14th Court of Appeals holds ex-employees trigger date to file a charge of discrimination only occurs when employer’s discriminatory animus becomes sufficiently clear and he has suffered a tangible employment action

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Metropolitan Transit Authority of Harris County, Texas v. John Carter, 14-19-00422-CV (Tex. App. – Houston [14th Dist.], January 14, 2021)

This is an employment dispute where the 14th Court of Appeals affirmed the denial of a plea to the jurisdiction filed by the Metropolitan Transit Authority (Metro).

Carter worked as a bus operator for Metro. In 2014 Carter was involved in a vehicle accident that Metro categorized as “preventable.”  Carter’s union representative requested a reconsideration. Due to polio as a child, Carter walked with a noticeable limp. When reviewing the video of the accident, the superintendent (Ramirez) believed Carter did not have sufficient leg strength to lift his leg off the accelerator and instead had to use his arm to move his leg off the accelerator and onto the brakes. Cater had to submit to a fitness-for-duty evaluation and was held to be capable of performing the job. Ramirez refused to put Carter back to work. Ramirez required Carter to pass a Texas Department of Public Safety Skilled Performance Evaluation (SPE) to determine if he was capable of driving commercial vehicles, which had not been done by Ramirez before. However, Carter passed. From June 2014 to January 2016, Metro moved Carter from place to place within the agency. In January 2016, after receiving notification that Carter had not passed the January 2016 medical examination, Metro placed Carter on involuntary medical leave. However, Carter had received a 2015 medical certificate noting he could operate commercial vehicles. At this point, Carter filed a charge of discrimination.  In March of 2017, Metro terminated Carter. Carter sued for disability and age discrimination and retaliation. Metro filed a plea to the jurisdiction, which was denied. Metro appealed.

The court first held Carter’s claims were not time-barred. Even though he was on notice in 2014 that he may have been subject to discrimination, his wages did not change and he was not otherwise impacted until placed on medical leave in 2016. He timely filed his charge of discrimination in 2016 and was terminated in 2017. The court specifically stated “[i]t was only when Metro placed Carter on involuntary medical leave even though he possessed a valid, two-year CDL and DOT medical certification, that Metro’s discriminatory animus became sufficiently clear and he had suffered a tangible employment action, that Carter was required to file a charge of disability discrimination.”  As a result, he timely filed his charge and brought suit. The court then held that fact issues exist as to the remaining aspects of the disability discrimination and retaliation charges.

If you would like to read this opinion click here. Panel consists of   Chief Justice Christopher, Justice Wise and Justice Zimmerer. Memorandum Opinion by Justice Zimmerer. Docket page with attorney information found here.

U.S. 5th Circuit held reasonableness of an ADA accommodation request is normally a fact issue plus alleged discrimination is not enough for discriminatory firing claim under ADA

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Jones v. Lubbock County Hosp. Dist., 19-11364, 2020 WL 6787549, at *1 (5th Cir. Nov. 18, 2020)

 This is an interlocutory appeal of a granting of summary judgment for the University Medical Center (“UMC”) and appealed by its former employee, Ricky Jones. The U.S. 5th Circuit affirmed in part, vacated in part, and remanded in part.

Jones, a respiratory therapis, has breathing problems and relies on supplemental oxygen. He requested UMC to accommodate his condition by letting him wear a portable oxygen device while working, but UMC denied the request. Subsequently, Jones took a few weeks of leave after working for a few days with his supplemental oxygen device, applied for, and was offered a secretarial position with UMC. Jones denied the offer after he returned from leave and felt he could without his device. Jones again requested the use of the device, was denied, then took a few weeks of leave. During that time, he sought other work around UMC but found no opening. After a third request was denied, he put in his two weeks’ notice and resignation. During the two weeks, Jones was fired for sending messages which violated UMC’s policy against gossip. Jones filed suit. UMC filed a motion for summary judgement which the trial court granted. Jones appealed.

