NO. 07-09-0034-CV 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL C 

OCTOBER 19, 2010 

______________________________ 

IVORY CLEMONS, APPELLANT 

V. 

TEXAS CONCRETE MATERIALS, LTD., APPELLEE 

_________________________________ 

FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY; 

NO. D-1-GN-08-001672; HONORABLE GUS STRAUSS, JUDGE 

_______________________________ 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

Appellant, Ivory Clemons, presents a sole issue contending the trial court erred in 

granting summary judgment in favor of Appellee, Texas Concrete Materials, Ltd. (Texas 

Concrete) in his suit alleging a violation of section 21.051 of the Texas Labor Code. 
2 

Specifically, Appellant contends he was the victim of age discrimination, when he was 

discharged as a truck driver. We reverse and remand.1

Factual Background

 Ivory Clemons worked as a truck driver for Capitol Aggregates beginning in 2001. 

In January 2007, Texas Concrete acquired the business. In September 2007, Clemons 

was terminated from employment at the age of sixty-five, purportedly for using profanity 

over his truck's two-way radio.2 The event leading to the discharge occurred on or 

about September 4, 2007, when Clemons was attempting to find a job site and 

expressed frustration with the dispatcher for repeatedly giving him wrong directions. 

Clemons uttered "[o]h, shit" over the radio. After his faux pas, he was instructed by 

Supervisor Daniel Villareal to cease using profanity on the radio. According to 

Villareal's deposition, and in his written statement to Mike Barras, Vice President of 

Operations, Appellant used the word "shit" more than once.3

 Clemons, however, in his 

 

1

Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas 

Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann. ' 73.001 (Vernon 2005). 

We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on 

any relevant issue. Tex. R. App. P. 41.3. 

2

The termination letter provided in part, "[t]his Notice of Termination is being given for improper use of the 

Company radio as is described in the Company's written policy found in the Texas Concrete Employee 

Manual. Not only did you use unacceptable language on the radio, which is counter to FCC regulations, 

but you cussed the Field Superintendent, on the air, when he attempted to call you on your behavior." 

3

According to Villareal's written statement, he heard Clemons: 

use profanity on the Company two-way radio to the effect of "man, they need to get this 

sh*t straight." At that point I did not say anything, but a moment later I heard him use the 

word sh*t again. I then got on the radio and told him that was enough profanity, to knock 

it off. Ivory came back at me with "you don't know sh*t about nothing anyway." 

Villareal's statement was witnessed by Foreman Aaron Hutchinson and Field Representative Rickey 

Simmons, who claimed to have heard Clemons over the radio. 
3 

deposition, disputed using the word "shit" over the radio more than once and stated that 

he did not believe "shit" was a curse word. 

Approximately six weeks after his discharge, Clemons filed a written complaint 

with the Texas Workforce Commission-Civil Rights Division in which he alleged that the 

reason given for his termination was false and he "believe[d] that my termination was on 

the basis of age." He further alleged that he was qualified for his position and was 

replaced by a younger employee. After exhausting his administrative remedies, the 

Texas Workforce Commission issued Clemons a right to sue letter. 

On May 15, 2008, Clemons filed suit against Texas Concrete Materials, Ltd., 

alleging age discrimination in violation of section 21.051 of the Texas Labor Code. 

After a period of discovery, Texas Concrete filed a combination traditional and noevidence motion for summary judgment.4

 Clemons filed separate responses to each 

motion. The trial court signed an order granting summary judgment and later signed a 

final judgment that Clemons take nothing by his suit against Texas Concrete. The trial 

court did not specify which motion was granted, nor the grounds relied on for summary 

judgment. 

 

 

 

4

Rule 166a of the Texas Rules of Civil Procedure does not prohibit a party from combining in a single 

motion a request for summary judgment that contains both traditional and no-evidence grounds. See 

Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). 
4 

By a sole issue, Clemons maintains the trial court erred in granting Texas 

Concrete's motion and asserts he presented significant evidence to defeat the motion.5

 

We agree. 

