Louatrice Henderson v. the University of Texas M.D. Anderson Cancer Center

Opinion issued November 4,

2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00376-CV

____________

LOUATRICE

HENDERSON, Appellant

V.

THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,

Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2006-34515

MEMORANDUM OPINION

Appellant

has filed a motion for reconsideration en banc from this Court’s April 29, 2010

opinion. In light of the motion, we

withdraw our opinion and judgment of April 29, 2010 and issue this opinion in

its stead. We overrule the motion for

reconsideration en banc as moot. See Brookshire Brothers, Inc. v. Smith,

176 S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on

reh’g) (noting that motion for en banc reconsideration becomes moot when new

opinion and judgment issue).

This

is an employment discrimination case.

Appellant Louatrice Henderson (“Henderson”) brought suit against the

University of Texas M.D. Anderson Cancer Center (“M.D. Anderson”), alleging age

and race–related employment discrimination in violation of the Texas Commission

on Human Rights Act (“TCHRA”). 2 Without

specifying its grounds, the trial court granted summary judgment in favor of

M.D. Anderson. We affirm.

I.

Background

Henderson

is a black female who worked for M.D. Anderson for approximately six years,

beginning in 1997. She was 47-years-old

when last employed at the facility. For

five years Henderson worked as the Staffing Representative for Human Resources

(“HR”) Recruitment. Later, she obtained

employment in the HR Department on the Job Change Team. The main purpose of the Job Change Team was

to identify and to assist M.D. Anderson employees wanting to transfer to

different jobs within the institution.

Kelly

McDermott, a white female, became supervisor of the Job Change Team in August

2002. Part of McDermott’s responsibility

was to evaluate Henderson’s job performance.

In June 2003, McDermott evaluated Henderson’s overall job performance as

“substantially exceed[ing] expectations in most significant areas.” In September, McDermott added a Caucasian

female, Beverly Poulter, to the Job Change Team.

During

that same year, M.D. Anderson’s associate vice president for HR, Anne Speed,

took steps to improve the HR Department’s communication skills and its

efficiency. She consolidated recruitment

work and selected Martha Jones, a black female, to be the Director of the HR

Recruiting Department. Speed also began

implementing plans recommended by a consulting firm that the Job Change Team

and its positions be eliminated by April 2004.

Between

November 2003 and March 2004, Henderson informally met with Jones approximately

three times. Henderson alleges that

during these meetings, she complained to Jones that her immediate supervisor,

McDermott, was discriminating against her by giving Henderson’s co-worker,

Poulter, special projects, jobs, and responsibilities. Henderson also claimed that McDermott had

instructed her on an occasion to “shut up.”

Jones

testified that she viewed the meetings with Henderson as instances when she

counseled Henderson concerning her job performance. Jones characterized Henderson’s personality

as “defensive” and stated that Henderson lacked flexibility. Jones allegedly told Henderson that she could

“lose her job” if she either did not like her job or reported McDermott’s

discriminatory treatment of her. Jones

never relayed Henderson’s allegations of discrimination to McDermott or anyone

else.

In

March 2004, the Job Change Team was informed that its members would have to

apply for positions under a new business model.

Panel interviews of internal candidates for the new recruiter positions

occurred in April 2004. Jones and two

other women conducted the interviews of the displaced members of the Job Change

Team, including Henderson, and gave the results to Speed. The panel’s recommendations to Speed

addressed who they believed should be retained and who should be let go. On April 19, 2004, everyone on the Job Change

Team, except Poulter, was laid off.

Subsequently,

Henderson filed a timely complaint with the Equal Employment Opportunity

Commission (EEOC) alleging age discrimination, race discrimination, and

retaliation. The EEOC granted Henderson

the right to sue, and she filed suit in federal district court. The federal district court dismissed

Henderson’s race-discrimination and unlawful-retaliation employment claims and

the U.S. District Court for the Fifth Circuit affirmed. Henderson v. Univ. of Tex. M.D. Anderson Cancer

Ctr. , No. H-06-569, 2007 WL 2913317 (S.D. Tex. July 25, 2007) (Hoyt, J.), aff’d , Henderson v. Univ. of Tex.

