Summary
In Galvan, the Texas Court of Appeals found that Galvan failed to explain how simply "taking leave under the FMLA is opposing a discriminatory practice, making or failing a charge or complaint, or participating in an investigation, proceeding or hearing, and we have found no authority to support his argument."
Summary of this case from Campos v. Steves & Sons, Inc.Opinion
NUMBERS 13-15-00350-CV
03-31-2016
ISIDRO GALVAN, Appellant, v. SPIRIT TRUCK LINES INC., Appellee.
On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Isidro Galvan ("Galvan") challenges a no-evidence summary judgment in favor of appellee Spirit Truck Lines ("Spirit"). See TEX. R. CIV. P. 166a(i). We affirm.
I. BACKGROUND
Spirit, a shipping company, employed Galvan as a truck driver from 1994 until his termination on July 22, 2013. Spirit explained in a letter to Galvan that its decision to terminate his employment was "based on a Bona Fide Occupation Qualification as a truck driver," but did not elaborate further. Galvan was seventy-five years of age at the time of his termination. July 22, 2013 was also Galvan's first day back at work after undergoing surgery. Galvan had taken thirty days of leave under the Family and Medical Leave Act (FMLA) with Spirit's approval. See 29 U.S.C. § 2612(a)(1) (West, Westlaw through P.L. 114-115).
Galvan sued, alleging that Spirit terminated him because of his age in violation of the Texas Commission on Human Rights Act ("TCHRA"). See TEX. LAB. CODE ANN. § 21.051 (West, Westlaw through 2015 R.S.). Galvan further alleged that he was terminated for taking leave under the FMLA. Spirit responded that its reason for firing Galvan was that his driving ability had deteriorated since 2011. According to Spirit, Galvan had five instances of unsafe driving recorded in his file beginning in 2011.
Spirit later filed a no-evidence motion for summary judgment on both of Galvan's claims. See TEX. R. CIV. P. 166a(i). After considering the motion and Galvan's response, the trial court granted Spirit's no-evidence motion in full. Galvan timely appealed.
II. DISCUSSION
Galvan asserts in four issues that granting summary judgment was improper because: (1) he established a prima facie case of age discrimination under the TCHRA; (2) he demonstrated that Spirit's asserted reason for terminating his employment was a pretext; (3) Spirit admitted that terminating him was part of a "larger discriminatory scheme" by Spirit to fire older workers; and (4) his termination was retaliation for taking FMLA leave.
The "issues presented" section of Galvan's brief listed five issues, but there are only four in the argument section. The first issue in the argument section of Galvan's brief appears to include both the first and second issues listed in the "issues presented" section.
A. Summary Judgment Standard of Review
We review a decision to grant summary judgment de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). A no-evidence motion for summary judgment is essentially a pretrial motion for a directed verdict; it requires the nonmoving party to present evidence raising a genuine issue of material fact on each element of the claims challenged in the motion. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). In reviewing a no-evidence summary judgment, we "review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Gish, 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
A genuine issue of material fact exists if the record contains more than a scintilla of evidence supporting the issue. 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 "does no more than create a mere surmise or suspicion" of a fact. Id.
B. Age Discrimination Claim
Galvan argues in his first issue that summary judgment was improper because he established a prima facie case of age discrimination under the TCHRA.
1. Applicable Law
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." TEX. LAB. CODE ANN. § 21.051. One of the Texas Legislature's purposes in enacting the TCHRA was to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Id. § 21.001(1) (West, Westlaw through 2015 R.S.). Thus, we look to analogous federal statutes and cases interpreting them to guide our reading of the TCHRA. Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012).
In cases where there is no direct proof of discrimination, Texas courts employ the McDonnell Douglas burden-shifting mechanism created by the United States Supreme Court for Title VII cases. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). Under this framework, the plaintiff who meets the initial burden of establishing a prima facie case is entitled to a presumption of discrimination. Id. The precise elements of a prima facie case vary depending on the circumstances of the case, but the plaintiff's burden at this stage "is not onerous." Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the plaintiff successfully makes a prima facie case, the burden shifts to the defendant to articulate a nondiscriminatory reason for its challenged actions. Id. The prima facie case will be sufficient to support a verdict for the plaintiff if the defendant does not articulate a legitimate reason. Id. However, if the defendant does articulate a legitimate reason for its actions, the burden returns to the plaintiff to demonstrate that the defendant's legitimate reason was a pretext for discrimination. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001).
To establish a prima facie case of age discrimination under the TCHRA the plaintiff must show that he was: (1) a member of the protected class; (2) qualified for the position; (3) terminated by the employer; and (4) either replaced by a younger worker or otherwise treated less favorably on account of his age. Rosenberg v. KIPP, Inc., 458 S.W.3d 171, 175 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); Hall v. RDSL Enterprises LLC, 426 S.W.3d 294, 301 (Tex. App.—Fort Worth 2014, pet. denied). The protected class for age discrimination suits under the TCHRA consists of workers forty years of age or older. TEX. LAB. CODE ANN. § 21.101 (West, Westlaw through 2015 R.S.).