I. Standards of Review 

A. No-Evidence Motion for Summary Judgment 

In a no-evidence summary judgment motion, the movant contends there is no 

evidence of one or more essential elements of the claims for which the nonmovant 

would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must 

grant the motion unless the nonmovant produces more than a scintilla of evidence 

raising a genuine issue of material fact on the challenged elements. See id. See also 

Western Invs. Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The nonmoving party is 

Anot required to marshal its proof; its response need only point out evidence that raises 

a fact issue on the challenged elements.@ Tex. R. Civ. P. 166a(i), Comments 1997. We 

review a no-evidence summary judgment for evidence that would enable reasonable 

and fair-minded jurors to differ in their conclusions. See Hamilton v. Wilson, 249 S.W.3d 

425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005));

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). See also Merrell Dow 

Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

 

 

5

A general assignment of error in granting summary judgment is permitted. See Malooly Bros., Inc. v. 

Napier, 461 S.W.2d 119, 121 (Tex. 1970).
5 

B. Traditional Motion for Summary Judgment 

 We review the trial court=s granting of a summary judgment de novo. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In our review, we "must 

examine the entire record in the light most favorable to the nonmovant, indulging every 

reasonable inference and resolving any doubts against the motion." Yancy v. United 

Surgical Ptnrs. Int'l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (emphasis in original) (citing 

City of Keller, 168 S.W.3d at 824-25). 

 For a party to prevail on a motion for summary judgment, he must conclusively 

establish the absence of any genuine question of material fact and that he is entitled to 

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 

336, 344 (Tex. 2005). A movant must either prove all essential elements of his claim, 

MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential 

element of the nonmovant's cause of action. Shaw v. Moss, 67 S.W.3d 836, 842 (Tex. 

2001), Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). 

Once the movant has established a right to summary judgment, the nonmovant has the 

burden to respond to the motion for summary judgment and present to the trial court 

any issues that would preclude summary judgment. Casso v. Brand, 776 S.W.2d 551, 

556 (Tex. 1989); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 

(Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 

1996, writ denied). 

When, as here, the summary judgment does not specify or state the grounds 

relied on, summary judgment will be affirmed on appeal if any of the grounds presented 
6 

in the motion are meritorious. Urena, 162 S.W.3d at 550. Additionally, where, as here, 

the trial court did not specify whether it granted Texas Concrete's traditional or noevidence motion, we first review the summary judgment under the no-evidence 

standard of Rule 166a(i) of the Texas Rules of Civil Procedure. If summary judgment 

was properly rendered under that standard, we need not reach arguments under the 

traditional standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). 

II. Applicable Law

 Under the Texas Commission on Human Rights Act, it is unlawful for an 

employer to discharge an employee on the basis of age, among other traits. See Tex. 

Lab. Code Ann. § 21.051-.556 (Vernon 2006).6

 The general purpose of the Act is to 

provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its 

subsequent amendments. Id. at § 21.001(1). Therefore, Texas Courts look to 

analogous federal law and the cases interpreting them to guide our reading of the Act. 

Quantum Chem.Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001) (citing NME 

Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1996)). "An employer commits an 

unlawful employment practice if because of . . . age the employer . . . discharges an 

individual . . . ." § 21.051(1). 

 Federal courts recognize two types of Title VII employment discrimination cases, 

each requiring different elements of proof. The first type is the "pretext" case which 

requires a plaintiff to show that the employer's reason for the adverse employment 

action was a pretext for discrimination. Toennies, 47 S.W.3d at 476 (citing Tex. Dep't of 

 

6

For convenience, we will cite sections of the Texas Labor Code throughout the remainder of this opinion 

simply as "section __" or "§ __." 
7 

Cmty. Affairs v. Burdine, 450 U.S. 238, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). 

