Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions


Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).

This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code.  Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.

Fratus’ claims for declaratory relief centered only on past allegations.  As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.”  Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations.  The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act.  However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson.  The attorney listed for Fratus is Laurence Watts.  The attorneys listed for the City are Tyrone Cooper and Sharae Reed.

U.S. Supreme Court holds EEOC charge filing process is mandatory, but not jurisdictional


Fort Bend County v Davis, 18-525, (U.S. June 3, 2019).

Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.  After several years of litigation, Fort Bend raised the issue of the trial court’s lack of jurisdiction over the religious discrimination claim because she did not properly file a charge with the EEOC. The trial court agreed and dismissed the claim. The 5th Circuit Court of Appeals reversed and the County appealed.

The U.S. Supreme Court held the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But not all mandatory rules are jurisdictional. Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule.

GINSBURG, J., delivered the opinion for a unanimous Court. If you would like to read this opinion click here.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.


  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.


  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.


  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.


  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.


  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.



  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.


  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.


  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Order granted County’s plea to the jurisdiction reversed by 13th Court of Appeals in Whistleblower Act case


Leticia Perez v. Cameron County and Juan A. Gonzalez 13-17-00581-CV (Tex. App. – Corpus Christi & Edinburg, November 15, 2018).

This is a Texas Whistleblower Act case where the Thirteenth Court of Appeals reversed and remanded the order granting the County’s plea to the jurisdiction.

Perez worked as a deputy clerk in the Cameron County Clerk’s Office (“CCCO”). Perez asserts she had witnessed the elected clerk, Rivera, give kickbacks to CCCO vendors. She reported her concerns to the district attorney’s office and the FBI. Later, CCCO was audited for the problems which were the subject of Perez’s report to the district attorney and the FBI. Rivera allegedly “began a campaign of retaliation” against Perez which she believed was due to the report and her refusal to support Rivera’s successor. Perez filed a grievance against Rivera, who later terminated her. Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. She also brought suit for negligence against the county assistant attorney who advised her to file a grievance.  The County filed a plea to the jurisdiction, which was granted. Perez appealed.

First, Perez did not file a grievance after her termination, but the County’s grievance procedure was applicable only to active employees, not former employees. Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the procedure is not part of the required exhaustion of administrative remedies. The court held a terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees. Perez’s second point of error essentially stated that she properly plead a good faith reporting. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding “improper and illegal contracts” to CCCO’s vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in “kickbacks and contract rigging.”  Such meets the required elements for bribery and abuse of official capacity, which are both penal provisions. The court held Perez sufficiently alleged a good faith report of a violation of the law. Finally, Perez argued that the trial court accidentally dismissed her claims against Gonzalez (the attorney) as part of its ruling on the County’s plea to the jurisdiction. After granting the plea as to the County, the order then provided, “all requested relief not be granted herein is hereby expressly DENIED.” However, this unambiguous language does not finally dispose of Perez’s claims against Gonzalez. Because the order did not expressly dispose of Perez’s claims against Gonzalez or include a clear and unequivocal finality phrase, it did not dismiss those claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Contreras and Justice Benavides. The attorney listed for the County is Juan A. Gonzalez. The attorney listed for Perez is Javier Pena.


Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals


Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

Texas Supreme Court holds standards in same-sex discrimination cases are distinctly different than opposite-sex standards


Alamo Heights Independent School District v Catherine Clark, 16-0244, — S.W.3rd – (Tex. April 6, 2018).

This is a workplace same-sex discrimination, harassment and retaliation case where the Texas Supreme Court held that while the actions complained of were vulgar, they were not motivated by an illegal purpose. Warning, this is a 66-page majority opinion. So, the summary is a bit long.

The Alamo Heights Independent School District (“AHISD”) employed Catherine Clark as a coach.  Clark asserts her fellow female coach, Monterrubio, began sexually harassing her by making continuous comments about her body. Clark filed a charge of discrimination with the EEOC.  The principal placed Clark on an intervention plan. Monterrubio was transferred to another campus. However, Clark was ultimately terminated and filed suit. AHISD filed a plea to the jurisdiction which was denied. At the intermediate court of appeals, the panel held the high frequency of the non-severe comments nevertheless created a hostile environment centered around Clark’s gender and affirmed. Summary found here. The Texas Supreme Court granted review.

