      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00763-CV



                                    Antonio Nash, Appellant

                                                 v.

                   The Blood and Tissue Center of Central Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
         NO. GN203828, HONORABLE PATRICK KEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this employment discrimination case, Antonio Nash appeals from the trial court's

summary judgment in favor of The Blood and Tissue Center of Central Texas ("BTC"). In three

issues, Nash challenges the grant of summary judgment. Because we find that BTC carried its

burden establishing its right to summary judgment while Nash failed to establish that any genuine

issue of material fact remained, we affirm the trial court’s judgment.


                                        BACKGROUND

               Antonio Nash was employed as a facilities manager at BTC from October 2000 to

May 2001, when he was fired. Nash was the only African-American candidate when he was selected
for the position over several qualified applicants by Denise Ballinger, the Director of Human

Resources, and Arlin Hall, the Chief Financial Officer. Ballinger and Hall were Nash’s supervisors

during his employment at BTC and they ultimately made the decision to fire Nash.

               Although Nash claims that he felt singled out based on his race starting his first day

at BTC, the events leading to his termination began in the spring of 2001. In early April, Nash

reported that Micah Benites, a subordinate “line-worker,” was working under the influence of drugs

and alcohol. Nash initially communicated this to Charlie Pate, Benites’s direct supervisor, and to

Hall. Nash then reported Benites’s suspected drug use to Ballinger on May 1. The following day,

Benites reported to Ballinger that he believed Nash violated BTC’s sexual harassment policy.

Specifically, Benites said that Nash made an inappropriate comment about a female housekeeper and

that Nash gave his keys to another employee, telling him to bring the housekeeper to Nash’s office.

               Ballinger investigated both reports. Although witnesses corroborated Benites’s

allegations that Nash violated the company’s sexual harassment policy, no one corroborated Nash’s

accusations that Benites used drugs or alcohol at work. Two witnesses also reported that Nash

approached subordinate employees to initiate discussion about Benites’s suspected alcohol use.

Such conduct would violate BTC’s confidentiality policy, which states that, if an employee suspects

another employee of being under the influence, the employee must maintain strict confidence and

only notify a supervisor and a representative from human resources about the concern. At the

conclusion of the investigation, Ballinger and Hall met with Nash to discuss their findings. At that

time, Nash accused Benites of being a convicted felon and said he obtained this information through




                                                 2
a criminal background check of Benites.1 Ballinger replied that it was “totally unacceptable” and

against company policy for a manager to conduct a criminal background check on another employee

without prior authorization.

               Ballinger and Hall terminated Nash, citing three violations of company policy as the

basis for their decision: engaging in sexual harassment, failing to keep his suspicions about another

employee’s possible drug use confidential, and running an unauthorized background check on

another employee. Nash disputes the allegations, but he acknowledges that Ballinger informed him

that his termination was based on these three violations.

               Nash obtained a “right to sue” letter from the Texas Commission on Human Rights

in August 2002 and timely filed suit in the district court against BTC for racial discrimination,

retaliation, and intentional infliction of emotional distress. See Tex. Lab. Code Ann. §§ 21.051-.556

(West 1996). BTC responded by moving for summary judgment, which the trial court granted in

BTC’s favor, dismissing all claims against Nash. Nash now appeals the summary judgment, seeking

reversal solely on the racial discrimination claim.


                                           DISCUSSION

Summary Judgment Pursuant to Rules 166a(c) and 166a(i)

               We review the trial court's decision to grant summary judgment de novo. Natividad

v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). In reviewing a summary judgment in which the

trial court has not provided the specific basis for its decision, we must review each argument asserted


       1
          Nash initially claimed that a “police officer friend”conducted the background check for
him, but later acknowledged that he ran the search on his personal computer at home.

                                                  3
in the motion and affirm the trial court’s judgment if any of the arguments is meritorious. See Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). BTC sought summary judgment pursuant

to both Rule 166a(c) and 166a(i). See Tex. R. Civ. P. 166a(c), (i). The trial court granted summary

judgment in favor of BTC without stating the ground. Thus, Nash must defeat all grounds for

summary judgment in order to obtain a reversal on appeal.

               A defendant who moves for summary judgment under Rule 166a(c) must prove that

it is entitled to judgment as a matter of law either by conclusively disproving at least one element

of the plaintiff’s claim or by proving each element of its own affirmative defense, thereby

establishing that no genuine issues of material fact remain. M.D. Anderson Hosp. & Tumor Inst. v.

Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). The defendant must support its motion with

proper summary judgment evidence. Tex. R. Civ. P. 166a(c). Only if the defendant meets its burden

does the burden shift to the plaintiff, as the nonmovant, to establish the existence of a genuine issue

of material fact. Id.

               The initial burden for a defendant who moves for summary judgment under Rule

166a(i) is different. The defendant is merely required to assert that no evidence supports at least one

element of the plaintiff’s claim and specify the challenged element. Johnson v. Brewer & Pritchard,

P.C., 73 S.W.3d 193, 207 (Tex. 2002). The nonmoving plaintiff then carries the burden of proof to

establish a genuine issue of material fact on at least one essential element of its claim. Id. We

construe the evidence in the light most favorable to the nonmovant. Id. at 208. The substantive law

governing the plaintiff’s claim will determine what is considered an “essential element.” Nash’s

claim is governed by employment discrimination law.



                                                  4
The McDonnell Douglas Burden-Shifting Analysis

               At the time Nash filed his claim, the governing statute was the Texas Commission

on Human Rights Act (“TCHRA”). Tex. Lab. Code Ann. §§ 21.051-.556 (West 1996). Our reading

of the TCHRA is guided by analogous federal law. Quantum Chem. Corp. v. Toennies, 47 S.W.3d

473, 476 (Tex. 2001). For decades, Texas courts have followed the burden-shifting framework

established by the Supreme Court for analyzing employment discrimination cases. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas analysis involves three

steps. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

               At step one, the plaintiff must prove a prima facie case of discrimination. Id. The

required elements vary depending on the plaintiff’s specific allegations. Quantum Chem. Corp., 47

S.W.3d at 477. If the plaintiff claims that an adverse employment decision was taken against him

based on race, as here, then he must establish that: “(1) he was a member of a protected class, (2) he

suffered an adverse employment action, and (3) nonprotected class employees were not treated

similarly.” Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.—Houston [1st

Dist.] 1993, writ denied).2 The plaintiff’s prima facie burden is not onerous. Burdine, 450 U.S. at




       2
          Both Nash and BTC recited in their briefs that the third element of the plaintiff’s prima
facie burden is whether the plaintiff was replaced by someone outside of the protected class. In a
race discrimination case, this “may help raise an inference of discrimination, [but] it is neither a
sufficient nor necessary condition.” Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.
1996). If the discrimination is based on age, however, most courts require proof that the plaintiff
was replaced by a nonprotected class member. See, e.g., Reeves v. Sanderson Plumbing Co., 530
U.S. 133, 142 (2000); Russo v. Smith Int’l, 93 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.]
2002, pet. denied); Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 328 (Tex. App.—Austin 1999,
no pet.).

                                                  5
253. If the plaintiff satisfies this burden, it creates a rebuttable presumption that discrimination

occurred. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983).

               At step two the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its employment decision. Burdine, 450 U.S. at 253. The defendant’s

burden is merely one of production, not persuasion. Board of Trustees v. Sweeney, 439 U.S. 24, 25

(1978). If the defendant carried its burden at step two, the presumption of discrimination is

eliminated and the burden shifts back to the plaintiff to overcome the defendant’s proffered reason.

Quantum Chem. Corp., 47 S.W.3d at 477.

               The law is currently in flux about what the plaintiff must prove to prevail at step

three. Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (discussing unsettled state

of current law). For many years, Supreme Court precedent specified that there were two ways to

analyze employment discrimination cases: If the plaintiff only had circumstantial evidence of

discrimination then McDonnell Douglas’s three-step test governed, but if the plaintiff had direct

evidence of discrimination, then the test set forth in Price Waterhouse v. Hopkins was controlling.

Price Waterhouse, 490 U.S. 228, 244-45 (1989); McDonnell Douglas Corp., 411 U.S. at 802-05;

see also Quantum Chem. Corp., 47 S.W.3d at 476 (how case is analyzed depends entirely upon

presence or absence of direct evidence). Under McDonnell Douglas, the plaintiff’s ultimate burden

is to prove that the defendant’s articulated reason is not the true reason for its employment decision,

but instead is mere “pretext” for a discriminatory reason. 411 U.S. at 804. The Price Waterhouse

“mixed motive” analysis only requires that the plaintiff prove that “discrimination was a motivating

factor in the employment decision, even if the employer’s decision would have been identical in the

absence of discrimination.” Quantum Chem. Corp., 47 S.W.3d at 478.

