Ernest Polk v. Texas Office of Consumer Credit Commissioner ( 2024 )

Opinion issued September 17, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00712-CV
———————————
ERNEST POLK, Appellant
V.
TEXAS OFFICE OF CONSUMER CREDIT COMMISSIONER, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2018-04375
MEMORANDUM OPINION
The Texas Office of Consumer Credit Commissioner (“OCCC”) terminated
Plaintiff Ernest Polk from his position as a state financial examiner after discovering
Polk was using his official credit card for personal use. Polk sued OCCC for
discrimination and retaliation and OCCC filed a Plea to the Jurisdiction. Polk
appeals from the trial court’s judgment granting OCCC’s Plea to the Jurisdiction and
dismissing his claims.
We affirm the trial court’s judgment.
Background
The OCCC is a state agency that regulates consumer lenders, such as payday
lenders and pawn shops. In January 2014, OCCC hired Appellant Ernest Polk for
the position of Financial Examiner I. As a financial examiner, Polk was required to
apply for and obtain a credit card to be used exclusively for business travel expenses.
Polk, who is African American, worked out of OCCC’s Houston office, where most
of the financial examiners were African American. According to Polk, many of the
African American examiners complained about racial discrimination and most
African American examiners left the Houston office within a short time.
Financial examiners are tested after their initial examiner training and during
examiner training conferences throughout the year. On April 30, 2015, Polk
received his first annual performance evaluation. His supervisor, Gene Dow, stated
in the evaluation that although Polk had passed his initial examiner training test on
his second attempt, Polk needed to “pass all future tests on the first try in order to be
considered for promotions.”
Polk alleges that even though he became eligible for consideration for
promotion to Financial Examiner II in May 2015, Dow did not recommend him for
2
the promotion at that time. OCCC contends that a supervisor recommendation is
one of the requirements for promotion. According to Polk, while the promotions of
eligible African American examiners often were delayed, eligible White examiners
in other offices were promoted on schedule. Polk alleges that “late grade
promotions” were a common complaint among OCCC’s African American
examiners. Polk alleges that at a regional meeting in the summer or fall of 2015, he
and other African American examiners complained about the late grade promotion
issue, and Polk told OCCC that there appeared to be a racial difference. According
to Polk, OCCC did nothing to address their concerns.
Polk was promoted to the position of Financial Examiner II in November
2015, after Dow recommended him for the promotion. After his promotion, Polk
requested six months of back pay because of the six-month delay in his promotion,
but OCCC refused his request.
On February 17, 2016, Polk filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and the Texas Workforce
Commission (“TWC”) asserting a claim for race discrimination and retaliation. He
alleged that even though he was qualified for a promotion in May 2015, OCCC had
delayed his promotion to Financial Examiner II until November 2015 due to his race.
After he filed his charge of discrimination, Polk alleges he experienced regular
instances of “petty harassment,” including OCCC, abruptly and without explanation,
3
deciding not to include him in an “employee spotlight.” He claims that his
supervisors also challenged his decision to change hotels during work travel. Polk
alleges he told his supervisor he had changed hotels because his original hotel was
“in an area known for racial discrimination” and he had witnessed people using racial
slurs there. Nonetheless, he was required to write “exception safety community
conditions” on his travel vouchers. According to Polk, he also protested a racially
insensitive topic included in an OCCC newsletter, and although the discussion was
initially removed, it was added back in and left there for three months.
On June 7, 2016, Polk, who was represented by counsel, mediated the EEOC
case with Juan Garcia, OCCC’s Director of Strategic Communications,
Administration and Planning, and OCCC’s General Counsel, but the case did not
settle. On July 7, 2016, after the failed mediation, OCCC filed a position statement
with the EEOC.
In September 2017, Polk alleges he spoke to OCCC’s Commissioner Leslie
Pettijohn and OCCC’s Director of Consumer Protection Rudy Aguilar during an
examiners’ meeting. He alleges he told them about “the racism, the high turnover
that the racism caused with black OCCC examiners, and the denial of promotions of
black examiners by the OCCC.” Shortly after, in October 2017, the EEOC issued
Polk a right to sue letter. One month later, in November 2017, Polk received an
4
“average” evaluation which he alleges was retaliatory because it did not reflect the
quality of his work performance.
On November 29, 2017, Polk met with his supervisor, Greg Williams.1
According to Polk, he raised the racial issues during the meeting and he told
Williams that OCCC would have a hard time retaining African American examiners
if the issues continued.
On December 14, 2017, OCCC met with Polk to discuss its recent discovery
that Polk had been using his credit card to purchase gasoline for personal use,
including while Polk was on vacation. That day, Polk met with Williams, Garcia,
Aguilar, and OCCC’s General Counsel. When Garcia asked Polk if he had used his
travel credit card for personal use, Polk answered that he had “because it’s
impossible not to use it for personal use when you submit a travel voucher for
personal reimbursement, it’s called personal mileage reimbursement.” Garcia fired
Polk immediately. Polk complained to the meeting participants that OCCC was
retaliating against him, and that retaliation was the only reason they were firing him.
Polk filed a second charge of discrimination on May 2, 2018, alleging OCCC
had terminated his employment in retaliation for “rais[ing] previous concerns about
1
Dow was Polk’s supervisor from January 2014 to November 2015. When Dow
retired in January 2016, Greg Williams was promoted to Dow’s position, and he
became Polk’s supervisor. Williams supervised Polk from January 2016 until
Polk’s termination in December 2017.
5
racial discrimination and because [he] filed a charge of discrimination with the
EEOC.”
OCCC’s Plea to the Jurisdiction2
Polk sued OCCC for wrongful termination based on race discrimination and
retaliation, failure to promote based on racial discrimination, and hostile work
environment based on racial harassment. OCCC filed a Plea to the Jurisdiction
seeking dismissal of Polk’s claims. OCCC argued that Polk could not establish a
2
OCCC filed two Pleas to the Jurisdiction. The arguments OCCC raised in its first
and second Pleas and Polk’s responses are largely the same. The evidentiary
support varies, as discussed below.
After OCCC filed its first Plea to the Jurisdiction, Polk moved to supplement his
disclosures to add Crystal Thompson-Hill, a former employee of OCCC, as a
witness and he submitted Thompson-Hill’s declaration in support of his response to
OCCC’s first Plea. OCCC objected to Polk supplementing his discovery responses
and moved to strike Thompson-Hill’s declaration. The trial court granted Polk’s
motion for leave to supplement his discovery responses and, after considering the
evidence, including Thompson-Hill’s declaration, the trial court denied OCCC’s
first Plea.
After several unsuccessful attempts to depose Thompson-Hill, OCCC filed a motion
to strike Thompson-Hill’s declaration and a second Plea to the Jurisdiction in which
OCCC raised the same arguments it had raised in its first Plea. Polk filed a response
arguing that OCCC’s second Plea, which he claimed was untimely, was largely
identical to its first Plea and Polk attached, among other things, his response to
OCCC’s first Plea and its exhibits.
The trial court denied OCCC’s motion to strike Thompson-Hill’s declaration
because the parties had agreed to work together to obtain Thompson-Hill’s
deposition testimony. After Thompson-Hill was deposed, OCCC filed a supplement
to its second Plea and attached excerpts of Thompson-Hill’s deposition. Polk filed
a supplemental response to OCCC’s second Plea and attached additional excerpts
of Thompson-Hill’s deposition. After considering the evidence, including
Thompson-Hill’s declaration and deposition testimony, the trial court granted
OCCC’s second Plea to the Jurisdiction.
6
prima facie case for his claim of failure to promote based on race discrimination
because OCCC had promoted him to Financial Examiner II as soon as he was
qualified for the position. And even if Polk could meet his prima facie case, Polk
could not establish that OCCC’s reasons for promoting him in November 2015,
instead of May 2015, were a pretext for discrimination because the evidence reflects
that based on Polk’s history of failing test scores, Polk’s supervisor was not sure Polk
could handle the complex, intricate calculations necessary for a Financial Examiner
II to complete his work. For that reason, Polk’s supervisor did not recommend him
for a promotion in May 2015.
With respect to Polk’s wrongful termination claim based on retaliation, OCCC
argued that Polk could not establish a prima facie case because there was no evidence
establishing a causal link between Polk’s charge of discrimination filed in February
2016 and his December 2017 termination. And even if he could establish his prima
facie case, OCCC argued Polk could not establish that OCCC’s reason for
terminating his employment was a pretext for discrimination.
OCCC further argued that to the extent Polk was attempting to litigate other
claims, such as wrongful termination based on racial discrimination or hostile work
environment, such claims were barred because Polk had not raised those claims in
his charges of discrimination, and thus he had not exhausted his administrative
remedies. See TEX. LAB. CODE §§ 21.201, 21.252–.254 (stating that filing charge of
7
discrimination is prerequisite to suing employer for claim). And in any event, Polk’s
allegations of “petty harassment” were insufficient to support a hostile work
environment claim.
In support of its Plea to the Jurisdiction, OCCC attached, among other things,
an affidavit from OCCC’s Human Resources Officer Candace Vargas,3 an affidavit
from OCCC’s Supervising Financial Examiner Christine Graham, and excerpts from
Polk’s deposition transcript. Vargas explained in her affidavit that to be promoted
to a Financial Examiner II, a Financial Examiner I must (1) successfully complete
his initial examiner training; (2) have one year of “experience in conducting basic
examinations, counted from the date of submission of the examiner’s first
independent report,” (3) have an overall rating of “satisfactory or better” on his most
recent evaluation; and (4) have a recommendation for consideration for promotion
from a supervisor and director on Consumer Protection. Vargas stated that in
November 2015, Polk’s supervisor, Dow, had recommended Polk for promotion to
a Financial Examiner II. Vargas also averred that as a financial examiner, Polk had
been issued a “credit card to be used for official travel business while performing
his job duties” and that use of “this credit card was strictly governed by OCCC’s
3
Candace Vargas attached multiple documents to her affidavit including two
memoranda prepared by Gene Dow, Polk’s supervisor, an affidavit from OCCC’s
Supervising Financial Examiner Christine Graham, OCCC’s Travel Guidelines and
Regulations (Policy # 400), a summary of Polk’s reimbursement requests, and
OCCC’s Standards of Conduct Policy (Policy #509).
8
Travel Guidelines and Regulations.” According to Vargas, in November 2017,
“OCCC noticed potential problems with Mr. Polk’s travel vouchers and a subsequent
investigation revealed that Polk “had been using his official credit card for personal
use and that he had submitted reimbursement requests for dozens of expenditures
that were not lawfully reimbursable.” OCCC “personnel compiled a summary of
those illegitimate reimbursement requests” and “confronted Mr. Polk with his credit
card misuse and illegitimate reimbursement requests on December 14, 2017.”
Vargas averred that Polk “refused to answer questions and walked out of the room.”
On the same day, “OCCC terminated him in accordance with policy.”
