Opinion
14-20-00331-CV
03-17-2022
LAURA JUAREZ, Appellant v. TEXAS LEGISLATIVE COUNCIL AND JEFF ARCHER, KIMBERLY SHIELDS, SABINA MILLS, AND ELENA POWELL IN THEIR OFFICIAL CAPACITIES, Appellees
On Appeal from the 261st District Court Travis County, Texas Trial Court Cause No. D-1-GN-19-000515
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
MEMORANDUM OPINION
Tracy Christopher Chief Justice
Following her termination from the Texas Legislative Council (TLC), plaintiff Laura Juarez sued TLC for age discrimination, whistleblower retaliation, workers' compensation retaliation, and negligent hiring, retention, supervision, and 1 training. The trial court granted TLC's plea to the jurisdiction on the ground of sovereign immunity. We affirm.
The case was transferred to this Court from the Third Court of Appeals in Austin pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov't Code Ann. § 73.001. Because this is a transfer case, we apply the precedent of the Third Court of Appeals to the extent it differs from our own. See Tex. R. App. P. 41.3.
I. Background
Juarez began working as a receptionist for TLC in July 2016. In October 2016, Juarez was physically assaulted by coworker Claudia Newman, who worked with Juarez in the reception area. In response, TLC moved Newman's primary workspace to the human-resources office, but when Juarez was away from her desk, Newman covered the reception area.
We summarize the facts in accordance with the standard of review, that is, construing the evidence in the plaintiff's favor. See section II, infra. For example, TLC claims to have given Juarez a written performance appraisal in 2017, but Juarez attested that she first saw the appraisal after this suit was filed in 2019. We therefore do not consider it and need not describe its contents. We likewise do not discuss factual assertions Juarez raised in her response to the jurisdictional plea but for which there is no evidence.
A. The Workers' Compensation Claim
In March 2018, Juarez began to complain of an allergic reaction to something in her workplace, and she produced a note from her doctor stating that she was allergic to formaldehyde. TLC had the carpets in the reception area cleaned and spent over $4, 500 on an air-quality study, which revealed no hazardous levels of any chemical substances, including formaldehyde. No products containing formaldehyde were identified in the workplace.
In May 2018, Juarez filed a workers' compensation claim for the allergic reactions, but her symptoms improved after two weeks' sick leave and she voluntarily withdrew the claim. 2
B. Newman's Suspected Use of an Industrial Disinfectant
On July 25, 2018, Juarez looked in Newman's cabinet in the reception area and discovered a can of DISOLV, an industrial disinfectant. Juarez asked Newman about it, and Newman responded that she had gotten the disinfectant from staff coordinator Elena Powell in the human-resources department and had been using it in the reception area. Juarez asked Newman not to spray it in the reception area anymore, and Newman said she would return it to the human-resources office. Meanwhile, Juarez informed human-resources manager Sabina Mills about discovering the disinfectant in Newman's cabinet and about Juarez's conversation with Newman.
The next day, Powell returned the can of DISOLV to the reception area. Powell told Juarez not to snoop in other people's cabinets and said that the disinfectant would stay in the reception area. Juarez told Powell she did not want the product used in the reception area because it caused her allergic reactions.
Later that day, Juarez asked Newman to cover the phones while Juarez went to the restroom. When Juarez returned, there was a strong chemical smell in the reception area and Juarez began experiencing skin irritation and shortness of breath. Juarez called Mills and told her about the incident.
C. The Written Warning and Juarez's Complaints to Law Enforcement
On August 7, 2018, Powell and TLC's assistant executive director Kimberly Shields met with Juarez and advised her in writing that she was failing to meet the behavioral standards of (1) establishing and maintaining effective working relationships, (2) accepting any verbal or written instructions from Juarez's supervisors or managers pertaining to her job, (3) working within the agency's chain of command, and (4) interacting courteously and professionally with coworkers. 3
Juarez was informed that her continued employment was dependent on her meeting these behavioral expectations, and that her employment could be terminated if she failed to do so.
During this same period, Juarez found that her office chair was damp and she believed that Newman had put some kind of liquid on the chair. Juarez was dissatisfied with TLC's response, so after work on Friday, August 10, 2018, Juarez filed with the Austin Police Department and the Texas Department of Public Safety complaints of criminal assault against Powell and Newman for "the spraying of a dangerous chemical to injure a person."
TLC requested and reviewed surveillance video of the reception area from the Texas Facilities Commission and discovered that Newman had sprinkled something on Juarez's chair. On Monday, August 13, 2018, TLC terminated Newman's employment. Shields and Mills informed Juarez of Newman's termination and assigned Juarez a private parking space that was monitored by video "in the event that something happened to [Juarez's] vehicle."
