SUSETTE M. MCNEEL, Appellant
CITATION OIL & GAS CORPORATION, Appellee
Appeal from the 215th District Court Harris County, Texas
Trial Court Cause No. 2014-00464
consists of Chief Justice Frost and Justices Brown and Jewell
sex discrimination and retaliation suit under the Texas
Commission on Human Rights Act ("TCHRA"), appellant
Susette McNeel claims her former employer terminated her
employment because she is a woman and because she engaged in
protected conduct by reporting allegedly discriminatory
actions by her direct supervisor. The employer moved for
summary judgment, which the trial court granted. We affirm
the trial court's judgment, concluding that McNeel
presented no evidence to support either her sex
discrimination or retaliation claims.
is a certified public accountant who worked for appellee
Citation Oil and Gas Corporation in the company's tax
department, from November 2005 until March 2012. McNeel began
as a senior tax accountant and was promoted to supervisor.
She was responsible for ensuring that Citation complied with
applicable state and local tax law and secured appropriate
tax credits. She consistently received favorable performance
tax department supervisor was Tom Patrick. McNeel twice
complained to Citation about Patrick. During her first report
to Patrick's supervisor, Christopher Phelps, in 2011,
McNeel complained that Patrick made negative comments about
female employees' weight (though not McNeel's
weight), yelled, slammed his phone, and "coughed
second complaint stemmed from Patrick's alleged comment
that he would "kill himself" if employees made
errors in their work. In response to his comment, several
employees allegedly expressed concern to McNeel, who then
reported Patrick's comment to Nancy Anglin,
Citation's vice president of human resources, in January
McNeel's tenure at the company, Citation distributed a
Corporate Compliance Policy Statement and Code of Conduct
("Code of Conduct"), which, among other things,
prohibited conflicts of interest and required employees to
disclose any business or financial interest or relationship
that might interfere with the employee's ability to
pursue Citation's best interests. Citation also
distributed to employees an employee handbook, which, among
other things, prohibited misusing Citation's confidential
information. McNeel received the Code of Conduct and the
employee handbook. Pursuant to the Code of Conduct, if
employees had questions, they were to ask Citation's
Chief Compliance Officer to explain or clarify any guideline.
employed by Citation, McNeel formed an oil and gas tax
consulting business, S.M. McNeel, CPA, PLLC, which operated
under the trade name Enhanced Operating Recovery
("EOR"). EOR had one client, C&J Exploration,
an oil and gas company that operated in Wagoner County,
Oklahoma. More broadly, however, EOR marketed itself as a
company that "specialize[d] in reducing Sales, Use and
Severance Tax liability for oil and gas producers,
" which would include Citation and Citation's
competitors. (Emphasis added). McNeel did not disclose her
side business to Citation. EOR's website portrayed as
work performed by EOR at least one "case study"
that McNeel admits was a tax-refund project that McNeel had
worked on while employed at Citation.
March 2012, Citation's revenue supervisor was reviewing
other companies' tax applications as examples of how to
complete the application. During her review, the revenue
supervisor discovered that McNeel had signed a tax
application on behalf of C&J Exploration, and the revenue
supervisor notified her supervisor, who then notified
Patrick. Patrick testified that he visited the revenue
supervisor's office, where he viewed the tax application
and EOR's website, which included the non-attributed
"case study" of Citation's prior tax project.
Roughly one week later, Citation fired McNeel for violating
the company's Code of Conduct. Specifically, as set forth
in Citation's response to McNeel's interrogatories,
Patrick and Phelps made the decision to terminate
McNeel's employment because they concluded McNeel
"engaged in a business marketed to [Citation's]
competitors, failed to disclose this conflict of interest,
misappropriated [Citation's] business information, and
exhibited poor judgment in connection with these
activities." In a meeting with Patrick and Anglin,
Patrick told McNeel she was being terminated for having a
business that constituted a conflict of interest.
sued Citation under the TCHRA, claiming age discrimination,
sex discrimination, and retaliation. McNeel alleged that, while
she was employed at Citation, Patrick "displayed abusive
behavior toward her and other women" and "made rude
and sexist comments to them and about them to [McNeel] and to
other employees." McNeel claimed she was treated less
favorably in the terms and conditions of her employment
because of her gender and her age. She also alleged that
Citation terminated her employment in retaliation for
McNeel's complaints about Patrick's "unlawful
and discriminatory conduct directed against her and other
females." McNeel subsequently abandoned her age
moved for summary judgment on McNeel's claims, asserting,
among other things, that (1) as to McNeel's sex
discrimination claim, there is no evidence McNeel was treated
less favorably than similarly situated men; (2) as to
McNeel's retaliation claim, there is no evidence that
McNeel engaged in a protected activity or McNeel did not
engage in a protected activity as a matter of law; (3) as to
McNeel's retaliation claim, there is no causal connection
between McNeel's complaints about Patrick's conduct
and Citation's decision to terminate McNeel's
employment; and (4) as to both of McNeel's claims, there
is no evidence that Citation's reason for terminating
McNeel's employment was pretextual. The trial court
granted Citation's motion without specifying the grounds
on which it ruled.
