Austin Independent School District v. Rodney Anderson ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00286-CV
Austin Independent School District, Appellant
v.
Rodney Anderson, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-004070, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
Following termination of his employment, Rodney Anderson filed suit against his
former employer, Austin Independent School District (AISD), under the Texas Whistleblower
Act, see Tex. Gov’t Code §§ 554.002-.010, and the Texas Commission on Human Rights Act
(TCHRA), see Tex. Lab. Code §§ 21.051-.061. AISD filed a plea to the jurisdiction, supported
by evidence, which the trial court denied. In this interlocutory appeal, AISD asserts that the trial
court erred in denying its plea because it is protected from suit by governmental immunity and
because Anderson failed to assert a claim for which immunity is waived. See Tex. Civ. Prac. &
Rem. Code § 51.014(a)(8). Because we conclude that the allegations in Anderson’s pleadings
and the jurisdictional evidence are insufficient to support a waiver of immunity under either the
Whistleblower Act or the TCHRA, we reverse the trial court’s order and render judgment
dismissing the suit for lack of jurisdiction.
BACKGROUND
Anderson was hired as a police officer by AISD in its Police Department in 1995
and was promoted to sergeant in 2004 and to lieutenant in 2010. From 2012 until his termination
in 2019, Anderson’s direct supervisor was Interim Chief, later Assistant Chief, Chris Envoy.
On March 4, 2018, Anderson sent an anonymous letter to the AISD Board of
Trustees in which he complained about the “current leadership within the District and [the]
Department” and, specifically, their handling of a terroristic threat received at Akins High
School in February 2018. In his letter, Anderson claimed that internal policies and procedures
were not followed during the incident response and that “the chaos that ensued” was “a direct
result of a lack of training for line officers, lack of proper resources, and the lack of experience
of the first line supervision level.”
Anderson also complained in his anonymous letter to the Board about poor
morale in the Police Department due to conduct by one of his colleagues, Sergeant David
Herrera. According to Anderson’s letter, the Department failed to adequately discipline Herrera
after learning that he had “slapped and used extreme language” toward a student. Anderson
further stated that Herrera had been accused of sexually harassing another officer and that due to
“the treatment from Chief Envoy, Lieutenant Barrera, and the staff in human resources,” the
officer resigned. Anderson did not, however, provide any details as to the harassing conduct that
Herrera had been accused of committing. On April 16, 2018, Anderson sent a formal grievance
to the Board’s outside legal counsel, in which he recited his complaints about the handling of the
terroristic threat and lack of leadership but omitted his complaints about Sergeant Herrera.
According to the allegations in his live pleadings before the trial court, Anderson
also reported issues concerning Sergeant Herrera directly to Assistant Chief Envoy. Specifically,
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in June 2017, Anderson orally informed Envoy that Herrera had been seen sleeping while on
duty. In addition, in January 2019, he orally informed Envoy that Herrera may have improperly
worked overtime duty while on leave under the Family and Medical Leave Act (FMLA). Envoy
responded to Anderson’s oral report about improper overtime by requesting that he send a
follow-up e-mail summarizing what he knew about the situation.
In compliance with Assistant Chief Envoy’s request, on January 4, 2019,
Anderson sent an e-mail to Envoy, stating that “he was made aware that [Sergeant Herrera] was
possibly working off-duty assignments at the Long Center and the Junior League” while on
FMLA leave and that he was “bringing this to [Envoy’s] attention for further review and or
investigation.” In response to the e-mail, Envoy informed Anderson that he should submit a
formal complaint to initiate an internal affairs investigation. On January 7, 2019, Anderson
submitted a sworn complaint alleging that Herrera “was possibly working off-duty assignments
. . . while off on FMLA,” although he was “not sure of the dates or times of the possible policy
violations.” Following an investigation, the Department determined that Anderson’s allegations
were unsubstantiated and dismissed his complaint.
On January 18, 2019, Sergeant Herrera filed a grievance against Anderson,
complaining that Anderson had harassed him by improperly sharing his disciplinary history and
threatening his work status. The matter was assigned to an investigator, attorney Rachael
Maresh. During the course of the investigation, Herrera reported to Maresh that Anderson had
retaliated against him for filing the grievance by removing him from an overtime assignment at a
baseball tournament scheduled for March 1, 2019. Maresh incorporated Herrera’s retaliation
complaint into her ongoing investigation of his harassment complaint.
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Through her investigation, Maresh learned that although Anderson was not
Sergeant Herrera’s supervisor, he was in charge of scheduling overtime assignments for the
Police Department. When questioned by Maresh, Anderson denied that he removed Herrera’s
overtime assignment because Herrera had filed a grievance against him. Anderson explained that,
in error, he had “double booked” Herrera and another officer, Officer Thompson, for the same
shift and that he removed Herrera’s assignment to correct the error. Conversely, Thompson told
Maresh that he had signed up for the morning shift and Sergeant Herrera had signed up for the
afternoon shift, but that Anderson later told Thompson to work the full day instead.
On April 5, 2019, Maresh reported her findings from her investigation on
Sergeant Herrera’s grievance against Anderson in a written executive summary. According
to the summary, Maresh determined that “there was insufficient evidence to find by a
preponderance of the evidence that prohibited harassment [by Anderson against Herrera] had
occurred.” She also concluded, however, that “based on the information and documentation
provided by the interviewees, the preponderance of the evidence supports a finding that
Lieutenant Anderson retaliated against Sergeant Herrera for filing his DIA (Local) complaint by
removing him from an overtime duty.” Maresh reported, “Lt. Anderson’s explanation of the
duty assignment correction and deleting an extra duty on top of a full-duty was not corroborated
by any other interviewees involved with this allegation,” and “no one recalled there being a full
day shift on the schedule originally for the . . . baseball tournament.”
AISD human resources officials then met with Anderson, informed him of the
results of Maresh’s investigation, and placed him on administrative leave. AISD Chief of
Police, Ashley Gonzalez, then recommended that the district terminate Anderson’s employment,
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which the Superintendent approved. Anderson was terminated from his employment effective
April 10, 2019.
On July 15, 2019, Anderson filed suit against AISD, alleging that AISD violated
the TCHRA because it “discriminated and retaliated against [him] because of his race . . . and
because of his opposition to unlawful employment practices.” Anderson also claims that in
violation of the Whistleblower Act, AISD “discriminated and retaliated against [him] . . .
because he made good faith reports of violations of law committed by AISD and its employees to
appropriate law enforcement authorities.”
