Opinion
No. 05-03-01701-CV
Opinion Filed February 10, 2005.
On Appeal from the 14th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-05564-A.
Affirm.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Sandra Parker appeals the summary judgment granted in favor of J.C. Penney Company in this employment discrimination suit. In two points of error, Parker generally contends the trial court erred by granting summary judgment because certain fact issues preclude summary judgment and because she did not fail to exhaust her administrative remedies. We overrule Parker's points of error and affirm the trial court's judgment.
Background
Parker, a black female, began her career with J.C. Penney in 1972. In 1999, she became an acting trial supervisor in charge of two other employees. In June of 2000, she was removed from that position and returned to a specialist position with no reduction in pay or employment level. Following this incident, Parker filed a complaint with the Texas Commission on Human Rights (TCHR). She alleged that J.C. Penney discriminated against her on the basis of her race and gender when it removed her from the position as acting trial supervisor and returned her to a specialist position.
Parker subsequently filed this lawsuit asserting the claims raised before the TCHR and also asserting a cause of action for failure to promote. J.C. Penney moved for summary judgment on the grounds there is no evidence to support her demotion claim and that her failure to promote claim exceeded the scope of the TCHR charge and was barred by the statute of limitations. The trial court granted summary judgment and this appeal timely followed.
Standard of Review
The standard of review in summary judgment is well-established. Tex. R. Civ. P. 166(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990). In reviewing a traditional motion for summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgm't Co., 690 S.W.2d 546, 548-49 (Tex. 1985). To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).
Demotion Claim
In her first point of error, Parker contends the trial court erred by granting J.C. Penney's motion for summary judgment because her summary judgment evidence creates a fact issue regarding whether J.C. Penney discriminated against her on the basis of her race and gender when it removed her as a supervisor. We disagree.
The legislature enacted the Texas Commission on Human Rights Act (TCHRA) to correlate state law with federal law in the area of employment discrimination. See Tex. Lab. Code Ann. § 21.051 (Vernon 1996) ; Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991). One of TCHRA's purposes is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Lab. Code Ann. § 21.001(1) (Vernon 1996). Therefore, analogous federal statutes and the cases interpreting them guide our reading of the TCHRA. NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).
TCHRA prohibits an employer from discriminating against an individual with respect to compensation, or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, and national origin. Tex. Lab. Code Ann. § 21.051 (Vernon 1996); Williams v. Vought, 68 S.W.3d 102, 107 (Tex.App.-Dallas 2001, no pet.). To establish a prima facie case of discrimination, a plaintiff must show that plaintiff (1) is within a protected group, (2) was adversely affected or suffered an adverse employment action, and (3) similarly situated non-protected class members were not treated similarly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 269-70 (Tex.App.-Fort Worth 2004, no pet.).
Parker timely asserted the demotion claim in her charge with the TCHR. In its motion for summary judgment, J.C. Penney asserted there were nondiscriminatory reasons for Parker's removal as acting trial supervisor. J.C. Penney's summary judgment evidence included the deposition testimony of Sammie McPherson, Parker's supervisor. He testified that during Parker's period as acting trial supervisor, she was not cooperative. McPherson instructed Parker to allow the two employees she supervised to work with other teams so they could gain experience in other areas. Despite McPherson's instruction, Parker prohibited her employees from working with other teams. McPherson met with Parker several times to discuss her lack of cooperation with the other teams. In June 2000, the two employees Parker supervised resigned. Their reason for resigning was that Parker was too difficult to work with and she did not allow them to use their abilities. At this point, Parker was removed from the position of acting trial supervisor. Parker was reassigned to a specialist position. She did not receive a reduction in either her salary or her employment level.
J.C. Penney also presented evidence that Loren Hungsberg, a white male employee, was treated similarly to Parker. Parker and Hungsberg were both made acting trial supervisors at about the same time. Because he was not working out, Hungsberg was relieved of his duties as acting trial supervisor before Parker was relieved of her similar duties. Like Parker, Hungsberg was reassigned to a technical position.
Parker contends her reclassification in June 2000 was the result of racial and sexual discrimination. To support this contention, Parker also cites to the treatment of Hungsberg. However, she contends Hungsberg was treated more favorably, not similarly as J.C. Penney argues. Parker relies on the fact that his reassignment to a technical position, unlike hers, did not involve a change in the person to whom he reported. Parker asserts her reclassification was more humiliating because hers did involve a change in the supervisor to whom she reported. Parker also relies on her affidavit with salary comparisons attached. These salary comparisons do not constitute any evidence of a discriminatory basis for her removal as acting trial supervisor and subsequent reassignment.
The evidence shows that both Parker and Hungsberg were given trial supervisor positions. Both Parker and Hungsberg were removed from those positions and reassigned to technical positions. We conclude Parker's assessment that her reassignment was more humiliating than Hungsberg's does not raise a fact issue as to whether J.C. Penney discriminated against her when it removed her from the position of acting trial supervisor. The only evidence of the reason for her removal is in the McPherson deposition testimony. This evidence shows a valid nondiscriminatory reason for the action taken. Parker produced no evidence to contradict this testimony. Accordingly, the trial court properly granted summary judgment on Parker's demotion cause of action. We overrule Parker's first point of error.
Failure to Promote Claim
In her second point of error, Parker contends the trial court erred in granting summary judgment on her failure to promote claim because such claim was reasonably related to the claims asserted in her TCHR charge. We disagree.
J.C. Penney moved for summary judgment on Parker's failure to promote claim on the grounds that it was barred by limitations and it was outside the scope of the TCHR charge filed by Parker. It is well-settled that a trial court is without jurisdiction to consider claims brought under TCHRA unless the aggrieved party has first exhausted her administrative remedies by filing a complaint with the TCHR. See National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994); Schroeder, 813 S.W.2d at 486-87. A person must file a complaint of discrimination with the TCHR within 180 days of the alleged unlawful employment practice. Tex. Lab. Code Ann. § 21.202(a) (Vernon 1996). Lawsuits filed under this statute may raise only the specific issue made in the employee's administrative complaint and "any kind of discrimination like or related to the charge's allegations." Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). A plaintiff may assert a retaliation claim without first filing a new or an amendment to an existing TCHR charge. Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
Parker filed her TCHR charge on August 25, 2000. Accordingly, the alleged unlawful employment practices had to occur within the preceding 180-day period which began on February 25, 2000. In her petition, Parker claims J.C. Penney failed to promote her in 1976, 1980, 1987, and 1988. These claims are barred by the 180-day statute of limitations. See Tex. Lab. Code Ann. § 21.202(a) (Vernon 1996).
In her petition, Parker also complained of the failure to be promoted following the events complained of in her TCHR charge. Parker did not amend her TCHR charge to raise this complaint. Nor did she contend that the subsequent failure to be promoted was the result of retaliation for filing the charge. See Eugene v. Rumsfeld, 168 F.Supp.2d 655, 672 (S.D. Tex. 2001) (the plaintiff failed to exhaust administrative remedy for failure to promote claim that arose after filing complaint with EEOC). Accordingly, she has not exhausted her administrative remedies with regard to any such claim. We overrule Parker's second point of error.
We affirm the trial court's judgment.