
In The

 
Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-520 CV

____________________


RONALD KOKES, Appellant


V.


ANGELINA COLLEGE, Appellee




On Appeal from the 159th Judicial District Court
Angelina County, Texas

Trial Court Cause No. 34265-01-06




MEMORANDUM TO CLERK

	You are directed to make the following correction in the Opinion dated September
9, 2004:
	On page 1, change RONALD KOKES, PH.D., Appellant to RONALD KOKES,
Appellant.   
	You will give notice of the correction of the original opinion by sending a copy of
corrected page 1, accompanied by this memorandum, to all interested parties who received
a copy of the original opinion.
	Entered this 18th day of November, 2004.
 PER CURIAM
 In The

 
Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-520 CV

____________________


RONALD KOKES, Appellant


V.


ANGELINA COLLEGE, Appellee




On Appeal from the 159th Judicial District Court
Angelina County, Texas

Trial Court Cause No. 34265-01-06




OPINION
	Ronald Kokes, a sixty-five-year-old white male, complains Angelina College
discriminated against him on the basis of age, race, and sex by selecting Benetha Jackson,
a thirty-five-year-old black female, as psychology instructor despite his claimed superior
qualifications.  After filing a complaint with the Equal Employment Opportunity
Commission and being granted the right to sue, Kokes sued the College in state district
court.  He alleged Angelina's conduct violated state and federal law. (1) Angelina removed
the cause to federal court.  The federal court granted summary judgment in favor of 
Angelina on the federal law claim, but remanded the state law claim to state court for
determination.    
	Angelina filed a motion for summary judgment.  See Tex. R. Civ. P. 166a(c). 
Angelina said it had articulated legitimate, nondiscriminatory reasons for the selection of
Jackson, so the burden had shifted to Kokes to prove Angelina's stated reasons were
merely a pretext for discrimination.  The motion asserted Kokes was unable to meet his
burden.  Angelina objected to any consideration of the testimony of Dr. Larry Dickens,
the Director of the Division of Liberal Arts, because, Angelina said, he was mentally
incapacitated.  Angelina relied on a guardianship order and medical reports of his
incapacity.  Kokes relied on Dickens' deposition testimony as evidence of Angelina's
discriminatory intent.   
	The trial court entered an order striking the deposition of Dickens and granting
summary judgment in favor of Angelina.  The trial court also struck Kokes' motion for
reconsideration.  Kokes appeals.  We hold the trial court erred in striking Dickens'
testimony.  Because his testimony raised a material fact issue precluding summary
judgment on the basis asserted in the motion, we reverse and remand the case to the district
court for further proceedings.
Standard of review

	Summary judgments are reviewed de novo.  Provident Life & Acc. Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003); Natividad v. Alexis, Inc., 875 S.W.2d 695, 699
(Tex. 1994).  The purpose of the summary judgment procedure is to eliminate patently
unmeritorious claims and untenable defenses.  City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 n.5 (Tex. 1979)(citing Gulbenkian v. Penn, 151 Tex. 412, 252
S.W.2d 929, 931 (1952)).  Summary judgment is proper when the movant establishes there
is no genuine issue of material fact and movant is entitled to judgment as a matter of law. 
Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).  Evidence
favorable to the nonmovant is to be taken as true in deciding whether a fact issue exists;
reasonable inferences are indulged and any doubts are resolved in favor of the nonmovant. 
Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).  
	The summary judgment must stand or fall on the grounds presented in the motion
for summary judgment.  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.
1997).  "A court cannot grant summary judgment on grounds that were not presented." 
See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002). 
  Witness Competency

