Opinion issued February 17, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00466-CV
———————————
KARL WAWAROSKY, Appellant
V.
FAST GROUP HOUSTON INC., Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2011-62792
MEMORANDUM OPINION
Karl Wawarosky appeals the trial court’s rendition of a summary judgment
in favor of Appellee FAST Group Houston Inc. Wawarosky sued FAST for
unlawful termination, alleging that FAST knowingly discriminated against him on
the basis of age and race, in violation of the Texas Commission on Human Rights
Act (“TCHRA”). FAST moved for summary judgment on no-evidence and
traditional grounds, and the trial court granted the motion. We affirm.
Background
Wawarosky, a Caucasian male, worked for FAST and its predecessor, EGC
Corporation, for a combined 14 years, during which time he was eventually
promoted to Tape Department Supervisor and received nearly a dozen raises,
including two in 2010.
It is undisputed that on the morning of April 28, 2011, Wawarosky was at
work and talking with two co-workers, James Wicmandy and Jose DeLeon, when
he took a bullet out of his pocket and showed it to them. Wawarosky said that the
bullet was real and told Wicmandy, “This one’s got your name on it.” DeLeon
added, “it takes a silver bullet.”
The bullet came up again that afternoon, but the evidence about what was
said during the second incident is disputed. In support of its motion for summary
judgment, FAST offered transcripts from the hearing held by the Texas Workforce
Commission (“TWC”) on Wawarosky’s unemployment claim. According to the
TWC hearing testimony of DeLeon and his supervisor, James Barnett, Wawarosky
produced the bullet from his pocket and said that the bullet had DeLeon’s name on
it. Both Barnett and DeLeon testified at the TWC hearing that DeLeon told
Barnett that this made DeLeon feel threatened.
2
In his own affidavit filed in support of his response to FAST’s summary-
judgment motion, Wawarosky averred that DeLeon asked him, “Do you still have
the bullet with James’ name on it?” and Wawarosky merely responded yes, and
never took the bullet out of his pocket.
The summary-judgment evidence demonstrates that Barnett reported the
incidents to Joy Cook, FAST’s Director of Human Resources. Cook testified at the
TWC hearing that she determined that Wawarosky violated FAST’s policy
prohibiting (1) “possession of firearms, weapons, explosives, or incendiary or other
destructive devices on company property” and (2) “intimidating, coercive, violent,
abusive, or hostile behavior”—which justified immediate termination—and that
Wawarosky would be terminated. Wawarosky’s Termination Form, also included
in FAST’s summary-judgment evidence, showed that Wawarosky was terminated
because he “made threats towards other employees.”
Wawarosky filed an application for unemployment benefits, which was
denied by the TWC because he was fired for violating company rules and policies.
Wawarosky also filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), claiming that FAST discriminated against him because of
his race. He did not allege age discrimination. The EEOC found no statutory
violations and issued a right to sue letter.
3
Wawarosky sued FAST, claiming that he was unlawfully terminated on the
basis of his age and race. Eight months later, FAST filed a combined no-evidence
and traditional motion for summary judgment. The trial court continued the
summary judgment hearing until September 14, 2012 to allow Wawarosky to
conduct additional discovery. Wawarosky moved to compel responses to two
interrogatories, but the trial court denied the motion to compel on September 7,
2012, a week before he overruled Wawarosky’s objections to FAST’s summary-
judgment evidence and granted the summary-judgment motion.
Discussion
Wawarosky challenges the summary judgment on five grounds: (1) the trial
erroneously denied Wawarosky’s motion to compel, (2) Wawarosky did not have
adequate time for discovery before the trial court granted the motion, (3) the trial
court erroneously overruled Wawarosky’s objections to FAST’s summary-
judgment evidence, (4) Wawarosky exhausted his administrative remedies, and
(5) FAST’s reliance on company policy violations as a justification for his
termination is pretextual. We address each contention in turn.
A. Wawarosky’s motion to compel
1. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to compel discovery for an
abuse of discretion. Austin v. Countrywide Homes Loans, 261 S.W.3d 68, 75 (Tex.
4
App.—Houston [1st Dist.] 2008, pet. denied). Generally, the scope of discovery is
within the trial court’s discretion; however, the trial court must impose reasonable
discovery limits. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.
proceeding) (per curiam). A party may obtain discovery “regarding any matter that
is not privileged and is relevant to the subject matter of the pending action.” TEX.
