Texas Health and Human Services Commission v. Maria Enriquez ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
TEXAS HEALTH AND HUMAN No. 08-19-00279-CV
SERVICES COMMISSION, §
Appeal from the
Appellant, §
County Court at Law No. 6
v. §
of El Paso, Texas
MARIA ENRIQUEZ, §
(TC # 2017-DCV-3698)
Appellee. §
OPINION
Appellee Maria Enriquez (“Enriquez”) was terminated from her position as a custodian at
the El Paso State Supported Living Center (the “Center”) for allegedly stealing an iPad belonging
to one of the Center’s residents. She thereafter filed a lawsuit against Appellant Texas Health and
Human Services Commission (“THHSC”), the umbrella agency under which the Center operates,
alleging that she was wrongfully terminated, raising, among others, a claim of retaliation.
THHSC filed a plea to the jurisdiction, contending that Enriquez did not have sufficient
jurisdictional evidence to support her several claims. The trial court granted THHSC’s motion as
to all but the retaliation claim. For the reasons set forth below, we conclude that Enriquez failed
to overcome THHSC’s proffered reason for the termination and show that but for her protected
conduct that she would not have been terminated when she was. We therefore reverse the trial
court’s order and render judgment dismissing Enriquez’s claims for lack of jurisdiction.
I. FACTUAL BACKGROUND
A. The Alleged Theft
The Center is home to approximately 130 residents who suffer from various intellectual
and developmental disabilities. Enriquez was employed as a custodian from April 2001 until she
was terminated in February of 2017. The Center’s residents live in residential units, commonly
referred to as cottages. One morning in September 2016, a THHSC employee, Patricia Cordero,
observed a resident in cottage #512 mishandling an iPad. Cordero thereafter placed the iPad in a
closet in the cottage’s unlocked janitorial storage room for safekeeping. The next morning,
Cordero saw that the iPad was missing, and initiated a search and internal investigation, which
included a review of surveillance camera footage from the day before by one of the Center’s
security camera monitors. The camera footage documented Cordero placing the iPad in the
janitorial closet earlier in the day, and later observed Enriquez, who was assigned to clean cottage
#512, enter the closet with a maintenance cart. Enriquez could then be observed taking a plastic
bag from the cart and placing a black square object in the cart while in the closet. The camera
footage further showed Enriquez push the cart into the laundry room adjacent to the closet, and
then exit the area with a black object resembling an iPad wrapped in a plastic bag under her arm.
Enriquez later returned to the area with no object in hand.
The next day an investigation was initiated by the Office of Inspector General (“OIG”) into
whether Enriquez had committed theft or exploitation. As per THHSC’s policy, Enriquez was
temporarily reassigned to a different job pending the results of the OIG investigation.
2
B. The OIG’s Investigation
The OIG Investigator, Efrain Sianez, independently reviewed the surveillance footage
and concluded that Enriquez took a black object resembling an iPad from the janitorial closet
shortly after Cordero had placed it there. He noted that Enriquez was the only person seen on the
footage leaving the closet with a similar object that day.1 Sianez interviewed Enriquez, who
denied taking the iPad, and who claimed that she left the closet with a crossword puzzle book
wrapped in a black plastic bag under her arm. With Enriquez’s permission, Sianez later went to
Enriquez’s home, where she showed him a red and white puzzle book that she claimed was the
object she had carried out of the closet. However, Sianez did not believe the book resembled the
object Enriquez had been carrying on the surveillance footage.2 In addition, Sianez interviewed
Cordero, who expressed her opinion that the object Enriquez was carrying in the surveillance
footage was the missing iPad she had placed in the closet earlier that day.
With Enriquez’s consent, Sianez subsequently arranged for her to take a polygraph
examination at the El Paso County Sheriff’s office. Enriquez responded in the negative each time
the examiner asked her if she had stolen the iPad or if she knew who had stolen it. Based on her
responses, the examiner concluded that Enriquez’s test results were “DI (Deception Indicated),”
and that she had “failed the polygraph.”
In a November 20, 2016 report, Sianez concluded that the “facts of the case disclosed that
Enriquez took an object that resembled an iPad outside cottage 512.” And he further testified at
1
The surveillance footage is not part of the appellate record, but still photos taken from the footage are included as
exhibits to the report prepared by the OIG.
2
For comparative purposes, the record contains a photograph that Sianez took of Enriquez holding the puzzle book
under her arm side by side with a still photograph taken from the surveillance footage of Enriquez leaving the janitorial
closet with the object under her arm on the day of the theft.
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his deposition that believed he had probable cause to charge Enriquez with the theft. However,
he explained that he did not do so because he could not determine “with certainty” that the object
Enriquez carried out of the janitorial closet was the “specific” iPad in question. Instead, he would
have preferred to have a “closer visual” of the iPad for identification purposes. He therefore
concluded his report by finding that the “theft/exploitation” charge against Enriquez was
“unsubstantiated.”
In a February 1, 2017 supplemental report, Sianez recounts that the iPad was found in early
November 2016 in a trash bin at a local park and subsequently returned to the Center. After being
informed of the iPad’s return, Sianez contacted the El Paso Police Department on November 29,
2016, and requested that they process the iPad for fingerprints. Enriquez’s fingerprints were not
found on the iPad, and the police were unable to identify a suspect through their “Automated
Fingerprint Identification System.”
