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Lopez v. Exxon Mobil Development Co.

Court of Appeals of Texas, Fourteenth District

September 12, 2017

DAVID A. LOPEZ, Appellant

         On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2015-28744

          Panel consists of Justices Boyce, Donovan, and Jewell.


          Kevin Jewell, Justice

         In this age discrimination and retaliation suit under the Texas Commission on Human Rights Act ("TCHRA"), appellant David Lopez claims his former employer terminated his employment because of his age and because he engaged in protected conduct by reporting discrimination. The trial court granted summary judgment in the employer's favor. Lopez argues on appeal that the summary judgment was improper as to both claims. He also argues that some of the employer's evidence was not timely authenticated and should not be considered.

         Assuming Lopez met his prima facie burden of proof as to his age discrimination claim, Lopez's evidence does not raise a genuine issue of material fact that the employer's stated nondiscriminatory reason for the termination was pretextual or that age discrimination was a motivating factor in the decision. As to the retaliation claim, and again assuming Lopez met his prima facie burden of proof, his evidence does not raise a genuine issue of material fact that but for his complaint about perceived discrimination, the employer would not have terminated him when it did. Accordingly, we affirm the trial court's summary judgment.


         Lopez was employed by Exxon Mobil Development Company from July 2002 to April 2014.[1] In July 2002, Lopez was over forty years of age. He was fifty-six years of age when Exxon terminated his employment on April 15, 2014. During his employment, Lopez worked at various projects and locations throughout the world primarily as a "business lead, " which is a managerial position. Lopez also had experience as a senior business manager, business manager, and project controls manager.

         Lopez's claims at issue have their genesis in certain job assignments and his supervisors' responses to his complaints about those assignments. Specifically, in July 2012, Exxon relocated Lopez to Canada to work as "Business Services Lead for Emerging Projects." Lopez complained to Exxon's human resources department about this assignment. Lopez contends that there were no emerging projects on which to work. Additionally, Lopez complained that he did not receive a "housing waiver" in connection with the assignment, which required his family to move from Texas to Calgary. According to Exxon, an expatriate employee may elect to retain a principal residence in his home country and waive a housing spendable deduction, which is an amount deducted from the employee's paycheck. In order to qualify for a waiver, the employee's principal residence must be located within fifty miles of his previous home country work location. Exxon contends that Lopez falsely represented that his principal residence was within fifty miles of his previous home country work location, when in fact it was over 175 miles away. Therefore, Exxon rejected Lopez's request for the waiver. Lopez believed he was entitled to the waiver under Exxon policy.

         In September 2012, Lopez spoke with one of his senior supervisors, Don Moe, about his Canadian job assignment and Lopez's previous complaints to Exxon's human resources department, which included complaints about the housing waiver issue. In this meeting, Lopez contends, Moe engaged in "provocative, intimidating, and discriminatory verbal communications, " including "unlawful ageist remarks and complaints." According to Lopez, Moe stated that "the higher-ups" were "very upset that an older guy like [Lopez] was complaining about stuff; that [Lopez] should know better, that [Lopez is] a senior guy; that maybe younger guys can get away with complaining, but as far as [Moe] knew [Lopez] was on nobody's fast track." Lopez also alleges that Moe said that "older guys like [Lopez] should just shut up, and . . . did not fit the mold." Lopez did not report Moe's comments to human resources, or to any of his superiors, at that time.

         Approximately six months later, in March 2013, Lopez approached his functional supervisor, Irfan Khan, and for the first time reported Moe's age-related comments. Lopez complained to Khan of "discrimination relating to mobilization, 'Moe's verbal discrimination, ' and . . . other issues in connection with his transfer to" Canada. Lopez was upset that Exxon denied the housing waiver. Lopez believed his Canadian work assignment was discrimination and the company was trying to "get him to fail." According to Lopez, Khan promised to look into Lopez's complaints.[2]

         Another year passed and a manager on a different project asked Lopez to work for him. That project was slated to start in March or April 2014. In early April 2014, before moving to the new project, Lopez asked Khan about the status of his investigation into Lopez's March 2013 discrimination complaints. As related by Lopez, Khan said that he had spoken with Oswald Machado and Dave Kudlak, two of Lopez's senior managers, and that Machado and Kudlak were "annoyed about [Lopez's] persistence about the complaints" and "specifically stated to Khan that [Lopez] was 'old and stubborn.'"

