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.

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.

 

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.

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.

 

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.

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.

 

 

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.

 

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.

 

14th Court of Appeals holds 1) proof of causation necessary to maintain labor code disability discrimination & 2) plea was properly denied for breach of contract

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Norris Rogers v. Houston Community College, 14-18-00591-CV (Tex. App.—Houston [14th Dist.], July 14, 2020) (mem. op.).

This case contains two claims: (1) disability discrimination under Texas Labor Code Section 21.105; and (2) breach of contract under Chapter 271 of the Texas Local Government Code. The Court of Appeals reversed-in-part and affirmed-in-part the trial court’s orders and reinstated the contract claim.

The plaintiff, and adjunct electrical instructor, argued he was terminated by the College because of a disability which prevented him from performing carpentry work or general construction work.  He also argued a unilateral employment contract was created for employment.   The College filed a no-evidence summary judgment on the disability claim and a plea to the jurisdiction on the contract claim. The trial court granted both and Rogers appealed.

To establish a prima facie case of discrimination based on disability, a plaintiff must show that the plaintiff suffered an adverse employment decision because of the disability.  Donaldson v. Tex. Dept. of Aging & Disability Srvs., 495 S.W.3d 421, 436 (Tex. App.––Houston [1st Dist.] 2016, pet. denied).  The plaintiff did not establish he was terminated because of his disabilities.  During this analysis, the Court also discussed how a lack of causation in a no-evidence summary judgment argument can be presented.   The Court affirmed the trial court’s order dismissing the disability claims against the College.

Next, to establish a contract, and waiver of immunity, under Chapter 271 of the Texas Local Government Code the plaintiff must prove that the contract: (1) is in writing, (2) states the essential terms of the contract, (3) provides for goods or services for the entity; and (4) was properly executed for the entity.  The plaintiff presented evidence that a unilateral contract existed.  The College stated that its policies and procedures would not allow this type of contract, but the Court held that the policies presented did not sufficiently negate the contract could exist.  Because there was sufficient evidence from a jurisdictional standpoint that the contract could exist, the Court overturned the trial court’s order granting the plea to the jurisdiction.

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

 

When alleged harasser was placed on restrictions, then restrictions were removed five months later, the fact the employer believed it did not have time to respond to subsequent complaint is irrelevant says El Paso Court of Appeals

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County of El Paso, Texas v. Monique Aguilar, 08-19-00082-CV, (Tex. App – El Paso, March 18, 2020)

This is a gender discrimination/hostile work environment case where the El Paso Court of Appeals reversed-in-part and affirmed-in-part the denial of the County’s plea to the jurisdiction. [Comment: this is a 42-page opinion, so that is why the summary is longer than normal.]  The case presents a detailed thought process analysis under employment law, including prima facie element analysis and burden shifting.

Aguilar worked for the County in various positions for nearly twenty-four years.  She was holding the position of Facilities Manager when she complained to her supervisors and HR that she was paid substantially less than not only the male who previously held the position of Facilities Director (which was reorganized and formed in the Facilities Manager position) but also less than other similarly situated male coworkers.  She also raised the issue of pay disparity with the County Commissioner’s Court. She also complained she was harassed by a male co-worker.  The supervisor put restrictions on the co-worker in 2014, limiting contact with Aguilar and her staff. That restriction was lifted five months later, but according to Aguilar, the co-worker, Lucero, resumed his harassing behavior. When Aguilar obtained an email the supervisor wanted to discuss Lucero with her and her behavior in a meeting where he was present, she experienced an anxiety attack and eventually resigned. Aguilar brought suit under the Texas Commission on Human Rights Act (“TCHA”) under a constructive discharge theory. The County filed a plea to the jurisdiction, which was denied.

The court first went through numerous pages regarding the affidavits and determined the trial court did not abuse its discretion in considering Aguilar’s affidavit. Next, the court determined Aguilar was required to establish she was “treated less favorably than similarly situated members of the opposing class[.]” The County presented evidence that Aguilar did not hold the same job position,  duties and responsibilities, or requirements for education as the comparators she listed. The applicable test is not whether the positions are comparable in some respects; the test is whether the positions are “comparable in all material respects.” While Aguilar’s burden at the prima facie stage was not onerous, it did require, at a minimum, that she present evidence raising a fact issue on whether she was similarly situated to members outside her protected group who were treated differently. She did not present contradicting evidence as to two other managers, but did as to a third, Cruz. As a result, the plea should have been granted as to disparate regarding the first two managers, but was properly denied as to Cruz. As far as the harassment claim goes, County argues that Lucero’s comments did not create a hostile work environment because many of them were made to persons other than Aguilar. But those comments were made about Aguilar and were humiliating to her. In addition, because many of the comments were made to her staff and to contractors with whom she worked, they interfered with her ability to perform her job duties. Aguilar demonstrated that a disputed material fact exists concerning whether her work environment was objectively hostile or abusive. While the restrictions on Lucero were put in place, they were lifted five months later and he returned to his prior behavior.  While the County asserts it did not have time to respond to the return, Aguilar’s hostile work environment claim is not based solely on the final week of her employment, divorced from the years of harassing conduct that preceded that week. A reasonable person could conclude that this failure effectively communicated to Aguilar that Lucero would be permitted to once again humiliate Aguilar and interfere with her job performance. As to her retaliation charge, she asserted after complaining about Lucero, her supervisor sent her an email accusing her of inappropriate behavior in a meeting. When her supervisor emailed her to discuss “next steps” she took that to mean discipline of her, so she resigned. The totality of the circumstances surrounding Aguilar’s hostile work environment claim create a fact issue as to whether retaliation was committed by the County for reporting harassment.  However, no fact issue exists regarding Aguilar’s retaliation charge for reporting disparate pay.   In sum, the plea was properly denied as to some claims, but should have been granted as to others.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley and Justices Rodriguez and Palafox. Opinion by Justice Palafox. Docket page with attorney information can be found here.