Opinion
NO. 02-17-00134-CV
01-25-2018
JOHN S. VALLES APPELLANT v. MCLANE FOODSERVICE, INC. APPELLEE
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 153-283816-16 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant John S. Valles appeals from the trial court's summary judgment entered in favor of appellee McLane Foodservice, Inc. on Valles's claim for employment discrimination. Because we conclude that Valles failed to raise a genuine issue of material fact that McLane's stated legitimate, nondiscriminatory reason for the adverse employment decision was a pretext for unlawful discrimination, we affirm the trial court's order granting McLane judgment as a matter of law.
I. BACKGROUND
In 2000, Valles began working for McLane as a warehouse specialist at McLane's California distribution center. Five years later, Valles transferred to McLane's Arlington, Texas distribution center. Valles was promoted to team leader and, shortly thereafter, to warehouse-operations manager. In February 2013 when he was forty-two years old, Valles was promoted to inventory-control manager. Valles's performance appraisal for calendar year 2013 noted that his "Overall Performance Rating" was "At Standard." In May 2014, three months after he received his appraisal for 2013, Valles transferred back to warehouse-operations manager because he felt he was "hurting the team."
On February 12, 2015, Valles received his performance appraisal for the 2014 calendar year. Marco Guerrero, the general manager for the Arlington distribution center and who was forty-four, signed the appraisal. Guerrero, who began working at the Arlington center in March 2014, acted as Valles's direct supervisor because the position that was tasked with supervising Valles, the distribution-center manager, was vacant until Mike Constantine was hired in January 2015. Guerrero consulted with Kevin Newberry, who was forty-nine and McLane's director of operations, about Valles's appraisal. In the appraisal, Guerrero gave Valles an overall rating of "Needs Improvement," which was the same rating Guerrero gave Valles in five of the ten areas of "core leadership competencies": job knowledge, teamwork, ability to manage others, respect for others, and accountability. This rating represented a drop in performance from his at-standard appraisal for 2013. As a result, Constantine notified Valles on the same day Valles received his performance appraisal from Guerrero that he was being placed on a ninety-day performance-improvement plan (PIP) and that the PIP constituted a "Final Warning" under McLane's disciplinary procedures—Valles's employment would be terminated if he failed to meet the established goals of his PIP.
Guerrero was the highest ranking employee at the Arlington distribution center.
When he was hired, Constantine was thirty-five.
McLane's "Work Rules" provided that the violation of a work rule or a McLane policy could be "serious enough to result in immediate separation of employment" in "some circumstances."
McLane provided for PIPs in its policies and procedures, stating that they were attempts to bring an employee's performance up to standard within ninety days through progressive steps. The PIP gave Valles specific "objectives to be accomplished" during the PIP. As part of his PIP, Valles regularly met with Constantine and Newberry to create specific goals and to track his progress. Although Constantine notified Valles that he was being placed on a PIP and was involved in the meetings and goal setting, Constantine had no involvement in the decision to place Valles on the PIP.
During the first thirty days of the PIP, Valles failed to meet several assigned goals, one of which was to "identify and overcome prior disconnect" with a co-worker, Robert Padilla. During a meeting on April 16—Valles's sixth meeting during the PIP—Constantine told Valles that he "had failed to take even the first step towards achieving some of the goals he had set during the first week of his PIP." Valles had a "sour attitude" in response, blaming "senior management" for the PIP. Newberry told Valles that he "likely" would be fired based on his continued failure to achieve his week-one goals. Constantine averred that Valles "appeared to accept" Newberry's comment. That same day, the human resources manager, Kathy Cortner-Mercer, prepared a preseparation analysis that recommended terminating Valles's employment based on his "[f]ailure to demonstrate improvement in areas of opportunity as outlined in his [PIP]." Cortner-Mercer emailed the analysis to two members of senior management who were both over forty, Darrell Briscoe and Terry Cameron, and copied Guerrero and Newberry.
