Opinion
No. 01-05-00761-CV
Opinion issued March 29, 2007.
On Appeal from the 164th District Court, Harris County, Texas. Trial Court Cause No. 2004-22881.
Panel consists of Justices TAFT, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Lucille R. Kelley, appeals the trial court's order of summary judgment in favor of appellee, Humble Independent School District. Kelley sued the School District for age discrimination after she was fired from her job as a substitute teacher. See Tex. Lab. Code Ann. § 21.051 (Vernon 2006). The trial court issued an order that granted the School District's motion for summary judgment. In a single issue, Kelley contends that the trial court's order was error because under the applicable standard of proof, her summary judgment evidence creates a genuine issue of material fact that precludes summary judgment. The School District responds that Kelley failed (1) to establish a prima facie case of age discrimination, and (2) to establish that the School District's reasons for terminating her were false or a pretext for age discrimination. We conclude that Kelley presented a prima facie case of discrimination, but failed to show that the School District's proffered reason for firing her was a pretext for discrimination. We affirm.
Background
The School District hired Kelley as a substitute teacher in 1994. Kelley's personnel file contains occasional reports of deficient performance. Furthermore, Kelley's record in the School District's SubFinder System reflects a low rate of acceptance of substitute teaching assignments offered to her.
SubFinder is an automated telephone system by which the School District distributes substitute teaching assignments. SubFinder was active for the entire time Kelley was an employee of the School District. SubFinder is administered by a company that has provided substitute teacher employment services for approximately 20 years and currently services more than 50 school districts in Texas and more than 500 in the United States and Canada. The School District gives substitute teachers a detailed instruction book to assist them with SubFinder.
SubFinder works in one of two ways: either the system places a telephone call to an individual substitute teacher to inform that teacher of an assignment, or the substitute teacher calls into the system to review available assignments. The substitute teacher can accept or reject assignments in SubFinder.
SubFinder usually calls substitute teachers regarding assignments either from 5:30 a.m. to 11:45 a.m. or from 6:00 p.m. to 9:30 p.m. After the teacher answers, SubFinder describes the assignment and prompts the substitute teacher to respond. The substitute teacher may either press "1" to accept the assignment, or "2" to reject the assignment. Substitute teachers have the right to reject jobs, and no express School District policy states how many jobs a substitute may reject before being terminated. The School District evaluates its substitute teachers' availability on a case-by-case basis.
Substitute teachers may notify the School District of days of the week or specific times that they are unavailable to work or to be contacted. They are also asked to notify SubFinder of any assignments accepted directly from campus or administrators. SubFinder does not call substitute teachers on days they are listed as "unavailable." The School District requests that all substitute teachers keep their contact information, availability, and grade level preferences current. Substitute teachers can change their preferences by accessing SubFinder, by updating their annual substitute employee information sheet, or by calling the Human Resources Office at the School District.
Kelley located substitute teaching assignments both through SubFinder, and on her own by networking with teachers. Since 1999, Kelley filled out annual forms stating that she was willing to work at all district schools and that she would teach elementary and secondary school classes. Each annual form included a phone number that substitute teachers could call to change personal information such as name, phone number, and available days of the week.
In May 2003, the School District sent Kelley a form letter that informed her that her employment with the School District as a substitute teacher would be renewed for the 2003-2004 school year. On September 22, 2003, the School District received a letter from the Texas Workforce Commission informing the School District that Kelley had filed for unemployment benefits. In October, Dr. Mary Widmier, Humble ISD Assistant Superintendent of Human Resources, reviewed Kelley's SubFinder log in order to reply to this Workforce Commission notice. The School District had previously replied to several Workforce Commission requests as a response to Kelley filing for unemployment benefits. Customarily, when an employee filed for unemployment benefits, the School District would review that employee's job log to verify employment and determine whether work was available to that employee.
Widmier examined Kelley's SubFinder records from August 20 through October 15, 2003. The job log showed that the system had attempted to contact her 60 times for jobs, but she had accepted only nine. Kelley rejected jobs on September 11, 15, 18, and 30. School District records also indicate that Kelley called in to review several assignments, but chose not to accept them. Additionally, there were many times that SubFinder attempted to contact Kelley, but the phone was either not answered or the system encountered a busy signal.
There are discrepancies in the record as to whether Kelley accepted 9 or 10 jobs through SubFinder.
