REVERSE and REMAND; and Opinion Filed July 15, 2014.




                                                       S
                                           Court of Appeals
                                                           In The


                                    Fifth District of Texas at Dallas
                                                     No. 05-12-01654-CV

                               JOHN STILLWELL, Appellant
                                           V.
                   HALFF ASSOCIATES, INC. AND DIANNE POPKEN, Appellees

                                On Appeal from the 298th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. DC-10-01050

                                          MEMORANDUM OPINION
                         Before Chief Justice Wright and Justices Moseley and Richter 1
                                           Opinion by Justice Richter
           John L. Stillwell appeals from a summary judgment granted in favor of Halff Associates,

Inc. and Dianne Popken in his wrongful termination lawsuit. On appeal, Stillwell contends the

trial court erred in granting summary judgment and in overruling his objections to Halff’s

summary judgment evidence. Concluding that fact issues exist, we reverse the trial court’s

judgment and remand this case to the trial court.

                                                        Background

          In August of 2003, Halff hired Stillwell as a professional engineer. Stillwell was 50

years old when he was hired. Popken was his immediate supervisor for the duration of his

employment at Halff. Stillwell was an experienced engineer and became a project manager.


   1
       The Hon. Martin Richter, Justice, Assigned.
       As a project manager, Stillwell was required to manage the time utilized to complete his

projects. Stillwell worked with several Engineers-in-Training (EITs). In 2005, Stillwell began

complaining to Popken about the work ethic of three of the EITs. Each of these EITs was under

the age of forty.    Specifically, Stillwell complained that they did not work full days and

improperly billed time on projects that he managed. In response, Popken reminded employees to

record their time accurately.

       In 2008, the amount of Halff’s future expected work dropped significantly. As a result,

Halff laid off approximately thirty employees in the summer of 2008. In May of 2009, as a

result of the continued decline in future expected work, Halff laid off another sixty employees,

including Stillwell. Of these sixty employees, twenty-three were over the age of forty.

       At the time of his termination, Stillwell was involved with nineteen projects. These

projects required from six months to one year to complete. Following the termination of his

employment, Stillwell filed a complaint with the Equal Employment Opportunity Commission

alleging that he was terminated because of his age and retaliated against. The EEOC found no

cause to believe any discrimination or retaliation had occurred and issued its right to sue letter.

       Stillwell sued Halff and Popken alleging unlawful termination, hostile work environment,

and retaliation. The trial court granted the motion for summary judgment filed by Halff and

Popken. This appeal timely followed.

                                       Standard of Review

       Halff sought summary judgment on both traditional and no-evidence grounds.                The

standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). The movant has the burden of showing

that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c). For a defendant to prevail on a traditional motion for summary

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judgment, he must either disprove at least one element of the plaintiff's claim as a matter of law,

or conclusively establish all elements of an affirmative defense. Kalyanaram v. Univ. of Tex.

Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied). We review a no-evidence

summary judgment under the same legal sufficiency standard used to review a directed verdict.

See TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet.

denied). Thus, we must determine whether the nonmovant produced more than a scintilla of

probative evidence to raise a genuine issue of material fact on the challenged element or

elements. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In conducting

our no-evidence summary judgment review, we review the evidence in the light most favorable

to the nonmovant, credit evidence favorable to that party if reasonable jurors could, and

disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006). More than a scintilla of evidence exists when reasonable and fair-

minded individuals could differ in their conclusions. King Ranch, 118 S.W.3d at 751.

                                      Age Discrimination

       In his first amended petition, Stillwell alleged causes of action against Halff and Popken

for wrongful termination, hostile work environment, and retaliation. At oral argument, counsel

for Stillwell conceded that his claims against Popken should be dismissed and that the claim of

hostile work environment has been waived. Accordingly, we address only Stillwell’s claims for

wrongful termination and retaliation against Halff.