On April 23, 2015, Valles appeared for his seventh weekly PIP meeting with Constantine and Newberry. When Constantine questioned Valles about his daily warehouse plan, Valles became "upset":
[Valles] said [Constantine] shouldn't be questioning where [Valles] puts his teammates' hours because he isn't the one who isn't a team player. [Constantine] asked [Valles] if he could explain who he was
talking about and he said, "[Padilla], that piece of garbage. I can't work with garbage and that is what he is."Constantine told Valles his comment was inappropriate; indeed, McLane's "Work Rules" prohibited "insulting, demeaning, [or] derogatory" comments "directed toward[] a fellow teammate." When the meeting concluded, Valles saw Padilla walking toward Constantine's office. After Valles determined that Padilla wanted to ask Constantine questions about Valles's "plan," Valles "went off on a tirade" and "said that [Padilla] is a 'piece of garbage and that's how I am going to treat him going forward.' 'Why do I have to work with this guy? (Looking at [Padilla]) [Y]ou are nothing but a piece of garbage.'" Constantine told Valles to leave for the rest of the day. Padilla reported the incident to human resources. Valles later stated that Padilla's report was false.
The next day, Valles met with Newberry and Cortner-Mercer who both stated that Valles admitted to calling Padilla "garbage" but that he believed it was justified. Valles later averred that he had said that "this whole situation is garbage," not in reference to Padilla personally. Newberry and Cortner-Mercer "suspended [Valles] pending the pre-sep[aration] decision." On May 1, 2015, Guerrero made the decision to terminate Valles's employment, which was approved by Briscoe and Cameron. On Valles's May 1, 2015 change-of-status form, the stated reason for his involuntary termination was his job performance. Valles was forty-five when he was fired.
On June 1, 2015, Valles filed a charge of discrimination with the Texas Workforce Commission's Civil Rights Division, alleging that he had been fired on the basis of his age: "In February 2015 I was put on a [PIP] along with two other managers in their 40's. On 05/01/2015 I was terminated by my company and replaced by a younger 27 year old employee." See Tex. Lab. Code Ann. § 21.201 (West 2015). The commission was "unable to conclude that the information obtained establishes any violations of the statutes"; thus, on January 29, 2016, it dismissed Valles's claim and notified him that he had the right to file a civil action. See id. §§ 21.205, 21.208 (West 2015). On February 12, 2016, Valles filed suit against McLane, arguing that his termination was the result of age discrimination in violation of the Texas Commission on Human Rights Act (the TCHRA) and alleging that Joshua Gordon, who was twenty-seven, was hired to replace Valles and that McLane's stated reason for his termination was pretextual. See id. § 21.051 (West 2015).
McLane filed a no-evidence and traditional motion for summary judgment and argued that Valles failed to rebut McLane's legitimate, nondiscriminatory reason for his termination or failed to establish that McLane's stated reason was a pretext for discrimination. Valles responded and asserted that (1) McLane failed to establish a legitimate, nondiscriminatory reason for the termination because it "provided no evidence regarding the factual basis as to why Valles was put on a [PIP] by an employee unfamiliar with his performance"—Constantine; (2) he raised genuine issues of material fact that McLane's stated termination reason was a pretext for age discrimination; and (3) Guerrero acted as a "cat's paw" for Constantine, who had discriminatory animus and influenced the termination decision. On April 19, 2017, the trial court issued a letter ruling granting McLane's motion because Valles failed to meet his burden to show that the legitimate, nondiscriminatory reason for the employment decision proffered by McLane was a pretext for unlawful discrimination. The trial court signed an order granting McLane's motion but did not state the specific grounds. Valles timely filed a notice of appeal. See Tex. R. App. P. 26.1. On appeal, both Valles and McLane essentially raise the same summary-judgment arguments that they raised to the trial court.
Valles objected to portions of McLane's summary-judgment evidence as inadmissible hearsay, but the trial court did not rule on the objections. Valles does not complain of the trial court's failure to rule, but urges this court to "ignore[]" the challenged evidence in our review. Absent an explicit or implicit ruling on Valles's objections as to form, neither of which is apparent on this record, Valles cannot raise these defects on appeal. See S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011, no pet.) (citing Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 722-23 (Tex. App.—Dallas 1988, no writ)); Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex. App.—Waco 2008, no pet.). Thus, we will consider the challenged evidence in our review. See S & I Mgmt., 331 S.W.3d at 855; Willis, 282 S.W.3d at 543.
