                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-12-00524-CV

                                         Vernard GRICE,
                                            Appellant

                                                  v.

                        ALAMO COMMUNITY COLLEGE DISTRICT,
                                    Appellee

                     From the 407th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-17062
                       Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: April 24, 2013

AFFIRMED

           Vernard Grice appeals the trial court’s summary judgment in favor of Alamo Community

College District (“ACCD”) on his claims for unlawful sex and race discrimination. We affirm

the judgment, holding Grice failed to present any evidence that he was treated less favorably than

similarly situated females or non-African-Americans.

                                           BACKGROUND

           Grice is an African-American male who began work at ACCD in 1996 as a Continuing

Education Specialist.      By mid-2008, Grice was serving as both the Interim Director of
                                                                                            04-12-00524-CV


Partnerships and Extended Services at St. Philip’s College and as the Interim Dean of Workforce

Development and Continuing Education. 1             In his position as the Interim Director, Grice’s

responsibilities included interviewing, hiring, and supervising staff. As Interim Dean, Grice held

an upper-level management position in which he supervised staff and was expected to provide

direction and leadership.

        When Grice was hired, he received and signed ACCD’s sexual harassment policy. That

policy contained a broad definition of sexual harassment and further stated, “Engaging in sexual

conduct with students or other employees where there is a professional responsibility to the

student or employee may lead to allegations of sexual harassment and is therefore discouraged.”

Grice received training on sexual harassment and ACCD’s policies in 2002, 2007, and in

February 2008. Dr. Adena Williams Loston, who became President of St. Philip’s College in

2007, testified she made it clear to the staff from the time she started that she believed intimate

relationships with students or other employees were inappropriate.

        In September 2008, Grice’s department was looking for an offsite evening monitor to

work at several offsite locations. Grice asked the secretary to contact the temporary agency to

find someone to work part-time temporarily until the position could be advertised and filled

permanently. The temporary agency sent Ms. Cooper. During Ms. Cooper’s first three months

of work, she reported directly to Grice because the position of her direct supervisor was not

filled. Within a month of Ms. Cooper starting work, Grice’s relationship with her became

personal and physical. Grice maintains the relationship was always consensual and there was

never any express or implied coercion. They saw each other outside of work regularly until

sometime in January 2009, and then less frequently until mid-April 2009. During this time,


1
 Grice became the permanent Director of Partnerships and Extended Services in June 2009, and remained Interim
Dean until a permanent Dean was hired in August 2009.

                                                    -2-
                                                                                   04-12-00524-CV


Grice and Ms. Cooper exchanged numerous text messages, including at least one sexually

explicit picture sent by Grice. Grice also admitted that at times third parties were involved in

their sexual activities. Grice testified he gave Ms. Cooper money to repair her car, pay her cell

phone and electric bills, and pay for gas. He paid her $100 to clean his house, and in April 2009,

he gave her $200 to take her grandchildren to Fiesta. Although some outside parties were aware

of the relationship, no one at ACCD was aware of it.

       By January 2009, the position of Ms. Cooper’s direct supervisor had been filled.

Nevertheless, she remained under Grice’s supervision, two or three levels below him in the chain

of authority. In March 2009, Ms. Cooper was hired as a permanent part-time employee. Grice

testified he was not directly involved in the hiring decision.

       In February 2009, ACCD posted proposed new personnel policies for employee review

and comment. The revised sexual harassment policy, D.4.5, contained minor changes in the

definition of “sexual harassment,” but remained essentially unchanged from the previous policy.

However, the language “discouraging” consensual relationships was removed from the sexual

harassment policy and was replaced by a separate, new policy entitled “Consensual

Relationships.” The new policy, D.4.12, expressly prohibited romantic or sexual relationships

between employees and their subordinates or students “whether or not they result in sexual

harassment.” In April 2009, Dr. Loston told her staff at one of her weekly meetings that if any of

them were engaged in such a relationship, it needed to stop before the policy went into effect.

Grice testified he ended the relationship with Ms. Cooper because of Dr. Loston’s warning. The

new policies went into effect April 28, 2009.