C. The Termination
On January 11, 2017, the Center’s Housekeeping Manager, Luis Martinez, provided
Enriquez with a “Disciplinary Action Notice.” The Notice stated that Enriquez was observed on
the Center’s surveillance video removing a resident’s iPad from the janitorial closet in violation of
THHSC’s policy prohibiting employees from stealing items, and stated that Martinez had
determined that disciplinary action was appropriate. The Notice warned that in accordance with
THHSC’s policies, “theft or other unlawful activity,” would “most likely result in dismissal from
employment.” The Notice informed Enriquez that she had the opportunity to submit a verbal or
written rebuttal to the allegation against her.
In her written rebuttal, dated January 16, 2017, Enriquez denied the allegation, and further
claimed that her rights were violated during the investigation, contending that she had been
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“harassed” and “intimidate[d]” during the investigation, that she had taken the polygraph test
without knowing her rights, and that her rights had been violated by an “unreasonable search in
[her] home.” In addition, she asserted that the Center had used the missing iPad as an
“opportunity to get rid of an unpopular employee.” But she made no claim that her termination
was the result of age discrimination or retaliation at that time.
In a letter dated January 17, 2017, Martinez notified Enriquez that she was being terminated
from her employment, effective February 9, 2017. The letter stated that prior to making his
termination decision, Martinez had met with Enriquez that same day to review her rebuttal
information, and that after “reviewing [her] rebuttal and considering all the relevant facts,” he
determined that she had stolen the resident’s iPad and had thereby violated THHSC’s work rules.
He further provided Enriquez with information regarding how to file an appeal to contest his
decision.
Enriquez appealed the decision, and following a hearing, an administrative law judge
issued a final order sustaining her termination. In findings of fact and conclusions of law, the
administrative law judge found that the “preponderance of the evidence suggests that [Enriquez]
is the person who removed the iPad from the cabinet.” The judge further concluded that Enriquez
had committed the theft in violation of THHSC’s policies, and that her dismissal was therefore
proper.
II. PROCEDURAL BACKGROUND
A. Enriquez’s 2017 Texas Workforce Commission Complaint
On March 14, 2017, Enriquez filed an EEOC complaint with the Texas Workforce
Commission, alleging that she had been wrongfully terminated, raising claims of age
discrimination and unlawful retaliation for participating in a “protected activity” under the Texas
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Commission on Human Rights Act (“TCHRA”). In her complaint, Enriquez contended that
throughout her employment at the Center she had been “treated differently due to [her] age,” and
that she had previously complained that her supervisors, Irene Megliorino and Patricia Cordero,
“were constantly yelling at and humiliating” her because she was not working fast enough. In
response, THHSC acknowledged that Enriquez had filed an EEOC complaint on September 16,
2011, accusing Megliorino of age discrimination. THHSC also acknowledged that Enriquez had
in 2015 and 2016 filed a series of internal or administrative complaints within the agency against
Megliorino and other supervisors but argued that those complaints only raised management issues
and did not allege that she was the victim of age discrimination or report any other unlawful
activities.
B. The Lawsuit
After the Workforce Commission issued a right to sue letter, Enriquez filed her wrongful
termination lawsuit against THHSC, alleging age discrimination, unlawful retaliation for engaging
in protected activities, and a hostile work environment. After engaging in discovery proceedings,
THHSC filed a plea to the jurisdiction, arguing that the evidence did not support a finding that
Enriquez had been terminated for any unlawful reason, and that the true cause of her termination
was the theft of the iPad. Enriquez responded, claiming that she had come forward with sufficient
jurisdictional evidence to support her claims. Both parties submitted voluminous exhibits in
support of their positions.
Following a hearing, the trial court granted THHSC’s plea to the jurisdiction with regard
to Enriquez’s claims of age discrimination and hostile work environment and dismissed those two
claims but denied the plea with respect to the unlawful retaliation claim. THHSC filed an appeal
from the trial court’s order, but Enriquez did not.
6
III. ISSUES ON APPEAL
THHSC raises two issues on appeal. First, it contends that Enriquez failed to come
forward with sufficient jurisdictional evidence to support a prima facie case of unlawful retaliation.
Second, THHSC contends that even if Enriquez met her burden of establishing a prima facie
retaliation claim, it established a legitimate, non-discriminatory and non-retaliatory reason for
Enriquez’s termination, i.e., her alleged theft of the iPad. And as part of its second argument,
THHSC further contends that Enriquez failed to establish that THHSC’s stated reason for the
termination was a pretext for her termination. Because we agree with THHSC on its second issue,
we need not address the first issue.
IV. APPLICABLE LAW AND STANDARD OF REVIEW
A. Governmental Immunity and Pleas to the Jurisdiction
State agencies, such as THHSC, are protected by sovereign immunity from lawsuits other
than for claims for which their immunity has been waived by the legislature. Texas Dep’t of Aging
and Disability Services v. Lagunas, 546 S.W.3d 239, 246 (Tex.App.--El Paso 2017, no pet.) citing
Texas Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Absent a
waiver, a governmental unit’s sovereign immunity deprives a trial court of subject matter
jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
The Texas Legislature has, however, created a limited waiver of immunity for discrimination
claims brought under the TCHRA. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,
636 (Tex. 2012). That waiver, however, extends “only for those suits where the plaintiff actually
alleges a violation of the TCHRA by pleading facts that state a claim thereunder.” Id.A governmental entity may challenge the validity of a plaintiff’s claim through a plea to
the jurisdiction. Miranda, 133 S.W.3d at 225-26. A plea may attack the face of the pleading,
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but may also include evidence which thereby places into issue the existence of a jurisdictional fact.
