Javier Gonzalez v. Champion Technologies, Inc.

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed November 13,
2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00612-CV

JAVIER GONZALEZ, Appellant

V.

CHAMPION TECHNOLOGIES, INC., Appellee

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2009-59428

OPINION

Javier Gonzalez appeals from a summary judgment in favor of his former
employer, Champion Technologies, Inc., in connection with Gonzalez‘s claims for
employment discrimination, retaliation, and fraud. In two issues, Gonzalez contends that
the trial court erred in sustaining numerous objections to his lengthy summary judgment
affidavit and in granting summary judgment in favor of Champion on his claims. We
affirm in part and reverse and remand in part.
 I. Applicable Law

A. Gonzalez’s Causes of Action

Gonzalez pleaded four claims against Champion: (1) employment discrimination
based on race, (2) employment discrimination based on national origin, (3) retaliation for
having complained about certain discriminatory acts, and (4) fraud. Gonzalez brought his
discrimination and retaliation claims under Chapter 21 of the Texas Labor Code, which is
also known as the Texas Commission on Human Rights Act (TCHRA). Tex. Lab. Code
§§ 21.001-21.556. Among its provisions, the TCHRA renders unlawful certain types of
discriminatory employment practices as well as retaliation by an employer for an
employee‘s opposition to or complaints about such practices. See, e.g., id. §§ 21.051,
21.055.1 Gonzalez specifically asserted that he was discriminated against on the basis of
his race and his national origin and that he was retaliated against.

In resolving discrimination cases, courts utilize a system of ―burden-shifting‖ in
which the burden of production shifts from plaintiff to defendant and then back to the
plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43 (2000);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this system, the
plaintiff must first present a prima facie case of discrimination establishing he or she was
(1) a member of a protected class, (2) qualified for the employment position at issue, (3)
subject to an adverse employment action, which includes termination, and (4) replaced by
someone outside of the protected class. Reeves, 530 U.S. at 142; Ysleta I.S.D. v.
Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).

Once the plaintiff has established a prima facie case of discrimination, the burden
shifts to the defendant to show that the employee was terminated for a legitimate,
nondiscriminatory purpose. Reeves, 530 U.S. at 142. If the defendant presents a

1
The TCHRA was patterned after federal anti-discrimination statutes in order to carry out the
policies elucidated in Title VII of the Civil Rights Act of 1964. Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 474 (Tex. 2001). Thus, in analyzing a TCHRA claim, we may seek guidance not only from
Texas cases, but from analogous federal statutes and cases as well. Id. at 476.

2
legitimate reason for the adverse employment action, the burden shifts back to the
plaintiff to show either (1) the stated reason was a pretext for discrimination, or (2) the
defendant‘s reason, while true, is only one reason, and discrimination was another,
―motivating,‖ factor. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004);
McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.—Dallas 2006, no pet.).
A plaintiff can avoid summary judgment if the evidence taken as a whole creates a fact
issue as to whether the employer‘s stated reason was not what actually motivated the
employer and creates a reasonable inference that discriminatory intent was a
determinative factor in the adverse employment action. Chandler v. CSC Applied Techs.,
LLC, No. 01-10-00667-CV, 2012 WL 2924396, at *9 (Tex. App.—Houston [1st Dist.]
July 12, 2012, no pet. h.). Although the burden of production shifts as described, the
ultimate burden of persuasion remains on the plaintiff. E.g., id. at *8.

In a retaliation case, the plaintiff must first make a prima facie showing that (1) he
or she engaged in a protected activity, (2) an adverse employment action occurred, and
(3) a causal link existed between the protected activity and the adverse action. Pineda v.
United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004); Dias v. Goodman Mfg. Co.,
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. Tex. Lab. Code § 21.055; Dias, 214 S.W.3d at 676. If the
plaintiff meets this requirement, the burden then shifts to the defendant to demonstrate a
legitimate nondiscriminatory purpose for the adverse employment action. Pineda, 360
F.3d at 487; Dias, 214 S.W.3d at 676. The plaintiff then assumes the burden to present
proof that the stated reason was pretextual. Armendariz v. Redcats USA, L.P., No. 08-11-
00010-CV, 2012 WL 2336252, at *2 (Tex. App.—El Paso June 20, 2012, no pet.).