         Exxon terminated Lopez's employment on April 15, 2014. Exxon stated that it terminated Lopez due to consistently low performance rankings. The undisputed evidence indicates that, from 2009 to 2014, Lopez was ranked below at least 87% of his peers. Lopez admitted in his deposition that, "[a]s far as [he] [knew], [he] was always at the bottom" of the annual employee ranking, "since as far as [he] can remember."

         Additionally, in August 2013, Exxon stated in Lopez's annual evaluation that Lopez had failed to develop or establish an estimating organization, which is a personnel staffing task. Lopez disputes that he was ever assigned to this task. As a result of Lopez's unsatisfactory evaluation, and his overall "relative performance deficiencies, " Exxon put Lopez on a Personal Improvement Plan, or "PIP, " which was to run from October 21, 2013, to April 15, 2014. In a letter sent to Lopez, Exxon set forth performance objectives for the PIP and identified minimum expectations required for each area for improvement. According to the record, the objective of a PIP is to provide an employee who is not meeting performance expectations an opportunity to improve both his absolute and relative performance. Successful completion of a PIP requires the employee to not only accomplish the objectives set forth in the PIP document, but to also improve performance such that his relative ranking is likely to improve in the next ranking cycle. Khan testified that, while Lopez met the written objectives set forth in the PIP, his performance had not improved enough to increase his relative ranking.

         Khan, Machado, and Kudlak all participated in the termination decision. Kudlak recommended Lopez's termination to John Plugge, who made the ultimate decision. Moe left Exxon's employ in November 2012 and was not involved in the termination decision.

         Lopez sued Exxon, claiming age discrimination and retaliation in violation of the TCHRA.[3] Lopez exhausted his administrative remedies as to Exxon's decision to terminate his employment, which is the only adverse employment action at issue in this appeal.[4]

         Exxon filed a traditional motion for summary judgment on Lopez's age discrimination and retaliation claims. As to the age discrimination claim, Exxon conceded that Lopez could meet his prima facie burden, but argued that no genuine issue of material fact exists as to whether Exxon's stated reason for Lopez's termination was pretext for discrimination or whether Exxon's reason, even if true, was only one reason and age discrimination was another motivating factor. As to the retaliation claim, Exxon argued that Lopez could not establish a prima facie case of retaliation, or assuming Lopez could meet his prima facie burden, his claim failed nonetheless because there is no evidence that Lopez's protected conduct was the "but-for" cause of Exxon's decision to terminate his employment. After Lopez filed his response with accompanying evidence, and Exxon filed its reply, the trial court granted Exxon's motion without specifying the grounds on which it ruled.

         Lopez now appeals the summary judgment as to the TCHRA claims, contending that: (1) Exxon's documentary evidence should not be considered on appeal because of Exxon's failure to timely authenticate the evidence; (2) a genuine issue of material fact exists as to whether Exxon's stated reason for termination was a pretext for discrimination or that discrimination was a motivating factor in the decision; and (3) a genuine issue of material fact exists as to each of the essential elements of Lopez's retaliation claim.

         Standard of Review

         We review a trial court's grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We accept as true all evidence favorable to the nonmovant, 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); see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (in de novo review of summary judgment, court considers 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).

         The party moving for traditional summary judgment has the burden to show that no genuine and material fact issue exists and that 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 plaintiffs causes of action or conclusively establish each element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 899 (Tex. App.-Houston [14th Dist] 2016, no pet.). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Haven Chapel, 496 S.W.3d at 899. The evidence raises a genuine issue of material 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, 757 (Tex. 2007) (per curiam).

         Finally, 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 are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).

         Statutory Framework

         Lopez sued Exxon under the TCHRA. See Tex. Lab. Code §§21.001 et seq. The TCHRA was enacted to, inter alia, "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.[5] 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 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., __ S.W.3d __, 2017 WL 1086340, at *5 n.6 (Tex. App.-Houston [14th Dist] 2017, pet. denied).

         As discussed in more detail below, the TCHRA prohibits employers from, among other things, discharging an employee because of age. Tex. Lab. Code §21.051. The TCHRA also prohibits employers from retaliating against an employee who engages in certain protected activities. Id. § 21.055.

         There are two alternative methods by which a plaintiff can establish discrimination or retaliation under the TCHRA. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012); Quantum Chem., 47 S.W.3d at 476-77. First, an employee can offer direct evidence of the employer's discriminatory actions or words. Garcia, 372 S.W.3d at 634. '"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.)).