2. Analysis
Both parties agree that Galvan meets the first and third elements of a prima facie case because he was over the age of forty and terminated from his position. The parties dispute whether Galvan met the second and fourth elements.
Regarding the fourth element, Galvan had the burden to produce a scintilla of evidence that Spirit treated similarly-situated younger workers differently.See Garcia, 372 S.W.3d at 640-41 (observing that the fourth element of a prima facie case when there has been no replacement requires "evidence of favorable treatment toward those outside the protected class"); AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam). Spirit argues that Galvan produced no evidence that he was treated differently from similarly situated workers outside the protected class.
Galvan did not allege that he was replaced by a worker outside of the protected class.
We agree with Spirit. For purposes of the TCHRA, employees are similarly situated "if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct." Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). To prove discrimination based on disparate discipline, the misconduct of the similarly-situated employees "must be of comparable seriousness" to the terminated employee. Id. (footnotes omitted). However, "precise equivalence in culpability between employees is not the ultimate question." Id. at 917-18 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11 (1976)). Here, Galvan produced evidence that Spirit disciplined a thirty-eight year-old employee for safety violations. But even if we assume that this employee was similarly situated to Galvan in all respects, Spirit terminated both workers. Galvan produced no evidence of younger employees with similarly poor safety records who were retained by Spirit. Instead, Galvan's pleadings in the trial court and his brief on appeal focus almost exclusively on the employees inside the protected class that Spirit terminated around the same time as Galvan. Based on the foregoing, we cannot conclude that Galvan produced a scintilla of evidence supporting the fourth element of a prima facie case. See Garcia, 372 S.W.3d at 640-41; see also Rosenberg, 458 S.W.3d at 177 (holding that a teacher did not establish a prima facie case of age discrimination because she presented no evidence that the younger teachers who were rehired were similarly situated to her). Having concluded that Galvan did not produce a scintilla of evidence on the fourth element of a prima facie case, we need not address the parties' dispute over the second element. See Navy v. Coll. of the Mainland, 407 S.W.3d 893, 900 n.5 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
We overrule Galvan's first issue. It is unnecessary for us to address Galvan's second issue because his failure to make a prima facie case means that the burden to refute never shifted to Spirit. See Garcia, 372 S.W.3d at 634; see also TEX. R. APP. P. 47.1.
C. Larger Discriminatory Scheme
In his third issue, Galvan asserts that summary judgment was improper because the evidence showed that his termination was part of a "larger discriminatory scheme" to terminate workers within the protected class. The Texas Rules of Appellate Procedure require Galvan to include citations to relevant legal authorities in his brief. See TEX. R. APP. P. 38.1(i); Magana v. Citibank, N.A., 454 S.W.3d 667, 680 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Appellant has not cited to any legal authority in support of his issue. We overrule Galvan's third issue as inadequately briefed. See Magana, 454 S.W.3d at 680-81.
D. Retaliation
Galvan asserts in his fourth issue that Spirit violated the TCHRA by terminating him in retaliation for taking FMLA leave. Spirit responds that the TCHRA does not protect against retaliation for taking FMLA leave and, alternatively, there is no evidence that Galvan was fired for taking leave under the FMLA.
We agree with Spirit that the TCHRA's retaliation provision does not protect a worker against retaliation for taking FMLA leave. See TEX. LAB. CODE ANN. § 21.055 (West, Westlaw through 2015 R.S.) (prohibiting retaliation by an employer for engaging in certain protected activities). To make a prima facie case of retaliation under the TCHRA, the plaintiff must show that: (1) he engaged in a protected activity; (2) an adverse employment action occurred; and (3) there is a causal link between the 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., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). 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 an investigation, proceeding, or hearing under the TCHRA. TEX. LAB. CODE ANN. § 21.055; see Dias, 214 S.W.3d at 676. Galvan argues that "[i]t cannot be disputed that" he engaged in a protected activity by taking leave under the FMLA. However, when interpreting the TCHRA, we must look to its "plain terms" and applicable Texas case law. See Chatha, 381 S.W.3d at 507. Galvan does not explain how taking leave under the FMLA is opposing a discriminatory practice, making or failing a charge or complaint, or participating in an investigation, proceeding or hearing, and we have found no authority to support his argument. We overrule Galvan's fourth issue.
The FMLA does provide a right of action against an employer for retaliating against an employee who exercised or attempted to exercise a right secured by the FMLA. See 29 U.S.C. § 2615(a)(1) (West, Westlaw through P.L. 114-115). However, Galvan did not rely on the FMLA in his submissions to the trial court. In his live petition, Galvan alleged that the "TCHRA prohibits discharging or disciplining an employee because he made, in good faith, a Family Medical Leave Act request." --------
III. CONCLUSION
We affirm the judgment of the trial court.
Nora L. Longoria
Justice Delivered and filed the 31st day of March, 2016.