M.D. Anderson Cancer Ctr. , 260 Fed. Appx. 741 (5th Cir. 2008) (Weiner,

Garza, and Benavides, JJ.) (per curiam) (affirming summary judgment).

Henderson

then filed suit in state court, again claiming race and age discrimination and

retaliation in violation of the TCHRA.

The trial court granted M.D. Anderson’s motion for summary judgment. On appeal, Henderson contends that the trial

court erred in granting appellee’s motion for summary judgment because (1)

there is a disputed fact issue with regard to whether Henderson can prove

pretext about two positions she sought under the reorganization, (2) the court

failed to consider the evidence in the record, the standard of review, and

prevailing case law in reaching its decision, (3) the court erred in concluding

Henderson did not establish a claim for retaliation, and (4) the court erred in

sustaining M.D. Anderson’s objection regarding the admissibility of the EEOC

determination letter.

II.

Standard of Review

M.D. Anderson moved for summary

judgment under rule 166a of the Texas Rules of Civil Procedure. To prevail on a traditional motion for

summary judgment under rule 166a, the party moving for summary judgment carries

the burden of establishing that no material fact issue exists on the challenged

elements and that it is entitled to judgment as a matter of law. Tex.

R. Civ. P . 166a; M.D. Anderson Hosp. & Tumor Inst. v. Willrich ,

28 S.W.3d 22, 23 (Tex. 2000). We review

summary judgments de novo. Valence

Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). And, when a trial court’s order granting

summary judgment does not specify the grounds on which it relied, as is the

case here, we must affirm summary judgment if any of the summary judgment

grounds are meritorious. FM

Prop. Operating Co. v. City of Austin ,

22 S.W.3d 868 , 872–73 (Tex. 2000).

III.

Discussion

A. Texas

Law and McDonnell Douglas

Like

its federal counterpart, the TCHRA expressly prohibits employment

discrimination with respect to race, color, disability, religion, sex, national

origin, or age. Tex. Lab. Code Ann . § 21.051 (Vernon 2006). The Texas Legislature envisioned that the

TCHRA would 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); see also Griggs v.

Duke Power Co. , 401 U.S. 424, 431 , 91 S. Ct. 849 (1971) (“What is required

by Congress is the removal of artificial, arbitrary, and unnecessary barriers

to employment when the barriers operate invidiously to discriminate on the

basis of racial or other impermissible classification.”). Accordingly, Texas state courts follow

analogous federal statutes and cases interpreting them to guide our reading of

TCHRA. See Quantum Chem. Corp. v.

Toennies , 47 S.W.3d 473, 476 (Tex. 2001).

Section 21.051 of the TCHRA provides:

An employer commits an unlawful employment practice if

because of race, color, disability, religion, sex, national origin, or age the

employer:

(1) fails or refuses to hire an individual, discharges

an individual, or discriminates in any other manner against an individual in

connection with compensation or the terms, conditions, or privileges of

employment; or

(2) limits, segregates, or classifies an employee or

applicant for employment in a manner that would deprive or tend to deprive an

individual of any employment opportunity or adversely affect in any other

manner the status of an employee.

Tex. Lab.

Code Ann . § 21.051

(Vernon 2006).

In

McDonnell Douglas Corp. v. Green , the Supreme Court allocated the burden

of production and ordered the presentation of proof in employment

discrimination cases. 411 U.S. 792 ,

802–05, 93 S. Ct. 1817 (1973). Texas

courts invoke McDonnell Douglas in

employment discrimination cases brought under state law. See Quantum , 47 S.W.3d at 476 ; M.D.