The facts take up a large section of the opinion. However, the key factual points of note are that Monterrubio would often comment about Clark’s boobs and appearance. Moterrubio would also comment about her own sex life to male and female employees, including sexual escapades involving three men in three nights. She would send vulgar cartoons intended to be humorous.  The Court noted the multitude of other events were not sexual in nature, but were merely rude or crass. Monterrubio’s behavior was the same whether it was addressed to a male, female, parent, teach or student. AHISD investigated Clark’s complaints each time, either at the campus level or district level. At one point the district did transfer Monterrubio to a different campus. However, Clark continued to have personality conflicts with other employees and her performance was continuously documented as being low. AHISD eventually terminated Clark.

The Court went through a very detailed analysis of same-sex harassment standards under Title VII and the Texas Commission on Human Rights Act (“TCHRA”). Citing the seminal case of Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held Title VII’s protection against workplace discrimination “because of . . . sex” applies to harassment between members of the same gender. The Court recognized same-sex discrimination cases are more complicated because of their nature. In addition to sexual desire, the Court noted a same-sex case can be established by showing general hostility to a particular gender in the workplace or direct comparative evidence of treatment of both sexes. However, all of the methods require conduct to have more than offensive sexual connotations, but to be discriminatory because of the gender.

The Court stressed and restressed that the context of the workplace and the individual acts is critical to an analysis of the sexual desire method. Clark never alleged, and no evidence established, Monterrubio was homosexual and none of the contexts demonstrate any sexual desire towards Clark, so the sexual desire method was disposed of. Next the Court noted there was no evidence of a general hostility towards women. None of the record “even hints” that Monterrubio’s behavior, characterized as mistreatment of men and women alike, evinces hostility towards women in the workplace. Finally, the Court noted there was no evidence of a comparative discrimination. The Court held comments about gender-specific anatomy, alone, does not create an inference of harassment.  Clark made over 100 wide ranging complaints about Monterrubio and only a handful were about gender-specific anatomy. Focusing “only on gender-specific anatomy and ignoring motivation is legally unsound and is a misreading of Oncale.” Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.  Motivation, informed by context, is the essential inquiry. Under the retaliation claim, the Court held that permitting a retaliation case, predicated on a but-for analysis, to proceed to trial when the prima facie case has been rebutted and no fact issue on causation exists “defies logic.”  To qualify as a protected activity, complaining of harassment is not enough. The complainer must show some indication gender is the motive.  Therefore, none of Clark’s internal complaints constitute protected activity. However, the EEOC complaint does qualify as protected. The TCHRA does not protect employees from all forms of retaliation, only those actions which are materially adverse. The only actions taken against Clark which qualified was placing her on an intervention plan and the eventual termination. However, Clark failed to establish causal link between either of these actions and her EEOC complaint. Eight months elapsed between the EEO charge and recommendation for termination. Such is too long in this situation. Further, nothing shows the stated reasons for Clark’s termination were false. It is undisputed Clark failed to follow lesson plans, failed to maintain student grades properly and had low performance reviews. An employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known pre-existing issues. As the jurisdictional analysis for the plea requires a full analysis of the factual issues, and Clark failed to carry her burden, the plea should have been granted.

The Majority’s opinion spends the last several pages responding to the dissent’s analysis (found here), calling the legal theories flawed and the listing of facts a distortion. The Court held the purported harassment is “repugnant and unacceptable in a civilized society. But we cannot step beyond the words of the statute…”  Plaintiff’s claims were therefore dismissed.

If you would like to read this opinion click here. JUSTICE GUZMAN delivered the opinion of the Court, joined by CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE JOHNSON, JUSTICE DEVINE, and JUSTICE BROWN. JUSTICE BOYD filed a dissenting opinion, in which JUSTICE LEHRMANN joined. JUSTICE BLACK did not participate.