Gonzalez also pleaded fraud. The elements of common law fraud are (1) a
material representation was made; (2) that was false; (3) when the representation was
made, the speaker knew it was false or made it recklessly without any knowledge of the

3
truth and as a positive assertion; (4) the speaker made the representation with the intent
that the other party should act upon it; (5) the party acted in reliance on it; and (6) the
party thereby suffered injury. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of
Am., 341 S.W.3d 323, 337 (Tex. 2011). ―Material‖ means that a reasonable person
would attach importance to the statement and would be induced to act on the information
provided. Id. at 337–38. Whether a statement is actionable often depends on the
circumstances in which a statement is made. Id. Relevant circumstances include the
statement‘s specificity, the speaker‘s knowledge, the comparative levels of the speaker‘s
and the hearer‘s knowledge, and whether the statement relates to the present or the future.
Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995).

B. Summary Judgment Standards

Champion raised both traditional and no-evidence grounds in its motion for
summary judgment, and the trial court did not specify on which grounds it based its
judgment. See Tex. R. Civ. P. 166a(c), (i). In reviewing a grant of summary judgment,
we consider the evidence in the light most favorable to the nonmovant. Smith v.
O’Donell, 288 S.W.3d 417, 424 (Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d
802, 824 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable
jurors could, and we disregard evidence contrary to the nonmovant unless reasonable
jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Because
summary judgment is a harsh remedy, we strictly construe all related procedural and
substantive matters against the movant. E.g., Nexen Inc. v. Gulf Interstate Eng’g Co.,
224 S.W.3d 412, 423 n.14 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

C. Review of Evidentiary Rulings

We review a trial court‘s evidentiary determinations under an abuse-of-discretion
standard. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). To
obtain reversal of a judgment based upon an error in the trial court, the appellant must
show not only that error occurred, but also that it probably caused rendition of an
improper judgment or prevented the appellant from properly presenting the case to this

4
court. Tex. R. App. P. 44.1(a); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d
231, 234 (Tex. 2007). A successful challenge to a trial court‘s evidentiary rulings
requires the complaining party to demonstrate that the judgment turns on the particular
evidence excluded or admitted. Tex. Dep’ t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.
2000). To show the trial court abused its discretion in excluding evidence, the appellant
must demonstrate that (1) the excluded evidence was controlling on a material issue
dispositive of the case and was not cumulative, and (2) the error probably caused
rendition of an improper judgment in the case. See id.; Sharma v. Vinmar Int’l, Ltd., 231
S.W.3d 405, 422 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Tex. R. App.
P. 44.1(a) (discussing reversible error); Van Heerden v. Van Heerden, 321 S.W.3d 869,
875 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

II. Procedural and Factual Background

A. Champion’s Motion

In its motion for summary judgment, Champion did not challenge Gonzalez‘s
ability to prove that he is a member of a protected class for both his race and national
origin, that he was qualified for the job from which he was terminated, or that he suffered
an adverse employment action. Champion challenged Gonzalez‘s racial discrimination
claim by presenting evidence, undisputed by Gonzalez, that Gonzalez was replaced by
someone in his own protected class. Champion did not make a similar contention,
however, as to Gonzalez‘s national origin claim. Regarding both claims, Champion
stated that Gonzalez‘s termination was legitimate because of his recurring violations of
safety policies.2

2
In his Original Petition, which was the live petition at the time judgment was granted, Gonzalez
did not claim that he was treated less favorably than similarly situated members of a different class
(disparate treatment claim). Consequently, Champion did not address disparate treatment in its motion.
When Gonzalez suggested in the give-and-take of subsequent summary judgment briefing that Champion
engaged in disparate treatment, Champion asserted that he could provide no evidence of disparate
treatment. Gonzalez never amended his petition to add a disparate treatment claim. Moreover, Gonzalez
never provided any evidence of disparate treatment.

5
 Champion contended Gonzalez could not prove that he was engaged in a protected
activity or that there was a causal link between that activity and his termination as
required for a prima facie showing of retaliation. Champion again offered the alleged
safety violations as justification for Gonzalez‘s termination. Lastly, Champion alleged
Gonzalez could provide no evidence of a fraudulent misrepresentation or reasonable
reliance thereon as required for his fraud claim.

Attached to the motion was an affidavit from Michael Nims, the plant manager at
Champion‘s Fresno, Texas facility where Gonzalez had worked. Nims averred that
Gonzalez never made any complaints regarding race-based comments. Nims also
detailed a series of safety issues, which he stated led to Gonzalez‘s termination. Among
the reported safety violations, Gonzalez allegedly failed to use a ladder properly, put
needed repair parts in his personal locker, climbed on temporary scaffolding on the
outside of a storage tank rather than using a ladder, and left a mandatory safety meeting
early and without permission.

