The opinion
Opinion issued July 19, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00884-CV
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KATHIE O’DONOVAN, Appellant
V.
WEINGARTEN REALTY MANAGEMENT COMPANY, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2010-25466
MEMORANDUM OPINION
Kathie O’Donovan, formerly a governmental compliance representative with
Weingarten Property Management Company, lost her job as a result of a reduction
in force after the company experienced a steep drop in real estate acquisition
activity following the 2008 economic downturn. O’Donovan sued Weingarten for
unlawful employment practices under the Texas Commission on Human Rights
Act (TCHRA), alleging that the reduction in force was pretextual and her
termination was instead based on age and disability discrimination. Weingarten
moved for summary judgment on both claims. The trial court granted summary
judgment, and O’Donovan appeals. Finding that O’Donovan failed to raise a fact
issue to rebut Weingarten’s legitimate, nondiscriminatory reason for her
termination, we affirm.
Background
O’Donovan first worked for Weingarten as a part-time employee in the early
1980s. She voluntarily left her employment in 1985, but returned to Weingarten in
1997 to work as a part-time assistant to Victoria Brown, Weingarten’s Director of
Land Sales and Acquisitions. Brown and O’Donovan had worked together during
O’Donovan’s earlier stint at the company, and they had maintained a friendship
through the intervening years.
Brown was aware that O’Donovan had three young children and that one
child, in particular, had special needs that at times would require O’Donovan to be
absent during working hours. All three of O’Donovan’s children require regular
medical and psychiatric treatment, and one attended a special school.
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In 2002, Brown promoted O’Donovan to coordinator of thoroughfare
projects, a full-time position. Brown offered O’Donovan some flexibility with her
work schedule so that she could attend to her children’s medical and personal
needs. O’Donovan performed her job well, and, in 2004, she was promoted to the
full-time position of government compliance representative. Through 2007,
O’Donovan continued to receive satisfactory performance reviews as well as
annual salary increases and bonuses.
Meanwhile, in June 2006, Weingarten promoted administrative assistant
Alison Spencer to the position of assistant governmental compliance
representative. A year later, Spencer was promoted to governmental compliance
representative, the same position as O’Donovan and one of two such positions in
the company at that time.
A few days after Spencer’s promotion, O’Donovan suffered an injury that
required her to take short-term disability leave. When O’Donovan returned to
work three months later, in September 2007, the frequency of her absences from
work increased significantly. Her 2007 performance review shows that
O’Donovan was following a plan to catch up on incomplete work assignments, and
had an overall performance rating of “meets expectations,” at the center of the five-
point scale.
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By January 2008, O’Donovan’s absences during working hours had
increased to the point that it affected her ability to complete her assignments
timely. At times, O’Donovan failed to clear the voicemail on her work cell phone;
as a result, when she was away from the office, Brown was unable to leave her a
message. O’Donovan attributed her absences to her own medical appointments,
psychologist and psychiatrist appointments, personal issues, and her children’s
regular medical, dental, and orthodontic appointments, as well as their school and
extra-curricular activities.
O’Donovan’s February 2009 performance review stated that “O’Donovan’s
work product is generally good, and her job knowledge is excellent,” and also
noted that she “is able to think quickly on her feet and has a thorough
understanding of her job and our processes.” Her frequent and ongoing absences,
however, led to a performance rating of “needs improvement,” the second-lowest
rating on the five-point scale. The review explained that “[d]ue to [O’Donovan’s]
absences [Brown has] been unable to assign [O’Donovan] projects that she would
otherwise be responsible for handling. At this time [O’Donovan] is not producing
an acceptable amount of work for the position.” The review also noted that
O’Donovan’s absences had become a burden on the department and created morale
issues within the team.
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As a result of the performance rating, the company provided O’Donovan
with a Performance Improvement Plan (PIP). The PIP required O’Donovan to be
present in the office for a minimum of forty hours during the work week with a
reasonable allowance for occasional absences. It explained that O’Donovan was
expected to schedule multiple personal appointments in the same day to avoid
missing hours on multiple days and to take a vacation day when the appointments
kept her out of the office for more than three hours. The PIP also required
O’Donovan to provide time logs detailing the number of hours per week she
missed due to personal appointments, including specific arrival and departure
times, and provide advance notice of all appointments. In addition, Brown
required O’Donovan to calendar all of her potential appointments so that Brown
could keep track of where O’Donovan might be if she were out of the office.
