A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

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A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Edinburg Consol. Ind. Sch. Dist. V. Ayala, No. 13-20-00590-CV (Tex. App.—Corpus Christi Dec. 9, 2021) (mem. op.).

In this appeal from a trial court’s denial of the district’s no evidence plea to the jurisdiction, the district argued that there was no evidence that the plaintiff applied for a new position at the district.  The Thirteenth Court of Appeals affirmed the trial court’s judgment on the no evidence plea to the jurisdiction holding that a no-evidence motion for summary judgment was the proper avenue after discovery for the district’s arguments.

The plaintiff worked for the district but was injured in 2013.  He returned to work, but was terminated in 2015.  He filed an employment law claim for his termination but did not follow up on the claim.  Then, the plaintiff alleges that he reapplied to work at the district in 2018 and was not hired.  He sued the district for employment discrimination based on his disability and national origin for not rehiring him.  The district argued that there is no evidence that the plaintiff reapplied.  The district filed a no-evidence plea to the jurisdiction and the trial court denied the plea.  The district appealed.

A plea to the jurisdiction is used to determine a court’s jurisdiction based on what is plead, a prima facie case, not to make a determination on fact issues.  To establish a prima facie case of discrimination, the employee must show: (1) he is in a protected class; (2) he was qualified for the position he applied for;  and (3) he was not hired.  Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017); Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).   For national origin discrimination, he also must plead that the district gave different treatment to a similarly situated applicant outside the protected class.  The plaintiff stated these elements in his pleading, but the district argued that he needed to do more than plead the elements and he had provided no proof that he had applied for the position.  As a “fair notice” state, the plaintiff does only need to plead facts or elements to show jurisdiction.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see TEX. R. CIV. P. 45(b).  The Court of Appeals upheld the trial court’s denial of the plea to the jurisdiction because the plaintiff had plead sufficient facts to move forward with jurisdiction, although the district does have the ability to file a no-evidence motion for summary judgment.

The court of appeals affirmed the trial court’s judgment and the case was sent back to the trial court.

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

Amarillo Court of Appeals holds fire marshal’s office employs firefighters who are entitled to civil service protection

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City of Amarillo, Texas, et al. v. Nathan Sloan Nurek and Michael Brandon Stennett, 07-20-00315-CV, (Tex. App – Amarillo, Nov. 18, 2021)

This is a civil service case where the Amarillo Court of Appeals affirmed in part and reversed in part a trial judgment holding the fire marshal’s office was entitled to civil service protection.

Plaintiffs sued the City and various officials trying to hold the Amarillo Fire Marshal’s Office (“FMO”) should be classified as a civil service position.  In the City, firefighters are classified positions, but the FMO is not classified.  As such, employees within the FMO are civilians who are not afforded civil service protections. The FMO performs fire prevention duties such as checking building plans, inspecting businesses, and investigating suspicious fires. FMO employees are certified by the Texas Commission on Fire Protection. Following a bench trial, the trial court entered a final order declaring that positions within the Amarillo FMO are civil service positions, but denied the promotional relief sought. The trial court ruled the firefighter’s association (“Association) was the necessary real party in interest, not the individual Plaintiffs and the claims were therefore precluded.

Both parties agree that the determination of whether a particular position is a “fire fighter” position depends on whether the position meets the definition identified in Texas Local Government Code section 143.003(4).  The City’s argument appeared to turn on whether the position was one of “fire suppression” and not other duties. The express language of section 419.032 distinguishes “fire protection personnel” from “fire suppression.”  The testimony established  FMO positions require substantial knowledge of firefighting. The trial court heard evidence that the FMO was moved within the Amarillo Fire Department in 1989, the FMO is part of the Fire Department for budgeting purposes, and the FMO is listed as part of the Fire Department within the City’s Organizational Structure. As a result, the trial court properly determined the position should be classified as a firefighter. Next, the City actively argued that the association lacked standing to participate in the case and Plaintiff’s agreed. The court did not see any basis for the trial court holding the association’s inaction established the defenses of laches, estoppel, or limitations. The trial court also made findings that the City proved that using non-classified employees in FMO positions was motivated by good faith, was more satisfactory to the public, and was based on more than monetary savings.  However, the standard requires that the City provide a good-faith reason to justify the use of non-classified personnel over civil servants, rather than assessing the qualifications of particular individuals to serve in those positions. Therefore, the City is not entitled to a good-faith defense for the use of non-classified personnel.   And while the court of appeals found the Plaintiff’s general relief was not precluded, the trial court did not consider the entitlement on the merits. As a result, certain relief matters were remanded.