B. Gonzalez’s Affidavit

The primary evidence Gonzalez presented in response to Champion‘s motion was
his own 27-page affidavit. In the affidavit, Gonzalez averred that he is a Mexican citizen
who has lived and worked in the United States since 1988 as a resident alien. After
working as a temporary worker for Champion for several months in 2001, he was hired
by the company as a full-time employee in the maintenance department of its Fresno,
Texas chemical plant. During his employment at Champion, Gonzalez was the only
Hispanic in the department. On May 19, 2008, Champion terminated Gonzalez‘s
employment. According to Gonzalez, the safety violation allegations cited by Champion
to justify his termination were mere pretext for racial and national origin discrimination
and he was fired in retaliation for having previously objected to discriminatory practices
at the plant.

Gonzalez details alleged persistent discriminatory behavior toward him by fellow
Champion employees in the maintenance department. When Gonzalez first began

6
working at the plant in 2001, the supervisor of the maintenance department was Gary
Barber, whom Gonzalez stated ―ran a ‗tight ship‘‖ in which people were ―openly civil‖
and ―did as they were told.‖ In 2002, Barber retired and was replaced as supervisor by
John Tarver. According to Gonzalez, under Tarver‘s leadership, employees of the
maintenance department felt free to call Gonzalez racial epithets and refuse to work with
him. Gonzalez mentions numerous specific conflicts with fellow workers and insists that
other workers were hiding and damaging his tools and taking credit for his work and that,
despite complaints by Gonzalez, Tarver did nothing to stop this behavior. Gonzalez also
states that one time when he asked Tarver why other members of the maintenance
department enjoyed privileges that he did not, Tarver replied, ―They are Americans, and
you aren‘t. You‘re Mexican, and not the same as them.‖ Nevertheless, Gonzalez
consistently received satisfactory work evaluations from Tarver. In his final evaluation
on February 28, 2008, Tarver rated Gonzalez as meeting expectations in safety. Tarver
noted in several of the evaluations that Gonzalez had issues communicating with other
workers. Gonzalez states that he attended several classes to improve his English and that
he understood English better than he spoke it.

Gonzalez also specifically references three incidents in which he requested
intervention by the plant manager. Twice, Gonzalez contends, he received a smaller
annual raise than other employees in the department, and after appealing to the plant
manager, he received higher raises. In the third incident, Gonzalez explained that he had
requested and received approval for a vacation in December 2007, but Tarver informed
him that he could not go on vacation because another employee had requested vacation
for the same period. After Gonzalez brought the matter to the attention of the plant
manager, and also complained about racist conduct he faced in the maintenance
department, the plant manager intervened and permitted Gonzalez to take his approved
vacation.

As mentioned above, Champion contends that Gonzalez left a May 16, 2008 safety
meeting before the conclusion of the meeting, a violation of policy. Gonzalez does not

7
deny that he left the meeting early but contends that he was misled by Tarver into doing
so. According to Gonzalez, a meeting notice for the safety meeting provided two
inconsistent times, so he asked Tarver for a clarification. Tarver stated the meeting was
to last until 4:00. Gonzalez avers that when the meeting recessed at 4:00, he got up to
leave based on Tarver‘s earlier representation. When he passed Tarver, Gonzalez said,
―Goodbye. I will see you on Monday,‖ and Tarver smiled and responded, ―Have a good
weekend. I‘ll see you on Monday.‖ Gonzalez additionally disputed Champion‘s
characterization of the safety meeting as ―important‖ or a ―signature event.‖

On May 19, 2008, Tarver accompanied Gonzalez to a meeting with Eric Kiihne,
the interim plant manager. At the meeting, Kiihne told Gonzalez that he was being fired
because he left the safety meeting early without permission. When Gonzalez attempted
to explain that he left because he understood from Tarver that the meeting was
concluded, Tarver declined to support this explanation and Kiihne stated that he was not
going to discuss the matter further. When Gonzalez then asked whether there were any
other reasons for his termination, Kiihne said, ―Yes. John [Tarver] has the rest in his
folder.‖ Thereafter, Tarver escorted Gonzalez to Gonzalez‘s locker and subsequently to
the plant gate. Gonzalez asked Tarver why he had been fired, and according to Gonzalez,
Tarver responded, ―I had you fired.‖ Tarver went on to explain that Gonzalez had
―disrespected‖ him by going ―over his head‖ regarding the December vacation. Tarver
said he was very angry with Gonzalez for that and ―[t]his is the consequence.‖

