IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KATHRYN H. MARTIN, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-2209-D

VS. §

 §

EL NELL INC., d/b/a WESTWOOD §

COLLEGE OF TECHNOLOGY, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this removed action, plaintiff Kathryn H. Martin

(“Martin”) sues defendant El Nell Inc., d/b/a Westwood College of

Technology (“Westwood”), alleging that Westwood terminated her

employment based on her Caucasian race, in violation of the Texas

Commission on Human Rights Act (“TCHRA”), Tex. Lab. Code Ann.

§§ 21.001-21.556 (Vernon 1996 & Supp. 2004-05), and that it

breached its employment contract with her when it discharged her.

Westwood moves for summary judgment and requests an award of

attorney’s fees. The court concludes that Westwood is entitled to

summary judgment but not to attorney’s fees, and it dismisses this

action by judgment filed today. 

I 

Westwood employed Martin as a math instructor at its Dallas

campus from 2002 until 2003, when it terminated her following an

incident involving a statement she made in the presence of an

 

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1

The court recounts the evidence favorably to Martin as the

summary judgment nonmovant and draws all reasonable inferences in

her favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000). Westwood’s version of the incident is somewhat different.

Westwood relies on verbal and non-verbal aspects that would suggest

a racial animus on Martin’s part, and it maintains that Martin had

engaged in problematic workplace behavior, including racially

insensitive conduct, before this incident. The court need not

consider this evidence, however, to decide Westwood’s motion.

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African-American employee and student.1 While in the office of

Althea Parker (“Parker”), Westwood’s Registrar, and in the presence

of Lavon Thompson (“Thompson”), a Westwood student, Martin picked

up a videotape on Parker’s desk, looked at it, and stated, “[t]his

is a movie with black people in it.” D. App. 116. Martin did not

make the statement in a derogatory, disgusted, or disrespectful

tone of voice, but rather did so as she would a statement of fact.

After she made the statement, Martin tossed the videotape onto

Parker’s desk. She then asked Parker if she could see the

videotape again, and Parker told her she could not. Martin

departed Parker’s office and proceeded to class.

Later that day, Parker informed Martin that she did not like

her comment. Parker also told her that Thompson was upset, and

she explained that she was particularly concerned about Thompson’s

feelings. Parker informed Martin that she intended to report the

incident to Rose Galloway (“Galloway”), Westwood’s Director of

Education, who is Hispanic. Martin responded that she was sorry

that what she had said had bothered Parker, and she offered a

similar apology to Thompson.

 

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The day after the incident, Parker reported it to Galloway,

who later spoke with Martin. Galloway recounted what she had

understood had happened, and she asked Martin to share her side of

the story. Martin admitted making the statement and tossing the

videotape onto Parker’s desk. She told Galloway that she did not

intend the statement to be unkind and that she had no motivation

for making the statement or tossing the videotape on the desk.

Galloway informed Martin that she was being fired and that Westwood

would not tolerate racially insensitive and offensive statements

directed toward students and colleagues. Galloway terminated

Martin on the grounds that she had violated Westwood’s policies and

engaged in gross misconduct.

II

Westwood moves for summary judgment as to Martin’s race

discrimination claim based on the TCHRA. Under the TCHRA, “[a]n

employer commits an unlawful employment practice if because of race

. . . the employer . . . discharges an individual[.]” Tex. Lab.

Code Ann. § 21.051 (Vernon 1996). Texas courts construe the TCHRA

consistently with federal law interpreting Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. See

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n.2 (5th

Cir. 1999) (“[T]he law governing claims under the TCHRA and Title

VII is identical.”); Caballero v. Cent. Power & Light Co., 858

S.W.2d 359, 361 (Tex. 1993) (“Another stated purpose [of the TCHRA]

 

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2In her summary judgment response, Martin states as one

disputed issue of law whether Westwood violated Title VII by

terminating her employment. See P. Resp. at 2. The court assumes

that this is either a typographical error or Martin’s recognition

that her TCHRA claim is governed by principles of Title VII

jurisprudence.

