                                                                                    ACCEPTED
                                                                                13-15-00115-cv
                                                               THIRTEENTH COURT OF APPEALS
                                                                      CORPUS CHRISTI, TEXAS
                                                                        12/21/2015 12:00:00 AM
                                                                              Dorian E. Ramirez
                                                                                         CLERK

                  CAUSE NO. 13-15-00115-CV

                                                         FILED IN
                                                 13th COURT OF APPEALS
                              In the         CORPUS CHRISTI/EDINBURG, TEXAS
                                                 12/21/2015 8:00:00 AM
               Thirteenth Court of Appeal          DORIAN E. RAMIREZ
                                            of Texas
                                                          Clerk

                     Corpus Christi-Edinburg


                     Julie T. Chau, Appellant

                                v.

Prime Healthcare Services d/b/a Harlingen Medical Center, Appellee


                         Appellee’s Brief



                             ROSEMARY CONRAD-SANDOVAL
                             State Bar No. 04709300


                             ROERIG, OLIVEIRA & FISHER, LLP
                             10225 N. 10th St.
                             McAllen, Texas 78504
                             (956) 393-6300
                             (956) 386-1625 fax


                             Attorneys for Appellee
                             Prime Healthcare Services d/b/a Harlingen
                             Medical Center
                                         TABLE OF CONTENTS

Table of Contents……..…………………………………………………………….i

Index of Authorities .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..iii

Statement of the Case .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .1

Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

         1. The trial court did not err in granting Harlingen Medical Center’s Second
            Motion for Summary Judgment because there are no genuine issues of
            material fact on Plaintiff’s claim for age, national origin, and/or race
            discrimination, and the hostile work environment claims and Appellee
            was entitled to Summary Judgment as a matter of law. . . . . . . . . . . . . . .8
            A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
            B. Analysis of Employment Discrimination Claims . . . . . . . . . . . . . . . 8
            C. Age Discrimination Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                 a.) Appellant has no evidence of age discrimination . . . . . . . . . . . 9
            D. Racial National Origin Discrimination . . . . . . . . . . . . . . . . . . . . . . . 9
                 a.) Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
                 b.) Prima facie case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
                 c.) Stray Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
            E. Hostile Work Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
            F. Legitimate Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
            G. Termination was not Pre-textual . . . . . . . . . . . . . . . . . . . . . . . . . . 17

         2. The trial court did not err in granting Harlingen Medical Center’s Second
            Motion for Summary Judgment on the issue of retaliation because there
            were no genuine issues of material fact and as a result Appellee was
            entitled to Summary Judgment as a matter of law and the Judgment
            should be affirmed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
            A. Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
            B. Appellant did not engage in a protected activity . . . . . . . . . . . . . . .21
            C. No causal connection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
            D. Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
                                                           i
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26




                                                              ii
                        INDEX OF AUTHORITIES
                                  Cases
Azubuike v.Fiesta Mart, Inc. ……………………………………………………..21
870 S.W.2d 60, 65 (Tex. App. Houston [14th dist. 1998, no pet.)

Bartosh v. Sam Houston University ………………………………………………15
259 S.W.2d 317, 324 (Tex App Texarkana 2008, pet. denied).

Booker v. City of Austin …………………………………………………………..11
2013 WL 1149559 (Tex. App. Mar. 13, 2013)

Burlington N. & Santa Fe Ry. Co. v. White …………………………………13, 14
548 U.S. 53, 68, 126 S.Ct. 2405, 165 LEd2d 345 (2006)

Cal-Western Packaging Corp., ………………………………………………….19
602 F.3d 374, 379 (5th Cir. 2010)

Caballero v. Central Power & Light, ………………………..………………….9
858 S.W.2d 359, 361 (Tex. 1993).

Chandler v. CSC Applied Technologies LLC ……………………….14, 20, 22, 24
376 S.W.3d 802 (Tex App Houston [1st Dist.] 2012, pet. denied).

Crutcher v. Dallas Indep. Sch. Dist., ………………………………………..….23
410 S.W.3d 487, 498 (Tex. App. – Dallas 2013, no pet.)

Dias v. Goodman Mfg. Co., LP, ………………………………………………..20
214 S.W.3d 672, 676 (Tex. App. – Houston [14th Dist.] 2007, pet. denied.)

Elgahill v. Tarrant County Junior College, …………………………………14, 17
45 S.W.3d 133, 140 (Tex. App. Ft. Worth 2000, pet. denied)

Esparza v. University of Texas El Paso, ……………………………..…………21
2015 WL 4711612

Farrignton v. Sysco Food Services………………………………………..…….24
865 S.W. 2d 247 (Tex.App – Houston [1st Dist.] 1993, writ denied)

Ford Motor Co. v. Ridgeway …………………………………………………....8
                                   - iii -
135 S.W.3d 598, 600 (Tex. 2004).

