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Click here for the full text of this decision FACTS:Craig Winters, an African-American, was hired as an underwriter for Chubb & Sons in 1997. Except for a one-year period during his employment, Deanne Gordon was Winters’ manager. Winters was the only African-American senior underwriter under Gordon’s supervision. Nearly a year after Winters was issued his underwriting authority, Winters and Gordon met to discuss Winters’ job performance. Gordon revoked Winters’ underwriting authority, citing four policies Winters’ was responsible that were in some way deficient. Winters was given a verbal warning, but he was allowed to continue his underwriting duties, though any new policies had to be approved by Gordon or someone else, and his pay remained the same. Thirty days after the verbal warning, Gordon and Winters met again to discuss his progress. Gordon again expressed concern with Winters’ abilities, again citing specific problems, and again giving him 30 days to improve. Thirty days after that, Gordon found improvement in Winters’ conduct, so she removed the warning. However, she said an audit of Winters’ files would be conducted before Winters’ underwriting authority would be restored. Though the audit results were primarily positive, and Gordon indicated that Winters’ authority would be reinstated, it never was. Two months later, Winters, Gordon and another supervisor again met. Specific problems with Winters’ performance were again laid out, and specific improvements Winters was expected to make were spelled out. Winters was informed that failure to meet these expectations could result in disciplinary action, including termination. Two weeks after this meeting, Winters submitted his letter of resignation, giving two weeks notice. Winters then sued Gordon and Chubb for racial discrimination, intentional infliction of emotional distress and defamation. He also alleged fraud against Gordon in a separate suit. The trial court granted Gordon’s motions for summary judgment in both actions and awarded Gordon attorneys’ fees. Winters appeals only the summary judgment on his discrimination claim and on the award of attorneys’ fees. HOLDING:Affirmed. The court confirms that cases brought under the Texas Commission on Human Rights Act follow the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): the plaintiff first must prove a prima facie case of discrimination; the burden then shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action; then, the burden shifts back to the plaintiff to show that the reason preferred by the defendant is merely a pretext for discrimination. To establish his prima facie case, Winters was required to show that he was a member of a protected class who suffered an adverse employment action and that non-protected class members were not treated similarly. Chubb specifically contends that Winters did not suffer an adverse employment action different from what any non-protected class member would have experienced. The court notes that on the one hand, adverse actions do not include reprimands or poor performance by the employee. On the other hand, a letter of resignation is not proof positive that an adverse employment action was not taken; an employee could still show that he or she was constructively discharged. The court agrees that there is a remaining fact issue over whether Winters was constructively discharged. Winters and Gordon disagree over what happened in their last meeting together, and Winters says that he submitted his letter of resignation to avoid being terminated. Gordon, though, denies that she told Winters he would likely be terminated. The court also assumes that Winters established the other elements of his prima facie case. Chubb and Gordon, in turn, met their burden of providing a non-discriminatory reason for Winters’ resignation: an objective evaluation of Winters’ job performance. The court then turns to whether Winters can establish that the reason given by the defendants was pretextual. Though there was some indication that Gordon’s relationship with Winters was “strained” and less than perfect, there was no evidence that Gordon had any general dislike of African-Americans, used racial epithets or did not promote other African-Americans under her supervision. Two customer service representatives thought that Winters may have been treated differently because of his race, but the court finds that case law requires more than a “maybe.” Another supervisor’s comment that African-Americans struggled at Chubb was not made in reference to Winters or Winters’ job performance; and Gordon’s comment that she didn’t like Winters was not indicative of racial motivation. The court rejects Winters’ claim of disparate treatment. Winters had to show that he was discharged for misconduct for which other employees were not. Winters said that other underwriters who wrote money-losing policies were not singled out as he was. The court, however, notes that Winters never expressly denies having job performance issues. And notwithstanding Winters’ complaints of being singled out, he did not offer evidence that of other employees with the same performance issues who was treated differently. Winters’ disparate impact claim is not bolstered by evidence of his positive job performance, supplied by co-workers. These positive comments refer to performance over a long period of time and do not explain away the list of documented performance issues. The court also upholds the award of attorneys’ fees to Gordon. OPINION:Hudson, J.; Yates, Hudson and Fowler, JJ.

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