During numerous discussions Gonzalez had with plant managers and Tarver,
Champion employee Lali Garcia acted as an interpreter. According to Gonzalez, Garcia,
who worked at the central plant office, also told him about certain things that she saw and
heard relating to Gonzalez‘s employment. In his affidavit, Gonzalez recounts in detail a
number of statements Garcia allegedly told him. No affidavit or other testimony from
Garcia herself appears in the record.

Gonzalez had filed a complainant against Champion with the Equal Employment
Opportunity Commission (―EEOC‖) on May 8, 2007. He received a ―Right to Sue‖ letter

8
from the EEOC but states that he decided he did not want to sue his employer. On June
11, 2008, after his termination, Gonzalez filed a second discrimination complaint with the
EEOC, alleging discrimination on the basis of race and national origin as well as
retaliation for prior complaints. He again received a ―Right to Sue‖ letter and filed the
present lawsuit.

As will be discussed in detail below, Champion objected to many of the 239
paragraphs in Gonzalez‘s affidavit.3 Champion grouped its objections into four basic
categories: (1) time-barred allegations, (2) hearsay (including double hearsay and related
objections), (3) best evidence rule, and (4) conclusory statements and statements not
made with personal knowledge. The trial court sustained all of the objections. The trial
court then granted Champion‘s motion for summary judgment.

III. Analysis

In two issues on appeal, Gonzalez contends that the trial court erred in sustaining
Champion‘s objections to Gonzalez‘s affidavit and in granting summary judgment for
Champion on each of his four causes of action. We will begin by addressing one subset
of Champion‘s objections on which there appears to be considerable confusion between
the parties.4 We will then discuss how the evidence and additional evidentiary rulings
pertain to each of Gonzalez‘s causes of action.

A. Time-barred Allegations

The parties talk at considerable cross-purposes regarding Champion‘s objection
that many of the allegations of discrimination in Gonzalez‘s affidavit were not actionable

3
Although the numbering of paragraphs in Gonzalez‘s affidavit only goes up to 230, it appears
that nine numbers were repeated for a total of 239 paragraphs.
4
Given the sheer volume of paragraphs in Gonzalez‘s affidavit (239), objections by Champion to
those paragraphs (over 300), and blanket sustaining of those objections by the trial court, we will not
attempt to address each specific objection as it pertains to each specific paragraph. Instead, we will only
discuss the sustaining of objections as necessary to reach our required decisions in this appeal.
Champion‘s specific objections included hearsay, double hearsay, best evidence rule, not based on
personal knowledge, more prejudicial than probative, and conclusory. See Tex. R. Evid. 403 (more
prejudicial than probative), 602 (personal knowledge), 802-804 (hearsay), and 1002 (best evidence rule).

9
because they were time barred. Champion objected on this basis to 122 paragraphs of
Gonzalez‘s affidavit.

Before suing in state court under the TCHRA, an employee must first have
exhausted his or her administrative remedies under the Act. Czerwinski v. Univ. of Tex.
Health Sci. Ctr. at Houston, 116 S.W.3d 119, 121 (Tex. App.—Houston [14th Dist.]
2002, pet. denied) (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.
1991)). Under the Act, ―A complaint . . . must be filed not later than the 180th day after
the date the alleged unlawful employment practice occurred.‖ Tex. Labor Code §
21.202(a). Failure to timely file an administrative complaint also prevents a employee
from pursuing the complaint in court. Czerwinski, 116 S.W.3d at 121-22 (citing
Schroeder, 813 S.W.2d at 485-89). Gonzalez filed his EEOC complaint on June 11,
2008; thus, any alleged discriminatory acts occurring prior to December 14, 2007 are
time-barred.

