Houston Community College v. Sabrina Lewis ( 2021 )

Opinion issued June 29, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00626-CV
———————————
HOUSTON COMMUNITY COLLEGE, Appellant
V.
SABRINA LEWIS, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2015-77438
MEMORANDUM OPINION
Appellant Houston Community College appeals the trial court’s denial of its
plea to the jurisdiction. In nine issues, Houston Community College argues the trial
court erred by denying its plea on appellee Dr. Sabrina Lewis’ retaliation claim under
the Texas Whistleblower Act and her race discrimination claim. We reverse the trial
court’s order denying HCC’s plea to the jurisdiction and render judgment dismissing
Dr. Lewis’ claims against HCC for lack of jurisdiction.
Background
Houston Community College (“HCC”) is an institution of higher education
created and organized under Chapter 130 of the Texas Education Code. Dr. Sabrina
Lewis (“Dr. Lewis”), an African American woman, holds a Bachelor of Science in
business with a minor in accounting, a Master of Business Administration, and a
Doctor of Management in Organizational Leadership. In 2009, HCC hired Dr.
Lewis as the Director of HCC’s Veterans Affairs Department (the “VA
Department”). At that time, Dr. Lewis’ immediate supervisor was HCC’s Associate
Vice Chancellor of Student Services, Dr. Cheryl Sterling (“Dr. Sterling”), also
African American. As Director of the VA Department, Dr. Lewis was responsible
for promoting the enrollment, retention, and graduation of veteran students,
providing effective leadership for the department, and serving as HCC’s primary
contact with the Texas Veterans Commission and the U.S. Department of Veterans
Affairs.
In August 2014, Dr. Lewis filed a complaint of discrimination against Dr.
Sterling alleging she had created a hostile work environment and further that she
was harassing, bullying, and intimidating Dr. Lewis. Dr. Lewis requested that HCC
change her reporting structure to allow her to bypass Dr. Sterling and report directly
2
to Dr. Diana Pino, HCC’s Vice Chancellor of Student Services. On August 24, 2014,
HCC’s Human Resources Department (“HR”) rejected Dr. Lewis’ complaint as
untimely and for failure to comply with HCC’s complaint procedure.
In September 2014, Dr. Sterling, who was still Dr. Lewis’ direct supervisor,
placed Dr. Lewis on a ninety-day “Employee Corrective Action and Performance
Improvement Plan” (“PIP”). Sterling observed, among other things, that VA
Department employees were performing poorly under Dr. Lewis’ leadership, that
several employees had previously met with Dr. Sterling to discuss “internal
inequities” existing within the VA Department, and that Dr. Lewis had a high
turnover of staff. In the PIP, Dr. Sterling identified several areas of improvement
for Dr. Lewis to meet, including (1) developing “a system that addresses fair hiring
practices and diversity,” (2) developing “employee relations that promote[] internal
equity,” (3) developing “a team approach with staff that warrants shared governance
in fairness and equity,” (4) developing “modalities that will address excellent
customer services to staff and students,” (5) establishing “a customer services
mechanism that is conducive to staff and students in the VA department,” and (6)
providing “leadership that does not create a hostile environment but engenders
empowerment that motivates all staff and students[.]” Dr. Sterling warned Dr. Lewis
that failure to improve in the noted areas could “result in further disciplinary action
or termination of employment.” Dr. Lewis disagreed with the PIP and claimed that
3
the allegations raised against her were demonstrably false. She alleges that she
successfully completed the PIP in December 2014.
In April 2015, HCC’s then-interim Vice Chancellor of Student Services, Dr.
Irene Porcarello (“Dr. Porcarello”),1 temporarily changed Dr. Lewis’ immediate
supervisor from Dr. Sterling to Dr. Parvin Bagherpour (“Dr. Bagherpour”). Dr.
Porcarello directed Dr. Bagherpour, HCC’s Associate Vice Chancellor of
International Student Services, to serve as Dr. Lewis’ “mentor and coach,” and to
work collaboratively with Dr. Lewis to help improve six aspects of the VA
Department: (1) staff training; (2) preparation of internal and external audits; (3)
addressing department HR challenges; (4) planning and implementation of
college-wide activities; (5) participation in ongoing management meetings; and (6)
other business processes. The temporary assignment began on April 27, 2015 and
was expected to conclude on August 31, 2015. Dr. Porcarello stated that she, Dr.
Bagherpour, Dr. Lewis, and Satrice Morris (“Morris”), an HCC Senior HR
Specialist, would meet to review and discuss “the level of progress and reporting
protocols of the Veterans Affairs/Student Support” during the first week of August
2015.
1
Dr. Porcarello replaced Dr. Diana Pino as Vice Chancellor of Student Services in
March 2015.
4
Dr. Lewis claims she was concerned about the temporary reassignment
because two years prior, in September 2013, she and others had received an email
claiming Dr. Bagherpour had allegedly mistreated her African American staff.2
According to Dr. Lewis, Dr. Bagherpour undermined her authority as Director of the
VA Department and precluded her from making employment decisions necessary to
improve. Dr. Lewis claims that Dr. Porcarello also excluded her from critical work
meetings. There is no evidence in the record, however, that Dr. Lewis ever filed a
complaint against Dr. Bagherpour or Dr. Porcarello, or that Dr. Lewis ever reported
such alleged mistreatment.
On July 22, 2015, Lucrecia Hembree (“Hembree”), a Hispanic employee in
the VA Department, filed a formal complaint against Dr. Lewis with HCC’s Office
of Institutional Equity (“OIE”). Hembree alleged that Dr. Lewis had discriminated
and retaliated against her, in part, by implementing an “English only” rule in
February 2015.3 David Madison Thornton (“Thornton”), an African American OIE
investigator at HCC, investigated Hembree’s complaints against Dr. Lewis.
Thornton interviewed several witnesses and reviewed Dr. Lewis’ written response.
In her response, Dr. Lewis noted that one of her employees in the VA Department
2
In her brief, Dr. Lewis identifies Dr. Bagherpour as an Iranian woman.
3
Hembree also claimed that she had been “subjected to retaliation based on a
workman’s [sic] compensation claim and further subjugated and harassed based on
her national origin” in that she “could no longer speak Spanish in the Veterans
Affairs Department.”
5
had previously used a racial slur by referring to her as a “monkey” in Spanish and
that she only implemented the policy after speaking with Morris in HR. According
to Dr. Lewis, both Morris and HCC’s Employee Relations Director Tom Anderson
(“Anderson”) approved the “English-only” practice Dr. Lewis implemented after
some of her staff members complained that their peers were engaging in loud,
personal conversations in Spanish during work time.
After completing his investigation, Thornton submitted a report to David
Cross (“Cross”), Director of OIE.4 In his report, Thornton concluded that Dr. Lewis
had (1) engaged in discrimination by prohibiting department employees from
speaking any language other than English, and (2) “set the tone and condoned a
hostile work environment for [Hembree] and other employees of the Veterans
Affairs department.”5 On September 9, 2015, Cross notified Dr. Porcarello that OIE
had investigated Hembree’s claims and determined that there were facts supporting
her claim of discrimination against Dr. Lewis. Cross attached Thornton’s
investigative report. Dr. Porcarello reviewed the report and accepted OIE’s
4
Dr. Lewis claims that Director Cross was also involved and “in charge” of the
investigation.
5
With respect to Hembree’s allegation of retaliation, Thorton rendered a “no cause
finding” concluding that Hembree could not prove a causal connection between
engaging in protected activity and an adverse employment action.
6
findings.6 At her deposition, Dr. Lewis testified that she did not believe Thornton
reached his findings and conclusions because of her race.
On September 15, 2015, Dr. Lewis and Brandi Maynard (“Maynard”), an
HCC student who also works as a Student Services Assistant in the VA Department,
were involved in a separate incident. According to Dr. Lewis, Maynard has a long
history of poor performance and tardiness. Dr. Lewis, who believed Maynard had
returned late from lunch on September 15, called Maynard into her office and
questioned her about her activities, at which time an altercation ensued.
According to Dr. Lewis, Maynard became defensive and disrespectful. The
two women walked to Maynard’s cubicle to retrieve a call log, at which time
Maynard yelled at Dr. Lewis and allegedly threw or tossed papers in her direction.
