Court of Appeals of Texas, San Antonio.
Donald D. DELANEY, Appellant,
v.
ALAMO WORKFORCE DEVELOPMENT COUNCIL, INC., and Nickie Valdez, Appellees.
No. 04-99-00448-CV.
|
March 22, 2000.
From the 57th Judicial District, Bexar County, Texas, Trial Court No. 97-CI-15384; Sol Casseb, Judge Presiding.
RICKHOFF, LÓPEZ, GREEN, Justices.
Opinion
LOPEZ.
*1 This appeal arises from an employment discrimination lawsuit. The trial court granted summary judgment in favor of the defendants. Because we find the trial court’s judgments are proper, we affirm.
Background
Previously, the appellant, Donald Delaney, worked for Alamo Workforce Development Council, Inc. (AWD), one of the appellees in this case. Appellee, Nickie Valdez, served as president of AWD. Valdez fired Delaney on June 7, 1997. Delaney, convinced that he was the victim of gender and race discrimination, sued AWD and Valdez. In his pleading, Delaney alleged three causes of action: (1) AWD and Nickie Valdez violated section 21.051 of the Texas Labor Code by discriminating against him on the basis of gender and national origin (Delaney is a white male), and by discriminating against black AWD employees; (2) AWD and Valdez violated section 451 .001 of the labor code by firing him for filing a worker’s compensation claim; and (3) AWD and Nickie Valdez violated 29 USC, section 2615, by retaliating against him because he pursued his rights under the Family Leave and Medical Act (FMLA).
In response, the appellees/defendants moved for summary judgment on each of Delaney’s claims. Delaney, in turn, moved for partial summary judgment on his allegation that the defendants violated the FMLA, and he filed objections to the defendants’ summary judgment evidence. The trial court granted the defendants’ motion for summary judgment, overruled Delaney’s objections to the defendants’ summary judgment evidence, and denied Delaney’s motion for partial summary judgment. Delaney appeals the summary judgment orders. On appeal, Delaney raises three issues: (1) the trial court erred in granting the defendants’ motion for summary judgment, (2) the trial court erred in denying his motion for partial summary judgment, and (3) the trial court erred by denying his motion to strike the defendants’ summary judgment evidence.
Standard of Review
When reviewing an order granting summary judgment, the court of appeals must determine whether the summary judgment evidence establishes as a matter of law that no genuine issue of fact exists as to one or more of the essential elements of the plaintiff’s cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether a disputed material fact issue exists, the court of appeals will view evidence favorable to the non-movant as true. See Nixon, 690 S.W.2d at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in the non-movant’s favor. Id.
Delaney’s Employment Discrimination Claim
Delaney alleged that AWD and Nickie Valdez violated section 21.051 of the Texas Labor Code by discriminating against him because of his gender and his national origin, and by discriminating against black AWD employees. In relevant part, section 21.051 provides that an employer commits an unlawful employment practice if, because of race or national origin, the employer “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 § 21.051 (Vernon 1996). To prevail on an allegation of employment discrimination, a plaintiff must first establish a prima facie case of discrimination. A plaintiff can establish a prima facie showing by demonstrating that: “(1) the plaintiff is a member of a protected group; (2) the plaintiff was qualified for the job that was held; (3) the plaintiff was discharged; and (4) after the employer discharged the plaintiff, the employer filled the position with a person who is not a member of a protected group.” Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 596 (5th Cir.1992); see Sibley v. Kaiser Foundation Health Plan of Texas, 998 S.W.2d 399, 402 (Tex.App.-Texarkana 1999, no pet.). Applying these elements to the instant case, an order granting the defendants’ motion for summary judgment would be proper if AWD and Valdez disproved as a matter of law one of these essential elements. Tex.R.Civ.P. 166a.
*2 In this case, the appellees contend that the evidence fails to establish that: (1) Delaney is a member of a protected group; (2) Delaney was qualified for the position of chief financial officer; and (3) the position was filled by a person who is not a member of a protected group. Here, Delaney, an Anglo male, sought promotion to the position of chief financial officer. Although at one point, a Hispanic female was selected to fill the position during an interim period, an Anglo male was ultimately hired to fill the position. The summary judgment evidence demonstrates that both individuals who worked as chief financial officer in lieu of Delaney were more qualified for the position. Valdez, who had AWD hiring authority, testified in her deposition that she would not consider a person without a CPA license for the position. Both individuals who worked in the chief financial officer position were CPAs, but Delaney is not a CPA. Thus, the summary judgment evidence does not establish at least one of the elements of Delaney’s cause of action-that he was qualified for the position. The record does not indicate who was hired, if anyone, to fill the position vacated by Delaney.
Although Delaney relies on various answers provided during depositions to argue that the summary judgment evidence raises fact issues that preclude summary judgment, those issues are not relevant to whether the defendants discriminated against Delaney. For example, Delaney complains on appeal about the variety of reasons provided for his discharge. But “[o]nce the plaintiff establishes a prima facie case, the defendant must articulate a legitimate nondiscriminatory reason for its action. If the defendant articulates such a reason, the plaintiff must then show by a preponderance of the evidence that the defendant’s reason is mere pretext.” Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir.1990). Here, even if the court construed the summary judgment evidence as establishing a prima facie case of discrimination, Valdez’s deposition testimony rebuts the prima facie showing. Specifically, Valdez testified that she fired Delaney because of his poor job performance and based on the recommendation of Delaney’s supervisor. Delaney produced no evidence other than his belief that he was fired because he was a white male to rebut Valdez’s reasons for terminating him.