Attached to Vargas’s affidavit were two memoranda prepared in November
2015 by Dow. In Dow’s November 3, 2015 memorandum entitled, “Ernest Polk –
Assessment of Capabilities at May 16, 2015,” Dow explained that on May 16, 2015,
Polk became eligible for consideration for promotion to Financial Examiner II. He
explained that the “main concerns with going forward with a recommendation for
[Polk’s] promotion were listed in his Performance Evaluation [of Polk] for the period
end[ing] April 30, 2015.” Dow stated that based on Polk’s past test scores, he was
not convinced Polk could handle the “complexity and intricacies of Chapter 348
calculations,” which were part of a Financial Examiner II’s responsibilities. In
Dow’s “Promotion Memo for Examiner Ernest Polk — November 4, 2015,” Dow
stated that Polk was “currently in training for [Chapter] 348 independent work,” and
9
Dow believed that Polk would “be able to successfully complete the Chap[ter] 348
training within the next four to six months.” Dow concluded by stating, “Based on
his completion of all the steps required by the OCCC Career Ladder in effect on
November 4, 2015, I am recommending [Polk’s] promotion to Financial Examiner
II.”
OCCC also attached to Vargas’s affidavit the OCCC Travel Guidelines and
Regulations (Policy #400) and OCCC’s Standards of Conduct Policy (Policy #509)
in effect while Polk worked at OCCC. As relevant here, OCCC’s Travel Guidelines
and Regulations state:
Corporate Charge Card
Frequent travelers should contact the accounting office for an
application to enroll in the official state travel card program; it is
mandatory for employees who qualify to use the card. The card is to
be used only for official state business and must be paid in full and
on time each month.
The Texas Ethics Commission has determined that a credit card
issued to a state employee for state purposes may not be used for
personal expenditures or any other type of expenditure not
reimbursable as a state business expense under state law. See the
statewide travel charge card policy and the card use agreement for more
details. All charge card holders will be required to sign the card use
agreement form. The card charges are audited each month for
unauthorized charges and past due amounts.
(Second emphasis added). Also relevant here, OCCC’s Standards of Conduct Policy
states that “violation of the standards set forth” in the Policy “is subject to
disciplinary action up to and including termination, as deemed appropriate and
10
necessary.” The Policy then outlines “Unacceptable or Prohibited Activities and
Employee Conduct,” including among them, “[v]iolating any agency rule or any
action that is detrimental to the OCCC’s efforts to operate effectively and
efficiently” and “unauthorized use of OCCC equipment or property for personal
reasons. . . .”
Graham also provided an affidavit in support of OCCC’s Plea. She stated in
her affidavit that Polk had been “issued a credit card to be used for official travel
business while performing his job duties” as a Financial Examiner I and based on
Graham’s review of Polk’s records, “including credit card statements, time sheets,
and other official records, Mr. Polk [had] used his official credit card for personal
use.” Graham identified three instances where Polk had used his official credit card
for personal use stating:
a. On July 21, 2017, Mr. Polk logged 2 hours of administrative time
on his time sheet and 6 hours of vacation time . . . On this date
Mr. Polk used his official state credit card at a Walmart in
Harahan, Louisiana, which is near New Orleans, Louisiana.
b. On August 25, 2017, Mr. Polk logged 2 hours of administrative
time on his timesheet and 6 hours of vacation time. He then was
on vacation from August 28, 2017 to August 31, 2017 . . . During
this period Mr. Polk used his official state credit card at an HEB
in San Antonio, Texas and at an HEB in Kerrville, Texas.
c. From November 20, 2017 to November 24, 2017, Mr. Polk was
on vacation or Thanksgiving leave. Neither vacation time nor
Thanksgiving leave involve official state business. During this
time Mr. Polk used his official state credit card.
11
Polk’s Evidence in Response to OCCC’s Plea4
Polk filed a response to OCCC’s Plea arguing that OCCC failed to address his
claims for wrongful termination based on race discrimination and hostile work
environment and the evidence established a prima facie case for wrongful
termination based on race discrimination. Polk argued that he established a prima
facie case for wrongful termination based on retaliation because the evidence
showed a causal connection between his protected activity and his termination.
According to Polk, he engaged in protected activities by repeatedly voicing his
opposition to racial discrimination and participating in the “EEOC/TWC process”
for his February 2016 charge of discrimination. Polk argued that he presented
evidence that OCCC’s alleged reason for firing him—his alleged credit card
misuse—was false and a pretext for retaliation. He argues that the evidence of
pretext and the temporal proximity between his termination and his ongoing
opposition to race discrimination, which he claimed continued until two weeks
before his termination, supported an inference of causation.
With regard to pretext, Polk argued that OCCC’s proffered reason for his
termination—misuse of his travel credit card—was unworthy of credence because
his credit card use did not actually violate OCCC’s credit card policy, other financial
4
Because Polk’s responses to OCCC’s first and second Pleas to the Jurisdiction are
largely the same, we address them together, including Polk’s supplemental response
to OCCC’s second Plea. See supra footnote 2.
12
examiners used their cards in the same way, no one told him he was using his credit
card incorrectly, the timing of OCCC’s investigation into his travel vouchers and
credit card use was suspicious, and the alleged credit card violations were minor and
had no financial impact on OCCC. Arguing that OCCC likely knew its proffered
reason for his termination was problematic, Polk claimed that OCCC later concocted
a second reason for his termination during the course of the litigation, claiming that
Polk also had been terminated due to his behavior during the December 14, 2017
meeting. Polk also argued that Vargas’s affidavit was inadmissible and thus OCCC
had not produced admissible evidence supporting its claim that it terminated Polk
because of his conduct during the December 2017 meeting.
As to his failure to promote claim, Polk argued that he established a prima
facie case for race discrimination because Dow’s recommendation was the only
requirement Polk lacked for promotion in May 2015, and Dow withheld the
recommendation due to Polk’s race. According to Polk, he was otherwise qualified
for the promotion to Financial Examiner II in May 2015. Polk further argued that
OCCC’s explanation for not recommending him for promotion to Financial
Examiner II in May 2015 was a pretext for discrimination and that he had presented
evidence sufficient to create a fact issue as to pretext because he stated in his
declaration that African American examiners complained about racial
discrimination, most African American examiners left OCCC in a short time, there
13
was a persistent problem with late grade promotions for African American
examiners, and Polk was given vague excuses about not being ready for the position
of Financial Examiner II in May 2015.
Polk attached several exhibits to his response to OCCC’s Plea to the
Jurisdiction, including his declaration and a declaration from Crystal Thompson-
Hill—a former employee of OCCC. In his declaration, Polk stated that he started
working for OCCC in January 2014 as a Financial Examiner I in the Houston office.
Polk and most of the examiners in the Houston office were African American.
According to Polk, many of OCCC’s African American examiners “complained
about racial discrimination, from petty harassment to different treatment” and most
of them left OCCC within a short time of going to work for the agency. According
to Polk, the African American examiners commonly complained that they were not
being promoted to “a higher grade on the regular cycle, but instead [their]
promotions would be delayed.” Polk stated that he was “fully qualified to be
promoted to Examiner II in May 2015” because he had “passed the test and had met
all requirements for the promotion.” According to Polk, May 2015 was the
“expected time for [his] promotion” to Financial Examiner II because he had been a
Financial Examiner I for one year. Polk, who was not promoted to Financial
Examiner II until November 2015, stated he was “given vague excuses about not
14
being ready” in May 2015 and “[W]hite examiners in other offices were being
promoted on the regular schedule.”
In February 2016, Polk filed a charge of discrimination. According to Polk,
“there were many incidents of petty harassment and abuse directed at me and the
other African American examiners,” including OCCC’s unexplained decision to not
feature Polk in an “employee spotlight.” Polk claimed that his supervisors
“challenged [his] decision to change hotels in Beaumont” even though he explained
that he had witnessed racial slurs at his original hotel which was “in an area known
for racial discrimination,” and Polk was required to write “exception safety
community conditions” on his travel voucher. Polk also stated that he “protested the
discussion of ‘Texas Heroes’ during the Civil War in the OCCC newsletter and
explained that it was insensitive to racial discrimination and slavery,” but “OCCC
put the ‘Texas Heroes’ section back into the newsletter and left it there for three
months.”
In July 2017, Polk, who was represented by counsel, mediated the EEOC case,
but the case did not settle. The EEOC issued a right to sue letter in late October
2017. Polk claimed that in December 2017, he was “suddenly fired” and his position
was filled by a non-African American. He asserted that prior to his termination, no
one at OCCC told Polk he was under investigation and although his credit card bill
and travel reimbursements were audited every month, no one told him he had been
15
using his travel credit card incorrectly. Polk claimed that he used his travel credit
card as instructed in training and he had seen other examiners use their cards the
same way.
In his deposition,5 Polk testified that he was told in training that he could use
his travel credit card to pay for gasoline and he predominantly used the card to pay
for hotel expenses, rental cars, and gasoline for the rental cars and his personal car.
Polk stated that he used the credit card when he was not traveling for work because
he “would have to gas up for the coming week.” Polk testified that he used his travel
credit card to purchase gas for his personal car because he might need to use his car
for work the following Monday.
Polk also testified that he was asked about his travel vouchers and travel credit
card during the December 2017 meeting. When Garcia asked him if he had used his
travel credit card for personal use, Polk answered that he had “because it’s
impossible not to use it for personal use when you submit a travel voucher for
personal reimbursement, it’s called personal mileage reimbursement.” Garcia fired
Polk immediately. Polk complained that OCCC was retaliating against him, and that
retaliation was the only reason they were firing him.
5
OCCC also attached to Vargas’s affidavit excerpts from Polk’s deposition
testimony. This summary of Polk’s testimony is from excerpts submitted by OCCC
and Polk.
16
In her declaration, Thompson-Hill stated that she worked as an accountant for
OCCC until March 2020, and her responsibilities included reviewing travel expenses
for OCCC employees, including Polk. Thompson-Hill stated that examiners
normally used rental vehicles and “use[d] their credit cards to buy gasoline for the
vehicles,” and “most if not all examiners used their credit cards the same way as”
Polk. According to Thompson-Hill, OCCC did not have a “requirement that the
gasoline be used only for official state business.” Thompson-Hill stated that she had
been asked to pull Polk’s “documentation for some sort of investigation,” but no one
told her why or asked her “if there was anything unusual or improper about the way
that Mr. Polk used his credit card.” She was surprised when she later learned that
Polk had been terminated “based on his use of the credit card” and she had “never
heard of another examiner being disciplined or terminated on this basis.”
Later, during her deposition, Thompson-Hill testified that financial examiners
were allowed to purchase gasoline with their travel credit cards for “work travel,”
but not “personal travel.” According to Thompson-Hill, “work travel” means “work
related for the OCCC.” Thompson-Hill testified that she was not aware of any
financial examiners who used their travel credit cards for personal travel, and she
had never seen evidence of any financial examiners using their credit cards while on
vacation. She admitted that she would not know if a financial examiner was using
17
his travel credit card for personal expenses unless the examiner submitted vouchers
or reimbursement requests for those expenses.
When asked what she meant when she stated in her declaration that OCCC
“had no requirement that the gasoline be used only for official state business,”
Thompson-Hill testified that she was not sure, but she thought OCCC “required you
to be on travel status” and the card was required to be “used only for official state
business.” According to Thompson-Hill, an employee had to be on travel status to
purchase gasoline with his travel credit card if the employee intended to submit the
expense for reimbursement. Thompson-Hill testified that, as far she knew, Polk and
the other examiners used their travel credit cards only for travel expenses, and she
was not aware of them using their travel credit cards for another purpose.