In response to the suit, AISD filed a plea to the jurisdiction on the ground that it
is protected from suit by governmental immunity and that Anderson had failed to establish
a valid waiver of immunity under either the Whistleblower Act or the TCHRA. In support of its
plea, AISD attached Anderson’s deposition testimony and exhibits, along with sworn
declarations from Assistant Chief Envoy and Chief Gonzalez. In their declarations, Envoy
and Gonzalez generally described a series of incidents that, in their view, demonstrated
“performance deficiencies” and led to the decision to recommend termination of Anderson’s
employment. According to Gonzalez’s declaration, the “final straw” occurred when he received
Maresh’s executive summary, concluding that Anderson had retaliated against Herrera for filing
a grievance.
Anderson filed a response to the plea to the jurisdiction, reciting portions of his
petition, asserting that he had “properly invoked the jurisdiction of the court,” and attaching
his own sworn declaration. Following a hearing, the trial court denied AISD’s plea, and this
appeal followed.
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STANDARD OF REVIEW
A plea to the jurisdiction is procedural mechanism “through which a party may
challenge a trial court’s authority to decide the subject matter” of a claim. Texas Dep’t of
State Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d).
Because whether a court has subject-matter jurisdiction is a question of law, we review de novo
a trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225 (Tex. 2004).
A plea to the jurisdiction may challenge whether the plaintiff has alleged facts
that affirmatively demonstrate a court’s jurisdiction to hear the case, the existence of those
very jurisdictional facts, or both. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex.
2021). When the jurisdictional plea challenges the pleadings, we determine whether the
plaintiff’s pleadings allege facts affirmatively demonstrating subject-matter jurisdiction.
Miranda, 133 S.W.3d at 226. In making this assessment, we construe the plaintiff’s pleadings
liberally, taking all assertions as true, and look to the plaintiff’s intent. Texas Dep’t of Crim.
Justice v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). If the pleadings affirmatively negate the
existence of jurisdiction, the plea may be granted without affording the plaintiff an opportunity
to replead. Miranda, 133 S.W.3d at 226.
When the plea challenges the existence of jurisdictional facts, we must move
beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Bland Indep. Sch.
Dist. v Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). When those challenged jurisdictional facts
also implicate the merits of the plaintiff’s claim, as in this case, the plaintiff’s burden mirrors that
of a traditional summary judgment. Lara, 625 S.W.3d at 46 (quoting Mission Consol. Indep.
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Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). Consequently, we review the relevant
evidence in the light most favorable to the plaintiff to determine whether a genuine issue of
material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (citing
Miranda, 133 S.W.3d at 226). If the evidence creates a fact question regarding the jurisdictional
issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be
resolved by the fact finder. Miranda, 133 S.W.3d at 227-28. But if the relevant evidence is
undisputed or does not raise a fact question on jurisdiction, we rule on the plea as a matter of
law. See id. at 228.
Sovereign immunity generally bars suits against the State or its agencies, absent a
clear and unambiguous waiver of immunity by the legislature. Nazari v. State, 561 S.W.3d 495,
500 (Tex. 2018). Under the doctrine of governmental immunity, political subdivisions of the
state, including school districts, share the state’s immunity when performing governmental
functions as the state’s agent. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc.,
571 S.W.3d 738, 747 (Tex. 2019). Therefore, like sovereign immunity, governmental immunity
implicates a court’s subject-matter jurisdiction and may be asserted through a plea to the
jurisdiction or other procedural vehicle, such as a motion for summary judgment. Alamo
Heights, 544 S.W.3d at 770. When a governmental defendant challenges jurisdiction on the
basis of immunity, the plaintiff’s burden of affirmatively demonstrating jurisdiction includes
establishing a waiver of immunity. Swanson, 590 S.W.3d at 550.
Both the Whistleblower Act and the TCHRA, the statutes upon which Anderson’s
claims are based, operate as waivers of governmental immunity to the extent the governmental
entity is liable under the statute. See Tex. Gov’t Code § 554.0035 (waiver of immunity under
Whistleblower Act); University of Hous. v. Barth, 403 S.W.3d 851, 854 (Tex. 2013) (noting that
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“elements of a claim under the Whistleblower Act are jurisdictional and may not be waived”);
Garcia, 372 S.W.3d at 629 (explaining that TCHRA waives immunity when plaintiff “actually
states a claim for conduct that would violate the [TCHRA]”). In its jurisdictional plea, AISD
challenged both the sufficiency of Anderson’s pleadings and the existence of jurisdictional facts,
with supporting evidence. Thus, our ultimate inquiry is whether the pleaded and unnegated facts
presented by Anderson, taken as true and liberally construed with an eye to the pleader’s intent,
affirmatively demonstrate a claim within the scope of the Whistleblower Act or the TCHRA.
See Brantley v. Texas Youth Comm’n, 365 S.W.3d 89, 94 (Tex. App.—Austin 2011, no pet.).
DISCUSSION
On appeal, AISD asserts that the trial court erred in denying its plea because,
in its view, the undisputed factual allegations in Anderson’s pleadings and the jurisdictional
evidence affirmatively negate the existence of a valid waiver of governmental immunity under
both the Whistleblower Act and the TCHRA. In reviewing the trial court’s jurisdictional ruling,
we will first examine whether Anderson met his burden to demonstrate a valid waiver of
immunity under the Whistleblower Act and then examine whether he met his burden as to his
discrimination and retaliation claims under the TCHRA.
The Whistleblower Act
Background Law
When a trial court’s jurisdiction is premised on a violation of the Whistleblower
Act, the plaintiff meets his burden of affirmatively demonstrating jurisdiction by alleging facts
or, when necessary, producing evidence of facts sufficient to show that (1) he was a public
employee; (2) he made a good-faith report of a violation of law by his employing governmental
8
entity or another public employee; (3) the report was made to an appropriate law-enforcement
authority, and (4) he was subject to an adverse personnel action, such as suspension or
termination, because of the report. Texas Dep’t of Crim. Justice v. McElyea, 239 S.W.3d 842,
849 (Tex. App.—Austin 2007, pet. denied); see Tex. Gov’t Code § 554.002(a).
In its plea to the jurisdiction, and now on appeal, AISD does not dispute that
Anderson was a public employee, that he reported conduct by his employer or another public
employee, and that he suffered an adverse personnel action. Instead, AISD argues that Anderson
failed to meet his burden to demonstrate a waiver of immunity as to the second and third
elements of a Whistleblower Act claim because his pleadings and the jurisdictional evidence
affirmatively negate the possibility that any report made by Anderson qualifies as “a good faith
report of a violation of law” to “an appropriate law[-]enforcement authority,” as those terms are
used in the Act.