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is to coordinate and conform with federal law under Title VII of

the Civil Rights Act of 1964, as amended.” (internal citations

omitted)).2

To survive a motion for summary judgment under the TCHRA, “a

plaintiff must present sufficient evidence to create a fact issue

regarding race discrimination, either through direct or

circumstantial evidence.” Lyons v. Burlington Coat Factory

Warehouse Corp., 2004 WL 515585, at *4 (N.D. Tex. Jan. 30, 2004)

(Kinkeade, J.). A plaintiff who offers “sufficient direct evidence

of intentional discrimination should prevail, just as in any other

case where a plaintiff meets [her] burden.” Nichols v. Loral

Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996) (citing Portis v.

First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328 n.6 (5th

Cir. 1994)). “Direct evidence is evidence that, if believed,

proves the fact of discriminatory animus without inference or

presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F.3d

1207, 1217 (5th Cir.1995)). Such evidence of discrimination,

however, is rare. See, e.g., Rutherford v. Harris County, Tex.,

197 F.3d 173, 180 n.4 (5th Cir. 1999) (Fitzwater, J.) (stating that

 

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3Martin criticizes Rachid’s conclusion that Desert Palace

applies to only the third stage of the McDonnell Douglas framework,

contending it “makes it unnecessar[il]y complex.” P. Resp. at 16.

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because direct evidence is rare in discrimination case, plaintiff

must ordinarily use circumstantial evidence to satisfy her burden

of persuasion).

If direct evidence is unavailable, the plaintiff may create an

inference of discrimination by using the McDonnell Douglas

burden-shifting framework. See, e.g., Russell v. McKinney Hosp.

Venture, 235 F.3d 219, 222 (5th Cir. 2000). McDonnell Douglas

applies to TCHRA discrimination claims at the summary judgment

stage. Machinchick v. PB Power, Inc., 398 F.3d 345, 356 (5th Cir.

2005). Because Martin does not point the court to direct evidence

of discrimination, the court will apply the McDonnell Douglas

burden-shifting paradigm, although Martin contends that all or part

of McDonnell Douglas has been replaced by Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003). She maintains that Desert Palace makes

it more difficult for defendants to obtain summary judgment.

Martin spends much of her brief urging the court to reject the

application of the McDonnell Douglas framework to her case,

apparently asking that it apply the mixed-motive framework of Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion),

because it is “a much simpler approach.” P. Resp. at 16. Instead,

the court will follow Rachid v. Jack in the Box, Inc., 376 F.3d 305

(5th Cir. 2004) (age discrimination case).3 After the Supreme

 

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4

Rachid is an age discrimination case brought under the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seq., in which the panel concluded that mixed-motives principles

drawn from Desert Palace, a Title VII case, applied to the ADEA.

See Rachid, 376 F.3d at 310-12. As noted, Title VII principles

apply to this lawsuit brought under the TCHRA. See Shackelford,

190 F.3d at 404 n.2 (“[T]he law governing claims under the TCHRA

and Title VII is identical”). It therefore follows that the

analysis of Rachid should be applied as well to a TCHRA claim.

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Court decided Desert Palace, Rachid merged the McDonnell Douglas

and Price Waterhouse approaches into a single, integrated

formulation called the “modified McDonnell Douglas approach.” Id.

at 312.4

As modified, McDonnell Douglas consists of three stages.

First, Martin must establish a prima facie case of discrimination,

which, if shown, raises an inference of unlawful discrimination.

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The

burden then shifts to Westwood to articulate a legitimate,

nondiscriminatory reason for discharging her. See id. at 506-07.

Westwood’s burden is one of production, not proof, and involves no

credibility assessments. See, e.g., West v. Nabors Drilling USA,

Inc., 330 F.3d 379, 384-85 (5th Cir. 2003) (Fitzwater, J.) (age

discrimination case). Finally, if Westwood meets its production

burden, then Martin may proceed under one of two alternatives: the

pretext alternative or the mixed-motives alternative. See Rachid,

376 F.3d at 312. Under the pretext alternative, Martin must “offer

sufficient evidence to create a genuine issue of material fact . .

