Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Cause No. 12-DCV-200051
consists of Justices Busby, Donovan, and Wise.
Brett Busby Justice.
Leon Kaplan sued appellee, the City of Sugar Land, Texas, for
age discrimination under the Texas Commission on Human Rights
Act (TCHRA). Tex. Lab. Code Ann. § 21.051 (West 2015).
The City moved for summary judgment on traditional and
no-evidence grounds. The trial court granted the motion
without specifying the grounds. In a single issue, Kaplan
argues that the trial court erred in granting summary
judgment. We affirm.
began working for the City in 2005 and served as the
administrative manager of the City's Parks and Recreation
Department. His responsibilities included: managing the
administrative function of the department; supervising the
front office operations and secretarial staff; preparing,
monitoring, and managing the department's budget; and
developing and managing certain special projects and programs
of the department. These special projects and programs
included the department's cultural arts program and the
Sugar Land Legacy Foundation, a nonprofit corporation
established to support the City's parks and civic
facilities. For the cultural arts program, Kaplan was
responsible for managing payments for artwork purchased by
the City and for maintaining records and handling deposits
and refunds relating to public use of city property. As the
City's liaison for the Sugar Land Legacy Foundation,
Kaplan was responsible for preparing the Foundation's
budget and obtaining a group photograph of the
Foundation's board of directors.
City offered evidence that Kaplan's work performance
declined quickly during the summer of 2011, as Kaplan
repeatedly failed to complete tasks in a timely and
professional manner. The City also offered evidence of
insubordinate conduct by Kaplan: sending a rude,
unprofessional email to a co-worker; and distributing a
memorandum throughout the department that challenged his
supervisors' authority. Although Kaplan received repeated
counseling from his supervisors, the City concluded that his
performance did not improve.
these events, the City removed Kaplan's responsibilities
regarding the Sugar Land Legacy Foundation and cultural arts
program, and it eventually decided to terminate Kaplan. Parks
and Recreation Department Director James Browne, Kaplan's
direct supervisor Christopher Mobley, and human resources
representative Shelly Freeman met with Kaplan and informed
him that the City had decided it was in its best interest to
discharge him. They cited his decline in work performance
over the last several months, his repeated failure to perform
his assignments, and his refusal to improve his conduct.
Rather than firing Kaplan, the City gave him the option to
resign or retire. In response, Kaplan declined the
opportunity to resign or retire and accused the City of
discriminating against him because of his age. The City
terminated Kaplan's employment.
then sued the City, alleging it had fired him because of his
age in violation of the TCHRA. The City filed a traditional and
no-evidence motion for summary judgment on Kaplan's
age-discrimination claim. The trial court granted the
City's motion and signed a final judgment dismissing
Kaplan's suit with prejudice. This appeal followed.
Standard of review
review summary judgments de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When the
trial court grants the judgment without specifying the
grounds, we affirm the summary judgment if any of the grounds
presented is meritorious. Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001). Here, the City moved for
summary judgment on both traditional and no-evidence grounds;
thus, we apply the standard of review appropriate for each
type of summary judgment, taking as true all evidence
favorable to the nonmovant, and indulging every reasonable
inference and resolving all doubts in the nonmovant's
favor. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d
672, 675 (Tex. App.-Houston [14th Dist.] 2007, pet. denied).
movant for traditional summary judgment has the burden of
showing that there is no genuine issue of material fact and
it is entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c). To be entitled to traditional summary judgment, a
defendant must conclusively negate at least one essential
element of each of the plaintiff's causes of action or
conclusively establish each element of an affirmative
defense. Dias, 214 S.W.3d at 676. Once the defendant
establishes its right to summary judgment as a matter of law,
the burden shifts to the plaintiff to present evidence
raising a genuine issue of material fact. Id.
movant may obtain a no-evidence summary judgment if there is
no evidence of one or more essential elements of a claim on
which the nonmovant has the burden of proof. Tex.R.Civ.P.
166a(i). We sustain a no-evidence summary judgment when (a)
there is a complete absence of a vital fact; (b) the court is
barred by rules of law or of evidence from giving weight to
the only evidence offered to prove a vital fact; (c) the
evidence offered to prove a vital fact is no more than a mere
scintilla; or (d) the evidence conclusively establishes the
opposite of the vital fact. Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the
nonmovant produces more than a scintilla of evidence to raise
a genuine issue of material fact, the trial court cannot
grant a no-evidence summary judgment. Tex.R.Civ.P. 166a(i).