	The first question we consider is whether Angelina proved Dr. Larry Dickens was
incompetent to be a witness.  Dickens was Director of the Division of Liberal Arts at
Angelina College when the psychology position became available upon the retirement of
the previous instructor.  Dickens was the direct supervisor of the psychology instructor. 
He appointed the members of the screening committee, and his recommendation was
considered in the hiring decision.
	The job notice Angelina posted stated the required qualifications included a master's
degree in psychology or a master's degree with 18 graduate hours in psychology, 
preference would be given to applicants with experience in community college teaching,
and applicants "[m]ust possess the ability to interact with a diverse student population." 
The notice stated "Women and Minority Applicants are encouraged to apply.  ANGELINA
COLLEGE IS AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER." 
	On May 3, 2000, Dickens sent a memorandum to Dr. Larry Phillips, President of
Angelina, and Dr. Patricia McKenzie, Dean of the College, in which he recommended
Jackson for the position.  In the concluding paragraphs of the memo, Dickens stated:
	My final point involves the Angelina College goal of personnel leadership. 
We commit ourselves to the development of a competent, dedicated faculty
and staff who reflect the diversity of background, needs, and expectations of
our community.  Benetha fulfills that philosophy in terms of access and
equity: she would be an excellent role model for many of our students.

	I cannot overemphasize my complete confidence in Benetha Jackson as our
next full-time psychology instructor.

	I would hope and trust that you would agree.
When Dickens was questioned at his deposition about the memorandum, he testified:
	A:  I felt like it was important to give Benetha Jackson an opportunity to
become an instructor at Angelina College. . . .  I felt like she was
representative of the community and we -- we have a lot of students at
college who are black and I felt like Benetha Jackson was representative of
that community.
	Q: So you thought that she would be a better choice because she was black
and she could relate to those black students?
	A: I thought she could.  That's why I wrote the letter.
	Q: Okay.  So the fact that she was black motivated your decision?
	A: That is correct.
	Q: Okay.  And the fact that Dr. Kokes was white made you think in your
mind he wouldn't be best for the job; is that right?
	A:  That is correct.
	Q: Okay.  Benetha Jackson was much younger than him also, wasn't she?
	A: She was.
	Q: That was better too, wasn't it?
	A: She probably had a lot on the ball.
	Q: And so your thinking was that because Dr. Kokes was over 65, or 65 or
so, that she probably could be better at doing the job than him because she
was younger?
	A: That is correct.

	On June 6, 2002, approximately one month after Dickens was deposed, another
court entered an order appointing a guardian of the person and estate of Dickens based on
a finding he was unable to care for his health or manage his financial affairs.  The order
provided Dickens retained the capacity to vote and to make testamentary dispositions if the
officer administering the oath determined Dickens understood the nature and extent of his
possessions and the effect of the disposition.
	A report by Dr. Ranjit Chacko was filed in the guardianship proceeding.  The report
stated he had examined Dickens on June 27, 2001, and had diagnosed him with
"[d]ementia, fronto-temporal type, moderate severity affecting cognitive function and
behavior."  Dr. Chacko's report stated that, for two years prior to the examination,
Dickens "was noted to have changes in behavior with inappropriate and impulsive actions,
personality change, cognitive changes and mood instability with poor insight and
judgment."  The report also noted none of Dickens' current medications affected his
demeanor or ability to participate fully in a court proceeding, and he was not diagnosed
as senile.  However, Dr. Chacko reported Dickens was totally without capacity.  Dr.
Chacko also completed a second, undated report, which indicated he had examined
Dickens on February 1, 2002, and determined he suffered from "[d]ementia - moderate
to severe; probably Alzheimer's type."  In the second report, Dr. Chacko again found
Dickens to be totally without capacity.    
 With certain exceptions, Texas Rule of Evidence 601(a) creates a general
presumption of witness competency.  The Rule states:
	(a) General Rule.  Every person is competent to be a witness except as
otherwise provided in these rules.  The following witnesses shall be
incompetent to testify in any proceeding subject to these rules: 
		(1) Insane persons.  Insane persons who, in the opinion of the court,
are in an insane condition of mind at the time when they are offered as a
witness, or who, in the opinion of the court, were in that condition when the
events happened of which they are called to testify.  
		(2) Children.  Children or other persons who, after being examined
by the court, appear not to possess sufficient intellect to relate transactions
with respect to which they are interrogated.