Maynard then followed Dr. Lewis into her office where Dr. Lewis proceeded to issue
Maynard a PIP. Maynard, who did not believe she deserved a PIP, was angry and
embarrassed because others in the VA Department could hear their conversation.
Dr. Lewis, who contends that she felt threatened by Maynard, called the campus
police and had Maynard escorted from the building. Multiple employees in the VA
Department witnessed the incident.7
6
On September 23, 2015, David Cross notified Dr. Lewis of OIE’s findings.
7
Later that evening, Dr. Lewis contacted the campus police to file an official report
to document the incident with Maynard. An officer returned to the VA Department
that evening at which time he interviewed Dr. Lewis and took statements from
several employees.
7
One witness claimed that “something really set Dr. Lewis off that day. She
was in rare form. I’ve never seen her that angry. She was yelling and it was scary.”
Another witness, however, placed the blame on Maynard and claimed that Maynard
had flown into a “rage” and was yelling at Dr. Lewis and being disrespectful.
Witnesses also overheard Dr. Lewis tell Maynard that she was going to call the
police and have Maynard removed from the building for being “disrespectful.”
Specifically, one witness reported that Dr. Lewis told Maynard to “stop yelling and
being disrespectful. This is the last time. If you don’t stop, I’m going to call the
police and have them take you out of here.” Another witness overheard Dr. Lewis
tell the police dispatcher that she “needed an employee escorted out for being
disrespectful.” Dr. Lewis told the investigating officers that although Maynard had
not expressly threatened to physically harm her or another employee, she
nevertheless felt threatened because Maynard was belligerent and had stood over Dr.
Lewis while she was sitting at her desk.
Maynard immediately reported the incident to HCC’s Human Resources
Department and filed a formal complaint. Dr. Lewis reported the incident to Morris
in HR the next day. On September 16, 2015, HCC placed Dr. Lewis on
administrative leave with pay pending investigation of Maynard’s complaint.
According to Morris, who investigated the complaint, Maynard was not placed on
administrative leave because unlike Dr. Lewis, Maynard had filed a formal
8
complaint with HR, and the dispute was considered a significant event perpetrated
against her by her supervisor, Dr. Lewis. In addition to her responsibilities as Vice
Chancellor of International Student Services, Dr. Bagherpour was tasked with
performing Dr. Lewis’ duties as VA Director while Dr. Lewis remained on
administrative leave.
On September 22, 2015, Morris issued a report to Anderson, HCC’s
Employee Relations Director, concluding that Maynard had acted inappropriately
and disrespectfully towards Dr. Lewis. Morris recommended that Maynard be
placed on a thirty-day PIP. Morris also concluded that Dr. Lewis had acted
inappropriately and recommended that Dr. Lewis be removed as Director of the VA
Department “due to her poor leadership and management practices, treatment of
employees and other related performance concerns that were not addressed in the
investigation of the incident on September 15, 2015.” During her deposition, Dr.
Lewis testified that she did not believe Morris recommended her removal as director
because of her race.
On September 24, 2015, Dr. Bagherpour also issued a report to Anderson
addressing the six areas of improvement Dr. Porcarello had identified in April 2015
as requiring improvement from Dr. Lewis. Dr. Bagherpour identified several
performance failures and behavioral issues involving Dr. Lewis, including poor
student service and business handling, borderline insubordination such as raising her
9
voice on several occasions at Dr. Bagherpour, and failure to follow directives. Dr.
Bagherpour concluded that Dr. Lewis had continuously “demonstrated poor
management, leadership and communication skills with the employees reporting to
her” and “demonstrated inappropriate behavior and used poor judgment on the daily
operations and management of the department.” She recommended that Dr. Lewis
be terminated from HCC based “on the findings and conclusions” presented in her
report and the report Morris previously prepared. Dr. Porcarello approved the report
and recommendation. Dr. Bagherpour testified during her deposition that she
wanted to recommend a form of “corrective action” rather than termination, but that
Dr. Porcarello insisted upon recommending termination.
Anderson reviewed the recommendations of Dr. Bagherpour and Morris and
conducted an independent review of the information provided in their reports. Based
on his independent review, Anderson determined that Dr. Lewis’ “performance
problems were significant, constituted serious violations of HCC policy, and
warranted the termination of her employment from HCC.” Anderson prepared a
memorandum to HCC’s Chancellor, Dr. Cesar Maldonado (“Dr. Maldonado”), dated
September 24, 2015, recommending Dr. Lewis’ termination based on serious
performance problems, including mismanagement, unprofessional behavior, and the
OIE’s finding that Dr. Lewis had engaged in discrimination. Anderson attached a
copy of the reports prepared by Dr. Bagherpour and Morris to his recommendation.
10
Separately, on September 25, 2015, Dr. Maldonado, Dr. Kim Beatty
(“Beatty”), Vice Chancellor of Instructional Services/Chief Academic Officer, Dr.
Porcarello, and Terri Zamora (“Zamora”), Senior Vice Chancellor for Finance &
Administration, received a letter, via email, from Dr. Lewis’ counsel informing HCC
that she was representing Dr. Lewis in connection with her administrative leave and
attaching Dr. Lewis’ rebuttal to Maynard’s complaint. In her rebuttal, Dr. Lewis
detailed Maynard’s past job performance issues, including other instances of
insubordination. According to Dr. Lewis, Maynard became angry, argumentative,
and acted disrespectfully towards her when Dr. Lewis issued Maynard a PIP on
September 15, 2015—the same day campus police escorted Maynard out the
building. Dr. Lewis stated that she called the campus police because she felt
threatened by Maynard’s increasingly belligerent behavior. Dr. Lewis also stated
that in December 2014, she discovered that a Veteran’s Award had been placed on
Maynard’s student account to cover her tuition and fees for the Spring 2012 and Fall
2013 semesters, even though Maynard was not a military veteran or otherwise
entitled to such benefit. Dr. Lewis stated that she had reported the alleged
misconduct to several HCC officials but “[u]pon information and belief, nothing
[had] been done to address this matter.”
On October 1, 2015, after reviewing the reports and recommendations
provided by Anderson, Dr. Maldonado approved Dr. Lewis’ termination. A few
11
days later, on October 5, 2015, Dr. Lewis and her attorney attended a meeting with
Dr. Bagherpour and Morris. Dr. Bagherpour handed Dr. Lewis a termination letter
and notified her that HCC was terminating her employment. Dr. Lewis contends
that her attorney asked if there was “a grievance process” and “an appeals process,”
and that Morris responded, “no.”
After HCC terminated Dr. Lewis, Dr. Bagherpour continued to perform Dr.
Lewis’ duties until HCC named Dr. Cephas Archie (“Dr. Archie”), an African
American male, as the interim Director of the VA Department in mid to late October
2015. A few months later, HCC hired Dr. Leon Grissett, also African American, as
the VA Department’s permanent director.
In December 2015, Dr. Lewis filed suit against HCC alleging that HCC had
terminated her employment in retaliation for reporting a violation of law in violation
of the Texas Whistleblower Act (the “Whistleblower Act”). Specifically, Dr. Lewis
contends that, in December 2014, Nandy Baldonado (“Baldonado”), HCC’s Director
of Student Financial Services & Cashiering Operations, informed her that a
“veteran’s award” had been placed on Maynard’s student account to cover her tuition
and fees for the Spring 2012 and Fall 2013 semesters. To indicate eligibility for
such an award, HCC places a “B-Code” on a student’s account, which allows the
student to continue attending classes without disruption until HCC receives tuition
and fees from the U.S. Department of Veteran Affairs (“USVA”). Dr. Lewis
12
contends only post-9/11 military veterans or their dependents are eligible to receive
such benefits.
After Dr. Lewis verified that a B-code had been placed on Maynard’s student
account despite not being a veteran, Dr. Lewis contacted the Texas Veterans
Commission (“TVC”) and USVA to address the issue in December 2014 or January
2015. Dr. Lewis contends that in December 2014, she informed her then-supervisor,
Dr. Sterling, of the B-Code misuse. Dr. Lewis claims she also told Morris about the
B-Code issue in February 2015, and Dr. Bagherpour and Dr. Porcarello in April 2015.
