DocketNumber： 04-14-00746-CV
Filed Date： 1/5/2015
Status： Precedential
Modified Date： 4/17/2021
ACCEPTED 04-14-00746-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/2/2015 3:53:38 PM KEITH HOTTLE CLERK No. 04-14-00746-CV FILED IN - 4th COURT OF--APPEALS ---- In the Court of Appeals SAN ANTONIO, --- - - TEXAS for the Fourth District of Texas - - ---- LE ------ 01/2/2015 - I3:53:38 - D - PM - ---- VO ------ KEITH -E. - - HOTTLE - -- ----Clerk ALAMO HEIGHTS ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, INDEPENDENT SCHOOL DISTRICT, Appellant, FILED IN v. V. 4th COURT OF APPEALS SAN ANTONIO, TEXAS 01/5/2015 8:40:00 AM CATHERINE CLARK, CATHERINE CLARK, KEITH E. HOTTLE Appellee. Clerk On Appeal from the 285th Judicial District Court On of Bexar County, Texas APPELLANT’S BRIEF APPELLANT’S BRIEF ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLANT Robert A A Schulman 17834500 State Bar No. 17834500 Leonard J. J. Schwartz 17867000 State Bar No. 17867000 Bryan P.P. Dahlberg 24065113 State Bar No. 24065113 SSCHULMAN, CHULMAN, L LOPEZ &H OPEZ & OFFER, L.L.P. HOFFER, 517 Soledad Street San Antonio, Texas 78205 Tel.: Tel.: (210) 538-5385 538-5385 Fax: (210) 538-5384 (210)538-5384 ORAL ARGUMENT REQUESTED ORAL ARGUMENT REQUESTED OF PARTIES IDENTITY OF IDENTITY AND COUNSEL PARTIES AND COUNSEL The following is is a complete list list of all all parties, parties, as well as the names and addresses of all all counsel: counsel: Defendant/Appellant: Defendant/Appellant: Alamo Heights Independent School District Defendant/Appellant’s Robert A. Schulman trial trial and appellate counsel: State Bar Number 17834500 17834500 Leonard J. J. Schwartz State Bar Number 17867000 17867000 Bryan P.P. Dahlberg State Bar Number 24065113 240651 13 SSCHULMAN, CHULMAN, L LOPEZ &H OPEZ & OFFER, L.L.P. HOFFER, 517 Soledad Street San Antonio, Texas 78205 Tel.: Tel.: (210) 538-5385 Fax: (210) 538-5384 Plaintiff/Appellee: Plaintiff/App ellee: Catherine Clark Plaintiff/Appellee’s Plaintiff/App ellee’ s Matthew R. Pearson trial trial and appellate counsel: counsel: State Bar Number 00788173 GRAVELY G RAVELY && PPEARSON, EARSON, L.L.P. 425 Soledad Street, Street, Suite 600 San Antonio, Texas 78205 Tel.: Tel.: (210) 472-1111 (210)472-1111 Fax: (210) 472-1110 (210)472-1110 ii TABLE OF TABLE CONTENTS OF CONTENTS AND COUNSEL OF PARTIES AND IDENTITY OF COUNSEL ..................................................................... ................................................................... ii ii .. TABLE OF TABLE CONTENTS ................................................................................................... OF CONTENTS iii ................................................................................................. ..iii INDEX OF INDEX OF AUTHORITIES AUTHORITIES .............................................................................................. vi ............................................................................................ ..vi STATEMENT OF STATEMENT THE CASE OF THE CASE ........................................................................................... ......................................................................................... 11 .. STATEMENT REGARDING STATEMENT REGARDING ORAL ARGUMENT ......................................................... ORAL ARGUMENT ....................................................... 2 .. PRESENTED ........................................................................................................ ISSUES PRESENTED ...................................................................................................... 33 .. STATEMENT OF STATEMENT OF FACTS FACTS .................................................................................................. ................................................................................................ 6 .. I. I. AHISD terminated Clark’s employment in AHISD in response to numerous irremediable performance deficiencies deficiencies ................................................................ .............................................................. 6 .. II. II. Clark’s allegations of harassment ........................................................................ ...................................................................... 9 .. III. III. AHISD’s immediate investigation and effective response ................................ .............................. 1111 .. IV. Clark’s performance deteriorated during the 2008-2009 school year ............... ............. 1212 .. V. EEOC Charge and subsequent reports of Clark’s EEOC of bullying ............................... ............................. 1515 .. VI. Clark provided an untruthful statement during AHISD’s investigation into into a potential breach of of state state testing protocols ................................................ .............................................. 19 19 .. VII. Clark’s credibility credibility is is destroyed and additional performance failures failures come to to the attention of Kershner................................................................................ .............................................................................. 20 .. SUMMARY OF SUMMARY ARGUMENT ................................................................................ THE ARGUMENT OF THE .............................................................................. 23 .. ARGUMENT .................................................................................................................... ARGUMENT .................................................................................................................. .. 28 I. I. The standard of review for jurisdictional jurisdictional challenges to TCHRA claims to TCHRA based on governmental immunity mirrors that that of of a traditional summary traditional summary judgment motion, and requires dismissal unless the plaintiff plaintiff establishes the primafacie prima facie elements of her claims .............................................................. ............................................................ 28 .. iii iii A. Mission Consolidated, Consolidated, the first first controlling case disregarded by by the trial court ..................................................................................................... trial ................................................................................................... 28 .. B. McDonnell Douglas is is the second source of analysis disregarded by by the trial trial judge ............................................................................................... ............................................................................................. 31 31.. C. The McDonnell Douglas burden-shifting framework requires a showing of of pretext and must be considered a part part of the jurisdictional analysis under Mission Consolidated .................................... jurisdictional .................................. 33 .. AHISD had multiple legitimate, D. AHISD legitimate, non-retaliatory reasons for termination, as as well as as every other decision made with respect to to plaintiff’s employment ................................................................................ plaintiffs .............................................................................. 36 .. II. 11. Plaintiff cannot show pretext because her allegations are based solely on speculation ......................................................................................................... ....................................................................................................... 38 .. A. The doctrine of collateral collateral estoppel bars plaintiff plaintiff from re-litigating re-litigating the Board’s reasons for acting on her termination ...................................... .................................... 39 .. B. Plaintiff cannot rely rely on subjective beliefs or conclusory allegation to to demonstrate pretext ..................................................................................... ................................................................................... 40 .. C. Plaintiff cannot rely rely on the alleged unreasonableness of of the Board’s determination to to show pretext for retaliation retaliation .............................................. 41 ............................................ ..4l D. Plaintiff cannot rely rely on temporal proximity to to show pretext ...................... .................... 44 .. E. Plaintiff cannot show pretext through disparate treatment because there is is no similarly situated comparator .................................................... 46 .................................................. ..46 F. F. Plaintiff’s Plaintiffs retaliation retaliation claim fails fails under the McDonnell Douglas burden-shifting burden—shifting framework, therefore she cannot establish all all of of the jurisdictional elements of her claim, and the trial jurisdictional trial court lacked subject matter jurisdiction jurisdiction ...................................................................................... .................................................................................... 48 .. III. III. Plaintiff cannot establish the required elements of her sexual harassment claim ................................................................................................................... 49 ................................................................................................................. ..49 A. Plaintiff Plaintiff cannot prove AHISD’s negligence in in controlling working conditions necessary to to establish vicarious liability liability for the alleged misconduct ofof plaintiff’s plaintiffs co-workers co—workers .......................................................... ........................................................ 49 .. iv iv B. Plaintiff does not complain of discrimination based on her gender ............ .......... 5151 .. C. Courts have repeatedly and consistently rejected the sexual harassment claims of plaintiffs plaintiffs who were subjected to to more frequent and egregious conduct than that alleged by by plaintiff plaintiff................................... ................................. 54 .. D. Plaintiff did not report harassment at at or even near the time of the alleged event ................................................................................................ .............................................................................................. ..60 E. Notwithstanding Notwithstanding the quality of plaintiff’ss mostly unsupportable of plaintiff’ AHISD took immediate remedial actions calculated to claim, AHISD to insure that that the conditions in in its its workplace were discrimination free ..................... ................... 61 61 .. 1. AHISD adopted and enforced sexual harassment policies and had 1. AHISD implemented sexual harassment training ............................................... ............................................. 61 61 .. 2. AHISD immediately investigated and took prompt remedial 2. AHISD action in in response to to plaintiff’s report. report. Plaintiff did not contest AHISD’s investigative conclusions, made no further reports of of similar behavior until until she filed EEOC Charge until filed an EEOC until several months later later based on the same allegations. .......................................... 63 allegations ......................................... .. PRAYER ........................................................................................................................... PRAYER ......................................................................................................................... .. 66 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE .......................................................................................... ........................................................................................ 67 .. COMPLIANCE ................................................................................ OF COMPLIANCE CERTIFICATE OF .............................................................................. 68 .. APPENDIX............................................................................................................. APPENDIX ........................................................................................................... 69 .. v OF AUTHORITIES INDEX OF INDEX AUTHORITIES CASES CASES Anderson v. v. Tupelo Regional Airport Authority, Authority, No. 13–60666, WL 1929866 13-60666,2014 WL 1929866
(5th (5th Cir. May 15, Cir. May 15, 2014) ........................ ...................... 42 .. Arredondo v. Gulf Bend Center, v. Gulf WL 1004051 No. H-06-1580,2007 WL 1004051
(S.D. Tex. Mar. 30, 30, 2007) ................... ................. 46 .. AutoZone, Inc. AutoZone, Inc. v. v. Reyes,272 S.W.3d 588
(Tex. 2008) ............................................................. ........................................................... .. 28, 46-47 Barnett v. v. Boeing Co., C0,, App’x 875 (5th 306 Fed. App’x (5th Cir. Cir. 2009) ....................................................... ..................................................... 57-58 .. Bland Independent School District v. v. Blue,34 S.W.3d 547
(Tex. 2000) ............................................................. ........................................................... 23, 23, 29, 29, 31 .. 31 Burlington Industries, Industries, Inc. Inc. v. Ellerth, v. Ellerth,524 U.S. 742
(1998) .................................................................................... .................................................................................. ..49 Burlington Northern and Santa Fe Railway Co. Co. v. v. White, White,548 U.S. 53
(2006) ...................................................................................... .................................................................................... .. 37 City of El Paso v. ofEl Heinrich, v. Heinrich,284 S.W.3d 366
(Tex. 2009) ....................................................................... ..................................................................... 31 31 .. City of Elsa v. ofElsa V. Gonzales,325 S.W.3d 622
(Tex. 2010) ....................................................................... ..................................................................... 30 .. of Houston v. City of v. Rushing, App.—Houst0n [1st7 S.W.3d 909
(Tex. App.—Houston [1st Dist.] Dist] 1999, pet. denied) ............ 1999, pet. .......... 29 .. Clark County School District District v. v. Breeden,532 U.S. 268
(2001) .................................................................................... .................................................................................. ..45 ofCameron County of Cameron v. v. Brown,80 S.W.3d 549
(Tex. 2002) ......................................................................... ....................................................................... 29 .. vi vi Crutcher v. v. Dallas Independent School District, District, App.—Dal1as 2013, no pet.)410 S.W.3d 487
(Tex. App.—Dallas pet.) ................................... ................................. 43 .. Dallas Area Rapid Transit v. v. Carr,309 S.W.3d 174
App.—Dal1as 2010, pet. 174 (Tex. App.—Dallas pet. denied)............................. ........................... .. 29 DeHart v. v. Baker Hughes Oilfield Oilfield Operations, Inc., Operations, Inc., App’x 214 Fed. App’x 437 (5th (5th Cir. Cir. 2007) ....................................................... ..................................................... 44-45 .. E.E.O.C. v. Exxon Shipping Co., E.E. 0. C. v. C0,,745 F.2d 967
(5th (5th Cir. Cir. 1984) 1984) ................................................................... ................................................................. .. 40-41 40-41 Ellerbrook v. v. City City of Lubbock, 0fLubb0ck, 465 Fed. Appx. 324 (5th (5th Cir. Cir. 2012) ............................................................. ........................................................... 38 .. V. Pohanka of English v. of Chantilly, Inc., Chantilly, Inc., 190 190 F. F. Supp. 2d 833 (E.D.Va. 2002) ........................................................... ......................................................... 53 .. Evans v. v. City City of Houston, ofHouston,246 F.3d 344
(5th (5th Cir. Cir. 2001) ....................................................................... ....................................................................... 44 v. Boca Raton, Faragher v.524 U.S. 775
(1998) .................................................. ................................................ 50, 50, 54-55, 59-61, 63, .. 63, 65 FFort ort Bend Independent School District District v. v. Williams, Williams, WL 4779693 No. 01-13-00052-CV,2013 WL 4779693
(Tex. App.—Houston [1st Dist.] September 5, [1stDist.] 5, 2013, no pet.) pet.) .................... .................. 46 .. Gearhart v. v. Eye Eye Care Centers of of America, 888 F. F. Supp. 814 (S.D. Tex. 1995) 1995) ................................................... ................................................. 55-56, 58 .. Gilster v. v. Primebank, 884 F.F. Supp. 2d 811 811 (N.D. Iowa 2012) .......................................................... ........................................................ 3 .. v. Lowe Green v. ’s Home Centers, Inc., Lowe’s Centers, Inc., 199199 S.W.3d 514
(Tex. App.—Houston [1st Dist.] 2006, pet. [1stDist.] pet. denied) ........ ...... 41 41 .. vii Vii Grice v. FMC Technologies Inc., v. FMC Inc., 216 Fed Appx. 401 401 (5th (5th Cir. Cir. 2007) ............................................................. ........................................................... 37 .. Gulf Gulf States Toyota, v. Morgan, Inc. v. Toyota, Inc. App.—H0uston [1st.89 S.W.3d 766
(Tex. App.—Houston [1st. Dist.] Dist.] 2002, no pet.) pet.) ............ .......... 50-51 50-51 .. Hale v. V. Napolitano, WL 1507144 No. SA-08-CV-106-XR, 2009 WL May 28, 1507144 (W.D. Tex. May 28, 2009) ... 57 2009)... Hancock v. v. Barron Builders && Management Company, Company, Inc., Inc., 523 F. F. Supp. 2d 571 571 (S.D. Tex. 2007) .................................................... .................................................. 57-58 .. Hockman v. Westward Communications, v. Westward L.L.C., Communications, L.L.C.,407 F.3d 317
(5th (5th Cir. Cir. 2004) .................................................................. ................................................................ ..57-58 Hornsby v. v. Conoco, Inc, Conoco, Inc,777 F.2d 243
(5th (5th Cir. Cir. 1985) 1985) ....................................................................... ..................................................................... 40 .. Indest v. Freeman Decorating, v. Decorating, Inc., Inc., 164164 F.3d 258
(5th (5th Cir. Cir. 1999) 1999) ................................................................. .................................................................51, 51, 55 La Day Day v. V. Catalyst Tech., Inc., Tech, Inc.,302 F.3d 474
(5th (5th Cir. Cir. 2002) ...................................................... .................................................... 24-25, 49, .. 49, 52 v. Texas Department of Lauderdale v. of Criminal Justice, Justice,512 F.3d 157
157 (5th (5th Cir. Cir. 2007) ....................................................................... ..................................................................... 64 .. Little Little v. v. Liquid Air Corp., Corp,37 F.3d 1069
1069 (5th (5th Cir. Cir. 1994) 1994) ....................................................................... ..................................................................... 37 .. Long v. Eastfield College, v. Eastfield College,88 F.3d 300
(5th (5th Cir. Cir. 1996) 1996) ......................................................................... ....................................................................... 38 .. Love v. v. Motiva Enterprises LLC, LLC, 349 Fed. App’x 900 (5th (5th Cir. Cir. 2009) ....................................................... ..................................................... 51-52.. Mayberry v. v. Vought Aircraft Co., Vought/lircraft Co.,55 F.3d 1086
1086 (5th (5th Cir. Cir. 1995) 1995) ........................................................................ ...................................................................... 43 .. viii viii Martinez v. Workforce Commission — v. Texas Workforce – Civil Rights Division, Division, No 14-50391 No 14-50391 (5th (5th Cir. Cir. Dec. 30, 30, 2014).................................................... .................................................. 43-44 .. McCoy McCoy v City City of of Shreveport, Shreveport,492 F.3d 551
551 (5th (5th Cir. Cir. 2007) ................................................................. ............................................................... 36, 36, 38 .. McDonald v. v. Santa Fe Trail Transportation Co., Co.,427 U.S. 273
(1976) .................................................................................... .................................................................................. .. 47 McDonnell Douglas Corp. Corp. v. v. Green, 411411 U.S. 792
(1973) .............................................................................. passim ............................................................................ ..passim Meritor Savings Bank v. v. Vinson, Vinson,477 U.S. 57
(1986) ................................................................................. ................................................................................. 54-55 Mission Consolidated Independent School District District v. v. Garcia,372 S.W.3d 629
(Tex. 2012) ................................................................ passim .............................................................. .. passim Montgomery County v. v. Park,246 S.W.3d 610
(Tex. 2007) ........................................................................ ...................................................................... 37 .. Muniz v. v. El Paso Marriott, Marriott, 773 F. F. Supp.2d 674 (W.D. Tex. 2011), affirmed afifirmed 477 Fed. Appx. 189 189 (5th (5th Cir. Cir. 2012) .............................................. ............................................ 37 .. Nairn v. v. Killeen Independent School District, District,366 S.W.3d 229
(Tex. App.—El Paso 2012, no pet.) pet.) ............................ .......................... 39-40 .. Nasti v. v. CIBA Specialty Chemicals Corp.,492 F.3d 589
(5th (5th Cir. Cir. 2007) ........................................................................ ...................................................................... 42 .. Oncale v Sundowner Offshore Services, Services, Inc.,Inc.,523 U.S. 75
(1998) ...................................................................... .................................................................... 51-52, 54-55 .. Orquiola v. City Mortgage Co., v. National City Co., 510 F.F. Supp. 2d 1134 1134 (N.D. Ga. 2007).......................................................... ........................................................ 33 .. Plumlee v. v. City City of Kennedale, ofKennedale,795 F. Supp. 2d 556
(N.D. Tex. 2011) ........................................................... ......................................................... 46 .. ix ix Prairie View View A&M A&M University University v. Chatha, v. 381381 S.W.3d 500
(Tex. 2012) ....................................................................... ..................................................................... 28 .. Ptomey v. v. Texas Tech University, University, App.—Amaril10 2009, pet.277 S.W.3d 487
(Tex. App.—Amarillo pet. denied) .................. ................ 32, 32, 38 .. Quantum Chemical Corp. Corp. v. Toennies, v. Toennies,47 S.W.3d 473
(Tex. 2001) ..................................................................... ................................................................... 2, 2, 34 .. Rodriguez v. v. City City of Poteet, of Poteet, WL 769286 04—13—00274—CV, 2014 WL No. 04–13–00274–CV, (Tex. App.—San Antonio February 26, 26, 2014, no pet. pet. h.) h.) ........................... ......................... 46 .. Sandstad v. CB Richard Ellis, v. CB Ellis, Inc., Inc.,309 F.3d 893
, 899 (5th (5th Cir. Cir. 2002) ............................................................... ............................................................. 43 .. Septimus v. v. University University of of Houston,399 F.3d 601
601 (5th (5th Cir. Cir. 2005) ....................................................................... ..................................................................... 55 .. Shepherd v. v. Comptroller of Public Accounts of ofPublic State Texas, ofState 168168 F.3d 871
871 (5th (5th Cir. Cir. 1999) 1999) ........................................... ......................................... 24-25, 54-55, 57-58 .. Smith v. Wal—Mart Stores, v. Wal–Mart Inc, Stores, Inc, 891891 F.2d 1177
1177 (5th (5th Cir.1990) ...................................................................... .................................................................... 47 .. St. Mary St. ’s Honor Center v. Mary’s v. Hicks,509 U.S. 502
(1993) ...................................................................................... .................................................................................... 3 .. State v. v. Lueck,290 S.W.3d 876
(Tex. 2009) .................................................................. ................................................................ 29-30 .. Stewart v. v. Mississippi Transportation Commission, Commission,586 F.3d 321
321 (5th (5th Cir. Cir. 2009) ....................................................................... ..................................................................... 37 .. Summa v. Summa v. Hofstra University, University,708 F.3d 115
115 (2d Cir. Cir. 2013) .......................................................................... ........................................................................ 3 .. x Swanson v. v. General Services Administration, Administration, 110110 F.3d 1180
1180 (5th (5th Cir. Cir. 1997) 1997) ................................................................ .............................................................. 44-45 .. Texas Association of of Business v. v. Texas Air Control Board,852 S.W.2d 440
(Tex. 1993) 1993) ....................................................................... ..................................................................... 30 .. Texas Dept. Dept. of of Community Aflairs Affairs v. v. Burdine,450 U.S. 248
(1981) ................................................................................ .............................................................................. 3, 3, 34 .. Texas Department of & Wildlife of Parks & Wildlife v.v. Miranda, 133133 S.W.3d 217
(Tex. 2004) ....................................................................... ..................................................................... 29 .. Texas State Office Office of of Administrative Hearings v. v. Birch, O4-12-00681-CV, 2013 WL No. 04-12-00681-CV, WL 3874473 (Tex. App.—San Antonio July 24, 2013, pet.pet. denied) ................................ .............................. 35 .. University University of of Texas, MD. Anderson Cancer Center v. Texas, M.D. v. Valdizan-Garcia, Valdizan—Garcia, 01-12-00386-CV, 2012 WL No. 01-12-00386-CV, WL 5545783 (Tex. App.—Houston [1st Dist.] November 15, [lst Dist.] 15, 2012, no pet.) pet.) .................. ................ 35 .. University of Texas Southwestern Medical Center v. University of Nassar, v. Nassar, 133133 S. Ct. 2517
(2013) ........................................................................... ......................................................................... 38, 38, 48 .. Vance Vance v. v. Ball State University, University, 133 133 S.Ct. S.Ct. 2434 (U.S. 2013) ................................................................ .............................................................. 4, 4, 49-50 .. Wal-Mart Stores, Wal-Mart Inc. v. Stores, Inc. v. Canchola, 121121 S.W.3d 735
(Tex. 2003) ....................................................................... ..................................................................... 38 .. Wang v. Wang v. University University of of Texas at Austin, No. 04-13-00065-CV, 2013 WL WL 5570824 (Tex. App.—San Antonio Oct. 9, 9, 2013) ............................................... ............................................. 23, 31 31 .. Washington Washington v. v. Occidental Chemicals Corp., Corp, 24 F. F. Supp. 2d 713 713 (S.D. Tex. 199) 199) ............................................................. ........................................................... 32 .. Wheeler v. BL Development Corp., Wheeler v.415 F.3d 399
(5th (5th Cir. Cir. 2005) ....................................................................... ..................................................................... 46 .. xi xi Williams Williams v. Buffet, Inc., v. Barnhill’s Buffet, Inc., App’x 290 Fed. App’x 759 (5th (5th Cir. Cir. 2008) ................................................. ............................................... 61-62, 65.. Ysleta Ysleta Independent School District District v. Monarrez, v. Monarrez, 177177 S.W.3d 915
(Tex. 2005) ................................................................. ............................................................... 28, 46 28,46 .. AND RULES STATUTES AND STATUTES RULES & Rem. Code §§ 51.014(a)(8) .......................................................... Tex. Civ. Prac. & ........................................................ 11 .. Tex. Educ. Code §§ 21.159 .................................................................................. ................................................................................ 9, 9, 39 .. Tex. Educ. Code §§ 21.251 21.251 et seq. ............................................................................ et seq. .......................................................................... 9 .. Tex. Educ. Code §§ 21.301 21.301 et seq. ...................................................................... et seq. .................................................................... 9, 9, 39 .. Tex. Lab. Code §§ 21.001 21.001 ............................................................................. ........................................................................... 2, 2, 28, .. 51 28,51 Tex. Lab. Code §§ 21.051, .055 ....................................................................... ..................................................................... passim passim .. Tex. R. App. P. P. 28.1 28.1 ................................................................................................ .............................................................................................. 11 .. Tex. R. Civ. P. P. 166a(b) 166a(b) .......................................................................................... ........................................................................................ 35 .. Title VII of the Civil Rights Act of ofthe of 1964 1964 ......................................... ....................................... 2, 2, 28, 28, 34, 34, 51-52 .. REGULATIONS REGULATIONS 29 C.F.R. C.F.R. § § 1604.11 1604.11 ............................................................................................... ............................................................................................. 63 .. ADMINISTRATIVE PUBLICATIONS ADMINISTRATIVE PUBLICATIONS EEOC EEOC Notice: Policy Guidance on Current Issues in in Sexual Harassment ........... ......... .. 63 xii xii STATEMENT OF STATEMENT THE CASE OF THE CASE Nature of of the Case: Case.‘ Plaintiff Plaintiff Catherine Clark (“plaintiff” or “Clark”), a former employee of Alamo Heights Independent School District (“AHISD”), alleges unlawful discrimination on the basis of of her gender and retaliation retaliation in in violation of the Texas Commission on Human Human Rights Act (“TCHRA”) stemming from her two year employment and ultimate termination as a physical education teacher and coach at at 1 Alamo Heights Junior School. (CR (CR 24-25). 24-25).] After the EEOC rejected her claims (Supp. EEOC (Supp. CR,CR, Vol. I. I. 125-127), 125-127), the plaintiff plaintiff filed filed her lawsuit. (CR (CR 1). 1). In response, AHISD AHISD filed filed its its Plea to to the Jurisdiction on June 19,19, 2014, demonstrating that plaintiff’ss allegations did not that plaintiff’ TCHRA sufficient to invoke constitute violations of the TCHRA the Act’s limited waiver of AHISD’s AHlSD’s governmental immunity, and, consequently, in in line line with Texas Supreme Court authority, authority, the trial trial court was wholly without subject matter jurisdiction. (CR 33-92). jurisdiction. (CR Trial Court and Disposition: Disposition.‘ The Honorable Karen H. Pozza, 285th Judicial District AHlSD’s Plea to Court, Bexar County, Texas, denied AHISD’s to the Jurisdiction on October 9, (CR 459). 9, 2014. (CR Appeal: Interlocutory Appeal: Pursuant to to Rule 28.1 28.1 of of the Texas Rules ofof Appellate Procedure and Section 51.014(a)(8) ofof the Texas Civil AHISD timely appealed the Practice and Remedies Code, AHISD trial trial court’s Order denying its its Plea to to the Jurisdiction. Jurisdiction. (CR 460). (CR 1 l The record for this this appeal was submitted in in three parts, parts, consisting of an initial initial Clerk’s Record (cited (cited as “CR”), and two volumes that that were subsequently filed filed as the Supplemental Clerk’s Record (cited (cited as “Supp. CR, Vol. I.” and “Supp. CR, Vol. II.”). 11.”). 2 Z McDonnell Douglas applies to to this this case pursuant to to the announcements of the Texas Supreme Court: “One of TCHRA’s purposes is of TCHRA’s is to to ‘provide for the execution of the policies of Title Title VII of the Civil Rights Act of 1964 1964 and itsits subsequent amendments. amendments. Tex. Labor Code §§ 21.001(1). 21.00l( 1). 11 STATEMENT REGARDING STATEMENT REGARDING ORAL ARGUMENT ORAL ARGUMENT Based on controlling precedent from state state and federal courts, courts, the TCHRA’s waiver of immunity to Texas Supreme Court narrowly interpreted the TCHRA’s raise raise the bar for plaintiffs plaintiffs bringing claims against governmental entity entity employers. See Mission Consol. Indep. Sch. Consol. Indep. Dist. v. Sch. Dist. v. Garcia,372 S.W.3d 629
(Tex. 2012). TCHRA cause of action Under Mission Consolidated, the elements of a plaintiff’s TCHRA are jurisdictional, jurisdictional, and any deficiencies deficiencies are grounds for dismissal for lack of subject matter jurisdiction. jurisdiction. In Mission Consolidated the Texas Supreme Court applied the burden-shifting rubric of McDonnell Douglas Corp. Corp. v. v. Green, 411411 U.S. 792
(1973) on a plaintiff plaintiff attempting to to overcome governmental immunity at at the initial initial plea to the jurisdiction jurisdiction stage of a discrimination claim.Id. Id. at
at 635-36. As such, oral argument will assist assist this this Court as it it considers the trial trial court’s Court’s failure failure to to apply the underlying federal and state state discrimination precedent. precedent. Oral argument will also assist assist the Court in in resolving several interconnected sub-issues concerning the jurisdictional insufficiencies of plaintiff’s jurisdictional plaintiffs allegations, allegations, particularly as the Court studies, studies, analyzes, and applies the interplay between McDonnell Douglas and the Texas Supreme Court’s decision in Consolidatedz2 in Mission Consolidated. 2Z McDonnell Douglas applies to to this this case pursuant to to the announcements of the Texas Supreme Court: “One of TCHRA’s purposes is of TCHRA’s is to to ‘provide for the execution of the policies of Title Title VII of the Civil Rights Act of 1964 1964 and its its subsequent amendments. amendments. Tex. Labor Code §§ 21.001(1). Thus, analogous federal statutes statutes and the cases interpreting them guide our Texas courts’ courts’ in their in their reading and application of TCHRA.” Quantum Chem. of the TCHRA.” See Quantum Chem. Corp. Corp. v. SW3d 473, v. Toennies,47 S.W.3d 476
(Tex. (Tex. 2001). 2 PRESENTED ISSUES PRESENTED 1. 1. The trial trial court erred in in failing to follow McDonnell Douglas’s shifting failing to burdens “proof’33 of “proof” to to the jurisdictional jurisdictional requirements established in Mission Consolidated. 2. 2. Plaintiff’s Plaintiffs allegations and submissions in response to AHISD’s plea to to the jurisdiction jurisdiction were insufficient to to overcome AHISD’s governmental immunity. immunity. With the decision in in Mission Consolidated, it it is is now black letter letter law that when a defendant files files a plea to to the jurisdiction, jurisdiction, the burden is is upon the plaintiff plaintiff to to provide sufficient evidence that that the trial trial court has jurisdiction. jurisdiction. This plaintiff plaintiff failed failed to to provide the facts facts necessary to prima facie case under McDonnell Douglas to proffer a primafacie or to to show that the District’s reasons for terminating plaintiffs plaintiff’s contract were a pretext for retaliation, retaliation, a necessary ingredient to to confer subject matter jurisdiction jurisdiction on the trial trial court for plaintiffs plaintiff’s claim of retaliation. retaliation. Given plaintiffs plaintiff’s failure failure to to offer evidence of pretext and pursuant to Mission Consolidated and McDonnell Douglas, the trial trial court’s failure failure to to grant the Plea to to the Jurisdiction was reversible error. error. Since plaintiff plaintiff is is required to establish the required jurisdictional jurisdictional elements of each of of her claims, this this issue is is accompanied by by sub-issues regarding the 3 AHISD articulated legitimate, nondiscriminatory reasons for its AHISD its termination ofof the plaintiff. plaintiff. Once it it did so, so, the ultimate burden of of establishing a violation of TCHRA shifted back to of the TCHRA to the plaintiff, requiring plaintiff plaintiff, plaintiff to to prove that that each and every one of the articulated reasons was, in fact, fact, a pretext forfor the discharge. See, e.g., Summa v. See, e.g., v. Hofstra University, University,708 F.3d 115
115 (2d Cir. Cir. 2013); Gilster v. v. Primebank, 884 F. F. Supp. 2d 811 811 (N.D. Iowa 2012); Orquiola v. M National City City Mortg. Co., Mortg. Co., 510 F. F. Supp. 2d 1134 1134 (N.D. Ga. 2007); St.St. Marys Mary’s Honor Center v. v. Hicks,509 U.S. 502
(1993); (1993); Texas Dept. ofCommunity Dept. of Community Affairs Affairs v. v. Burdine,450 U.S. 248
, (1981). (1981). 3 identification identification of those jurisdictional jurisdictional elements and plaintiffs plaintiff’s requirement to meet her jurisdictional jurisdictional burden is is addressing each of the following: 3. 3. With respect to plaintiff’s plaintifi’s retaliation claim: claim: A. The trial trial court erred inin denying AHISD’s Plea to the Jurisdiction given plaintiffs plaintiff’s failure failure to to establish allall of of the required elements of of her primafacie prima facie case of of retaliation. retaliation. B. Because plaintiff plaintiff lacked direct evidence of causation and retaliation claim under the McDonnell Douglas brought her retaliation burden-shifting framework, the trial trial court erred in failing failing to treat treat each step of the burden-shifting framework as jurisdictional. jurisdictional. C. The trial trial court erred in in not following the Texas and United States Supreme Court’s precedent requiring ‘but ‘but for’ causation to to find that a plaintiffs plaintiff’s subjective beliefs and conclusory allegations were legally legally insufficient as allegations necessary toto establish that AHISD’s numerous legitimate, non- discriminatory, and non-retaliatory reasons for terminating plaintiff’s plaintiffs employment were pretextual so as to to demonstrate retaliation retaliation sufficient sufficient toto overcome AHISD’s Plea to the Jurisdiction. 4. 4. With respect to plaintiff’s plaintifPs gender discrimination claim: A. Given that plaintiff’s plaintiff’ s alleged harassers were co-workers and not supervisors, the trial trial court erred inin failing failing to follow applicable precedent to to find that that plaintiff plaintiff must, but did not,not, allege that that AHISD failed to AHISD to take reasonable action to control or prevent employee-upon-employee discrimination under the United States Supreme Court’s test test in in Vance Vance v. v. Ball State University, University, 133133 S. Ct. 2434
(U.S. 2013) sufficient to to withstand AHISD Plea to the AHISD to the Jurisdiction. Jurisdiction. B. The trial trial court erred in failing failing to find that that plaintiff’s plaintiffs allegations were insufficient toto establish a primafacie prima facie case of same-sex hostile work environment and withstand AHISD’s Plea to to the 4 Jurisdiction where the alleged harassment was not based on plaintiff’s gender. plaintiffs C. The trial trial court erred in not concluding that that plaintiff, plaintiff, in in alleging neither severe nor pervasive inappropriate teasing and off-hand comments failed failed to to show an actionable hostile work environment sufficient to to withstand AHISD’s Plea to to the Jurisdiction. Jurisdiction. D. The trial trial court erred in in determining that that plaintiff plaintiff established a prima prima facie facie case of of discrimination sufficient to to withstand AHISD’s Plea to the Jurisdiction, Jurisdiction, notwithstanding AHISD’s jurisdictional evidence conclusively establishing that jurisdictional that plaintiff plaintiff failed to to timely report the alleged inappropriate conduct, and, AHISD took prompt remedial action that once reported, AHISD calculated to to prevent further harassment. harassment. E. The trial trial court erred in denying AHISD’s Plea to the Jurisdiction given plaintiff’s plaintiffs failure failure to establish the essential elements ofof her hostile work environment claim based on alleged harassment by by her same-sex co-workers. co-workers. 5 STATEMENT OF STATEMENT OF FACTS FACTS44 I. I. AHISD terminated Clark’s employment in response to numerous AHISD irremediable performance deficiencies. deficiencies. AHISD terminated Clark’s employment after AHISD after the 2008-2009 school year as an ultimate response to to her numerous irremediable performance deficiencies. deficiencies. (Supp. CR, Vol. I. I. 103-105) 103-105) It It was Clark’s principal, principal, Stephanie Kershner who AHISD Superintendent, Dr. Kevin Brown recommended her termination to the AHISD (Superintendent or Brown). (Supp. (Supp. CR, CR, Vol. I. 103) Vol.1. 103) Principal Kershner’s Human recommendation was the aftermath of an extensive Department of Human Resource (HR) (HR) investigation and report reviewing complaints made by by Clark and complaints against her, her, which concluded that that despite AHISD’s significant significant and repeated efforts efforts to to remediate and improve Clark’s performance, her performance 5 remained severely substandard. substandard.5 See Appendix, Tab 3, 3, Kershner’s Letter to to the Superintendent) Kershner also concluded that Clark had been the cause of extreme disruptions among faculty faculty at (AHJ S), for which she was at the Junior School campus (AHJS), 4 Clark’s employment history included multiple occurrences of disobedience and misconduct that that ultimately led toto her termination. Since the Mission Consolidated jurisdictional jurisdictional analysis and the McDonnell Douglas burden-shifting burden—shifting framework require the court to analyze pertinentpertinent facts, facts, some relevant facts facts regarding Clark’s misconduct are not addressed here but are later later contained in the Argument section of thisthis Brief. Brief. 5 5 For the Court’s convenience, two documents of of primary importance have been included in in the Appendix to to this this Brief, Brief, in in addition toto being found within the voluminous Clerk’s record for this this appeal. appeal. Appendix Tab 3 is is Kershner’s Letter to to Superintendent Kevin Brown supporting her recommendation that plaintiff be terminated. that plaintiff terminated. Appendix Tab 4 is is AHISD’s Notice of Proposed Termination sent to plaintiff plaintiff detailing the several non-retaliatory non—retaliatory reasons for for AHISD’s proposed action, action, as well as plaintiff’s right to to challenge said action byby requesting a due process hearing. These two letters letters are also found as exhibits to to the affidavits affidavits of of Stephanie Kershner and Kevin Brown at at Supp. CR, Vol. I. I. 129-136 129-136 and 138-174, 138-174, respectively). respectively). 6 responsible that thwarted her campus’s accomplishment of its its educational goals.Id. at Id.
at p. p. 8. 8. HR investigation and her own experience with Indeed, relying on the HR Clark, she determined that that Clark had not been truthful during the course of her investigation.Id. Kershner’s conclusions
were based on specific investigation.Id. specific factual
findings findings detailed in in a letter letter to to Brown, including, but not limited to to findings findings (i) (i) that Clark had made a number of demeaning and derogatory statements to to other teachers about two of her co-workers in the Girls’ Athletic Department, Ann Monterrubio and Michele Boyer, calling them “lesbian dike [sic] [sic] coaches who get drunk and share men”; (ii) (ii) that that Clark made false false reports about her actions in in a District District investigation of a potential violation of state state assessment testing protocols, protocols, actions that that she at at first first denied and later later admitted to to having committed; committed; (iii) (iii) that that Clark had repeatedly made unsubstantiated claims to to others, others, including students, that Monterrubio and Boyer were engaging in in criminal wrongdoing, having vandalized her car, car, stolen her keys and stolen her cell cell phone; (iv) (iv) that Clark had, on at at least least two separate occasions, disobeyed Kershner’s express and clear directive to not to her campus during work hours, and that bring her daughter to that an examination of Clark’s teaching records and interviews with and reports from her own students revealed that Clark was responsible for serious special program and reporting deficiencies deficiencies under federal and state state law requirements that adversely impacted the 7 educational well-being of her students.Id. Id. at
CR Vol. I.I. at pp. 6-8; see also Supp. CR 330. Based on these reasons (and multiple others), others), Superintendent Brown recommended Clark’s termination to to the Board of Trustees at at a meeting held on June 25, 2009, at at which time the Board, having considered the recommendations and supporting reasons, along with Clark’s previous and most recent performance evaluations, proposed her termination of of employment for cause. (Supp. CR, Vol. I. I. 105, 105, 137, 137, 178) 178) Thus, the record submitted to to the trial trial court considering AHISD’s Plea to to the Jurisdiction was replete with overwhelming evidence supporting each of the eleven stated reasons for Brown’s recommendation. Most significantly, significantly, there is is nothing in in the record submitted to and considered by by the trial trial court considering jurisdiction, demonstrating that the reasons for jurisdiction, Brown’s recommendation to the Board and the Board’s termination decision were a pretext for discrimination, or even that that Brown or the Board had any animosity toward plaintiff plaintiff whatsoever. On July 14, On AHISD issued Clark written notice of 14, 2009, AHISD of the Board’s proposed action, action, setting out eleven specific reasons for the recommendation and citing nineteen documented descriptions of plaintiffs plaintiff’s misconduct in in support thereof. (Appendix, Tab 4, 4, pp. 1-3, 1-3, also at Supp. CR, Vol. I. I. 138-140). 138-140). Having received notice of of termination for cause, plaintiff plaintiff was entitled entitled to contest the Board decision in a hearing to to be conducted by by an independent hearing 8 officer appointed by by the Commissioner of Education. Education. (Supp. (Supp. CR, Vol. I. I. 105) 105) This was Clark’s opportunity for a full full due process transcribed hearing, applying Texas AHISD would be required to rules of evidence and procedure, where AHISD to continue Clark in in employment pending the results results of of the hearing, where the full full hearing transcript and court reporting costs would have gone to to AHISD, and where the “free” transcript would then be forwarded to to the Commissioner of Education in in a may have required. See Tex. Educ. Code further two-step appeal process as Clark may §§ §§ 21.159, .251-260, .301-307. But, despite these rights, rights, Clark did not request an independent hearing examiner nor, nor, in in any way, contest the Board’s proposal. any way, (Supp. CR, Vol. I. I. 105) 105) Because Clark did not challenge her proposed termination, on August 14, 14, 2009 the Board of Trustees again voted, Voted, and Clark’s employment was terminated. terminated. (Supp. CR, Vol. I. I. 178) 178) Subsequently, on December 11, 11, 2009, Clark filed filed this this lawsuit. (CR 1-5) lawsuit. (CR 1-5) II. II. Clark’s allegations of harassment. AHISD in Clark began her employment with AHISD (CR 24) Her in August 2007. (CR lawsuit claims that she had been harassed by by Monterrubio and Boyer since the beginning of her employment, but that she did not make a formal complaint to Kershner until May 15, until May 15, 2008, at at the very end of of the 2007-2008 school year. year. (CR 24) In fact, (CR fact, during her annual review in in March, two months prior prior to her initial initial 9 complaints to to Kershner, Clark assured Kershner that her relationship with “fine.” (Supp. CR, Monterrubio was “fine.” CR, Vol. I. I. 181-182) May 15, 181-182) Then, on May 15, 2008, plaintiff plaintiff produced for Kershner a thirteen-page litany litany of complaints against multiple employees that reached back eight months and included allegations against Monterrubio, that she was offended by by Monterrubio’s conversations about atheism, abortion, and Monterrubio’s use of of weight loss pills; pills; that that on one occasion, when coaching the girls’ basketball team, that Monterrubio Monteriubio called plays and yelled yelled; and that Monterrubio had once left louder than she yelled; left a note on plaintiff’s plaintiffs desk advising her to to use a different printer. printer. (Supp. CR, CR, Vol. I. I. 211-224, Letter May 14, dated May 14, 2008) Additionally, Clark complained that that Monterrubio had asked the students “who they liked more.”Id. Id. Clark’s
complaint also included allegations suggesting sexual conduct involving Monterrubio: Monterrubio: that Monterrubio had discussed her personal sex life life with the female coaching staff; staff; that that she had commented about plaintiff’s plaintiffs breasts and body; that she had suggested that plaintiff plaintiff purchase an “indecent tree tree ornament” for the office Christmas party; party; that she had, on two occasions, displayed pictures of male private parts; parts; and that Monterrubio had emailed “dirty” cartoons to to plaintiff plaintiff using her private email account. (Supp. (Supp. CR, Vol. I. I. 211-213) Clark also reported that that she had laughed and joked with her co- workers when viewing one of the photos. (Supp. CR, Vol. Vol. I. I. 219) Ironically, Ironically, 10 10 Clark’s complaint letter letter sexually disparaged Monterrubio and Boyer, describing them as “dressed like like working girls.” (Supp. (Supp. CR, CR, Vol. I. I. 220) III. III. AHISD’s immediate investigation and effective response. Kershner immediately and thoroughly investigated each of of Clark’s allegations. allegations. (Supp. CR, Vol. I. I. 183) 183) Kershner interviewed every employee identified identified in in Clark’s written complaint, meeting with each coach named, including Monterrubio.Id. When meeting
with Monterrubio,Id. When Monterrubio,
Kershner reminded Monterrubio of of the District’s sexual harassment policies, policies, directing compliance.Id. compliance. Id.