Ex-employee failed to allege she was qualified for her position but court held she was entitled to amend in discrimination/retaliation case


City of Granbury v. Christine Willsey 02-17-00343-CV (Tex. .App. — Fort Worth, March 15, 2018)

This is an age/sex discrimination and retaliation case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the order denying the City’s plea to the jurisdiction.

Willsey worked for the City for over seventeen years, including nine years as a police officer and almost nine years as a public works inspector.  In 2016 the City eliminated her inspector position but reassigned her to be a permit clerk. Three days after she inquired as to how long before her retirement would vest, the City terminated her. The City asserts the inspector as well as the permit clerk position were eliminated and absorbed into the existing number of employees. The City filed a combined answer/plea to the jurisdiction. The trial court denied the plea. The City appealed.

The court went through a detailed point-by-point prima facie analysis. To be successful in an age discrimination claim a plaintiff must plead that she was either (1) replaced by someone outside the protected class, (2) replaced by someone younger, or (3) otherwise discharged because of her age. Willsey did not plea or establish she was qualified for the inspector position, only that she was eliminated. Simply because she was an inspector for nine years does not equate to her continued qualifications for the position. The same goes for her sex discrimination claims. Under the retaliation claims, Willsey asserts that the City pursued her after her termination by “making up false accusations against her and seeking criminal charges against her” for stealing records, interfering with her future employment. However, the court responded “[e]ven construing Willsey’s pleadings liberally in her favor, we are left to guess what the protected activity is that Willsey participated in prior to her termination that the final decisionmaker for the City was aware of and the causal link between that protected activity and her termination.” However, the court then analyzed whether the lack of pleading sufficiency could be cured by allowing her the ability to amend. Because this is a reduction-in-force case rather than a true replacement case, and the City’s arguments focus on a replacement case, it has not established an amendment would be futile. As a result, it remanded the case to allow the trial court to allow an amendment after some level of discovery has occurred.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Kerr and Justice Pittman. The attorney listed for Willsey is Christopher S. Medlenka. The attorney listed for the County are Fredrick ‘Fritz’ Quast.

14th Court of Appeals holds employee does not have to file TWC charge of retaliation if the employee asserts retaliation for filing discrimination charge


Metropolitan Transit Authority of Harris County, Texas v. Viola M. Douglas 14-17-00176-CV (Tex. App— Houston [14th Dist.] February 27, 2018)

This is an employment discrimination and retaliation case where the 14th District Court of Appeals affirmed the denial of the employer’s plea to the jurisdiction.

Douglas is a lieutenant with the Metro Police Department (“Metro”). She applied for one of two available captain positions. Metro had procedures to use an outside agency to do competency assessments of candidates, but the Chief, at the time, decided to use a five-person panel of Metro employees. The panel scored Douglas the highest of the candidates. The Chief then interviewed the candidates and promoted both male candidates. Douglas was not promoted. Douglas filed a discrimination charge with the Texas Workforce Commission Civil Rights Division (“TWC”) but after 180 days without a right-to-sue letter, Douglas filed suit. After her charge was filed, Douglas asserts the incoming Chief (who was a female) had her performance review lowered. So, she added a retaliation charge to the suit. Metro filed its plea to the jurisdiction, which the trial court denied.

An appeal is moot when there is no longer a live controversy between the parties and appellate relief would be futile. Live controversies exist so the claims are not moot. An adverse employment action in the context of a retaliation claim is not limited to conduct that constitutes ultimate employment decisions. Actionable conduct includes any actions that a reasonable employee would find materially adverse. A downgrade of an employee’s performance evaluation may constitute an adverse employment action if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. As a result, Douglas jurisdictionally asserted an adverse employment action. Douglas argues she was not required to exhaust her administrative remedies because the trial court has ancillary jurisdiction over retaliation claims that grow out of an earlier discrimination charge. The court analyzed the different U.S. Supreme Court opinions on this type of argument. Ultimately, it held that a plaintiff cannot rely upon a continuing violation theory for retaliatory conduct which occurred prior to the original charge, but when the retaliatory conduct is allegedly in response to the original charge (i.e. retaliation grows out of a discrimination charge filed), the plaintiff need not exhaust a new set of administrative remedies. As a result, the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Jamison, Busby and Donovan. Justice Jamison delivered the opinion of the court. The attorney listed for Douglas is Linda D. King. The attorney listed for Metropolitan Transit Authority is Daniel Nicholas Ramirez and Hao Pham Le.

