Ronald Smith v. Harris County ( 2019 )

Opinion issued April 18, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00247-CV
———————————
RONALD SMITH, Appellant
V.
HARRIS COUNTY, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2016-49448
MEMORANDUM OPINION
Appellant, Ronald Smith, challenges the trial court’s rendition of summary
judgment in favor of appellee, Harris County, in his suit against it for retaliation
under the Texas Commission on Human Rights Act (“TCHRA”).1 In his sole issue,
Smith contends that the trial court erred in granting Harris County summary
judgment.
We affirm.
Background
In his petition, Smith alleged that on April 15, 1996, he began working for
Harris County as a Juvenile Probation Officer for the Harris County Juvenile
Probation Department (“HCJPD”). On April 7, 2008, he filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”).
On April 2, 2012, he filed a second charge of discrimination with the EEOC.
In June 2015, Smith “applied for a promotion to the position of Intake
[Screening] Supervisor” for the HCJPD, but, according to Smith, Harris County
“gave the promotion to a lesser qualified employee by the name of Doris Cisneros.”
Smith alleged that Harris County denied him the promotion because he had
previously filed EEOC charges in 2008 and 2012. Smith brought a claim against
Harris County for retaliation under the TCHRA.2
Harris County answered, generally denying Smith’s allegations and asserting
additional defenses. Harris County then filed a combined no-evidence and
1
See TEX. LAB. CODE ANN. § 21.055.
2
See id.
2
matter-of-law summary-judgment motion, asserting that to establish a prima facie
case of retaliation, Smith was required to show: (1) he had engaged in a protected
activity, (2) he suffered an adverse employment action, and (3) a causal link existed
between Smith’s protected activity and the adverse employment action. It further
asserted that no evidence established a causal link between Smith’s protected
activity, i.e., the filing of his EEOC charges in 2008 and 2012, and the adverse
employment action, i.e., Harris County’s June 2015 denial of a promotion for the
position of Intake Screening Supervisor. Harris County argued that Smith’s
retaliation claim also failed because it had “a legitimate[,] non-discriminatory reason
for not promoting” Smith to the position of Intake Screening Supervisor and no
evidence established that Harris County’s articulated reason was merely pretextual.
Harris County attached to its summary-judgment motion the affidavit of Tim
Broussard, the former Deputy Director of Intake and Court Services Division for the
HCJPD; the affidavit of Alice Charlene Laskoskie, the former Intake Administrator
for the Intake and Court Services Division for the HCJPD and the current Assistant
Deputy Director for the Intake and Court Services Division; the affidavit of Steve
Willing, the former Assistant Deputy Director of the Intake and Court Services
Division for the HCJPD and the current Deputy Director of Intake and Court
Services Division; the affidavit of Bianca Malveaux, an Assistant Deputy Director
of Administrative Services (“HR”) for the HCJPD; the job posting for the Intake
3
Screening Supervisor position; a document titled “Procedure [f]or Hiring” related to
the position of Intake Screening Supervisor; the job description for the Intake
Screening Supervisor position; an email from Broussard related to Smith’s removal
from “the designation of Lead Officer”; notes taken by Laskoskie, Willing, and
Malveaux during their interviews of the applicants for the Intake Screening
Supervisor position; Smith’s deposition testimony; and Smith’s 2008 and 2012
EEOC charges.
In his response to Harris County’s summary-judgment motion, Smith asserted
that he began working for Harris County as a Juvenile Probation Officer for the
HCJPD in 1996 and he has worked in the intake unit, the field unit, and the court
unit. While working in the intake unit, Smith’s job “included the
pre-booking/intake/detainment/detention hearing report and . . . release process of
juveniles admitted into the Harris County Juvenile Justice Center detention.” Smith
also interviewed families and juveniles, collected paperwork from hospitals and
schools, and created “summar[ies]” for judges. According to Smith, he was never
disciplined at work and he took “the time to professionally develop younger
employees in the absences of supervisors.”
Smith further asserted in his response that, from 2006 to 2007, he served as a
“Lead Officer/Senior Officer” for the Intake and Court Services Division for the
HCJPD. According to Smith, “[a] Lead Officer does basically everything that a
4
supervisor does except there is no increase in pay.” While serving as a Lead Officer,
Smith oversaw fifteen other officers. Smith was removed from his role as a Lead
Officer after a year because another Lead Officer “return[ed] from military leave.”
In 2008, Smith filed an EEOC charge against Harris County for sex and race
discrimination stemming from treatment that he had received from his supervisor,
Patricia Sanders. At the time of Smith’s 2008 EEOC charge, Laskoskie was
Sanders’s manager and Broussard was Laskoskie’s manager. According to Smith,
Laskoskie was ultimately “the decision maker who decided not to promote Smith”
in 2015. In 2012, Smith filed a second EEOC charge “because he was not promoted
to two positions he was qualified for in November 2011 and March 2012 in
retaliation for [the] filing of his 2008 EEOC charge.”
According to Smith, in June 2015, a three-person screening committee
consisting of Laskoskie, Willing, and Malveaux interviewed eleven applicants for
the position of Intake Screening Supervisor. Each applicant was asked the same six
questions in his or her interview. Ultimately, Cisneros was hired for the position of
Intake Screening Supervisor, although Smith asserted that she was “significantly less
qualified” than him. Smith explained that Cisneros “worked very closely with
Laskoskie,” and Laskoskie and Malveaux, who were both members of the screening
committee, “were aware of Smith’s 2012 and 2008 EEOC charges.”
5
Moreover, Smith asserted in his summary-judgment response that Cisneros
was subsequently removed from her position as Intake Screening Supervisor and
“abruptly switched . . . into a different position away from the Intake line staff.”
While Cisneros served as Intake Screening Supervisor, she, according to Smith,
falsely accused him “of closing certain deferred prosecution cases without Intake
[M]anagement’s permission.”
Smith argued that circumstantial evidence showed a causal link between his
filing of his 2008 and 2012 EEOC charges and Harris County’s June 2015 denial of
his promotion to the position of Intake Screening Supervisor because Harris County
“failed to follow its . . . hiring policy when it failed to promote” him; Laskoskie, a
member of the screening committee, had a personal relationship with Cisneros, who
was eventually hired for the position of Intake Screening Supervisor; Laskoskie and
Malveaux, members of the screening committee who interviewed the applicants for
the promotion, knew of Smith’s previous EEOC charges as did Broussard, “who had
the final say on the [I]ntake [Screening] [S]upervisor promotion”; Cisneros was
“significantly less qualified than Smith” for the position of Intake Screening
Supervisor; and “[t]emporal proximity exist[ed] between the conduct complained
of” and Smith’s EEOC charges. Smith further asserted that “Harris County’s
non-discriminatory reason for not choosing [him] for [the] promotion to [Intake
Screening] [S]upervisor in June 2015 [was] pretextual.”