       Stillwell alleged that Halff discriminated against him on the basis of his age when it

terminated his employment. Under the Texas Commission on Human Rights Act, an employer

commits an unlawful employment practice, if the employer discharges a person because of race,

color, disability, religion, sex, national origin, or age. See TEX. LAB. CODE ANN. § 21.051 (West

2006). Texas courts look to federal interpretation of analogous federal statutes for guidance

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because an express purpose of Chapter 21 is to “provide for the execution of the policies of Title

VII of the Civil Rights Act of 1964 and its subsequent amendments.” TEX. LAB. CODE ANN.

§ 21.001(1) (West 2006).

       A claim for age discrimination, consists of four elements: (1) the plaintiff is a member of

the protected class; (2) the plaintiff was discharged; (3) the plaintiff was qualified for the

position from which he was discharged; (4) the plaintiff was replaced by someone outside the

protected class or was otherwise discharged because of his age. Russo v. Smith Int’l, Inc., 93

S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The protected class in an

age discrimination suit is restricted to people forty years of age or older. TEX. LAB. CODE ANN.

§ 21.101 (West 2006).       Because plaintiffs in a workforce reduction case are laid off and

frequently unable to prove the replacement element, the Fifth Circuit requires direct or

circumstantial evidence from which a fact finder might reasonably conclude that the employer

intended to discriminate in reaching the decision at issue. Nichols v. Loral Vought Sys. Corp., 81

F.3d 38, 41 (5th Cir. 1996).

       Under the burden-shifting framework established by the United States Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-06, 93 S. Ct. 1817, 1824–26, 36 L. Ed.

668 (1973), the plaintiff must first establish a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If the plaintiff is successful, the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.

Id. The burden then shifts back to the plaintiff to show that the employer’s reason was a pretext

for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825-26. Proof that a

defendant’s explanation is not credible is one form of circumstantial evidence that is probative of

intentional discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147,

120 S. Ct. 2097, 2108, 147 L. Ed. 105 (2000).

                                                –4–
       Stillwell made the initial showing that he was a member of a protected class, he was

discharged, and he was otherwise qualified for the position. Thus, the burden shifted to Halff to

demonstrate a legitimate, nondiscriminatory reason for Stillwell’s termination. See McDonnell

Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.

       Halff moved for summary judgment on Stillwell’s claim of age discrimination on the

grounds that Stillwell could not overcome the nondiscriminatory reason that it needed to reduce

the number of its employees and that there was no evidence that age was a motivating factor in

his termination. To support its grounds for summary judgment, Halff relied upon, among other

things, Stillwell’s deposition testimony and the affidavits of Popken and Joni Caldwell.

       Joni Caldwell has been the Human Resources Director at Halff since 2007. In her

affidavit, she stated that, as result of the downturn in the economy, Halff laid off thirty

employees in 2008. In May of 2009, Halff laid off an additional sixty employees, including

Stillwell, due to the continued drop in the company’s backlog or the amount of expected future

work. Caldwell stated the terminated employees were selected based on their performance and

their potential for contribution to the company. She further stated that Halff did not hire anyone

to replace Stillwell. She stated that Halff did not terminate Stillwell because of his age or

because he complained about the younger EITs.

       Popken stated in her affidavit that she made the decision to hire Stillwell and that she was

his immediate supervisor while he was employed at Halff. Popken confirmed that beginning in

2005, Stillwell began complaining about the work ethic of three of the EITs. He complained that

these individuals came in late, chatted in their cubicles, and may have been improperly billing

time on certain projects. In response, Popken reminded the employees that they were to record

their time accurately. Like Caldwell, Popken testified to the economic downturn and the backlog

it created for Halff. TxDOT and NTTA ceased soliciting proposals for new projects. According

                                               –5–
to Popken, “NTTA placed all of its projects with Halff on hold at this time, including those

previously awarded to Halff.” Notably, on page 30 of the motion for summary judgment, Halff

referred to NTTA’s decision as “NTTA’s hold on his future expected projects.” (Emphasis

added). Popken testified that this decision by NTTA directly affected the expected work of

Stillwell. Like Caldwell, Popken stated that neither Stillwell’s age nor his complaints regarding

the EITs was a factor in terminating his employment.