       Ms. Cooper filed a sexual harassment complaint against Grice in September 2009. The

complaint alleged that while she was working through the temporary service, Grice, her

supervisor, started calling her frequently and asking her out. She alleged he would become
                                                 -3-
                                                                                  04-12-00524-CV


angry if she declined. She stated Grice repeatedly told her he could get her hired as a permanent

employee, but it would take time. She complained that Grice stalked her at nightclubs, made

inappropriate sexual comments to her, sent sexually explicit text messages, called her at

inappropriate hours, and at times sent her money for no apparent reason. Ms. Cooper stated

Grice implied that she owed her job to him and required that she go to his house to get her

timesheets signed. On one occasion, when she arrived at Grice’s house, there was a naked

woman in the house. Ms. Cooper alleged that Grice required her to watch them have oral sex.

       ACCD assigned Ms. Cooper’s complaint to a committee for investigation.                The

committee consisted of Rebecca Duran, a senior human resources generalist, and a male ACCD

employee from a different campus.       The committee interviewed Ms. Cooper, Grice, and

witnesses they designated, and reviewed all materials they provided. Ms. Duran testified the

committee did not interview anyone other than Ms. Cooper and Mr. Grice who was aware of the

relationship. Thus the only corroboration of any of the details in the complaint came from Grice

himself. Ms. Duran testified that Grice maintained the relationship was entirely consensual. He

corroborated some of Ms. Cooper’s factual allegations, but asserted she was a full and willing

participant. Ms. Cooper contended the relationship was not consensual, and that Grice essentially

forced himself on her.

       The committee concluded that Grice had committed sexual harassment. The committee’s

report contained the following conclusions and recommendations:

       The committee considered Mr. Grice’s claim that Ms. Cooper voluntarily
       participated in an intimate relationship with him. It was also considered that Ms.
       Cooper gained financially from this relationship and that she visited Mr. Grice’s
       home even after he engaged in objectionable conduct. Nevertheless, Mr. Grice, in
       the Interim dean position, was in a position which could, or at minimum
       perceived to implicitly, influence Ms. Cooper’s employment conditions. The
       positional power was highly skewed towards Mr. Grice and makes the voluntary
       nature of such a relationship questionable. As such, the committee determines
       that Mr. Grice exercised poor judgment in entering into an intimate relationship
                                              -4-
                                                                                 04-12-00524-CV


       with a subordinate and that a portion of Ms. Cooper’s complaints of harassment
       against Mr. Grice have been substantiated.

       For this reason, the committee views that Mr. Grice’s behaviors, most notably
       (but not limited to) engaging in an intimate relationship with a subordinate and
       sharing sexually explicit texts, has been sufficiently severe to violate Alamo
       Colleges policy prohibiting sexual harassment. Given the seriousness of the
       behavior(s), Mr. Grice’s level of authority and Mr. Grice’s documented awareness
       of the policies which prohibit such behavior, the committee recommends that Mr.
       Grice is separated from employment with the Alamo Colleges.

The report and recommendation were forwarded to Ruth Dalrymple, St. Philip’s College’s Vice

President of Academic Affairs, who accepted the recommendation, and Dr. Loston approved

terminating Grice’s employment. On October 22, 2009, Grice received a letter notifying him

that his employment was terminated because he had violated ACCD sexual harassment policies

D.4.5 and D.4.5.1.

       Grice sued ACCD under the Texas Commission on Human Rights Act, alleging he was

fired because of his race and gender. See TEX. LABOR CODE ANN. § 21.051 et seq. (West 2006).

He pled the reason given for his firing—that he violated ACCD Sexual Harassment policies

D.4.5 and D.4.5.1—was false and pretextual because those policies did not come into effect until

April 28, 2009, after his relationship ended. Finally, Grice alleged the female employee was not

fired and alleged at least one non-African-American male against whom a claim of sexual

harassment was corroborated had not been fired.

       After the close of discovery, ACCD filed a hybrid motion for summary judgment,

asserting there was no evidence Grice was treated less favorably than similarly situated

employees outside his class, ACCD had a legitimate, non-discriminatory reason for firing Grice,

and Grice had no evidence that ACCD’s rationale was a pretext for discrimination. The trial

court granted ACCD’s motion without stating its reasons and rendered a take-nothing judgment.




                                              -5-
                                                                                     04-12-00524-CV


                                           DISCUSSION

       We review a summary judgment de novo. Provident Life & Acc. Ins. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). We take as true all evidence favorable to the nonmovant and

indulge all reasonable inferences and resolve any doubts in the nonmovant’s favor. Id. When

the trial court does not specify the grounds on which it granted summary judgment, we will

affirm the judgment if any of the theories presented to the trial court and preserved for appellate

review are meritorious. Id. at 216.

       When the movant challenges the evidentiary support for an element of a claim under

Texas Rule of Civil Procedure 166a(i), the burden is on the nonmovant to produce summary

judgment evidence that raises a genuine issue of material fact on the challenged element. TEX.