                                                  6
               Recent opinions from the United States Supreme Court and the Texas Supreme Court

have caused the line between “pretext” and “motivating factor” cases to be blurred. The Texas

Supreme Court in 2001 held that the plain language of the TCHRA3 mandates that “‘a motivating

factor’ is the correct standard of causation for the plaintiff in all TCHRA unlawful employment

claims,” whether the claim is based on direct or circumstantial evidence. Id. at 480; see also City

of Austin Police Dep't v. Brown, 96 S.W.3d 588, 600 (Tex. App.—Austin 2002, pet. dism'd)

(discussing Quantum Chemical’s holding). The Quantum Chemical court did not eliminate the

pretext requirement. Rather, it held that plaintiffs can prove discrimination was a “motivating

factor” for the employment decision by showing that the employer’s articulated reason was mere

pretext. 47 S.W.3d at 481-82. In 2003, the Texas Supreme Court again stated that “motivating

factor” is the proper standard of causation, even in a “pretext” case. Wal-Mart Stores, Inc. v.

Canchola, 121 S.W.3d 735, 739-40 (Tex. 2003). It is not sufficient for a plaintiff to prove the

employer’s articulated reasons are pretext for some other reason; the plaintiff must show the other

reason to be one motivated by discrimination against the plaintiff’s protected class. Id. at 740 (“The

relevant inquiry is not whether the [articulated reasons] were pretext, but what they were a pretext

for.”). Thus, after Quantum Chemical and Canchola, Nash’s burden of showing that BTC was

motivated by discrimination can be satisfied with proof that BTC’s articulated reasons are mere

pretext.




       3
            “Except as otherwise provided by this chapter, an unlawful employment practice is
established when the complainant demonstrates that race, color, sex, national origin, religion, age,
or disability was a motivating factor for an employment practice, even if other factors also motivated
the practice. . .” Tex. Lab. Code Ann. § 21.125(a) (West 1996) (emphasis added).

                                                  7
               Most recently, the United States Supreme Court held that the “mixed motive” analysis

is proper in cases based wholly on circumstantial evidence as well as those based on direct evidence.

Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003). Courts have differed as to whether the

McDonnell Douglas analysis has survived Desert Palace. Compare Sanders v. City of Montgomery,

319 F. Supp. 2d 1296, 1314 (M.D. Ala. 2004), with Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa,

Inc., 285 F. Supp. 2d 1180, 1196 (N.D. Iowa 2003). We need not decide which interpretation of

Desert Palace is correct for purposes of this case because Nash failed to produce sufficient evidence

to prevail under either construction. See Roberson, 373 F.3d at 652 (holding that McDonnell

Douglas did not affect outcome of appeal because appellant failed to create “a fact issue as to

whether Alltel’s adverse employment decision was, even in part, motivated by discriminatory

animus.”).


BTC’s Summary Judgment Motion

               Nash makes an initial challenge to the summary judgment by claiming that the trial

court improperly held him to a higher standard of proof than was required. Nash asserts that he was

held to a “preponderance” rather than a “scintilla” standard. We agree that a nonmovant satisfies

his summary judgment burden by producing more than a scintilla of evidence to create a genuine

issue of material fact on at least one essential element of his claim. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 124 S. Ct. 2097 (2004). Nash’s claim fails, however,

because nothing in the record indicates that the trial court applied the wrong standard and, in any

event, Nash failed to produce even a scintilla of evidence to raise a genuine issue of material fact.




                                                 8
               Under the burden-shifting framework, it is undisputed that Nash established his prima

facie case at step one and that BTC satisfied its burden at step two by articulating three violations

of company policy as legitimate, nondiscriminatory reasons for Nash’s termination. The only

essential element about which Nash could raise a genuine issue of material fact, then, is whether

BTC’s articulated reasons were legitimate, or were instead mere pretext for a true, discriminatory

motivation.

               “To establish a fact question on the issue of pretext, the nonmovant must present

evidence indicating that the nondiscriminatory reason given by the employer is false or not credible,

and that the real reason for the employment action was unlawful discrimination.” Elgaghil v.

