Opinion issued July 12, 2012.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-09-00502-CV
                          ———————————
                 PHYLLIS RENEE SHANKLIN, Appellant
                                      V.
  TEXAS DEPARTMENT OF CRIMINAL JUSTICE--INSTITUTIONAL
                   DIVISION, Appellee



                  On Appeal from the 239th District Court
                         Brazoria County, Texas
                       Trial Court Case No. 29884



                        MEMORANDUM OPINION

      Phyllis Shanklin sued the Texas Department of Criminal Justice (TDCJ)

under the Texas Commission on Human Rights Act (TCHRA) for terminating her

employment, bringing claims of discrimination based on race and sex, as well as
on retaliation for raising the discrimination claims. See TEX. LAB. CODE ANN.

§§ 21.051, 21.055, 21.254 (West 2006). The trial court granted the TDCJ’s motion

for summary judgment on the discrimination claims and held a jury trial on the

retaliation claim. The jury returned a defense verdict, and the trial court entered a

take-nothing judgment.

      Shanklin appeals, contending that the trial court erred in granting summary

judgment on her discrimination claims because the summary judgment evidence

raised a fact issue on whether the TDCJ’s proffered reason for its decision to

terminate her employment was pretextual. Shanklin also claims that the trial court

erred in failing to provide the jury with the legal definition for retaliation. Finding

no error, we affirm.

                                    Background

      Shanklin’s employment as a correctional officer with the TDCJ began in the

summer of 2001. The TDCJ publishes general rules of conduct and disciplinary

action guidelines for its employees. As an employee of the TDCJ, Shanklin was

expected to comply with those rules of conduct and was subject to a range of

disciplinary action if she did not. The guidelines group violations of the rules of

conduct into four categories of violation levels and set out a recommended

punishment range for each level. The TDCJ also provides a grievance procedure




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that employees may invoke with respect to any disciplinary action they feel is

unfair or unfounded.

      The   following    incidents   preceded    the   termination   of   Shanklin’s

employment:

    January 2003: The TDCJ notified Shanklin that it suspected abuse of

      sick time. As a result, for the next six months, Shanklin was required to

      provide a doctor’s note to be able to return to work after each time she

      called in sick or used sick time for the next six months.

    Early June 2003: Shanklin’s supervisor, Sergeant Charles Massie, told

      Shanklin that he planned to write her up for sleeping on duty. Shanklin

      wrote an entry in the comments section of the employee performance log

      that referred to Massie in a derogatory way. Massie cited Shanklin for

      insubordination, a Level 3 violation.      Warden Richard Trinci found

      Shanklin guilty of insubordination and assessed four months’ disciplinary

      probation. She was found not guilty of sleeping on the job.

    Mid-June 2003: Shanklin called in sick on June 18. She was still within

      the six-month period imposed in January, but failed to turn in the

      required doctor’s note. The TDCJ cited Shanklin for failure to obey

      orders. Warden Diana Oliphant assessed twelve months’ disciplinary




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   probation to be served after Shanklin completed the four months’

   disciplinary probation in the insubordination case.

 October 2003: Shanklin injured her back while on vacation and took sick

   time for the last two weeks of the month. Under TDCJ policy, she was

   placed on Family Medical Leave Status and was required to present a

   health care provider’s statement containing “medical facts” within a

   specified number of days of her return to duty. TDCJ policy explains

   that medical facts “identify the cause or nature of the illness or injury

   (i.e., viral illness, internal bleeding, back pain, upper respiratory

   infection).” Shanklin returned to work on November 2 but failed to

   provide the requisite statement within the prescribed period. Shanklin

   submitted a note after the period lapsed, but an individual within the

   personnel office informed Shanklin that the late note was unacceptable

   because it did not contain medical facts. Shanklin had a family friend fax

   another doctor’s note to the TDCJ personnel office, but she later was told

   that the office never received the fax. On November 21, she received a

   notice from the TDCJ charging her with failure to follow agency rules,

   policy, and regulations and informing her that it had set a disciplinary

   hearing on the charge.




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     Under the Guidelines, “an employee who has three sustained violations other

than tardiness within a 12-month period may be recommended for dismissal.”