She also told three of HCC’s internal auditors about her concerns regarding the B-
Code improprieties. Specifically, Dr. Lewis testified that she told Dr. Porcarello
about the B-Code misconduct and that she had “inquired” with the USVA with
“regards to seeking guidance in which way to move forward taking care of the
benefits for what happened with unwarranted activities.” According to Dr. Lewis,
Dr. Porcarello did not respond to this information.
Morris testified that Dr. Lewis informed her that some employees were
improperly placing B-Codes on other employees’ accounts, including Maynard’s
account. Morris, however, could not recall if Dr. Lewis told her that she had shared
her concerns with the TVC or USVA. Morris reported Dr. Lewis’ concerns to Dr.
Sterling. Dr. Sterling responded by scheduling a meeting with Morris and
Baldonado. After the meeting, Dr. Sterling told Morris that she would talk to Dr.
13
Lewis and recommend that employees who had misused the B-Code be given a
written or verbal warning. Dr. Lewis, however, wanted the employees to be
terminated and she informed Morris that she was concerned about the disciplinary
action the employees received and Dr. Sterling’s response.
Morris also shared the information with Dr. Porcarello, who initiated an
internal audit to address Dr. Lewis’ concerns regarding potential misuse of the B-
Code. On September 11, 2015, Belinda Brockman (“Brockman”), Director for
Internal Audits, sent a memorandum to Dr. Porcarello, Dr. Bagherpour, and Zamora
informing them of the results of the internal audit. The internal audit confirmed that
a B-Code had been applied to Maynard’s student account for the Spring 2012 and
Fall 2013 semesters. The USVA, however, was never billed for the tuition and fees
associated with these errors. The B-Code was removed from Maynard’s student
account and she was required to pay the tuition amounts due.
Morris testified that although she had discussed Dr. Lewis’ allegations with
Dr. Sterling, Dr. Porcarello, Anderson, and internal auditors, she did not recall telling
anyone that Dr. Lewis had reported her concerns to the USVA or TVC. Anderson
testified that he remembered talking to Morris about the B-Code allegations, but he
was unaware that Dr. Lewis had reported her concerns to the TVC or USVA.
In addition to asserting a claim of retaliation against HCC under the
Whistleblower Act, Lewis later amended her petition to assert a claim against HCC
14
for race discrimination under Chapter 21 of the Texas Labor Code and 42 U.S.C.
Section 1981. HCC removed the case to federal court based on Dr. Lewis’ Section
1981 claim and then filed a combined motion for summary judgment and Rule
12(b)(1) motion to dismiss arguing, among other things, that Lewis could not
establish a Section 1981 claim. The federal court granted HCC’s motions, dismissed
Dr. Lewis’ Section 1981 claim with prejudice, and remanded the Chapter 21 and
Whistleblower Act claims to state court.
HCC then filed a plea to the jurisdiction, arguing the trial court lacked subject-
matter jurisdiction, because Dr. Lewis could not establish numerous elements of her
claims. HCC argued that Dr. Lewis (1) had not established the requisite,
jurisdictional prima facie elements for her racial discrimination claim or disproved
HCC’s legitimate, nondiscriminatory reasons for terminating her employment or
proven pretext, (2) failed to initiate HCC’s administrative remedies prior to filing
suit as required by the Whistleblower Act, (3) admitted during her deposition that
she never made a report in good faith of any violation of law to an appropriate law
enforcement authority as required by the Whistleblower Act, and (4) could not
establish the requisite causal connection for her Whistleblower Act claim. After a
hearing, the trial court denied HCC’s plea on July 26, 2019.8
8
HCC filed a motion objecting to some of the evidence Dr. Lewis submitted in
response to HCC’s plea to the jurisdiction. The trial court sustained several of
HCC’s objections.
15
This appeal followed.
Standard of Review
HCC, as a public community college, is a political subdivision of the state
protected by governmental immunity.9 See Houston Cmty. Coll. Sys. v. HV BTW,
LP, 589 S.W.3d 204, 209 (Tex. App.—Houston [14th Dist.] 2019, no pet.); see also
TEX. CIV. PRAC. & REM. CODE § 101.001(3)(A)–(B). Governmental immunity
“deprives a trial court of jurisdiction over lawsuits in which the state or certain
governmental units have been sued, unless the state consents to suit.” Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); see also
Houston Cmty. Coll. Sys., 589 S.W.3d at 209. Both the Texas Commission on
Human Rights Act (“TCHRA”) and the Whistleblower Act waive a government
employer’s liability from suit under limited circumstances. See Mission Consol.
Indep. Sch. Dist., 372 S.W.3d at 636–37; State v. Lueck, 290 S.W.3d 876, 881 (Tex.
2009); see also TEX. GOV’T CODE § 554.0035; TEX. LAB. CODE § 21.254. The
Legislature, however, waives immunity only for those suits where the plaintiff
“actually alleges a violation” of the TCHRA and the Whistleblower Act by “pleading
9
Houston Cmty. Coll. Sys. v. HV BTW, LP, 589 S.W.3d 204, 209 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (“Governmental immunity includes both
immunity from liability, which bars enforcement of a judgment against a
governmental entity, and immunity from suit, which bars suit against the entity
altogether.”) (citing Lubbock Cty. Water Control & Improvement Dist. v. Church &
Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014)).
16
facts that state a claim thereunder.” Mission Consol. Indep. Sch. Dist., 372 S.W.3d
at 637; see also Lueck, 290 S.W.3d at 881.
Immunity from suit may be asserted through a plea to the jurisdiction. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review a
plea challenging the trial court’s jurisdiction de novo. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When a plea to the
jurisdiction challenges the existence of jurisdictional facts, such as here, we consider
relevant evidence submitted by the parties. Id. at 227. The standard of review for a
jurisdictional plea based on evidence “generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c).” Id. at 228. Under this standard, we
credit evidence favoring the nonmovant and draw all reasonable inferences in the
nonmovant’s favor. See id. The defendant must assert the absence of subject-matter
jurisdiction and present proof that the trial court lacks subject-matter jurisdiction.
Id. If the defendant discharges this burden, the plaintiff must present evidence
sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be
sustained. Id.Race Discrimination
HCC argues the trial court erred by denying its plea to the jurisdiction on Dr.
Lewis’ race discrimination claim because (1) Dr. Lewis did not bring forth direct
evidence of race discrimination, (2) Dr. Lewis failed to establish a prima facie claim
17
of race discrimination through circumstantial evidence, (3) HCC presented
legitimate, non-discriminatory reasons for Dr. Lewis’ termination, and (4) Dr. Lewis
failed to show that HCC’s reasons were pretextual.
A. Applicable Law
The TCHRA prohibits employers from discriminating against employees
“because of” race. See TEX. LAB. CODE § 21.051. There are two alternative methods
by which a plaintiff can establish discrimination under the TCHRA. See Clark, 544
S.W.3d at 781–82; Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495
S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). An employee
can offer direct evidence of the employer’s discriminatory actions or words. See
Clark, 544 S.W.3d at 782. Alternatively, because direct evidence of discrimination
is rarely available in employment cases, courts also allow claims to proceed based
on indirect or circumstantial evidence of discrimination. See id. (stating employees
can establish prima facie case of discrimination with circumstantial evidence
because “smoking guns are hard to come by”); see also Davis v. Chevron U.S.A.,
Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (stating “direct evidence of employment
discrimination is rare”). Under this second method, Texas courts follow the burden-
shifting mechanism set forth in McDonnell Douglas Corporation v. Green, 411 U.S.
792, 802–05 (1973).
18
Under the McDonnell Douglas framework, if an employee establishes a prima
facie case of discrimination, a rebuttable presumption of discrimination arises.
Clark, 544 S.W.3d at 782. The employer can defeat this presumption by producing
evidence of a legitimate, non-discriminatory reason for the adverse employment
action. Id. If the employer rebuts the presumption, the burden shifts back to the
employee to show that the employer’s articulated reason for the adverse employment
action is false and a pretext for discrimination. McDonnell Douglas, 411 U.S. at
807; see also Clark, 544 S.W.3d at 782. Although intermediate evidentiary burdens
shift back and forth under the McDonnell Douglas framework, the ultimate burden
of persuading the trier-of-fact that the employer intentionally discriminated against
the employee always remains with the employee. Clark, 544 S.W.3d at 782;
Donaldson, 495 S.W.3d at 435.