now appeals the summary judgment, claiming, in a single
issue, that genuine issues of material fact precluded summary
judgment on both claims.
review a trial court's grant of summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005). In reviewing the trial court's summary
judgment, "we apply the familiar 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 any doubts in the
nonmovant's favor." Dias v. Goodman Mfg. Co.,
L.P., 214 S.W.3d 672, 675-76 (Tex. App.-Houston [14th
Dist.] 2007, pet. denied). In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out
summary judgment evidence raising a genuine issue of fact as
to the essential elements attacked in the no-evidence motion.
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d
193, 206-08 (Tex. 2002). In our de novo review of a trial
court's summary judgment, we consider all the evidence in
the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007).
when, as here, the trial court grants a motion for summary
judgment without specifying the grounds, we will affirm the
trial court's judgment if any of the independent grounds
supporting the motion is meritorious. FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex.
sued Citation under the TCHRA. See Tex. Lab. Code
§§ 21.001 et seq. The TCHRA was enacted to
"provide for the execution of the policies of Title VII
of the Civil Rights Act of 1964 and its subsequent
amendments." Id. § 21.001(1). Title VII is
a federal law that prohibits employers from discriminating
against employees on the basis of sex, race, color, national
origin, and religion. See 42 U.S.C. §§
2000e et seq. Although Texas courts enforce the
plain meaning of the TCHRA and binding Texas precedent as to
this statute's interpretation, when there is no binding
precedent, Texas courts also look to federal law and federal
cases for guidance in situations like today's case, in
which the language of the TCHRA and the analogous federal
statute contain the same or substantially similar language.
See Tex. Lab. Code § 21.001; Prairie View
A&M Univ. v. Chatha, 381 S.W.3d 500, 505 (Tex.
2012); Okpere v. Nat'l Oilwell Varco, L.P., No.
14-15-00694-CV, 2017 WL 1086340, at *5 n.6 (Tex. App.-Houston
[14th Dist.] Mar. 20, 2017, pet. filed).
discussed in more detail below, the TCHRA prohibits employers
from discharging an employee because of sex or from
discriminating in any other manner against an employee in
connection with compensation or the terms, conditions, or
privileges of employment. Tex. Lab. Code § 21.051(1).
The TCHRA also prohibits employers from retaliating against
an employee who engages in certain protected activities.
Id. § 21.055.
are two alternative methods by which a plaintiff can
establish discrimination or retaliation under the TCHRA.
See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,
476-77 (Tex. 2001). An employee can offer direct evidence of
the employer's discriminatory actions or words.
Id. at 476. "'Direct evidence of
discrimination is evidence that, if believed, proves the fact
of discriminatory animus without inference or
presumption.'" Coll. of the Mainland v.
Glover, 436 S.W.3d 384, 392 (Tex. App.-Houston [14th
Dist.] 2014, pet. denied) (quoting Jespersen v.
Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex.
App.-Dallas 2012, no pet.)).
because direct evidence of discrimination or retaliation is a
"rarity" in employment cases, courts allow claims
to proceed with indirect or circumstantial evidence of
discrimination or retaliation. See Russo v. Smith
Int'l, Inc., 93 S.W.3d 428, 434 (Tex. App.-Houston
[14th Dist.] 2002, pet. denied). Under this second method,
Texas courts follow the burden-shifting mechanism set forth
by the United States Supreme Court in McDonnell
Douglas. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973); Glover, 436 S.W.3d at
the McDonnell Douglas framework, as applied to the
TCHRA, the plaintiff is entitled to a presumption of
discrimination if the plaintiff meets the "minimal"
initial burden of establishing a prima facie case of
discrimination. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 634 (Tex. 2012).The prima facie
case raises an inference of discrimination because courts
presume these acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.
See id. Once a plaintiff has established a prima
facie case of discrimination, the burden shifts to the
defendant to produce evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.
See M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam);
Okpere, 2017 WL 1086340, at *2. If an employer
moving for summary judgment proves as a matter of law a
legitimate, nondiscriminatory reason for the adverse
employment action, the burden then shifts to the employee to
raise a genuine fact issue as to whether the employer's
reason was a pretext for discrimination. See M.D.
Anderson Hosp. & Tumor Inst., 28 S.W.3d at 24;
Okpere, 2017 WL 1086340, at *2.
