Perry v. UH-Downtown (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Bland)
(race discrimination retaliation claim under state law fails; summary judgment for university defendant
affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00807-CV Jacqueline Perry v. University of Houston Downtown
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher
MEMORANDUM OPINION
After the University of Houston Downtown (UHD) fired Jacqueline Perry, Perry sued UHD, contending that it
had fired her in retaliation for filing racial discrimination charges against UHD with the Equal Employment
Opportunity Commission (EEOC) and a discrimination suit against UHD in federal district court. The trial
court granted summary judgment in favor of UHD.
On appeal, Perry contends that the trial court erred in granting summary judgment because (1) a fact issue
exists as to whether she established a prima facie case of retaliation and (2) UHD committed fraud by
attaching evidence of her federal lawsuit and her EEOC charges to its summary judgment motion.
We conclude that Perry failed to raise a material fact issue to support her retaliation claim and therefore
affirm the judgment of the trial court.
Background
In August 1998, UHD hired Perry to work as a transcript analyst in the admissions department. Perry filed
her first EEOC charge in April 2001, alleging racial discrimination. She filed two more EEOC charges on
April 30, 2004 and May 14, 2004. These charges also allege racial discrimination, specifically, that
numerous people—including her supervisors, co-workers, the university president, vendors, students,
campus police, and Harris County sheriffs—participated in various wrongdoings, including wiretapping her
home phone, spreading rumors about her, circulating a petition to get her fired, illegally obtaining her
college transcripts, taunting her with hand gestures, making harmful remarks, and giving her unwarranted
parking tickets. In May 2005, Perry brought a federal suit against UHD based on these charges. When
Perry did not timely serve UHD with the summons or complaint, however, the federal court dismissed the
suit for want of prosecution.
UHD hired Carmen Allen as director of admissions, and she became Perry’s supervisor in January 2005.
According to Allen, Perry soon began accusing her and others of harassment, but did not explain specific
examples of the perceived harassment.
At the same time, Allen had a number of concerns with Perry’s performance. Several of Perry’s co-workers
had complained to Allen about Perry’s conduct, indicating that she was uncooperative and producing
deficient work. Allen attempted to resolve these issues informally, but found Perry to be unreceptive.
When Allen addressed Perry about her performance problems, Perry made unsubstantiated claims that
someone was sabotaging her work.
From 1999 through 2004, Perry received generally positive job evaluations from her supervisors, ranging
from acceptable to outstanding. Allen gave Perry her annual performance evaluation on May 18, 2005.
The evaluation rates Perry’s overall performance as “needs improvement”; however, it ranked many of
Perry’s individual skills as “competent.” Areas targeted for improvement include working relationships,
interpersonal skills, professional development, and professionalism. On the evaluation form, Perry noted
her disagreement with most of the rankings and wrote in her own comments defending her work.
Allen failed to see Perry’s performance improve on any of the areas targeted in her evaluation. On June 2,
2005, Allen placed Perry on three weeks’ disciplinary probation for “inefficiency, incompetency, or
negligence in the performance of duties.” Perry was ordered to improve her performance in the following
areas: (1) timely work completion, (2) positive and productive communication, (3) compliance with job-
related requests by her supervisor, and (4) professional conduct.
When Perry failed to improve her performance during that probationary period, Allen took further
disciplinary action, suspending Perry for three days without pay, followed by an additional two weeks’
probation. Perry refused to sign the notice of disciplinary action. The notice cited eight incidents that had
occurred during the first probationary period:
· June 7—When asked to correct work, Perry was unreceptive and argumentative, reminding Allen of
her experience in her position.
· June 7—When asked to correct work, Perry claimed that the new process did not make sense and
that her work was being sabotaged.
· June 8—Perry e-mailed Allen repetitively rather than making an initial effort to correct a problem or
speaking with Allen in person, as requested.
· June 10—When asked to correct late work, Perry implied that her work was deleted and that she was
not responsible.
· June 10—Perry attempted to request leave time that she did not have. When told that the leave could
not be approved, she implied that Allen was incorrect.
· June 14—When asked to correct work, Perry replied that it was “a waste of time and totally
outrageous,” then deleted the assignment rather than correct it.
· June 20—Allen again instructed Perry to correct the June 14 assignment. Perry insisted that she had
done so, but someone else had deleted it.
· June 23—When asked to correct a mistake in her work Perry refused to accept responsibility for the
error and instead blamed another employee.
Allen gave Perry notice of her termination on July 26, 2005. The notice cited four specific instances of
Perry’s conduct during the prior two-week probationary period that demonstrated her failure to improve her
performance:
· July 1—When instructed to make a correction, Perry argued that it was already correct.
· July 1—When instructed to make another correction, Perry argued that it was already correct, and
that “this behavior” was hurting the students, while specifying that it was not her behavior.