B. Evidence of Race Discrimination
Dr. Lewis contends that the trial court correctly denied HCC’s plea to the
jurisdiction because she established a prima facie case of race discrimination by
presenting direct and circumstantial evidence of discrimination.
1. Direct Evidence
Dr. Lewis argues that sworn statements Dr. Parvin Bagherpour made in this
case and in the complaint she filed against HCC for discrimination constitute direct
19
evidence of race discrimination.10 Specifically, Dr. Lewis directs the court to Dr.
Bagherpour’s allegation in her complaint that she was “forced” by her “superiors”
in HCC’s legal department and Human Resources Department “to terminate African
American employees and escort them out of the building, thus causing HCC
employees to believe that Dr. Bagherpour was responsible for terminating certain
African American employees when, in fact, she was not.”
During her deposition, however, Dr. Bagherpour explained that she was not
alleging that any employees had been terminated because of their race. Rather, she
testified that she did not want to be involved in communicating terminations or
escorting employees from the building, but that HCC nonetheless required her to do
so.11 She further testified that no one at HCC ever told her to fire an employee
10
In December 2016, Dr. Bagherpour filed a complaint against HCC asserting claims
of discrimination under Title VII of the Civil Rights Act of 1964, a claim under the
Equal Pay Act, and a claim under 42. U.S.C. § 1981.
11
When asked at her deposition to identify the employees her superiors had forced her
to terminate and escort out of the building, Dr. Bagherpour named four former
employees, none of whom were Dr. Lewis. Specifically, Dr. Bagherpour testified
that two African American students who worked in her department had been
terminated because of “some discrepancy with the department of homeland
security,” and that although she was not involved in those employment decisions,
Dr. Bagherpour was instructed to escort both students out of the building. Dr.
Bagherpour also testified that her former secretary, an African American woman,
was terminated because she had not shown up for work. Dr. Bagherpour, who did
not agree with the decision to terminate her employment, was instructed to escort
the woman out of the building. The last person Dr. Bagherpour identified was an
African American woman in the VA Department who had placed a cross on Dr.
Bagherpour’s door. Dr. Bagherpour, who agreed with the employment decision,
was instructed to escort the woman from the building. Dr. Bagherpour testified that
20
because they were African American and that she did not make any employment
decisions or recommendations about Dr. Lewis because of her race.
“‘Direct evidence of discrimination is evidence that, if believed, proves the
fact of discriminatory animus without inference or presumption.’” Donaldson, 495
S.W.3d at 433 (quoting Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d
644, 653 (Tex. App.—Dallas 2012, no pet.)). “Generally, statements that courts
have found to constitute direct evidence of discrimination are insults or slurs made
against a protected group.” Donaldson, 495 S.W.3d at 433; see also Jespersen, 390
S.W.3d at 654.
Dr. Bagherpour’s statements, if believed, do not prove that there was a
“discriminatory animus” behind the decision to terminate Dr. Lewis’ employment
by Dr. Bagherpour or anyone else at HCC. See Donaldson, 495 S.W.3d at 433;
Jespersen, 390 S.W.3d at 653. At most, the statements reflect Dr. Bagherpour’s
concern that by involving her in the referenced terminations, her superiors at HCC
had led employees to believe she was involved in or “responsible for [the]
terminat[ion] of certain African American employees when, in fact, she was not.”
These statements are not the type of rare evidence courts have found to constitute
direct evidence of discrimination. See Clark, 544 S.W.3d at 782 (noting rarity of
she did not want to escort any of these former employees from the building, but she
felt that she had no choice but to comply with these requests from human resources.
21
direct evidence of discrimination in employment cases; “smoking guns are hard to
come by”).
Accordingly, we conclude Dr. Lewis did not present evidence of direct
discrimination. We will now consider whether Dr. Lewis has established a prima
facie case of discrimination based on circumstantial evidence.12
2. Circumstantial Evidence - McDonnell Douglas framework
To establish a prima facie case of race discrimination, Dr. Lewis must show
that she (1) is a member of a protected class, (2) was qualified for her position, (3)
suffered an adverse employment action, and (4) was replaced by someone outside of
her protected class or others similarly situated were treated more favorably. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); AutoZone, Inc. v.
Reyes, 272 S.W.3d 588, 592 (Tex. 2008); see also Donaldson, 495 S.W.3d at 434.
HCC does not dispute that Dr. Lewis established the first three elements of her claim.
Instead, HCC argues that Dr. Lewis’ race discrimination claim fails because she has
12
In her written response to Lucrecia Hembree’s complaint of discrimination, Dr.
Lewis stated that another subordinate, Sandra Hansen, had previously referred to
Dr. Lewis as a “monkey” in Spanish. Dr. Lewis does not rely on or identify this
comment as direct evidence of discrimination in HCC’s employment decisions
concerning Dr. Lewis. The statement is alleged to have been made by a subordinate,
who (1) was not involved in Dr. Lewis’ disciplinary or termination decisions, (2)
did not participate in any investigations concerning Dr. Lewis’ conduct or job
performance, and (3) lacked authority to make any disciplinary or termination
recommendations. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592–93 (Tex.
2008) (citing Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602,
607–08 (5th Cir. 2007) (stating remarks may serve as evidence of discrimination if
“made by an individual with authority over the employment decision”)).
22
not shown that she was replaced by someone outside of her protected class or that
others similarly situated to Dr. Lewis were treated more favorably.
a) Replacement by Someone Outside the Protected Class
Dr. Lewis argues she established the fourth element of her claim because she
was “initially replaced” by Dr. Bagherpour, an Iranian woman, as Director of the
VA Department. The evidence does not support this purported replacement. Rather,
the record reflects that in addition to maintaining her own duties as HCC’s Associate
Vice Chancellor of International Student Services, Dr. Bagherpour assumed Dr.
Lewis’ duties only temporarily from the time Dr. Lewis went on administrative leave
in mid-September 2015, until HCC named Dr. Archie, an African American male,
as the VA Department’s interim director in mid to late October 2015. Several
months later, HCC hired Dr. Grissett, who is also African American, as the VA
Department’s permanent director.
Thus, the undisputed evidence is that Dr. Grissett, an African American male,
was Dr. Lewis’ permanent replacement. That Dr. Bagherpour may have performed
or assumed Dr. Lewis’ duties temporarily until HCC permanently hired Dr. Grissett
as Dr. Lewis’ replacement is of no consequence. See Democratic Sch. Research,
Inc. v. Rock, 608 S.W.3d 290, 310 (Tex. App.—Houston [1st Dist.] 2020, no pet.)
(holding plaintiff was not replaced by employee who temporarily assumed her
duties, in addition to his own, until her former position was filled by permanent hire);
23
Baker v. Gregg Cty., 33 S.W.3d 72, 81 (Tex. App.—Texarkana 2000, pet. dism’d)
(stating “a terminated employee is not replaced by a person who temporarily
assumes the terminated employee’s job duties or a person who only takes over a part
of those duties”). We conclude Dr. Lewis failed to demonstrate she was replaced by
someone outside of her protected class.
b) Similarly Situated Employees
Dr. Lewis argues that she also satisfied the fourth element of her claim
because she established that HCC treated other similarly situated employees more
favorably. “Employees are similarly situated if their circumstances are comparable
in all material respects, including similar standards, supervisors, and conduct.” Tex.
Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 312 (Tex. 2020)
(citing Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)).
Although their circumstances need not be “identical,” the situations and conduct of
the employees in question must be “nearly identical” for them to be similarly
situated. Flores, 612 S.W.3d at 312; 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.’” Flores, 612 S.W.3d
at 312 (quoting Reyes, 272 S.W.3d at 594). Further, to establish that employees are
“comparable in all material respects,” a plaintiff “must produce evidence that the
plaintiff and comparator . . . engaged in the same conduct without such
24
differentiating or mitigating circumstances that would distinguish their conduct or
the employer’s treatment of them for it.” Haynes v. Waste Connections, Inc., 922
F.3d 219, 223–24 (4th Cir. 2019). Because they hold different jobs and have
different work responsibilities, subordinate and superior employees generally are not
considered to be similarly situated. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d
572, 585 (Tex. 2017) (holding higher-ranking employees were not similarly situated
to plaintiff); see also Grimes v. Wal–Mart Stores Tex., L.L.C., 505 Fed. Appx. 376,
379 (5th Cir. 2013) (concluding plaintiff’s subordinate, who was also manager, was
not valid comparator); Crosby v. Comput. Sci. Corp., 470 Fed. Appx. 307, 309 (5th
Cir. 2012) (concluding plaintiff’s supervisor was not valid comparator).
