CHEVRON PHILLIPS CHEMICAL COMPANY, LP
Court of Appeals of Texas, First District, Houston.
Opinion issued May 8, 2008.
Panel consists of Justices TAFT, KEYES, and ALCALA.
ELSA ALCALA, Justice.
Rodea began working for Philips Petroleum Company, Chevron's predecessor company, in 1996 as a clerk trainee. She transferred to Chevron's Pasadena facility in September 2001 and was promoted to non-exempt cost accounting clerk earning $33,680 a year. At the beginning of her employment at Chevron in Pasadena, Rodea was mainly responsible for clerical duties and certain basic accounting tasks performed under the supervision of Jim Martin. In 2001, Rodea began performing accounting duties for all" Work in Progress" ("WIP") and "Distribution in Progress" ("DIP") functions at the Pasadena complex.
Rodea was the sole female employee on a team of three employees performing various accounting work. While at Chevron's Pasadena plant, Rodea worked with two male employees, Jason Adams and Gary Buckland. Rodea, Buckland, and Adams all worked under Martin's supervision. When Buckland was hired, Martin assigned Rodea, Adams, and Buckland each to a specific product line for which each person was individually responsible. Prior to Buckland's arrival at the Pasadena complex, Rodea was responsible for the WIP and DIP functions for all four product lines. In April 2003, Michael Pelayo replaced Adams and took over his job responsibilities. Rodea trained Buckland and Pelayo in the WIP and DIP functions when they arrived at the Pasadena complex.
While at Chevron, Rodea attended college part-time until May 2004, when she received a bachelor of science degree from the University of Houston—Clear Lake. Chevron paid for approximately 80 percent of her education.
In March 2004, Rodea filed a claim with the Equal Employment Opportunity Commission, complaining of gender discrimination due to her level of pay compared to the male employees, in addition to other complainants. Rodea resigned from Chevron in June 2004, about one month after receiving her degree. She filed this action in December 2005. Rodea's cause of action for "Gender Discrimination" was on the ground that "Rodea did not receive equal pay for equal work in violation of Tex. Labor Code § 21.051."
Chevron filed a motion for summary judgment that attacked Rodea's ability to make a prima facie case of discrimination. Chevron's sole challenge in the motion for summary judgment was that Rodea could not raise an issue of fact concerning her prima facie burden on the element that requires proof that "comparison employees held jobs that required equal skill, effort, and responsibility at the time." By referring to the reasons delineated in the affidavit by Martin, Chevron asserted Rodea's job did not require the equal skill, effort, and responsibility as the other employees. First, according to Martin's affidavit, the other employees had "assignments to larger and more complex product lines." Buckland was assigned the Polyethylene product line, which was the largest product line. Adams, and later Pelayo, was assigned the Polypropylene product line. Polypropylene was the second-largest and also the most complex due to Chevron's participation in a joint venture partnership associated with this product line. Rodea was assigned K-Resin and Neohexene product lines, which were the smallest and least complicated from a cost accounting perspective. Chevron also referenced a chart prepared by Martin, based on his personal knowledge, that listed the jobs and responsibilities assigned to each of the employees. The chart created by Martin lists roughly 75 tasks regularly completed by Rodea and the male employees. While Buckland, Pelayo, and Rodea share responsibility for some of the tasks, the chart shows that either Buckland or Pelayo were solely responsible for some of the tasks listed and that Rodea was solely responsible for other tasks. Second, the male employees "were directly involved in the budget preparation for the product lines," whereas Rodea only provided data for the budget preparation and was not ultimately responsible for the completed task. Unlike Rodea, Buckland was responsible for the completion of the monthly budgets for each of the product lines and assisted in the preparation of the annual budget report for management presentation. Third, the male employees had a level of experience and understanding of plant accounting that Rodea did not have during her employment, which led to differences in their work produced. Pelayo, Adams, and Buckland were responsible for "settling" all work orders and projects that did not clear in the normal course of events. In comparison, Rodea, who assisted in providing data, was not ultimately responsible for the task. Fourth, the other employees had "more education, experience and responsibilities" than Rodea. Attached to Martin's affidavit were the job applications and resumes of Rodea, Buckland, Pelayo, and Adams. The applications show that Buckland did not have a college degree, but that he had taken college level classes and had worked in oil and gas accounting for seven years before starting with Chevron in 1985, which gave him a total of over twenty years of accounting experience at the time he was transferred to the Pasadena facility. The applications of Adams and Pelayo show that they each had college degrees in accounting. Rodea's application showed that she had only administrative experience prior to working at Chevron. Rodea also did not obtain her college degree until shortly before she quit.
Chevron also produced the deposition of Rodea to show that she testified she did not know the employment or education history of Buckland, Pelayo, or Adams. She also testified that she was not certain as to the exact job duties or pay rates of the male employees.