Panel consists of Chief Justice Quinn, and Justices Parker and Doss. Affirmed, reversed, and remanded to trial court. Opinion by Justice Parker can be read here. Docket page with attorney information found here.

Notice of a termination is the date on which the 180-day clock starts for claims of employment discrimination under state law regardless of internal appeals of the termination.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Monte Alto I.S.D. v. Patricia Orozco, No. 13-21-00136-CV (Tex. App.—Corpus Christi Nov. 4, 2021) (mem. op.).

In this appeal from a trial court’s denial of the school district’s plea to the jurisdiction, the school district appealed that the trial court did not have jurisdiction because the plaintiff failed to exhaust her administrative remedies and thus did not waive the school district’s immunity as it relates to an employment discrimination claim.  The Thirteenth Court of Appeals reversed the trial court’s judgment because the plaintiff was outside the 180-day window for filing a suit after the allegedly discriminatory act.

The plaintiff sued the school district after being terminated.  The plaintiff received her notice of termination (nonrenewal) by letter on May 1, 2018.   Plaintiff requested a hearing on May 14, 2018, and then participated in a hearing on August 29, 2018, where the board voted to uphold the termination.  She filed her discrimination charge with the EEOC on February 25, 2019.  In the claim, she stated that the latest date of discrimination was on August 29, 2018, but she did not state there was a continuing act of discrimination. After receiving the right to sue letter, Plaintiff filed suit on February 10, 2020.  The school district filed a plea to the jurisdiction arguing that Plaintiff did not file her charge of discrimination within 180 days after her notice of termination on May 1, 2018.  The trial court denied the school district’s plea to the jurisdiction and the school district appealed.

For a political subdivision to have its immunity waived for an employment discrimination claim, the plaintiff must exhaust all administrative remedies.  City of Waco v. Lopez, 259 S.W.3d 147, 149, 154 (Tex. 2008).  To meet this requirement under state law, a plaintiff has to file the employment discrimination claim with the EEOC or the Texas Workforce Commission within 180 days of the alleged discriminatory employment action.  Tex. Lab. Code §§ 21.201(a), (g), 21.202(a).  The exhaustion of remedies is completed when the TWC/EEOC issues a right-to-sue letter.  Continuing employment discrimination can extend this deadline, but discrete acts of discrimination, such as a termination, is not considered a continuing action.  The court of appeals held that the discrete act of the termination (nonrenewal) of the plaintiff and the accompanying notice of the termination was the last discriminatory act that triggered the 180-day deadline and that the deadline was not extended by the internal hearings seeking to overturn the termination.  Because the plaintiff did not file her EEOC claim within 180 days after her notice of termination, she had not exhausted her administrative remedies or waived the school district’s immunity.  The court of appeals granted the plea to the jurisdiction and dismissed the claim.

The court of appeals reversed the trial court’s judgment and dismissed the claim because the plaintiff failed to file her employment claim with the EEOC in the time allotted for exhausting her administrative remedies.

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

 

Tyler Court of Appeals holds EEOC complainant’s deadline to file suit begins to run when his complaint is received by the EEOC, not when the appeal is perfected

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Gunter P. Coffey v. Texas Parks and Wildlife Department, 12-21-00015-CV, (Tex. App – Tyler, Oct. 6, 2021)

This is an employment discrimination, hostile work environment, and retaliation claim in which the Tyler Court of Appeals affirmed the trial court’s order granting the Texas Parks and Wildlife Department’s plea to the jurisdiction.

