Mark Brauer v. Texas A&M University, Kingsville

NUMBER 13-01-868-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG MARK BRAUER, Appellant, v. TEXAS A&M UNIVERSITY, KINGSVILLE, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Castillo Opinion by Chief Justice Valdez This is an employment discrimination case. Appellant, Mark Brauer, brought suit against appellee, Texas A & M University, Kingsville ("University"), alleging that appellee denied him tenure and terminated him due to his age and religion. The trial court granted summary judgment in favor of appellee, and this appeal ensued. By one issue, appellant contends that the trial court erred in granting appellee's motion for summary judgment and erred in dismissing appellant's claims of religious discrimination. (1) We affirm. Background This is a memorandum opinion. See Tex. R. App. P. 47.4. The parties are familiar with the factual and procedural background underlying this appeal; therefore, we will not recite the details herein except as necessary to advise the parties of the Court's decision and the basic reasons for the decision. See id. Standard of Review In a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am.Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Id. Religious Discrimination Claim In discrimination cases that have not been fully tried on the merits, Texas courts apply the McDonnell Douglas or Burdine burden-shifting analysis established by the United States Supreme Court. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 729, 802-03 (1973) and Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)); M. D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam); Tex. Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). Under this burden-shifting analysis, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex. App.-Corpus Christi 1995, writ denied); Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 186 (Tex. App.-Corpus Christi 1992, writ denied). In a circumstantial discrimination case, a plaintiff must establish a prima facie case of discrimination by showing (1) he was a member of a protected class, (2) he suffered an adverse employment action, and (3) non-protected employees were not treated similarly. See Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.-Houston [1st Dist.] 2000, no pet.). For an accommodation-type case of religious discrimination, an employee must establish a prima facie case by showing that (1) he has a bona fide religious belief that conflicts with an employment requirement, (2) he informed the employer of this belief, and (3) he suffered an adverse consequence for failure to comply with the conflicting employment requirement. Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-23 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 73 (1986)). If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's discharge, Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88, or to show that it could not accommodate the plaintiff's religious beliefs without undue hardship. Grant, 11 S.W.3d at 423. If the defendant carries this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were rather a pretext for discrimination. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88. Despite the shifting burden of proof, the plaintiff at all times retains the ultimate burden of persuading the trier of fact. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187-88. Discrimination In the instant case, the record is clear that Brauer is Jewish and his tenure track position was terminated by the University. By affidavit, Brauer asserts that he was replaced by a younger, non-Jewish instructor. Brauer further testified that he was "the only Jewish member of the department of which [Brauer's supervisor] was aware during the twelve years he was the chair," and that he was the only member of the tenure-tracked faculty not granted tenure during those twelve years. Brauer further points to several items in the record to support his claim of discrimination. He asserts that he was the only Jewish member of a predominately Arab or Muslim department, and his religious beliefs caused him to be subjected to a hostile workplace. According to Brauer, a Muslim colleague told students that he was not qualified to teach, and consequently, Brauer was unable to obtain graduate students, graduate aids, or maquiladora students. Brauer also claims that he was forced to teach a maquiladora class on Saturday, his religious Sabbath, despite the fact that the University accommodated Muslim students with their religious holiday of Ramadan. Brauer further points to comments allegedly made by a supervisor to the effect that he would never get tenure because someone was "poisoning the well," and that the supervisor had been asked to build a "shit list" on Brauer. Brauer claims that he repeatedly sought assistance from his supervisor regarding these issues, but received none. Brauer further alleges that he was forced to teach operations research and statistics classes even though he had informed the University when he was hired that "those were not his areas of study." Assuming without deciding that Brauer established a prima facie case of discrimination, we conclude that the record establishes legitimate, non-discriminatory reasons for Brauer's termination and alleged unequal treatment. As an initial matter, the only specific claim of religious discrimination made by Brauer is that he was