Being subjected to an investigation which did not lead to disciplinary action is not an adverse employment action says 5th Court of Appeals

City of Dallas v. Ronald Giles, 05-15-00370-CV (Tex. App. – Dallas, January 4, 2016)

This is one of several employment disputes filed by Officer Giles. The Fifth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and rendered judgment for the City.

Giles is a police officer for the City of Dallas Police Department. Giles filed a separate lawsuit in federal court against the City for employment discrimination. That case has since been dismissed, however afterwards, the PD Internal Affairs Department received a complaint against Giles from a citizen and started an investigation. Giles, while working off duty, allegedly confronted the citizen and pushed him against a car while making inappropriate comments. Giles denies the incident. After an investigation, the complaint was listed as “not sustained.”    Giles was later reassigned within DPD from the Communications Division to the Patrol Division as a result of a problem in the dispatch center. Several managers in Communications were reassigned as a result of the dispatch incident. Giles’s rank, pay, days off, and working hours did not change.  In this lawsuit, Giles, alleged both of these actions were taken to retaliate against him for filing his federal court lawsuit.  The City filed a plea to the jurisdiction which was denied. The City appealed.

After analyzing the standards and facts alleged, the Court of Appeals held Giles failed to properly establish he suffered a materially adverse personnel action. Citing Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256 (Tex. App.—Dallas 2009, pet. denied) the panel noted conducting an investigation which ultimately lead to no disciplinary action was not a materially adverse action. The complaint was of the “type [of] minor annoyances that are not protected by the TCHRA.” And was not the “type of significant harm that needs to be redressed in court.”  Giles also failed to establish working in Patrol was an objectively  “less desirable” position than Communications. “Giles’s subjective preference to remain in Communications is insufficient to make the transfer materially adverse.” Further nearly every manager in the Communications Division was reassigned, which demonstrates it was not retaliatory. The plea should have been granted by the trial court. The panel reversed and rendered.

If  you would like to read this opinion click here. Justice Fillmore, Justice Stoddart and Justice O’Neill, Retired. Memorandum Opinion by Justice Stoddart. The attorney listed for Giles is Rebecca L. Fisher.  The attorneys listed for the City are Barbara E. Rosenberg, Jennifer Carter Huggard, Ayeh Barzin Powers, Dixon Merkt Jr.