II. PROPRIETY OF SUMMARY JUDGMENT
A. STANDARDS OF REVIEW
1. Rule 166a
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider all the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). If, as here, the trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, we will affirm the summary judgment if any of the theories presented in the trial court and preserved for appellate review are meritorious. See Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). Although the trial court issued a letter ruling specifying on what grounds it was granting the motion, the resulting order did not include these grounds; thus, we will consider whether any one of McLane's summary-judgment theories are meritorious. See Mattox v. Cty. Comm'rs' Ct., 389 S.W.3d 464, 469 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); Shannon v. Tex. Gen. Indem. Co., 889 S.W.2d 662, 664 (Tex. App.—Houston [14th Dist.] 1994, no writ).
If McLane conclusively negated at least one essential element of Valles's claim for employment discrimination, it would be entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(b), (c); Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). To the extent McClain additionally sought a no-evidence summary judgment on Valles's claim, Valles was required to raise a genuine issue of material fact by producing more than a scintilla of probative evidence on the elements of the claim challenged by McLane as being supported by no evidence. See Tex. R. Civ. P. 166a(i) & cmt.; Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
In general, we first review a trial court's summary judgment under the no-evidence standard before turning to the traditional standard. See Hansen, 525 S.W.3d at 680. In this appeal, however, both Valles and McLane only address whether Valles raised a genuine issue of material fact regarding pretext under rule 166a(c). Because the parties have briefed only the application of rule 166a(c), we will not address whether Valles produced more than a scintilla of summary-judgment evidence on the elements of his claim for employment discrimination.
Indeed, it appears that McLane's motion was insufficient under 166a(i) because it failed to state "the elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). In its no-evidence motion, McLane merely relied on Valles's failure to "move his case forward during the eleven months it has been on file" and argued that Valles, therefore, "cannot present evidence to support his claim." This generalized argument does not comply with rule 166a(i) and was ineffective as a no-evidence motion. See id. cmt. ("The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case."); Border Demolition & Envtl., Inc. v. Pineda, No. 08-16-00094-CV, 2017 WL 5167550, at *10-11 (Tex. App.—El Paso Nov. 8, 2017, no pet.) (concluding motion did not specifically challenge causation element and, thus, was not effective as a motion under rule 166a(i)); Neurodiagnostic Tex, L.L.C. v. Pierce, 506 S.W.3d 153, 175 (Tex. App.—Tyler 2016, no pet.) (op. on reh'g) ("If a no evidence motion for summary judgment is not specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law . . . .").
2. Burden-Shifting Framework for Employment-Discrimination Claims
In employment-discrimination cases relying on circumstantial evidence of discrimination, we consider a burden-shifting framework to determine if McLane was entitled to judgment as a matter of law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); Kelly v. Costco Wholesale Corp., 632 F. App'x 779, 782 (5th Cir. 2015); McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 757 (Tex. App.—Houston [14th Dist.] 2017, no pet.). First, Valles must state a prima facie claim of employment discrimination based on his age under the TCHRA. See Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 638-42 (Tex. 2012). If Valles does so, a presumption of discrimination arises. See id. at 634.
Discrimination claims involving direct evidence of discriminatory animus are rare, and Valles did not argue to the trial court or to this court that he relies on direct evidence. See Scales v. Slater, 181 F.3d 703, 708-09 (5th Cir. 1999).
Because the TCHRA was enacted to coordinate Texas law with federal anti-discrimination law, we may look to analogous federal statutes and cases interpreting those statutes in our analysis. See Tex. Lab. Code Ann. § 21.001 (West 2015); San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136-37 (Tex. 2015); In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding); Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004).
The burden of production then shifts to McLane to prove as a matter of law a legitimate, nondiscriminatory reason for Valles's termination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Reed v. Neopost USA, Inc., 701 F.3d 434, 440 (5th Cir. 2012); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). If McLane does so, the presumption of discrimination dissolves, and the burdens of production and persuasion rest on Valles. See Reeves, 530 U.S. at 143; Baker v. Am. Airlines, Inc., 430 F.3d 750, 753-54 (5th Cir. 2005); cf. Little v. Tex. Dep't of Crim. Justice, 177 S.W.3d 624, 630 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (recognizing burden of persuasion "remains continuously with the plaintiff"). To carry those burdens, Valles must respond to McLane's traditional motion and either (1) raise a fact issue that McLane's stated reason was merely a pretext for discrimination or (2) challenge McLane's summary-judgment evidence as failing to prove as a matter of law a legitimate, nondiscriminatory reason for the employment action. See Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007); Willrich, 28 S.W.3d at 24; Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 728 (Tex. App.—Fort Worth 2006, no pet.); see also Reeves, 530 U.S. at 143. But an employer is entitled to summary judgment "if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant uncontroverted independent evidence that no discrimination occurred." Reeves, 530 U.S. at 148.