As for Delaney’s allegation that AWD discriminated against black employees, no evidence supports that claim. Although Delaney testified in his deposition that he overheard Valdez refer to black employees as “Nigs”-a degrading and unacceptable term, no evidence indicates that such comment, if indeed it was made, resulted in any discriminatory practices on the part of AWD or Valdez. As a result, an order granting summary judgment for the defendants on Delaney’s employment discrimination claim would have been proper.
Delaney’s Workers Compensation Retaliation Claim
Delaney also alleged that AWD and Valdez violated section 451.001 of the labor code by firing him for filing a worker’s compensation claim. Section 451.001 provides in relevant part:
*3 A person may not discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith;
…
(3) instituted or caused to be instituted in good faith a proceeding under [the workers’ compensation statute]….
Tex.Lab.Code § 451.001 (Vernon 1996). To maintain a successful action under this provision, an injured employee must establish causal connection between a claim and alleged wrongful termination. Borden, Inc. v. Guerra, 860 S.W.2d 515, 522 (Tex.App.-Corpus Christi 1993, writ dism’d by agr.). In the instant case, Delaney relies solely on his own statements that his supervisor told him he would be fired if he filed a claim when he injured his back to establish this causal connection, but the summary judgment evidence indicates that Valdez did not know that Delaney had filed a workers’ compensation claim when she fired him. No evidence indicates that Delaney’s claim was ever considered in the decision to terminate him. As a result, an order granting summary judgment for the defendants on Delaney’s workers’ compensation claim would have been proper.
Delaney’s FMLA Claim
Delaney further alleged that AWD and Nickie Valdez violated the FMLA by retaliating against him because he pursued his rights under the FMLA. The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the act. See 29 U.S.C. § 2615. To make out a prima facie case of retaliation under FMLA, an employee must show that: (1) the employee availed himself of a protected right under the FMLA; (2) the employee was adversely affected by an employment decision; and (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action. See Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st. Cir.1998).
The protected right that Delaney ostensibly sought is provided by 29 U.S.C. § 2612. This provision entitles an employee up to twelve administrative work weeks of leave during any twelve-month period to care for a newborn son or daughter, or to care for a spouse, child, or parent who has a serious health condition, or to care for the individual’s own serious health condition that makes the employee unable to perform the functions of his position. A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves: (a) inpatient care in a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider.” 29 U.S.C. § 2611.
Although Delaney contends that he sought FMLA leave care for his postpartum wife and for his back injury, the evidence indicates that he sought flex-time to pursue a part-time job that made it difficult for him to work during normal duty hours. Specifically, the summary judgment evidence contains a memo, dated February 10, 1997, from Delaney, to Diana Gibbons, stating that “[f]lex-time will allow me to accept part-time work with no effect to my present responsibilities.” The memo continues, “I already take responsibility of the baby from 8:00 pm to 1:00 am since my wife has to get up at 3:00 am and 6:00 am, so I am a custom [sic] to staying up that late already. Flex-time would only increase my alertness in performing my duties for AWD, Inc.” The record does not contain any type of leave request or flex-time request asking to care for his wife or child or for a back injury.
*4 Additionally, no evidence of a serious health condition exists. The summary judgment evidence indicates that Delaney hurt his back on March 26, 1997, but that he did not seek treatment for his back until April 11, 1997. The treating physician asked that he be released from duty for that day and then released him for regular duty. Because Delaney was clearly able to perform the functions of his position, the injury could not have been a serious health condition as a matter of law. As for Delaney’s wife, the evidence indicates that she had a baby, not that she suffered any serious health condition. No evidence exists that Delaney ever availed himself of a protected right under the FMLA. As a result, both an order granting summary judgment for the defendants on Delaney’s FMLA claim, and an order denying Delaney’s motion for partial summary judgment on this issue, would have been proper.
Delaney’s Objections to Defendants’ Summary Judgment Evidence
Included within the defendants’ summary judgment evidence were several affidavits that Delaney moved to strike. Specifically, Delaney objected to Valdez’s affidavit wherein she described employment actions regarding other white male AWD employees as irrelevant because some of the employees had been hired after he (Delaney) was fired. Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R.Evid. 401. Although some of the employment actions described in Valdez’s affidavit occurred subsequent to Delaney’s termination, AWD’s employment actions in regards to white males would tend to make it more probable or less probable that Delaney was discriminated against because he was a white male. Consequently, denying Delaney’s motion to strike Valdez’s affidavit was proper.
Delaney also objected to statements in affidavits by Belinda Gomez, Michael de la Garza, and Jerry Perez about the affiants having never seen Valdez discriminate against anyone. As a defendant, statements about Valdez’s conduct as an employee and president of AWD would tend to make it more probable or less probable that Delaney was fired because he was a white male. Consequently, denying Delaney’s motion to strike affidavits by Gomez, de la Garza, and Perez was proper. Because the trial court’s ruling was proper, we overrule Delaney’s issue challenging the trial court’s ruling on his motion to strike.
Conclusion
Summary judgment in favor of the defendants was proper on all three of Delaney’s causes of action. As a result, we overrule Delaney’s issues concerning the trial court’s ruling on the defendants’ motion for summary judgment and on his motion for partial summary judgment. Having overruled each of Delaney’s issues, we affirm the judgments of the trial court.