Greathouse v. Alvin Ind. Sch.Dist………………………….……………………..24
17 S.W 3d, 419, (Tex. App –Houston [1st Dist.] 2000, no pet)

Grimes v. Texas Dept. of Mental Health and Mental Retardation………..………18
102 F.3d 137, 141 (5th Cir. 1996)

Herbert v. City of Forest Hill …………………………………...……………17, 22
189 S.W.3d 369 (Tex. App – Ft Worth, 2006 no pet.)

LeMaire v. Louisiana Dept. of Transp. & Deb. ………………………………….18
480 F.3d 383, 391 (5th Cir. 2007)

Little v. Republic Refining Co., …………………………………………………..17
924 F.2d 93, 97 (5th Cir. 1991)

Mayberry v. Vought Aircraft Co., ……………………………………………….17
55 F.3d 1086, 1091 (5th Cir. 1995)

McDonnell Douglas v. Green; ……………………………………………….9, 10
411 U.S. 792, 802-804; 93 S.Ct. 1817, 36 Led 2d 668 (1973)

Nairn v. Kileen Ind. Sch. Dist ……………………………………………………16
366 S.W.3 229, 245 (Tex. App. El Paso, 2012 no pet).

Niu v. Revcor Molded Products Co., ……………………………………..……..20
206 S.W.3d 723, 731 (Tex. App. Ft. Worth 2006, no pet.)

Okoye v. University of Texas Health Sci. Center …….………………………11, 12
245 F.3d 507, 514 (5th Cir. 2001).

Perez v. Texas Dept of Crim Justice ……………………………………………..11
395 F.3d 206, 210 (5th Cir. 2004)

Provident Life & Accident Ins. Co., v. Knott ………………………………………8
128 S.W.3d 211, 216 (Tex. 2003)

Quantum Chem Corp. v. Toennies ………………………………………………..9
47 S.W.3d 374, 474 (Tex. 2001).

                                   - iv -
Reeves v. Sanderson Plumbing Prods., Inc., ……………………………………23
530 U.S. 133, 143 (2000);

Sandstad v. CB Richard Ellis, Inc., ………………………………………………23
309 F.3d 893, 899 (5th Cir. 2002).

Scales v. Slater ……………………………………………………………………17
181 F.3d 703, 709 (5th Cir. 1999)

Schroeder v. Texas Iron Works, …………………………………………………..10
813 S.W.2d 483, 485 (Tex. 1991).

Star Telegram Inc., v. Doe.................................................................................8
915 S.W.2d 471, 472 (Tex. 1995)

Strong v. Univ. Healthcare Sys. LLC, ………………………………………….…24
482 F.3d 802, 808 (5th Cir. 2007)

Univ. of Tex. SW Med. Ctr. v. Nassar, …………………………..………………22
__ U.S. __; 133 S.Ct. 2517; 18 L.Ed.2d 503 (2013).


Waggoner v. City of Garland, ………………………………………………...….14
987 F.2d 1160, 1166 (5th Cir. 1993)

Wallace v. Methodist Hospital System, …………………………………………..11
271 F 3d 221 (5th Cir. 2001);

Walmart Stores v. Canchola, ……………………………………………….……10
121 S.W.3d 735, 739 (Tex. 2003).

Warrick Motiva Enterprises, LLC ………………………………………………21
2014 WL 7405645 (Tex. App. – Houston [1st Dist.] Dec. 30, 2014)

Williams v. Time Warner Operations, Inc. ………………………………………10
98 F.3d 179, 18 (5th Cir. 1996)

Yselta Indep. Sch. Dist. V. Monarrez, …………………………………………….11

                                                       -v-
177 S.W.3d 915, 917 (Tex. 2005).

Zuniga v City of San Antonio ………………………………………………..18
2014 WL 60929 (Tex. App. San Antonio January 8, 2014; rev. denied)




                                   STATUTES
Tex. Labor Code § 21.051 (TCHRA)…………………………………..………..8
Tex. Labor Code Ann. § 21.055………………………………………………….20
42 U.S.C.A. § 2000e et. seq. ………………………………………………….8, 9




                                     - vi -
      TO THE HONORABLE COURT OF APPEALS:

      Appellee, Prime Healthcare Services d/b/a Harlingen Medical Center

(hereinafter referred to as “Harlingen Medical Center”) files its Reply to

Appellant’s Brief and requests that the Court affirm the trial court’s ruling on the

Motion for Summary Judgment and the corresponding dismissal of the case as all

issues between the parties have been decided. Harlingen Medical Center would

show the Court the following:

