Opinion issued April 13, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00685-CV
JERRY WHITE, Appellant
V.
SCHLUMBERGER LIMITED, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 04CV137077
MEMORANDUM OPINION
Appellant, Jerry White, appeals from a summary judgment rendered in favor of appellee, Schlumberger Limited (“Schlumberger”). We determine (1) whether the trial court erred in its summary-judgment ruling and (2) whether White has inadequately briefed any challenges to the trial court’s denial of his motion for continuance. We affirm the trial court’s judgment.Factual Background
White was originally hired by Schlumberger as an assistant operator at its Liberty facility (“the Liberty facility”) in 1981. White held several positions, including senior operator, general operator, specialist operator, and gun loader. In January of 1998, White was diagnosed with leukemia. White took a medical leave of absence from his position as a general operator. White’s leukemia went into remission, and he returned to work in April of 2000 as a drive operator, with the same wages and benefits that he had had before his two-year medical leave of absence. When White returned to work, the operations manager of the Liberty facility was Scott Marstellar. Shortly after returning to work, White transferred to a gun-loader position, which included a pay increase.
In March 2001, Ian Henkes replaced Marstellar as operations manager of the Liberty facility. In October 2001, due to economic constraints and downturns in the oil and gas business, Schlumberger initiated a series of reductions in force (“RIF”). Between September 21, 2001 and November 26, 2001, Henkes eliminated three operator positions and one junior operator position as part of the RIF. On December 18, 2001, Henkes eliminated White’s gun-loader position. William Gallier, the Quality Health and Safety Coordinator for the Liberty facility, assumed the additional responsibilities of gun loader.
White filed suit against Schlumberger, alleging (1) disability discrimination under chapter 21 of the Texas Labor Code, (2) age discrimination under chapter 21 of the Texas Labor Code, and (3) intentional infliction of emotional distress. See Tex. Lab. Code Ann. §§ 21.001–.556 (Vernon 1996 & Supp. 2005). Schlumberger moved for rule 166a(c) summary judgment against White’s disability and age discrimination actions on the ground that Schlumberger had articulated a legitimate, non-discriminatory reason for White’s termination. Schlumberger also moved for rule 166a(i) summary judgment in the same motion, asserting that there was no evidence showing (1) that White was disabled as defined under chapter 21 of the Texas Labor Code; (2) that Schlumberger’s explanation for terminating White was pretextual under either White’s disability or age discrimination actions; (3) that there was another position available at the time of White’s termination for which he was qualified; (4) that Schlumberger acted intentionally or recklessly; (5) that Schlumberger’s conduct was extreme or outrageous; and (6) that White suffered severe emotional distress. On April 6, 2005, the trial court granted Schlumberger’s motion for summary judgment, dismissing all of White’s claims against Schlumberger. The trial court did not specify on what basis it rendered summary judgment.
On April 25, 2005, White filed a motion for new trial alleging that Schlumberger had not adequately responded to White’s discovery requests and that there were genuine issues of material fact in dispute. On June 3, 2005, the trial court denied White’s motion for new trial. On July 6, 2005, White filed his notice of appeal. Summary Judgment
In point of error one, White argues that “[t]he trial court abused its discretion in dismissing [his] wrongful termination claim.” Specifically, White argues that the trial court improperly granted summary judgment because White satisfied the definition of “disabled,” Schlumberger’s legitimate reason for terminating White was one of convenience, and White had a long history as a valuable Schlumberger employee.
A. Standard of Review
The propriety of summary judgment is a question of law, and we thus review the trial court’s ruling de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are indulged in the non-movant’s favor. Johnson County Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). When a summary-judgment order does not state the grounds upon which it was granted, the summary judgment may be affirmed on any of the movant’s theories that has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996). Appellate courts should consider all grounds for summary judgment that the movant presented to the trial court when they are properly preserved for appeal. Id. at 625. Thus, the party appealing from such order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condo. Corp., 685 S.W.2d 755, 757 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for traditional summary judgment must either disprove at least one element of each of the plaintiff’s causes of action or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff’s causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant’s claims on which the non-movant would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.