The Fifth Circuit vacated the lower court’s ruling, stating that whether a proposed accommodation is reasonable is generally a fact issue and that Jones showed a triable fact issue in how he and UMC interpreted his request.  However, for Jones’ discrimination claim, the Fifth Circuit held that the evidence of UMC’s alleged failure to accommodate did not offer evidence to connect it to his being fired. UMC was able to show a legitimate reason for Jones’ firing which Jones failed to rebut.  As a result, the discrimination claim remained dismissed but the failure to accommodate claim was remanded.

If you would like to read this per curiam opinion click here. Panel consists of Judge Stewart, Justice Duncan, and Justice Wilson.

The Ninth Court of Appeals affirmed judgment for City in First Amendment/Whistleblower claims since no causal connection was present

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Port Arthur  November 19, 2020) (mem. op.).

In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case.  The Beaumont Court of Appeals affirmed the trial court’s summary judgment.

The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor.  During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney.  He was terminated by the city attorney and was given a termination notice which indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him.  Plaintiff sued the city in district court claiming a Whistleblower Act claim and that his termination violated his First Amendment rights.  The city filed a plea to the jurisdiction and no evidence motion for summary judgment which the trial court granted.

To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority.  Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995).  The report has to be a “but-for” cause of the termination.  Office of the Attorney Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 2020). The plaintiff was unable to make the causal connection.  To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech.  Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).   The speech in question is not protected if it is spoken within the context of the employee’s official duties.  Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 1998). The Whistleblower claim was dismissed because the claims of illegal conduct by the City were not made until after the termination. The free speech claim was invalid because his speech was performed and related to is employment position. The dismissal of both was proper.

If you would like to read this opinion click here.   Panel consists of Chief Justice McKeithen and  Justices Kreger and Horton. Opinion by Justice Hollis Horton

Austin Court of Appeals holds that under the Civil Service Act applied to police officers, a reinstatement list must factor in seniority in the position being demoted and not seniority in the department

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Bradley Perrin v. City of Temple, et al, 03-18-00736-CV, (Tex. App – Austin, Nov. 6, 2020)

This is an employment dispute in a civil service police department with crossclaims and a host of procedural matters. The Austin Court of Appeals ultimately held the Plaintiff was entitled to the promotional position of corporal.

Perrin and Powell were serving as police officers for the City and took the written examination for promotional eligibility to the rank of corporal.  Five officers passed, including Perrin and Powell. The results were publicly posted on a certified list with Powell being third and Perrin being fifth. Then, the Director added seniority points, but made Perrin third and Powell fifth. The City Defendants and Powell contend that the Director erred in adding the seniority points and did so incorrectly. However, before the list expired, the City eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. The Chief sent out a memo stating the sequence of events should have resulted in the promotion of Officers Mueller, Perrin, Powell and Hickman to corporal, and then the immediate demotion back to the rank of police officer, and placement on a Re-Instatement List for the period of one year. The reinstatement list listed Powel higher than Perrin due to seniority points being included. Perrin sued the City Defendants for a list status higher than Powell under declaratory judgment and ultra vires claims.  The City Defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion and Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the City Defendants’ and Powell’s motions for summary judgment. Perrin appealed.

The court first held the legislature waived immunity for dissatisfaction with the grading in §143.034(a) of the Texas Local Government Code, which permits an “eligible promotional candidate” who is “dissatisfied” with “the examination grading” to “appeal, within five business days, to the commission for review.” To the extent that Powell is relying on the UDJA to challenge “the examination grading” such is precluded due to the redundant remedy doctrine. Powell’s ultra vires claim is not dependent on the remedies so is permitted to move forward for prospective relief only, but since Powell sought a reevaluation of the promotion list, that is not prospective. The trial court erred in granting Powell’s summary judgment for retrospective relief to alter the list. conclude that the City Defendants’ counterclaim requesting declaratory relief did not rise to a justiciable level and therefore the district court lacked subject matter jurisdiction over the counterclaim. It is the promotional eligibility list that provided the rights and status of the parties as to their initial promotion to corporal. Whether Perrin was erroneously placed ahead of Powell on the promotional eligibility list does not affect the rights and status of the parties under that list because, on this record, there is no mechanism by which the expired list may be retroactively amended.  By providing a unilateral right of review only to officers, the Civil Service Act is not thereby permitting a declaratory judgment action through which the City Defendants may challenge the decision of the Director in making the list.  However, for the reinstatement list, the context of the statute makes clear that the reinstatement list is created by the demotion of officers who have “least seniority in a position” and that the list “shall” be “in order of seniority.” The court determined that “seniority” in section 143.085(a) refers to seniority in the corporal position, not seniority in the Department.  So, when multiple individuals are promoted to open vacancies from a promotional eligibility list at the same time and then demoted at the same time, “seniority” for the reinstatement list is determined by the order of the promotional eligibility list.