Dr. Lewis offers the following individuals as comparators: Dr. Bagherpour,
Charles Smith (Caucasian), Thomas Anderson (Caucasian), Raymond Bell
(Caucasian), Rogelio Anasagasti,13 and Maynard (Caucasian). At the outset, we
address Dr. Lewis’ argument that all these employees are similarly situated to her,
because as she contends, Dr. Maldonado is the ultimate decisionmaker for all “for
cause” terminations of full-time employees.
In his role as HCC’s Chancellor, Dr. Maldonado does not personally handle
every allegation of wrongdoing, including allegations of discrimination. Rather, Dr.
13
The record reflects Anasagasti’s ethnicity (Hispanic), but neither the record nor Dr.
Lewis identify his race.
25
Maldonado relies upon the HR Department and others who report to him to handle
such matters. According to Anderson, Dr. Maldonado does not become involved in
the employment decision-making process unless there is a recommendation that an
employee be terminated for cause. Dr. Maldonado does not participate in any other
disciplinary actions.
Contrary to Dr. Lewis’ allegations, the record here does not reflect that any of
her proffered comparators were recommended for termination “for cause” and
therefore, that Dr. Maldonado was involved in any of their employment decisions.
Moreover, Dr. Maldonado testified that he did not recall being asked to approve the
termination of any other director at HCC, except for Dr. Lewis. Therefore, there is
no evidence that Dr. Maldonado was the ultimate decisionmaker with respect to the
employment decisions for any of the proposed comparators or any other director at
HCC.
Even if Dr. Maldonado had been the “ultimate decisionmaker” with respect to
the employment decisions identified by Dr. Lewis, this factor would not change the
outcome of our analysis. As discussed below, the differences between Dr. Lewis
and the identified employees are such that none of these individuals can be
considered valid comparators. Dr. Lewis and her comparators had different
supervisors, titles, roles, responsibilities, and in some cases, worked in different
departments. See Monarrez, 177 S.W.3d at 917 (stating similarly situated
26
employees must be “comparable in all material respects, including similar standards,
supervisors, and conduct”); see also Flores, 612 S.W.3d at 312 (holding there was
no evidence supporting’s plaintiff argument that she was similarly situated to
subordinate even though both women reported to university president and president
was ultimate decision maker with respect to their employment decisions).
(1) Dr. Bagherpour
Dr. Lewis argues that Dr. Bagherpour is similarly situated to her because (1)
they were both employed as the Director of the VA Department, (2) they shared the
same supervisor, (3) Dr. Maldonado was the ultimate decision-maker with respect
to their employment, and (4) Dr. Bagherpour’s employment was not terminated,
even though multiple claims of discrimination had been lodged against her.
Dr. Bagherpour was HCC’s Associate Vice Chancellor of International
Student Services, not the Director of the VA Department; she did, however,
temporarily perform Dr. Lewis’ duties, in addition to her own responsibilities, until
Dr. Archie was hired as the interim Director of the VA Department in October 2015.
Dr. Bagherpour reported directly to Dr. Porcarello from March 2015 to
September 2015.14 As the Director of the VA Department, Dr. Lewis initially
14
Dr. Porcarello, who replaced Dr. Diana Pino, was hired as the interim Vice
Chancellor of Student Services in March 2015. Dr. Kim Beatty was serving as both
the Vice Chancellor of Instructional Services/Chief Academic Officer and the
interim Vice Chancellor of Student Services as of October 5, 2015. Dr. Philip
27
reported to Dr. Sterling and then later to Dr. Bagherpour. See Crosby, 470 Fed.
Appx. at 309 (concluding plaintiff’s supervisor was not valid comparator). Unlike
Dr. Bagherpour, Dr. Lewis did not report directly to Dr. Porcarello.
Although Dr. Lewis contends that Dr. Bagherpour had multiple complaints
lodged against her, the record reflects that the only formal complaint of
discrimination was filed by Dr. Archie in January 2016. Specifically, Dr. Archie
alleged that one of HCC’s internal auditors told him in December 2015, that Dr.
Bagherpour had told her, among other things, that Dr. Archie had only been hired as
the VA Department’s interim director because he was African American. Dr. Archie
informed Philip Nicotera, then the interim Vice Chancellor of Student Services and
Dr. Bagherpour’s supervisor, of the comments and asked for a meeting. Dr.
Nicotera, Dr. Archie, and Dr. Bagherpour met a few days later. Dr. Archie’s
discrimination claim against Dr. Bagherpour was also investigated externally. The
internal auditor denied telling Dr. Archie that Dr. Bagherpour had stated Dr. Archie
had been hired only because he was African American.
In February or March 2016, Dr. Archie filed a second complaint against Dr.
Bagherpour alleging Dr. Bagherpour had retaliated against him by making decisions
and changes regarding the VA Department without informing him and expressly
Nicotera apparently replaced Dr. Beatty, as the interim Vice Chancellor of Student
Services later that year and became Dr. Bagherpour’s supervisor.
28
directing VA staff not to inform him of the changes. This complaint was investigated
and found to be true. Dr. Archie testified that he did not know what discipline, if
any, Dr. Bagherpour incurred because she was on leave when the findings were
made.
Thus, the record reflects that Dr. Bagherpour’s and Dr. Lewis’ circumstances
are not comparable in all material aspects. Dr. Nicotera, who never supervised Dr.
Lewis, was Dr. Bagherpour’s supervisor when Dr. Archie filed his race and
retaliation claims against Dr. Bagherpour. Furthermore, unlike Dr. Lewis, no
finding was made that Dr. Bagherpour discriminated against Dr. Archie or anyone
else. The only allegation against Dr. Bagherpour that was found to be true was Dr.
Archie’s retaliation claim, but the record does not reflect whether Dr. Bagherpour
was disciplined as a result.
Dr. Lewis’ reliance upon anonymous email messages sent to various HCC
administrators and staff on September 18, 2013, and in January 2014, alleging Dr.
Bagherpour had discriminated against African American employees in the
International Student Services department based on their race also falls short. Unlike
Hembree’s complaint against Dr. Lewis, which resulted in a finding of
discrimination, the email complaints against Dr. Bagherpour were not investigated
29
because they were made anonymously.15 The allegations also concerned alleged
discrimination in a department different than the one where Dr. Lewis worked, and
as noted, Dr. Bagherpour and Dr. Lewis did not report to the same supervisor.
Given the differences between Dr. Lewis’ and Dr. Bagherpour’s
circumstances, Dr. Bagherpour cannot be considered a valid comparator. See
Monarrez, 177 S.W.3d at 917 (stating similarly situated employees must be
“comparable in all material respects, including similar standards, supervisors, and
conduct”) (citation omitted).
(2) Smith, Anderson, Bell, and Anasagasti
Dr. Lewis argues that Smith, Anderson, Bell, and Anasagasti are also similarly
situated to her. However, the record reflects that Smith, Anderson, Bell, and
Anasagasti did not hold the same position, work in the same department, have the
same work responsibilities or have the same supervisor as Dr. Lewis. As such, they
cannot be valid comparators. Flores, 612 S.W.3d at 312 (quoting Reyes, 272 S.W.3d
at 594) (noting that employees with different responsibilities, supervisors, and
capabilities are not considered to be nearly identical)
Beyond these deficiencies, there is also insufficient evidence to establish the
requisite “similarity” in job performance or conduct necessary to establish a valid
15
While Dr. Lewis disagrees with this ultimate finding, she does not dispute that a
formal complaint of discrimination was filed against her, resulting in a formal
investigation and a corresponding finding of discrimination.
30
comparator. There is no specific evidence regarding the referenced employees’ job
performance or work history, and, unlike Dr. Lewis, there is no evidence that any of
them had received a PIP. Nevertheless, Dr. Lewis contends that these four males
are similarly situated to her because they all had one or more allegations of race
discrimination lodged against them and HCC did not terminate their employment.