Kershner concluded her investigation of Clark’s claims, providing Clark with a May 23, 2008 and meeting with Clark on May written response on May May 27, 2008 to discuss the results results of of her investigation and her finding of insufficient evidence to to support Clark’s allegations of sexual harassment. harassment. (Supp. CR, Vol. I. I. 183, 183, 225-226) At that that meeting, Kershner directed Clark to to be proactive and to to more immediately report concerns should future complaints arise.Id. Kershner reminded
Clark of the arise.Id. District’s grievance
policies and opportunities for resolving and addressing workplace complaints, handing her a copy copy of the District’s policy that that included an outline of her right to to appeal Kershner’s resolution of her complaint, and again directing Clark to bring any future complaint in a timely fashion. (Supp. CR, Vol. I. I. 183, 183, 225-226) 11 11 From the time of this May 27, 2008 meeting, until this May until Clark filed EEOC filed her EEOC Charge on October 7, 7, 2008, Clark was silent, silent, not renewing her prior prior allegations, allegations, 6 nor asserting further allegations, allegations,6 nor availing herself of of any of the multiple avenues of redress or appeal that that were offered to to her under the very Board Policy that that was provided to to her by by Kershner. (Supp. CR, Vol. I. I. 183). 183). If If Clark had subsequent sexual harassment concerns, Kershner remained uninformed. As such, AHISD) had every reason to believe that Kershner’s Kershner (and her employer, AHISD) swift actions addressing Clark’s complaints and her conference with and directives to to Monterrubio had successfully resolved Clark’s concerns. (Supp. CR, CR, Vol. I. I. 102, 102, 183) 183) IV. Clark’s performance deteriorated during the 2008-2009 school year. Clark’s complaints in May 2008 that closed out the 2007-2008 school year in May had Kershner sensitive to to the potential potential for continued discord between Clark and Monterrubio in in the next school year. year. As such, Kershner closely monitored the Girls’ Athletic Department from the beginning of that year. year. (Supp. CR, Vol. I. I. 184) 184) Nonetheless, in in the 2008-2009 school year, AHJS campus female coaching year, the AHJS staff staff was plagued by by numerous complaints emanating from Clark, as well as 65 As discussed below, at at a meeting with Kershner on September 29, 29, 2008, Clark vaguely alluded to to inappropriate conduct alleging that that she had knowledge of of three incidents, incidents, which she described as “sexual harassment,” and several other instances she described as “unprofessional behavior.” (Supp. CR, CR, Vol. I.I. 183-184, 183-184, 230) However, Clark refused Kershner’s request to to provide specific specific details details regarding these general allegations, allegations, and never told Kershner who or what she was referring to.Id. to. la’.
12 12 complaints about Clark by by Monterrubio and other co-workers.Id. Kershner’s co-workers. Id. response was
to to again be proactive meeting these complaints with attempts to to remediate the discord. (Supp. CR, Vol. I. I. 184, 184, 227-231) Throughout August, September, and October of 2008, Kershner and Gene Phillips, AHISD Athletic Phillips, the AHISD Director, met on multiple occasions with all all of the Girls’ Athletic Department coaches in in an attempt to to encourage and facilitate facilitate open communications and to to remediate their their specific specific concerns.Id. Id. On
one occasion in March of 2008 Kershner corrected Clark, directing her to On to not have her children at at her workplace during working hours.Id. On August
26,Id. On 26,
2008, Kershner and Phillips met with Clark to discuss complaints by by co-workers that she was not performing her coaching duties; duties; that she was continuing to to bring her children to her workplace; workplace; and that she was leaving work early early during team tryouts tryouts to to transport her children to to their their respective schools. schools.Id. Id. Again,
on September 11, 11, 2008, Kershner met with Clark regarding complaints by by another coach that Clark had been surreptitiously recording conversations in the coaches’ office. office. (Supp. CR, Vol. I. (Supp. CR, I. 229-231) Once more, on October 14, 14, 2008, Kershner met with Clark regarding Clark’s complaint that the volume of Monterrubio’s radio was too high.Id. Id. Notwithstanding
these reports by by and against her, her, Clark described her perception of of improved workplace relationships in several communications and 13 13 meetings with Phillips as “…everything “...everything is is fine,” and even described the workplace improvements as “great.” (Supp. CR, CR, Vol. I. I. 184). 184). Then, on September 29, 29, 2008, Clark met with Kershner to to complain of three incidents that that she described as as sexual harassment, and other incidents that that she described as “unprofessional behavior.” (Supp. CR, Vol. I. I. 183-184, 183-184, 230) But, when asked to to provide specifics about her allegations, allegations, such as the identity identity of her alleged harassers and perpetrators, Clark refused.Id. Id. Thus,
Kershner once again directed Clark to to follow the District’s Policies and procedures.Id. procedures. Id.
On October 29, On Kemsher’s annual performance evaluation of Clark 29, 2008, Kernsher’s documented her recent performance deficiencies, that that is, is, her constant fighting fighting and bickering with multiple co-workers (including, (including, but not limited to Monterrubio), and her failure failure to to follow Kershner’s repeated directives to utilize utilize the District policy to to address her complaints. As a result, result, Kershner placed Clark on a growth plan, plan, formally known in the parlance of Texas public school educators as an “Intervention Plan for Teacher in Need of Assistance (TINA).” (Supp. CR, Vol. I. I. 184-185, TINA was one of 184-185, 236-237) Clark’s TINA of two issued by by Kershner to to teachers on her campus that year. year. (Supp. (Supp. CR, Vol. I. I. 184-185) 184-185) Clark’s TINA cited two C1ark’s TINA “domains” or areas of concern, in in which Clark’s performance needed improving: improving: her professional communications with co-workers and supervisors, and her compliance with AHISD’s policies and procedures (in (in the reporting workplace 14 14 concerns). (Supp. (Supp. CR, Vol. I. I. 236-237) Accompanying the TINA, Kershner issued a memorandum to to Clark citing citing specific specific examples of of her deficiencies. deficiencies. (Supp. CR, CR, Vol. I. I. 229-231) Under her TINA, Clark was required to to utilize utilize the District’s policies to policies to bring complaints, and to to “work with all all colleagues in a supportive and cooperative manner.”Id. Id. Kershner
also placed Monterrubio on a TINA, requiring her to comply with the District’s policies on appropriate workplace conduct. (Supp. CR, Vol. I. I. 238-247) V. EEOC Charge and subsequent reports of bullying. Clark’s EEOC In October 2008, Clark filed filed a Charge of EEOC of Discrimination with the EEOC alleging sexual harassment and retaliation. retaliation. (Supp. (Supp. CR, Vol. I. I. 232-235) Her charge May 15, mirrored the allegations of her May 15, 2008 letter letter to to Kershner, six months prior. prior.Id. Id. AHISD
responded to AHISD EEOC to Clark’s Charge, and on September 28, 2009, the EEOC dismissed the Charge, finding finding no substance to to any of Clark’s claims. claims. (Supp. CR, CR, Vol. I. I. 102, 102, 125-127) 125-127) Three months later, later, in in January of 2009, Clark submitted three more letters letters to to Kershner, complaining this this time that that she had been “bullied” and ostracized by by Monterrubio and Boyer since November of 2008. (Supp. CR, Vol. I. I. 185-187, 185-187, 250- to follow AHISD’s grievance policies 253) Despite Clark’s TINA, directing her to (policies (policies that require, require, among other things, things, that an employee grieve within fifteen fifteen days of of the event spawning the complaint) Clark filed filed the first “new” first of her three “new” 15 15 letter letter complaints on January 23, 2009, more than two months after after much of the conduct she was grieving.Id. Id. Clark’s
letter letter complained that Monterrubio and Boyer had hidden her keys and had taken and hidden her cell cell phone. phone. (Supp. (Supp. CR, Vol. I. I. 250-253) She also complained that Kershner had “blindsided” her by by asking her to attend a meeting without previously informing her of the meeting agenda.Id. Id. She
claimed that that “all the coaches” were “snapping” at at her, her, and that that she was being “bullied.”Id. Id. She
complained that Boyer had purchased breakfast tacos for other coaches, but not for her.Id. She also
alleged that her.Id. that her
print jobs had been removed from the Department printer, printer, wadded up and thrown away.Id. Id. In
her next January 30, 30, 2009 letter, letter, she complained that another female coach had failed to inform her that a manager had quit; quit; that Kershner was “blindsiding” her in in meetings; that the radio in in the that when other coaches purchased lunch they Athletic Office was too loud, and that had “overlooked the professional courtesy of of including [her] [her] when providing food for everyone else else in in the workplace.” (Supp. (Supp. CR, Vol. I. On February 6, I. 254-256) On 6, 2009, plaintiff submitted a third letter letter to to Kershner complaining that that the other coaches would not speak to to her; her; that that Boyer had asked her to gather and store “balls and Frisbees” that were not hers (Clark’s); that another coach, Christi Gonzalez, had twice “interrupted” her (Clark) while she was trying to coach players; players; that “someone had gone through [her] [her] desk” and that [her] things on [her] that “many papers 16 16 were out of order and [she] [she] had two clipboards missing”; and that coaches were talking about student activity activity monies that were missing in in front of her. her. (Supp. (Supp. CR, Vol. I. I. 257-258) Again, despite the requirements of her TINA, and despite Kershner’s specific specific directives on at at least least three prior occasions (Supp. CR, Vol. I. I. 185, 185, 227-231, 248-249), none of these most recent complaints were brought under applicable grievance policies policies and procedures. procedures. (Supp. CR, CR, Vol. I. I. 185) 185) On February 11, On FMLA leave, 11, 2009, Clark applied for FMLA leave, claiming on her leave application that she was suffering from “persistent episodic diarrhea” and “cognitive “cognitive: difficulty” brought about by by “severe situational situational disturbance” and “reactive depression with anxiety.” (Supp. CR, Vol. I. I. 259) Clark’s leave request was immediately granted.Id. Id. Clark’s
latest latest complaints were certainly not of sexual harassment. harassment. Indeed she complained incessantly of minor workplace slights. slights. But Clark’s complaining and the complaining about her revealed obviously dysfunctional staff staff relations to Kershner who took advantage of the relative peace brought about by by Clark’s leave of absence to to more fully fully investigate each of her claims. (Supp. CR, Vol. I. I. 187- 187- 188) 188) The result of the investigation was that that Clark’s claims of petty petty annoyances and personal slights slights were not supported, leaving Kershner to to conclude that that Clark’s inability inability to relate relate positively with co-workers had been the cause of extreme disruption in the workplace. workplace. (Supp. CR, Vol. I. I. 187-188, 187-188, 260) 17 17 Kershner issued investigation findings findings to to Clark on April 8, 8, 2009, the day Clark returned from leave, leave, informing Clark that that her complaints about her co- workers were unsupported, that Kershner believed Clark continued “[…] “[...] to experience difficulties difficulties in in [her] [her] work relationships with [her] [her] colleagues,” and TINA requirement to reminding Clark of her TINA to maintain good working relationships with her colleagues. (Supp. CR, CR, Vol. I. I. 187-188, 187-188, 236-237, 260) Then, on April 15, 15, 2009 Clark filed filed a grievance, this AHISD this time under the AHISD grievance policy. policy. The grievance was against Monterrubio, alleging that Monterrubio had pushed her from behind during a student exercise run. (Supp. (Supp. CR, CR, Vol. I. Vol. I. 261-263) Clark claimed no injury injury as a result, result, and her grievance acknowledged Monterrubio’s immediate apology.Id. Id. Still,
Still, she asserted that that the “shove” was intentional and done in in retaliation retaliation for her previous complaints about Monterrubio. Monterrubio. (Supp. CR, Vol. I. I. 188) 188) During the investigation of of this this formal grievance, Clark submitted 29 more complaints of of “bullying” against Monterrubio and Boyer as “additions” to her grievance. (Supp. CR, Vol. I. I. 264-267) Clark’s additional grievances included allegations that that either Monterrubio or Boyer had ripped the antenna from her car and that, that, on an unspecified unspecified date, date, Monterrubio (in (in car) had “chased” Clark in her car. her car)Id. With regard
to car.Id. to Clark’s
complaint that Monterrubio had assaulted her, her, Kershner interviewed students involved to determine that that Monterrubio’s contact with Clark had not been intentional. 18 18 (Supp. CR, Vol. I. I. 189) AHISD honored Clark’s requested remedy, in Nonetheless, AHISD 189) Nonetheless, in the last last week of of April 2009, Monterrubio was transferred to to another campus in in the hopes that this this move would eliminate, or at at least least reduce the considerable tension among the female coaching staff staff at at the AHJS. (Supp. CR, Vol. I. I. 189, 189, 316-320) VI. AHISD’s investigation Clark provided an untruthful statement during AHISD’s into a potential breach of state testing protocols. On April 29, 2009, Clark and other teachers were monitoring the school’s On yearly yearly TAKS testing administration when a ringing cell TAKS cell phone disrupted the test. test. (Supp. CR, Vol. I. I. 188) 188) Since the Texas Education Agency prohibits students from having cell cell phones during testing (Supp. CR, Vol. I. I. 270-280), and none of the test test monitors stepped forward to to claim the ringing cell cell phone, the incident was treated as a potential violation of testing protocols and a diligent search was made to to determine the source of of the ringing phone. (Supp. (Supp. CR, Vol. Vol. I. 188) But, the phone I. 188) was heard to ring at at least least two more times during the testing, testing, and one of of the identified Clark’s phone as the source. teacher/monitors present identified source.Id. Id. Clark
was questioned and asked to provide a written statement.Id. Id. Clark’s
statement was that she did not remember a phone ringing during testing, testing, and that her phone was in in her pocket and “on vibrate” the entire day. day. (Supp. CR, Vol. I. I. 268) Later that day, day, Clark admitted and then provided a second statement that it it was in fact fact her cell cell phone that rang during the testing period. period. (Supp. CR, Vol. I. I. 269) 19 19 VII. Clark’s credibility is is destroyed and additional performance failures come to the attention of Kershner. Monterrubio’s transfer did nothing to to abate Clark’s continued conflicts conflicts with whom were the other coaches, including Boyer and Christi Gonzalez, each of whom subject of new complaints such as her claim that that Boyer snubbed Clark by by turning her back to to her. her. (Supp. CR, Vol. I. I. 189) 189) Clark also complained that at at an April 28, 2009 meeting among the Girls’ Athletic Department faculty, faculty, that was attended by by falsely accused her of “lying” when Clark was questioned Kershner, Boyer had falsely about her missing keys, keys, and about her contention that she was the first first person to arrive at at work each morning.Id. Id. Clark
had also asserted that at at this this meeting she had answered each of of Kershner’s questions in in a polite and professional manner.Id. Id. But
Kershner, having been present at at the meeting and an eyewitness to to the conduct of the individuals described in Clark’s complaint, knew first first hand that that Clark’s account of of the meeting events differed significantly from what had actually happened.Id. Id. As
such, Kershner was able to to positively conclude that Clark’s report was not credible. (Supp. CR, Vol. I. I. 189, 189, 312-313) On May On May 1, 1, 2009, Clark was placed on administrative leave with pay pay and Human Resources Director, was directed to Dr. Dana Bashara, AHISD’s Human to conduct a comprehensive review of of Clarks 29 grievances. (Supp. CR, Vol. I. I. 96-97, 102-103, 102-103, 128) 128) 20 May 12, Beginning on May May 28, 12, 2009 and ending on May 28, 2009, Dr. Bashara interviewed coaches, teachers, students, students, and the grievant, Clark. In the end, Dr. Bashara found not a shred of evidence supporting any of Clark’s allegations. (Supp. CR, Vol. I. I. 96-97, 102-103) 102-103) AHJS teacher, Meanwhile, Janet Briggs, a long-standing and respected AHJS reported to to Kershner that Clark had engaged her, her, Briggs, in in an unsolicited conversation on April 23, 2009, to to inform her that Monterrubio and Boyer were “lesbian “1esbian dikes” [sic] [sic] who “get drunk and share men.” (Supp. (Supp. CR, Vol. I. I. 189-190, 189-190, 321-322) Additionally, Debbie Cathey, a substitute teacher who had been assigned to FMLA leave, to teach Clark’s classes while she was on FMLA leave, and was again assigned to her classes when Clark was placed on paid administrative leave, brought numerous concerns regarding Clark’s classroom performance to to the attention of Bashara. (Supp. CR, Vol. I. I. 96-97, 327-335) Specifically, Specifically, Ms. Cathey offered disturbing reports of significant significant deficiencies deficiencies in in Clark’s grading practices practices and reports, reports, Clark’s failure failure to to have prepared lesson plans, as well as major deficiencies deficiencies in Clark’s classroom organization and management.Id. Id. Subsequent
interviews with Clark’s students revealed additional previously unreported and undiscovered concerns, including Clark having complained about her co-workers to her students and Clark’s continued disregard of Kershner’s prior admonishments and directives to 21 21 not bring her daughter to to the coaching office during working hours. (Supp. CR, Vol. I. I. 96-97, 189-190) 189-190) Bashara concluded her investigation and Kershner reviewed her report to conclude and to to recommend to to her Superintendent that that Clark be terminated from employment. employment. (Appendix, Tab 3, 3, p. p. 8; 8; also at Supp. CR, Vol. I. I. 315) Superintendent Brown accepted her recommendation and passed it it along with his concurring recommendation to AHISD Board of to the AHISD of Trustees. (Supp. CR, Vol. I. I. 103-105) AHISD Board of Trustees accepted and approved the 103-105) The AHISD Superintendent’s recommendation of eleven termination-for-cause reasons and nineteen specifically specifically cited supporting examples of behavior, proposing Clark’s termination. termination. (Appendix, Tab 4, p. 1-3; 4, p. 1-3; also at Supp. CR, Vol. I. I. 138-140) 138-140) Clark did not contest the Board’s proposal, and on August 14, AHISD Board acted 14, 2009, the AHISD to to terminate Clark’s employment. (Supp. (Supp. CR, Vol. I. I. 105, 105, 178) 178) 22 SUMMARY OF SUMMARY ARGUMENT THE ARGUMENT OF THE The workplace conduct of this this plaintiff plaintiff exhibited a level level of unprofessionalism that no employer, let let alone a public school employer, should be required to to tolerate. tolerate. Were it it not for the lower court’s failure failure to to follow the precedent 7 8 9 of this this Court, Court,7 the United States Supreme Court, Court,8 and the Supreme Court of Texas, Texas,° this this would be a straightforward case. Had the trial trial court simply tracked the framework established by by these governing courts on how to to determine a plea to the jurisdiction in a discrimination case, jurisdiction case, the uncontroverted facts facts and reasons for the school district’s district’s employment action would have been the trial trial court’s focus and AHISD would not be an appellant. AHISD appellant. The plaintiff plaintiff here asserts claims of gender discrimination and retaliation retaliation TCHRA. Although she now claims that she was “harassed” from the under the TCHRA. 7 Wang v. Wang v. Univ. Univ. of of Texas at Austin, Austin, No. 04-13-00065-CV, 2013 WL WL 5570824, atat *3 (Tex. App.—San Antonio Oct. 9, 9, 2013). This Court recognized, as the lower tribunal failed failed to to do, do, that a plea to that to the jurisdiction jurisdiction challenges the existence of the plaintiff plaintiff’s ’s alleged jurisdictional jurisdictional facts facts and requires the plaintiff plaintiff to to affirmatively affirmatively demonstrate the court's jurisdiction to court's jurisdiction to hear the case, case, citing Mission Consolidated. “When deciding a plea to Consolidated. “When to the jurisdiction,” jurisdiction,” the Court writes, writes, “we review not only the pleadings, ‘but may may consider evidence and must do so when necessary to to resolve the jurisdictional jurisdictional issues raised.’ raised.’ Bland Indep. Indep. Sch. Dist. v. Blue,34 S.W.3d 547
, 555 Sch. Dist. 12. (Tex. 2000).” 8 “ McDonnell Douglas Corp. Corp. v.v. Green, 411411 U.S. 792
(1973) (setting (setting forth the procedure for for assessing a disparate-treatment claim when direct evidence of discrimination is is lacking). lacking). 9 Mission Consol. Indep. Sch. Consol. lndep. Dist. v. Sch. Dist. v. Garcia,372 S.W.3d 629
, 632 (Tex. (Tex. 2012). The framework to to be applied is is set set out in in the opening paragraph of of this this Court’s binding precedent this Court asked, “Can a plaintiff where this plaintiff establish a primafacie prima facie case of of age discrimination when undisputed evidence shows she was replaced by by someone older?” answering, “The specific issue today is is whether, under the Texas Commission on Human Human Rights Act (TCHRA), (TCHRA), such a claimant is is ever entitled to to a presumption of of age discrimination under the McDonnell Douglas burden- shifting framework. We We answer no.” With such pronouncement, Mission became the structure for all TCHRA employment discrimination and pleas to the jurisdiction all TCHRA jurisdiction determinations to follow. 23 start start of her employment in in August 2007, she waited until until the end of of her first first probationary year in May 2008 to in May to bring this this alleged harassment to the attention of her principal, principal, Stephanie Kershner. Once having come forward, she became a prolific prolific grumbler, complaining of over 100 100 instances of purported “incidents” in in the year to to follow, that upon investigation, proved to be mostly imaginary or utterly utterly trivial. trivial. Three of of these over 100 100 complaints involved sexual matters. The rest rest were indicative of plaintiffs plaintiff’s failure failure to to co-exist with her female co-workers, and even though her alleged harassers were women, plaintiff plaintiff claims that all all the conduct she complains of was the result result of gender discrimination, creating a sexually hostile work environment. environment. Because plaintiff plaintiff was unable to establish each of the required elements of a prima prima facie facie sexual harassment-hostile work environment case, case, the lower court erred when it it found jurisdiction jurisdiction for that TCHRA. See that claim under the TCHRA. Mission Consol. Indep. Sch. Corisol. Indep. Dist. v. Sch. Dist. v. Garcia,372 S.W.3d 629
, 635-36 (Tex. 2012). Specifically, Specifically, with respect to plaintiff’s plaintiffs sexual harassment-hostile work environment claim, plaintiff plaintiff was required to to plead and demonstrate that that the behavior of which she complained was both based on her sex, sex, and, that that it it was so severe or pervasive as to to alter alter the conditions of her employment and create an environment. See La Day abusive working environment. Day v. v. Catalyst Tech., Inc.,302 F.3d 474
, Tech, Inc., 478 (5th (5th Cir. Cir. 2002); Shepherd v. v. Comptroller of Public Accounts of 0fPublic State Texas, ofState 24 168168 F.3d 871
, 874 (5th (5th Cir. Cir. 1999). 1999). But, plaintiff neither argued, let let alone demonstrated, either prima facie facie element. See Argument, Part III, III, B. and C. Nor did plaintiff plaintiff even attempt to show that AHISD was negligent in controlling that AHISD working conditions, another prima facie facie element. Rather, the uncontroverted evidence at at the jurisdictional jurisdictional hearing on appeal conclusively established that AHISD had met its AHISD its requirements for defending sexual harassment claims, having promulgated appropriate anti-harassment policies, policies, and when plaintiff plaintiff finally finally reported alleged harassing conduct after AHISD followed its after several months, AHISD its policies to to immediately investigate plaintiffs plaintiff’s claims, issue a report and take prompt remedial actions. See Argument, Part III, III, D. and E. In spite spite of the overwhelming evidence to the contrary, plaintiff also claims contrary, plaintiff that she was terminated in retaliation retaliation for having engaged in in a protected activity. activity. However, instead of sweeping plaintiff’s plaintiff’ s complaints under the rug or punishing her, AHISD welcomed, and on several occasions literally her, AHISD literally begged plaintiff plaintiff to to bring her complaints in a timely manner under proscribed policies and procedures. And, notwithstanding plaintiff’s plaintiff” s circumvention of those processes, each and every one of her allegations was fully fully investigated, no matter how trivial trivial they appeared to be. (Supp. CR, Vol. I. 185-187) Vol.1. 185-187) Plaintiff’s Plaintiffs eventual termination from employment was based on numerous, significant, significant, legitimate, non-retaliatory reasons, and her termination was proposed 25 only after AHISD had exhausted every effort after AHISD effort to improve and remediate a myriad of well-documented performance deficiencies. deficiencies. (Appendix, Tab 4, 4, pp. 1-3, 1-3, also at Supp. CR, Vol. I. I. 138-140) Among the multiple reasons for her termination was 138-140) Among plaintiff’s plaintiff’ s failure failure to to perform local, local, state state and federally required teaching responsibilities, responsibilities, to to follow clear and repeated administrative directives, directives, for her having lodged unsupported and salacious comments about and descriptions of co- workers to to other teachers and students, accusing those co-workers of criminal conduct and ribald and indiscriminate sexual conduct, and describing them as homosexuals, and for her having provided a knowingly false false statement to to protect her own interests interests in an investigation into potential potential state state standardized student testing procedures.Id. Id. Plaintiff
has no evidence that that any of these documented reasons proffered for her termination were a pretext for retaliation. retaliation. Rather, the evidence at at the jurisdictional jurisdictional hearing under review clearly clearly demonstrated that that plaintiff plaintiff was terminated solely solely due to to the reasons offered to AHISD Board of to the AHISD Trustees that issued the termination notice. notice. As such, the trial trial court again erred by by not dismissing plaintiffs TCHRA retaliation plaintiff’s TCHRA retaliation claim because plaintiff plaintiff could not, not, and did not establish the primafacie prima facie elements for a retaliation retaliation claim, most notably, she prima facie element — was missing the third required primafacie – causation. Pursuant to the Texas Supreme Court’s holding in in Mission Consolidated Independent School District District v. v. Garcia,372 S.W.3d 629
(Tex. 2012), plaintiff’s plaintiff’ s 26 inability to establish the necessary elements of her prima inability to prima facie facie case should have meant that that AHISD’s governmental immunity was not waived for either of her claims. claims. Accordingly, the trial trial court erred when it it denied AHISD’s Plea to to the Jurisdiction, Jurisdiction, and as will be clearly clearly demonstrated below, this this Court must reverse the trial trial court’s order and dismiss plaintiff’s claims for want of of subject matter jurisdiction. jurisdiction. 27 ARGUMENT ARGUMENT I. I. THE T STANDARD OF HE STANDARD REVIEW FOR OF REVIEW FOR JURISDICTIONAL CHALLENGES TO JURISDICTIONAL CHALLENGES TCHRA TO TCHRA CLAIMS BASED CLAIMS BASED ON GOVERNMENTAL IMMUNITY ON GOVERNMENTAL IMMUNITY MIRRORS THAT OF MIRRORS THAT A OF A TRADITIONAL SUMMARY JUDGMENT TRADITIONAL SUMMARY JUDGMENT MOTION AND REQUIRES MOTION,, AND REQUIRES DISMISSAL DISMISSAL THE PLAINTIFF UNLESS THE UNLESS THE PRIMA ESTABLISHES THE PLAINTIFF ESTABLISHES ELEMENTS OF FACIE ELEMENTS PRIMA FACIE HER OF HER CLAIMS.. CLAIMS A. Mission Consolidated, the First Controlling Case Disregarded by by the Trial Court. Deciding a plea to to the jurisdiction jurisdiction in an employment discrimination or retaliation retaliation case brought against any state state agency that has governmental immunity, such as this this public school district, district, requires the application of two convergent principles of principles jurisprudence; in of jurisprudence; in the first, first, the Texas rules on how to to judge a jurisdictional plea under the jurisdictional TCHRA are grounded in Mission Consolidated, both TCHRA its its ancestry and its its progeny (see (see Mission Consolidated,372 S.W.3d 629
, 635-36 set of canons are the McDonnell Douglas federal (Tex. 2012); the second set guidelines established by by the United States Supreme Court, guiding both federal and state state courts in in the resolution of employment discrimination and retaliation retaliation 10 claims. claims. See McDonnell Douglas Corp. Corp. v. v. Green, 411411 U.S. 792
(1973). (1973).1° 10 10 TCHRA was enacted with the express purpose of providing for the execution of The TCHRA of the policies of Title policies Title VII of of the Civil Rights Act of of 1964 1964 and its its subsequent amendments. See Tex. Lab. Code §§ 21.001(1). 2l.00l(l). The Texas Supreme Court has observed thatthat the purpose behind the TCHRA isis “to correlate state TCHRA state law with federal law in in employment discrimination cases.” Autozone, Inc. Autozone, Inc. v. v. Reyes,272 S.W.3d 588
, 592 (Tex. (Tex. 2008) (citing (citing Ysleta Indep. Sch. Ysleta Indep. Dist. v. Sch. Dist. v. Monarrez, 177177 S.W.3d 915
, 917 (Tex. TCHRA seeks to (Tex. 2005). Because the TCHRA to promote federal civil civil rights policy, policy, courts look to federal law for guidance when the provisions of the TCHRATCHRA and Title WewA&M Title VII are analogous. See Prairie View A&M Univ. Univ. v. v. Chatha, 381381 S.W.3d 500
(Tex. (Tex. 2012). 28 Unless a public school district’s district’s governmental immunity has been clearly clearly and unambiguously waived by by statute, statute, its its immunity deprives a trial trial court of subject matter jurisdiction jurisdiction over claims filed filed against the district, district, and an assertion of immunity is is an appropriate grounds for filing filing a plea to to the jurisdiction. jurisdiction. See State v. v. When a lawsuit is Lueck,290 S.W.3d 876
, 880 (Tex. 2009). When is barred by by governmental immunity, “dismissal with prejudice for want of jurisdiction jurisdiction is is ofHouston proper.” See City of Houston v. v. Rushing,7 S.W.3d 909
, 914 (Tex. App.—Houston [1st [lst Dist.] Dist.] 1999, 1999, pet. pet. denied). To preserve this this immunity, a governmental defendant challenges the trial trial court’s right to hear a case by by filing filing a plea to the jurisdiction jurisdiction on any ground for which it it claims the trial trial court lacks subject matter jurisdiction. Tex. Dep’t of jurisdiction. See Tex. of & Wildlife Parks & Wildlife v. v. Miranda, 133 225-26 (Tex. 2004); Dallas Area133 S.W.3d 217
, 225–26 Rapid Transit Transit v. v. Carr,309 S.W.3d 174
, 174, 176 App.—Da1las 2010, pet. 176 (Tex. App.—Dallas pet. denied). The trial trial court must then determine “at its its earliest earliest opportunity whether it it has the constitutional or statutory authority to to decide the case.” Miranda, 133 133 S.W.3d at at 226. To make this this determination, the court must “consider the plaintiff’s plaintiffs pleadings and any any evidence necessary to resolve the issue of of jurisdiction.” See County of of Cameron v. v. Brown,80 S.W.3d 549
, 555 (Tex. 2002); see also Bland Indep. Indep. Sch. Dist. v. Sch. Dist. We v. Blue,34 S.W.3d 547
, 555 (Tex. 2000). We emphasize the phrase “any evidence.” 29 Once a defendant files files a plea to the jurisdiction, jurisdiction, it it becomes incumbent upon the plaintiff plaintiff to allege sufficient facts facts to to affirmatively show that the trial trial court has subject matter jurisdiction. jurisdiction. See City of of Elsa v. v. Gonzales,325 S.W.3d 622
, 625 (Tex. 2010); see also Tex. Ass’n Tex. Ass ’n of Bus. v. ofBus. v. Tex. Tex. Air Control Bd., Bd.,852 S.W.2d 440
, 446 (Tex. 1993). 1993). It AHISD to It was not up to AHISD to show a lack of jurisdiction, jurisdiction, but was rather the burden of the plaintiff plaintiff to to raise raise a fact fact question on each of of the jurisdictional elements of her claims (see jurisdictional (see Mission Consol., 372 S.W.3d at at 635). Because the plaintiff plaintiff here failed to to meet her burden, the trial trial court was duty-bound to to dismiss her claims for lack of subject matter jurisdiction. jurisdiction.Id. Id. With
this this in mind, we turn our attention to the seminal case of Mission Consolidated, which, while disregarded by by the lower court, court, directs the outcome of this TCHRA claim waives this appeal. The Mission Court held that a TCHRA governmental immunity only where a plaintiff plaintiff “actually alleges a violation of of the TCHRA by TCHRA pleading facts by pleading facts that state state a claim thereunder.” Mission Consol., 372 S.W.3d at at 635-36 (emphasis added). Thus, a conclusory allegation in a TCHRA petition, TCHRA petition, such as a statement that a school district’s district’s conduct violated the TCHRA, is TCHRA, is wholly insufficient to raise raise a fact fact question on the jurisdictional elements such claim as to implicate the statute’s statute’s waiver of immunity. immunity. See Lueck, 290 S.W.3d at at 884. Rather, a plaintiff’s plaintiff’ s ability ability to establish each of the elements of a prima facie TCHRA case “by pleading facie TCHRA pleading facts facts that state state a claim thereunder” is is 30 fundamental to to a showing that the trial trial court has subject matter jurisdiction. jurisdiction. Mission Consol., C0ns0l., 372 S.W.3d at at 636. Because the elements required to to establish liability TCHRA are liability under the TCHRA also the elements required to to invoke the statute’s waiver of immunity and establish the court’s subject matter jurisdiction, jurisdiction, the trial TCHRA trial court considering TCHRA jurisdiction jurisdiction must “consider evidence as necessary to to resolve any dispute over those facts, facts, even if if that evidence implicates both the subject matter jurisdiction jurisdiction of of the court and the merits of the case.”Id. Id. at
at 635 (internal (internal quotations omitted). Thus, when as here, here, a governmental entity entity defendant challenges the trial trial court’s subject matter jurisdiction TCHRA claims brought against it, jurisdiction over TCHRA it, “the trial trial court’s review of a plea to to the jurisdiction summary judgment jurisdiction mirrors that of a traditional summary motion.”Id. On appeal
of the trialId. (emphasis added).
