                                             OPINION
                                         No. 04-10-00730-CV

                                        Israel HERNANDEZ,
                                               Appellant

                                                   v.

                                  GREY WOLF DRILLING, L.P.,
                                         Appellee

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 08-11-47599-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 22, 2011

REVERSED AND REMANDED

           Appellant, Israel Hernandez, appeals from the trial court’s order rendering a no-evidence

summary judgment in favor of appellee, Grey Wolf Drilling, L.P (“Grey Wolf”). We reverse

and remand.

                                          BACKGROUND

           Hernandez was fifty-three years old and an employee of Grey Wolf when Grey Wolf

terminated his employment on September 17, 2007. Following his termination, Hernandez sued
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Grey Wolf under the Texas Commission on Human Rights Act (“TCHRA”) for age

discrimination and retaliation. According to Hernandez’s petition, he worked for Grey Wolf

under the direct supervision of John Jansen, a truck manager at Grey Wolf’s Alice, Texas

location. Hernandez claimed Jansen repeatedly referred to him as “old man” and “old fart” in

the presence of other employees and did not use similar language when referring to younger

employees. In October 2006 and again in June or July 2007, Hernandez told Jansen that he was

offended and hurt by these comments, but Hernandez claimed Jansen continued to make similar

remarks until he fired Hernandez and replaced him with a younger worker. Grey Wolf filed a

no-evidence motion for summary judgment on both of Hernandez’s claims, and the trial court

rendered summary judgment in Grey Wolf’s favor.

                                   STANDARD OF REVIEW

       We review a no-evidence motion for summary judgment de novo. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004); O’Donnell v. Smith, 234 S.W.3d 135,

140 (Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009). “We review the

evidence presented by the motion and response in the light most favorable to the party against

whom the summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the non-movant produces

more than a scintilla of probative evidence to raise a genuine issue of material fact, the trial court

cannot properly grant a no-evidence summary judgment. Reynosa v. Huff, 21 S.W.3d 510, 512

(Tex. App.—San Antonio 2000, no pet.). More than a scintilla of evidence exists when the

evidence “rises to a level that would enable reasonable and fair-minded people to differ in their




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conclusions,” while less than a scintilla exists when the evidence is “so weak as to do no more

than create mere surmise or suspicion.” Id.

       When summary judgment is sought on multiple grounds and the trial court’s order does

not indicate the basis for its ruling, we will affirm the summary judgment if the movant advances

any meritorious theory. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Villanueva

v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.).

                              AGE DISCRIMINATION CLAIM

       Under the THCRA:

       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). The TCHRA 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.




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Id. § 21.125. Because the TCHRA’s stated purpose is to “provide for the execution of the

policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” Texas

courts apply analogous federal case law when interpreting the Texas statute. Id. § 21.001(1);

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

       There are two types of Title VII employment discrimination cases. Quantum Chem., 47

S.W.3d at 476. The first is the “pretext” case, in which the plaintiff claims the employer’s stated

reason for the adverse action was a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252–53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

04 (1973). In a pretext case, federal and Texas courts traditionally follow the McDonnell

Douglas-Burdine framework for allocation of proof. E.g., Shackelford v. Deloitte & Touche,

LLP, 190 F.3d 398, 404 n.2 (5th Cir. 1999); Quantum Chem., 47 S.W.3d at 479–80; Claymex

Brick & Tile, Inc. v. Garza, 216 S.W.3d 33, 35 (Tex. App.—San Antonio 2006, no pet.). Under

the McDonnell Douglas-Burdine framework, the plaintiff-employee has the burden of producing

evidence that raises an inference of discrimination. Russo v. Smith Int’l, Inc., 93 S.W.3d 428,

435 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The plaintiff’s burden at this stage “is

not onerous.” Quantum Chem., 47 S.W.3d at 477 (quoting Burdine, 450 U.S. at 253). A prima

facie case of age discrimination requires proof that the plaintiff (1) is at least forty years of age;

(2) was discharged; (3) was qualified for the position from which he was discharged; and (4) was

replaced by someone under forty, replaced by someone younger, or was otherwise discharged

because of age. Russo, 93 S.W.3d at 435. If the plaintiff makes this showing, the burden then

shifts to the defendant-employer to articulate a “legitimate, nondiscriminatory reason” for the

plaintiff’s discharge. Quantum Chem., 47 S.W.3d at 477 (quoting McDonnell Douglas, 411 U.S.

at 802). If the defendant can articulate such a reason, the presumption of discrimination created



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by the plaintiff’s prima facie showing is eliminated, and the burden shifts back to the plaintiff to

show the defendant’s stated reason was a pretext for discrimination. Id. The Texas Supreme

Court has held that under the TCHRA, a plaintiff need only prove that age discrimination was “a

motivating factor” in the termination decision. Id. at 480.