D. Part-time Receptionists Hired in October 2018
After Newman was fired, TLC did not fill the position with another full-time receptionist but instead hired three part-time receptionists around October 1, 2018. Two were hired as replacements for the full-time position, and the third was hired to help with the increased volume of work during the legislative session.
On October 31, 2018, Juarez heard Powell talking to one of the new receptionists. According to Juarez, Powell "said something to the effect, 'we will be out with the old and in with the new soon.'" Powell testified that she was referring to the telephones. Powell stated that the phone system had been replaced three months earlier, and Juarez was trying to teach the new receptionist an outdated 4 process that was no longer used with the new telephone system. Powell stated that she explained this to the new receptionist in Juarez's presence.
E. Juarez's Termination
On November 2, 2018, Mills terminated Juarez's employment. According to the written termination memorandum Mills gave Juarez, Juarez was terminated because she "ha[d] not consistently met any of the behavior standards described" in the written warning of August 7, 2018.
After Juarez's termination, TLC reclassified her position and distributed her duties to two new part-time receptionists. Shields attested that both individuals hired to fill those positions were over sixty years old.
F. The Lawsuit
Shortly after her termination, Juarez sued TLC, and in their official capacities, Shields, Mills, Powell, and TLC's executive director Jeff Archer. Because the interests of the TLC defendants are identical, we will refer only to TLC except when referring to the actions of a particular named individual.
Juarez also sued Newman "in her official capacity," though TLC had already terminated Newman's employment. Newman does not appear to have been served and is not a part of this appeal.
TLC filed a plea to the jurisdiction asserting sovereign immunity from Juarez's claims. The trial court granted the plea and dismissed Juarez's claims with prejudice. Juarez appeals that final judgment.
II. Standard of Review
Unless waived by the legislature, the State of Texas and its agencies have sovereign immunity from suit and from liability. PHI, Inc. v. Tex. Juvenile Justice Dep't, 593 S.W.3d 296, 301 (Tex. 2019). Because the assertion of sovereign 5 immunity implicates the trial court's jurisdiction, it is properly asserted in a plea to the jurisdiction. Id.
Whether a court has subject-matter jurisdiction is a question of law that is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). We review the trial court's ruling on a plea to the jurisdiction de novo. Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). The plaintiff bears the initial burden to allege facts affirmatively demonstrating the court's jurisdiction to hear the cause. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Parties may submit evidence supporting or opposing the plea, which we review applying the same standard applicable to a traditional motion for summary judgment. Chambers-Liberty Ctys. Navigation Dist., 575 S.W.3d at 345 (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016)). We take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Sampson, 500 S.W.3d at 384. If the relevant evidence fails to raise a fact question on the jurisdictional issue, the court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228. If the evidence instead creates a fact question regarding the jurisdictional issue, then the trial court must deny the plea and allow the factfinder to resolve the issue. Id. at 227-28.
III. Age Discrimination
The Texas Commission on Human Rights Act (TCHRA) makes it unlawful to discriminate against a person aged forty or older based on the person's age. See Tex. Lab. Code Ann. §§ 21.051, 21.101. The TCHRA waives sovereign immunity from suit for statutory violations. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-37 (Tex. 2012). To establish a waiver of immunity, a plaintiff first 6 must plead the basic facts that make up a prima facie case of her statutory cause of action. See Garcia, 372 S.W.3d at 637. The plaintiff need not produce evidence supporting her claim unless the defendants first present evidence rebutting or negating one of those basic facts. Clark, 544 S.W.3d at 783; Garcia, 372 S.W.3d at 637-38.
To prove unlawful discrimination, a plaintiff may rely on either direct or circumstantial evidence. Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (citing Clark, 544 S.W.3d at 782). If the plaintiff has direct evidence of discriminatory animus, the burden shifts to the employer to show that legitimate reasons would have led to the same adverse employment action regardless of any discriminatory motives. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
Alternatively, a plaintiff may prove a violation with circumstantial evidence. If the plaintiff is relying solely on circumstantial evidence, then the plaintiff's ultimate goal is to show that the employer's stated reason for the adverse action was a pretext for discrimination. Id. In pretext cases, courts follow the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff first creates a presumption of unlawful discrimination by establishing a prima facie case. Flores, 612 S.W.3d at 305. The defendant then must rebut that presumption by negating an element of the prima facie case or by establishing a legitimate, nondiscriminatory reason for the employment action. See id.; Clark, 544 S.W.3d at 783. If the defendant does so, then the plaintiff must overcome the rebuttal evidence by establishing that the defendant's stated reason is a mere pretext. Clark, 544 S.W.3d at 783.