The plaintiff can usually provide sufficient evidence of discriminatory intent by showing 

that the employer's proffered reason for the adverse action is false. Toennies, 47 

S.W.3d at 476. The second type of case is the "mixed-motive" case, in which the 

plaintiff has direct evidence of discriminatory animus. The direct evidence shifts the 

burden of proof to the employer to show that legitimate reasons would have led to the 

same decision regardless of any discriminatory motives. Id. Thus, how a case is 

classified depends entirely on the presence or absence of direct evidence. Id. (citing 

Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 104 L.Ed.2d 268, 109 S.Ct. 1775 

(1989) (O'Connor, J., concurring)). If the plaintiff has only circumstantial evidence of 

discrimination, it will be classified as a pretext case regardless of how many motives the 

employer had. Toennies, 47 S.W.3d at 477. Regardless of the distinction, the burden 

of persuasion on the issue of discrimination is always with the plaintiff. Id. 

 Clemons provided only circumstantial evidence in support of his discrimination 

claim. Thus, his case falls into the pretext category and we apply the burden-shifting 

analysis established by the United States Supreme Court in McDonnell Douglas Corp. 

v. Green, 411 U.S. 792, 36 S.Ct. 668, 93 L.Ed.2d 1817 (1973).7

 See Toennies, 47 

S.W.3d at 477. Once a plaintiff establishes a prima facie case, the burden shifts to the 

 

7

The sequence is as follows: "First, the plaintiff has the burden of proving by the preponderance of the 

evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie 

case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the 

employee's rejection." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 

407 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 238, 252-53, 101 S.Ct. 1089, 67 

L.Ed.2d 207 (1981)). "As a practical matter, however, and in the real-life sequence of a trial, the 

defendant feels the 'burden' not when the plaintiff's prima facie case is proved, but as soon as evidence of 

it is introduced. The defendant then knows that its failure to introduce evidence of a nondiscriminatory 

reason will cause judgment to go against it unless the plaintiff's prima facie case is held to be inadequate 

in law or fails to convince the factfinder." (Emphasis in original). "It is this practical coercion which 

causes the McDonnell Douglas presumption to function as a means of "arranging the presentation of 

evidence." Hicks, 509 U.S. at 510. 
8 

defendant to show that he was discharged for a legitimate, nondiscriminatory reason. 

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 

L.Ed.2d 105 (2000). The burden is that of production only, not persuasion. 530 U.S. at 

142. If the defendant offers a legitimate reason, the burden shifts back to the plaintiff to 

show either (1) the reason stated by the employer was a pretext for discrimination, or 

(2) the defendant's reason, while true, was only one reason for its conduct, and 

discrimination is another motivating factor. See id. at 143. The relevant inquiry is not 

whether the stated reason for the discharge is a pretext, but what the stated reason was 

"a pretext for." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). 

(Emphasis in original). In other words, the correct standard of causation for a plaintiff in 

all unlawful employment practice claims brought under the Act is "a motivating factor" 

for the discharge. Toennies, 47 S.W.3d at 480. 

To establish a prima facie case of employment discrimination, a plaintiff must 

show (1) he is a member of a protected class; (2) he was qualified for his position; (3) 

he was subject to an adverse employment decision; and (4) he was replaced by 

someone outside his protected class.8 See McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802, 36 S.Ct. 668, 93 L.Ed.2d 1817 (1973). See also Reeves v. Sanderson 

Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A 

plaintiff's burden of establishing a prima facie case "is not onerous." Burdine, 450 U.S. 

at 253. Only a minimal showing is needed to establish a prima facie case. Id.; Ptomey 

v. Tex. Tech Univ., 277 S.W.3d 487, 493 (Tex.App.--Amarillo 2009, pet. denied). 

 

8

The protected class in this case is an individual forty years of age or older. See Tex. Lab. Code Ann. § 

21.101. 
9 

A plaintiff need only produce more than a scintilla of evidence to raise a fact 

issue to defeat summary judgment. See Ridgway, 135 S.W.3d at 600. See also 

Ptomey, 277 S.W.3d at 493. More than a scintilla of evidence exists when the evidence 

. . . "rises to a level that would enable reasonable and fair-minded people to differ in 

their conclusions." Ridgway, 135 S.W.3d at 601. 

Summary judgment is usually considered an inappropriate tool for resolving 

employment discrimination cases because the claims involve "nebulous questions of 

motivation and intent." Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 

640 (5th Cir. 1985).9

 In a summary judgment context, a plaintiff need not prove pretext 

but merely establish a genuine issue of material fact on the issue to avoid judgment. 

Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 438 (Tex.App.--Houston [14th Dist.] 2002, pet. 

denied). However, if a defendant is able to present strong evidence of a legitimate, 

nondiscriminatory reason for its actions or a plaintiff's evidence created only a weak 

issue of fact as to whether the employer's reason was untrue and there was abundant 

and uncontroverted independent evidence that no discrimination had occurred, 

summary judgment is proper. Reeves, 530 U.S. at 148. 

 

 

9

Often, motivation and intent can only be proved through circumstantial evidence; determinations 

regarding motivation and intent depend on complicated inferences from the evidence and are therefore 

peculiarly within the province of the fact-finder. Thornbrough, 760 F.2d at 641. In reviewing a case on 

appeal, it is difficult to determine what evidence might legitimately sway the fact-finder and hence be 

material. Thus, if any facts are in dispute, summary judgment is generally inappropriate. Id.
10 

III. Analysis

 A. No-Evidence Summary Judgment 

By its no-evidence motion, Texas Concrete alleged that Clemons was unable to 

produce evidence that he was discharged because of his age. Assuming, arguendo, 

that Clemons met his burden of establishing a minimal showing of a prima facie case, 

Texas Concrete rebutted any presumption of discrimination by setting forth evidence of 

a legitimate non-discriminatory reason for the discharge, i.e., Clemons's knowing 

violation of radio policy. Clemons then bore the ultimate burden to produce more than a 

scintilla of evidence that his discharge was due to his age. 

 In his response to the no-evidence portion of the hybrid motion for summary 

judgment, Clemons included excerpts from his deposition as well as excerpts from the 

depositions of several Texas Concrete employees. He also offered his affidavit and the 

affidavits of former co-workers Robert Mayzone and Byron Harris.10 Clemons provided 

deposition excerpts from Texas Concrete employees Mike Barras, Vice President of 

Operations, Daniel Villareal, Field Superintendent, and Stephanie Norment, Human 

Resources Director. By the circumstantial evidence, Clemons hoped to raise a genuine 

issue of material fact on whether his age was a factor in his discharge. 

 We begin with the basic rule that conclusory statements in an affidavit are not 

competent summary judgment evidence. See Tex. R. Civ. P. 166a(f) (supporting 

affidavits shall set forth such facts as would be admissible in evidence). See also 

 

10We note that Texas Concrete filed written objections to portions of Clemons's affidavit as well as 

portions of those of Robert Mayzone and Byron Harris. Although the trial court did not rule on the 

objections, because they raised matters of substance and not form, they are not waived. See Yancy v. 

United Surgical Ptnrs. Int'l, Inc., 236 S.W.3d 778, 782 n.4 (Tex. 2007). 
11 

McIntyre v. Ramirez, 109 S.W.3d 741, 750 (Tex. 2003) (noting that conclusory affidavits 

are not enough to raise fact issues). A conclusory statement is one that does not 

provide the underlying facts to support the conclusion. City of San Angelo Fire Dep't v. 

Hudson, 179 S.W.3d 695, 701 n.6 (Tex.App--Austin 2005, no pet.). Additionally, an 

affidavit of an interested party should be clear, positive, and direct, otherwise credible 

and free from contradiction and inconsistencies, and susceptible to being controverted." 

Tex. R. Civ. P. 166a(c); Majeski v. Estate of Majeski, 163 S.W.3d 102, 107 (Tex.App.--

Austin 2005, no pet.). 

1. Clemons's Affidavit and Deposition Testimony 

By his affidavit, Clemons averred that he accidently used foul language over the 

company radio only on one occasion, that other drivers used foul language and were 

not reprimanded or terminated, and that some drivers spoke in Spanish over the radio, 

also a violation of company policy, without repercussion. He also stated that although 

he could not name specific individuals, others told him about individuals who used 

profanity over the radio, and dispatch would have recognized their voices. We agree 

with Texas Concrete that these averments are unsupported by facts and thus, 

conclusory. 