                         STATEMENT OF THE CASE

      Appellee would modify the statement of the case presented by Appellee to

reflect that on April 3, 2013, Appellee filed a First Motion for Summary Judgment

following written discovery. (CR 43-84) At that time, no depositions had been

taken. That Motion for Summary Judgment was set for hearing by submission on

May 8, 2013. Appellant did not timely respond to the Motion for Summary

Judgment and filed a Motion for Leave to File Plaintiff’s Response to Defendant’s

Motion for Summary Judgment along with Plaintiff’s proposed response. (CR 89 -

94) The court held a hearing on the Motion for Leave on May 29, 2013. The court

granted Plaintiff’s Motion for Leave to late file her response to the Motion for

Summary Judgment. (CR 95) The case was then set for submission on the

summary judgment on June 10, 2013. Without hearing oral arguments, a visiting




                                        -1-
trial court judge denied the Motion for Summary Judgment on September 18,

2013. (CR 88)




                                   -2-
ISSUES PRESENTED FOR REVIEW

Reply to Issue 1: The trial court did not err in granting Harlingen Medical
Center’s Second Motion for Summary Judgment because there are no
genuine issues of material fact on Plaintiff’s claim for age, national origin, and
race discrimination, and the hostile work environment claims and Appellee
was entitled to Summary Judgment as a matter of law.

Reply to Issue 2: The trial court did not err in granting Harlingen Medical
Center’s Motion for Summary Judgment on the issue of retaliation because
there were no genuine issues of material fact and as a result Appellee was
entitled to Summary Judgment as a matter of law.




                                       -3-
                          STATEMENT OF FACTS

      Appellant, Julie Chau, was hired by Elizabeth Izaguirre, Director of ICU

Nursing at Harlingen Medical Center, on September 17, 2010.            Ms. Chau

represented herself as being a well-trained, experienced, competent registered

nurse. She was employed a total of 67 days. During this brief tenure, she did not

orient to the department, made multiple performance errors and blamed others for

her shortcomings. After her discharge on November 23, 2010, Ms. Chau claimed

age, race and national origin discrimination. She claimed she was subjected to a

hostile work environment. (CR 68 – 70) The primary focus of her claim lies with a

co-worker, Payton McCloskey, who was assigned as a preceptor to orient Chau to

the hospital policies and procedures. Chau claims that on the first day of her

employment, McCloskey made a comment about Chau’s nationality and reportedly

said she hated Filipinos, even though Chau is not a Filipino. (CR 202) No other

racial remarks were made by McCloskey or anyone else. (CR 218)

      During Chau’s first month of employment, McCloskey observed

performance issues which she reported to her supervisor, Elizabeth Izaguirre.

Izaguirre had a meeting with Chau on or about October 21, 2010 and moved Chau

to the day shift. Izaguirre wanted an opportunity to observe Chau herself and

evaluate her performance first hand. During this meeting, for the first time, Chau

expressed dissatisfaction with her preceptor, McCloskey. (CR 185 – 197)



                                       -4-
      Once moved to day shift, Chau’s performance issues continued. The issues

included pre-charting medication and unsanitary behavior in a patient’s room

reported by a physician. (CR 185 – 199) Due to these problems during her

probationary period, Chau was legitimately terminated from her employment with

Harlingen Medical Center on November 23, 2010. Ms. Chau’s termination was

not motivated by discrimination, harassment or retaliation. The trial court’s ruling

on Appellee’s Second Motion for Summary Judgment is correct and should be

affirmed.




                                        -5-
                      SUMMARY OF THE ARGUMENT

      There are no genuine issues of material fact concerning this employment

dispute. The trial court correctly granted Harlingen Medical Center’s Second

Motion for Summary Judgment. Appellant was terminated for legitimate, non-

discriminatory reasons having nothing to do with her age, national origin or race.

Appellant failed to raise a fact issue that Appellee’s reasons for her termination

were pre-textual.

      The trial court correctly granted Harlingen Medical Center’s Second Motion

for Summary Judgment on Appellant’s hostile work environment claim.           The

complaints Appellant raised concerning her work environment do not rise to the

level of creating a hostile work environment as a matter of law.

      The trial court correctly granted Harlingen Medical Center’s Second Motion

for Summary Judgment on Appellant’s claim of retaliation. Appellant did not

make an internal report of discrimination, and even if a comment about her

inability to work with another nurse stated to her supervisor during the course of

being counseled rises to a level of a protected complaint, this had nothing to do

with Chau’s ultimate termination. There was no causal nexus between the two

events.




                                         -6-
      There were no genuine issues of material fact and Appellant established

entitlement to judgment as a matter of law. The trial court’s judgment should be

affirmed.




                                      -7-
                       ARGUMENT AND AUTHORITIES

Reply to Issue 1: The trial court did not err in granting Harlingen Medical
Center’s Summary Judgment because there are no genuine issues of material
fact on Plaintiff’s claim for age, national origin, and race discrimination, and
hostile work environment claims and Appellee was entitled to Summary
Judgment as a matter of law.