If you would like to read this opinion click here. Panel consists of Justices Goodwin, Kelly, and Smith. Memorandum Opinion by Justice Goodwin. Docket page with attorney information can be found here.

14th District Court of Appeals holds all elements of a circumstantial-evidence retaliation claim (including pretext) are jurisdictional, plus court lacked jurisdiction over Plaintiff’s discrimination claim

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Margaret Fields v. Houston Indep. Sch. Dist., 14-19-00010-CV (Tex. App.—Houston [14th Dist.] Oct. 15, 2020)

This is an employment discrimination and retaliation case where the Houston Court of Appeals (14th Dist.) affirmed the granting of the school district’s plea to the jurisdiction.

Fields enrolled as a teacher intern in the Houston Independent School District (“HISD”) alternative-certification program as a means of becoming a full-time teacher for HISD.  An alternative-certification committee served as the final decision-making authority.  It reviewed and evaluated Fields, who had difficulty with performance.   After exhausting several performance enhancement plans, the committee dismissed Fields from the program.  After receiving her right to sue letter, Fields sued for discrimination and later retaliation. HISD filed a plea to the jurisdiction, which was granted. Fields appealed.

The Fourteenth Court of Appeals first held Fields’ retaliation charge was factually related to her discrimination charge. Therefore, even though Fields did not file or amend her discrimination charge to include retaliation, she was not required to in order to bring suit.  Next, the court recognized NISD presented evidence of legitimate, non-discriminatory reasons for the discharge, which Fields was unable to rebut to establish pretext under her discrimination charge. Fields then argued her retaliation charge should stand because she is not required to establish pretext as a jurisdictional requirement because the jurisdictional requirement applies only to a prima facie case.   The court disagreed. When an employer presents jurisdictional evidence rebutting the prima facie case, the presumption of retaliation disappears.  The employee must present sufficient evidence of pretext to survive a plea to the jurisdiction.  All elements of a circumstantial-evidence retaliation claim are jurisdictional. Because Fields failed to present any evidence of pretext on the part of HISD, she failed to establish a waiver of immunity.  As a result, the plea was properly granted.

If you would like to read this opinion click here.  Panel consisted of Justices Tracy Christopher, Ken Wise, and Jerry Zimmerer.  Opinion by Justice Jerry Zimmerer.

 

 

U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

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U.S. 5th Circuit holds qualified immunity applies in university disciplinary hearings where the outcome depends on the credibility of a witness

Ralph Clay Walsh, Jr. v. Lisa Hodge, et al., 19-10785, 2020 WL 5525397 (5th Cir. Sept. 15, 2020)

This is an appeal from Walsh’s §1983 claim alleging a violation of procedural due process in a disciplinary hearing.

Walsh, a former university professor, was accused of sexual harassment by a student at a conference. The university hired an attorney who investigated the claim and concluded that the student’s claim was substantiated. The dean of the university recommended termination. Walsh appealed and was sent a letter containing the procedure for the appeal. During the appeal, the attorney who investigated the claim was questioned but not the student. Walsh was terminated, then filed a §1983 claim against the university and various professors and school administrators asserting he was not allowed to confront his accuser. The individual defendants moved for summary judgment on grounds of qualified immunity which was partially granted and partially denied. Defendants appeal the denial.