(a) Smith
Dr. Lewis argues that Smith, the former Executive Director of Facilities at
HCC, and not an employee at the VA Department, is similarly situated to her because
his employment was not terminated despite having had two claims of discrimination
filed against him by subordinate African American employees. One complaint was
filed by an African American man who alleged that Smith had discriminated against
him and others based on race. The record, however, only reflects a general allegation
of wrongdoing concerning Smith’s alleged mistreatment of African American
employees. There is no evidence regarding the specific conduct Smith allegedly
engaged in that prompted the discrimination claim, and therefore, no way to evaluate
whether he and Dr. Lewis engaged in the same behavior.16 See Harris Cty. v.
Bankhead, No. 01-13-01005-CV, 2014 WL 7474097, at *5 (Tex. App.—Houston
16
The complaint is not included in the record, and there is no evidence as to when the
claim was filed. The record reflects that the complaint was investigated externally,
but there is no evidence reflecting the outcome of the investigation or any resulting
recommendations. Anderson, who testified he was unaware of any claims filed
against Smith, testified that Smith had resigned and is no longer employed by HCC.
31
[1st Dist.] Dec. 30, 2014, pet. denied) (mem. op.) (“[T]he most critical factor in
evaluating comparator evidence is that the plaintiff’s conduct that drew the adverse
employment action be ‘nearly identical to that of the proffered comparator who
allegedly drew’ a dissimilar response.”) (quoting Lee v. Kan. City S. Ry. Co., 574
F.3d 253, 260 (5th Cir. 2009)); see also Haynes, 922 F.3d at 223–24 (“[T]o establish
a valid comparator, the plaintiff must produce evidence that the plaintiff and
comparator. . . engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer’s
treatment of them for it.” (internal quotation marks omitted)).
Unlike with Dr. Lewis, there is also no evidence that the allegation of
discrimination was found to be true. Although there is testimony that the male
employee’s discrimination claim against Smith also included a general complaint
about Smith’s job performance and his interactions with subordinates, there is
nothing in the record reflecting that Smith was ever given a PIP or otherwise
previously disciplined for his work. There is also no specific evidence reflecting the
factual basis for the employee’s complaint about Smith’s job performance. The
other complaint against Smith, which was filed by an African American woman, has
even less in common with Dr. Lewis’ situation because that employee alleged that
Smith had made inappropriate comments of a sexual nature. There is no evidence
in the record, however, concerning the claim, whether it was investigated, and what,
32
if any, resulting recommendations were made, and therefore, there is insufficient
evidence to establish the potential similarity in circumstances necessary for a
comparator analysis.
(b) Anderson
Dr. Lewis contends that Anderson, HCC’s Director of Employee Relations, is
also similarly situated to her because he had at least four claims of discrimination
filed against him and he was never placed on administrative leave, interviewed, or
recommended for termination. Three of the four allegations of discrimination were
raised in 2012, 2013, and 2018, and are, therefore, too remote in time to be probative
of whether race was a factor in Dr. Lewis’ termination in 2015. See Buckhanan v.
Shinseki, 665 Fed. Appx. 343, 350 (5th Cir. 2016) (holding employment decision
made more than two years before plaintiff’s employment decision was too remote to
consider employee similarly situated); see also Lee, 574 F.3d at 259 (“Employees
. . . who were the subject of adverse employment actions too remote in time from
that taken against the plaintiff generally will not be deemed similarly situated.”
(citation omitted)); see also Arceneaux v. Metro. Life Ins. Co., 481 Fed. Appx. 196,
198–99 (5th Cir. 2012) (holding plaintiff and other employees were not similarly
situated because incidents occurred two to three years apart and change in supervisor
occurred during that time). The only discrimination claim with a temporal proximity
to the allegation against Dr. Lewis is the 2015 complaint, and like the 2012, 2013,
33
and 2018 complaints, OIE closed the case after the complainant decided not to
pursue the matter. Thus, unlike Dr. Lewis, there is no finding that Anderson ever
engaged in discriminatory conduct.
(c) Bell
Dr. Lewis also argues that Bell, who was employed by HCC as a supervisor
in Asset Management (not in the VA Department), is similarly situated to her
because he was not disciplined after having a loud argument with an African
American subordinate who also raised complaints against him. The record reflects
that Bell and the African American subordinate were involved in “a heated
exchange,” during which they both raised their voices. Unlike Dr. Lewis and
Maynard, there is no evidence that anyone witnessed the argument between Bell and
the employee, or that the situation escalated to the point where either participant felt
threatened or otherwise felt the need to involve campus police. Furthermore, unlike
Dr. Lewis, Bell immediately sought HR’s assistance to resolve the dispute. After
hearing from both sides, Morris recommended that the employee be given an
opportunity to be retrained for her position and that Bell set performance
expectations for the employee. No further steps were taken. According to Morris,
HR did not investigate the situation between Smith and the employee “[b]ecause that
was an informal matter that was handled when they brought it up to—when they
came to HR, we handled that situation with a discussion.”
34
The same employee had also filed a complaint against Bell and nine other
HCC employees in 2016, including allegations that Bell had “blocked her path with
a printer tray” and that another employee was “coercing her supervisor [Bell] to
harass and intimidate her.” She did not make any specific claims of discrimination
against Bell. OIE investigated her complaints and determined that “the facts
gathered do not support a violation of HCC Policy G.1; Discrimination and
Harassment.” Thus, unlike Dr. Lewis, there was no finding that Bell discriminated
against a subordinate.
(d) Anasagasti
Dr. Lewis also argues that Rogelio Anasagasti, who was employed as the
Executive Director of Purchasing (outside the VA Department), is similarly situated
to her because he had a complaint raised against him by an African American
employee. The record reflects that one of Anasagasti’s African American employees
filed a complaint against him, but there is no evidence of when the complaint was
filed, the outcome of the investigation or specific information regarding the conduct
that led to the filing of the complaint. Morris testified that she did not know the
specifics of the complaint, which was filed before she worked for HCC. When asked
what she understood the nature of the complaint to be, Morris testified, “[m]y
understanding is that the complaint was against the way the employee was treated.”
Thus, there is no evidence that Anasagasti’s underlying conduct was the same as Dr.
35
Lewis’ conduct or whether the alleged misconduct occurred close enough in time to
be probative of whether race was a factor in Dr. Lewis’ termination. See Buckhanan,
665 Fed. Appx. at 350 (holding employment decision made more than two years
before plaintiff’s employment decision was too remote to consider employee
similarly situated).
Because the differences between Dr. Lewis and Smith, Anderson, Bell, and
Anasagasti significantly outweigh the similarities between them, none of these
individuals are valid comparators. See Monarrez, 177 S.W.3d at 917 (stating
similarly situated employees must be “comparable in all material respects, including
similar standards, supervisors, and conduct”) (citation omitted).
(3) Maynard
Dr. Lewis’ argument that Maynard is similarly situated to her is also
unavailing. Maynard, a Caucasian woman, was employed as a Student Services
Assistant in the VA Department. She had been hired by Dr. Lewis and reported to
her directly. Whereas Dr. Lewis was responsible for, among other things, providing
effective oversight and leadership within the VA Department and supervising the
department’s dozens of employees, including Maynard, Maynard’s job required her
to perform various clerical and administrative duties, including answering the
phones in the department’s call center. See Flores, 612 S.W.3d at 312 (holding
plaintiff’s subordinate was not valid comparator); see also Grimes, 505 Fed. Appx.
36at 379 (same). Although both Dr. Lewis and Maynard had a history of poor job
performance, Maynard was never found to have engaged in poor leadership and
management practices like Dr. Lewis. Maynard and Dr. Lewis did not share the
same supervisor and there is no evidence that anyone had ever filed a complaint
against Maynard for discrimination. Further, Maynard was reprimanded for her
unprofessional behavior and given a thirty-day PIP in response to the September 15,
2015 incident. Under these circumstances, Maynard is not similarly situated to Dr.
Lewis. See Flores, 612 S.W.3d at 312; see also Grimes, 505 Fed. Appx. at 379.
