      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00030-CV



                                     Hellen Bedgood, Appellant

                                                 v.

                               Texas Education Agency, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-12-001595, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Hellen Bedgood appeals the trial court’s order granting summary judgment in favor

of the Texas Education Agency on Bedgood’s claims for employment discrimination and retaliation.

See Tex. Lab. Code §§ 21.051, .055. In her first and second issues, Bedgood contends that she

established a prima facie case of both her discrimination and retaliation claims. In her third issue,

Bedgood argues that the summary-judgment evidence created a fact issue as to whether the Agency

had legitimate, nondiscriminatory, nonretaliatory reasons for its employment decisions. We will

affirm the trial court’s judgment.


                                         BACKGROUND

               Bedgood, an African-American woman born in 1955, began working for the Agency

in 2003 and was employed as the Assistant Director of the Reading First program in the Agency’s

Division of Curriculum in 2010. On March 30, 2010, the Agency sent Bedgood a letter informing
her that the federal government had eliminated funding for the Reading First program and that

her current position would end on August 31, 2010. The two other Agency employees assigned to

positions in the Reading First program, Deborah Forrester and Kathy Stewart, were also notified

that their positions would end on August 31, 2010. Bedgood, Forrester, and Stewart each applied

for different open positions in the Agency. Bedgood applied for the following positions: Program

Specialist VII, Manager III, Program Specialist V, Program Specialist VI, and Manager IV. She was

not offered employment in any of the positions for which she applied and, on August 31, 2010,

Bedgood’s employment with the Agency ended.

               Bedgood then sued the Agency, alleging causes of action for employment

discrimination and retaliation under the Texas Commission on Human Rights Act (TCHRA). See

id. §§ 21.051, .055. Specifically, Bedgood alleged that the Agency engaged in unlawful employment

practices when “she was not selected for three different positions once the funding ended for her

position” and when she was “discharged” by the Agency. According to Bedgood, both the discharge

from her position with the Agency and the Agency’s failure to hire Bedgood for the positions for

which she applied were due to the fact that she was African-American and over the age of forty.

Bedgood also alleged that her termination from her position with the Agency was in retaliation for

her having complained about being subjected to a hostile work environment. Bedgood also alleged

that she was excluded from merit pay raises that her non-African-American colleagues received.

               The Agency filed a traditional motion for summary judgment arguing that (1) Bedgood

failed to make a prima facie case of discrimination because she did not establish that she was treated

less favorably than similarly situated employees outside a protected class, (2) the Agency’s hiring



                                                  2
decisions were based on objective criteria designed to identify the best qualified candidate and

were therefore legitimate, nondiscriminatory, nonretaliatory employment practices, (3) there were

legitimate business reasons for the Agency’s failure to give Bedgood merit pay increases, and

(4) Bedgood failed to make a prima facie case of retaliation and did not establish a causal connection

between her participation in any allegedly protected activity and any employment decision. Bedgood

did not file a response to the traditional motion for summary judgment, presumably relying on her

response to the Agency’s previously filed no-evidence motion for summary judgment. The trial

court, without specifying the ground on which it relied, signed an order granting the Agency’s

traditional motion for summary judgment.1 Bedgood then perfected this appeal.


                                           DISCUSSION

               Under the TCHRA, an employer commits an unlawful employment practice if,

because of an employee’s race or age, the employer “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.” Id. § 21.051(1) (discrimination

by employer). A prima facie case of racial discrimination requires evidence that the plaintiff (1) is

a member of a protected class, (2) was qualified for the employment position at issue, (3) was

subject to an adverse employment action, and (4) was treated less favorably than similarly situated




       1
          The standards for reviewing a summary judgment are well established and undisputed on
appeal. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth Osteopathic Hosp., Inc. v.
Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004);
see also Tex. R. Civ. P. 166a. Accordingly, we need not repeat them for purposes of our analysis.