Coffey was employed by the Texas Parks and Wildlife Department (the Department).  Coffey submitted an intake questionnaire to the Equal Employment Opportunity Commission (EEOC) alleging a host of charges.  Coffey was later terminated. He received a “right-to-sue” letter from the EEOC. He then brought suit. The Department filed a plea to the jurisdiction, asserting, among other reasons, Coffey failed to file suit within two years of filing his EEOC discrimination charges. The trial court granted the plea and Coffey appealed.

Coffey contends that the two-year statute of limitations begins to run from the date that the charge is perfected, not the dates the relevant charges of discrimination were filed.  Under listed case law, the timeliness of the complaint shall be determined by the date on which the complaint is received by the EEOC.  The court noted the underlying record made clear the dates the complaints were filed and received by the EEOC.  Therefore, because Coffey filed this suit more than two years after the date his First and Second Charges were received by either the EEOC or TWC, the trial court properly granted the Department’s plea.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Affirmed. Memorandum Opinion by Chief Justice Worthen can be read here. Docket page with attorney information found here.

 

Since City’s plea to the jurisdiction only challenged non-jurisdictional facts, plea was property denied in breach of contract suit

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City of Del Rio v. Henry Arredondo, 04-20-00409-CV, (Tex. App – San Antonio, August 4, 2021)

This is a breach of contract suit where the Fourth Court of Appeals held that because the City’s plea only challenged non-jurisdictional facts, the plea was properly denied.

City hired Arredondo as its City Manager. The parties entered into an Employment Agreement, which provided Arredondo served “at the pleasure of the City Council.” The City Council later voted to terminate the Employment Agreement. Arredondo then sued the City, alleging the City Council did not obtain a majority vote to terminate his employment, which constituted a breach of contract claim. He also pled an alternative breach of employment contract claim. The City filed a plea to the jurisdiction, which was denied.

Section 271.152 of the Texas Local Government Code waives governmental immunity for the adjudication of certain breach of contract claims. The City asserts the contract did not alter the employment-at-will doctrine and the City complied with the contract. The crux of this appeal is whether the facts asserted by the City are “jurisdictional facts.”  Not all facts relating to the merits are necessarily jurisdictional facts. The at-will nature and city’s compliance with the contract, in this situation, were not jurisdictional facts, so the plea was properly denied.

Panel consists of Chief Justice Martinez, and Justices Chapa and Valenzuela. Affirmed. Memorandum Opinion by Justice Chapa can be read here. Docket page with attorney information found here.

 

San Antonio Court of Appeals held City park and airport police could proceed with declaratory claims to establish collective bargaining rights

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City of San Antonio and Erik Walsh, in his Official Capacity v. San Antonio Park Police Officers Association, et al, 04-20-00213-CV, (Tex. App – San Antonio, July 14, 2021).

This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (“SAPPOA”) sought declaratory relief for three distinct issues related to the legal classification of San Antonio’s park and airport police officers. The San Antonio Court of Appeals affirmed in part and reversed in part the City’s plea to the jurisdiction.

The SAPPOA argued that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the City of San Antonio (“City”) under chapters 174 and 143 of the Texas Local Government Code.  The court explained  Chapter 174 provides a limited waiver of immunity as follows: “This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.” Tex. Loc. Gov’t Code Ann. § 174.023.  SAPPOA clearly alleged a violation of their right to collectively bargain under Chapter 174. The court held that these factual allegations were sufficient to establish the subject matter jurisdiction of the court.

However,  SAPPOA did not allege or argue that chapter 143 provides for a waiver of immunity for their declaratory judgment claim. The court held  SAPPOA did not request a declaration concerning the validity of chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the City’s immunity with respect to their declaratory claim pursuant to chapter 143.

Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.

Panel consists of Chief Justice Martinez, and Justices Rios and Watkins. Reversed in part, Rendered in part, and Affirmed in part. Memorandum Opinion by Chief Justice Martinez can be read here. Docket page with attorney information found here.

