Opinion issued March = 29,=20 2007
For=20 The
Appellant,=20
Lucille R. Kelley, appeals the trial court's order of summary =
judgment in=20
favor of appellee, Humble Independent School District. Kelley sued =
the=20
School District for age discrimination after she was fired from =
her job as=20
a substitute teacher. See Tex. Lab. Code Ann. =A7 21.051 =
(Vernon=20
2006). The trial court issued an order that granted the School =
District's=20
motion for summary judgment. In a single issue, Kelley contends =
that the=20
trial court's order was error because under the applicable =
standard of=20
proof, her summary judgment evidence creates a genuine issue of =
material=20
fact that precludes summary judgment. The School District responds =
that=20
Kelley failed (1) to establish a prima facie case of age =
discrimination,=20
and (2) to establish that the School District's reasons for =
terminating=20
her were false or a pretext for age discrimination. We conclude =
that=20
Kelley presented a prima facie case of discrimination, but failed =
to show=20
that the School District's proffered reason for firing her was a =
pretext=20
for discrimination. We affirm. The School=20
District hired Kelley as a substitute teacher in 1994. Kelley's =
personnel=20
file contains occasional reports of deficient performance. =
Furthermore,=20
Kelley's record in the School District's SubFinder System reflects =
a low=20
rate of acceptance of substitute teaching assignments offered to=20
her. SubFinder=20
is an automated telephone system by which the School District =
distributes=20
substitute teaching assignments. SubFinder was active for the =
entire time=20
Kelley was an employee of the School District. SubFinder is =
administered=20
by a company that has provided substitute teacher employment =
services for=20
approximately 20 years and currently services more than 50 school=20
districts in Texas and more than 500 in the United States and =
Canada. The=20
School District gives substitute teachers a detailed instruction =
book to=20
assist them with SubFinder. SubFinder=20
works in one of two ways: either the system places a telephone =
call to an=20
individual substitute teacher to inform that teacher of an =
assignment, or=20
the substitute teacher calls into the system to review available=20
assignments. The substitute teacher can accept or reject =
assignments in=20
SubFinder. SubFinder=20
usually calls substitute teachers regarding assignments either =
from 5:30=20
a.m. to 11:45 a.m. or from 6:00 p.m. to 9:30 p.m. After the =
teacher=20
answers, SubFinder describes the assignment and prompts the =
substitute=20
teacher to respond. The substitute teacher may either press "1" to =
accept=20
the assignment, or "2" to reject the assignment. Substitute =
teachers have=20
the right to reject jobs, and no express School District policy =
states how=20
many jobs a substitute may reject before being terminated. The =
School=20
District evaluates its substitute teachers' availability on a =
case-by-case=20
basis. Substitute=20
teachers may notify the School District of days of the week or =
specific=20
times that they are unavailable to work or to be contacted. They =
are also=20
asked to notify SubFinder of any assignments accepted directly =
from campus=20
or administrators. SubFinder does not call substitute teachers on =
days=20
they are listed as "unavailable." The School District requests =
that all=20
substitute teachers keep their contact information, availability, =
and=20
grade level preferences current. Substitute teachers can change =
their=20
preferences by accessing SubFinder, by updating their annual =
substitute=20
employee information sheet, or by calling the Human Resources =
Office at=20
the School District. Kelley=20
located substitute teaching assignments both through SubFinder, =
and on her=20
own by networking with teachers. Since 1999, Kelley filled out =
annual=20
forms stating that she was willing to work at all district schools =
and=20
that she would teach elementary and secondary school classes. Each =
annual=20
form included a phone number that substitute teachers could call =
to change=20
personal information such as name, phone number, and available =
days of the=20
week. In May=20
2003, the School District sent Kelley a form letter that informed =
her that=20
her employment with the School District as a substitute teacher =
would be=20
renewed for the 2003-2004 school year. On September 22, 2003, the =
School=20
District received a letter from the Texas Workforce Commission =
informing=20
the School District that Kelley had filed for unemployment =
benefits. In=20
October, Dr. Mary Widmier, Humble ISD Assistant Superintendent of =
Human=20
Resources, reviewed Kelley's SubFinder log in order to reply to =
this=20
Workforce Commission notice. The School District had previously =
