CHAU, Appellant, v. HARLINGEN MEDICAL CENTER, Appellee.
On appeal from the 445th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
On April 16, 2015, this Court dismissed this cause for want of jurisdiction. Thereafter, appellant Julie Chau filed a motion to reinstate, which this Court granted. The cause was reinstated on June 2, 2015. We withdraw our April 16, 2015 opinion and judgment and substitute this opinion and judgment in their place.
Chau appeals from the trial court's order granting summary judgment in favor of appellee, Harlingen Medical Center ("the Center"). By two issues, Chau contends the trial court erred in granting summary judgment in favor of the Center on her (1) claims of racial/national origin discrimination, age discrimination, and hostile work environment, and (2) claim of retaliation. We affirm.
I. BACKGROUND
The background facts are based on the parties' briefs and summary judgment evidence.
Elizabeth Yzaguirre, Director of ICU Nursing at the Center, hired Chau, a registered nurse of Vietnamese descent, on September 17, 2010. Chau was initially assigned to the night shift in ICU. Payton McCloskey, a registered nurse, was assigned as a "preceptor" to help train and mentor Chau.
Chau contends that, on her first night at work, McCloskey asked if she was Filipino. Although Chau replied that she was Vietnamese, McCloskey allegedly told Chau that she hated Filipinos. Chau alleges that, from the beginning, McCloskey refused to train her or assist her. McCloskey observed several incidents involving Chau's unsatisfactory performance of her duties, which McCloskey reported to Yzaguirre. Chau was reassigned to the telemetry unit on the night shift, while McCloskey remained assigned to ICU.
On October 21, 2010, Yzaguirre met with Chau to counsel her regarding her work performance. Yzaguirre reassigned Chau to the day shift in order to more closely monitor Chau's performance. During the meeting, Chau contends she complained about McCloskey's "Filipino" comments and hostility toward her.
During the next few weeks, several other incidents involving Chau's work performance were reported, including that she "pre-charted" medication—documented that medication was given to a patient before it was actually administered—and that she was observed by a doctor "picking" her nose, but continued to work without washing her hands. Chau was terminated on November 23, 2010.
Chau sued the Center, alleging claims of discrimination on the basis of age and national origin, hostile work environment, and retaliation. The Center filed a traditional and no-evidence motion for summary judgment, see TEX. R. CIV. P. 166a(c), (i), alleging, among other things, that Chau had no evidence: (1) of age discrimination, (2) of racial or national origin discrimination, (3) of retaliation, (4) of a hostile work environment, or (5) that the Center's reasons for her termination were pretextual. The Center attached the following summary judgment evidence: (1) Chau's live petition; (2) Chau's charge of discrimination; (3) Yzaguirre's affidavit with attached exhibits; (4) registered nurse Ruby Byrd's affidavit; (5) Chau's deposition testimony; (6) McCloskey's deposition testimony; (7) portions of Chau's personnel file from Solara Hospital; and (8) portions of Chau's personnel file from Regency Odessa Hospital.
The personnel file documents reflect that Chau worked at Solara Hospital and Regency Odessa Hospital after she was terminated by the Center. The documents show that Chau was suspended or terminated from both hospitals because of work performance problems.
Chau filed a response to the Center's motion, to which she attached the following summary judgment evidence: (1) excerpts from her own deposition and deposition exhibits; (2) a copy of her charge of discrimination; (3) the Center's Team Member Handbook; (4) a copy of her application for employment with the Center; (5) two work schedule calendars for registered nurses at the Center for the applicable time period; (6) McCloskey's deposition transcript; and (7) McCloskey's deposition exhibits.
Following a hearing on December 17, 2014, the trial court granted the Center's motion without stating the basis for its ruling.