A.    Standard of Review

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), the trial court’s judgment is reviewed under the standards of rule 166a(i).

Ford Motor Co. v. Ridgeway 135 S.W.3d 598, 600 (Tex. 2004). If Appellant failed

to produce more than a scintilla of evidence under that burden then there is no need

to analyze whether Appellee’s summary judgment satisfied the less stringent rule

166a(c).

      When the trial Court’s order granting summary judgment does not specify

the ground or grounds relied on for its ruling, Summary Judgment will be affirmed

on appeal if any of the theories advanced are meritorious. Star Telegram Inc., v.

Doe, 915 S.W.2d 471, 472 (Tex. 1995); Provident Life & Accident Ins. Co., v.

Knott, 128 S.W.3d 211, 216 (Tex. 2003)

B.    Analysis of Employment Discrimination Claims

      It is unlawful to discriminate against a person on the basis of their age, race

or national origin under both Texas and federal law. Texas Commission on Human

Rights Act; Tex. Labor Code § 21.051 (TCHRA); and Title VII Federal Civil Rights



                                         -8-
Act of 1964, 42 U.S.C.A. § 2000e et. seq. 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.

Quantum Chem Corp. v. Toennies 47 S.W.3d 374, 474 (Tex. 2001). Thus, Texas

courts look to both the state statute and cases interpreting the analogous federal

provisions when analyzing claims brought under the TCHRA. Id; Caballero v.

Central Power & Light, 858 S.W.2d 359, 361 (Tex. 1993).

C.    Age Discrimination Claim

      a.) Appellant has no evidence of age discrimination

      Appellant’s counsel virtually conceded at the hearing on December 17,

2014, that he did not have a valid age discrimination claim. (RR p. 14) Other than

announcing the standard and establishing that Julie Chau was 63 years old,

Appellant has produced no evidence of age discrimination. Her own deposition

testimony failed to create a fact issue on this claim. (CR 156 – 157; 221) The trial

court correctly granted appellee’s Second Motion for Summary Judgment on the

age discrimination claim.

D.    Racial National Origin Discrimination

      a.) The Standard

      The well-known burden shifting analysis for employment discrimination

claims was set forth by the United States Supreme Court in McDonnell Douglas v.



                                        -9-
Green; 411 U.S. 792, 802-804; 93 S.Ct. 1817, 36 Led 2d 668 (1973) This analysis

is utilized for both Title VII and TCHRA claims.         Williams v. Time Warner

Operations, Inc. 98 F.3d 179, 18 (5th Cir. 1996); Schroeder v. Texas Iron Works,

813 S.W.2d 483, 485 (Tex. 1991). Specifically, to establish a prima facie case of

race and/or national origin discrimination, a plaintiff must first establish that she

(1) is a member of a protected class; (2) was qualified for the employment

position; (3) she was subject to an adverse employment decision; and (4) was

replaced by someone outside her protected class or treated less favorably than

similarly situated members of the opposite class. If these criteria are established,

the burden shifts to the defendant to show the termination or adverse employment

decision was legitimate and non-discriminatory. If a legitimate reason for the

adverse employment decision is proffered the burden shifts back to the plaintiff to

establish that the articulated reason was merely a pretext for discrimination.

Ultimately, the plaintiff must establish that her race and/or national original was a

motivating factor in the employment decision. Walmart Stores v. Canchola, 121

S.W.3d 735, 739 (Tex. 2003).

      b.) Prima facie case

      Appellant did not set forth a prima facie case of race and/or national origin

discrimination because she failed to establish she was replaced by someone outside

the protected class or treated less favorably than a similarly situated member of the



                                        - 10 -
opposite class.     Here, appellant attempts to establish that she was treated

dissimilarly than a nurse aide named Lily. Lily is not a proper comparator. Lily

was a nurse aide and Appellant a registered nurse. A registered nurse such as Chau

would have the right to direct a nurse aide. (CR 395) If Chau could supervise

Lilly, they are not similarly situated.

      The Texas Supreme Court has held that employees are similarly situated “if

their circumstances are comparable in all material respects, including similar

standards, supervisors, and conduct. Yselta Indep. Sch. Dist. V. Monarrez, 177

S.W.3d 915, 917 (Tex. 2005). The question of whether one or more employees are

“similarly situated” should be considered “from the perspective of their employer

at the time of the relevant employment decisions.” Perez v. Texas Dept of Crim

Justice 395 F.3d 206, 210 (5th Cir. 2004) Booker v. City of Austin, 2013 WL

1149559 (Tex. App. Mar. 13, 2013)

      In order for Appellant to show disparate treatment, she must demonstrate

that the “misconduct for which she was discharged was nearly identical to that

engaged in by an employee not within her protected class, whom the company

retained”. See Wallace v. Methodist Hospital System, 271 F 3d 221 (5th Cir.