                                                  3
members outside the protected class. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000); Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). An employer

also commits an unlawful employment practice if it retaliates or discriminates against a person

who, pursuant to the TCHRA, (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. § 21.055 (retaliation). To make a prima facie showing of

retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) an adverse

employment action occurred, and (3) there was a causal link between the protected activity and

the adverse action. Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004); Dias v.

Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

                The Texas Legislature patterned the TCHRA after federal law “for the express

purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent

amendments.” Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 139 (Tex. App.—Fort Worth

2000, pet. denied); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001)

(stating same). Thus, when analyzing a claim brought under the TCHRA, we look not only to state

cases, but also to the federal statutes and the cases interpreting those statutes, to the extent the federal

statute being interpreted is analogous to the Texas statute. Toennies, 47 S.W.3d at 476.


Race and Age Discrimination

                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. Wal-Mart Stores, Inc. v.

Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing Reeves, 530 U.S. at 142-43; St. Mary’s Honor

                                                     4
Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

03 (1973); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)). Under

the burden-shifting analysis, the plaintiff has the initial burden to come forward with a prima facie

case of discrimination. Reeves, 530 U.S. at 142; Toennies, 47 S.W.3d at 477. Establishment of a

prima facie case creates a rebuttable presumption that the employer unlawfully discriminated

against the employee. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Toennies,

47 S.W.3d at 477. The burden of production then shifts to the employer to articulate some

legitimate, nondiscriminatory reason for its employment decision. Reeves, 530 U.S. at 142; Toennies,

47 S.W.3d at 477. If the employer presents a legitimate reason, the burden shifts back to the plaintiff

to show either (1) the stated reason was a pretext for discrimination or (2) the employer’s reason,

while true, is only one reason, and discrimination was another, “motivating,” factor. Canchola,

121 S.W.3d at 739; Toennies, 47 S.W.3d at 480; see also Tex. Lab. Code § 21.125(a) (providing

plaintiff establishes unlawful employment practice by showing discrimination based on race,

color, sex, national origin, religion, age, or disability was “motivating factor” for employment

practice even if other factors also motivated employment practice unless protected class status is

combined with objective job-related factors to attain diversity in employer’s workforce). 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.

Navy v. College of the Mainland, 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013,

no pet.); Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 466 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).

                                                  5
Retaliation

                Similarly, when the plaintiff establishes a prima facie case of retaliation, the burden

of production shifts to the defendant to articulate a legitimate, nonretaliatory purpose for the adverse

employment action. Pineda, 360 F.3d at 487; Dias, 214 S.W.3d at 676. If the employer presents

a legitimate reason, the plaintiff then assumes the burden to present proof that the stated reason

was pretextual. Gonzalez, 384 S.W.3d at 466. “To carry this burden, the plaintiff must rebut each

nondiscriminatory or nonretaliatory reason articulated by the employer.” McCoy v. City of Shreveport,

492 F.3d 551, 557 (5th Cir. 2007). Unlike claims for discrimination subject to section 21.125(a)

of the Texas Labor Code, which require just a “motivating factor” causation standard, retaliation

claims under section 21.055 are subject to the traditional “but for” measure. Ptomey v. Texas Tech

Univ., 277 S.W.3d 487, 497 & n.11 (Tex. App.—Amarillo 2009, pet denied) (relying on Pineda,

360 F.3d at 488-89); see University of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517,

2533 (2013) (discussing causation requirement for retaliation claim brought under Title VII). The

plaintiff must prove that she would not have suffered an adverse employment action “‘but for’

engaging in the protected activity.” Medina v. Ramsey Steel Co., 238 F.3d 674, 685 (5th Cir. 2001);

Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996) (“[E]ven if a plaintiff’s protected

conduct is a substantial element in a defendant’s decision to terminate an employee, no liability for

unlawful retaliation arises if the employee would have been terminated even in the absence of the

protected conduct.”).