replied to=20
several Workforce Commission requests as a response to Kelley =
filing for=20
unemployment benefits. Customarily, when an employee filed for=20
unemployment benefits, the School District would review that =
employee's=20
job log to verify employment and determine whether work was =
available to=20
that employee. Widmier=20
examined Kelley's SubFinder records from August 20 through October =
15,=20
2003. The job log showed that the system had attempted to contact =
her 60=20
times for jobs, but she had accepted only nine. Widmier=20
contacted Kelley by telephone after reviewing her acceptance data =
to=20
discuss her pattern of refusing assignments and failure to respond =
to=20
SubFinder. Widmier wanted to ascertain whether there were specific =
reasons=20
for Kelley's behavior and to determine if she wanted to continue=20
employment with the School District. At the time she telephoned =
Kelley,=20
Widmier did not know Kelley's age. When Widmier explained the =
SubFinder=20
data to her, Kelley became angry and refused to answer questions. =
Kelley=20
asserted that the report was inaccurate and that she had been =
working, but=20
did not detail what specific errors that she thought the report =
contained.=20
Widmier then informed Kelley that her employment would be =
terminated the=20
following week, at which point Kelley hung up. On October=20
21, 2003, a letter was sent to Kelley with Widmier's signature =
informing=20
Kelley that she had been fired and was removed from the School =
District's=20
substitute teacher list. The letter stated, This letter=20
is to inform you that I am removing your name from employment with =
the=20
Humble ISD substitute pool effective today, October 21,=20
2003. As we=20
discussed, a recent review of our substitute calling records shows =
that=20
you are not readily available to work on a consistent basis. For =
example,=20
since August 20, our sub calling system has made 60 attempts to =
contact=20
you for jobs. However, you have accepted only nine (9) of the =
calls placed=20
by the calling system. You have also refused several offers for =
work,=20
including assignments on September 15, 18, and 30. Our payroll =
records=20
confirm that you did not work for the school district on any of =
these=20
days. This pattern demonstrates that you are either not available =
for work=20
when the sub calling system attempts to contact you or you have no =
further=20
interest in working for the school district. Therefore, I have =
determined=20
that it is in the best interest of the school district that we end =
your=20
employment with us at this time.
Attached to=20
this termination letter was Kelley's SubFinder Job Log Report from =
August=20
to October 2003. Kelley was 69 years old at the time she was =
fired.=20
Kelley=20
filed suit in May 2004. In her First Amended Petition, Kelley =
alleges that=20
the School District wrongfully terminated her employment because =
of her=20
age. The petition stated that Widmier "claimed that [Kelley] did =
not make=20
herself available for teaching assignments. This statement is =
false." She=20
contended that her years of employment with the School District =
showed=20
that her "employment performance was exemplary." She further =
stated that=20
"age was a motivating factor in [the School District's] decision =
to=20
terminate her employment." In May=20
2005, the School District moved for summary judgment. The School =
District=20
based its motion on the arguments (1) that Kelley failed to =
establish a=20
prima facie case of age discrimination and, (2) that Kelley failed =
to=20
establish that the School District's reasons for terminating her =
were=20
false or motivated by age discrimination. In her response to the =
School=20
District's motion, Kelley alleged several factual issues relating =
to the=20
SubFinder data, including that: =95 she=20
rejected only one assignment during the September-October period =
reviewed=20
by Widmier; =95 she=20
worked 18 assignments during that period, as opposed to the nine =
alleged=20
by the School District. Of these 18 assignments, she stated that =
16 were=20
full-day assignments and two were half-day =
assignments; =95 a number=20
of SubFinder records showing that the system's phone call was =
answered but=20
no response was entered indicate that her answering machine took =
the=20
call; =95 School=20
District records falsely stated she refused work on September 11. =
Kelley=20
asserted that because it was a high school assignment, she would =
have been=20
willing to accept the job had it been offered to her; =
=95 on=20
September 15, she refused an assignment because it was for an =
elementary=20
school position; she asserted that health problems prevented her =
from=20
working with younger students, despite her response to the =