Austin Court of Appeals holds ex-professor properly alleged disability and age discrimination claim even where there is no legal obligation to renew a term contract



Texas State University v. Dr. Kathleen Quinn 03-16-00548-CV (Tex.App—— Austin, Texas November 29,2017)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment-discrimination dispute where the Austin Court of Appeals affirmed the denial.

Quinn accepted an “emergency hire”  professor position for the University’s doctoral nursing program when it was just starting the program. When the University made the position permanent, Quinn applied.   She was  had progressive and severe nerve damage to her hands and feet. The pain in her feet made walking difficult. She requested an accommodation while in the temporary position, but nothing was done. The University did not hire Quinn and did not renew her contract the following year. She sued the University claiming disability and age discrimination and retaliation. She cast her case against the University as one coming within the terms of the Texas Labor Code section 21.051. The University filed a plea to the jurisdiction, which was denied. It appealed.

The court held “[c]ontrary to the University’s argument, Quinn discharged her pleading requirement in her amended petition by asserting in minute detail the facts supporting her discrimination and retaliation claims. [she] filed a lengthy fact-studded response in which she marshaled evidence in support of each contested element of her discrimination and retaliation claims.”  Quinn brought forward evidence that she was qualified for the job she had and for the post she sought. Apparently satisfied with her qualifications, the University kept her on for two years in “emergency hire” status. The University argued because there is no legal obligation to renew a term contract, as a matter of law no “adverse action” can occur.  However, the court declined to make that holding as a bright line rule. Quinn established she was replaced by a non-disabled, younger female. She also complained to her employers about the failure to accommodate her disability, which can form the basis of her retaliation claim. As a result, the plea was properly denied.

If you want to read the opinion, click here. The panel consists of Justices Puryear, Field and Shannon. Justice Shannon delivered opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

Notice of non-renewal letter triggered date for EEOC complaint filing, not the date internal grievance was completed says San Antonio Court of Appeals


Alamo Community College District d/b/a Alamo Colleges v. Douglas Ryan 04-17-00196-CV (Tex.App– San Antonio, Texas November 1, 2017)

This is an interlocutory appeal in an employment discrimination case where the San Antonio  Court of Appeals reversed the denial of the District’s jurisdictional challenge and dismissed the Plaintiff’s claims.

Ryan was a full-time probationary faculty member at Northwest Vista College, which is part of the Alamo Community College District (“District”). In July 2012 Ryan was informed his contract would not be renewed based on performance and disciplinary issues. However, the letter stated Ryan was being offered a “terminal year contract” for the 2012-2013 academic year. The letter advised that if Ryan accepted the terminal year contract his employment would cease Spring of 2013. Ryan accepted the terminal year but appealed the non-renewal. He lost the administrative appeal and filed a complaint with the EEOC on January 31, 2013, then sued after receiving his right-to-sue letter. The District filed a summary judgment asserting Ryan failed to file an EEOC charge of discrimination within 180 days of the adverse employment action, specifically the July 2012 notice of non-renewal. Ryan asserted the date of adverse action was the loss of his administrative appeal in September 2012. The order was granted-in-part and denied-in-part. The District filed this appeal.