 Clemons also stated in his affidavit that Barras, Vice President of Operations, 

and J.J. Michaels, a supervisor, repeatedly made comments to him about his age and 

asked when he was going to retire. Texas Concrete objected to this statement as being 

irrelevant. However, we find the evidence relevant as it has a tendency to make the 

existence of any fact that is of consequence to the determination of the action, i.e., the 
12 

motivating factor for Clemons's discharge was his age, more probable than it would be 

without the evidence. See Tex. R. Evid. 401. 

In his deposition, Clemons testified that Barras took the opportunity during 

conversations to encourage retirement, asked if he was collecting Social Security, and 

suggested it was time to "move on." Clemons specifically recalled a company gathering 

in July 2007, just two months prior to his termination, where Barras again asked when 

he was retiring. Clemons responded that he intended to work as long as he could. 

Clemons approximated that Barras made age-related remarks to him at least ninety 

percent of the times they conversed. 

 Stray remarks, remote in time from termination, and not made by anyone directly 

connected with the decision, are not enough to raise a fact question about whether the 

reason for termination was pretextual. See Autozone, Inc., 272 S.W.3d 588, 592 (Tex. 

2008); M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000). 

See also Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 330 (Tex.App.--Austin 

1999, no pet.). Statements and remarks may serve as evidence of discrimination only if 

they are (1) related to the employee's protected class, (2) close in time to the 

employment decision, (3) made by an individual with authority over the employment 

decision, and (4) related to the employment decision at issue. Autozone, 272 S.W.3d at 

593. Comments made eight months and five months prior to terminations have been 

held not to have been proximate in time to the adverse employment decision. See Niu 

v. Revcor Molded Prods. Co., 206 S.W.3d 723 (Tex.App.--Fort Worth 2006, no pet.). 

However, specific comments made over a lengthy period of time may serve as sufficient 

evidence of age discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 656 (5th 
13 

Cir. 1996). In Reeves, the United States Supreme Court made it clear that courts 

should not improperly weigh the impact of comments that might indicate a 

discriminatory bias; rather, such determinations should be submitted to the jury. See 

Reeves, 530 U.S. at 146-149. See also Rachid v. Jack in the Box, 376 F.3d 305, 315 

(5th Cir. 2004) (noting that even nebulous age-related comments "are appropriately 

taken into account when analyzing the evidence). 

 Barras, an individual with authority over Clemons's position, signed the letter of 

termination. The summary judgment evidence demonstrates that age-related remarks 

made by Barras were related to Clemons's protected class (persons forty or older), were 

made within two months of his termination, and were raised in conversations 

approximately ninety percent of the time. Although Clemons also presented some 

evidence that age or retirement remarks may have been made by other employees, we 

do not consider them as they were made by persons who did not have a role in the 

ultimate decision to terminate him, nor is there any evidence that they had leverage 

over anyone with decision making authority. See Autozone, 272 S.W.3d at 592-93. 

2. Robert Mayzone's Affidavit

 Mayzone, a co-worker of Clemons's, averred that he frequently heard other 

drivers use foul language or speak in Spanish over the radio without being disciplined. 

Mayzone also averred he had personal knowledge of a particular employee, Juan 

Trevino, violating radio policy and he heard Barras make negative comments to 

Clemons about his age and retirement. No facts, however, are provided to support the 
14 

conclusory statements. We agree with Texas Concrete that Mayzone's statements are 

objectionable and therefore insufficient to defeat summary judgment, 

3. Byron Harris's Affidavit 

 Harris, also a co-worker of Clemons's, echoed Mayzone's conclusory statements. 

He added, however, that he personally used the word "shit" over the radio on a couple 

of occasions without being reprimanded or punished. 