6
Smith attached to his summary-judgment response his resume; his deposition
testimony; his affidavit; Broussard’s 2014 deposition testimony purportedly from a
2012 lawsuit between the parties; the job description for a Juvenile Probation Officer
in the Intake and Court Services Division of the HCJPD; his 2008 and 2012 EEOC
charges; notes taken by Laskoskie, Willing, and Malveaux during their interviews
of the applicants for the Intake Screening Supervisor position; his original petition
from his 2012 lawsuit between the parties and a March 24, 2014 “Order Granting
Plaintiff’s Notice of Dismissal Without Prejudice” related to that lawsuit; the job
posting for the Intake Screening Supervisor position; an email regarding Smith’s
“new responsibilities as [a] Lead Officer on weekends”; and Broussard’s “Harris
County Grievance Form 200 Supervisor Response.”
In its reply to Smith’s response, Harris County asserted that Smith failed to
bring forth “any circumstantial evidence to establish the requisite causal connection
or retaliatory animus.” More specifically, Harris County asserted that it followed its
policies and procedures for promoting an individual to the position of Intake
Screening Supervisor, “[t]here was no discriminatory treatment toward[] [Smith] in
relation to others that applied for the” Intake Screening Supervisor position, any
knowledge by the screening committee members of Smith’s previous EEOC
charges, standing alone, was not sufficient to demonstrate a causal connection, there
was no evidence “that the reason . . . Cisneros was promoted over [Smith] was
7
false,” and “[t]oo long of a temporal proximity exist[ed] between the conduct
complained [of] and [Smith’s EEOC] charge[s] of discrimination.”
The trial court, without specifying the ground, granted Harris County
summary judgment on Smith’s retaliation claim.
Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true
all evidence favorable to the non-movant, and we indulge every reasonable inference
and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d
at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without
specifying the grounds for granting the motion, we must uphold the trial court’s
judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power,
Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
A party seeking summary judgment may combine in a single motion a request
for summary judgment under the no-evidence standard with a request for summary
judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).
When a party has sought summary judgment on both grounds and the trial court’s
order does not specify its reasons for granting summary judgment, we first review
the propriety of the summary judgment under the no-evidence standard. See Ford
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Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also TEX. R. CIV. P.
166a(i). If we conclude that the trial court did not err in granting summary judgment
under the no-evidence standard, we need not reach the issue of whether the trial court
erred in granting summary judgment as a matter of law. See Ford Motor Co., 135
S.W.3d at 600.
To prevail on a no-evidence summary-judgment motion, the movant must
establish that there is no evidence to support an essential element of the
non-movant’s claim on which the non-movant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
non-movant to present evidence raising a genuine issue of material fact as to each of
the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment
may not be granted if the non-movant brings forth more than a scintilla of evidence
to raise a genuine issue of material fact on the challenged elements. See Ford Motor
Co., 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence
“rises to a level that would enable reasonable and fair-minded people to differ in
their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997) (internal quotations omitted).
9
To prevail on a matter-of-law summary-judgment motion, the movant must
establish that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a
defendant moves for a matter-of-law summary judgment, it must either: (1) disprove
at least one essential element of the plaintiff’s cause of action, or (2) plead and
conclusively establish each essential element of an affirmative defense, thereby
defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341
(Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once
the movant meets its burden, the burden shifts to the non-movant to raise a genuine
issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at
197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if
reasonable and fair-minded fact finders could differ in their conclusions in light of
all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).
Summary Judgment
In his sole issue, Smith argues that the trial court erred in granting Harris
County summary judgment on his retaliation claim because he established a causal
link between his protected activity and the adverse employment action and “Harris
10
County’s non-discriminatory reason for not choosing [him] for [the] promotion to
[Intake Screening] [S]upervisor in June 2015 [was] pretextual.”
The TCHRA prohibits an employer from retaliating against an employee for
engaging in certain protected activities. See TEX. LAB. CODE ANN. § 21.055; see
also Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 822 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied). Because one of the purposes of the TCHRA
is to “provide for the execution of the policies of Title VII of the Civil Rights Act of
1964,” when analyzing a retaliation claim brought under the TCHRA, we look not
only to state cases but also to analogous federal statutes and the cases interpreting
those statutes. See TEX. LAB. CODE ANN. § 21.001(1); Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012).
To prevail on a retaliation claim under the TCHRA, an employee must
establish a prima facie case by showing: (1) he engaged in a protected activity,
(2) an adverse employment action occurred, and (3) a causal link existed between
the protected activity and the adverse action. Chandler, 376 S.W.3d at 822.
Protected activities include: (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. See TEX. LAB. CODE ANN.
§ 21.055; Datar v. Nat’l Oilwell Varco, L.P., 518 S.W.3d 467, 477 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied). Here, it is undisputed that Smith engaged in
11
a protected activity by filing his 2008 and 2012 EEOC charges and an adverse
employment action occurred, i.e., Harris County’s June 2015 denial of a promotion
to Smith for the position of Intake Screening Supervisor. See Haire v. Bd. of
Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 364 (5th Cir.
2013) (“Failure to promote is clearly an adverse employment action.”); Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018) (“An employee
engages in a protected activity by . . . making a charge of discrimination with the
EEOC.”).
Harris County moved for summary judgment, arguing, in part, that no
evidence established a causal link between Smith’s protected activity, i.e., the filing
of his EEOC charges in 2008 and 2012, and the adverse employment action, i.e., the
June 2015 denial of a promotion to Smith for the position of Intake Screening
Supervisor.
An employee asserting a TCHRA retaliation claim must establish that, in the
absence of his protected activity, his employer’s prohibited conduct would not have
occurred when it did. Chandler, 376 S.W.3d at 823; Herbert v. City of Forest Hill,
189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.). Thus, an employee
must establish a “but for” causal nexus between the protected activity and the
prohibited conduct. Chandler, 376 S.W.3d at 823 (internal quotations omitted);
Herbert, 189 S.W.3d at 377 (internal quotations omitted). However, an employee is
12
not required to establish that the protected activity was the sole cause of the
employer’s prohibited conduct. Chandler, 376 S.W.3d at 823; Herbert, 189 S.W.3d
at 377.
A retaliation plaintiff generally may rely on circumstantial evidence to
establish a causal link between the protected activity and the retaliatory action.
Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015); see Haggar Clothing
Co. v. Hernandez, 164 S.W.3d 386, 389 (Tex. 2005). Circumstantial evidence
sufficient to show a causal link between an adverse employment decision and an
employee’s protected activity may include: (1) the employer’s failure to follow its
usual policies and procedures in carrying out the challenged employment actions;
(2) discriminatory treatment in comparison to similarly situated employees;
(3) evidence that the stated reason for the adverse employment decision was false;
(4) the temporal proximity between the employee’s conduct and the challenged
conduct; and (5) knowledge of an employee’s discrimination charge or suit by those
making the adverse employment decision. Datar, 518 S.W.3d at 478; see also
Alamo Heights, 544 S.W.3d at 790. “[A]n employee’s subjective beliefs of
retaliation are merely conclusions and do not raise a fact issue precluding summary
judgment” in a retaliation claim. Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723,
731 (Tex. App.—Fort Worth 2006, no pet.) (citing Tex. Div.-Tranter, Inc. v.
Carrozza, 876 S.W.2d 312, 314 (Tex. 1994)).
13
A. Policies and Procedures
In his summary-judgment response, Smith argued that Harris County failed to
“follow company polic[ies] and procedures” when hiring for the Intake Screening
Supervisor position because Thomas Brooks, the purported Chief Juvenile Probation
Officer/Executive Director in 2015, was required to make the June 2015 hiring
decision for the Intake Screening Supervisor position. In support of his argument,
Smith relies solely on the job description for the Intake Screening Supervisor
position, which states: “The Chief Juvenile Probation Officer/Executive Director
shall hire the employees of the Probation Department.”
Broussard, in his affidavit, testified that in 2015, he was the Deputy Director
of Intake and Court Services Division for the HCJPD, and as deputy director, he was
responsible for the Intake Screening and Court Services Units. In June 2015, he
posted a notice for an open Intake Screening Supervisor position. According to
Broussard, in general, “[t]he selection process for choosing the best qualified
application for that position beg[an] with a screening committee,” who “first
conduct[ed] interviews [with] all of the qualified applicants.” Because the screening
committee and/or HR pre-screen[ed] all applicants, “only those who me[t] the
minimum requirements” for the position were interviewed. Once the screening
committee completed its interviews of the applicants, it prepared a list of the most
14
qualified applicants for Broussard to consider. According to Broussard, “[t]his
practice [was] reflected in the HCJPD’s policies and procedures for the office.”
Broussard further explained that because, in the instant case, the position to
be filled was a supervisor position, the screening committee consisted of two higher
level employees from the Intake Screening Unit along with an HR representative
who chaired the committee. Here, the screening committee included Laskoskie, who
at the time was the Intake Administrator for the Intake and Court Services Division,
and Willing, who at the time was the Assistant Deputy Director of the Intake and
Court Services Division. Broussard, as Deputy Director of Intake and Court
Services Division, was “authorized to make the final decision to select the best
[applicant] for the position.”
According to Broussard, in June 2015, he met with the screening committee
and received the names of the two applicants that the committee had selected as the
most qualified: Cisneros and Laura Gallardo. Smith was not included in the
screening committee’s list of most-qualified applicants. Broussard discussed the
merits of each applicant with the members of the screening committee, and because
Laskoskie would ultimately be the manager over the individual selected for the
Intake Screening Supervisor position, he asked her opinion as to “the more
preferable” applicant. Laskoskie “advised [that] she would prefer” Cisneros for the
position, and the other members of the screening committee agreed with Laskoskie’s
15
recommendation. Broussard approved Cisneros for the Intake Screening Supervisor
position.
In addition to Broussard’s affidavit testimony, the record also contains
Broussard’s 2014 deposition testimony that was purportedly taken in the course of
Smith’s 2012 lawsuit involving the same parties. There, Broussard testified that he
had previously served as an Intake Screening Supervisor in the Intake and Court
Services Division of the HCJPD from 2000 until 2007, when he was then appointed
to be the Administrator of Intake Screening for the Intake and Court Services
Division. In August 2009, he was appointed as Deputy Director of Intake and Court
Services Division. At the time that Broussard was deposed in 2014, Brooks served
as the Chief Juvenile Probation Officer or Executive Director.
In regard to his previous position as Intake Screening Supervisor for the Intake
and Court Services Division, Broussard explained that he had applied for that
position and then interviewed with a screening committee. According to Broussard,
the screening committee then listed him as one of its final applicants, and the Deputy
Director of Intake and Court Services at the time decided to promote Broussard to
the position of Intake Screening Supervisor.
Broussard also generally explained, in regard to the interview and promotion
process for supervisor positions, as follows:
[The] promotion process is that a position gets posted. There is a
screening done by a screening committee. Based on the number of
16
applicants for the position, the [screening] committee identifies either
three or four of the more promising [applicants]. That list is brought to
[myself]. . . . My style is to speak then with the administrator who will
be managing the supervisor and see if they have any clear preference.
As explained by Broussard, the opinion of the “administrator” was important to him
because the administrator “w[ould] be directly in line to manage the supervisor” that
was ultimately hired by Broussard. According to Broussard, a screening committee
includes “[t]he administrator of the unit” for which the supervisor position has been
posted as well as Broussard’s Assistant Deputy Director at the time.
Further, during his 2014 deposition, Broussard was asked to review the
“Harris County Juvenile Human Resources Operating Procedure,” and specifically
the section titled, “Hiring and Promotion Policy,” after which, the following
exchange occurred:
[Smith’s attorney:] Would you go to the second page, please sir?
Do you see where it says, “Upper Mobility
Positions”?
[Broussard:] Yes, ma’am, I do.
[Smith’s attorney:] And if we are talking about moving from a
[J]uvenile [P]robation [O]fficer to a
supervisor, is that an upper mobility position?
[Broussard:] Yes, ma’am, it is.
[Smith’s attorney:] . . . [L]et’s go to the third paragraph below
that. It says, “The names of the most
promising applicants will be submitted to the
deputy director with the open position.”
17
Now, in 2011, were you the deputy director?
....
[Broussard:] Yes, ma’am I was.
[Smith’s attorney:] In 2012, were you the deputy director?
[Broussard:] Yes, ma’am, I was.
[Smith’s attorney:] And it says, “If there are ten applicants or
less, up to three names will be submitted. The
deputy director with the opening will choose
the best qualified applicant based on the
needs of the division and all relevant
information regarding the applicants.”
Is that right?
[Broussard:] Yes, ma’am.
[Smith’s attorney:] And is that how in 2011 and 2012 you chose
who to fill the supervisor[] positions?
[Broussard:] Yes, ma’am it is.
[Smith’s attorney:] I believe you said . . . that you would consult
or confer with the administrator of that
department is that right?
[Broussard:] That’s part of the needs of the division in my
mind.
[Smith’s attorney:] . . . And . . . it was . . . Laskoskie, is that
right? 2011 and 2012?
[Broussard:] That is correct.
(Emphasis added) (Internal quotations omitted.)
