Latasha Rose v. Houston Independent School District ( 2017 )

Affirmed and Memorandum Opinion filed October 19, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00687-CV
LATASHA ROSE, Appellant
V.
HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2014-27763
MEMORANDUM OPINION
Appellant Latasha Rose appeals the trial court’s dismissal of her claims
against her former employer, Houston Independent School District (“HISD”). HISD
did not renew Rose’s teacher contract at the end of the 2011 school year, as part of
a district-wide budget cut. The present lawsuit arises from HISD’s decision to not
rehire Rose when she applied for employment multiple times between August and
November 2013. Rose claims HISD (1) retaliated against her in violation of the
Texas Commission on Human Rights Act, and (2) violated her liberty and property
rights under Texas Constitution article I, section 19.
Concluding that the trial court properly dismissed Rose’s claims, we affirm.
Background
For the 2010-2011 school term, 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. The student’s mother complained to
the school about the admission decision.
Roughly five weeks later, HISD transferred Rose to a different high school as
a bookroom custodian, which Rose contends was “punishment” for forwarding the
email. Rose filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), alleging retaliation for opposing what Rose
perceived as HSLECJ’s discrimination against a disabled student. Rose alleges that
HISD promised to reinstate her at HSLECJ if she dropped her EEOC complaint. She
did and was reinstated as Magnet Coordinator at HSLECJ.
In the spring of 2011, HISD eliminated Rose’s position as part of a district-
wide reduction in force (“RIF”) and therefore did not renew Rose’s one-year
contract. Rose challenged the non-renewal decision, which the school board,
followed by the Commissioner of Education, upheld. Rose did not seek judicial
review of the Commissioner’s decision—relief available under the Education Code.
See Tex. Educ. Code § 21.307 (an aggrieved party may perfect an appeal of the
Commissioner’s decision within 30 days); see also Nairn v. Killeen Indep. Sch. Dist.,
366 S.W.3d 229, 242 (Tex. App.—El Paso 2012, no pet.) (“To invoke judicial
review of the Commissioner’s Decision, Nairn was obligated to perfect an appeal to
2
the district court . . . .”). Rose instead filed a separate civil suit against HISD, which
was dismissed on appeal for Rose’s failure to exhaust her administrative remedies.
See Houston Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at
*3, 5 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.) (“Rose I”).
The nonrenewal of Rose’s contract is not at issue in this current appeal.
According to both parties, Rose filed a second lawsuit against HISD and the
Commissioner of Education, but there is nothing in our record revealing the nature
of the claims asserted in the second lawsuit. The only filing included in the present
record is a March 14, 2014 order dismissing the second suit for want of subject-
matter jurisdiction. Accordingly, we do not consider any part of the second lawsuit
in our analysis of Rose’s current claims.
Alleging HISD’s 2013 decision to not rehire her was retaliatory, Rose filed
another charge of discrimination with the EEOC on November 23, 2013, which
forms the basis of the present appeal. The record shows that Rose applied for
employment with HISD fourteen times between August 2013 and November 23,
2013, but was not hired.1
The EEOC issued a right-to-sue letter, and Rose timely sued. She alleged a
retaliation claim under the Texas Commission on Human Rights Act (“TCHRA”)
and constitutional violations of protected liberty and property interests under the
Texas Constitution article I, section 19. She did not challenge HISD’s 2011
decisions against renewing her contract or to eliminate her position—the claims
forming the basis of Rose I—but instead alleged that HISD’s refusal to subsequently
rehire her when she applied for new positions is unlawful retaliation and a
1
Although Rose’s November 23, 2013 EEOC charge alleges that she applied for “many
jobs at HISD and other ISDs over the last two years,” the charge claims retaliation only for the
time period from August 2013 to November 23, 2013.
3
deprivation of her constitutional rights. Rose sought an injunction requiring HISD
to rehire her as Magnet Coordinator, compensatory damages for HISD’s retaliation,
and a declaration that HISD violated her constitutional rights.
HISD filed a combined plea to the jurisdiction and motion for summary
judgment, arguing that: (1) the trial court was without jurisdiction because Rose’s
claims, if true, represent prior exposure to illegal conduct and do not constitute a
judicial controversy under the Texas Declaratory Judgment Act; (2) Rose’s claims
are barred by collateral estoppel; (3) Rose’s claims are time-barred; (4) Rose failed
to assert a constitutionally protected property or liberty interest; (5) Rose failed to
exhaust her administrative remedies for her retaliation claim; and (6) Rose cannot
present a prima facie case of retaliation.
