Texas Judiciary Online - HTML Opinion

In The

Court of Appeals

For The

First=20 District of Texas

NO.=20 01-07-00031-CV

DAVID VILLEGAS, Appellant

HARRIS COUNTY, RON HICKMAN, HARRIS

COUNTY=20 CONSTABLE , PRECINCT = 4,=20 Appellees

On=20 Appeal from the 80th District Court

Harris=20 County, Texas

Trial=20 Court Cause No. 2005-40353

MEMORANDUM OPINION

=20 In this wrongful discharge case, David Villegas appeals the = summary=20 judgment rendered in favor of Harris County on claims arising out = of the=20 termination of his employment. Specifically, Villegas = contends that=20 the trial court erred in granting summary judgment on his national = origin=20 discrimination claim under Title VII of the Civil Rights Act of = 1964, as=20 amended, 42 U.S.C. =A7 2000e, and his deprivation of due = process claim=20 under the Civil Rights Act of 1871, as amended, 42 U.S.C. =A7 = 1983.[1] = Finding no=20 error, we affirm.

Background

=20 David Villegas began serving as a deputy constable for Harris = County=20 Precinct 4 in 1996. On January 7, 2005, Villegas had a minor = accident while driving a patrol car. Just before the = accident,=20 Villegas was stopped at a red light in the middle lane of West = Road at its=20 intersection with Highway 6. West Road is three lanes wide = at that=20 intersection. The signage designates the middle lane as a = =93go=20 straight=94 or =93left turn=94 lane. The other vehicle = involved in the=20 accident was beside Villegas=92s patrol car in the right = lane. When=20 the light turned green, the vehicle=92s driver, Maconces Marinas, = attempted=20 to continue straight on West Road. Villegas, however, tried = to turn=20 right onto Highway 6 in front of Marinas, and the two vehicles = collided.=20

Villegas did not stop = and=20 render aid after the collision. Instead, he drove into the = parking=20 lot of a nearby business. He positioned the patrol car so = that it=20 could not be seen from the intersection where the accident = occurred. =20 Villegas did not report the accident to Precinct 4 dispatch. = Instead, he called his supervisor on his cell phone and told him = that an=20 unknown vehicle =93came out of nowhere=94 and struck the patrol = car. =20 Villegas also related that he was =93chasing=94 the vehicle = because the driver=20 fled the scene. In contrast, Marinas stated that both = vehicles were=20 stopped at the red light, and, as the light turned green, Villegas = turned=20 in front of her, causing the collision.

During the = post-accident=20 investigation, Villegas also claimed that he had activated the = emergency=20 lights on the patrol car. Marinas, however, alleged that = Villegas=20 did not activate the lights until after the collision. = Harris County=20 discharged Villegas twelve days later, after the Accident Review = Board=20 examined the circumstances surrounding the accident, and = recommended that=20 he be terminated immediately.

Following his = termination,=20 Villegas asked for a due process hearing. In its written = response,=20 the County pointed out that, as an employee at will, Villegas did = not have=20 a right to appeal the termination decision, but offered to = schedule a=20 meeting with the constable or his designee to allow Villegas = =93another=20 opportunity to offer his explanation of the events leading to his=20 termination.=94 Villegas accepted the offer, and this = meeting took=20 place on June 29, 2005.

Harris County initially assigned = M. Morino,=20 a Hispanic male, to fill the position formerly held by = Villegas. =20 After reassigning Morino to a different position, Harris County=20 permanently filled the position with S. Garcia, another Hispanic=20 male.

Discussion

A. =20 Error Preservation

As a threshold = matter, Harris=20 County asserts that Villegas did not preserve his claims for = appellate=20 review. To preserve an issue for appellate review, the party = first=20 must raise the issue with the trial court. Tex. R. App. P. = 33.1. In=20 addition, the brief on appeal =93must contain a succinct, clear, = and=20 accurate statement of the arguments made in the body of the = brief.=94 =20 Tex. R. App. P.=20 38.1(h). Rule 38 requires Villegas to provide an = adequate=20 discussion of the facts and applicable authorities. See = Franklin=20 v. Enserch Inc., 961 S.W.2d 704, 711 (Tex. App.=97Amarillo = 1998, no=20 pet.).

We conclude that = Villegas met=20 the requirements of Rule 38. Villegas=92s issues on appeal = fairly=20 encompass the two grounds on which the trial court granted summary = judgment. Further, Villegas=92s brief discusses the relevant = facts and=20 cites to authority pertinent to those issues. Accordingly, = we=20 address his issues on the merits.