On trial court’s failure failure to to grant AHISD’s Plea to to the Jurisdiction, Jurisdiction, the Court must conduct this this same analysis under a de novo standard of review. See City of El Paso v. ofEl v. Heinrich,284 S.W.3d 366
, 378 (Tex. 2009). B. McDonnell Douglas is is the Second Source of Analysis Disregarded by by the Trial Judge. Had the trial trial judge adhered to to her obligation under Mission Consolidated, Bland Indep. Indep. Sch. Dist. v. Sch. Dist. Wang v. v. Blue,34 S.W.3d 547
(Tex. 2000) and Wang v. Univ. Univ. of of WL 5570824 (Tex. App.— Texas at Austin, No. 04-13-00065-CV, 2013 WL App.— San Antonio Oct. 9, 9, 2013, no pet.), pet.), she would have dissected the facts facts to to analyze 31 31 plaintiff’s claims under the burden-shifting analytical edifice plaintiffs edifice established in McDonnell Douglas Corp. Corp. v. v. Green, Green, 411411 U.S. 792
(1973). AHISD (1973). Thus, once AHISD offered legitimate, nondiscriminatory reasons for its its action, action, (as (as it it did in in its its submissions and exhibits offered to to the trial trial court) court) any presumption of discrimination that had been established by plaintiffs prima facie by plaintiff’s facie case— that she had even constructed a prima presuming that prima facie facie case, case, which as shown infra, infra, she had not—dissolved and plaintiff’s plaintiffs burden of persuasion once again arose, arose, requiring plaintiff plaintiff to produce sufficient sufficient evidence to to raise a fact fact issue that defendant’s proffered reasons were mere pretext, pretext, and that the real real reason for for her termination was based on an impermissible retaliatory retaliatory motive. See Washington Washington v. v. Chem. Corp., Occidental Chem. Corp, 24 F. F. Supp. 2d 713, 721 721 (S.D. Tex. 1998). 1998). Thus, there are two independent reasons as as to why AHISD’s Plea to to why to the Jurisdiction should have been granted by by the lower court, why this court, and why this Court must reverse: First, First, plaintiff plaintiff fails to make even a prima facie fails to facie case of retaliation by retaliation by showing that: that: (1) (1) she engaged in in a protected activity, activity, (2) AHISD took an adverse (2) AHISD employment action against her, her, and (3) (3) a causal connection exists between the activity and the adverse employment action. See Ptomey v. protected activity v. Texas Tech Univ., pet. denied). AHISD Univ.,277 S.W.3d 487
, 495 (Tex. App.—Amarillo 2009, pet. AHISD concedes that plaintiff plaintiff engaged in a protected activity activity when she filed filed her Charge 32 EEOC on October 7, with the EEOC AHISD also concedes that 7, 2008. AHISD that plaintiff plaintiff suffered an adverse employment action when the Board of Trustees voted to to terminate her employment. However, plaintiff plaintiff did not, not, because she cannot establish beyond mere allegation that a causal connection existed between the two. plaintiff had pled a marginal prima Second, even assuming arguendo that plaintiff facie case, facie case, defendant articulated multiple legitimate reasons for its its actions and plaintiff did not rebut a single plaintiff one nor did plaintiff plaintiff even attempt to to demonstrate that the reasons given by AHISD for its by AHISD its actions were a pretext for discrimination. We now address these failures We failures in in reverse order, order, confronting first first plaintiff’s plaintiffs failures failures to to rebut the reasons for her termination to to show them to to be pretext. C. The McDonnell Douglas Burden-Shifting Framework Requires a Showing of Pretext and Must be Considered a Part of the Jurisdictional Analysis Under Mission Consolidated. Under Mission Consolidated, Consolidated, this this Court must review the sufficiency of plaintiff’s plaintiffs claims as it it would a traditional summary judgment. traditional motion for summary judgment. See Mission Consol., 372 S.W.3d at We initially at 635. We initially examine plaintiff’ plaintiff’ss retaliation retaliation claim. Since plaintiff plaintiff brings this this claim as mere conclusion, absent any direct of causation, she proceeds under the familiar McDonnell Douglas evidence of burden-shifting framework, for analyzing discrimination and retaliation retaliation claims at at the summary judgment stage when a plaintiff plaintiff lacks direct direct evidence of causation. See McDonnell Douglas Corp. Corp. v. v. Green, 411411 U.S. 792
(1973). (1973). Despite the lack of 33 direct evidence of retaliation, retaliation, a plaintiff plaintiff bringing a retaliation retaliation claim under Title Title VII TCHRA may or the TCHRA may proceed under the McDonnell Douglas burden-shifting analysis as a substitute method of proof, relying initially initially on a rebuttable presumption of of retaliation retaliation that that vanishes when the defendant articulates articulates a legitimate, non-retaliatory rationale for its its employment action. action. See Quantum Chem. Chem. Corp. Corp. v. v. Toennies,47 S.W.3d 473
, 477 (Tex. 2001) (citing Tex. Dep’t of (citing Tex. of Cmty. Affairs v. Cmty. Affairs v. Burdine,450 U.S. 248
, 254-56 (1981)) (1981)) (explaining that the employer’s provision of a legitimate reason eliminates the presumption initially initially relied on by by the plaintiff). plaintiff). Once an employer makes this this showing, the plaintiff plaintiff can no longer rely rely on this this presumption, presumption, and in order to to avoid dismissal, must produce sufficient circumstantial evidence of of pretext to to create a fact fact question on each of the employer’s legitimate, non-retaliatory reasons.Id. Id. Therefore,
the rebuttable presumption alone is is insufficient to to carry a plaintiff’s burden of establishing the jurisdictional elements of a retaliation jurisdictional retaliation claim under the TCHRA, otherwise a TCHRA, plaintiff would plaintiff be able to to continue to rely rely solely solely on this this presumption, even after after it it has vanished, to to establish the court’s subject matter jurisdiction. jurisdiction. This is is the logical extension of the Texas Supreme Court’s rationale in in Mission Consolidated, and it it compels the trial trial court and this this Court to to consider the entire burden-shifting framework, including pretext, pretext, in in its jurisdictional analysis. its jurisdictional analysis. 34 Yet, the trial trial court failed to to conduct this this complete pretext analysis, analysis, obviously disregarding precedent from this this Court and the First First Court of Appeals, analyzing retaliation retaliation claims since Mission Consolidated. See Tex. SOAH v. Tex. SOAH v. Birch, No. 04-12- WL 3874473 atat *19 00681-CV, 2013 WL *l9 (Tex. App.—San Antonio July 24, 2013, pet. pet. denied) (holding that trial trial court lacked subject matter jurisdiction jurisdiction over retaliation retaliation claim because plaintiff plaintiff could not rebut employer’s legitimate, legitimate, non-retaliatory reasons for termination); see also Univ. Univ. of Tex. MD. of Tex. M.D. Anderson Cancer Ctr. Ctr. v. v. Valdizan-Garcia, WL 5545783 atat *7-8 (Tex. App.— Valdizan-Garcia, No. 01-12-00386-CV, 2012 WL App.— Houston [1st Dist.] November 15, [lst Dist.] 15, 2012, no pet.) pet.) (addressing causation in in a retaliation retaliation claim by by analyzing pretext evidence as jurisdictional). jurisdictional). Moreover, applying the burden-shifting framework, including the showing of pretext, pretext, as part part of the jurisdictional jurisdictional analysis under Mission Consolidated does not impose a significant significant burden on a plaintiff. plaintiff. To avoid dismissal under the same analysis that would be used in a traditional motion for summary judgment, a plaintiff need only to plaintiff to proffer competent summary judgment evidence that if if viewed favorably for the plaintiff plaintiff would produce a genuine issue of material fact. fact. See Tex. R. Civ. P. P. 166a(b) l66a(b) and Mission Consol., 372 S.W.3d at at 635-36. 35 AHISD Had D. AHISD Had Multiple Legitimate, Non-Retaliatory Reasons for Made With Respect to Termination, as well as Every Other Decision Made Plaintiff’s Plaintiffs Employment. AHISD’s burden to to articulate articulate such reasons is is “only one of production, not persuasion, and involves no credibility persuasion, credibility assessment.” See McCoy McCoy v City of of Shreveport,492 F.3d 551
, 557 (5th (5th Cir. AHISD clearly Cir. 2007). Here, AHISD clearly met its its burden. AHISD’s reasons for proposing plaintiffs plaintiff’s termination were not about her internal reports to to Kershner or her filing EEOC, but were rather filing a Charge with the EEOC, based on the eleven (11) (11) independent performance deficiencies deficiencies supported by by nineteen (19) (19) described examples of conduct that were identified identified in in the Notice of Proposed Termination. Termination. (Supp. CR, CR, Vol. I. I. 103-105; 103-105; see also Appendix, Tab 4, 4, pp. 1-3, 1-3, AHISD’s Notice of Proposed Termination) Except for plaintiff’s plaintiffs weak attempts through bare argument and conclusory allegations (discussed below), it it remains undisputed that that these stated reasons and identified identified descriptions of of plaintiff’s plaintiffs multiple and significant significant performance deficiencies deficiencies constituted legitimate, non-retaliatory reasons for her termination. AHISD has also articulated legitimate, non- Additionally, we point out that AHISD retaliatory retaliatory reasons for each of of its its prior actions and decisions made with respect to to plaintiff’s plaintiffs employment. (Appendix, Tab 3, 3, pp. 6-8; also at Supp. CR, Vol. I. I. 134- 134- 136, 136, 190-192) AHISD demonstrated that itit took every conceivable action to 190-192) AHISD remediate plaintiff’s plaintiffs substandard performance and unprofessional conduct, further 36 supporting its its legitimate, non-retaliatory reasons for each of of the professional development assignments, assignments, performance evaluations, reprimands, and other employment actions, actions, each of which was thoroughly and exhaustively detailed in writings to plaintiff. plaintiff. (Supp. CR, Vol. I. 1. 191, AHISD 191, 391-416) As such, AHISD demonstrated that it it had considered and articulated legitimate, non-retaliatory reasons for every action taken with respect to to plaintiff’s plaintiffs employment, even with regard to to employment decisions that would not constitute adverse employment actions11 TCHRA. Id, actions“ under the TCHRA.Id. Other than
her base contentions that she was the victim of retaliation, plaintiff can produce no competent summary judgment retaliation, plaintiff evidence that any of these actions, actions, and particularly the decision to to terminate her employment, were not fully justified by fully justified by the circumstances, much less less that they were retaliatory retaliatory in in nature. See Little Little v. v. Liquid Air Corp., Corp,37 F.3d 1069
, 1069, 1075 1075 (5th (5th Cir. Cir. 1994) 1994) (holding that unsubstantiated assertions and conclusory allegations are not competent summary judgment evidence). evidence). 11 I I TCHRA’s anti-retaliation provision only protects materially adverse employment The TCHRA’s decisions that that “would dissuade a reasonable worker from making or supporting a charge of discrimination.” See Montgomery Cty. Cty. v.v. Park,246 S.W.3d 610
, 612 (Tex. (Tex. 2007) citing citing Burlington Northern and Santa Fe Ry. Burlington Ry. Co. Co. v.v. White, US. 53, White,548 U.S. 53
, 57 (2006). (2006). Although Plaintiff Plaintiff points toto the “bullying” and “ostracism” visited upon her by by her co-workers, they were not materially adverse employment actions under the TCHRA. TCHRA. See Muniz v. v. El Paso Marriott,773 F. Supp. 2d 674
, 682 (W.D. Tex. 2011), affirmed affirmed 477 Fed. Appx. 189 189 (5th (5th Cir. May 14, Cir. May 14, 2012) (citing (citing Stewart v. v. Mississippi Transp. Comm586 F.3d 321
, 332 (5th Transp. Comm’n, ’n, (5th Cir. Cir. 2009)). 2009)). Similarly, Similarly, Plaintiff’s Plaintiff ’s claim that that she was placed under increased scrutiny by by Kershner, even if if true, true, was not an adverse employment action.action. Seeid. id. (citing
(citing Grice v. v. FMC FMC Techs. Inc., 216 Fed Appx. 401, 404 Techs. Ine., (5th (5th Cir. Cir. 2007) (holding that an adverse employment action had not occurred where the employer (1) (1) watched the plaintiff plaintiff closely, closely, (2) (2) accused the plaintiff plaintiff of of forgery, forgery, and (3) (3) falsified falsified an incident report to to place blame on the plaintiff)). plaintiff)). 37 II. II. PLAINTIFF P LAINTIFF CANNOT SHOW PRETEXT CANNOT SHOW PRETEXT BECAUSE HER ALLEGATIONS BECAUSE HER ARE ALLEGATIONS ARE BASED SOLELY BASED ON SPECULATION SOLELY ON SPECULATION.. Plaintiff must either demonstrate that all all eleven reasons and nineteen examples are mere pretext for retaliation retaliation or her claim must be dismissed as as a matter of law. See Ellerbrook v. v. City of of Lubbock, 465 Fed. Appx. 324, 330 (5th Cir. 2012); see also McCoy, (5th Cir. McCoy, 492 F.3d at at 557. To establish pretext, pretext, a plaintiff plaintiff must show that the defendant’s explanation for the employment action is is false, false, and that real reason. See Ptomey v. that discrimination was the real v. Tex. Tex. Tech Univ., Univ.,277 S.W.3d 487
, 493 (Tex. App.—Amarillo 2009, pet. Wal—Mart Stores, pet. denied); see also Wal-Mart Inc. Stores, Inc. v. v. Canchola, 121121 S.W.3d 735
, 740 (Tex. 2003) (an employee’s proof that the investigation leading to to her termination was imperfect, incomplete, and arrived at at an incorrect conclusion is is insufficient insufficient to to prove pretext). pretext). Such a showing can only be accomplished by AHISD would not have taken its by evidence that AHISD its adverse employment action ‘but for’ plaintiff’s plaintiffs protected activity. activity. See Univ. Univ. of of Texas Sw. Sw. 12 Med. Med. Ctr. Ctr. v. v. Nassar, 133133 S. Ct. 2517
, 2533 (2013). (20l3).12 Plaintiff offers no such evidence. (Supp. CR, CR, Vol. II. II. 68-80, Plaintiff’s Plaintiff’ s Deposition) 12 ‘2 “[E]ven if if a plaintiff plaintiff’s ’s protected conduct isis a substantial element inin a defendant’s decision to to terminate an employee, no liability liability for unlawful retaliation retaliation arises arises if if the employee would have been terminated even in in the absence of of the protected conduct.” See Long v. Eastfield College, v. Eas;‘field88 F.3d 300
, 305 n. n. 4 (5th (5th Cir. Cir. 1996). 1996). 38 A. The Doctrine of Collateral Estoppel Bars Plaintiff from Re-Litigating the Board’s Reasons for Acting on Her Termination. The Texas Education Code establishes a robust framework that provided plaintiff with ample opportunity to to litigate litigate the Board’s proposed termination of her contract. (Appendix, Tab 4, 4, pp. 1-3. 1-3. Notice of of Proposed Termination) Termination) Had plaintiff plaintiff merely challenged this this action, action, she would have been provided a full full evidentiary hearing before an independent hearing examiner where plaintiff may have plaintiff may presented her case that the reasons offered in in support of the proposed termination 13 were retaliatory. retaliatory.” See Tex. Educ. Code § § 21.159(b). 2l.l59(b). But, plaintiff plaintiff did not challenge her proposed termination or the purported “good cause” reasons supporting it. it. (Supp. CR, Vol. I. I. 105; 105; Supp. CR, Vol. II II 80) As such, the only evidence before the Board in in its its determination of “good cause” were the reasons given to plaintiff supporting the administration’s recommendation to to plaintiff to terminate. terminate. (Supp. CR, Vol. I. 1. 103-15) 103-15) The Board’s findings findings that that the proffered reasons constituted “good cause” resulted from plaintiffs plaintiff’s failure failure to to challenge the proposed termination through the process established by by the Texas Education Code, and she is is barred by by the doctrine of collateral collateral estoppel from re-litigating those reasons in in a TCHRA. See Nairn v. lawsuit brought under the TCHRA. Indep. Sch. v. Killeen Indep. Dist., Sch. Dist.,366 S.W.3d 229
, 246-47 (Tex. App.—El Paso 2012, no pet.) pet.) (affirming summary 13 “‘ Under Chapter 21 21 of of the Texas Education Code, plaintiff plaintiff would have further been entitled entitled to to appeal the Board’s determination of of good cause to to the Commissioner of Education. See Tex. Educ. Code §§ 21.301 21.301 et seq. et seq. 39 judgment on sexual harassment and retaliation TCHRA because retaliation claims under the TCHRA the factual determinations reached in in support of of teacher’s termination under the Education Code had preclusive effect). effect). Plaintiff also gave deposition testimony that she has no evidence that any Board member acted in in retaliation retaliation when the members voted unanimously to terminate her employment. employment. (Supp. CR, Vol. II. II. 68- 80) Plaintiff Plaintiff cannot and did not show to to the trial trial court that that the Board’s decision to to terminate her employment was pretext for retaliation, retaliation, or that that it it was based on any reason other than her failure failure to to request a hearing to to challenge the proposed action. B. Plaintiff Cannot Rely on Subjective Beliefs or Conclusory Allegations to Demonstrate Pretext. Even were plaintiff plaintiff not barred from challenging the reasons supporting the Board’s action by by the doctrine of collateral collateral estoppel, plaintiff’ plaintiff’ss claim fails fails because she cannot show that that any of the reasons offered for her termination were pretextual. This is pretextual. is because plaintiff plaintiff has no evidence of retaliation, retaliation, offering only her unsubstantiated and subjective belief belief in in its place. (Supp. its place. (Supp. CR, Vol. II. II. 68-80) These unsubstantiated assertions and subjective beliefs beliefs are not sufficient sufficient to to prove pretext or to to meet a plaintiffs facie burden under the McDonnell Douglas plaintiff’s prima facie framework. See Liquid Air Corp., Corp, 37 F.3d at at 1075; 1075; see also Hornsby v. v. Conoco, Conoco, Inc., Inc.,777 F.2d 243
, 246 (5th (5th Cir. Cir. 1985) 1985) (holding that that an employee’s subjective beliefs about the reasons for her termination are not sufficient to provide judicial relief relief when the employer has presented legitimate, legitimate, non-retaliatory reasons for its its 40 adverse employment action); E.E.O.C. action); E.E. v. Exxon Shipping Co., 0. C. v. C0,,745 F.2d 967
, 976 (5th (5th Cir. Cir. 1984) 1984) (holding that that pretext cannot be supported by by conclusory statements). As plaintiff plaintiff clearly clearly reveals in her deposition testimony she has no evidence, outside of her unsupported belief, belief, of any retaliatory retaliatory motive held by by AHISD Board of Trustees–those Kershner, Bashara, Brown, or any member of the AHISD Trustees—those who had decided the fate fate of her employment. employment. (Supp. CR, CR, Vol. II. II. 68-80) AHISD has remained consistent and has never offered shifting or Further, AHISD inconsistent reasons for its its actions toward plaintiff, plaintiff, who argues only that she was the victim of retaliation, retaliation, but cannot show that any any of the reasons proffered for her termination were false AHISD failed to follow its false or not credible, or that AHISD its usual policies and procedures in in carrying out this this adverse employment action. action. See Green v. Lowe v. ’s Home Ctrs., Inc., 199 Lowe’s Ctrs., Inc.,199 S.W.3d 514
, 519 (Tex. App.—Houston [1st [lst Dist.] Dist.] 2006, pet. pet. denied) (discussing factors in context of of termination of of employment). C. Plaintiff Cannot Rely on the Alleged Unreasonableness of the Board’s Determination to Show Pretext for Retaliation. In her deposition, plaintiff plaintiff testified testified that that the only “evidence” she has that AHISD retaliated against her is AHISD is the inference drawn from her averment averrnent that that she never engaged in AHISD cited to support its in the conduct that AHISD its termination decision. (Supp. CR, CR, Vol. II. II. 68-70) While plaintiff plaintiff denies that that she actually engaged in in the terminable conduct cited by by the Board (Supp. (Supp. CR, Vol. II. II. 86), 86), whether or not those allegations are true is is of of no legal consequence; consequence; rather, rather, the appropriate inquiry 41 41 for a McDonnell Douglas analysis and the review of of AHISD’s jurisdictional jurisdictional AHISD reasonably believed that plaintiff challenge was whether AHISD plaintiff had engaged in in such conduct. conduct. See Nasti v. v. CIBA Specialty Chem. Corp.,492 F.3d 589
, 595 Specially Chem. (5th (5th Cir. Cir. 2007) (holding that no genuine issue of material fact fact existed where an employer’s stated reason for termination was its its reasonable belief belief that the aggrieved employee submitted a false false report to to the employer). employer). The evidence conclusively demonstrates that the Board’s belief belief was genuine. genuine. (Supp. CR, Vol. I. I. 103-106) 103-106) At the time of its its decision, Superintendent Brown had presented the AHISD Administration’s conclusions regarding the need to Board with the AHISD to terminate plaintiff’s plaintiffs employment, which were supported by by specific examples of alleged conduct and a voluminous investigatory record developed by by Stephanie Kershner and Dana Bashara. (Appendix, Tab 3, 3, pp. 6-8, Kershner’s Letter to to Superintendent Brown) Plaintiff did not challenge the proposed termination, nor did she dispute any of of the specific allegations of conduct attributed to to her. CR, Vol. I. her. (Supp. CR, I. 105) AHISD Board of Trustees’ 105) Thus, the AHISD conclusion that good cause existed for her termination, based on the Administration’s Administration’s uncontroverted version of events regarding plaintiff’s plaintiffs conduct, was entirely entirely reasonable. Id.; Id.; see also Anderson v. Tupelo Regional Airport Auth., v. Tupelo Auth., No. 13–60666, WL 13-60666,2014 WL 1929866
at *5 (5th 1929866 at (5th Cir. May 15, Cir. May 2014). 15,2014). 42 Moreover, plaintiff’s AHISD had plaintiffs unsupported testimony or assertion that AHISD acted unreasonably in in terminating her employment, cannot, by by itself, itself, meet her burden to to show pretext, pretext, as a demonstration of of unreasonableness must be accompanied by by further demonstration of of discriminatory or retaliatory retaliatory animus. See Crutcher v. Indep. Sch. v. Dallas Indep. App.— Dist.,410 S.W.3d 487
, 497 (Tex. App.— Sch. Dist, Dallas 2013, no pet.) pet.) (“The issue at at the pretext stage is is not whether the employer made an erroneous decision; it it is is whether the decision, even if if incorrect, incorrect, was the real real reason for the employment determination. The employer is is entitled to to be unreasonable so long as it it does not act animus”) (citing act with discriminatory animus.”) (citing Sandstad Scmdstad v. CB Richard Ellis, v. CB Ellis, Inc., Inc.,309 F.3d 893
, 899 (5th (5th Cir. Cir. 2002); see also Mayberry v. v. Vought Vought Aircraft Co., Co.,55 F.3d 1086
, 1086, 1091 l09l (5th (5th Cir. Cir. 1995)). 1995)). Plaintiff has not offered any evidence of discriminatory or retaliatory retaliatory animus motivating the decision to to terminate her employment, and she cannot show that that the Board’s stated reasons were pretext. (Supp. CR, Vol. II. II. 74-80) Additionally, Kershner’s negative assessment of plaintiff’s plaintiffs credibility may credibility may serve as the basis of its its legitimate, non-retaliatory reason, even though plaintiff plaintiff complains that such reason is AHISD has offered is a subjective opinion, because AHISD evidence demonstrating how Kershner arrived at at this this determination, namely, plaintiff’s plaintiffs misrepresentations of of Boyer’s conduct at at the meeting attended by by Kershner, and plaintiff’s TAKS cell plaintiffs untruthful written statement given during the TAKS cell 43 phone incident. See Appendix Tab 5, 5, pp. 4-5, Martinez v. v. Texas Workforce Workforce Comm ’n —– Civil Rights. Comm’n Div., No 14-50391 Rights. Div., 14-50391 (5th (5th Cir. Cir. Dec. 30, 30, 2014) (per (per curiam) may serve as the basis for a legitimate (holding that employer’s subjective opinions may reason supporting an employment action, action, and that such subjectivity is is not evidence of pretext). pretext). Show Pretext. D. Plaintiff Cannot Rely on Temporal Proximity to Show Temporal proximity can only be considered as evidence of causation if if the timing between the two events is is very close, close, and even then, then, the Fifth Circuit has held such consideration cannot stand alone as determinative of retaliation. retaliation. See DeHart v. v. Baker Hughes Oilfield Oilfield Operations, App’x 437, 442 Inc., 214 Fed. App’x Operations, Inc., (5th (5th Cir. Cir. 2007) (Close temporal proximity “is not itself itself determinative of retaliation.”); retaliation”); see also Swanson v. v. Gen. Servs. Admin, Gen. Servs. Admin., 110110 F.3d 1180
, 1180, 1188 1188 n. n. 3 (5th (5th Cir. Cir. 1997) 1997) (“the mere fact fact that that some adverse action is is taken after after […] [...] some activity will not always be enough for a prima facie protected activity facie case.”). case”). In the present case, case, plaintiff’s plaintiffs reliance on temporal proximity is is inappropriate because the time period between plaintiff's EEOC Charge and her termination was seven plaintiff’s EEOC months, a larger gap than any previously recognized as circumstantial evidence of retaliation retaliation by Circuit. See Evans v. by the Fifth Circuit. v. City of of Houston,246 F.3d 344
, 354 (5th (5th Cir. may establish a causal Cir. 2001) (noting up to a four month time lapse may connection). connection). Moreover, in Swanson, the Fifth Circuit reasoned that that temporal 44 proximity is is a particularly poor indicator of retaliation retaliation when, as as is is the case here, here, the plaintiff plaintiff made several complaints over an extended period of of time while also suffering from numerous performance deficiencies deficiencies over that that same time period. period. See Swanson, 110 110 F.3d at at 1188 1188 n.3. n.3. The Fifth Circuit also noted the undesirable result result if if temporal proximity to to anything that happened in a prior extended time period could support a link between that that prior event and the adverse employment action. action.Id. Id. Finally,
Finally, although plaintiff plaintiff argues that she was given a TINA/growth plan in EEOC Charge, such isis not indicative of a retaliatory the days following her EEOC retaliatory motive AHISD had identified because AHISD identified and been working to correct each of the performance deficiencies deficiencies identified identified in in her growth plan. (Supp. CR, Vol. I. I. 184-185, 184-185, TINA was not a reaction to 227-228) Thus, the TINA EEOC Charge, but the plaintiff’ss EEOC to plaintiff’ natural consequence of plaintiff’s plaintiff’ s failure failure to to conduct herself as Kershner had previously directed. (Supp. (Supp. CR, Vol. Vol. I. I. 229-231) The United States Supreme Court held in in Clark County School District District v. v. Breeden,532 U.S. 268
(2001) that an employer’s knowledge of an employee’s intervening protected activity activity will not require the employer to to suspend a previously considered, but as yet yet untaken 14 employment action.Id. at action.” Id. at 272.
14 1‘ Plaintiff’s EEOC filing Plaintiff ’s report and subsequent EEOC in the way filing cannot stand in way of AHISD ’s legitimate of AHISD’s employment. See DeHart v. business decisions concerning her employment. v. Baker Hughes Oilfield Oilfield Operations, Inc., 214 Fed. Operations, Inc., App’x 437, 442-44 (5th (5th Cir. Cir. 2007). The mere fact fact that plaintiff that plaintiff 45 E. Plaintiff Cannot Show Pretext Through Disparate Treatment Because There is No Similarly Situated Comparator. is No plaintiff demonstrate that the reasons AHISD Nor did plaintiff AHISD proffered for her termination were pretext through a showing that she was treated more harshly than other similarly situated employees. employees. In order to to establish pretext for retaliation retaliation through a showing of of disparate treatment, a plaintiff plaintiff must demonstrate a distinction between treatment of that plaintiff plaintiff and another “similarly situated,” but more favorably treated employee, under “nearly identical circumstances.” See Rodriguez v. v. City City of Poteet, No. 04–13–00274–CV, of Poteet, WL 769286 *7 (Tex. App.— 04—13—00274—CV, 2014 WL App.— San Antonio February 26, 2014, no pet. pet. h.) h.) (citing (citing Wheeler v. BL Dev. Wheeler v. Dev. Corp., Corp,415 F.3d 399
, 406 (5th (5th Cir. Cir. 2005). The comparator employee must be similarly situated “in all all material respects, respects, including similar standards, supervisors, and conduct.”Id. Id. (citing
(citing Ysleta Indep. Indep. Sch. Dist. v. Sch. Dist. v. Monarrez, 177177 S.W.3d 915
, 917 (Tex. 2005)) (emphasis added). Circumstances are not “nearly identical” if if they involve employees with different work rule violations or disciplinary records. See engaged in in a protected activity activity does not render her immune from discipline or confer a privileged status upon her, status her, and itit does not tie tie the District’s hands in in responding when it it reasonably believes her performance was deficient. deficient. See Arredondo v. 14 Gulf Gulf Bend Ctr., C111, No. H-06-1580, H—06—l580, 2007 WLWL 1004051, 1004051, at at *6 (S.D. Tex. Mar. 30, 30, 2007); see also Fort Bend Indep. Indep. Sch. Dist. v. Sch. Dist. v. Williams, Williams, No. 01-13-00052-CV, 2013 WL WL 4779693, *8 (Tex. App.—Houston [1st [lst Dist.] Dist.] September 5, 5, 2013, no pet.) pet.) (holding that the plaintiff’s placement on paid administrative leave pending an investigation into her misconduct was not an adverse employment action for purposes of her retaliation claim). Nor can Plaintiff retaliation Plaintiff argue that that she should be immune from the consequences of of her misconduct merely because the District District learned of that that misconduct, atat least least in part, during its in part, its investigation into her reports of harassment. harassment. See Plumlee v. v. City City of Kennedale, 795 F.Supp.2d of Kermedale, (ND. Tex. 2011) (employer was “not required to 556, 564 (N.D. to disregard what it it believed toto be evidence of of plaintiff’s plaintiff ’s misconduct because of the circumstances under which that evidence came to to light”). light”). 46id. id. (citing
AutoZone, Inc. (citing Aut0Z0ne, Inc. v. v. Reyes,272 S.W.3d 588
, 594 (Tex. 2008)). Although “precise equivalence” is is not required, a plaintiff plaintiff must show “that the misconduct for which [the plaintiff] was discharged was nearly identical to that engaged in [the plaintiff] in by by whom [the an employee whom [the employer] retained.”Id. at 917-18
(quoting McDonald v.Id. at v.
Santa Fe Trail Transp. Transp. Co., C0.,427 U.S. 273
, 283 n. n. 11 11 (1976) and Smith v. Wal—Mart v. Wal–Mart Stores, Inc., 891 Stores, Inc.,891 F.2d 1177
, 1177, 1180 1180 (5th (5th Cir.1990)). In fact, fact, plaintiff plaintiff cannot prove disparate treatment at at any level because she AHISD employees. was not “similarly situated” with any other AHISD employees. (Supp. CR, Vol. I. I. 105-106, 105-106, 191-192) 191-192) Here, plaintiff plaintiff was the only employee proposed for termination by the Superintendent who then failed to contest the Board of Trustees’ approval of by that that proposed action. (Supp. CR, Vol. Vol. I. I. 106) 106) Here, plaintiff AHISD plaintiff was the only AHISD employee who wholly failed to to challenge the allegations of of conduct and myriad performance deficiencies demonstrated by by the Superintendent, and relied upon by by the Board in in reaching their their decision.Id. Id. Thus,
plaintiff plaintiff cannot compare herself to AHISD employees recommended for termination. any other AHISDId. Nor did
any other termination.Id. employees not
recommended for termination have comparable work rule violations or disciplinary records.Id. Id. In
fact, AHISD employee in fact, no other AHISD in the recent history of the District could be associated with such an astounding variety of consistent and severe performance deficiencies, deficiencies, which included multiple instances of of inappropriate, disruptive, disruptive, unprofessional and insubordinate conduct.Id. Id. And
had 47 any other employees conducted themselves similarly to plaintiff, plaintiff, they too would have been recommended for termination.Id. Id. Plaintiff
s Retaliation Claim Fails Under the McDonnell Douglas F. Plaintiff’s Burden-Shifting Framework, Therefore She Cannot Establish All of the Jurisdictional Elements of her Claim, and the Trial Court Lacked Subject Matter Jurisdiction. AHISD has articulated the legitimate, non-retaliatory reasons for plaintiff’s AHISD plaintiffs termination, as well as as for every other decision made with respect to plaintiff’s plaintiffs employment. (Appendix, Tab 4, 4, pp. 1-3; CR Vol. I.I. 103-105, 1-3; see also Supp. CR 103-105, 190- 190- 191) 191) Plaintiff Plaintiff has not, not, because she cannot, show that that such reasons were pretext CR Vol. II, (Supp. CR thus, she did not meet her McDonnell Douglas II, pp. 74-80), and thus, required demonstration of ‘but for’ causation. See Nassar, 133 133 S.Ct. at at 2533; see also McDonnell Douglas, 411411 U.S. 792
, 807. Additionally, plaintiff plaintiff has failed to establish even the prima prima facie TCHRA so that facie elements of a claim under the TCHRA AHISD’s immunity has not been waived, and the trial trial court lacked subject matter jurisdiction over plaintiff’s jurisdiction plaintiffs retaliation retaliation claim. See Mission Consol., 372 S.W.3d at at 637. plaintiff cannot carry her ultimate burden under the McDonnell Therefore, plaintiff Douglas analysis. On this analysis. On this final final point, point, independent of all all others, others, plaintiff’s plaintiffs retaliation retaliation claim, that that she was terminated for unlawfully retaliatory retaliatory reasons, fails fails and, as a matter of law, it it must be dismissed for lack of subject matter jurisdiction.Id. Id. 48
III. III. PLAINTIFF P CANNOT ESTABLISH LAINTIFF CANNOT THE REQUIRED ESTABLISH THE ELEMENTS OF REQUIRED ELEMENTS HER SEXUAL OF HER SEXUAL HARASSMENT CLAIM HARASSMENT CLAIM.. A. Plaintiff Cannot Prove AHISD’s Negligence in Controlling Working Conditions Necessary to Establish Vicarious Liability for the Alleged Misconduct of Plaintiff’s Plaintiffs Co-workers. Nor did plaintiff plaintiff allege facts facts as necessary to to demonstrate that AHISD was that AHISD vicariously liable liable for sexual harassment in in negligently failing failing to to control a hostile 15 work environment. environment. Plaintiff’s environment” Plaintiffs hostile work environment claim is is not about her supervisor. It It is (CR 24-25) As is rather about the alleged behavior of her co-workers. (CR the United States Supreme Court recently held in in Vance Vance v. v. Ball State University, University, 133133 S. Ct. 2434
(U.S. 2013), an employer’s vicarious liability liability for a hostile hostile work environment hinges on the status status of of the alleged harasser; essentially, essentially, whether the alleged harasser was a co-worker or a supervisor.Id. Id. at
at 2439. Distinguishing from a co-worker with merely the ability ability to to direct a claimant’s day-to-day activities activities and duties, duties, the Vance Vance Court further held that the “supervisor” of a sexual harassment claimant must be the employee who is is “empowered by by the employer to to take tangible employment actions against the victim.” Id.Id. (emphasis added).
15 ‘5 Courts have recognized two distinct distinct types ofof prohibited sexual harassment; quid pro quo claims, and hostile work environment claims. Quid pro pro quo sexual harassment occurs when a tangible employment action resultsresults from the employee’s refusal to to submit to to a supervisor’s sexual demands. See Burlington Indus, Indus., Inc. Inc. v. v. Ellerth, US. 742, 752-54 (1998); Ellerth, 524 U.S. (1998); see also La Day Day v.v. Catalyst Tech., Inc., Tech., Inc.,302 F.3d 474
, 481 (5th Cir. 481 (5th Cir. 2002); see also Wal—Mart Wal–Mart Stores, Inc. Stores, Inc. v. Itz, 21 v. Itz,21 S.W.3d 456
, 470 (Tex. (Tex. App.—Austin 2000, pet. pet. denied). denied). In the instant case, case, plaintiff plaintiff asserts asserts only a hostile hostile work environment claim, and she does not claim that any of of her supervisor’s made sexual advances towards her. her. 49 In the instant case, plaintiff complains of case, plaintiff of the behavior of of Ann Monterrubio and Michelle Boyer, fellow female physical education teachers and girls’ athletic athletic coaches at AH] S. See Plaintiff’s at AHJS. Plaintiffs Second Amended Petition, Petition, p. p. 3. 3. Boyer was the girls’ athletic (CR 25; Supp. CR, Vol. I. athletic coordinator. (CR I. 181) 181) While Boyer was colloquially referred to on campus and in in documentation, documentation, including letters letters written by by Kershner, as plaintiff’s plaintiffs supervisor, such characterization is is of of no moment (see (see Vance, Vance, 133 133 S.Ct. at at 2439), as Boyer acted only in a coordinating role having had no authority to to hire, hire, fire, fire, promote, reassign, or alter alter the benefits benefits of plaintiff’s plaintiffs employment. (Supp. CR, CR, Vol. I. I. 181) 181) Boyer then, then, as Vance Vance explains, was not plaintiff’s plaintiffs “supervisor.” See Vance, Vance, 133 133 S.Ct. at at 2442; see also Supp. CR, Vol. I. I. 35-36. Thus, even the alleged sexual harassment of plaintiff plaintiff by by her co-workers, Boyer and Monterrubio, Monterrubio, is is insufficient, by itself, insufficient, by itself, to to assert assert a vicarious liability liability claim against AHISD. See Vance, Vance, 133 133 S.Ct. at at 2441, citing Faragher v. v. Boca Raton, AHISD can only be held vicariously liable524 U.S. 775
, 789 (1998). Accordingly, AHISD liable if if it it was negligent in in controlling working conditions. Seeid. id. Moreover,
to to even demonstrate a primafacie prima facie case that AHISD was negligent that AHISD in controlling working conditions, plaintiff was required to demonstrate: demonstrate: (1) (1) that she is is a member of of a protected category (i.e., (z'.e., female); (2) (2) who was subjected to to unwelcome harassment; (3) (3) that was based on gender; (4) (4) and which affected a term, condition, or privilege of her employment; and (5) (5) that that her employer, 50 AHISD, knew, or should have known, of the harassment and did not take prompt remedial action. action. See Gulf Gulf States Toyota, Inc. v. Toyota, Inc. v. Morgan,89 S.W.3d 766
, 770 (Tex. App.—Houston [1st. [lst. Dist.] Dist.] 2002, no pet.). pet.). But, plaintiff plaintiff cannot and did not attempt to to establish the third, third, fourth, fourth, or fifth fifth elements of of her primafacie prima facie case. case. plaintiff cannot make out the required prima facie Because plaintiff facie case, case, the trial trial court lacked subject matter jurisdiction jurisdiction over her claims and erred when it it failed failed to to grant AHISD’s Plea to to the Jurisdiction. Jurisdiction. B. Plaintiff Does Not Complain of Discrimination Based on her Gender. Anti-discrimination laws like like Title TCHRA are “not a general Title VII and the TCHRA civility v. Freeman Decorating, civility code for the American workplace.” Indest v. Decorating, Inc., Inc., 164164 F.3d 258
, 263 263 (5th (5th Cir. Cir. 1999). TCHRA’s ban on 1999). Rather, the purpose of the TCHRA’s sexual harassment is is to to eliminate employment discrimination and establish equal employment conditions and opportunities for both sexes in in the workplace. See Tex. Lab. Code §§ 21.001. With respect to to this this same purpose, the United States Supreme Court has held: held: Title Title VII does not prohibit all all verbal or physical harassment in in the workplace; it it is is directed only at at discrimination because ofof sex. We have never held that sex. We that workplace harassment, even harassment between men and women, is is automatically discrimination because of sex merely because the words used have sexual content or connotations. The critical critical issue, issue, Title Title VII’s VIl’s text text indicates, indicates, is is whether members of of one’s sex are exposed to to disadvantageous terms or conditions of employment to to which members of the other sex are not exposed. 51 51 See Oncale v Sundowner Offshore Services, Inc.,523 U.S. 75
, Services, Inc., 75, 80 (1998) (internal (internal quotations and ellipses ellipses omitted). While Title TCHRA clearly Title VII and the TCHRA clearly allow same-sex hostile work environment claims, the Supreme Court has specifically specifically rejected the proposition that workplace harassment is is actionable merely because it it involves sexual content. Seeid. id. at
at 79. Rather, a plaintiff plaintiff pursuing a same-sex sexual harassment claim “must first first demonstrate that the sexual harassment was discrimination because of sex.” See La Day Day v. v, Catalyst Tech., Inc.,302 F.3d 474
, Tech, Inc., 478 (5th (5th Cir. Cir. 2002) (citing (citing Oncale). Oncale). The Oncale court suggested three potential potential routes for a plaintiff plaintiff alleging same-sex sexual harassment to to carry carry this A this burden. A plaintiff must either: plaintiff either: (1) (1) establish that the alleged harasser made explicit or implicit proposals of sexual activity activity and provide credible evidence that the alleged harasser was homosexual; (2) (2) demonstrate that the alleged harasser was motivated by by general hostility hostility to the presence of members of the same sex in the workplace; or (3) (3) offer direct, direct, comparative evidence about how the alleged harasser treated members of of both sexes in in a mixed-sex workplace.Id. workplace. Id.
