Alleged incorrectness of reason for employee termination does not equate to pretext.


Joe A. Zuniga v. The City of San Antonio, 04-13-00142-CV (Tex. App. – San  Antonio, January 8, 2014).

This is an employment case where the San Antonio Court of Appeals affirmed summary judgment for the City noting Zuniga did not rebut the City’s stated reason for termination as pretextual.

Zuniga began working for the City’s utility (CPS Energy) as a custodian and worked his way up to the position of Journeyman Carpenter. In 2009 he made a complaint against the director regarding ethnic and racial discrimination but an investigation revealed no policy violations. In 2010 he threw a roll of duct tape at a foreman in anger and was placed on a corrective action plan. Several months later a safety inspector photographed Zuniga violating safety policies by erecting a ladder in the bed of a CPS truck in order to see onto a leaky roof. His corrective action plan was amended.  Within days, Zuniga filed an EEOC charge.  That same month Zunica was injured when a table saw cut off the tip of his thumb (rendering him impaired and disabled). An investigation revealed the injury was preventable and since he was on decision making leave for safety violations already, he was terminated. The City filed summary judgment motions which the trial court granted and Zuniga appealed.

The court first noted that without addressing whether Zuniga made out a prima facie case, CPS established a legitimate non-discriminatory reason for its actions. The issue at the pretext stage under the burden shifting analysis is not whether the employer made an erroneous decision; it is whether the decision, even if incorrect, was the real reason for the employment determination.  The evidence presented by Zuniga (such as it was the table saw’s fault for the injury) went to the correctness of a decision, not that the stated reason is pretextual for discrimination or retaliation. As a result, it was proper for the trial court to grant summary judgment.

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