Special contributing author Laura Mueller, City Attorney for Dripping Springs
City of Houston v. Kimberley R. Trimmer-Davis, No. 01-19-00088-CV (Tex. App.—Houston [1st Dist.] August 25, 2020) (mem. op.).
In this employment retaliation case, the plaintiff sued the City when suspended after making a complaint and later terminated after failing to follow drug testing procedures. The Court of Appeals allowed the retaliation claim related to the suspension move forward but dismissed the retaliation claim for termination due to no but-for causation evidence.
The plaintiff was a civil service employee of the City who made a complaint related to the treatment of females in her City department. After investigating the complaint, the City determined the claim was untruthful and suspended the plaintiff for one day. The Civil Service Commission overturned the suspension, but the untruthfulness complaint was left in the plaintiff’s personnel file. The employee sued for retaliation for the suspension and for refusing to remove the untruthfulness complaint from her files. Three weeks later, the employee was selected to take a random drug test and failed to follow the proper testing procedure multiple times. She was terminated for her failure to properly follow the requirements. The plaintiff filed another complaint related to her termination. The trial court granted the City’s plea to the jurisdiction as to the recordkeeping claim but denied the plea for the one-day suspension and the termination. Both parties appealed.
To show retaliation, the employee has to show an adverse employment action was caused in retaliation for protected activity. There is no disagreement that adverse employee actions occurred or that protected activity occurred prior to the actions. The process for proving retaliation through circumstantial evidence is that: (1) the plaintiff prove that the adverse employment action and the protected activity occurred; (2) the employer then present non-retaliatory reasons for the actions; and (3) finally the plaintiff shows that the non-retaliatory reasons are pretextual. The City argued that it had non-retaliatory reasons for the terminations. The plaintiff argued that the non-retaliatory reasons were a pretext for all three activities (suspension, keeping the untruthfulness complaint in her file, and the termination). The Court of Appeals held that the suspension occurred in a manner inconsistent with the City’s own policies, which provides sufficient evidence of pretext. The Court also held that the City’s arguments regarding its recordkeeping were insufficient to definitely prove there was no retaliatory intent in keeping the untruthfulness complaint in its files because the City’s policies related to recordkeeping were vague and contradictory. Finally, the Court of Appeals held that there was sufficient evidence that the City had non-retaliatory reasons for the termination related to the drug testing and that the plaintiff had not provided sufficient evidence that her earlier complaints were a but-for cause of her termination. The case was sent back to the trial court on the recordkeeping and suspension retaliation claims.
If you would like to read this opinion click here. Panel consists of Justices Kelly, Hightower, and Countiss. Opinion by Justice Peter Kelly.