Prior to to her Response to AHISD’s Plea to to the Jurisdiction, plaintiff had not Jurisdiction, plaintiff previously claimed that her alleged harassers were homosexuals making sexual advances. Although she now claims precisely precisely that (CR 175-176), that (CR 175-176), such allegations, allegations, based solely on plaintiff’s plaintiffs subjective belief that Monterrubio and Boyer were homosexual, are insufficient under the first first “evidentiary route” to to proving the 52 purported discrimination was based on gender. See Love v. Motiva Enterprises v. Mativa LLC, 349 Fed. App’x 900, 902-03 (5th (5th Cir. Cir. 2009) (holding that that allegations of of inappropriate comments, gestures, and physical contact by by same-sex co-worker were more indicative of humiliating or bullying behavior, and did not support an inference of of sexual attraction and proposals proposals for for sex); v. Pohanka sex); see also English v. of of Chantilly, Inc., 190 Chantilly, Inc., 190 F. F. Supp. 2d 833, 846 (E.D. Va. 2002) (holding that that plaintiff’s subjective belief plaintiffs belief that that his harasser was homosexual was insufficient as sole proof to avoid summary judgment on same-sex sexual harassment claim). claim). Plaintiff Plaintiff also did not show, and she did not even attempt to to demonstrate, demonstrate, that that her alleged harassers were motivated by by general hostility hostility to women in the workplace, to women or that that they treated male co-workers differently. differently. In fact, plaintiff asserted that fact, plaintiff that her alleged harasser, Monterrubio, acted inappropriately to to virtually virtually every person she came into contact with, with, regardless of gender. (Supp. CR, Vol. I. I. 264) And in a May 15, report on May 15, 2008, plaintiff Montermbio and Boyer’s alleged plaintiff asserted that Monterrubio sexually explicit and unprofessional conduct was also directed towards male employees, specifically alleging that they showed inappropriate photographs to to a Mufioz, and generally alleging that: male coach, John Muñoz, that: [Monterrubio] [Monterrubio] constantly complained about Coach Moore, Coach Gonzalez, Coach McAllister, and all coaches. She all the male coaches. made fun fun of of their professional professional and private lives. She griped about private lives. way they worked and made digs about their character on a daily the way basis. So I knew she was doing the same thing to basis. to me. me. 53 (Supp. CR, Vol. I. I. 219) In an email to to Kershner, plaintiff plaintiff again asserted: asserted: [Monterrubio] [Monterrubio] makes fun of not just me, but students, parents, and teachers on a daily basis. She badmouths others and has no concern for discretion. […] [...] She is is known to snap at me, other coaches, students, and parents. She enjoys teasing students and Ann shouts at students and fellow staff and causing trouble. Ann coaches, including me. (Supp. CR, Vol. I. I. 264) For such reasons, and upon such admissions, plaintiff plaintiff was, and is, is, unable to show same-sex sexual harassment under any one of the three permitted routes and did not, not, therefore, prove that that her sexual harassment claim was gender based, as was required to establish the prima facie facie case necessary to invoke the trial trial court’s subject matter jurisdiction. jurisdiction. See Oncale, 523 523 U.S. at at 79-80; Mission Consolidated, 372 S.W.3d at at 637. C. Courts Have Repeatedly and Consistently Rejected the Sexual Who Were Subjected to More Harassment Claims of Plaintiffs Who Frequent and Egregious Conduct than that Alleged by by Plaintiff. Plaintiff. “Not all all harassment will affect a term, condition, or privilege of employment.” Shepherd v. v. Comptroller of of Public Accounts of of State Texas, 168168 F.3d 871
, 874 (5th (5th Cir. Cir. 1999). 1999). “Conduct must be extreme to to amount to to a change in in the terms and conditions of of employment.” Faragher, 524 U.S. at at 788. “For sexual harassment to to be actionable, it it must be sufficiently sufficiently severe or pervasive ‘to ‘to alter alter the conditions of of [the [the victim’s] victim’s] employment and create an abusive 54 environment.” Shepherd, 168 working environment.’” 168 F.3d at at 874, citing Meritor Sav. Bank, Sav. Bank, FSB v. v. Vinson, Vinson,477 U.S. 57
, 57, 67 (1986). The United States Supreme Court has elaborated on the standard: standard: “in order to to be actionable under the statute, statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile find hostile or abusive, and one that that a victim Victim in in fact fact did perceive to to be so.” FFaragher, aragher, 524 U.S. at at 787. “Whether an environment is is hostile or abusive depends on the totality totality of the circumstances, circumstances, including factors such as the frequency of of the conduct, its its severity, severity, and the degree to to which the conduct unreasonably interferes interferes with an employee’s work performance.” Septimus v. v. Univ. Univ. of of Houston,399 F.3d 601
, 611 (5th 601,611 (5th Cir. Cir. 2005). In Faragher, the court reiterated that “[…] “[...] teasing, teasing, offhand offlland comments, and isolated incidents (unless extremely serious) will not amount to to discriminatory changes in the ‘terms ‘terms and conditions of employment.’” Faragher, 524 U.S. U.S. at at 788 (citing (citing Oncale v. v. Sundowner Offshore Oflshore Servs., Inc.,523 U.S. 75
, Servs., Inc., 75, 82, 82, (1998)). (1998)). Likewise, “incidental, occasional or merely playful sexual utterances will rarely rarely poison the employee’s working conditions to to the extent demanded for liability.” liability.” Indest, 164 Indest, 164 F.3d at at 263. Courts have repeatedly and consistently rejected the sexual harassment claims of plaintiffs plaintiffs who were subjected to to more frequent and egregious conduct 55 than that alleged by plaintiff For example, in by plaintiff in Gearhart v. Eye Care Centers of v. Eye of America, 888 F. F. Supp. 814 (S.D. Tex. 1995), 1995), the plaintiff plaintiff complained of conduct from multiple co-workers that included several inappropriate sexual comments in addition to to multiple instances of offensive and unwanted physical contact.Id. Id. at
at 824. The plaintiff plaintiff claimed that that on one occasion her co-worker told her that she could be promoted and earn vacation time by by “sleeping with the boss.”Id. Id. at
at 820. The co-worker made several lewd remarks referencing masturbation, masturbation, complementing the plaintiff’s plaintiff’ s legs, legs, telling telling her she was beautiful beautiful while touching her hair, hair, talking to to her about his his neighbor’s large breasts, breasts, and asking her to go into a dark office.Id. at office. Id. On another
occasion, one of her co-workers touched the at 820-22. On plaintiff’s plaintiffs breasts and told her that he would do anything for her.Id. at her. Id. at 820-21.
After considering these allegations and other instances of of inappropriate sexual remarks to to the plaintiff, plaintiff, the court concluded that that the behavior did not rise rise to to the level of of an actionable claim for hostile work environment sexual harassment.Id. at harassment. Id. at 825.
The court granted the employer’s motion for summary judgment, reasoning that that such “allegations [were] nothing more than some evidence of of flirting, flirting, some casual touching, and sexual innuendos or jokes,” and that “Gearhart was not propositioned, propositioned, forced to to respond [to [to her supervisors], or placed in in any threatening situations.”Id. Id. at
at 825 (internal (internal quotations omitted). 56 In Shepherd, the plaintiff was subjected to to a co-worker’s sexually offensive behavior including comments, several instances of unwelcome physical touching, and attempts to to look up her dress and down her shirt. shirt. See Shepherd, 168 168 F.3d at at 872. The plaintiff plaintiff complained of of behavior that included comments such as as “your elbows are the same color as your nipples,” nipples, “you you have big thighs,” and “here’s :7 cc your seat” while patting the lap. at 872-74. In Hockman v.Id. at lap. Id. Westward v.
Westward Communications, L.L.C.,407 F.3d 317
(5th Communications, L.L.C., (5th Cir. Cir. 2004), a co-worker slapped the plaintiff plaintiff on the buttocks with a newspaper, repeatedly grabbed her breasts and buttocks, held her cheeks and attempted to kiss her, buttocks, her, requested opportunities to to be alone with her, her, and made numerous sexually suggestive comments. comments. Seeid. id. at
at 321. The plaintiff in Hockman testified plaintiff in testified that she was inappropriately touched so often she could not recall recall the number of times it it happened.Id. Id. at
at 328. In Barnett v. v. Boeing Co., App’x 875 (5th Co., 306 Fed. App’x (5th Cir. Cir. 2009), the plaintiff plaintiff alleged that that her supervisor leered at at her, her, touched her in in sexually inappropriate and unwelcome ways, and actively intimidated her after after she made a complaint by by frequenting her workspace to to glare at at her, her, and other acts of psychological psychological intimidation.Id. Id. at
at 879. In Hale v. v. Napolitano, No. SA-08-CV-106-XR, WL 1507144 SA-08-CV-106-XR,2009 WL 1507144
(W.D. Tex. May 28, May 28, 2009), the plaintiff plaintiff was subjected to continuous, repeated “filthy, “filthy, sexist and obscene language and jokes in the workplace.”Id. at *6.
In Hancock v.Id. at v.
Barron & Mgmt. Builders & Mgmt. Co., Inc., 523 F. Co., Inc., F. Supp. 2d 571 571 (S.D. Tex. 2007), the alleged 57 harasser made over 100 100 sexually graphic, vulgar and offensive statements during a nine-month period and frequently discussed his his personal sex life life with the plaintiff. plaintiff. Seeid., id., 523
523 F. F. Supp. at at 576. In each of of these cases, cases, the courts rejected the plaintiffs’ plaintiffs’ sexual harassment claims. In the instant case, case, plaintiff plaintiff made numerous allegations concerning the behavior of her female co-workers, Monterrubio and Boyer, the overwhelming majority of which were utterly utterly trivial. trivial. Only a small fraction of of the allegations (three (three out of over 100) women and involve sexual content or 100) concern these two women undertones.16 (Supp. CR, Vol. I. even have sexual undertones.” I. 211-224) Plaintiff’s Plaintiff” s allegations fall fall well short of the threshold for actionable conduct established in Gearhart, Shepherd, Hockman, and Barnett. See, See, e.g., e. g., Gearhart, 888 F. F. Supp. at at 825 (holding as a matter of law that that alleged conduct, even if if true, true, was not actionable sexual harassment); Shepherd, 168 at 875 (same);Hockman, 407 F.3d at 168
F.3d at at 329 (same); and Barnett, App’x 880 (same). Barnett, 306 Fed. App’x These alleged events, even if if they had occurred as plaintiff plaintiff claims, describe isolated, isolated, discreet instances of of questionable behavior, behavior that, that, as described, is is perhaps workplace inappropriate, but none, even analyzed under the totality totality of the 16 ‘5 Specifically, Specifically, in May 15, in her May 15, 2008 report Plaintiff alleged that Monterrubio made comments about plaintiff’s plaintiff’s body, including her breasts, breasts, critiqued plaintiff’s plaintiff’s clothing, clothing, discussed her own [Monterrubio’s] [Montem1bio’s] sex life in life in front of others, of others, including plaintiff, plaintiff, purchased “indecent” ornaments for an office Christmas party, party, and on two occasions showed plaintiff plaintiff graphic pictures of male genitalia. genitalia. (Supp. CR, Vol. I. I. 211-224) Plaintiff Plaintiff also claims that her buttocks were grabbed by by an unknown person during a group picturepicture at at the faculty Christmas party.Id. party. Id.
58 circumstances, that would be deemed sexual harassment under the law to create liability AHISD.Id. liability for
AHISD. AHISD, inId. Moreover, AHISD,
in investigating plaintiff’s plaintiffs claims, found correctable behaviors but no corroborating evidence of actionable sexual harassment, particularly particularly among the numerous female and male staff staff members who, according to plaintiff plaintiff were at at times present and witnessed these alleged conduct. (Supp. CR, CR, Vol. I. I. 183) 183) Beyond bare assertions, plaintiff provided the court below assertions, plaintiff and this this Court no evidence to substantiate her claims of actionable sexual harassment or of of a sexually hostile workplace environment. (Supp. CR, Vol. II, II, 68- 80) Instead, Instead, plaintiff plaintiff argues that that the conduct she alleges establishes a violation of TCHRA because Kershner admitted that, the TCHRA that, if if her assertions were true, true, such would violate AHISD’s policy, policy, a policy that clearly clearly establishes a public school district district workplace threshold of of prohibited inappropriate conduct far far less less tolerant than that that which our courts have recognized as actionable. See infra, infra, discussion of AHISD DIA (Local), AHISD Board Policy DIA (Local), at at Footnote 17. 17. In light light of the threshold established through the above-cited authorities, authorities, plaintiff is plaintiff is unable to to establish the essential element of a prima facie facie sexual harassment claim, that the alleged sexually oriented conduct she alleges was so “extreme [as] [as] to to amount to to a change in the terms and conditions of of employment.” Faragher, 524 U.S. at at 788. And thus, thus, plaintiff plaintiff cannot establish but another of the 59 elements of a primafacie prima facie sexual harassment claim required to to establish the trial trial court’s subject matter jurisdiction. See Mission Consol., 372 S.W.3d at matterjurisdiction. at 637. D. Plaintiff Did Not Report Harassment at or Even Near the Time of the Alleged Event. AHISD’s anti-harassment policy asks for prompt reporting of sexually harassing conduct to EEO coordinator. (Supp. to a principal or the District’s EEO (Supp. CR, Vol. I. I. 94, 94, 101, 101, 107-11) 107-11) Here, the first first instance of alleged sexually inappropriate behavior toward plaintiff, plaintiff, she contends, occurred on September 20, 2007, approximately one month after after she had begun her employment at at AHISD. (Supp. CR, Vol. I. I. 211) Further, plaintiff plaintiff asserts that Monterrubio had bullied and harassed her from then on.Id. Id. It
It was not until May 15, until May 15, 2008, near the end of of that school year, year, nearly eight months after after the first first alleged incident of of harassment, that that plaintiff made her first (CR 121) first report to Kershner, the campus principal. (CR l2l) Plaintiff unreasonably failed to to utilize AHlSD’s policy on sexual harassment or to utilize AHISD’s to otherwise avoid conduct she considered harmful. See Faragher, 524 U.S. at at 807. As such, plaintiff’s plaintiff’ s conduct literally AHISD from taking earlier literally prevented AHISD earlier remedial action to to eliminate purported discrimination. (Supp. CR, Vol. I. I. 183) 183) “If the plaintiff plaintiff unreasonably failed to to avail herself of the employer’s preventative or remedial apparatus, she should not recover damages that that could have been avoided had she done so […]” [...]” such that an employee’s failure failure to to utilize utilize the complaint 60 procedure set set forth in in an employer’s anti-harassment policy will normally preclude recovery on a sexual harassment claim. Faragher, 524 U.S. at at 806-808. E. Notwithstanding the Quality of Plaintiff’s Plaintift’s Mostly Unsupportable AHISD Took Immediate Remedial Actions Calculated to Claim, AHISD Insure that the Conditions in Its Were Discrimination Its Workplace Were Free. Finally, plaintiffs claims and uncontroverted summary judgment evidence Finally, plaintiff’s of a prima facie conclusively negates the required element of AHISD failed facie case that AHISD to to take prompt remedial action when notified by plaintiff notified by plaintiff of her sexual harassment fact, the summary judgment evidence demonstrates only that in complaint. In fact, in each instance plaintiff plaintiff alleged exposure to AHISD responded, to sexual harassment, AHISD immediately investigating and taking corrective action reasonably calculated to to prevent discrimination. (Supp. (Supp. CR, CR, Vol. I. I. 183-188) 183-188) 1. 1. AHISD AHISD adopted and enforced sexual harassment policies policies and had implemented sexual harassment training. While unnecessary as a matter of law, proof that an employer had promulgated an anti-harassment policy with a complaint procedure is is indicative of an employer who has exercised reasonable care to prevent and promptly correct alleged or even actual sexual harassment. See Faragher, 524 U.S. at at 806. Additionally, an employer who conducts routine, routine, periodic training of employees on its its anti-harassment policies has typically typically exercised reasonable care to to prevent harassment. See Williams Williams v. Buffet, Inc., v. Barnhill’s Buffet, App’x 759, 763 Inc., 290 Fed. App’x 61 61 (5th (5th Cir. Cir. 2008) (holding that that employer that conducted yearly training regarding anti-harassment policy and handling of sexual harassment complaints had exercised reasonable care). care). AHISD’s Board Policies prohibit unlawful sexual harassment. (Supp. CR, Vol. I. I. 101, 101, 107-11) 107-11) The District considers any allegation of sexual harassment a serious matter and is is committed upon notice to taking immediate and appropriate action.Id. AHISD policy
(1)Id. This AHISD
(1) describes the type of conduct that constitutes sexual harassment and prohibited conduct,17 conduct,” (2) (2) identifies identifies to whom employees to whom should make a report if if they are subjected to sexual harassment, (3) (3) describes the may be used once a report is investigative procedures that may is made, (4) (4) describes the potential disciplinary procedures that potential that may be used in a case of sexual harassment, may and (5) (5) provides a statement that that retaliation retaliation against an employee making a report will not be tolerated. willId. tolerated. Id.
AHISD’s policy is is distributed annually to to all all District employees, is is posted at at each campus and administrative office, office, and is is readily available to all all employees online at at the District’s website. (Supp. CR, Vol. I. 101) Teachers also receive I. 94-95, 101) yearly training on the District’s anti-harassment policy, policy, including the appropriate 17 ‘7 AHISD’s Board Policy DIA (Local) is is a prophylactic anti-harassment effort effort on the part part of the District District that that is is designed to to both prohibit and enable an appropriate disciplinary response to to conduct that lies that lies well below the legal legal threshold that that would give rise to rise to an actionable claim of discrimination against the District under a theory of of respondeat superior. superior. (Supp. CR, Vol. I. I. 101) 101) The policy specifically specifically prohibits conduct “even if if the behavior does not riserise to to the level of of unlawful conduct.” (Supp. CR, Vol. I.I. 107-111) 107-111) 62 reporting procedures.Id. Id. AHISD
’s policy and practices are consistent with federal and state EEOC guidelines. See 29 C.F.R. state law, as well as EEOC C.F.R. § § 1604.11; 1604.11; see also EEOC EEOC Notice: Policy Guidance on Current Issues in Notice: in Sexual Harassment. Harassment. AHISD took reasonable care to prevent sexual harassment in Unquestionably, AHISD in its its workplace. See Faragher, 524 U.S. at at 805. 2. 2. AHISD AHISD immediately investigated and took prompt prompt remedial action in response to plaintiff’s report. to plaintiffs Plaintiff did not contest AHISD’s report. Plaintiff investigative conclusions, conclusions, made no further further reports of of similar filed an EEOC behavior until she filed EEOC Charge until several months later based on the same allegations. As soon as as plaintiff plaintiff made her initial initial report, AHISD conducted a report, AHISD comprehensive, exhaustive investigation. (Supp. CR, CR, Vol. I. I. 183) AHISD 183) While AHISD concluded that plaintiffs plaintiff’s allegations were not sustained by by the investigation, AHISD took swift remedial action calculated to AHISD to eliminate any possible, future discrimination as a safeguard. safeguard. (Supp. (Supp. CR, CR, Vol. I. I. 183, AHISD counseled 183, 225-226) AHISD Monterrubio, addressing with her the District’s anti-harassment policies and the potential adverse result for violations of potential of same.Id. Id. AHISD
AHISD also met with plaintiff plaintiff to discuss her claims, Kershner’s investigation findings, AHISD findings, and her rights under AHISD Board Policy to to appeal those findings findings if if she was dissatisfied dissatisfied with the investigation 18 results. results. (Supp. CR, Vol. I. I. 183, 193-197)” 183, 193-197) Plaintiff was directed at at such time to 18 13 AHISD’s anti-harassment policy establishes that that “[a] “[a] complainant who is is dissatisfied dissatisfied with the outcome of may appeal through DGBA of the investigation may DGBA (Local), (Local), beginning at at the appropriate level.” (Supp. CR, Vol. I. I. 193-197) 193-197) Had plaintiff plaintiff been unsatisfied unsatisfied with the response of Stephanie Kershner, her campus principal, principal, she should have requested a conference with the 63 promptly report future incidents.Id. Id. But
, plaintiff plaintiff did not avail herself of of any such opportunities to contest the findings findings or to to further report. report. Rather, it it is is uncontroverted that plaintiff claimed to that plaintiff to be satisfied AH1SD’s response. satisfied with AHISD’sId. response. Id.
Plaintiff thanked Kershner for conducting a thorough investigation, and told her AHISD that she trusted her judgment with respect to these conclusions, and so AHISD that reasonably believed that its actions had successfully resolved her concerns, which that its were not raised again until plaintiff filed until plaintiff EEOC Charge months later. filed an EEOCId. As the
later.Id. Fifth Circuit
held in v. Texas Department of in Lauderdale v. of Criminal Justice, Justice,512 F.3d 157
157 (5th (5th Cir. Cir. 2007), when an employee believes that an initial initial complaint was ineffective, ineffective, it it is is unreasonable to not utilize utilize other avenues provided under the employer’s policy, policy, such as the clear method of appeal contained in AHISD’s Board DIA (Local). Policy DIA (Local). Seeid., id., 512
F.3d at at 164. 164. In subsequent reports to to Kershner on January 23, 23, 30, 30, and February 6, 6, 2009, plaintiff Montermbio and Boyer had been “ostracizing” and “bullying” plaintiff alleged that Monterrubio her. her. (Supp. (Supp. CR, Vol. I. I. 185-187) By this 185-187) By this time, plaintiff plaintiff had lodged more than 100 100 specific specific allegations, allegations, most of which were completely outlandish, including the Montermbio called plays and cheered louder than her at complaint that Monterrubio at a girls’ basketball game, that that Boyer did not bring her breakfast tacos one morning, and that that she was offended by by Monterrubio’s conversations involving atheism, abortion, and superintendent or his designee under Level Two of DGBA of the procedure established under DGBA (Local). (Local). (Supp. CR, Vol. I. I. 198-203) 198-203) 64 weight loss loss pills.Id. Nevertheless, as
it pills.Id. AHISD immediately
it had before, AHISD find support for these assertions. investigated but could not find When plaintiffId. When assertions. Id. plaintiff filed
filed
a grievance alleging that Monterrubio had assaulted her, Montemibio
her, insisting that Monterrubio
be transferred from her assigned campus, the District could not agree with
plaintiff’s
plaintiffs description of
of the alleged assault upon her,
her, but nonetheless, granted
plaintiff’s
plaintiffs requested remedy and transferred Monterrubio to another campus.
(Supp. CR, Vol. I.
I. 316-320)
Clearly, AHISD had reasonable policies in
Clearly, AHISD in place to
to prevent sexual
harassment and took prompt corrective action reasonably calculated to
to prevent
future incidents once plaintiff
plaintiff reported harassment.
harassment. (Supp. CR, Vol. I.
I. 101,
101, 107-
107-
111)
lll) The undisputed evidence conclusively establishes that AHISD acted swiftly,
that AHISD swiftly,
prudently, and appropriately, and as such, cannot be considered negligent in
controlling the working conditions. See Faragher, 524 U.S. at
at 806; Williams,
Williams,
App’x at
290 Fed. App’x at 763. Accordingly, plaintiff’s
plaintiffs sexual harassment claim must be
dismissed as a matter of law because she cannot establish the fifth
fifth required element
of her prima facie case.
herprimafacie case. See Mission Consol.,
C0ns0l., 372 S.W.3d at
at 637.
65
PRAYER
PRAYER
AHISD prays that
For the foregoing reasons, AHISD that this
this Court reverse the trial
trial
court’s order denying its
its Plea to
to the Jurisdiction,
Jurisdiction, and dismiss plaintiff’s
plaintiffs claims for
want of
of subject matter jurisdiction.
jurisdiction.
Respectfully submitted,
SCHULMAN,
S LOPEZ
CHULMAN, L &H
OPEZ & HOFFER, LLP
OFFER, LLP
/s/
/s/ Robert A. Schulman
Robert A. Schulman
State Bar Number 17834500
17834500
Email:
Email: rschulman@slh-law.com
rschu1man@slh-law.com
Leonard J.J. Schwartz
State Bar Number 17867000
17867000
Email:
Email: lschwartz@slh-law.com
Bryan P.
P. Dahlberg
24065113
State Bar Number 24065113
Email:
Email: bdahlberg@slh-law.com
517 Soledad Street
San Antonio, Texas 78205
Tel.:
Tel.: (210) 538-5385
(210)538-5385
Fax: (210) 538-5384
ATTORNEYS FOR APPELLANT
ATTORNEYS FOR APPELLANT
ALAMO HEIGHTS
ALAMO HEIGHTS ISD
66
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
This is
is to
to certify
certify that
that on this
this 2nd day of
of January 2015, a true and correct
copy
copy of the foregoing document has been delivered by by facsimile to
to counsel of
record for Appellee in
in this
this proceeding as follows:
Mr. Mr. Matthew R. Pearson, G GRAVELY
RAVELY && PPEARSON,
EARSON, L.L.P., 425
Soledad St.,
St., Suite 600, San Antonio, Texas 78205, Facsimile:
Facsimile: (210)
472-1110.
/s/
/s/ Robert A. Schulman
Robert A. Schulman,
Attorney for Appellant
67
CERTIFICATE OF
CERTIFICATE COMPLIANCE
OF COMPLIANCE
Pursuant toto Texas Rule of Appellate Procedure 9.4(i)(3),
9.4(i)(3), II hereby certify
certify that
this
this Appellant’s Brief contains 14,477
14,477 words (excluding the caption, identity
identity of
parties and counsel, table of contents, index of
parties of authorities,
authorities, statement of the case,
case,
statement regarding oral argument, statement of issues presented, signature, signature,
certificate
certificate of
of service,
service, certificate
certificate of compliance, and appendix).
appendix).
I1 further certify
certify that this
this is
is a computer-generated document created in Word
in Word
for Mac, using 13-point
13-point typeface for allall text,
text, except for footnotes, which are in 10-
10-
point typeface. In making this this certificate
certificate of compliance II am am relying on the Word
word
count provided by by the software used to prepare this this document.
document.
II understand that a copy
copy of this may be posted on the Court’s
this document may
website and that the electronically filed
filed copy
copy of the document becomes part of
of the
Court’s record.
Copies have been sent to
to all
all parties associated with this
this case.
case.
/s/
/s/ Robert A. Schulman
Robert A. Schulman,
Attorney for Appellant
68
APPENDIX
APPENDIX
@
Tab Document
11 Order Denying Plea to the Jurisdiction,
Jurisdiction, dated October 9,
9, 2014
2 Human Rights Act
Texas Labor Code, Chapter 21, the Texas Commission on Human
33 Principal Stephanie Kershner’s Letter to
to Superintendent Kevin Brown,
dated June 23, 2009
4 AHISD’s Notice of Proposed Termination, dated July 14,
14, 2009
5 Martinez v. Workforce Commission —
v. Texas Workforce – Civil Rights.
Rights. Division,
Division,
No 14-50391
No 14-50391 (5th
(5th Cir.
Cir. Dec. 30,
30, 2014) (per
(per curiam)
69
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Appendix
Tab 11
DOCUMENT SCANNED AS FILED
I
illlléfilfitsfiffiiyg I
. _.,,zg_Iaqc:_1s§;i __-3285
CAUSE NO. 2009—CI—19821
THE DISTRICT COURT
'
CATHERINE CLARK
'
IN
'
§
Plaintiff, §
§
v. §
285T" JUDICIAL DISTRICT
—
§
ALAMO HEIGHTS ISD §
‘
Defendant § BEXAR COUNTY, TEXAS
ORDER ON DEFENDANT ALAMO HEIGHTS ISD’S
~
'
PLEA TO THE JURISDICTION
On this day, cameto be heard Defendant Alamo Heights ISD’S Plea to the Jurisdiction.
‘
The Court having considered the motion, response and supporting evidence is of the opinion that
said motion does not have merit and should be in all things DENIED. It is accordingly,
ORDERED that Defendant Heights _1SD’s Plea to the Jurisdiction is DENIED.
Signedthis E dayof . ,20l4.
JUDG P NG
459
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Appendix
Tab 2
LABOR CODE
LABOR CODE CHAPTER
CHAPTER 21. EMPLOYMENT DISCRIMIN...
21 EMPLOYMENT
. http://www.statutes.legis.state.tx .us/Docs/LA/htm/LA.21 .htm
http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.21.htm
LABOR CODE
LABOR CODE
TITLE 2.
TITLE PROTECTION OF
2. PROTECTION LABORERS
OF LABORERS
SUBTITLE A.
SUBTITLE A. EMPLOYMENT DISCRIMINATION
EMPLOYMENT DISCRIMINATION
CHAPTER 21.
CHAPTER DISCRIMINATION
EMPLOYMENT DISCRIMINATION
21. EMPLOYMENT
SUBCHAPTER A.
SUBCHAPTER GENERAL PROVISIONS
A. GENERAL PROVISIONS
2l.00l. PURPOSES.
Sec. 21.001.
Sec. general purposes
PURPOSES. The general purposes of this chapter
this chapter
to:
are to:
(1)
(1) provide for
provide for the execution of the
the execution policies of Title
the policies Title
VII Rights Act
Civil Rights
VII of the Civil Act of 1964 and its
I964 and its subsequent amendments
subsequent amendments
(42
(42 U.S.C. Section 2000e
U.S.C. Section 2000e et seq.);
seg.);
(2)
(2) identify and
identify and create authority that
create an authority meets the
that meets the
criteria under
criteria under 42 Section 2000e-5(c)
U.S.C. Section
42 U.S.C. and 29 U.S.C.
2000e—5(c) and Section
U.S.C. Section
633;
633;
(3)
(3) provide for
provide for the execution of the
the execution the policies embodied in
policies embodied
Title Americans with
Title II of the Americans Disabilities Act
with Disabilities Act of 1990 and its
I990 and its
subsequent amendments (42
subsequent amendments Section 12101
U.S.C. Section
(42 U.S.C. l2lOl et seq.);
seg.);
(4)
(4) secure for
secure persons in this
for persons this state, including persons
state, including persons
with disabilities,
with freedom from
disabilities, freedom discrimination in
from discrimination certain
in certain
employment transactions,
employment transactions, inin order protect their
order to protect personal dignity;
their personal dignity;
(5)
(5) make available to the
make available state the
the state the full productive
full productive
capacities persons in
capacities of persons this state;
in this state;
(6)
(6) avoid domestic
avoid domestic strife
strife and unrest in this
and unrest this state;
state;
(7)
(7) preserve the
preserve public safety,
the public safety, health, general
and general
health, and
welfare; and
welfare; and
(8)
(8) promote the
promote interests, rights,
the interests, rights, and privileges of
and privileges
persons in
persons this state.
in this state.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
by Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.0l(a), eff.
Sec. 9.01(a),
76, Sec. Sept. 1,
eff. Sept. 1995.
1, 1995.
Sec 21.0015.
Sec..21 0015. TEXAS WORKFORCE
TEXAS
. COMMISSION CIVIL
WORKFORCE COMMISSION CIVIL RIGHTS
RIGHTS
powers and
DIVISION. The powers
DIVISION. and duties exercised by the Commission
duties exercised Commission on
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Human Rights
Human under this
Rights under this chapter transferred to the Texas
chapter are transferred Texas
Workforce Commission
Workforce Commission civil
civil rights division. A
rights division. reference in
A reference this
in this
"commission" means
chapter to the "commission"
chapter means the Texas Workforce Commission
Texas Workforce Commission
civil rights
civil division.
rights division.
Added by
Added Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch.
ch. 302, Sec. 1.
302, Sec. 1.
Sec. 21.002.
Sec. DEFINITIONS. In
2l.002. DEFINITIONS. chapter:
this chapter:
In this
(1)
(1) "Auxiliary aids
"Auxiliary aids and services" includes:
and services" includes:
(A)
(A) qualified interpreters
qualified interpreters or other effective
other effective
making aurally
methods of making
methods delivered materials
aurally delivered materials available
available to
individuals with
individuals hearing impairments;
with hearing impairments;
(B)
(B) qualified readers,
qualified taped texts,
readers, taped other
texts, or other
effective methods
effective making visually
methods of making delivered materials
visually delivered materials available
available
individuals with
to individuals with visual
visual impairments;
impairments;
(C)
(C) acquisition modification of equipment
acquisition or modification equipment or
and
devices; and
devices;
(D)
(D) services and
services and actions similar to those
actions similar described
those described
Paragraphs (A)-(C).
by Paragraphs
by (A)-(C).
(2)
(2) "Bona fide
"Bona fide occupational qualification" means
occupational qualification" means a
qualification:
qualification:
(A)
(A) reasonably related to the satisfactory
reasonably related satisfactory
performance of the duties
performance duties of a job; and
job; and
(B)
(B) which a factual
for which
for basis exists
factual basis exists for belief
for the belief
that no person
that excluded group
person of an excluded would be able
group would satisfactorily
able to satisfactorily
perform the duties
perform duties of the job withwith safety efficiency.
safety or efficiency.
(3)
(3) Repealed by
Repealed Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch.
ch. 302, 4(2).
Sec. 4(2).
302, Sec.
(4)
(4) "Complainant" means
"Complainant" individual who
means an individual brings an
who brings
action proceeding under
action or proceeding under this chapter.
this chapter.
(5)
(5) "Demonstrates" means
"Demonstrates" means meets
meets the
the burdens production
burdens of production
persuasion.
and persuasion.
and
(6)
(6) "Disability" means,
"Disability" with respect
means, with respect to an individual,
individual, a
mental or physical
mental impairment that
physical impairment substantially limits
that substantially limits at least
least
major life
one major activity of that
life activity that individual, record of such
individual, a record such an
impairment, or being
impairment, being regarded
regarded as having such
as having impairment. The
such an impairment.
term does
term include:
does not include:
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(A)
(A) a current condition of addiction
current condition addiction to the use use of
alcohol, a drug,
alcohol, illegal substance,
drug, an illegal substance, or a federally controlled
federally controlled
substance; or
substance;
(B)
(B) a currently communicable disease
currently communicable infection as
disease or infection as
defined in Section
defined Section 81.003, Health and
81.003, Health and Safety
Safety Code, required to
Code, or required
reported under
be reported under Section
Section 81.041, Health and
81.041, Health and Safety
Safety Code, that
Code, that
constitutes a direct
constitutes direct threat health or safety
threat to the health other
safety of other
persons or that
persons affected person
makes the affected
that makes person unable perform the
unable to perform
duties person's employment.
duties of the person's employment.
(7)
(7) "Employee" means
"Employee" means an individual
individual employed
employed by by an
including an individual
employer, including
employer, individual subject
subject to the civil service laws
civil service laws
this state
of this political subdivision
state or a political subdivision of this this state, except that
state, except that
term does
the term include an individual
does not include elected to public
individual elected public office
office in
this state
this political subdivision
state or a political subdivision of this this state.
state.
(8)
(8) "Employer" means:
"Employer" means:
(A)
(A) person who
a person who is engaged in
is engaged in an industry affecting
industry affecting
commerce and
commerce and who
who has
has 15 more employees
15 or more employees for each working day in
each working
each of 20
each 20 or more calendar weeks
more calendar weeks in the current preceding
current or preceding
calendar year;
calendar year;
(B)
(B) agent of a person
an agent described by
person described Paragraph (A);
by Paragraph (A);
(C)
(C) an individual elected to public
individual elected public office
office in this
in this
state political subdivision
state or a political subdivision of this this state;
state; or
(D)
(D) a county, municipality, state
county, municipality, state agency, state
agency, or state
regardless of the number
instrumentality, regardless
instrumentality, individuals employed.
number of individuals employed.
(9)
(9) "Employment agency"
"Employment agency" means person or an agent
means a person agent of thethe
person who
person regularly undertakes,
who regularly undertakes, with without compensation,
with or without compensation, to
procure:
procure:
(A)
(A) employees for
employees employer; or
for an employer;
(B)
(B) opportunity for
the opportunity employees to work
for employees work for
for an
employer.
employer.
(10)
(10) "Labor organization" means
"Labor organization" means a labor organization
labor organization
engaged in an industry
engaged affecting commerce.
industry affecting commerce. The term term includes:
includes:
(A)
(A) organization, an agency,
an organization, employee
agency, or an employee
representation committee,
representation committee, group, association, or plan
group, association, engaged in an
plan engaged
affecting commerce
industry affecting
industry which employees
commerce in which participate and
employees participate and that
that
exists for the purpose,
exists whole or in part,
purpose, in whole dealing with
part, of dealing with
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employers concerning grievances,
employers concerning labor disputes,
grievances, labor disputes, wages, rates of
wages, rates
other terms
hours, or other
pay, hours,
pay, conditions of employment;
terms or conditions employment;
(B)
(B) a conference, general committee,
conference, general joint or system
committee, joint system
board, or joint
board, council that
joint council that is subordinate to a national
is subordinate national or
international labor
international organization; and
labor organization; and
(C)
(C) agent of a labor
an agent organization.
labor organization.
(11)
(11) "Local commission" means
"Local commission" means a commission
commission on human
human
relations created by
relations created political subdivisions.
more political
by one or more subdivisions.
(ll—a)
(11-a) "Major life
"Major activity" includes,
life activity" but is not
includes, but limited
not limited
caring for
to, caring
to, for oneself, performing manual
oneself, performing manual tasks, hearing,
seeing, hearing,
tasks, seeing,
eating, sleeping,
eating, walking, standing,
sleeping, walking, standing, lifting, bending, speaking,
lifting, bending, speaking,
breathing, learning,
breathing, learning, reading, concentrating, thinking,
reading, concentrating, thinking,
communicating, and
communicating, and working.
working. The term term also
also includes operation
includes the operation
major bodily
of a major bodily function, including, but
function, including, limited to,
but not limited to,
functions of the immune
functions immune system, normal cell
system, normal cell growth, and digestive,
growth, and digestive,
bowel, bladder,
bowel, neurological, brain,
bladder, neurological, circulatory,
respiratory, circulatory,
brain, respiratory,
endocrine, and
endocrine, reproductive functions.
and reproductive functions.
(12)
(12) "Political subdivision" means
"Political subdivision" means a county
county or
municipality.
municipality.
(l2—a)
(12-a) "Regarded as having
"Regarded having such impairment" means
such an impairment" means
subjected to an action
subjected prohibited under
action prohibited under Subchapter
Subchapter B or C because
because
of an actual perceived physical
actual or perceived mental impairment,
physical or mental other than
impairment, other than
impairment that
an impairment that is minor and
is minor and is expected to last
is expected actually
last or actually
lasts less
lasts than six
less than months, regardless
six months, whether the impairment
regardless of whether impairment
limits or is
limits perceived to limit
is perceived major life
limit a major activity.
life activity.
(13)
(13) "Respondent" means
"Respondent" means the person charged
the person charged in a complaint
complaint
filed under this
filed under chapter and
this chapter include an employer,
and may include employment
employer, employment
labor organization,
agency, labor
agency, organization, or joint labor—management committee
joint labor-management committee
apprenticeship or other
controls an apprenticeship
that controls
that training or retraining
other training retraining
program, including
program, on—the—job training
including an on-the-job training program.
program.
(14)
(14) "State agency"
"State agency" means:
means:
(A)
(A) commission, committee,
board, commission,
a board, committee, council,
council,
institution, office,
department, institution,
department, agency in
office, or agency executive branch
in the executive branch
government having
state government
of state having statewide
statewide jurisdiction;
jurisdiction;
(B)
(B) supreme court,
the supreme court, the court criminal
court of criminal
court of appeals,
appeals, a court
appeals, State Bar
appeals, or the State Bar of Texas another
Texas or another
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judicial agency
judicial having statewide
agency having statewide jurisdiction;
jurisdiction; or
(C)
(C) institution of higher
an institution education as
higher education defined by
as defined by
Section 61.003,
Section Education Code.
61.003, Education Code.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
by Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.02(a), eff.
Sec. 9.02(a),
76, Sec. Sept. 1,
eff. Sept. 1995;
1, 1995;
Acts 1997,
Acts 75th Leg.,
1997, 75th Leg., ch.
ch. 834, Sec. 1,
834, Sec. 1, eff. Sept. 1,
eff. Sept. 1, 1997; Acts
1997; Acts
76th Leg.,
1999, 76th
1999, Leg., ch.
ch. 872, Sec. 10,
872, Sec. 10, eff. Sept. 1,
eff. Sept. 1, 1999; Acts 2003,
1999; Acts 2003,
78th Leg.,
78th Leg., ch.
ch. 302, Sec. 4(a).
302, Sec. 4(a).
Amended by:
Amended by:
Acts 2009,
Acts 81st Leg.,
2009, 81st R.S., Ch.
Leg., R.S., 337 (H.B.
Ch. 337 Sec. 1,
978), Sec.
(H.B. 978), eff.
1, eff.
September 1,
September 2009.
1, 2009.
21.0021. CONSTRUCTION
Sec. 21.0021.
Sec. CERTAIN DEFINITIONS.
CONSTRUCTION OF CERTAIN DEFINITIONS. (a) (a) The
"disability":
term "disability":
term
(1)
(1) shall construed in favor
shall be construed broad coverage
favor of broad coverage of
individuals under
individuals under Subchapters
Subchapters B and
and C, maximum extent
C, to the maximum extent
allowed under
allowed under those and
subchapters; and
those subchapters;
(2)
(2) includes impairment that
includes an impairment episodic or in
that is episodic
remission that
remission substantially limits
that substantially major life
limits a major when
activity when
life activity
active.
active.