Tarrant County Junior Coll., 45 S.W.3d 133, 140 (Tex. App.—Fort Worth 2000, pet. denied)

(emphasis added). In an attempt to satisfy this burden, Nash argues that BTC’s articulated reasons

varied over time, that BTC’s investigation was flawed and produced no evidence of a legitimate

reason to terminate Nash, and that BTC’s racial discrimination is evidenced by the comment of John

Gabbert, a subordinate employee. None of these allegations create a genuine issue of material fact

about whether BTC’s articulated reasons were legitimate or pretextual, and Nash has failed to adduce

any affirmative proof of racial discrimination by BTC.


    Consistency of BTC’s Articulated Reasons

               Nash claims that a genuine issue of material fact remains at step three based on a

statement given by Ballinger in June 2001 to a Texas Workforce Commission (TWC) Operator4



       4
          The TWC conducted an “appeal tribunal hearing” over the telephone as an administrative
fact-finding process in a claim Nash filed seeking unemployment compensation.

                                                 9
regarding why Nash was terminated. Ballinger told the operator that the “real reason” Nash was

fired was for sexual harassment. According to Nash, Ballinger’s statement implies that his

termination was based on a single policy violation and is therefore inconsistent with the decision that

Nash was terminated for violating three policies. Nash’s claim is without merit.

               Although Ballinger did refer to sexual harassment as the “real reason,” she also

explained the two other policy violations to the operator. Ballinger testified that there were always

three reasons leading to Nash’s termination and that her statement about the “real reason” was given

in response to the operator’s request for a “primary” reason, not that Nash’s sexually harassing

conduct was the “sole” reason for his termination. Ballinger’s testimony is supported by Nash’s own

statement to the TWC on May 21, 2001, the day he was fired. Nash listed all three violations of

policy as the reasons Ballinger expressed to him for BTC’s decision. The record evidences that BTC

has consistently articulated Nash’s three policy violations as its legitimate, nondiscriminatory

grounds for Nash’s termination, and Nash failed to produce a scintilla of evidence to raise a genuine

issue of material fact about whether BTC’s reasons were mere pretext for a discriminatory motive.


    BTC’s Investigation

               Nash also attempts to create a genuine issue of material fact about the legitimacy of

BTC’s articulated reasons by claiming that Ballinger’s investigation reached inaccurate conclusions

on each of the three allegations against him. First, Nash challenges the finding that he violated

BTC’s sexual harassment policy. He claims Ballinger did not interview the proper witnesses and

that the allegation was fabricated by Benites in retaliation against Nash for Nash’s report of

Benites’s suspected drug use. Nash asserts that Ballinger should have interviewed Aurelia Cruz,

another co-worker whom Nash claims was present at the time he allegedly made the inappropriate

                                                  10
comment about the housekeeper. Nothing in the record shows that Nash informed Ballinger about

Cruz or asked Ballinger to interview her, and Nash did not offer an affidavit by Cruz at the summary

judgment hearing.

               Nash also fails to satisfy his burden by pointing to Benites’s motivations. Nash did

not produce evidence that any possible animosity felt by Benites against Nash was based on race.

Even if Benites had improper motives for making the allegation against Nash, that does not provide

any evidence of racial discrimination by BTC. Nash does not allege that Benites exerted influence

over Ballinger or Hall, the primary decisionmakers, to cause Nash’s termination. See Roberson, 373

F.3d at 653. Finally, two other employees corroborated Benites’s report that Nash made sexual

comments about the housekeeper and requested that she be brought to his office. These facts

evidence a legitimate reason for Nash’s termination based on his misconduct, not his race.

               Nash also challenges the finding that he violated company policy by initiating

discussion with subordinates about Benites’s possible drug use. He claims that the witnesses who

reported this violation to Ballinger were lying. “[An employee’s] subjective belief that he was

terminated based on race . . . is insufficient to create a fact issue about whether [an employer’s]

legitimate nondiscriminatory reason for terminating [him] was pretextual.” M.D. Anderson Hosp.

& Tumor Inst., 28 S.W.3d at 25. Moreover, “an employee’s subjective belief that an employer gave

a false reason for its employment decision is not competent summary judgment evidence.” Elgaghil

45 S.W.3d at 141. Ballinger had sufficient reports from which to conclude that Nash violated BTC’s

confidentiality policy. Nash provided Ballinger with the names of four subordinate employees whom

he claimed approached him, a manager, with reports that Benites was using drugs. Ballinger

interviewed each of these four, plus one additional employee from Benites’s department. All five


                                                11
told Ballinger that they did not have any personal knowledge of Benites using drugs or alcohol at

work and that they had not made such a report. Two told Ballinger that Nash approached them to

discuss his suspicions about Benites. Nash did not produce any evidence to support his claim that

these five witnesses lied to Ballinger. Nash’s subjective belief is not sufficient to overcome the

evidence produced by BTC.