18
Broussard further confirmed in his deposition that he utilized these standard
hiring procedures in 2011 and 2012 when two other Intake Screening Supervisor
positions were posted. For instance, in regard to the 2011 Intake Screening
Supervisor position, Broussard testified that “[a]t the end of the screening
[interviews], [a] list was brought to [him],” which included “the names of the
employees” that the screening committee thought were the “most appropriate for the
position.” That screening committee consisted of Laskoskie, the Intake
Administrator for the Intake and Court Services Division at the time, Terri McGee,
Broussard’s Assistant Deputy Director at the time, and Bianca Malvo, an Assistant
Deputy for HR. Broussard then met with Laskoskie “and one of the HR people who
brought the list.” Broussard looked at the names on the list and “briefly reviewed
the documents that were there, which would [have] be[en] the questions that were
asked of the applicants and their responses to the questions; and the screening
committee[’s] . . . observations about the[] responses.” Broussard then asked
Laskoskie, as the administrator, “who she was most comfortable with of the
applications that were selected.” In 2011, Laskoskie recommended Nicole Tillis,
who Broussard knew as a Lead Officer. Broussard selected Tillis for the supervisor
position because he agreed with Laskoskie’s recommendation.
In regard to the 2012 Intake Screening Supervisor position, Broussard
explained that the screening committee then consisted of Laskoskie, the Intake
19
Administrator for the Intake and Court Services Division at the time, McGee,
Broussard’s Assistant Deputy Director at the time, and Michael Prince, an HR
representative. Broussard again sought the recommendation of Laskoskie as to “who
she was most comfortable with of the selected applicants,” but it was Broussard who
made the ultimate decision to select Vincent Burton for the 2012 Intake Screening
Supervisor position.
In her affidavit, Laskoskie testified that from July 1, 2011 to November 2015,
she served as the Intake Administrator for the Intake and Court Services Division
for the HCJPD. In June 2015, she served on a screening committee “for the purpose
of interviewing qualified [applicants] for the position that was posted . . . for Intake
Screening Supervisor.” Broussard, as the Deputy Director of the Intake and Court
Services Division, selected her and Willing, who was Assistant Deputy Director of
the Intake and Court Services Division for the HCJPD at the time. The third
screening committee member was an HR representative. Smith interviewed for the
Intake Screening Supervisor position as did ten other applicants. After the eleven
applicants were interviewed, the members of the screening committee discussed “all
of the [applicants] and came to an agreement of the two people that would be [the]
top picks,” Cisneros and Gallardo. The screening committee then gave their
recommendations to Broussard. After discussion and reviewing feedback from the
20
screening committee, Broussard selected Cisneros for the position. We note that
Willing’s affidavit testimony largely mirrors that of Laskoskie.
Similarly, Malveaux testified, in her affidavit, that since 2011, she has served
as an Assistant Deputy Director of HR, and has frequently served on screening
committees as the HR representative. HR initially prescreens the applicants for an
available position to make sure that they meet the minimum requirements for the
position prior to any interviews. HR then consolidates the relevant documentation
for each applicant into packets for the screening committee to use during interviews.
As HR representative, Malveaux chairs the interviews “by making introductions and
monitoring the process to insure compliance with HR policy.”
In June 2015, Malveaux served as the chair of the screening committee that
also consisted of Laskoskie and Willing. Smith as well as ten other applicants were
interviewed for the position of Intake Screening Supervisor. After the interviews,
Malveaux “asked the other two panel members who were their top picks keeping in
mind that they need[ed] to choose the person who they fe[lt] most strongly w[ould]
be able to perform the duties and functions of th[e] position.” The screening
committee unanimously elected Cisneros and Gallardo as “th[e] top picks.” The
committee then took its recommendations to Broussard, who “made the final
selection.”
21
Moreover, Smith, in his own deposition, testified, in regard to the hiring
process for a supervisor position, that initially a position is posted, and when an
individual applies for the position, he sends his resume or application to HR who
then schedules an interview for an applicant. From there, applicants are interviewed
and “then they decide who they want to put in that position.” In the past when Smith
had applied for other supervisor positions, he was interviewed by “a panel of three
people.” These three people always included an HR representative and an
administrator. Smith also recalled that Broussard’s Assistant Deputy Director was
a member of the panel in the past. According to Smith, the members of the panel
“write down all the notes and . . . pass them forward to whoever the deputy or the
actual chief juvenile probation officer [was].” Smith opined that it “seem[ed]
logical” that the three-person panel would “narrow down the pool to a certain
number of applicants.” While Smith supposed that the ultimate hiring decision was
made by the Chief Juvenile Probation Officer or Executive Director, he also
testified: “I don’t think that they make the decision themselves. It may even be the
deputy director that makes that decision.” (Emphasis added.)
In his summary-judgment response, Smith relied on his own affidavit
testimony and his deposition testimony to support his assertion that Harris County
“failed to follow its own hiring policy” when it hired Cisneros for the position of
Intake Screening Supervisor. But, to constitute competent evidence to oppose a
22
summary judgment, an affidavit must do more than make conclusory, self-serving
statements that lack factual detail. See C.I.A. Hidden Forest, Inc. v. Watson, No.
09-17-00117-CV, 2018 WL 1527626, at *4 (Tex. App.—Beaumont Mar. 29, 2018,
no pet.) (mem. op.); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—
Texarkana 2000, no pet.); see also Nguyen v. Citibank N.A., 403 S.W.3d 927, 931
(Tex. App.—Houston [14th Dist.] 2013, pet. denied) (affidavits containing
conclusory statements that fail to provide underlying facts to support their
conclusions are not proper summary-judgment evidence); Pipkin v. Kroger Tex.
L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)
(“Conclusory affidavits are not sufficient to raise fact issues because they are not
credible or susceptible to being readily controverted.” ). Here, Smith in his affidavit
merely stated:
The Job Posting and Job Description for that position each noted the
following: “Chief Juvenile Probation Officer/Executive Director shall
hire the employees of the Probation Department.” . . . Chief
JPO/Executive Director Thomas Brooks, not Mr. Broussard, was
supposed to be the person who made the final decision about the new
Intake [Screening] Supervisor. The agency may not have followed its
own hiring rules.
Smith has presented no evidence that Harris County failed to follow its
policies and procedures when hiring for the Intake Screening Supervisor position in
June 2015.
23
B. Discriminatory Treatment Compared to Those Similarly Situated
Smith further argued in his summary-judgment response that he was
“discriminated against in relation to other[] [employees] that applied for the
position” of Intake Screening Supervisor because “the cards were stacked against”
him. More specifically, Smith argued that he was not treated similarly to Cisneros
because he “did not have the same kind of working relationship with the decision
makers that Cisneros did,” “Harris County failed to give [him] the benefit of having
his manager on the [screening] committee,” Laskoskie, a member of the screening
committee, had a personal relationship with Cisneros, and Broussard, “who[] had
the final say with regard to who would be awarded” the Intake Screening Supervisor
Position, “removed Smith from his post as [a] Lead Officer . . . in 2008.”