Rodea responded with the remaining portions of her testimony, which relayed she was paid less than her two male co-workers who, since 2001, performed the same work as she did. The trial court rendered summary judgment in favor of Chevron, without stating the grounds for the ruling.
In Rodea's second issue, she asserts that the trial court erred by granting the motion for summary judgment filed by Chevron because she raised an issue of material fact on the challenge to her prima facie case by producing some evidence that she was similarly situated to the male employees who were paid more than she was paid.
A. Standard of Review
B. The Labor Code
Rodea brought her discrimination claim under section 21.051 of the Texas Labor Code. Under section 21.051, an employer commits an unlawful employment practice if, because of sex, the employer "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." Tex. Lab. Code Ann. § 21.051(1). The Texas Legislature modeled chapter 21 of the Texas Labor Code after federal law for the express purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Id. §21.001(1); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). Consequently, when reviewing a claim brought under chapter 21, we may look not only to cases involving the state statute, but also to cases interpreting the analogous federal provisions of Title VII. See Caballero v. Cent. Power & Light Co., 858 S.W.2d 359, 361 (Tex. 1993).
In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc., 121 S.W.3d at 739; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S. Ct. 2097, 2106 (2000); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). Under the burden-shifting analysis, the plaintiff has the initial burden to come forward with a prima facie case of discrimination. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001). Other than the prima facie burden, Chevron does not challenge any of the remaining burdens and we therefore do not address any of the burdens beyond the prima facie case.
In order to make a prima facie case, the plaintiff must show that the plaintiff (1) is a member of a class protected by the Act; (2) suffered an adverse employment decision; (3) was qualified for the position held; and (4) was treated less favorably than similarly situated members of the opposing class.See Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; see also Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.-Houston [1st Dist.] 1993, writ denied). Chevron makes no challenge to the first three elements of Rodea's prima facie case. The challenge by Chevron is only to the fourth element, whether Rodea was similarly situated to the male employees. Concerning the fourth element, the Texas Supreme Court has said that employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).
Rodea makes a prima facie showing of discrimination by producing some evidence that her circumstances were comparable in all material respects to the male employees, including similar standards, supervisors, and conduct. See Ysleta, 177 S.W.3d at 917. Taking the nonmovant Rodea's evidence as true, as required for summary judgments, it raises a fact issue concerning whether her position was similar in all material respects to the men's positions, but the men were paid more.
Rodea disputes the claim by Chevron that male employees had assignments to larger and more complex product lines. Although Chevron claimed Rodea's product lines were the least complicated from a cost-accounting perspective, she testified that the two lines she covered were smaller in terms of volume produced for the plant, but all four of the product lines were "set up the same" so the cost structures would not make the lines more complex, and the only difference was the raw materials used. Furthermore, although Rodea was assigned to the smaller lines, she had twice the number of lines as each of the men. Taking all evidence in the light most favorable to Rodea and making all reasonable inferences in her favor, the summary judgment evidence shows Rodea's work on the product lines was similar in all material respects to the work by the men.
Rodea disputes the assertion that male employees were directly involved in the budget preparation for the product lines, but she only provided data without ultimate responsibility for the completed task. Rodea testified that Buckland was "not coming up with the numbers" because "[a]ccounting has never made the decision on what the budget numbers actually are" since that decision "comes from engineering, operations." She stated that she provided the numbers to Buckland, which he then compiled and gave to Martin. Taking all evidence in the light most favorable to Rodea and making all reasonable inferences in her favor, Rodea produced some evidence to show that the male employee's role in the preparation of the budget was not a material difference in the work they performed as compared to the work she performed.
Rodea responds to the assertion by Chevron that she did not have an understanding of plant accounting equal to that of her male counterparts. In her deposition, Rodea stated that before the arrival of two of the male employees, she was responsible for "settling" all work orders that did not clear in the normal course, which shows that she had a level of experience and understanding of plant accounting similar to the male employees. Furthermore, she stated that she trained Buckland and Pelayo in the WIP and DIP functions, which also suggests that she had a similar understanding of plant accounting. Taking all evidence in the light most favorable to Rodea and making all reasonable inferences in her favor, Rodea raised a fact issue as to whether her understanding of plant accounting was equal to that of her male counterparts.
Rodea responds to the assertion by Chevron that the male employees had "more education, experience and responsibilities" than she. Rodea contends the education and experience difference are not pertinent in this situation because she had materially the same job responsibilities as the men. Taking all evidence in the light most favorable to Rodea and making all reasonable inferences in her favor, Rodea produced some evidence to show that despite the differences in education and experience, her responsibilities were comparable in all material respects to the male employees, including similar standards, supervisors, and conduct. See Ysleta, 177 S.W.3d at 917.