Section 554.002 of the Whistleblower Act defines “appropriate law[-]enforcement
authority”:
[A] report is made to an appropriate law[-]enforcement authority if the authority
is part of a state or local governmental entity or the federal government that the
employee in good faith believes is authorized to: (1) regulate under or enforce the
law alleged to be violated in the report; or (2) investigate or prosecute a violation
of criminal law.
Tex. Gov’t Code § 554.002(b). As a result, an employee seeking protection under the
Whistleblower Act must prove that “the report was made to an appropriate law-enforcement
authority, or that the employee had a good-faith belief that it was.” Texas Dep’t of Human Servs.
v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014). The issue of whether an employee has made a report
in “good faith” to an appropriate law-enforcement authority has both subjective and objective
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elements. University of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d 680, 683 (Tex. 2013). To
establish “good-faith” as it relates to an appropriate law-enforcement authority, the employee
must show that (1) he believed that the reported-to authority was authorized (a) to regulate under
or enforce the law alleged to be violated in the report, or (b) to investigate or prosecute a
violation of criminal law; and (2) his belief was reasonable in light of his training and experience.
See Okoli, 440 S.W.3d at 614.
“An authority’s power to discipline its own or investigate internally does not
support a good-faith belief that it is an appropriate law-enforcement authority.” McMillen v.
Texas Health & Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex. 2016) (per curiam) (citing
Gentilello, 398 S.W.3d at 686); see Texas Comm’n on Envt’l Quality v. Resendez, 450 S.W.3d 520,
523 (Tex. 2014) (per curiam) (“Internal-compliance authority, however, cannot support a good-
faith belief that [reported-to authority] had the power to enforce the Government Code’s fraud-
reporting provisions or to pursue criminal charges.”) Instead, the reported-to authority must
possess “outward-looking powers,” McMillen, 485 S.W.3d at 429, and “reports up the chain of
command” are generally insufficient, Okoli, 440 S.W.3d at 614. In other words, to constitute an
appropriate law-enforcement authority under the Act, the reported-to authority must have the
power to enforce, investigate, or prosecute violations of law against third parties outside of the
entity itself, or it must have the power to promulgate regulations governing the conduct of third
parties. Gentilello, 398 S.W.3d at 686.
In addition, because Section 554.002(b) describes “an appropriate law[-]
enforcement authority” in terms of having certain authority in relation to “the law alleged to be
violated in the report” or “a violation of criminal law,” the particular law that the employee
reported was violated is critical to the determination of whether the report was made to an
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appropriate law-enforcement authority. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320
(Tex. 2002); Resendez, 450 S.W.3d at 523 (concluding that report of criminal violations to
state senator’s office was insufficient to support claim under Act because senator’s investigatory
powers were not prosecutorial). With these principles in mind, we consider the reports made by
Anderson as alleged in his pleadings.
Reports made to the AISD Board of Trustees
Liberally construing the allegations in Anderson’s pleadings and viewing those
allegations in the light most favorable to him, the reports that are the basis of Anderson’s
Whistleblower Act claim were made to the AISD Board of Trustees (in his March 2018 letter)
and, separately, to Assistant Chief Envoy. The reported “violations of law” made to the Board,
as alleged by Anderson and reflected in his March 2018 letter are that (1) Sergeant Herrera
“slapp[ed] a handcuffed student and us[ed] extreme language” toward a student in detention, “in
violation of the Penal Code, § 22.04 and AISD Policy No. 1.02.B.2 and 1.02.B.28”; (2) Herrera
sexually harassed a subordinate, in violation of the Texas Labor Code, Chapter 21; and
(3) Assistant Chief Envoy, other police officers, and the AISD superintendent violated various
AISD policies in their “mishandling of a February 22, 2018 terroristic threat.”
We conclude that the factual allegations in Anderson’s pleadings and the relevant
jurisdictional evidence fail to raise a fact issue regarding whether any of these reports, qualify as
reports made to an “appropriate law [-]enforcement authority” under the Whistleblower Act.
See Tex. Gov’t Code § 554.002(b). Anderson does not allege, nor is there any evidence
suggesting, that the Board has any authority to “investigate or prosecute” criminal offenses. See
id. (governmental authority is “appropriate law[-]enforcement authority if . . . the employee in
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good faith believes [the authority] is authorized to . . . investigate or prosecute a violation of
criminal law”). In addition, neither the allegations nor the evidence show that the Board has any
authority to “regulate under or enforce” any of the allegedly violated laws (i.e., the Penal Code,
the Labor Code, or AISD policies) outside of AISD, against third parties. See id. (governmental
authority is “appropriate law[-]enforcement authority if . . . the employee in good faith believes
[the authority] is authorized to . . . . regulate under or enforce the law alleged to be violated in the
report”). At best, the Board is responsible for internal compliance with its own policies and with
the laws cited by Anderson. See Resendez, 450 S.W.3d at 523 (internal-compliance authority is
insufficient to establish status as appropriate law-enforcement authority). Moreover, given his
expertise and training, Anderson could not have reasonably believed that the Board of Trustees
possessed the authority to regulate under or enforce any of the cited-to laws against third parties,
outside of the school district. See Okoli, 440 S.W.3d at 614. Therefore, to the extent Anderson
relies on his March 2018 letter to the Board to support his Whistleblower claim, we conclude
that the Board is not an “appropriate law-enforcement authority,” within the meaning of the Act.
Reports made to Assistant Chief Envoy
Turning to the reports that Anderson alleges he made to Assistant Chief Envoy,
the reported “violations of law” are that Sergeant Herrera (1) was “sleeping on the job, in
violation of [the Texas] Penal Code, Chapter 31”; and (2) worked overtime duty while on leave
under the Family and Medical Leave Act (FMLA), ”in violation of AISD Policy No. 3.09.A.2.”
As to his report that Herrera was improperly working while on FMLA leave,
Anderson does not allege and the evidence does not suggest that the AISD Police Department
has any “outward-looking powers” to regulate or enforce the FMLA or AISD Policy regarding
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use of FMLA leave. See McMillen, 485 S.W.3d at 429. In addition, Anderson does not allege
that working while on FMLA is a violation of criminal law, and we are not aware of any criminal
law prohibiting such work. Finally, given his expertise and training, Anderson could not have
reasonably believed that the Department possessed the authority to regulate under or enforce
either the FMLA or AISD Policy outside of the district. See Okoli, 440 S.W.3d at 614.
Consequently, the factual allegations in Anderson’s pleadings, taken as true, and the
jurisdictional evidence, viewed in the light most favorable to Anderson, fail to show that he
believed in good faith that Assistant Chief Envoy or the Department was authorized (1) to
regulate under or enforce, outside of the district, the FMLA or AISD Policy, or (2) to investigate
or prosecute a violation the FMLA or AISD Policy as a violation of criminal law. See id.