Id. at 226-27. When, as here, a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider all the relevant evidence submitted by the parties. Id. “If there is no question
of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a
matter of law.” City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). On the other
hand, if the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea
to the jurisdiction, and the issue must be resolved by the fact finder. Texas Dep’t of Aging and
Disability Services v. Lagunas, 618 S.W.3d 845, 852 (Tex.App.--El Paso 2020, no pet.). Our
review of the trial court’s decision mirrors that of our review of summary judgments, which we
review de novo, accepting as true all evidence favorable to the non-movant, and indulging every
reasonable inference and resolving any doubts in the non-movant’s favor. Id., citing Miranda,
133 S.W.3d at 226-27; State Dep’t of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322,
327 (Tex. 2002).
B. Proving TCHRA Discrimination Claims
The TCHRA prohibits an employer, including a state agency, from discriminating against
a person on the basis of age, in connection with compensation or with the terms, conditions, or
privileges of employment. TEX.LAB.CODE ANN. § 21.051. An “employer” includes “a county,
municipality, state agency, or state instrumentality, regardless of the number of individuals
employed.” Id. § 21.002(8)(D). It also prohibits an employer from retaliating or discriminating
against a person who has engaged in protected activity such as opposing a discriminatory practice
or making a charge of discrimination. Id. § 21.055; Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 781 (Tex. 2018) (recognizing that, as a “companion to its anti-discrimination
provision, the TCHRA prohibits retaliation against an employee for engaging in certain protected
8
activities, such as reporting sexual harassment.”); County of El Paso v. Aguilar, 600 S.W.3d 62,
82-83 (Tex.App.--El Paso 2020, no pet.) (“The TCHRA prohibits an employer from retaliating
against an employee for engaging in protected activity such as opposing a discriminatory practice
or making a charge of discrimination.”).
In determining whether a plaintiff has a valid claim under the TCHRA for either
discrimination or unlawful retaliation, Texas courts recognize two alternative methods of proof.
See Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 477-79 (Tex.App.--El Paso 2013, pet.
denied), citing Mission Consol., 372 S.W.3d at 634. First, a plaintiff may prove unlawful
discriminatory or retaliatory intent via direct evidence. Williams-Pyro, 408 S.W.3d at 478.
“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without
inference or presumption.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).
However, as courts have recognized, it is often difficult to prove “discriminatory animus” through
direct evidence. Id.; see also Clark, 544 S.W.3d at 782 (recognizing that “smoking guns are hard
to come by” in discrimination and unlawful retaliation cases).
Because of this, Texas courts have developed a second method of establishing a claim
under the TCHRA, which follows the burden-shifting mechanism described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). That paradigm allows the plaintiff to
establish her case through circumstantial evidence. See Clark, 544 S.W.3d at 782 (applying
McDonnell Douglas framework to unlawful retaliation cases). Under this method, commonly
referred to as the “McDonnell Douglas” framework, the plaintiff must first come forward with
sufficient jurisdictional evidence to establish a prima facie case on each element of her claim. See
id. And if the plaintiff meets this burden, discrimination is presumed, and the burden then shifts
to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s
9
rejection.” Madden v. El Paso Indep. Sch. Dist., 473 S.W.3d 355, 360 (Tex.App.--El Paso 2015,
no pet.), citing Quantum Chem. Corp., 47 S.W.3d at 477. Once an employer offers an ostensibly
legitimate reason for their actions, the presumption disappears, and “[t]he burden then shifts back
to the complainant to show that the employer’s stated reason was a pretext for discrimination.”
Madden, 473 S.W.3d at 360, citing Quantum Chem. Corp., 47 S.W.3d at 477. To establish a fact
question on the issue of pretext, the plaintiff must present evidence, which when viewed as a
whole, would support a finding that the non-discriminatory reason given by the employer was false
or not credible, and that the “real reason for the employment action was unlawful discrimination.”
Madden, 473 S.W.3d at 360-361.
C. Elements of a Retaliation Claim
An employer is prohibited from retaliating or discriminating against a person who opposes
a discriminatory practice, makes or files a charge, or files a complaint. TEX.LAB.CODE ANN.
§ 21.055. A retaliation claim is related to, but distinct from, a discrimination claim, and one may
be viable even when the other is not. Clark, 544 S.W.3d at 763-64, 781. Unlike a discrimination
claim, a retaliation claim focuses on the employer’s response to an employee’s protected activity,
such as making a discrimination complaint, rather than on the validity of the underlying
discrimination complaint. Id.
Recognizing that Enriquez has no direct evidence that THHSC had a retaliatory motive for
terminating her, the parties agree that we must apply the McDonnell Douglas burden shifting
framework to determine if she has a valid claim of retaliation under the TCHRA that waives
THHSC’s immunity. To establish a prima facie case of unlawful retaliation, an employee must
show: (1) she engaged in an activity protected by the TCHRA; (2) she experienced a material
adverse employment action; and (3) a causal link exists between the protected activity and the
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adverse action. Clark, 544 S.W.3d at 782, citing Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 67-68 (2006). 3 If the employee makes that showing, a rebuttable presumption of
discrimination arises, which can alone sustain a discrimination claim. Clark, 544 S.W.3d at 782.
The employer, then “can defeat this presumption merely by producing evidence of a legitimate,
nondiscriminatory reason for the disputed employment action.” Id. “Once rebutted, the
presumption disappears, and an employee lacking direct evidence cannot prove a statutory
violation without evidence that the employer’s stated reason is false and a pretext for
discrimination.” Id.
