in Re Texas Christian University ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00350-CV
___________________________
IN RE TEXAS CHRISTIAN UNIVERSITY, Relator
Original Proceeding
342nd District Court of Tarrant County, Texas
Trial Court No. 342-307963-19
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This original proceeding arises from a discrimination lawsuit. Relator, Texas
Christian University, seeks a writ of mandamus challenging the trial court’s discovery
order. TCU complains that certain categories of information that real party in
interest, Ricardo Avitia, seeks to obtain are overbroad and irrelevant to the issues in
this litigation. We agree because Avitia seeks institution-wide—specifically in this
case, university-wide—discovery while his discrimination claim only involves the
department where he was employed and the actions of his supervisors in that
department. There is no basis to expand discovery beyond that relating to TCU’s
actions directed specifically toward Avitia or those similarly situated to him. We
conditionally grant mandamus relief.
II. Procedural and Factual Background
Avitia worked in TCU’s Registrar’s Office from June 16, 2011, until April 26,
2018. Avitia, a Hispanic veteran, assisted student veterans applying for financial aid
benefits. Avitia’s position in the Registrar’s Office was classified as nonexempt under
the Fair Labor Standards Act—meaning Avitia was paid for the hours that he worked
rather than paid a salary. In the fall of 2017, Avitia approached his supervisor,
Registrar Mary Kincannon, and requested that his position in the Registrar’s Office be
reclassified as exempt. Avitia’s request was denied.
2
In January 2018, Avitia complained that he was the subject of discrimination
because his counterpart in the Registrar’s Office, a Caucasian woman, was an exempt
employee and he was not. In April 2018, Kincannon fired Avitia because he was not
completing his tasks in a timely manner. 1
Avitia subsequently filed a lawsuit against TCU claiming that he was fired in
retaliation for his discrimination complaint and because of his race and national
origin. Avitia’s lawsuit is not a class action suit; his claims are based solely on his
supervisors’, in the Registrar’s Office, actions towards him. Moreover, Avitia does
not claim that he was terminated pursuant to a university-wide policy. Yet, as an
effort to obtain information regarding discrimination and retaliation at TCU
university-wide, Avitia sought discovery of all complaints alleging discrimination due
to race, national origin, age, sex, disability, and any other form of illegal
discrimination, made by any employee or student at TCU in any department.2
On June 24, 2020, Avitia noticed the deposition of a TCU organizational
representative. The notice sought testimony of twenty-one categories of topics
relating to, among other things, reports of discrimination made by any student,
faculty, or staff member received by TCU’s Campus Community Response Team,
1
Avitia was given sixty days to improve his performance prior to his
termination. However, Avitia’s job performance did not improve during the sixty
days, and he was later terminated.
2
Avitia sought discovery by interrogatory, request for production, and
deposition testimony from a designated organizational representative.
3
Human Resources Department, Title IX office, or its Chief Inclusion Officer.
Additionally, the notice included a subpoena seeking production of nineteen
categories of mostly university-wide documents regarding diversity in TCU’s entire
workforce, including TCU’s Strategic Plan and reports; as well as the budgets and
minutes of its Diversity, Equity, and Inclusion Committee during the years 2015–
2020; and training materials that pertain to TCU’s hiring and recruiting practices. The
notice further stated that the organizational representative would be expected to
testify about the produced documents.
TCU moved to quash the deposition notice and subpoena and sought entry of
a protective order. TCU objected to all discovery that did not pertain to Avitia’s work
unit—the Registrar’s Office. This included testimony about and discovery of reports,
budgets, statistics, initiatives, and training materials that pertain to TCU’s hiring and
recruiting practices; its Diversity, Equity, and Inclusion Committee; its Campus
Community Response Team; its Human Resources Department; and its Strategic
Plan. Finally, TCU objected to any discovery relating to students, faculty, or
management because Avitia is not a student or member of TCU’s faculty or
management. After TCU filed its Motion to Quash, Avitia moved to compel TCU to
answer certain interrogatories and produce certain documents.