· July 12—Perry turned in a leave form for the time of her suspension, listing the purposes of leave as
“an act of retaliation”
· July 13—When instructed to correct a date, Perry did so, but replied that the error was “a big slip of
the fingers on someone else’s part.”
In the notice’s comments section, Perry wrote that the termination constituted an act of retaliation.
Perry filed her EEOC retaliation charge on November 29, 2005, claiming that she was disciplined and
ultimately discharged because of her prior EEOC charges and lawsuit. Perry then filed this lawsuit.
UHD moved for summary judgment. Among other evidence, UHD attached Allen’s affidavit, in which Allen
testified that before Perry’s termination, she was not aware that Perry had filed any EEOC charges or a
federal lawsuit. At the meeting culminating in Perry’s termination, Perry mentioned to Allen that she
believed her termination was an act of retaliation, but Perry did not elaborate on the source of the claimed
retaliation. Allen did not learn of Perry’s prior discrimination charges until Perry filed her November 2005
EEOC charge. No one at UHD knew of Perry’s federal lawsuit until after her discharge, when it was
served. Perry admitted during her deposition that she did not tell anyone at UHD about the suit.
Discussion
We review the trial court’s ruling on a summary judgment motion de novo. Provident Life & Accid. Ins. Co.
v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We view the evidence in a light most favorable to the non-
movant, making all reasonable inferences and resolving all doubts in the non-movant’s favor. Rhone-
Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Because the summary judgment order does not
specify the ground or grounds on which the trial court relied for its ruling, we affirm the judgment if any of
the summary judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872 (Tex. 2000).
Here, UHD sought summary judgment under rule 166a(c). Tex. R. Civ. P. 166a(c). Under this
provision, the movant has the burden to show that no genuine issue of material fact exists and thus is
entitled to judgment as a matter of law. Id.; KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.
W.2d 746, 748 (Tex. 1999). Once the movant shows it is entitled to judgment as a matter of law, the
burden shifts to the non-movant to present evidence raising a fact issue to defeat the motion for summary
judgment. Green v. Lowe’s Home Centers, Inc., 199 S.W.3d 514, 517–18 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). The same standards for evidence that would be applicable at a regular trial apply to a
summary judgment proceeding. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).
Retaliation claim
Perry contends that (1) the trial court improperly granted summary judgment because a fact issue exists as
to whether she has established a prima facie case of retaliation and (2) UHD committed fraud in its
summary judgment motion by attaching evidence of her federal lawsuit and her EEOC charges.
Perry brings her claim under the Texas Commission on Human Rights Act (TCHRA), the state counterpart
to Title VII of the Civil Rights Act of 1964. See Tex. Lab. Code Ann. § 21.001(1) (Vernon 2006); Quantum
Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). TCHRA provides that
“[a]n employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates
against a person who, under this chapter: 1) opposes a discriminatory practice; 2) makes or files a charge;
3) files a complaint; or 4) testifies, assists, or participates in any manner in an investigation, proceeding, or
hearing.”
Tex. Lab. Code Ann. § 21.055 (Vernon 2006).
To establish a prima facie case of retaliation, a claimant must show that (1) she engaged in a
protected activity, (2) an adverse employment action occurred, and (3) a causal link between the filing of
the claim and the termination. Green, 199 S.W.3d at 518; see Burlington N. & Santa Fe Ry. v. White, 548
U.S. 53, 67–68, 126 S. Ct. 2405, 2414–15 (2006).[1]
Once the employee establishes a prima facie case, the employer bears the burden to rebut the alleged
improper termination by producing evidence that a legitimate reason exists for termination. Green, 199 S.
W.3d at 519. If the employer satisfies its burden of production, the burden shifts back to the employee to
raise a fact issue as to a retaliatory motive. Id.
UHD moved for summary judgment on the basis that Perry failed to raise a prima facie case of
retaliation. Perry satisfies the first two elements of her prima facie case. The undisputed evidence shows
that (1) she filed EEOC discrimination charges and a federal lawsuit, and (2) UHD placed her on probation,
suspended her, and then fired her.
UHD’s motion focuses on the third element of the prima facie case, contending that Perry has adduced no
evidence showing that a causal link between Perry’s earlier claims of discrimination and her discharge. An
employee may establish a link between termination and the protected activity through either circumstantial
evidence or reasonable inferences from the evidence. Id. at 519. Circumstantial evidence sufficient to
show a causal link between termination and the filing of a discrimination charge or suit may include (1) the
employer’s failure to follow its usual policy and procedures in carrying out the challenged employment
actions; (2) discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the
discrimination charge or suit by those making the termination decision; (4) evidence that the stated reason
for discharge was false; and (5) the temporal proximity between the employee’s conduct and discharge. Id.