We note that, at the hearing, Chau's counsel conceded that there was no "real claim[] or evidence supporting [Chau's] age claim." We agree. Insofar as Chau argues that the trial court erred in granting summary judgment in the Center's favor on her claims of age discrimination, we overrule her sub-issue of her first issue.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013); Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). In doing so, we review the evidence "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). A motion for summary judgment may be brought on no-evidence or traditional grounds. See TEX. R. CIV. P. 166a(c), (i). The party moving for summary judgment bears the burden of proof. Neely, 418 S.W.3d at 59. Though the burden varies for traditional and no-evidence motions, all parties here brought forth summary judgment evidence; therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue exists. See id.; Buck v. Palmer, 381 S.W.3d 525, 527 n.2 (Tex. 2012). A fact issue exists if there is more than a scintilla of probative evidence. Neely, 418 S.W.3d at 59. Evidence is more than a scintilla if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). Evidence is less than a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion that the fact exists." Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010). We will affirm a summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
Under the Texas Commission on Human Rights Act ("the TCHRA" or "the Act"), it is unlawful for an employer to discharge an employee because of the employee's race, color, disability, religion, sex, national origin, or age of the employee. See TEX. LAB. CODE ANN. § 21.051(1) (West, Westlaw through 2015 R.S.). Section 21.051 is modeled on and "'is substantively identical to its federal equivalent in Title VII' but adds age and disability to the protected categories." Tex. Parks & Wildlife Dep't v. Dearing, 240 S.W.3d 330, 349 n.7 (Tex. App.—Austin 2007, pet. denied) (quoting Quantum Chem. Co. v. Toennies, 47 S.W.3d 473, 475 (Tex. 2001)). When analyzing a claim brought under the TCHRA, we therefore look to state cases as well as to the analogous federal statutes and the cases interpreting those statutes. Toennies, 47 S.W.3d at 476. To establish a violation of the TCHRA, a plaintiff must show that he or she was (1) a member of the class protected by the Act, (2) qualified for his or her employment position, (3) terminated by the employer, and (4) treated less favorably than similarly situated members of the opposing class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam).
An employee may establish discrimination by either direct evidence of what the employer said or did or by circumstantial evidence of discrimination. Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.); Garcia, 372 S.W.3d at 634. Under the first method—which Chau has chosen here—a plaintiff proves 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." Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 478 (Tex. App.—El Paso 2013, pet. denied) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). "In the employment discrimination context, this includes 'any statement or document which shows on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for [an] adverse employment action.'" Acker v. Deboer, Inc., 429 F. Supp. 2d 828, 837 (N.D. Tex. 2006) (citing Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003)).
If an employee presents credible direct evidence that discriminatory animus at least in part motivated, or was a substantial factor in the adverse employment action, then it becomes the employer's burden to prove by a preponderance of the evidence that the same decision would have been made regardless of the discriminatory animus.Acker, 429 F. Supp. 2d at 837-38 (citing Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005)); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2005); Jespersen, 390 S.W.3d at 653.
[S]tray remarks are insufficient to establish discrimination and statements made remotely in time by someone not directly connected with termination decisions do not raise a fact issue about the reason for termination. Statements and remarks may serve as evidence of discrimination only if they are (1) related to the employee's protected class, (2) close in time to the employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue. In determining whether the individual making the remark had authority over the employment decision, consideration is not limited to statements by the person who officially made the decision. Discriminatory animus by a person other than the decision-maker may be imputed to an employer if evidence indicates that the person in question possessed leverage or exerted influence over the decision-maker.AutoZone, 272 S.W.3d at 592-93 (internal citations omitted).
In the absence of direct evidence of discrimination, an employee must make out a prima facie case of discrimination under the McDonnell-Douglas burden-shifting analysis. Jespersen, 390 S.W.3d at 654 (citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). "Under this framework, the plaintiff is entitled to a presumption of discrimination if [he] meets the 'minimal' initial burden of establishing a prima facie case of discrimination." Mission Consol. Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). To establish a prima facie case of discrimination, the employee must show he or she (1) is a member of a protected class; (2) was qualified for his or her position; (3) suffered an adverse employment action; and (4) was replaced by someone outside of his or her protected class or others similarly situated were treated more favorably (disparate treatment cases). AutoZone, 272 S.W.3d at 592; Jespersen, 390 S.W.3d at 654. Once the employee makes this showing, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Jespersen, 390 S.W.3d at 654. If the employer meets this burden, the employee must raise a genuine issue of material fact that the stated reason was a pretext for discrimination. Id.