Gonzalez does not dispute that any conduct occurring more than 180-days before
he filed his administrative complaint not actionable in this lawsuit; however, he argues
that the trial court should have not sustained Champion‘s time-barred allegations
objection because the statements regarding earlier events were still admissible as relevant
to the allegations that are not time-barred, essentially as background information for what
was to follow. In its briefing to this court, Champion does not dispute the admissibility
of the statements; Champion instead insists that its objections regarding time-barred
claims merely requested that the trial court recognize that the claims contained therein
were not actionable because they were time barred.5 We agree with Champion‘s
interpretation of its objections. In presenting these objections to the trial court,
Champion stated the general law regarding the time period for which claims can be
brought in a lawsuit (as discussed above); Champion then requested ―that the [c]ourt

5
Champion states on page 14 of its brief: ―Champion objected only to Gonzalez‘s attempt to
frame a discrimination and retaliation lawsuit based on allegations of discrimination that date as far back
as 2004 . . . , not to the admissibility of every document or statement that pre-dates the limitations
period.‖

10
sustain its objections to these allegations as time-barred.‖

There appears to be no real dispute here between the parties. Gonzalez does not
deny that he cannot recover on claims older than 180 days before he filed his complaint,
and Champion does not contend in blanket fashion that the trial court could not be
informed of events occurring prior to that time. Although events occurring more than 180
days before Gonzalez filed a charge of discrimination cannot be the basis for legal
redress, they are nevertheless ―relevant to show the atmosphere in which those events
which precipitated this lawsuit occurred.‖ Soto v. El Paso Natural Gas Co., 942 S.W.2d
671, 677 (Tex. App.—El Paso 1997, writ denied) (citing Fifth Circuit cases).
Accordingly, the trial court erred to the extent it sustained Champion‘s objections to
time-barred allegations for all purposes, and we will consider these allegations to the
extent they are relevant to claims that were not time-barred. We now turn to Gonzalez‘s
arguments regarding his specific causes of action.6

B. Racial Discrimination

Gonzalez does not contest Champion‘s assertion that he was replaced by someone
from the same protected class.7 Since Gonzalez concedes that element of his racial
discrimination cause of action, the trial court did not err in granting summary judgment
on that cause of action. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644
(Tex. 1995) (explaining that a defendant is entitled to summary judgment on a cause of
action if it disproves as a matter of law at least one element of the cause of action); see
also Reeves, 530 U.S. at 142 (providing elements of prima facie case of employment
discrimination).

6
We will discuss all of Gonzalez‘s arguments under both of his issues in one unified analysis for
each cause of action because ultimately both issues seek the same relief: reversal of the summary
judgment because of the existence of a material issue of fact.
7
In his response to Champion‘s motion for summary judgment, Gonzalez stated ―[I] may have
been replaced by [Champion] with a Hispanic . . . but . . . [I] was not replaced by a Mexican citizen.‖

11
C. Fraud

Gonzalez does not provide any argument or authority in support of his contention
that the judge erred in granting summary judgment as to his fraud claim. See Tex. R.
App. P. 38.1(i) (―The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.‖).

In its motion, Champion asserted that Gonzalez could present no evidence of
intent or of reasonable reliance in his fraud claim. See Italian Cowboy Partners, 341
S.W.3d at 337 (providing required elements of common law fraud cause of action). In
his brief, Gonzalez mentions that his fraud allegation is related to the safety meeting that
he apparently left early after his supervisor, Tarver, allegedly told him the wrong time for
the meeting to end and then did not stop Gonzalez when he left the meeting and said,
―Goodbye.‖ But Gonzalez offers only a conclusory statement that Tarver ―intended to
fraudulently induce‖ him to leave early to establish a pretext for later firing him and that
Champion later ratified Tarver‘s fraudulent scheme by firing Gonzalez. Gonzalez also
suggests, without explanation, that Tarver‘s statement he had Gonzalez terminated
because Gonzalez reported Tarver‘s refusal of vacation time to the plant manager
somehow creates a fact issue on fraud, thus precluding summary judgment. Gonzalez
does not otherwise address the fraud elements of intent or reasonableness. Gonzalez‘s
sparse arguments do not directly address the grounds raised by Champion.8 Because
Gonzalez does not cite to any authority and fails to develop his argument in support of
this issue, we conclude that this issue is inadequately briefed and presents nothing for
review. Tex. R. App. P. 38.1(i); In re A.J.H., No. 14-03-01016-CV, 2004 WL 414093, at
*7 (Tex. App.—Houston [14th Dist.] March 2, 2004, no pet.) (―An appellant has a duty
to cite specific legal authority and to provide legal argument based upon that authority.‖).

8
Gonzalez cites specific paragraphs of his affidavit; however, none of these paragraphs speak to a
fraud claim, intent or reasonable reliance.

