Opinion issued July 19, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-11-00884-CV
                          ———————————
                     KATHIE O’DONOVAN, Appellant
                                      V.
     WEINGARTEN REALTY MANAGEMENT COMPANY, Appellee



                  On Appeal from the 152nd District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-25466



                        MEMORANDUM OPINION

      Kathie O’Donovan, formerly a governmental compliance representative with

Weingarten Property Management Company, lost her job as a result of a reduction

in force after the company experienced a steep drop in real estate acquisition
activity following the 2008 economic downturn. O’Donovan sued Weingarten for

unlawful employment practices under the Texas Commission on Human Rights

Act (TCHRA), alleging that the reduction in force was pretextual and her

termination was instead based on age and disability discrimination. Weingarten

moved for summary judgment on both claims. The trial court granted summary

judgment, and O’Donovan appeals. Finding that O’Donovan failed to raise a fact

issue to rebut Weingarten’s legitimate, nondiscriminatory reason for her

termination, we affirm.

                                   Background

      O’Donovan first worked for Weingarten as a part-time employee in the early

1980s. She voluntarily left her employment in 1985, but returned to Weingarten in

1997 to work as a part-time assistant to Victoria Brown, Weingarten’s Director of

Land Sales and Acquisitions. Brown and O’Donovan had worked together during

O’Donovan’s earlier stint at the company, and they had maintained a friendship

through the intervening years.

      Brown was aware that O’Donovan had three young children and that one

child, in particular, had special needs that at times would require O’Donovan to be

absent during working hours. All three of O’Donovan’s children require regular

medical and psychiatric treatment, and one attended a special school.




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      In 2002, Brown promoted O’Donovan to coordinator of thoroughfare

projects, a full-time position. Brown offered O’Donovan some flexibility with her

work schedule so that she could attend to her children’s medical and personal

needs. O’Donovan performed her job well, and, in 2004, she was promoted to the

full-time position of government compliance representative.         Through 2007,

O’Donovan continued to receive satisfactory performance reviews as well as

annual salary increases and bonuses.

      Meanwhile, in June 2006, Weingarten promoted administrative assistant

Alison   Spencer to the position of assistant governmental               compliance

representative. A year later, Spencer was promoted to governmental compliance

representative, the same position as O’Donovan and one of two such positions in

the company at that time.

      A few days after Spencer’s promotion, O’Donovan suffered an injury that

required her to take short-term disability leave. When O’Donovan returned to

work three months later, in September 2007, the frequency of her absences from

work increased significantly.       Her 2007 performance review shows that

O’Donovan was following a plan to catch up on incomplete work assignments, and

had an overall performance rating of “meets expectations,” at the center of the five-

point scale.




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      By January 2008, O’Donovan’s absences during working hours had

increased to the point that it affected her ability to complete her assignments

timely. At times, O’Donovan failed to clear the voicemail on her work cell phone;

as a result, when she was away from the office, Brown was unable to leave her a

message. O’Donovan attributed her absences to her own medical appointments,

psychologist and psychiatrist appointments, personal issues, and her children’s

regular medical, dental, and orthodontic appointments, as well as their school and

extra-curricular activities.

      O’Donovan’s February 2009 performance review stated that “O’Donovan’s

work product is generally good, and her job knowledge is excellent,” and also

noted that she “is able to think quickly on her feet and has a thorough

understanding of her job and our processes.” Her frequent and ongoing absences,

however, led to a performance rating of “needs improvement,” the second-lowest

rating on the five-point scale. The review explained that “[d]ue to [O’Donovan’s]

absences [Brown has] been unable to assign [O’Donovan] projects that she would

otherwise be responsible for handling. At this time [O’Donovan] is not producing

an acceptable amount of work for the position.” The review also noted that

O’Donovan’s absences had become a burden on the department and created morale

issues within the team.




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      As a result of the performance rating, the company provided O’Donovan

with a Performance Improvement Plan (PIP). The PIP required O’Donovan to be

present in the office for a minimum of forty hours during the work week with a

reasonable allowance for occasional absences. It explained that O’Donovan was

expected to schedule multiple personal appointments in the same day to avoid

missing hours on multiple days and to take a vacation day when the appointments

kept her out of the office for more than three hours. The PIP also required

O’Donovan to provide time logs detailing the number of hours per week she

missed due to personal appointments, including specific arrival and departure

times, and provide advance notice of all appointments.         In addition, Brown

required O’Donovan to calendar all of her potential appointments so that Brown

could keep track of where O’Donovan might be if she were out of the office.