In an age-discrimination case, the plaintiff establishes a prima facie case with evidence that she (a) was a member of the protected class (that is, 40 years of age or 7 older), (b) was qualified for the position at issue, (c) suffered a final, adverse employment action, and (d) was either replaced by someone significantly younger or was otherwise treated less favorably than others who were similarly situated but outside the protected class. Flores, 612 S.W.3d at 305.
Juarez alleged that TLC committed age discrimination by terminating her employment and replacing her with someone younger. In its plea to the jurisdiction, TLC negated the replacement element of Juarez's prima facie case with evidence that after it terminated Juarez, TLC reclassified her position to redistribute her duties among two part-time receptionists who are older than Juarez. Although Juarez asserts that she was replaced by the younger receptionists hired in October 2018- before Juarez was terminated-no evidence supports this. Juarez offered no evidence controverting TLC's evidence that, of the three younger part-time receptionists hired before Juarez's termination, two replaced the full-time position left vacant by Newman's termination, and the third was hired for the increased volume of sessional work, whereas the two part-time receptionists hired after Juarez's termination were older than her.
Juarez characterizes the supporting evidence as conclusory, but we disagree. A conclusory statement is one that "expresses a factual inference without providing underlying facts to support that conclusion." Nationwide Coin & Bullion Reserve, Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (quoting Leonard v. Knight, 551 S.W.3d 905, 911 (Tex. App.-Houston [14th Dist.] 2018, no pet.)). Shields provided the underlying facts; she attested that both part-time receptionists hired to fulfill Juarez's duties were over sixty years old, whereas Juarez was in her early fifties. Juarez also asserts that Shields's affidavit contains no facts showing Juarez's personal knowledge of any of these facts; however, Juarez failed to preserve this complaint inasmuch as she did not obtain a 8 ruling on her objection in the trial court. See Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex. App.-Houston [14th Dist.] 2013, pet. denied).
If a terminated employee was not replaced by someone younger, an employee could still prove age discrimination, but only with "direct evidence of discriminatory animus." Garcia, 372 S.W.3d at 642. Juarez pleaded that two days before she was terminated, she heard Powell speaking to one of the part-time receptionists hired after Newman's termination, and Powell "said something to the effect, 'we will be out with the old and in with the new soon.'" This, statement, however, does not constitute direct evidence of discriminatory animus. "Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.-Dallas 2012, no pet.). For workplace comments to provide direct evidence of discrimination, the remarks must be (a) related to the protected class, (b) proximate in time to the adverse employment decision, (c) made by an individual with authority over the employment decision at issue, and (d) related to the employment decision at issue. Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421, 432-33 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). "If an inference is required for the evidence to be probative as to the employer's discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct." Jespersen, 390 S.W.3d at 653-54. Because inferences are required before one can conclude that Powell's statement refers to a person's age and that it relates to Juarez's termination, it is not direct evidence.
We conclude that the trial court correctly held that TLC has sovereign immunity from Juarez's age-discrimination claim. 9
IV. Whistleblower Retaliation
A state or local governmental agency may not take adverse personnel action against "a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." Tex. Gov't Code Ann. § 554.002. Thus, the claim's elements, which are jurisdictional, are that (a) the plaintiff was a public employee; (b) the defendant is a state or local governmental agency; (c) the plaintiff acted in good faith in reporting a violation of law; (d) the violation was reported to an appropriate law-enforcement agency; and (e) "the plaintiff's report was the but-for cause of the defendant's suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action." Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.-Dallas 2008, no pet.).
See State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009).
To establish "but-for causation," the employee must prove that, had the employee not reported the violation, the employer would not have taken the adverse action when it did. Office of Attorney Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020); Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). If a public employer takes adverse personnel action against a reporting employee within ninety days after the employee's report, courts apply a rebuttable presumption that the adverse personnel action was taken because of the report. Tex. Gov't Code Ann. § 554.004(a). It is an affirmative defense to a whistleblower-retaliation suit that the public employer would have taken the same adverse action against the employee "based solely on information, observation, or evidence that is not related to the fact that the employee made a [protected] report." Id. § 554.004(b). Thus, an employer rebuts the presumption by producing evidence sufficient to support a 10 finding that the report did not cause the adverse action. See Tex. Health & Human Servs. Comm'n v. Vestal, No. 03-19-00509-CV, 2020 WL 7252320, at *3 (Tex. App.-Austin Dec. 10, 2020, pet. denied) (mem. op.). Once rebutted, the presumption vanishes, and the case proceeds as though it had never existed. Id.
On August 10, 2018, Juarez reported to the Austin Police Department and the Texas Department of Public Safety that Newman and Powell allegedly violated the law. TLC terminated Juarez's employment eighty-four days later. This chronology triggers the presumption that TLC fired Juarez because of her reports to law enforcement.