Ryan asserted the June 28, 2012, letter was merely a “proposal” or a “notice of an intended adverse action.” Ryan argued because he grieved the notice to the chancellor, “[t]he action did not become an adverse action until the Chancellor denied his grievance on September 27, 2012.” An unlawful employment practice occurs “when a discriminatory employment decision is made—not when the effects of that decision become manifest in later events.” The “180-day limitations period in the TCHRA begins ‘when the employee is informed of the allegedly discriminatory employment decision.’” There was nothing tentative or preliminary about the language in the June 2012 letter. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made. The trial court denied the District’s motion for summary judgment as to Ryan’s contention that the District prevented him from being employed by any other college in the District. Ryan argues this claim did not accrue when he received notice of the employment decision and the dean acted in an ultra vires manner by including it in the letter. However, the dean simply notified Ryan of the District Board of Trustees’ policy regarding ineligibility for rehire. Thus, Ryan’s ineligibility for an adjunct position throughout the District was a decision made by the Board of Trustees and was an automatic consequence of the non-renewal. As a result, the deadline was the same date as the non-renewal. The record conclusively established the trial court did not have jurisdiction and the motion should have been granted in full.

If you want to read this opinion, click here. The panel consists of Justice Barnard Justices, Martinez, and Chapa. Justice Luz Elena D. Chapa delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

Three years between protected activity and failure to renew contract was too long to establish a causal connection in retaliation case.


Latasha Rose v. Houston Independent School District 14-16-00687-CV (Tex.App—Houston [Dist. 14] October 19, 2017)

This is a retaliation in employment case where the 14th District Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

Rose was the Magnet Coordinator at HISD’s High School for Law Enforcement and Criminal Justice (“HSLECJ”). At the beginning of the school year, Rose received an email from the school’s principal stating that the school was denying admission to a student with disabilities. Rose forwarded the email to the student’s mother. Five weeks later, HISD transferred Rose to a different high school. Rose filed an EEOC charge for retaliation. HISD eliminated Rose’s position as part of a districtwide reduction in force (“RIF”) and therefore did not renew Rose’s one-year contract. Rose did not seek judicial review of the Commissioner’s decision which upheld the RIF. Rose instead filed a separate civil suit against HISD, which was dismissed. Rose filed another charge of discrimination with the EEOC which became the present lawsuit. HISD filed a combined plea to the jurisdiction which the trial court granted. Rose appealed.

Rose presents no direct evidence that HISD retaliated against her. Thus, to avoid dismissal on HISD’s jurisdictional plea, Rose was required to present circumstantial evidence establishing a prima facie case of retaliation. “The crucial element of a charge of discrimination [or retaliation] is the factual statement contained” in the administrative complaint. The charge must contain an adequate factual basis so that it puts the employer on notice of the existence and nature of the charges.  The court first determined TCHRA’s anti-retaliation provision applies to an employer’s decision to not hire a prospective employee. It speaks in terms of “a person” not an employee. However, the Labor Code indicates that an employer’s alleged decision to hire someone other than the complainant does not constitute an unlawful employment practice. Nothing in the record indicates HISD deviated from its customary practices or utilized the RIF improperly. Critically, the years-long span between her 2010 protected activity and HISD’s failure to hire Rose in November 2013 “is too long to establish that there was a causal connection.” As to Rose’s constitutional claims, she was unable to establish a protected property or liberty interest as she had not continuing contract. As a result, her claims were properly dismissed.

If you want to read this opinion click here. The panel consists of Justice Boyce, Justice Donavan and  Justice Jewell. Justice Kevin Jewell delivered the opinion of the court. To see the docket page listing attorneys click here.

TxDOT former employee failed to establish disability discrimination or retaliation claims


Melissa K. Ferguson v. Texas Department of Transportation, 11-15-00110-CV (Tex. App. – Eastland, August 31, 2017).

This is an employment disability discrimination and retaliation case where the Eastland Court of Appeals affirmed a judgment in favor of the employer.

Ferguson was employed with the Texas Department of Transportation (“TxDOT”) as an account specialist at the time she was terminated. Prior to termination, Ferguson was diagnosed with severe clinical depression and requested an accommodation via transfer away from her current supervisors. Ferguson’s job duties included paying vendor invoices and providing customer service.  Ferguson sued alleging disability discrimination and a failure to accommodate. TxDOT filed a plea to the jurisdiction and a combined traditional and no-evidence motion for summary judgment. After the trial judge recused himself, a retired judge presided over the hearing and granted TxDOT’s summary judgments. Ferguson appealed.