R. CIV. P. 192.3(a). Discovery requests must show a reasonable expectation of
obtaining information that will aid the dispute’s resolution and, therefore, must be
reasonably tailored to include only relevant matters. In re CSX Corp., 124 S.W.3d
at 152. A trial court must sustain a party’s objection to discovery requests that are
not reasonably tailored to include only relevant matters. See id.
2. Analysis
Wawarosky contends that the trial court erred in denying his motion to
compel responses to two interrogatories:
Interrogatory 1:
Identify any and all employees . . . who have been reported or
disciplined in the last four years for safety violations.
Interrogatory 3:
Identify any and all employees . . . who were terminated for violating
a company policy during the last four years.
FAST objected to both on the basis that the requests sought irrelevant information
and were overly burdensome and overbroad.
5
“Overbroad requests encompass time periods or activities beyond those at
issue in the case—in other words, matters of questionable relevance.” In re
Jacobs, 300 S.W.3d 35, 44 (Tex. App.—Houston [14th Dist.] 2009, orig.
proceeding [mand. dism’d]). Here, Wawarosky was terminated for threats towards
employees—violating FAST policies prohibiting intimidating behavior and
possession of firearms, weapons, or similar devices at FAST—which, according to
FAST, justified immediate termination. But Wawarosky did not tailor his
interrogatories to violations of the same polices or types of policies, or even to
violations of policies that justify immediate termination. Rather, interrogatories 1
and 3 sought information about reports, discipline, and terminations involving
employees who committed any safety violations and violated any company policy
in the last four years. Accordingly, we conclude that the trial court did not abuse
its discretion in denying the motion to compel on the basis that the discovery
sought was overbroad. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431
(Tex. 1996) (in case involving abduction from parking lot, request for description
of all criminal conduct at same location during preceding seven years held
overbroad); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814–15 (Tex. 1995) (in
case involving exposure to toxic chemicals that allegedly caused asbestos-related
disease, request for “all documents written by [defendant’s safety director] that
6
concern[ed] safety, toxicology, and industrial hygiene, epidemiology, fire
protection and training” was overbroad).
B. Adequate time for discovery
“A party may move for a no-evidence summary judgment only ‘[a]fter
adequate time for discovery.’” Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140,
145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (citing TEX. R. CIV. P.
166a(i)). “An adequate time for discovery is determined by the nature of the cause
of action, the nature of the evidence necessary to controvert the no-evidence
motion, and the length of time the case had been active in the trial court.” Id. In
determining whether adequate time for discovery passed, we examine: (1) the
nature of the case; (2) the nature of evidence necessary to controvert the no-
evidence motion; (3) the length of time the case was active; (4) the amount of time
the no-evidence motion was on file; (5) whether the movant requested stricter
deadlines for discovery; (6) the amount of discovery that has already taken place;
and (7) whether the discovery deadlines in place were specific or vague. Brewer &
Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied). We review the trial court’s determination that an
adequate time for discovery passed in granting a no-evidence summary-judgment
motion for an abuse of discretion. Specialty Retailers, 29 S.W.3d at 145.
7
Wawarosky filed his petition on October 18, 2011. The claims asserted in
the petition—that FAST violated the TCHRA by knowingly and willingly
discriminating against Wawarosky on the basis of age and race—are not complex.
The docket control order required the parties to set summary-judgment
motions for hearing or submission by September 28, 2012, and set the close of the
discovery period on September 28, 2012. There is no indication that FAST
requested stricter deadlines for discovery.
The record reveals that Wawarosky conducted some discovery. First, his
response to FAST’s motion for summary judgment included portions of the
personnel file of another FAST employee, Marco Chavez, indicating Wawarosky
obtained FAST documents. Wawarosky also served interrogatories to which
FAST responded on February 21, 2012, four months before it moved for summary
judgment. 1
FAST filed its motion for summary judgment on June 19, 2012, by which
time Wawarosky had over eight months to conduct discovery, and less than four
months remained before discovery closed. The motion was on file for nearly three
months before the trial court granted it, because the trial court granted
Wawarosky’s July motion to continue the summary judgment hearing for the
1
The record reflects that Wawarosky first complained about FAST’s responses in
his motion to compel dated July 30, 2012, which he filed over a month after FAST
moved for summary judgment.