(b)
(b) determination of whether
The determination whether an impairment
impairment substantially
substantially
major life
limits a major
limits activity must
life activity must be made without regard
made without regard to the
ameliorative effects
ameliorative mitigating measures,
effects of mitigating including:
measures, including:
(1)
(1) medication, medical supplies,
medication, medical medical equipment,
supplies, medical equipment,
medical appliances,
medical prosthetic limbs
appliances, prosthetic and devices,
limbs and hearing aids,
devices, hearing aids,
cochlear implants
cochlear implants and other implantable
and other hearing devices,
implantable hearing mobility
devices, mobility
and oxygen
devices, and
devices, therapy equipment;
oxygen therapy equipment;
(2)
(2) devices that
devices that magnify, otherwise augment
enhance, or otherwise
magnify, enhance, augment a
visual image,
visual other than
image, other than eyeglasses
eyeglasses and contact lenses
and contact lenses that
that are
intended to fully
intended visual acuity
correct visual
fully correct eliminate refractive
acuity or eliminate refractive
EIIOI;
error;
(3)
(3) the use
the assistive technology;
use of assistive technology;
(4)
(4) reasonable accommodations and
reasonable accommodations auxiliary aids
and auxiliary aids or
services; and
services; and
(5)
(5) learned behavioral or adaptive
learned behavioral neurological
adaptive neurological
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modifications.
modifications.
Added by
Added Acts 2009,
by Acts 8lst Leg.,
2009, 81st R.S., Ch.
Leg., R.S., 337 (H.B.
Ch. 337 (H.B. 978), Sec. 2,
978), Sec. 2,
September 1,
eff. September
eff. 2009.
l, 2009.
GENERAL POWERS
21.003. GENERAL
Sec. 21.003.
Sec. AND DUTIES
POWERS AND COMMISSION. (a)
DUTIES OF COMMISSION. (a)
commission may:
The commission may:
(1)
(1) promote the
promote creation of local
the creation local commissions human
commissions on human
rights by
rights by cooperating contracting with
cooperating or contracting individuals or state,
with individuals state,
other agencies,
local, or other
local, public or private,
agencies, public including agencies
private, including agencies of
the federal government and
federal government other states;
and of other states;
(2)
(2) receive, investigate,
receive, seek to conciliate,
investigate, seek and pass
conciliate, and pass on
complaints alleging violations
complaints alleging violations of this
this chapter;
chapter;
(3)
(3) file civil
file effectuate the
actions to effectuate
civil actions purposes of this
the purposes this
chapter;
chapter;
(4)
(4) request and,
request and, if necessary, compel by
necessary, compel subpoena:
by subpoena:
(A)
(A) attendance of necessary
the attendance witnesses for
necessary witnesses for
examination under
examination under oath; and
oath; and
(B)
(B) production, for
the production, inspection and
for inspection and copying,
copying, of
documents, and
records, documents,
records, and other evidence relevant
other evidence relevant to the
investigation of alleged
investigation alleged violations
violations of this
this chapter;
chapter;
(5)
(5) furnish technical
furnish technical assistance requested by
assistance requested person
by a person
subject to this
subject this chapter compliance with
further compliance
chapter to further with this chapter or
this chapter
with a rule
with order issued
rule or order under this
issued under this chapter;
chapter;
(6)
(6) recommend in its
recommend annual report
its annual legislation or other
report legislation other
action to carry
action purposes and
carry out the purposes policies of this
and policies this chapter;
chapter;
(7)
(7) adopt procedural rules
adopt procedural rules to carry
carry out the purposes and
the purposes and
policies of this
policies this chapter; and
chapter; and
(8)
(8) provide educational and
provide educational outreach activities
and outreach activities to
individuals who
individuals historically been
have historically
who have victims of employment
been victims employment
discrimination.
discrimination.
(b)
(b) commission by
The commission by rule commissioner or
authorize a commissioner
rule may authorize
one of its exercise the powers
staff to exercise
its staff powers stated Subsection (a)(4)
stated in Subsection (a)(4)
behalf of the commission.
on behalf commission.
(c)
(C) commission biennially
The commission biennially shall develop an inventory
shall develop inventory of
employment opportunity
equal employment
equal policies and
opportunity policies programs adopted
and programs adopted and
and
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implemented by
implemented various state
by the various agencies.
state agencies.
(d)
(d) commission at least
The commission annually shall
least annually make a
shall make
comprehensive written
comprehensive written report commission's activities
report on the commission's activities to the
governor and
governor legislature.
and to the legislature.
(e)
(e) commission shall
The commission conduct a study
shall conduct policies and
study of the policies and
programs of a selected
programs selected state agency if
state agency commission is
if the commission directed
is directed
conduct the study
to conduct study by legislative resolution
by legislative resolution or by executive
by executive
order of the governor.
order governor.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
by Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.03(a), eff.
Sec. 9.03(a),
76, Sec. Sept. 1,
eff. Sept. 1995;
1, 1995;
Acts 1999,
Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 11,
872, Sec. 11, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Amended by:
Amended by:
Acts 2013,
Acts 83rd Leg.,
2013, 83rd R.S., Ch.
Leg., R.S., 1312 (S.B.
Ch. 1312 (S.B. 59), Sec. 77,
59), Sec. eff.
77, eff.
September 1,
September 2013.
1, 2013.
Sec. 21.0035.
Sec. CIVILIAN WORKFORCE
2l.0035. CIVILIAN WORKFORCE COMPOSITION.
COMPOSITION. (a)
(a) The
commission by
commission by rule biennially determine:
shall biennially
rule shall determine:
(1)
(1) percentage of the
the percentage
the statewide civilian
the statewide workforce
civilian workforce
composed of:
composed of:
(A)
(A) Caucasian Americans;
Caucasian Americans;
(B)
(B) African Americans;
African Americans;
(C)
(C) Hispanic Americans;
Hispanic Americans;
(D)
(D) females; and
females; and
(E)
(E) males; and
males; and
(2)
(2) percentage of the
the percentage
the statewide civilian
the statewide workforce of
civilian workforce
listed in
groups listed
the groups Subdivision (1)
in Subdivision (1) according following job
according to the following job
categories:
categories:
(A)
(A) state administration;
agency administration;
state agency
(B)
(B) professional;
professional;
(C)
(C) technical;
technical;
(D)
(D) protective services;
protective services;
(E)
(E) paraprofessional;
paraprofessional;
(F)
(F) administrative support;
administrative support;
(G)
(G) skilled craft;
skilled craft; andand
(H)
(H) service and
service maintenance.
and maintenance.
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(b)
(b) commission shall
The commission shall report percentages of the
report the percentages
statewide civilian
statewide workforce as
civilian workforce determined under
as determined under this section to
this section
governor and
the governor legislature not later
and the legislature later than
than the fifth
fifth day of
regular session
each regular
each session of the legislature.
legislature.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 12,
872, Sec. 12, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
CRIMINAL OFFENSE
21.004. CRIMINAL
Sec. 21.004.
Sec. OFFENSE OF INTERFERENCE;
INTERFERENCE; PENALTY.
PENALTY.
(a)
(a) A person
A person commits
commits an offense wilfully resists,
person wilfully
offense if the person resists,
prevents, impedes,
prevents, impedes, or interferes performance of a duty
with the performance
interferes with
under or the exercise
under exercise of a power provided by
power provided by this chapter.
this chapter.
(b)
(b) An offense under
An offense under this section is
this section misdemeanor.
Class B misdemeanor.
is a Class
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.005.
Sec. CONSTRUCTION WITH
21.005. CONSTRUCTION OTHER LAWS.
WITH OTHER LAWS. (a)(a) chapter
This chapter
This
does not relieve
does government agency
relieve a government official of the
agency or official
responsibility to ensure
responsibility nondiscrimination in employment
ensure nondiscrimination employment as as
required under
required under another provision of the state
another provision federal
state or federal
constitutions or laws.
constitutions laws.
(b)
(b) chapter does
This chapter
This does not standards for
affect the standards
not affect for
determining eligibility
determining eligibility for benefits
benefits under
under Title under a state
Title 55 or under state
disability benefit
federal disability
or federal benefit program.
program.
(c)
(C) Nothing in
Nothing in this chapter may
this chapter may be construed as
be construed basis for
as the basis for
individual without
claim by an individual
a claim disability that
without a disability individual
that the individual
discrimination because
subject to discrimination
was subject
was individual's lack
because of the individual's lack of a
disability.
disability.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Amended by:
Amended by:
Acts 2009,
Acts 81st Leg.,
2009, 81st R.S., Ch.
Leg., R.S., 337 (H.B.
Ch. 337 Sec. 3,
978), Sec.
(H.B. 978), eff.
3, eff.
September 1,
September 2009.
1, 2009.
Sec. CONFORMITY WITH
21.006. CONFORMITY
Sec. 21.006. WITH FEDERAL
FEDERAL STATUTES.
STATUTES. IfIf a
provision of this
provision chapter is
this chapter held by
is held Equal Employment
by the Equal Employment
Commission to disqualify
Opportunity Commission
Opportunity commission as
disqualify the commission deferral
as a deferral
receipt of federal
agency or for the receipt
agency federal funds, commission shall
funds, the commission shall
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administer this
administer chapter to qualify
this chapter qualify for deferral status
for deferral status or the
receipt of those
receipt those funds
funds until legislature meets
until the legislature meets in next
its next
in its
session and
session and has
has an opportunity amend this
opportunity to amend chapter.
this chapter.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
PRIVILEGED COMMUNICATION;
21.007. PRIVILEGED
Sec. 21.007.
Sec. COMMUNICATION; IMMUNITY. An oral
IMMUNITY. An oral or
written statement
written statement made commissioner or an employee
made to a commissioner employee of the
commission in
commission with the discharge
connection with
in connection commissioner's
discharge of the commissioner's
employee's duties
or employee's under this
duties under chapter may not be the basis
this chapter basis for
for an
action for
action defamation of character.
for defamation character.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.08(a), eff.
Sec. 9.08(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
Sec. 21.008.
Sec. LIMITED SEVERABILITY.
21.008. LIMITED SEVERABILITY. (a) (a) clause,
If any clause,
If
subsection, section,
sentence, subsection,
sentence, section, or other provision of this
other provision chapter
this chapter
application of such
or the application provision to any person
such a provision person or
circumstances is
circumstances held invalid
is held invalid or unconstitutional,
unconstitutional, that invalidity
that invalidity
shall other clauses,
affect the other
shall not affect clauses, sentences, subsections,
sentences, subsections,
provisions or applications
sections, or provisions
sections, applications of this chapter that
this chapter that may
may be
given effect
given without the invalid
effect without invalid clause,
clause, sentence, subsection,
sentence, subsection,
provision or application
section, or provision
section, application and
and shall
shall not affect,
affect,
invalidate, impair,
invalidate, impair, or nullify remainder of this
nullify the remainder chapter. The
this chapter.
determination of invalidity
effect of the determination
effect invalidity shall confined to the
shall be confined
subsection, section,
sentence, subsection,
clause, sentence,
clause, provision or application
section, or provision application
adjudicated to be invalid
so adjudicated
so invalid or unconstitutional,
unconstitutional, and and to that end
that end
provisions of this
the provisions this chapter declared to be severable.
chapter are declared severable.
(b)
(b) limit on damages
If any limit
If prescribed by
damages prescribed Section 21.2585
by Section 21.2585 isis
invalidated method other
invalidated by a method other than legislative means,
than by legislative amount
means, the amount
of civil liability for
civil liability past and
for all past and future noneconomic losses,
future noneconomic losses,
including past
including past and
and future pain and
future pain and suffering, mental anguish
suffering, mental anguish and
and
suffering, and
suffering, nonpecuniary damage,
other nonpecuniary
and any other damage, is limited to an
is limited
amount exceed $150,000.
amount not to exceed $150,000.
(c)
(C) limit on damages
If a limit
If prescribed by
damages prescribed Section 21.2585
by Section 21.2585 isis
invalidated method other
invalidated by a method other than legislative means
than by legislative means and
and if
if the
alternative civil
alternative liability limits
civil liability contained in
limits contained Subsection (b)
in Subsection (b) are
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invalidated by
also invalidated
also method other
by a method other than
than by legislative means,
by legislative means,
Section 21.2585
Section 21.2585 is void.
is void.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.08(a), eff.
Sec. 9.08(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
Sec. 21.009.
Sec. JOINDER OF COMMISSION.
21.009. JOINDER COMMISSION. (a) (a) In any civil
In action
civil action
which the validity
in which
in provision of this
validity of a provision Chapter
chapter or Chapter
this chapter
Government Code,
461, Government
461, rule adopted
Code, a rule under this
adopted under this chapter Chapter
chapter or Chapter
Government Code,
461, Government
461, Code, or the application provision or rule
application of the provision rule
challenged as
is challenged
is unconstitutional, or unenforceable,
void, unconstitutional,
as void, unenforceable, the
commission shall
commission made a party
shall be made proceedings, and,
party to the proceedings, and, on the
motion of the commission,
motion venue of the cause
commission, venue transferred to
cause may be transferred
district courts
the district Travis County.
courts of Travis County.
(b)
(b) An order
An restraining the commission
order restraining invalidating a
commission or invalidating
provision of this
provision this chapter Chapter 461,
chapter or Chapter Government Code,
461, Government Code, or a
commission rule
commission rule adopted under this
adopted under Chapter 461,
chapter or Chapter
this chapter 461,
Government Code,
Government enforced and
Code, may not be enforced and may not take
take effect until
effect until
commission has
the commission answered and
has answered appeared in
and appeared action and
in the action and has
has
exhausted all avenues
exhausted avenues of appeal
appeal and judgment is
and any judgment final and
is final and
enforceable.
enforceable.
(c)
(C) Notwithstanding any other
Notwithstanding provision of state
other provision state law,
law,
including this
including this chapter, commission, if
chapter, only the commission, prevailing party,
if a prevailing party,
recover costs
may recover costs and attorney's fees
and attorney's fees in declaratory
such a declaratory
in such
proceeding under
proceeding under this section.
this section.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.08(a), eff.
Sec. 9.08(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
21.010. EMPLOYMENT
Sec. 21.010.
Sec. DISCRIMINATION TRAINING
EMPLOYMENT DISCRIMINATION TRAINING FOR
FOR STATE
STATE
EMPLOYEES. (a)
EMPLOYEES. (a) Each state
Each agency shall
state agency provide to employees
shall provide employees of
the agency discrimination training
employment discrimination
agency an employment program that
training program that
complies with
complies with this section.
this section.
(b)
(b) The training program must
training program provide the employee
must provide with
employee with
information regarding
information agency's policies
regarding the agency's policies and procedures relating
and procedures relating
employment discrimination,
to employment including employment
discrimination, including discrimination
employment discrimination
involving sexual
involving harassment.
sexual harassment.
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(c)
(C) Each employee
Each employee of a state
state agency
agency shall attend the training
shall attend training
program required
program required by section not later
this section
by this later than
than the 30th after
30th day after
employee is
date the employee
the date hired by
is hired by the agency and shall
agency and attend
shall attend
supplemental training
supplemental training every
every two years.
years.
(d)
(d) commission shall
The commission develop materials
shall develop materials for use by
for use state
by state
providing employment
agencies in providing
agencies discrimination training
employment discrimination training as
as
required by
required section.
this section.
by this
(e)
(e) Each state
Each state agency
agency shall require an employee
shall require employee of the agency
agency
attends a training
who attends
who program required
training program required by section to sign
this section
by this sign a
statement verifying
statement employee's attendance
verifying the employee's attendance at the training
training
program. The agency
program. agency shall
shall file
file the statement employee's
statement in the employee's
personnel file.
personnel file.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 14,
872, Sec. 14, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
SUBCHAPTER B.
SUBCHAPTER B. UNLAWFUL EMPLOYMENT PRACTICES
UNLAWFUL EMPLOYMENT PRACTICES
DISCRIMINATION BY EMPLOYER.
21.051. DISCRIMINATION
Sec. 21.051.
Sec. employer commits
EMPLOYER. An employer commits
unlawful employment
an unlawful practice if because
employment practice because of race, color,
race, color,
disability, religion,
disability, religion, sex, national origin,
sex, national employer:
origin, or age the employer:
(1)
(1) refuses to hire
fails or refuses
fails hire an individual, discharges an
individual, discharges
discriminates in any other
individual, or discriminates
individual, manner against
other manner against an
individual connection with
individual in connection compensation or the terms,
with compensation terms,
conditions, privileges of employment;
conditions, or privileges employment; or
(2)
(2) limits, segregates,
limits, classifies an employee
segregates, or classifies employee or
applicant for
applicant manner that
employment in a manner
for employment would deprive
that would deprive or tend
tend to
deprive an individual
deprive individual of any employment opportunity or adversely
employment opportunity adversely
affect manner the status
other manner
affect in any other status of an employee.
employee.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
DISCRIMINATION BY EMPLOYMENT
21.052. DISCRIMINATION
Sec. 21.052.
Sec. EMPLOYMENT AGENCY.
AGENCY. AnAn
employment agency
employment unlawful employment
commits an unlawful
agency commits practice if the
employment practice
employment agency:
employment agency:
(1)
(1) fails refuses to refer
fails or refuses refer for employment or
for employment
discriminates in any other
discriminates manner against
other manner individual because
against an individual because of
race, color, disability,
race, color, religion, sex,
disability, religion, national origin,
sex, national origin, or age;
age; or
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(2)
(2) classifies or refers
classifies individual for
refers an individual employment on
for employment
basis of race,
the basis disability, religion,
color, disability,
race, color, religion, sex, national
sex, national
origin, or age.
origin, age.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
DISCRIMINATION BY
2l.O53. DISCRIMINATION
Sec. 21.053.
Sec. LABOR ORGANIZATION.
BY LABOR ORGANIZATION. A A labor
labor
organization commits
organization unlawful employment
commits an unlawful practice if
employment practice because of
if because
race, color, disability,
race, color, religion, sex,
disability, religion, national origin,
sex, national origin, or age the
organization:
labor organization:
labor
(1)
(1) excludes or expels
excludes expels from membership or discriminates
from membership discriminates
in any other
in manner against
other manner against an individual;
individual; or
(2)
(2) limits, segregates,
limits, member or an
classifies a member
segregates, or classifies
applicant for
applicant membership or classifies
for membership classifies or fails refer
refuses to refer
fails or refuses
for employment
for individual in
employment an individual manner that
in a manner that would:
would:
(A)
(A) deprive or tend
deprive tend to deprive individual of any
deprive an individual
employment opportunity;
employment opportunity;
(B)
(B) limit an employment
limit opportunity or adversely
employment opportunity adversely
affect in
affect in any other manner the status
other manner employee or of an
status of an employee
applicant for
applicant employment; or
for employment;
(C)
(C) cause attempt to cause
cause or attempt cause an employer violate
employer to violate
subchapter.
this subchapter.
this
Acts 1993,
Acts 73rd Leg.,
l993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, l, eff. Sept. 1,
eff. Sept. l993.
l, 1993.
ADMISSION OR
2l.054. ADMISSION
Sec. 21.054.
Sec. PARTICIPATION IN
OR PARTICIPATION TRAINING PROGRAM.
IN TRAINING PROGRAM.
(a)
(a) training or retraining
Unless a training
Unless retraining opportunity program is
opportunity or program is
provided under
provided affirmative action
under an affirmative approved under
plan approved
action plan under a federal
federal
law, rule,
law, order, an employer,
rule, or order, labor organization,
employer, labor organization, or joint
joint
labor—management committee
labor-management controlling an apprenticeship,
committee controlling apprenticeship,
on—the—job training,
on-the-job training or retraining
other training
training, or other program
retraining program
commits unlawful employment
commits an unlawful practice if
employment practice if the employer, labor
employer, labor
organization, or committee
organization, discriminates against
committee discriminates individual
against an individual
because of race,
because disability, religion,
color, disability,
race, color, religion, sex, national origin,
sex, national origin,
or age inin admission participation in
admission to or participation program.
in the program.
(b)
(b) prohibition against
The prohibition discrimination because
against discrimination because of age in
in
section applies
this section
this applies only discrimination because
only to discrimination because of age against
against
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individual who
an individual who is least 40
is at least 40 years but younger
years of age but than 56
younger than 56
years of age.
years age.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.055.
Sec. RETALIATION. An
21.055. RETALIATION. An employer, labor union,
employer, labor union, or
employment agency
employment unlawful employment
commits an unlawful
agency commits practice if
employment practice if the
labor union,
employer, labor
employer, employment agency
union, or employment retaliates or
agency retaliates
discriminates against
discriminates person who,
against a person under this
who, under chapter:
this chapter:
(1)
(1) opposes discriminatory practice;
opposes a discriminatory practice;
(2)
(2) makes or files
makes files a charge;
charge;
(3)
(3) files complaint; or
files a complaint;
(4)
(4) testifies, assists,
testifies, assists, or participates manner in
participates in any manner
investigation, proceeding,
an investigation, hearing.
proceeding, or hearing.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
AIDING OR
21.056. AIDING
Sec. 21.056.
Sec. ABETTING DISCRIMINATION.
OR ABETTING DISCRIMINATION. AnAn employer,
employer,
labor union,
labor employment agency
union, or employment agency commits unlawful employment
commits an unlawful employment
practice if
practice labor union,
employer, labor
if the employer, employment agency
union, or employment agency aids,
aids,
abets, incites, or coerces
abets, incites, person to engage
coerces a person engage in discriminatory
in a discriminatory
practice.
practice.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
INTERFERENCE WITH
21.057. INTERFERENCE
Sec. 21.057.
Sec. WITH COMMISSION.
COMMISSION. An employer,
employer,
labor union,
labor employment agency
union, or employment unlawful employment
commits an unlawful
agency commits employment
practice if
practice labor union,
employer, labor
if the employer, employment agency
union, or employment agency
wilfully interferes
wilfully interferes with performance of a duty or the exercise
with the performance exercise
power under
of a power under this
this chapter Chapter 461,
chapter or Chapter Government Code,
461, Government by
Code, by
commission's staff,
commission, the commission's
the commission, commission's
staff, or the commission's
representative.
representative.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
PREVENTION OF COMPLIANCE.
21.058. PREVENTION
Sec. 21.058.
Sec. COMPLIANCE. An
An employer, labor
employer, labor
employment agency
union, or employment
union, unlawful employment
commits an unlawful
agency commits practice
employment practice
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labor union,
employer, labor
if the employer,
if employment agency
union, or employment wilfully
agency wilfully
obstructs prevents a person
obstructs or prevents person from with this
complying with
from complying chapter or
this chapter
adopted or order
rule adopted
a rule order issued under this
issued under chapter.
this chapter.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec 21.059.
Sec.. 21 059
. .DISCRIMINATORY NOTICE
DISCRIMINATORY NOTICE OR ADVERTISEMENT
OR ADVERTISEMENT. (a)
(a) An
An
.
employer, labor
employer, employment agency,
organization, employment
labor organization, labor-
joint labor-
agency, or joint
management committee
management controlling an apprenticeship,
committee controlling on—the—job
apprenticeship, on-the-job
training or retraining
other training
training, or other
training, program commits
retraining program commits an
unlawful employment
unlawful practice if
employment practice if the employer, organization,
labor organization,
employer, labor
employment agency,
employment committee prints
agency, or committee publishes or causes
prints or publishes causes to be
printed or published
printed published a notice advertisement relating
notice or advertisement relating to
employment that:
employment that:
(1)
(1) indicates a preference,
indicates preference, limitation, specification, or
limitation, specification,
discrimination based
discrimination based on race, color, disability,
race, color, religion, sex,
disability, religion, sex,
national origin,
national origin, or age; and
age; and
(2)
(2) concerns employee's status,
concerns an employee's employment, or
status, employment,
admission membership or participation
admission to or membership participation in
in a labor union or
labor union
training or retraining
training retraining program.
program.
(b)
(b) This section does
This section not apply if disability,
does not religion, sex,
disability, religion, sex,
national origin,
national origin, or age is bona fide
is a bona occupational qualification.
fide occupational qualification.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
VIOLATION OF
21.060. VIOLATION
Sec. 21.060.
Sec. CONCILIATION AGREEMENT.
OF CONCILIATION AGREEMENT. A party to
A party
conciliation agreement
a conciliation agreement made under this
made under chapter commits
this chapter commits an
unlawful employment
unlawful practice if
employment practice violates the terms
party violates
if the party terms of the
conciliation agreement.
conciliation agreement.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. INSUFFICIENT EVIDENCE
21.061. INSUFFICIENT
Sec. 21.061. UNLAWFUL PRACTICE.
EVIDENCE OF UNLAWFUL PRACTICE. In In
absence of other
the absence evidence of an unlawful
other evidence unlawful employment
employment practice,
practice,
evidence of the employment
evidence person in
employment of one person in place another is
place of another is not
sufficient establish an unlawful
sufficient to establish unlawful employment
employment practice.
practice.
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Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
SUBCHAPTER C.
SUBCHAPTER APPLICATION;
C. APPLICATION; EXCEPTIONS
EXCEPTIONS
Sec 21.101.
Sec. .21 101 . AGE
. DISCRIMINATION LIMITED
AGE DISCRIMINATION LIMITED TO INDIVIDUALS
INDIVIDUALS OF
CERTAIN AGE.
CERTAIN Except as
AGE. Except provided by
as provided Section 21.054,
by Section provisions
21.054, the provisions
chapter referring
this chapter
of this discrimination because
referring to discrimination because of age or on
discrimination against
basis of age apply only to discrimination
the basis individual
against an individual
40 years
40 older.
years of age or older.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
BONA FIDE
21.102. BONA
Sec. 21.102.
Sec. EMPLOYEE BENEFIT
EIDE EMPLOYEE BENEFIT PLAN; PRODUCTION
PLAN; PRODUCTION
MEASUREMENT SYSTEM.
MEASUREMENT SYSTEM. (a)(a) Except as
Except provided by Subsections
as provided Subsections (b) and
(b) and
(c), employer does
(c), an employer does not commit unlawful employment
commit an unlawful practice by
employment practice
different standards
applying different
applying compensation or different
standards of compensation different terms,
terms,
privileges of employment
conditions, or privileges
conditions, employment under:
under:
(1)
(1) bona fide
a bona seniority system,
fide seniority merit system,
system, merit system, or an
employee benefit plan,
employee benefit such as
plan, such retirement, pension,
as a retirement, insurance
pension, or insurance
that is
plan, that
plan, subterfuge to evade
is not a subterfuge evade this chapter; or
this chapter;
(2)
(2) system that
a system measures earnings
that measures earnings by quantity
quantity or
production.
quality of production.
quality
(b)
(10) An employee
An benefit plan
employee benefit plan may excuse a failure
not excuse
may not failure to hire
hire
basis of age.
on the basis age. A seniority system
A seniority system or employee benefit plan
employee benefit plan
permit involuntary
require or permit
may not require
may retirement on the basis
involuntary retirement basis of
except as
age except permitted by Section
as permitted Section 21.103.
21.103.
(c)
(C) section does
This section
This does not
not apply to standards compensation
standards of compensation
privileges of employment
conditions, or privileges
terms, conditions,
or terms, employment that
that are
discriminatory on the basis
discriminatory basis of race, disability, religion,
color, disability,
race, color, religion,
national origin,
sex, national
sex, origin, or age.
age.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
COMPULSORY RETIREMENT
21.103. COMPULSORY
Sec. 21.103.
Sec. RETIREMENT PERMITTED
PERMITTED FOR CERTAIN
FOR CERTAIN
EMPLOYEES. This
EMPLOYEES. chapter does
This chapter prohibit the compulsory
does not prohibit compulsory
retirement of an employee
retirement employee who
who is:
is:
(1)
(1) least 65
at least years of age;
65 years age;
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(2)
(2) bona fide
employed in a bona
employed executive or high
fide executive policy-
high policy-
making position
making position for
for the two years preceding retirement;
years preceding and
retirement; and
(3)
(3) entitled to an immediate,
entitled nonforfeitable annual
immediate, nonforfeitable annual
retirement benefit
retirement benefit from
from a pension, profit—sharing, savings,
pension, profit-sharing, savings, or
deferred compensation
deferred compensation plan combination of plans
plan or a combination plans of the
employee's employer
employee's employer that
that equals,
equals, in least $27,000.
aggregate, at least
in the aggregate, $27,000.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. I993.
1, 1993.
2l.l04. AGE
Sec. 21.104.
Sec. REQUIREMENT FOR
AGE REQUIREMENT OEEICERS OR
PEACE OFFICERS
EOR PEACE EIRE
OR FIRE
FIGHTERS. An
FIGHTERS. An employer
employer does unlawful employment
commit an unlawful
does not commit employment
practice by
practice by imposing minimum or maximum
imposing a minimum maximum age requirement
requirement for peace
for peace
officers or fire
officers fighters.
fire fighters.
Acts 1993,
Acts 73rd Leg.,
I993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, l, eff. Sept. 1,
eff. Sept. l993.
l, 1993.
DISCRIMINATION BASED
2l.l05. DISCRIMINATION
Sec. 21.105.
Sec. BASED ON DISABILITY. A
ON DISABILITY. provision
A provision
subchapter or Subchapter
this subchapter
in this
in Subchapter B referring discrimination
referring to discrimination
because disability or on the basis
because of disability disability applies
basis of disability applies only
only to
discrimination because
discrimination because of or on the basis mental
physical or mental
basis of a physical
condition that
condition that does individual's ability
impair an individual's
does not impair ability to
reasonably perform a job.
reasonably perform job.
Acts 1993,
Acts 73rd Leg.,
l993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. l, eff. Sept. 1,
eff. Sept. l993.
l, 1993.
2l.l06. SEX
Sec. 21.106.
Sec. DISCRIMINATION. (a)
SEX DISCRIMINATION. (a) A provision in
A provision this
in this
chapter referring
chapter discrimination because
referring to discrimination because of sex basis
sex or on the basis
sex includes
of sex discrimination because
includes discrimination because of or on the basis
basis of
childbirth, or a related
pregnancy, childbirth,
pregnancy, medical condition.
related medical condition.
(b)
(b) A affected by
woman affected
A woman pregnancy, childbirth,
by pregnancy, related
childbirth, or a related
medical condition
medical condition shall treated for
shall be treated purposes related
for all purposes related to
including receipt
employment, including
employment, benefit under
receipt of a benefit under a fringe benefit
fringe benefit
program, in
program, manner as
same manner
in the same another individual
as another affected but
individual not affected but
similar in
similar individual's ability
in the individual's inability to work.
ability or inability work.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. I993.
1, 1993.
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Sec. 21.107.
Sec. 21.107. EFFECT ABORTION BENEFITS.
EFFECT ON ABORTION BENEFITS. chapter does
This chapter
This does
not:
not:
(1)
(1) require an employer
require employer to pay health insurance
for health
pay for insurance
benefits for abortion
benefits abortion unless
unless the life mother would
life of the mother would be
endangered if the fetus
endangered fetus were carried to term;
were carried term;
(2)
(2) preclude an employer
preclude employer from providing abortion
from providing abortion
benefits; or
benefits;
(3)
(3) affect bargaining agreement
affect a bargaining agreement relating
relating to abortion.
abortion.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
DISCRIMINATION BASED
21.108. DISCRIMINATION
Sec. 21.108.
Sec. BASED ON RELIGION.
RELIGION. A provision
A provision
chapter referring
this chapter
in this discrimination because
referring to discrimination religion or
because of religion
religion applies
basis of religion
on the basis discrimination because
applies to discrimination because of or on
basis of any aspect
the basis religious observance,
aspect of religious observance, practice,
practice, or
unless an employer
belief, unless
belief, demonstrates that
employer demonstrates employer is
that the employer unable
is unable
accommodate the religious
reasonably to accommodate
reasonably observance or practice
religious observance practice of
applicant without
employee or applicant
an employee without undue hardship to the conduct
undue hardship conduct of
employer's business.
the employer's business.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.109.
Sec. EMPLOYMENT BY
21.109. EMPLOYMENT RELIGIOUS ORGANIZATION.
BY RELIGIOUS ORGANIZATION. (a) (a) A
A
religious corporation,
religious association, society,
corporation, association, educational
society, or educational
institution or an educational
institution educational organization
organization operated, supervised, or
operated, supervised,
controlled in whole
controlled substantial part
whole or in substantial part by a religious
religious
corporation, society does
association, or society
corporation, association, does not commit unlawful
commit an unlawful
practice by limiting
employment practice
employment limiting employment preference
giving a preference
employment or giving
members of the same
to members religion.
same religion.
(b)
(b) Subchapter B does
Subchapter does not employment of an
not apply to the employment
individual particular religion
individual of a particular religion by a religious
religious corporation,
corporation,
perform work
society to perform
association, or society
association, connected with
work connected with the
performance of religious
performance activities by the corporation,
religious activities corporation,
association, or society.
association, society.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
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DISCRIMINATION BASED
21.110. DISCRIMINATION
Sec. 21.110.
Sec. NATIONAL ORIGIN.
BASED ON NATIONAL ORIGIN. A A
provision in this
provision chapter referring
this chapter discrimination because
referring to discrimination because of
national origin
national origin or on the basis national origin
basis of national origin includes
includes
discrimination because
discrimination because of or on the basis national origin
basis of the national origin of
ancestor.
an ancestor.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
21.111. PERSON
Sec. 21.111.
Sec. EMPLOYED OUT
PERSON EMPLOYED OUT OF STATE.
STATE. This chapter does
This chapter does
with respect
employer with
not apply to an employer respect to the employment person
employment of a person
outside this
outside this state.
state.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
EMPLOYEES AT
21.112. EMPLOYEES
Sec. 21.112.
Sec. DIFFERENT LOCATIONS.
AT DIFFERENT LOCATIONS. An employer
An employer
unlawful employment
commit an unlawful
does not commit
does practice by applying
employment practice applying to
employees who
employees work in different
who work different locations different standards
locations different standards of
compensation or different
compensation different terms, privileges of
conditions, or privileges
terms, conditions,
employment that
employment discriminatory on the basis
that are not discriminatory basis of race, color,
race, color,
disability, religion,
disability, religion, sex, national origin,
sex, national origin, or age.
age.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
IMBALANCE PLAN
21.113. IMBALANCE
Sec. 21.113.
Sec. PLAN NOT
NOT REQUIRED.
REQUIRED. This chapter does
This chapter does
not require person subject
require a person subject to this chapter to grant
this chapter preferential
grant preferential
treatment to an individual
treatment individual or a group
group on the basis
basis of race, color,
race, color,
disability, religion,
disability, religion, sex, national origin,
sex, national because of an
origin, or age because
imbalance between:
imbalance between:
(1)
(1) the total
the percentage of persons
number or percentage
total number persons of that
that
individual's group's race,
individual's or group's disability, religion,
color, disability,
race, color, religion, sex,
sex,
national origin,
national origin, or age: age:
(A)
(A) employed by
employed employer;
by an employer;
(B)
(B) referred classified for
referred or classified employment by
for employment by an
employment agency
employment organization;
labor organization;
agency or labor
(C)
(C) admitted membership or classified
admitted to membership classified by labor
by a labor
organization; or
organization;
(D)
(D) admitted to or employed
admitted employed in apprenticeship,
in an apprenticeship,
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on—the—job training,
on-the-job training, or other training or retraining
other training retraining program;
program; andand
(2)
(2) the total
the percentage of persons
number or percentage
total number persons of that
that
race, disability, religion,
color, disability,
race, color, religion, sex, national origin,
sex, national origin, or age in:
in:
(A)
(A) a community, this state,
community, this state, a region, other
region, or other
area; or
area;
(B)
(B) available work
the available work force
force in this
community, this
in a community,
other area.
region, or other
state, a region,
state, area.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
PLAN TO END
21.114. PLAN
Sec. 21.114.
Sec. DISCRIMINATORY SCHOOL
END DISCRIMINATORY SCHOOL PRACTICES.
PRACTICES. AA
public school
public official does
school official unlawful employment
commit an unlawful
does not commit employment
practice by
practice by adopting implementing a plan
adopting or implementing plan reasonably designed to
reasonably designed
discriminatory school
end discriminatory
end practices.
school practices.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. BUSINESS NECESSITY.
21.115. BUSINESS
Sec. 21.115. NECESSITY. (a)(a) Subject Subsection
Subject to Subsection
(b), employer does
(b), an employer does not commit unlawful employment
commit an unlawful practice by
employment practice
engaging in
engaging practice that
in a practice that has discriminatory effect
has a discriminatory effect and
and that
that
would otherwise
would prohibited by this
otherwise be prohibited chapter if
this chapter employer
if the employer
establishes that
establishes practice:
that the practice:
(1)
(1) not intentionally
is not devised or operated
intentionally devised operated to
contravene prohibitions of this
contravene the prohibitions and
chapter; and
this chapter;
(2)
(2) justified by business
is justified business necessity.
necessity.
(b)
(b) employer may
An employer
An not use
may not qualification standard,
use a qualification standard,
employment test,
employment other selection
test, or other criterion based
selection criterion based on an
individual's uncorrected
individual's uncorrected vision
vision unless
unless the standard,
standard, test,
test, or
criterion is
criterion consistent with
is consistent business necessity
with business necessity and job—related for
and job-related for
position to which
the position which the standard,
standard, test, criterion applies.
test, or criterion applies.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Amended by:
Amended by:
Acts 2009,
Acts 81st Leg.,
2009, 81st R.S., Ch.
Leg., R.S., 337 (H.B.
Ch. 337 Sec. 4,
978), Sec.
(H.B. 978), eff.
4, eff.
September 1,
September 2009.
1, 2009.
Sec. 21.116.
Sec. 21.116. RELIANCE COMMISSION INTERPRETATION
RELIANCE ON COMMISSION INTERPRETATION OR
OR
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OPINION. (a)
OPINION. (a) A person is
A person liable for
is not liable unlawful employment
for an unlawful employment
practice performed in
practice performed good faith
in good faith and
and in conformity with
in conformity with and
and in
in
written interpretation
reliance on a written
reliance interpretation or opinion
opinion of the commission.
commission.
(b)
(b) proceeding alleging
In a proceeding
In alleging an unlawful
unlawful employment
employment practice,
practice,
respondent has
the respondent has the burden pleading and
burden of pleading proving the defense
and proving defense
provided by
provided section.
this section.
by this
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
EMPLOYMENT OF FAMILY
21.117. EMPLOYMENT
Sec. 21.117.
Sec. FAMILY MEMBER. Subchapter B does
MEMBER. Subchapter does
individual by
employment of an individual
not apply to the employment individual's
by the individual's
parent, spouse,
parent, child.
spouse, or child.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
21.118. STATEWIDE
Sec. 21.118.
Sec. HOMETOWN PLAN.
STATEWIDE HOMETOWN Subchapter B does
PLAN. Subchapter does not
not
labor union,
apply to a labor union, firm,
firm, association, individual
association, or individual
participating on September
participating September 23, 1983, in
23, 1983, hometown plan
statewide hometown
in a statewide plan
approved by the United
approved United States Department of Labor.
States Department Labor.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. BONA FIDE
21.119. BONA
Sec. 21.119. OCCUPATIONAL QUALIFICATION.
FIDE OCCUPATIONAL QUALIFICATION. IfIf
disability, religion,
disability, religion, sex, national origin,
sex, national origin, or age is bona fide
is a bona fide
occupational qualification reasonably
occupational qualification reasonably necessary
necessary to the normal
normal
operation particular business
operation of the particular business or enterprise, performing any
enterprise, performing
following practices
of the following practices on the basis
basis of disability,
disability, religion,
religion,
national origin,
sex, national
sex, employee, member,
origin, or age of an employee, other
member, or other
individual is
individual unlawful employment
is not an unlawful employment practice:
practice:
(1)
(1) an employer hiring and
employer hiring employing an employee;
and employing employee;
(2)
(2) employment agency
an employment agency classifying referring an
classifying or referring
individual for
individual employment;
for employment;
(3)
(3) a labor organization classifying
labor organization classifying its members or
its members
classifying referring an individual
classifying or referring individual for employment; or
for employment;
(4)
(4) labor organization,
employer, labor
an employer, labor-
joint labor-
organization, or joint
management committee
management controlling an apprenticeship,
committee controlling on—the—job
apprenticeship, on-the-job
training or retraining
other training
training, or other
training, program admitting
retraining program admitting or
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employing individual in
employing an individual program.
its program.
in its
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
21.120. USE
Sec. 21.120.