McNeel challenges the trial court's summary judgment in a
single issue, we consider each of her two claims in turn.
Sex discrimination claim
first claim under the TCHRA is that Citation terminated her
employment because she is a woman. See Tex. Lab.
Code § 21.051(1).
is no direct evidence that Citation terminated McNeel's
employment on the basis of her sex. See Glover, 436
S.W.3d at 393. In the absence of direct evidence of
discrimination, we apply the McDonnell Douglas
framework. See Okpere, 2017 WL 1086340, at *2. For a
claim of disparate treatment under the TCHRA, which is
McNeel's theory, she can meet her prima facie burden by
showing that she: (1) is a member of a protected class, (2)
was qualified for her position, (3) was subject to an adverse
employment action, and (4) was treated less favorably than
similarly situated persons not in the protected class.
See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000); Navy v. Coll. of the Mainland,
407 S.W.3d 893, 899 (Tex. App.-Houston [14th Dist.] 2013, no
pet.). There is no dispute that McNeel was qualified for her
job and that, as a female, she is a member of a protected
class. Furthermore, there is no dispute that McNeel suffered
an adverse employment decision when she was terminated.
Citation moved for summary judgment on the ground that there
is no evidence McNeel was treated less favorably than
similarly situated men. Thus, we address whether the summary
judgment evidence raised a genuine fact issue on this element
of McNeel's prima facie case.
summary judgment response, McNeel identified one male
employee, Curtis Carver, whom she alleged was situated
similarly to her, but not terminated even though he engaged
in the same prohibited conduct as McNeel. The Supreme Court
of Texas has concluded that "[e]mployees are similarly
situated if their circumstances are comparable in all
material respects." Ysleta Indep. Sch. Dist. v.
Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam);
Tooker v. Alief Indep. Sch. Dist., No.
14-15-00124-CV, 2017 WL 61833, at *7 (Tex. App.-Houston [14th
Dist.] Jan. 4, 2017, no pet.). The United States Court of
Appeals for the Fifth Circuit has articulated a similar
standard, saying that employees are situated similarly if
their circumstances are "nearly identical." See
Perez v. Tex. Dep't of Crim. Justice, Institutional
Div., 395 F.3d 206, 213 (5th Cir. 2004). Employees may
be considered similarly situated "if their circumstances
are comparable in all material respects, including similar
standards, supervisors[, ] and conduct." See
Rosenberg v. KIPP, Inc., 458 S.W.3d 171, 177 (Tex.
App.-Houston [14th Dist.] 2015, pet. denied) (internal
quotation omitted). Further, to establish that employees are
"comparable in all material respects, " a plaintiff
also must show "that there were no differentiating or
mitigating circumstances as would distinguish the
employer's treatment of them." Donaldson v. Tex.
Dep't of Aging & Disability Servs., 495
S.W.3d 421, 435 (Tex. App.-Houston [1st Dist.] 2016, pet.
denied) (internal quotation omitted).
discrimination based on disparate discipline, the disciplined
and undisciplined employees' misconduct must be of
"comparable seriousness." Ysleta, 177
S.W.3d at 917.
states that Carver had a side business buying and selling oil
and gas leases. McNeel alleges that Patrick told her that
Carver worked on this private business during working hours
and that Carver would ask Patrick for Patrick's opinion
on certain aspects of the leases. Carver did not receive
positive performance reviews, and Carver resigned in 2011
because of, according to Citation, "performance related
contends that she and Carver, who was Citation's
controller in the accounting department, both were subject to
the same Code of Conduct and both allegedly had a "side
business" that, given Citation's industry position,
would constitute a conflict of interest. These circumstances,
she argues, make the two employees similarly situated, and so
Citation's treatment of Carver-"allow[ing]" him
to resign instead of terminating him for a conflict of
interest-raises a fact issue of disparate discipline.
responds that Carver is not similarly situated to McNeel
because he obtained approval from Citation before investing
in oil and gas leases, the decision to approve Carver's
investment activity was made by a different person than the
decision-makers involved in McNeel's termination, and
Carver was assigned to a different supervisor than
McNeel's supervisor. Citation also argues that Carver is
not a permissible comparator because Carver's conduct and
McNeel's conduct were not of "comparable
not decide if McNeel raised a fact issue regarding whether
she and Carver were similarly situated employees or whether
their respective conduct was of comparable seriousness.