8
express purpose of allowing Wawarosky more time to conduct discovery. Thus,
by the time the trial court ruled on the motion, Wawarosky had nearly 11 months
to conduct discovery, and only two weeks remained before the close of discovery.
Considering all of these factors, we conclude that Wawarosky failed to
demonstrate that the trial court abused its discretion by granting FAST’s motion
for summary judgment without allowing adequate time for discovery. See
Madison v. Williamson, 241 S.W.3d 145, 155–56 (Tex. App.—Houston [1st Dist.]
2007, pet. denied) (holding trial court did not abuse discretion in granting no-
evidence motion for summary judgment because lawsuit had been pending for over
a year at time trial court granted summary judgment, trial court extended discovery
once, appellant made no effort to specify additional evidence needed to respond, or
the reason she could not obtain it during discovery period).
C. Wawarosky’s objections to FAST’s summary-judgment evidence
Wawarosky contends that the trial court erred in overruling his objections to
FAST’s summary-judgment evidence, which he argues was not properly
authenticated and constituted inadmissible hearsay.
1. Standard of Review and Applicable Law
Documents submitted as summary judgment proof must be sworn to or
certified. TEX. R. CIV. P. 166a(f). “Unauthenticated or unsworn documents, or
documents not supported by any affidavit, are not entitled to consideration as
9
summary judgment evidence.” Mackey v. Great Lakes Investments, Inc., 255
S.W.3d 243, 252 (Tex. App.—San Antonio 2008, pet. denied) (quoting Llopa, Inc.
v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, writ denied)).
We review a trial court’s ruling overruling objections to summary-judgment
evidence for an abuse of discretion. Finger v. Ray, 326 S.W.3d 285, 290 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). The appellant bears the burden of
bringing forth a record sufficient to show that the trial court abused its discretion
when it overruled the objections. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex.
App.—Dallas 2006, no pet.). To reverse a judgment based on a claimed error in
admitting or excluding evidence, a party must show that the error probably resulted
in an improper judgment. TEX. R. APP. P. 41.1; Interstate Northborough P’ship v.
State, 66 S.W.3d 213, 220 (Tex. 2001). “Typically, 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.” Interstate
Northborough P’ship, 66 S.W.3d at 220.
10
2. Analysis
(a) Authentication
Wawarosky objected that FAST’s Employee Handbook had not been
properly authenticated. In her affidavit, which FAST offered in support of its
motion, Patti Saurage, 2 a human resources manager, averred:
I am an authorized custodian of records for FAST. I have personal
knowledge of the fact that the [Employee Handbook] attached to
FAST’s Motion for Summary Judgment [is] from records kept by
FAST in the regular course of business, and it was the regular course
of business of FAST for an employee or representative of FAST, with
knowledge of the act, event, condition, opinion, or diagnosis recorded
to make the records or to transmit information thereof to be included
in such records; and the records were made at or near the time or
reasonably soon thereafter. The records attached to FAST’s Motion
for Summary Judgment as Exhibits B [Employee Handbook] and K-1
are true and correct copies of the originals.
This was sufficient to authenticate the handbook. See TEX. R. EVID. 902(10)
(business records are self-authenticated if accompanied by the custodian of
record’s affidavit meeting Rule 902(10)(b)’s requirements—that person is
custodian of record, record kept in regular course of business, record made at time,
and record is original or exact duplicate); H20 Solutions, Ltd. v. PM Realty Grp,
LP, 438 S.W.3d 606, 622–23 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
2
Joy Cook, the Human Resources Manager of FAST at the time Wawarosky was
terminated, resigned from FAST before FAST moved for summary judgment.
Patti Saurage was the Human Resources Manager at the time FAST moved for
summary judgment.
11
Wawarosky also objected that two transcripts of TWC hearings were not
properly authenticated. But the copies of the transcripts are authenticated and
certified by the reporter who transcribed the hearing. See TEX. R. EVID. 902(4) (a
copy of a public record is self-authenticating when “certified as correct by the
custodian or other person authorized to make the certification”).
Wawarosky next objected that TWC’s “Appeal Tribunal Decision” was not
properly authenticated. Rule of Evidence 902 provides for self-authentication of
domestic public documents under seal. TEX. R. EVID. 902(1) (“A document
bearing a seal purporting to be that of . . . any State, . . . or of a . . . department,
officer, or agency thereof, and a signature purporting to be an attestation or
execution” is self-authenticating). The Decision was self-authenticated because it
bore the TWC seal and the hearing officer’s signature. See id.