       The second type of employment discrimination case is the mixed-motive case, in which

the plaintiff has direct evidence of discrimination in the employment decision. Price Waterhouse

v. Hopkins, 490 U.S. 228, 244–45 (1989). Whether a case will be classified as a pretext case or a

mixed-motive case “depends entirely” on whether the plaintiff has direct evidence that

discriminatory motives influenced the employer’s decision to terminate the plaintiff. Quantum

Chem., 47 S.W.3d at 476. If the plaintiff has only circumstantial evidence that the employment

decision was motivated by discrimination, the case will be classified as a pretext case “regardless

of how many motives the employer had.” Id. at 477.

       Here, the only evidence of discriminatory animus Hernandez offers is his claim that

Jansen repeatedly referred to him as “old man” and “old fart,” which is circumstantial evidence

that he was actually terminated because of his age. Also, in his original petition, Hernandez

claims, “Following [my] rejection of age-based animus fostered by [Grey Wolf], [I] was

retaliated against when on or about September 17, 2007, [I] was terminated. Based upon

unsubstantiated allegations that [my] services were no longer good to maintain [my] work duties

and responsibilities for Grey Wolf Drilling, [Grey Wolf] terminated [me].” Thus, the pleadings

support classification of Hernandez’s case as a pretext case. Neither Hernandez nor Grey Wolf

argues this is a mixed-motive case. Therefore, the proper framework for our analysis is the

McDonnell Douglas-Burdine framework. See id. at 479.




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       In its no-evidence motion for summary judgment and in its brief on appeal, however,

Grey Wolf argues the trial court should evaluate Hernandez’s pretext claim using the Gross v.

FBL Financial Services, Inc. “but for” test rather than the McDonnell Douglas-Burdine

framework. 129 S. Ct. 2343 (2009). In Gross, the United States Supreme Court held the federal

Age Discrimination in Employment Act of 1967 (“ADEA”) does not authorize mixed-motive

age discrimination claims. Id. at 2350. The Court reasoned that unlike Title VII, which contains

the “motivating factor” language discussed in Quantum Chemical, the ADEA provides only that

“[i]t shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment because of such individual’s age.” Id. (quoting 29 U.S.C. § 623(a)(1) (2006)

(emphasis added)). Thus, the Court explained, “the ADEA’s text does not provide that a plaintiff

may establish discrimination by showing that age was simply a motivating factor.” Id. at 2349.

The Court also held that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA

must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the

challenged adverse employment action. The burden of persuasion does not shift to the employer

to show that it would have taken the action regardless of age, even when a plaintiff has produced

some evidence that age was one motivating factor in that decision.” Id. at 2352.

       The law is currently unsettled as to whether Gross, which construed the federal ADEA,

also applies to age discrimination claims brought under the TCHRA.            Houchen v. Dallas

Morning News, No. 3:08-CV-1251-L, slip op. at *11–12 (N.D. Tex. Apr. 1, 2010). However, we

believe Gross does not apply to this case for two reasons. First, the TCHRA contains the

“motivating factor” language that the Gross majority noted was critically absent from the ADEA.

TEX. LAB. CODE ANN. § 21.125(a). Thus, Gross’s analysis may not apply to TCHRA claims.



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Second, no court has extended Gross to a pretext claim, and, in fact, Gross explicitly left open

the question of whether the McDonnell Douglas-Burdine framework is still the appropriate

framework for evaluating pretext claims brought under the ADEA. Gross, 129 S. Ct. at 2349

n.2. For these reasons, we disagree with Grey Wolf’s argument that we should apply the Gross

“but for” test to Hernandez’s pretext claim, and we instead apply the traditional McDonnell

Douglas-Burdine framework. See Quantum Chem., 47 S.W.3d at 479.