Thompson-Hill stated it would be inappropriate for a financial examiner who was
not working for several days to use his travel credit card to “fill up [his] tank with
gas while []on vacation on a road trip” and she was not aware that any financial
examiner had used his travel credit card in that manner.
In its reply, OCCC argued that its position statement, which Polk had attached
to his response, demonstrated that Polk’s promotion date was not based on race
discrimination. OCCC’s position statement reflected that Polk was hired as one of
five new financial examiners, four of whom were African American, and all five
examiners were promoted to Financial Examiner II at different times throughout
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2015 based on the same criteria. Some of the African American examiners were
promoted before Polk. According to OCCC, Polk’s declaration only reflected his
subjective belief that his promotion was purportedly delayed because of race
discrimination, and it did not provide any objective evidence that could support an
inference of discrimination.
OCCC also argued that Polk’s claim that other examiners used their credit
cards like he did, that he was told he could use his card to purchase gas, that he was
not told he was using his card incorrectly, and that the identified misuses of his credit
card were minor and thus not terminable offenses, were mere attempts to deflect
from the undisputed evidence that Polk’s use of his credit card violated OCCC’s
written credit card policy. According to OCCC, Polk’s declaration, which is vague,
speculative, and not supported by the evidence, also did not provide any evidence of
pretext.
The trial court granted OCCC’s Plea, and this appeal followed. On appeal,
Polk argues the trial court erred by (1) granting OCCC’s Plea to the Jurisdiction on
Polk’s wrongful termination claims based on race discrimination and retaliation,
(2) granting OCCC’s Plea on Polk’s failure-to-promote claim based on racial
discrimination, (3) granting OCCC’s Plea on Polk’s hostile work environment claim
based on racial harassment, and (4) considering Vargas’s affidavit and Dow’s
November 3, 2015 memoranda, which was attached to Vargas’s affidavit.
19
Evidentiary Objections
In his fourth issue, Polk argues the trial court erred by considering Vargas’s
affidavit because Vargas has no personal knowledge of the facts set forth in her
affidavit, which “is just a conduit for hearsay.” Polk further argues that Dow’s
November 3, 2015 memorandum on which Vargas relied is inadmissible hearsay.
OCCC responds that Polk did not preserve these arguments for our review
because he failed to secure rulings from the trial court on his objections to Vargas’s
affidavit and Dow’s memorandum, and even if his objections had been preserved,
Polk’s objections are without merit because, as a human resources officer, one of
Vargas’s job functions is to “know what an entity’s requirements are and historically
have been for promotion from one position to another within the entity.” OCCC
argues those are standard facts within the knowledge of typical human resources
officers.6
To preserve a complaint for appellate review, a party must first complain to
the trial court by way of a timely request, objection, or motion, and the trial court
must rule or refuse to rule on such matters. TEX. R. APP. P. 33.1(a). A party who
objects to evidence offered in support of a plea to the jurisdiction must obtain a
written ruling on his objection at, before, or very near the time the trial court rules
6
Polk does not include any case law or analysis for this issue, and he does not address
OCCC’s preservation argument in his reply brief.
20
on the plea or risk waiver. See Cnty. of El Paso v. Baker, 579 S.W.3d 686, 694 (Tex.
App.—El Paso 2019, no pet.). Objections to hearsay and lack of personal knowledge
are defects in form that must be preserved for appeal. Id. (stating objections to
hearsay must be preserved for appellate review); City of Dall. v. Papierski, No. 05-
17-00157-CV, 2017 WL 4349174, at *2–3 (Tex. App.—Dallas Oct. 2, 2017, no pet.)
(mem. op.) (stating party must object to defect in form of affidavit attached to plea
to jurisdiction and obtain ruling to preserve objection for appeal); see also UT Health
Sci. Ctr.–Hous. v. Carver, No. 01-16-01010-CV, 2018 WL 1473897, at *5 (Tex.
App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op.) (stating defects in
form include objections to hearsay and lack of personal knowledge).
Because Polk did not obtain rulings on his evidentiary objections to Vargas’s
affidavit or Dow’s memorandum, we will consider Vargas’s affidavit and its
attachments, including Dow’s November 3, 2015 memorandum, in our review. See
Cnty. of El Paso, 579 S.W.3d at 694 (“[U]nless an order sustaining an objection to
hearsay or lack of personal knowledge to summary judgment evidence is reduced to
writing, signed, and entered of record, the evidence remains part of the summary
judgment proof even if a party has objected to an opponent’s summary judgment
evidence.”); TEX. R. EVID. 802 (“Inadmissible hearsay admitted without objection
may not be denied probative value merely because it is hearsay.”); see also Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (stating
21
standard applied in reviewing plea to jurisdiction “mirrors that of a summary
judgment”).7
We overrule Polk’s fourth issue.
Plea to the Jurisdiction
In his first, second, and third issues, Polk argues the trial court erred by
granting OCCC’s Plea to the Jurisdiction because based on the evidence before the
trial court, a reasonable jury could conclude that “OCCC’s failure to promote [him]
on schedule was the result of race discrimination” and “the real reason for [his]
termination was his race and his protected activity.” Polk further argues that the trial
court erred in dismissing his claim for racial harassment because OCCC failed to
address that claim in its Plea and to the extent it properly addressed the claim,
contrary to OCCC’s arguments, Polk did “exhaust the claim before the EEOC.”
7
We note that even if Polk had preserved his evidentiary objection to Vargas’s
affidavit based on lack of personal knowledge, he still would not prevail. An
affiant’s position or job responsibilities can establish personal knowledge of facts
and establish how the affiant learned of the facts. Valenzuela v. State & Cnty. Mut.
Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no
pet.); see Wright v. Hernandez, 469 S.W.3d 744, 752 (Tex. App.—El Paso 2015, no
pet.) (holding affiant’s position as human resources manager sufficient to
demonstrate personal knowledge); see generally DIRECTV, Inc. v. Budden, 420
F.3d 521, 530 (5th Cir. 2005) (stating personal knowledge of investigation into
“pirate access devices” can be “reasonably inferred” from affiant’s position as
Senior Director of Signal Integrity).
22
A. Standard of Review
“[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). The trial
court’s subject matter jurisdiction may be challenged through a plea to the
jurisdiction. See Miranda, 133 S.W.3d at 225–26; Blue, 34 S.W.3d at 554 (“A plea
to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of
action without regard to whether the claims asserted have merit.”). Whether a court
has subject matter jurisdiction is a question of law, and we thus review a ruling on a
plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226, 228.
A plea to the jurisdiction may be advanced to challenge whether a plaintiff
has satisfied its burden to allege jurisdictional facts or to challenge the existence of
jurisdictional facts. See Miranda, 133 S.W.3d at 226–27. If the plea challenges the
existence of jurisdictional facts, we apply the procedure and standard of review
applicable to summary judgments. See id. at 228. We consider the relevant
jurisdictional evidence submitted by the parties, taking as true all evidence favorable
to the plaintiff, indulging all reasonable inferences and resolving all doubts in the
plaintiff’s favor. Id. If the defendant asserts, and supports with evidence, that the
trial court lacks subject matter jurisdiction, the burden shifts to the plaintiff to show
there is a disputed material fact concerning jurisdiction. Id. If the jurisdictional
evidence, considered in the light most favorable to the plaintiff, raises at least a
23
question of fact as to the jurisdictional issue, the plea must be denied, leaving the
matter to be resolved by the factfinder. Id. at 227–28.
A plaintiff raises a genuine issue of material fact by producing more than a
scintilla of evidence regarding a jurisdictional issue. See Neely v. Wilson, 418
S.W.3d 52, 59 (Tex. 2013). More than a scintilla of evidence exists when reasonable
and fair-minded individuals could differ in their conclusions. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). There is less than a scintilla of
evidence when the evidence is “so weak as to do no more than create a mere surmise
or suspicion” of a material fact. Id.; see also Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 601 (Tex. 2004) (stating evidence offered to prove vital fact that does
nothing more than “create a mere surmise or suspicion of its existence” does not
meet scintilla standard and is no evidence at all). When the circumstantial evidence
is so slight that “any plausible inference is purely a guess, it is in legal effect no
evidence.” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001).
B. Sovereign Immunity
Sovereign immunity “deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have been sued unless the
state consents to suit.” Miranda, 133 S.W.3d at 224; see also Mission Consol. Indep.
Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (“Sovereign immunity and
its counterpart, governmental immunity, exist to protect the State and its political
24
subdivisions from lawsuits and liability for money damages.”). The legislature has
provided a limited waiver of immunity from suit for employment discrimination and
retaliation claims falling within the scope of the Texas Commission on Human
Rights Act (“TCHRA”). See TEX. LAB. CODE §§ 21.051, 21.055; Prairie View A&M
Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012); Garcia, 253 S.W.3d at 660. “[A]
claimant can bring suit under the TCHRA against a governmental entity only after
[the] claimant strictly satisfies the procedural requirements outlined in the TCHRA.”
Chatha, 381 S.W.3d at 513–14.
C. Discrimination and Retaliation Claims under the TCHRA
The TCHRA states that an employer commits an “unlawful employment
practice” if, because of race, color, disability, religion, sex, national origin, or age,
the employer:
(1) fails or refuses to hire an individual, discharges an individual, or
discriminates in any other manner against an individual in
connection with compensation or the terms, conditions, or
privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for
employment in a manner that would deprive or tend to deprive
an individual of any employment opportunity or adversely affect
in any other manner the status of an employee.
TEX. LAB. CODE § 21.051. Further, an employer commits an unlawful employment
practice if it retaliates or discriminates against a person who:
(1) opposes a discriminatory practice;
25
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation,
proceeding, or hearing.
TEX. LABOR CODE § 21.055.
To establish a prima facie case of race discrimination, a plaintiff must
establish that he (1) is a member of a protected class, (2) was qualified for his
position, (3) suffered an adverse employment action, and (4) was replaced by
someone outside of his protected class or others similarly situated to him 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 v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 434 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied). To establish a prima facie case of
retaliation, an employee must show that (1) he engaged in an activity protected by
the TCHRA, (2) he experienced a material adverse employment action, and (3) a
causal link exists between the protected activity and the adverse action. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018).
There are two methods by which a plaintiff can establish discrimination and
retaliation under the TCHRA. See id. at 781–82; Donaldson, 495 S.W.3d at 433.
An employee can offer direct evidence of the employer’s discriminatory or
retaliatory actions or words. See Clark, 544 S.W.3d at 782. Because direct evidence
26
of discrimination is rarely available in employment cases, courts also allow claims
to proceed based on indirect or circumstantial evidence of discrimination or
retaliation. 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). See
Clark, 544 S.W.3d at 782.
Under the McDonnell Douglas framework, an employee must first establish a
prima face case for his claims. If the employee establishes a prima facie case of
discrimination or retaliation, a rebuttable presumption of discrimination or
retaliation arises. Id. The employer can defeat this presumption by producing
evidence of a legitimate, non-discriminatory reason for the adverse employment
action. Id.; see also Tex. Dep’t of Aging and Disability Servs. v. Lagunas, 618
S.W.3d 845, 853 (Tex. App.—El Paso 2020, no pet.) (stating employer must
“articulate some legitimate, nondiscriminatory reason” for its failure to promote
employee); Tex. Dep’t of State Health Servs. v. Resendiz, 642 S.W.3d 163, 175 (Tex.