Wawarosky next contends that the TWC documents denying Wawarosky’s
claim and appeal, the EEOC charge, and the EEOC’s Dismissal and Notice of
Rights were not properly authenticated. Even if Wawarosky is correct, we will not
reverse for an erroneous evidentiary ruling unless the error probably caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1; Interstate
Northborough P’ship, 66 S.W.3d at 220. An error in the admission of evidence
does not meet this standard where other uncontroverted evidence proves the same
facts sought to be proved by the unauthenticated evidence. See Interstate
12
Northborough P’ship, 66 S.W.3d at 220 (error in admitting evidence is generally
harmless if contested evidence is merely cumulative of properly admitted
evidence); Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 532 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (same).
Here, Wawarosky’s deposition testimony reflects that Wawarosky
acknowledged that the four documents were what they purported to be.
Specifically, Wawarosky acknowledged during his deposition that (1) the TWC
documents reflected that the TWC denied his unemployment benefits claim and
appeal, (2) the EEOC charge reflected that he filed the charge based solely on race,
and (3) the EEOC’s Dismissal and Notice of Rights document reflected that the
EEOC issued a Dismissal and Notice of Rights stating that the EEOC was unable
to conclude that the information contained in his charge established any violations.
We thus conclude that these four challenged documents were cumulative of
Wawarosky’s deposition testimony. Accordingly, any error in admitting them was
harmless. See Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 366 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (admitting appellee’s affidavit was harmless
because other summary-judgment evidence included same information); Fairmont
Supply Co., 177 S.W.3d at 532 (any error in admitting evidence was harmless
because it was cumulative).
13
(b) Hearsay
Wawarosky also objected that the two TWC hearing transcripts, the “Appeal
Tribunal Decision,” denying his claim and appeal, and the EEOC charge and
Dismissal and Notice of Rights constitute inadmissible hearsay.
The public records exception to the hearsay rule provides, in relevant part,
that “[r]ecords, reports, statements or data compilations, in any form, of public
offices or agencies setting forth the activities of the office or agency” are not
excluded by the hearsay rule “unless the sources of information or other
circumstances indicate lack of trustworthiness.” TEX. R. EVID. 803(8).
We conclude the TWC hearing transcripts, TWC “Appeal Tribunal
Decision,” TWC document denying Wawarosky’s claim and appeal, EEOC
charge, and the EEOC’s Dismissal and Notice of Rights are admissible because
they fit within this exception. Each of the seven documents is a record “setting
forth the activities of the office or agency”—in this case, the TWC and EEOC.
And nothing about them indicates a lack of trustworthiness. See 1001 McKinney
Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 28 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (“Rule 803(8) creates a presumption of
admissibility, with the burden being placed on the party opposing the admission of
the report to show its untrustworthiness.”). Accordingly, these seven documents
are admissible under the public records exception to the hearsay rule. See TEX. R.
14
EVID. 803(8); 1001 McKinney Ltd., 192 S.W.3d at 27–28 (holding certified letter
from Department of Housing and Urban Development admissible as public record
exception under Rule 803(8) because it was a report “setting forth the activities of
the office or agency” and did not indicate lack of trustworthiness).
We hold that the trial court did not abuse its discretion in overruling
Wawarosky’s objections to FAST’s summary-judgment evidence.
D. Summary Judgment
“We review a trial court’s summary judgment de novo.” Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). “We review the evidence presented
in the motion and response in the light most favorable to the party against whom
the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). When a party has filed both a traditional and a
proper no-evidence summary-judgment motion, we typically first review the trial
court’s summary judgment under the no-evidence standard of Texas Rule of Civil
Procedure 166a(i). Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 375
(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).
15
“To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the non-
movant’s claim on which the nonmovant would have the burden of proof at trial.”
Id. (citing TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied)). “The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
of the elements specified in the motion.” Id.; see also Hahn, 321 S.W.3d at 526.
“‘The trial court must grant the motion unless the nonmovant produces more than a
scintilla of evidence raising a genuine issue of material fact on the challenged
elements.’” Essex Crane Rental, 371 S.W.3d at 376 (quoting Flameout Design &
Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—
Houston [1st Dist.] 1999, no pet.)).