The trial court granted HISD’s plea, without specifying the grounds on which
it ruled, and dismissed Rose’s claims with prejudice.
Rose appeals the trial court’s order granting HISD’s plea to the jurisdiction.
Standard of Review
HISD, as a political subdivision of the state,2 is generally immune from suit
and liability. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694-95 &
n.3 (Tex. 2003). The TCHRA waives a governmental employer’s immunity from
suit, but only if the plaintiff pleads a prima facie case of prohibited discrimination
or retaliation. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
635-36 (Tex. 2012) (“In a suit against a governmental employer, the prima facie case
implicates both the merits of the claim and the court’s jurisdiction because of the
doctrine of sovereign immunity.”); see also Mayfield v. Tarrant Reg’l Water Dist.,
2
The Texas Labor Code defines “[p]olitical subdivision” to mean, inter alia, “a county,
municipality, special district, [or] school district . . . .” Tex. Lab. Code § 504.001(3).
4
467 S.W.3d 706, 711 (Tex. App.—El Paso 2015, no pet.) (“The legislature has
waived governmental immunity for claims brought under the TCHRA provided the
plaintiffs plead the prima facie elements of their claims.”). Similarly, the Texas
Constitution authorizes suits against political subdivisions for equitable or injunctive
relief for violations of the Texas Bill of Rights. City of Beaumont v. Bouillion, 896
S.W.2d 143, 148-49 (Tex. 1995) (citing Tex. Const. art. I, § 29). But this limited
waiver of immunity exists only to the extent the plaintiff has pleaded a viable
constitutional claim. City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied).
A plea to the jurisdiction challenges the trial court’s subject-matter
jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A
trial court’s review of a plea to the jurisdiction challenging the existence of
jurisdictional facts mirrors that of a matter-of-law motion for summary judgment.
KIPP, Inc. v. Whitehead, 446 S.W.3d 99, 105 (Tex. App.—Houston [1st Dist.] 2014,
pet. denied). A trial court must grant a plea to the jurisdiction “when the pleadings
do not state a cause of action upon which the trial court has jurisdiction.” Harris
County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
We review the trial court’s ruling on a plea to the jurisdiction de novo. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In a plea
to the jurisdiction, a party may challenge either the pleadings or the existence of
jurisdictional facts. Id. at 226-27; see also Tex. Dep’t of Transp. v. Olivares, 316
S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing, e.g., Rebecca
Simmons & Suzette Kinder Patton, Plea to the Jurisdiction: Defining the Undefined,
40 St. Mary’s L.J. 627, 651-52 (2009)).
As relevant here, HISD challenged jurisdictional facts. Accordingly, we
consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227.
5
We take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts arising from such evidence in the
nonmovant’s favor. Id. at 228. If the relevant evidence is undisputed or a fact
question is not raised relative to the jurisdictional issue, the trial court rules on the
plea to the jurisdiction as a matter of law. Id. If the evidence creates a fact question
regarding the jurisdictional issue, the trial court cannot grant the plea, and the fact
issue will be resolved by the fact finder. Id. at 227-28. This is essentially a
traditional summary-judgment standard.3 See id.
Analysis
Though Rose challenges the trial court’s ruling on HISD’s plea in a single
issue, we consider each of her two claims in turn.
A. Retaliation
Rose’s first claim is that HISD unlawfully retaliated against her, in violation
of the TCHRA. See Tex. Lab. Code §§ 21.001 et seq.
1. Statutory framework and applicable law
The TCHRA was enacted to, inter alia, “provide for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.”
Id. § 21.001(1). Title VII is a federal law that prohibits employers from
discriminating against employees on the basis of sex, race, color, national origin,
and religion. See 42 U.S.C. §§ 2000e et seq. Although Texas courts consider the
TCHRA’s plain language and binding precedent in interpreting the TCHRA, we also
look to federal law for guidance when the TCHRA and Title VII contain the same
3
With her response to HISD’s plea, Rose submitted, but did not authenticate, a number of
exhibits. HISD has not objected to the authenticity or accuracy of Rose’s exhibits, either to the
trial court or to this court, so we consider the evidence for purposes of this appeal.