Therefore, to the extent Anderson relies on his FMLA-leave report to support his Whistleblower
claim, we conclude that Assistant Chief Envoy is not an “appropriate law-enforcement
authority,” within the meaning of the Act.
To the extent Anderson relies on his report to Assistant Chief Envoy that Herrera
violated Chapter 31 of the Penal Code, however, we recognize that the Police Department within
AISD is authorized to conduct criminal investigations within its jurisdiction. As previously
discussed, “appropriate law-enforcement authority” includes a governmental authority “that
the employee in good faith believes is authorized to . . . investigate or prosecute a violation of
criminal law.” Tex. Gov’t Code § 554.002(b). Consequently, reports to the Department of
violations of criminal law—including violations committed by the Department’s own
employees—may qualify as reports of “violations of law” to an “appropriate law[-]enforcement
authority.” Gentilello, 398 S.W.3d at 686 (noting that “[a] police department employee could
retain the protections of the Whistleblower Act if she reported that her partner [was engaging
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in criminal narcotics activity] to her supervisor in narcotics or internal affairs division”); see
also Okoli, 440 S.W.3d at 616 (explaining that internal report of violation of criminal law to
police could be protected under Act). Therefore, whether Anderson has demonstrated a valid
Whistleblower Act claim as it relates to his report that Herrera was sleeping on the job, turns on
whether such conduct constitutes “a violation of criminal law,” as that phrase is used in the Act.
See Tex. Gov’t Code § 554.002(b).
Liberally construed, Anderson alleges that Herrera’s sleeping while on duty
constitutes theft under Chapter 31 of Penal Code because, presumably, he received payment for
work or services not actually performed. Like the definition of “appropriate law[-]enforcement
authority,” the “violation of law” element incorporates a good-faith standard. That is, a plaintiff
is protected by the Whistleblower Act when, in “good faith,” he reports a violation of law.
City of Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010) (per curiam). Consequently, to
prevail on his Whistleblower Act claim Anderson must show that he believed that Herrera’s
sleeping while on duty constituted a violation of law and his belief must have been reasonable
based on his training and experience. See id.Chapter 31 of the Penal Code does not expressly criminalize sleeping during
work or even while on police duty. Instead, Section 31.02 provides that “[a] person commits an
offense if he unlawfully appropriates property with intent to deprive the owner of property.”
Tex. Penal Code § 31.02. Nothing in the facts as alleged in Anderson’s pleadings or the
evidence presented suggests that Herrera, by sleeping, intended to deprive AISD of its property.
See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981) (“Intent to deprive must be
determined from the words and acts of the accused.”); see also Tex. Penal Code § 31.01
(“[F]ailure to perform the promise in issue without other evidence of intent or knowledge is
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not sufficient proof that the actor did not intend to perform.”). Moreover, in his deposition
testimony, Anderson was asked whether he believed that he was reporting a violation of law
when he reported Herrera’s sleeping to Envoy. In response, Anderson stated that he did not
know if it was a violation of law but that he knew it was against Department policy. Anderson
was then asked whether based on his experience and training, he would refer a report of an
employee sleeping on the job to the district attorney for prosecution. Anderson replied that he
would not, and he agreed that it would have been frivolous to do so.
The undisputed evidence presented by AISD in support of its plea affirmatively
demonstrates that Anderson did not subjectively believe that Herrera’s sleeping constituted theft
under the Penal Code and that, objectively, it would have been unreasonable for Anderson to
believe that Herrera’s sleeping while on duty constituted theft. Consequently, Anderson’s report
that Herrera was sleeping while on duty, even if true, is not a good-faith report of a violation
of criminal law.
In summary, the undisputed allegations in Anderson’s pleadings and the pertinent
jurisdictional evidence, viewed in the light most favorable to Anderson, affirmatively
demonstrate that none of the reports that are the basis of Anderson’s Whistleblower claim qualify
as “a good faith report of a violation of law” to “an appropriate law[-]enforcement authority,”
within the meaning of the Whistleblower Act. Because Anderson failed to meet his burden to
demonstrate a valid waiver of immunity under the Act, the trial court erred in denying AISD’s
plea to the jurisdiction as to this claim.
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Texas Commission on Human Rights Act
Background Law
The TCHRA provides that an employer commits an unlawful employment
practice if because of “race, color, sex, national origin, religion, age, or disability” the employer
“fails or refuses to hire an individual, discharges an individual, discriminates in any other manner
against an individual in connection with compensation or the term, conditions, or privileges of
employment.” Tex. Lab. Code § 21.051(1). In addition, the Act prohibits an employer from
retaliating against an employee for engaging in certain protected activities, including “oppos[ing]
a discriminatory practice.” Id. § 21.055. The Texas Legislature enacted the TCHRA, in part,
to “execut[e] . . . the policies of Title VII of the Civil Rights Act of 1964 and its subsequent
amendments.” Id. § 21.001(1). Consequently, when analyzing a claim brought under the TCHRA,
we may look to federal law interpreting analogous Title VII provisions as authority. In re United
Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding).
To establish a claim of unlawful discrimination or retaliation under the TCHRA, a
plaintiff may rely on either direct or circumstantial evidence. Alamo Heights, 544 S.W.3d
at 781-82; Texas Alcoholic Bev. Comm’n v. Moralez, No. 03-19-00588-CV, 2021 Tex. App.
LEXIS 6036, at *20 (Tex. App.—Austin July 29, 2021, no pet.) (mem. op.). Generally, direct
evidence is evidence of “what the defendant did and said,” Garcia, 372 S.W3d at 634, that,
without inference or presumption, establishes discriminatory intent, Jespersen v. Sweetwater
Ranch Apts., 390 S.W.3d 644, 653-54 (Tex. App.—Dallas 2012, no pet.). Once a plaintiff
presents direct evidence, the burden shifts to the employer to show that the same adverse
employment decision would have been made regardless of any discriminatory animus. City of
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Austin Police Dep’t v. Brown, 96 S.W.3d 588, 597 (Tex. App.—Austin 2002, pet. dism’d) (citing
Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989)).
Because “motives are often more covert than overt,” making direct evidence of
animus hard to come by, a plaintiff may instead establish discrimination or retaliation with
circumstantial evidence. Garcia, 372 S.W.3d at 634. When a plaintiff relies on circumstantial
evidence, we evaluate the plaintiff’s claim by applying the burden-shifting framework
established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Alamo Heights, 544 S.W.3d at 782 (explaining that burden-shifting steps
apply to retaliation claims). Under this framework, a rebuttable presumption of discrimination or
retaliation arises when an employee establishes a prima facie case. Alamo Heights, 544 S.W.3d
at 781. An employer can defeat this presumption, however, by providing evidence of a
legitimate, nondiscriminatory reason for the employment action. Id. Finally, “once rebutted, the
presumption disappears, and an employee lacking direct evidence cannot prove a statutory
violation without evidence that the employer’s stated reason is false and a pretext for
discrimination.” Id. Although the burdens of production shift under the framework, the burden
of persuasion always remains with the employee. Id.
