Houston First Court of Appeals holds that a School’s participation in discovery does not waive its governmental immunity.
Special contributing author Laura Mueller, City Attorney for Dripping Springs
Democratic Schools Research, Inc. d/b/a The Brazos School for Inquiry and Creativity v. Tiffany Rock, 01-19-00512-CV (Tex. App.—Houston [1st Dist.], Aug. 4, 2020).
In this employment discrimination case, the Houston First Court of Appeals overturned a trial court’s denial of a plea to the jurisdiction by a school because participation in discovery by the school did not waive its governmental immunity and its immunity had not otherwise been waived as it related to the plaintiff’s state law employment discrimination and retaliation claims.
The plaintiff was an African-American principal at a public charter school. During her employment, the plaintiff sent emails to the school’s administration complaining about understaffing at the school and low morale at the school, including complaining of the school’s administration calling the school “too black” and that African American teachers were paid less. The school administration responded to the complaints stating that the statement occurred but that it referenced the lack of Hispanic teachers at a different school campus and that there was no proof that African American teachers were paid less or that there was any bias in the school’s salaries. The plaintiff never filed a formal grievance although being urged to do so by the school administration. After ongoing discussions with the school’s administration regarding issues at her school, she was terminated for having a hostile attitude and insubordination. After her termination, a Caucasian member of the school’s administration took on her duties until a permanent principal, who was African-American, could be hired. The plaintiff sued the school for employment discrimination and retaliation. The trial court denied the school’s plea to the jurisdiction, and the school brought this interlocutory appeal.
Governmental immunity is not waived by participation in the discovery process by the governmental entity, because sometimes a court may need to consider evidence when ruling on a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554, 555 (Tex. 2000); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 233 (Tex. 2004). To establish an action for discrimination the employee must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) was treated differently than other employees who are not in the protected class. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 640 (Tex. 2008). If this burden is met, the burden then shifts to the employer.
The “too black” comment was not sufficient evidence of discrimination because it was unrelated to the plaintiff’s termination and because the comment related to the school’s diversity guidelines. The Court also dismissed the allegation of lower pay because it was unsupported and was further not related to the plaintiff – one of the highest-paid individuals in the school district. The plaintiff’s replacement was in her protected class, and temporary replacements are not considered as evidence of discrimination. Finally, the plaintiff presented no proof that she was treated differently from similarly situated employees. The Court of Appeals held that the trial court erred when it denied the school’s plea to the jurisdiction.
If you would like to read this opinion click here. Panel consists of Justices Keyes, Lloyd, and Hightower. Opinion by Justice Evelyn V. Keyes.