The elements of a prima facie case of hostile work environment are: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on the protected characteristic, e.g., national origin; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 n.14 (Tex. App.—Texarkana 2008, pet. denied) (citing Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001)). While termination may serve as evidence of the fourth element, it is not proof of "unwelcome harassment" under the second element. Id. A hostile-work-environment claim entails ongoing harassment, based on the plaintiff's protected characteristic, so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment. Id. at 324 (citing Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986)).
To establish a prima facie claim of retaliation, a plaintiff must establish that: (1) he participated in protected activity; (2) his employer took an adverse employment action against him; and (3) a causal connection existed between his protected activity and the adverse employment action. Brewer v. Coll. of the Mainland, 441 S.W.3d 723, 729 (Tex. App.—Houston [1st Dist. 2014, no pet.); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)); see TEX. LAB. CODE ANN. § 21.055 (West, Westlaw through 2015 R.S.); see also Tex. Health & Human Servs. Comm'n v. Baldonado, No. 13-14-00113-CV, 2015 WL 1957588, at *5 (Tex. App.—Corpus Christi Apr. 30, 2015) (mem. op.). The causal link required by the third prong does not rise to the level of a "but for" standard at the prima facie stage. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); see Montalvo v. County of Refugio, No. 13-08-00003-CV, 2010 WL 1731651, at *2 (Tex. App.—Corpus Christi Apr. 29, 2010, no pet.) (mem.op.). To establish causation, the employee must first demonstrate the employer's knowledge of the protected activity. Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). Temporal proximity alone can, in some instances, establish the prima facie causation element. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). "[C]ases that accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Protected activities consist of (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. TEX. LAB. CODE ANN. § 21.055.
The Fifth Circuit has stated:
Assuming the plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the employer articulates a legitimate nondiscriminatory reason, then "any presumption of discrimination raised by the plaintiff's prima facie case vanishes."McCullough v. Houston Cty. Tex., 297 F. App'x 282, 288-89 (5th Cir. 2008) (internal citations omitted).
In the final stage of the McDonnell framework, the plaintiff bears the ultimate burden of demonstrating a genuine issue of material fact as to whether the employer's proffered reason is a pretext for a retaliatory purpose. The plaintiff must show that "the adverse employment action taken against the plaintiff would not have occurred 'but for' her protected conduct." This court has expressly rejected the notion that temporal proximity standing alone is sufficient to establish but-for causation.
III. DISCUSSION
A. National Origin Discrimination
By her first sub-issue, Chau contends the trial court erred in granting the Center's motion for summary judgment as to her claim of national origin discrimination. Chau argues that McCloskey's comments asking whether Chau was Filipino and stating that she hated Filipinos constitute direct evidence of the Center's discriminatory animus. The Center responds that: (1) McCloskey denied asking Chau if she was Filipino and denied expressing any dislike for Filipinos; (2) even if McCloskey made the comments, they do not provide sufficient evidence of discrimination because McCloskey was not a decision- maker with regard to Chau's termination. The Center argues that any comments by McCloskey were "stray remarks" made by a non-decision-maker.
Assuming that McCloskey made the remarks about Filipinos as Chau alleges, the remarks may serve as evidence of discrimination only if they are (1) related to Chau's protected class, (2) close in time to the employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue. See AutoZone, 272 S.W.3d at 593. McCloskey's discriminatory animus may be imputed to the Center if evidence indicates that McCloskey possessed leverage or exerted influence over Yzaguirre. See id. Even assuming that Yzaguirre's decision to terminate Chau was influenced by some of the incidents reported by McCloskey, Yzaguirre documented instances of Chau's seriously inadequate work performance that were completely unrelated to McCloskey. A November 12, 2010 email from Byrd documented an incident involving Chau pre-charting medication. Yzaguirre's affidavit characterized the November 2010 pre-charting incident—which occurred after Chau was no longer working with McCloskey—as "an egregious error of falsifying patient records." Chau presented no evidence establishing that McCloskey exerted influence over Yzaguirre's decision to terminate Chau. Thus, McCloskey's alleged remarks cannot serve as evidence of discrimination. See id.