Evidence that a decisionmaker knew about the report of illegal activity is required to prove a Whistleblower retaliation claim.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Houston Community College v. Sabrina Lewis, No. 01-19-00626-CV (Tex. App.—Houston [1st Dist.], June 29, 2021) (mem. op.).

In this appeal from a trial court’s holding denying the college’s plea to the jurisdiction on racial discrimination claim and Whistleblower claim, the First District Court of Appeals reversed the trial court’s judgment and dismissed the case because the plaintiff provided insufficient evidence of discriminatory intent in her termination and failed to provide evidence of causation related to the Whistleblower retaliation claim because the individuals responsible for her termination did not have knowledge of her report of alleged illegal activity before her termination.

The plaintiff sued the college after she was terminated for cause from her employment.  The plaintiff was the Director of Veterans Affairs Department for the college and is an African-American woman.  The plaintiff argued that she was terminated either due to her race or because she made a report of illegal activity to the state and federal Veterans Affairs agencies.  The plaintiff sued the college for racial discrimination and Whistleblower retaliation.  The college argued that there was insufficient evidence of racial discrimination because she was replaced by an African-American and there was no showing she was treated differently than other similarly situated employees.  The college also argued that the plaintiff could not prove causation under the Whistleblower claim because there was no evidence that the individuals involved in the termination knew of the report of illegal activity.  The trial court denied the college’s plea to the jurisdiction related to the claim and the college appealed.

To establish a prima facie case of race discrimination, a plaintiff must show that the plaintiff: (1) is a member of a protected class, (2) was qualified for their position, (3) suffered an adverse employment action, and (4) that others similarly situated were treated more favorably than the plaintiff or the plaintiff was replaced by someone who is not in the same protected class. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).  The plaintiff, in this case, failed to establish that her termination was based on any discriminatory intent.  Evidence that a subordinate employee had made a derogatory remark was insufficient to show discriminatory intent and the employer established reasonable bases for the plaintiff’s termination. Also, her replacement was also African-American.

To establish a claim under the Whistleblower Act, an employee must establish that but for a good faith report of illegal activity, the employer would not have taken an adverse employment action against the employee.  Office of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).  The plaintiff failed to produce evidence that the individuals responsible for her termination knew about her report of illegal activity to the Veterans organizations at the state and federal level.  This failure meant the causation prong of Whistleblower claims was not met.  The court discussed without deciding whether or not the “conduit” or “cat’s paw” theory of liability could be extended to Whistleblower retaliation claims.

The court of appeals reversed the trial court’s denial of the college’s plea to the jurisdiction and dismissed the case because insufficient evidence of either claim was provided.

If you would like to read this opinion click here.   Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.  Opinion by Justice Veronica Rivas-Molloy.

U.S. Fifth Circuit holds former police officer failed to establish same-sex sexual harassment by supervisor even under recent Bostock decision

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Brandy Newbury v City of Windcrest, Texas, 20-50067 (5th Cir. March 22, 2021)

This is an employment discrimination case where the U.S. Fifth Circuit Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brandy Newbury was a police officer within her first year of employment with the City. Newbury asserted during the first year she was sexually harassed by a female supervisor, Officer Jaime because Jaime was rude to her and confrontational. The City hired an outside investigator who determined Jaime was rude, but the actions did not constitute sexual harassment. Later on, during the first year, Newbury asserted she heard a rumor another officer was following her trying to catch her violating City policy. She reported her belief that was occurring, but nothing was done.  Finally, Newbury asserts the City was secretly recording her in her home by remotely activating her body-worn camera. While the manufacturer testified the cameras could not be remotely activated that way, Newbury continued to assert a §1983 claim for invasion of privacy. However, Newbury admitted she never saw a recording of herself taken and based her belief on the fact a red light on her camera would come on by itself.   Newbury asserted the treatment was so bad she felt forced to resign, but then later asserted she was terminated. The City filed a motion for summary judgment, which was granted. Newbury appealed.