. that [Westwood’s] reason is not true, but is instead a pretext

 

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for discrimination.” Id. (internal quotations omitted). Under the

mixed-motives alternative, Martin must offer sufficient evidence to

create a genuine issue of material fact “that [Westwood’s] reason,

while true, is only one of the reasons for its conduct, and another

motivating factor is [Martin’s] protected characteristic[.]” Id.

(internal quotations omitted).

III

The court will now apply the modified McDonnell Douglas

framework to Martin’s claim.

A

To establish a prima facie case of employment

discrimination [Martin] must establish that

[she] (1) is a member of a protected class;

(2) was qualified for the position; (3) was

subject to an adverse employment action; and

(4) was replaced by someone outside the

protected class, or, in the case of disparate

treatment, shows that other similarly situated

employees were treated more favorably.

Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004)

(addressing 42 U.S.C. § 1981 claim) (citing Okoye v. Univ. of Tex.

Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)). Only

the fourth element of the prima facie case is contested here.

Although Martin was replaced by a Caucasian, she contends she was

treated differently from non-Caucasians because, had an AfricanAmerican employee made the same remark——“[t]his is a movie with

black people in it.”——the statement would not have been considered

racially offensive, no complaint would have been filed, and the

 

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African-American employee would not have been terminated. Although

Martin has produced no evidence to support this allegation, the

court will assume arguendo that she can satisfy this element and

establish her prima facie case, because its analysis of her claim

largely collapses consideration of the fourth element into an

assessment of whether she can demonstrate pretext or that a

discriminatory reason was also a motivating factor.

B

Assuming arguendo that Martin has satisfied her prima facie

obligation, the burden of production then shifts to Westwood to

produce evidence that it terminated Martin for a legitimate,

nondiscriminatory reason. Westwood’s proffered reason for

discharging her is that she violated Westwood’s policies and

engaged in gross misconduct in connection with her offensive

behavior toward Parker and Thompson.

Martin argues that Westwood’s proffered reason is

discriminatory. She contends that Westwood discriminated against

her on the basis of her race when it concluded that her remark

toward Parker and Thompson was offensive, reasoning that “only a

non-African-American could possibly be deemed to have made a

racially offensive remark as a result of making this statement.”

P. Br. at 3. When asked during her deposition to recite the facts

that support her belief that she was the subject of racial

discrimination, Martin stated: “I feel that had a black person said

 

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the statement that I said, not only would . . . that person not

have been fired, but that no one would have even mentioned it to

Mrs. Galloway.” D. App. 144 (emphasis added). Similarly,

responding to an interrogatory that asked her to identify

statements or actions that people at Westwood had taken that

support her allegation of racial discrimination, Martin answered:

The statement, “That’s a movie with black

people in it,” is a statement of fact. There

is nothing inappropriate about it. If a black

person had made this statement, it would not

have been considered inappropriate. It

probably would not have been reported to Mrs.

Galloway, resulting in the termination of said

black person.

D. App. 210.

The answer Martin gave in her deposition amounts to nothing

more than how she described it——a feeling——and her interrogatory

response is conclusory. Martin’s belief that Westwood took her

race into account when it determined that her remarks were

offensive is speculative and lacks evidentiary support.

Nevertheless, even drawing all inferences in Martin’s favor with

respect to her unsubstantiated feeling or beliefs, her argument

lacks merit. 

Martin’s statement, “[t]his is a movie with black people in

it,” is patently a statement about race, because it refers to the

race of at least some of the persons in the movie. Not all

statements about race, of course, are offensive. But society today

does consider offensive certain statements about the hearer’s race

 

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when the person who makes the statement is of a different race.