B. =20 Summary Judgment

=20 1. =20 Standard of review

=20 Villegas contends the trial court erred in granting Harris = County=92s motion=20 for summary judgment because fact issues remain as to (1) whether = he has=20 established the causal link between his termination and his = national=20 origin necessary to establish his prima facie case of = discrimination, and=20 (2) whether he raised a fact issue on his claim under 42 U.S.C. = =A7 1983=20 that Harris County violated his federal due process rights. We = review=20 these challenges de novo. Valence Operating Co. v. = Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life = &=20 Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. = 2003). As=20 summary judgment movant under the traditional standard, Harris = County bore=20 the burden to show that no genuine issue of material fact exists = on at=20 least one element of each of Villegas=92s claims. See = Tex. R. Civ. P. 166a(c). = In=20 considering whether Harris County met its burden, we take as true = all=20 evidence favorable to the non-movant and indulge every reasonable=20 inference in the non-movant=92s favor. Valence = Operating=20 Co., 164 S.W.3d at 661.

=20 Further, because the trial court did not state the specific = grounds on=20 which it granted the summary judgment, we may affirm the judgment = on any=20 meritorious theory advanced in Harris County=92s motion. = See Carr=20 v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Farrington v. = Sysco=20 Food Servs., Inc., 865 S.W.2d 247, 250 (Tex. App.=97Houston = [1st Dist.]=20 1993, writ denied).

2. =20 Title VII wrongful discharge claim

=20 Title VII of the Civil Rights Act of 1964 prohibits an = employer from=20 discharging an employee based on color, race, religion, or = national=20 origin. 42 U.S.C. =A7 2000e-2(a). Villegas claims that = Harris=20 County violated Title VII because he received disparate treatment = based on=20 his national origin.

=20 =20 a. Disparate treatment = based on=20 national origin

To prevail on a Title = VII claim=20 of disparate treatment, a plaintiff must satisfy the = burden-shifting test=20 pronounced by the Supreme Court in McDonnell Douglass Corp. v.=20 Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See = also Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. = 133,=20 141-42, 120 S. Ct. 2097, 2105=9606 (2000) (endorsing test); = Wal-Mart=20 Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) = (applying=20 McDonnell Douglasstest in cases under state counterpart to = Title=20 VII, Tex. Lab. = Code =A7=A7=20 21.051=96.556 (Vernon 2006)).

The McDonnell=20 Douglasstest first requires the plaintiff to establish =93a = prima facie=20 case of discrimination.=94 411 U.S. at 802, 93 S. Ct. at = 1824. A=20 plaintiff can accomplish this by showing that: (1) the plaintiff = belongs=20 to a protected class; (2) the plaintiff qualified for the = position; (3)=20 the employer subjected the plaintiff to an adverse employment = action; and=20 (4) the employer either replaced the plaintiff with someone = outside the=20 protected class or treated other similarly situated employees = outside the=20 protected class more favorably than the plaintiff. = Id., 93 S.=20 Ct. at 1824; Okoye v. Univ. of Tex. Houston Health Sci.=20 Ctr., 245 F.3d 507, 512=9613 (5th Cir. 2001).

If the plaintiff = makes this=20 prima facie showing, he raises a rebuttable presumption that the = employer=20 unlawfully discriminated against him. McDonnell = Douglass, 411=20 U.S. at 802, 93 S. Ct. at 1824. At that point, the burden of = production shifts to the employer to articulate a legitimate,=20 nondiscriminatory reason for the adverse employment action.=20 Id., 93 S. Ct. at 1824. This burden of = production is=20 not difficult to meet: even an incorrect belief that an = employee=92s=20 performance is inadequate constitutes a legitimate, = nondiscriminatory=20 reason for an adverse employment action. Winters v. Chubb = &=20 Son, Inc., 132 S.W.3d 568, 576 (Tex. App.=97Houston = [14th Dist.]=20 2004, no pet.) (quoting Little v. Republic Ref. Co., 924 = F.2d 93,=20 97 (5th Cir.1991)).

If the employer meets = this=20 burden of production, the presumption raised by the prima facie = case=20 vanishes, and the burden shifts back to the plaintiff to prove = that the=20 employer=92s articulated reasons are a mere pretext for unlawful=20 discrimination. Proving pretext for discrimination requires = the=20 plaintiff to show both that the reason for termination was false, = and that=20 discrimination was the real reason. St. Mary=92s Honor = Ctr. v.=20 Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993); = see=20 Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th = Cir.=20 1996). Although the burden of production shifts, the burden = of=20 persuasion under the McDonnell Douglass test remains at all = times=20 with the plaintiff. St. Mary=92s Honor Ctr., = 509 U.S. at=20 507, 113 S. Ct. at 2747.