Chevron attempts to impeach Rodea's testimony by pointing out that she admitted that she was not sure of all of the male employees' job responsibilities or their exact pay. Chevron also points to the difference in the titles of Rodea and the male employees. However, under the standard for summary judgments, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. See Valence, 164 S.W.3d at 661. Applying this standard requires us to disregard evidence of Rodea's unawareness of the exact pay or exact duties of the male employees and the difference in the job titles. Id. Rodea is not required to conclusively prove that she was similarly situated to the male employees; rather Chevron must conclusively prove that Rodea cannot establish her prima facie case as a matter of law. See Little, 148 S.W.3d at 381. Rodea's burden is to raise an issue of fact on the matter of whether her circumstances were comparable in all material respects to the male employees. See Ysleta, 177 S.W.3d at 917.
Rodea's evidence is sufficient to raise an issue of fact. The evidence shows that she and the men reported to the same supervisor, that they were each assigned a product line, for which each employee was responsible for "the WIP and DIP, the reactor production and the production numbers, the usage efficiency, variance analysis, manufacturing cost statement, meeting with operations, reviewing costs, maintenance reports, journal entries, updating of allocations, over and underabsorption," and that each performed special projects for Martin. Rodea testified that Buckland and Pelayo each told her that their responsibilities were very similar to hers. Additionally, Rodea stated she saw the male employees primarily performing tasks similar to hers. Furthermore, Rodea and the other employees were subject to the same standards in the form of accounting protocols that provide the same expectations of all employees, and Rodea's performance evaluations showed that she was a recognized achiever. We conclude Rodea produced some evidence to make a prima facie case that her circumstances were comparable in all material respects to the male employees, including similar standards, supervisors, and conduct. See Ysleta, 177 S.W.3d at 917.
Chevron's motion for summary judgment plainly stated that it was challenging Rodea's ability to meet her prima facie burden to show that she was similarly situated to the male employees. Because Chevron's motion for summary judgment only challenged whether Rodea made a prima facie case, we do not address the remaining analysis under the shifting burdens of proof that become applicable after a plaintiff makes a prima facie case.See Burdine, 450 U.S. at 254, 101 S. Ct. at 1094; Quantum, 47 S.W.3d at 477. We sustain Rodea's second issue.
We reverse the judgment of the trial court and remand for further proceedings.
 The trial court also granted summary judgment as to Rodea's sexual harassment and retaliation claims, but Rodea does not appeal those decisions.
 See Tex. Lab.Code Ann. § 21.051(1) (Vernon 2006).
 When a plaintiff has established a prima facie case, it creates a rebuttable presumption that the employer unlawfully discriminated against the employee. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981); Quantum, 47 S.W.3d at 477. If the plaintiff is successful in demonstrating a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its rejection of the plaintiff. Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Quantum, 47 S.W.3d at 477. If the employer succeeds in carrying its burden of production, the presumption of discrimination is eliminated, and the burden shifts back to the plaintiff to present evidence that the stated reason was merely a pretext for discrimination. Reeves, 530 U.S. at 142-43, 120 S. Ct. at 2106; Quantum, 47 S.W.3d at 477. Even though the burden of production shifts, the burden of persuasion remains continuously with the plaintiff. Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex. App.-Houston [1st Dist.] 1993, writ denied).
 In her remaining issue, which we do not reach, Rodea contends alternatively that the trial court applied an inapplicable legal standard because in Chevron's motion for summary judgment it referred to Rodea's claim as the "Equal Pay Claim." See 29 U.S.C. § 206 (2006). Because the trial court did not state the standard under which it decided the motion, we have assumed the trial court applied the law as recited by Rodea in her response to Chevron's motion for summary judgment, which said her petition asserted a violation of the Texas Labor Code in that her employer discriminated in connection with compensation because of the employee's gender, and that employees are similarly situated if the circumstances are comparable in all material respects, including similar standards, supervisors, and conduct. We also note that although Chevron referred to the claim under the Equal Pay statute, its challenge was that the plaintiff must establish a prima facie case of discrimination by showing that the comparison employees held jobs that required equal skill, effort, and responsibility at the time. Chevron said that jobs are not substantially equal when one of the jobs has additional duties that require extra skill, effort, or responsibility. We have assumed that the element challenged by Chevron concerning the prima facie burden to conduct a comparison of employees for equal skill, effort, and responsibility was sufficient to constitute a challenge to the element concerning the prima facie burden to show that employees are similarly situated in that their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.
Rodea v. Chevron (Tex.App.- Houston [1st Dist.] May 8, 2008)(Alcala) (sex discrimination suit, employment law)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Justices Taft, Keyes and Alcala
01-06-00412-CV Katie Rodea v. Chevron Phillips Chemical Company, LP
Appeal from 55th District Court of Harris County
Trial Court Judge: The Honorable Jeffrey V. Brown