Anderson Hosp ., 28 S.W.3d at 24 ; Waldmiller v. Continental Express, Inc .,

74 S.W.3d 116 , 122–23 (Tex. App.—Texarkana 2002, no pet.).

The

U.S. Supreme Court has summarized the allocation of proof in employment

discrimination cases as follows:

First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving

the prima facie case, the burden shifts to the defendant to articulate some

legitimate, nondiscriminatory reason for the employee’s rejection. Third, should the defendant carry this

burden, the plaintiff must then have an opportunity to prove by a preponderance

of the evidence that the legitimate reasons offered by the defendant were not

its true reasons, but were a pretext for discrimination.

Texas Dept. of Cmty. Affairs v.

Burdine , 450 U.S.

248 , 252–53, 101 S. Ct. 1089 (1981) (citations omitted); see also Quantum ,

47 S.W.3d at 476 (applying McDonnell Douglas in TCHRA age discrimination

case). Because direct evidence of

discrimination is a rarity in employment cases, Henderson puts forth only

circumstantial evidence that M.D. Anderson violated the TCHRA. See Tyler v. Union Oil Co. of California ,

304 F.3d 379, 393 (5th Cir. 2002) (“The McDonnell Douglas evidentiary

framework is primarily concerned with the plaintiff’s initial burden when

attempting to prove discrimination by circumstantial evidence.”). Thus, without direct evidence of

discrimination, this case merits the McDonnell Douglas “pretext”

analysis. Quantum , 47 S.W.3d at

476 . 3

B. Estoppel

As

an initial matter, on appeal Henderson asserts claims based on race and age

discrimination, as well as unlawful retaliation. However, M.D. Anderson asserts that

Henderson’s state court petition sets forth claims based on age discrimination

and unlawful retaliation only, therefore we should not address her claims of

race discrimination. M.D. Anderson also

contends that collateral estoppel should bar our consideration of Henderson’s

retaliation claim.

It

is unnecessary for us to resolve the merits of whether Henderson’s state court petition

sets forth a claim of race discrimination, because, assuming it does, we agree

with M.D. Anderson that such a claim would be barred by the principal of

collateral estoppel. As we have previously explained,

Texas state courts follow analogous federal statutes and cases interpreting

them to guide our reading of TCHRA. See

Quantum , 47 S.W.3d at 476 ; see also Wal-Mart Stores, Inc. v.

Canchola , 121 S.W.3d 735, 739 (Tex. 2003) (“In discrimination cases that

have not been fully tried on the merits, we apply the burden-shifting analysis

established by the United States Supreme Court.”). In 2007, the U.S. District Court dismissed

Henderson’s race discrimination and unlawful retaliation claims under the

applicable prima facie and burden-shifting tests. Henderson , 2007 WL 2913317 . Subsequently, the U.S. Court of Appeals for

the Fifth Circuit affirmed. Henderson ,

260 Fed. Appx.

741.

M.D.

Anderson cites James v. City of Houston in support of its assertion that

collateral estoppel should bar our consideration of Henderson’s race discrimination

and retaliation claims. 138 S.W.3d 433

(Tex. App.—Houston [14th Dist.] 2004, no pet.).

There, the Fourteenth Court of Appeals applied collateral estoppel to

affirm the state district court’s grant of summary judgment for the City of

Houston. After losing his due process

claim in federal court, under federal law, James brought an identical due

process claim in state court. The

Fourteenth Court opined, “[a]t issue is whether James is barred by the doctrine

of collateral estoppel from asserting his state-law claims when his parallel

federal-law claims were dismissed in a separate proceeding in federal

court.” James , 138 S.W.3d at 434 . The court concluded that because the

procedural due process protections provided under the Texas Constitution mirror

those provided under the federal Constitution, the plaintiff was barred from

raising his due process claim in state court.

Id . at 439.

We

are persuaded by the reasoning of the James court and find it applicable

to Henderson’s race discrimination and retaliation claims. Because the Texas Supreme Court has

determined that the protections provided under TCHRA mirror those provided

under the analogous federal statutes, the order of the federal district court

granting M.D. Anderson’s motion for summary judgment and the Fifth Circuit’s

affirmance of such order precludes a contrary finding in the instant case. See Quantum , 47 S.W.3d at 476 ; see

also Canchola , 121 S.W.3d at 739 .