Employees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct. Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 584 (Tex. 2017); Ysleta Indep. Sch. Dist.
v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Metro. Transit Auth. of Harris Cty.
v. Ridley, 540 S.W.3d 91, 107 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
“This requires [a] plaintiff to show not only that the employees reported to the same
supervisor, engaged in the same conduct, and had the same qualifications, but
also . . . that there were no differentiating or mitigating circumstances as would
distinguish . . . the employer’s treatment of them.” Ineichen v. Ameritech, 410 F.3d
24
956, 960–61 (7th Cir. 2005) (second alteration in original) (internal quotations
omitted). Notably, “[t]he situations and conduct of the employees in question must
be nearly identical.” Rincones, 520 S.W.3d at 584 (internal quotations omitted); see
also AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008). “Employees with
different responsibilities, supervisors, capabilities, work rule violations, or
disciplinary records are not considered to be nearly identical.” Reyes, 272 S.W.3d
at 594 (internal quotations omitted).
The record here indicates that the screening committee interviewed eleven
applicants, including Smith, for the position of Intake Screening Supervisor. These
eleven applicants were asked the same six questions during their interviews, and the
screening committee took notes on each applicant’s responses. Following the
interviews, the screening committee discussed “all the [applicants] encompassing
their interview, their performance in their respective departments, their resumes,
their work experience, and education.” After that discussion, the screening
committee agreed on their “top picks” for the Intake Screening Supervisor position,
which were Cisneros and Gallardo. The screening committee then presented their
recommendations to Broussard, who ultimately selected Cisneros for the Intake
Screening Supervisor position.
In his summary-judgment response, Smith did not address any of the other
employees, other than Cisneros, who applied for the position of Intake Screening
25
Supervisor, and he did not argue that any of the other applicants for the position were
similarly situated to him. Instead, Smith presumed that he and Cisneros were
similarly-situated employees and then asserted that they were treated differently.
Contrary to Smith’s belief, however, he and Cisneros were not similarly situated.
In his affidavit, Willing, testified in regard to Cisneros, that in June 2015,
when she interviewed for the position of Intake Screening Supervisor, she, in
addition to being a Juvenile Probation Officer, had been “serving as one of the [L]ead
[O]fficers in Intake for a few years and [had] gained the trust and respect of her
fellow officers as well as management.” Cisneros was “reliable, hard-working, took
the initiative to get things done, and always went above and beyond her normal
duties.” For instance, in addition to her normal responsibilities as a Lead Officer in
the Intake and Court Services Division, Cisneros “assisted in the detention hearing
courtroom as well as filled in for th[e] role as detention hearing representative as
needed, which [was] a supervisor position.”
Laskoskie, in her affidavit, similarly testified that Cisneros, at the time she
interviewed for the Intake Screening Supervisor Position in June 2015, had been a
Lead Officer in the Intake and Court Services Division for the past four years and
had “stepped in as an acting supervisor” at times, such as by “filling in during the
absence[s] of [s]upervisors.” For instance, while one supervisor was “out on military
26
leave from December 2012 to May 2014,” Cisneros “made herself available to work
any shift, weekdays, weekends in the role as acting supervisor.”
In contrast to Cisneros, Smith, when he interviewed for the position of Intake
Screening Supervisor in June 2015, was not a Lead Officer in the Intake and Court
Services Division. Although the record reveals that Smith did serve as a Lead
Officer for a period of time from 2006 to 2007, Broussard testified, in his affidavit,
that he removed Smith from the position of Lead Officer in 2007 “after an employee
complained about extremely uneven distribution of . . . work.” Broussard further
testified, in his 2014 deposition, that Smith served as a Lead Officer in the Intake
and Court Services Division for less than a year. According to Broussard, Smith
was promoted to a Lead Officer in the Intake and Court Services Division in late
2006 and he was removed from that position in April 2007.
Employees who hold different jobs are not similarly situated. Rincones, 520
S.W.3d at 584; Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 911–12 (Tex.
App.—El Paso 2015, no pet.). And employees with different responsibilities are not
considered to be “nearly identical.” Rincones, 520 S.W.3d at 584 (internal
quotations omitted); Reyes, 272 S.W.3d at 594 (internal quotations omitted).
Here, Smith, himself, testified in his deposition that a Juvenile Probation
Officer and a Lead Officer have different roles and different responsibilities. For
instance, Smith explained that as a Juvenile Probation Officer, he “inventoried
27
property,” “did the booking process for the juveniles coming in,” “did summary
reports for the judges, for detention hearing[s] as well,” “met with families,”
“interviewed the children as well as their parents,” and “requested documents from
schools, different places, medical offices, [and] . . . psychiatric hospitals.” In
contrast, a Lead Officer had the “same duties” as a Juvenile Probation Officer, but
also “the added duties of a manager.” Thus, a Lead Officer was required to “do
everything that a supervisor would do,” including “sign[ing] off on reports,”
reviewing reports, “insur[ing] that work was flowing as it . . . should,” “assign[ing]
cases to the different officers in the unit to work on,” and making sure that other
officers were “turning in their work.” Further, if an individual “called in . . . sick or
wasn’t coming to work for whatever reason,” the Lead Officer would note that and
“pass that along to the managers.”
We note that the record also contains a job description for a Juvenile Probation
Officer in the Intake and Court Services Division and a job description for an Intake
Screening Supervisor in that same division. The Juvenile Probation Officer’s job
description states: “The Intake officer facilitates the pre-booking/intake/
detainment/detention hearing report and or release process of juveniles admitted to
the Harris County Juvenile Justice Center detention.” The job description then lists
the “[e]ssential [f]unctions” of a Juvenile Probation Officer. In contrast, the job
description for an Intake Screening Supervisor states that the supervisor
28
“[c]oordinates the efforts of intake personnel to ensure a comprehensive service
delivery at the Intake Screening level” and lists the “[e]ssential [f]unctions” of an
Intake Screening Supervisor, which differ from those of a Juvenile Probation
Officer. The difference in the tasks and responsibilities assigned to a Juvenile
Probation Officer in the Intake and Court Services Division versus the tasks and
responsibilities assigned to an Intake Screening Supervisor for the same division is
relevant considering that Smith testified that a Lead Officer performs the same tasks,
and has the same responsibilities, as an Intake Screening Supervisor, in addition to
the responsibilities of a regular Juvenile Probation Officer.
When two employees have differing supervisory responsibilities, we cannot
say that they are similarly situated; instead, such circumstances indicate that such
employees are in “significantly different position[s].” See Grice v. Alamo Cmty.
Coll. Dist., No. 04-12-00524-CV, 2013 WL 1760626, at *5 (Tex. App.—San
Antonio Apr. 24, 2013, no pet.) (mem. op.); see also Crosby v. Comput. Sci. Corp.,
470 Fed. Appx. 307, 309 (5th Cir. 2012) (supervisor not similarly situated).
Smith has presented no evidence of any discriminatory treatment in
comparison to any similarly-situated employee.