On July 21, the trial court heard TCU’s Motion to Quash as well as Avitia’s
Motion to Compel. On August 18, the trial court issued its ruling which is the subject
of this mandamus petition. In its order, the trial court granted TCU’s objections to
4
the extent that TCU asserted that it should not be compelled to answer
interrogatories, produce documents, and give testimony concerning complaints of
discrimination made by students at TCU. But the trial court did not modify its order
as it relates to answering interrogatories, producing documents, and providing
testimony regarding information that does not pertain to Avitia’s work unit.
After its entry, TCU requested clarification of the August 18 order, and the trial
court held a hearing on August 28. But again, the trial court refused to alter its order
requiring TCU to answers questions, provide testimony, and produce documents
relating to departments outside of the Registrar’s Office.
On October 28, Avitia sent TCU a Second Amended Notice of Intent to Take
Oral Deposition of an Organizational Representative of TCU and Subpoena Duces
Tecum. Shortly after, TCU filed this Petition for Writ of Mandamus asserting that the
trial court abused its discretion when it ordered TCU to respond to irrelevant and
overbroad discovery.
III. Laches
Avitia contends, as an initial matter, that TCU failed to diligently pursue
mandamus relief. To invoke the equitable doctrine of laches, the moving party
ordinarily must show an unreasonable delay by the opposing party in asserting its
rights and also must show its good faith and detrimental change in position because
of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding)
(citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989)). Assuming without
5
deciding that TCU’s delay in filing its Petition for Writ of Mandamus was
unreasonable, we hold that Avitia has failed to show that he has suffered prejudice
due to the delay.
To prove that laches bars TCU’s requested relief, Avitia must show that he was
harmed by the delay. In re Hinterlong, 109 S.W.3d 611, 620 (Tex. App.—Fort Worth
2003, orig. proceeding [mand. denied]) (op. on reh’g) (requiring a showing of harm to
real party in interest before mandamus relief may be denied because of unreasonable
delay). Avitia asserts that he signed an Agreed Scheduling Order and agreed to cut off
discovery based on TCU’s representation that it would provide an organizational
representative for deposition. Apparently, Avitia claims that TCU is now reneging on
its promise. However, as TCU states in its reply, it has never taken the position that
Avitia cannot depose an organizational representative. TCU merely seeks to limit the
categories of topics for such deposition to topics that are discoverable under
applicable legal precedent in individual employment discrimination cases.
To the extent that Avitia is arguing that he agreed to the scheduling order
because TCU promised him that he could depose an organizational representative on
every subject matter he proposed, he has failed to provide a record to support such a
contention. Therefore, Avitia has failed to show a good faith and detrimental change
in position due to TCU’s alleged delay in filing this mandamus petition—which he
must establish as the party asserting laches. In re Laibe, 307 S.W.3d at 318.
Accordingly, laches does not bar our consideration of this petition.
6
IV. Standard of Review
This court may grant mandamus relief from a discovery order only when
(1) the trial court’s decision is so arbitrary and unreasonable that it is “a clear and
prejudicial error of law” and (2) the relator has no adequate remedy by appeal. In re
State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding). In determining
whether the trial court abused its discretion, we may not substitute our judgment for
the trial court’s determination of factual or other discretionary matters. Id. But
because a trial court has no discretion in determining what the law is or applying it, we
review its decisions on questions of law and application-of-law-to-fact questions much
less deferentially. Id. A trial court’s clear failure to correctly analyze or apply the law
is an abuse of discretion. In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig.
proceeding)
When considering a claimed abuse of discretion, we are mindful that
discovery’s purpose is to seek the truth so that disputes may be decided by what the
facts reveal, not by what they conceal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941
(Tex. 1998) (orig. proceeding). But, “although the permitted scope of discovery is
generally broad, a discovery request ‘must show a reasonable expectation of obtaining
information that will aid the dispute’s resolution.’” In re CAR Fin. Servs., Inc., No. 02-
20-00157-CV, 2020 WL 4213839, *3 (Tex. App.—Fort Worth July 23, 2020, orig.
proceeding) (mem. op.) (quoting In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 808 (Tex.