1. Age discrimination
In its summary-judgment motion, and on appeal, FAST argues that
Wawarosky failed to exhaust his administrative remedies with regard to his age
discrimination claim because he did not file a complaint of age discrimination with
the EEOC. Wawarosky contends that summary judgment was not proper on his
age discrimination claim because it grew out of his claim of race discrimination.
16
(a) Applicable Law
“To bring a suit for unlawful employment practices, a plaintiff must first
have filed an administrative complaint with the EEOC or the TCHR ‘not later than
the 180th day after the date the alleged unlawful employment practice occurred.’”
Univ. of Texas v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.—Austin 2009, no
pet.) (citing TEX. LAB. CODE ANN. § 21.202(a) (West 2008)). When filing suit, a
plaintiff “may raise only the specific issue made in the employee’s administrative
complaint and ‘any kind of discrimination like or related to the charge’s
allegations.’” Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 141 (Tex.
App.—Fort Worth 2000, pet. denied) (quoting Fine v. GAF Chem. Corp., 995 F.2d
576, 578 (5th Cir. 1993)).
Because a plaintiff claiming employment discrimination is not required to
“check a certain box or recite a specific incantation to exhaust his or her
administrative remedies before the proper agency,” “the plaintiff’s administrative
charge will be read somewhat broadly, in a fact-specific inquiry into what EEOC
investigations it can reasonably be expected to trigger.” Pacheco v. Mineta, 448
F.3d 783, 792 (5th Cir. 2006). Therefore, claims are limited to those claims that
“could reasonably be expected to grow out of the initial charges of discrimination.”
See Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 913 (5th Cir.
2000).
17
(b) Analysis
Wawarosky’s EEOC charge mentions only race and does not include any
claim of age discrimination. As summary-judgment evidence, FAST offered a
transcript of Wawarosky’s deposition in which he admitted that nothing in the
EEOC charge indicated that he claimed discrimination based on age. Although a
plaintiff is entitled to bring claims that could reasonably be expected to grow out of
his underlying charge of discrimination, the claim is barred if it was a specific form
of discrimination that was not alleged in the underlying charge of discrimination
with the EEOC. See Kretchmer v. Eveden, Inc., 374 Fed. App’x 493, 495 (5th Cir.
2010) (unpublished) (per curiam) (holding appellant had not exhausted his sex
discrimination claim and trial court did not err in dismissing it because appellant’s
EEOC charge contained only factual allegations of claims of religious and age
discrimination). Accordingly, Wawarosky’s age discrimination claim is barred and
the trial court did not err in granting summary judgment on this claim. See id.; ATI
Enters., Inc. v. Din, 413 S.W.3d 247, 253–54 (Tex. App.—Dallas 2013, no pet.)
(appellant failed to exhaust administrative remedies with respect to retaliation
claim where charge contained only allegation of discrimination based on national
origin, despite evidence that appellant orally told EEOC representative about
retaliation claim); Dworschak v. Transocean Offshore Deepwater Drilling, Inc.,
352 S.W.3d 191, 200 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (affirming
18
summary judgment on age-discrimination claim where appellant attached no
evidence in his response to summary-judgment motions to raise fact issue on
question of exhaustion of remedies).
2. Race discrimination
(a) Applicable Law
The TCHRA prohibits an employer from discharging an individual on the
basis of race. TEX. LAB. CODE ANN. § 21.051 (West 2008). Because one of the
purposes of the TCHRA is to execute the policies of Title VII, in appropriate cases,
Texas courts are guided by analogous federal statutes and cases interpreting them
in applying the TCHRA. See Prairie View A & M Univ. v. Chatha, 381 S.W.3d
500, 507 (Tex. 2012); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476
(Tex. 2001).
In analyzing cases brought under the TCHRA without direct evidence of
discriminatory intent, we follow the burden shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824
(1973); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex.
2012); Russo v. Smith Int’l, 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). The plaintiff is first required to present a prima facie case of
discrimination. Garcia, 372 S.W.3d at 634; Russo, 93 S.W.3d at 434; Gold v.