App.—El Paso 2021, no pet.) (“[A]n employer’s articulated reasons for the adverse
27
termination decision must be sufficiently specific to give the employee the
opportunity to present evidence establishing that the reasons were pretextual.”).
If the employer meets its burden to produce evidence of a legitimate, non-
discriminatory reason for the adverse employment action, the burden shifts back to
the employee to come forward with sufficient evidence to raise a genuine issue of
material fact on the question of whether the employer’s stated reason is a pretext for
discrimination or retaliation. Clark, 544 S.W.3d at 782. To raise a fact issue
regarding pretext, the employee must present evidence indicating that “the non-
discriminatory reason given by the employer is false or not credible, and that the real
reason for the employment action was unlawful discrimination.” See Donaldson,
495 S.W.3d at 438; see also Datar v. Nat’l Oilwell Varco, L.P., 518 S.W.3d 467,
478 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (stating plaintiff can avoid
summary judgment if evidence creates fact issue as to whether each of employer’s
stated reasons was not what actually motivated employer and creates reasonable
inference that employer acted with intent to discriminate or retaliate)).
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.
28
D. Exhaustion of Administrative Remedies
A person claiming a violation of the TCHRA must first exhaust his
administrative remedies prior to filing suit. Waffle House, Inc. v. Williams, 313
S.W.3d 796, 804 (Tex. 2010); Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex.
App.—Austin 2012, pet. denied) (“The exhaustion of administrative remedies is a
jurisdictional prerequisite to filing suit for unlawful employment practices.” (citing
Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996))); Santi
v. Univ. of Tex. Health Sci. Ctr. at Hous., 312 S.W.3d 800, 804 (Tex. App.—Houston
[1st Dist.] 2009, no pet.) (“Failure to timely file an administrative complaint deprives
Texas trial courts of subject-matter jurisdiction.”).
To exhaust administrative remedies under the TCHRA, a plaintiff must
(1) file a charge of discrimination with the TWC within 180 days of the alleged
discriminatory act, (2) allow the TWC 180 days to dismiss or resolve the charge, and
(3) file suit in district court within 60 days of receiving a right-to-sue letter from the
TWC and no later than two years after filing the charge. See TEX. LABOR CODE §§
21.202, .208, .254, .256.
A lawsuit under the TCHRA is limited to the claims asserted in the charge
filed with TWC and factually related claims that reasonably can be expected to grow
out of the TWC’s investigation. Santi, 312 S.W.3d at 805. In reviewing a claimant’s
discrimination charge, courts should construe it with “utmost liberality,” although
29
the charge must contain an adequate factual basis so that it puts the employer on
notice of the existence and nature of the charges. City of Sugar Land v. Kaplan, 449
S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Santi, 312
S.W.3d at 805. “The crucial element of a charge of discrimination is the factual
statement contained” in the administrative complaint. Santi, 312 S.W.3d at 805(quoting Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—
Texarkana 2008, pet. denied)); see also Preston v. Tex. Dep’t of Family & Prot.
Servs., 222 Fed. App’x. 353, 356 (5th Cir. 2007) (“[A] charge is sufficient when . . .
sufficiently precise to identify the parties, and to describe generally the action or
practices complained of.”).
Wrongful Termination
In its Plea, OCCC moved to dismiss Polk’s wrongful termination claim
arguing Polk had no evidence to support his “subjective belief” that he was
terminated in retaliation for filing a discriminatory complaint. OCCC argued that it
was objectively “unreasonable to believe” that OCCC had terminated Polk in
December 2017 “because of the discrimination complaint” Polk had filed two years
earlier in February 2016, and thus such a gap could not “support an inference of
causation.” In his response, Polk asserted that his retaliation claim was viable
because the summary judgment evidence “raise[d] an inference of causation”, and
he further claimed he had met his prima facie case of wrongful termination based on
30
race. Arguing Polk had not raised a claim of termination based on race, OCCC
responded that the claim was subject to dismissal. And as to his wrongful
termination claim based on retaliation, OCCC argued that the evidence was
insufficient to establish causation or pretext.
In his first issue, Polk argues the trial court erred in granting OCCC’s Plea to
the Jurisdiction with respect to his wrongful termination claim based on retaliation
because he established a prima facie case for retaliation and further produced
evidence of pretext. He claims that OCCC’s decision to terminate his employment
based on credit card misuse is false and pretextual and further that OCCC failed to
produce admissible evidence supporting OCCC’s claim that it also terminated Polk
because of his conduct during the December 2017 meeting.
Polk also argues that the trial court erred in granting OCCC’s Plea with respect
to his wrongful termination claim based on race discrimination because he
established a prima facie case for his claim and OCCC neither addressed nor
explicitly moved for dismissal of the claim in its Plea.
A. Retaliation
To establish a prima facie case of retaliation, an employee must show (1) he
engaged in an activity protected by the TCHRA, (2) he experienced a material
adverse employment action, and (3) a causal link exists between the protected
activity and the adverse action. Clark, 544 S.W.3d at 782. “The causation standard
31
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.” Id. Evidence sufficient to establish a causal link between an
adverse employment decision and a protected activity may include:
(1) the employer’s failure to follow its usual policy and procedures in
carrying out the challenged employment actions; (2) discriminatory
treatment in comparison to similarly situated employees; (3) knowledge
of the discrimination charge or suit by those making the adverse
employment decision; (4) evidence that the stated reason for the
adverse employment decision was false; and (5) the temporal proximity
between the employee’s conduct and discharge.
Crutcher v. Dall. Indep. Sch. Dist., 410 S.W.3d 487, 494 (Tex. App.—Dallas 2013,
no pet.) (citing Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 519 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied) (discussing factors in context of termination
of employment)); see also Donaldson, 495 S.W.3d at 444 (quoting Crutcher, 410
S.W.3d at 494).
If, after the employee establishes its prima facie case, the employer provides
evidence of a legitimate reason for the adverse action, the employee must prove the
employer’s proffered reason is a pretext for retaliation and the adverse action would
not have occurred “but for” the protected activity. Clark, 544 S.W.3d at 782. “The
but-for causation standard is significantly more difficult to prove than prima facie
causation.” Id. When evaluating but-for causation, we examine all of the
circumstances, including “temporal proximity between the protected activity and the
32
adverse action, knowledge of the protected activity, expression of a negative attitude
toward the employee’s protected activity, failure to adhere to relevant established
company policies, discriminatory treatment in comparison to similarly situated
employees, and evidence the employer’s stated reason is false.” See id. at 790.
Although useful, these factors ultimately do not supplant the core standard, which
requires the plaintiff to show that the unlawful employment action “would not have
occurred when it did” but for the unlawful retaliation. See Apache Corp. v. Davis,
627 S.W.3d 324, 335 & n.28 (Tex. 2021) (emphasis removed) (citing Clark, 544
S.W.3d at 782–83, 790); see also id. at 337 (“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.”).
OCCC argues that dismissal of Polk’s wrongful termination claim based on
retaliation was proper because Polk failed to establish a causal link between the filing
of his February 2016 charge of discrimination and OCCC’s termination of his
employment in December 2017, and Polk failed to show that OCCC’s decision to
terminate his employment based on his credit card misuse was false and a pretext
for discrimination.
1. Temporal Proximity
Polk argues that he satisfied the element of causation in his prima face case
because he engaged in protected activities, repeatedly voiced his opposition to racial
33
discrimination, and participated in the “EEOC/TWC process.” See Clark, 544
S.W.3d at 786 (“An employee engages in a protected activity by, among other things,
filing an internal complaint, opposing a discriminatory practice, or making a charge
of discrimination with the EEOC.”). OCCC responds that Polk failed to show a
causal connection between the filing of his charge of discrimination in February
2016 and OCCC’s termination of Polk’s employment in December 2017. It argues
that twenty-two months transpired between these two events and thus temporal
proximity does not support any inference of causation in this case and Polk cannot
rely on subsequent events to “re-start the temporal-proximity clock.”
(a) Participation in Charge Investigation
Polk filed his first charge of discrimination in February 2016, alleging OCCC
had delayed his promotion to Financial Examiner II by six months based on his race.
In June 2017, the parties participated in mediation but they failed to reach settlement.
Ultimately, the TWC issued Polk a right to sue letter in October 2017. The filing of
Polk’s charge of discrimination in February 2016 is too far removed in time from
the termination of his employment in December 2017 to demonstrate a causal link
between the events based on temporal proximity. See Clark, 544 S.W.3d at 790
(stating temporal proximity is relevant to causation when it is “very close” and that
eight-month gap between EEOC charge and termination recommendation was “so
long as to be of little, if any, probative value”); Clark Cnty. Sch. Dist. v. Breeden,
34
532 U.S. 268, 273 (2001) (holding, in context of Title VII retaliation claim, that
“[a]ction taken (as here) 20 months later suggests, by itself, no causality at all”).
The same is true even if we consider the parties June 2017 mediation.
Assuming that Polk’s attendance at the mediation constitutes protected activity
separate from the filing of his charge, the mediation took place six months before
Polk’s employment was terminated in December 2017, and thus Polk’s participation
in mediation does not establish a causal link based on temporal proximity between
his protected activity and his termination. See Clark, 544 S.W.3d at 790; Breeden,
532 U.S. at 273; see also Democratic Schs. Research, Inc. v. Rock, 608 S.W.3d at
290, 314 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (holding four-month period
between protected activity and termination was insufficient to “raise a fact issue on
causation”); Fields v Teamsters Loc. Union No. 988, 23 S.W.3d 517, 529 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied) (stating temporal proximity may
establish causation where complaint and adverse action “are separated by weeks, as
opposed to months and years”).
Polk also points to the right to sue letter, which the TWC issued in October
2017. But what matters for purposes of our analysis is Polk’s protected activity, not
the activity of a third party. See Clark, 544 S.W.3d at 790 (stating temporal
proximity measured between time of employee’s protected activity and adverse
employment action); see also Ferguson v. Sec’y of Veterans Affairs, No. 3:20-CV-
35
00212-YY, 2022 WL 2135380, at *4 (D. Or. May 25, 2022), report and
recommendation adopted, No. 3:20-CV-00212-YY, 2022 WL 2135785 (D. Or. June
14, 2022) (“[T]here is no basis for finding that the final adjudication of a pending
appeal by a neutral third party could stand in as an employee’s protected activity
upon which the temporal proximity analysis could rely.”) (emphasis in original).
Polk of course did not issue the right to sue letter in October 2017, and thus the
issuance of the letter does not establish a causal link between Polk’s protected
activity and the termination of his employment.8 See Breeden, 532 U.S. at 273(recognizing as “utterly implausible” employee’s suggestion “that the EEOC’s
issuance of a right-to-sue letter—an action in which the employee takes no part—is
a protected activity of the employee”).
(b) Opposition to Racial Discrimination
Polk also argues that he engaged in protected activity by voicing his
opposition to racial discrimination at OCCC. In his declaration, Polk states that in
the “summer or fall of 2015,” he “complained about the promotion issues,” and “told
OCCC that there appeared to be a racial difference.” Polk filed a charge of
discrimination with the TWC in February 2016. After he filed his charge of
discrimination, Polk stated that he experienced “petty harassment on a regular basis”
8
Polk acknowledged that the EEOC’s issuance of the right-to-sue letter in October
2017 is “not protected activity by itself.”