The PIP compliance period did not go smoothly. O’Donovan’s absences
decreased, but in July, she failed to attend a regular Monday morning meeting as a
result of misreading an email. Later in July, Brown documented O’Donovan’s
“defensive, combative, [and] insubordinate behavior when O’Donovan refused to
perform the job requested of her in the amount of time allotted causing a delay in a
loan closing.” The amount of work she accomplished during the period compared
unfavorably to the amount accomplished by Spencer.
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In August 2009, Weingarten held an internal meeting to address the effect of
the overall decline in the economy on its acquisitions business. The review
revealed that the number of acquisitions had dropped sharply. In contrast to the
fifty-seven acquisitions the company made in the two-year period from 2005 to
2007, Weingarten completed only two acquisitions in 2008 and had not acquired
any property during 2009. As a result of these conditions, the company concluded
that it no longer needed two governmental compliance representatives to perform
acquisition due diligence and decided to eliminate O’Donovan’s position.
Weingarten informed O’Donovan that it was terminating her employment
because it was eliminating her job function as part of a reduction in force.
Weingarten retained Spencer, who was less than forty years of age, to fill the
remaining governmental compliance representative position.
Before bringing this lawsuit, O’Donovan filed a complaint with the Equal
Employment Opportunity Commission, claiming employment discrimination based
on her age. She also claimed disability discrimination based on her association
with her children.
Discussion
Summary Judgment Standard of Review
An appellate court reviews de novo a trial court’s ruling on a summary
judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
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S.W.3d 844, 848 (Tex. 2009). To succeed on a summary judgment motion under
Texas Rule of Civil Procedure 166a(c), a movant must establish that there is no
genuine issue of material fact so that the movant is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.
Corp., 988 S.W.2d 746, 748 (Tex. 1999).
To conclusively establish an essential element of the nonmovant’s claim, the
movant must show that reasonable minds could not differ as to the conclusion to be
drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005). The evidence is reviewed in the light most favorable to the non-movant,
crediting favorable evidence if reasonable jurors could and disregarding contrary
evidence unless reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing
City of Keller, 168 S.W.3d at 827). When, as here, a trial court’s order granting
summary judgment does not specify the grounds relied upon, we affirm the
summary judgment if any of the summary judgment grounds is meritorious. FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).
Employment Discrimination
O’Donovan brings her age and disability discrimination claims 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) (West
2006); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Texas
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courts apply analogous federal statutes, and the cases interpreting them, to guide
our understanding of the TCHRA. See Toennies, 47 S.W.3d at 476.
Under the TCHRA,
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 (West 2006).
In analyzing O’Donovan’s age and disability discrimination claims, we
apply the McDonnell-Douglas burden-shifting analysis. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–25 (1973); see also
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120 S. Ct.
2097, 2106 (2000)); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d
22, 24 (Tex. 2000). Under this analysis, the plaintiff bears the initial burden to
come forward with a prima facie case of discrimination. Reeves, 530 U.S. at 142,
120 S. Ct. at 2106; Toennies, 47 S.W.3d at 477. To make a prima facie case, the
plaintiff must show that she (1) is a member of a class protected by the Act;
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(2) suffered an adverse employment decision; (3) was qualified for the position
held; and (4) was treated less favorably than similarly situated employees outside
of the protected class. See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; see also
Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston
[1st Dist.] 1993, writ denied). If O’Donovan establishes a prima facie case, the
burden shifts to Weingarten to articulate a legitimate, nondiscriminatory reason for
her termination. See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; accord
Farrington, 865 S.W.2d at 251. If Weingarten meets this burden, the burden shifts
back to O’Donnell to show that the stated reason was a pretext for discrimination.
See Toennies, 47 S.W.3d at 477.