2017) (orig. proceeding)). However, even when a trial court abuses its discretion in
7
making a discovery ruling, we will not intervene if the relator has an adequate remedy
by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Appeal is inadequate when a party is in danger of losing substantial
rights, such as (1) when an appellate court could not cure the trial court’s discovery
error, (2) when the discovery error vitiates or severely compromises a party’s ability to
present a viable claim or defense at trial, or (3) when a party cannot make excluded
discovery part of the appellate record or the trial court, after proper request, refuses to
make it part of the record. See In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211
(Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992)
(orig. proceeding). In determining whether appeal is an adequate remedy, we must
consider whether the benefits of mandamus review outweigh the detriments. In re BP
Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); see In re Garza,
544 S.W.3d 836, 841 (Tex. 2018) (orig. proceeding) (holding “[a]ppeal is not an
adequate remedy where the practically certain effect of the sanctions will be reversal
with the attendant waste of resources and time.”).
V. Permissible Scope of Discovery
The scope of discovery is generally within the trial court’s discretion so long as
a discovery order does not exceed what the Rules of Civil Procedure permit. See Tex.
R. Civ. P. 192.4; In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 129 (Tex.
2018) (orig. proceeding) (“Our procedural rules allow broad discovery of unprivileged
information that is ‘relevant to the subject matter of the pending action.’” (quoting
8
Tex. R. Civ. P. 192.3(a))); In re State Farm Lloyds, 520 S.W.3d at 604. But a discovery
order that compels production beyond the rules of procedure is an abuse of discretion
for which mandamus is the proper remedy. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219,
223–24 (Tex. 2016) (orig. proceeding); accord In re Siroosian, 449 S.W.3d 920, 927 (Tex.
App.—Fort Worth 2014, orig. proceeding) (holding discovery request is overbroad if
not reasonably tailored to include only matters relevant to case, such as requiring
document production from distant and unrelated locales).
In employment suits, the nature of the discrimination claim determines the
scope of discovery allowed. Courts distinguish between an individual’s claim against a
company for acts committed against that individual and company-wide claims alleging
that a company has a pattern or practice of discrimination against a particular
classification of employees. In re Greyhound Lines, Inc., 138 S.W.3d 19, 21 (Tex. App.—
San Antonio 2004, orig. proceeding) (citing In re i2 Techs., Inc., No. 05-98-01780-CV,
1998 WL 887558, at *1 (Tex. App.—Dallas Dec. 22, 1998, orig. proceeding) (not
designated for publication) and comparing Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1090 (5th Cir. 1995) (individual claim of discrimination), with Duke v. Univ. of
Tex. at El Paso, 729 F.2d 994, 995 (5th Cir. 1984) (consolidating claims of university-
wide problem)). In a claim for individual acts of discrimination, the plaintiff is not
necessarily entitled to information about other employees, unless those other
employees are “similarly situated.” See, e.g., Ysleta ISD v. Monarrez, 177 S.W.3d 915,
917 (Tex. 2005) (holding employees are “similarly situated” if their circumstances are
9
comparable in all material respects, including similar standards, supervisors, and
conduct); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex. 1995) (orig. proceeding)
(holding plaintiff claiming personal injuries at one plant not entitled to company-wide
broad discovery of safety documents not related to plaintiff’s circumstances).