B. APPLICATION OF BURDEN-SHIFTING FRAMEWORK
1. Prima Facie Case
In the trial court, McLane admittedly did not argue that Valles failed to articulate a prima facie case of age discrimination, raising a presumption of discrimination. See generally Tex. Lab. Code Ann. § 21.125(a) (West 2015) (stating elements of employment-discrimination claim under the TCHRA). Therefore, we assume that Valles did so and proceed to determine whether McLane met its burden of production to establish a legitimate, nondiscriminatory reason for firing Valles. Cf. Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (assuming that plaintiff met burden to establish prima facie case of discrimination because burden is minimal).
2. Legitimate, Nondiscriminatory Reason
To counter the presumption of discrimination, McLane produced summary-judgment evidence that it fired Valles because of his poor 2014 appraisal, his failure to accomplish the goals set in the resulting PIP, and his violation of McLane's work rules through his verbal attack on Padilla. Valles asserts that McLane did not establish a legitimate, nondiscriminatory reason because Constantine, who placed Valles on the PIP, had been his supervisor for less than two months and, therefore, could not have based the PIP on his performance. But Valles's PIP was "a result of his 2014 Performance Appraisal," which had been conducted by Guerrero as Valles's direct supervisor for 2014 with input from Newberry. In any event, McLane's burden is one of production only, involves no credibility assessments, and must be taken as true. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). And taking McLane's stated reason as true, we conclude that McLane met its burden of production to establish as a matter of law that it fired Valles for a legitimate, nondiscriminatory reason—poor performance and a work-rule violation. See id. at 509-10; Kelly, 632 F. App'x at 782; EEOC v. LHC Grp., Inc., 773 F.3d 688, 701-02 (5th Cir. 2014); see, e.g., Stokes v. Kelly, No. 3:15-CV-1178-D, 2017 WL 3149304, at *5 (N.D. Tex. July 25, 2017), aff'd, 680 F. App'x 326 (5th Cir. 2017); Standley v. Rogers, 202 F. Supp. 3d 655, 671 (W.D. Tex. 2016); Willrich, 28 S.W.3d at 24; Herbert v. City of Forest Hill, 189 S.W.3d 369, 375 (Tex. App.—Fort Worth 2006, no pet.).
3. Pretext
The burden of production now shifts back to Valles, who continues to also carry the ultimate burden of persuasion, to raise a genuine issue of material fact as to whether McLane's stated reason was not true but was instead a pretext for discrimination—the employer's explanation was not the real reason for the adverse employment decision. See Longo v. Chao, 536 F. Supp. 2d 729, 740 (W.D. Tex. 2008); Willrich, 28 S.W.3d at 24; Navy v. Coll. of the Mainland, 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); see also Tex. Lab. Code Ann. § 21.125(a). "An employee's subjective belief that his employer has given a false reason for the employment decision is not competent summary judgment evidence." Chandler, 376 S.W.3d at 814. And "[s]imply disputing the underlying facts of an employer's decision is not sufficient to create an issue of pretext." Kaplan v. City of Sugar Land, 525 S.W.3d 297, 308 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
As we previously noted, Valles unsuccessfully argues relative to the second step that McLane's stated nondiscriminatory reason was supported by no evidence because Constantine had no factual basis upon which to place him under a PIP. To the extent Valles is arguing that McLane failed to produce evidence of a legitimate, nondiscriminatory reason to fire him and that he, thereby, carried his burdens of production and persuasion in the third step, we disagree. See St. Mary's Honor, 509 U.S. at 509-10. McLane's produced summary-judgment evidence shows that it fired Valles based on his subpar performance and violation of its work rules, which is a legitimate, nondiscriminatory reason as a matter of law. See LHC Grp., 773 F.3d at 701-02 (recognizing termination for unsatisfactory performance is legitimate, nondiscriminatory reason as a matter of law).
Valles argued to the trial court and again on appeal that McLane's proffered explanation was false and unworthy of credence. Valles points to several facts that he asserts show McLane's stated reason was false and, therefore, a pretext for discrimination:
Valles does not assert on appeal that McLane's reason, while true, was only one reason for its decision to terminate Valles's employment, and another motivating factor was Valles's age. Accordingly, we do not engage in a mixed-motive analysis—whether Valles raised a genuine issue of material fact that age was a motivating factor along with his poor performance. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005).