SubFinder form=20
that she could take assignments at all grade levels; =95 on=20
September 18, she did not receive a SubFinder call because she was =
at the=20
unemployment office; and, =95 on=20
October 21, she accepted a substitute teaching assignment outside =
the=20
SubFinder system, and did not reject work that day. The trial=20
court granted the School District's summary judgment motion =
without=20
stating the grounds for its ruling. We review a=20
trial court's grant of summary judgment de novo. Little v. =
Tex. Dept.=20
of Criminal Justice, 177 S.W.3d 624, 629 (Tex. App.--Houston =
[1st=20
Dist] 2005, no pet.). The summary judgment movant must prove that =
it is=20
entitled to judgment as a matter of law and that there is no =
genuine issue=20
of material fact. Id.; see also Tex. R. Civ. P. =
166a(c).=20
We take as true evidence that favors to the non-movant, and =
indulge every=20
reasonable inference and resolve any doubts in favor of the =
non-movant.=20
Little, 177 S.W.3d at 629. We may affirm only when the =
record=20
shows that a movant has disproved at least one element of each of =
the=20
plaintiff's claims or has established all elements of an =
affirmative=20
defense to each claim. Id. (citing Am. Tobacco Co., =
v.=20
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). If the movant =
establishes=20
a right to summary judgment, the burden then shifts to the =
non-movant to=20
present evidence raising a fact issue. Id., 177 S.W.3d at =
629=20
(citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, =
197 (Tex.=20
1995)). When a summary judgment order does not specify the grounds =
on=20
which it was granted, we affirm the judgment on any valid theory =
included=20
in the motion. Id., 177 S.W.3d at 629-30 (citing =
Harwell v.=20
State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.=20
1995)). Kelley=20
claims discrimination under the Texas Commission on Human Rights =
Act,=20
which prohibits an employer from discharging an employee because =
of age.=20
Tex. Lab. Code Ann. =A7 21.051 ("An employer commits an unlawful =
employment=20
practice if because of . . . age the employer =
. . .=20
discharges an individual, or discriminates in any other manner =
against an=20
individual in connection with . . . privileges of =
employment.");=20
see generally =A7=A7 21.001-.556. In cases brought under =
the Act, we=20
follow analogous federal precedent. Quantum Chem. Corp. v.=20
Toennies, 47 S.W.3d 473, 476 (Tex. 2001). When, as here, an=20
employment discrimination case has not been fully tried on the =
merits, we=20
apply the burden-shifting analysis established by the United =
States=20
Supreme Court in McDonnell Douglas Corp. v. Green. 411 =
U.S. 792,=20
802-03, 93 S. Ct. 1817, 1824-25 (1973); see also =
Reeves v.=20
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S. =
Ct.=20
2097, 2106; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, =
506-07,=20
113 S. Ct. 2742, 2747 (1993); Wal-Mart Stores, Inc. v. =
Canchola,=20
121 S.W.3d 735, 739 (Tex. 2003); Little, 177 S.W.3d at=20
630. In=20
reviewing the evidence under McDonnell Douglas, we draw =
all=20
reasonable inferences in favor of the non-moving party. =
Reeves,=20
530 U.S. at 150, 120 S. Ct. at 2110. We may not make credibility=20
determinations or weigh the evidence. Id., 120 S. Ct. at =
2110. We=20
review the record as a whole, but disregard all evidence in favor =
of the=20
moving party. Id. at 151, 120 S. Ct. at 2110. Under=20
McDonnell Douglas, the plaintiff in an employment =
discrimination=20
suit must first present evidence of a prima facie case of =
discrimination.=20
Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum=20
Chemical, 47 S.W.3d at 477. "The burden of establishing a =
prima facie=20
case of [discrimination] is not onerous." Tex. Dept. of Cmty. =
Affairs=20
v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094 (1981); =
see=20
also Quantum Chem., 47 S.W.3d at 477. To meet her burden to =
present a=20
prima facie case, Kelley was required to present evidence that (1) =
she is=20
a member of a protected class; (2) she suffered an adverse =
employment=20
action, such as being fired; (3) she was qualified for the =
position from=20
which she was discharged; and (4) she was either replaced by =
someone=20
outside the protected class, replaced by someone younger, or was =
otherwise=20
discharged because of her age. See Russo v. Smith Int'l, =
Inc., 93=20
S.W.3d 428, 435 (Tex. App.--Houston [14th Dist.] 2002, pet. =
denied).=20
Once a=20
plaintiff presents a prima facie case of discrimination, the =
burden shifts=20
to the defendant to articulate "a legitimate, nondiscriminatory =
reason for=20
the adverse employment action." Little, 177 S.W.3d at 631 =
(citing=20
Reeves, 530 U.S. at 142, 120 S. Ct. at 2106). The burden =