C. Stated Reason for Adverse Employment Decision
In his summary-judgment response, Smith next argues that Harris County’s
stated reason for promoting Cisneros to the position of Intake Screening Supervisor
29
was false because she was significantly less qualified than him and he is significantly
more qualified for the position.
Laskoskie testified, in her affidavit, that after interviewing the applicants for
the Intake Screening Supervisor position, her “first choice” was Cisneros. Laskoskie
explained that Cisneros “presented herself well during the interview
process . . . . She emphasized her role as [a] [L]ead [O]fficer [in the Intake and
Court Services Division] for the past four years and how she had stepped in as an
acting supervisor . . . .” Further, Laskoskie noted that as the Intake Administrator
for the Intake and Court Services Division, she had “worked closely
with . . . Cisneros on a daily basis and [Cisneros] had made herself stand out from
the rest of the officers with her knowledge and strong work ethic.” Cisneros
“complete[d] her assigned work in a timely manner and t[ook] the initiative to assist
with any other tasks that need to be completed.” She was thorough and trained “new
employees/interns.” Cisneros “demonstrated her leadership skills by filling in
during the absence of [s]upervisors,” including when a supervisor was “out on
military leave from December 2012 to May 2014.” During that time, Cisneros
“made herself available to work any shift, weekdays, weekends in the role as acting
supervisor to assist.” Laskoskie considered Cisneros to be “a team player,” who had
“proven to be an effective, confident, [and] dependable employee.”
30
Willing testified, in his affidavit, that after completing the interviews for the
Intake Screening Supervisor position, he felt that either Cisneros or Gallardo were
“the best [applicants] for the position.” According to Willing, both applicants “not
only ha[d] a long tenure with [the HCJPD], but ha[d] shown exemplary performance
in their work and ha[d] a very good reputation within the [HCJPD].” Both Cisneros
and Gallardo “interviewed very well, presented themselves very well, highlighted
their skills, answered the screening [committee’s] questions thoroughly[,] and
impressed [him].”
In regard to Cisneros, specifically, Willing also explained that he was
“particularly impressed” with her, as she was a Juvenile Probation Officer for the
Intake and Court Services Division, and she “knew the Intake job very well.”
Further, Cisneros, at the time of her interview, had served as a Lead Officer for the
Intake and Court Services Division “for a few years and [had] gained the trust and
respect of her fellow officers, as well as management.” Cisneros “had proven to be
reliable[] [and] hard-working,” and she “took the initiative to get things done[] and
always went above and beyond her normal duties.” Cisneros was “bi-lingual and
often assisted in the detention hearing courtroom as well as filled in for th[e] role as
detention hearing representative as needed, which [was] a supervisor position.”
When Cisneros was asked during her interview about the “essential functions” of an
Intake Screening Supervisor, she “not only gave an excellent answer but did a great
31
job in relating her skills into the management role.” According to Willing, Cisneros
did “a great job of separating and standing herself out from her peers through her
work, attitude and competence.”
Malveaux testified, in her affidavit, that following the screening committee’s
interviews with the applicants for the Intake Screening Supervisor position, Cisneros
was her “top recommendation for the position based on her interview responses and
her years and quality of work experience with [the HCJPD],” including the time that
Cisneros had spent working in the Intake and Court Services Division. Malveaux
further explained that “[i]n addition[] [to] having direct and indirect knowledge
of . . . Cisneros’s work experience within the [HCJPD], [Malveaux] believe[d] of all
of the applicants, [that Cisneros] best demonstrated the capability and characteristics
which would allow her to perform at the level of expectation needed for the Intake
[Screening] Supervisor position.” According to Malveaux, Cisneros “answered the
interview questions well,” “demonstrated knowledge of all areas of the unit and the
workflow process,” “produce[d] a high quality work product in a timely and efficient
manner,” and was capable of making “sound decisions on her own but also kn[ew]
when to seek assistance.” Cisneros “demonstrated leadership skills as seen from her
role as [a] Lead Officer” and “had positive working relationships with all levels of
staff and administration.”
32
Broussard testified, in his affidavit, that after the screening committee
conducted interviews with the qualified applicants for the position of Intake
Screening Supervisor, he met with the committee and “received the names of the
finalists” that the committee had selected, i.e., Cisneros and Gallardo. Broussard
and the screening committee then “discussed the merits of the two finalists,” and
Broussard sought Laskoskie’s opinion as to which applicant she preferred as she
would serve as the supervisor for the individual that was selected. Laskoskie
“advised [that] she would prefer . . . Cisneros” and Willing and Malveaux, the other
screening committee members, agreed with that recommendation. Thereafter,
Broussard “approved” Cisneros for the position of Intake Screening Supervisor.
Smith’s sole basis for asserting that Harris County’s stated reason for
promoting Cisneros to the position of Intake Screening Supervisor, rather than him,
was false is based on his subjective belief that she was significantly less qualified
than him for the position. In support of his assertion, Smith relies on his own
deposition testimony and his resume concerning what he considers to be both his
and Cisneros’s qualifications. See Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d
391, 402–03 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (employee’s conclusory
statements in affidavit and deposition not sufficient summary-judgment evidence to
raise fact issue regarding causal link). Notably, an employee’s subjective belief that
his employer has given a false reason for its employment decision is not competent
33
summary-judgment evidence. Datar, 518 S.W.3d at 478; Donaldson v. Tex. Dep’t
of Aging & Disability Servs., 495 S.W.3d 421, 438 (Tex. App.—Houston [1st Dist.]
2016, pet. denied). And generalized assertions that an employer’s stated reason for
its adverse employment decision is false, do not raise a fact issue. See Crutcher v.
Dall. Indep. Sch. Dist., 410 S.W.3d 487, 498 (Tex. App.—Dallas 2013, no pet.).
Here, Laskoskie testified that Smith was not selected as one of the
most-qualified applicants by the screening committee because although he was a
“tenured employee, bi-lingual[,] and ha[d] experience working in different areas of
the [HCJPD],” Smith’s “interview answers reflected mainly his job as a probation
officer and did not highlight leadership examples or how he ha[d] stepped out of
[his] daily duties [as] a probation officer.” Further, in regard to Smith’s work
product and work ethic, which Laskoskie had observed, Laskoskie explained that his
“work product and data entry require[d] review[] from a [s]upervisor,” there were
times when Smith “failed to complete data entry in JIMS II on cases,” and Smith’s
“report writing often need[ed] correction or additional information.”