Even assuming, without deciding, that Chau provided direct evidence of discrimination, the Center was required to prove by a preponderance of the evidence that it would have terminated Chau when it did regardless of any discriminatory animus. See Acker, 429 F.Supp.2d at 837-38. The Center's summary judgment evidence included the affidavit of Yzaguirre, which stated, in relevant part, that she was Chau's supervisor and:
4. Specifically, the following incidences occurred within the first 30 days of [Chau's] employment:
• She entered a patient room without regard to the "Contact Isolation" sign on the door[;]
• She ignored monitor alarms when a patient's rhythm changed to Afib w/RVR causing another nurse to intervene;
• She ignored a patient moaning in pain who was discovered by other nurses and staff to be obtunded and diaphoretic with low blood sugar requiring immediate response;
• She "pre-charted" a patient's chart with entries that did not match the actual assessment of the patient.
5. These incidences were documented in the Counseling and Problem Solving Record attached hereto as Exhibit A.
6. On or about October 21, 2010, Ms. Chau was verbally counseled on her performance. To address the situation, Ms. Chau was moved to the day shift so that she could work more closely with me and I could monitor her progress and orientation to the hospital. Despite the move to day shift, Ms. Chau's performance did not improve.
7. On November 11, 2010[,] Ms. Chau documented in a patient chart that a medication had been given 30 minutes before it was due. Upon questioning, Ms. Chau admitted that she had not given the medication yet. Charting of medication has to be done once the medication is actually given. This is an egregious error of falsifying patient records.
8. On November 21, 2010, a physician observed Ms. Chau remove an object from her nose with her bare hands while in a patient room. She flicked the object away and continued working without washing her hands.
The record reflects that three of the incidents for which Chau was counseled on October 21, 2010 (the second, third, and fourth incidents listed under "4" above) were all reported by McCloskey and occurred during the time McCloskey and Chau worked together. The first incident, however, involving Chau entering a patient's room without regard to the "Contact Isolation" sign, occurred on Chau's first shift before she had even met McCloskey. Yzaguirre's notes reflect that she called Chau out of the patient's room before Chau contacted anything. The records also include an email from Byrd to Yzaguirre, dated November 12, 2010, documenting a separate incident in which Chau pre-charted medication. The November 12 pre-charting incident occurred after Chau was moved to the day shift and was no longer working with McCloskey. Similarly, the November 21, 2010 incident involving the physician's observation of Chau picking her nose occurred while Chau was working on the day shift and did not involve McCloskey. Therefore, even if we disregard the three incidents prior to October 21, 2010 as tainted because of McCloskey's involvement, there are three remaining incidents—entering a patient's room without regard to the isolation sign, the November 11 pre-charting incident, and the November 21 nose-picking incident—that did not involve McCloskey at all and occurred either before she met McCloskey or after they no longer worked together.