Widmier contacted Kelley by telephone after reviewing her acceptance data to discuss her pattern of refusing assignments and failure to respond to SubFinder. Widmier wanted to ascertain whether there were specific reasons for Kelley's behavior and to determine if she wanted to continue employment with the School District. At the time she telephoned Kelley, Widmier did not know Kelley's age. When Widmier explained the SubFinder data to her, Kelley became angry and refused to answer questions. Kelley asserted that the report was inaccurate and that she had been working, but did not detail what specific errors that she thought the report contained. Widmier then informed Kelley that her employment would be terminated the following week, at which point Kelley hung up.
On October 21, 2003, a letter was sent to Kelley with Widmier's signature informing Kelley that she had been fired and was removed from the School District's substitute teacher list. The letter stated, This letter is to inform you that I am removing your name from employment with the Humble ISD substitute pool effective today, October 21, 2003.
As we discussed, a recent review of our substitute calling records shows that you are not readily available to work on a consistent basis. For example, since August 20, our sub calling system has made 60 attempts to contact you for jobs. However, you have accepted only nine (9) of the calls placed by the calling system. You have also refused several offers for work, including assignments on September 15, 18, and 30. Our payroll records confirm that you did not work for the school district on any of these days. This pattern demonstrates that you are either not available for work when the sub calling system attempts to contact you or you have no further interest in working for the school district. Therefore, I have determined that it is in the best interest of the school district that we end your employment with us at this time.
Attached to this termination letter was Kelley's SubFinder Job Log Report from August to October 2003. Kelley was 69 years old at the time she was fired.
Kelley filed suit in May 2004. In her First Amended Petition, Kelley alleges that the School District wrongfully terminated her employment because of her age. The petition stated that Widmier "claimed that [Kelley] did not make herself available for teaching assignments. This statement is false." She contended that her years of employment with the School District showed that her "employment performance was exemplary." She further stated that "age was a motivating factor in [the School District's] decision to terminate her employment."
In May 2005, the School District moved for summary judgment. The School District based its motion on the arguments (1) that Kelley failed to establish a prima facie case of age discrimination and, (2) that Kelley failed to establish that the School District's reasons for terminating her were false or motivated by age discrimination. In her response to the School District's motion, Kelley alleged several factual issues relating to the SubFinder data, including that:
• she rejected only one assignment during the September-October period reviewed by Widmier;
• she worked 18 assignments during that period, as opposed to the nine alleged by the School District. Of these 18 assignments, she stated that 16 were full-day assignments and two were half-day assignments;
• a number of SubFinder records showing that the system's phone call was answered but no response was entered indicate that her answering machine took the call;
• School District records falsely stated she refused work on September 11. Kelley asserted that because it was a high school assignment, she would have been willing to accept the job had it been offered to her;
• on September 15, she refused an assignment because it was for an elementary school position; she asserted that health problems prevented her from working with younger students, despite her response to the SubFinder form that she could take assignments at all grade levels;
• on September 18, she did not receive a SubFinder call because she was at the unemployment office; and,
• on October 21, she accepted a substitute teaching assignment outside the SubFinder system, and did not reject work that day.
The trial court granted the School District's summary judgment motion without stating the grounds for its ruling.
Standard of Review
We review a trial court's grant of summary judgment de novo. Little v. Tex. Dept. of Criminal Justice, 177 S.W.3d 624, 629 (Tex.App. — Houston [1st Dist] 2005, no pet.). The summary judgment movant must prove that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Id.; see also Tex. R. Civ. P. 166a(c). We take as true evidence that favors to the non-movant, and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Little, 177 S.W.3d at 629. We may affirm only when the record shows that a movant has disproved at least one element of each of the plaintiff's claims or has established all elements of an affirmative defense to each claim. Id. (citing Am. Tobacco Co., v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). If the movant establishes a right to summary judgment, the burden then shifts to the non-movant to present evidence raising a fact issue. Id., 177 S.W.3d at 629 (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). When a summary judgment order does not specify the grounds on which it was granted, we affirm the judgment on any valid theory included in the motion. Id., 177 S.W.3d at 629-30 (citing Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995)).