36
and when his choice of hotels was challenged, Polk “explained that his original hotel
was in an area known for racial discrimination and that I had witnessed racial slurs
at that hotel,” and he protested the discussion of “Texas Heroes” during the Civil
War in the OCCC newsletter because its insensitive to racial discrimination and
slavery. Polk also stated that in September 2017, he spoke to Commissioner
Pettijohn and Director Aguilar about “the racism, the high turnover that the racism
caused with black OCCC examiners, and the denial of promotions of black
examiners by the OCCC.” And he stated that during a November 29, 2017 meeting,
he raised concerns about racial issues.
Temporal proximity is calculated from the first instance of protected activity
until the adverse employment action. See Hanks v. Shinseki, No. 3:08-1594-G, 2010
WL 3000835, at *7 (N.D. Tex. July 28, 2010) (“[T]he date to which the adverse
employment decision must be temporally proximate is the date on which the
defendants first gained knowledge of [the plaintiff’s] protected activity”) (emphasis
in original). Even when a plaintiff alleges that he engaged in a series of protected
activities constituting ongoing opposition to alleged discrimination, courts must look
to the first instance of opposition activity, not the most recent instance, when
analyzing temporal proximity. See Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422,
428 n.23 (5th Cir. 2017) (holding temporal proximity between plaintiff’s opposition
activity and adverse employment action measured from first instance of protected
37
activity and plaintiff who alleged she repeatedly engaged in protected activity for
seven months afterward, could not rely on later instances of opposition activity to
“re-start the temporal-proximity clock”) (internal quotation omitted); see also
Perkins v. Child Care Assocs., 751 F. App’x 469, 474 (5th Cir. 2018) (“Moreover,
plaintiffs ‘cannot, with each protected activity, re-start the temporal-proximity
clock’ by alleging that an employer ‘repeatedly engaged in protected activity’ over
a period of time.” (quoting Alkhawaldeh, 851 F.3d at 428 n.23)).
To the extent Polk argues that OCCC retaliated against him because he voiced
his opposition to racial discrimination at OCCC, the record reflects that Polk’s
opposition began in the “summer or fall of 2015,” and thus such complaints of
discrimination are further removed in time from his termination in December 2017.
See Alkhawaldeh, 851 F.3d at 428 n.23; see also Hanks, 2010 WL 3000835, at *7.
Although Polk argues that he continued to voice his opposition to the alleged
ongoing racial discrimination until mere weeks before he was fired in December
2017, Polk cannot rely on these more recent events to establish causation based on
temporal proximity. See Perkins, 751 F. App’x at 474; Alkhawaldeh, 851 F.3d at428 n.23.
Citing to Starnes v. Wallace, 849 F.3d 627 (5th Cir. 2017), Polk argues that
courts have “regularly found temporal proximity based on actions that took place
long after the original complaint of discrimination.” But the facts of Starnes are
38
distinguishable and do not support Polk’s arguments. In October or early November
2010, Ludy Estrada, one of LeAnn Starnes’s coworkers, complained to Starnes that
their employer was not paying her husband Vincent for his travel time or overtime.
Starnes recommended that Ludy report the violation to human resources, but Ludy
refused for fear of being fired for reporting the violation. A few days later, Starnes
met with human resources on Ludy’s behalf and told the human resources officer
that the company was “violating the law by the way [it was] paying Vincent.”
Starnes later repeated her concerns to the company president. Id. at 630.
In November 2011, Ludy complained to human resources that Vincent’s pay
dispute had not been resolved and Ludy and Vincent requested $68,713.38 in owed
wages. The company president met with Ludy in December 2011 to negotiate the
wage dispute, during which time the president indicated that he believed that Starnes
“was to blame” for the problems with Vincent's wage claim, even though Starnes
had not been involved in the dispute since she first spoke to the human resources
president. During the last week of December 2011, the company settled the wage
dispute with Ludy and Vincent for $40,000. Ten days later, on January 6, 2012, the
company laid off five employees, including Starnes and Ludy. Starnes eventually
filed suit. Id. at 631.
The district court held that Starnes could not establish a prima facie case for
her claim of wrongful termination based on retaliation because Starnes “could not
39
establish a causal link because of significant passage of time—more than a year—
between her protected activity and termination.” Id. at 634. The Fifth Circuit Court
of Appeals disagreed, stating:
Although Starnes was terminated more than a year after she engaged in
protected activity, the termination occurred just ten days after [the
company] paid $40,000 to resolve the problem Starnes raised. The time
when funds have gone out the door may be when the retaliatory impulse
is strongest. The termination also came within a month of the meeting
between [the company president] and Ludy, in which [the company
president] heatedly blamed Starnes for the dispute over Vincent’s pay.
Id. at 635.
Relying on Starnes, Polk claims the evidence is sufficient to establish the
requisite causal link for his retaliation claim. He argues that shortly after the EEOC
issued its right to sue letter in October 2017, OCCC began its “investigation” of Polk
in November 2017, and ultimately fired him in December 2017. He argues that a
reasonable jury could conclude that OCCC terminated his employment because it
knew Polk was about to file a lawsuit and this may be “when the retaliatory impulse
is strongest.” See id. But in Starnes, the company had paid $40,000 to resolve a
dispute the company’s president expressly blamed on Starnes and Starnes was laid
off ten days later. There is no such evidence here. At most, the timing of the EEOC’s
right to sue letter supports an inference that OCCC was aware that Polk might sue
OCCC in the future. But Polk did not file suit until after his termination, and unlike
40
the employer in Starnes, OCCC did not experience an immediate, negative
consequence stemming from Polk’s protected activity. Starnes is thus inapposite.
We conclude that Polk did not establish a prima face case of retaliation
because he did not establish a causal link between his protected activity and his
termination.
2. Pretext for Retaliation9
Polk also failed to establish pretext. Polk argues the trial court erred in
dismissing his retaliation claim because he offered evidence that OCCC’s decision
to terminate his employment for credit card misuse is false and pretextual, and
OCCC failed to produce admissible evidence supporting OCCC’s claim that it also
terminated Polk due his conduct during the December 2017 meeting leading to his
termination.
Pretext can be shown by “revealing weaknesses, implausibilities,
inconsistencies, or contradictions” in the employer’s stated reasons which a “fact
finder could find unworthy of credence.” Tex. 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)). OCCC’s
Travel Guidelines and Regulations state that an employee’s travel credit card “is to
9
Polk’s pretext argument does not differentiate between his claims for wrongful
termination based on retaliation and for wrongful termination based on race
discrimination.
41
be used only for official state business” and “a credit card issued to a state
employee for state purposes may not be used for personal expenditures or any other
type of expenditure not reimbursable as a state business expense under state law.”
(Emphasis in original). As relevant here, OCCC’s Standards of Conduct Policy
states that certain violations are “subject to disciplinary action up to and including
termination, as deemed appropriate and necessary,” including “violating any agency
rule or any action that is detrimental to the OCCC’s efforts to operate effectively and
efficiently” and “unauthorized use of OCCC equipment or property for personal
reasons.”
Polk does not dispute that his use of his travel credit card violated OCCC’s
written policy prohibiting employees from using their credit card for personal
expenses. Rather, Polk argues that his conduct complied with the policy as practiced
at OCCC because he was instructed during training that he could use his travel credit
card to purchase gasoline, other financial examiners used their cards the same way
Polk used his, and, although his monthly travel vouchers were routinely reviewed
and audited, no one at OCCC notified him that he was violating OCCC’s credit card
policy. He further argues that OCCC’s proffered reason for his termination is
unworthy of credence because his credit card use did not violate the credit card
policy as practiced at OCCC, other examiners used their cards as Polk did, no one at
OCCC notified him that he was using his credit card incorrectly, the timing of
42
OCCC’s investigation into his travel vouchers and credit card use is suspicious, the
alleged violations were minor and had no financial impact on OCCC, and OCCC
concocted a second reason during the course of the litigation to justify Polk’s
termination.
Although Polk argues that he was instructed during training that he could use
his travel credit card to purchase gasoline,10 there is no evidence Polk was instructed
he could use his travel credit card to purchase gasoline regardless of whether the
gasoline was for official state business. Polk also argues that other, unidentified
financial examiners used their travel credit cards in the same way he did. Aside from
Polk’s self-serving and conclusory statement to this effect, however, the only
evidence Polk relies upon is Thompson-Hill’s declaration where she stated that she
“observed that most if not all examiners used their credit cards the same way as
Ernest Polk.” But during her deposition, Thompson-Hill clarified this general
statement of conformity, and she testified that she knew of no financial examiners
who used their cards to purchase gas while on vacation for personal travel.
Furthermore, even if Polk were correct that other financial examiners used their
travel credit cards in the same way he did, there is no evidence that OCCC
management knew of such use when they terminated Polk’s employment or that
10
Polk’s affidavit does not identify who instructed him in this regard.
43
OCCC knew that other financial examiners were using their cards the same way as
Polk and did not terminate their employment.
Similarly, Polk’s assertion that he used his credit card in the same way for
over two years, that the accounting department reviewed and audited his
expenditures monthly, and that no one told him he was misusing the card or violating
OCCC’s travel policy is not evidence of pretext. At most, this evidence reflects a
lack of meaningful oversight at OCCC. It does not indicate that Polk’s use of his
credit card complied with OCCC’s policy and, without more, it merely creates a
mere surmise or suspicion that termination of his employment for credit card misuse
was a pretext for discrimination or retaliation. See Neely, 418 S.W.3d at 59 (stating
plaintiff must produce more than scintilla of evidence to raise genuine issue of
material fact). Polk claims that it is impossible to separate gasoline used for state
business from gasoline used for personal reasons, but, as OCCC points out, it
produced evidence that Polk used his credit card to purchase gasoline hundreds of
miles away in Louisiana on a Friday when he was not working or otherwise traveling
for state business, or when he was not working the entire week of Thanksgiving.
Moreover, whether OCCC was correct in concluding that Polk violated
OCCC’s credit card policy is irrelevant. See Laxton v. Gap Inc., 333 F.3d 572, 578
(5th Cir. 2003) (stating for purposes of determining falsity in summary
judgment/pretext context, “[a]n explanation is false or unworthy of credence if it is
44
not the real reason for the adverse employment action”). The issue presented is not
whether OCCC made the correct decision, but rather whether OCCC’s decision to
terminate Polk’s employment was driven by a discriminatory or retaliatory motive.
See Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (“To the
extent that [plaintiff’s] summary judgment evidence relates to his innocence of the
sexual harassment charge, it is irrelevant. He must, instead, produce evidence
demonstrating that [defendant] did not in good faith believe the allegations, but
relied on them in a bad faith pretext to discriminate against him on the basis of his
age.” (emphasis in original)); see also Swenson v. Schwan’s Consumer Brands N.
Am., Inc., No. SA-10-CA-00602-OLG, 2012 WL 12964644, at *3 (W.D. Tex. Apr.