6
or analogous statutory language. See Tex. Lab. Code § 21.001; Prairie View A&M
Univ. v. Chatha, 381 S.W.3d 500, 505 (Tex. 2012); Okpere v. Nat’l Oilwell Varco,
L.P., 524 S.W.3d 818, 826 n.6 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
The TCHRA prohibits employers from retaliating against an employee who
engages in one or more of the following protected activities: (1) opposing a
discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or
(4) testifying, assisting, or participating in any manner in an investigation,
proceeding, or hearing. Tex. Lab. Code § 21.055.
There are two alternative methods by which a plaintiff can establish retaliation
under the TCHRA. See Garcia, 372 S.W.3d at 634; Quantum Chemical Corp. v.
Toennies, 47 S.W.3d 473, 476-77 (Tex. 2001). First, an employee can offer direct
evidence of the employer’s retaliatory actions or words. Garcia, 372 S.W.3d at 634.
Direct evidence of retaliation is evidence that, if believed, proves the fact of
retaliatory animus without inference or presumption. See McNeel v. Citation Oil &
Gas Corp., --- S.W.3d ---, 2017 WL 2959822, at *3 (Tex. App.—Houston [14th
Dist.] 2017, no pet.); see also Coll. of the Mainland v. Glover, 436 S.W.3d 384, 392
(Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Alternatively, because direct evidence of retaliation is a rarity in employment
cases, courts allow retaliation claims to proceed based on indirect or circumstantial
evidence. See Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied). Under this second method, Texas courts follow the
burden-shifting mechanism adopted by the Supreme Court in McDonnell Douglas.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Glover, 436
S.W.3d at 392. Under the McDonnell Douglas framework, as applied to the
TCHRA, the plaintiff is entitled to a presumption of retaliation if he meets the initial
burden of establishing a prima facie case. See Thomas v. Clayton Williams Energy,
7
Inc., 2 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Garcia,
372 S.W.3d at 634.4 A prima facie showing consists of evidence that: (1) the
plaintiff engaged in one or more protected activities; (2) she suffered an adverse
employment action; and (3) a causal link exists between the protected activity and
the adverse action. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137
(Tex. 2015). A plaintiff presenting evidence of these three elements raises a
presumption of retaliation because courts will deem the employer’s challenged
adverse acts, if otherwise unexplained, as more likely than not based on the
plaintiff’s protected activities. See Thomas, 2 S.W.3d at 739; Garcia, 372 S.W.3d
at 634. If the plaintiff fails to present evidence on each element of her prima facie
retaliation claim against a school district, then her claim fails to invoke a waiver of
governmental immunity from suit, thus mandating dismissal for want of jurisdiction.
See Nicholas, 461 S.W.3d at 136 (noting that failure of proof at prima facie stage
deprives trial court of jurisdiction); Garcia, 372 S.W.3d at 635-36; Tex. Dep’t of
Family & Protective Servs. v. Whitman, --- S.W.3d ---, 2016 WL 2854149, at *7-8
(Tex. App.—Eastland 2016, no pet.).
2. Application
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. See River
Oaks L-M. Inc. v. Vinton-Duarte, 469 S.W.3d 213, 226 (Tex. App.—Houston [14th
Dist.] 2015, no pet.); Fort Bend Indep. Sch. Dist. v. Williams, No. 01-13-00052-CV,
2013 WL 4779693, at *3, 7-8 (Tex. App.—Houston [1st Dist.] Sept. 5, 2013, no
pet.) (mem. op.); Garcia, 372 S.W.3d at 634.
4
There is no prima facie case requirement in the text of the TCHRA; rather, the elements
of a prima facie case are products of case law. See Garcia, 372 S.W.3d at 638.
8
We begin by reviewing the administrative complaint forming the basis of her
judicial suit, and then proceed to an analysis of Rose’s prima facie case.
a. Rose’s charge of discrimination
“The crucial element of a charge of discrimination [or retaliation] is the factual
statement contained” in the administrative complaint. Preston v. Tex. Dep’t of
Family & Protective Servs., 222 F. App’x 353, 357 (5th Cir. 2007) (per curiam).
