College’s evidence established employee was incompetent for her job; therefore not qualified; therefore could not make a prime facie case for discrimination

Darla Lackey v. Lone Star College System, 09-15-003999-CV (Tex. App— Beaumont, October 20, 2016)
This is an employment discrimination case where the Beaumont Court of Appeals affirmed the granting of the College’s plea to the jurisdiction.

Lackey is a forty-three-year-old Caucasian female who was employed by the Lone Star College System (“LSCS”) as a human resource manager.” Lackey pleaded that a shooting and then a stabbing occurred at LSCS’s campuses and afterwards LSCS opened its employee assistance program (“EAP”) to all employees, although the EAP had previously only been available for full-time employees. When an adjunct professor asserted he was suffering from post-traumatic stress disorder and wanted to use the EAP, Lackely allowed it. She asserted she double-checked the policy change before offering the EAP. LSCS leadership asserted she did not follow the policy correctly and terminated her. Lackely asserts a non-Caucasian Hispanic employee also violated the same policy but was not terminated. Lackey asserted causes of action for disparate treatment and replacement under the Texas Commission on Human Rights Act (“TCHRA”). LSCS filed a plea to the jurisdiction which the trial court granted. Lackey appealed.

A Plaintiff must make a prima facie case showing a waiver of immunity exists. The waiver of governmental immunity contained in the TCHRA only applies if the plaintiff alleges a violation within the scope of the statute. For Lackey to establish a prima facie case as to both of the causes of action (discrimination and discriminatory replacement) she must first establish that she was qualified for her position. LSCS attached a great deal of evidence indicated Lackely was incompetent to perform her position and, in one instance, causing LSCS to become $4 million behind in employee retirement payments. After analyzing the various collection of evidence and instances of incompetence and reviewing Lackey’s responses, the court concluded “LSCS’s evidence demonstrated that Lackey was not performing her job at a level that met LSCS’s legitimate expectations, and Lackey was therefore not qualified for her job.” Because Lackey did not establish that she was qualified, she failed to demonstrate a prima facie case under the TCHRA; therefore, LSCS’s governmental immunity is not waived. The plea was properly granted.

If you would like to read this opinion click here. Panel:  Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Chief Justice McKeithen delivered the opinion of the court. Attorney for the Lackey is listed as Ellen Sprovach. Attorney for LCSC is listed as Daniel Nicholas Ramirez.

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