12
D. Retaliation

1. Prima Facie Case

To present a prima facie case of retaliation, Gonzalez was required to show (1) he
engaged in a protected activity, (2) an adverse employment action occurred, and (3) there
exists a causal link between the protected activity and the adverse action. Pineda, 360
F.3d at 487; Dias, 214 S.W.3d at 676. In its motion, Champion contended Gonzalez
could provide no evidence of protected activity or a causal connection.

As evidence that he engaged in a protected activity, Gonzalez stated in his
affidavit that he complained to the plant manager, Michael Nims, about race-based
harassment from his coworkers, his supervisor Tarver‘s failure to do anything about it,
and Tarver‘s retraction of Gonzalez‘s pre-approved vacation so that another coworker
could take a vacation.9 Champion did not object to the paragraph of Gonzalez‘s affidavit
wherein he discusses Tarver‘s retraction of vacation, but it did object on hearsay grounds
to the paragraph regarding Gonzalez‘s purported conversation with Nims. The primary
value of Gonzalez‘s statements to Nims, however, does not lie in the truth of the matters
asserted—the harassment and Tarver‘s related failure to act as well as Tarver‘s actions
regarding the vacation were covered in other portions of the affidavit10—the value lies in
the very fact that Gonzalez made the statements to Nims. For that purpose, the
statements were admissible over a hearsay objection. See, e.g., Comiskey v. FH Partners,
LLC, 373 S.W.3d 620, 630 (Tex. App.—Houston [14th Dist.] 2012, pet. filed). The
statements were highly pertinent to a material issue in the case and were not cumulative
9
Sebastian Bingley, the coworker whom Tarver allegedly allowed to take vacation instead of
Gonzalez, was described (in Gonzalez‘s and another former coworker‘s affidavit) as an African-American
and, thus, presumably in the summary judgment context, not an Hispanic or Mexican national.
10
Gonzalez also testified directly about the key facts that he states he relayed to Nims in other
portions of Gonzalez‘s affidavit. As stated in the text above, Champion did not object to Gonzalez‘s
statements about Tarver‘s revocation of his vacation time. Champion also did not object to certain
paragraphs wherein Gonzalez recounted specific instances of harassment by coworkers and inaction by
Tarver. Although Champion did object on hearsay grounds to other descriptions of harassment in the
affidavit, those descriptions also were admissible for the fact that certain derogatory comments were
made, not for any supposed truth contained within those statements. See, e.g., Comiskey v. FH Partners,
LLC, 373 S.W.3d 620, 630 (Tex. App.—Houston [14th Dist.] 2012, pet. filed).

13
of other admitted evidence; the trial court therefore erred in excluding them. See
Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).

It is not entirely clear whether Gonzalez‘s complaints regarding his vacation were
complaints of discrimination. However, given that the employee whom Tarver initially
permitted to take vacation instead of Gonzalez was apparently not in the same protected
class as Gonzalez, and the considerable other evidence of discriminatory conduct in the
plant maintenance department at the time of the incident, it is at least inferable that
Tarver retracted Gonzalez‘s vacation based on Gonzalez‘s national origin. Furthermore,
Gonzalez also testified regarding specific remarks made by Tarver that could be
construed as discriminatory based on Gonzalez‘s national origin. For example, Gonzalez
states in his affidavit that he once asked Tarver why other workers enjoyed privileges that
he did not, and Tarver allegedly replied, ―They are Americans, and you aren‘t. You‘re
Mexican, and not the same as them.‖ Moreover, Gonzalez‘s alleged complaints to Nims
of harassment based on national origin were certainly complaints related to
discrimination. In making such complaints, Gonzalez was engaged in a protected activity
under section 21.055 of the Labor Code.

It is undisputed that Gonzalez suffered an adverse employment action when he
was fired from Champion.11 The element that Champion challenged most vociferously in
the trial court was whether there was a causal connection between Gonzalez‘s complaints
to Nims and the termination of his employment. As evidence of this connection,
Gonzalez points to his affidavit testimony that, when Tarver escorted him to the plant
gate on the day Gonzalez‘s was fired, Tarver said that Gonzalez had been fired for
missing the safety meeting and for going over Tarver‘s head to Nims about the
revocation of Gonzalez‘s vacation. See Rachid, 376 F.3d at 312 (discussing ―mixed
motive‖ cases). According to Gonzalez, Tarver said he had Gonzalez fired for

11
In his brief, Gonzalez mentions the possibility that he suffered an adverse employment action
when Tarver tried to give him an extremely low pay raise and filed safety reports against Gonzalez.
However, Gonzalez has not provided evidence of a causal link between these actions and any prior
complaints as is required for a retaliation cause of action.