See Tex. R. Evid. 601(a).  Witness competency is a preliminary question for the trial court
to determine, and the trial court's ruling will not be disturbed on appeal unless an abuse
of discretion is shown.  Tex. R. Evid. 104(a).  See, e.g., Solis v. State, 647 S.W.2d 95,
98 (Tex. App.--San Antonio 1983, no writ).  The record here includes no separate hearing
on Dickens' competency, however.  This was a summary judgment proceeding.  The trial
judge did not have occasion to observe Dickens.  The only information the trial court had
on Dickens' competency concerned Chacko's reports, the guardianship order, and the
excerpts from Dickens' deposition testimony. 
	An adjudication of incapacity in a guardianship proceeding fixes the individual's
status as an incapacitated person at that time.  Quada v. Quada, 396 S.W.2d 232, 233
(Tex. Civ. App.--Texarkana 1965, no writ).  However, the existence of a guardianship
does not automatically render a witness incompetent to give testimony.  In one case, this
Court held a guardianship order created a rebuttable presumption that a witness was
incompetent to testify, but that approach does not recognize the distinction between
competency to testify and incapacity.  See Mobil Oil Corp. v. Floyd, 810 S.W.2d 321, 324
(Tex. App.-- Beaumont 1991, orig. proceeding). The Probate Code defines "incapacitated
person" in part as follows: 
	an adult individual who, because of a physical or mental condition, is
substantially unable to provide food, clothing, or shelter for himself or
herself, to care for the individual's own physical health, or to manage the
individual's own financial affairs. . . .  

Tex. Prob. Code Ann. § 601(14) (Vernon 2003).  See also Tex. Prob. Code Ann. § 3(p)
(Vernon 2003).  This definition of "incapacitated" does not equate with insanity or
incompetency under Rule of Evidence 601.  Guardianship proceedings are intended to
protect persons who are incapable of caring for themselves or their property.  See Tex.
Prob. Code Ann. § 602 (Vernon 2003).  The Texas Rules of Evidence are intended to
promote the ascertainment of truth and just determinations in legal proceedings.  See Tex.
R. Evid. 102.  The issue of competency under Rule 601 is whether a witness has the
ability to perceive the relevant events, recollect the events, and narrate adequately that
recollection.  See Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.--Houston [14th
Dist.] 1989, pet. ref'd)(applying former Texas Rule of Criminal Evidence 601). (2) 
Specifically, one who lacks capacity to manage personal financial or health matters, but
retains capacity to vote and to make testamentary dispositions, may be competent to testify. 
The determination of incapacity under the Probate Code does not presumptively or
necessarily determine witness competency under Rule 601.   
	Furthermore, a mental infirmity does not necessarily render a witness incompetent
to testify.  In Rodriguez, the court considered whether a witness with Alzheimer's disease
should have been permitted to testify.  Rodriquez, 772 S.W.2d at 170.  The court
acknowledged some of the witness's testimony raised "troubling questions," but concluded
her account of the assault and robbery was "lucid and purposeful." Id.  The court quoted
the following from the Court of Criminal Appeals decision in Watson v. State, 596 S.W.2d
867, 870-71 (Tex. Crim. App. 1980):  
	If a person afflicted with a physical or mental disability possesses sufficient
intelligence to receive correct impressions of events he sees, retains clear
recollection of them and is able to communicate them through some means,
there is no reason for rejecting his testimony.  