4. Stephanie Norment's Affidavit and Deposition Testimony

 Stephanie Norment, Human Resources Director for Texas Concrete, provided an 

affidavit in which she averred that on September 5, 2007, Texas Concrete employed 

179 employees, sixteen of which were over age sixty, and ten of which were drivers. In 

his responses to the hybrid motion for summary judgment, Clemons included one sheet 

from a payroll services record dated "08/01/2008" listing only fifty-nine employees. The 

list included employees' names, dates of birth, hire dates, and termination dates. A 

careful review of that document reflects that, during the period from the time Clemons 

was discharged on September 6, 2007 until August 1, 2008, Texas Concrete 

experienced a trend toward a much younger staff. Specifically, before 9-6-07, 

approximately 79% of the listed employees were within the protected class of 

individuals forty or older; whereas, on 8-1-08, that number had decreased to 

approximately 38%. 

 By deposition testimony, Norment stated Clemons's discharge was an exception 

to the rule of receiving either an oral warning or written reprimand before termination. 
15 

She was unaware of anyone else being terminated for violation of company policy 

without first receiving a warning. 

5. Mike Barras's Deposition Testimony 

Barras testified that FCC rules and company policy prohibit profanity over the 

company radio. He admitted that before Clemons's discharge, no other employee had 

been terminated for violations of the radio policy. He explained that the problem was 

the inability to identify a particular driver in order to discipline that driver. Clemons, 

however, was easily identified at the time of the violation because he was announcing 

his truck number over the radio. According to Barras, the company had since acquired 

new technology to identify drivers. Barras confirmed that Clemons was replaced by a 

new employee soon after his termination. 

6. Daniel Villareal's Deposition Testimony 

 Villareal, a fuel representative for Texas Concrete, served in a supervisory role 

over drivers. Villareal is Barras's brother-in-law and he is the employee who penned the 

statement describing Clemons's use of profanity in violation of radio policy and provided 

it to Barras and Clemons's supervisor. According to Villareal, Barras instructed him to 

get the statement signed because he was "planning to let [Clemons] go." Similarly to 

Barras, Villareal testified that the problem with drivers who violated radio policy was 

identifying them. Since 1984, when Villareal first started in the truck driving business, 

he could recall only one person being fired for violation of radio policy. 
16 

 Villareal also testified that Texas Concrete had a progressive disciplinary 

process, i.e., an oral reprimand, a written reprimand, and termination, to deal with 

employee misconduct. According to Villareal, Clemons was not terminated to reduce 

the work force or as part of downsizing the company. He described Clemons as a "fair" 

employee. He also confirmed that Clemons was replaced soon after his termination. 

 Texas Concrete argues that Clemons's evidence is nothing more than weak 

evidence of pretext and is therefore insufficient to preclude summary judgment. See 

Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 508 (Tex.App.--Houston [14th Dist.] 2008, 

pet. denied) (citing Reeves, 530 U.S. at 148) (holding that an employer is entitled to 

summary judgment if the plaintiff's proof creates only a weak issue of fact as to whether 

the employer's reason was untrue and there was abundant and uncontroverted 

independent evidence that no discrimination had occurred). In his reply brief, Clemons 

maintains that Texas Concrete's reliance on Hines is "misplaced and fatal to its 

argument" because it did not provide the level of evidence required to demonstrate that 

no discrimination occurred, i.e., abundant and uncontroverted independent evidence. 

We agree with Clemons that Hines does not apply to the case at bar. 

Accordingly, disregarding any conclusory statements made in affidavits provided 

by Clemons in support of his response to the no-evidence motion for summary 

judgment, we conclude Clemons presented more than a scintilla of evidence to enable 

reasonable and fair minded jurors to differ in their conclusions and thus, raised a 

genuine issue of fact regarding whether he was terminated due to his age. Both 

Norment and Villareal testified that no employee had ever been discharged for violation 

of radio policy, and Norment added that Clemons's termination was the exception to the 
17 

rule of progressive discipline. Additionally, Texas Concrete's payroll records 

demonstrated a trend toward a much younger work force after Clemons was terminated. 

Moreover, because Barras was directly connected to the adverse employment decision, 

age-related remarks made by him within two months of the decision were sufficiently 

proximate in time as to constitute more than a scintilla of evidence to raise a fact issue. 

See Ridgway, 135 S.W.3d at 600. If the trial court's summary judgment was based on 

Texas Concrete's no-evidence motion, it was erroneously granted. 