Circumstantial Evidence of Race Discrimination
AISD argues that the trial court erred in denying its plea as to Anderson’s claim
of racial discrimination because, it contends, he failed to adequately plead facts establishing a
prima facie case and because the undisputed jurisdictional evidence affirmatively negates the
existence of a prima facie case.
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The precise elements of a prima facie case “vary depending on the
circumstances.” Exxon Mobil Corp. v Rincones, 520 S.W.3d 572, 584 (Tex. 2017). To establish
a prima facie case of racial discrimination based on disparate treatment, the plaintiff must show
that he (1) is a member of a protected class, (2) was qualified for the position at issue, (3) was
subject to an adverse employment action, and (4) was treated less favorably than similarly
situated members outside the protected class.1 Bedgood v. Texas Educ. Agency, No. 03-14-
00030-CV, 2015 Tex. App. LEXIS 1546, at *4 (Tex. App.—Austin Feb. 19, 2015, pet. denied)
(mem. op.) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Ysleta
Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). Here, AISD does not dispute
that Anderson was qualified for his position, that he is a member of protected class, or that he
was subject to an adverse employment action when he was terminated. Instead, AISD contends
that Anderson has failed to affirmatively show that he was treated less favorably than similarly
situated members outside of his protected class, the fourth element of a prima facie
discrimination case.
“Employees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.” Ysleta Indep. Sch.
Dist., 177 S.W.3d at 917. In other words, “[t]he situations and conduct of the employees in
question must be ‘nearly identical.’” Rincones, 520 S.W.3d at 584 (quoting 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
1
A terminated employee can also establish a prima facie case of discrimination by
showing that he was replaced by someone outside of his protected class. See Texas Tech Univ.
Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). Anderson, who is
African-American, has not alleged or pleaded any facts showing that he was replaced by
someone who is not African-American.
18
‘nearly identical.’” Id. (quoting Reyes, 272 S.W.3d at 594). “[O]rdinarily, it will not be the
case that a plaintiff is similarly situated to another employee when the plaintiff is subordinate
to that employee.” Id. (quoting Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744, 751
(7th Cir. 2006)).
In his pleadings, Anderson states that he is “black-African American,” and that he
was subject to an “adverse employment action” when he was suspended and then, a few days
later, terminated from his employment.2 Anderson also generally alleges that he was “subjected
to racially based disparate treatment,” that there was “favoritism for similarly situated Hispanic
employees . . . and similarly situated Caucasian or white employees,” and that “the actions of
the decision makers in his termination were motivated by considerations of his race.” However,
Anderson does not identify any employees who, in his view, were “similarly situated”; provide
any details as to whether such similarly situated employees had similar standards, supervisors,
and conduct; or describe how these unidentified employees were treated more favorably by
AISD. In short, the factual allegations in Anderson’s pleadings, liberally construed and taken as
2
In his petition, and in his response to AISD’s plea to the jurisdiction, Anderson
recites a list of additional actions that he contends were discriminatory and retaliatory, including
(1) being instructed by Assistant Chief Envoy “to write an email outlining his reports regarding
Sergeant Herrera’s violations”; (2) being “transferred from the North Command to the South
Command, increasing the commute from his home . . . by approximately 1.5 hours per day”; and
(3) meeting “with Assistant Chief Envoy to discuss his alleged ‘performance deficiencies.’” For
purposes of discrimination, the TCHRA only addresses “ultimate hiring decisions,” such as
hiring, granting leave, discharging, promoting, or compensating. See Bedgood v. Texas Educ.
Agency, No. 03-14-00030-CV, 2015 Tex. App. LEXIS 1546, at *16 (Tex. App.—Austin Feb. 19,
2015, pet. denied) (mem. op.) ; Ptomey v. Texas Tech Univ., 277 S.W.3d 487, 492 (Tex. App.—
Amarillo 2009, pet. denied). It does not address “every decision made by employers that
arguably might have some tangential effect on employment decisions,” such as disciplinary
filings, reprimands, poor performance reviews, hostility from fellow employees, verbal threats,
or criticism of the employee’s work. Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633,
644 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Under this standard, the additional actions
recited by Anderson in his pleadings do not qualify as “adverse employment actions” for the
purpose of establishing his discrimination claim.
19
true, fail to show that Anderson was treated less favorably than similarly situated members
outside of the protected class.
In addition, we conclude that the jurisdictional evidence, viewed in the light most
favorable to Anderson, is insufficient to create a fact issue as to whether he was subjected to
disparate treatment because of his race. In his deposition testimony, which AISD submitted
in support of its plea, Anderson was questioned about which employees, if any, he believed
received more favorable treatment from the AISD Police Department. In response, Anderson
identified Assistant Chief Envoy and Sergeant Herrera. As to Envoy, Anderson testified that
Envoy received preferential treatment in 2012, when he was promoted to Captain over Anderson.
According to Anderson, he was ranked higher than Envoy at the time of the promotion; however,
aside from his rank, Anderson provided no other facts suggesting that Envoy was less qualified
than Anderson for that position. Moreover, Anderson does not allege in his pleadings that he
suffered an adverse employment action when he was not promoted in 2012 nor did he raise this
in his complaint with the Texas Workforce Commission (TWC). In light of the amount of time
since that promotion decision, we cannot conclude that this evidence is sufficient to create a fact
issue as to whether Anderson was subjected to disparate treatment by AISD. See Tex. Labor
Code § 21.202 (complaint with TWC must be filed not later than 180th day after date alleged
unlawful employment practice occurred); Prairie View A&M v. Chatha, 381 S.W.3d 500, 513
(Tex. 2012) (concluding that 180-day deadline is jurisdictional prerequisite to suit).
As to Sergeant Herrera, Anderson stated in his deposition that Herrera received
preferential treatment because although Herrera had violated Department policies on several
occasions, “there was never any action taken.” Anderson acknowledged, however, that he and
Herrera had different ranks within the Department—Herrera being of a lower rank, Sergeant—
20
and that Herrera had different supervisors and job standards than he did. See Reyes, 272 S.W.3d
at 594 (“Employees with different responsibilities, supervisors, capabilities, work rule violations,
or disciplinary records are not considered to be ‘nearly identical.’”). In addition, Anderson does
not allege, and the evidence does not show, that the Department has ever investigated any claim
that Herrera retaliated against a subordinate—the misconduct that Chief Gonzalez asserts was the
“final straw” leading to his decision to recommend Anderson’s termination. See Ysleta Indep.