         Alternatively, because direct evidence of discrimination or retaliation is a "rarity" in employment cases, courts allow such claims to proceed with indirect or circumstantial evidence of discrimination or retaliation. 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 Supreme Court in McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Glover, 436 S.W.3d at 392. Under the McDonnell Douglas framework, as applied to the TCHRA, the plaintiff is entitled to a presumption of discrimination if he meets the "minimal" initial burden of establishing a prima facie case of discrimination or retaliation. Garcia, 372 S.W.3d at 634.[6] In the age discrimination context, for example, a plaintiff may create an inference of impermissible discrimination by presenting evidence that he was (1) a member of the protected class (i.e., at least forty years old), (2) qualified for the position, (3) terminated from employment, and (4) replaced by someone outside the protected class. See Kaplan v. City of Sugar Land, __ S.W.3d __, 2017 WL 1287994, at *3 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (citing Garcia, 372 S.W.3d at 632). A plaintiff offering such evidence raises a presumption of discrimination because the employer's challenged acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Garcia, 372 S.W.3d at 634. Once a plaintiff has established a prima facie case of discrimination or retaliation, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory or nonretaliatory 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 or nonretaliatory reason for the adverse employment action, the burden then shifts to the employee to raise a genuine issue of material fact as to whether the employer's reason was a pretext for discrimination or retaliation. See Willrich, 28 S.W.3d at 24; Okpere, 2017 WL 1086340, at *2. As explained in more detail below, the plaintiffs burden at the third stage varies depending on whether the claim under consideration is one for discrimination or retaliation.


         Though Lopez challenges the trial court's summary judgment in a single issue, we consider each of his two claims in turn, after first addressing a preliminary evidentiary issue.

         A. Summary Judgment Evidence

         In his first argument, Lopez contends that Exxon failed to timely authenticate the evidence it cited in its summary judgment motion. Because the court could not consider that evidence, Lopez argues the trial court should have denied Exxon's motion. We agree that Exxon failed to timely authenticate the evidence, but disagree that the failure compelled the trial court to deny Exxon's motion.

         Exxon filed its motion and set the motion for hearing by submission twenty-one days later. Exxon attached to its motion a number of exhibits, consisting mainly of deposition excerpts and business records, but did not timely authenticate the business records. The day after filing its motion, Exxon filed a "Supplement to Defendants' Motion for Summary Judgment, " acknowledging the failure to include a business records affidavit and attaching the affidavit to the supplement. Lopez did not object to Exxon's supplement or to the business records affidavit, but argues on appeal that Exxon had the burden to file, and obtain a ruling on, a motion for leave to file its affidavit late.[7]

         Under the rules of civil procedure, a motion for summary judgment and any supporting affidavits must be filed and served at least twenty-one days prior to the hearing date. See Tex. R. Civ. P. 166a(c). Thus, Exxon's business records affidavit, filed twenty days prior to the submission date, was untimely. Summary judgment evidence may be filed late, but only with leave of court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). When, as here, nothing appears in the record to indicate that the trial court granted leave to file summary judgment evidence late, we presume the trial court did not consider the untimely business records affidavit. See id. (citing INA v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985)); see also Tex. Airfinance Corp. v. Lesikar, 777 S.W.2d 559, 561 (Tex. App.- Houston [14th Dist] 1989, no writ) (stating that appellate court must presume trial court did not consider summary judgment movant's supplemental affidavit filed twelve days before order granting summary judgment was signed because affidavit was not timely filed and nothing in record indicated trial court granted leave to file). Further, although the business records themselves were timely filed, Exxon did not authenticate them. Thus, we agree with Lopez that we may not consider the unauthenticated business records as part of the appellate record even though Lopez did not expressly raise that objection in response to the summary judgment motion. See Guerrero, 465 S.W.3d at 706-08.

         As Exxon points out, however, Lopez cited in and attached to his timely summary judgment response one of Exxon's exhibits challenged on appeal-a copy of the PIP document. Accordingly, there is no dispute that the PIP document is part of the summary judgment record, and we may consider it. See Wilson v. Burford,904 S.W.2d 628, 629 (Tex. 1995) (per curiam) ("Rule 166a(c) plainly includes in the record evidence attached either to the motion or to a response."). Other than the PIP document, however, we presume the trial court did not consider Exxon's untimely authenticated evidence, and we exclude those exhibits from our review. Benchmark Bank, 919 S.W.2d at 663; Tex. Airfmance, 777 S.W.2d at 561. But we include within our scope of review other timely and admissible evidence ...

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