This is so even though the same statement might not be considered

offensive if the speaker and the hearer were of the same race. For

example, given this country’s history of racial discrimination and

bigotry toward African-Americans, it is not unusual for a statement

about African-Americans to be received differently, depending on

whether the speaker is African-American or Caucasian. And despite

the absence of a history of discrimination against Caucasians, the

same can also be said of a racial statement made by an AfricanAmerican about a Caucasian. 

Martin’s reasoning, if accepted, would deprive an employer of

the ability to determine whether a statement made in the workplace

is offensive or unacceptable based on the conclusion that it is

objectionable precisely because of the race of the person who made

it and the race of the person who heard it. She impliedly argues

that, when determining whether a statement about race is offensive,

an employer cannot examine the entire context in which the

statement was made, if that includes considering the respective

races of the speaker and the hearer. One can earnestly hope that

this country will reach the point where a person’s race is never

relevant, all barriers between different races are eliminated, and

all racial discrimination is eradicated. But until then,

consideration of the race of a speaker is simply one factor that

can be used in evaluating whether a racial remark is in fact

 

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offensive to the hearer. An employer’s application in the

workplace of this mode of assessing whether a statement is

offensive is not itself a discriminatory act based on the speaker’s

race.

Westwood decided that Martin’s statement was racially

offensive, in violation of Westwood’s policies. It has therefore

met its burden of producing a legitimate, nondiscriminatory reason

for discharging her. See Pickens v. Shell Tech. Ventures Inc., 118

Fed. Appx. 842, 846 (5th Cir. 2004) (“For the purposes of Title

VII, this reasonable belief is enough to justify Pickens’s

termination.”); Waggoner v. City of Garland, 987 F.2d 1160, 1165

(5th Cir. 1993) (reasoning that discrimination is not shown if

employer believed complaining employee’s allegation in good faith

and discharged offending employee based on that belief); accord

Jones v. Flagship Int’l, 793 F.2d 714, 729 (5th Cir. 1986);

Dickerson v. Metro. Dade County, 659 F.2d 574, 581 (5th Cir. Unit

B Oct. 1981); Jefferies v. Harris County Cmty. Action Ass’n, 615

F.2d 1025, 1036 (5th Cir. 1980). Westwood did not discharge Martin

because of her race; it did so because it determined that she had

made a racially insensitive and offensive remark, in violation of

its policies. Even if Martin produced evidence to support her

belief that Westwood considered, among other factors, the fact that

she is Caucasian and that Parker and Thompson are not, this would

not render Westwood’s reason for terminating Martin discriminatory.

 

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C

Because Westwood has satisfied its burden to produce a

legitimate, nondiscriminatory reason for Martin’s termination, the

presumption of discrimination raised by the prima facie case is

negated. See St. Mary’s Honor Ctr., 509 U.S. at 510-11. Summary

judgment for Westwood is thus appropriate unless Martin can produce

evidence to show either that Westwood’s reason was pretextual or

that a discriminatory reason was also a motivating factor. See

Rachid, 376 F.3d at 312.

Martin can show that Westwood’s reason was pretextual by

either of two ways. First, she can produce sufficient evidence for

the trier of fact to find that Westwood’s “proffered explanation is

unworthy of credence.” See Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 256 (1981). Or she may introduce sufficient evidence

for the trier of fact to find that a discriminatory reason more

likely motivated Westwood’s decision to terminate her. See id.

Martin has produced no evidence to show that Westwood’s

proffered reason for terminating her is untrue. She has also

produced no proof to support the finding that a discriminatory

reason was the more likely reason for her termination. Had Martin

produced evidence, for example, that African-American employees

were treated more leniently for making similar racial statements

about Caucasians to Caucasians, this might have been sufficient to

 

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5Such evidence would be an example of circumstantial evidence,

which is sufficient under Desert Palace. But one’s subjective

belief does not alone rise to the level of circumstantial evidence;

it is not evidence at all.