      The PIP compliance period did not go smoothly. O’Donovan’s absences

decreased, but in July, she failed to attend a regular Monday morning meeting as a

result of misreading an email. Later in July, Brown documented O’Donovan’s

“defensive, combative, [and] insubordinate behavior when O’Donovan refused to

perform the job requested of her in the amount of time allotted causing a delay in a

loan closing.” The amount of work she accomplished during the period compared

unfavorably to the amount accomplished by Spencer.




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      In August 2009, Weingarten held an internal meeting to address the effect of

the overall decline in the economy on its acquisitions business.      The review

revealed that the number of acquisitions had dropped sharply. In contrast to the

fifty-seven acquisitions the company made in the two-year period from 2005 to

2007, Weingarten completed only two acquisitions in 2008 and had not acquired

any property during 2009. As a result of these conditions, the company concluded

that it no longer needed two governmental compliance representatives to perform

acquisition due diligence and decided to eliminate O’Donovan’s position.

      Weingarten informed O’Donovan that it was terminating her employment

because it was eliminating her job function as part of a reduction in force.

Weingarten retained Spencer, who was less than forty years of age, to fill the

remaining governmental compliance representative position.

      Before bringing this lawsuit, O’Donovan filed a complaint with the Equal

Employment Opportunity Commission, claiming employment discrimination based

on her age. She also claimed disability discrimination based on her association

with her children.

                                   Discussion

Summary Judgment Standard of Review

      An appellate court reviews de novo a trial court’s ruling on a summary

judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

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S.W.3d 844, 848 (Tex. 2009). To succeed on a summary judgment motion under

Texas Rule of Civil Procedure 166a(c), a movant must establish that there is no

genuine issue of material fact so that the movant is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.

Corp., 988 S.W.2d 746, 748 (Tex. 1999).

      To conclusively establish an essential element of the nonmovant’s claim, the

movant must show that reasonable minds could not differ as to the conclusion to be

drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005). The evidence is reviewed in the light most favorable to the non-movant,

crediting favorable evidence if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing

City of Keller, 168 S.W.3d at 827). When, as here, a trial court’s order granting

summary judgment does not specify the grounds relied upon, we affirm the

summary judgment if any of the summary judgment grounds is meritorious. FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).

Employment Discrimination

      O’Donovan brings her age and disability discrimination claims under the

Texas Commission on Human Rights Act (TCHRA), the state counterpart to Title

VII of the Civil Rights Act of 1964. See TEX. LAB. CODE ANN. § 21.001(1) (West

2006); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001). Texas

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courts apply analogous federal statutes, and the cases interpreting them, to guide

our understanding of the TCHRA. See Toennies, 47 S.W.3d at 476.

      Under the TCHRA,

      An employer commits an unlawful employment practice if because of
      race, color, disability, religion, sex, national origin, or age the
      employer:

      (1) fails or refuses to hire an individual, discharges an individual, or
      discriminates in any other manner against an individual in connection
      with compensation or the terms, conditions, or privileges of
      employment; or
      (2) limits, segregates, or classifies an employee or applicant for
      employment in a manner that would deprive or tend to deprive an
      individual of any employment opportunity or adversely affect in any
      other manner the status of an employee.

TEX. LAB. CODE ANN. § 21.051 (West 2006).

      In analyzing O’Donovan’s age and disability discrimination claims, we

apply the McDonnell-Douglas burden-shifting analysis. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–25 (1973); see also

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43, 120 S. Ct.

2097, 2106 (2000)); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d

22, 24 (Tex. 2000). Under this analysis, the plaintiff bears the initial burden to

come forward with a prima facie case of discrimination. Reeves, 530 U.S. at 142,

120 S. Ct. at 2106; Toennies, 47 S.W.3d at 477. To make a prima facie case, the

plaintiff must show that she (1) is a member of a class protected by the Act;
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(2) suffered an adverse employment decision; (3) was qualified for the position

held; and (4) was treated less favorably than similarly situated employees outside

of the protected class. See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; see also

Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston

[1st Dist.] 1993, writ denied). If O’Donovan establishes a prima facie case, the

burden shifts to Weingarten to articulate a legitimate, nondiscriminatory reason for

her termination.   See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; accord

Farrington, 865 S.W.2d at 251. If Weingarten meets this burden, the burden shifts

back to O’Donnell to show that the stated reason was a pretext for discrimination.