More than a scintilla of evidence exists when the evidence
rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions as to the existence of
the vital fact. Dworschak v. Transocean Offshore
Deepwater Drilling, Inc., 352 S.W.3d 191, 196 (Tex.
App.-Houston [14th Dist.] 2011, no pet.).
the TCHRA, "[a]n employer commits an unlawful employment
practice if because of . . . age the employer . . .
discharges an individual, or discriminates in any other
manner against an individual in connection with compensation
or the terms, conditions, or privileges of employment."
Tex. Lab. Code. Ann. § 21.051(1). By adopting the TCHRA,
the Legislature "intended to correlate state law with
federal law in employment discrimination cases."
AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.
2008) (quoting Wal-Mart Stores, Inc. v. Canchola,
121 S.W.3d 735, 739 (Tex. 2003)); see Tex. Lab. Code
Ann. § 21.001(1) (West 2015). We therefore look to
federal law to interpret the TCHRA's provisions.
AutoZone, Inc., 272 S.W.3d at 592.
courts "follow the settled approach of the U.S. Supreme
Court in recognizing two alternative methods of proof"
in cases alleging disparate treatment based on
Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 634 (Tex. 2012). One method is by direct evidence
of the City's actions or words. Id. The second
method, which is relevant here, involves circumstantial
evidence of discrimination. Rosenberg v. KIPP, Inc.,
458 S.W.3d 171, 175 (Tex. App.- Houston [14th Dist.] 2015,
evaluating circumstantial evidence, Texas courts use the
burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802- 05 (1973).
See Garcia, 372 S.W.3d at 634; Baker v. Gregg
County, 33 S.W.3d 72, 80 (Tex. App.-Texarkana 2000, pet.
dism'd). A terminated employee proceeding under this
framework must first make a prima facie case of age
discrimination, showing that he was (1) a member of the class
protected by the TCHRA (i.e. at least forty years old), (2)
qualified for his employment position, (3) terminated by the
employer, and (4) replaced by someone younger or otherwise
discharged because of age. Garcia, 372 S.W.3d at
632; Hernandez v. Grey Wolf Drilling, L.P., 350
S.W.3d 281, 284 (Tex. App.-San Antonio 2011, no pet.). If a
plaintiff meets the "minimal" initial burden of
establishing a prima facie case of discrimination, he is
entitled to a presumption of discrimination. Garcia,
372 S.W.3d at 634. The burden then shifts to the defendant to
show that the plaintiff was terminated for a legitimate,
nondiscriminatory purpose. Gonzalez v. Champion Tech.,
Inc., 384 S.W.3d 462, 466 (Tex. App.-Houston [14th
Dist.] 2012, no pet.) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)). If
the defendant articulates a legitimate, nondiscriminatory
reason for its decision, the burden shifts back to the
plaintiff to show either that the stated reason was a pretext
for discrimination or that even if the reason was true,
discrimination was also a motivating factor for the adverse
employment action. Navy v. Coll. of the Mainland,
407 S.W.3d 893, 899 (Tex. App.-Houston [14th Dist.] 2013, no
summary judgment burdens described above must also be taken
into account. "Texas courts have reconciled [the
McDonnell-Douglas burden-shifting] framework with
our summary judgment procedure by requiring an employer
moving for traditional summary judgment to establish as a
matter of law a legitimate, nondiscriminatory reason for its
adverse employment action, at which point the burden shifts
to the employee to raise a fact issue regarding whether the
employer's reason was a pretext for discrimination."
Haver v. Coats, 491 S.W.3d 877, 883 n.3 (Tex.
App.-Houston [14th Dist.] 2016, no pet.); see M.D.
Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex.
2000). In addition, an employer may obtain a no-evidence
summary judgment if, for example, there is no evidence of one
or more elements of the employee's prima facie case, or
no evidence that the employer's reason was a pretext for
discrimination. E.g., Chandler v. CSC Applied
Tech., LLC, 376 S.W.3d 802, 822 (Tex. App.-Houston [1st
Dist.] 2012, pet. denied); McCoy v. Tex. Instruments,
Inc., 183 S.W.3d 548, 555-56 (Tex. App.- Dallas 2006, no
The trial court properly granted summary judgment for the
Kaplan established a prima facie case of ...