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meet her burden at the pretext stage.5 But Martin offers nothing

more than her own subjective belief, which is insufficient. See

Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002)

(“‘[C]onclusory allegations, speculation, and unsubstantiated

assertions are inadequate to satisfy’ the nonmovant’s burden in a

motion for summary judgment.”) (quoting Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)); Lawrence v. Univ.

of Tex. Med. Branch, 163 F.3d 309, 313 (5th Cir. 1999) (per curiam)

(“[A] subjective belief of discrimination, however genuine, [may

not] be the basis of judicial relief.”) (second alteration in

original); Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th

Cir. 1995) (“[B]ald assertions of . . . discrimination are

inadequate to permit a finding that proscribed discrimination

motivated [the defendant’s] actions against [the plaintiff].”).

Martin has also produced no evidence that, in addition to

Westwood’s proffered reason, it had a discriminatory motive. She

contends only that Westwood’s proffered nondiscriminatory reason is

actually the discriminatory motive. For the reasons explained

supra at § III(B), the court rejects this argument.

Without any evidence to support pretext or mixed motive,

Martin has failed to meet her burden at the third stage of the

 

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modified McDonnell Douglas framework. Accordingly, the court

grants Westwood summary judgment dismissing Martin’s race

discrimination claim under the TCHRA.

In reaching this result, the court suggests no view concerning

whether an institution of higher learning should discipline a

professor for speech with which it disagrees or that, if censored,

would impinge on the professor’s academic freedom. The conduct at

issue here did not occur in the classroom or in another pedagogical

or advocatory forum. Moreover, the courts do not superintend

employment decisions that are merely mistaken or even ill-advised;

they remedy those that violate the law. See, e.g., Mechnig v.

Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988) (“[W]e do

not sit as a super-personnel department that reexamines an entity’s

business decisions.”).

IV

Westwood argues that it is entitled to attorney’s fees under

Tex. Lab. Code Ann. § 21.259(a) (Vernon 1996), which provides that

“[i]n a proceeding under this chapter, a court may allow the

prevailing party . . . a reasonable attorney’s fee as part of the

costs.” It maintains that the court should make an award because

Martin “has clearly brought a patently frivolous claim,” in support

of which she could not even establish a prima facie case. D. Br.

at 24. The court declines in its discretion to award attorney’s

fees.

 

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A

“[A]n employer may recover attorney fees if the plaintiff’s

claims ‘were frivolous, meritless, or unreasonable, or the

plaintiff continued to litigate after it became clear that [her]

claim was frivolous.’” Winters v. Chubb & Son, Inc., 132 S.W.3d

568, 580 (Tex. App. 2004, no pet.) (quoting Elgaghil v. Tarrant

County Junior Coll., 45 S.W.3d 133, 144-45 (Tex. App. 2000, pet.

denied)). Texas courts have looked to federal precedent when

deciding whether to award fees to a prevailing defendant in an

employment discrimination case. See, e.g., Elgaghil, 45 S.W.3d at

144 (“Although we find no state cases construing the application of

this section to a prevailing defendant in an employment

discrimination case, the Fifth Circuit has interpreted this statute

by applying the federal standard for Title VII cases.”). The

Elgaghil court applied the standard of Christiansburg Garment Co.

v. EEOC, 434 U.S. 412 (1978), stating that “[u]nder Christiansburg,

a district court has discretion to award attorney’s fees to a

prevailing employer in an employment discrimination case, provided

the plaintiff’s claims were frivolous, meritless, or unreasonable,

or the plaintiff continued to litigate after it became clear that

his claim was frivolous.” Id. at 144-45 (citing Christiansburg,

434 U.S. at 421-22). Christiansburg provides that the court may

award attorney’s fees to a prevailing defendant, in its discretion,

if it determines that the plaintiff’s action was “frivolous,

 

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unreasonable, or without foundation, even though not brought in

subjective bad faith.” Christiansburg, 434 U.S. at 421. Elgaghil

holds that “attorney’s fees are not appropriate simply because the

plaintiff loses his case. Rather, to show that a lawsuit was

without merit, the defendant must establish that the case was

groundless or without foundation.” Elgaghil, 45 S.W.3d at 145

(citations omitted).

