NCAA former Coach negated her own retaliation claim when she properly plead discrimination claim

The University of Texas at Austin v. Beverly Kearney, 03-14-00500-CV (Tex. App. – Austin, May 3, 2016)

This is an employment case where the Austin Court of Appeals reversed in part and affirmed in part the denial of the University’s plea to the jurisdiction in this retaliation and disparate treatment case.

Kearney, who is an African-American female, was the head coach of the University’s women’s track and field team for approximately 21 years.  In October 2012, Kearney was told by the women’s athletic director that a report had been made to the University that Kearney had engaged in a personal relationship with a former student-athlete in approximately 2002. Kearney admitted to the relationship and was subsequently placed on administrative leave pending an investigation. On December 6, 2012, Kearney met with University attorneys and raised complaints alleging past incidents of race and sex discrimination for which she had not filed charges of discrimination. On January 5, 2013, Kearney resigned in lieu of termination. On March 8, 2013, Kearney filed a charge of discrimination.  She received her right to sue letter and filed suit for discrimination and retaliation. The University filed a plea to the jurisdiction which was denied.

The court first noted that Kearney’s allegations dating back to September 2012 (beyond the 180-day complaint period) are not causes of action in themselves, but are factual allegations as a background to support her claim of current discrimination relating to her termination.  She did timely file a TWC complaint within 180 days of her termination. As a result, the September statements are not causes of action, but are proper evidence to consider regarding her termination. With regards to her retaliation claim, to establish causation, the employee must establish “a ‘but for’ causal nexus between the protected activity and the prohibited conduct.”  No liability for unlawful retaliation arises if the employee would have been terminated even in the absence of the protected conduct. The court agreed with the University that Kearney’s pleadings negate causation. Having affirmatively asserted that the University fired her for having a relationship with a student-athlete, she cannot show a but-for causal connection between her complaints of prior discrimination and her alleged constructive discharge. While her allegation of discrimination for singling her out for having the relationship is based on her race and gender, the retaliation allegation cannot coexist under the alleged facts. Finally, since the University’s plea focuses on the facts in the pleadings, the pleadings indicate Kearney alleges she was treated less favorably than other coaches of different genders and races who had similar violations. The University offered no evidence to support its assertion the other coaches were not similarly situated so the court must take the pleadings as true on their face. As a result, Kearney properly pled the elements of her cause of action. So the retaliation claims should have been dismissed, but the trial court properly denied the plea as to the discrimination claims.

If you would like to read this opinion click here. Chief Justice Rose, Justice Goodwin and Justice Bourland. Memorandum Opinion by Justice Goodwin.  The docket page with attorney listings is found here.

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