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

 

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.

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