The 5th Circuit rested their analysis on a two-pronged test: 1) whether Walsh suffered a procedural due process violation as a matter of law, then 2) whether Defendants’ conduct was objectively unreasonable in light of clearly established law at the time of the incident. The 5th Circuit found the first prong to be satisfied as, even when balancing private and public interests, Walsh had a right to have his accuser present to answer questions and raise the issue of credibility. Regardless, the 5th Circuit did not find that there was clearly established law for procedures necessary to protect a professor’s interest in avoiding career destruction after being accused of sexual harassment.   The 5th Circuit goes on to acknowledge that its sister circuits, as well as federal regulatory agencies, are split on the matter. Therefore, “[b]ecause of…conflicting, inconclusive language in past cases, [the 5th Circuit] cannot find that Defendants ‘knowingly violate[d] the law.’” The 5th Circuit ultimately reversed the district court’s denial of the qualified immunity argument in the summary judgment motion and rendered judgment in favor of the individual Defendants.

If you would like to read this opinion, click here. Panel consists of Justices Davis, Jones, and Engelhardt.

First District holds county attorney could not bring suit against commissioner’s court for budget policies

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Hobbs, Williamson County Attorney v. Dan A. Gattis, et. al., 01-19-00025-CV (Tex. App. – Houston [1st Dist.], Oct. 15, 2020).

This is a declaratory judgment case where the First District Court of Appeals affirmed the dismissal of the County Attorney’s challenge to a commissioner court policy regarding the budget.

Hobbs, acting in his official capacity as the Williamson County Attorney, sued the Williamson County Judge and Williamson County Commissioners, all in their official capacities, seeking a declaratory judgment that certain policies and orders were void for exceeding the power of the Commissioners Court.  The County defendants filed a plea to the jurisdiction which was granted. Hobbs appealed.

Hobbs challenged a policy that appeared to limit the salaries of his employees, even though the budget allocated for his office had sufficient funds.  The County’s plea challenged the pleadings only and were taken as true. The County defendants argued that Hobbs had no authority to bring suit in his official capacity.  Since Hobbs was only complaining about budgetary issues, the defendants did not invade his elected sphere of control. However, the funds had been budgeted for the County Attorney’s office and Hobbs complained of the policies imposed on how those funds were spent (specifically regarding hiring and salary aspects of assistant county attorneys). A commissioner’s court has broad discretion on budgetary decisions, and such decisions are ordinarily protected from judicial scrutiny by the separation of powers doctrine. But it is limited by certain judicial controls. A commissioner’s court and county officers may not interfere with or usurp the duties delegated by the Texas Constitution and by statutes to independent county officials and their employees.  However, the live pleadings did not list a controversy where potential employees did not accept employment due to the limits or that any other employees were affected. Alleging the policies could hamper Hobb’s office is an allegation of an uncertain or contingent future controversy, not an allegation of a live controversy.  Further, the live pleadings do not show Hobbs, in his official capacity, suffered a distinct and individualized injury. Hobbs acknowledged in his pleading that the county attorney has no individual stake differing from that of other Williamson County elected officials since he is suing in his official capacity only.  A district court has certain constitutional supervisory controls of the commissioner’s court; however, those require an act that is illegal, unreasonable or arbitrary. The challenged policy does not necessarily reduce any employee salary as compared to the amount adopted in the budget. Given the broad budgetary discretion of the commissioner’s court, Hobbs failed to allege facts triggering the district court’s constitutional supervisory control. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Kelly, Goodman, and Countiss.  Opinion by Justice Kelly.

The Second Court of Appeals held that a plaintiff who resigns cannot prove an adverse employment action when the only evidence of constructive discharge was forthcoming investigation

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of North Tex. Sys. v. Lisa Barringer, No. 02-19-00378-CV (Tex. App.—Fort Worth September 10, 2020) (mem. op.).

In this discrimination case, the plaintiff sued the University for age discrimination after resigning from her position.  The Court of Appeals held that she had failed to provide sufficient evidence of constructive discharge for his resignation and dismissed the case.

The plaintiff was a University employee who was placed on paid administrative leave prior to an investigation related to her lack of preparation for a scheduled presentation wand inappropriate comments.  After being placed on paid administrative leave, she resigned.  After she resigned, she filed a claim with the EEOC/Texas Workforce Commission which issued a right to sue letter.  She filed suit and  University filed a plea to the jurisdiction. The trial court denied the plea and the University appealed.