Rose filed her EEOC charge of discrimination on November 23, 2013. Though the
copy included in the record is barely legible, HISD included the text of Rose’s
complaint in its plea below and in its appellate brief. Rose has not disputed the
accuracy of HISD’s excerpt, so we quote that text, omitting HISD’s added emphasis:
I am a Black female teacher. I have a B.A. and an M.Ed., and
Administrator’s certification by TEA. I was employed by HISD for 13
years. I was the Magnet School Coordinator of High School for Law
Enforcement. I recruited a student who is paraplegic, with limited
usage of her hands-in 2010. The Principal Carol Mosteit didn’t want
the student to be in the school, and told me to exclude the student in
violation of the law. I notified the student’s parent. The student’s
parent reported Mosteit’s illegal action to HISD Charles Brown, and
the student was readmitted. I was transferred in violation of HISD
policy to become the Textbook custodian at Lamar High School. I filed
a grievance and was told I could return to the High School for Law
Enforcement in January 2011, if I would drop my grievance. I did as I
was told. I was told in March 2011 by Mosteit that my position was
eliminating the Magnet School Coordinator’s position. I was told I was
a great employee but that my recruiting program was being RIFed for
two years. I filed suit but this a state where ISD’s have great power. I
have applied for many jobs at HISD and other ISDs over the last two
years, but I have not been contacted by HISD, and have not been hired
by any other ISD clearly because of HISD’s “not rehirable” label that
they and Texas Association of School Boards (Insurance Co.) assign to
any Professional Educator who challenges an ISD, specifically HISD
for an action. As a result of my termination through the pretext of RIF,
the school’s enrollment has significantly dropped approximately 200
9
students since I was in the position. The person who has been assigned
to the position is less qualified than I am.
HISD’s High School for Law Enforcement has recently reopened my
former position but not posted it for applications. I discovered that the
position has been recently reopened and filled. I continue to be
subjected to retaliation.
“We construe a claimant’s charge of discrimination filed with the TWC [or
EEOC] with utmost liberality; however, the charge must contain an adequate factual
basis so that it puts the employer on notice of the existence and nature of the
charges.” Tex. S. Univ. v. Rodriguez, No. 14-10-01079-CV, 2011 WL 2150238, at
*3 (Tex. App.—Houston [14th Dist.] June 2, 2011, no pet.) (mem. op.) (internal
quotation omitted); see also Lopez v. Tex. State Univ., 368 S.W.3d 695, 704 (Tex.
App.—Austin 2012, pet. denied).
b. Protected activity
The first prong of Rose’s prima facie case is whether she engaged in an
activity protected under the TCHRA. See Tex. Lab. Code § 21.055. Rose alleges
that she engaged in protected activity by opposing HISD’s discriminatory practices
and filing a previous charge of discrimination. Construing her allegations liberally,
we assume for purposes of Rose’s prima facie case that she engaged in protected
activity in 2010 when she opposed the school’s allegedly discriminatory treatment
of a disabled student and when she filed her 2010 EEOC complaint, which included
allegations of discrimination. See id. §§ 21.055(1), 21.055(3).
c. Adverse employment action
The second prong of Rose’s prima facie case is to establish that HISD took an
adverse employment action against her. Id. § 21.055; Navy v. Coll. of the Mainland,
407 S.W.3d 893, 900 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Rose alleges
that she suffered adverse employment actions when “her multiple applications to
10
HISD for employment opportunities were interfered with or denied.” Under the
TCHRA, we only consider allegedly adverse employment actions that occurred
within 180 days preceding the date Rose filed her November 23, 2013 EEOC charge
of discrimination. See Tex. Lab. Code § 21.202(a) (“A complaint under this
subchapter must be filed not later than the 180th day after the date the alleged
unlawful employment practice occurred.”). According to Rose’s application history,
she applied for fourteen positions within HISD on November 20, 2013, which is the
only activity occurring within the 180-day time period for which Rose has exhausted
her administrative remedies under the TCHRA. See id. Rose contends that HISD’s
failure to hire her as to any of those fourteen applications for employment constitutes
an adverse employment action under the retaliation statute.5
We first consider the preliminary question whether the TCHRA’s anti-
retaliation provision applies to an employer’s decision to not hire a prospective
employee. In its brief, HISD assumes that an employer’s decision to not hire a
prospective employee could qualify as “retaliation” under the TCHRA, as it does for
a discrimination claim.6 Section 21.055 prohibits an employer from retaliating
against “a person” who opposes a discriminatory practice, makes or files a charge,
files a complaint, or testifies, assists, or participates in any manner in an
investigation, proceeding, or hearing. Id. § 21.055(1)-(4). Notably, the Act refers
to a “person” as opposed to an “employee.” At least one Texas court of appeals has
assumed that an alleged failure to hire qualifies as an adverse employment action for
5
Rose asks us to consider a broader universe of alleged adverse actions occurring both
before the 180-day timeframe for TCHRA claims and after she filed her November 23, 2013,
EEOC complaint. However, as stated, the Labor Code and binding precedent preclude
consideration of these alleged events.