We conclude that Dr. Lewis has not established that HCC treated other
similarly situated employees more favorably. Accordingly, we hold that Dr. Lewis
did not establish a prima facie case of racial discrimination and therefore, the trial
court erred by denying HCC’s plea to the jurisdiction on her race discrimination
claim.17
Texas Whistleblower Act
HCC argues that the trial court erred in denying its plea to the jurisdiction as
to Dr. Lewis’ Whistleblower Act claim because Dr. Lewis failed to (1) initiate her
17
Because Dr. Lewis failed to establish a prima facie case of racial discrimination, we
need not determine whether HCC established a legitimate, nondiscriminatory reason
for terminating Dr. Lewis, and if so, whether Dr. Lewis overcame HCC’s legitimate
non-discriminatory reason by establishing that HCC’s stated reasons for her
termination were a mere pretext. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v.
Flores, 612 S.W.3d 299, 312 (Tex. 2020).
37
administrative remedies as required by the Whistleblower Act, (2) report a violation
of law, in good faith, to a law enforcement authority, and (3) establish the causation
element of her claim.
A. Applicable Law
The Whistleblower Act prohibits a government employer from taking an
adverse personnel action against a public employee who in good faith reports a
violation of law to an appropriate law-enforcement authority. See TEX. GOV’T CODE
§ 554.002(a); Office of Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 191 (Tex. 2020).
The Act, however, “does not afford unlimited protection from adverse personnel
actions based on legitimate reasons.” See Rodriguez, 605 S.W.3d at 192. Employers
have the right to make employment decisions based on conduct that arises after an
employee reports a legal violation. Id. at 192, 196. The Act also preserves an
employer’s right to terminate an employee “when it has ‘sufficient sound reasons’
or even ‘harbor[s] bad motives never acted upon.’” Id. at 192 (quoting Tex. Dep’t
of Human Servs. v. Hinds, 904 S.W.2d 629, 635–36 (Tex. 1995) (alteration in
original).
To establish a claim under the Whistleblower Act, an employee must establish
that the employer took an adverse employment action because the employee made a
report in good faith. See Rodriguez, 605 S.W.3d at 192; Hinds, 904 S.W.2d at 633.
The employee need not establish that her report was the sole or substantial reason
38
for the employer’s adverse action. Rodriguez, 605 S.W.3d at 192. Instead, she must
present some evidence that “but for” her report, the adverse employment action
would not have occurred when it did. Id. (“An adverse employment action ‘based
solely’ on reasons unrelated to a good-faith report of a legal violation destroys the
causal link.”); see also City of Fort Worth v. Zimlich, 29 S.W.3d 62, 68 (Tex. 2000).
While circumstantial evidence may be sufficient to establish the requisite
causal link, such evidence must, at a minimum, show that the person who took the
adverse employment action knew of the employee’s report. Harris Cty. v.
Vernagallo, 181 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied);
see also Zimlich, 29 S.W.3d at 70. Stated differently, a “decision-maker could not
fire an employee because of the employee’s report of alleged illegal conduct if the
decision-maker did not even know the employee made such a report.” Alief Indep.
Sch. Dist. v. Perry, 440 S.W.3d 228, 238 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied).
In City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000), the Texas
Supreme Court explained that in evaluating circumstantial evidence of causation in
Whistleblower Act cases, a court must examine all of the circumstances, including
knowledge of the report of illegal conduct, 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
39
adhere to relevant established company policies, discriminatory treatment in
comparison to similarly situated employees, and evidence the employer’s stated
reason is false. See id.; see also Clark, 544 S.W.3d at 790 (stating relevant
circumstances include “the temporal proximity between the protected activity and
the adverse action”) (citing Zimlich, 29 S.W.3d at 69)).
B. Analysis
HCC argues that the trial court erred in denying its plea to the jurisdiction with
respect to Dr. Lewis’ Whistleblower Act claim because, among other things, Dr.
Lewis cannot establish that her employment would not have been terminated but for
her reports to the TVC and USVA. We address each of the Zimlich factors below.
1. Knowledge of Decision-Maker
HCC argues that Dr. Lewis’ retaliation claim fails because Dr. Maldonado,
the final decision-maker, did not know that Dr. Lewis had reported her concerns to
the TVC and USVA when he approved Anderson’s recommendation to terminate
her employment in October 2015. Dr. Lewis claims Dr. Maldonado was aware of
her whistleblowing activities because her attorney emailed Dr. Maldonado several
documents in September 2015, including Dr. Lewis’ rebuttal to Maynard’s
complaint, which detailed her discovery of Maynard’s improper use of the B-Code.
In her rebuttal, Dr. Lewis stated that, in December 2014, she learned that a
Veteran’s Award had been placed on Maynard’s student account in 2012 and 2013,
40
and that she “informed various persons at Houston Community College what [she
had] discovered including: the Associate Vice Chancellor of Student Services,
Human Resources and internal auditors.” Notably, Dr. Lewis does not state that she
informed such persons of her reports to the TVC, the USVA, or anyone else outside
of HCC. Therefore, Dr. Lewis’ response is not evidence that Dr. Maldonado knew
that Dr. Lewis had made reports to the TVC or USVA before he approved the
recommendation to terminate her employment. Indeed, Dr. Maldonado averred in
his affidavit that he did not know that “Dr. Lewis had made any reports to the Texas
Veterans Commission or the U.S. Department of Veterans Affairs in late 2014 and
early 2015, and therefore I could not, and did not, approve the termination of her
employment because she made these reports.”
Dr. Lewis also argues that even if Dr. Maldonado was unaware of her reports,
she can still establish but-for causation using the “cat’s paw” or “conduit” theory of
liability. She argues that there is some circumstantial evidence that supports the
inference that Dr. Maldonado “was unduly influenced by the discriminatory animus
of the true decision-maker e.g., Anderson and Porcarello.”
Under the “cat’s paw” or “conduit” theory of liability, a plaintiff can establish
an employer’s liability where another employee with retaliatory animus influenced
the actual decision maker to take retaliatory action against the plaintiff. See Zamora
v. City of Houston, 798 F.3d 326, 332–33 (5th Cir. 2015) (applying “cat’s paw” or
41
“conduit” theory to Title VII discrimination claim). “Put another way, a plaintiff
must show that the person with retaliatory animus used the decisionmaker to bring
about the intended retaliatory action.” Id. at 331.
It is uncertain whether the “conduit” or “cat’s paw” theory of liability is
applicable to Whistleblower Act retaliation claims. Cf. Zimlich, 29 S.W.3d at 70
(declining to consider whether liability under the Whistleblower Act can be based
on a “conduit” causation theory); Vernagallo, 181 S.W.3d at 26 n.15 (declining to
apply “conduit” theory to Whistleblower Act claim because Texas Supreme Court
has not adopted theory). But even if it were, Dr. Lewis does not offer any evidence
that anyone involved in the decision-making process, including Anderson and Dr.
Porcarello, expressed a negative attitude toward Dr. Lewis’ alleged whistleblowing
activity or harbored a retaliatory animus toward her and recommended her
termination because of her reports.
Notably, there is no evidence that Anderson, who recommended to Dr.
Maldonado that Dr. Lewis’ employment be terminated, knew about the purported
reports to the TVC or USVA when he made the recommendation. While Dr. Lewis
claims that Morris told Anderson about Dr. Lewis’ “whistleblowing” report, the
record reflects that Morris informed Anderson only of Dr. Lewis’ internal reports at
HCC. Specifically, Morris testified that after Dr. Lewis informed her about the B-
Code misconduct, she shared the information with Anderson. When asked directly
42
about Dr. Lewis’ reports to the TVC or USVA, however, Morris, testified she could
not recall if Dr. Lewis had told her she had reported her concerns to the USVA or
TVC, or if she had shared this information with Anderson. In his deposition,
Anderson confirmed he had spoken to Morris about the alleged B-Code misuse, but
he denied knowing Dr. Lewis had reported her concerns to the TVC or USVA.
At most, there is some evidence that Dr. Porcarello knew in April 2015 that
Dr. Lewis had contacted the USVA regarding her concerns that HCC’s VA
Department employees had been misusing the B-Code. There is no evidence,
however, that Dr. Porcarello expressed a negative attitude toward Dr. Lewis’ reports
to the USVA at that time or that she took Dr. Lewis’ reporting into consideration six
months later, when she instructed Dr. Bagherpour to recommend Dr. Lewis’
termination.18 And even if there were evidence of “negative attitude” harbored by
Dr. Porcarello, there is no evidence that such negative attitude influenced Dr.