                Bedgood’s discrimination and retaliation claims were based on three of the Agency’s

employment decisions: (1) discharging her from her position as Assistant Director of the Reading



                                                   6
First program, (2) failing to hire her for any of the open Agency positions she applied for, and

(3) failing to give her merit pay raises.2 We will consider whether Bedgood carried her initial burden

of making a prima facie case of discrimination and retaliation with respect to the first two of these

employment decisions and, if she did, whether the evidence, taken as a whole, creates a fact issue

with regard to whether the Agency’s stated reasons for the complained-of employment practices

were a pretext for discriminatory or retaliatory employment decisions. See McCoy, 492 F.3d at 557;

Navy, 407 S.W.3d at 899.


Discrimination based on discharge from Assistant Director position

               It was undisputed that all three of the Agency’s employees whose jobs were related

to the Reading First program were informed that their positions would be eliminated as of August

31, 2010 due to lack of federal funding. Thus, to the extent Forrester and Stewart were similarly

situated to Bedgood by virtue of the fact that all three of them had job functions related to the

Reading First program, neither Forrester nor Stewart was treated more favorably than Bedgood.

Each of them was informed that their position would be eliminated and they were all informed that

they could apply for open positions within the Agency. Although Bedgood contends that only she

was “discharged” because only she was not hired for a different position within the Agency, the

record evidence is undisputed that Bedgood, Forrester, and Stewart all lost their Reading First

positions. Because Bedgood did not carry her burden of establishing that, with regard to her discharge


       2
          Bedgood does not argue on appeal that the trial court erred in granting summary judgment
on her claim that the Agency engaged in discriminatory or retaliatory conduct with respect to merit
pay raises. We do not, therefore, address the merits of the trial court’s summary judgment with
respect to that claim. See Tex. R. App. P. 38.1(f) (brief must state concisely all issues or points
presented for review).

                                                  7
as Assistant Director of the Reading First program, she was treated less favorably than similarly

situated people outside her protected class, she did not make a prima facie case of discrimination

based on that employment decision.


Discrimination based on failure to hire Bedgood

                Bedgood argues that the trial court erred in granting summary judgment on her

discrimination claim arising out of the Agency’s failure to hire her for any of the open positions she

applied for once she was informed that her Assistant Director position would be eliminated due to

lack of federal funding. The Agency counters that Bedgood failed to establish the fourth element

of her prima facie case; i.e., that she was treated less favorably than similarly situated members

outside the protected class. Bedgood contends that she created a fact issue with regard to this

element because she presented evidence that Forrester and Stewart were hired for different positions

within the Agency and she was not. The flaw in Bedgood’s argument is that, with respect to the

Agency’s hiring decisions, neither Forrester nor Stewart was “similarly situated” to Bedgood.

Forrester was hired to fill an Administrative Assistant IV position that Bedgood did not apply for

despite the fact that she was qualified for that position. Stewart was hired to fill a Manager IV

position that Bedgood testified she did not apply for because she was not qualified. It is undisputed

that neither Forrester nor Stewart applied for any of the positions that Bedgood applied for. It is also

undisputed that Bedgood did not apply for any of the positions that Forrester or Stewart applied for.

Thus, evidence that Forrester and Stewart were hired for different positions that they, and not Bedgood,

applied for, does not constitute evidence that, with respect to any specific hiring decision, the Agency

treated Bedgood less favorably than any similarly situated person outside the protected class.

                                                   8
                Even if more general circumstances—i.e., that Forrester and Stewart were successful

at obtaining other employment within the Agency while Bedgood was not—could be considered to

create a presumption of discriminatory intent, the Agency presented evidence of its legitimate,

non-discriminatory reasons for not hiring Bedgood. The Agency’s hiring procedures are set forth

in a document titled “OP 07-23, Personnel Actions.” The procedures require that the Agency base

employee selection on specific job-related criteria that are used to identify the most qualified

applicant for a particular job.

                Bedgood applied for a Program Specialist VII position. The Agency presented

evidence that it did not interview Bedgood for the Program Specialist VII position because there

were more qualified candidates in the applicant pool whose total scores on the Agency’s interview

scoring matrix were higher than Bedgood’s and who had the preferred qualification of certification

in technology applications education. All of the candidates who were selected for interviews for

that position held a certification in technology applications education, whereas Bedgood did not.