Therefore, having determined that Henderson’s race discrimination and

retaliation claims are barred by the doctrine of collateral estoppel, we will

consider only Henderson’s age-based discrimination claims.

C. Henderson’s

Prima Facie Case

Henderson

must first establish a prima facie case for her discrimination claims. The establishment of the prima facie case is

a “condition precedent” to the pretext analysis. See Jones v. Union Pac. R.R. Co ., 302

F.3d 735, 741 (5th Cir. 2002). Henderson

need only make a minimal showing to establish her prima facie case. See Gold v. Exxon Corp ., 960 S.W.2d

378, 382 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see also Burdine ,

450 U.S. at 523 , 101 S. Ct. 1089 (noting that the plaintiff’s burden at this

stage is “not onerous”).

In

employment discrimination cases based on circumstantial evidence, the

plaintiff’s prima facie case relates to the employee’s burden of presenting

evidence that raises an inference of discrimination. See Swierkiewicz v. Sorema N.A ., 534

U.S. 506 , 122 S. Ct. 992, 997 (2002). A

prima facie case of age discrimination requires proof that the plaintiff (1) is

a member of a protected class; (2) was discharged; (3) was qualified for the

position from which she was discharged; and (4) was either replaced by someone

outside the protected class, replaced by someone younger, or was otherwise

discharged because of her age. See

Baker v. Gregg County , 33 S.W.3d 72, 80 (Tex. App.—Texarkana 2000, pet.

dism’d).

As

Henderson was 47 years old at the time of her reassignment and subsequent

firing, she falls within the relevant protected class, thereby meeting the

first element of the prima facie case. See

Tex. Lab. Code Ann . § 21.101

(Vernon 1996) (limiting protection against age discrimination under the TCHRA

to individuals who are forty years of age or older); cf . 29 U.S.C. § 631 (a) (West 2009) (Age Discrimination in

Employment Act protects individuals who are at least forty years of age). M.D. Anderson’s decision to terminate

Henderson constituted an adverse employment action. See Baker , 33 S.W.3d

at 80 . Thus, she meets the second

required element. With regard to the

third element, the record indicates that less than a year before the

restructuring, McDermott evaluated Henderson’s overall job performance as

“substantially exceed[ing] expectations in most significant areas.” Moreover, with regard to the HR position that

Henderson sought, the record indicates that Henderson had held a similar job

previously. Finally, with regard to the

fourth element, the evidence indicates that no person over 40-years-old was

interviewed or offered the HR position.

From

the summary judgment evidence in the record, we find that Henderson met all of

the elements of her prima facie case on the age-discrimination claim.

D. M.D.

Anderson’s Articulated Nondiscriminatory Reasons

As

Henderson has met the elements of her prima facie case, the burden shifted to

M.D. Anderson to articulate legitimate nondiscriminatory reasons for

Henderson’s termination. See Quantum ,

47 S.W.3d at 477 . The burden is one of

production only, not persuasion. See

Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 , 120 S. Ct.

2097 (2000). In promulgating its

nondiscriminatory reason, the employer quickly and easily rebuts the

presumption of discrimination, which summarily drops from the case. See Costa v. Desert Palace, Inc. , 299

F.3d 838, 855 (9th Cir. 2002); see also Pilditch v. Bd. of Educ. of the City

of Chicago , 3 F. 3d 1113, 1117 (7th Cir. 1993) (“[T]he employer need not

persuade the court that he was actually motivated by the reason he gives and

the mere articulation of the reason rebuts the prima facie case and puts the

onus back on the plaintiff to prove pretext.”).

Through the testimony of Speed, M.D. Anderson proffered

nondiscriminatory reasons for Henderson’s termination. First, M.D. Anderson claims it was motivated

in implementing changes due to complaints and comments made to Speed by M.D.