An age discrimination claim under the Texas Commission on Human Rights Act (TCHRA) requires showing that the individual has suffered an adverse employment action.  Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).  Proof of constructive discharge, where an employee reasonably feels compelled to resign, can demonstrate an adverse employment action.  Baylor Univ. v. Coley, 221 S.W.3d 599, 604–05 (Tex. 2007).  “But potential disciplinary action, investigations into alleged work-place violations, or work-place criticisms are insufficient alone to cause a reasonable person to resign.”  Also, personality conflicts or arguments are insufficient to create proof of constructive discharge. The Court of Appeals held the plaintiff’s evidence was insufficient, reversed the denial of the plea, and dismissed the plaintiff’s case.

If you would like to read this opinion click here.   Panel consists of Justices Kerr, Birdwell, and Womack. Opinion by Justice Womack.

 

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Hightower.  Opinion by Justice Richard Hightower.

The First Court of Appeals to move forward with retaliation claim plaintiff must provide evidence of but-for causation

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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.

Corpus Christi Court of Appeals held plaintiff can circumvent TWC for retaliation claim so long as underlying claim is based on TWC complaint

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Donna Indep Sch. Dist.. v. Cynthia Castilla, 13-19-00395-CV (Tex. App.—Corpus Christi, August 13, 2020) (mem.op.).

In this employment discrimination and retaliation case, the plaintiff brought some claims that occurred outside of the required 180-day lookback under the Texas Labor Code but was able to bring a retaliation claim that was within the 180-day window even though the claim was not heard by the Texas Workforce Commission.

The plaintiff was a police officer with the Donna Independent School District who made multiple complaints against the School District and was later transferred and then terminated by the District.  While she was still employed by the District, but after the transfer, the plaintiff filed charges of discrimination for sexual harassment, age discrimination, and retaliation at the Texas Workforce Commission (TWC).  During TWC’s review, the District terminated the plaintiff.  The TWC issued a right to sue letter stating that TWC did not have jurisdiction because the plaintiff was outside the 180-day requirement when she filed at the TWC.  The plaintiff brought suit in the trial court including the TWC claims and an additional claim of retaliation related to her termination.  She did not amend her TWC complaint to include retaliation.  the District filed a plea to the jurisdiction, which the trial court denied. the District appealed. The District’s sole argument on appeal was that the trial court does not have jurisdiction because the plaintiff had not exhausted her administrative remedies. The Court dismissed all of the claims except the retaliation claims.

To present a claim under the Texas Labor Code for discrimination the claim has to be brought before the Texas Workforce Commission within 180 days of the last related discriminatory activity.  Tex. Lab. Code §§ 21.201(a), (g); 21.202.  All statutory requirements, including the 180 day period, are jurisdictional. Tex. Gov’t Code § 311.034.  The Court of Appeals held that the discrimination claims were not valid because the incidents that were the subject of the claim were alleged to have occurred more than 180 days before the claim. However, the retaliatory transfer claim occurred within the 180-day window. The Court also held that the retaliation claim was based on retaliatory conduct because of her other claims which were already being reviewed by the TWC.  The Court quoted “under both state and federal law, courts have held that a claim of retaliation for filing a charge of discrimination is sufficiently related to the charge of discrimination to exhaust remedies for the retaliation claim, even though the charge contains no reference to the alleged retaliation.”  Tex. Dep’t of Transp. v. Esters, 343 S.W.3d 226, 230–31 (Tex. App.—Houston [14th Dist.] 2011, no pet.). As a result, the plea was properly denied.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and Justices Longoria and Hinojosa.  Opinion by Chief Justice Contreras.

 

Austin Court of Appeals held that a plaintiff has to allege recoverable damages to waive governmental immunity for breach of contract under Chapter 271 of the Local Government Code.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Robert Lee Fitzsimmons, Jr. v. Killeen Indep. Sch. Dist., 03-19-00535-CV (Tex. App.—Austin, August 14, 2020).

In this governmental immunity case, the Austin Court of Appeals dismissed the case against the School District because the plaintiff failed to allege recoverable damages for breach of contract (Chapter 271 of the Local Government Code).