Rodriguez, 772 S.W.2d at 170.  The Rodriquez court concluded it was for the trier of fact
to determine the credibility of the witnesses and the weight to be given each witness's
testimony.  See Rodriquez v. State, 772 S.W.2d at 173.  
	A party attacking a witness's competency has the burden of proving the
incompetency.  Handel v. Long Trusts, 757 S.W.2d 848, 854 (Tex. App.--Texarkana
1988, no writ).  In the deposition excerpts which are part of the record, there is no
indication Dickens did not understand the questions he was being asked.  He framed
responsive answers, and he clearly related his recollection of the events.  Dickens'
testimony and the manner in which it was offered do not cast doubt upon his understanding
of the oath, or his ability to perceive, recollect, and recount the events at issue here. 
Because this was a summary judgment proceeding, the trial court did not observe Dickens. 
 	If a witness meets the requirements of competency, though the issue may be close,
the factfinder should be allowed to hear the testimony and make the determination of how
much weight is to be given to the testimony in light of a mental infirmity.  Witness
competency questions are resolved case by case.  Of course, a mental infirmity may reach
the point at which the person is incompetent as a witness, and his testimony would then be
of no help to the trier of fact.  However, the information in this limited summary judgment
record is not sufficient to prove Dickens' incompetency to testify to the events at issue and
does not justify refusing to consider his testimony.  We hold on this record the trial court
abused its discretion in striking Dickens' deposition testimony.  
Summary Judgment

	The Texas Commission on Human Rights Act (TCHRA) provides in part "[a]n
employer commits an unlawful employment practice if because of race, color, disability,
religion, sex, national origin, or age the employer . . . refuses to hire an individual . . .
."  See Tex. Lab. Code Ann. § 21.051 (Vernon 1996).  The Code also provides:
  		(a) 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, unless race, color, sex, national origin, religion, age, or disability
is combined with objective job-related factors to attain diversity in the
employer's work force.

		(b) In a complaint in which a complainant proves a violation under
Subsection (a) and a respondent demonstrates that the respondent would have
taken the same action in the absence of the impermissible motivating factor,
the court may grant declaratory relief, injunctive relief except as otherwise
provided by this subsection, and attorney's fees and costs demonstrated to
be directly attributable only to the pursuit of a complaint under Subsection
(a), but may not award damages or issue an order requiring an admission,
reinstatement, hiring, promotion, or back pay. 