24, 2012), aff’d, 500 Fed. App’x. 343 (5th Cir. 2012) (“For example, an employer
could believe that an employee was stealing from the company, and even if this was
completely false, it would not make the employer’s justification for terminating that
employee worth any less credence.”); see Culver v. Gorman & Co., 416 F.3d 540,
547 (7th Cir. 2005) (“An employer’s explanation can be ‘foolish or trivial or even
baseless’ so long as it ‘honestly believed’ the proffered reasons for the adverse
employment action.”); Beebe v. City of San Antonio ex rel. City Pub. Serv. Bd. of
San Antonio, No. 04-13-00134-CV, 2014 WL 4437648, at *5 (Tex. App.—San
Antonio Sept. 10, 2014, no pet.) (mem. op.) (“At the pretext stage in the analysis,
the issue is whether the employer’s reason, even if incorrect, was the real reason for
45
the employment action. . . . The employer is entitled to be unreasonable so long as
it does not act with discriminatory animus.”) (internal citations omitted). Polk has
not presented any evidence that OCCC lacked a good faith belief that he violated the
travel policy or relied on this basis in bad faith to mask its discriminatory or
retaliatory motive for terminating Polk’s employment.
Polk also argues that the severity of his alleged violations of OCCC’s credit
card policy indicates that his alleged credit card misuse was not the real reason for
his termination but rather a pretext for discrimination or retaliation. According to
Polk, a factfinder could reasonably conclude that OCCC’s decision to fire him
because he violated OCCC’s credit card policy is a pretext for discrimination or
retaliation because the total amount of the gasoline he allegedly purchased for
personal use was less than $100, he paid the credit card bills himself, he did not
request or receive reimbursement for any of the gasoline purchases, and he was never
told he was using his card incorrectly.
Vargas stated in her declaration that, in November 2017, OCCC discovered
Polk had used “his official credit card for personal use and that he had submitted
reimbursement requests for dozens of expenditures that were not lawfully
reimbursable,” and she attached a list of over 60 instances between March 2017 and
October 2017, including over 20 instances when Polk used his credit card for
personal use. In her declaration, Graham, OCCC’s Supervising Financial Examiner,
46
stated that Polk had used his state travel credit card for personal use, and she
identified three of the purchases, two of which were included in the list attached to
Vargas’s declaration, including Polk’s use of his travel credit card during the week
of Thanksgiving when he was on vacation or Thanksgiving leave, which was not
included on the list. Even assuming that the severity of an employee’s violation is
some evidence of pretext, Polk’s evidence, at most, creates “mere surmise or
suspicion” that OCCC’s claim that it terminated Polk’s employment was a pretext
for retaliation or discrimination, and is thus insufficient to raise a genuine issue of
fact. See King Ranch, Inc., 118 S.W.3d at 751; see generally Thompson v. Veterans
Canteen Serv., 156 F. Supp. 3d 22, 27 (D.D.C. 2016) (“While [employee’s] actions
hardly seem to amount to a firing offense, that is not the question here. . . . The only
issue is whether [her employer] acted because of Plaintiff’s age or sex.” (Emphasis
in original)).
Polk further argues that “OCCC apparently figured out that its justification for
firing [him for misusing his travel credit card] was transparently pretextual, because
OCCC soon pivoted to a different story.” Based on Vargas’s affidavit, Polk argues
that OCCC offered after a second reason for terminating his employment during the
litigation—Polk’s conduct during the December 2017 meeting. See Univ. of Tex.
Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020 WL 5757393, at *21 (Tex.
App.—Dallas Sept. 28, 2020, no pet.) (mem. op.) (“Doubt in the employer’s asserted
47
reason can be established in a number of ways, including by proof that the employer
provided shifting or different reasons for its action at different times.”). But OCCC
responds that that the only reason it terminated Polk was because he misused his
travel credit card, and any evidence reflecting Polk’s behavior during the termination
meeting was offered for context. A review of Vargas’s affidavit makes this clear.
Vargas does not state that Polk’s employment was terminated based on his behavior
at the December 2017 meeting. Rather, Vargas describes Polk’s reaction and
response during the meeting to OCCC’s claims that Polk had misused his card by
purchasing gasoline for his personal use. She does not state Polk was terminated
due to his behavior. There is thus no evidence that OCCC offered a second reason
for Polk’s termination.
Polk also points to evidence that OCCC did not “begin investigating Mr. Polk
until shortly after he had spoken to the Commissioner and Director in person at the
annual conference [about the racial discrimination he believed was occurring at
OCCC], and shortly after the EEOC issued a right-to-sue letter” in October 2017.
According to Polk, “[t]hese suspicious circumstances are indicative of pretext – that
OCCC’s story is unworthy of credence.” Because OCCC did not identify the event
that led to its investigation of Polk in November 2017 concerning his credit card use
and travel vouchers, Polk argues, without pointing to any evidence, that OCCC’s
investigation was triggered by his discussions with Commissioner Pettijohn and
48
Director Aguilar during the September 2017 conference, or the issuance of the right-
to-sue letter in October 2017. Polk’s speculation of wrongdoing cannot support a
finding of pretext. See Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 425
(Tex. App.—Houston [1st Dist.] 2000, no pet.) (“Summary judgment for the
defendant is proper when a plaintiff claiming race discrimination presents only
conclusory allegations, improbable inferences, unsupportable speculation, or
subjective beliefs and feelings.”).
Although Polk’s evidence may reveal some possible weaknesses in OCCC’s
explanation that it terminated him for credit card misuse, such evidence, even when
considered as a whole, does no more than create “mere surmise or suspicion” that
OCCC’s proffered reason was a pretext for retaliation or discrimination, and is thus
insufficient to raise a genuine issue of fact. See King Ranch, Inc., 118 S.W.3d at
751; see generally Flores, 576 S.W.3d at 794 (stating employee may show that
employer’s proffered reason is false by “revealing weaknesses, implausibilities,
inconsistencies, or contradictions that a fact finder could find unworthy of
credence”).
We hold the trial court did not err in granting OCCC’s Plea to the Jurisdiction
on Polk’s wrongful termination claim based on retaliation because Polk failed to
establish his prima facie case of retaliation, and he also failed to establish that
OCCC’s explanation for his termination was false and a pretext for retaliation.
49
B. Race Discrimination
OCCC argues that Polk’s claim for wrongful termination based on race
discrimination is barred because Polk did not raise this claim in his charge of
discrimination and thus Polk failed to exhaust his administrative remedies. See TEX.
LAB. CODE §§ 21.201, 21.252–.254 (stating filing charge of race discrimination is
prerequisite to suing employer for claim); Chatha, 381 S.W.3d at 512 (“In a statutory
cause of action against a governmental entity, the failure to adhere to the statute’s
mandatory provisions that must be accomplished before filing suit is a jurisdictional
bar to suit.”). Polk argues that OCCC neither addressed nor moved to dismiss Polk’s
claim for wrongful termination based on race discrimination in its Plea to the
Jurisdiction.
Contrary to Polk’s argument, OCCC did address Polk’s wrongful termination
claim based on race discrimination in is Plea. It argued that to the extent Polk was
attempting “to litigate other claims, such as a separate claim for racial discrimination
or a racial harassment claim, such claims [were] barred” because Polk’s charges did
“not preserve those distinct claims.”11 We further note that even if OCCC had not
raised the issue, an employee’s failure to exhaust his administrative remedies with
respect to his claims under the TCHRA deprives a trial court of subject matter
11
OCCC further argued that even if Polk had “raised a racial discrimination claim
based on his termination, such a claim would fail for substantially the same reasons
his retaliation claim fails.”
50
jurisdiction over those claims. See Lopez, 368 S.W.3d at 701 (“The exhaustion of
administrative remedies is a jurisdictional prerequisite to filing suit for unlawful
employment practices.”); see also M.D. Anderson Cancer Ctr. v. Wang, No. 01-23-
00911-CV, 2024 WL 2853698, at *6 (Tex. App.—Houston [1st Dist.] June 6, 2024,
no pet. h.) (mem. op.) (holding trial court lacked subject matter jurisdiction to hear
lawsuit for disability discrimination and retaliation because employee failed to
exhaust his administrative remedies). An employer may thus raise this issue for the
first time on appeal. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
445 (Tex. 1993) (“Subject matter jurisdiction is an issue that may be raised for the
first time on appeal[.]”); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004)
(“[W]e are obligated to review sua sponte issues affecting jurisdiction.”); see also
San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015) (explaining
appellate court was obligated to consider new jurisdictional arguments on appeal
when governmental entity challenged plaintiff’s prima facie case under TCHRA).
We thus consider OCCC’s argument that Polk failed to exhaust his administrative
remedies for his wrongful termination claim based on race. See Tex. Ass’n of Bus.,
852 S.W.2d at 445–46.
Polk argues that although he did not check the box marked “Race” on his May
2018 charge of discrimination involving his termination, or repeat the allegations of
race discrimination raised in his February 2016 charge of discrimination involving
51
OCCC’s alleged failure to promote him, he nevertheless exhausted his
administrative remedies for his claim of wrongful termination based on race
discrimination. He argues this is so because “[g]iven the extensive claims of race
discrimination in the EEOC proceedings” arising from his February 2016 charge of
discrimination, “a claim of race discrimination would be reasonably expected to
grow out of the investigation” into Polk’s May 2018 charge of discrimination
relating to the termination of his employment. We disagree.
A lawsuit under the TCHRA is limited to claims made in the charge or
complaint filed with TWC, and factually related claims that reasonably can be
expected to grow out of the TWC’s investigation. Santi, 312 S.W.3d at 805. Courts
construe charges of discrimination liberally and “look slightly beyond its four
corners, to its substance rather than its label” to determine the scope of the
administrative investigation “which can reasonably be expected to grow out of the
charge of discrimination.” Pacheco v. Mineta, 448 F.3d 783, 788–89 & n.9 (5th Cir.
2006); City of Sugar Land v. Kaplan, 449 S.W.3d 577, 581–82 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). Although we construe charges of discrimination with
“utmost liberality,” the charge must nevertheless contain an adequate factual basis
to put the employer on notice of the existence and nature of the charges. Kaplan,
449 S.W.3d at 582; Santi, 312 S.W.3d at 805. “The crucial element of a charge of
52
discrimination is the factual statement contained” in the administrative complaint.
Santi, 312 S.W.3d at 805 (quoting Bartosh, 259 S.W.3d at 321).
“[A]llowing a complaint to encompass allegations outside the ambit of the
predicate EEOC charge would circumvent the EEOC’s investigatory and
conciliatory role, as well as deprive the charged party of notice of the charge, as
surely as would an initial failure to file a timely EEOC charge.” Sw. Convenience
Stores, LLC v. Mora, 560 S.W.3d 392, 401–02 (Tex. App.—El Paso 2018, no pet.)
(quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989)).
While every detail of the complaint need not be included in the charge, the substance
of the claim still must fall “within the scope of ‘the administrative investigation that
can reasonably be expected to follow the charge of discrimination.’” Id. Courts will
not construe the charge to include facts that were initially omitted. Id. at 401; Cnty.
of Travis ex rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 WL 1839399, at
*4 (Tex. App.—Austin May 17, 2012, no pet.) (mem. op.).12
Polk filed a charge of discrimination stemming from his termination in May
2018. In it, he marked the box “Retaliation” only, and in describing the particulars
of his claim, he did not allege that he was wrongfully terminated based on his race.
Polk alleged that “he was discharged by Juan Garcia, Director of Communications
12
Although Polk’s intake questionnaire for his 2016 charge is included in the record,
the record does not contain an intake questionnaire for his May 2018 charge.