The Fifth Circuit started by noting Title VII is not a general civility code for the American workplace.  Contrary to Newbury’s assertions, the panel distinguished this case from the recent U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) holding that while the Bostock decision “expanded the groups of individuals protected by Title VII, it in no way altered the preexisting legal standard for sexual harassment.” The panel held Newbury did not receive an adverse personnel action as a supervisor’s “rudeness” was insufficient to constitute an adverse action. Additionally, the rude actions complained of did not rise to that “greater degree of harassment” that would cause a reasonable person to resign. Additionally, a shift-change, even one which has an officer on it the plaintiff does not like, is not an actionable claim. Newbury failed to provide sufficient evidence that comparable men and women were treated differently.  Newbury failed to establish a prima facie case of retaliation since no adverse employment action occurred.  Further, the evidence demonstrated she resigned and was not terminated. Therefore, all of her Title VII claims failed.  Finally, Newbury failed to establish the body-worn cameras actually recorded her or that, even if she had produced recordings, there was a policy, custom, or practice which would have caused the recordings.  As a result, the trial court properly granted the City’s summary judgment motion.

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

13th Court of Appeals holds remainder of employment contract was consequential damages, not amounts due and owed, therefore no waiver of immunity exists for breach

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Edinburg Housing Authority, Dr. Martin Castillo, Gabriel Salinas, Simon Garza, Marissa Chavana, and Juan Guzman v. Rodolfo Ramirez, 13-19-00269-CV, (Tex. App – Corpus Christi Feb. 25, 2021)

This is an interlocutory appeal from the denial of a housing authority’s motion to dismiss on jurisdictional grounds in an employment dispute. The Corpus Christi Court of Appeals reversed the denial and dismissed the case.

Ramirez signed a three-year employment contract with the Housing Authority to be its Executive Director and was extended for another three years, to end in 2021. However, in 2018 the board of the housing authority terminated Ramirez. Ramirez sued the Authority as well as individual commissioners (hereinafter “Authority Defendants”) for breach of contract, as well as constitutional due course of law, equal protection, and declaratory judgment relief. The Authority Defendants filed a motion to dismiss under Rule 91a citing a lack of jurisdiction. The trial court denied the motion and the Authority Defendants appealed.

The court first decided that, contrary to the individual commissioner’s assertion, the court did have interlocutory jurisdiction to hear the appeal involving them individually as well as in their official capacities. Section 51.014(a)(5) of the Texas Civil Practice & Remedies Code allows interlocutory appeal for the denial of a motion for summary judgment based on an individual’s immunity.  While the underlying motion was a motion to dismiss as opposed to an MSJ, the court determined they are treated the same for purposes of §51.014(a)(5). Next, suits brought pursuant to a Texas constitutional provision are limited to equitable relief and do not allow a claim for monetary damage.  This applies to the entity as well as individual employees and officials. Ramirez’s constitutional claims should have been dismissed because they sought only the recovery of monetary damages. Next, to trigger the waiver of immunity for contract claims under Tex. Loc. Gov’t Code § 271.152, a plaintiff must claim damages within the limitations of the chapter, i.e. balances due and owed, but not paid. Consequential damages are specifically excluded. Ramirez does not claim that the Housing Authority and its Commissioners failed to pay him for work he completed as the Housing Authority’s Executive Director. Rather, Ramirez seeks recovery of the wages he would have earned had his employment contract continued through the end of its extended term. These future wages would be considered “lost profits,” which are “consequential damages excluded from recovery.”  As a result, no jurisdiction exists as to the contract claim. The court then determined Ramirez’s constitutional claims against the commissioners, individually, cannot be brought against them as private actors. Because the individual commissioners are not the State or an entity thereof, these claims cannot stand. Further, Ramirez signed a contract with the Authority, not the individual commissioners. As a result, the commissioners cannot be individually sued for breach of contract. Finally, Ramirez had the opportunity to amend and failed to correct any defects. As a result, he is not entitled to amend.  Finally, the court determined the Authority Defendants were entitled to attorney’s fees and remanded to the trial court for such a determination.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, and Justices Hinojosa and Silva. Reversed and remanded. Opinion by Justice Hinojosa. Docket page with attorney information found here.