                Bedgood applied for a Manager III position in the Division of Student Assessment.

The primary function of the Manager III position was to perform complex managerial work overseeing

activities related to maintaining the security and confidentiality of statewide student assessments.

Bedgood was not interviewed for the Manager III position because applicants were selected based

on the number of points scored on the job screening matrix used by the Agency, which assigned

points based on the degree to which each applicant met a number of job criteria. Applicants scoring

50 points or higher on the interview matrix were interviewed. Bedgood scored 40 points on the

matrix and thus was not interviewed for that position. The person hired for that position had extensive

knowledge of the program and related hands-on experience that Bedgood did not.

                                                  9
               Bedgood applied for a Program Specialist V position in the Division of IDEA

Coordination. That position served as the coordinator of preschool services for students with

disabilities. The preferred qualifications for the position included experience working with students

with disabilities and preschool students, along with knowledge of state and federal laws related to

special education and preschool programs for students with disabilities. Although Bedgood met

the minimum requirements for being interviewed for the position, she did not meet the preferred

qualifications. The person hired for that position had extensive experience working in special

education, which Bedgood did not.

               Bedgood applied for a Program Specialist VI position in the Division of School

Readiness and Partnerships. This position performed advanced consulting services and provided

technical assistance and oversight related to the Early Childhood School Readiness Integration

and Limited English Proficient (LEP) Student Success Initiative. Preferred qualifications for the

position included experience managing programs related to school readiness or LEP initiative and

experience working with at-risk and diverse student populations. Interviews were granted to applicants

based on their score on a hiring matrix that awarded points based on the degree to which the

applicant met the hiring criteria. The three highest scoring applicants, with scores of 80, 85, and 90,

were interviewed. Bedgood was not interviewed for the position because her score of 60 was below

the scores of the applicants interviewed. The Agency hired a person with experience related to the

programs the position would administer.

               Bedgood applied for a Manager IV position in the Division of Discretionary Grants.

The position served as the lead grant manager and involved advanced managerial work and oversight



                                                  10
of the Agency’s grant programs. Interviews were granted to applicants based on their scores on an

interview screening matrix that assigned points to candidates based on the degree to which they met

the hiring criteria. The cutoff for an interview was a minimum of 35 points. Bedgood was not selected

for an interview because her score of 23 points was below the cutoff. The person hired for the position

had extensive knowledge and experience in the area of grant administration and management.

                Bedgood’s evidence, consisting of her deposition testimony, challenges the legitimacy

of these hiring decisions on the ground that, in her view, she was qualified for the positions she

applied for. But “merely disputing [the employer’s] assessment of [the employee’s] qualifications

will not create an issue of fact” regarding discriminatory intent. McCoy v. Texas Instruments, Inc.,

183 S.W.3d 548, 555 (Tex. App.—Dallas 2006, no pet.); Russo v. Smith Int’l, Inc., 93 S.W.3d 428,

440 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“The evidence of relative qualifications

must be more than merely subjective and speculative. It must be specific and comparative in

nature.”). Employment discrimination laws “were not intended to be vehicles for judicial second-

guessing of employment decisions nor intended to transform courts into personnel managers.”

Texas Instruments, 183 S.W.3d at 555-56 (citing Jaso v. Travis Cnty. Juvenile Bd., 6 S.W.3d 324,

332 (Tex. App.—Austin 1999, no pet.)).