53
for alleged misuse of the organizations credit card” which allegation was “patently
false.” He alleged that he was “discharged in retaliation for [his] having raised
previous concerns of racial discrimination and because [he] filed a charge of
discrimination with the EEOC, in violation of Title VII of the Civil Rights Act of
1964 as amended.” Polk repeated this same allegation during this deposition. In
describing the meeting leading to his termination, he testified:
Q. What were the questions about?
A. I don’t recall the specifics, but it was travel voucher. Then they
left that subject and went to the travel card, and [Juan] Garcia
asked me did I use the card for personal use and...
Q. What did you tell him?
A. I stated yes because it’s impossible not to use it for personal use
when you submit a travel voucher for personal reimbursement,
it’s called personal mileage reimbursement,
Q. How did he respond to that?
A. He said immediately — once I said yes, he said you’re fired.
That’s what I recall.
Q. How did the meeting end?
A. Oh, when he said that, I said well, any -- well, he said that, and
he said turn in this and turn in that, I said none of this information
has things that would exonerate me because they were talking
about car rentals. Well, I have emails where they gave me the
coding and the billing to rent the vehicle. So I’m approved in the
accounting department. So I said I don’t - I’m not doing that.
And I said I will turn it in, I’m leaving, this is wrong. I told them
this is retaliatory. I said that’s the only reason why you’re doing
this. I said and -
54
Q. What did you believe it was retaliatory for?
A. Oh, for the EEOG charge. I had already sued in late October and
here you go mid December coming up with things that are false
and then I mention one thing, have no opportunity for
explanation and you say you’re fired.
There is no allegation in Polk’s charge that his race played a role in his
termination. Polk thus did not articulate a factual basis supporting a claim that he
was terminated based on his race, as opposed to in retaliation for him raising
“previous concerns of racial discrimination.”
Because Polk’s charge does not contain an adequate factual basis to put OCCC
on notice of the existence and nature of his claim for wrongful termination based on
race discrimination, the trial court did not err in granting OCCC’s Plea on that claim.
See Kaplan, 449 S.W.3d at 582; Santi, 312 S.W.3d at 805 (stating charge must
contain adequate factual basis so that it puts employer on notice of existence and
nature of charges); cf. Salman v. KIPP, Inc., No. 01-19-00886-CV, 2021 WL
2931360, at *6 (Tex. App.—Houston [1st Dist.] July 13, 2021, pet. denied) (mem.
op.) (concluding plaintiff provided adequate factual basis to put charter school on
notice that she was complaining of discrimination based on retaliation where she
alleged details of two occasions when she complained about school’s decisions that
could have possibly led to her termination); Alief Indep. Sch. Dist. v. Brantley, 558
S.W.3d 747, 756–57 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(concluding plaintiff’s discrimination charge included adequate factual basis to put
55
school district on notice that he was complaining of discrimination based on his race
and gender resulting in hostile work environment where charge generally described
actions or practices about which he complained); Santi, 312 S.W.3d at 805–06
(holding plaintiff’s EEOC charge included adequate factual basis to put defendant
university on notice that plaintiff was complaining of gender discrimination where
she alleged instances of being treated differently from male counterparts).
We overrule Polk’s first issue.
Failure to Promote
In his second issue, Polk argues the trial court erred by granting OCCC’s Plea
to the Jurisdiction for his failure-to-promote claim because a reasonably jury could
“conclude that OCCC’s failure to promote [Polk] on schedule was the result of race
discrimination.” He argues that although he was qualified for the position of
Financial Examiner II in May 2015, Dow delayed his recommendation for
promotion until November 2015 because of Polk’s race. According to Polk, Dow’s
recommendation was the only requirement for the promotion Polk lacked, and Dow
withheld the recommendation based on Polk’s race. He further argues that OCCC’s
explanations for not recommending him for promotion in May 2015 are pretextual.
A. Applicable Law – Failure to Promote
To establish a prima facie case of discrimination for his failure to promote
claim, Polk must establish that (1) he is a member of a protected class, (2) he sought
56
and was qualified for an available employment position, (3) despite his
qualifications, he was not selected for the position, and (4) OCCC selected someone
not in Polk’s protected class or continued to seek applicants with OCCC’s
qualifications. Anderson v. Hous. Cmty. Coll. Sys., 458 S.W.3d 633, 645 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). If Polk meets his burden to establish a
prima facie case for discrimination, the burden shifts to OCCC to produce
sufficiently specific evidence of a legitimate, nondiscriminatory business reason for
its failure to promote Polk to Financial Examiner II in May 2015. See Lagunas, 618
S.W.3d at 853 (stating employer must “articulate some legitimate,
nondiscriminatory reason” for its failure to promote employee); Resendiz, 642
S.W.3d at 175 (“[A]n employer’s articulated reasons for the adverse termination
decision must be sufficiently specific to give the employee the opportunity to present
evidence establishing that the reasons were pretextual.”). OCCC’s burden to provide
a legitimate, nondiscriminatory reason for not promoting Polk in May 2015 is “one
of production, not persuasion, and it involves no credibility assessment.” Tex.
Health & Human Servs. v. Sepulveda, 668 S.W.3d 856, 867 (Tex. App.—El Paso
2023, no pet.). OCCC may meet its burden of production by producing evidence of
s subjective reason for not promoting Polk, “only if [it] articulates a clear and
reasonably specific basis for its subjective assessment.” Alvarado v. Tex. Rangers,
492 F.3d 605, 616 (5th Cir. 2007); see Clifton v. City of Pasadena, No. 14-23-00143-
57
CV, 2024 WL 2206056, at *8 (Tex. App.—Houston [14th Dist.] May 16, 2024, no
pet. h.) (mem. op.) (“When giving a non-discriminatory reason for an employment
action, an employer can provide a subjective reason.”).
If OCCC meets its burden by producing evidence of a legitimate,
nondiscriminatory reason for not promoting Polk in May 2015, the burden shifts
back to Polk to come forward with sufficient evidence to raise a genuine issue of
material fact on the question of whether OCCC’s stated reason is a pretext for
discrimination. Sepulveda, 668 S.W.3d at 864. Polk can show pretext by
establishing “either that he was clearly better qualified than the employee who was
selected or that the employer’s proffered explanation for its decision was false or
unworthy of credence.” Id. at 868; see also Nash v. Blood & Tissue Ctr. of Cent.
Tex., No. 03-03-00763-CV, 2004 WL 2900483, at *4 (Tex. App.—Austin Dec. 16,
2004, no pet.) (“To establish a fact question on the issue of pretext, the nonmovant
must present evidence indicating that the nondiscriminatory reason given by the
employer is false or not credible, and that the real reason for the employment action
was unlawful discrimination.”) (emphasis omitted). Polk may show that OCCC’s
proffered reason is false by “revealing weaknesses, implausibilities, inconsistencies,
or contradictions that a fact finder could find unworthy of credence.” Flores, 576
S.W.3d at 794 (citing Horizon/CMS Healthcare Corp., 220 F.3d at 1198); see
generally Reeves, 530 U.S. at 147 (“Proof that the defendant’s explanation is
58
unworthy of credence is simply one form of circumstantial evidence that is probative
of intentional discrimination, and it may be quite persuasive.”).
B. Analysis
OCCC argues that Polk did not establish a prima facie case for his failure-to-
promote claim because to be promoted to Financial Examiner II, an examiner must
be recommended for the promotion by his supervisor. This recommendation is one
of four qualifications necessary for promotion. Because Polk’s supervisor, Dow, did
not recommend Polk for promotion to Financial Examiner II in May 2015, OCCC
argues Polk was not qualified for the promotion at that time.13 OCCC further argues
that even if Polk had established a prima facie case of race discrimination, the trial
court was nevertheless correct in granting OCCC’s Plea because OCCC produced
evidence of a legitimate, non-discriminatory reason for not promoting Polk in May
2015, and Polk failed to establish that OCCC’s objective reasons for not promoting
him in May 2015 are false and pretextual.
Polk argues he was qualified for promotion to Financial Examiner II in May
2015, and the only “qualification” he lacked for the promotion was the
discriminatory act itself--the lack of a recommendation from his supervisor, Dow.
According to Polk, OCCC failed to meet its burden to produce evidence of a
13
OCCC’s Plea was based on the second element of Polk’s failure to promote claim—
that he was qualified for the position. OCCC did not dispute the first, third or fourth
element of Polk’s prima facie case.
59
legitimate, non-discriminatory reason for denying Polk the promotion in May 2015
because Vargas’s affidavit and Dow’s memoranda were inadmissible. But as we
have already concluded, Polk failed to preserve his objections to Vargas’s affidavit
and Dow’s memoranda because he did not secure rulings on his objections. We thus
consider Vargas’s affidavit and Dow’s memoranda in our analysis.
Polk argues that even if we consider Vargas’s affidavit and Dow’s
memoranda, OCCC nevertheless failed to meet its burden of production because
Dow’s statements that he did not promote Polk in May 2015 because he felt “ [Polk]
needed more experience” and he was not confident Polk could do the more
complicated work required of a Financial Examiner II are “too nebulous to rebut Mr.
Polk’s prima facie case.” See Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004)
(“[T]o rebut an employee’s prima facie case, a defendant employer must articulate
in some detail a more specific reason than its own vague and conclusional feeling
about the employee.”). Polk further argues that even if OCCC met its burden to
produce evidence of a legitimate, non-discriminatory reason for denying Polk the
promotion in May 2015, Dow’s claim that he did not recommend Polk for a
promotion in May 2015 because he wanted Polk to pass his qualification tests on the
first try is false and a pretext for discrimination because OCCC does not require
examiners to pass a test on the first try and “a subjective requirement that is not
tethered to any actual rules or policies is inherently unworthy of credence.”
60
Assuming Polk met his burden to establish a prima facie case for his failure
to promote claim based on racial discrimination, the burden shifted to OCCC to
produce evidence of a legitimate, nondiscriminatory reason for not promoting Polk
in May 2015. OCCC offered a memorandum from Polk’s supervisor, Dow, where
Dow explained the reasons for not recommending Polk for promotion in May 2015.
In Dow’s November 3, 2015 memorandum entitled, “Ernest Polk – Assessment of
Capabilities at May 16, 2015,” Dow explained that on May 16, 2015, Polk became
eligible for consideration for promotion to Financial Examiner II. Dow stated that
his “main concerns with going forward with a recommendation for [Polk’s]
promotion were listed in his Performance Evaluation [of Polk] for the period
end[ing] April 30, 2015.” Dow stated that based on Polk’s past test scores, Dow was
not convinced that Polk could handle the “complexity and intricacies of Chapter 348
calculations,” which were part of a Financial Examiner II’s responsibilities.
According to Dow, Polk failed his initial examiner training test with a score of 56%
and when Polk retook the test, he passed with a score of 86.28%. Dow stated that
Polk scored 64% on the test administered during the examiner conference in
September 2014.
In Polk’s Performance Evaluation for the period ending April 30, 2015, Dow
stated, “Although Mr. Polk subsequently passed his initial Examiner training with a
score of 86.28%, he will need to pass all future tests on the first try in order to be
61
considered for promotions.” According to Dow, Polk scored 86% on the next test,
given at the September 2015 conference. Dow stated that as of November 3, 2015,
Polk had demonstrated he was capable of performing the duties of a Financial
Examiner II and should be promoted to the position.