B. Unchallenged Rulings
White does not challenge on appeal the summary judgment to the extent that it was rendered on the rule 166a(i) grounds that there was no evidence showing (1) that there was another position available at the time of White’s termination for which he was qualified; (2) that Schlumberger acted intentionally or recklessly; (3) that Schlumberger’s conduct was extreme or outrageous; or (4) that White suffered severe emotional distress.
These elements related to White’s age discrimination and intentional-infliction-of-emotional-distress claims. Because White does not challenge these bases for summary judgment, we affirm the trial court’s judgment rendered as to White’s age discrimination and intentional-infliction-of-emotional-distress claims against Schlumberger. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Garcia v. Nat’l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
C. Disability Discrimination Claim
White brought his claim of disability discrimination under chapter 21 of the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.001–.556. Chapter 21 provides that an employer commits an unlawful employment practice if the employer refuses to hire an individual on the basis of a disability. Id. § 21.051 (Vernon 1996). One of the purposes behind chapter 21 is to provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 (“ADA”) and its subsequent amendments. Id. § 21.001(3) (Vernon 1996); see Haggar Apparel Co. v. Leal, 154 S.W.3d 98, 100 (Tex. 2004). Because chapter 21 seeks to promote federal civil rights policy, it is proper to look to analogous federal precedent in interpreting chapter 21. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 382 (Tex. 2004); Morrison v. Pinkerton, Inc., 7 S.W.3d 851, 854 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120 S. Ct. 2097, 2106 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506–07, 113 S. Ct. 2742, 2747 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S. Ct. 1089, 1093–94 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824–25 (1973). Under the burden-shifting analysis, the plaintiff has the initial burden to come forward with evidence establishing a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum, 47 S.W.3d at 477. The plaintiff’s establishment of a prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the employee. Burdine, 450 U.S. at 254, 101 S. Ct. at 1094; Quantum, 47 S.W.3d at 477. If the plaintiff is successful in making a prima facie case, the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for its rejection of the plaintiff. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum, 47 S.W.3d at 477. If the employer succeeds in carrying its burden of production, the presumption of discrimination is eliminated, and the burden shifts back to the plaintiff to present evidence that the stated reason was merely a pretext for discrimination. Reeves, 530 U.S. at 142–43, 120 S. Ct. at 2106; Quantum, 47 S.W.3d at 477. Even though the burden of production shifts, the burden of persuasion remains continuously with the plaintiff. Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied).
To prove a violation of section 21.051 on the basis of disability, an employee must show that (1) he is disabled, (2) he suffered adverse employment action, and (3) non-protected employees were not treated similarly. See Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 64 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
1. Legitimate, Non-discriminatory Reason
For purposes of this discussion, we assume without deciding that White produced more than a scintilla of evidence that he was disabled to establish a prima facie case of disability discrimination. The burden then shifted to Schlumberger to articulate a legitimate, non-discriminatory reason for White’s termination. Slumberger moved for traditional summary judgment on this ground. See Quantum, 47 S.W.3d at 477.
Schlumberger proffered the following non-discriminatory reason for White’s termination: Schlumberger terminated White’s employment due to economic constraints and downturns in the oil and gas business. Schlumberger attached the affidavit of Henkes to its motion for summary judgment. Henke’s affidavit established that, when Schlumberger terminated White, it faced economic difficulties and that the RIF was necessary due to economic constraints and downturns in the oil and gas business. The RIF extended to all of Schlumberger’s locations in the United States. The summary-judgment evidence established that, from August 2001 through December 2002, over 500 employees were terminated pursuant to Schulmberger’s nationwide RIF and that from October to December 2001, four of these employees were laid off from the Liberty facility.