is one=20
of production only, not of persuasion. Little, 177 S.W.3d =
at 631=20
(citing Reeves 530 U.S. at 142, 120 S. Ct. at 2106;=20
Russo, 93 S.W.3d at 437-38). After the=20
defendant proffers its nondiscriminatory rationale for the adverse =
employment decision, the burden returns to the plaintiff to show =
"that the=20
legitimate reasons offered by the defendant were not its true =
reasons, but=20
were a pretext for discrimination." Reeves, 530 U.S. at =
143, 120=20
S. Ct. at 2106 (quoting Burdine, 450 U.S. at 253, 101 S. =
Ct. at=20
1093). Kelley may attempt to prove intentional discrimination "by =
showing=20
that [the School District's] proffered explanation is unworthy of=20
credence." See id. (citing Burdine, 450 U.S. at =
256, 101=20
S. Ct. at 1095). Under the Commission on Human Rights Act, she =
must "show=20
that discrimination was a motivating factor in an adverse =
employment=20
decision." Quantum Chem., 47 S.W.3d at 482. Kelley need =
only=20
produce more than a scintilla of evidence in order to raise a fact =
issue=20
for the trial court's summary judgment to be reversed. Winters =
v.=20
Chubb & Son, Inc., 132 S.W.3d 568, 576 (Tex. =
App.--Houston [14th=20
Dist] 2004, no pet.). Kelley=20
contends on appeal, as she did in her response to the School =
District's=20
motion for summary judgment, that the School District's own =
records show=20
that she was replaced by a younger person. The summary judgment =
evidence=20
shows that all the substitute teachers hired in the two months =
immediately=20
after she was fired were younger than she was at the time she was =
fired.=20
We conclude that Kelley produced sufficient evidence of the fourth =
element=20
of a prima facie case of employment discrimination by producing =
evidence=20
that she was replaced by a younger employee. Because the fourth =
element is=20
the only element contested by the School District, Kelley has met =
her=20
initial burden under McDonnell Douglas of establishing a =
prima=20
facie case of discrimination. Because=20
Kelley presents a prima facie case of discrimination, the School =
District=20
was required to produce a legitimate, nondiscriminatory reason for =
firing=20
her in order to meet its burden under the second step of the =
McDonnell=20
Douglas analysis. See Burdine, 450 U.S. at =
260, 101=20
S. Ct. at 1097. The School District proffered Kelley's lack of=20
availability and poor rate of acceptance of substitute teaching=20
assignments as evidenced by her record of responses to the =
SubFinder=20
System. Kelley=20
contends that the School District has failed to prove, as a matter =
of law,=20
that its proffered reason is the true reason for her termination.=20
Specifically, she states that the School District's rationale is =
not=20
presented "with 'sufficient clarity' to afford the employee a =
realistic=20
opportunity to show that the reason is pretextual." Patrick v. =
Ridge, 394 F.3d 311, 317 (5th Cir. 2004). Kelley asserts that =
the=20
School District's statement to the trial court that she did not=20
"consistently make herself available" is too vague to satisfy the =
burden=20
of production under step two of McDonnel Douglas. Her =
reliance on=20
Ridge, however, is misplaced. Ridge "does not =
mean that=20
an employer may not rely on subjective reasons for its personnel=20
decisions." Id. The Ridge court held that the =
employer's=20
stated reason for not hiring an employee was impermissibly vague =
because=20
it did not provide some "articulable characteristic" which would =
enable=20
the plaintiff to show pretext. Id. The rejected stated =
reason was=20
that an employee was not "sufficiently suited" for the position.=20
Id. Here, the School District provides an articulable=20
characteristic: frequency of acceptance of substitute teaching =
assignments=20
via SubFinder. This articulable characteristic was sufficient to =
enable=20
Kelley to attempt to show pretext by contesting, as she has, the =
accuracy=20
of the SubFinder records. We conclude that because the School =
District=20
presented a sufficiently specific nondiscriminatory reason for =
firing=20
Kelley, it has met its burden of production under McDonnell=20
Douglas. See id.; see also Little, 177 =
S.W.3d at=20
631 (citing Reeves 530 U.S. at 142, 120 S. Ct. at 2106;=20
Russo, 93 S.W.3d at 437-38). Because the=20
School District presented a legitimate, nondiscriminatory reason =
for=20
firing Kelley, the burden therefore shifts back to Kelley to show =
that the=20
School District's proffered reason is false, and a pretext for=20
discrimination because of her age. See Reeves, =
530 U.S.=20
at 143, 120 S. Ct. at 2106; Quantum Chem., 47 S.W.3d at =
477. She=20
articulates a number of factual bases that she claims show =
pretext.=20
A.=20
No fact issue regarding the School District's=20