Anderson employees shortly after she started working there in 2002, and second,

a consultant’s “Strategic Recruitment Review” report, which recommended

eliminating Henderson’s position. The

Report identified “deficiencies” in areas including customer service,

institutional perception, strategy, measurement, process management, and role

definition. The purpose of the report

was to help “change the recruitment department from a largely administrative

function to one that is truly a business partner to their clients,” so as to

improve areas like the “manager satisfaction level” and department

efficiency.

Agency

restructuring is a legitimate, nondiscriminatory reason for an employee’s

termination. Burdine , 450 U.S. at

254 , 101 S. Ct. 1089 . M.D. Anderson’s

production of this legitimate nondiscriminatory reason eliminates the

presumption of discrimination created by the plaintiff’s prima facie

showing. Quantum , 47 S.W.3d at

477 . Under the McDonnell Douglas framework, the burden shifts back to Henderson to

call into question M.D. Anderson’s articulated reason.

E. Establishing

Pretext for Discrimination

In Reeves v. Sanderson Plumbing

Products, Inc. , the U.S. Supreme Court

clarified that when the plaintiff

offers proof that the employer’s articulated reasons are false, the dispute

must then be submitted to a jury to decide.

530 U.S. 133 , 144–46, 120 S. Ct. 2097 , 2107–2108 (2000). Under Reeves , the plaintiff shows

pretext by introducing evidence proving the reasons stated by the employer were

not its true reasons, but were a pretext for discrimination or that said

reasons were unworthy of credence. 530 U.S.

at 143 , 120 S. Ct. 2097 . In the summary

judgment setting, however, the plaintiff need not prove pretext but merely

establish a genuine issue of material fact on the matter. See Amburgey v. Corhart Refractories

Corp., Inc. , 936 F.2d 805, 813 (5th Cir. 1991). Summary judgment will be improper if the

plaintiff makes a prima facie case and produces sufficient evidence for a jury

to disbelieve the employer’s stated reason for discharge. See Reeves , 530 U.S. at 146–48, 120 S.

Ct. 2097 , 2108–2109. However, the Court

did state that “an employer would be entitled to judgment as a matter of law if

the record conclusively revealed some other, nondiscriminatory reason for the

employer’s decision, or if the plaintiff created only a weak issue of fact as

to whether the employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had occurred.” Id . at 148, 120 S. Ct. 2097, 2109 . Thus, we analyze this step of the McDonnell

Douglas inquiry in light of Reeves .

M.D.

Anderson claims it eliminated Henderson’s job because of departmental

restructuring. M.D. Anderson is entitled

to reduce its force and structurally reorganize its operations to maximize

efficiency, but an employer may not intentionally discriminate against an

employee because of her age. Gallo v.

Prudential Residential Svs., Ltd. , 22 F.3d 1219, 1225 (2d Cir. 1994).

To

show pretext in a restructuring case, an employee must establish that an

improper motive “tipped the balance” in favor of termination. Krchnavy v. Limagrain Genetics Corp .,

294 F.3d 871, 876 (7th Cir. 2002). Bald

assertions of impermissible age discrimination are insufficient to establish

pretext. See Amburgey , 936 F.2d

at 814 . Here, Henderson failed to

provide any evidence from which one could reasonably conclude that the

restructuring and reduction was anything but bona-fide.

M.D.

Anderson, through the testimony of Speed, proffered legitimate reasons that

distinguished the successful position applicants from Henderson. A chart summary of the interview assessment

upon which Speed relied, in part, in making final decisions about the job

offers shows that Henderson received an assessment of two out of four “points”

in answering questions on the topics that the panel covered with her and the

other applicants. The summary states

that the panel assessed Henderson’s interview performance as a three.

Panel

member Jones testified that Henderson did not interview as well as some of the

other staff with respect to recruitment questions and recruitment techniques

and that she scored lower than the other applicants on each of the categories

covered in the interview. Likewise,

panel member Brown testified that she remembered that she “generally scored other

applicants higher than I scored Ms. Henderson.”