       Turning to Grey Wolf’s no-evidence motion for summary judgment, we note that Grey

Wolf did not challenge any of the four elements of Hernandez’s prima facie claim under

McDonnell Douglas-Burdine. Instead, Grey Wolf’s motion alleges Hernandez failed to present

any evidence that: (1) he would not have been fired “but for” his age; (2) he was treated

differently than younger workers; (3) Grey Wolf did not have a legitimate, non-discriminatory

reason for terminating him; or (4) Grey Wolf’s reason for terminating him was pretextual.

Hernandez, however, did not have the burden of proof on any of these points. Hernandez did not

have the burden to prove that he would not have been fired “but for” his age, nor did he have the

burden to prove he was treated differently than other workers. Also, it was Grey Wolf’s burden

to prove it had a legitimate, nondiscriminatory reason for terminating him; it was not

Hernandez’s burden to prove the opposite. In addition, because Grey Wolf did not articulate a

legitimate, nondiscriminatory reason for terminating Hernandez, the burden to prove pretext

never shifted back to Hernandez.

       In any event, we conclude Hernandez’s affidavit provided more than a scintilla of

evidence on all four elements of his prima facie claim. In response to the no-evidence motion for

summary judgment, Hernandez submitted his affidavit, which explicitly states Hernandez was

fifty-three years old when he was discharged by Grey Wolf in 2007 and replaced by a younger



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worker. Also, the affidavit raises more than a scintilla of evidence that Hernandez was qualified

for the position from which he was discharged.         Hernandez’s affidavit states, “During my

employment at Grey Wolf I performed my job consistent with the directions and expectations

provided to me by Mr. Jansen.” The affidavit cites several instances where Hernandez followed

Jansen’s instructions and timely completed assignments. Finally, the affidavit states that Jansen

used an incident involving another employee “to support his decision to terminate [Hernandez]

the following week.” However, according to the affidavit, “Jansen knew that [Hernandez] had

no direct culpability in this incident.”

        For these reasons, a no-evidence summary judgment could not properly be rendered on

Hernandez’s age discrimination claim.

                                     RETALIATION CLAIM

        In an action for retaliation brought under the TCHRA, the plaintiff-employee must make

a prima facie showing that: (1) he engaged in a protected activity, (2) an adverse employment

action occurred, and (3) a causal link existed between the protected activity and the adverse

action. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied). Protected activities include: (1) opposing a discriminatory practice; (2)

making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in

any manner in an investigation, proceeding, or hearing. Id. (citing TEX. LAB. CODE ANN.

§ 21.055). If the plaintiff makes this showing, the burden shifts to the defendant-employer to

articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id.

        Here, Grey Wolf’s no-evidence motion for summary judgment alleges Hernandez has no

evidence that: (1) Hernandez engaged in a protected activity or complained about alleged

discrimination or harassment, or (2) a causal connection existed between the protected activity



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and the termination. However, Hernandez’s affidavit states he complained to Jansen on two

occasions about his alleged use of the terms “old man” and “old fart,” which we believe raises

more than a scintilla of evidence that Hernandez complained about alleged discrimination or

harassment. Also, Hernandez claims in his affidavit: “[A]fter I expressed to Mr. Jansen my

displeasure with his age-related comments to me, he terminated my employment . . . based upon

unsubstantiated allegations against me.” According to the affidavit, Hernandez performed his

job consistently with Jansen’s expectations and directions and was fired as a direct result of his

complaints regarding Jansen’s alleged age-related comments. We conclude Hernandez met his

burden of producing summary judgment evidence raising more than a scintilla of evidence that a

causal connection existed between Hernandez’s complaints and his termination; therefore, Grey

Wolf was not entitled to a no-evidence summary judgment on Hernandez’s retaliation claim.

                                        CONCLUSION

       The trial court’s order rendering a no-evidence summary judgment in favor of Grey Wolf

is reversed, and this cause is remanded to the trial court for further proceedings consistent with

this opinion.



                                                Sandee Bryan Marion, Justice




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