forced to teach maquiladora students on Fridays and Saturdays, his religious Sabbath. However, Brauer's own deposition testimony establishes that he offered to teach in the maquiladora program knowing that the classes were taught on Saturday, and that Saturday classes were required because the students worked in the maquiladora industry during the work week. Brauer further admitted that the entire program would have to be reorganized if Friday and Saturday classes were to be eliminated. In short, the summary judgment evidence shows that Brauer volunteered to teach the very classes about which he is complaining. Moreover, although Brauer asserts that he was fully qualified to teach and performed successfully while at the University, the summary judgment evidence shows that the University had a legitimate, non-discriminatory reason for terminating Brauer. Brauer claims that his first two tenure evaluations in 1995 and 1996 were favorable, and points to several accomplishments while employed by the University, including developing a Systems Safety Engineering Course for the College of Engineering, implementing specific projects with various businesses, founding the local chapter of a national industrial engineering society, and writing and presenting papers annually at the Department of Defense Human Factors Engineering Technical Advisory Group. However, the summary judgment evidence indicates that both Brauer's 1995 and 1996 tenure evaluations include suggestions for improvement. Further evidence indicates that, in the fall of 1996, nine students wrote and signed a letter complaining about Brauer's poor teaching and lack of qualifications and requested his removal from their course. On October 7, 1996, one of those students wrote a long and detailed letter regarding Brauer's teaching, requesting a response to the earlier letter and again requesting that Brauer be replaced. A co-worker observed several of Brauer's classes in the Fall of 1996 and Spring of 1997 and concluded, essentially, that Brauer was not teaching or applying the required subjects. In 1997, Brauer's supervisor concluded that "The Department of Mechanical and Industrial Engineering finds your performance both unsatisfactory and unacceptable" based on Brauer's response to a request for submitted materials: As a result of very strong, focused input from graduate students in Fall 1996, you were removed from teaching IEEN 5335, and given required course teaching preparation and related activities to prepare for the Spring 1997 Semester. It was requested in my memorandum of 17 November that this material be submitted by 16 December 1996 for review by myself and Dean Compton. The material you provided me on 13 January (28 days after the requested material was due) is unsatisfactory. Your syllabi in general show little evidence of being updated-1994 instead of 1997 on one, office hours on another specified as being by appointment. A complete set of lecture notes was requested, and nothing was turned in for this-neither notes per se, nor xeroxed copies of marked up text pages which you say you use and lecture from, nor any written explanation addressing this item. In what you gave me I also can find no set of homework problems and no course projects, much less any evidence of anything addressing the use of technology. In general your performance in satisfying what was requested in my 17 November memorandum has been abysmal. This situation looks like something you have not taken very seriously. The material submitted appears superficial and casually thrown together over the weekend preceding 13 January. What you submitted raises [pertinent] questions with respect to your preparedness to teach courses at the undergraduate, much less the graduate levels in IEEN. The Department of Mechanical and Industrial Engineering finds your performance both unsatisfactory and unacceptable. In March of 1997, the tenure committee recommended that Brauer's probationary period be discontinued. Although Brauer testified that he believed that he was terminated due to his religious beliefs, we conclude that Brauer did not meet his burden to produce any evidence demonstrating that the grounds for which he was terminated were pretextual of discrimination. Baehler v. Fritz Indus. Inc., 993 S.W.2d 181, 183 (Tex. App.- Texarkana 1999, no pet.). The evidence, taken as a whole, does not show that the University's stated reason for terminating Brauer was pretextual. The trial court properly granted the University's motion for summary judgment. The judgment of the trial court is affirmed. Rogelio Valdez, Chief Justice Opinion delivered and filed this 23rd day of October, 2003. 1. On appeal, appellant raises no issues and provides no argument regarding the propriety of summary judgment based on his claims of age discrimination. We conclude that appellant has abandoned or waived this issue on appeal. See Tex. R. App. P. 38.1(h); General Serv. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n.1 (Tex. 2001). To the extent that appellant may have nevertheless intended to raise this issue on appeal, we note that appellant failed to adduce any summary judgment evidence regarding his age, and thus, summary judgment was properly granted on this ground. See, e.g., Russo v. Smith Int'l Inc., 93 S.W.3d 428, 435 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) (discussing age requirement for proof that plaintiff is within protected class).