6
Texas Labor Code section 21.051 explicitly states that the “failure or refusal to hire” an
individual because of the prohibited characteristics listed is an actionable unlawful employment
practice. See Tex. Lab. Code § 21.051.
11
purposes of the TCHRA’s anti-retaliation provision. See Crutcher v. Dallas Indep.
Sch. Dist., 410 S.W.3d 487, 491, 493 (Tex. App.—Dallas 2013, no pet.). As the
parties before us presume as much, we too assume arguendo that a failure to hire
qualifies as an adverse employment action for purposes of Rose’s prima facie
burden.7
The factual statement of Rose’s EEOC complaint also alludes to HISD’s
alleged failure to post Rose’s prior position for applications and the decision
allegedly to fill Rose’s prior position. The record contains no evidence supporting
these contentions. Because we cannot determine whether such an action occurred
within the 180-day timeframe for exhausting her administrative remedies, we do not
consider it as part of Rose’s prima facie case. Moreover, the Labor Code indicates
that an employer’s alleged decision to hire someone other than the complainant does
not constitute an unlawful employment practice. See Tex. Lab. Code § 21.061 (“In
the absence of other evidence of an unlawful employment practice, evidence of the
employment of one person in place of another is not sufficient to establish an
unlawful employment practice.”).
d. Causal connection
Lastly, Rose was required to offer evidence on the third element of her prima
facie retaliation claim: a causal connection between the protected activity and the
adverse action. See Barnes v. Tex. A&M Univ. Sys., No. 14-13-00646-CV, 2014 WL
4915499, at *4 (Tex. App.—Houston [14th Dist.] Sept. 30, 2014, no pet.) (mem.
op.).
7
Analogous federal precedent holds that Title VII’s anti-retaliation provision covers
employer actions “that would have been materially adverse to a reasonable employee or job
applicant.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (emphasis
added).
12
Evidence sufficient to establish a causal link between an adverse employment
decision and a protected activity may include:
(1) the employer’s failure to follow its usual policy and procedures in
carrying out the challenged employment actions; (2) discriminatory
treatment in comparison to similarly situated employees;
(3) knowledge of the discrimination charge or suit by those making the
adverse employment decision; (4) evidence that the stated reason for
the adverse employment decision was false; and (5) the temporal
proximity between the employee’s conduct and discharge.
Crutcher, 410 S.W.3d at 494 (citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d
514, 519 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (discussing factors in
context of termination of employment)).
We consider these factors with respect to Rose’s assertion that she engaged in
a protected activity in 2010 when she filed a grievance and EEOC charge in
opposition to the school’s allegedly discriminatory treatment of a disabled student,
and that she suffered an adverse employment action in November 2013 when HISD
failed to hire her.
Our record contains no evidence that HISD failed to follow its usual hiring
policies or procedures regarding the jobs for which Rose applied. See Donaldson v.
Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 444 (Tex. App.—Houston
[1st Dist.] 2016, pet. denied). Rose also presents no evidence that the decision-
makers had any knowledge of Rose’s opposition to the school’s allegedly
discriminatory treatment of a disabled student. See Mitchell v. Tex. Dep’t of Crim.
Justice, No. 02-16-00100-CV, 2017 WL 632906, at *4 (Tex. App.—Fort Worth Feb.
16, 2017, no pet.) (mem. op.) (“The decision maker’s knowledge, or lack thereof,
about the plaintiff’s protected activity may also be relevant to the causation
inquiry.”). Rose’s November 2013 applications for employment do not reference
13
her 2010 protected activity, and she has neither identified the HISD decision-makers
nor proved that they had knowledge of her alleged protected activity.
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.” Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.
App.—Houston [14th Dist.] 1998, no pet.) (two and one-half year gap is too long to
establish causal connection), disapproved of on other grounds by Glassman v.
