The Texas State Office of Administrative Hearings v. Birch et al, 04-12-00681-CV (Tex. App. – San Antonio, July 24, 2013).
This is an interlocutory appeal from the denial of a plea to the jurisdiction arising from several alleged employment claims. The plaintiffs in this case are all former Administrative Law Judges (“ALJs”) for the State Office of Administrative Hearings (“the SOAH”). They claim they were constructively discharged or terminated (resigned in lieu of termination) due to disability (attention deficit disorder), age and gender discrimination under Chapter 21 of the Texas Labor Code and retaliation. The different ALJs raised different claims. SOHA filed a plea to the jurisdiction which was denied.
In this very long 41 page opinion, the San Antonio Court of Appeals went through the factual situations for each ALJ in detail. It held that immunity is waived under Chapter 21 only when a plaintiff submits evidence in support of a prima facie claim.
One ALJ was not able to present evidence of constructive discharge since the only evidence submitted was that of dysfunction in the office and that people may have disliked each other. Subjective beliefs of “boorish behavior” with a lack of objective evidence calculated to cause a resignation is insufficient. Texas courts recognize an employer must be able to criticize an employee’s work actions without fear it will be used as evidence of constructive discharge. The analysis is lengthy but helpful when evaluating the standards for a constructive discharge case.
A second ALJ asserts his retirement was “accelerated” due to discriminatory reasons. The issue is whether an employee can claim an adverse employment event when he resigns effective at some future date, but the employer declines and requires the employee to leave immediately or before the date asserted by the employee in the resignation notice. After analyzing numerous federal and state cases, the court held such an accelerated resignation is not an “adverse employment action.”
A third ALJ asserts she was treated less favorably than others and was terminated for discriminatory reasons and in retaliation for opposing gender discrimination in the workplace. The court found critical the “nearly identical” comparator analysis. The court held there was no evidence of direct targeted discrimination. However, sufficient evidence was submitted that the female ALJs were treated differently than males and differently than younger males and females. The same ALJ did not have sufficient evidence of retaliation as subjective unsupported beliefs are not enough.
A forth ALJ was diagnosed with attention deficit disorder. SOHA claimed this ALJ was terminated for making false statements to supervisors and violations of policy. After going through a burden shifting analysis and another “near identical “comparators analysis, the court held 1) the ALJ was not treated differently from those similarly situated, but 2) provided circumstantial evidence that disparate treatment relating to older females existed within the agency.
The court went through a Ping-Pong factual analysis going through each claim for each ALJ, which resulted in this very long opinion. The factually specific analysis can be helpful to attorneys trying to protect their agencies in employment matters. The court ultimately held two ALJs properly alleged age and gender claims and retaliation claims for speaking out on the disparate treatment. However, the trial court erred in denying the plea as to the constructive discharge claim, all of the claims brought by the retiring ALJ, and two ALJs retaliation claims. The case as affirmed in part, reversed in part, and remanded.
If you would like to read this opinion click here.