See Winters v. Chubb & Son, Inc., 132 S.W.3d
568, 576 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
Assuming without deciding that McNeel established a prima
facie case that her termination was an instance that amounted
to disparate discipline, the burden then shifted to Citation
to articulate a legitimate, nondiscriminatory reason for her
termination. See Dias, 214 S.W.3d at 676. Citation
articulated a nondiscriminatory reason, and McNeel did not
raise a genuine issue of material fact regarding pretext for
the following reasons.
motion for summary judgment, Citation argued and attached
evidence showing legitimate, nondiscriminatory reasons for
its termination decision, i.e., that McNeel was terminated
for "multiple violations of company policy, "
specifically including operating a business that conflicted
with her position at Citation and misappropriating company
work product and confidential information for use in the
other business. This showing satisfies Citation's
burden of producing a nondiscriminatory reason for its
decision. See Winters, 132 S.W.3d at 576.
Citation's burden is merely one of production, not
persuasion. Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 143 (2000); Russo, 93 S.W.3d at 437-38.
argues that Citation's stated reason for her termination
is pretext for discrimination. To raise a fact issue on the
pretext element of a discrimination or retaliation claim, the
employee must present evidence "indicating that the
nondiscriminatory reason given by the employer is false or
not credible, and that the real reason for the employment
action was unlawful discrimination." Chandler v. CSC
Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex.
App.-Houston [1st Dist.] 2012, pet. denied) (internal
quotation omitted). "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 the employer acted with the
intent to discriminate or retaliate. Id.; see
also Little v. Tex. Dep't of Crim. Justice, 177
S.W.3d 624, 632 (Tex. App.-Houston [1st Dist.] 2005, pet.
denied) ("[T]he United States Supreme Court has made it
clear that it is not sufficient merely to show that the
employer's reasons are false or not credible; the
plaintiff must prove that the employer discriminated
intentionally."). "An employee's subjective
belief that his employer has given a false reason for the
employment decision is not competent summary judgment
evidence." Chandler, 376 S.W.3d at 814.
aside McNeel's subjective beliefs, there is less than a
scintilla of evidence that McNeel's sex was the reason
for her termination or that her side business-including the
information on EOR's website taken from her employment at
Citation-was not the reason for her termination. She admits
that she created a business for which she performed the same
services she provided to Citation, and that the
business's website included "case studies"
that, in fact, were projects McNeel had worked on while
employed at Citation. She contends, though, that her actions did
not violate the Code of Conduct or the employee handbook.
This argument is insufficient to create a fact issue as to
whether Citation's stated reason-McNeel's purported
violation (or violations) of the Code of Conduct-was the real
reason Citation terminated her employment or merely pretext
for discrimination. See, e.g., Wawarosky v. Fast
Grp. Houston Inc., No. 01-13-00466-CV, 2015 WL 730819,
at *8 (Tex. App.-Houston [1st Dist.] Feb. 17, 2015, no pet.)
(mem. op.) (employee's assertion that his conduct did not
violate company policy "fail[ed] to raise a fact issue
regarding [supervisor's] belief that [employee] violated
the policy"); see also Nash v. Blood & Tissue
Ctr. of Cent. Tex., No. 03-03-00763-CV, 2004 WL 2900483,
at *6 (Tex. App.-Austin Dec. 16, 2004, no pet.) (mem. op.)
("Nash does not deny that he conducted an unauthorized
background check on Benites; he only asserts that such
conduct did not constitute a violation of [the
employer's] policy. His claim does not provide a
scintilla of evidence to overcome [the employer's]
legitimate reasons for Nash's termination.").
McNeel's subjective interpretation of the rules, or her
disagreement over whether she violated them, is not
sufficient to create a fact issue that Citation's stated
reason was pretextual.
we find unavailing McNeel's contentions that she could
not have been terminated unless and until Citation ultimately
"determined" she had violated the Code of Conduct,
and that there is a fact question as to whether Citation
actually made such a determination. Evidence of an imperfect
or incomplete investigation is not sufficient to raise a fact
issue regarding pretext. See, e.g., Dotson v.
TPC Grp., Inc., No. 01-14-00233-CV, 2015 WL 1135890, at
*7 (Tex. App.-Houston [1st Dist.] Mar. 12, 2015, no pet.)
(mem. op.) (employee's complaint that he was not afforded
the opportunity to explain his actions failed to raise a fact
issue as to employer's good faith belief of misconduct);
see also Chandler, 376 S.W.3d at 818 ("[T]he
ultimate inquiry is whether [the employer] had a good faith
belief that Chandler violated the workplace rules.").
conclude that McNeel did not offer more than a scintilla of
probative evidence that Citation's stated reason for her
termination was pretext for discrimination. See Exxon
Mobil Corp. v. Hines, 252 S.W.3d 496, 510 (Tex.
App.-Houston [14th Dist.] 2008, pet. denied); Nash,
2004 WL 2900483, at *6; see also Jackson v. Cal-Western
Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010)
(employee's "assertion of innocence alone does not
create a factual issue as to the falsity of [the
employer's] proffered reason for terminating him").
Accordingly, the trial court ...