               Regarding the third allegation, Nash does not deny that he conducted an unauthorized

background check on Benites; he only asserts that such conduct did not constitute a violation of

BTC’s policy. His claim does not provide a scintilla of evidence to overcome BTC’s legitimate

reasons for Nash’s termination.

               In sum, Nash’s challenge to Ballinger’s investigation fails to satisfy his burden

because he does not claim that the investigation was inadequate, but only that its results were

incorrect. “[I]t is not sufficient for [the employee] to present evidence that the [employer’s]

investigation was imperfect. . . .” Canchola, 121 S.W.3d at 740. Nash was an at-will employee

whom BTC was entitled to fire for any reason, as long as it was not illegal. See id. Any one of the

three policy violations provides BTC with a legitimate basis for firing Nash. The evidence in the

record supports both the conclusions reached by Ballinger’s investigation—that Nash violated three

company policies—and BTC’s articulation that Nash was terminated based on this misconduct.

There is no evidence to support Nash’s subjective belief that his termination was based on his race.


    Stray Remarks and the Lack of Affirmative Proof of Discrimination

               Nash also sought to overcome BTC’s articulated reasons and adduce affirmative

evidence of discrimination by pointing to a racial comment made in the workplace by John Gabbert,

a subordinate employee. Nash provides the affidavit of Paul Aleman, a former BTC employee, to

                                                12
support his claim. Even if Gabbert made the allegedly discriminatory statement, it does not create

a fact issue about whether BTC’s decision was motivated by discrimination. Workplace comments

do not provide sufficient evidence of a discriminatory animus on behalf of the employer unless they

are “(1) related to 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.” Elgaghil, 45 S.W.3d at 140 (citing Krystek v.

University of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)). Otherwise, such comments are merely

stray remarks that, standing alone, provide no evidence of discrimination. Id.

               It is undisputed that Gabbert was not a decisionmaker; Nash was Gabbert’s manager.

Nash never reported Gabbert’s alleged comment to any decisionmaker and there is no evidence that

the decisionmakers otherwise knew about his comment. Nor is there any evidence to suggest that

Gabbert had any influence with or over the decisionmakers. Aleman’s affidavit states that this

comment was made in “late 2000,” approximately five months prior to Nash’s termination. Because

the pivotal events in Nash’s termination did not begin until a month before the decision was made,

Gabbert’s comment was not proximate in time to the employment decision. Stray remarks, remote

in time from Nash’s termination, and not made by anyone directly connected with the decision, are

not enough to raise a fact question about whether BTC’s reasons for terminating Nash were

pretextual. See M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 25.

               Nash’s own testimony also demonstrates his lack of affirmative proof. Nash testified

that he did not believe that Ballinger or Hall, the two decisionmakers, were racist. He could not

identify any instance where either Ballinger or Hall had been unfair towards an African-American



                                                13
or other minority. Nash acknowledged that he and Hall had a good working relationship. Nash also

conceded that, prior to this lawsuit, he never complained to any supervisor or government agency

about racial discrimination at BTC.

               The record shows that Nash’s claim that he was terminated because of his race is

based on nothing more than his subjective beliefs. At most, it amounts to “mere surmise or

suspicion” and does not constitute a scintilla of evidence sufficient to create a fact issue. See Gold

v. Exxon Corp., 960 S.W.2d 378, 384 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Nash cannot

meet his burden simply by denying the allegations against him and making conclusory statements

that he was discriminated against because “some suspicion linked to another suspicion produces only

more suspicion, which is not the same as some evidence.” King Ranch, Inc., 118 S.W.3d at 755.

Nash’s first issue is overruled.