An employer cannot discriminate against an individual based on their intent to become pregnant

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

South Texas College v. Arriola, No. 12-19-00222-CV (Tex. App.—Corpus Christi  Feb, 2021).

In this appeal from a trial court’s holding that being able to become pregnant is a protected class under the Texas Commission on Human Rights Act (TCHRA), the 13th Court of Appeals affirmed the trial court’s judgment because federal case law related to Title VII has held that being able to become pregnant is a protected class under sex discrimination protections.

The plaintiff sued her employer claiming her employer discriminated against her after she stated that she was trying to become pregnant.  She alleged she was harassed and discriminated against after making this statement by her co-workers and supervisors and was terminated four months after stating she was trying to become pregnant.  Her employer alleged that intending to become pregnant is not a protected class and therefore she had no case under the TCHRA.  The trial court denied the employer’s plea to the jurisdiction related to this issue and the employer appealed.

The TCHRA prohibits sex discrimination based on “pregnancy, childbirth, or a related medical condition.”  Tex. Labor Code § 21.106(a).  The purpose of the TCHRA is to enact the policies of federal anti-discrimination laws such as Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.  Due to this purpose, federal case law guides the analysis, especially in cases such as this one where the issue has not been previously decided by Texas courts. Federal cases involving the Pregnancy Discrimination Act have held that the ability or intent to become pregnant are protected classes and discrimination against these individuals is prohibited sex discrimination.  Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991).  The Court of Appeals affirmed the trial court’s holding that the intent or ability to get pregnant is a protected class as guided by federal case law.

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

 

Plaintiff must prove the TWC’s decision is unreasonable, arbitrary, and capricious to overturn a denial of unemployment benefits. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Van Deelen v. Tex. Workforce Comm’n, No. 14-18-00489-CV (Tex. App.—Houston [14th]  January 26, 2021) (mem. op.).

In this appeal from a trial court’s judgment granting the TWC’s summary judgment motion on an unemployment benefits case, the 14th Court of Appeals affirmed the trial court’s judgment because there was substantial evidence of the plaintiff’s termination being caused by employment misconduct.

The plaintiff, a teacher, sued the Texas Workforce Commission and the School District (his employer) when he was denied unemployment benefits because his termination was for misconduct.  The evidence presented was that the plaintiff was terminated from the school district for: (1) assault of a supervisor; (2) misconduct toward school staff and students; and (3) misrepresentation on his employment application.  After the plaintiff was terminated, he applied for unemployment compensation from the Texas Workforce Commission (TWC).  A TWC Appeal Tribunal held that the plaintiff was terminated for mismanagement of a position of employment and was therefore not entitled to unemployment compensation.  The full TWC affirmed the decision of the tribunal.  The plaintiff appealed to the trial court, which upheld the decision of TWC and rendered summary judgment for TWC and the school district.  The plaintiff appealed.

Section 201.012 of the Texas Labor Code provides for denial of unemployment compensation by the Texas Workforce Commission if the employee is terminated for misconduct.  The Court reviews a TWC unemployment compensation decision for whether the decision is based on substantial evidence. See Tex. Lab. Code § 212.202(a); McCrory v. Henderson, 431 S.W.3d 140, 142 (Tex. App.—Houston [14th Dist.] 2013, no pet.).  To reverse a decision of the TWC on unemployment benefits, the plaintiff has the burden to show that the TWC’s determination is not supported by substantial evidence.  See Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998).   The primary issue is whether the evidence considered by the TWC reasonably supported the decision of the TWC, and the decision may only be overturned if the decision is unreasonable, arbitrary, and capricious.   The Court of Appeals held that the evidence of misconduct was sufficient to uphold the TWC’s decision even though there was evidence contrary to the TWC’s decision.

If you would like to read this opinion click here.   Panel consists of Justices Bourliot, Zimmerer, and Spain.  Opinion by Justice Jerry Zimmerer.

 

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.