Two causation standards are at play, the more onerous standard when the employer has
evidenced a non-discriminatory basis for the employment action:
The causation standard for the McDonnell Douglas prima-facie-case element is not
onerous and can be satisfied merely by proving close timing between the protected
activity and the adverse action. However, if the employer provides evidence of a
legitimate reason for the adverse action, under the federal standard, the employee
must prove the adverse action would not have occurred “but for” the protected
activity. The but-for causation standard is significantly more difficult to prove
than prima facie causation.
Clark, 544 S.W.3d at 782 (footnotes omitted). The “but for” standard was recently reaffirmed by
the court in Apache Corp. v. Davis, No. 19-0410, 2021 WL 2603824, at *1 (Tex. June 25, 2021).4
But how to apply that standard to the facts in a given case? In Alamo Heights v. Clark,
the court identified a series of factors useful in analyzing the causal link:
In evaluating but-for causation evidence in retaliation cases, we examine all of the
circumstances, including temporal proximity between the protected activity and the
adverse action, knowledge of the protected activity, expression of a negative
3
In determining whether a plaintiff has set forth a valid claim of discrimination or retaliation under the TCHRA, we
rely on both State and Federal authorities, as Texas courts have recognized that one of the purposes of the TCHRA is
to “provide for the execution of the policies of Title VII” of the Civil Rights Act of 1964, making it appropriate to
look to federal law “to inform our construction and application of the TCHRA[.]” See Clark, 544 S.W.3d at 764, n.5.
4
In its opinion, the court traced the “but for” causation standard back to Texas Dep’t of Human Services of State of
Texas v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995) and more recently reaffirmed in Office of Attorney General v.
Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).
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attitude toward the employee’s protected activity, failure to adhere to relevant
established company policies, discriminatory treatment in comparison to similarly
situated employees, and evidence the employer’s stated reason is false.
544 S.W.3d at 790.
And more recently in Apache Corp. v. Davis, the court emphasized that the “factors” are
not a replacement for the “but for” causation standard. Moreover, “[t]he factors may be more
helpful in some cases and less in others. Some of the factors may actually be a distraction.” 2021
WL 2603824, at *9. “More importantly, determining but-for causation cannot be a matter of
weighing—or worse, counting—factors that may be helpful in analyzing circumstantial evidence
in some situations.” 2021 WL 2603824, at *10. Rather, our focus must be on whether “but for”
the protected activity, the termination would not have occurred when it did.
V. DISCUSSION
In support of its jurisdictional plea, THHSC produced evidence (1) challenging Enriquez’s
prima facie case of retaliation, (2) asserting a nonretaliatory reason for the adverse employment
action, and (3) challenging causation between the alleged protected activities and the adverse
employment actions. We therefore must consider the jurisdictional evidence as it relates to all
elements of the circumstantial case. Clark, 544 S.W.3d at 783.
Even assuming that Enriquez made out a prima facie case, we turn to the evidence that
THHSC produced explaining its action, namely that it believed Enriquez stole an iPad from the
workplace. Once that evidence rebutted the presumption from the prima facie case, Enriquez
carried the burden to raise a fact issue that this reason was a pretext and that she would not have
been terminated but for exercising her protected activity. Id. In analyzing the relevant factors
as a whole, we find that Enriquez has failed to raise a genuine issue of fact on the issue of causation
between her claim of protected activity and her termination.
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A. Temporal Proximity
THHSC first contends that there is a lack of temporal proximity between any protected
activity and Enriquez’s February 2017 termination. We start with a brief summary of the alleged
protected activity that forms the basis of Enriquez’s retaliation claim.
On August 2, 2011, (five years prior to the stolen-iPad investigation), Irene Megliorino,
who held the title “Custodian III” and “Custodial Supervisor” authored and sent to Enriquez, who
was titled a “Custodian I” employee, a four-page “Third-Level Reminder Memo.” The memo
described seven incidents of insubordination occurring between 2004-2011 that were allegedly
committed by Enriquez. The memo reflects that Megliorino gave Enriquez a day off to “to decide
whether or not [she] really wanted to continue [her] employment with the agency.” Further,
Enriquez “would need to commit to correcting the problem, maintain an acceptable level of
performance and behavior, and follow all of the agency’s work rules” or failing that, face
termination. The memo indicated Enriquez returned to work the next day, but she was placed on
a “formal corrective process” which made her ineligible for certain benefits for twelve months.
The memo was copied to David Reyes, the then Housekeeping Manager, and Martin Bombach,
the then HR Director.
On September 16, 2011, in response to this disciplinary action, Enriquez filed an age-
discrimination complaint with the Texas Workforce Commission alleging that Megliorino told her
she was “too old” and that Enriquez (who was 58 at the time) should “go home so [she] can let
younger people work.” According to Enriquez, Megliorino was subsequently “demoted” and her
supervisory authority over Enriquez and the other “Custodian 1” employees was removed.
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Starting four years later, Enriquez filed a series of complaints with the agency, several of
which complained that she was being treated unfairly by Megliorino who was apparently
reasserting a supervisory role over Enriquez. We summarize these complaints below:
1. February 17, 2015: A complaint made by Enriquez and three other custodians, all over
the age of 40, complaining that Megliorino had treated them “unfairly” in the past, and had
engaged in “favoritism.” They expressed confusion over whether Megliorino was their
current supervisor, or whether she would be in the future, stating that after Enriquez’s 2011
EEOC complaint was dismissed, Enriquez was told that Megliorino was not a “supervisor.”