But, TLC rebutted the presumption. It is uncontroverted that TLC gave Juarez a written warning on August 7, 2018-three days before Juarez filed complaints with law-enforcement agencies-that Juarez's continued failure to meet certain expectations would result in "further disciplinary action up to and including termination of employment." And "[a]n employer's 'proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.'" Apache Corp. v. Davis, 627 S.W.3d 324, 336 (Tex. 2021), (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)).
Once TLC rebutted the presumption, the burden shifted to Juarez to produce evidence that, but for Juarez's reports to law-enforcement agencies, her termination would not have occurred when it did. See id. at 335. Juarez did not attempt to meet her burden to show that, but for her complaints of criminal assault to the Austin Police Department and the Department of Public Safety, she would not have been terminated when she was. Instead, she asserted that she had been "making many complaints concerning her work environment and her illness at work beginning in March 14, 2018" and that TLC retaliated by giving her the written warning of August 7, 2018. Such complaints will not sustain her whistleblower-retaliation claim. 11
Among other things, TLC is not an appropriate law-enforcement agency, and its "power to discipline its own or investigate internally does not support a good-faith belief that it is an appropriate law-enforcement authority." McMillen v. Tex. Health & Human Services Comm'n, 485 S.W.3d 427, 429 (Tex. 2016) (per curiam). Juarez has not argued otherwise.
See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013) ("[F]or an entity to constitute an appropriate law-enforcement authority under the Act, it must have authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.").
Because there is no evidence of the element of causation, we conclude that the trial court properly granted TLC's plea to the jurisdiction as to this claim. We overrule this issue.
V. Workers' Compensation Retaliation
Juarez also alleged that TLC terminated her in retaliation for filing a workers' compensation claim. It is unlawful to discriminate against an employee who has filed such a claim in good faith. Tex. Lab. Code Ann. § 451.001(1). Sovereign immunity is waived for claims that actually fall within this provision. See Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 6 (Tex. 2000).
As with Juarez's other retaliation claim, there is insufficient evidence of but-for causation. In evaluating such evidence in retaliation cases, we examine all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee's protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated 12 employees, and evidence the employer's stated reason is false. Clark, 544 S.W.3d 755 at 790.
Temporal proximity is lacking, for Juarez was terminated five or six months after she instituted and withdrew the claim. Mills, who authored the termination memorandum, knew of the claim, which would seem to weigh in Juarez's favor. On the other hand, Mills attested that she attempted to help Juarez with the workers' compensation paperwork, but Juarez eventually wrote "DECLINE" on the paper. Far from disputing this, Juarez admits that she voluntarily withdrew the claim. Nevertheless, TLC had the carpets in Juarez's work area cleaned and spent over $4, 500 on an air-quality study. As for the remaining considerations, there is no evidence that anyone involved in TLC's decision to terminate Juarez's employment expressed a negative attitude about Juarez's filing of the claim, failed to adhere to relevant established company policies, or treated Juarez unfavorably compared with similarly situated employees. Finally, there is no evidence that TLC's stated reasons for terminating Juarez's employment are false or that TLC would not have terminated Juarez when it did absent the workers' compensation claim.
Given the absence of causation evidence, we conclude that the trial court properly granted TLC's plea to the jurisdiction as to this claim. We overrule this issue.
VI. Negligent Hiring, Retention, Supervision, and Training
Finally, Juarez alleged that she sustained personal injuries through TLC's negligent hiring, negligent retention, negligent supervision, and negligent training of Claudia Newman and other unnamed individuals. TLC correctly asserted in its jurisdictional plea that the Texas Tort Claims Act does not waive immunity for such claims. See, e.g., Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580-01 (Tex. 2001) (claims for negligent training, negligent supervision, and failure to discipline 13 are claims for the misuse or non-use of information to which sovereign immunity applies); City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *9 (Tex. App.-Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.) (same applies to negligent retention).
Juarez responded that the Texas Tort Claims Act waives immunity for personal injury "so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). According to Juarez, she sustained personal injury from the unsafe use of DISOLV in the reception area by a TLC employee. But as TLC accurately pointed out, this alleged conduct was the subject of Juarez's complaints of criminal assault, and the Texas Tort Claims Act specifically excludes waiver of immunity for a claim "arising out of assault . . . or any other intentional tort." See Tex. Civ. Prac. & Rem. Code Ann. § 101.057; Petta, 44 S.W.3d at 580.
Because sovereign immunity has not been waived as to these claims, the trial court properly dismissed them. We overrule this issue.
VII. Conclusion
We conclude that sovereign immunity has not been waived regarding Juarez's claim against TLC for age discrimination, whistleblower retaliation, workers' compensation retaliation, and negligent hiring, retention, supervision, and training. We accordingly affirm the trial court's judgment. 14