2001); Okoye v. University of Texas Health Sci. Center 245 F.3d 507, 514 (5th Cir.

2001).




                                          - 11 -
      Appellant complains that Lily asked Chau to assist her in cleaning a patient,

but that Chau was too busy and suggested she seek help from others. Chau was

subsequently blamed for not helping out.          McCloskey recalls the incident

differently and documented her recollections in an email to Elizabeth Izaguirre.

(CR 394 – 396; 195); There is a clear difference of opinion as to what occurred

with regard to the incident itself. (Compare CR 298 – 305 and 394 – 399)

Regardless, Appellee would submit it wasn’t the incident as to who should have

done what task for the patient that was necessarily of concern—but Chau’s

reaction to it that caused the “write up”. Lily didn’t engage in a 30 minute tirade

about the incident as Chau did. (CR 195, 398). A nurse aide is not nearly identical

to a Registered Nurse. Their conduct vis-à-vis this incident was not the same.

And, this incident was only one of a number of incidences contributing to the

ultimate employment termination.       (CR 188 – 192)       In short, there is no

comparison between the two employees. Chau cannot point to an individual with a

different job, different duties and responsibilities as an example of disparate

treatment. See Okoye, supra. Plaintiff has not established a prima facie case of

race and/or national origin discrimination.

      c.) Stray Comment

      With regard to her race/national origin claim; plaintiff relies almost

exclusively on an alleged comment made by a co-worker about Filipinos on her



                                         - 12 -
first day of employment.       Specifically, Chau claims her preceptor, Payton

McCloskey stated she didn’t like Filipinos and questioned whether Chau was

Filipino. (CR 202) McCloskey denied making any derogatory comments. No other

nurse or hospital personnel made any comments regarding Chau’s race. (CR 218)

Additionally Chau complains that McCloskey was rude to her, didn’t help her

orient and made her do all the work while McCloskey read books or watched

videos. She also opines that McCloskey’s assessment of her work abilities was in

error.    There does appear to have been a conflict between the two nurses.

Appellant contending that she did all the work, while her co-worker Payton

McCloskey was rude, spent her time reading or playing videos and incorrectly

assessed Appellant’s performance. For her part, although McCloskey felt that

Chau didn’t have a good bedside manner and was rough with the patients;

indicating after one incident involving Chau that she herself wanted to be fired

rather than continue to mentor Plaintiff. (CR 231 – 232)   McCloskey and Chau

only worked together one month and then had no further interaction. (CR 219 –

220)

         On or about October 21, 2010 Appellant was moved to day shift. No other

workers made any comments about her race or national origin and Appellant never

worked with McCloskey again.        The sum total of these complaints does not

amount to actionable conduct under Title VII. Burlington N. & Santa Fe Ry. Co. v.



                                        - 13 -
White 548 U.S. 53, 68, 126 S.Ct. 2405, 165 LEd2d 345 (2006) (slights or minor

annoyances that often take place at work and that all employees experience . . . . .

personality conflict at work that generate antipathy and snubbing by supervisors

and co-workers are not actionable under the law).

      For workplace comments to provide sufficient evidence of discrimination,

the comments must be (1) related to the plaintiff’s protected class; (2) proximate in

time to the adverse employment decision (3) made by an individual with authority

over the employment decision at issue, and (4) related to the employment decision

at issue. Chandler v. CSC Applied Technologies LLC 376 S.W.3d 802 (Tex App

Houston [1st Dist.] 2012, pet. denied). The remark complained of by Appellee

made on her first day of employment by a co-worker, does not establish

discrimination as a matter of law. First, McCloskey wasn’t a decision maker as it

relates to Chau’s termination. Once Chau moved to day shift they didn’t work

together again.   The remark had nothing to do with the ultimate termination

decision. Plaintiff has no evidence that the ultimate decision maker bore any

animus toward her. (CR 222- 224) Indeed, Chau agreed that Izaguirre had not

made any racial or ageist remarks. Stray remarks made in the work place by non-

decision makers are not evidence of the employer’s intent to discriminate.

Elgahill v. Tarrant County Junior College, 45 S.W.3d 133, 140 (Tex. App. Ft.




                                        - 14 -
Worth 2000, pet. denied); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th

Cir. 1993) (a mere stray remark is insufficient to establish race discrimination).

E.    Hostile Work Environment

      Appellant claims direct evidence of hostile work environment based on

national origin based on this same alleged comment by McCloskey inquiring

whether Chau was Filipino and stating she disliked Filipinos. The record shows

that McCloskey worked with Chau for less than a month. At best, Chau can point

to one alleged racial comment on the first day of employment. Other than that,

Chau’s complaints amount to grievances between co-workers such as McCloskey

being critical of her work, and treating her differently than a nurse’s aide.