They expressed concern that if she were to again become their supervisor, she would
“belittle” them, “discriminate” against them, and “continue her intimidating tactics.”
2. November 10, 2015: An administrative complaint filed by Enriquez against David Reyes
and Karen McCluskey (then Assistant Director of Administration), complaining that they
were unevenly and unfairly assigning work to the custodial staff.
3. July 8, 2016: An administrative complaint filed by Enriquez and the same three other
custodians over the age of 40, to Jane Purcell, the Center’s Director, complaining that
Megliorino, who they believed was their temporary supervisor at the time, was generally a
bad manager, and was continuing to engage in favoritism, allowing her favorite employees
(such as her son-in-law) to select their working hours and giving them extra assistance from
contract workers. In this internal complaint the foursome expressed frustration that
despite having “repeatedly brought concerns and issues to Karen McCluskey regarding
Irene Megliorino about how she is managing her temporary post,” they had received no
satisfactory response.
4. July 11, 2016. The foursome submitted an “amendment” to their complaint claiming they
had been excluded from two meetings held by McCluskey with other custodians and that
McCluskey was asking custodians whether they would like Megliorino to assume the role
of Housekeeping Supervisor. While the complaint was apparently received, no formal
written response to this complaint appears in the record, which suggests it remained
pending.
5. July 22, 2016: An administrative complaint filed by Enriquez, complaining that
Megliorino had treated her in an unprofessional manner, had yelled at her, had berated her
in front of other employees and a resident, and had generally embarrassed and harassed
her. After her complaint was deemed unsubstantiated, Enriquez was advised that she and
Megliorino could go to mediation to resolve any “personal conflict[s]” they were having.
Enriquez filed an “Response to Appeal” on August 19, 2016, contending that their issues
extended beyond a “personal conflict,” and that Megliorino had been continually harassing
and belittling her and other “employees she does not like.”
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The next significant event occurred approximately thirty days later on September 14, 2016,
when the iPad was reported stolen and Enriquez was removed from her regular duties. That set
into motion the chain of events leading to the February 2017 termination.
While Enriquez’s September 2011 EEOC complaint clearly qualified as protected activity,
THHSC contends the later complaints pertain to routine work disputes centering on allegations of
mismanagement, harassment, and unprofessional conduct, but not anything that put THHSC on
notice of age an discrimination claim. See e.g. County of Travis v. Manion, No. 03-11-00533-
CV, 2012 WL 1839399, at *6 (Tex.App.--Austin May 17, 2012, no pet.) (mem. op.) (where
employer’s complaint referred once to “discriminatory treatment” and complained that she had
been harassed and treated in a “hostile” manner, the complaint contained no suggestion that would
have put the employer on notice that she was complaining that her treatment was the result of
sexual discrimination). As such, THHSC contends the 2015-2016 complaints cannot be
considered protected activities and used for the purposes of temporal proximity.
Enriquez, however, contends that these complaints all related back to her 2011 EEOC claim
of age discrimination, and that they sufficiently alerted THHSC that she was reporting unlawful
activity. The gist of the argument is that Megliorino discriminated against Enriquez based on age
in 2011--was removed from a supervisory role--and when Megliorino reasserted a supervisory role
in 2015, the age discrimination started again. Enriquez’s February 20, 2015, complaint
specifically references her 2011 EEOC complaint. Therefore, Megliorino is a common thread
that ties the 2015-2016 complaints to the original EEOC allegation.
Viewing the evidence in the light most favorable to Enriquez, we conclude the proximity
in time factor tilts in her favor. The 2011 EEOC complaint by itself would not meet the time-
proximity requirement. See Clark, 544 S.W.3d. at 790 (a gap of eight months is generally “so
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long as to be of little, if any, probative value”); Fields v. Teamsters Local Union No. 988, 23
S.W.3d 517, 529 (Tex.App.--Houston [1st Dist.] 2000, pet. denied) (upholding temporal proximity
as evidence of causation when the protected activity and adverse employment action were
“separated by weeks, as opposed to months”). But to the extent that Enriquez can tie all the events
together, she can relate the 2011 EEOC filing to the July 2016 complaints that are within two
months of the iPad theft, and six months of the termination. That two-step process weakens, but
does not entirely disprove the possible connection.5
B. Knowledge of the Protected Activity
In order to establish a causal connection between an employee’s protected activity and an
adverse employment action, the focus is on the final decision-makers and what knowledge, if any,
they had at the time of the adverse action. See Marsaglia v. University of Texas, El Paso, 22
S.W.3d 1, 5 (Tex.App.--El Paso 1999, pet. denied) (summary judgment in favor of employer in
retaliation case affirmed where employee failed to produce evidence that decision-maker had
knowledge of her protected activity, and where decision-maker filed an affidavit denying he had
any such knowledge); see also Ackel v. Nat’l Communications, Inc., 339 F.3d 376, 385 (5th Cir.
2003) (granting summary judgment in favor of employer on retaliation claim where employee had
no evidence that decision-maker was aware of employee’s protected activity).
The three persons principally involved in the termination decision process were Luis
Martinez, the Housekeeping/Custodial Manager, Kevin Ward, the interim Assistant Director of
Administration (ADOA), and the facility Director, Jane Purcell.6 THHSC points out that there is
5
We note, however, that the strength of the temporal connection is further weakened by the intervening OIG report,
dated November 20, 2016, which develops and elaborates on the evidence against Enriquez. The actual termination
decision then followed the OIG report.
6
THHSC’s Legal Department was also involved in the disciplinary action process, as required by THHSC policy.