&= nbsp; =20 b. Prima facie case of = disparate=20 treatment

Villegas has met the = first=20 three elements of his prima facie case: he has shown that = (1) he is=20 Hispanic, (2) he was qualified for the position of Harris County = deputy=20 constable, and (3) Harris County terminated his employment. = The=20 final element requires Villegas to raise a material fact issue = that Harris=20 County replaced him with someone who was not Hispanic, or, = alternatively,=20 that he received less favorable treatment than similarly situated=20 employees who were not Hispanic. See Bryant v. Compass = Group USA,=20 Inc., 413 F.3d 471, 478 (5th Cir. 2005); Little, 924 = F.2d at=20 97.

Villegas provided no = evidence=20 to raise a fact issue that Harris County replaced him with a = non-Hispanic;=20 on the contrary, the evidence conclusively negates this=20 element. Villegas, therefore, attempts to make the = alternative=20 showing, citing instances in which two other employees allegedly = received=20 more favorable treatment than he.

To raise a fact = issue, Villegas=20 must show that he is similarly situated to those = constables:

Employees are similarly situated if = their=20 circumstances are comparable in all material respects, including = similar=20 standards, supervisors, and conduct. Although =93precise = equivalence=20 in culpability between employees is not the ultimate question,=94 = the Fifth=20 Circuit has held that to prove discrimination based on disparate=20 discipline, the plaintiff must usually show =93that the misconduct = for which=20 he was discharged was nearly identical to that engaged in by an = employee=20 [not within the protected class] whom the [employer] retained.=94=20

Ysleta Indep. Sch. = Dist. v.=20 Monarrez, 177=20 S.W.3d 915, 917=9618 (Tex. 2005) (quoting Smith v. Wal-Mart = Stores,=20 Inc., 891 F.2d 1177, 1180 (5th Cir. 1990), and McDonald v. = Santa Fe=20 Trail Transp. Co., 427 U.S. 273, 283 n.11, 96 S. Ct. 2574, = 2580 n.11=20 (1976)) (internal quotations omitted).

=20 Villegas compares his situation to those of two other Precinct 4=20 constables, both Caucasian males, who, he asserts, received the=20 opportunity to resign in lieu of termination following their = involvement=20 in minor accidents. One, a captain in the precinct, had = accidentally=20 backed his personal vehicle into an unoccupied car while leaving = the=20 precinct parking lot. After the impact, he inspected the = vehicle,=20 saw no damage, and then left the scene without leaving the vehicle = owner=20 any notification of the accident. The parked car, however, = had=20 sustained damage. The precinct began an investigation, but = the=20 captain abruptly resigned before it was completed. =

The other individual, = a deputy=20 constable, was involved in an accident when he attempted to get = out of=20 standing traffic by maneuvering around a vehicle stopped in front = of him=20 by steering left toward the grassy median. The right mirror = of the=20 patrol car struck the left rear quarter panel of the stopped=20 vehicle. The constable, who later claimed that he did not = notice=20 that he had collided with the other vehicle, continued driving to = the next=20 intersection, where he stopped and inspected his patrol car for = possible=20 damage from jumping the curb onto the median. Harris County=20 initially terminated the constable but later, at the constable=92s = request,=20 allowed him to resign.

The circumstances = that led to=20 Villegas=92s discharge are not sufficiently similar to those = involving these=20 other individuals. We note that the Accident Review Board prefaced = its=20 recommendation of immediate termination for Villegas on four = findings, one=20 of which concerned Villegas=92s lack of honesty in connection with = his=20 initial reporting of the accident. In contrast to Villegas, = neither=20 of the other individuals made any statement concerning the = respective=20 incidents that was later found to be false. Further, only = Villegas=20 was found to have knowingly left the scene of an accident. Harris County also = observes that,=20 unlike the other constables, Villegas did not resign in lieu of=20 termination, or ask that he be allowed to do so. These = differences=20 demonstrate the absence of a material fact issue on this = element. =20 See Little, 924 F.2d at 97 (employees were not similarly = situated=20 because different supervisors reviewed employees=92 actions and = made=20 employment decisions); Smith, 891 F.2d at 1180 (employees = who=20 violated company policy in different ways were not similarly = situated);=20 see also Davin, 678 F.2d at 572 (employees were not=20 similarly situated because only one employee=92s = inappropriate remarks=20 were also considered threatening). Because the evidence = fails to=20 raise a fact issue on this final element of Villegas=92s prima = facie case,=20 the trial court correctly granted summary judgment on his Title = VII=20 national origin discrimination claim. We therefore overrule=20 Villegas=92s first issue.[2]