See Tex. Lab. Code Ann. § 21.125 (Vernon Supp. 2004). (3)  Because the TCHRA is
intended to execute the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments, analogous federal statutes and cases guide state courts in
interpreting the TCHRA.  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.
2001).
	Angelina argued it was entitled to summary judgment because it articulated
legitimate, nondiscriminatory reasons for Kokes' nonselection, and Kokes could not
demonstrate those reasons were a pretext for discrimination.  Angelina based its summary
judgment motion solely on this assertion of a lack of a material fact issue on pretext. 
Angelina did not base its motion for summary judgment on issue preclusion, (4) the diversity
clause, or the affirmative defense.  See Tex. Lab. Code Ann. § 21.125(a), (b) (Vernon
Supp. 2004).  Angelina does not rely on those issues on appeal.  Although Angelina says
Kokes' claim is difficult to prove, because the decision maker was of the same race,
gender, and approximate age, Angelina does not argue Kokes' race, gender, or age bars
his suit; the statute's language applies to all.  Angelina does not rely on section 21.121,
which provides:  "An employer does not commit an unlawful employment practice by
developing and implementing personnel policies that incorporate work force diversity
programs."  See Tex. Lab. Code Ann. § 21.121 (Vernon 1996). (5)  The sole issue
presented is whether there is any evidence Angelina's reasons were a pretext for
discrimination based on race, sex, or age.  
	Because this is an appeal from a summary judgment, both parties analyze the case
under the procedural framework of McDonnell Douglas and its progeny.  See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) ("In discrimination
cases that have not been fully tried on the merits, we apply the burden-shifting analysis
established by the United States Supreme Court.").  Once the plaintiff makes a prima facie
case, which Angelina concedes here, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the disparate treatment.  If the
employer meets its burden of production, the only relevant question is whether the plaintiff
presented evidence the employer made its decision based on race, gender or age, despite
the employer's proffered explanation.  Raytheon Co. v. Hernandez, 540 U.S. 44, 124
S.Ct. 513, 157 L.Ed. 357 (2003); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-8,
113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). (6) 
	Angelina articulated nondiscriminatory reasons for Kokes' nonselection: (1) Jackson
had more community college teaching experience, (2) her overall teaching experience was
more frequent and recent, and (3) Jackson's references described her as an outstanding
teacher, whereas Kokes' references spoke more of his administrative, research, and
general skills.  Angelina denies Kokes had superior qualifications and denies the screening
committee ranked the finalists, although Kokes' "score" may have been the highest.    
	Kokes argued the following factors established discriminatory intent: (1) his claimed
superior qualifications, (2) the failure of the Dean of Instruction and Admissions to
interview him, and (3) the screening committee "scores" and listing of finalists suggested
he was the top candidate, yet Jackson was selected.  We note the record contains one rating
form which states Jackson "would appeal to our minority population."  Kokes relied on
Dickens' testimony that race and age were motivating factors for Dickens' recommendation
of Jackson. 
	Angelina argues Dickens' testimony and his recommendation are merely "stray
remarks."  Angelina says in its brief on appeal:  "In any event, Dickens' testimony is an
example of a stray remark by one person involved in a complicated and multi-faceted
process with many evaluating officials that was ultimately decided by someone else."  Dr.
Larry Phillips, Angelina's president, was the ultimate decision maker, and Dickens'
memorandum, explained in his deposition, was addressed to Phillips.  Expressions may
be direct evidence of motivation, and not mere "stray remarks," when they are (1) made
by the decision maker or one whose recommendation is sought by the decision maker, (2)
related to the specific employment decision challenged, and (3) made close in time to the
decision.  See generally Lo v. Federal Deposit Ins. Corp., 846 F.Supp. 557, 564 (S.D.
Texas 1994), aff'd, 52 F.3d 1066 (5th Cir. 1995).  Phillips testified that Dickens' role was
to make a recommendation about the candidates selected as finalists by the screening
committee.  Therefore, Dickens' recommendation was one factor considered by the
decision maker.  The four finalists included Kokes and Jackson, and the screening
committee said each of the finalists could do the job.  Dickens' deposition testimony
provides direct evidence race and age were motivating factors for his recommendation. 
His testimony provides some evidence race and age were motivating factors in Angelina's
decision-making, though the final decision was made by Phillips, and Dickens'
recommendation was only one factor in that decision.  See generally Quantum Chem.
Corp., 47 S.W.3d at 480 ("a motivating factor" is the standard of causation "regardless
of how many factors influenced the employment decision"); Tex. Lab. Code Ann. §
21.125 (Vernon Supp. 2004).    
 A plaintiff in a discrimination case may proceed "either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of credence."  See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981).  In this state law claim, Section 21.125(a) of the Texas Labor Code requires
Kokes to prove race, age, or sex was a motivating factor in the employment decision.  See
generally Quantum Chem. Corp. , 47 S.W.3d at 479-80.  The statute does not require
proof through only one form of evidence, circumstantial or direct, and the statute
contemplates a mixture of legitimate and illegitimate motives.  See Tex. Lab. Code Ann.
§ 21.125 (Vernon Supp. 2004).  When Angelina articulated legitimate, nondiscriminatory
reasons for its decision, Kokes was required to show either 1) the reasons were not true
but, rather, were a pretext for discrimination, or 2) even if the reasons were true, another
motivating factor was race, sex or age.  If race, age, or sex was truly a motivating factor,
then either Angelina's stated reasons were false or its stated reasons were not the only
motivating factors. (7)     
	In reviewing the summary judgment, an appellate court is required to assume the
evidence favorable to the nonmovant is true, and resolve all doubts and indulge all
reasonable inferences in favor of the nonmovant.  See Limestone Products, 71 S.W.3d at
311.  Here, we assume it is true that race and age were motivating factors for the
recommendation made by Dickens, and we indulge reasonable inferences from that
testimony in favor of the nonmovant.  Dickens' testimony raises a material fact issue as
to whether Angelina's articulated reasons were not the only motivating factors for its
decision, and whether race and age were also motivating factors.  On this limited record,
Angelina has not shown entitlement to judgment as a matter of law.      
	Appellant's issues two, three, and four are sustained.  We need not address his other
issues.  The trial court's order granting summary judgment in favor of Angelina is
reversed, and this cause is remanded to the trial court for further proceedings.   
	REVERSED AND REMANDED.                            
 							         PER CURIAM              
 