Goodfriend, 347 S.W.3d 772, 781-82 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per
curiam) (holding that action taken after twenty months “suggests, by itself, no
causality at all”). The lack of a causal link between Rose’s protected activity and
HISD’s failure to hire her is fatal to her prima facie case, and she is therefore not
entitled to a presumption of retaliation. See Thomas, 2 S.W.3d at 739; Garcia, 372
S.W.3d at 634.
Ultimately, Rose’s argument is one of subjective opinion. But “[Rose’s]
subjective belief as to the motivation for [the adverse employment action] does not
suffice.” Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 330 (Tex. App.—
Texarkana 2008, pet. denied) (citing M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 25 (Tex. 2000) (per curiam)); see also Bowers v. Principi,
172 F. App’x 623, 625 (5th Cir. 2006) (per curiam) (“Although he states that his
protected activity was the reason the VA refused five times to hire him, Bowers has
produced no evidence of the required causation. His statements alone are
insufficient to survive summary judgment.”).
Accordingly, based on the evidence submitted by the parties, we hold that
Rose failed to meet her prima facie burden for her retaliation claim against HISD.
As Rose has not “state[d] a claim” for retaliation under the Labor Code, see
14
Nicholas, 461 S.W.3d at 136, HISD did not waive its immunity from suit as to Rose’s
retaliation claim. See Garcia, 372 S.W.3d at 636; Tex. Dep’t of Aging & Disability
Servs. v. Lagunas, --- S.W.3d ---, 2017 WL 728368, at *3 (Tex. App.—El Paso 2017,
no pet.). The trial court, therefore, did not have subject-matter jurisdiction over
Rose’s retaliation claim and appropriately granted HISD’s plea on this ground. See
Garcia, 372 S.W.3d at 636; see also Williams, 2013 WL 4779693, at *8 (“Because
Williams has not established a prima facie case of retaliation, we hold the trial court
lacks subject-matter jurisdiction over that claim.”).
We overrule this part of Rose’s issue.
B. Constitutional Claim
Rose’s remaining claim is that HISD violated her constitutional rights under
article I, section 19 of the Texas Constitution. See Tex. Const. art. I, § 19.
Article I, section 19 of the Texas Constitution provides:
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE
OF LAW. No citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land.
Id.
To bring a due process claim, the plaintiff must first assert a liberty or property
interest that is protected by article I, section 19 of the Texas Constitution. See
Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 671 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (“The Due Process Clause is only
activated when there is some substantial liberty or property interest which is
deserving of procedural protections.”).8 If the plaintiff fails to assert a protected
8
“While the Texas Constitution is textually different [than the federal Constitution] in that
it refers to ‘due course’ rather than ‘due process,’ we regard these terms as without meaningful
distinction.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
15
interest, the trial court lacks jurisdiction over the suit. See Nat’l Collegiate Athletic
Ass’n v. Yeo, 171 S.W.3d 863, 870 (Tex. 2005) (where plaintiff “asserted no interests
protected by article I, section 19 of the Texas Constitution,” court held her claims
had to be dismissed); Concerned Cmty. Involved Dev., 209 S.W.3d at 672-73(holding there was no subject-matter jurisdiction where appellant failed to assert any
cognizable property interest); Stafford Mun. Sch. Dist. v. L.P., 64 S.W.3d 559, 564
(Tex. App.—Houston [14th Dist.] 2001, no pet.).
In her pleading, Rose globally contends that “she had a protected liberty
and/or property interest that she has been deprived without due course of law when
[HISD] filled [Rose’s] former position as magnet coordinator . . . without posting
the job, informing [Rose] of the position’s opening, inviting [Rose] to return, and/or
inviting [Rose] to apply.”
The Supreme Court’s decision in Board of Regents v. Roth guides our analysis
here, as it analyzed the boundaries of a teacher’s alleged liberty and property
interests in employment or potential employment.9 See Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564 (1972)). The court held that a teacher cannot attack a school’s
decision not to rehire him on the ground that he was denied procedural due process,
unless he can show that the decision somehow deprived him of an interest in
“liberty” or that he had a “property” interest in continued employment despite the
lack of tenure or a new contract covering the year in question. See id. at 569-70.
According to the court, when a person is simply not rehired in one job while
remaining free to seek another, his constitutional liberty interests are not implicated.