Although the alleged racial comment was made on her first day of employment,

Chau waited until her performance was being questioned to even raise the subject

with her supervisor. (CR 185 – 186; 214)

      A hostile work environment claim entails ongoing harassment based on the

employees protected characteristics so sufficiently severe or pervasive that it has

altered the conditions of employment and created an abusive working environment.

Bartosh v. Sam Houston University 259 S.W.2d 317, 324 (Tex App Texarkana

2008, pet. denied).   To establish a prima facie case of hostile work environment

discrimination an employee must establish: (1) she was a member of a protected

group; (2) she was subjected to unwelcome harassment; (3) the harassment



                                         - 15 -
complained of was based on the protected characteristic; (4) the harassment

affected a term, condition or privilege of employment and (5) the employer knew

or should have known of the harassment and failed to take remedial action. Nairn

v. Killeen Ind. Sch Dist 366 S.W.3 229, 245 (Tex. App. El Paso, 2012 no pet).

Aside from Appellant being a member of a protected group, none of these elements

are present here.   A comment on the first day of employment and apparent

differences of opinion about performance abilities are insufficient to support a

claim of hostile work environment as a matter of law.

F.    Legitimate Termination

      Assuming arguendo that a prima facie case was established, Appellee

presented ample evidence of a legitimate non-discriminatory reason for

Appellant’s termination. In short, Chau’s performance was inadequate. Appellee

presented affidavit testimony from Chau’s supervisor, Elizabeth Izaguirre, (CR 185

– 197) and another nurse, Ruby Byrd, (CR 199) outlining Chau’s performance

problems. At deposition, McCloskey testified to events she witnessed. (CR 392 –

399) Individually or as a whole; all of these performance problems resulted in

Chau’s termination. Any and all of the performance errors constitute a legitimate

reason for Chau’s termination. Loss of confidence caused by an employee’s job

performance has been held to be a legitimate non-discriminatory reason for




                                       - 16 -
termination. Herbert v. City of Forest Hill 189 S.W.3d 369 (Tex. App – Ft Worth,

2006 no pet.)

      Chau disagrees that her performance was deficient. Regardless, the question

is whether the employer’s perception of the former employees performance,

accurate or not, was the real reason for her termination. Even an employer’s

incorrect belief that an employee’s performance is inadequate constitutes a

legitimate non-discriminatory basis for the employment decision. Mayberry v.

Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) citing Little v. Republic

Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).

G.    Termination was not pre-textual

      To establish a fact question on the issue of pretext, the non-movant must

present credible evidence indicating that the non-discriminatory reason given is

false or not credible and the real reason was unlawful discrimination. Elgahill v.

Tarrant County Junior College, 45 S.W.3d 133 (Tex. App Ft. Worth, 2000, pet.

denied) citing Scales v. Slater 181 F.3d 703, 709 (5th Cir. 1999) A plaintiff can

avoid summary judgment on this element if the evidence, taken as a whole, creates

a fact issue as to whether each of the employer’s stated reasons was not what

actually motivated the employer and creates a reasonable inference that national

origin was a determinative factor in the actions the plaintiff is now complaining




                                        - 17 -
about. Id., citing Grimes v. Texas Dept. of Mental Health and Mental Retardation,

102 F.3d 137, 141 (5th Cir. 1996)

      The issue at the pretext stage is not whether the employer made an erroneous

decision it is whether the decision, even if incorrect, was the real reason for the

employment determination The employer is entitled to be unreasonable so long as

it does not act with discriminatory animus.        The job of a reviewing court

conducting a pretext analysis is not to “engage in a second guessing of an

employer’s business decision. LeMaire v. Louisiana Dept. of Transp. & Deb. 480

F.3d 383, 391 (5th Cir. 2007) In order to demonstrate pretext, the plaintiff must do

more than show that the employer made an incorrect decision; she must show that

it made a discriminatory one. Id.

      There is no evidence of intentional discrimination in Chau’s termination. By

her own admission, the persons involved in the termination had no discriminatory

animus. They made no racial remarks. (CR 218) Here, plaintiff points to temporal

proximity (however only employed 67 days so everything has temporal proximity

arguably) and her opinion that the performance complaints were “lies”. Zuniga v

City of San Antonio 2014 WL 60929 (Tex. App. San Antonio January 8, 2014; rev.

denied)

      Appellant asserts the termination was pre-textual because there is a

discrepancy in the report from the physician as to what date the incident with Chau



                                        - 18 -
“picking something from her nose and flicking it in the room” occurred. Appellant

contends it didn’t occur when she was working. As pointed out in Appellee’s

submission; the personnel file shows that while it was reported on November 22,

2010 it was apparently witnessed on Friday, November 19, 2010. (CR 196 – 197,

464).