Warden Oliphant found Shanklin guilty of failing to obey agency policy based on

her failure to timely provide a doctor’s certification containing adequate medical

facts.    Oliphant recommended Shanklin’s dismissal, and Institutional Division

Director Doug Dretke approved that recommendation. Shanklin filed a grievance

to seek review of the termination decision and went through the TDCJ’s mediation

procedure. Ultimately, the TDCJ sustained the decision to terminate Shanklin’s

employment. Shanklin filed a charge with the Equal Employment Opportunity

Commission and then brought suit against the TDCJ.

     After discovery was substantially complete, the TDCJ moved for a no-evidence

and a traditional summary judgment on Shanklin’s claims. Shanklin responded to

the motion, but addressed only the issues pertaining to her retaliation claim. The

trial court granted summary judgment in favor of the TDCJ on Shanklin’s

discrimination claims and proceeded to trial on her retaliation claim.

                                     Discussion

I.       Summary Judgment on Discrimination Claims

         A.   Standard of Review

         The TDCJ moved for summary judgment on both traditional and

no-evidence grounds, and the trial court’s order grants summary judgment without

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specifying any grounds. We review a trial court’s summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident

Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).           Under the

traditional standard for summary judgment, the movant has the burden to show that

no genuine issue of material fact exists and that the trial court should grant a

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).             When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

      A summary motion must state the specific grounds relied upon for summary

judgment. TEX. R. CIV. P. 166a(c). A defendant moving for traditional summary

judgment must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an affirmative

defense. Sci. Spectrum, Inc., 941 S.W.2d at 911.

      After adequate time for discovery, a party may move for a no-evidence

summary judgment on the ground that no evidence exists to support one or more

essential elements of a claim or defense on which the opposing party has the

burden of proof. TEX. R. CIV. P. 166a(i). The trial court must grant the motion

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unless the nonmovant produces summary judgment evidence raising a genuine

issue of material fact. Id. More than a scintilla of evidence exists if the evidence

“would allow reasonable and fair-minded people to differ in their conclusions.”

Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).

      Here, Shanklin opposed the TDCJ’s motion for summary judgment on her

retaliation claim, but did not respond to the TDCJ’s grounds for dismissal of her

discrimination claims. When, as here, the movant has filed a motion that identifies

the elements as to which there is no evidence, and the form of the motion satisfies

Rule 166a(i)—in that it is neither conclusory nor a general no-evidence

challenge—summary judgment must be rendered absent a timely and legally

adequate response by the nonmovant. See Roventini v. Ocular Scis., Inc., 111

S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      B.       Employment Discrimination
      Chapter 21 of the TCHRA provides that an employer commits an unlawful

employment practice if it discharges an employee on the basis of “race, color,

disability, religion, sex, national origin, or age. . . .” TEX. LAB. CODE ANN.

§ 21.051(1).    In reviewing discrimination cases under TCHRA, we apply the

burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green. 411 U.S.

792, 802–05, 93 S. Ct. 1817, 1824–25 (1973); Exxon Mobil Corp. v. Hines, 252

S.W.3d 496, 508 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); see also


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

2097, 2105–06 (2000) (discussing development of burden-shifting scheme).

Pursuant to this scheme, the plaintiff is first required to present a prima facie case

of discrimination. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106. To establish a

violation of TCHRA, a plaintiff must show she was (1) a member of the statutorily

protected class, (2) qualified for her employment position, (3) terminated by the

employer, and (4) treated less favorably than similarly situated members of the

unprotected class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008); see

Reeves, 530 U.S. at 142, 120 S. Ct. at 2106.

      C.     Analysis

      As the basis for summary judgment, the TDCJ contended that Shanklin

could not establish a prima facie case of discrimination based on sex or race

because she had no evidence of any similarly situated TDCJ employee who was

not disciplined or terminated.      To prove discrimination based on disparate

treatment, “the disciplined and undisciplined employees’ misconduct must be of

‘comparable seriousness.’” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915,

917 (Tex. 2005); see AutoZone, 272 S.W.3d at 595. Further, the situations and

conduct of the employees in question must be “nearly identical.” Monarrez, 177

S.W.3d at 917–18; see also Perez v. Tex. Dep’t of Crim. Justice, 395 F.3d 206, 213

(5th Cir. 2004).        “Employees with different responsibilities, supervisors,

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capabilities, work rule violations, or disciplinary are not considered to be ‘nearly

identical.’” AutoZone, 272 S.W.3d at 594 (citing Monarrez, 177 S.W.3d at 917).