                Finally, Bedgood asserts that Forrester and Stewart were treated more favorably

than she was because they were given assistance that facilitated their transition into new jobs

whereas Bedgood was not. Bedgood relies on her own deposition testimony that Stewart and

Forrester were treated differently from her. Specifically, she testified that Forrester and Stewart were

“given jobs for which they did not have to compete.” Bedgood also testified that Stewart was given



                                                  11
work assignments related to her new job before she was actually hired and that Forrester was moved

to a new location in the office before she was hired for her new job. These conclusory allegations

and subjective beliefs are not sufficient to rebut the nondiscriminatory reasons articulated by the

Agency for not hiring Bedgood for any of the positions she applied for. See Greathouse v. Alvin

Indep. Sch. Dist., 17 S.W.3d 419, 425 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (summary

judgment for defendant is proper in discrimination case when plaintiff’s evidence amounts to no

more than conclusory allegations, improbable inferences, speculation, or subjective beliefs and

feelings). To avoid summary judgment, the body of proof must be more than a mere scintilla. Ptomey,

277 S.W.3d at 487. Moreover, the record contains evidence that both Forrester and Stewart applied

for, and were qualified for, the posted positions each was hired to fill. In any event, evidence

tending to show that Forrester and Stewart were given more assistance in finding new positions

within the Agency than was Bedgood, standing alone, would not support a claim of discrimination

under the TCHRA. For purposes of discrimination, the TCHRA only addresses ultimate employment

decisions; it does not address every decision made by an employer that arguably might have some

tangential effect on employment decisions. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575

(Tex. App.—Houston [14th Dist.] 2004, no pet.). The Agency’s decision to relocate Forrester to a

new location in the office or give Stewart work assignments related to a job she later applied for

do not constitute ultimate employment decisions actionable under the TCHRA. We hold that the

trial court did not err in granting the Agency’s motion for summary judgment on Bedgood’s claim

of age and race discrimination.




                                                12
Retaliation for engaging in protected activity

               The Agency argues that summary judgment in its favor on Bedgood’s retaliation

claim was proper because she failed to meet the requirement that she present proof of a causal

link between any protected activity she engaged in and the complained-of employment practices.

Because, as set forth above, the Agency articulated legitimate, nonretaliatory reasons for both the

elimination of Bedgood’s position as Assistant Director of the Reading First program and its

decisions not to hire her for any of the positions she applied for, Bedgood was required to present

evidence that those reasons were false and the real reason for the Agency’s employment decisions

was retaliatory. See St. Mary’s Honor Ctr., 509 U.S. at 515. The proper causation standard for

retaliation claims under section 21.055 is the traditional “but for” measure. Thus, Bedgood was

required to present evidence that the Agency’s employment decisions would not have been taken

but for her having engaged in protected activity.

               As evidence that she engaged in protected activity Bedgood relies on her testimony

that she complained to Todd Webster, Chief of Staff, in a June 2010 staff meeting about the loss of

funding for the Reading First program and, as a result, Monica Martinez, Managing Director of the

Agency’s Curriculum Division, was “put on the spot” during the meeting and consequently later

retaliated against Bedgood when making hiring decisions, specifically for the Program Specialist VII

position. Bedgood also testified that she complained to Tom Shindell, an Organizational Development

Director, that she believed she had been exposed to a hostile work environment. Bedgood argues

that her summary-judgment evidence created a fact issue regarding whether the reason she was

not hired for any of the positions to which she applied was to retaliate against her for making



                                                 13
those complaints. The evidence Bedgood presented to support her contention that, but for those

activities, she would have been hired amounts to no more than conclusory allegations, speculation,

and subjective belief. Bedgood did not present sufficient evidence of retaliatory motive for the

Agency’s employment decisions to rebut the Agency’s stated legitimate, nonretaliatory reasons for

its employment decisions. Having reviewed the summary-judgment evidence, we conclude that

Bedgood’s proof of unlawful retaliation for her complaints regarding the program funding or a

hostile work environment rises no higher than speculation, personal belief, and insupportable

inferences. This is not sufficient to avoid summary judgment on her retaliation claim. See Ptomey,

277 S.W.3d at 497.


                                         CONCLUSION

               Having concluded that the trial court did not err in granting the Agency’s motion for

summary judgment, we overrule Bedgood’s three appellate issues and affirm the trial court’s

judgment.



                                             _____________________________________________

                                             David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: February 19, 2015




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