        With regard to the counseling record, plaintiff agreed she had been verbally

counsel led on all areas outlined in the counsel ling and problem solving record.

(CR 471)        Finally, the progressive corrective action policy states:   “it will

generally be progressive in nature and take the form of verbal or written warning,

suspension or final written warning and discharge. In all cases, the behavior itself

and the severity of the outcome of the behavior shall be taken into account in

determining the appropriate level of corrective action to be imposed. (CR 369) The

verbal counseling was followed by continued lapses and the loss of confidence of a

physician who no longer wanted her working with his patients. (CR 191 – 192)

Such employees cannot continue in a hospital setting.

        Poor performance is a legitimate non-pretextual termination reason.

Assertions of innocence do not create a fact issue as the falsity of the reason for

termination. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010)

Importantly, plaintiff does not dispute she pre-charted medication – an arguably

fire-able offense, in and of itself. (CR 468, 398)



                                         - 19 -
Reply to Issue 2: The trial court did not err in granting Harlingen Medical
Center’s Motion for Summary Judgment on the issue of retaliation because
there were no genuine issues of material fact and Appellee was entitled to
Summary Judgment as a matter of law.

A.    Retaliation

      The TCHRA prohibits an employer from retaliating against an employee for

engaging in certain protected activities. Tex. Labor Code Ann. § 21.055. Protected

activities consist of (1) opposing a discriminatory practice; (2) making or filing a

charge; (3) filing a complaint (4) testifying assisting or participating in any manner

in an investigation, proceeding or hearing. Id. Chandler v. CSC Technologies, LLC

376 S.W.3d 802 (Tex. App. – Houston [1st Dist.] 2012, pet. denied). To prevail on

a retaliation cause under this section the plaintiff must establish a prima facie case

showing (1) she engaged in a protected activity; (2) an adverse employment action

occurred; and (3) a causal link between the protected activity and the adverse

employment action. Dias v. Goodman Mfg. Co., LP, 214 S.W.3d 672, 676 (Tex.

App. – Houston [14th Dist.] 2007, pet. denied.) If the employee sets out a prima

facie case, the burden shifts to the employer to establish a legitimate reason for its

employment action. Chandler supra at 822 - 823. However, an employee’s

subjective beliefs of retaliation are only conclusions and do not raise a fact issue

precluding summary judgment on a retaliatory discharge claim. Niu v. Revcor

Molded Products Co., 206 S.W.3d 723, 731 (Tex. App. Ft. Worth 2006, no pet.)




                                         - 20 -
B.    Appellant did not engage in a protected activity

      When being counseled about her poor performance, Appellant chose to raise

a complaint about a co-worker. (CR 185 – 186) She did not complain about

discrimination, harassment or a hostile work environment. She had a personality

conflict with a co-worker. Complaints about an inability to work with a co-worker

is not a “protected activity” within the meaning of the statute.

      The employee must put the employer on notice that the employee is

opposing practices that she believes constitute prohibited discrimination. Esparza

v. University of Texas El Paso, 2015 WL 4711612, citing Warrick Motiva

Enterprises, LLC 2014 WL 7405645 (Tex. App. – Houston [1st Dist.] Dec. 30,

2014) (not designated for publication). A vague charge of discrimination will not

invoke protection under the statute. Azubuike v. Fiesta Mart, Inc. 870 S.W.2d 60,

65 (Tex. App. Houston [14th dist. 1998, no pet.) Even if Appellant’s complaint

about McCloskey were considered protected activity, it had nothing to do with

Chau’s termination. She was not able to perform the demanding tasks necessary

for an ICU nurse.

C.    No causal connection

      Assuming arguendo, that Chau’s “internal complaint” is considered a

protected activity, it was clearly not the basis for her termination. There is no

causal connection between this complaint and her ultimate termination.



                                         - 21 -
      Plaintiff ignores the fact that whether she raised an internal complaint or not;

whether that was protected activity or not; she no longer worked with McCloskey

and her performance did not improve. Moreover, even if allegations regarding

McCloskey’s race based comments are true – McCloskey was not a decision maker

when it came to employment decisions.

      A plaintiff asserting a retaliation claim must establish that, in the absence of

his protected activity the employer’s prohibited conduct would not have occurred

when it did. Chandler v. CSC Technologies at 823 citing Herbert v. City of Forest

Hill. In other words, the plaintiff must establish a “but for” causal nexus between

the protected activity and the prohibited conduct. Id.; See also, Univ. of Tex. SW

Med. Ctr. v. Nassar, __ U.S. __; 133 S.Ct. 2517; 18 L.Ed.2d 503 (2013).