B

The mere fact that Martin was unable to survive Westwood’s

summary judgment motion does not warrant an award of fees. See

Gordon v. Hercules, Inc., 715 F. Supp. 1033, 1033-34 (D. Kan. 1989)

(holding that plaintiffs’ failure to establish prima facie case in

Title VII case did not entitle prevailing defendant to attorney’s

fees). And this court has long emphasized that it should proceed

with care when assessing whether to impose sanctions on an

unsuccessful race discrimination claimant:

Claims alleging racial discrimination are

clearly subject to sanction where they fall

below the levels of acceptability prescribed

by applicable law. It must nevertheless be

remembered that statutes aimed at eradicating

racial discrimination and providing a private

right of action for its victims serve the

vital function of ameliorating one of this

Nation’s most pernicious and intractable

problems: making decisions about persons on

the basis of their race. The salutary

purposes for these laws strongly suggest that

disincentives to their invocation should be

erected only with care. 

This proposition finds greater force in

the context of present-day racial

 

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discrimination. Unlike the former days of de

jure suppression and segregation———and in the

face of “society’s consensus that

discrimination based on the color of one’s

skin is a profound wrong of tragic

dimension”——racial prejudice and

discrimination have become insidious,

manifested, if at all, by subtle slight rather

than by conspicuous callousness. As Judge

Johnson recently wrote in an analogous

context, “[d]efendants are rarely courteous

enough to admit in some documented form that

an asserted rationale behind a discharge is

really a pretext for an illicit motive.” Thus

before determining that a race discrimination

claim is sufficiently baseless, or the

prefiling inquiry of counsel or his client so

lacking, as to warrant the imposition of

sanctions, judges should appropriately account

for the nature of the claim.

Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1118 (N.D.

Tex. 1990) (Fitzwater, J.) (citations and footnotes omitted)

(addressing sanction request under Fed. R. Civ. P. 11 and 28 U.S.C.

§ 1927). Having assessed the viability of Martin’s lawsuit in

toto, and with due regard for the nature of the claim presented,

the court finds that her suit is not sufficiently groundless or

without foundation to justify an award of attorney’s fees, and it

denies Westwood’s request.

V

Westwood also moves for summary judgment dismissing Martin’s

breach of contract claim. 

A

Martin appears to allege in her first amended complaint that

Westwood’s Faculty Code of Conduct (“Code of Conduct”) constituted

 

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an employment contract between her and Westwood. She maintains

that this “contract” provided that, as a condition of her

employment, she was entitled to the free inquiry and exchange of

ideas and the enjoyment of constitutionally-protected freedom of

expression. She alleges that Westwood breached the contract by

discharging her for exercising these rights. Martin’s allegations

change slightly in her response to Westwood’s motion, wherein she

appears to aver that her offer letter is actually her contract and

that the Code of Conduct is incorporated into it by reference. She

specifies that Westwood breached its contract with her by firing

her for freely expressing a statement of fact about a video.

B

“[E]mployment is presumed to be at-will in Texas.” Midland

Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones, 92 S.W.3d

486, 487 (Tex. 2002) (per curiam). Consequently, “absent a

specific agreement to the contrary, employment may be terminated by

the employer or the employee at will, for good cause, bad cause, or

no cause at all.” Montgomery County Hosp. Dist. v. Brown, 965

S.W.2d 501, 502 (Tex. 1998). “‘To rebut the presumption of

employment at will, an employment contract must directly limit in

a meaningful and special way the employer’s right to terminate the

employee without cause.’” Hamilton v. Segue Software Inc., 232

F.3d 473, 478 (5th Cir. 2000) (per curiam) (quoting Rios v. Tex.