For the purpose of this appeal, we assume, without deciding, that
O’Donovan made a prima facie case of both age and disability discrimination.
Under McDonnell-Douglas, then, we examine whether O’Donovan raised a fact
issue on either claim to rebut Weingarten’s proffered legitimate, nondiscriminatory
reason for terminating O’Donovan’s employment. Weingarten offered two
nondiscriminatory reasons for O’Donovan’s termination: economic conditions and
performance problems. We examine whether O’Donovan adduced any summary
judgment evidence to rebut these reasons.
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Reduction in force
A reduction in force is itself a legitimate nondiscriminatory reason for
termination. EEOC v. Tex. Instrs. Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). In
her deposition, O’Donovan conceded that the economic conditions for commercial
property developers like Weingarten had slowed to the point that, by 2008, its
property acquisition activities had ground to a halt and “everything was at a
standstill.” O’Donovan does not raise evidence that the economic conditions were
a pretext: that Weingarten continued with two positions, or that her position was
necessary despite the downturn.
Absenteeism and performance issues
O’Donovan disputes Weingarten’s estimation of the amount of time that she
spent out of the office, but she admitted in her deposition that, at times, she gave
little or no notice that she would be absent on a particular day. By signing the PIP,
O’Donovan also conceded that she had not been spent sufficient time in the office.
She agreed that Weingarten had a legitimate reason to ensure that it had consistent
and reliable associates present at work to assist its customers and clients and
wanted her to be in the office during working hours more consistently. In addition,
O’Donovan admitted that her children’s disability-related appointments were not
the only reason for her absences, and that some absences were for her own
personal appointments.
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O’Donovan responds that she was more qualified than Spencer to continue
in the position, citing the fact that Brown regularly assigned her—not Spencer—
the more complex transactions to handle. As the Fifth Circuit has explained,
however, “the issue is not whether [the plaintiff] or the retained employees were
better qualified. An employer is entitled to make that decision for itself.” Walther
v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). We hold that O’Donovan
thus fails to raise a fact issue disputing whether these work performance issues
served as a legitimate, nondiscriminatory reason for Weingarten’s decision.
No remarks showing discriminatory animus
As an alternative, O’Donovan claims that she raises a fact issue with
Brown’s direct evidence of discriminatory intent, because Brown commented to
her about the age-consciousness of her own superiors. Remarks may raise a fact
issue on O’Donovan’s claims of age or disability discrimination if they are: (1) age
or disability related, (2) proximate in time to the employment decision, (3) made
by an individual with authority over the employment decision at issue, and (4)
related to the employment decision at issue. See Medina v. Ramsey Steel Co., 238
F.3d 674, 683 (5th Cir. 2001). O’Donovan falls short of meeting these
requirements. She does not identify any individual who expressed discriminatory
animus, the specific language used, when the individual might have made such a
remark, or whether the individual played a part in the decision to eliminate
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O’Donovan’s job. “Stray remarks, remote in time from [the employee’s]
termination, and not made by anyone directly connected with the RIF decisions,
are not enough to raise a fact question about whether [the employer’s] reason for
terminating [the employee] was pretextual.” Willrich, 28 S.W.3d at 25. Brown’s
unspecified expressions of discomfort with her own aging do not themselves raise
a fact issue showing that Brown had age-related discriminatory animus toward
O’Donovan that played a role in the decision to terminate O’Donovan’s
employment. Nor does O’Donovan identify remarks by any decision-maker that
might serve as circumstantial evidence of discriminatory animus toward
O’Donovan’s need to attend to her children’s disabilities. Without circumstantial
or direct evidence to support it, O’Donovan’s subjective belief that age or
disability was a factor in the termination decision is likewise insufficient to raise a
fact issue. See id. We hold that the summary judgment evidence fails to raise a
material fact issue to rebut Weingarten’s legitimate, nondiscriminatory reasons for
terminating O’Donovan’s employment.
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Conclusion
The trial court properly granted summary judgment on O’Donovan’s age
and disability discrimination claims. We therefore affirm the judgment of the trial
court.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Brown.
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