The record reflected a tense working relationship between Ferguson and her supervisors for almost a year. HR warned Ferguson she needed to improve communications with her supervisors, which did not appear to occur.  The record also reflects Ferguson failed to timely pay certain invoices resulting in contractual consequences to TxDOT and other job-related performance issues. The termination occurred in November of 2012. While Ferguson’s discrimination and retaliation claims were timely as to her termination, the alleged failure to accommodate occurred in 2011 and early 2012. As a result, the 180-day jurisdictional window to file a failure to accommodate complaint had passed and no indications exist it was a continuing violation. As a result, jurisdiction only existed for the termination. As to the termination, even if the court assumed Ferguson presented a prima facie case, she failed to create a fact issue as to pretext. Ferguson admitted that the failure to pay other fuel invoices was because she either “forgot” to do them or was “not sure” why they had not been paid. Ferguson acknowledged that she had communication issues with her supervisors. Further, she failed to show a causal link between protected conduct and the adverse employment action taken by TXDOT.  As a result, summary judgment was proper. Ferguson failed to object to the assigned judge, in writing within seven days and therefore waived the objection on appeal. Judgment affirmed.

If you would like to read this opinion click here. Panel includes Chief Justice Wright, Justice Willson and Justice Bailey. Memorandum Opinion by Justice Willson.  The attorney listed for TxDOT is Susan Desmarais Bonnen.  The attorneys listed for Ferguson are Kolter McKenzie and John E. Wall, Jr.

Chief Justice of 13th Court of Appeals not entitled to qualified immunity in First Amendment retaliation in employment suit by staffing attorney


Anderson v. State of Texas, No.15-40836 (5th Cir. January 10, 2017)

This is a First Amendment in employment case where the U.S. 5th Circuit denied a judge’s claim for qualified immunity while acting in his administrative capacity. This is a 43-page opinion and dissent.

Anderson is a lawyer licensed to practice law in Texas since 1984. He was able to get into a system of recommendations so that he was consistently hired by justices at the Thirteenth Court of Appeals as a staffing attorney. As a staffing attorney, Anderson’s duties did not include any requirement or authority to report judicial misconduct within the 13th Court of Appeals. In 2012 Anderson was advised by the justice to whom he was assigned that Chief Justice Valdez may have been improperly obtaining double reimbursements from both the 13th Court and Valdez’ political campaign fund, including travel expenses. Anderson asserts, on his own and without direction, he filed a complaint against Chief Justice Valdez to the Texas Supreme Court and the Texas State Commission on Judicial Conduct. While the investigation was ongoing, Anderson’s justice retired so Anderson applied to Justice Perkes for the senior briefing attorney position.  Justice Perkes informed Anderson he had the job. While it was the normal practice that each justice pick their own briefing attorneys, Chief Justice Valdez then informed all justices they could not hire Anderson.  Afterwards, the job offer was withdrawn.  Anderson asserts this was retaliation for his First Amendment right to speak out on a matter of public concern and filed suit. Chief Justice Valdez sought dismissal on the pleadings and additionally claimed qualified immunity. His motion was denied at the trial court level. Chief Justice Valdez appealed.