Sec. OR POSSESSION
USE OR CONTROLLED SUBSTANCE.
POSSESSION OF CONTROLLED SUBSTANCE. (a)(a)
An employer
An employer does unlawful employment
commit an unlawful
does not commit practice by
employment practice by
adopting a policy
adopting prohibiting the employment
policy prohibiting individual who
employment of an individual who
currently uses
currently uses or possesses controlled substance
possesses a controlled substance as defined in
as defined in
Schedules I1 and
Schedules and II Section 202,
11 of Section Controlled Substances
202, Controlled Substances Act, and
Act, and
their subsequent
their amendments (21
subsequent amendments Section 801
U.S.C. Section
(21 U.S.C. 801 et seq.), other
seq.), other
possession of a drug
than the use or possession
than taken under
drug taken supervision of
under the supervision
health care
licensed health
a licensed professional or any other
care professional possession
other use or possession
authorized by
authorized Controlled Substances
by the Controlled Substances Act other federal
Act or any other federal or
state law.
state law.
(b)
(b) Subsection (a)
Subsection does not
(a) does not apply to a policy adopted or
policy adopted
applied with
applied with the intent discriminate because
intent to discriminate because of race, color,
race, color,
national origin,
sex, national
sex, religion, age,
origin, religion, disability.
age, or disability.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.04(a), eff.
Sec. 9.04(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
WORK FORCE
21.121. WORK
Sec. 21.121.
Sec. DIVERSITY PROGRAMS.
FORCE DIVERSITY PROGRAMS. An employer does
An employer does
unlawful employment
commit an unlawful
not commit practice by developing
employment practice developing and
and
implementing personnel
implementing personnel policies
policies that incorporate work
that incorporate work force
force
diversity programs.
diversity programs.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.04(a), eff.
Sec. 9.04(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
Sec. 21.122.
Sec. BURDEN OF PROOF
21.122. BURDEN PROOF IN DISPARATE IMPACT
IN DISPARATE IMPACT CASES.
CASES. (a)
(a)
unlawful employment
An unlawful
An employment practice based on disparate
practice based disparate impact
impact is
is
established under
established under this chapter only if:
this chapter if:
(1)
(1) complainant demonstrates
a complainant demonstrates that respondent uses
that a respondent uses a
particular employment
particular practice that
employment practice that causes disparate impact
causes a disparate impact on
basis of race,
the basis color, sex,
race, color, national origin,
sex, national religion, or
origin, religion,
disability and
disability respondent fails
and the respondent demonstrate that
fails to demonstrate that the
challenged practice
challenged practice is job—related for
is job-related position in
for the position question and
in question and
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consistent with
consistent business necessity;
with business necessity; or
(2)
(2) complainant makes
the complainant
the makes the demonstration in accordance
the demonstration accordance
with federal
with federal lawlaw as that law
as that existed June
law existed June 4, with respect
1989, with
4, 1989, respect to
the concept alternative employment
concept of alternative employment practices, respondent
and the respondent
practices, and
refuses to adopt
refuses adopt such alternative employment
such an alternative employment practice.
practice.
(b)
(b) determine the availability
To determine availability of and burden of proof
and burden proof
applicable to a disparate
applicable disparate impact
impact case involving age discrimination,
case involving discrimination,
court shall
the court shall apply the judicial interpretation of the Age
judicial interpretation Age
Discrimination in
Discrimination Employment Act
in Employment Act of 1967 and its
1967 and subsequent
its subsequent
amendments (29
amendments (29 U.S.C. Section 621
U.S.C. Section seq.).
621 et seq.).
(c)
(C) demonstrate that
To demonstrate particular employment
that a particular practice
employment practice
disparate impact,
causes a disparate
causes complainant must
impact, the complainant demonstrate that
must demonstrate that
particular challenged
each particular
each challenged employment practice causes
employment practice disparate
causes a disparate
except that
impact, except
impact, that if complainant demonstrates
if the complainant demonstrates to the
satisfaction of the court
satisfaction court that
that the elements respondent's
elements of a respondent's
decision—making process
decision-making process are not capable separation for
capable of separation for analysis,
analysis,
decision—making process
that decision-making
that process may be analyzed
analyzed as employment
as one employment
practice.
practice.
(d)
(d) If the respondent
If demonstrates that
respondent demonstrates that a specific practice
specific practice
does not cause
does disparate impact,
cause a disparate respondent may not be
impact, the respondent
required demonstrate that
required to demonstrate practice is
that the practice consistent with
is consistent with
business necessity.
business necessity.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
21.123. SCOPE
Sec. 21.123.
Sec. DEFENSE. A
SCOPE OF DEFENSE. demonstration that
A demonstration that an
practice is
employment practice
employment is consistent with business
consistent with business necessity
necessity may not
used as
be used under this
defense under
as a defense chapter against
this chapter complaint of
against a complaint
intentional discrimination.
intentional discrimination.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
PROHIBITION AGAINST
2l.l24. PROHIBITION
Sec. 21.124.
Sec. DISCRIMINATORY USE
AGAINST DISCRIMINATORY USE OF TEST
OF TEST
SCORES. It
SCORES. It is unlawful employment
is an unlawful practice for
employment practice respondent, in
for a respondent, in
connection with
connection selection or referral
with the selection applicants for
referral of applicants for
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employment or promotion,
employment adjust the scores
promotion, to adjust scores of, different
use different
of, use
cutoff scores
cutoff scores for, otherwise alter
for, or otherwise alter the results employment-
results of employment-
related tests
related basis of race,
tests on the basis color, sex,
race, color, national origin,
sex, national origin,
religion, age,
religion, disability.
age, or disability.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
CLARIFYING PROHIBITION
21.125. CLARIFYING
Sec. 21.125.
Sec. PROHIBITION AGAINST IMPERMISSIBLE
AGAINST IMPERMISSIBLE
CONSIDERATION OF RACE,
CONSIDERATION COLOR, SEX,
RACE, COLOR, NATIONAL ORIGIN,
SEX, NATIONAL RELIGION, AGE,
ORIGIN, RELIGION, AGE,
OR DISABILITY IN
OR DISABILITY EMPLOYMENT PRACTICES.
IN EMPLOYMENT PRACTICES. (a) (a) Except as
Except otherwise
as otherwise
provided by
provided this chapter,
by this unlawful employment
chapter, an unlawful practice is
employment practice is
established when
established complainant demonstrates
when the complainant demonstrates that
that race, color,
race, color,
national origin,
sex, national
sex, religion, age,
origin, religion, disability was
age, or disability motivating
was a motivating
factor for
factor employment practice,
for an employment even if
practice, even other factors
if other factors also
also
motivated the practice,
motivated unless race,
practice, unless color, sex,
race, color, national origin,
sex, national origin,
religion, age,
religion, disability is
age, or disability is combined with objective
combined with job—related
objective job-related
factors to attain
factors diversity in
attain diversity employer's work
in the employer's work force.
force.
(b)
(b) In a complaint
In which a complainant
complaint in which complainant proves violation
proves a violation
under Subsection
under Subsection (a) respondent demonstrates
and a respondent
(a) and demonstrates that
that the
respondent would have
respondent would taken the same
have taken action in
same action absence of the
in the absence
impermissible motivating factor,
impermissible motivating factor, the court declaratory
grant declaratory
court may grant
injunctive relief
relief, injunctive
relief, relief except
except asas otherwise provided by
otherwise provided this
by this
subsection, and
subsection, attorney's fees
and attorney's and costs
fees and demonstrated to be
costs demonstrated
attributable only to the pursuit
directly attributable
directly pursuit of a complaint under
complaint under
Subsection (a),
Subsection award damages
but may not award
(a), but damages or issue order
issue an order
requiring an admission,
requiring reinstatement, hiring,
admission, reinstatement, back
promotion, or back
hiring, promotion,
PaY«
pay.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995. Amended by Acts
1995. Amended Acts 1997, 75th Leg.,
1997, 75th Leg., ch. Sec. 1,
1126, Sec.
ch. 1126, eff.
1, eff.
Sept. 1,
Sept. 1997.
1, 1997.
COVERAGE OF
21.126. COVERAGE
Sec. 21.126.
Sec. PREVIOUSLY EXEMPT
OF PREVIOUSLY EMPLOYEES OF
EXEMPT EMPLOYEES OF THE
STATE OR POLITICAL
STATE OR SUBDIVISION OF
POLITICAL SUBDIVISION OF THE STATE.
STATE. ItIt is unlawful
is an unlawful
practice for
employment practice
employment person elected
for a person elected to public
public office
office in this
in this
political subdivision
state or a political
state subdivision of this discriminate
state to discriminate
this state
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because of race,
because color, sex,
race, color, national origin,
sex, national religion, age,
origin, religion, age, or
disability against
disability individual who
against an individual who is applicant
employee or applicant
is an employee
for employment to:
for employment to:
(1)
(1) serve on the
serve the elected official's personal
elected official's personal staff;
staff;
(2)
(2) serve the
serve elected official
the elected policy—making level;
official on a policy-making level;
or
(3)
(3) serve the
serve elected official
the elected official as an immediate advisor
immediate advisor
with respect
with respect to the exercise constitutional or legal
exercise of the constitutional powers
legal powers
office.
of the office.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
EXPANSION OF RIGHTS
21.127. EXPANSION
Sec. 21.127.
Sec. RIGHTS TO CHALLENGE DISCRIMINATORY
CHALLENGE DISCRIMINATORY
SENIORITY SYSTEMS
SENIORI TY SYSTEMS.. With respect
With seniority system
respect to a seniority adopted for
system adopted for
intentionally discriminatory
an intentionally discriminatory purpose
purpose in violation of this
in violation this
whether that
chapter, whether
chapter, discriminatory purpose
that discriminatory purpose is apparent on the
is apparent
seniority provision,
face of the seniority
face unlawful employment
provision, an unlawful practice
employment practice
occurs when:
occurs when:
(1)
(1) seniority system
the seniority
the system is adopted;
adopted;
(2)
(2) individual becomes
an individual becomes subject
subject to the
the system;
system; or
(3)
(3) individual is injured
an individual injured by
by the application of the
the application the
system provision of the system.
system or a provision system.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
Sec.
. REASONABLE ACCOMMODATION;
21.128. REASONABLE
Sec 21.128. ACCOMMODATION; GOOD
GOOD FAITH
FAITH EFFORT.
EFFORT .
(a)
(a) It is
It unlawful employment
is an unlawful practice for
employment practice for a respondent covered
respondent covered
under this
under chapter to fail
this chapter fail or refuse make a reasonable
refuse to make workplace
reasonable workplace
accommodation to a known
accommodation mental limitation
physical or mental
known physical limitation of an
otherwise qualified individual
otherwise qualified individual with disability who
with a disability who is employee
is an employee
applicant for
or applicant for employment, respondent demonstrates
unless the respondent
employment, unless demonstrates
accommodation would
that the accommodation
that would impose hardship on the
undue hardship
impose an undue
operation of the business
operation business of the respondent.
respondent.
(b)
(b) A showing of undue
A showing hardship by
undue hardship respondent is
by the respondent is a
defense to a complaint
defense discrimination made
complaint of discrimination otherwise
made by an otherwise
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qualified individual
qualified individual with
with a disability.
disability. In considering a complaint
In considering complaint
based on a disability,
based commission shall
disability, the commission consider the
shall consider
reasonableness of the cost
reasonableness necessary workplace
cost of any necessary accommodation
workplace accommodation
availability of alternatives
and the availability
and alternatives or other appropriate relief.
other appropriate relief.
(c)
(C) complaint in
In a complaint
In in which discriminatory employment
which a discriminatory employment
practice involves
practice provision of a reasonable
involves the provision workplace
reasonable workplace
accommodation under
accommodation under this
this chapter, awarded under
damages may not be awarded
chapter, damages under
Subchapter F if
Subchapter respondent demonstrates
if the respondent demonstrates good
good faith
faith efforts,
efforts, inin
consultation with
consultation with the otherwise qualified individual
otherwise qualified individual with
with a
disability who
disability who has informed the respondent
has informed respondent that accommodation is
that accommodation is
identify and
needed, to identify
needed, and make reasonable workplace
make a reasonable accommodation
workplace accommodation
would provide
that would
that provide the individual
individual with
with an equally effective
equally effective
opportunity and
opportunity would not cause
and would hardship on the operation
undue hardship
cause an undue operation
business.
of the business.
(d)
(d) A respondent is
A respondent obligated to make
not obligated
is not reasonable
make a reasonable
workplace accommodation to a known
workplace accommodation mental limitation
physical or mental
known physical limitation of
an otherwise qualified individual
otherwise qualified individual under
under Subsection
Subsection (a) if the
(a) if
individual's disability
individual's disability is based solely
is based being regarded
solely on being regarded as having
as having
impairment that
an impairment substantially limits
that substantially limits at least major life
least one major life
activity.
activity.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
Amended by:
Amended by:
Acts 2009,
Acts 81st Leg.,
2009, 81st R.S., Ch.
Leg., R.S., 337 (H.B.
Ch. 337 Sec. 5,
978), Sec.
(H.B. 978), eff.
5, eff.
September 1,
September 2009.
I, 2009.
COURT—ORDERED REMEDIES,
2l.l29. COURT-ORDERED
Sec. 21.129.
Sec. AEEIRMATIVE ACTION
REMEDIES, AFFIRMATIVE ACTION
AND CONCILIATION
AGREEMENTS, AND
AGREEMENTS, AGREEMENTS NOT
CONCILIATION AGREEMENTS AFFECTED. This
NOT AFFECTED. chapter
This chapter
does court—ordered remedy,
affect a court-ordered
does not affect affirmative action
remedy, affirmative action
conciliation agreement
agreement, or conciliation
agreement, agreement made
made in
in accordance with law.
accordance with law.
Added by Acts
Added Acts 1995, 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.05(a), eff.
Sec. 9.05(a),
76, Sec. Sept. 1,
eff. Sept. 1,
1995.
1995.
SUBCHAPTER D.
SUBCHAPTER ENFORCEMENT
LOCAL ENFORCEMENT
D. LOCAL
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ENFORCEMENT BY ORDINANCE.
21.151. ENFORCEMENT
Sec. 21.151.
Sec. ORDINANCE. A political
A political
subdivision may adopt
subdivision adopt and enforce an order
and enforce ordinance that
order or ordinance that
prohibits a practice
prohibits practice that
that is unlawful under
is unlawful under this
this chapter, another
chapter, another
state law,
state federal law.
law, or federal law.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. CREATION OF LOCAL
21.152. CREATION
Sec. 21.152. LOCAL COMMISSION.
COMMISSION. (a)(a) A political
A political
subdivision or two or more
subdivision political subdivisions
more political subdivisions acting
acting jointly
jointly
create a local
may create commission to:
local commission to:
(1)
(1) promote the
promote purposes of this
the purposes chapter; and
this chapter; and
(2)
(2) secure for
secure for all individuals in the
all individuals jurisdiction of
the jurisdiction
political subdivision
each political
each subdivision freedom
freedom from discrimination because
from discrimination because of
color, disability,
race, color,
race, religion, sex,
disability, religion, national origin,
sex, national origin, or age.
age.
(b)
(b) political subdivision
The political subdivision creating
creating a local commission may
local commission
appropriate funds
appropriate expenses of the local
funds for the expenses commission.
local commission.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
GENERAL POWERS
21.153. GENERAL
Sec. 21.153.
Sec. AND DUTIES
POWERS AND DUTIES OF LOCAL COMMISSION.
OF LOCAL COMMISSION.
(a)
(a) A local
A commission may:
local commission may:
(1)
(1) executive director
employ an executive
employ director and other employees
and other employees and
and
agents and
agents their compensation;
and set their compensation;
(2)
(2) cooperate or contract
cooperate contract with
with a person, including an
person, including
agency of the federal
agency government or of another
federal government another state
state or
municipality; and
municipality; and
(3)
(3) accept public grant
accept a public private gift,
grant or private bequest, or
gift, bequest,
other payment.
other payment.
(b)
(b) A local
A commission shall
local commission prepare at least
shall prepare annually a
least annually
report and
report furnish a copy of the report
and furnish Commission on Human
report to the Commission Human
Rights.
Rights.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
INVESTIGATORY AND
21.154. INVESTIGATORY
Sec. 21.154.
Sec. CONCILIATORY POWERS
AND CONCILIATORY LOCAL
POWERS OF LOCAL
COMMISSION. (a)
COMMISSION. (a) federal government
If the federal
If Commission on
government or the Commission
Human Rights
Human Rights refers complaint alleging
refers a complaint violation of this
alleging a violation this
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chapter to a local
chapter commission or defers
local commission jurisdiction over
defers jurisdiction over the
subject matter of the complaint
subject matter complaint to a local
local commission, local
commission, the local
commission may receive,
commission investigate, conciliate,
receive, investigate, conciliate, or rule
rule on the
complaint and
complaint and may file action to carry
civil action
file a civil purposes of
carry out the purposes
chapter.
this chapter.
this
(b)
(b) The local commission may request,
local commission and as
request, and necessary,
as necessary,
compel by
compel subpoena:
by subpoena:
(1)
(1) attendance of a witness
the attendance
the witness for examination under
for examination under
oath; or
oath;
(2)
(2) production for
the production
the inspection or copying
for inspection copying of a record,
record,
document, or other
document, evidence relevant
other evidence investigation of an
relevant to the investigation
alleged violation
alleged violation of this chapter.
this chapter.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
REFERRAL TO LOCAL
21.155. REFERRAL
Sec. 21.155.
Sec. COMMISSION AND
LOCAL COMMISSION ACTION ON
AND ACTION
COMPLAINTS. (a)
COMPLAINTS. (a) Commission on Human
The Commission Human Rights
Rights shall refer a
shall refer
complaint concerning
complaint discrimination in
concerning discrimination because of race,
employment because
in employment race,
color, disability,
color, religion, sex,
disability, religion, national origin,
sex, national that is
origin, or age that is
with that
filed with
filed commission to a local
that commission commission with
local commission with the necessary
necessary
investigatory and
investigatory conciliatory powers
and conciliatory powers if:
if:
(1)
(1) complaint has
the complaint
the referred to the
been referred
has been Commission on
the Commission
Human Rights
Human Rights by federal government;
by the federal government; or
(2)
(2) jurisdiction over
jurisdiction over the
the subject matter of the
subject matter complaint
the complaint
been deferred
has been
has Commission on Human
deferred to the Commission Human Rights
Rights by federal
by the federal
government.
government.
(b)
(b) The local commission shall
local commission shall take appropriate action
take appropriate action to
remedy the practice
remedy alleged as
practice alleged discriminatory in
as discriminatory referred
in the referred
complaint.
complaint.
(c)
(C) If the local
If commission does
local commission not act on the complaint
does not complaint
within 60
within longer time
days or a longer
60 days time that
that is Commission
reasonable, the Commission
is reasonable,
Human Rights
on Human Rights shall responsibility for
reassume responsibility
shall reassume complaint and
for the complaint and
appropriate action
take appropriate
take action on the complaint.
complaint.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
21.156.
Sec. 21.156.
Sec. REFERRAL BY
REFERRAL BY LOCAL COMMISSION TO STATE
LOCAL COMMISSION STATE
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COMMISSION. A
COMMISSION. A local commission may refer
local commission matter under
refer a matter under its
its
jurisdiction to the Commission
jurisdiction Commission on Human
Human Rights.
Rights.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
SUBCHAPTER E.
SUBCHAPTER ADMINISTRATIVE REVIEW
E. ADMINISTRATIVE REVIEW
FILING OF COMPLAINT;
21.201. FILING
Sec. 21.201.
Sec. FORM AND
COMPLAINT; FORM AND CONTENT;
CONTENT;
SERVICE. (a)
SERVICE. (a) person claiming
A person
A aggrieved by an unlawful
claiming to be aggrieved unlawful
employment practice
employment person's agent
practice or the person's agent may
may file complaint with
file a complaint with
commission.
the commission.
(b)
(b) complaint must
The complaint must be in writing and
in writing and made under oath.
made under oath.
(c)
(c) complaint must
The complaint must state:
state:
(1)
(1) unlawful employment
that an unlawful
that practice has
employment practice been
has been
committed;
committed;
(2)
(2) the which the
facts on which
the facts complaint is based,
the complaint including
based, including
date, place,
the date, and circumstances
place, and alleged unlawful
circumstances of the alleged unlawful
employment practice;
employment practice; and and
(3)
(3) sufficient to enable
facts sufficient
facts enable the commission to identify
the commission identify
respondent.
the respondent.
(d)
(d) executive director
The executive director or the executive director's
executive director's
designee shall
designee respondent with
serve the respondent
shall serve with a copy perfected
copy of the perfected
complaint not later
complaint later than
than the 10th after the date
10th day after complaint
date the complaint
filed.
is filed.
is
(e)
(e) A complaint may
A complaint amended to cure
may be amended technical defects
cure technical defects or
including a failure
omissions, including
omissions, failure to verify complaint or to
verify the complaint
clarify and
clarify and amplify allegation made
amplify an allegation made in complaint.
in the complaint.
(f)
(f) amendment to a complaint
An amendment complaint alleging
alleging additional
additional facts
facts
constitute unlawful
that constitute
that unlawful employment practices relating
employment practices relating to or
arising from
arising matter of the original
subject matter
from the subject original complaint
complaint relates
relates
back to the date
back complaint was
date the complaint received by the commission.
first received
was first commission.
(g)
(g) perfected complaint
If a perfected
If complaint is
is not received by
not received by the
commission within
commission within 180 alleged unlawful
days of the alleged
180 days unlawful employment
employment
commission shall
practice, the commission
practice, shall notify respondent that
notify the respondent that a
complaint has
complaint been filed
has been filed and
and that
that the process perfecting the
process of perfecting
complaint is
complaint progress.
in progress.
is in
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Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
by Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.06(a), eff.
Sec. 9.06(a),
76, Sec. Sept. 1,
eff. Sept. 1995.
1, 1995.
Sec. STATUTE OF
21.202. STATUTE
Sec. 21.202. LIMITATIONS. (a)
OE LIMITATIONS. (a) A complaint under
A complaint under
subchapter must
this subchapter
this must be filed
filed not later
later than
than the 180th after
180th day after
alleged unlawful
date the alleged
the date unlawful employment practice occurred.
employment practice occurred.
(b)
(b) commission shall
The commission dismiss an untimely
shall dismiss untimely complaint.
complaint.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. 1993.
Sept. 1993.
eff. Sept.
Sec. ALTERNATIVE DISPUTE
21.203. ALTERNATIVE
Sec. 21.203. DISPUTE RESOLUTION;
RESOLUTION; OFFICE.
OFFICE. (a)
(a)
alternative means
The use of alternative means of dispute
dispute resolution, including
resolution, including
settlement negotiations,
settlement conciliation, facilitation,
negotiations, conciliation, facilitation, mediation,
mediation,
fact—finding, minitrials,
fact-finding, minitrials, and arbitration, is
and arbitration, encouraged to resolve
is encouraged resolve
arising under
disputes arising
disputes under this chapter. The settlement
this chapter. disputed
settlement of a disputed
claim under
claim under this chapter that
this chapter results from
that results traditional
from the use of traditional
alternative means
or alternative means of dispute resolution is
dispute resolution binding on the
is binding
parties to the claim.
parties claim.
(b)
(b) commission shall
The commission establish an office
shall establish alternative
office of alternative
dispute resolution.
dispute resolution. At any time
time after complaint is
after a complaint received
is received
under Section
under Section 21.201, request of a party
21.201, at the request direction
party or at the direction
of the commission matter may
commission the matter referred to the office
may be referred office of
alternative dispute
alternative dispute resolution.
resolution.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.06(b), eff.
Sec. 9.06(b),
76, Sec. Sept. 1,
eff. Sept. 1995.
1, 1995.
Sec. INVESTIGATION BY
2l.204. INVESTIGATION
Sec. 21.204. COMMISSION. (a)
BY COMMISSION. (a) executive
The executive
director or a staff
director member of the commission
staff member designated by
commission designated by the
executive director shall
executive director investigate a complaint
shall investigate complaint and determine if
and determine if
there is
there reasonable cause
is reasonable believe that
cause to believe that the respondent engaged in
respondent engaged in
unlawful employment
an unlawful practice as
employment practice alleged in
as alleged complaint.
in the complaint.
(b)
(b) If the federal
If government has
federal government referred the complaint
has referred complaint to
commission or has
the commission has deferred jurisdiction over
deferred jurisdiction over the subject matter
subject matter
complaint to the commission,
of the complaint commission, the executive director or the
executive director
executive director's designee
executive director's designee shall promptly investigate
shall promptly investigate the
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allegations stated
allegations stated in complaint.
in the complaint.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec 21.205.
Sec.
. 2l 205
. . LACK REASONABLE CAUSE;
LACK OF REASONABLE DISMISSAL OF
CAUSE; DISMISSAL OE
COMPLAINT. (a)
COMPLAINT. (a) If after
If investigation the executive
after investigation director or
executive director
the executive director's designee
executive director's determines that
designee determines reasonable cause
that reasonable cause
does not exist
does believe that
exist to believe that the respondent engaged in
respondent engaged in an
unlawful employment
unlawful practice as
employment practice alleged in
as alleged complaint, the
in a complaint,
executive director or the executive
executive director director's designee
executive director's designee shall
shall issue
issue
written determination,
a written incorporating the finding
determination, incorporating finding that
that the
evidence does
evidence complaint and
support the complaint
does not support dismissing the
and dismissing
complaint.
complaint.
(b)
(b) executive director
The executive director or the executive director's
executive director's
designee shall
designee shall serve
serve a copy determination on the
copy of the determination
complainant, the respondent,
complainant, respondent, and other agencies
and other agencies as required by
as required by law.
law.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.206.
Sec. DETERMINATION OF
21.206. DETERMINATION REASONABLE CAUSE;
OF REASONABLE REVIEW BY
CAUSE; REVIEW BY
PANEL. (a)
PANEL. (a) If after
If investigation the executive
after investigation executive director
director or the
executive director's designee
executive director's designee determines
determines that there is
that there reasonable
is reasonable
believe that
cause to believe
cause that the respondent engaged in
respondent engaged unlawful
in an unlawful
employment practice as
employment practice alleged in
as alleged executive
complaint, the executive
in a complaint,
director or the executive
director director's designee
executive director's designee shall review with
shall review with a
panel of three
panel commissioners the evidence
three commissioners evidence in record.
in the record.
(b)
(b) If after
If review at least
after the review three
least two of the three
commissioners determine
commissioners determine that there is
that there reasonable cause
is reasonable believe
cause to believe
that the respondent
that engaged in
respondent engaged unlawful employment
in an unlawful employment practice,
practice, the
executive director
executive director shall:
shall:
(1)
(1) issue determination incorporating
written determination
issue a written incorporating the
the
executive director's finding
executive director's finding that evidence supports
that the evidence supports the
complaint; and
complaint; and
(2)
(2) serve a copy of the
serve determination on the
the determination complainant,
the complainant,
respondent, and
the respondent, other agencies
and other agencies as required by law.
as required law.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
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Sec. 21.207.
Sec. RESOLUTION BY INFORMAL
21.207. RESOLUTION INFORMAL METHODS.
METHODS. (a)
(a) If a
If
determination of reasonable
determination reasonable cause
cause is
is made under Section
made under Section 21.206,
21.206, the
commission shall
commission endeavor to eliminate
shall endeavor alleged unlawful
eliminate the alleged unlawful
practice by
employment practice
employment by informal methods of conference,
informal methods conference,
conciliation, and
conciliation, persuasion.
and persuasion.
(b)
(b) Without the written
Without written consent complainant and
consent of the complainant and
respondent, commission, its
respondent, the commission, executive director,
its executive director, or its other
its other
officers or employees
officers employees may disclose to the public
may not disclose information
public information
about the efforts
about particular case
efforts in a particular alleged
resolve an alleged
case to resolve
discriminatory practice
discriminatory practice by conciliation, or persuasion,
conference, conciliation,
by conference, persuasion,
regardless whether there
regardless of whether there is determination of reasonable
is a determination reasonable cause.
cause.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
NOTICE OF
21.208. NOTICE
Sec. 21.208.
Sec. DISMISSAL OR
OF DISMISSAL UNRESOLVED COMPLAINT.
OR UNRESOLVED COMPLAINT. IfIf
commission dismisses
the commission complaint filed
dismisses a complaint under Section
filed under Section 21.201
21.201 or
does not resolve
does complaint before
resolve the complaint before the 181st after the date
181st day after date
complaint was
the complaint was filed, commission shall
filed, the commission inform the
shall inform
complainant of the dismissal
complainant dismissal or failure
failure to resolve complaint in
resolve the complaint
writing by
writing certified mail.
by certified mail.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.210.
Sec. TEMPORARY INJUNCTIVE
2l.2l0. TEMPORARY INJUNCTIVE RELIEF.
RELIEF. (a)
(a) If the
If
commission concludes
commission concludes from preliminary investigation
from a preliminary investigation of an
unlawful employment
unlawful employment practice alleged in a complaint
practice alleged complaint that prompt
that prompt
judicial action
judicial action is necessary to carry
is necessary purpose of this
carry out the purpose this
commission shall
chapter, the commission
chapter, shall file petition seeking
file a petition appropriate
seeking appropriate
temporary relief
temporary relief against
against the respondent pending final
respondent pending determination
final determination
proceeding under
of a proceeding under this chapter.
this chapter.
(b)
(b) petition shall
The petition filed in
shall be filed district court
in a district court in
in a
county in which:
county which:
(1)
(1) alleged unlawful
the alleged
the unlawful employment practice that
employment practice that is the
the
subject complaint occurred;
subject of the complaint occurred; or
(2)
(2) the respondent resides.
the respondent resides.
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(c)
(C) A court
A court may not issue temporary
not issue injunctive relief
temporary injunctive relief unless
unless
commission shows:
the commission shows:
(1)
(1) a substantial likelihood of success
substantial likelihood success on the merits;
the merits;
and
and
(2)
(2) irreparable harm
irreparable harm to the complainant in the
the complainant absence of
the absence
preliminary relief
the preliminary pending final
relief pending determination on the merits.
final determination merits.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
ELECTION OF REMEDIES.
21.211. ELECTION
Sec. 21.211.
Sec. REMEDIES. A person who
A person who has
has
initiated an action
initiated action in a court
court of competent jurisdiction or who
competent jurisdiction who has
has
pending before
action pending
an action administrative agency
before an administrative under other
agency under other law
law
order or ordinance
or an order political subdivision
ordinance of a political subdivision of this state
this state
based on an act that
based would be an unlawful
that would unlawful employment under
practice under
employment practice
chapter may not file
this chapter
this file a complaint under this
complaint under subchapter for the
this subchapter
grievance.
same grievance.
same
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
SUBCHAPTER F.
SUBCHAPTER ENFORCEMENT
JUDICIAL ENFORCEMENT
F. JUDICIAL
Sec. 2l.25l. CIVIL
Sec. 21.251. ACTION BY COMMISSION.
CIVIL ACTION COMMISSION. (a)(a) commission
The commission
bring a civil
may bring
may action against
civil action respondent if:
against a respondent if:
(1)
(1) commission determines
the commission
the determines that
that there reasonable
there is reasonable
believe that
cause to believe
cause respondent engaged
that the respondent unlawful
engaged in an unlawful
employment practice;
employment practice;
(2)
(2) the commission's efforts
the commission's efforts to resolve
resolve the
the
discriminatory practice
discriminatory satisfaction of the complainant
practice to the satisfaction complainant and
and
respondent through
respondent conciliation have
through conciliation been unsuccessful;
have been unsuccessful; andand
(3)
(3) majority of the
a majority commissioners determines
the commissioners determines that
that the
the
civil action may
civil action may achieve purposes of this
achieve the purposes chapter.
this chapter.
(b)
(b) complainant may intervene
The complainant intervene in civil action
in a civil brought
action brought
commission.
by the commission.
by
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
2l.252.
Sec. 21.252.
Sec. NOTICE COMPLAINANT'S RIGHT
NOTICE OF COMPLAINANT'S RIGHT TO FILE CIVIL
FILE CIVIL
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ACTION. (a)
ACTION. (a) complainant who
A complainant
A receives notice
who receives under Section
notice under Section
21.208 that
21.208 complaint is
that the complaint dismissed or resolved
is not dismissed resolved is entitled
is entitled
request from
to request from the commission written notice
commission a written notice of the
complainant's right
complainant's right to file civil action.
file a civil action.
(b)
(b) complainant must
The complainant must request
request the notice
notice in writing.
in writing.
(c)
(c) executive director
The executive director may issue
issue the notice.
notice.
(d)
(d) Failure to issue
Failure issue the notice complainant's right
notice of a complainant's right to
action does
civil action
file a civil
file does not affect complainant's right
affect the complainant's under
right under
subchapter to bring
this subchapter
this bring a civil action against
civil action against the respondent.
respondent.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
EXPEDITED NOTICE
21.253. EXPEDITED
Sec. 21.253.
Sec. COMPLAINANT'S RIGHT
NOTICE OF COMPLAINANT'S RIGHT TO FILE
FILE
CIVIL ACTION.
CIVIL ACTION. (a) (a) On receipt written request
receipt of a written request by
by a
commission shall
complainant, the commission
complainant, shall issue before the 181st
issue before after
181st day after
complaint was
date the complaint
the date filed a notice
was filed notice of the right
right to file
file a
civil action if:
civil action if:
(1)
(1) complainant alleges
the complainant
the unlawful employment
alleges an unlawful employment
practice based
practice complainant's status
based on the complainant's status as individual with
as an individual with a
life—threatening illness,
life-threatening illness, as confirmed in
as confirmed writing by
in writing physician
by a physician
licensed to practice
licensed medicine in
practice medicine this state;
in this state; or
(2)
(2) the executive
the director certifies
executive director certifies that administrative
that administrative
processing of the complaint
processing complaint cannot completed before
cannot be completed before the 181st
181st
after the date
day after complaint was
date the complaint was filed.
filed.
(b)
(b) commission shall
The commission shall issue expedited notice
issue the expedited notice by
by
certified mail
certified mail not later
later than business day after
fifth business
than the fifth after the date
date
commission receives
the commission written request.
receives the written request.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
21.254. CIVIL
Sec. 21.254.
Sec. ACTION BY
CIVIL ACTION BY COMPLAINANT. Within 60
COMPLAINANT. Within days
60 days
after the date
after notice of the right
date a notice right to file
file a civil action is
civil action is
complainant may
received, the complainant
received, bring a civil
may bring action against
civil action against the
respondent.
respondent.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
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Sec. COMMISSION'S INTERVENTION
21.255. COMMISSION'S
Sec. 21.255. INTERVENTION IN
IN CIVIL ACTION BY
CIVIL ACTION
COMPLAINANT. After receipt
COMPLAINANT. After receipt of a timely
timely application,
application, a court
court may
permit commission to intervene
permit the commission intervene in a civil action filed
civil action under
filed under
Section 21.254
Section 21.254 if:
if:
(1)
(1) commission certifies
the commission
the certifies that
that the
the case general
case is of general
public importance;
public importance; and and
(2)
(2) before commencement of the
before commencement action the
the action commission
the commission
issued determination of reasonable
issued a determination reasonable cause believe that
cause to believe that this
this
chapter was
chapter violated.
was violated.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
STATUTE OF LIMITATIONS.
21.256. STATUTE
Sec. 21.256.
Sec. LIMITATIONS. A A civil action may not
Civil action not
brought under
be brought under this subchapter later
this subchapter later than anniversary
second anniversary
than the second
date the complaint
of the date relating to the action
complaint relating action is filed.
is filed.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.07(a), eff.
Sec. 9.07(a),
76, Sec. Sept. 1,
eff. Sept. 1995.
1, 1995.
ASSIGNMENT TO EARLY
21.257. ASSIGNMENT
Sec. 21.257.
Sec. EARLY HEARING.
HEARING. The court
court shall
shall
brought under
action brought
set an action under this hearing at the
subchapter for hearing
this subchapter
earliest practicable date
earliest practicable expedite the action.
date to expedite action.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.258. INJUNCTION;
Sec. 21.258. EQUITABLE RELIEF.
INJUNCTION; EQUITABLE RELIEF. (a)
(a) finding
On finding
that a respondent
that engaged in an unlawful
respondent engaged unlawful employment practice as
employment practice as
alleged in a complaint,
alleged court may:
complaint, a court may:
(1)
(1) prohibit by
prohibit injunction the
by injunction respondent from
the respondent engaging
from engaging
unlawful employment
in an unlawful employment practice;
practice; andand
(2)
(2) order additional equitable
order additional equitable relief
relief as may be
appropriate.
appropriate.
(b)
(b) Additional equitable
Additional equitable relief
relief may include:
include:
(1) hiring reinstating with
hiring or reinstating without back
with or without back pay;
pay;
upgrading an employee
(2) upgrading employee with without pay;
with or without pay;
admitting to or restoring
(3) admitting restoring union membership;
union membership;
(4) admitting participating in a guidance
admitting to or participating guidance program,
program,
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on—the—job training
apprenticeship, or on-the-job
apprenticeship, training or other training or
other training
retraining program,
retraining using objective
program, using job—related criteria
objective job-related criteria in
in
admitting an individual
admitting individual to a program;
program;
(5)
(5) reporting on the
reporting manner of compliance
the manner compliance with
with the terms
the terms
order issued
final order
of a final under this
issued under this chapter; and
chapter; and
(6)
(6) paying court costs.
paying court costs.
(c)
(C) Liability back pay
under a back
Liability under award may not
pay award accrue for
not accrue for a
more than
date more
date than two years before the date
years before complaint is
date a complaint filed with
is filed with
Interim earnings,
commission. Interim
the commission. workers’ compensation
earnings, workers' compensation benefits,
benefits,
and unemployment
and compensation benefits
unemployment compensation benefits received
received operate
operate to reduce
reduce
back pay
the back otherwise allowable.
pay otherwise allowable.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
. 2l 2585
Sec 21.2585.
Sec. . . COMPENSATORY AND
COMPENSATORY PUNITIVE DAMAGES.
AND PUNITIVE DAMAGES (a)
(a). On
finding that
finding engaged in
respondent engaged
that a respondent unlawful intentional
in an unlawful intentional
employment practice as
employment practice alleged in
as alleged in a complaint, court may,
complaint, a court may, asas
provided by
provided this section,
by this award:
section, award:
(1)
(1) compensatory damages;
compensatory and
damages; and
(2)
(2) punitive damages.
punitive damages.
(b)
(b) A complainant may recover
A complainant punitive damages
recover punitive against a
damages against
other than
respondent, other
respondent, respondent that
than a respondent that is governmental entity,
is a governmental entity,
complainant demonstrates
if the complainant
if demonstrates that
that the respondent engaged in
respondent engaged in a
discriminatory practice
discriminatory practice with malice or with
with malice with reckless indifference
reckless indifference
state—protected rights
to the state-protected aggrieved individual.
rights of an aggrieved individual.
(c)
(c) Compensatory damages
Compensatory awarded under
damages awarded under this section may not
this section not
include:
include:
(1)
(1) back pay;
back pay;
(2)
(2) interest on back
interest back pay;
pay; or
(3)
(3) other relief
other authorized under
relief authorized under Section
Section 21.258(b).
21.258(b).