The plaintiff was a school teacher for the School District who was given the opportunity to resign after an accusation of “viewing inappropriate materials.”  The School District and the plaintiff entered into a “Settlement and Resignation Agreement” that included nondisclosure clauses to protect both the School District and the plaintiff.  The plaintiff later lost a job opportunity based on the allegations related to his prior position.  He sued the School District for breach of contract based on the Settlement Agreement.  The School District filed a plea to the jurisdiction arguing that its governmental immunity was not waived.  The trial court granted the School District’s plea to the jurisdiction.

To present a claim for breach of contract that waives immunity under Texas Local Government Code Chapter 271, a plaintiff has to allege that the contract in question is a contract “stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.”  Tex. Loc. Gov’t Code § 271.151.  Also, a claim has to include an allegation of recoverable damages.  Id. § 271.153.  The plaintiff did not allege recoverable damages, thus the Court dismissed the plaintiff’s claim.

If you would like to read this opinion click here.  Panel consists of Justices Goodwin, Kelly, and Smith.  Opinion by Justice Edward Smith.

Houston First Court of Appeals holds that a School’s participation in discovery does not waive its governmental immunity.

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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.

 

School District can raise immunity for first time on appeal says 13th Court of Appeals

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Josephine Martinez v. Mathis ISD, 13-18-00495-CV (Tex. App.—Corpus Christi, July 30) (mem. op.).

In this action for back wages, the Court of Appeals held that the plaintiff did not allege a waiver of governmental immunity and so reversed the trial court’s monetary judgment in favor of the plaintiff.

The plaintiff was an at-will employee of the school district.  After she terminated her employment, she sued the school district, pro se, for back wages arguing there was a discrepancy in her rate of pay.  The pro se plaintiff did not allege any specific cause of action or argue that the school district’s immunity had been waived.  The trial court awarded the plaintiff a portion of the back wages she requested.  Both the plaintiff and the school district appealed.  On appeal, the plaintiff argued for additional back wages.  The school district argued that its immunity had not been waived, an argument that was first brought at the appellate court.

Before a judgment can be ordered against a public entity, governmental immunity must be waived.  Governmental immunity determines whether a court has subject matter jurisdiction. The Court of Appeals held that subject matter jurisdiction, and governmental immunity can be raised at any time, including for the first time in the appellate court.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).  Finding no waiver of immunity present, the Court of Appeals reversed the trial court’s award and rendered judgment for the district.

If you would like to read this opinion click here. Panel consists of Justices Hinojosa, Perkes, and Tijerina.  Opinion by Jaime Tijerina.

 

Attorney fees awards in favor of a defendant are not an abuse of discretion where the plaintiff does not make a prima facie case of his claims.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Carl Frederick Rickert, III v. Kayla S. Meade and City of Bonham, 06-02-00002-CV (Tex. App.—Texarkana, July 30) (mem. op.).

In this § 1983 case on an attorney fees award, the Court of Appeals upheld the trial court’s grant of attorney fees in favor of the defendant City because the plaintiff did not establish even a prima facie case.

The plaintiff was terminated from his City employment after a co-worker filed a sexual harassment claim against him based on an allegedly consensual relationship.  The Texas Workforce Commission determined that the sexual harassment claim against the plaintiff was baseless.  The plaintiff sued the City under § 1983 asserting entitlement to a name clearing hearing.  The trial court dismissed the claim for lack of evidence and awarded attorney’s fees to the City.  The plaintiff appealed the attorney fee award.

In order for an attorney fee award to be upheld against a plaintiff in favor of a defendant, it has to be shown that “the plaintiff’s action was frivolous, unreasonable, or without foundation even though not brought in subjective bad faith.”  Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg, 434 U.S. at 421).  The plaintiff’s action was based on the lack of a name clearing hearing after his termination.  A terminated individual has the right to a name clearing hearing where the employee’s “good name, reputation, honor, or integrity” is questioned during a termination.  Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) In this case, the plaintiff provided no evidence that he was denied a name clearing hearing, or that he even requested one. Evidence was presented that he was provided a chance to be heard at a hearing prior to termination.  The Court of Appeals held this lack of evidence was sufficient to show that the trial court did not abuse its discretion.

If you would like to read this opinion click here. Panel consists of Chief Justice Morriss and Justices Burgess and Stevens.  Opinion by Ralph K. Burgess.