Bagherpour or Morris, both of whom recommended Dr. Lewis’ termination to
Anderson, who in turn, recommended Dr. Lewis’ termination to Dr. Maldonado.
This is fatal to Dr. Lewis’ claim. “Evidence must show that the retaliatory motive
was shared by the necessary decisionmakers and reflected in the final decision.”
Rodriguez, 605 S.W.3d at 196. There is no such evidence here.
18
The record reflects that Dr. Porcarello in fact initiated an internal audit to address
Dr. Lewis’ concerns regarding the alleged misuse of the B-Code.
43
Although Anderson reviewed Dr. Bagherpour’s and Morris’ separate reports
and recommendations, the record reflects that he also conducted an independent
review of the information they provided and that based on his independent review,
Anderson determined Dr. Lewis’ “performance problems were significant,
constituted serious violations of HCC policy, and warranted the termination of her
employment from HCC.”19
2. Temporal Proximity
Dr. Lewis argues that other circumstantial evidence demonstrates her
employment would not have been terminated, but for her reports, including the
temporal proximity between the time she reported the B-Code violations and her
suspension and termination. Temporal proximity is relevant to causation when it is
“very close.” Clark, 544 S.W.3d at 790 (citation omitted).
Although Dr. Lewis reported her concerns about the B-Code to TVC and
USVA in December 2014 or January 2015, Dr. Lewis contends that there is no more
than a two-month time gap between the time she engaged in her protected
whistleblowing activity and the time HCC placed her on administrative leave in
September 2015 and terminated her employment in October 2015. Dr. Lewis argues
19
Anderson recommended Dr. Lewis’ termination to Dr. Maldonado in a written
memorandum dated September 24, 2015. The next day, he received a copy of Dr.
Lewis’ rebuttal to Maynard’s complaint in which Dr. Lewis discussed the B-Code
misconduct. The rebuttal, however, did not disclose Dr. Lewis’ reports to the TVC
or USVA.
44
she was “advocating for justice to anybody who would listen well into the Summer
of 2015[,]” and claims that the “fraudulent behavior scandal continued to be a thorn
in HCC’s side right up to an August 28, 2015 audit[.]” Dr. Lewis’ argument is
unavailing.
The Whistleblower Act protects reports of violations of the law to appropriate
law enforcement authorities; its protections do not extend to internal reports. See
TEX. GOV’T CODE § 554.002(a) (stating Whistleblower Act requires that public
employee report alleged violation to “appropriate law enforcement authority”); see
generally Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 687
(Tex. 2013) (stating “lodging an internal complaint to an authority whom one
understands to be only charged with internal compliance, even including
investigating and punishing noncompliance, is jurisdictionally insufficient under the
Whistleblower Act”); Tex. A & M Univ.–Kingsville v. Moreno, 399 S.W.3d 128, 130
(Tex. 2013) (per curiam) (holding evidence state employee reported alleged
violation of law to authority that only oversaw internal university compliance was
jurisdictionally insufficient under Whistleblower Act). Therefore, the relevant
temporal period for purposes of our causation analysis is between Dr. Lewis’ reports
to the USVA and TVC in late 2014 and early 2015 and her suspension and
termination in September and October 2015. Because the record reflects that there
is at least an eight-month gap separating these relevant events, we conclude that the
45
temporal proximity between Dr. Lewis’ reports and her adverse employment action
“is so long to be of little, if any, probative value” to establish causation. Id. at 790
(holding that eight-month gap between whistleblower’s report and adverse
employment action “is so long as to be of little, if any, probative value”); see also
Democratic Sch. Research, Inc., 608 S.W.3d at 314 (holding four-month lapse
between employee’s protected activity and subsequent termination, without more,
did not raise fact issue regarding causal link).
3. Other Zimlich Factors
The remaining Zimlich factors are also unavailing. Dr. Lewis argues that
“HCC does not follow its own policies, procedures, and precedent when disciplining
staff,” and inconsistently applies “corrective action including termination.” Dr.
Lewis does not identify which policies, procedures, and precedent HCC did not
follow in her case. Although she points to HCC’s decision to discipline, rather than
terminate, Maynard after the incident in September 2015 as an example of HCC’s
inconsistent “application of corrective action,” there are differentiating
circumstances warranting the use of different disciplinary measures. Dr. Lewis was
the Director of the VA Department and in her role, she was responsible for leading
the department, as well as training and developing her staff, including Maynard.
Given her role as the leader of the VA Department, it was not unreasonable for HCC
to hold Dr. Lewis to a higher standard and discipline her more severely. Moreover,
46
as previously discussed, Dr. Lewis and Maynard were not similarly situated, and
thus, Dr. Lewis has not produced evidence of discriminatory treatment compared to
similarly situated employees.
Dr. Lewis also argues that “but for” causation can be inferred from the fact
that HCC’s stated reasons for terminating her employment are false. Dr. Lewis
argues that she should not have been disciplined for calling campus police to remove
Maynard from the building when Morris and Dr. Bagherpour had called the police
on other occasions, or for following HR’s advice that she could implement an
English-only workplace rule in the VA Department. She further contends that
HCC’s decisions to terminate her employment based on poor performance and
unprofessional conduct are false because she offered evidence of her excellent job
performance, including improvements she had made within the VA Department. Dr.
Lewis also contends that Anderson’s and Dr. Porcarello’s recommendation that she
be terminated, rather than removed from her position as Morris and Dr. Bagherpour
had recommended, is further evidence that HCC’s reasons for termination were
false.
Dr. Lewis’ pretext argument is insufficient to establish causation. Without
evidence that a decisionmaker knew about the protected report, the decisionmaker’s
“stated reasons could not be pretextual.” Rodriguez, 605 S.W.3d at 197. Moreover,
the record reflects that Dr. Lewis was not terminated because she called the campus
47
police during her argument with Maynard. Rather, Dr. Lewis’ decision to call the
police during that altercation was provided as an example of her poor judgment and
behavioral issues that contributed to her eventual termination. Morris explained that
Dr. Lewis’ exercised poor judgment in calling the campus police and asking them to
remove Maynard from the building because Maynard had not threatened Dr. Lewis
or another employee, was not the initial aggressor, and she should have contacted
HR because Dr. Lewis was “was aware of the performance and personal situations”
with Maynard and HR had been working to address those issues. Morris also faulted
Dr. Lewis for issuing Maynard a PIP without first discussing the matter with HR, in
violation of HCC’s progressive disciplinary policy. Morris also testified that her
recommendation to remove Dr. Lewis as director was not based on a single event,
such as calling the police or Hembree’s discrimination complaint, but rather the
cumulative effect of these events.
Dr. Lewis’ challenges to or disagreement with the accuracy of HCC’s
assertion that she was terminated based on her performance are also unavailing
because “[t]he ultimate question for the court ‘is not whether an employer made an
erroneous decision; it is whether the decision was made with discriminatory
motive.’” Jespersen, 390 S.W.3d at 657 (quoting Mayberry v. Vought Aircraft Co.,
55 F.3d 1086, 1091 (5th Cir. 1995)).
48
Analyzing the Zimlich factors we conclude that Dr. Lewis has not raised a
genuine fact issue on the element of causation. See Rodriguez, 605 S.W.3d at 198
(rendering judgment in favor of state employer on Whistleblower Act claim because
there was no evidence that whistleblowing activity was but-for cause of employee’s
termination); see also Miranda, 133 S.W.3d at 228 (stating that if defendant presents
proof that trial court lacks subject-matter jurisdiction, plaintiff must present evidence
sufficient to raise material issue of fact regarding jurisdiction, or the plea will be
sustained). Accordingly, the trial court erred in denying HCC’s plea to the
jurisdiction on Dr. Lewis’ retaliation claim.20
Conclusion
We reverse the trial court’s order denying HCC’s plea to the jurisdiction and
render judgment dismissing Dr. Lewis’ claims against HCC for lack of jurisdiction.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.
20
Because we conclude Dr. Lewis did not raise a genuine fact issue on the element of
causation, we need not address whether she established the other elements of her
Whistleblower Act claim, including whether she reported a violation of law or
whether, as HCC contends, she failed to exhaust her administrative remedies.
49