16
nothing in the record to demonstrate that any of these three individuals had any knowledge of the
2011 complaint. First, Martinez testified in his deposition that he was hired in August of 2016 as
the custodial manager, and therefore had no direct knowledge of what occurred prior to that time.
Martinez acknowledged that Karen McCluskey, who at the time was an Assistant Director of
Administration, informed him after he was hired that Enriquez and others had complained that
Megliorino had treated the custodial staff in a belittling or rude manner; however, Martinez
expressly denied having any knowledge that Enriquez had complained of age discrimination, or
that she had previously filed an EEOC complaint with the Workforce Commission.7
Second, there is no evidence that Kevin Ward, who was Martinez’s supervisor at the time,
and who assisted Martinez in handling the termination process, was aware of the 2011 EEOC
complaint. To the contrary, Ward testified during his deposition that he was first hired at the
Center to serve as the interim assistant director of administration in October of 2016, after Enriquez
had filed her various complaints, and that he had no knowledge of any of her complaints, including
her 2011 EEOC complaint at the time of her termination. And finally, there is nothing in the
record to indicate that Jane Purcell, who was the Center’s director at the time, and who authorized
Ward to proceed with the termination process in December of 2016, had any knowledge of the
2011 EEOC complaint.8 She was the only person directly connected to the July 2016 complaints.
Accordingly, because there is no evidence in the record that any of the final decision-
makers had any knowledge of Enriquez’s age discrimination allegations, this factor weighs against
Enriquez.
7
Enriquez also contends that McCluskey had knowledge of the EEOC complaint. But there is nothing in the record
to indicate that McCluskey had any involvement in the termination process. Therefore, what McCluskey may have
known prior to Enriquez’s termination is not relevant to our analysis.
8
There is no indication that Purcell’s deposition was taken or that she provided any sworn testimony on this issue.
17
C. Expression of a Negative Attitude
An employer’s expression of a negative attitude with regard to an employee’s protected
activity can be a factor in determining whether there is a causal link between the protected activity
and an adverse employment action. Clark, 544 S.W.3d at 789. Although Enriquez does not
directly address this factor in her brief, she contends that the record supports a finding that there
was a “pattern of antagonism” at the Center that resulted from Enriquez filing grievances.
As an example of that antagonism, Patricia Cordero testified that Enriquez had a reputation
as a “complainer” at the Center. Enriquez also notes that following her February 20, 2015
complaint, McCluskey met with the four complaining employees along with David Reyes and
Megliorino. After the meeting, the foursome escalated their concern to a higher management
authority in which they described McCluskey at the meeting as being “mad” at them for “causing
all these problems.” The letter also stated that McCluskey had “threaten[ed] [their] jobs” by
telling them their jobs could be “out source[d] and [doing so] would save money.”
This evidence, however, is insufficient to support a finding of a negative attitude. Cordero
also testified that Enriquez’s reputation was based on her refusal or unwillingness to perform her
assigned cleaning duties, and not the filing of grievances. Moreover, Cordero was not one of the
final decision-makers, nor is there anything in the record to suggest that any of the final decision-
makers viewed Enriquez in a negative light due to her protected activity. This factor also weighs
against Enriquez.
D. Failure to Follow Relevant Policies
An employer’s failure to follow its relevant policies in making an adverse employment
decision may also be a factor in determining whether there is a causal link between an employee’s
protected activity and an adverse employment decision. See Clark, 544 S.W.3d at 789. The
18
parties here disagree on whether THHSC followed its relevant policies in terminating Enriquez,
and although there is some confusion in the record regarding what occurred during the termination
process, THHSC substantially adhered to its relevant policies throughout the process.
1. The OIG’s findings were not binding on THHSC
Enriquez contends that THHSC deviated from its policies when it terminated Enriquez for
the alleged theft of the iPad when the OIG report concluded that the theft allegation was
“unsubstantiated.” In particular, Enriquez contends that THHSC has a “general practice” of not
terminating employees accused of wrongdoing when the “allegations against [the] employee are
unsubstantiated” by the OIG. In support of this contention, Enriquez cites to Patricia Cordero’s
deposition testimony, in which she testified that she had “heard” that THHSC will not terminate
an employee accused of wrongdoing when the OIG has found the charge against the employee to
be “unsubstantiated.” This testimony, however, is of little probative value, as Cordero could not
recall when or from whom she heard this information. Moreover, neither Enriquez nor any of the
other THHSC witnesses indicated that this was in fact a THHSC policy. The THHSC policy
manual pertaining to disciplinary proceedings for theft makes no mention that an OIG finding is
required prior to proceeding with a termination, and instead simply states that when an employee
is disciplined for committing a theft, the “likely” outcome is termination. Moreover, Ward
provided unrebutted testimony at his deposition that THHSC is not required to wait for the OIG to
complete its investigation before terminating an employee. Ward further testified that while
THHSC could consider the OIG’s finding in determining whether to discipline an employee, he
explained that the OIG’s conclusion is not binding on THHSC, and the agency is entitled to make
an independent determination regarding whether any wrongdoing occurred, and whether and how
the employee should be disciplined for such wrongdoing.
19
Enriquez also points out that the record contains evidence that THHSC terminated several
employees for allegedly committing theft, and she contends that in each instance, the notices sent
to those employees stated that they were being “terminated only after OIG substantiated the
allegations of theft” against them. Our record contains termination notices for five employees,
yet only three of the notices referenced the OIG’s investigation, while two did not. Moreover,
none of the notices indicated that it was THHSC’s policy to only terminate an employee for
wrongdoing upon a finding that the OIG had substantiated the charges against the employee.