Sch. Dist., 177 S.W.3d at 917-18 (explaining that to prove discrimination based on disparate
discipline, employee must usually show that misconduct for which he was discharged was nearly
identical to conduct engaged in by employee that was retained). Consequently, the jurisdictional
evidence fails to show that Herrera is “nearly identical” to Anderson for the purpose of
demonstrating discrimination based on disparate treatment. See Rincones, 520 S.W.3d at 584.
We conclude that Anderson’s racial-discrimination claim, as alleged, is
insufficient to demonstrate a valid waiver of immunity under the TCHRA. Moreover, the
undisputed jurisdictional evidence submitted by AISD affirmatively negates the existence of a
similarly situated employee who received more favorable treatment than Anderson. As a result,
Anderson failed to satisfy his burden to establish a prima facie case of racial discrimination
based on disparate treatment, the only theory of discrimination that he has alleged.
Direct Evidence of Racial Discrimination
Although AISD characterizes Anderson’s racial-discrimination claim as relying
solely on circumstantial evidence, we also consider whether there is direct evidence to support
his discrimination claim. Direct evidence of discrimination is evidence that, if believed, proves
the fact of discriminatory intent without inference or presumption. Jespersen, 390 S.W.3d
21at 653-54. On the other hand, if an inference is required for evidence to be probative as to
the employer’s discriminatory animus in making an employment decision, the evidence is
circumstantial. Id.Generally, statements that courts have found constitute direct evidence of
discrimination are insults or slurs against a protected group. KIPP, Inc. v. Whitehead,
446 S.W.3d 99, 107 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see Brown v. East Miss.
Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993) (noting that “routine use of racial slurs
constitutes direct evidence that racial animus was a motivating factor in an employment
decision”). However, statements and remarks—including insults and slurs—may serve as direct
evidence of discrimination only if they are (1) related to the employee’s protected class,
(2) proximate in time to the employment decision at issue, (3) made by an individual with
authority over the employment decision, and (4) related to the employment decision at issue.
Reyes, 272 S.W.3d at 593; see Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380 (5th Cir.
2010); Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 644 (Tex. App.—Houston
[1st Dist.] 2015, no pet.). Comments that do not satisfy these four requirements are considered
“stray remarks” and insufficient to establish discrimination. Reyes, 272 S.W.3d at 592.
In his pleadings, Anderson does not allege that Envoy or Gonzalez made any
statements or took any actions that, without inference or presumption, would demonstrate that
the decision to terminate Anderson was motivated by his race. However, in support of his
response to AISD’s plea, Anderson attached his own sworn declaration.3 In relevant part,
Anderson states in his declaration:
3
At the hearing on its plea, and in its reply to Anderson’s response, AISD objected to
these portions of Anderson’s affidavit as inadmissible hearsay. Nothing in the record, however,
22
[A]t least three African American students reported to me that Asst. Chief Envoy
referred to them as “n*****” while they were in his care, custody, and control.
Also, Sergeant Corbet reported Assistant Chief Envoy using the word “n*****”
in his presence.
There can be no dispute that these statements, if proven, are offensive racial slurs and that Envoy
was Anderson’s supervisor and involved with the decision to terminate his employment, even if
Gonzalez actually made the decision to recommend termination. See Russell v. McKinney Hosp.
Venture, 235 F.3d 219 (5th Cir. 2000) (“We therefore look to who actually made the decision
or caused the decision to be made, not simply to who officially made the decision.”); Reyes,
272 S.W.3d at 593 (explaining that “discriminatory animus by a person other than the decision-
maker may be imputed to an employer if evidence indicates that the person in question possessed
leverage or exerted influence over the decision-maker”). Therefore, whether the statements
qualify as direct evidence of discriminatory intent turns on whether they were made at a time
proximate to Anderson’s suspension and termination in April 2019 and whether they are related
to the decision to suspend and then terminate Anderson’s employment.
Aside from Anderson’s declaration, there is no evidence, including Anderson’s
own deposition testimony, that Envoy made any racial slurs or other racist statements. In
addition, in his declaration, Anderson does not include any factual details about when the
alleged statements were made or that otherwise suggest that the statements were made shortly
before Anderson’s suspension and termination. In other words, there is no evidence showing
that the slurs were made “proximate in time to the employment decision at issue.” See Reyes,
shows that AISD obtained a ruling on its objection. See Tex. R. App. P. 33.1; Stone v. Midland
Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.) (noting that
“[a]n objection that an affidavit contains hearsay is an objection to the form of the affidavit” and
that “[t]he failure to obtain a ruling from the trial court on an objection to the form of an affidavit
waives the objection”).
23
272 S.W.3d at 593; Anderson, 458 S.W.3d at 645 (concluding that evidence that supervisor
used racial slur was not direct evidence of discrimination because employee did not “identify an
adverse employment action that occurred proximately in time to [supervisor’s] use of racial slur”
or present evidence “that the comment related to an adverse employment decision”). Similarly,
there is no evidence suggesting that the statements were related to Anderson’s suspension and
termination. See Reyes, 272 S.W.3d at 593; see also Texas Tech Univ. Health Scis. Ctr.-El Paso
v. Flores, 612 S.W.3d 299, 313 (Tex. 2020) (explaining that generally comments about protected
status constitute direct evidence of discriminatory intent only if they “are tied to the adverse
employment action at issue both in terms of when and by whom they were made”) (quoting
Goudeau v. National Oilwell Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015))). We cannot
conclude that Anderson’s declaration, showing that Envoy used racial slurs at some unknown
time in some unknown context, is sufficient to constitute direct evidence of discriminatory intent.
Viewing Anderson’s declaration in the light most favorable to him, a reasonable fact finder could
not conclude without inference or presumption that the decision to suspend and then terminate
Anderson’s employment was motived by race. See Jespersen, 390 S.W.3d at 653-54.
In summary, Anderson has failed to allege facts or present evidence that, if
believed, constitutes direct evidence of racial discrimination or, alternatively, to establish a prima
facia case of racial discrimination. As a result, Anderson failed to affirmatively demonstrate a
valid waiver of immunity under the TCHRA as to his racial-discrimination claim, and the trial
court erred in denying AISD’s plea to the jurisdiction on this claim.