Chau also appears to argue that she "was subjected to disparate treatment" because of her national origin. To establish a prima facie case of disparate treatment race discrimination, Chau must show that she was: (1) a member of a protected class; (2) qualified for her position; (3) subject to an adverse employment action; and (4) treated less favorably because of her membership in that protected class than were other similarly situated employees who were not members of the protected class. Okoye v. Univ. of Tex. Houston Health Sci. Ctr, 245 F.3d 507, 512-13 (5th Cir. 2001). To prove discrimination based on disparate treatment, the situations and conduct of the employees in question must be "nearly identical." AutoZone, 272 S.W.3d at 594. "Employees with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records are not considered to be 'nearly identical.'" Id. Chau alleges that a non-Asian co-worker, Lilly, "was treated much more favorably" than Chau. Chau identifies an incident in which Lilly asked Chau to assist in cleaning a patient, but Chau was unable to assist and asked Lilly to find someone else to provide assistance. Chau asserts that she was "written up" over the incident, but that no disciplinary action was taken against Lilly. The record reflects that Lilly was a nurse's aide and Chau was a registered nurse. Because they held different positions, with different responsibilities, Chau and Lilly were not in "nearly identical" situations. See id. Accordingly, Chau has not established a prima facie case of disparate treatment discrimination. See id.
Moreover, the Center's evidence established by a preponderance of the evidence that the Center would have made the same decision to terminate Chau when it did regardless of any discriminatory animus by McCloskey. See Acker, 429 F. Supp. 2d at 837-38; Jespersen, 390 S.W.3d at 653. We hold that the trial court did not err in granting summary judgment in the Center's favor on Chau's claim of national origin discrimination. We overrule appellant's first sub-issue of her first issue as to her claim of national origin discrimination.
B. Hostile Work Environment
By her second sub-issue, Chau contends that the trial court erred in granting summary judgment in the Center's favor on her claims that she was subjected to a hostile work environment. Chau contends that McCloskey's alleged statement that she hated Filipinos "created a hostile work environment" for Chau. Chau also identified three other incidents in which she alleges that McCloskey created a hostile work environment: (1) the incident involving Lilly, in which Chau alleges that McCloskey yelled at her and told her that Lilly did not clean the patient because Lilly did not understand Chau's English; (2) a second incident involving a patient who was moaning in pain, which prompted McCloskey to blame Chau and to document the incident; and (3) a third occasion in which McCloskey reported that Chau was incompetent in taking care of a patient with a fast heart rate.
Chau argues that McCloskey's alleged comments about Filipinos "meet the severe standard for a hostile or abusive wo[r]k environment and a reasonable person would find the environment hostile." McCloskey's alleged comments are the same evidence on which Chau based her claim of national origin discrimination. See Lester v. Natsios, 290 F. Supp.2d 11, 32-33 (D.D.C. 2003) ("Discrete acts constituting discrimination or retaliation claims, therefore, are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult.").
Here, aside from McCloskey's alleged comments about Filipinos, none of the incidents identified by Chau, except arguably the "Lilly" incident, involve harassment based on her protected characteristic, i.e., being of Asian national origin. Chau alleges that McCloskey told her that Lilly did not understand her English. However, the record contains McCloskey's detailed description of the incident to Yzaguirre; McCloskey made no mention of Chau's English. The other two incidents—both of which are also documented in an email from McCloskey to Yzaguirre—involve incidents in which McCloskey reported conduct by Chau which she found to be unsatisfactory. According to the summary judgment evidence, neither incident was based in any way on Chau's national origin.
"We determine whether a hostile work environment exists using a totality-of-the-circumstances test that focuses on 'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating . . . and whether it unreasonably interferes with an employee's work performance.'" Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). We find that Chau has not introduced evidence sufficient for a reasonable jury to find that a hostile work environment existed and that the trial court did not err in granting summary judgment in the Center's favor as to this claim. See id. We overrule Chau's second sub-issue of her first issue as to her claim of a hostile work environment.
C. Retaliation
By her second issue, Chau contends the trial court erred in granting summary judgment in the Center's favor on her claim of retaliation. In its motion for summary judgment, the Center argued that Chau's retaliation claim fails because: (1) she did not engage in a protected activity by complaining to Yzaguirre about McCloskey; and (2) even assuming that Chau's complaints about McCloskey were protected activity, there is no causal connection between her complaints and her continued lapses in her work performance, which led to her termination. See Brewer, 441 S.W.3d at 429. In other words, according to the Center, Chau cannot show that, but for her complaints about McCloskey, she would not have been terminated when she was. See id.