       Halff also attached excerpts from Stillwell’s deposition to support its motion. Stillwell

testified that during the period of time when he complained to Popken about the work ethic of

the EITs, he continued to receive raises and bonuses. He said Popken essentially ignored his

complaints.

       Through its summary judgment evidence, Halff presented as its nondiscriminatory reason

for its decision to terminate Stillwell’s employment that the downturn in the economy forced it to

reduce the number of its employees. Thus, the burden shifted back to Stillwell to show that

Halff’s stated reason was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804,

93 S. Ct. at 1826-27.

       Stillwell filed a response to Halff’s motion for summary judgment and as support relied

upon his own affidavit and the deposition testimony of both Caldwell and Popken. Stillwell

stated in his affidavit that, at the time of his termination, he was working on nineteen projects

that required an additional six months to one-year to complete.        Moreover, in contrast to

Popken’s testimony that the NTTA and TxDOT projects had been placed on hold, Stillwell

testified that at the time of his termination, he was still working on both projects and they were

ongoing.

       In determining whether Stillwell’s summary judgment evidence was sufficient to refute

Halff’s nondiscriminatory explanation, we find the United States Supreme Court’s opinion in

                                               –6–
Reeves instructive. See Reeves, 530 U.S. at 133, 120 S. Ct. at 2097.          Roger Reeves was a

supervisor at Sanderson Plumbing Products, Inc. (Sanderson).          Part of his duties included

recording the attendance and hours of the employees under his supervision. Reeves, 530 U.S. at

137, 120 S. Ct. at 2103. Russell Caldwell, the manager in Reeves’ department notified Powe

Chesnut, the company’s director of manufacturing that production was down because employees

were frequently absent, arrived late, or left early. Reeves, 530 U.S. at 137-08, 120 S. Ct. at 2103.

Because the monthly attendance reports did not show any problem, Sanderson ordered an audit.

The audit revealed numerous timekeeping errors and other misrepresentations by Reeves,

another supervisor, and Caldwell. Sanderson fired Reeves and the other supervisor. At the time

of his termination, Reeves was fifty-seven years old.

       Reeves sued Sanderson alleging he was fired because of his age. Reeves, 530 U.S. at

138, 120 S. Ct. at 2103. At trial, Sanderson contended that it fired Reeves because he failed to

maintain accurate attendance records. Reeves, 530 U.S. at 138, 120 S. Ct. at 2103-04. To

support its nondiscriminatory explanation, Sanderson presented evidence that, as a result of an

audit in 1993, Reeves was placed on ninety days probation for poor performance and an

investigation in 1995 showed that Reeves was not accurately recording employees’ absences and

hours and that Reeves failed to discipline the absent and tardy employees. Reeves, 530 U.S. at

143-44, 120 S. Ct. at 2106-07.

       To dispute Sanderson’s nondiscriminatory explanation, Reeves presented evidence

showing that the timekeeping errors referred to by Sanderson involved employees who were not

marked late but who were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift.

These employees were counted late because they were not at their workstations at 7 a.m. Reeves

also testified that the automated timeclock frequently failed to scan employees’ timecards so the

timesheets would not record any arrival times. When this occurred, Reeves would visually check

                                                –7–
the workstations and record whether the employees were present.            Reeves also presented

evidence that it was not his responsibility to discipline employees for violations. Finally, Reeves

testified that when he was fired, Chesnut stated it was because Reeves had failed to report an

employee as absent on two days in September of 1995. Reeves countered with evidence that on

those two days, he had been in the hospital and, thus, not at work. Reeves, 530 U.S. at 145, 120

S. Ct. at 2107. Reeves also introduced evidence that Chesnut had made age-based derogatory

comments toward him. Reeves, 530 U.S. at 138, 120 S. Ct. at 2104. The case was tried to a jury

and the trial court rendered judgment in favor of Reeves in accordance with the jury’s verdict.