(d)
(d) sum of the amount
The sum compensatory damages
amount of compensatory awarded
damages awarded
under this
under section for
this section for future pecuniary losses,
future pecuniary emotional pain,
losses, emotional pain,
suffering, inconvenience,
suffering, mental anguish,
inconvenience, mental anguish, loss enjoyment of
loss of enjoyment
and other
life, and
life, nonpecuniary losses
other nonpecuniary and the amount
losses and punitive
amount of punitive
damages awarded under
damages awarded under this section may not exceed,
this section each
for each
exceed, for
complainant:
complainant:
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(1)
(1) $50,000 in the
$50,000 respondent that
case of a respondent
the case that has fewer
has fewer
than 101
than employees;
101 employees;
(2)
(2) $100,000 in the
$100,000 respondent that
case of a respondent
the case that has more
has more
than 100
than and fewer
100 and fewer than
than 201 employees;
201 employees;
(3)
(3) $200,000 in the
$200,000 respondent that
case of a respondent
the case that has more
has more
than 200
than and fewer
200 and fewer than
than 501
501 employees; and
employees; and
(4)
(4) $300,000 in the
$300,000 respondent that
case of a respondent
the case that has more
has more
than 500
than employees.
500 employees.
(e)
(e) purposes of Subsection
For the purposes Subsection (d),
(d), in determining the
in determining
number of employees
number employees of a respondent, requisite number
respondent, the requisite number of
must be employed
employees must
employees employed by respondent for
by the respondent each of 20
for each more
20 or more
calendar weeks
calendar weeks in
in the current preceding calendar
current or preceding calendar year.
year.
Added by
Added Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.07(b), eff.
Sec. 9.07(b),
76, Sec. Sept. 1,
eff. Sept. l,
1995. Amended by
1995. Amended Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 13,
872, Sec. eff.
13, eff.
Sept. 1,
Sept. 1999.
1, 1999.
Sec. 21.259.
Sec. ATTORNEY'S FEES;
21.259. ATTORNEY'S COSTS. (a)
EEES; COSTS. (a) In proceeding
In a proceeding
under this
under this chapter, court may allow
chapter, a court prevailing party,
allow the prevailing other
party, other
than the commission,
than commission, a reasonable attorney's fee
reasonable attorney's fee as part of the
as part
costs.
costs.
(b)
(b) state agency,
state, a state
The state, political subdivision
agency, or a political subdivision is
is
liable for
liable for costs,
costs, including attorney's fees,
including attorney's extent as
same extent
fees, to the same as
private person.
a private person.
(c)
(c) awarding costs
In awarding
In attorney's fees
and attorney's
costs and action or a
fees in an action
proceeding under
proceeding under this
this chapter,
chapter, the court, in its
court, in discretion, may
its discretion,
include reasonable expert
include reasonable expert fees.
fees.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1, 1993. Amended
1993. Amended
Acts 1995,
by Acts 74th Leg.,
1995, 74th Leg., ch.
ch. 76, 9.07(c), eff.
Sec. 9.07(c),
76, Sec. Sept. 1,
eff. Sept. 1995.
1, 1995.
RELIEF FOR
21.260. RELIEF
Sec. 21.260.
Sec. DISABLED EMPLOYEE
FOR DISABLED EMPLOYEE OR APPLICANT. If
OR APPLICANT. If
affected employee
the affected applicant for
employee or applicant employment has
for employment disability,
has a disability,
court shall
a court consider the undue
shall consider hardship defense,
undue hardship including the
defense, including
reasonableness of the cost
reasonableness necessary workplace
cost of necessary accommodation and
workplace accommodation and
availability of alternatives
the availability alternatives or other appropriate relief.
other appropriate relief.
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Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.261.
Sec. COMPELLED COMPLIANCE.
21.261. COMPELLED COMPLIANCE. If employer,
If an employer,
employment agency,
employment agency, or labor organization fails
labor organization with a
comply with
fails to comply
order issued
court order
court under this
issued under action or
party to the action
subchapter, a party
this subchapter,
written request
commission, on the written
the commission, request of a person aggrieved by
person aggrieved by the
may commence
failure, may
failure, proceedings to compel
commence proceedings compliance with
compel compliance with the
order.
order.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. TRIAL DE NOVO.
21.262. TRIAL
Sec. 21.262. NOVO. (a)
(a) A proceeding under
judicial proceeding
A judicial under
this chapter is
this chapter trial de novo.
by trial
is by novo.
(b)
(b) A commission finding,
A commission finding, recommendation, determination, or
recommendation, determination,
other action
other action is binding on a court.
is not binding court.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
SUBCHAPTER G.
SUBCHAPTER RECORDS
G. RECORDS
RECORDKEEPING; REPORTS.
21.301. RECORDKEEPING;
Sec. 21.301.
Sec. REPORTS. A person under
A person under
investigation in
investigation connection with
in connection with a charge
charge filed under this
filed under chapter
this chapter
and who
and who is subject to this
is subject chapter shall:
this chapter shall:
(1)
(1) make and
make and keep
keep records relevant to the
records relevant determination
the determination
whether unlawful
of whether unlawful employment practices have
employment practices being
been or are being
have been
committed;
committed;
(2)
(2) preserve the
preserve records for
the records for the period required
the period required by
by
commission rule
commission court order;
rule or court and
order; and
(3)
(3) make reports
make reports from
from the
the records prescribed by
records as prescribed by
commission rule
commission rule or court order as
court order reasonable, necessary,
as reasonable, necessary, or
appropriate for
appropriate enforcement of this
for the enforcement chapter or a rule
this chapter order
rule or order
issued under this
issued under chapter.
this chapter.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.302. RECORDS;
Sec. 21.302. TRAINING PROGRAM.
RECORDS; TRAINING commission by
PROGRAM. The commission by
rule shall
rule require that
shall require person subject
that a person subject to this chapter who
this chapter who
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controls an apprenticeship,
controls on—the—job training,
apprenticeship, on-the-job training, or other training
other training
retraining program:
or retraining program:
(1)
(1) keep all
keep all records reasonably necessary
records reasonably necessary to carry
carry out
out
purposes of this
the purposes this chapter, including a list
chapter, including applicants for
list of applicants for
participation in
participation program and
in the program chronological
record of the chronological
and a record
order in
order which applications
in which applications for program were
for the program were received; and
received; and
(2)
(2) furnish to the
furnish commission on request
the commission detailed
request a detailed
description of the manner
description manner in which individuals
in which individuals are selected
selected to
participate in
participate program.
in the program.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
CONFORMITY TO FEDERAL
21.303. CONFORMITY
Sec. 21.303.
Sec. FEDERAL LAW.
LAW. AA report
report or record
Or record
required by
required commission under
by the commission under this subchapter must
this subchapter conform to a
must conform
similar record
similar record or report required under
report required under 42 Section
U.S.C. Section
42 U.S.C.
2000e—8(c).
2000e-8(c).
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Sec. 21.304.
Sec. CONFIDENTIALITY OF
21.304. CONFIDENTIALITY RECORDS. An
OF RECORDS. officer or
An officer
commission may
employee of the commission
employee disclose to the public
may not disclose public
information obtained
information obtained by the commission
commission under
under Section
Section 21.204 except
21.204 except
compliance with
in compliance
in with Section
Section 21.305
21.305 and
and as
as necessary conduct
necessary to the conduct
proceeding under
of a proceeding under this chapter.
this chapter.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Amended by:
Amended by:
Acts 2011,
Acts 82nd Leg.,
2011, 82nd R.S., Ch.
Leg., R.S., 1012 (H.B.
Ch. 1012 2463), Sec.
(H.B. 2463), Sec. 1, eff.
1, eff.
September 1,
September 2011.
1, 2011.
2l.305. ACCESS
Sec. 21.305.
Sec. COMMISSION RECORDS.
ACCESS TO COMMISSION RECORDS. (a)(a) Except as
Except as
provided by
provided Subsection (c),
by Subsection commission shall
(C), the commission adopt rules
shall adopt rules
allowing a party
allowing complaint filed
party to a complaint under Section
filed under Section 21.201
21.201
reasonable access
reasonable commission records
access to commission relating to the complaint.
records relating complaint.
(b)
(b) Except as
Except provided by
as provided Subsection (c),
by Subsection unless the
(C), unless
complaint is
complaint resolved through
is resolved through a voluntary settlement or
voluntary settlement
written request
conciliation, on the written
conciliation, request of a party executive
party the executive
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director shall
director allow the party
shall allow party access commission records:
access to the commission records:
(1)
(1) after the
after the final action of the
final action commission; or
the commission;
(2)
(2) civil action
if a civil relating to the
action relating complaint is filed
the complaint filed
federal court
in federal
in court alleging violation of federal
alleging a violation federal law.
law.
(c)
(c) Notwithstanding Section
Notwithstanding Section 552.023, Government Code,
552.023, Government Code, the
following information is
following information considered public
is not considered information for
public information for the
purposes of Chapter
purposes Chapter 552, Government Code,
552, Government disclosed
and may not be disclosed
Code, and
complaint filed
party to a complaint
to a party under Section
filed under Section 21.201:
21.201:
(1)
(1) identifying information of persons
identifying information persons other
other than
than the
the
parties and
parties witnesses to the complaint;
and witnesses complaint;
(2)
(2) identifying information about
identifying information confidential
about confidential
including any confidential
witnesses, including
witnesses, confidential statement
statement given
given byby the
witness;
witness;
(3)
(3) sensitive medical information
sensitive medical information about
about the charging
the charging
party witness to the complaint
party or a witness complaint that
that is:
is:
(A)
(A) provided by
provided person other
by a person other than person
than the person
requesting the information;
requesting information; and
and
(B)
(B) relevant to issues
not relevant
not raised in
issues raised complaint,
in the complaint,
including information that
including information identifies injuries,
that identifies impairments,
injuries, impairments,
pregnancies, disabilities, or other
pregnancies, disabilities, medical conditions
other medical conditions that
that are not
obviously apparent or visible;
obviously apparent visible;
(4)
(4) identifying information about
identifying information person other
about a person other than
than the
the
charging party
charging party that
that is found in
is found in sensitive medical information
sensitive medical information
regardless whether the information
regardless of whether information is relevant to the complaint;
is relevant complaint;
(5)
(5) nonsensitive medical
nonsensitive medical information
information that relevant to
that is relevant
complaint if
the complaint if the disclosure would result
disclosure would result in invasion of
in an invasion
personal privacy,
personal privacy, unless information is
unless the information generally known
is generally known or hashas
been previously
been reported to the public;
previously reported public;
(6)
(6) identifying information about
identifying information about other respondents or
other respondents
employers not a party
employers party to the complaint;
complaint;
(7)
(7) information relating
information relating to settlement
settlement offers
offers or
conciliation agreements
conciliation agreements received
received from
from one party
party that
that was
was not
conveyed to the other
conveyed other and information contained
and information contained in separate
in a separate
alternative dispute
alternative resolution file
dispute resolution prepared for
file prepared mediation
for mediation
purposes; and
purposes; and
(8)
(8) identifying information about
identifying information person on whose
about a person whose
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behalf a complaint
behalf complaint was filed if
was filed person has
if the person requested that
has requested that the
person's identity
person's identity as complaining party
as a complaining remain confidential.
party remain confidential.
(d)
(d) this section,
In this
In section, "identifying information" has
"identifying information" has the
meaning assigned
meaning assigned by Section 32.51,
by Section Penal Code.
32.51, Penal Code.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch.
ch. 269, Sec. 1,
269, Sec. 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
Amended by:
Amended by:
Acts 2011,
Acts 82nd Leg.,
2011, 82nd R.S., Ch.
Leg., R.S., 1012 (H.B.
Ch. 1012 2463), Sec.
(H.B. 2463), Sec. 2, eff.
2, eff.
September 1,
September 2011.
1, 2011.
Sec. SUBPOENA OF RECORD
21.306. SUBPOENA
Sec. 21.306. RECORD OR
OR REPORT.
REPORT. (a)(a) person
If a person
If
permit access,
fails to permit
fails access, examination, photographing, or copying
examination, photographing, copying or
fails to make,
fails make, keep, preserve a record
keep, or preserve make a report
record or make report in
in
accordance with this
accordance with commission may issue
subchapter, the commission
this subchapter, issue a
subpoena requiring compliance.
subpoena requiring compliance.
(b)
(b) failure to comply
On a failure with a subpoena
comply with subpoena of the commission,
commission,
commission shall
the commission shall apply for directing compliance
order directing
for an order compliance to the
district court
district court of the county
county in which the person
in which person is resides,
found, resides,
is found,
transacts business.
or transacts business.
Acts 1993,
Acts 73rd Leg.,
1993, 73rd Leg., ch. Sec. 1,
269, Sec.
ch. 269, 1, eff. Sept. 1,
eff. Sept. 1993.
1, 1993.
SUBCHAPTER H.
SUBCHAPTER DISCRIMINATORY USE
H. DISCRIMINATORY USE OF
OF GENETIC INFORMATION
GENETIC INFORMATION
Sec. 21.401.
Sec. DEFINITIONS. In
21.401. DEFINITIONS. subchapter:
this subchapter:
In this
(1)
(1) "DNA" means
"DNA" deoxyribonucleic acid.
means deoxyribonucleic acid.
(2)
(2) "Family health
"Family history" means
health history" means a history
history taken
taken by
by a
professional to ascertain
genetic professional
physician or genetic
physician ascertain genetic medical
genetic or medical
information about
information individual's family.
about an individual's family.
(3)
(3) "Genetic characteristic" means
"Genetic characteristic" scientifically or
means a scientifically
medically identifiable
medically identifiable genetic chromosomal variation,
genetic or chromosomal variation,
composition, alteration that:
composition, or alteration that:
(A)
(A) is scientifically or medically
is scientifically believed to:
medically believed to:
(i)
(i) predispose an individual
predispose individual to a disease,
disease,
disorder, or syndrome;
disorder, syndrome; or
(ii)
(ii) be associated with a statistically
associated with statistically
significant increased risk
significant increased developing a disease,
risk of developing disorder, or
disease, disorder,
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syndrome;
syndrome; and
and
(B)
(B) may or may not associated with
not be associated with any symptom
symptom of
ongoing disease,
an ongoing disease, disorder, affecting an individual
syndrome affecting
disorder, or syndrome individual
date the genetic
on the date information is
genetic information obtained regarding
is obtained regarding the
individual.
individual.
(4)
(4) "Genetic information"
"Genetic information" means information that
means information that is:
is:
(A)
(A) obtained from
obtained based on a scientific
from or based scientific or
medical determination of the presence
medical determination presence or absence individual
absence in an individual
genetic characteristic;
of a genetic characteristic; or
(B)
(B) derived from
derived from the results genetic test
results of a genetic test
performed on,
performed health history
family health
on, or a family obtained from,
history obtained from, an
individual.
individual.
(5)
(5) "Genetic test"
"Genetic test" means presymptomatic laboratory
means a presymptomatic laboratory test
test
individual's genes,
of an individual's gene products,
genes, gene chromosomes that:
products, or chromosomes that:
(A)
(A) analyzes individual's DNA,
analyzes the individual's DNA, RNA, proteins, or
RNA, proteins,
chromosomes; and
chromosomes; and
(B)
(B) performed to identify
is performed
is genetic variation,
identify any genetic variation,
alteration that
composition, or alteration
composition, that is associated with
is associated individual's
with the individual's
having increased risk
statistically increased
having a statistically risk of:
of:
(i)
(i) developing a clinically
developing recognized disease,
clinically recognized disease,
disorder, or syndrome;
disorder, syndrome; or
(ii)
(ii) being a carrier
being carrier of a clinically recognized
clinically recognized
disorder, or syndrome.
disease, disorder,
disease, syndrome.
term does
The term does not include a blood
not include blood test, cholesterol test,
test, cholesterol test,
urine test,
urine other physical
test, or other physical test used for a purpose
test used purpose other
other than
than
determining a genetic
determining genetic or chromosomal
chromosomal variation, composition, or
variation, composition,
alteration in a specific
alteration specific individual.
individual.
(6)
(6) "RNA" means
"RNA" ribonucleic acid.
means ribonucleic acid.
Added by
Added Acts 1997,
by Acts 75th Leg.,
1997, 75th Leg., ch. 1215, Sec.
ch. 1215, Sec. 1,
1, eff. Sept. 1,
eff. Sept. 1,
1997. Amended by
1997. Amended Acts 2001,
by Acts 77th Leg.,
2001, 77th Leg., ch. 1215, Sec.
ch. 1215, Sec. 1, eff.
1, eff.
Sept. 1,
Sept. 1, 2001; Acts 2003,
2001; Acts 78th Leg.,
2003, 78th Leg., ch. 1276, Sec.
ch. 1276, 11.001(a),
Sec. 11.001(a),
Sept. 1,
eff. Sept.
eff. 2003.
1, 2003.
DISCRIMINATORY USE
2l.402. DISCRIMINATORY
Sec. 21.402.
Sec. USE OF GENETIC INFORMATION
GENETIC INFORMATION
PROHIBITED. (a)
PROHIBITED. (a) An employer
An employer commits unlawful employment
commits an unlawful employment
41
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practice if
practice employer fails
if the employer refuses to hire,
fails or refuses discharges, or
hire, discharges,
otherwise discriminates against
otherwise discriminates individual with
against an individual with respect
respect to
compensation or the terms,
compensation privileges of employment:
conditions, or privileges
terms, conditions, employment:
(1)
(1) the basis
on the information concerning
genetic information
basis of genetic concerning the
the
individual; or
individual;
(2)
(2) because of the
because refusal of the
the refusal individual to submit
the individual submit to
genetic test.
a genetic test.
(b)
(b) A labor
A organization commits
labor organization unlawful employment
commits an unlawful employment
practice if
practice if the labor organization excludes
labor organization excludes or expels
expels from
from
membership or otherwise
membership discriminates against
otherwise discriminates against an individual:
individual:
(1)
(1) the basis
on the information concerning
genetic information
basis of genetic concerning the
the
individual; or
individual;
(2)
(2) because of the
because refusal of the
the refusal individual to submit
the individual submit to
genetic test.
a genetic test.
(c)
(C) employment agency
An employment agency commits unlawful employment
commits an unlawful employment
practice if
practice employment agency
if the employment classifies or refers
agency classifies refers for
for
employment, fails
employment, refuses to refer
fails or refuses refer for otherwise
employment, or otherwise
for employment,
discriminates against
discriminates against an individual:
individual:
(1)
(1) the basis
on the information concerning
genetic information
basis of genetic concerning the
the
individual; or
individual;
(2)
(2) because of the
because refusal of the
the refusal individual to submit
the individual submit to
genetic test.
a genetic test.
(d)
(d) labor organization,
employer, labor
An employer, employment agency
organization, or employment agency
commits unlawful employment
commits an unlawful practice if
employment practice if the employer, labor
employer, labor
organization, employment agency
organization, or employment agency limits, segregates, or
limits, segregates,
classifies an employee,
classifies applicant for
member, or applicant
employee, member, employment or
for employment
membership in
membership would deprive
that would
in a way that deprive or tend
tend to deprive
deprive the
applicant of employment
member, or applicant
employee, member,
employee, opportunities or
employment opportunities
otherwise adversely
otherwise adversely affect
affect the status
status of the employee, member, or
employee, member,
applicant:
applicant:
(1)
(1) the basis
on the information concerning
genetic information
basis of genetic concerning the
the
employee, member,
employee, applicant; or
member, or applicant;
(2)
(2) because of the
because refusal of the
the refusal the employee, member, or
employee, member,
applicant to submit
applicant genetic test.
submit to a genetic test.
Added by
Added Acts 1997,
by Acts 75th Leg.,
1997, 75th Leg., ch. 1215, Sec.
ch. 1215, Sec. 1,
1, eff. Sept. 1,
eff. Sept. 1997.
1, 1997.
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Sec. CONFIDENTIALITY OF GENETIC
21.403. CONFIDENTIALITY
Sec. 21.403. GENETIC INFORMATION.
INFORMATION. (a) (a)
Except as
Except provided by
as provided Section 21.4031,
by Section 21.4031, genetic information is
genetic information is
confidential and
confidential privileged regardless
and privileged regardless of the source
source of the
information.
information.
(b)
(b) A person who
A person who holds
holds genetic information about
genetic information about an
individual may
individual may not disclose compelled to disclose,
disclose or be compelled disclose, by
by
subpoena or otherwise,
subpoena otherwise, that information unless
that information disclosure is
unless the disclosure is
specifically authorized as
specifically authorized provided by
as provided Section 21.4032.
by Section 21.4032.
(c)
(C) This section
This redisclosure of genetic
applies to a redisclosure
section applies genetic
information by
information secondary recipient
by a secondary information after
recipient of the information after
disclosure information by
disclosure of the information initial recipient.
by an initial recipient.
(d)
(d) Redesignated as
Redesignated as V.T.C.A., Labor Code
V.T.C.A., Labor Code Sec. 21.4031 by
Sec. 21.4031 Acts
by Acts
2003, 78th Leg.,
2003, 78th Leg., ch. 1276, Sec.
ch. 1276, ll.00l(d).
Sec. 11.001(d).
(e)
(e) person who
A person
A who discloses information in
genetic information
discloses genetic violation
in violation
section is
this section
of this liable for a civil
is liable penalty of not more
civil penalty more than
than
$10,000. The attorney
$10,000. general may
attorney general bring an action
may bring action in the name
name of
recover the penalty,
state to recover
the state plus reasonable
penalty, plus attorney's fees
reasonable attorney's fees
and court
and court costs.
costs.
Added by
Added Acts 1997,
by Acts 75th Leg.,
1997, 75th Leg., ch. Sec. 1,
1215, Sec.
ch. 1215, 1! eff. Sept. 1,
eff. Sept. 1,
1997. Amended by
1997. Amended Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch.
ch. 965, Sec. 1,
965, Sec. 1, eff. June
eff. June
20, 2003;
20, Acts 2003,
2003; Acts 78th Leg.,
2003, 78th Leg., ch. 1276, Sec.
ch. 1276, 11.001(b) to (e),
Sec. 11.001(b) (e),
Sept. 1,
eff. Sept.
eff. 2003.
1, 2003.
Sec. 21 4031
Sec. 21.4031.
. . EXCEPTIONS TO CONFIDENTIALITY.
EXCEPTIONS CONFIDENTIALITY. (a)
(a) Subject to
Subject
Subchapter G,
Subchapter Chapter 411,
G, Chapter Government Code,
411, Government genetic information
Code, genetic information may
may
disclosed without
be disclosed authorization required
without an authorization required under
under Section
Section
21.4032 disclosure is:
21.4032 if the disclosure is:
(1)
(1) authorized under
authorized under a state
state or federal criminal law
federal criminal law
relating to:
relating to:
(A)
(A) identification of individuals;
the identification individuals; or
(B)
(B) criminal or juvenile
a criminal juvenile proceeding,
proceeding, an inquest,
inquest,
child fatality
or a child review by a multidisciplinary
fatality review child—abuse team;
multidisciplinary child-abuse team;
(2)
(2) required under
required specific order
under a specific order of a state federal
state or federal
court;
court;
(3)
(3) the purpose
for the
for establishing paternity
purpose of establishing paternity as
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authorized under
authorized under a state federal law;
state or federal law;
(4)
(4) provide genetic
made to provide
made information relating
genetic information relating to a
decedent and
decedent disclosure is
and the disclosure is made blood relatives
made to the blood relatives of the
decedent for
decedent medical diagnosis;
for medical diagnosis; or
(5)
(5) made to identify
made identify a decedent.
decedent.
(b)
(b) Genetic information
Genetic disclosed without
information may be disclosed without an
authorization under
authorization under Section
Section 21.4032
21.4032 if:
if:
(1)
(1) disclosure is for
the disclosure
the information from
for information research
from a research
study in
study in which procedure for
which the procedure obtaining informed
for obtaining written consent
informed written consent
and the use
and information is
use of the information governed by
is governed national standards
by national standards
protecting participants
for protecting
for participants involved
involved in research projects,
in research projects,
including guidelines
including guidelines issued under 21
issued under Part 50
C.F.R. Part
21 C.F.R. and 45
50 and C.F.R.
45 C.F.R.
Part 46;
Part 46;
(2)
(2) information does
the information
the does not
not identify specific
identify a specific
individual; and
individual; and
(3)
(3) the information
the provided to the
information is provided the Texas Department
Texas Department
Health to comply
of Health comply with Chapter 87,
with Chapter Health and
87, Health and Safety
Safety Code.
Code.
Added by
Added Acts 1997,
by Acts 75th Leg.,
1997, 75th Leg., ch. l2l5, Sec.
ch. 1215, Sec. 1,
1, eff. Sept. 1,
eff. Sept. 1,
Redesignated from
1997. Redesignated
1997. Labor Code Sec.
from Labor 2l.403(c), (d)
Sec. 21.403(c), (d) and amended
and amended
by Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch. 1276, Sec.
ch. 1276, ll.00l(d), eff.
Sec. 11.001(d), Sept. 1,
eff. Sept. 1,
2003.
2003.
AUTHORIZED DISCLOSURE.
21.4032. AUTHORIZED
Sec. 21.4032.
Sec. DISCLOSURE. An individual or the
An individual
representative of an individual
legal representative
legal individual may authorize
authorize disclosure
disclosure of
information relating
genetic information
genetic individual by
relating to the individual written
by a written
authorization that
authorization includes:
that includes:
(1)
(1) description of the
a description information to be disclosed;
the information disclosed;
(2)
(2) the name of the
the name the person whom the
person to whom disclosure is
the disclosure
and
made; and
made;
(3)
(3) the purpose for
the purpose for the disclosure.
the disclosure.
Added by Acts
Added Acts 1997, 75th Leg.,
1997, 75th Leg., ch. Sec. 1,
1215, Sec.
ch. 1215, 1, eff. Sept. 1,
eff. Sept. 1,
Redesignated from
1997. Redesignated
1997. Labor Code
from Labor Code Sec. 21.403(b) and
Sec. 21.403(b) amended by
and amended
Acts 2003,
Acts 78th Leg.,
2003, 78th Leg., ch. 11.001(e), eff.
Sec. 11.001(e),
1276, Sec.
ch. 1276, Sept. 1,
eff. Sept. 2003.
1, 2003.
21.404.
Sec. 21.404.
Sec. DISCLOSURE OF
DISCLOSURE OF TEST INDIVIDUAL
RESULTS TO INDIVIDUAL
TEST RESULTS
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TESTED. An
TESTED. individual who
An individual who submits genetic test
submits to a genetic test has right
has the right
know the results
to know results of the test. written request
test. On the written request by
by the
entity that
individual, the entity
individual, performed the test
that performed test shall disclose the
shall disclose
test results to:
test results to:
(1)
(1) the individual; or
the individual;
(2)
(2) a physician designated by
physician designated by the individual.
the individual.
Added by
Added Acts 1997,
by Acts 75th Leg.,
1997, 75th Leg., ch. 1215, Sec.
ch. 1215, Sec. 1,
1, eff. Sept. 1,
eff. Sept. 1,
1997. Amended by
1997. Amended Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch. 1276, Sec.
ch. 1276, 11.001(f),
Sec. 11.001(f),
Sept. 1,
eff. Sept.
eff. 2003.
1, 2003.
DESTRUCTION OF
21.405. DESTRUCTION
Sec. 21.405.
Sec. SAMPLE MATERIAL;
OE SAMPLE EXCEPTIONS. A
MATERIAL; EXCEPTIONS. A
sample material obtained
genetic material
sample of genetic obtained from individual for
from an individual for a
genetic test
genetic test shall promptly after
destroyed promptly
shall be destroyed purpose for
after the purpose for
which the sample
which sample was obtained is
was obtained accomplished unless:
is accomplished unless:
(1)
(1) the sample
the retained under
sample is retained under a court
court order;
order;
(2)
(2) the individual authorizes
the individual retention of the
authorizes retention sample for
the sample for
medical treatment
medical scientific research;
treatment or scientific research;
(3)
(3) sample was
the sample
the obtained for
was obtained research that
for research cleared
that is cleared
institutional review
by an institutional
by board and
review board retention of the sample
and retention sample is:
is:
(A)
(A) requirement the institutional
under a requirement
under institutional review
review
board imposes
board specific research
imposes on a specific research project;
project; or
(B)
(B) authorized by
authorized by the research participant with
research participant with
institutional review
institutional board approval
review board approval under
under federal
federal law;
law; or
(4)
(4) sample was
the sample
the obtained for
was obtained screening test
for a screening test
established by
established Texas Department
by the Texas Health under
Department of Health under Section
Section 33.011,
33.011,
Health and
Health and Safety
Safety Code,
Code, and performed by
and performed department or a
that department
by that
laboratory approved by
laboratory approved department.
that department.
by that
Added by Acts
Added Acts 1997, 75th Leg.,
1997, 75th Leg., ch. Sec. 1,
1215, Sec.
ch. 1215, 1! eff. Sept. 1,
eff. Sept. 1,
1997. Amended by Acts
1997. Amended Acts 2003, 78th Leg.,
2003, 78th Leg., ch. ll.OOl(g),
Sec. 11.001(g),
1276, Sec.
ch. 1276,
Sept. 1,
eff. Sept.
eff. 2003.
1, 2003.
SUBCHAPTER I.
SUBCHAPTER PERSONNEL POLICIES
I. PERSONNEL AND PROCEDURES
POLICIES AND PROCEDURES
Sec. 21.451.
Sec. DEFINITION. In
21.451. DEFINITION. In this "state agency"
subchapter, "state
this subchapter, agency"
does not include
does public junior
include a public junior college
college as defined by
as defined Section
by Section
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Education Code.
61.003, Education
61.003, Code.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
DEVELOPMENT AND
2l.452. DEVELOPMENT
Sec. 21.452.
Sec. IMPLEMENTATION OF PERSONNEL
AND IMPLEMENTATION PERSONNEL
POLICIES AND PROCEDURES.
POLICIES AND Each state
PROCEDURES. Each develop and
shall develop
agency shall
state agency and
implement personnel policies
implement personnel policies and procedures that
and procedures that comply with this
comply with this
chapter, including
chapter, personnel selection
including personnel selection procedures
procedures that incorporate
that incorporate
workforce diversity
a workforce diversity program.
program.
Added by Acts
Added Acts 1999, 76th Leg.,
1999, 76th Leg., ch. Sec. 15,
872, Sec.
ch. 872, 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Sec. 21.453.
Sec. REVIEW. (a)
21.453. REVIEW. (a) commission shall
The commission review the
shall review
personnel policies
personnel policies and procedures of each
and procedures each state agency on a
state agency
six—year cycle
six-year cycle to determine whether the policies
determine whether policies and procedures
and procedures
comply with this
comply with chapter.
this chapter.
(b)
(b) commission by
The commission rule shall
by rule establish a system
shall establish system to
stagger the reviews
stagger reviews of state personnel policies
agency personnel
state agency policies and
and
procedures required
procedures required under
under this section.
this section.
(c)
(C) commission determines
If the commission
If determines that personnel policies
that the personnel policies
and procedures of a state
and procedures agency do not comply
state agency with this
comply with this chapter,
chapter,
commission shall
the commission recommend appropriate
shall recommend appropriate revisions
revisions to the
personnel policies
personnel policies and procedures.
and procedures.
(d)
(d) The state agency shall
state agency take these
shall take recommendations into
these recommendations into
consideration and
consideration whether to revise
determine whether
and determine personnel
revise the personnel
policies and
policies procedures.
and procedures.
(e)
(e) review of a state
The review agency's personnel
state agency's personnel policies
policies and
and
procedures shall
procedures completed within
shall be completed within one year.
year.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
COMPLIANCE REPORT.
2l.454. COMPLIANCE
Sec. 21.454.
Sec. Not later
REPORT. Not later than
than 60 after
days after
60 days
commission completes
the commission completes the review
review of a state agency's personnel
state agency's personnel
policies and
policies procedures as
and procedures required by
as required Section 21.453
by Section 21.453 and provides
and provides
review and
its review
its recommendations to the agency,
and any recommendations agency shall
agency, the agency shall
submit to the commission,
submit commission, the governor, and the
legislature, and
governor, the legislature,
Legislative Budget
Legislative Board a report
Budget Board report detailing:
detailing:
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(1)
(1) whether the
whether the agency implemented the
agency implemented recommendations of
the recommendations
and
commission; and
the commission;
(2)
(2) the agency
if the did not
agency did implement all
not implement all of the
the
commission's recommendations,
commission's recommendations, the reasons
reasons for rejecting those
for rejecting those
recommendations.
recommendations.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Sec. 21.455.
Sec. REIMBURSEMENT; AUDIT.
21.455. REIMBURSEMENT; AUDIT. (a)(a) A state
A state agency
shall reimburse
shall commission through
reimburse the commission through interagency
interagency contract
contract for
for the
reasonable and
reasonable necessary expenses
and necessary incurred by
expenses incurred commission in
by the commission in
conducting under Section
review under
conducting a review Section 21.453.
21.453.
(b)
(b) commission shall
The commission maintain a record
shall maintain record of the time
time
expended and
expended actual costs
and the actual and travel
costs and incurred by
expenses incurred
travel expenses by the
commission in
commission in conducting under Section
review under
conducting a review Section 21.453.
21.453.
(c)
(c) amount of reimbursement
The amount paid by
reimbursement paid under
state agency under
by a state
Subsection (a)
Subsection (a) and maintained by
record maintained
and the record commission under
by the commission under
Subsection (b)
Subsection subject to audit
is subject
(b) is audit by
by the state auditor in
state auditor in
with Chapter
accordance with
accordance Chapter 321, Government Code.
321, Government Code.
Added by Acts
Added Acts 1999, 76th Leg.,
1999, 76th Leg., ch. Sec. 15,
872, Sec.
ch. 872, 15, eff. Sept. 1,
eff. Sept. 1,
1999. Amended by Acts
1999. Amended Acts 2003, 78th Leg.,
2003, 78th Leg., ch. Sec. 61,
785, Sec.
ch. 785, eff.
61, eff.
Sept. 1,
Sept. 2003.
1, 2003.
21.456. FAILURE
Sec. 21.456.
Sec. COMPLY WITH
FAILURE TO COMPLY WITH SUBCHAPTER;
SUBCHAPTER;
ADMINISTRATIVE PENALTY.
ADMINISTRATIVE PENALTY. (a)
(a) commission determines
If the commission
If determines that
that a
agency has
state agency
state failed to comply
has failed with this
comply with subchapter, the
this subchapter,
commission shall
commission certify that
shall certify determination to the comptroller.
that determination comptroller.
(b)
(b) On receipt certification by
receipt of a certification commission under
by the commission under
Subsection (a),
Subsection comptroller shall
(a), the comptroller notify the state
shall notify agency that
state agency that
is the subject
is certification that
subject of the certification that funds appropriated to the
funds appropriated
agency are subject
agency reduction in
subject to a reduction amount of $5,000
in the amount $5,000 as
as
provided by this
provided section unless,
this section later than
unless, not later than the 30th after
30th day after
receives notice
agency receives
date the agency
the date notice from comptroller under
from the comptroller under this
this
agency submits
subsection, the agency
subsection, comptroller proof
submits to the comptroller proof that
that the
agency has
agency complied with
has complied with this subchapter. If
this subchapter. agency fails
If the agency fails to
comptroller the proof
submit to the comptroller
submit proof required
required by this subsection,
this subsection,
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comptroller shall:
the comptroller shall:
(1)
(1) if the state agency
the state develop or implement
failed to develop
agency failed implement
personnel policies
personnel policies and procedures as
and procedures required by
as required Section 21.452:
by Section 21.452:
(A)
(A) reduce the funds
reduce appropriated to the agency
funds appropriated agency for
for
fiscal year in
the fiscal which the agency
in which agency fails with this
comply with
fails to comply this
subchapter by
subchapter amount of $5,000;
by the amount $5,000; or
(B)
(B) if all funds
if all appropriated to the agency
funds appropriated agency for
for the
fiscal year in
fiscal which the agency
in which agency fails with this
comply with
fails to comply this
subchapter have
subchapter distributed to the agency,
been distributed
have been reduce the funds
agency, reduce funds
appropriated to the agency
appropriated during the next
agency during fiscal year by
next fiscal by the
amount of $5,000;
amount $5,000; or
(2)
(2) the state
if the agency failed
state agency reimburse the
failed to reimburse the
commission as
commission required by
as required Section 21.455:
by Section 21.455:
(A)
(A) transfer the amount
transfer reimbursement from
amount of the reimbursement from
commission's appropriations
agency to the commission's
the agency appropriations andand reduce
reduce the funds
funds
appropriated to the agency
appropriated agency for fiscal year in
for the fiscal which the agency
in which agency
fails comply with
fails to comply with this subchapter by
this subchapter amount that
by an amount equals the
that equals
difference between the amount
difference between reimbursement and
amount of the reimbursement and $5,000;
$5,000; or
(B)
(B) if all funds
if all appropriated to the agency
funds appropriated agency for
for the
fiscal year in
fiscal which the agency
in which agency fails with this
comply with
fails to comply this
subchapter have
subchapter have been distributed to the agency:
been distributed agency:
(i)
(i) during the next
during next fiscal
fiscal year, transfer the
year, transfer
amount reimbursement from
amount of the reimbursement from the funds appropriated to the
funds appropriated
agency for
agency that fiscal
for that commission's appropriations;
fiscal year to the commission's appropriations; and and
(ii)
(ii) reduce the funds
reduce appropriated to the agency
funds appropriated agency
during the next
during fiscal year by
next fiscal amount that
by an amount difference
equals the difference
that equals
between the amount
between reimbursement and
amount of the reimbursement and $5,000.
$5,000.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
SUBCHAPTER J.
SUBCHAPTER HIRING PRACTICES
J. HIRING PRACTICES
WORKFORCE ANALYSIS.
21.501. WORKFORCE
Sec. 21.501.
Sec. Each state
ANALYSIS. Each state fiscal
fiscal biennium,
biennium,
each state
each agency shall
state agency analyze its
shall analyze its current workforce and
current workforce compare
and compare
the number African Americans,
number of African Hispanic Americans,
Americans, Hispanic and females
Americans, and females
employed by the agency
employed agency in each job
in each job category available
category to the available
African Americans,
African Hispanic Americans,
Americans, Hispanic and females
Americans, and females in statewide
in the statewide
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workforce to determine
civilian workforce
civilian percentage of exclusion
determine the percentage exclusion or
underutilization by
underutilization each job
by each category.
job category.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
RECRUITMENT PLAN.
21.502. RECRUITMENT
Sec. 21.502.
Sec. Based upon
PLAN. Based workforce
upon a workforce
avai1abi1ity analysis
availability under Section
analysis under Section 21.501
21.501 that demonstrates the
that demonstrates
exclusion or underutilization
exclusion African Americans,
underutilization of African Hispanic
Americans, Hispanic
Americans, and
Americans, and females, court—ordered remedies,
females, or court-ordered supervised
remedies, or supervised
conciliations or settlement
conciliations settlement agreements, each state
agreements, each state agency, other
agency, other
public junior
than a public
than junior college
college as defined by
as defined Section 61.003,
by Section 61.003,
Education Code,
Education develop and
sha11 develop
Code, shall and implement p1an to recruit
implement a plan recruit
qualified African Americans,
qualified African Hispanic Americans,
Americans, Hispanic Americans, and
and females.
females. The
p1an must
plan must comply with this
comply with commission shall
chapter. The commission
this chapter. monitor
shall monitor
state agencies
state determine compliance
agencies to determine compliance with
with this section.
this section.
Added by Acts
Added Acts 1999, 76th Leg.,
1999, 76th Leg., ch. Sec. 15,
872, Sec.
ch. 872, 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Sec. 21.503.
Sec. EFFECT ON
21.503. EFFECT ON REMEDIES UNDER OTHER
REMEDIES UNDER OTHER LAWS. This
LAWS. This
subchapter does
subchapter affect a remedy,
does not affect settlement, or
agreement, settlement,
remedy, agreement,
affirmative action
affirmative plan that
action plan that has ordered or approved
been ordered
has been approved by a
court or that
court that has
has been adopted in
been adopted accordance with
in accordance with other
other law.
law.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
ANNUAL REPORT.
2l.504. ANNUAL
Sec. 21.504.
Sec. Not later
REPORT. Not later than November 11 of
than November
each calendar year,
each calendar each state
year, each agency shall
state agency report to the
shall report
commission the total
commission African Americans,
number of African
total number Hispanic
Americans, Hispanic
Americans, females,
Americans, females, and other persons
and other hired for
persons hired each job
for each category
job category
agency during
by the agency
by preceding state
during the preceding fiscal year.
state fiscal year. The
commission shall
commission compile this
shall compile information and
this information and submit
submit a report based
report based
information to the governor
on the information governor and Legislative Budget
and the Legislative Board
Budget Board
later than
not later than January subsequent calendar
January 11 of the subsequent calendar year.
year.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
SUBCHAPTER K.