Same Actor Inference

               Nash next argues that the trial court erred in giving a “weighty” preference to BTC

regarding the “same actor” inference. It is undisputed that the same actor inference applies in this

case because Ballinger and Hall made both the decisions to hire and to fire Nash. When a plaintiff

is both hired and fired by the same decisionmaker, an inference arises that the adverse employment

decision is not motivated by discrimination, because it would be illogical to hire someone possessing

a characteristic the employer disliked, “only to fire them once they are on the job” based on that same

characteristic. Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). The inference in favor

of the defendant is “even more weighty” when the decisionmaker is also a member of the same

protected class as the plaintiff. Ralkin v. New York City Transit Auth., 62 F. Supp. 2d. 989, 1000

                                                  14
(E.D.N.Y. 1999). Neither Ballinger nor Hall belong to Nash’s protected class. Nothing in the

record, however, suggests that the trial court gave the inference any undue weight. The summary

judgment was granted based on Nash’s failure to meet his burden of proof by creating a genuine

issue of material fact at step three, not because the trial court relied on the same actor inference.

Nash’s second issue is overruled.


Evidentiary Rulings

               In his third issue, Nash asserts that the trial court erred by admitting portions of

Ballinger’s affidavit and by excluding the notes made by the TWC Operator. At the summary

judgment hearing, Nash objected to the admission of two parts of Ballinger’s affidavit. He first

objected to her statement that “[t]o my knowledge, Benites did not know about Nash’s complaint

before he made his complaint about the housekeeper incident,” on the grounds that she could not

have personal knowledge about what Benites knew and that the affidavit was contradictory to her

other testimony. He also objected to the portion of Ballinger’s affidavit where she explained the

three violations of company policy that provided BTC’s basis for his termination. Nash claims this

statement contained legal conclusions and was contradictory to her other testimony. The trial court

overruled both objections and admitted the affidavit in full.

               The trial court did not err in overruling Nash’s first objection because Ballinger’s

statement was based on personal knowledge and there was no evidence contradicting it. Ballinger’s

affidavit sets forth the beliefs she formed through her investigation. The decisionmaker’s personal

thought process is relevant in an employment discrimination case. Ballinger’s statement is not

inconsistent with her testimony that she knew Nash had previously reported his suspicions about

                                                 15
Benites to Pate, Benites’s manager. No evidence suggests that Pate revealed to Benites that Nash

had made such a report. Even if Benites was aware of Nash’s allegations, this does not provide any

evidence of racial discrimination on behalf of BTC. There is also no evidence to show that Benites

exerted any influence over Ballinger or Hall and, without more, the potential biases of a subordinate

employee cannot be imputed to the decisionmakers. See Roberson, 373 F.3d at 653.

               The trial court also did not err in overruling Nash’s second objection to Ballinger’s

affidavit because it was without merit. The employer has the burden of proof in a discrimination

case to articulate legitimate, nondiscriminatory reasons behind its employment decision. See

McDonnell Douglas Corp., 411 U.S. at 803. Ballinger, as the decisionmaker, was not only

permitted, but required, to testify about the reasons for Nash’s termination in order to satisfy BTC’s

burden at step two. BTC consistently articulated Nash’s three violations of company policy as its

legitimate reasons for his termination. Our conclusion that Nash failed to create a genuine issue of

material fact regarding BTC’s true motivations is therefore not affected by the trial court’s admission

of Ballinger’s affidavit.

               Finally, Nash claims that the trial court erred by excluding the TWC Operator’s notes.

When Nash offered the notes, BTC objected that they were inadmissible according to section

213.007 of the Texas Labor Code and that they were hearsay not falling within any exception. See

Tex. Lab. Code Ann. § 213.007; Tex. R. Evid. 801-06. The trial court sustained BTC’s objection

and excluded the notes. Without reaching BTC’s specific objections, we find that even if the court

should have admitted the notes, it was not harmful error to exclude them because nothing in the

notes supports Nash’s attempt to raise a genuine issue of material fact. The notes confirm BTC’s



                                                  16
evidence of the three legitimate, nondiscriminatory reasons for Nash’s termination. Nash’s third

issue is overruled.


                                         CONCLUSION

               Nash failed to adduce a scintilla of evidence to raise a genuine issue of material fact

about the essential element of whether BTC’s articulated reasons for his termination were legitimate

or were mere pretext for a true discriminatory animus. Nash also produced no affirmative evidence

of racially discriminatory practices or conduct attributable to BTC or its decisionmakers. Because

BTC satisfied its burden at step two and Nash was unable to overcome BTC’s evidence at step three,

we overrule his issues on appeal and affirm the judgment in favor of BTC.




                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 16, 2004




                                                 17