Burden-Shifting Under McDonnell Douglas
Kelley claims discrimination under the Texas Commission on Human Rights Act, which prohibits an employer from discharging an employee because of age. Tex. Lab. Code Ann. § 21.051 ("An employer commits an unlawful employment practice if because of . . . age the employer . . . discharges an individual, or discriminates in any other manner against an individual in connection with . . . privileges of employment."); see generally §§ 21.001-.556. In cases brought under the Act, we follow analogous federal precedent. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). When, as here, an employment discrimination case has not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824-25 (1973); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S. Ct. 2097, 2106; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S. Ct. 2742, 2747 (1993); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Little, 177 S.W.3d at 630.
In reviewing the evidence under McDonnell Douglas, we draw all reasonable inferences in favor of the non-moving party. Reeves, 530 U.S. at 150, 120 S. Ct. at 2110. We may not make credibility determinations or weigh the evidence. Id., 120 S. Ct. at 2110. We review the record as a whole, but disregard all evidence in favor of the moving party. Id. at 151, 120 S. Ct. at 2110.
Under McDonnell Douglas, the plaintiff in an employment discrimination suit must first present evidence of a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum Chemical, 47 S.W.3d at 477. "The burden of establishing a prima facie case of [discrimination] is not onerous." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094 (1981); see also Quantum Chem., 47 S.W.3d at 477. To meet her burden to present a prima facie case, Kelley was required to present evidence that (1) she is a member of a protected class; (2) she suffered an adverse employment action, such as being fired; (3) she was qualified for the position from which she was discharged; and (4) she was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of her age. See Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).
Once a plaintiff presents a prima facie case of discrimination, the burden shifts to the defendant to articulate "a legitimate, nondiscriminatory reason for the adverse employment action." Little, 177 S.W.3d at 631 (citing Reeves, 530 U.S. at 142, 120 S. Ct. at 2106). The burden is one of production only, not of persuasion. Little, 177 S.W.3d at 631 (citing Reeves 530 U.S. at 142, 120 S. Ct. at 2106; Russo, 93 S.W.3d at 437-38).
After the defendant proffers its nondiscriminatory rationale for the adverse employment decision, the burden returns to the plaintiff to show "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves, 530 U.S. at 143, 120 S. Ct. at 2106 (quoting Burdine, 450 U.S. at 253, 101 S. Ct. at 1093). Kelley may attempt to prove intentional discrimination "by showing that [the School District's] proffered explanation is unworthy of credence." See id. (citing Burdine, 450 U.S. at 256, 101 S. Ct. at 1095). Under the Commission on Human Rights Act, she must "show that discrimination was a motivating factor in an adverse employment decision." Quantum Chem., 47 S.W.3d at 482. Kelley need only produce more than a scintilla of evidence in order to raise a fact issue for the trial court's summary judgment to be reversed. Winters v. Chubb Son, Inc., 132 S.W.3d 568, 576 (Tex.App.-Houston [14th Dist] 2004, no pet.).
Kelley's Prima Facie Case
The School District contends that Kelley has failed to meet its burden of producing evidence of a prima facie case of discrimination, the first step in the McDonnell Douglas analysis. Specifically, the School District asserts that Kelley has not shown that she was replaced by a younger employee, the fourth element of her prima facie case. See Russo, 93 S.W.3d at 435. In its appellate brief, the School District argues that no one can know which substitute teaching assignments would have gone to Kelley, and since it continued to employ potential substitutes who are older than Kelley, it is possible that the jobs she will not receive will all be filled by older employees.
The School District does not contest the other three elements of Kelley's prima facie case.
In its motion for summary judgment, the School District states that
Following the Plaintiff's termination on October 21, 2003, Humble ISD hired approximately 80 substitute teachers. Like the Plaintiff, all of these substitutes were added to Humble ISD's general substitute pool and were assigned the title, "substitute teacher." . . . It is impossible to determine which of the 80 substitutes Humble ISD hired after the Plaintiff's termination, if any, actually "replaced" the Plaintiff. Therefore, the Plaintiff cannot establish that she was replaced by someone younger or outside of her protected as category — the fourth element of her prima facie case.
Kelley contends on appeal, as she did in her response to the School District's motion for summary judgment, that the School District's own records show that she was replaced by a younger person. The summary judgment evidence shows that all the substitute teachers hired in the two months immediately after she was fired were younger than she was at the time she was fired. We conclude that Kelley produced sufficient evidence of the fourth element of a prima facie case of employment discrimination by producing evidence that she was replaced by a younger employee. Because the fourth element is the only element contested by the School District, Kelley has met her initial burden under McDonnell Douglas of establishing a prima facie case of discrimination.