R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). “A genuine

issue of material fact exists if more than a scintilla of evidence establishing the existence of the

challenged element is produced.” Id. at 600. “[M]ore than a scintilla of evidence exists if the

evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.’” Id. at 601 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997)). “On the other hand, ‘[w]hen the evidence offered to prove a vital fact is so weak

as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more

than a scintilla and, in legal effect, is no evidence.’” Ford, 135 S.W.3d at 601 (quoting Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

       When summary judgment is sought under Rule 166a(c), the movant must establish that

there is no genuine issue of material fact and he is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Co. Hous. Fin. Corp., 988 S.W.2d 746,

748 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to



                                                -6-
                                                                                               04-12-00524-CV


the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 814

(Tex. 2005).

        Under the Texas Commission on Human Rights Act, an employer may not discriminate

against an employee based on “race, color, disability, religion, sex, national origin, or age.” TEX.

LAB. CODE ANN. § 21.051(1) (West 2006).                 The plaintiff has the burden to prove that a

proscribed reason was a motivating factor in the employment decision.                       Id. § 21.125(a);

AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). In the absence of direct evidence of

discrimination, a plaintiff may establish a prima facie case for violation of the Act by showing he

was (1) a member of the class protected by the Act, (2) qualified for his employment position,

(3) terminated by the employer, and (4) treated less favorably than similarly situated members of

the opposing class. AutoZone, 272 S.W.3d at 592; see Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000). 2

        Once a prima facie case is established, the burden shifts to the defendant to clearly

articulate a legitimate, non-discriminatory reason for the adverse employment action. Reeves,

530 U.S. at 142. In the context of summary judgment, the defendant must conclusively establish

its legitimate, non-discriminatory reason for the employment action. M.D. Anderson Hosp. &

Tumor Institute v. Willrich, 24 S.W.3d 22, 24 (Tex. 2000) (per curiam). The burden then shifts

back to the plaintiff to show that the reasons offered were a pretext for discrimination. Reeves,

530 U.S. at 143; Willrich, 24 S.W.3d at 24. Pretext is shown with evidence “that the non-

discriminatory reason given by the employer is false or not credible, and that the real reason for

the employment action was unlawful discrimination.”                  Elgaghil v. Tarrant County Junior

College, 45 S.W.3d 133, 140 (Tex. App.—Fort Worth 2000, pet. denied).

2
  In adopting the Texas Commission on Human Rights Act, the Legislature “intended to correlate state law with
federal law in employment discrimination cases.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.
2005). We may therefore look to federal law to interpret the Act. Id.; AutoZone, 272 S.W.3d at 592.

                                                     -7-
                                                                                 04-12-00524-CV


       Grice first argues the trial court erred in granting summary judgment because he

presented sufficient evidence to support a prima facie case of discrimination. ACCD conceded

for the limited purpose of the summary judgment proceeding that Grice could establish the first

three elements of his prima facie case (member of a protected class; qualified for his position;

and terminated by the employer). However, it moved for summary judgment on the ground that

there was no evidence Grice was treated less favorably than similarly situated females or non-

African-American employees.      In this context, “[e]mployees are similarly situated if their

circumstances are comparable in all material respects, including similar standards, supervisors,

and conduct.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005). To

be evidence of discrimination based on disparate discipline, “the disciplined and undisciplined

employees’ misconduct must be of ‘comparable seriousness.’” Auto Zone, 272 S.W.3d at 594

(quoting Monarrez, 177 S.W.3d at 917). “The situations and conduct of the employees in

question must be ‘nearly identical.’” Auto Zone, 272 S.W.3d at 594 (quoting Monarrez, 177

S.W.3d at 917–18.) “Employees with different responsibilities, supervisors, capabilities, work

rule violations, or disciplinary records are not considered to be ‘nearly identical.’” AutoZone,

272 S.W.3d at 594.

       Grice did not argue, either in his response to the motion for summary judgment or in his

brief on appeal, that he was treated less favorably than similarly situated females. There is no

summary judgment evidence concerning how any complaint of sexual harassment against a

female employee of ACCD was handled. We therefore affirm the summary judgment in favor of

ACCD on Grice’s cause of action for gender discrimination.