Reeves, 530 U.S. at 139, 120 S. Ct. at 2104

       The court of appeals reversed holding that Reeves failed to introduce sufficient evidence

to sustain the jury finding of unlawful discrimination. Id. The court of appeals reasoned that,

although Reeves may have offered sufficient evidence for a reasonable jury to find that

Sanderson’s explanation for its decision to terminate Reeves was pretextual, such evidence was

not dispositive of the ultimate issue of whether Reeves’ age motivated the decision. Id.

       The Supreme Court framed the issue as to whether a plaintiff’s prima facie case of

discrimination, combined with sufficient evidence for a reasonable trier of fact to reject the

employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of

liability for intentional discrimination. Reeves, 530 U.S. at 140, 120 S. Ct. at 2104. The

Supreme Court held that it is permissible for the trier of fact to infer the ultimate fact of

discrimination from the falsity of the employer’s explanation. Reeves, 530 U.S. at 147, 120 S.

Ct. at 2108. In reversing the court of appeals, the Supreme Court held that Reeves’ evidence of

the falsity of Sanderson’s explanation was sufficient for the jury to infer liability. Reeves, 530

U.S. at 149, 120 S. Ct. at 2109.




                                               –8–
       Unlike a jury verdict in Reeves, this case involves a summary judgment.            If it is

permissible for a jury to infer unlawful discrimination from evidence of the falsity of the

employer’s explanation, we hold summary judgment is improper where a plaintiff raises a fact

issue as to the veracity of the employer’s explanation.

       In her deposition, Popken testified that Halff chose to terminate employees based on their

potential value to the firm and their ability to perform work remaining to be done. She further

testified that NTTA and TxDOT “had put work on hold.” In her affidavit attached to Halff’s

motion for summary judgment, Popken stated that Halff selected the terminated employees based

on their past performance and their potential for future contribution to the company. She further

stated: “NTTA placed all of its projects with Halff on hold at this time, including those

previously awarded to Halff. NTTA’s decision to place its projects on hold directly affected the

expected work for Mr. Stillwell.”

       In her deposition, Popken testified that Stillwell’s experience as an electrical engineer

could be used outside the context of the NTTA and TxDOT work. When asked if, at the time of

his termination, Stillwell had any projects that he was working on that had to be given to other

people to complete, Popken replied, “I don’t think so.”

       The summary judgment evidence shows conflicting evidence as to whether NTTA and

TxDOT had placed their current projects on hold or whether they were ongoing. Popken was

unaware that Stillwell had numerous other projects he was working on in addition to the NTTA

and TxDOT projects. He testified that these projects required an additional six months to one

year to complete. We conclude Stillwell presented sufficient evidence as to the falsity of Halff’s

explanation to raise a fact issue precluding summary judgment on his age discrimination claim.




                                               –9–
                                             Retaliation

       Stillwell also contends the trial court erred in granting summary judgment on his

retaliation claim. It is unlawful for an employer to retaliate against a person who (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. See TEX. LAB. CODE

ANN. § 21.055 (West 2006). To establish a prima facie case of retaliation, a plaintiff must show

that: (1) he engaged in a protected activity; (2) the employer took an adverse employment action

against him; and (3) a causal link existed between the protected activity and the adverse

employment action. Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004). To

satisfy the causation requirement for a prima facie case of retaliation, a plaintiff must establish

that without the protected activity, the employee’s prohibited conduct would not have occurred

when it did. Id.

       As with an age discrimination claim, if a plaintiff meets the burden to establish a prima

facie case of retaliation, the burden shifts to the defendant to demonstrate a legitimate,

nondiscriminatory purpose for the adverse employment action. Id. The plaintiff then assumes

the burden to present proof that the stated reason was pretextual. Id.