The Fifth Circuit has adopted a similar standard in employment claims,
referring to relevant discovery as that which involves employees whose circumstances
are “nearly identical” to that of the plaintiff.3 See Mayberry, 55 F.3d at 1090. “Similarly
situated” or “nearly identical” generally means activity in the same department or
office, by the same supervisory personnel, and by the same pattern of conduct. See,
e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (holding “conduct
at issue is not nearly identical when the difference between the plaintiff’s conduct and
that of those alleged to be similarly situated accounts for the difference in treatment
received from the employer” (citing Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296,
304–05 (5th Cir. 2000))); Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 398
(5th Cir. 2000) (limiting discovery of professor employed in mechanical engineering
department of university to records of those in mechanical engineering department
3
Avitia’s lawsuit is an employment discrimination suit brought under Chapter
21 of the Texas Labor Code. Chapter 21 purports to correlate “state law with federal
law in the area of discrimination in employment.” NME Hosps., Inc. v. Rennels, 994
S.W.2d 142, 144 (Tex. 1999). Thus, Texas courts look to analogous federal precedent
for guidance when interpreting the Texas Act. See id.; Reed v. Cook Children’s Med. Ctr.,
Inc., No. 02-13-00405-CV, 2014 WL 2462778, at *4 (Tex. App.—Fort Worth May 29,
2014, no pet.) (mem. op.); Holt v. Lone Star Gas Co., 921 S.W.2d 301, 304 (Tex. App.—
Fort Worth 1996, no writ) (op. on reh’g).
10
and not allowing discovery as to records of professors university-wide because
professor was not “similarly situated” to professors outside of his department); Smith
v. Wal–Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990) (holding in order for female
employee’s claim of disparate treatment to succeed, she must have shown that male
employee and she had been similarly situated; female employee must have shown that
the misconduct for which she was discharged was “nearly identical” to that engaged in
by a male employee whom the company retained); Ysleta ISD, 177 S.W.3d at 917
(holding employees are “similarly situated” if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct); Hertz Equip.
Rental Corp. v. Barousse, 365 S.W.3d 46, 56 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied) (holding employees similarly situated when they had same job duties); In re
Greyhound Lines, 138 S.W.3d at 22 (holding employees supervised by same supervisor
as plaintiff similarly situated to plaintiff); In re i2 Techs., 1998 WL 887558, at *2
(holding employee not entitled to company-wide discovery of all females at company
because employee was not similarly situated to all females at company).
Additionally, numerous federal courts have held that discovery in individual
employment discrimination cases should be limited to the “work unit” of the decision
maker whose actions are alleged to be discriminatory. See, e.g., Sallis v. Univ. of Minn.,
408 F.3d 470, 478 (8th Cir. 2005) (holding district court properly limited plaintiff’s
discovery request regarding prior discrimination complaints to complaints filed in
plaintiff’s specific department, where “his allegations of discrimination focus[ed] on
11
the behavior of the supervisors there”); Balderston v. Fairbanks Morse Engine Div. of Coltec
Indus., 328 F.3d 309, 320 (7th Cir. 2003) (holding plaintiff not entitled to discovery of
company-wide personnel files on all who had been terminated, laid off, or who had
retired and that district court properly limited discovery to the relevant corporate
department of “similarly situated” employees, time period, and decisionmakers);
Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1280 (11th Cir. 2002) (holding
it was proper to deny plaintiff discovery about settlement agreements entered in other
sex discrimination suits against employer because agreements resolved claims against
managers whose discriminatory animus was not at issue); Scales v. J.C. Bradford & Co.,
925 F.2d 901, 906 (6th Cir. 1991) (limiting discovery of employer’s payroll records to
employees in same department in which plaintiff-employee worked); Marshall v.
Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978) (limiting discovery in Title
VII case to “employing unit” or “work unit”); EEOC v. Packard Elec. Div., Gen. Motors
Corp., 569 F.2d 315, 316–17 (5th Cir. 1978) (limiting discovery in race and sex
discrimination case to department where employees worked); Choate v. Potter, No. 3-
06-CV-2146-L, 2008 WL 906784, at *2 n.1 (N.D. Tex. Apr. 3, 2008) (mem.) (rejecting
argument that plaintiff was entitled to discovery pertaining to employees hired for
positions to which plaintiff did not apply).
However, discovery may be expanded beyond a plaintiff’s employing unit if the
plaintiff can show the requested information is “particularly cogent” (Owens v.