Willing similarly testified that, although Smith had been a Juvenile Probation
Officer “for many years and kn[ew] the job well,” Willing did not consider him to
be “a top” applicant for the Intake Screening Supervisor position. Willing explained
that Smith “highlighted in his interview the things [that] he d[id] well as a [Juvenile]
[P]robation [O]fficer,” but Smith’s skills and abilities as a Juvenile Probation Officer
34
did not “translate . . . into how he would be as a manager.” Further, Smith did not
address how he had “go[ne] above and beyond or show[n] initiative to get things
done,” which Willing was looking for in an individual who would be “in a
management role.”
Finally, Malveaux noted that Smith provided “adequate responses to [his]
interview questions” and had “many years of experience with the [HCJPD] and in
the Intake [and Court Services Division].” However, he “did not present any
outstanding or exceptional work experience or leadership examples or qualities that
would [have] indicate[d] that he would be able to successfully fulfill the
expectations” of an Intake Screening Supervisor.
Smith has presented no evidence that Harris County’s stated reason for
promoting Cisneros to the position of Intake Screening Supervisor, or its stated
reason for denying Smith the promotion, were false. See Ridley, 540 S.W.3d at 103;
Donaldson, 495 S.W.3d at 444; see also Winters v. Chubb & Son, Inc., 132 S.W.3d
568, 578 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (explaining “[e]ven an
incorrect belief that an employee’s performance is inadequate constitutes a
legitimate, non-discriminatory reason” for employer’s adverse employment action
(internal quotations omitted)).
35
D. Temporal Proximity
In his summary-judgment response, Smith argued that temporal proximity
existed between his protected activity, i.e., the filing of his EEOC charges, and the
adverse employment action, i.e., Harris County’s June 2015 denial of Smith’s
promotion to the Intake Screening Supervisor position, because although he filed his
EEOC charges in 2008 and 2012, his lawsuit stemming from his 2012 EEOC charge
was not dismissed until March 24, 2014 and Harris County “retaliated against him
at the first opportunity.”
Retaliation claims are often provable only through circumstantial evidence
that includes the temporal proximity between the protected activity and the alleged
retaliatory action. Univ. of Tex. at El Paso v. Esparza, 510 S.W.3d 147, 159 (Tex.
App.—El Paso 2016, no pet.). While temporal proximity may indeed raise an
inference of retaliation, the events must be very close in time. Tex. Dep’t of Criminal
Justice v. Flores, 555 S.W.3d 656, 668–69 (Tex. App.—El Paso 2018, no pet.); see
also Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 529 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (noting proximity may establish causal
connection when protected activity and adverse employment action are separated by
weeks, as opposed to months and years).
It is undisputed that on April 7, 2008, Smith filed a charge of discrimination
with the EEOC, and on April 2, 2012, he filed a second charge of discrimination
36
with the EEOC. In June 2015, Smith did not receive the promotion for the position
of Intake Screening Supervisor. The denial of Smith’s promotion occurred more
than seven years after his filing of his 2008 EEOC charge and more than three years
after his filing of his 2012 EEOC charge. Although retaliation need not be
immediate to be actionable and there is “no hard-and-fast-rule” that any specified
amount of time is too removed to find an inference of causation, courts have
routinely held that even a gap of several months between an employee’s protected
activity and an employer’s adverse employment action is too long by itself to
establish a prima facie case of a causal connection. See Jackson v. Honeywell Int’l,
Inc., 601 Fed. Appx. 280, 286–87 (5th Cir. 2015) (“We have found a five month
period between the protected activity and the adverse employment action insufficient
to establish a causal link.”); Barnes v. Tex. A & M Univ. Sys., No. 14-13-00646-CV,
2014 WL 4915499, at *5–6 (Tex. App.—Houston [14th Dist.] Sept. 30, 2014, pet.
denied) (mem. op.) (two-year gap did not establish necessary causal link); Green v.
Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 522–23 (Tex. App.—Houston [1st Dist.]
2006, pet. denied) (holding four months between filing of claim and termination did
not raise fact issue as to causal link); see also Clark Cty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (protected activity and employer’s adverse action must be
“very close” in time to support causation).
37
Smith asserted in his summary-judgment response that despite the significant
gap in time between Smith’s 2008 and 2012 EEOC charges and Harris County’s
June 2015 denial of Smith’s promotion, the lawsuit stemming from his 2012 EEOC
charge was not dismissed until March 24, 2014. And because Smith “did not apply
for another position [with the HCJPD] until 2015[,] . . . after his lawsuit [had]
ended,” Harris County did not have an opportunity to retaliate against him until it
denied him the promotion of the Intake Screening Supervisor position in June 2015.
In support of his argument, Smith attached to his summary-judgment response a
petition, which is undated and lacks any file stamp, purportedly from his 2012
lawsuit and an “Order Granting Plaintiff’s Notice of Dismissal Without Prejudice”
signed by the trial court on March 24, 2014.
We note that this evidence shows at most that Smith’s lawsuit purportedly
arising from his 2012 EEOC charge was dismissed over a year before Smith did not
receive the promotion to the Intake Screening Supervisor position. And Smith
presented no evidence that the June 2015 denial of the promotion was, as alleged,
the “first opportunity” that Harris County had to retaliate against him. See Flores,
555 S.W.3d at 669 (“[I]t also is true that there is no hard-and-fast rule that any
specified amount of time is too removed for an inference of causation[,] [e]specially
where a defendant retaliates at the first opportunity that is presented . . . .” (internal
quotations omitted)). In any event, even if we did only look at the year-long gap
38
between the conclusion of Smith’s 2012 lawsuit and Harris County’s failure to
promote Smith to the position of Intake Screening Supervisor in June 2015, that
evidence has little, if any, probative value regarding causation. See, e.g., Alamo
Heights, 544 S.W.3d at 790 (eight-month gap “is so long as to be of little, if any,
probative value”); Bermudez v. Tex. Mut. Ins. Co., No. 03-17-00687-CV, 2018 WL
4140665, at *3 (Tex. App.—Austin Aug. 30, 2018, no pet.) (mem. op.) (five-month
gap had little, if any, probative value); see also Parker v. Valerus Compression
Servs., LP, 365 S.W.3d 61, 67 (Tex. App.—Houston [1st Dist.] 2011, pet. denied)
(only where there is “[l]ittle or no lapse in time between the [employee’s] . . . claim
and the employer’s adverse employment action” is there “circumstantial evidence of
a retaliatory motive”).