The School District's Nondiscriminatory Reason
Because Kelley presents a prima facie case of discrimination, the School District was required to produce a legitimate, nondiscriminatory reason for firing her in order to meet its burden under the second step of the McDonnell Douglas analysis. See Burdine, 450 U.S. at 260, 101 S. Ct. at 1097. The School District proffered Kelley's lack of availability and poor rate of acceptance of substitute teaching assignments as evidenced by her record of responses to the SubFinder System.
Kelley contends that the School District has failed to prove, as a matter of law, that its proffered reason is the true reason for her termination. Specifically, she states that the School District's rationale is not presented "with `sufficient clarity' to afford the employee a realistic opportunity to show that the reason is pretextual." Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004). Kelley asserts that the School District's statement to the trial court that she did not "consistently make herself available" is too vague to satisfy the burden of production under step two of McDonnel Douglas. Her reliance on Ridge, however, is misplaced. Ridge "does not mean that an employer may not rely on subjective reasons for its personnel decisions." Id. The Ridge court held that the employer's stated reason for not hiring an employee was impermissibly vague because it did not provide some "articulable characteristic" which would enable the plaintiff to show pretext. Id. The rejected stated reason was that an employee was not "sufficiently suited" for the position. Id. Here, the School District provides an articulable characteristic: frequency of acceptance of substitute teaching assignments via SubFinder. This articulable characteristic was sufficient to enable Kelley to attempt to show pretext by contesting, as she has, the accuracy of the SubFinder records. We conclude that because the School District presented a sufficiently specific nondiscriminatory reason for firing Kelley, it has met its burden of production under McDonnell Douglas. See id.; see also Little, 177 S.W.3d at 631 (citing Reeves 530 U.S. at 142, 120 S. Ct. at 2106; Russo, 93 S.W.3d at 437-38).
Kelley's Proof that the School District's Reason was Pretext
Because the School District presented a legitimate, nondiscriminatory reason for firing Kelley, the burden therefore shifts back to Kelley to show that the School District's proffered reason is false, and a pretext for discrimination because of her age. See Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Quantum Chem., 47 S.W.3d at 477. She articulates a number of factual bases that she claims show pretext.
A. No fact issue regarding the School District's motivation
Kelley contends that the School District's assertion that she was consistently unavailable for substitute teaching assignments is demonstrated to be false by the summary judgment evidence. She states that the evidence shows that:
• during the final two months of the 2002-2003 school year, she worked 22 assignments and rejected 24 (a total of 46 assignments offered);
• she was kept on for the 2003-2004 school year, indicating that accepting 22 assignments out of 46 — as she did over the final two months of the 2002-2003 school year — is a sufficiently consistent acceptance rate;
• over the two months immediately prior to her firing in October 2003, she worked 18 assignments, and testified that she rejected only one, far better than her ratio of acceptance to rejection that she compiled over the final two months of the 2002-2003 school year;
• Texas Workforce Commission records created by the School District state that Kelley accepted "numerous" assignments in April and May 2003; and
• Kelley was never listed as "inactive" by the School District, where "inactive" substitutes were those who accepted no assignments over a 60-day period.
This evidence, Kelley asserts, "clearly casts doubt on and tends to show that [the School District's] `consistency' argument is pretextual."
"An at-will employer does not incur liability for carelessly forming its reasons for termination." Wal-Mart Stores, 121 S.W.3d at 740. We do not ask whether the SubFinder records were a pretext, "but what they were a pretext for." Id. (emphasis in original). In addition, "even an incorrect belief that an employee's performance is inadequate constitutes a legitimate, non-discriminatory reason." Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991). Finally, the Supreme Court in Reeves stated that Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. These include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. Reeves, 530 U.S. at 148-49, 120 S. Ct. at 2109.
Wal-Mart Stores, Inc. v. Canchola considers a challenge to the legal sufficiency of evidence to support a jury verdict, and not a summary judgment motion as we have here. 121 S.W.3d 735, 737 (Tex. 2003). However, the standard is the same for our reviews of evidence under both a summary judgment and a legal sufficiency challenge. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
None of the evidence to which Kelley points tends to show that the School District had a discriminatory motive for firing her. Kelley's claim that she rejected 24 assignments and worked 22 assignments over the final two months of the 2002-2003 school year supports the School District's claim that she was not available, because it shows that she was not available more often than she was available. This evidence is thus no proof of pretext by the School District. Further, the fact that the School District never listed her as "inactive" does not show that she should not have been terminated due to her inadequate availability. The School District presented records of four other "active" substitutes who were fired because of poor SubFinder records. Finally, her contention that she worked more assignments than SubFinder reported, and that she refused fewer assignments, tends only to show that the School District may have been careless, or may have incorrectly formed its belief that she was insufficiently available. See Wal-Mart Stores, 121 S.W.3d at 740; Little, 924 F.2d at 97. None of her summary judgment evidence casts doubt on the School District's contention that its motive for firing her was the SubFinder data showing that she too infrequently accepted SubFinder assignments.