C. =20 Villegas=92s Section 1983 Claim

Harris County specially excepted = to=20 Villegas=92s section 1983 claim before it moved for summary = judgment, and=20 the trial court granted the special exceptions. Villegas = rests on=20 his original petition and contends both in response to summary = judgment=20 and on appeal that he raised a material fact issue on each element = of that=20 claim. We disagree with Harris County=92s contention that = Villegas=92s=20 failure to amend his petition, standing alone, supplies an = independent=20 basis for summary judgment on his section 1983 claim. = Rather, we=20 construe his issue as a challenge to the trial court=92s rulings = granting=20 both the special exception and the summary judgment on his section = 1983=20 claim and address it on the merits. See Alpert v. Crain, = Caton,=20 & James, P.C., 178 S.W.3d 398, 405 (Tex. App.=97Houston = [1st Dist.]=20 2005, pet. denied) (=93When special exceptions = are=20 sustained, the pleader may either amend the petition or refuse to = amend=20 and challenge the ruling on appeal.=94).

=20 Villegas bases his section 1983 claim on the contentions that the = County=20 (1) violated his substantive due process rights by discharging him = for=20 arbitrary and capricious reasons, and (2) discharged him in a = manner that=20 unjustly stigmatized him, and then (3) failed to provide him with = a=20 meaningful hearing in which he could present favorable evidence = and=20 cross-examine witnesses who wrongly accused him.

=20 Under Texas law, constables are employees at will unless the = employing=20 county adopts a civil service system providing civil service = protection to=20 its constables. See County of Dallas v. = Wiland, 216=20 S.W.3d 344, 347=9648 (Tex. 2007); Renken v. Harris County, = 808 S.W.2d=20 222, 225 (Tex. App.=97Houston [14th Dist.] 1991, no writ) (holding = that=20 grievance procedure did not modify Harris County deputy = constable=92s status=20 as at-will employee). Because Harris County has not adopted = civil=20 service protections for its constables, Villegas=92s reliance on=20 Wiland is misplaced. In that case, the plaintiffs, = deputy=20 constables who had been discharged, contended that the rules governing dismissal set forth in = Dallas=20 County=92s civil service system manual gave them a property interest in continued employment = protected=20 by the due process clause of the Fourteenth Amendment and = precluded=20 discharge without just cause. The Texas Supreme Court = concluded that =93the fair import of = the Manual=92s=20 provisions, taken as a whole, is that covered employees are not to = be=20 discharged without being given a reason they can contest,=94 thus = creating a=20 reasonable expectation in continued employment that amounted to = =93a=20 property interest of which employees may not be deprived without = due=20 process.=94 Wiland, 216 S.W.3d at 354. =20

Villegas does not=20 identify any Harris County employment policy or manual provision=20 applicable to the precinct that might modify at-will status. = As an=20 employee at will, Villegas lacked a constitutionally protected = property=20 interest in continued employment as well as any justifiable = expectation=20 that he could not be discharged for arbitrary and capricious=20 reasons. See Schultea v. Wood, 17 F.3d 1112, = 1116 (5th=20 Cir. 1994). Further, Villegas concedes that he was given an=20 opportunity to tell the constable and assistant constable whatever = he=20 wanted to tell them, and present them with any new evidence. = Given=20 all these circumstances, Villegas=92s due process claim is barred = as a=20 matter of law. See Cleveland Bd. of Educ. v. = Loudermill, 470=20 U.S. 532, 546, 105 S. Ct. 1487, 1495 (1985); Williams v. Conroe = Indep. Sch.=20 Dist., 809 S.W.2d 954, 958 = (Tex.=20 App.=97Beaumont 1991, no writ). =

Conclusion

=20 We conclude that the trial court correctly granted summary = judgment in=20 favor of Harris County on Villegas=92s federal law claims for = national=20 origin discrimination and deprivation of due process. We = therefore=20 affirm the judgment of the trial court.

&= nbsp; &n= bsp; &nb= sp; =20

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20

Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.