Even though Chief Justice Valdez asserts Anderson does not establish he was aware of Anderson’s complaints, Anderson’s pleadings clearly indicate assertions of knowledge and that the complaints were the basis of the retaliation. From a pleading standpoint, Anderson was not required to allege how Valdez knew of the letter and complaint, only that Valdez knew.  Next, the 5th Circuit notes that Supreme Court precedent allows the public employer to control an employee’s speech if made pursuant to the employee’s official duties.  A public employee’s speech is made pursuant to his official duties when that speech is “made in the course of performing his employment,” whether or not that speech was specifically “demanded of him.” However, an employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.  Anderson’s speech was not controlled by the 13th Court of Appeals. No one reviewed it for accuracy or compliance with the employer’s policies. It was not listed as being sent by the 13th Court of Appeals. After a detailed and lengthy analysis, the 5th Circuit held it was the speech of a citizen and protected by the First Amendment. After an additional analysis of case law (with such fun phrases as “Reading Howell in the framework of Cutler properly synthesizes Lane’s effect on Garcetti.”) the 5th Circuit held it was clearly established law at the time that Chief Justice Valdez should know his actions would violate Anderson’s First Amendment rights.  As a result, Chief Justice Valdez was not entitled to qualified immunity.

Justice Jones dissented. He first agreed that Anderson’s speech was protected by the First Amendment. However, he asserts the issues and facts are much more complex than the majority implies and the issue was not clearly established. He would have granted the claim for qualified immunity.

If you would like to read this opinion and dissent click here. The Panel includes Justices Jones, Wiener, and Higginson.  Justice Wiener delivered the opinion of the court. Justice Jones dissented.  Attorney for the Appellant is listed as Scott A. Keller, Austin, TX. Attorney for the State of Texas is listed as Lawrence Morales, II, San Antonio, TX.

Ex-Police Chief’s suit against Mayor was not “matter of public concern” in relation to Chief’s suit against City under First Amendment


Gibson v. Kilpatrick,15-60583(5th Cir. September 20,2016)

This is a First Amendment retaliation in employment case where the U.S. Court of Appeals for the 5th Circuit held the employee’s speech was not on a matter of public concern.

This is a continuing litigation saga (technically Gibson III) regarding “a small-town feud between the former police chief and mayor.”  Mayor Kilpatrick opposed the appointment of Gibson as the Chief of Police, but the council hired him regardless of the Mayor’s input. Later, Chief Gibson reported Mayor Kilpatrick for misappropriating City funds through the use of a gas card and the Mayor had to repay approximately $3000.  Nine months later, Kilpatrick started placing written reprimands in Gibson’s personnel file. The reprimands involved such allegedly serious conduct as showing up late to a meeting with the mayor because he was in the emergency room being treated for a knee injury. Similarly, Gibson was suspended for allowing city employees to play basketball in an uncompleted gym at the city civic center, even though the Mayor had played basketball there a few weeks earlier.  Gibson sued Kilpatrick in his individual capacity, claiming retaliation for protected First Amendment speech under 42 U.S.C. § 1983.  Afterwards the City Council fired Gibson, who amended his petition and brought in the City. After several trips to the 5th Circuit, the only remaining claim was Gibson’s suit against the City alleging it retaliated against him for exercising his First Amendment right and suing the Mayor. The trial court granted the City’s summary judgment motion and Gibson appealed.

The court first noted that Gibson’s suit against the Mayor was as a citizen, not as an employee. The court held “…suing one’s supervisor, in his personal capacity, for discrimination surely is not part of one’s job description.”  However, that does not end the analysis. He must also show the subject matter was of public concern. Speech involves matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” “[P]ublic concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Gibson’s suit was not him functioning as a whistleblower, but was an employment grievance. The suit asks only for personal relief. Further, the original suit was against Kilpatrick in his individual capacity only, not as the Mayor.    Gibson cannot prevail by demonstrating that his report to the State Auditor was a matter of public concern. In Gibson II, the court already determined the speech to the Auditor was unprotected. By focusing on the underlying speech to state authorities, Gibson is trying to relitigate Gibson II.  Merely including a First Amendment claim in a lawsuit does not transform it into a matter of public concern. Speech that is “related only to [a] superior’s employment decisions” and that affects a plaintiff “in a purely personal manner” is not a matter “of political, social, or community concern.”  Further, the underlying context of the suit indicates an ongoing personal feud between Kilpatrick and Gibson. Taken as a whole, all three of the factors—content, form, and context— support the conclusion that the suit was a matter of private concern.  Summary judgment was proper for the City.