A reduction in force is a legitimate, non-discriminatory reason for an employee’s termination. Russo v. Smith Intern., Inc., 93 S.W.3d 428, 438 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996). We hold that Schlumberger’s production of this legitimate, non-discriminatory reason eliminated any presumption of discrimination that could have been created by the White’s prima facie showing which we assume without deciding that he made. Burdine, 450 U.S. at 254, 101 S. Ct. 1089; Quantum, 47 S.W.3d at 477.
2. Pretext for Discrimination
Once an employer produces sufficient evidence to support a non-discriminatory explanation for its decision, a plaintiff must be afforded the opportunity 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 (citing Burdine, 450 U.S. at 253, 101 S. Ct. at 1093). That is, a plaintiff may attempt to prove that he was the victim of intentional discrimination “by showing that the [defendant’s] proffered explanation is unworthy of credence.” Id. Although the presumption of discrimination disappears once the defendant meets its burden of production, it is still proper to consider the evidence establishing the plaintiff’s prima facie case “and inferences properly drawn therefrom . . . on the issue of whether the defendant’s explanation is pretextual.” Id. As noted above, because a plaintiff pursuing a state-law claim under chapter 21 must show that discrimination was “a motivating factor” in an adverse employment action, the Texas Supreme Court in Quantum noted that “[p]roving [that] the employer’s stated reason for the [adverse employment action] is [a] pretext is ordinarily sufficient to permit the trier of fact to find that the employer was actually motivated by discrimination.” 47 S.W.3d at 481–82 (citing Reeves, 530 U.S. at 147–48, 120 S. Ct. at 2108–09); see Tex. Lab. Code Ann. § 21.125(a).
In the summary-judgment setting, however, the plaintiff need not prove pretext, but need merely establish a genuine issue of material fact on the matter. Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991); Russo, 93 S.W.3d at 438. Whether summary judgment is appropriate will depend upon numerous factors, including “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.” Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002) (citing Reeves, 530 U.S. at 148–49, 120 S. Ct. at 2109). “[A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, non-discriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148, 120 S. Ct. at 2109.
White contends that Schlumberger’s proffered legitimate, non-discriminatory reason for terminating his employment was pretextual because Schlumberger did not specifically explain why White’s position was eliminated and because another employee assumed White’s responsibilities when White was terminated. To avoid summary judgment, White had to provide more than a scintilla of evidence that the true reason that Schlumberger terminated his employment was disability discrimination. See Farrington, 865 S.W.2d at 251–52; Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 576 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.1996). Schlumberger’s summary-judgment evidence established that Henkes eliminated the gun-loader position at the Liberty facility because “it was not necessary to have a full-employee in that position and it was not critical to Schlumberger’s operations.” Henkes further explained in his affidavit that, at the time of his termination, White was the only remaining non-exempt employee who had been given a “C” rating for his current and previous SLP3 Grade. The summary-judgment evidence also established that, following White’s termination, Gallier was charged with the gun-loader duties, in addition to his responsibilities as Quality Health and Safety Coordinator, because a full-time gun-loader position was not necessary. Henkes explained that Gallier was chosen to assume the gun loader’s responsibilities because he had previously worked as a gun loader and had more seniority at Schlumberger than White. White produced no summary-judgment evidence that controverted Schlumberger’s summary-judgment evidence.
Reviewing the evidence in the light most favorable to White, we hold that he did not produce a scintilla of evidence that Schlumberger’s company-wide RIF in response to the downturn in the oil and gas industry was a pretext for discrimination.
We overrule White’s first point of error. Discovery
In his second point of error, White argues that “[t]he trial court’s failure to allow [White] sufficient discovery to properly develop his case resulted in prejudicial error.”
Beyond stating this contention as an issue presented, White offers no argument, no citations to the record, and no authority. We overruled White’s second point of error because he has not briefed it in any manner whatsoever. See Tex. R. App. P. 38.1(h); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
We overrule White’s second point of error.Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Higley, and Bland.