B. Records of other substitutes' firings
Kelley asserts that a comparison of her record with the records of four other substitutes who were fired near the time she was fired shows disparate treatment. See, e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-10, 113 S. Ct. 1701, 1706 (1993). To establish that she suffered disparate treatment by comparing her treatment with other substitutes, Kelley must "demonstrate that . . . preferential treatment was given under `nearly identical' circumstances; more specifically, [she] must show that [s]he was discharged for conduct that other employees were not." Winters, 132 S.W.3d at 578. Kelley makes no allegations and presents no evidence of any younger substitute teachers who had patterns of unavailability similar to her own, but whom the School District did not fire; that is, she does not claim that she was fired for conduct for which other, younger employees were not fired.
Instead, Kelley points to the School District's summary judgment evidence of other substitute teachers who were fired based on SubFinder records, and claims that these other fired substitutes were in nearly identical circumstances but received preferential treatment. Specifically, she points to a substitute who received a warning before she was terminated, and to substitutes who were fired based on three months of poor availability as opposed to the two months of records on which the School District based Kelley's firing. These records are not evidence of disparate treatment. The substitute who received a warning was fired because she cancelled too many jobs that she had already accepted, not for a general pattern of unavailability. Kelley's circumstances are therefore not "nearly identical" to this substitute. See Ysleta Ind. Sch. Dist. v. Monarrez 177 S.W.3d 915, 918 (Tex. 2005) (fired employees who violated time card rules not similarly situated to employees who violated time card rules but kept their jobs, where "nature and degree" of violations is different). Further, the letters of termination in the appellate record do not indicate that other employees were allowed three months of poor performance before they were fired as opposed to Kelley's two months. Instead, the letters show that all of the firings, including Kelley's, were based on "a recent review" of SubFinder records. That two months of Kelley's SubFinder records were reviewed instead of three is not relevant to our inquiry on summary judgment, since absent a showing of discriminatory motive, "a disagreement between an employer and employee over assessment of job performance is not actionable." Winters, 132 S.W.3d at 578.
C. Statistical evidence
Kelley correctly states that a plaintiff may show pretext by pointing to statistics that illustrate a discriminatory employment policy. See McDonnell Douglas, 411 U.S. at 805, 93 S. Ct. at 1825 ("statistics as to petitioner's employment policy and practice may be helpful to a determination of whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination"). However, the statistics Kelley presents are insufficient as a matter of law to show a general pattern of discrimination. Kelley points out that in 2003 and 2004, the School District fired 2 substitute teachers born in the 1920s, 34 born in the 1930s, and 119 born in the 1940s. She does not, however, link this raw data in any way to a pattern of discrimination. These plain numbers, without more, are insufficient to raise a fact issue as to pretext. See, e.g., Int'l Brotherhood. of Teamsters v. U.S., 431 U.S. 324, 337-38, 97 S. Ct. 1843, 1855-56 (1977) (presenting and comparing percentages of employees assigned to particular jobs to show pattern of racial discrimination); E.E.O.C. v. Olson's Dairy Queens, Inc., 989 F.2d 165, 166-68 (5th Cir. 1993) (percentages and "standard statistical techniques" used to show racial discrimination).
We conclude that Kelley presented no evidence meeting her burden under the third McDonnell Douglas step to show that the School District's proffered reason for firing her was a pretext for discrimination. See Reeves, 530 U.S. at 134, 142-43, 120 S. Ct. at 2101-02, 2106. Kelley has also failed to produce more than a scintilla of evidence that discrimination was a motivating factor in the School District's decision. See Quantum Chem., 47 S.W.3d at 481. We hold that the trial court did not err by rendering summary judgment in favor of the School District. We overrule Kelley's sole point of error.
Conclusion
We affirm the judgment of the trial court.