Opinion
NO. 01-09-00947-CV
01-26-2012
JIUHONG YUAN, M.D., Appellant v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2008-53937
MEMORANDUM OPINION
Dr. Jiuhong Yuan appeals the summary judgment of his suit against the University of Texas Health Science Center at Houston (UT Health) in which he alleged retaliation for having filed a report of sexual harassment. Yuan contends the summary judgment was error because he had established a prima facie case and there exist questions of material fact precluding summary judgment. We affirm.
Background
Dr. Yuan is a research associate in UT Health's Department of Surgery, Division of Urology. In September 2005, the Division of Urology and the Department of Biochemistry and Molecular Biology began a collaborative research project based in the lab of the project's principal investigator, Dr. Yang Xia, an associate professor in the Department of Biochemistry and Molecular Biology. Dr. Yuan collected and analyzed data for the project, reporting to both Dr. Xia and Dr. Run Wang, the Director of the Division of Urology.
According to Dr. Yuan, the collaboration between the Division of Urology and the Department of Biochemistry and Molecular Biology proceeded smoothly until his discovery in March 2006 that Drs. Xia and Rodney Kellems, Chair of the Department of Biochemistry and Molecular Biology, were having an affair. No longer comfortable reporting to Dr. Xia in her office, Dr. Yuan began communicating via email and through his supervisor, Dr. Wang. According to Dr. Yuan, both Drs. Xia and Kellems felt that Dr. Yuan was being disrespectful of Dr. Xia and complained to Dr. Wang about his behavior and demanded an apology. After Dr. Wang advised him to do so for the sake of the project, Dr. Yuan apologized.
The majority of the facts detailing Dr. Yuans' allegations against Drs. Xia and Kellems are taken from Dr. Yuan's internal report of sexual harassment, which he submitted on May 30, 2007.
Dr. Yuan contends that in May 2006 Dr. Xia used data from their collaborative research to submit a NIH grant application that failed to list either Dr. Wang or Dr. Yuan as co-investigators. He also alleges that Dr. Xia presented the material at an international meeting without notifying them or crediting them for their contribution. He further complains that his reputation in the scientific community was damaged when Dr. Kellems contacted the Asian Journal of Andrology and accused him of using the project's data in an article he sought to publish in the Journal.
The working relationship with Drs. Xia and Kellems was strained further in early September 2006, when Dr. Yuan ran into them at an out-of-town restaurant. The next working day, in a meeting with Dr. Kellems, the purpose of which, according to Dr. Yuan, was to gauge his reaction to their most recent encounter, Dr. Yuan informed Dr. Kellems that he felt that Dr. Xia owed him an apology for the demeaning way she treated him.
A little over a week later, Dr. Xia ended the collaboration between the two groups, due both to budget constraints and conflicts between her and Dr. Yuan. Shortly thereafter, Dr. Xia informed Dr. Wang that she wanted to publish a paper based upon their collaboration. She offered Dr. Wang the second to the last author position and Dr. Yuan the first author position, contingent upon his cooperation and production of all original research materials in his possession. Dr. Yuan contends that Dr. Kellems also pressured him to give Dr. Xia all of the project's original data. Dr. Yuan maintains that he and Dr. Wang decided to complete the project and consult the "medical school legal service" before joining Dr. Xia's proposed publication opportunity. Dr. Yuan kept the original research material.
On May 30, 2007, based upon this history dating from Spring 2006, Dr. Yuan filed a complaint with UT Health alleging sexual harassment and research misconduct on the part of Drs. Xia and Kellems. In July 2007, while Dr. Yuan's internal complaint was pending, Dr. Xia prepared and forwarded to Dr. Wang a manuscript for publication on the topic of the collaborative research project (adenosine signaling and priapism) and her offer to both Drs. Wang and Yuan of co-authorship listings. She also professed in an email her willingness to collaborate on a second manuscript in which Dr. Yuan would be listed as the first author. Dr. Wang forwarded the message to Dr. Yuan, asking his consideration of her suggestion of publishing two papers. Although he had yet to read the manuscript, Dr. Yuan believed that he was entitled to be listed as first author and Dr. Wang the co-corresponding author on the current manuscript: "[S]end me the manuscript and I'll show her where our contribution is and why the contribution deserves first author and co-corresponding author."
