KAY KING v. LEONARD P. GIETZ, M.D., D/B/A REGIONAL MEDICAL LABORATORY--Appeal from 267th District Court of Victoria County

 NUMBER 13-03-00357-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

KAY KING, Appellant,

v.

LEONARD P. GIETZ, M.D., D/B/A

REGIONAL MEDICAL LABORATORY, Appellee.

 On appeal from the 267th District Court of Victoria County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Ya ez, and Castillo

Memorandum Opinion by Justice Hinojosa

This is an employment discrimination case. In four issues, appellant, Kay King, contends the trial court erred in granting the motion for summary judgment of appellee, Leonard P. Gietz, M.D. d/b/a Regional Medical Laboratory. We affirm.

A. Factual and Procedural Background

King began working for Regional Medical Laboratory in January 1973 as a cytotechnologist. At the time she was hired, King was thirty-one years old and walked with the aid of crutches and braces because she suffered from polio as a child.

In 1981, Dr. Gietz purchased Regional Medical Laboratory and continued to employ King as a cytotechnologist until March 10, 1999, when he terminated her employment. King filed a complaint with the Texas Commission on Human Rights, which issued a right-to-sue letter. King then sued Dr. Gietz under the Texas Commission on Human Rights Act (ATCHRA@), alleging that she was terminated because of her age and/or disability.

Dr. Gietz filed a traditional and no-evidence motion for summary judgment asserting that (1) King could not produce any evidence of a causal connection between her age and/or disability and her termination, (2) King could not establish that Dr. Gietz=s reason for terminating her was false, and (3) Dr. Gietz was entitled to a presumption of no discrimination because he both hired and fired King. The trial court granted the motion, and this appeal ensued.

B. Standard of Review

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Id. In contrast, in a no evidence motion for summary judgment, the nonmovant must bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to the challenged element. Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.BCorpus Christi 1999, no pet.).

1. No Evidence Attached to Motion

In her first issue, King contends the trial court erred in considering Dr. Gietz=s traditional motion for summary judgment because he failed to attach any evidence to his motion. We note that King attached most of the deposition excerpts referenced in Dr. Gietz=s motion to her response to the motion.

Nevertheless, King did not raise this objection before the trial court, either orally or in her written response. Accordingly, we conclude that King waived this issue. See Tex. R. App. P. 33.1; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979) (appellate courts will not consider any issues as grounds for reversal that were not presented to trial court by written response). King=s first issue is overruled.

2. No Evidence Motion for Summary Judgment

In her second issue, King complains that Dr. Gietz argued that her claim fails because of the absence of an element in an employment discrimination case that does not exist under the TCHRA. King contends Dr. Gietz argued that King had no evidence of a Acausal connection@ between her disability and/or age and her termination. However, King was not required to show that she was terminated because of her disability and/or age; she only needed to show that her disability and/or age was a motivating factor for her termination. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 479-80 (Tex. 2001). Dr. Gietz concedes that King is correct regarding the appropriate elements of her claims. Accordingly, King=s second issue is sustained.

3. Traditional Motion for Summary Judgment

In her third issue, King contends she produced sufficient evidence to raise a genuine issue of material fact on her claim that Dr. Gietz=s stated reason for terminating her employment was nothing but a pretext for discrimination.

Under the TCHRA, an employer may not discriminate against its employees because of age or disability. See Tex. Lab. Code Ann. ' 21.051(1) (Vernon 1996). In discrimination cases, Texas courts apply the McDonnell Douglas/Burdine burden shifting analysis established by the United States Supreme Court. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 42 (2000) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 03 (1973) and Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 53 (1981)); M. D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam); Tex. Dep=t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). Under this burden shifting analysis, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex. App.BCorpus Christi 1995, writ denied); Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 186 (Tex. App.BCorpus Christi 1992, writ denied).

If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's discharge. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187 88. If the defendant carries this burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were rather a pretext for discrimination. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187 88. To show pretext, a plaintiff must provide evidence showing that (1) the asserted reason was false and (2) discrimination was the actual motivation. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Despite the shifting burden of proof, the plaintiff at all times retains the ultimate burden of persuading the trier of fact. Stanley Stores, 909 S.W.2d at 560; Adams, 848 S.W.2d at 187 88.

Under this burden-shifting framework, it is undisputed that (1) King established her prima facie case and (2) Dr. Gietz satisfied his burden by offering his loss of faith in King=s abilities due to mistakes as a legitimate, nondiscriminatory reason for her termination. The only element about which King could raise a genuine issue of material fact, then, is whether Dr. Gietz=s offered reason was legitimate or a mere pretext for the true, discriminatory motive.

To establish a fact question on the issue of pretext, the non movant must present evidence indicating that (1) the non discriminatory reason given by the employer is false or not credible, and (2) the real reason for the employment action was unlawful discrimination. Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 140 (Tex. App.BFort Worth 2000, pet. denied). A plaintiff can avoid summary judgment on this element if the evidence, taken as a whole, creates a fact issue as to whether each of the employer's stated reasons (1) was not what actually motivated the employer and (2) creates a reasonable inference that age and/or disability was a determinative factor in the actions the plaintiff now complains about. Id.; see Grimes v. Tex. Dep't of Mental Health and Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996).

In an attempt to satisfy this burden, King argues that the reason given by Dr. Gietz for her termination is false because (1) he failed to document the mistakes allegedly made by her, (2) specific mistakes advanced as the reason for her termination were not made by her but by lab pathologists, (3) he gave her a glowing letter of recommendation, (4) he never gave her any written or oral reprimands, (5) he enlisted her to draft the Quality Assurance Program for the lab, and (6) he informed a potential employer that she was a very good employee. However, this evidence only addresses the first prong of establishing a fact question on pretext, i.e. whether the reason offered by Dr. Gietz was false.

King failed to produce any affirmative proof of age and/or disability discrimination by Dr. Gietz, and nothing in the summary judgment evidence creates a reasonable inference that age and/or disability was a motivating factor for her termination. Because she did not produce any evidence to establish a fact issue with respect to the second prong of the pretextual nature of Dr. Gietz=s reason for terminating her, we overrule King=s third issue.

In her fourth issue, King contends that Dr. Gietz should not be accorded the Asame actor@ presumption that he did not discriminate against her. However, in light of our disposition, it is unnecessary to address this issue. See Tex. R. App. P. 47.1.

The trial court=s order granting Dr. Gietz=s motion for summary judgment is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed

this the 31st day of October, 2005.