       Circumstantial evidence sufficient to show a causal link between an adverse employment

decision and the filing of a discrimination charge or suit may include (1) the employer’s failure

to follow its usual policy and procedures in carrying out the challenged employment actions; (2)

discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the

discrimination charge or suit by those making the adverse employment decision; (4) evidence

that the stated reason for the adverse employment decision was false; and (5) the temporal

proximity between the employee’s conduct and discharge. Green v. Lowe’s Home Ctrs., Inc.,

199 S.W.3d 514, 519 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

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       Stillwell contends his complaints regarding the engineers in training constituted a

protected activity. Opposition to a discriminatory practice is a protected activity. See City of

Waco v. Lopez, 259 S.W.3d 147, 151 (Tex. 2008).

       Halff moved for summary judgment on Stillwell’s retaliation claims on the following

four grounds:    (1) Stillwell did not engage in a protected activity; (2) even assuming his

complaints about the younger workers were a protected activity, there was no nexus between the

complaints and his termination; (3) Stillwell cannot overcome the proffered nondiscriminatory

reasons for his termination; and (4) there was no evidence his alleged protected activity was a

motivating factor in the termination of his employment.       We have already held that Stillwell

raised a fact issue as to the veracity of Halff’s nondiscriminatory reason.

       Stillwell testified that for several years he complained to Popken regarding the work ethic

of the three EITs under his supervision. His complaints included falsifying timesheets, chatting

in their cubicles, arriving late, and not requiring them to work past 5:00 p.m. Stillwell attached

as an exhibit to his affidavit, a typed general statement that was part of his EEOC Intake

Questionnaire. In that statement, he provided detailed information regarding a meeting held on

May 4, 2009, three days prior to his termination. Present at this meeting were Popken, N.

Bradstreet, and himself. Stillwell stated the following:

       N. Bradstreet maintained that there needed to be [sic] way of “compensating”
       herself and the other EITs and Designers, and insisted that it was o.k. to charge
       time to all of the projects in the MEP Department, even though there was no
       actual work done on those projects, “because the projects belonged to the whole
       group.” J. Stillwell disagreed, and stated that it was a lie, dishonest, against
       company policy and illegal to do this, and that there would be no way to
       accurately track projects or accountability on any project if N. Bradstreet, B. Brla,
       V. Ruder and N. Hearn actually did this.

       Halff contends that the alleged protected activity was objectively unreasonable because it

was wholly unrelated to any alleged unlawful employment practice. We disagree. Company

policy required that all Halff employees were required to record their time worked accurately.
                                               –11–
Stillwell complained to Halff numerous times that three of the EITs were not recording their time

accurately and that they were not being held to comply with Hallf’s policies that applied to all of

its employees. Three days prior to his termination, Stillwell complained to Popken that allowing

the EITs to record time not actually worked was “a lie, dishonest, against company policy and

illegal.” Popken participated in the decision to terminate Stillwell. We conclude this evidence is

sufficient to raise a fact issue as to whether retaliation was a factor in Halff’s decision to

terminate Stillwell’s employment.

           We sustain Stillwell’s issue. We reverse the trial court’s judgment and remand this case

to the trial court. 2




                                                                          /Martin Richter/
                                                                          MARTIN RICHTER
                                                                          JUSTICE, ASSIGNED

121654F.P05




     2
        Having concluded that appellant raised fact issues precluding summary judgment, we need not address his contention that the trial court
erred in overruling his objections to Halff’s summary judgment evidence.



                                                                   –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JOHN STILLWELL, Appellant                              On Appeal from the 298th Judicial District
                                                       Court, Dallas County, Texas.
No. 05-12-01654-CV         V.                          Trial Court Cause No. DC-10-01050.
                                                       Opinion delivered by Justice Richter. Chief
HALFF ASSOCIATES, INC. AND                             Justice Wright and Justice Moseley,
DIANE POPKEN, Appellees                                participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellant JOHN STILLWELL recover his costs of this appeal from
appellees HALFF ASSOCIATES, INC. and DIANE POPKEN.


Judgment entered this 15th day of July, 2014.




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