 
Submitted on April 20, 2004
Opinion Delivered September 9, 2004
 
Before McKeithen, C.J., Burgess and Gaultney, JJ.


1. Angelina's brief mentions a common law fraud claim by Kokes.  We need not
address the claim because Kokes' brief does not raise the issue on appeal.  See Sunnyside
Feedyard, L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.--Amarillo
2003, no pet.).  Tex. R. App. P. 38.1(h).
2. "The capacity to narrate involves the ability to understand questions posed and to
frame intelligent answers, and to understand the moral responsibility to tell the truth."  Id. 
3. "The difference between the two statutes is that section 21.051 states circumstances
in which an employer has committed an unlawful employment practice, whereas section
21.125(a) explicitly describes what a complainant must show in order to prevail in a
lawsuit."  Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).
4. We note that lack of evidence of pretext was the basis for the federal court's
summary judgment.  The federal court did not refer to Dickens' testimony and it is not
apparent the testimony was presented to the federal court.  
5. See generally Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d
304 (2003); Gratz v. Bollinger, 539 U.S. 244, 268-69, 123 S.Ct. 2411, 156 L.Ed.2d 257
(2003).
6. Recently, the United States Supreme Court held direct evidence of discrimination
is not required in order to obtain a mixed-motive jury instruction; circumstantial evidence
is sufficient.  See Desert Palace, Inc. v. Costa, 539 U.S. 90, 93, 123 S.Ct. 2148, 156
L.Ed.2d 84 (2003).  The United States Court of Appeals for the Fifth Circuit has noted
that courts which have addressed the implications of Desert Palace v. Costa on the
traditional structure for analyzing discrimination claims have reached varied results, with
some courts seeing no tension and others concluding Desert Palace v. Costa overruled or
greatly limited McDonnell Douglas.  See Roberson v. Alltel Info. Servs., 373 F.3d 647 (5th
Cir. 2004).  In Roberson, the court said it "need not decide the fate of McDonnell Douglas
because Roberson's claims fail under any interpretation of Desert Palace."  Roberson, 373
F.3d at 652.  The Roberson court held that, to withstand summary judgment in a Title VII
case, a plaintiff must present sufficient direct or circumstantial evidence for a reasonable
jury to conclude race, color, religion, sex, or national origin was a motivating factor for
any employment practice. Id.  See also Christopher R. Hedican, Jason M. Hedican, &
Mark P. A. Hudson, McDonnell Douglas: Alive and Well, 52 Drake L. Rev. 383, 401
(Spring 2004)("Raytheon Co. v. Hernandez [530 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357
(2003)], the Supreme Court's most recent employment decision after Costa, directly
confirmed that McDonnell Douglas is alive.").   
7. We do not consider whether age and race were used "to attain diversity in the
employer's work force," because that was not the basis for the summary judgment and has
not been argued by the parties.  See generally Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d at 204 ("A court cannot grant summary judgment on grounds that were not
presented.").  See Tex. Lab. Code Ann. §§ 21.125 (Vernon Supp. 2004); and 21.121
(Vernon 1996).  We also do not decide whether the federal court's ruling precludes pursuit
of the state law claim, because that issue was not argued as a basis for the summary
judgment and is not briefed by the parties.