Indulging every reasonable inference and resolving any doubt in Chau's favor, see City of Keller, 168 S.W.3d at 824, we conclude that Chau's reporting of McCloskey's alleged comments about Filipinos to Yzaguirre was protected activity.See City of Waco v. Lopez, 259 S.W3d 147, 152 (Tex. 2008) ("[A]ctionable retaliation exists when an employer makes an adverse employment decision against an employee who voices opposition to conduct made unlawful under the [T]CHRA, regardless of whether the employee has already filed a formal complaint with the Commission"). Assuming that Chau established a prima facie case of retaliation, the burden shifted to the Center to articulate a legitimate non-discriminatory reason for terminating Chau. See McCullough, 297 F. App'x at 288.
We note that in her affidavit, Yzaguirre acknowledged that Chau complained about McCloskey. However, the affidavit does not state specifically that Chau reported that McCloskey made comments about Filipinos. Yzaguirre's affidavit states, in pertinent part:
Ms. Chau was not retaliated against for complaining about her preceptor. She only complained about not being able to work with Ms. McCloskey during the course of being counseled about her own performance issues. She never claimed that she was subjected to a hostile work environment.
The Center's evidence established that Chau was transferred to the day shift on October 21, 2010 and no longer worked with McCloskey. Following the transfer, two other incidents occurred: the November 11, 2010 pre-charting incident reported by Byrd and the November 21, 2010 "nose-picking" incident reported by a doctor to Yzaguirre. We conclude that the Center met its burden to articulate legitimate non-discriminatory reasons for terminating Chau. See id. Thus, the burden shifted back to Chau to demonstrate a genuine issue of material fact as to whether the Center's proffered reasons were a pretext for a retaliatory purpose. See id.
Chau points to the following as evidence that the Center's proffered reasons for her termination were pretextual: (1) the allegations of poor performance on the October 20, 2010 counseling form were related to or reported by McCloskey; (2) the October 20, 2010 counseling form is unsigned by Chau and is marked "Final Written Warning," not "verbal warning"; Chau contends that she did not receive the document and that it is dated the day before her conference with Yzaguirre, which occurred on October 21, 2010; and (3) she testified in her deposition testimony that she was not at work on Sunday, November 21, 2010, the date that is identified on the November 23, 2010 termination form as the date Chau was observed by a doctor picking her nose.
We are unpersuaded that any of Chau's evidence raises an issue of material fact as to whether the Center's reasons for her termination were pretextual. First, as noted, although McCloskey was involved in the instances of poor performance reported prior to October 21, 2010, she was not involved in the two incidents of poor performance that occurred after that date. Second, we do not find it suspicious that the unsigned October 20, 2010 counseling form may have been created the day before Chau and Yzaguirre met to verbally discuss Chau's performance issues. Third, although the final termination form and Yzaguirre's affidavit both describe the nose-picking incident as occurring on Sunday, November 21, 2010—the day Chau claims she did not work—the email by Yzaguirre documenting the incident states that the doctor reported to Yzaguirre on Monday, November 22, 2010 that he observed Chau engage in the nose-picking incident on Friday, November 19, 2010. There is no evidence that Chau was not working on Friday, November 19, 2010.
Chau argues that she "can show a causal connection between her protected activity and her termination through temporal proximity." Chau notes that she complained about McCloskey's comments to Yzaguirre on October 21, 2010, and was terminated by Yzaguirre one month later. However, temporal proximity standing alone is insufficient to establish but-for causation. McCullough, 297 F. App'x at 289. We conclude that Chau's evidence failed to rebut the Center's proffered legitimate non-discriminatory reasons for her termination. None of Chau's evidence raised a fact issue demonstrating that but for her complaints about McCloskey, she would not have been terminated when she was. See id. The trial court did not err in granting summary judgment in favor of the Center as to Chau's retaliation claim. We overrule her second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
Dori C. Garza
Justice Delivered and filed the 17th day of March, 2016.