Non-employer can be sued under TCHRA, but no hostile work environment exists in this case says 3rd Court of Appeals

The University of Texas – Pan American and the University of Texas System v. Miller, 03-10-00710-CV (Tex. App. – Austin, August 28, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction relating to an employment dispute.  Miller sued the University of Texas – Pan  Am (“UTPA) and the University System (separate entity) alleging a hostile work environment and disparate treatment based on age, disability, color, and race as well as retaliation for reporting misappropriate of funds. UTPA filed a partial plea which the trial court denied and UTPA appealed.

Miller was the chief of police for UTPA. In 2008 the University System discovered Miller was not properly qualified for firearms which was required for certification by TCLEOSE. The System maintained commissions for police officers.  After an internal affairs investigation additional charges were filed against Miller by subordinates alleging retaliation and intimidation by Miller. The University System terminated Miller’s commission with the entity and the next day, UTPA terminated him as chief of police. Miller filed an TWC charge against UTPA but not the University System. Miller then filed suit against both.  UTPA and the University System filed a plea arguing 1) University System was not Miller’s “employer” and 2) Miller did not plead facts sufficient to demonstrate a hostile work environment claim. The trial court denied the plea and the defendants appealed.

As to the University System’s employer status, the Third Court of Appeals held the statutory construction standards dictate it has to be an employer, not his employer to qualify. Under the guidance of the Texas Supreme Court in NME Hosps., Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999) the court found Miller could sue the System if he demonstrates (1) the defendant is an employer within the statutory definition, (2) an employment relationship exists between the plaintiff and a third party (UTPA), and (3) the defendant controlled access to the plaintiff’s employment opportunities and denied or interfered with that access based on unlawful criteria. Since the University System controlled the commissioning of officers for UTPA, it had influence and control over employment relationships. Further, even though Miller did not expressly name the System in the TWC complaint, the statute only requires sufficient facts to enable the TWC to identify the respondent (UTPA). The court also noted that the System did have actual notice of the complaint and its involvement and had an opportunity to participate in the process. As a result, jurisdiction exists to hear the claims against the System.

As to the hostile work environment claim, the court noted it is not sufficient for the plaintiff to show a series of discriminatory acts, but must show an organized scheme leading to and including a present violation such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence. In other words, the environment must be hostile, not simply the place where a few discriminatory acts took place. Here, Miller alleged only two discrete acts, one of which is outside the 180 day statute of limitations. As a result, he did not properly allege facts sufficient to support a charge of hostile work environment. The court therefore dismissed the hostile work environment claim, but allowed the remaining claims to go forward against both UTPA and the University System.

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