       Grice bases his argument that he was treated less favorably than similarly situated non-

African-American males on the case of one Hispanic former staff member who was not fired

after a sexual harassment claim was substantiated and on incomplete information about an
                                              -8-
                                                                                    04-12-00524-CV


adjunct faculty member who allegedly had an affair with a student. Grice relies primarily on the

case of Larry Y., a Hispanic male, against whom a claim of sexual harassment complaint was

filed in 2006. Larry Y. was a Recruiter Advisor at St. Philip’s College and was found to have

committed sexual harassment against a co-worker. He did not have any supervisory authority

over the complainant, nor did he make any hiring, firing, or promotion decisions or exercise

direct authority over any subordinates. The investigative committee recommended Larry Y. be

disciplined, but not terminated.

       We agree with ACCD that Larry Y. was not situated similarly to Grice. Unlike Larry Y.,

Grice directly supervised the complainant he was found to have sexually harassed. Grice held an

upper-level management position at the college and had responsibility for hiring and supervising

subordinates. Larry Y. had no supervisory responsibilities. Moreover, as Interim Dean, Grice

was expected to provide direction and leadership to other staff. These circumstances place Grice

in a significantly different position than Larry Y.

       Grice also relies on an incident he believes occurred in April 2009. According to Grice,

at a staff meeting in April 2009, Dr. Loston related that she had just dealt with an altercation on

campus between a faculty member and a student’s husband.             Dr. Loston testified at her

deposition she recalled “dealing with” a situation around April 2009 that she believes involved a

part-time adjunct faculty member and a student. She did not recall the faculty member’s name,

race, or ethnicity, but believed he had been hired only for the semester and did not return the

following semester. Ruth Dalrymple testified she recalled asking ACCD’s human resources

department to investigate after a spouse made an inquiry about his wife, who was a student, and

an adjunct professor.     Dalrymple did not remember the time frame or outcome.            Human

Resource Generalist Rebecca Duran testified she was part of a team assigned to investigate a

claim of sexual harassment arising out of an adjunct professor’s relationship with a student. The
                                                 -9-
                                                                                                04-12-00524-CV


adjunct was not African-American. The committee recommended the adjunct’s contract not be

renewed for the following semester. However, Duran testified she did not recall a situation in

which a student’s spouse came to campus angry because the student was involved with a faculty

member.

        The incomplete information in the record about the adjunct professor Dr. Loston referred

to in April 2009 does not support Grice’s prima facie case. The record does not establish the

adjunct’s conduct or the findings of any investigation with any degree of certainty. Thus there is

insufficient information to show the adjunct was similarly situated to Grice. Further, there is no

evidence in the record that an adjunct professor found to have had a relationship with a student

was allowed to remain employed at the college and therefore no evidence of more favorable

treatment.

        Grice did not present evidence of any non-African-American males, other than Larry Y.,

who were found to have committed sexual harassment at ACCD and who kept their jobs.

Moreover, the record contains evidence of two other non-African-Americans who lost their jobs

with ACCD after being accused of sexual harassment. Clifton N. was a Hispanic St. Philip’s

College professor against whom a staff member filed a complaint of sexual harassment. During

the investigation, but before it was completed, Clifton N. submitted his resignation and signed an

agreement that he would not seek re-employment with ACCD. Juan M., a Hispanic faculty or

staff member with no prior disciplinary history, was also accused of sexual harassment. ACCD

investigated the complaint and found Juan M. used the authority of his position to request sexual

favors. ACCD fired Juan M. 3


3
  At oral argument, Grice asserted his case should not be compared to Juan M.’s because he was on a different
campus and the ultimate decision to terminate Juan M. was not made by Dr. Loston. Under this rationale, Larry Y.
is also not a fair comparator because the sexual harassment complaint against Larry Y. occurred before Dr. Loston
was employed by ACCD.

                                                     - 10 -
                                                                                               04-12-00524-CV


        The record is devoid of evidence that ACCD has treated similarly situated non-African-

American males more favorably than was Grice. We conclude Grice failed to produce evidence

raising a genuine issue of material fact on one of the elements of his prima facie case of race

discrimination. A plaintiff who fails to demonstrate the elements of a prima facie case “never

gets the presumption of discrimination and never proves his claim.” Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012). The trial court therefore did not err in

granting ACCD’s motion for summary judgment, and we affirm the judgment of the trial court. 4



                                                        Luz Elena D. Chapa, Justice




4
  Because of our disposition of this issue, we need not address whether ACCD established a legitimate, non-
discriminatory reason for firing Grice or whether summary judgment was properly granted on the ground that Grice
presented no evidence the reason was pretextual.

                                                     - 11 -