Exxon Corp., 960 S.W.2d 378, 381 (Tex. App.—Houston [14th Dist.] 1998, no
19
pet.). If the plaintiff does so, the burden shifts to the defendant to produce
evidence showing a “‘legitimate, nondiscriminatory reason’ for the adverse
employment actions.” Gold, 960 S.W.2d at 381 (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2747 (1993)). If the defendant
succeeds in carrying its burden, the plaintiff must then prove, by a preponderance
of the evidence, that the defendant’s reasons are merely a pretext for
discrimination. Russo, 93 S.W.3d at 434 (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252–53, 101 S. Ct. 1089, 1093 (1981)).
(b) Analysis
We assume, without deciding, that Wawarosky made a prima facie case of
race discrimination and shifted to FAST the burden of offering a legitimate, non-
discriminatory reason for terminating Wawarosky. FAST adduced the following
summary-judgment evidence to meet this burden:
(1) FAST’s handbook providing for immediate termination if an employee
violated policies prohibiting (1) “possession of firearms, weapons,
explosives, or incendiary or other destructive devices on company property”
or (2) “intimidating, coercive, violent, abusive, or hostile behavior.”
(2) Wicmandy’s and DeLeon’s TWC hearing testimony that Wawarosky took
the bullet out of his pocket in front of them and said that the bullet had
Wicmandy’s name on it.
(3) Barnett’s TWC hearing testimony that Wawarosky took the bullet out of his
pocket and said the bullet had DeLeon’s name on it.
20
(4) Barnett’s and Cook’s TWC hearing testimony to the effect that Barnett
reported the incident to Cook.
(5) Cook’s TWC hearing testimony that she decided to and did terminate
Wawarosky for violating FAST’s policies prohibiting possession of
firearms, weapons, explosives, incendiary, or other destructive devices at
FAST and prohibiting intimidating behavior.
(6) Wawarosky’s Termination Form stating that Wawarosky was terminated
because he “made threats towards employees.”
Thus, FAST adduced summary-judgment evidence of a legitimate non-
discriminatory reason for terminating Wawarosky: Barnett told Cook that
Wawarosky displayed a bullet and said that it had DeLeon’s name on it, and Cook
determined that this violated FAST’s policies and called for immediate
termination.
In response, Wawarosky offered his own affidavit in which he disputed
some details of Barnett’s account of the incident. For example, Wawarosky
averred that when the bullet came up in the afternoon—for the second time that
day—he did not take the bullet out of his pocket in front of Barnett and he did not
say it had DeLeon’s name on it. But Wawarosky conceded that he took the bullet
out of his pocket while talking with Wicmandy and DeLeon and that he told
Wicmandy, albeit jokingly, that the bullet had Wicmandy’s name on it.
Wawarosky also attempts to raise a fact issue by averring that Wicmandy did not
actually feel threatened, and by pointing out that FAST “failed to produce any
21
evidence that a ‘bullet’ by itself constitutes a firearm, weapon, explosive,
incendiary or other destructive device.”
But, “[i]n cases in which an employer discharges an employee based on the
complaint of another employee, the issue is not the truth or falsity of the allegation,
but ‘whether the employer reasonably believed the employee’s allegation and acted
on it in good faith.’” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379
(5th Cir. 2010) (quoting Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th
Cir. 1993)). Here, the evidence showed that Cook had a reasonable belief, based
on Barnett’s report, that Wawarosky violated FAST’s policies. Wawarosky has
presented no evidence to raise a fact issue as to Cook’s good faith belief or her
reliance on it in deciding to terminate Wawarosky. See id. (no fact issue where
appellant presented no evidence “as to why the company’s reliance on the evidence
against him was in bad faith”). Wawarosky’s proof that he did not also take the
bullet out of his pocket in front of Barnett in the afternoon, did not also tell
DeLeon that it had his name on it, and that Wicmandy did not feel threatened fails
to raise a fact issue as to Cook’s good faith belief in and reliance on Barnett’s
report. See id. (appellant’s “assertion of innocence alone does not create a factual
issue as to the falsity of [the employer’s] proffered reason for terminating him”).
Similarly, Wawarosky’s assertion that FAST’s policy prohibiting possession of
“firearms, weapons, explosives, or incendiary or other destructive devices” did not
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prohibit possession of bullets fails to raise a fact issue regarding Cook’s belief that
Wawarosky violated the policy. Accordingly, we conclude that Wawarosky failed
to raise a fact issue as to whether FAST met its burden to demonstrate that it had a
legitimate, non-discriminatory reason for terminating him.