See Toennies, 47 S.W.3d at 477.

      For the purpose of this appeal, we assume, without deciding, that

O’Donovan made a prima facie case of both age and disability discrimination.

Under McDonnell-Douglas, then, we examine whether O’Donovan raised a fact

issue on either claim to rebut Weingarten’s proffered legitimate, nondiscriminatory

reason for terminating O’Donovan’s employment.           Weingarten offered two

nondiscriminatory reasons for O’Donovan’s termination: economic conditions and

performance problems. We examine whether O’Donovan adduced any summary

judgment evidence to rebut these reasons.




                                         9
      Reduction in force

      A reduction in force is itself a legitimate nondiscriminatory reason for

termination. EEOC v. Tex. Instrs. Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). In

her deposition, O’Donovan conceded that the economic conditions for commercial

property developers like Weingarten had slowed to the point that, by 2008, its

property acquisition activities had ground to a halt and “everything was at a

standstill.” O’Donovan does not raise evidence that the economic conditions were

a pretext: that Weingarten continued with two positions, or that her position was

necessary despite the downturn.

      Absenteeism and performance issues

      O’Donovan disputes Weingarten’s estimation of the amount of time that she

spent out of the office, but she admitted in her deposition that, at times, she gave

little or no notice that she would be absent on a particular day. By signing the PIP,

O’Donovan also conceded that she had not been spent sufficient time in the office.

She agreed that Weingarten had a legitimate reason to ensure that it had consistent

and reliable associates present at work to assist its customers and clients and

wanted her to be in the office during working hours more consistently. In addition,

O’Donovan admitted that her children’s disability-related appointments were not

the only reason for her absences, and that some absences were for her own

personal appointments.

                                         10
      O’Donovan responds that she was more qualified than Spencer to continue

in the position, citing the fact that Brown regularly assigned her—not Spencer—

the more complex transactions to handle. As the Fifth Circuit has explained,

however, “the issue is not whether [the plaintiff] or the retained employees were

better qualified. An employer is entitled to make that decision for itself.” Walther

v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). We hold that O’Donovan

thus fails to raise a fact issue disputing whether these work performance issues

served as a legitimate, nondiscriminatory reason for Weingarten’s decision.

      No remarks showing discriminatory animus

      As an alternative, O’Donovan claims that she raises a fact issue with

Brown’s direct evidence of discriminatory intent, because Brown commented to

her about the age-consciousness of her own superiors. Remarks may raise a fact

issue on O’Donovan’s claims of age or disability discrimination if they are: (1) age

or disability related, (2) proximate in time to the employment decision, (3) made

by an individual with authority over the employment decision at issue, and (4)

related to the employment decision at issue. See Medina v. Ramsey Steel Co., 238

F.3d 674, 683 (5th Cir. 2001).        O’Donovan falls short of meeting these

requirements. She does not identify any individual who expressed discriminatory

animus, the specific language used, when the individual might have made such a

remark, or whether the individual played a part in the decision to eliminate

                                        11
O’Donovan’s job.       “Stray remarks, remote in time from [the employee’s]

termination, and not made by anyone directly connected with the RIF decisions,

are not enough to raise a fact question about whether [the employer’s] reason for

terminating [the employee] was pretextual.” Willrich, 28 S.W.3d at 25. Brown’s

unspecified expressions of discomfort with her own aging do not themselves raise

a fact issue showing that Brown had age-related discriminatory animus toward

O’Donovan that played a role in the decision to terminate O’Donovan’s

employment. Nor does O’Donovan identify remarks by any decision-maker that

might serve as circumstantial evidence of discriminatory animus toward

O’Donovan’s need to attend to her children’s disabilities. Without circumstantial

or direct evidence to support it, O’Donovan’s subjective belief that age or

disability was a factor in the termination decision is likewise insufficient to raise a

fact issue. See id. We hold that the summary judgment evidence fails to raise a

material fact issue to rebut Weingarten’s legitimate, nondiscriminatory reasons for

terminating O’Donovan’s employment.




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                                   Conclusion

         The trial court properly granted summary judgment on O’Donovan’s age

and disability discrimination claims. We therefore affirm the judgment of the trial

court.




                                             Jane Bland
                                             Justice

Panel consists of Justices Bland, Massengale, and Brown.




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