Opinion
No. 01-06-00189-CV
Opinion issued July 6, 2007.
On Appeal from the 157th District Court Harris County, Texas, Trial Court Cause No. 2004-58985.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
MEMORANDUM OPINION
In this retaliatory discharge case, Rutherford C. Colvin, Jr. appeals a summary judgment granted in favor of his former employer, Metropolitan Transit Authority ("Metro"). Colvin argues that the summary judgment was erroneously granted because there is a genuine issue of fact regarding whether he (1) suffered an adverse employment action and (2) established a causal connection between his filing of a racial discrimination complaint against Metro and his termination. We affirm.
BACKGROUND
Colvin was hired by Metro as a bus cleaner in 1977, and he became a licensed journeyman mechanic in 1994. In June 2001, Colvin filed a charge against Metro with the Texas Commission on Human Rights ("TCHR"), complaining that he was not allowed to interview for the position of General Foreman because of his race.
Metro has a Zero Tolerance drug and alcohol testing policy for all employees in safety sensitive position, including journeyman mechanics, such as Colvin. Metro's Zero Tolerance Policy provides that safety sensitive employees are subject to random testing for drugs and alcohol, and that the consequence for testing positive for an alcohol concentration of .04 or greater is termination of employment. Metro contracted with Workplace Medical Services to select candidates for the drug testing. Metro would provide a list of all its safety sensitive employees' work numbers to Workplace Medical Services, which would then randomly select 10 employee identification numbers for drugs and alcohol testing. Another company, Houston Medical Testing Services, actually performed the alcohol testing of the candidates selected by Workplace Medical Services.
Colvin was selected for testing on October 22, 2002. His blood-alcohol content was .063 on his first test and .060 on his second test. After Colvin failed the alcohol testing, Metro fired him. Colvin then filed this suit, alleging that his firing in October 2002 was done in retaliation for the discrimination claim he filed against Metro in June 2001.
LAW AND ANALYSIS
Colvin brought his retaliation claim under section 21.055 of the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code Ann. § 21.055 (Vernon 1996). The purpose of the TCHRA is to provide for the execution of the polices of Title VII of the Civil Rights Act of 1964. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); Johnson v. City of Houston, 203 S.W.3d 7, 11 (Tex. App — Houston [14th Dist.] 2006, pet. denied).
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In retaliatory discharge claims brought under the TCHRA, we employ a burden-shifting analysis. See M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam); Graves v. Komet, 982 S.W.2d 551, 554 (Tex.App.-San Antonio 1998, no pet.). In a retaliation case, the plaintiff must first make a prima facia showing that: (1) he engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse action. Johnson, 203 S.W.2d at 11.
Once the plaintiff proves this prima facie case, the burden then shifts to the employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Graves, 982 S.W.2d at 554. After the employer articulates legitimate, nondiscriminatory reasons, the burden shifts back to the plaintiff to prove that the employer's articulated reasons were a mere pretext for unlawful discrimination. Id. at 555.
In this case, Metro moved for summary judgment on two grounds. First, Metro asserted that Colvin had not shown a prima facie case of retaliation because (1) there were no adverse employment actions — other than his firing — to support Colvin's retaliation claim and (2) Colvin was unable to show a "causal connection" between his filing of a discrimination claim and his discharge. Second, Metro asserted that because it had articulated a legitimate, non-discriminatory reason for Colvin's discharge, the burden shifted to Colvin to show that this reason was actually a pretext for his termination. Metro argued that Colvin, as a matter of law, was unable to show that Metro's reason for his termination was a pretext for retaliation.
When a movant asserts multiple grounds for summary judgment and the trial court does not specify the ground on which summary judgment was granted, the appellant must attack all grounds on appeal. See State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993); Haas v. George , 71 S.W.3d 904, 912 (Tex.App.-Texarkana 2002, no pet.); Lewis v. Adams , 979 S.W.2d 831, 833 (Tex.App.-Houston [14th Dist.] 1998, no pet.). If an appellant fails to attack each ground upon which the summary judgment may have been granted, we must uphold the summary judgment. See State Farm Fire Cas. Co. , 858 S.W.2d at 381; Haas , 71 S.W.3d at 912; Lewis , 979 S.W.2d at 833; see also Fields v. City of Texas City , 864 S.W.2d 66, 68 (Tex.App.-Houston [14th Dist.] 1993, writ denied) ("Because summary judgment may have been granted on a ground not challenged on appeal, i.e., consent, we may affirm the summary judgment on that basis alone."). Therefore, on appeal Colvin must attack all the grounds on which the trial court could have granted summary judgment. To succeed in this appeal, Colvin must show that each ground alleged in Metro's motion is insufficient to support the summary judgment. Bass Truck Line, Inc. v. First State Bank , 949 S.W.2d 17, 19 (Tex.App.-San Antonio, writ denied). In his brief, Colvin addresses only the issue of whether he made a prima facie show of retaliation. He does not address Metro's second ground for summary judgment — that there was no evidence to show that Metro's reasons for terminating Colvin were a pretext for retaliation.
CONCLUSION
Accordingly, we affirm the trial court's judgment.