Further, we note that temporal proximity, standing alone, is not sufficient
proof of but for causation, particularly where evidence shows legitimate reasons for
an employer’s adverse employment action. See Strong v. Univ. Healthcare Sys.,
L.L.C., 482 F.3d 802, 808 (5th Cir. 2007); Willis v. Nucor Corp., 282 S.W.3d 536,
546 (Tex. App.—Waco 2008, no pet.) (temporal proximity of filing claim and
employer’s adverse employment action alone not sufficient to raise genuine issue of
material fact); see also Perry v. Univ. of Hous.-Downtown, No. 01-08-00807-CV,
2009 WL 3152166, at *5 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.)
(mem. op.) (“A year between protected activity and a disciplinary action [was] not
39
sufficiently proximate to show a causal link without other evidence that the firing
was retaliatory.”). Here, we have concluded that there is no evidence that Harris
County failed to follow its policies and procedures when hiring for the Intake
Screening Supervisor position in June 2015, there is no evidence of any
discriminatory treatment in comparison to any similarly-situated employee, and
there is no evidence that Harris County’s stated reason for promoting Cisneros to the
position of Intake Screening Supervisor, or its stated reason for denying Smith the
promotion, was false.
We conclude that the temporal proximity between Smith’s 2008 and 2012
EEOC charges and Harris County’s June 2015 denial of Smith’s promotion is
insufficient to raise a fact issue as to causation.
E. Knowledge of EEOC Charges
Smith also asserted in his summary-judgment response that two of the three
members of the screening committee, i.e., Laskoskie and Malveaux, knew that Smith
had previously filed his 2008 and 2012 EEOC charges, and Broussard, “who had the
final say” as to who was hired for the Intake Screening Supervisor position, was
aware that Smith had previously filed EEOC charges.
Laskoskie, in her affidavit, testified that she was a member of the screening
committee in June 2015. Following the interviews conducted by the screening
committee, Smith was not selected as one of the most-qualified applicants for the
40
Intake Screening Supervisor position because “[h]is interview answers reflected
mainly his job as a probation officer and did not highlight leadership examples or
how he ha[d] stepped out of [his] daily duties [as] a probation officer.” Further,
Laskoskie reviewed Smith’s work and work product, and although Smith met the
daily expectations as a Juvenile Probation Officer, his “work product and data entry
require[d] review[] from a [s]upervisor,” there were times when he “failed to
complete data entry in JIMS II on cases,” and his “report writing often need[ed]
correction or additional information.”
Although Laskoskie testified that she was aware that Smith had previously
filed an EEOC charge and a previous lawsuit, she also testified that she had never
had any discussions with him or anyone else regarding Smith’s filing of any EEOC
charge or any lawsuit other than with the Deputy Director of HR and Broussard, who
told her that she “need[ed] to provide information and an affidavit for the previous
lawsuit filed by” Smith. Laskoskie specifically stated: “The fact that I knew
of . . . Smith’s previous filings played no role in my decision for selecting my top
picks for the Intake Screening Supervisor position.” Malveaux similarly testified
that she was a member of the screening committee in June 2015, and Smith was
interviewed for the position of Intake Screening Supervisor along with ten other
applicants. According to Malveaux, the screening committee did not recommend
Smith for the position because he “did not present any outstanding or exceptional
41
work experience or leadership examples or qualities that would [have] indicate[d]
that he would be able to successfully fulfill the expectations of the position.”
Although Malveaux was aware that Smith “had filed a previous EEOC charge
as well as a previous lawsuit,” she “never had any discussions with . . . Smith nor
anyone else in the [HCJPD] regarding [his] filing of any EEOC charge or any lawsuit
other than Dr. Mathew Shelton, Deputy Director of [HR], when he informed [her
that she] would need to provide information and an affidavit for the previous lawsuit
filed by . . . Smith.” According to Malveaux, “[t]he fact that [she] knew
of . . . Smith’s previous filings played no role in [her] decision for selecting [her] top
picks for the Intake Screening Supervisor position.”
Willing, the third member of the screening committee, testified that at the time
the committee interviewed the applicants for the Intake Screening Supervisor
position, he “was not aware that . . . Smith had filed any complaints or charges,
including any EEOC charge against th[e] agency or any other entity.”
Broussard, in his affidavit, testified that in 2015 he was the Deputy Director
of Intake and Court Services Division in the HCJPD, and as deputy director, he was
“authorized to make the final decision to select the best [applicant] for the position”
of Intake Screening Supervisor. When Broussard met with the screening committee
after they had interviewed the applicants, the screening committee recommended
that either Cisneros or Gallardo be hired for the Intake Screening Supervisor
42
position. “Smith’s name was not included as one of the finalists submitted by the
screening committee.” Broussard ultimately selected Cisneros for the position.
Broussard further testified that at the time that the screening committee
conducted its interviews with the applicants, he was aware that Smith had “filed
previous EEOC complaints as well as a lawsuit against [Harris] County with
allegations of discrimination and retaliation.” However, “[a]t no time did [he] ever
disclose [his] knowledge or discuss [his] knowledge of . . . Smith’s previous filings
with anyone on the [screening committee] for the Intake Screening Supervisor
position posted in June of 2015.”
While a decision maker’s knowledge of a protected activity may be relevant
to the causation inquiry, knowledge of an employee’s protected activity, such as the
filing of an EEOC charge, standing alone, is not sufficient to demonstrate the
requisite causal link of a prima facie retaliation case. See Ridley, 540 S.W.3d at 103
(knowledge of discrimination complaint did not support causal link where no
evidence employee treated differently than other similarly-situated employees, no
evidence employer failed to follow usual policies and procedures, and no evidence
reasons given were false); Donaldson, 495 S.W.3d at 444; see also Bartosh v. Sam
Hous. State Univ., 259 S.W.3d 317, 329 (Tex. App.—Texarkana 2008, pet. denied)
(noting while employer’s knowledge of complaint “may be necessary to support an
inference of causation,” it, standing alone, is not sufficient); Lone Star Steel Co. v.
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Hatten, 104 S.W.3d 323, 327–28 (Tex. App.—Texarkana 2003, no pet.) (“Mere
knowledge . . . does not, however, establish a causal link . . . but is only one factor
to be considered in light of the record as a whole.”).
We conclude that Smith has not raised a fact issue as to causation based on
Laskoskie’s, Malveaux’s, or Broussard’s knowledge of his 2008 and 2012 EEOC
charges or any resulting litigation. See Donaldson, 495 S.W.3d at 444.
* * *
Because Smith failed to present evidence raising a fact issue as to whether a
causal link existed between his protected activity, i.e., the filing of his 2008 and 2012
EEOC charges, and Harris County’s adverse employment action, i.e., the June 2015
denial of a promotion to Smith for the Intake Screening Supervisor position, we
conclude that Smith cannot establish his prima facie case for retaliation.
Accordingly, we hold that the trial court did not err in granting Harris County
summary judgment.
Because we have concluded that Smith failed to present evidence raising a
fact issue concerning the requisite causal link for his retaliation claim, we need not
address his assertion that “Harris County’s non-discriminatory reason for not
choosing [him] for promotion” to the Intake Screening Supervisor position in June
2015 was pretextual. See TEX. R. APP. P. 47.1.
We overrule Smith’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
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