Director terminated for sexual harassment unable to establish discriminatory basis says 4th Court of Appeals


Adolfo F. Rodriguez v. City of Poteet, 04-13-00274-CV (Tex. App. – San Antonio, February 26, 2014)

This is an age discrimination and retaliation case where the trial court granted the City’s traditional motion for summary judgment and the 4th Court of Appeals affirmed.

Rodriguez, the Director of Public Works, received a salary reduction then initiated an age discrimination suit in 2008, but settled in 2009.  In 2010 two subordinates filed complaints against Rodriguez and after an independent investigation Rodriguez was terminated for violating the City’s sexual harassment policy. He sued alleging age discrimination and retaliation for filing the 2008 suit. The City filed a traditional motion for summary judgment which the trial court granted and Rodriguez appealed.

Rodriguez claimed the trial court judge erred in excluding affidavits he filed countering the City’s evidence. The 4th Court noted Rodriguez’ first attempt to file the affidavits was by fax which was not permitted by the local rules and the second attempt by Federal Express on the deadline date did not demonstrate that the affidavits were actually part of that filing or package.  Further, the City specifically objected to an affidavit produced in discovery.  Rodriguez asserted the affidavit was self-authenticating under discovery rules; however, the City timely objected under the Rules. So the trial court properly excluded the evidence.  The court briefly examined Rodriguez’ claim two officials had retaliatory biases against him; however, they recused themselves from the investigation and vote. The court then held the City properly met its burden of production establishing a legitimate non-discriminatory basis for the termination (i.e. sexual harassment complaints). Rodriguez was not able to establish pretext since he was not similarly situated to the other employees accused of harassment in the past, his other evidence is not causally linked, and some of the evidence was before his 2008 suit. As a result, the trial court judgment is affirmed.

If you would like to read this opinion click here. Panel: Chief Justice Stone, Justices Angelini and Chapa.  Opinion by Chief Justice Stone.   The attorney listed for the Plaintiff is Edward L. Pina. The attorney listed for the City is Elizabeth Guerrero Southard.

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