motivation Kelley=20
contends that the School District's assertion that she was =
consistently=20
unavailable for substitute teaching assignments is demonstrated to =
be=20
false by the summary judgment evidence. She states that the =
evidence shows=20
that: =95 during=20
the final two months of the 2002-2003 school year, she worked 22=20
assignments and rejected 24 (a total of 46 assignments=20
offered); =95 she was=20
kept on for the 2003-2004 school year, indicating that accepting =
22=20
assignments out of 46--as she did over the final two months of the =
2002-2003 school year--is a sufficiently consistent acceptance=20
rate; =95 over the=20
two months immediately prior to her firing in October 2003, she =
worked 18=20
assignments, and testified that she rejected only one, far better =
than her=20
ratio of acceptance to rejection that she compiled over the final =
two=20
months of the 2002-2003 school year; =95 Texas=20
Workforce Commission records created by the School District state =
that=20
Kelley accepted "numerous" assignments in April and May 2003;=20
and =95 Kelley=20
was never listed as "inactive" by the School District, where =
"inactive"=20
substitutes were those who accepted no assignments over a 60-day=20
period. This=20
evidence, Kelley asserts, "clearly casts doubt on and tends to =
show that=20
[the School District's] 'consistency' argument is =
pretextual." "An at-will=20
employer does not incur liability for carelessly forming its =
reasons for=20
termination." Wal-Mart Stores, 121 S.W.3d at 740. Whether=20
judgment as a matter of law is appropriate in any particular case =
will=20
depend on a number of factors. These include the strength of the=20
plaintiff's prima facie case, the probative value of the proof =
that the=20
employer's explanation is false, and any other evidence that =
supports the=20
employer's case and that properly may be considered on a motion =
for=20
judgment as a matter of law.Reeves, 530 U.S. at 148-49, =
120 S.=20
Ct. at 2109. None of the=20
evidence to which Kelley points tends to show that the School =
District had=20
a discriminatory motive for firing her. Kelley's claim that she =
rejected=20
24 assignments and worked 22 assignments over the final two months =
of the=20
2002-2003 school year supports the School District's claim that =
she was=20
not available, because it shows that she was not available more =
often than=20
she was available. This evidence is thus no proof of pretext by =
the School=20
District. Further, the fact that the School District never listed =
her as=20
"inactive" does not show that she should not have been terminated =
due to=20
her inadequate availability. The School District presented records =
of four=20
other "active" substitutes who were fired because of poor =
SubFinder=20
records. Finally, her contention that she worked more assignments =
than=20
SubFinder reported, and that she refused fewer assignments, tends =
only to=20
show that the School District may have been careless, or may have=20
incorrectly formed its belief that she was insufficiently =
available.=20
See Wal-Mart Stores, 121 S.W.3d at 740; =
Little,=20
924 F.2d at 97. None of her summary judgment evidence casts doubt =
on the=20
School District's contention that its motive for firing her was =
the=20
SubFinder data showing that she too infrequently accepted =
SubFinder=20
assignments. B.=20
Records of other substitutes' firings Kelley=20
asserts that a comparison of her record with the records of four =
other=20
substitutes who were fired near the time she was fired shows =
disparate=20
treatment. See, e.g., Hazen Paper Co. v. Biggins, 507 =
U.S. 604,=20
609-10, 113 S. Ct. 1701, 1706 (1993). To establish that she =
suffered=20
disparate treatment by comparing her treatment with other =
substitutes,=20
Kelley must "demonstrate that . . . preferential =
treatment was=20
given under 'nearly identical' circumstances; more specifically, =
[she]=20
must show that [s]he was discharged for conduct that other =
employees were=20
not." Winters, 132 S.W.3d at 578. Kelley makes no =
allegations and=20
presents no evidence of any younger substitute teachers who had =
patterns=20
of unavailability similar to her own, but whom the School District =
did not=20
fire; that is, she does not claim that she was fired for conduct =
for which=20
other, younger employees were not fired. Instead,=20
Kelley points to the School District's summary judgment evidence =
of other=20
substitute teachers who were fired based on SubFinder records, and =
claims=20
that these other fired substitutes were in nearly identical =
circumstances=20
but received preferential treatment. Specifically, she points to a =
substitute who received a warning before she was terminated, and =
to=20
substitutes who were fired based on three months of poor =