B. Traditional Summary Judgment 

Although inartfully presented in its traditional motion,11 Texas Concrete alleged 

that "[t]he decision to terminate [Clemons] was related to [his] improper use of the 

company radio" and "had nothing to do with [his] age." To establish its entitlement to 

summary judgment as a matter of law, Texas Concrete presented deposition excerpts 

from Clemons, including exhibits and responses to interrogatories. Deposition excerpts 

from Villareal were also provided as well as affidavits from Barras and Norment. 

 1. Clemons's Deposition and Exhibits 

 According to the exhibits to Clemons's deposition, he signed a receipt and 

acknowledgement of Texas Concrete's manual which included a list of prohibited 

conduct. "Obscene or abusive language toward any manager, employee or customer" 

is prohibited in the manual. In his deposition, Clemons does not dispute that he used 

the word "shit" over the company radio. He does dispute having used it more than once 

 

11See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (holding that a motion 

for summary judgment must itself expressly present the grounds upon which it is made. A motion must 

stand or fall on the grounds expressly presented in the motion. In determining whether grounds are 

expressly presented, reliance may not be placed on briefs or summary judgment evidence.) 
18 

as alleged by Villareal in his statement. Clemons testified that his belief that his 

termination was based solely on violation of radio policy was false for two reasons. 

First, Barras was constantly conversing with Clemons about retiring and secondly, the 

company wanted to replace him with someone younger who would make less money 

because he was at "the top money." 

 By his responses to Texas Concrete's interrogatories, Clemons claimed he was 

discriminated against on the basis of his age and that the company permitted an 

environment that was hostile to older workers. He stated he was qualified for his 

position and was replaced by a younger employee. He also asserted that other 

employees also used unacceptable language over the radio and were not disciplined. 

Clemons acknowledged not having details in his responses due to the early stages of 

discovery. 

 2. Villareal's Deposition

 According to his deposition testimony Villareal called Barras about Clemons's 

misconduct and informed him he was going to write-up Clemons. After Villareal 

provided a handwritten statement, Barras asked him to have it formalized and signed by 

witnesses because Barras was "planning to let [Clemons] go." Villareal testified that he 

had heard others cuss on the radio without disciplinary action being taken because of 

the inability to identify them. He also testified that during his employment with Texas 

Concrete, he had written up other employees in the past for improper radio use but 

could not recall their names. He could not, however, recall anyone being fired for 

violating radio policy. 
19 

 3. Barras's Affidavit

 Barras averred that on September 5, 2007, he received a report that Clemons 

had used profanity over the radio. That same day he received a handwritten statement 

from Villareal which he then typed out and asked Villareal to read and sign. Barras 

continued in his affidavit that as Vice President of Operations, he was responsible for 

making the decision to terminate Clemons based on the handwritten and typed 

statements of Villareal regarding Clemons's violation of radio policy. He averred that 

age was not a factor in this employment decision. 

 4. Norment's Affidavit

 As Human Resources Director, Norment averred that on Septmeber 5, 2007, 

Texas Concrete employed 179 employees of which sixteen were over the age of sixty 

and ten of which were drivers. 

C. Clemons's Response to Traditional Motion 

By his response to Texas Concrete's traditional motion for summary judgment, 

Clemons offered the same evidence provided in his response to the no-evidence 

motion. We need not reiterate the evidence here. Suffice it to say that in applying the 

appropriate standard of review, we conclude the evidence presented by Texas Concrete 

in support of its traditional summary judgment does not establish as a matter of law that 

Clemons was terminated solely for violating the company's radio policy. The evidence 

creates a genuine issue of fact on the nebulous questions of motivation and intent. If 
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the trial court's summary judgment was based on Texas Concrete's traditional motion 

for summary judgment, it was erroneously granted. Clemons's sole issue is sustained. 

IV. Conclusion 

The trial court erred in granting summary judgment in favor of Texas Concrete 

Materials, Ltd. Consequently, we reverse the trial court's judgment and remand the 

cause to the trial court for further proceedings.

 Patrick A. Pirtle 

 Justice