See id. at 575. Further, while the Constitution safeguards “the security of interests
9
In considering whether Rose has an interest protected by the Texas Constitution’s
guarantee of due course of law, we “look as usual to cases construing the federal constitutional
guarantee of due process as persuasive authority.” Yeo, 171 S.W.3d at 867 & n.14.
16
that a person has already acquired in specific benefits,” the court held that to assert
a property interest in the employment context a teacher must have more than an
abstract desire for, or unilateral expectation of, future employment. Id. at 577. He
must have a legitimate claim of entitlement to particular future employment, and
such claim must have been created by some source external to the Constitution. Id.;
see also Yeo, 171 S.W.3d at 870 n.19.
With this guidance in mind, we turn to whether Rose has asserted a protected
liberty or property interest and, if so, whether HISD impermissibly infringed on
those rights.
1. Liberty interest
In her response to HISD’s plea, Rose stated that she “has not raised an
infraction of her liberty interest.” Rose also did not affirmatively advance any liberty
interest in the trial court. We conclude that Rose waived or abandoned any argument
regarding her due process claim based on an alleged violation of a protected liberty
interest. See Thornton v. Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 35 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). Accordingly, though Rose raises the issue
in her appellant’s brief, we do not address it on appeal.
2. Property interest
In support of her constitutional property interest based argument, Rose
contends that she has an objective expectancy in “access to” continued, future
employment.10 We disagree and conclude that Rose has not asserted a protected
10
Relatedly, Rose contends she had a protected property interest in her “objective
expectancy that she could appeal her RIF without retaliation or punitive push-back by [HISD]”
and a right “to expect . . . [that] she would be placed in the entitled position of Magnet
Coordinator,” following her agreement to drop her 2010 grievance in exchange for returning to the
HSLECJ. To the extent these arguments state any constitutionally protected property interest, the
First Court of Appeals has held that Rose failed to exhaust her administrative remedies as to such
claims, which implicate her previous employment contract. See Rose I, 2013 WL 3354724, at *3,
17
property interest. Rose cites no authority supporting her position, and, more
fundamentally, demonstrates no more “than an abstract desire for, or unilateral
expectation of, future employment.” Roth, 408 U.S. at 577. A constitutionally
protected property interest is a legitimate claim of individual entitlement grounded
in state law which cannot be removed except for cause. See Grounds v. Tolar Indep.
Sch. Dist., 856 S.W.2d 417, 418 (Tex. 1993); Govant v. Houston Cmty. Coll. Sys.,
72 S.W.3d 69, 76 (Tex. App.—Houston [14th Dist.] 2002, no pet.). At the relevant
time, Rose did not have an employment contract with HISD, so no existing property
interests existed due to a contractual relationship. Accord Killingsworth v. Hous.
Auth. of City of Dallas, 447 S.W.3d 480, 492 (Tex. App.—Dallas 2014, pet. denied)
(prospective employee could not show legally protected property interest when no
valid contract existed between the parties). Though Rose’s purported property
interest lies in “access to” future employment, the ability to apply for employment
with HISD is an ability shared by the population generally and is not a uniquely
legitimate claim of individual entitlement to a particular job.
Even assuming “access to future employment” qualified as a constitutionally
protected property interest, the record shows she exercised the opportunity of access
by applying for forty-six positions with HISD between 2012 and 2015, including
fourteen different positions in a single day in November 2013. The record does not
reflect that HISD refused to consider Rose’s applications. Rose has not shown a
legitimate claim of entitlement to future employment, created by some source
external to the Constitution. See Roth, 408 U.S. at 577; see also Logan v.
Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of property . . . is
5; see also Tex. Educ. Code §§ 21.201–.213; Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d
363, 366-67 (Tex. App.—San Antonio 2004, no pet.) (Education Code “provide[s] procedures for
teachers to follow in protesting their employment contracts”). Accordingly, we do not consider
these arguments.
18
an individual entitlement grounded in state law, which cannot be removed except
‘for cause.’”).
* * *
In the absence of a viable constitutional claim, HISD did not waive its
immunity, and the trial court properly granted the plea as to Rose’s constitutional
claim. See Johnson, 353 S.W.3d at 504.
We overrule this part of Rose’s issue.
Conclusion
Having overruled Rose’s sole issue on appeal, we affirm the judgment of the
trial court.
/s/ Kevin Jewell
Justice
Panel consists of Justices Boyce, Donovan, and Jewell.
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