In Dow’s “Promotion Memo for Examiner Ernest Polk — November 4,
2015,” Dow stated that Polk “scored 56.00% on the test covering his initial Examiner
training at OCCC” and he was “permitted to re-take the initial test and scored
86.28%.” Dow stated that Polk then “scored 64.00% on the test given at the 2014
Examiner training conference” and “86.00% on the test given at the Examiner
training conference” in September 2015. Dow stated that Polk was “currently in
training for [Chapter] 348 independent work,” and Dow believed that Polk would
“be able to successfully complete the Chap[ter] 348 training within the next four to
six months.” Dow concluded by stating, “Based on his completion of all the steps
required by the OCCC Career Ladder in effect on November 4, 2015, I am
recommending [Polk’s] promotion to Financial Examiner II.” Dow thus provided a
sufficiently specific and detailed explanation for not recommending Polk for a
promotion in May 2015. See Alvarado, 492 F.3d at 616 (requiring employer to
“articulate[] a clear and reasonably specific basis for its subjective assessment”); see
also Clifton, 2024 WL 2206056, at *8 (“When giving a non-discriminatory reason
for an employment action, an employer can provide a subjective reason.”).
62
Because OCCC met its burden to produce evidence of a legitimate, non-
discriminatory reason for not recommending Polk for promotion to Financial
Examiner II in May 2015, the burden shifted back to Polk to show that OCCC’s
reason was a pretext for racial discrimination. Polk argues that Dow’s explanation
that he wanted Polk to pass his qualification tests on the first try before
recommending him for promotion is false and a pretext for discrimination because
OCCC does not require examiners to pass a test on the first try and “a subjective
requirement that is not tethered to any actual rules or policies is inherently unworthy
of credence.” Polk argues that he presented evidence sufficient to create a fact issue
as to pretext because he stated in his declaration that African American examiners
complained about racial discrimination, most African American examiners left
OCCC in a short time, there was a persistent problem with late grade promotions for
African American examiners, and Polk was given vague excuses about not being
ready for the position of Financial Examiner II. Polk argues that in light of these
facts, Dow’s reason for not promoting Polk in May 2015 is not worthy of credence.
Polk argues that the discriminatory conduct at issue is Dow’s failure to
recommend him for the promotion in May 2015. However, Polk does not point to
any evidence of discriminatory animus on Dow’s part or identify any evidence that
race was a motivating factor behind Dow’s decision not to recommend Polk for a
promotion in May 2015. In particular, there is no evidence Dow supervised the other
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unnamed African American examiners in the Houston office whose promotions Polk
asserts were delayed, that Dow supervised the White examiners in other offices Polk
contends were “promoted on the regular schedule,” or that the promotions of the
unnamed African American examiners in the Houston office were delayed because
Dow did not recommend them for a promotion, much less Dow’s purported reason
for not recommending them for a promotion. There is also no evidence of the test
scores for the other examiners who were recommended for a promotion to Financial
Examiner II.
Conversely, OCCC presented evidence that underscores Polk’s claims of
pretext. When OCCC hired Polk, it also hired four other examiners: three African
American examiners, and one Hispanic examiner. OCCC promoted all five
examiners to Financial Examiner II at different times in 2015 based on identical
criteria: (1) two African American peers were promoted in June 2015, and (2) the
Hispanic peer was promoted in May 2015. Only Polk and another examiner’s
promotion were delayed due to performance concerns, and both were promoted in
November 2015.
Polk has thus failed to bring forth sufficient evidence raising a question of fact
as to whether racial discrimination was a motivating factor behind Dow’s decision
not to recommend him for a promotion in May 2015. See Nash, 2004 WL 2900483,
at *4 (“To establish a fact question on the issue of pretext, the nonmovant must
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present evidence indicating that the nondiscriminatory reason given by the employer
is false or not credible, and that the real reason for the employment action was
unlawful discrimination.”) (emphasis omitted). There is also no evidence from
which a factfinder could find that Dow’s reason for not recommending Polk for a
promotion in May 2015—Dow’s concern that Polk was not able to perform the
complicated calculations required of a Financial Examiner II based on Polk’s
previous test scores—was false or unworthy of credence. See Gosby v. Apache
Indus. Servs., Inc., 30 F.4th 523, 528 (5th Cir. 2022) (“The lack of evidence of a
meaningful assessment process alone does not prove that Apache discriminated
against Gosby.”); Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 882 (5th Cir.
2003) (“The mere fact that an employer uses subjective criteria is not . . . sufficient
evidence of pretext.”); see generally Phillips v. Amoco Oil Co., No. G 80 121, 1982
WL 231, at *3 (S.D. Tex. Mar. 29, 1982) (“Concern over plaintiff’s ability to learn
required materials was a legitimate, non-discriminatory basis for the employment
decision.”).
Furthermore, Polk’s vague statements that other African American examiners
“complained about racial discrimination” and that he told OCCC’s upper
management that “there appeared to be a racial difference” associated with the
“promotion issues” are insufficient to raise a question of fact with respect to pretext.
See Lowery v. Univ. of Hous.—Clear Lake, 82 F. Supp. 2d 689, 696 (S.D. Tex. 2000)
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(“Speculation and belief are insufficient to create a fact issue as to pretext, and
pretext cannot be established by mere conclusory statements of a plaintiff who feels
that she has been discriminated against.”); Greathouse v. Alvin Indep. Sch. Dist., 17
S.W.3d 419, 425 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“Summary
judgment for the defendant is proper when a plaintiff claiming race discrimination
presents only conclusory allegations, improbable inferences, unsupportable
speculation, or subjective beliefs and feelings.”).
We overrule Polk’s second issue.
Hostile Work Environment Based on Racial Harassment
In his third issue, Polk argues the trial court erred by granting OCCC’s Plea
with respect to Polk’s hostile work environment claim based on race because OCCC
only addressed the claim in a single sentence in a footnote in its Plea to the
Jurisdiction and failed to show that it was entitled to relief on Polk’s hostile work
environment claim.
OCCC argues that, to the extent Polk attempted to raise a separate claim for
hostile work environment claim based on race, it was unnecessary for OCCC to
anticipate or respond to the claim because Polk did not include this claim in his
February 2016 or May 2018 charge of discrimination. According to OCCC, Polk
failed to exhaust his administrative remedies with respect to his hostile work
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environment claim, and even if his claim were not barred, Polk failed to establish a
prima facie case for this claim.
A. Applicable Law
A hostile work environment claim “entails ongoing harassment, based on the
plaintiff’s protected characteristic, so sufficiently severe or pervasive that it has
altered the conditions of employment and created an abusive working environment.”
Anderson v. Hous. Cmty. Coll. Sys., 458 S.W.3d at 646 (quoting Bartosh, 259
S.W.3d at 324). To establish a prima facie case of hostile work environment an
employee must establish (1) he belongs to a protected group, (2) he was subjected
to unwelcome harassment, (3) the harassment complained of was based on a
protected characteristic, (4) the harassment complained of affected a term, condition,
or privilege of employment, and (5) the employer knew or should have known of the
harassment in question and failed to take prompt remedial action. Id. If the
employee complains of harassment by a supervisor, the employee need only prove
the first four elements. Id.To satisfy the fourth element of a hostile work environment claim, the
employee must show that the workplace was “permeated with discriminatory
intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile
or abusive working environment.” Donaldson, 495 S.W.3d at 445. The work
environment must be both objectively and subjectively offensive—“one that a
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reasonable person would find hostile or abusive and one that the victim perceived to
be so.” Id. Although the “abusiveness” standard does not necessarily require “any
tangible psychological impact on the victim,” it does require “extreme conduct.”
Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App.—Austin 2010,
no pet.). Incidental or occasional race-based comments, discourtesy, rudeness, or
isolated incidents (unless those incidents are “extremely serious”) “are not
discriminatory changes in the terms and conditions of a worker’s employment.”
Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631, 641 (Tex. App.—
Texarkana 2017, pet. denied). “The availability of a hostile work environment claim
is intended to prohibit and prevent conduct that is so severe and pervasive that it
destroys a protected class member’s opportunity to succeed in the workplace.” City
of Hous. v. Fletcher, 166 S.W.3d 479, 490 (Tex. App.—Eastland 2005, pet. denied)
(quotations omitted); see also Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182,
197 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (explaining high requirements
for hostile work environment claim, including requirement that “[c]onduct must be
extreme to amount to a change in the terms and conditions of employment”).
B. Analysis
In his declaration, Polk stated that after he filed a charge of discrimination in
February 2016, he “began to experience petty harassment on a regular basis.”
According to Polk,
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OCCC had been preparing to feature me in an “employee spotlight,”
but I was removed without explanation shortly after filing the charge.
My supervisors challenged my decision to change hotels in Beaumont.
I explained that his original hotel was in an area known for racial
discrimination and that I had witnessed racial slurs at that hotel.
Afterwards, I had to write “exception safety community conditions” on
my vouchers. In fact, management regularly sent black examiners,
including me, to “sundown towns” (i.e., towns where it was not safe to
be black after sundown). Management would become hostile when I
insisted on staying in hotels in safer areas. Later, I protested the
discussion of “Texas Heroes” during the Civil War in the OCCC
newsletter and explained that it was insensitive to racial discrimination
and slavery. OCCC put the “Texas Heroes” section back into the
newsletter and left it there for three months. In sum, there were many
incidents of petty harassment and abuse directed at me and the other
African American examiners. Over time, many of them just quit and
moved on to other jobs. I stayed working at OCCC but remained
outspoken about the racial disparities that I observed.
Such “petty harassment,” however, is not sufficiently severe or pervasive enough to
create a hostile work environment. See Brantley, 558 S.W.3d at 757–58 (holding
allegations employee was “falsely accused of disrespectful behavior and mistakes,”
called racial slur, told that female employees were afraid of him because he was
“tall, Black and bald,” told he might be shot if he wore hooded sweatshirt, was paid
less than white, female employees, and was “stripped of his duties” were not
objectively severe or pervasive enough to affect term, condition, or privilege of
employment); Parker, 484 S.W.3d at 198 (concluding plaintiff’s allegations that his
manager told another employee that “black males don’t—don’t work” and plaintiff
was “just here to sit on the clock,” coupled with allegations that plaintiff was blamed
for problems unrelated to his performance, was required to “improperly write up”
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employees, was “badgered about attendance and tardiness,” was “screamed and
yelled at” in front of employees, was “written up for poor performance,” had
performance evaluation lowered, and “was scrutinized, micro-managed and
constantly criticized” was not extreme and did not affect terms and conditions of
employment); see also Pickens v. Shell Tech. Ventures, Inc., 118 Fed. App’x. 842,
850 (5th Cir. 2004) (holding racially insensitive comments made to employee and
company Christmas party where characters in blackface performed skit did not
create hostile work environment).
Thus, even assuming Polk exhausted his administrative remedies for his
hostile work environment claim, Polk failed to establish a prima facie case that the
alleged racial harassment was so “severe or pervasive” and “extreme” that it affected
a term, condition, or privilege of Polk’s employment. See Donaldson, 495 S.W.3d
at 445 (stating that to establish prima facie hostile work environment claim employee
must show workplace was “permeated with discriminatory intimidation, ridicule,
and insult sufficiently severe or pervasive to create a hostile or abusive working
environment”).
The trial court thus did not err in granting OCCC’s Plea to the Jurisdiction on
Polk’s hostile work environment claim based on race. See Anderson, 458 S.W.3d at
646.
We overrule Polk’s third issue.
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Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.
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