2. THHSC substantially complied with its termination policies
Enriquez next points out that there is confusion in the record regarding who was the final
decision-maker, correctly noting that both Martinez and Ward in their depositions denied being
the final decision-maker, and instead believed the other was responsible for the final decision.
Although both Martinez and Ward so testified, that does not demonstrate that THHSC substantially
or significantly deviated from its policies in determining whether to terminate Enriquez.
Amy Tippie, who at the time was THHSC’s Director of Executive Staff and Operations,
testified that the Center’s Director or the Director’s delegee had final decision-making authority
to terminate an employee, but that the employee’s direct supervisor could make that decision in
consultation with either the Director or the Director’s delegee. And the record demonstrates that
Purcell, who was the Center’s Director at the time, had delegated this authority to Ward, and
approved his request to move forward with the termination process in December of 2016. In
addition, the record demonstrates that Ward had conducted his own independent investigation of
the alleged theft, and in particular had viewed the surveillance footage, the OIG report, and had
been made aware of the results of Enriquez’s failed polygraph test. That review caused him to
conclude that Enriquez had stolen the iPad. Ward then consulted with the agency’s legal
20
department, as required by THHSC policy, and an unidentified employee in the legal department
informed Ward that she agreed with his conclusion, and gave him “approval” to go forward with
the termination process.
After receiving approval from both the legal department and from Purcell to move forward
with the process, Ward had two telephonic meetings with Martinez on January 10 and January 11,
2017, in which they discussed Enriquez’s case. During their meetings, Ward informed Martinez
that he had reviewed the relevant evidence, and that he believed Enriquez had stolen the iPad, and
that Purcell agreed with him. Ward, however, recalled that he did not express his belief that
Enriquez should be terminated for the theft, and instead only discussed with Martinez the possible
disciplinary actions he could take in the situation, which included termination, suspension, or a
demotion. In particular, Ward recalled that he viewed the situation as a training opportunity for
Martinez, as he was new to the agency, and he therefore wanted to leave the final decision up to
Martinez. Martinez, on the other hand, expressed his belief that Ward had the authority to make
the final decision, and recalled that Ward advised him during their first meeting that he and Purcell
had already decided that Enriquez should be terminated. Moreover, Martinez acknowledged that
he did not personally review the evidence against Enriquez, and instead merely “listened” to
Ward’s recitation of the evidence.
Any discrepancy between Ward and Martinez’s recollection as to who made the final
decision to terminate Enriquez does not reflect a substantial deviation from THHSC’s policies.
Ward could have made this decision alone, or alternatively Martinez could have made the decision
in consultation with Ward. In addition, Tippie testified at her deposition that even if Martinez
had the role of the final decision-maker, he was entitled to rely on Ward’s recitation of the evidence
21
against Enriquez in making his decision, and that THHSC policy did not require him to
independently investigate the case.
Martinez thereafter followed correct procedures in sending the disciplinary action notice
to Enriquez on January 11, 2017, describing the allegation against her, and informing Enriquez of
her right to file a rebuttal to the allegation before a final decision was made. And Martinez
testified that he received and reviewed Enriquez’s rebuttal before sending her the final termination
letter on January 17, 2017. Although Martinez admittedly sent the final termination letter without
consulting with Ward, the record reflects that the rebuttal was properly directed to Martinez, as he
was the person who signed the disciplinary action notice, and that Martinez had the authority to
independently review the rebuttal and to send the final termination letter without any additional
input from Ward.9
In short, while there is some confusion in the record regarding the final decision-maker,
there is nothing in the record to suggest that the Center substantially deviated from its standard
policies in terminating Enriquez for the theft. More importantly, there is nothing in the record to
indicate that Enriquez was deprived of any of her rights in the termination process. As set forth
above, she was given adequate notice of the allegations, and was given the opportunity to not only
file a rebuttal to the allegation, but to also appeal the termination decision to an administrative law
judge. We therefore assign this factor a neutral weight in our analysis.
E. Evidence that the Stated Reason for the Termination was False
Faced with evidence of a legitimate reason for the employment action, Enriquez needed to
show that a rational juror could have found that it was false or pretextual. See generally Texas
9
Although Enriquez finds it significant that neither Martinez nor Ward could recall who actually drafted the letter the
termination letter that Martinez signed, we find nothing in the record to suggest that it was against THHSC policy to
have someone other than Martinez draft the letter.
22
Dep’t of Transp. v. Flores, 576 S.W.3d 782, 794 (Tex.App.--El Paso 2019, pet. denied), citing
EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1198 (10th Cir. 2000) (recognizing that
when an employer gives a non-discriminatory reason for the employee’s termination, the
employee may show that the stated reason was false by revealing weaknesses, implausibilities,
inconsistencies, or contradictions that a fact finder could find unworthy of credence); see also El
Paso Cmty. Coll. v. Lawler, 349 S.W.3d 81, 87 (Tex.App.--El Paso 2010, pet. denied),
(recognizing that a plaintiff may show pretext by introducing evidence proving the reasons stated
by the employer, were not its true reasons, or that its reasons were “unworthy of credence.”), citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
In this regard, she focuses on the OIG report that found the theft allegation
“unsubstantiated,” which she believes supports a finding that she did not steal the iPad, and that
the reason for the termination was therefore false. The OIG report, however, was not binding,
and the agency could independently conclude that Enriquez had committed the theft. Moreover,
as the OIG investigator explained in his deposition, he was conducting a criminal investigation,
and while he believed he did not have sufficient evidence to go forward with the charge in a
criminal court of law, he nevertheless testified that, in his professional opinion, Enriquez had in
fact committed the theft:
Q. So even though you believed Ms. Enriquez stole an item from an individual
housed at the El Paso State Center and you believe that the evidence showed
that you chose not to charge her with a crime.