• Valles's deposition testimony in which he denied calling Padilla garbage and Constantine's admission in his deposition that he has not fired every employee who argued with a co-worker.
• Valles's assertion that Constantine inaccurately reported his performance in the PIP;
• Constantine signed Valles's 2014 appraisal less than two months after becoming Valles's supervisor and fired him two months later.
• Constantine's termination of "other older warehouse operations managers, including Lee Dixon, Rafael Smith[,] and Jesus Cruz, shortly after becoming their supervisor";
• Constantine's failure to meet with Valles every week as required by the PIP;
• McLane's failure "to follow its progressive discipline policy in terminating Valles."
• Valles's position was filled by someone more than ten years younger than Valles—Gordon.
Many of these arguments are nothing more than Valles's conclusory assertions that his performance was acceptable, he did not call Padilla garbage, and everyone at McLane lied about his performance and behavior. And Valles's assertion that Constantine put him on the PIP after being Valles's supervisor for an insufficient amount of time is belied by the record—Guerrero prepared Valles's 2014 appraisal with input from Newberry (both of whom were over forty), and Constantine stated he had no involvement with placing Valles on the PIP. The record reflects that Constantine did not sign Valles's performance appraisal for 2014. Valles's subjective beliefs and unsupported allegations discounting McLane's proffered reasons for its adverse employment action do not raise genuine issues of material fact regarding pretext. See Mire v. Tex. Plumbing Supply Co., 286 F. App'x 138, 143-44 (5th Cir. 2008); Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1164 (5th Cir. 1993); Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 615-16 (S.D. Tex. 2001); Elgaghil v. Tarrant Cty. Junior Coll., 45 S.W.3d 133, 141 (Tex. App.—Fort Worth 2000, pet. denied); Gold v. Exxon Corp., 960 S.W.2d 378, 383-84 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Valles also does not raise a genuine issue of material fact regarding pretext by relying on the alleged similar, discriminatory treatment of Dixon, Smith, and Cruz—whom he argued were "other older Warehouse Operation Managers" who were fired and "replaced . . . with younger employees" as was Valles. Smith and Cruz were placed on PIPs as a result of their 2014 appraisals. But Cruz was thirty-eight at the time of his PIP and termination and, thus, his alleged treatment is not relevant to Valles's argument that McLane routinely discriminated on the basis of age. See Tex. Lab. Code Ann. § 21.101 (West 2015). Similarly, Smith, who was older than Valles, successfully completed his PIP and was not fired at that time, which Valles admitted in his deposition. Regarding Dixon, Valles proffered no evidence of his age or whether he was put on a PIP. And there is no evidence as to the age of any of the employees later hired as warehouse operation managers, except for Gordon, Valles's replacement. This evidence does not raise a genuine issue of material fact. See, e.g., Herbert v. City of Forest Hill, 189 S.W.3d 369, 375-76 (Tex. App.—Fort Worth 2006, no pet.).
Indeed, the fact that Cruz, who was younger than forty, was also fired for insufficient progress on his PIP undermines Valles's argument that his termination was related to his age. Cf. Soliz v. Assocs. in Med., P.A., No. H-06-2785, 2007 WL 2363304, at *4 (S.D. Tex. Aug. 17, 2007) ("Nowhere in Soliz's response to summary judgment does she offer any competent evidence that the reason given by [her employer] is a pretext. In fact, the evidence shows that [Soliz's supervisor] was also fired for the same incident, lending validity to the reason proffered by [the employer].").
Valles stated at his deposition that he did not "know [Dixon's] age, but maybe 40." This is not competent summary-judgment proof. See Lockett v. HB Zachry Co., 285 S.W.3d 63, 71-72 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
Valles next asserts that Constantine and Newberry's failure to meet with him every week during the PIP and McLane's failure to follow its progressive-discipline policy before firing him raise genuine issues of material fact on pretext. Constantine and Newberry met with Valles seven times during his PIP, with the last meeting occurring on April 23, 2015, which was the date Valles became upset and used the word "garbage." Although a "scheduling conflict" caused the second meeting to occur four weeks after the first meeting, the missing time was not counted against Valles, resulting in him receiving four weeks to complete his week-one goals. The remainder of the meetings occurred at one-week intervals. In any event, the delay between the week-one meeting and the week-two meeting does not raise a genuine issue of material fact that a motivating factor in Valles's termination was his age. Further, Valles was told his PIP was a final warning and that the failure to meet his obligations under the PIP could result in his immediate termination. McLane's corrective-action policy provided that some acts could result in separation "on the first occurrence" with no requirement that each level of corrective action be done. Thus, the fact that Valles was not afforded every possible corrective action before he was fired, such as counseling, does not raise a genuine and material fact issue regarding pretext.