14
―disrespecting‖ Tarver and going over his head to Nims about the vacation. 12 This
statement appears to tie Gonzalez‘s engagement in a protected activity directly to the
subsequent adverse employment action.

Champion, however, contends that this evidence, even if believed, is insufficient
to create a fact issue on causation because it was undisputed that Nims, and not Tarver,
conducted the meeting at which Gonzalez was fired. While this apparent fact might carry
considerable weight with a jury, it does not negate the presumption in the summary
judgment context that Tarver said what Gonzalez ascribed to him and that Tarver stated
the truth. Certainly, it is not outside the realm of possibility that Tarver, as head of the
maintenance department, could have had as much influence over the firing of a member
of that department as he claimed to have. See, e.g., Staub v. Proctor, 131 S. Ct. 1186,
1192-93 (2011) (rejecting suggestion that discriminatory bias must be shown for ultimate
decision-maker and allowing for possibility that bias by other supervisors who influenced
the decision could be a proximate cause of an adverse employment action); Autozone,
Inc. v. Reyes, 272 S.W.3d 588, 593 (Tex. 2008) (―In determining whether the individual
making the remark had authority over the employment decision, consideration is not
limited to statements by the person who officially made the decision. Discriminatory
animus by a person other than the decision-maker may be imputed to an employer if
evidence indicates that the person in question possessed leverage or exerted influence
over the decision-maker.‖). Thus, it appears that Gonzalez presented a prima facie case
of retaliation.

2. Legitimate Reason and Pretext

In response to Gonzalez‘s prima facie case, Champion asserts that the series of
safety incidents involving Gonzalez provided a legitimate, nondiscriminatory reason for
his termination. See Pineda, 360 F.3d at 487; Dias, 214 S.W.3d at 676. The burden
therefore shifted back to Gonzalez to offer evidence that the stated reason was pretextual.
See Armendariz, 2012 WL 2336252, at *2. Gonzalez raises several points as indicative
12
Champion did not object to these statements in Gonzalez‘s affidavit.

15
of pretext, including the general atmosphere of discrimination tolerated by Tarver in the
maintenance department, the lack of any apparent correction by plant management after
Gonzalez complained about harassment by coworkers, Tarver‘s alleged statements at the
gate on the day Gonzalez was fired, and the positive job performance evaluations which
did not reveal significant safety issues prior to the termination.13 One of the key safety
issues offered to support Gonzalez‘s termination was the fact he left a mandatory safety
meeting before the meeting concluded. According to Gonzalez, however, Tarver had told
him an incorrect time for the end of the meeting and when Gonzalez walked by Tarver
and said ―Goodbye,‖ Tarver responded ―Have a good weekend. I‘ll see you on Monday.‖
Although in isolation this exchange may seem innocuous, since Gonzalez was fired three
days later and a primary reason was his leaving the safety meeting early, it suggests an
intention to get Gonzalez fired.

All of these factors together are sufficient to raise a genuine issue of fact regarding
whether the alleged safety issues were pretext for firing Gonzalez in retaliation for his
complaints about discriminatory activity. Because Gonzalez presented proof of a prima
facie case of retaliation and presented proof raising a fact issue concerning Champion‘s
proffered reason for the termination, the trial court erred in granting summary judgment
against Gonzalez‘s retaliation cause of action.

E. National Origin Discrimination

Gonzalez has presented a prima facie case of discrimination due to his national
origin. Gonzalez is a member of a protected class, he was qualified for his position, he
suffered an adverse employment action, and he was not replaced in that position by
anyone in the same protected class. See Reeves, 530 U.S. at 142. Champion does not

13
Gonzalez also cites to statements Lali Garcia made to him regarding her observations of
meetings about firing Gonzalez. While such evidence might be of significant weight if obtained from
Garcia herself, as recounted by Gonzalez, it is inadmissible hearsay. The statements are offered for the
truth of the matter she allegedly asserted, and there is no evidence she was authorized to speak for the
company to Gonzalez on these matters. See Tex. R. Evid. 801-803; Reid Road Mun. Utility Dist. No. 2 v.
Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 856-57 (Tex. 2011). Champion objected to this evidence
on hearsay grounds, and the trial court properly sustained that objection.

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dispute any of these elements.