Sprint/United Mgmt. Co., 221 F.R.D. 649, 654 (D. Kan. 2004)) to the matter or can
12
show a “particularized need and likely relevance that would require moving discovery
beyond the natural focus of the inquiry.” Earley v. Champion Int’l Corp., 907 F.2d 1077,
1084–85 (11th Cir. 1990); compare Duke, 729 F.2d at 997 (holding female university
professor plaintiff entitled to discovery of records of professors university-wide in sex
discrimination lawsuit when university-wide survey indicated that women were paid
less than their male counterparts), with Marshall, 576 F.2d at 592 (holding that because
termination decision was made at the local level, discovery on intent may be limited to
the employing unit and the vague possibility that loose and sweeping discovery might
turn up something suggesting discrimination does not show particularized need and
likely relevance that would require moving discovery beyond the employing unit).
TCU complains that the trial court’s August 18 order compels discovery
outside of firmly established precedent that allows discovery in individual
discrimination cases only from the decision maker and work unit at issue and not
from the entire organization.4 Moreover, TCU points out that it has already provided
Avitia with extensive discovery pertaining to his discharge and to operations within
the Registrar’s Office during the timeframe at issue in Avitia’s lawsuit. Specifically,
TCU produced Avitia’s supervisor, Registrar Mary Kincannon, for deposition. TCU
further provided Avitia with sworn information on the names, job titles, dates of
4
In the handwritten portion of the trial court’s August 18 order, the trial court
refers to the documents that TCU is ordered to produce by number. The numbers
refer to the categories of matters to be produced as set out in Plaintiff’s Amended
Notice of Intent to Take Oral Deposition of an Organizational Representative of
TCU and Subpoena Duces Tecum.
13
employment, and national origin of all full-time employees in the Registrar’s Office
from 2015 to the present date. TCU also provided the job description, hiring
documents, and performance appraisals of Audrey Crist, the employee in the
Registrar’s Office whose job is designated exempt and who Avitia complains was
treated differently than him because she is white. Additionally, TCU provided Avitia
with Kincannon’s affidavit as well as the affidavit of Tiffany Wendt, Avitia’s
supervisor in the Registrar’s Office prior to Kincannon.
In connection with Avitia’s allegation of retaliation for reporting
discrimination, TCU provided him with the affidavits of Yohna Chambers, TCU’s
Vice Chancellor and Chief Human Resources Officer, and Lara Ellison, Chambers’s
subordinate. Both testified in detail about TCU’s actions and investigation in
response to Avitia’s report of alleged discrimination. TCU also complied with Avitia’s
request to depose Dr. Darron Turner, TCU’s Chief Inclusion Officer and Title IX
Coordinator.
Avitia, however, argues that the scope of discovery in this case should extend
beyond the discovery he has already received or conducted and include all TCU
employees’ discrimination complaints because those complaints are relevant to his
claim of discrimination. His reasoning is that “[e]vidence of other instances of
discrimination is also relevant concerning [TCU’s] general policy and practice with
14
respect to minority employment and may also be relevant to showing pretext.”5
Additionally, Avitia claims “[a]ny evidence of [TCU’s] overall employment practices
may be essential to [his] prima facie case.”
Avitia also claims that even if discovery is limited to instances of discrimination
in the Registrar’s Office, discovery should include information regarding Dr. Darron
Turner’s policies and customs of handling complaints of illegal discrimination. Avitia
claims that evidence of Dr. Turner’s practice of receiving and handling complaints of
discrimination is relevant to his retaliation claim and “how it was handled (or
discouraged) by Dr. Turner and TCU.”
We do not find that Avitia’s arguments provide a basis to expand the scope of
discovery to matters outside of the Registrar’s Office. Avitia’s claim, that TCU
discriminated against him personally by failing to change his employment designation
from nonexempt to exempt, is an individual claim and not a class action claim of
institutional racism. Avitia does not complain of a university-wide policy of
discrimination against all Hispanics, nor does he claim he is a representative of all
5
Avitia also claims that other complaints of race and national origin and
retaliation by TCU employees are relevant to his request for punitive damages.
However, Avitia did not request punitive damages. Moreover, even if he did, Avitia
would only be entitled to punitive damages if he demonstrated that his supervisors in
the Registrar’s Office acted in a discriminatory practice with malice or with reckless
indifference to his state-protected rights. Tex. Lab. Code Ann. § 21.2585(b); Shear
Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 273 (Tex. App.—Fort Worth 2004, no pet.)