      Considering the ongoing performance problems documented by Elizabeth

Izaguirre, (CR 185 – 197) including the pre-charting incident (CR 199, 468) and

the fact that appellee had lost the confidence of a physician at the hospital (CR 197

and 469) – all of which were post working with McCloskey -- the record

establishes that Chau’s termination was not retaliatory; but rather a legitimate

business decision.

D.    Pretext

      To raise a fact issue on the pretext element of a retaliation claim, the

employee must present evidence proving the reasons stated by the employer were



                                         - 22 -
not its true reasons, but were a pretext for retaliation, or the reasons were not

credible. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000); Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 498 (Tex. App. –

Dallas 2013, no pet.) An employer is entitled to judgment as a matter of law if the

record conclusively establishes some another non-retaliatory reason for the

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

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

uncontroverted independent evidence that no retaliation occurred. See Reeves, 530

U.S. at 148. The issue at the pretext stage is not whether the employer made an

erroneous decision; it is whether the decision, even if incorrect, was the real reason

for the employment determination. Sandstad v. CB Richard Ellis, Inc., 309 F.3d

893, 899 (5th Cir. 2002). The employer “is entitled to be unreasonable so long as it

does not act with discriminatory animus.” Id. It is the employee’s burden to

proffer evidence creating a fact issue regarding reasonableness. Id.

      The record is full of evidence of plaintiff’s deficient performance. Other

than announcing it couldn’t be true, Chau has presented no evidence of falsity.

Indeed, Appellee presented evidence of performance problems at other hospitals

that Chau worked at besides Harlingen Medical (CR 238 - 260). Appellant has

presented only subjective beliefs to support her claim of pretext. This is not

enough under the law to survive summary judgment. Chandler v. CSC Applied



                                         - 23 -
Technologies, LLC 376 S.W.3d 802, 823, (Tex. App. – Houston [1st Dist.] 2012,

pet. denied); See also, Greathouse v. Alvin Ind. School Dist. 17 S.W.3d 419 (Tex.

App. – Houston [1st Dist.] 2000, no pet.) citing Farrington v. Sysco Food Services,

Inc. 865 S.W.2d 247, 251(Tex. App. – Houston [1st Dist.] 1993, writ denied)

(conclusory allegation, improbable inferences, unsupportable speculation or

subjective beliefs and feelings are insufficient to maintain a cause of action under

the TCHRA).

      Chau complains that she didn’t receive the written complaint and did not

receive “progressive discipline”. She was verbally counseled regarding everything

in the written complaint and conceded as much. (CR 471)             The progressive

discipline policy does not require progressive discipline in every case. It sets forth

a general policy; subject to the needs of the hospital.

      While there was a “temporal proximity” between the two events; one must

not lose sight of the fact that Appellant was only employed 67 days. Temporal

proximity alone is not sufficient to prove a causal connection. Strong v. Univ.

Healthcare Sys. LLC, 482 F.3d 802, 808 (5th Cir. 2007) Everything that occurred

in this short period of time was proximate in time. Importantly, when Elizabeth

Izaguirre hired Appellant she was 63 and Vietnamese. When Elizabeth Izaguirre

fired Appellant she was 63 and Vietnamese. Harlingen Medical Center did not




                                          - 24 -
have any discriminatory animus towards Appellant.            She was terminated for

legitimate, non-retaliatory reasons.

                                  CONCLUSION

      There are no issues of material fact concerning Appellant’s employment

discrimination claims. She was terminated for legitimate, non-discriminatory, non-

retaliatory reasons. There is no evidence the reasons presented were pre-textual or

an effort to intentionally discriminate.        The trial court’s ruling on Harlingen

Medical Center’s Second Motion for Summary Judgment should be affirmed.




                                       - 25 -
                                        PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellee, Harlingen Medical

Center prays that the Court affirm the trial Court’s order. Harlingen Medical

Center prays that the Court award them the costs of this appeal and all further and

other relief to which it is entitled.

                                                 Respectfully submitted,

                                                 ROERIG, OLIVEIRA & FISHER,
                                                 L.L.P.
                                                 10225 N. 10th St.
                                                 McAllen, Texas 78504
                                                 (956) 393-6300
                                                 (956) 386-1625 (facsimile)

                                                 By: /s/ Rosemary Conrad-Sandoval
                                                        Rosemary Conrad-Sandoval
                                                        State Bar No. 04709300

                                                       ATTORNEY FOR APPELLEE

                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all counsel of record on this the 19th day of
December, 2015.

       R. Chris Pittard
       FORTE & PITTARD, PLLC
       1777 NE Loop 410, Suite 610
       San Antonio, Texas 78217


                                                  /s/ Rosemary Conrad-Sandoval
                                                 Rosemary Conrad-Sandoval



                                        - 26 -