availability as=20
opposed to the two months of records on which the School District =
based=20
Kelley's firing. These records are not evidence of disparate =
treatment.=20
The substitute who received a warning was fired because she =
cancelled too=20
many jobs that she had already accepted, not for a general pattern =
of=20
unavailability. Kelley's circumstances are therefore not "nearly=20
identical" to this substitute. See Ysleta Ind. Sch. Dist. v.=20
Monarrez 177 S.W.3d 915, 918 (Tex. 2005) (fired employees who =
violated time card rules not similarly situated to employees who =
violated=20
time card rules but kept their jobs, where "nature and degree" of=20
violations is different). Further, the letters of termination in =
the=20
appellate record do not indicate that other employees were=20
allowed three months of poor performance before they were =
fired=20
as opposed to Kelley's two months. Instead, the letters show that =
all of=20
the firings, including Kelley's, were based on "a recent review" =
of=20
SubFinder records. That two months of Kelley's SubFinder records =
were=20
reviewed instead of three is not relevant to our inquiry on =
summary=20
judgment, since absent a showing of discriminatory motive, "a =
disagreement=20
between an employer and employee over assessment of job =
performance is not=20
actionable." Winters, 132 S.W.3d at 578. C.=20
Statistical evidence Kelley=20
correctly states that a plaintiff may show pretext by pointing to=20
statistics that illustrate a discriminatory employment policy. =
See=20
McDonnell Douglas, 411 U.S. at 805, 93 S. Ct. at 1825 =
("statistics as=20
to petitioner's employment policy and practice may be helpful to a =
determination of whether petitioner's refusal to rehire respondent =
in this=20
case conformed to a general pattern of discrimination"). However, =
the=20
statistics Kelley presents are insufficient as a matter of law to =
show a=20
general pattern of discrimination. Kelley points out that in 2003 =
and=20
2004, the School District fired 2 substitute teachers born in the =
1920s,=20
34 born in the 1930s, and 119 born in the 1940s. She does not, =
however,=20
link this raw data in any way to a pattern of discrimination. =
These plain=20
numbers, without more, are insufficient to raise a fact issue as =
to=20
pretext. See, e.g., Int'l Brotherhood. of Teamsters v. =
U.S., 431=20
U.S. 324, 337-38, 97 S. Ct. 1843, 1855-56 (1977) (presenting and =
comparing=20
percentages of employees assigned to particular jobs to show =
pattern of=20
racial discrimination); E.E.O.C. v. Olson's Dairy Queens, =
Inc.,=20
989 F.2d 165, 166-68 (5th Cir. 1993) (percentages and "standard=20
statistical techniques" used to show racial =
discrimination). We conclude=20
that Kelley presented no evidence meeting her burden under the =
third=20
McDonnell Douglas step to show that the School District's =
proffered reason for firing her was a pretext for discrimination. =
See=20
Reeves, 530 U.S. at 134, 142-43, 120 S. Ct. at 2101-02, 2106. =
Kelley=20
has also failed to produce more than a scintilla of evidence that=20
discrimination was a motivating factor in the School District's =
decision.=20
See Quantum Chem., 47 S.W.3d at 481. We hold that the =
trial court=20
did not err by rendering summary judgment in favor of the School =
District.=20
We overrule Kelley's sole point of error.
We affirm=20
the judgment of the trial court. Elsa=20
Alcala Panel consists of Justices =
Taft, Alcala,=20
and Hanks. 1. There are discrepancies in the record as =
to whether=20
Kelley accepted 9 or 10 jobs through SubFinder.=20
2. The School District does not contest the =
other=20
three elements of Kelley's prima facie case.=20
3. In its motion for summary judgment, the =
School=20
District states that Following=20
the Plaintiff's termination on October 21, 2003, Humble ISD hired=20
approximately 80 substitute teachers. Like the Plaintiff, all of =
these=20
substitutes were added to Humble ISD's general substitute pool and =
were=20
assigned the title, "substitute teacher." . . . It is =
impossible=20
to determine which of the 80 substitutes Humble ISD hired after =
the=20
Plaintiff's termination, if any, actually "replaced" the =
Plaintiff.=20
Therefore, the Plaintiff cannot establish that she was replaced by =
someone=20
younger or outside of her protected as category--the fourth =
element of her=20
prima facie case.=20
4. Wal-Mart Stores, Inc. v. =
Canchola=20
considers a challenge to the legal sufficiency of evidence to =
support a=20
jury verdict, and not a summary judgment motion as we have here. =
121=20
S.W.3d 735, 737 (Tex. 2003). However, the standard is the same for =
our=20
reviews of evidence under both a summary judgment and a legal =
sufficiency=20
challenge. City of Keller v. Wilson, 168 S.W.3d 802, 823 =
(Tex.=20
2005).