24
Circumstantial Evidence of Retaliation
AISD argues that the trial court erred in denying its plea to the jurisdiction as to
Anderson’s claim of retaliation under the TCHRA for two independent reasons. AISD argues
that (1) Anderson failed to establish a prima facie case of retaliation, and (2) in the alternative,
that it established a legitimate nondiscriminatory reason for Anderson’s termination, and he
failed to raise a fact issue on whether that reason was a pretext.
To establish a prima facie case of retaliation under Section 21.055, the Act’s
antiretaliation provision, an employee must show (1) he engaged in an activity protected by
the TCHRA, (2) he experienced a material adverse employment action, and (3) a causal link
exists between the protected activity and the adverse action. See Tex. Lab. Code § 21.005;
Alamo Heights, 544 S.W.3d at 781 (applying McDonnell Douglas framework to retaliation claim
under TCHRA and explaining that all aspects of framework are jurisdictional). As to the first
element, an employee engages in a protected activity when he, “under this chapter,” “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.” Tex. Lab. Code § 21.055.
Because sexual harassment is a form of sex discrimination under Title VII and the TCHRA, it
is a “discriminatory practice” under Section 21.055, and opposition to sexual harassment is a
protected activity. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). Here,
liberally construing Anderson’s pleadings, the only potentially protected activity alleged by
Anderson was his reporting to the Board of Trustees in his March 2018 letter that Herrera had
been accused of sexually harassing a subordinate.4
4
To the extent Anderson suggests that AISD retaliated against him for filing a grievance
complaining about the Department’s handling of the terroristic threat at Akins High School, we
25
In addition, as the second element, the only potential retaliatory action taken by
AISD, as alleged by Anderson, occurred when he was transferred to a different work location,
suspended for three days, and, shortly thereafter, terminated from his employment. 5 However,
in his complaint to the TWC, Anderson stated only that he had been “terminated” “in retaliation
for his opposition to unlawful employment actions.” As a result, we construe Anderson’s
retaliation claim as a claim for retaliatory discharge. See County of Travis v. Manion, No. 03-11-
00533-CV, 2012 Tex. App. LEXIS 4004, at *6 (Tex. App.—Austin May 17, 2012, no pet.) (mem.
op.) (explaining that action under TCHRA requires “exhaustion of administrative remedies”
and that court will not construe complaint filed with TWC “to include facts that were initially
omitted” (quoting Harris v. David McDavid Honda, 213 F.App’x 258, 261 (5th Cir. 2006) (per
curiam) (not for publication))); see also Tex. Labor Code § 21.202 (complaint with TWC must
be filed not later than 180th day after date alleged unlawful employment practice occurred).
AISD contends that Anderson failed to establish a prima facie case of retaliation
as to the third element because, it asserts, he failed to demonstrate that there is a causal link
disagree that this complaint constitutes activity protected by the TCHRA. The undisputed
factual allegations and the jurisdictional evidence establish that the grievance was not based on
discrimination protected by the TCHRA and that, consequently, the complaint was not “under
this chapter.” See Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 59 (Tex. 2021) (“[T]o invoke
the protections of Section 21.055, the conduct relied on by the employee ‘must, at a minimum,
alert the employer to the employee’s reasonable belief that unlawful discrimination is at issue.”
(quoting Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018))).
5
As previously mentioned, in his petition, Anderson lists other actions taken by AISD
that he contends were retaliatory. See supra fn.2. The TCHRA, however, does not protect
employees from all retaliatory employment actions, only actions that are materially adverse.
Alamo Heights, 544 S.W.3d at 788. Materially adverse “means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Id. (quoting
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006)). While the other actions
alleged by Anderson may be unpleasant and annoying, they fail to rise to the level of material
adversity. See id.26
between his complaint of alleged sexual harassment in March 2018 and his termination in
April 2019. Second, and in the alternative, AISD argues that even if Anderson met his burden
to establish a prima facie case of retaliation under the first step of the McDonnell Douglas
burden-shifting framework, he failed to establish a valid waiver of immunity for his retaliation
claim because (1) AISD met its burden under the second step to produce a legitimate,
nondiscriminatory reason for terminating Anderson; (2) the burden shifted to Anderson under the
third step to raise a fact issue that AISD’s stated reason is a pretext and that he would not have
been terminated but for his reporting; and (3) Anderson failed to meet this burden.
All three burden-shifting steps of the McDonnell Douglas framework are
jurisdictional. Alamo Heights, 544 S.W.3d at 783-84. Consequently, both of AISD’s
arguments—one challenging whether Anderson met his burden under the first step, and the other
challenging whether Anderson met his burden under the third step—are potentially dispositive
of its jurisdictional challenge, and we will begin our analysis by considering AISD’s second
argument. That is, applying McDonnell Douglas, we will assume without deciding that
Anderson met his initial burden to establish a prima facie case of retaliation—including the
prima-facie-case element of a “causal link between” his complaint of sexual harassment and his
termination. In light of this assumption, we will then examine whether AISD met its burden
under the second step of the McDonnell Douglas framework to produce evidence of a legitimate,
nondiscriminatory reason for its actions and, if so, whether Anderson met his burden of raising a
fact issue as to whether the stated reason is pretext and that he would not have been terminated
but for reporting sexual harassment. See Bermudez v. Texas Mut. Ins. Co., No. 03-17-00687-CV,
2018 Tex. App. LEXIS 7016, at *6-7 (Tex. App.—Austin Aug. 30, 2018, no pet.) (mem. op.)
(affirming trial court’s dismissal of retaliation claim on summary judgment because, assuming
27
without deciding that plaintiff established prima facie case, plaintiff failed to raise fact issue that
defendant’s asserted reason was pretext).
Did AISD show a legitimate, nondiscriminatory reason for terminating Anderson?
In support of its plea to the jurisdiction, AISD submitted sworn declarations from
Assistant Chief Envoy and Chief Ashley Gonzalez. In their declarations, Envoy and Gonzalez
detailed the events preceding Chief Gonzalez’s recommendation to terminate Anderson for what
they describe as “job performance deficiencies.”
According to Assistant Chief Envoy’s declaration, on March 27, 2019, he sent a
memo to Chief Gonzalez concerning Anderson’s job performance unrelated to the grievance
filed by Herrera. In the memo, a copy of which was submitted by AISD with its plea, Envoy
summarizes his concerns with Anderson and then describes four incidents, occurring over the
previous twelve months, that illustrate “[Anderson’s] inability to lead and manage incidents.”