As a legitimate reason for Gonzalez‘s termination, Champion again pointed to and
provided evidence of a series of safety issues involving Gonzalez. In his affidavit, Plant
Manager Nims explained in detail why the plant‘s safety record was of such importance
to it, particularly in attracting clients to purchase product from the plant. Champion also
presented incident reports regarding certain of the safety lapses and clearly fulfilled its
burden of articulating a legitimate reason for terminating Gonzalez.

The burden therefore shifted back to Gonzalez to offer evidence that the stated
justification was mere pretext for discrimination based on national origin. See id. Again,
Gonzalez points to several facts suggesting pretext, including the general atmosphere in
the maintenance department, the lack of correction by management, Tarver‘s alleged
statements at the gate on the day Gonzalez was fired, and the positive job performance
evaluations which did not reveal significant safety issues prior to his termination.

When a plaintiff alleges both retaliation and discrimination based on the same
adverse employment action, we do not assume that the evidence supporting one claim
automatically supports the other. Above, we held that Gonzalez presented more than a
scintilla of evidence to support his retaliation claims, based at least in part on the
comments Tarver allegedly made at the plant gate that he had Gonzalez fired because
Gonzalez went over Tarver‘s head regarding the retraction of vacation time in favor of
another worker outside of Gonzalez‘s class. That alleged discussion at the gate, however,
does not by itself prove a discriminatory motive behind Gonzalez‘s termination, as there
is no evidence Tarver, or anyone else, expressly referenced Gonzalez‘s Mexican origin as
a cause of his dismissal. See Berry v. Delta Airlines, Inc., 260 F.3d 803, 809-811 (7th
Cir. 2001) (observing that ―[w]hile it is true that the claimed campaign of post-complaint
harassment was apparently conducted in response to [the plaintiff‘s] sexual harassment
complaint, . . . this does not impute a gender basis to the post-complaint harassment‖ and
that to hold otherwise ―would force us to conclude that every claim of retaliation for
filing charges of discrimination would be a claim of discrimination, even thought [sic]

17
Title VII makes discrimination and retaliation separate wrongs‖ (quotation marks and
citation omitted)).

There must be something more to support Gonzalez‘s discrimination claims than
the mere fact that he was terminated after complaining about alleged discrimination. See
id. As set forth below, Gonzalez did indeed present evidence of a discriminatory motive.
By his own alleged words, Tarver played a role in the termination. Gonzalez stated in his
affidavit that he once asked Tarver why other members of the maintenance department
enjoyed privileges that he did not, to which Tarver replied, ―They are Americans, and
you aren‘t. You‘re Mexican, and not the same as them.‖ Gonzalez also presented
evidence that Tarver had undertaken other actions that treated him differently from
others, including the retraction of Gonzalez‘s vacation in favor of another worker and
twice giving Gonzalez a very small raise when other maintenance workers outside of
Gonzalez‘s class got significantly higher raises. In each of these instances, the plant
manager intervened to allow Gonzalez to take his scheduled vacation and to provide
significantly higher raises. However, this evidence raises a fact issue that Tarver
possessed a discriminatory animus toward Gonzalez that played a role in Gonzalez‘s
termination. Furthermore, there was evidence that Tarver and other supervisors tolerated
co-workers‘ harassment of Gonzalez based on his Mexican origin.

Lastly, evidence of pretext in the decision to terminate Gonzalez can be found in
the satisfactory job evaluations Gonzalez received prior to the termination, including
specifically on the issue of safety, as well as in the evidence that Tarver may have misled
Gonzalez into leaving the safety meeting which was specifically mentioned as a reason
for the termination. Because Gonzalez presented proof of a prima facie case of national
origin discrimination and presented more than a scintilla of evidence that Champion‘s
proffered reason for the termination was a mere pretext for discrimination, the trial court
erred in granting summary judgment against Gonzalez‘s national origin discrimination
cause of action.

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 IV. Conclusion

Gonzalez failed to demonstrate the existence of a genuine issue of material fact
precluding summary judgment on his race discrimination and fraud causes of action.
Gonzalez, however, did establish a genuine issue of fact on his claims for retaliation and
national origin discrimination. Consequently, we sustain his two issues as they pertain to
his retaliation and national origin discrimination claims, reverse the summary judgment
as to those causes of action, and remand the case to the trial court for further proceedings
in accordance with this opinion. We affirm the judgment as it pertains to the other causes
of action.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Boyce, Christopher, and Jamison.

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