If you would like to read this opinion click here. The Panel includes Circuit Judge Smith, Circuit Judge Barksdale and Circuit Judge Costa. Circuit Judge Smith delivered the opinion of the court. Attorney for Gibson is listed as Jim D. Waide, III. Attorney listed for the City is Gregory Todd Butler.

Employee unable to establish terminating supervisor was aware of First Amendment activity, so summary judgment for employer was proper


Kristi Dearman v. Stone County School District, 15-60506 (5th Cir. August 11,2016)

This is a First Amendment and procedural due process employment case where the U.S. Fifth Circuit affirmed the granting of the employer’s summary judgment motion.

Dearman was an employee of the Stone County School District. During 2011, while serving as a guidance counselor at Stone County Middle School, Dearman openly supported fellow teacher James Nightengale in his candidacy for county superintendent. Nightengale was one of six candidates in the race. He eventually lost to Gwen Miller. After Miller took office Dearman and several other teachers who had supported Nightengale were reassigned to different schools. Dearman was reassigned to Stone County Elementary School, where she assumed the identical position of guidance counselor.  One year later,  Dearman was visited by the Director of Special Education for the District. While in her office, the Director, Rodgers, noticed an individualized education program (“IEP”) for one of Nightengale’s special education students on her desk. Dearman was not authorized to view the confidential student information in the IEP folder.  She was called to a meeting with Miller. Dearman told Miller that she had, at Nightengale’s request, reviewed the IEP folder to ensure that Nightengale had properly completed the evaluation paperwork.  On February 21, 2013, Miller notified Dearman that she was temporarily suspended with pay, and that Miller was recommending she be “terminated” because of violations of the Family Educational Rights and Privacy Act (“FERPA”). Dearman took the matter to the School Board (“Board”) who never took action on it. On May 3, 2013, Dearman was informed by letter that Miller’s recommendation for termination was being withdrawn and that the District would simply not renew her employment contract at the end of its one-year term. Under Mississippi state law, any employee requesting a hearing for a nonrenewal decision is required to provide the school district in question with specific information regarding the employee’s challenge to the nonrenewal.  While Dearman’s attorney asserts the response was sent the Board asserted it never received such a challenge. Dearman sued after her non-renewal. The Board filed a motion for summary judgment which was granted. Dearman appealed.

To prove a First Amendment retaliation claim, Dearman must show that “(1) she suffered an ‘adverse employment decision’; (2) her speech involved ‘a matter of public concern’; (3) her ‘interest in commenting on matters of public concern . . . outweigh[s] the Defendant’s interest in promoting efficiency’; and (4) her speech motivated the adverse employment decision.” Here, the only contested issue is causation. To establish causation, Dearman must show that she engaged in protected conduct and that it was a motivating factor in her discharge. Although Dearman concedes that she has offered no direct evidence that Superintendent Miller knew of Dearman’s support for Nightengale’s campaign, she argues that circumstantial evidence of Miller’s knowledge exists.  However, the reassignments of school locations do not support Miller’s knowledge of Dearman’s support of Nightengale. Plus, they occurred a year prior to the non-renewal. Similarly, Dearman offers no evidence that Miller was behind the transfer of Nightengale supporters.  That Nightengale was also fired at a different time is irrelevant unless Dearman can offer some evidence that Miller actually knew of Dearman’s support for Nightengale’s campaign.  She could not. Dearman herself acknowledged in her deposition that she has no evidence that Miller knew that she supported Nightengale’s campaign for superintendent.  As a result, Dearman’s First Amendment claims were properly dismissed. The court also analyzed the procedural due process under Mississippi law and determined she was properly provided the required constitutional process. The summary judgment order was affirmed.

If you would like to read this opinion click here. The Panel includes Circuit Judge Reavley, Circuit Judge Elrod, Circuit Judge Jolly. Circuit Judge Jolly delivered the opinion of the court. Attorney for the Appellant: Daniel Myers Waide, Hattiesburg.  Attorney for the Appellee: Grace Watts Mitts.