In an email to Drs. Yuan and Xia, Dr. Wang stated that he did not believe it was appropriate for him to be listed as a co-corresponding author for Dr. Xia's current manuscript because the manuscript did not involve the in-vivo data that he had been involved in generating and he declined her offer of co-authorship because of Dr. Xia and Dr. Yuan's dispute with regard to the order of authorship. Dr. Xia responded, stating that although she was disappointed that Dr. Yuan would not agree to co-author the manuscript, she was still happy to work with both Drs. Wang and Yuan to publish a second manuscript based upon the in-vivo data generated during their collaborative project the previous year and Dr. Yuan could be the first author of that manuscript.
On August 23, 2007, Dr. Yuan was informed that UT Health had concluded its investigation into his allegations of sexual harassment and research misconduct and because of conflicting witness accounts, no determination could be made whether Drs. Xia and Kellems violated the university's sexual harassment policy. Moreover, the report stated Dr. Yuan's research misconduct allegations were more appropriately characterized as a dispute regarding authorship and the roles and responsibilities of scientists and a trainee engaged in a collaborative research process. UT Health directed the parties to internal guidelines applicable to faculty research that expressly stated the university policy: "University administration will not be become involved in authorship disputes."
On November 1, 2007, Dr. Yuan filed a complaint with the Texas Workforce Commission accusing UT Health of retaliating against him for reporting sexual harassment.
In January 2008, Dr. Xia emailed Dr. Wang stating: ". . . you mentioned earlier that you may reconsider to be coauthor in the manuscript if the school's investigation is over and cleared. Now the school's investigation is over and cleared as you know, I just want to make sure whether you and [Dr. Yuan] still decline to be coauthors in the manuscript. Please let me know by e-mail."
Dr. Wang responded, thanking Dr. Xia for the offer but declining because he believed it not appropriate for him to be listed as co-author of the manuscript. He indicated that he would forward the email to Dr. Yuan and urge his serious consideration. Dr. Wang forwarded the message to both Drs. Yuan and Kellems. Dr. Yuan never responded.
Dr. Xia's paper was published by the Journal of Clinical Investigation (JCI) in March 2008. Dr. Yuan was not listed as an author. Angered by the omission of his name from the list of credits, Dr. Yuan contacted JCI complaining that he was the project's principal person and deserved identification as an author. JCI then contacted Dr. Peter Davis, UT Health's Executive Vice President for Research, requesting guidance with respect to the authorship dispute and advising him that JCI policy required all of the authors' written agreement to issue a correction.
UT Health's Davis, in turn, contacted Dr. Xia and the other ten authors about Dr. Yuan's complaint: "The Executive Editor of the Journal of Clinical Investigation has asked me to respond to an allegation made by Dr. Yuan that his name should have been included as an author in a paper recently submitted to and accepted for publication in JCI." Dr. Davis pointed out that JCI does not get involved in authorship disputes and refers them to the corresponding author's institution for a decision. He also noted, ". . . it is the policy of [UT Health] not to take an institutional position with respect to the authorship of papers that include our faculty" and attached a copy of the Office of Research's "Practical Guide to Research at the University of Texas Health Sciences Center at Houston" that recites the criteria to be used to determine authorship of research publications.
I am requesting that you and your colleagues who are authors on this paper review the [UT Health] guidelines, review Dr. Yuan's enumerated concerns and the information that is included in the JCI paper. I ask you then to notify me as to whether or not it is the unanimous decision of the authors that the authorship of this paper should be changed. If it is not the unanimous decision of the authors that a change should be made, I will notify the JCI that no change in authorship is warranted. If there is unanimous agreement that the authorship should be amended to include Dr. Yuan, I will ask you and the authors to notify JCI of your request for a correction to the authors of this paper to be made in a subsequent issueDavis replied to JCI: "After reviewing with the authors the issues raised in your letter of 03/18/08 I am confident that the selection of individuals to be included as authors of the paper by Dr. Xia and colleagues was handled appropriately. I see no need to consider changes to the authorship of the paper." A correction to the authorship list was never made.
of JCI.
The Civil Rights Division of the Texas Workforce Commission issued a Notice of Right to File a Civil Action dated July 10, 2008, and on September 5, 2008, Dr. Yuan sued UT Health for retaliation against him for having filed a discrimination complaint under section 21.055 of the Texas Labor Code. UT Health moved for summary judgment on the grounds that (1) Dr. Yuan suffered no actionable adverse employment action, and (2) even if he had, he did not meet his burden of showing that the articulated, legitimate, non-retaliatory reason for Davis' email to JCI was pretextual and that the real reason was retaliation. The trial court granted UT Health's Motion for Summary Judgment.