A. Yes.”
[. . .]
Q. And do you recall, in the video that you reviewed of the laundry room, there
was footage of Ms. Enriquez walking out of the -- well, the view of the camera
with something under her arm?
A. Yes.
23
Q. In your opinion, was that video footage of Ms. Enriquez with the iPad?
A. Yes.
Q. Okay. So if you believed that was video evidence of Ms. Enriquez with the
iPad, what piece of evidence were you missing?
A. Just a closer visual of the iPad.
[. . .]
Q. So in plain view of the video footage or of a photograph, as you said, of that
footage, are you saying you couldn’t really tell if that was actually the iPad or
not?
A. Personal opinion, yes, I could tell that that's the iPad. Professional, I couldn’t
prove it.
[. . .]
Q. (BY MR. BAEZA) So you bel- -- you personally believe Ms. Enriquez stole
the iPad. Can you tell me what evidence you believe -- or what evidence gives
you the opinion that Ms. Enriquez was the individual that took the iPad?
A. She -- she was the only person that had that item that looked like the iPad.
Q. Okay. So the only person that you saw carrying something that looked like the
iPad.
A. Yes.
Enriquez offers no evidence rebutting this testimony nor demonstrating that Sianez’s
position in this regard is unreasonable. And the fact Sianez did not believe he could prove the
theft beyond a reasonable doubt in a criminal context, does not in and of itself defeat, or even
create a fact issue. The evidence on which an employer relies to make an employment decision,
such as a termination, need not rise to the beyond a reasonable doubt standard.
Moreover, despite the fact that the Center conducted a thorough investigation that
memorialized all the relevant witnesses and evidence, all of which was reviewed and tested in
discovery in this case, Enriquez was still unable to present any evidence that might lead a
24
reasonable jury to conclude the Center did not believe she had stolen the iPad at the time she was
terminated or that such belief was not grounds for dismissal. Indeed, the record reflects that
despite Enriquez’s bare assertion that she did not even see the iPad much less take it, every person
who viewed the video, including those who did not participate in the decision to terminate
Enriquez, such as Patricia Cordero, OIG Investigator Sianez, Center Investigator Mario Gutierrez,
and Security Camera Monitor Roger Rivera, were all of the opinion Enriquez was carrying the
stolen iPad when she exited the janitor’s closet on September 13, 2016. Moreover, her claim that
she carried a puzzle book and not the iPad in the video was proven false by Sianez when he used
the puzzle book to create a re-enactment video.
In sum, the objective video evidence captured in real-time coupled with the unanimous
opinion testimony by every uninterested witness in this case, who all believed Enriquez stole the
iPad, is strong evidence supporting THHSC’s legitimate non-retaliatory justification for
terminating Enriquez that cannot be overcome simply by pointing to Enriquez’s self-serving and
uncorroborated denial.
True enough, there was some conflicting evidence regarding Enriquez’s guilt, such as the
lack of fingerprints on the iPad when it was found, and the fact that other individuals may have
had the opportunity to take the iPad from the closet.10 Nevertheless, the existence of conflicting
evidence, does not evidence that THHSC’s stated reason was false, or that THHSC did not believe
that she stole the iPad. Other than Enriquez’s testimony denying she stole the iPad, there is no
evidence from which a jury could infer that the Center’s belief that she stole the iPad, is false.
Accordingly, this factor weighs against Enriquez.
10
In her brief, Enriquez points out that other individuals had access to the iPad, including Cordero, and that Cordero
testified at her deposition that she took residents to the park for outings, thereby presumably giving her the opportunity
to abandon the iPad there.
25
F. Discriminatory Treatment in Comparison to Similarly Situated Employees
And finally, the record is devoid of evidence of discriminatory treatment in comparison to
a similarly situated employee and Enriquez does not point us to any. Enriquez’s only complaint
in this regard is that Cordero was not disciplined for her role in placing the iPad in the unlocked
janitorial closet. However, this is not a relevant comparison, as Cordero was not accused of theft,
and Cordero was therefore not a similarly situated employee. Moreover, the record contains
evidence of several employees at the Center who were found to have committed theft, who were
terminated from their positions. And in contrast, we find no evidence in the record that THHSC
ever meted out a lesser punishment to an employee found to have stolen property from the Center.
Accordingly, in the absence of any supporting evidence, we find that this factor also weighs against
Enriquez.
Our review of the factors leads to the inescapable conclusion that the protected activity--
the filing of the EEOC complaint in 2011 and subsequent 2015-2016 internal complaints--are not
causally related to the timing of the 2017 termination. The unrebutted theft of the iPad, and
THHSC’s belief that Enriquez took the device (supported by video and other evidence) breaks any
causal chain between the protected activity and the termination.
THHSC’s Issue Two is sustained.
VI. CONCLUSION
Having concluded that the jurisdictional evidence negates the causation element of
Enriquez’s case, we conclude that the trial court erred in denying THHSC’s plea to the jurisdiction,
and we reverse the trial court’s judgment denying the plea and render a take-nothing judgment in
THHSC’s favor.
26
JEFF ALLEY, Justice
July 28, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
27