Finally, Speed stated that her reason for declining to offer Henderson

the positions she sought under the restructuring “resulted from my belief that

the applicants hired into the recruiter positions stood the best chance of

succeeding in the positions and would contribute more to M.D. Anderson in the

roles offered them, when compared with Ms. Henderson and the facts of her

candidacy.”

To

rebut M.D. Anderson’s nondiscriminatory reasons, Henderson must show she was

“clearly better qualified” than the applicants who were retained. See Nichols v. Loral Vought Sys. Corp. ,

81 F.3d 38, 42 (5th Cir. 1996). The

evidence of relative qualifications must be more than merely subjective and

speculative. Id . It must be specific and comparative in nature. Bodenheimer v. PPG Indus., Inc. , 5

F.3d 955, 959 (5th Cir. 1993).

With

respect to the Candidate Recruiter position, Henderson alleges that she was

“clearly better qualified” than Stephanie Perez, a 31-year-old Caucasian woman,

Beverly Poulter, a 29-year-old Caucasian woman, and Sadia Jalali, a 25-year-old

woman of Pacific Island descent, in terms of experience. Henderson also alleges that she was clearly

better qualified than Dana Stover, a 35-year-old Caucasian woman who had been

employed exclusively as a recruiter while working for M.D. Anderson before the

2004 reorganization and hiring process, as well as earlier in her career. Henderson asserts that Stover interviewed

poorly and was subsequently terminated for unsatisfactory performance.

Upon

review of the record, we cannot conclude that Henderson’s claim that she was

clearly better qualified than Perez, Poulter, and Jalali is more than a

subjective and speculative assertion. Nichols ,

81 F.3d at 42 . Henderson states that she

is more experienced than these three candidates, but does not explain with any

specificity how she is more experienced.

Likewise, with regard to Stover, Henderson makes the non-specific

assertion that Stover “interviewed poorly,” but does not provide comparative

evidence of Stover’s relative qualifications.

Bodenheimer , 5 F.3d at 959 .

Additionally, the fact that Stover was subsequently terminated has no

bearing on M.D. Anderson’s decision making process during the reorganization

and hiring process.

With

respect to the HR position, Henderson states that she was “clearly better

qualified” than Deborah Becerra, a 26-year-old Hispanic woman who was offered

an HR position. Supporting Henderson’s

contention is the fact that Henderson scored a “four” in the experience category

used by the interviewing panel, while Becerra scored a “3.8.” Both women have bachelor’s degrees. However, the record reveals that Becerra is

bilingual, while Henderson is not. Henderson

also claims that one younger applicant, Jennifer Cazaraz, did not meet the

basic experience requirement for the HR position.

Again,

Henderson fails to explain with any specificity how she is clearly better

qualified than Becerra, or to discuss or elaborate on how her experience

compared to that of Cazaras. Bodenheimer ,

5 F.3d at 959 . Moreover, M.D. Anderson,

through the testimony of Speed, explained that the organization needed an

individual who spoke both Spanish and English to accommodate Spanish-speaking

applicants and telephone inquiries, which was the basis for its decision to

offer Becerra a position.

Henderson

has presented this court with her disagreement with M.D. Anderson’s decision

but not with sufficient evidence to raise a fact issue that she was clearly

better qualified for the Candidate Recruiter and Human Resources Assistant

positions. See Waggoner v. City of

Garland , 987 F.2d 1160, 1165 (5th Cir. 1993) (“The ADEA was not intended to

be a vehicle for judicial second-guessing of business decisions, nor was it

intended to transform the courts into personnel managers.”).

Here,

the record supports M.D. Anderson’s contention that its decision to retain

applicants rather than her was necessitated by legitimate business

decisions. Henderson thus failed to

raise a fact issue rebutting M.D. Anderson’s nondiscrimination reason for her

termination. See Anderson v. Taylor

Pub. Co ., 13 S.W.3d 56 , 59–60 (Tex. App.—Dallas 2000, pet. denied); cf.