Compliance with university policy
UHD encourages a progressive system of discipline, which includes personal conference, written
reprimand, suspension, and lastly, dismissal. UHD policy lists as grounds for discipline “inefficiency,
incompetency, or negligence in the performance of duties.” The policy instructs that the notice of
disciplinary action should clearly identify the problem, identify the remedial action expected, state the
results of failure to take the specified remedial action, and allow the employee an opportunity to respond.
The policy states that dismissal is appropriate when substandard performance persists despite one or more
attempts at correction.
The records of Perry’s seven-year employment history with UHD do not reflect unsatisfactory performance
until her final year of employment. Her employment file contains positive job performance evaluations, and
Perry produced several e-mails from co-workers and UHD professors praising her work, all of which predate
the period in which she came under Allen’s supervision.
After Allen became Perry’s supervisor in 2005, Allen’s affidavit identifies, and Perry’s employment records
confirm, specific instances of incompetent and insubordinate conduct. The disciplinary actions taken
against Perry during this period comply with UHD’s stated policies. Each notice specified the problem,
prescribed corrective action, and informed Perry of the results if the corrective action did not occur. Perry
had the opportunity to respond to each action. The disciplinary actions started with an informal
conference, and Perry’s persistent failure to correct her work performance as prescribed led to probation,
suspension, and termination. Perry did not produce any evidence to challenge UHD’s adherence to its
progressive discipline policy or to show that UHD treated her less favorably than other similarly situated
employees.
Knowledge and timing
Temporal proximity between the filing of an EEOC charge or a discrimination suit and a disciplinary
action may be evidence of a causal connection when they are separated by weeks, as opposed to months
or years. Green, 199 S.W.3d at 523. Perry’s retaliation claim relies on the EEOC charges she filed in
2001 and the spring of 2004. UHD did not discipline Perry until June 2005. A year between protected
activity and a disciplinary action is not sufficiently proximate to show a causal link without other evidence
that the firing was retaliatory. See id. Perry also fails to show a causal link between her federal lawsuit and
her discipline and termination. Perry admitted in her deposition that no one at UHD knew she had filed her
lawsuit before it fired her, and she did not serve UHD with the suit until several months after her discharge.
Temporal proximity may be evidence of a causal connection between the filing of an EEOC charge and the
adverse employment action only when a person with input into the employment decision was aware of the
protected activity. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 320 (5th Cir. 2004); Marsaglia v.
Univ. of Texas, El Paso, 22 S.W.3d 1, 5 (Tex. App.—El Paso 1999, pet. denied) (affirming summary
judgment where evidence failed to show that decision-maker had any knowledge of appellant’s protected
activity). Allen’s uncontroverted testimony establishes that she was unaware of the lawsuit and the EEOC
charges at the time she discharged Perry. Thus, Perry failed to raise a fact issue to make the required
causal link between her protected activity in filing those discrimination claims and the adverse employment
action.
UHD produced summary judgment evidence that it had legitimate non-retaliatory reasons for terminating
Perry. See Green, 199 S.W.3d at 519. The evidence before the trial court uniformly showed that Perry
had unsatisfactory work performance and failed to correct it. Perry offers only her subjective beliefs to
counter UHD’s proffered reasons for her discipline and discharge. To establish a genuine issue of material
fact, evidence must be more than merely subjective and speculative. See id. at 522 (appellant’s subjective
belief regarding reason for discharge is insufficient to raise fact issue); Farrington v. Sysco Food Servs.,
Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, pet. denied) (stating that subjective beliefs
of discrimination alone are insufficient to establish prima facie case). Thus, we hold that the Perry failed to
raise a genuine issue of material fact supporting the causation element of her prima facie case.
Fraud complaint
Perry complains that UHD fabricated the evidence and misled the trial court concerning the reasons for
Perry’s discharge. But Perry fails to produce any evidence to support her claim. Her generalized assertions
do not a raise fact issue as to pretext. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.
3d 227, 232 (Tex. 2004); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). Perry alleges that
UHD committed fraud in their summary judgment motion by attaching the pleadings for her federal lawsuit
and her EEOC charges, but she does not present evidence disputing the truth of any of the specific
allegations Perry herself made within those documents. The trial court could properly consider Perry’s
prior EEOC and lawsuit filings, which establish the dates and subject matter of the protected activities that
serve as grounds for her retaliation claim.
Conclusion
We hold that Perry has failed to adduce any evidence to support the causal link essential to her retaliation
claim. We therefore affirm the judgment of the trial court.
All pending motions are dismissed as moot.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
[1] Because TCHRA seeks to promote federal civil rights policy, we may look to analogous federal
precedent to interpret it. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001); Fields v.
Teamsters Local Union No. 988, 23 S.W.3d 517, 524 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).