(restricting analysis of punitive damages claim to supervisor at franchise location
where plaintiff was employed). Accordingly, a claim of punitive damages would not
extend discovery beyond the Registrar’s Office.
15
Hispanic university-wide employees. Instead, Avitia alleges that two specific
employees in the Registrar’s Office, Registrar Mary Kincannon and Tiffany Wendt,
discriminated against him personally.6 Because Avitia’s claims relate solely to acts of
discrimination made against him while he worked in the Registrar’s Office, his claim is
an individual claim. See In re Greyhound Lines, 138 S.W.3d at 21 (holding plaintiff’s
claim an individual claim because she did not allege a company-wide policy of
discrimination and therefore discovery was limited to terminal where plaintiff worked
and to employees similarly situated). Accordingly, Avitia’s discovery of information is
limited to his “work unit” and to employees “similarly situated” to Avitia—those
employees that work in the Registrar’s Office and have similar job duties. See, e.g.,
Wallace, 271 F.3d at 222; Rubinstein, 218 F.3d at 398; Smith, 891 F.2d at 1180; Ysleta
ISD, 177 S.W.3d at 917; Hertz Equip. Rental Corp., 365 S.W.3d at 56; In re Greyhound
Lines, 138 S.W.3d at 22; In re i2 Techs., 1998 WL 887558, at *2. And according to
Avitia, only one Registrar’s Office employee had similar job duties to his—Audrey
Crist.7
In his response to TCU asking him to “identify each employee who you claim
6
harassed, discriminated against, retaliated against, or mistreated you,” Avitia
responded, “Tiffany Wendt discriminated against Plaintiff by not allowing exempt
status and not allowing additional work hours . . . [.] Kincannon discriminated against
Plaintiff by not allowing exempt status and not allowing additional hours of work . . . .
Those involved in Plaintiff’s termination were guilty of discrimination and
retaliation . . . .”
When Avitia was asked to identify each similarly situated co-worker, Avitia
7
answered:
16
In requesting discovery of university-wide discrimination complaints, Avitia
conflates discovery’s scope in actions involving one employee with evidence
admissible in class actions or company-wide policy suits. Avitia’s discovery request is
akin to that in Texaco, 898 S.W.2d at 814. In Texaco, the plaintiff wanted documents to
show Texaco’s “corporate ‘state of mind’” about safety. Id. The Texaco court held
that because the plaintiff complained of injuries at one plant and not the company as a
whole, his request was an improper fishing expedition. Id. As in Texaco, Avitia is
attempting to “dredge the lake in hopes of finding a fish.” Id. at 815; see also Dillard
Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig. proceeding) (seeking all
company records on claims alleging false arrest, civil rights violation, or excessive
force in hope of finding evidence to support race discrimination claim not proper
discovery).
As to Avitia’s claim that he needs to obtain information regarding how
Dr. Turner handled discrimination complaints based on race or national origin made
by others, not in his department, such a request is improper. Avitia has not shown
that such other employees are “similarly situated” to him and were employed in his
Audrey Crist was given exempt status in 2014. Ms. Crist performed the
same type of job functions with athletic students. The only difference in
their jobs was that she dealt with the athletic students[’] benefits. She
did not have to meet with the students, parents, etc. She only met with
TCU officials.
17
“work unit.” 8 See, e.g., Wallace, 271 F.3d at 222; Rubinstein, 218 F.3d at 398; Smith, 891
F.2d at 1180; Ysleta ISD, 177 S.W.3d at 917; Hertz Equip. Rental Corp., 365 S.W.3d at
56; In re Greyhound Lines, 138 S.W.3d at 22; In re i2 Techs., 1998 WL 887558, at *2.
Moreover, Dr. Turner testified that he was not consulted or involved in the decision
to discharge Avitia; Registrar Kincannon made the decision to fire Avitia.9 Dr.