Bowen v. El Paso Elec. Co. , 49 S.W.3d 902 , 909–911 (Tex. App.—El Paso 2001,

pet. denied). As the plaintiff has not

produced sufficient evidence for a jury to disbelieve the employer’s stated

reasons, the trial court properly granted summary judgment in favor of M.D.

Anderson on the termination claim. See

Reeves , 530 U.S. at 148 , 120 S. Ct. 2097 .

Henderson’s first, second, third, and fourth points of error are

overruled.

F. EEOC Determination Letter

In

her fifth point of error, Henderson argues that the trial court erred in

sustaining M.D. Anderson’s objection regarding the admissibility of an EEOC

determination letter submitted by Henderson.

Evidentiary rulings are committed to

the trial court’s sound discretion. Bay

Area Healthcare Gr., Ltd. v. McShane , 239 S.W.3d 231, 234 (Tex. 2007). We review a trial court’s decision to admit

or to exclude evidence for an abuse of that discretion. In re J.P.B ., 180 S.W.3d 570, 575

(Tex. 2005). A trial court abuses its

discretion when it acts without reference to any guiding rules or

principles. Garcia v. Martinez ,

988 S.W.2d 219, 222 (Tex. 1999). We must

uphold the trial court’s evidentiary ruling if there is any legitimate basis

for the ruling. Owens-Corning

Fiberglass Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek

Fin.Corp. v. Richwood Invs. II, Inc ., 176 S.W.3d 307, 317 (Tex.

App.—Houston [1st Dist.] 2004, pet. denied).

M.D.

Anderson argued before the trial court that the EEOC determination was not

valid, and therefore irrelevant, because it failed to take into account any

data about the ages of the self-selected pool of people who applied for

recruiter or other positions under the department reorganization, and because

it omitted other relevant data, including the identity of applicants who were

offered positions but declined them.

Given

this legitimate basis for the trial court’s ruling, and based on our review of

the record, we find no evidence supporting Henderson’s claim that the trial

court acted in an arbitrary or unreasonable manner in failing to admit the EEOC

determination letter. Therefore,

Henderson’s fifth point of error is overruled.

Conclusion

Henderson

presented no evidence sufficient to rebut the legitimate non-discriminatory

reasons offered by M.D. Anderson on her termination claim. Accordingly, we hold that the trial court did

not err in granting M.D. Anderson’s motion for summary judgment. We overrule Henderson’s points of error and

affirm the judgment of the trial court.

Sherry

Radack

Chief

Justice

Panel consists of Chief Justice Radack and Justices

Bland and Massengale.

2 See Tex. Lab. Code

Ann . § 21.001 et seq. (Vernon 2006).

3 Federal courts

allocate the various burdens depending on whether the plaintiff presents direct

or circumstantial evidence of discrimination.

While courts invoke the “pretext” model when the plaintiff presents circumstantial

evidence, they use the “mixed motive” model when the plaintiff brings forth

direct evidence. When a plaintiff

produces direct evidence of the employer’s discriminatory intent, the employer

must then produce evidence sufficient to show that it would have made the same

decision if illegal bias had played no role in the employment decision. Starceski v. Westinghouse Elec. Corp. ,

54 F.3d 1089 , 1096 n.4 (3d Cir. 1995).

Under this “mixed motive” model, the employer does not escape liability

altogether; rather the employer earns only an affirmative defense on the

question of “but for” cause or cause in fact.

Id . (noting the interplay of Supreme Court opinions and 1991

Congressional amendments to the Civil Rights Act in this context). In fact, McDonnell Douglas is simply

“inapplicable where the plaintiff presents direct evidence of

discrimination.” Trans World

Airlines, Inc. v. Thurston , 469 U.S. 111, 121 , 105 S. Ct. 613 (1985).