Wawarosky also argues that even if FAST met its burden, summary
judgment was improper because Wawarosky met his burden to adduce evidence
that FAST’s articulated reasons for termination were pretextual. To avoid
summary judgment, Wawarosky had to provide more than a scintilla of evidence
that the true reason FAST fired him was racial discrimination. See Chandler v.
CSC Applied Technologies, LLC, 376 S.W.3d 802, 814 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (“A plaintiff can avoid summary judgment if the
evidence, taken as a whole, creates a fact issue ‘as to whether each of the
employer’s stated reasons was not what actually motivated the employer and
creates a reasonable inference that [race] was a determinative factor in the actions
the plaintiff is now complaining about.’”); Elgaghil, 45 S.W.3d at 140 (to raise fact
issue on pretext element of race-discrimination claim, nonmovant must present
evidence “indicating that the non-discriminatory reason given by the employer is
false or not credible, and that the real reason for the employment action was
unlawful discrimination.”).
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In an effort to raise a fact issue on pretext, Wawarosky adduced evidence
demonstrating that a Hispanic coworker, Chavez, violated FAST’s policies, but
was terminated only after receiving numerous write-ups and suspensions and after
a thorough investigation was completed. The evidence showed that Chavez was
terminated for a “safety violation” after running a scissor lift into Wawarosky
while cursing at Wawarosky. By contrast, Wawarosky points out that he was
terminated immediately after only one policy violation, with no investigation, and
despite his glowing employment record.
We note that Title VII is not intended to protect against “unfair business
decisions,” but against discriminatory decisions. Nieto v. L&H Packing Co., 108
F.3d 621, 624 (5th Cir. 1997) (citation omitted). And, only “ultimate employment
decisions,” such as hiring, granting leave, discharging, promoting, and
compensation, qualify as adverse employment actions for a disparate treatment
action based on race. Washington v. Veneman, 109 Fed. App’x 685, 689 (5th Cir.
2004). Many actions taken by an employer, though unfavorable to an employee,
do not constitute a basis for discrimination because they do not qualify as an
ultimate employment decision. See Messer v. Meno, 130 F.3d 130, 140 (5th Cir.
1997) (close monitoring of employee’s conversations, criticism of an employee’s
work and conduct, downsizing employee’s staff as part of agency-wide reduction,
and refusing to consider employee’s input in business decisions do not constitute
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ultimate employment decisions); King v. Louisiana, 294 Fed. App’x 77, 85–86 (5th
Cir. 2008) (citing Burlington Northern v. White, 548 U.S. 53, 68, 126 S. Ct. 2405,
2415 (2006)), cert. denied, 129 S. Ct. 2053 (2009) (“Even taken in a light most
favorable to [plaintiff], allegations of unpleasant work meetings, verbal
reprimands, improper work requests, and unfair treatment do not constitute
actionable adverse employment actions as discrimination or retaliation.”).
Similarly, Title VII does not cover “every decision made by employers that
arguably might have some tangential effect upon those ultimate decisions.” Banks
v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). And
allegations of unfair treatment do not constitute actionable adverse employment
actions. King, 294 Fed. App’x at 85 (citing Breaux v. City of Garland, 205 F.3d
150, 158 (5th Cir. 2000)).
Because Wawarosky was an at-will employee, FAST was not required to
conduct an investigation regarding his violation of policy before terminating him.
See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003) (holding
that an at-will employer need not conduct investigation before terminating
employee and employer may terminate for any reason, as long as it was not illegal,
or no reason at all). Although the evidence shows that Chavez’s policy violations
were investigated before termination, while Wawarosky’s were not, unfair
treatment regarding an investigation does not constitute a basis for discrimination
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because it is not an ultimate employment decision. See King, 294 Fed. App’x at
85. Therefore, Wawarosky failed to raise a genuine issue of material fact by
contending that he, unlike Chavez, did not have the benefit of an investigation. See
Canchola, 121 S.W.3d at 740 (“[I]t is not sufficient for [the employee] to present
evidence that the [employer’s] investigation was imperfect, incomplete, or arrived
at a possibly incorrect conclusion”).
In sum, we hold that Wawarosky’s evidence fails to raise a fact issue
regarding pretext. Accordingly, we hold that the trial court did not err in granting
FAST’s motion for summary judgment.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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