For example, Envoy describes an incident that occurred on March 14, 2018, where a parent with
a history of violence had threatened to shoot staff at an AISD middle school. After the incident
was reported to the AISD Police Department, Assistant Chief Envoy received a call from
acting Patrol Supervisor, Corporal Alex Phillips. In the call, Phillips asked Envoy to review the
contents of a notification e-mail about the threat that Phillips had drafted. Phillips explained to
Envoy that although Anderson had been informed of the threat, he was not available to review
the contents of the draft notification e-mail. After a few hours passed without receiving an
update about the incident, Envoy decided to call Anderson. Envoy asked Anderson what
precautions had been put in place “to ensure the safety of students,” and Anderson stated, “he
had no updates on the incident.”
28
Envoy also describes in his memo a similar incident that occurred on March 24,
2019. In his memo, Envoy states:
[T]he department received information regarding an elementary student making
social media threats. After receiving an email notification from Sgt. Ty Neal, I
contacted Lt. Rodney Anderson and inquired why I was not informed of the
incident. When speaking with Anderson, he provided inaccurate information
regarding the specific facts involving the investigation, leading me to provide
inaccurate information to district administration.”
According to Envoy, “It became apparent to me that Anderson was not overseeing this incident,
and it was necessary for me to prompt him to take appropriate steps in this incident.” Envoy
further states in his memo to Gonzalez that on March 26, he met with Anderson and “presented
to [him] the areas of concerns and events mentioned in this memo” and that during the meeting
“[Anderson] acknowledged his lack of involvement and gave little information.”
In his declaration, Chief Gonzalez states that after receiving the March 27 memo
from Assistant Chief Envoy, he scheduled a disciplinary hearing with Anderson to discuss
the performance issues identified in the memo and “to provide [Anderson] an opportunity
to explain his side of the story.” The hearing was conducted on March 29, 2019, while
the grievance investigation against Anderson was still pending. According to Gonzalez’s
declaration, “[d]uring the hearing, [Anderson] failed to provide any valid reason for his job
performance deficiencies.” On April 1, 2019, Chief Gonzalez notified Anderson in writing that
he was suspended for three days without pay.
As to the grievance investigation and Maresh’s findings, delivered on April 5,
2019, Gonzalez states in his declaration:
29
The final straw, although certainly not the sole basis for my recommendation of
termination, was when I received the investigation summary pursuant to Austin
ISD Board Policy DIA (Local), which concluded that [Anderson] retaliated
against Sgt. Herrera after Sgt. Herrera filed a grievance against him. . . . Board
Policy DIA (Local) prohibits retaliation against an employee who makes a claim
alleging to have experienced discrimination or harassment, and I, as the Austin
ISD Policy Department’s Chief of Police, do not tolerate retaliation in the
workplace. . . . Therefore, given [Anderson’s] documented job performance
deficiencies, coupled with the finding that he retaliated against Sgt. Herrera
because he filed a grievance against [him], I placed [Anderson] on administrative
leave without pay and recommended that Austin ISD terminate [Anderson’s]
employment on April 5, 2019, which Dr. Medina approved effective April 10,
2019. . . . In no event did [Anderson’s] race or complaints play any role
whatsoever in my decision to recommend his termination of employment or
another employment related decision.
In short, the evidence submitted by AISD in support of its plea shows that
Anderson was suspended and then terminated because, in several instances, he had demonstrated
poor job performance in carrying out his duties and because a neutral investigator determined
that he retaliated against a fellow officer. We conclude that even if Anderson established a
prima facie case of retaliation, AISD met its burden under the second step of the McDonnell
Douglas framework to show that Anderson was suspended and then terminated for legitimate,
nondiscriminatory reasons.
Did Anderson create a fact issue as to whether AISD’s stated reason is a pretext?
Because AISD successfully rebutted any presumption that it retaliated against
Anderson, the burden shifted to Anderson to show that the explanations offered by AISD were
not its true reason but were a pretext for retaliation. That is, even assuming Anderson met his
burden to establish a prima facie case of retaliation, to defeat AISD’s plea, he was required to
present evidence showing that he would not have been terminated “but for” his informing the
Board of that Herrera has been accused of sexual harassment. See Alamo Heights, 544 S.W.3d
30at 782; Democratic Schs. Research Inc. v. Rock, 608 S.W.3d 290, 311 (Tex. App.—Houston
[1st Dist.] 2020, no pet.). The but-for causation standard is significantly more difficult to prove
than prima facie causation. Alamo Heights, 544 S.W.3d at 782.
In evaluating but-for causation evidence, we examine all the circumstances,
including the temporal proximity between the protected activity and the adverse action,
knowledge of the protected activity, expression of a negative attitude toward the employee’s
protected activity, failure to adhere to relevant established company policies, discriminatory
treatment in comparison to similarly situated employees, and evidence that the employer’s
stated reason is false. Id.; Moralez, 2021 Tex. App. LEXIS 6036, at *22. “Temporal proximity
is relevant to causation when it is ‘very close.’” Alamo Heights, 544 S.W.3d at 790. Here, the
undisputed allegations and the evidence show that Anderson was suspended and then terminated
approximately one year after his March 2018 letter to the Board of Trustees. There are no
allegations or evidence suggesting that Assistant Chief Envoy, Chief Gonzalez, or anyone else
involved in Anderson’s termination was aware of his anonymous letter to the Board or that they
were otherwise aware that Anderson had reported to the Board that Sergeant Herrera had been
accused of sexual harassment. Moreover, even if Envoy and Gonzalez were made aware of his
letter to the Board, Anderson has not alleged any facts or presented evidence suggesting that
Envoy, Gonzalez, or others in the Department expressed a negative attitude toward his informing
the Board of the alleged sexual harassment; that the Department failed to adhere to any
Department policy when it suspended and then terminated him; or that he was treated differently
than similarly situated employees who had not reported sexual harassment. In short, we
conclude that the undisputed allegations and the jurisdictional evidence fail to raise a fact
question on the jurisdictional issue of whether Anderson would not have been terminated by the
31
AISD Police Department “but for” his informing the Board of Trustees that one his co-workers,
Sergeant Herrera, had been accused of sexual harassment.
Assuming without deciding that Anderson met his initial burden under the
McDonnell Douglas framework to establish a prima facie case of retaliation, he failed to meet his
subsequent burden to plead facts or present evidence showing that AISD’s stated reasons for
suspending and then terminating his employment were pretexual. Therefore, Anderson failed to
affirmatively demonstrate a valid waiver of immunity under TCHRA as to his retaliation claim,
and the trial court erred in denying AISD’s plea to the jurisdiction on this claim.
CONCLUSION
Because Anderson failed to affirmatively demonstrate a claim for which
immunity is waived, we reverse the trial court’s order denying AISD’s plea to the jurisdiction
and render judgment dismissing Anderson’s claims for lack of jurisdiction.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Reverse and Dismissed
Filed: August 25, 2022
32