Discussion
A defendant moving for traditional summary judgment must either (1) conclusively negate at least one of the essential elements of each of the plaintiff's causes of action or (2) conclusively establish each essential element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam); City of Keller, 168 S.W.3d at 822-24. To determine if the nonmovant has raised a fact issue, we review the entire record in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller, 168 S.W.3d at 827. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). When, as here, the trial court's summary judgment does not state the basis for the court's decision, we must uphold the judgment if any of the theories advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
To establish a prima facie case of retaliation, Dr. Yuan must show that: (1) he engaged in a protected activity, (2) UT Health took an adverse employment action against him, and (3) it did so because of his participation in the protected activity. Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.). Dr. Yuan must establish that, absent his protected activity, the adverse employment action would not have occurred when it did. See id.; McMillon v. Texas Dep't of Ins., 963 S.W.2d 935, 940 (Tex. App.—Austin 1998, no pet.). Dr. Yuan need not establish that the protected activity was the sole cause of UT's employment actions. Herbert, 189 S.W.3d at 377. An adverse employment action is one that a reasonable employee would find to be "materially adverse," i.e., "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination" under federal law. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (internal quotations omitted).
The Texas Labor Code discrimination provisions are modeled after federal law, and Texas courts follow the federal statutes and cases in applying the Texas statute. See TEX. LAB. CODE ANN. § 21.001 (West 2006); AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) ("By adopting the Act, the Legislature 'intended to correlate state law with federal law in employment discrimination cases.'").
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Were Dr. Yuan to establish a prima facie case of retaliation, the burden shifts to UT Health to articulate a non-discriminatory reason for the adverse employment action. McCoy v. Texas Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.—Dallas 2006, no pet.). Once UT Health articulates a legitimate, non-discriminatory reason for an employment action, the burden returns to Dr. Yuan to show that the stated reasons were pretextual and that the real reason was retaliation. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 482 (Tex. 2001) (stating plaintiffs pursing claims under TCHR must "show that discrimination was a motivating factor in an adverse employment decision").
For purposes of this summary judgment, UT Health concedes that with respect to the first element of his retaliation claim—whether Dr. Yuan engaged in a protected activity—Dr. Yuan established a prima facie case. The parties disagree, however, as to whether Dr. Yuan has met his burden with respect to the second element of his claim—that he suffered an adverse employment action.
Dr. Yuan's contention is that when Dr. Davis weighed in on the authorship dispute and notified JCI that Dr. Yuan should not be listed as an author on the paper submitted by Dr. Xia, this was in violation of UT Health's stated policy, and was done in retaliation for Dr. Yuan's filing his Workforce Commission complaint. Dr. Davis's email to JCI, argues Dr. Yuan, effectively endorsed Dr. Xia's and her colleague's decision not to list Dr. Yuan as the first author of the paper. Dr. Yuan contends that support of Dr. Xia harms him and constitutes UT Health's materially adverse action taken against him.
The summary judgment record makes clear that Dr. Davis was not involved in the authorship decision. JCI policy required written agreement of every author for a revised authorship list. The summary judgment evidence conclusively establishes that Dr. Davis forwarded JCI's email to Dr. Xia and her colleagues and solicited their determination as to changes in authorship. See City of Keller, 168 S.W.3d at 816 (stating matter is conclusively established if reasonable people could not differ as to conclusion to be drawn from evidence). After Dr. Xia and her colleagues did not unanimously agree change was appropriate, Dr. Davis informed JCI that no change in authorship was warranted. Rather than competent summary judgment evidence to raise a question of material fact with respect to this issue, Dr. Yuan offers an alternative interpretation: one could reasonably infer that Dr. Davis' email suggests that he was siding with Dr. Xia and endorsing her decision to exclude him from the list of authors. The summary judgment evidence does not support such an inference. Although Dr. Davis stated that he was "confident that the selection of individuals to be included as authors of the paper by Dr. Xia and colleagues was handled appropriately" and saw "no need to consider changes to the authorship of the paper," examined in context, the evidence is clear that he neither endorsed nor sided with Dr. Xia, but simply notified JCI of the named authors' decision. See id. at 827 (requiring appellate courts to consider entire record). Dr. Davis was a messenger, conveying the authors' decision to the JCI. See id. at 816 (stating matter is conclusively established if reasonable people could not differ as to conclusion to be drawn from evidence).
After reviewing the entire record in the light most favorable to Dr. Yuan, the nonmovant, and indulging every reasonable inference in Dr. Yuan's favor, Dr. Yuan did not present evidence raising a fact issue as to whether Dr. Davis took an adverse employment action against him. Because Dr. Yuan cannot make a prima facie case of retaliation, we hold that the trial court did not error in granting UT Health's motion for summary judgment.
Conclusion
We affirm the trial court's judgment.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown.