Opinion
No. 04-15-00338-CV
03-09-2016
Arthur BUTCHER, Appellant v. CITY OF SAN ANTONIO, acting by and through its agent City Public Service Board d/b/a CPS Energy, Appellee
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-05172
Honorable John D. Gabriel, Jr., Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
Arthur Butcher appeals a summary judgment granted in favor of the City of San Antonio, acting by and through its agent City Public Service Board d/b/a CPS Energy. The summary judgment dismissed Butcher's claims against CPS Energy for discrimination on the basis of race and color. Butcher contends the trial court erred in granting summary judgment because he established his prima facie case and also established that a genuine issue of material fact existed regarding whether the reason given by CPS Energy for the employment action was a pretext for discrimination. We affirm the trial court's judgment.
BACKGROUND
Butcher has been employed by CPS Energy since 1993. In 2006, Butcher was transferred from the Energy Development Department to another department.
In 2011, Barry Williams, the Energy Development Department's manager of coal and rail, retired. Due to budgetary constraints, the position was not immediately filled. In February of 2012, a decision was made to fill the position. Based on budgetary constraints and a hiring freeze, the position had to be filled through an intra-department posting. Because Butcher was not employed by the Energy Development Department, he was not eligible to apply for the position.
Butcher, who is African American, ultimately sued CPS Energy asserting numerous discrimination claims. After the trial court granted a Rule 91a partial motion to dismiss and plea to the jurisdiction, Butcher's only remaining claims were for discrimination on the basis of race and color. CPS Energy filed a traditional and no evidence motion for summary judgment as to those claims. The trial court granted summary judgment without specifying the basis for its decision, and Butcher appeals.
STANDARD OF REVIEW
We review a trial court's granting of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). In reviewing a summary judgment, we take as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no-evidence motion for summary judgment must be granted if, after an adequate time for discovery, the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial and the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements. TEX. R. CIV. P. 166a(i); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.—San Antonio 2008, pet. denied). No evidence exists when there is (i) a complete absence of evidence of a vital fact, (ii) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (iii) the evidence offered to prove a vital fact is no more than a mere scintilla, or (iv) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); see King Ranch, Inc., 118 S.W.3d at 751 ("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.'" (quoting Merrill Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997))).
EMPLOYMENT DISCRIMINATION BURDEN-SHIFTING ANALYSIS
Section 21.051 of the Texas Labor Code, a provision of the Texas Commission on Human Rights Act, prohibits an employer from discriminating against an employee on the basis of race or color. TEX. LAB. CODE ANN. § 21.051 (West 2015). In the absence of direct evidence of discriminatory intent, discrimination can be proven using a burden-shifting analysis established by the United States Supreme Court for cases that have not been fully tried on the merits. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). "Under this framework, the plaintiff is entitled to a presumption of discrimination if she meets the 'minimal' initial burden of establishing a prima facie case of discrimination." Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). "[T]he precise elements of this [prima facie] showing will vary depending on the circumstances" and the type of discrimination alleged. Id. "Once the plaintiff makes a prima facie showing the burden shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action." Claymex Brick & Tile, Inc. v. Garza, 216 S.W.3d 33, 35 (Tex. App.—San Antonio 2006, no pet.). If the defendant does so, the burden shifts back to the plaintiff to prove the defendant's articulated reason is false and discrimination was the real reason for the employment action. Canchola, 121 S.W.3d at 740; Claymex Brick & Tile, Inc., 216 S.W.3d at 35-36. With regard to this last burden, "'[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 decision.'" Madden v. El Paso Indep. Sch. Dist., 473 S.W.3d 355, 360 (Tex. App.—El Paso 2015, no pet.) (quoting Bedgood v. Tex. Educ. Agency, No. 03-14-00030-CV, 2015 WL 739635, at *2 (Tex. App.—Austin Feb. 19, 2015, pet. denied) (mem. op.)).
ANALYSIS
In analyzing this appeal, we will assume, without deciding, that Butcher met his burden to establish a prima facie discrimination case. Therefore, we consider only whether CPS Energy articulated a legitimate nondiscriminatory reason for its action, and whether a genuine issue of material fact existed as to whether CPS Energy's stated reason for not considering Butcher's application for the position was a pretext for discrimination.
1. Legitimate, Nondiscriminatory Reason
In its motion, CPS Energy asserted it had a legitimate, nondiscriminatory reason for not considering Butcher's application. Specifically, CPS Energy asserted because the position was not filled after Williams's retirement, the position was not included in the Energy Development Department's budget for the 2013 fiscal year. See Bornes ex rel. M.J.W., Jr. v. Houston Indep. Sch. Dist., No. 4:11-00493, 2012 WL 3150323, at *3 (S.D. Tex. July 31, 2012) (referring to budgetary constraints as a legitimate, nondiscriminatory reason for employer's action). In addition, CPS Energy had instituted a company-wide hiring freeze that prevented any department from adding to their headcount. See Joshi v. Fla. State Univ., 646 F.2d 981, 987 (5th Cir. 1981) (referring to hiring freeze and budgetary constraints as legitimate, nondiscriminatory reasons for employer's action). As a result, the position could only be filled by an employee within the Energy Development Department.
In support of its motion, CPS Energy proffered the affidavit of Mark Werner who was the direct supervisor of the manager of coal and rail. Werner explained the decision not to fill the position after Williams's retirement was due to budgetary considerations. Werner further explained the position was not included in the Department's 2013 budget or its employee headcount. Due to budgetary concerns, Werner was instructed that any job positions in the Department could be filled by hiring from outside the Department only if the position was included in the budget and the departmental headcount. Because the manager of coal and rail position was not included in the budget and Werner could not add an additional employee to the Department, the position could only be posted within the Department.
CPS Energy also proffered the affidavit of Adrienne Alcazar, who was CPS Energy's director of labor and employee relations in 2012. Alcazar stated CPS Energy implemented a hiring freeze for the 2013 fiscal year (February 2012 through January of 2013) due to budgetary constraints which required individual departments to maintain their existing headcounts. Because the Energy Development Department was unable to increase its headcount for budgetary reasons, Alcazar stated Butcher was not eligible for consideration for the manager of rail and coal position.
Based on the foregoing evidence, we conclude as a matter of law that CPS Energy met its burden to articulate a legitimate, nondiscriminatory reason for refusing to consider Butcher's application. See Joshi, 646 F.2d at 987; Bornes ex rel. M.J.W., Jr., 2012 WL 3150323, at *3. Thus, to avoid summary judgment, the burden shifted to Butcher to produce evidence showing a fact issue existed as to whether CPS Energy's stated reason was false and whether discriminatory intent was CPS Energy's real reason for its action. See Cancholo, 121 S.W.3d at 740; Madden, 473 S.W.3d at 360.
2. Pretext for Discrimination
In his brief, the only evidence Butcher references to establish CPS Energy's stated reason for its action was false is a written remark by the O&M Budget and Analysis Manager on a non-budgeted position request form relating to the position which stated, "Position is in the staffing budget." Butcher contends this remark is evidence that the manager of rail and coal position was included in the Energy Development Department's budget and in its headcount. Butcher's contention, however, is belied by the language on the form preceding the remark which stated the position would be filled through an internal posting so that it would not result in an increased headcount. Thus, reading the language of the form as a whole, the inference Butcher attempts to draw from the isolated remark is not reasonable. See Joe, 145 S.W.3d at 157 (requiring reviewing court to indulge "reasonable" inferences in non-movant's favor). In addition, the summary judgment evidence also included a series of e-mails regarding the posting of the position which also established the approval of the posting was subject to the posting being within the Energy Development Department.
The only other summary judgment evidence proffered by Butcher was his own affidavit in which he states his belief that racial discrimination was the real reason CPS Energy limited the posting to the Department's existing employees. "However, [Butcher's] suspicions or beliefs do not create evidence of discriminatory animus." See Claymex Brick& Tile, Inc., 216 S.W.3d at 37; see also Madden, 473 S.W.3d at 361 (holding appellant's subjective belief that the employer's evidence is false and its reasons pretextual did not create a fact issue to defeat summary judgment); Killingsworth v. Housing Auth. of City of Dall., 447 S.W.3d 480, 494 (Tex. App.—Dallas 2014, pet. denied) (holding subjective belief of discrimination, no matter how genuine, is insufficient to raise fact issue on employer's discriminatory motive); Acosta v. Gov't Emps. Credit Union, 351 S.W.3d 637, 642-43 (Tex. App.—El Paso 2011, no pet.) (stating plaintiff's "own subjective belief that she was discriminated against is insufficient"). "Absent evidence that goes beyond bare assertions, we cannot reverse [the] summary judgment." Madden, 473 S.W.3d at 361.
CONCLUSION
Butcher failed to establish a genuine issue of material fact as to whether CPS Energy's stated reason for not considering Butcher's application was false or that CPS Energy's real reason was unlawful discrimination. Therefore, the trial court did not err in granting summary judgment, and the trial court's judgment is affirmed.
Patricia O. Alvarez, Justice