      With its motion for summary judgment, the TDCJ presented evidence that

Oliphant recommended Shanklin’s dismissal based on her failure to timely provide

a satisfactory doctor’s note. Oliphant’s superior accepted that recommendation,

and the decision was affirmed following Shanklin’s exhaustion of the internal

grievance procedures. Shanklin disputes whether she timely provided a doctor’s

note, alleging that a third party faxed a second note to the TDCJ personnel office

within the required time frame. She learned nearly two weeks later that the TDCJ

claimed that the personnel office never received the fax.

      This dispute does not raise a fact issue in light of the relevant summary

judgment evidence the TDCJ proffered.           The TDCJ proffered Shanklin’s

deposition testimony in which Shanklin conceded that she had no evidence that

Director Dretke, Warden Trinci, or Warden Oliphant—herself an African-

American female—based the disciplinary decisions on any discriminatory animus.

Shanklin also conceded in her deposition that she knew of no other TDCJ

employee who did not receive the same disciplinary result for failure to timely

provide an adequate doctor’s note following an absence for medical reasons.

Shanklin did not identify any employee with a comparable disciplinary record who

was not recommended for dismissal. See Flores v. City of Liberty, 318 S.W.3d

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551, 557 (Tex. App.—Beaumont 2010, no pet.) (noting that employee with single

act of misconduct was not similarly situated to employee with multiple

infractions). Further, Shanklin did not offer other evidence that any agent of the

TDCJ harbored discriminatory animus toward her; she relied solely on her own

subjective opinion and speculation that the TDCJ made the decision to terminate

her because of her race and sex. To establish a genuine issue of material fact,

evidence must be more than merely subjective and speculative. See Green v.

Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 522 (Tex. App.—Houston [1st Dist.]

2006, pet. denied) (explaining that appellant’s subjective belief regarding reason

for discharge is insufficient to raise fact issue); Farrington v. Sysco Food Servs.,

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

(stating that subjective beliefs of discrimination, without more, are insufficient to

establish prima facie case). We hold that Shanklin failed to present any evidence

that would raise a genuine issue of material fact on the challenged disparate

treatment element, and thus could not support a prima facie case of discrimination.

For this reason, we do not reach her arguments concerning pretext and causation.

II.   Charge Error Claim

      Shanklin also complains that the trial court erred in failing to provide the

jury with the legal definition of retaliation in response to a jury request for that

definition. The clerk’s record indicates that the jury’s note could not be included

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and the reporter’s record does not contain any discussion or objection from

Shanklin concerning the jury’s question and trial court’s response that might

preserve this issue for appellate review. See TEX. R. APP. P. 33.1.

      Even if this complaint were not waived, Shanklin’s complaint is unavailing.

“The court shall submit such instructions and definitions as shall be proper to

enable the jury to render a verdict.” TEX. R. CIV. P. 277. “An instruction is proper

if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the

pleadings and evidence.” Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166

(Tex. 2002) (citing TEX. R. CIV. P. 278). Rule 277 gives the trial court broad

discretion in deciding which jury instructions are necessary and proper.           See

Williams, 85 S.W.3d at 166. We review a trial court’s decision to submit or refuse

a particular instruction under an abuse-of-discretion standard.             Shupe v.

Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam).

      Before asking whether the TDCJ was liable for retaliation, the charge

instructed the jury:

      To prevail in her retaliation case, Ms. Shanklin must prove by a
      preponderance of the evidence that (1) she engaged in a protected
      activity; (2) TDCJ took an adverse employment action against her due
      to or because of her participation in the protected activity; and
      (3) TDCJ took the adverse action due to or because of her
      participation in the protected activity.

This instruction satisfied any need for a legal definition of retaliation.         For

purposes of Shanklin’s TCHRA claim, “retaliation” is correctly defined as an

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adverse employment action taken against an employee “due to or because of” her

participation in a protected activity. See City of Waco v. Lopez, 259 S.W.3d 147,

152 (Tex. 2008) (“The reasonable reading of the CHRA’s ‘under this chapter’

language is that actionable retaliation exists when an employer makes an adverse

employment decision against an employee who voices opposition to conduct made

unlawful under the CHRA . . . .”).

                                     Conclusion

         We hold that the trial court correctly granted summary judgment on

Shanklin’s discrimination claims. We further hold that the trial court did not err in

its jury instruction on retaliation. We therefore affirm the judgment of the trial

court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Bland, Massengale, and Brown.




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