Turner had nothing to do with the decision to fire Avitia. Accordingly, we fail to see
how discovery regarding Dr. Turner’s process of handling other employees’
discrimination claims is probative of Avitia’s claim that Registrar Mary Kincannon
and Tiffany Wendt discriminated against him based on his race or national origin. 10
8
To the extent Avitia is arguing that he needs to conduct discovery to obtain
information regarding how Dr. Turner handled his complaints of discrimination and
retaliation, Avitia has already deposed Dr. Turner on that subject. During his
deposition, Dr. Turner testified that he passed both of Avitia’s complaints to TCU’s
Human Resources Department to investigate and that he did not participate in the
investigation in any way. And TCU provided Avitia with discovery detailing how his
complaints were handled and investigated by Human Resources; TCU provided Avitia
with affidavits from Yohna Chambers, TCU’s Vice Chancellor and Chief Human
Resources Officer, and Lara Ellison, Chambers’s subordinate. Both testified in detail
regarding TCU’s actions and investigation in response to Avitia’s reports of
discrimination and retaliation. Because Avitia has already obtained discovery
regarding how his discrimination complaints were handled by TCU, he is not entitled
to conduct further discovery on this subject. See Tex. R. Civ. P. 192.4(a).
9
Moreover, even if Dr. Turner had approved Kincannon’s decision to fire
Avitia, which he did not, such action would be insufficient to broaden discovery to
employees outside of Avitia’s “work unit.” See Rubinstein, 218 F.3d at 397–99.
As to Avitia’s claim that Dr. Turner tried to discourage him from filing his
10
complaints, Dr. Turner was asked about that allegation during his deposition and
stated that he never attempted to discourage Avitia from filing either his
18
See Tex. R. Civ. P. 192.3(a); In re Nat’l Lloyds Ins. Co., 532 S.W.3d at 808 (holding only
relevant evidence is discoverable).
Although the scope of Avitia’s discovery could have been expanded to
employees, departments, reports, and documents outside of the Registrar’s Office if
Avitia had shown that such information was particularly “cogent” to his employment
claim or if he had shown a “more particularized need” and “relevance” for the
broader requested information”; Avitia has failed to make such a showing. See, e.g.,
Marshall, 576 F.2d at 592; Owens, 221 F.R.D. at 654. In sum, we do not believe that
Avitia is entitled to extend discovery beyond his work unit and beyond those
employees in the Registrar’s Office similarly situated to him—employee Audrey Crist.
Accordingly, the trial court abused its discretion in ordering TCU to produce overly
broad and irrelevant discovery. Dillard Dep’t Stores, 909 S.W.2d at 492 (holding that
discovery order compelling overly broad discovery outside the bounds of proper
discovery is an abuse of discretion (citing Texaco, 898 S.W.2d at 815)). Moreover,
because the trial court ordered TCU to produce overly broad discovery, it has no
adequate remedy at law. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431–32 (Tex.
1996) (orig. proceeding) (defendant had no adequate remedy by appeal from
overbroad discovery requests and was therefore entitled to relief by mandamus).
discrimination or retaliation complaint. And it is clear that Avitia was not thwarted
from filing a complaint as evidenced by the two complaints that he filed.
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VI. Conclusion
Having determined that the trial court abused its discretion by compelling TCU
to answer interrogatories, produce documents, and provide testimony on subject
matters that do not pertain to the Registrar’s Office and to employees in the
Registrar’s Office similarly situated to Avitia, and also having determined that TCU
has no adequate remedy at law, we conditionally grant TCU’s petition for writ of
mandamus pursuant to Texas Rule of Appellate Procedure 52.8(c).
We direct the trial court to vacate all paragraphs and handwritten entries in its
August 18 order that compel TCU to produce any discovery that does not pertain to
the Registrar’s Office and to similarly situated employees in the Registrar’s Office.
Because we are confident that the trial court will comply with this directive, the writ
will issue only if the trial court fails to do so. Our disposition of this original
proceeding serves to lift the stay previously imposed by this court. See Tex. R. App. P.
52.10(b).
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: January 14, 2021
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