Commerce Bancshares, Inc., 930 S.W.2d 809, 815 (Tex. App. 1996,

 

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writ denied) (internal quotation marks omitted)). For a binding

employment contract to exist, “the employer must unequivocally

indicate a definite intent to be bound not to terminate the

employee except under clearly specified circumstances.” Montgomery

County Hosp. Dist., 965 S.W.2d at 502. “[A]ny modification of the

at-will status must be based on express agreements rather than

implied agreements,” and the agreement “must be clear and

explicit.” Cote v. Rivera, 894 S.W.2d 536, 540 (Tex. App. 1995, no

writ); see also Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798,

803 (Tex. App. 2003, no pet.) (“A discharged employee who asserts

that the parties have contractually agreed to limit the employer’s

right to terminate the employee at will has the burden of proving

an express agreement or written representation to that effect.”);

Miksch v. Exxon Corp., 979 S.W.2d 700, 703 (Tex. App. 1998, pet.

denied) (“[T]o be enforcable, an agreement to modify the employment

at-will relationship must be (1) express rather than implied, and

(2) clear and specific.”); Byars v. City of Austin, 910 S.W.2d 520,

523 (Tex. App. 1995, writ denied). “An employee who has no formal

agreement with [her] employer cannot construct one out of

indefinite comments, encouragements, or assurances.” Montgomery

County Hosp. Dist., 965 S.W.2d at 502.

C 

Westwood argues that Martin cannot show that the Code of

Conduct manifests a specific and definite intent to be bound not to

 

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terminate Martin except under clearly specified circumstances. The

court agrees. 

The Code of Conduct itself makes it clear that it is a policy

that applies to Westwood faculty members. “Texas courts have

recognized that employment policies may, in limited circumstances,

alter the at-will nature of the employment and create enforceable

contractual rights.” Zenor v. El Paso Healthcare Sys., Ltd., 176

F.3d 847, 862 (5th Cir. 1999) (citing Vida v. El Paso Employees’

Fed. Credit Union, 885 S.W.2d 177 (Tex. App. 1994, no writ)). To

do so, however, “the policy must specifically and expressly limit

the employer’s ability to terminate the employee” and “must contain

an explicit contractual term altering the at-will relationship, and

must alter that relationship ‘in a meaningful and special way.’”

Id. (quoting Figueroa v. West, 902 S.W.2d 701, 705 (Tex. App. 1995,

no writ)). The polices outlined in the Code of Conduct do not

satisfy these requirements. The Code neither mentions termination

nor explicitly limits the conditions on which Westwood may

discharge an employee. Accordingly, the court concludes that the

Code of Conduct does not alter the presumptive at-will nature of

Martin’s relationship and thus may not serve as the basis for her

breach of contract claim.

Westwood also maintains that the court should decline to

consider Martin’s allegations in her summary judgment response that

her offer letter, and not the Code of Conduct alone, constitutes an

 

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employment contract. Even were the court to consider her

allegations, the offer letter still fails to support her claim.

The offer letter states:

In the absence of a formal express contract of

employment signed by you and the company’s

Chief Executive Officer, your employment with

Westwood is at-will. This means that either

you or Westwood may terminate your employment

at any time, with or without reason, notice or

cause. . . . The “at will” nature of your

employment will continue throughout the entire

duration of your employment with Westwood.

D. App. 150. Although Westwood argues that neither the offer

letter nor the Code of Conduct is signed by Westwood’s CEO, it has

not adduced sufficient evidence to support this assertion. The

court notes that Galloway signed Martin’s offer letter in her

capacity as Director of Education. Westwood states in its reply

brief that Galloway is not Westwood’s CEO, but this assertion,

without supporting evidence, cannot serve as the basis for summary

judgment. Even so, the offer letter does not purport to limit

Westwood’s ability to terminate Martin and accordingly does not, of

itself, change the at-will status of her employment. Thus it

cannot serve as a basis for Martin’s breach of contract claim. 

Because neither the Code of Conduct nor the offer letter

alters the at-will nature of Martin’s employment, she cannot

recover for breach of contract based on her termination.

Westwood’s motion for summary judgment as to this claim is granted.

 

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* * *

Westwood’s motion for summary judgment is granted, and this

action is dismissed with prejudice by judgment filed today.

SO ORDERED.

September 7, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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