Finally, the fact that Valles was replaced by Gordon, who was more than ten years younger than Valles, is relevant only as to whether Valles established a prima facie case of discrimination; it is not relevant in determining pretext. See McKenna v. Baylor Coll. of Med., No. 01-15-00090-CV, 2016 WL 1714870, at *7 (Tex. App.—Houston [1st Dist.] Apr. 28, 2016, no pet.) (mem. op.) (citing Hennis v. Alter Trading Corp., 341 F. App'x 991, 994 n.1 (5th Cir.2009)).
Apparently recognizing that the record is clear that the decisionmaker regarding his termination—Guerrero—was over forty, Valles asserts that Guerrero was acting as a mere cat's paw of Constantine, who was younger than forty and allegedly had discriminatory animus. Cf. Agoh v. Hyatt Corp., 992 F. Supp. 2d 722, 744 (S.D. Tex. 2014) (citing Rhodes, 75 F.3d at 1002, and stating "[w]hen decision makers are in the same protected class as the plaintiff, there is a presumption that unlawful discrimination is not a factor in the discharge"). To invoke this theory, Valles was required to proffer summary-judgment evidence showing that Constantine exhibited discriminatory animus and exerted influence over Guerrero in the decision to fire Valles. See Zamora v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015); Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004). During his deposition, Valles admitted that he got along with Constantine and attributed any discriminatory animus to Guerrero. There is no evidence in the record that Guerrero merely signed off on Constantine's urgings to fire Valles. Guerrero, in consultation with Newberry, performed Valles's appraisal for 2014, leading to the PIP. Guerrero later made the decision to terminate Valles's employment based on his noncompliance with the PIP and after Valles called Padilla garbage. Guerrero's decision was approved by Briscoe and Cameron, both of whom were also over forty. Valles has failed to show the applicability of the cat's-paw theory and, thus, failed to raise a genuine issue of material fact regarding pretext. See Higgins v. Lufkin Indus., Inc., 633 F. App'x 229, 233 (5th Cir. 2015); Jones v. Children's Hosp., 58 F. Supp. 3d 656, 665 n.68 (E.D. La. 2014); Ihegword v. Harris Cty. Hosp. Dist., 929 F. Supp. 2d 635, 660 (S.D. Tex. 2013); McKay v. Dall. ISD, No. 3:06-CV-2325-O, 2009 WL 615832, at *8-9 (N.D. Tex. Mar. 10, 2009).
Valles asserts that his undisputed prima facie case of age discrimination combined with his production of genuine issues of material fact on pretext met his burdens in the third step of the burden-shifting framework. Valles points out that other than his burdens to state a prima facie case and raise a fact issue regarding the pretextual nature of McLane's stated nondiscriminatory reason, he is not required to show that age animus was a motivating factor in the decision to fire him. But Valles did not raise a genuine issue of material fact regarding pretext and, thus, did not carry his burdens of production and persuasion in the third step.
III. CONCLUSION
Employment-discrimination laws were not intended to be vehicles for judicial second-guessing of employment decisions or to transform courts into personnel managers. See Jaso v. Travis Cty. Juv. Bd., 6 S.W.3d 324, 332 (Tex. App.—Austin 1999, no pet.). In response to Valles's prima facie case of age discrimination, McLane proffered reasons for his termination that were legitimate and nondiscriminatory as a matter of law—substandard performance, failure to comply with the PIP, and a violation of a work rule. Valles did not carry his burdens of production and persuasion to raise a genuine issue of material fact that these reasons were a pretext for discriminatory animus. See, e.g., id. at 329-32. In short, there is no genuine issue of material fact that age was a motivating factor in the decision to fire Valles. Accordingly, we overrule Valles's issue and affirm the trial court's summary judgment in favor of McLane. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ. DELIVERED: January 25, 2018