SUBCHAPTER EMPLOYMENT OPPORTUNITY
EQUAL EMPLOYMENT
K. EQUAL OPPORTUNITY REPORTS
REPORTS
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Sec. 21.551.
Sec. DEFINITION. In
21.551. DEFINITION. In this "racial and
subchapter, "racial
this subchapter, and
ethnic group" means
ethnic group" Caucasian American,
means Caucasian African American,
American, African American, or
Hispanic American.
Hispanic American.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
EQUAL EMPLOYMENT
21.552. EQUAL
Sec. 21.552.
Sec. OPPORTUNITY REPORT
EMPLOYMENT OPPORTUNITY REPORT REQUIRED.
REQUIRED.
(a)
(a) later than
Not later
Not November 11 of each
than November each year, each state
year, each agency
state agency
report equal
shall report
shall employment opportunity
equal employment information for
opportunity information for the
preceding fiscal
preceding commission as
fiscal year to the commission required by this
as required this
subchapter. The report
subchapter. must be made
report must made in the form prescribed by the
form prescribed
commission and
commission information compiled
include information
and include monthly basis.
compiled on a monthly basis.
(b)
(b) Each commission shall
Each year the commission compile equal
shall compile employment
equal employment
information reported
opportunity information
opportunity reported to the commission
commission by a state
state
information must
agency. The information
agency. must include:
include:
(1)
(1) the total
the number of employees
total number employees of the
the agency and the
agency and the
number of new
total number
total new employees hired since
employees hired since the date
date of the last
last
report made by the agency;
report made agency;
(2)
(2) the total
the number of employees
total number employees of the
the agency listed by
agency listed
ethnic group
and ethnic
racial and
racial group and percentage of the total
and the percentage number of
total number
employees for
agency employees
agency each racial
for each racial and ethnic group,
and ethnic including a
group, including
distinction for
distinction those categories
for those between the total
categories between number of
total number
employees and
employees and the total number of employees
total number hired since
employees hired since the date
date of
last report
the last made by the agency;
report made agency;
(3)
(3) the total
the number of male
total number male employees
employees and
and the total
the total
number of female
number employees of the agency,
female employees agency, including distinction
including a distinction
those categories
for those
for between the total
categories between number of employees
total number and the
employees and
number of employees
total number
total hired since
employees hired since the date
date of the last report
last report
made by the agency;
made agency;
(4)
(4) the total
the number of male
total number male employees
employees and
and the total
the total
number of female
number employees of the agency
female employees agency for each racial
for each racial and ethnic
and ethnic
group, including
group, distinction for
including a distinction those categories
for those between the
categories between
number of employees
total number
total and the total
employees and number of employees
total number hired
employees hired
since the date
since date of the last
last report made by the agency;
report made and
agency; and
(5)
(5) the total
the number of employees
total number employees of the
the agency listed
agency listed
classification and
by job classification and the total number of employees
total number employees for each
for each
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and racial
sex and
sex racial and ethnic group
and ethnic group listed
listed by classification,
job classification,
by job
including distinction for
including a distinction those categories
for those between the total
categories between total
number of employees
number and the total
employees and number of employees
total number hired since
employees hired since
date of the last
the date last report made by
report made agency.
by the agency.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Amended by:
Amended by:
Acts 2005,
Acts 79th Leg.,
2005, 79th Leg., Ch. 1301 (H.B.
Ch. 1301 2716), Sec.
(H.B. 2716), Sec. 2,
2, eff. June
eff. June
2005.
18, 2005.
18,
Acts 2013,
Acts 83rd Leg.,
2013, 83rd R.S., Ch.
Leg., R.S., 1312 (S.B.
Ch. 1312 (S.B. 59), Sec. 78,
59), Sec. eff.
78, eff.
September 1,
September 2013.
1, 2013.
COOPERATION WITH
21.553. COOPERATION
Sec. 21.553.
Sec. COMPTROLLER AND
WITH COMPTROLLER UNIFORM
AND UNIFORM
STATEWIDE ACCOUNTING SYSTEM;
STATEWIDE ACCOUNTING REPORT. (a)
SYSTEM; REPORT. (a) commission shall
The commission shall
information reported
compile the information
compile commission under
reported to the commission under this
this
with the assistance
subchapter with
subchapter comptroller and
assistance of the comptroller uniform
and the uniform
statewide accounting system.
statewide accounting system.
(b)
(b) commission shall
The commission conduct an analysis
shall conduct analysis of the
information reported
information commission under
reported to the commission under this subchapter and
this subchapter and
report the results
report results of that analysis to the legislature,
that analysis legislature, the
Legislative Budget
Legislative Budget Board, governor not later
and the governor
Board, and January 11
than January
later than
odd—numbered year.
each odd-numbered
of each year. The report required under
report required under this
this
subsection must
subsection written in
must be written plain language.
in plain language.
Added by Acts
Added Acts 1999, 76th Leg.,
1999, 76th Leg., ch. Sec. 15,
872, Sec.
ch. 872, 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
Amended by:
Amended by:
Acts 2013,
Acts 83rd Leg.,
2013, 83rd R.S., Ch.
Leg., R.S., 1312 (S.B.
Ch. 1312 (S.B. 59), Sec. 79,
59), Sec. eff.
79, eff.
September 1,
September 2013.
1, 2013.
Acts 2013,
Acts 83rd Leg.,
2013, 83rd R.S., Ch.
Leg., R.S., 1312 (S.B.
Ch. 1312 (S.B. 59), Sec. 80,
59), Sec. eff.
80, eff.
September 1,
September 2013.
1, 2013.
Sec. 21.554. FORM.
Sec. 21.554. Not later
FORM. Not later than December 15
than December each year,
15 of each year,
commission shall
the commission shall notify each state
notify each form to be
agency of the form
state agency
used to make
used make a report under this
report under subchapter for
this subchapter following year.
for the following year.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
510f53
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FAILURE TO FILE
2l.555. FAILURE
Sec. 21.555.
Sec. REQUIRED REPORT;
FILE REQUIRED ADMINISTRATIVE
REPORT; ADMINISTRATIVE
PENALTY. (a)
PENALTY. (a) commission determines
If the commission
If determines that
that a state agency has
state agency has
failed to file
failed file a report required under
report required under this subchapter, the
this subchapter,
commission shall
commission certify that
shall certify determination to the comptroller.
that determination comptroller.
(b)
(b) On receipt certification by
receipt of a certification commission under
by the commission under
Subsection (a),
Subsection comptroller shall
(a), the comptroller notify the state
shall notify agency that
state agency that
is the subject
is certification that
subject of the certification that funds appropriated to the
funds appropriated
agency are subject
agency reduction in the amount
subject to a reduction amount of $2,000
$2,000 as
as
provided by
provided section unless,
this section
by this later than
unless, not later than the 30th after
30th day after
receives notice
agency receives
date the agency
the date notice from comptroller under
from the comptroller under this
this
agency submits
subsection, the agency
subsection, comptroller proof
submits to the comptroller proof that
that the
filed the report
agency filed
agency required under
report required under this subchapter. If
this subchapter. If the
agency fails
agency fails to submit comptroller the proof
submit to the comptroller proof required
required byby
this subsection,
this comptroller shall:
subsection, the comptroller shall:
(1)
(1) reduce the
reduce appropriated to the
funds appropriated
the funds agency for
the agency for the
the
fiscal year in which
fiscal which the agency
agency fails
fails to file
file the report required
report required
under this
under subchapter by
this subchapter amount of $2,000;
by the amount $2,000; or
(2)
(2) if all appropriated to the
funds appropriated
all funds agency for
the agency for the
the
fiscal year in which
fiscal which the agency
agency fails
fails to file
file the report required
report required
under this
under subchapter have
this subchapter have been distributed to the agency,
been distributed reduce
agency, reduce
appropriated to the agency
funds appropriated
the funds during the next
agency during fiscal year by
next fiscal by
amount of $2,000.
the amount $2,000.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1999.
1, 1999.
2l.556. REQUIRED
Sec. 21.556.
Sec. COMPLIANCE TRAINING
REQUIRED COMPLIANCE TRAINING FOR STATE
FOR STATE
AGENCIES. (a)
AGENCIES. (a) A state
A agency that
state agency receives three
that receives more
three or more
complaints of employment
complaints discrimination in a fiscal
employment discrimination fiscal year, other
year, other
than complaints
than determined to be without
complaints determined without merit, provide a
shall provide
merit, shall
comprehensive equal
comprehensive equal employment opportunity training
employment opportunity program to
training program
appropriate supervisory
appropriate supervisory and managerial employees.
and managerial employees.
(b)
(b) The training provided by
training may be provided commission or by
by the commission by
another entity
another entity or person approved by
person approved including a
commission, including
by the commission,
state agency.
state agency.
(c)
(C) state agency shall
The state documentation of the
provide documentation
shall provide
training to the commission
training training is
commission if the training conducted by
is not conducted by the
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documentation shall
commission. The documentation
commission. include the dates
shall include training
dates the training
provided, the names
was provided,
was attending the training,
persons attending
names of the persons training, an
agenda for
agenda training program,
for the training and the name
program, and entity or
name of the entity
person providing the training.
person providing training.
(d)
(d) commission by
The commission rule shall
by rule shall adopt minimum standards
adopt minimum standards for
for
a training program described
training program described by Subsection (a)
by Subsection and shall
(a) and approve an
shall approve
person to provide
entity or person
entity provide a training program if
training program program
if the program
minimum standards
with the minimum
complies with
complies adopted by
standards adopted commission under
by the commission under
subsection.
this subsection.
this
(e)
(e) An agency participate in
required to participate
agency required program under
in a program under this
this
section shall
section shall pay cost of attending
pay the cost program or shall
attending the program shall
commission or state
reimburse the commission
reimburse agency providing
state agency program
providing the program
through interagency
through interagency contract.
contract. The cost
cost of providing program
providing the program
determined and
shall be determined
shall approved by
and approved commission or state
by the commission state agency.
agency.
auditor may audit
state auditor
The state commission's expenditure
audit the commission's expenditure of fees
fees
collected under
collected under this based on a risk
section based
this section performed
assessment performed
risk assessment
auditor and
state auditor
by the state
by and subject approval by
subject to the approval legislative
by the legislative
audit committee
audit including the audit
committee of including audit in audit plan
in the audit under
plan under
Section 321.013,
Section Government Code.
321.013, Government Code.
Added by
Added Acts 1999,
by Acts 76th Leg.,
1999, 76th Leg., ch.
ch. 872, Sec. 15,
872, Sec. 15, eff. Sept. 1,
eff. Sept. 1,
1999. Amended by
1999. Amended Acts 2003,
by Acts 78th Leg.,
2003, 78th Leg., ch.
ch. 785, Sec. 62,
785, Sec. eff.
62, eff.
Sept. 1,
Sept. 2003.
1, 2003.
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Appendix
Tab 3
Alamo Heights Junior School
Alamo
7607 N. New Braunfels
N. New Braunfcls 18209
San Antonio, Texas 78209
Phune2l0—824-323i
Phone FAX:2l0—832-S825
21 0-824-323 1 FAX: 210-832-5825
2009
June 23, 2009
Brown
Dr. Kevin Brown .
Superintendent of
of Schools
Alamo Heights Independent School District
Alamo
Broadway
7101 Broadway
78209
San Antonio, Texas 7$209
RE:
RE: Catherine Clark
Dear Dr. Brown:
Dear
Cathaine
Catherine Clark isis employed as a teacher/coach on on the Alamo
Alamo Heights ISD [SD Junior School
Campus. Six other teacher coaches work work with Ms. Clark, conducting P.E. classes and/or
tearm. On
coaching sport teams. May 15,
On May l S, 2008, Ms.
Ms. Clark informed meme fin
fur the first time of
first tiine of complaints
rnembua of
she held against members stafi (see Exhibit A). Thereafter, I conducted a series
of her coaching staff
of interviews, investigating her 52 charge. On
52 separate charges. On May 2008 I issued the attached
May 23, 2008
letter ofdetcrmination
‘letter generally finding
of determination regarding her complaints, generaJly no evidence to support
finding little to no
Ms. Clark's contentions. (See EXhibit
Exhibit B).
That list of charge addressed matters alleged to have occurred as early as September 20, 2007.
charges addrssed 2007.
Subsequent to mymy May determination letter, Ms.
May 23, 2008 determinatfon. Ms. Clark continued to forward similar
similar
complaints me As
complajuts to me. As you know, our giievance
you know, grievance policy n:iquires work place complaints to be
requires work be filed
within 15 working
witlrin working days of their inception, but Ms. Clark had not
days of not utilized the District's
District’: grievance
policy to lodge any
policy of her complaints. Explaining the purpose of
any ofher of the District grievance system,
on October 29, 2008, I placed Ms. Clark on on a growth plan as a Teach:
Teacher Inin Need
Need ofof Assistance,
directing her to improve peer ugnnnunication, employml concerns
communication, and to first communicate employment conoems
directly to Michelle :6oyer,
directly Boyer, he: Campus Coaching Coordinator, and thereafter if
her Campus if needed, through
Dish-iet’s grievance Policy. (See Exhibit
the District's Exlubit C).
AA DGBA
copy of Board Policy DGBA (Local), describing
copy filing requirement and the
descnbing the 15-day filing
grievance procss, was first
process, was Ms. Clark‘:
first placed in Ms. Clark's private mailbox on May 23, 2008. She
on May She was
was
provided with another copy
copy of mermrandum dated September
of the Policy, along with a memorandum Septerriber 17, 2008.
A was again handed to Ms.
copy of the Policy was
A copy Clark in our meeting on
Ms. Clerk on October 29, 2008.
Additionally, a copy
(Note: Additionally,. of the Policy was
copy of Ms. Clad:
was handed to Ms. oflanuary
Clark in our meeting of January 29,
yet another at our meeting of
‘
2009, and
iµid yet of April 8, 2009.) ·
On January 23, 2009 Mr.
On to me
Ms.. Clark issued fo riie a second series of complaints, again outside the
he’ complaints included allegations that:
grievance Policy. This time her
•0 Her cell phone
Her been removed
phone had twice been liom her desk and hidden in the trash can by
removed from '
by
other coaches
ooaches. ·
EXHIBIT D-07
EXHIBITD-7
129
129
Page 11 of 8
• Her keys had been removed from
Her fiom herha desk twice, and hidden
Iµdden under the trash can
by other ooachm.
by coaches.
“reported” the removal of her keys fiom
•- She had "reported" from her desk by by other roaches.
coaches.
She was
•- She by Coach Annie Monterrubio
“hit" by
was intentionally "hit" Monte:-rubio as she carried a box box out
of the supply room
room. _
•0 That II . "blindsided" when I directed her to attend a meeting where
‘1)lindsided” her when where wewe
discussed two grievances filed filed against her by by her fellow coaches, as well as
missing student athletic funds for fbr which she had responsibilities because hecausell did not
Campus Athletic Director and Assistant Principal would also
inform her that the Campus
infurm
attend such meeting.
•- That itit isis my
my responsibility to pnsinfiarm
pre-inform her of my my agenda whenever she is asked
meeting with me.
to attend a ineet1ng
-• That there were witnesses to a verbal attaek attack onon ha’ by Coaches Michelle
her by Nflchelle Boyer
and Christi Gonzales. -
•- That all “snapping” at her, and she was
all coaches were "snapping" was being "buliied"
"bullied" by them.
•I She She had been "yelled"
firelled" at and "treated
“treated terribly byby three co-workers
no-workers in a row."
0• That Michelle Boyer brings breakfast breitlcfast tacos in the morning fur eoachm except
all coaches
list all
her. ·
•I That Michelle Boyer holds coaches meetings that exclude her.
• That the ‘lather "either coaches” looked her out of the coaching offiee
coaches" had locked on three
office o.n
specified dates.
specified ·
•0 That Michelle Boyer, should be be required to report her Boyer’s]
he: . [Coach Boyer's]
whereabouts to her [Ms. [Ms. Clark], and that it it is “shocking
"shocking ......” 'idon‘t
" to her that I "don't
agtee that the head ofa
agree of a department should let let he
her employees know know where she is is
and when she' JI be out."
when she'll '
•I That she she“had for the District yievance
"had to ask fi:rtheDistrict fimn seven
grievance fonn se'venh'mes."
times."
• That on five five separate occasions, print jobs which she had prepared were "wadded “wedded
up"
lip" and thrown away by by others.
•0 That she does not need to improve her communication co:tnmunication skills,
skills, it's who
it’a the others who
at fuult.
are at fimlt.
-• That all all the above was in· fir her having previously filed a sexual
in "retaliation" fur
harassment charge.
Manyof
Many of the above complaints were also the subject of e-mail reprimands Ms. Clark had
forwarded directly to colleagues.
{forwarded again, I investigated such charges, but was unable
Once agam,
End support fur
to find lbr her claims.
On Ms Clark fo!Warded
On February 6, 2009 Ms. me a third set of cxqmpiainta,
fiwrwarcled to me complaints, again not using · <
DGBA (Local).
DGBA time, among
(Local). This time, among her claims she alleged: .
-• · That Michelle Boyer has ruiked away "balls and Frisbees" that were not
asked her to put away
hers.
0• That all
all coaches were ignoring her request for coaching assistance.
•0 That none
Iione of the coaches
ooadles would speak to her.
130
130
Page 2 of 8
• That Michelle Boyer was playing loud music and refirsed
Boyer was refused to tum down when
it down
turn it when
she requested.
she.requested.
• That "last minute" changes had intentionally not been oornrnunicatecl
minute" venue .changes coinmunicated to
her.
• That Coach at her “bottom”
was "staring" at.her
Coach Monterubbio was "bottom."
• That her desk two clipboards
and two
de8k had been ransacked aud clipboan:ls taken.
• }hat Coach Gonzales blocked her way
That Coach way at the door one morning.
rooming.
• That coaches were talking about missing student activity monies in front
that of her.
of the above was
• That all of liar her having previously filed a sexual
“retaliation” for
was in "retaliation"
harassment charge.
had again sent e-mail messages regarding the above to colleagues
Ms. Clark had colleagues. II also
unable to find
investigated these claims and was, once more, linable fur her allegations.
find support fior
On
On 2009, Ms. Clark used the grievance Policy to tile
X5, 2009,
April 15, file a grievance .against
Coach
Coach Monterubbio fiir ror assault. SheShe alleged that Coach
Coach Monteruhbio
Monterubbio .iiitentionally
intentionally
sho_ved from behind when
shoved her from were both
when they were during an exercise run.
supervising students during
bothsuper\tising
Coach Montcrubbio
Coich admitted to having shoved her [Ms.
Monterubbio admittai [Ms. Clark], that she.
Clark), stating that she thought
Cfark was
Ms. Clark was one of who she was
of the students who end of
was ushering into the building at the and ofaa
She said she apofogized
run. She apologized on Ms Clark acknowledged the apology,
on the spot. Ms. apology, insisting
that the incident was w;is an intentional assault and was was intended to
She claimed that the act was
intimidate" her. She was in retaliation fiar
fu:r her having
having previously
reported that she had
bad been sexually harassed by by the Coach. The
The grievance resobztion
resolution she
was either her transfer or the transfer of Coach
sought was Coach Monterubbio to another campus.
On attpt to better understand her grievanee
On April 21, 2009, in an attempt grievance charge ofof intentional
intenfional
assault, I posed a set Exlubit B
set of inquires to Ms. Clark. (See Exhibit attached).. On
E attached). April 22,
On Apri,l 22,
2009, Ms. Clark responded to my my inquiries by describing an additional set of
ai1additionalset complaints
ofcomplaints
Exhibit F
(see Bxlubit F attached), which are summarized as follows:
fisllowsz
l.
l. Coach
Coach Monterubbio has a" a "....... history of her unpredictable and
ofberunpredictable and miss
crass behavior."
2. Coach Monteruhbio "“...
Coach Monterubbio bullied ... [her] ... for 18 months."
.. . has bullied
33. Coach
Coach Monterubbio .told told herher". : . that she has harmed others in the past who
“._.. who tattled
tattlod
on
on her." . -
4, M; Clark is"
Ms. ... constantly feeling ill
is "... every morning
[is] so nervous every
ill and [is] when ...
morning when
[she] comes to work."
[she] ... comes work"
5. She has "“...an extreme amount
...an extrane amount of stress and ill
ofstrcss ill health because ... (she is]
[she is]
:frightened of. .. " Coach
fiightened of..." Coach Monterubbio.
Monten¢bi0.
6. Coach
Coach Monterubbio "".... .. aoowls
scowls and grunts when when walking past ... "her.
..." her.
7. "Within earshot of
"Within of students, parents, substitute teachers, teachers, and staff,
staff, . ..
[Coach Monterubbio] ... continues to cuss and threaten." threaten.”
8. Coach
Coach Monterubbio "“.... makes fun
.. inakes fim ofof not
notjust
just'[her] studentS, parents, and
[her] . .. , but students,
,
on a daily basis.''
teachers ona basis.” .
9. Coach Montenlbbio "“.....1·bad
Coach Mqnterubbio bad mouths
inouths others and has no concern for discretion."
no concem discretion."
10. Coach Montembbio "...
Coach Monterilbbio " ... exhibits unprofessional behaviorduring
behavior.during class, at games,
games,
and during praotioa."
practices."
131
Page 3 of 8
11. In the athletic oflioe,
Ih office, ... [Coach Monterobbio] on a daily basis by
Monterubbio] ... is hostile on by
saying derogatory things about ... [her] ... to others which are meant for ... [her]
l0'OthC1S [her]
... to hear.”
hear." · ·
12. Coach
Coacb.N[onterubbiois .. . known
Monterubbio is "“... to habitually snap at
khownto at. ..
.... [her]. .. , other coaches,
[her]... .
and parents."
students, ahd parents.” ·
13. Coach Monferubbio
Coach Monterubhio teases" ... students and staff ... ,, causing trouble."
teases “...
14. Coach Monterubbio "“...
Coach ... shouts at students and fellow coaches."
15. Coach Monterubbio uses"
Coach uses "... ... profanity and/or talks about barhopping and having
sexual relations the previous night" in the presence
.oo§.’c?.7$.iT=:;
praence of students.
students
16. She feels "“...
She ... that her [Coach Monterubbio's]
Monterubbio’s]... ... aggressive and unpredictable
unpredictal:>le
nature is a concern regarding our bur students."
17. Coach Montenibbio
Coach Monterubbio "“... exhibits inappropriate language and gestures ... showing
... exlubits
the children ofof this community that it okay to bully,
it is okay dirty, and to be
bully, talk dirty, be
outspokenly negative."
18.
.. Coach
Coach Monterruhio
Monterrubio "...
I
falks about sex and female body
"... talks body parts ... in the girls’
girls'
room every day
locker room among our children."
day among
19. The [rig] was ripped ofi_‘
..• antennae [sic}
The "“... of ... [her]
off of car the very
[her} cat very evening that ...
" [she) [me] that ... [Coach Monterubbio] ... pushed ... [her] ... in the
[she] reported to [me]
. rback.
-back. AndAnd ... [she is]
is] ... fearful
fearfulthat will occur.“
that additional retaliation will occur."
20. Coach
Coach Monterubbio cli.ased her in her car on an unspecified
Monte:-ubbio chased unspecified date at 11:35:35 P.M.
21. Pornography was was"“...... displayed on on ... [Coach
[Coach Monterubbio's] ... . . cellphone
cell phone to .. ....
.
[her] ... and the other touchescoaches on Valentine's Day Day 2008, and the dirty pictures
and oft‘-colored jokes ... were e-mailed from
and off-colored Monte:-ubbio's] District
from her [Coach Monterubbio's)
computer (that is, one District e-mail address to another District e-mail address) to
is, one
..• [her] .,. and to others and ‘this ·this is “... another example
is "... example of of her
Monterubbio 's] disturbing character."
[Coach Monterubbio’s] characta.”
22. Coach Monterubhio "“...
eoach Monterubbio twice; with a box,
[her] ... (with her shoulder twice,
... touched .. . {her]
and now
now with both
ooth hands when when pushing ... [her] ... in the back). When When walking
ofice, Coach
past ... [her] ... in the office, Coach Monterrubio
Montenubio purposefillly “brushes” ... [her]
purposefu11y "brushes" [ha]
... body."
23. Coach MonterubbiO
Coach Monterubbio "...
“. .. is no doubt retaliating against
is no [her] . . . and has
against . . . [her]
become
become more aggressive because ... [she] ... tattled on
more aggremive Coach for
on the Coach br her sexual
harassment last year when cm1id not stop herself
when she could irom commenting about ......
herilelf from
[hedbodypartsto
[her] body parts to ... [her] and other coarhes.”
[her] ... andother coaches."
24. Coach Monterubbio'sh...
Monterubbio’s"... behavior .. . seems to be overlooked by by both
Michelle Boya and by
Miehelle Boyer by you
you [me]."
25. When "··-
When "... parents and other campuses report . .. [Coach [Coach Monterubbio's]
Monta:ubbio's]
unproiicsional
unprofessional behavior to Michelle Boyer, Boyer, it is not addrmed."
it is addressed."
26. "As athletic supervisor, Michelle Boyer
"AB Boyer does not treat the coaches eqilally."
equally.”
27. harassment by
Since reporting sexual harassment by Michelle BoyerBoyer against .. . [her]
[her] ... ,,
Coach Boyer
Coach Boyer" “....
.. has picked on on ... [her] and treated ... [her)
[her] ... unprofessionally
on
on a basis ..'.”
a daily ha.Sis and "“....
.. '." and. slammed aa drawer and a door that
.. [Coach Boyer] ... slammed
rwllyhurt
really hurt ... [herJ fiightened ... [her]."
[her] . . ;eari; and frightened
28. Boyer "...
Michelle Boyer" made a verbal
.. . also m.ade to" [her].
vt;rbal threat to" [her].
132
Page 4 of 8
29. Other unspecified "“... were reported to [me]
. .. incidents ... occurred, and were [me] ... in ...
(May 2008), [and] in letters e-mailed to ... [me)
[her] ... report [to me] last Spring (May [me]
on several occasions."
... on
On communique to Ms.
On April 22, 2009, I prepared a conunuoique of
lvfs. Clark regarding the disposition of
these 29 complaints. (See Exhibit G)
29 additional complaints. M5. Clark added these allegations to
G).. Ms.
her originai grievance. (See Exhibit HJ
heroriginal H).
. Meanwhile, onon April 29, 2009 Ms. Clark was TAKS testing as part of her
was monitoring TAKS
teaching msignment.
assignment. A A cell phone rang during the test. AsAs you know, itit is a violation of
TAKS
TAKS protocol ii): a student to have a cell phone
pmtocol fur phone during the tests. A A diligent search was
was
made
made to determine the source of of the phone ringer — it
phone ringer- it was lbund. Then
was not foilnd. was
Then the phone was
heard again, at least twice more. This time another teacher/monitor identified
identified
Ms. phOne as the source of
Ma. Clark's phone same day Ms.
ring. That same
of the ring. Ms. Clark prepared a
handwritten explanation of of these events. (See attached Exhibit I). 1). She subsequently
She
attempted to clarify her earlier explanation through a typed report. (See Exhibit 1). J).
In the weeks ensuing, the administration
administration and Coach Monterubbio
antllI decided to transfer Coach Monteruhbio to
another campus, the re111ecl.y Ms. Clark requested to her grievances. I assumed, or hoped,
remedy Ms. hoped.
by this action -— separating Ms.
that by Ms. Clark from
Ii-uni Coach Montaubbio -— would have a
Coach Monterubbio
calming effect
eifect on office —
on the Junior School coaching olfice it did not.
- it
Almost immediately following
Almost Coach Monterubbio's
iiollowing Coach Montcrubbio’s reassignment, Ms. Clark began a
new campaign of
new of Coaches Boyer and Gonzales. Among
of complaining of Among her allegations
Ms. Clark
Ms. Gia.ck claimed:
l.
1. That she was
was intentionally snubbed by Coach Boyer when
by Coach when she "turned her back"
. on her at a
on her. coaches' ofice
a meeting in the coaches’ office on on April 28, 2009;
2. That she was "lying" by
was falsely accused of “lying," Coach Boyer when
by Coach was questioned
when she was
of Coach Boyu”s
as to the location ofcoach Boyer's missing keys, which Ms. Clark admittedly
adm.\ttedly last
possessed at a meeting in the coaching office oflice on 2009 (which I also
on April 29, 2009
attended);
attended); ·
3. That she waswas falsely accused of of "lying" whenwhen Coach Boyer questioned her
Coach Boyer
statement at that meeting that she waswas "the first person in the ofiico
“the first office (at work)
every moming";
morning";
4. And same meeting she had "“...
And at that same ... answered each of... [my] questions in a
of ... [my]
polite manner and acted professional ....." "
On
On April 29, 2009, I presented Ms. Ms. Clark with a set of new
of inquiries about these new
complaints, as well as others meviously lodged. (See Exlnlait
previously Iodged. K
EXhibit K attached). My My
communique recognized that where
communique ditfering descriptions of the same
where there are repeated differing same
determination of
events, a dete.mrillation of the dependability of one source over the other will one:wm
often lie in
ctedflaility of the accuser to that of
judging, and comparing the .credibility accused. My
of the accused, My
communique
communique also recognized that I had been present at certain events made made subject of
this latest list of Ms.
Ms. Clark‘:
Clark's complaints. ByBy eomparing
comparing Ms. Clark's recitations of the
Ms; Clark’s
. facts of those occasions to my
fircts of my recollection of the same
same events she depicted, I was
was able to.
133
133
Page 5 of 8
some general conclusions regarding Ms. Clark's
reach some Clark’s credibility. I concluded that her
were mostly not credible. Thus, as an
depictions of these events were an immediate a solution to
was the earmark of the coaching office
the tension that was on
ofilce at the Junior School this year, on
May l,I, 2009, Ms.
May was placed on
Ms. Clark was leave,'a
on administrative leave,' a status which she continues
L attached).
to occupy today. (See Exhibit L
II then enlisted the aid of Dana Bashara to investigate and
of Dr. Dana and determine a response to the
remainder ofof Ms.
Ms. Clark's
Clark’s multiple grievance allegations. From May 12, 2009
From May May 28,
2009 to May
2009 Dr. Bashara interviewed coaches, teachers andand students, as well as Ms. Clark.
Ms. Clark's
Despite Ms. Clark‘s grievance allegations, the investigation did not find evidenm to
find evidence
conclude that she had been intentionally assaulted by by Coach Nor did the
Coach Monterrubio. Nor
for the remainder of
investigation yield support fur claims, Nevertheless, we
of her claims. we did not
disturb our denision
decision to transfor Coach Monterrubio to another campus
transfer Coach campus setting as
Ms. Clark had previously requested in her grievance. The The Level I grievance decision
had requested is attached as Exhibit M.
granting the relief she had M.
However, one of of the teachers on.
oThmy campus met with me
my campus she
describe a conversation she
me to de!;cribe
had held with Ms. Clark on on April Q3, According to that teacher's
23, 2009, According Briggs’)
teachcr’s (Janet Briggs')
made the following statements to her:
Ms. Clark made
unsolicited statement, Ms.
"- Coach
Coach Monterubbio had campus and
had been transferred to another campus now "no
and could now
push people around";
longer push aroun ";
•- Junior School coaches are having sexual affairs with one one another;
Iunior School girls'
., Junior “lesbian dikes [sic]"
girls‘ coaches are "lesbian who "get
flsicj” who “get drunk and
and share
men;”
men;"
•- Certain named were making
named coaches were making "rude
“rude gestures" behind her back;
• Coach
Coach Monterubbio had cursed at a referee refereeat
.at a meet, and at another time
“flipped off'
"flipped been reported to Coach
off’ a parent. These incidents had been who
Coach Boyer, who
“did nothing about it";
"did it”;
• Either or both Coach Coach Monterubbio
Coach Boyer and Coach Monterubbi9 had
bad vandalized her vehicle;
• She had attended a Basham that she was
a meeting with Dr. Bashara keep
was directed to keep
confidential; shewould
confidential; nevertheless she meeting if the
would answer questions about that :meeting
was, addressing would
teacher she was would only ask.
Other Dr. Bashara interviewees provided interview testimony regarding Ms.
other Ms. Clark's
Clark's
classroom and
name1y.c1essroom
teacher/coaching performance, namely. management and
and instructional management and
coaching perfurmance
pertbrrnance issues, almost all of which had
of which had not previously been my
been brought to my
oonoems:
attention. These included the following concerns:
• At the morning and was often not on
practiees Ms. Clark was
and afternoon practices on the field or in
field or
the gym was engaged with her laptop oomputer
roaches, but was
gym assisting the head coaches, computer or
the computer in the criaching
coaching office.
office,
•I Despite having been instructed by me work,
me to not have her daughter attend work,
Ms. Clark had continued, on at least two occasions, to care for
continued, on fur her daughter
wo rking hours.
during working
134
134
Page 6 of 8
• Ms. Clark Montenrbhio and
Clark told at least two District employees that Coaches Monterubbio
were sexually involved.
Boyer were
• PE. classes.
Ms. Clark frequently permits her students to not dress for P.E.
• Ma. Clark complained of
Ms. of her treatment by other to her students.
• Ms Montmrbhio had stolen and
Ms. Clark told her students that Coaches Boyer and Monterubbio
disposed oflter
of her keys.
• Mcntenubio had stolen and
Ms. Clark told her students that Coaches Boyer and Montenubio
disposed of
of her cell phone.
• commonly shares her private life with her students.
Ms. Clark commonly
•
3000
Ms. Clark has not followed lesson plans.
• Ms. Clark has
bas not maintained daily grades for her students.
• Ms. Clark has not maintained reasonable orderliness in her section of the
coaching office, or her desk and cabinets.
On
On May was interviewed by Dr. Bashara II have carefully .considered
2009 Ms. Clark was
May 28, 2009 considered
her interview responses, along with the interview responses and statements, and
responses of have
of other interviewees, as well as other investigation materials, and ]lave
bllowing significant
reached the following findings concemingMs.
significant findings Clark: _
oonca'n.ing\M\a. Clark;
' ....
• AHISD teacher Janet
She stated to AHISD
She Jariet Biggs on
on April 23, 2009 and to Coach Coach Debbie
Cathey on lbund it
on another occasion, that she found it " work in the coaches’
... difficult to work
“...diflicult coaches'
ofiice
office with lesbian dike [sic]
[Zvic] coaches who gd drunk and share men.”
who get nien."
• She She stated to teacher Janet Biggs on on April 23, 2009, and to Coach Coach Debbie
Oebbie Cathey ‘
on another occasion, that
on that Coaches Monterubbio and Boyer are sexually involved.
• She also stated to teacher Janet Big:
She abc Biggs on on April 23, 2009 that
Coaches Monterubbio and Boyer were "making “making rudemde gestures" behind ... [her)[her] ...
back. .
• On On April 29, 2009 her cell phone audthly during a TAKS
phone rang audibly examination..
T AKS examination.
was aware that
Ms. Clark was t4at exam oficials and others were
exam officials were attempting to learn the
of the phone. She
location of was also aware that test protocol does not permit
She was peimit
posts: aa phone during testing. Her
students to possess Her phone rang at least one more time
during the testing period. She was was aware ofthc
of the fact that it it had rung. She She
provided conflicting, and therelbre statcnmits regarding this
therefure false statements this event.
repeatedly claimed that Coach
'
• Ms. Clark has repeat<;Xlly Coach Boyer has ignored red oomplaints
complaints
received regarding Coach Monterubbic’s conduct. There :Is
Coach Monterubbio's no evidence to
is no
support these claims
claims.
• Ms. Clark has repeatedly claimed to others, othas, including her students, that
Coaches Boyer
·Coaches Boyer and Monterubbio vandalized her automobile. There is no reason
to believe this allegation of
of crllninal
criminal wrongdoing.
• Ms. Clark has repeatedly claimed to others, including her ..s_tude|1tS,
ha5 repey the Board the proposed action and the grounds for tor
Code21.158{a)
the action. Education Code 21.15B(a)
An who is discharged or Sl,lspended
employee, who
An employee suspended without paypay for ac-
tions related to the inability or failure of the employee to perform
assigned duties is entitled, as a matter of right, to a copy of each
a copy
memorandum that concerns
any other written memorandum
evaluation report or any
the fitness or conduct of the employee, by writing a
by requesting in writ!ng a
Code 21. 1580:)
copy of these documents. Education Code21.158(b)
copy
HEARING
HEARING upon written notification of the proposed action, the employee
if, upon
If,
employee shall notify the Board in
same. the emproyee
desires to contest the same,
writing not later than the tenth day data of receipt of the
day after the date
cfficiar
olticial notice and must provide the Commissioner with a copy
and must copy of
notice‘ A
the notice. entities the employee to
fimely request for a hearing entitles
A timely
aa hearing before a hearing examiner.
The may agree in writing to extend by
The parties may more than ten
by not more
days the deadline for requesting a hearing.
Code21.25l(a)(1),
Education Code DFD]
21.251(a)(1), 21.253, 21.159 [See DFDJ
HEARING NOT
H EARING NOT lf the employee fails to request a hearing not later
if than the tenth
laterthan
REQUESTED
REQUESTED day after receiving notice of the proposed action.
day action, the Board shall
take the appropriate action and notify the employee in writing of the
action not later than the 30th day
day after the date the Board sent the
Code 21.159{c)
notice of the proposed action. Education Code 21.159(c)
DATE ISSUED:
DATE ISSUED: 12/16/2003
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015901
CONTRACTS
CONTINUING CONTRACTS
CONTINUING DFCA
DFCA
SUSPENSION/TERMINATION
SUSPENS!ON!fERMINAT!ON (LEGAL)
(LEGAL)
Note: See DF regarding circumstances under which a certified
See DF cenified
employee's termination during the year shall be
be reported
to the State Board for Germination (SBEC).
(or Educator Certification
DATE ISSUED:
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2
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PERSONNEL~MANAGEMENT RELATIONS
PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE
EMPLOYEE COMPLAINTS/GRIEVANCES
COMPLAINTS/GRIEVANCES (LEGAL)
STATES
UNITED STATES
UNITED The District shall take no action abridging the freedom of speech or
The
CONSTITUTION
CONSTITUTION !he right of the people to petition the Board for redress of griev-
the
Canst. Amend,
ances. U.S. Const. Amend. I,l.XIV
XIV
The may confine its
The Board may its meetings to specified subject matter and
may
may hold nonpublic sessions lo when the
transact business. But when
to 1ransact
Board sits in public meetings to conduct pubHcpublic business and hear
may not discriminate between speakers on
the views of citizens, it may
it
message itit conveys.
the basis of the content of their speech or the message conveys,
Rosenberger v.
Ftosenberaer & Visitors
Flector &
V. Rector Wsitors of Univ. of Virginia, 515 U.S. 819,
Wain/‘a, 515 B19,
B28 (1995); Cilv
828 City of \/.Vlfls. Emg.
Q! Madison v. Wis. Emp. Rel. Comm’n, 429 U.S.
Ftel. Comm'n, U.S,
(1976); Pickering v.
167, 174 {1976); Educ, 391
v. Bd. of Educ., US. 563, 568
.391 U.S. 568
DG]
(1968) [See DG]
{1968)
TEXAS CONSTlTUTl0N
TEXAS CONSTITUTION Employees shall have the right, inin a assem-
a peaceable manner, to assem-
common good and to apply to those invested
ble together for their common
with lhe
the powers ofat government for redress of grievances or other
purposes, by Canst. Art. I,
by petition, address, or remonstrance. Tex. Const. I,
Sec. 27
Sec.27
There is no requirement that the Board negotiate or even respond
to complaints. However, the Board must stop, look, and listen and
must consider the petition, address, rernonstrance. Prof’/Ass‘n
address. or remonstrance. Prof'/ Ass'n
of College Educators v. El Easo Cgugtg Cmtv.
Paso Countv
ll. Qmty [Coflegel
[COIlegel District,
678 W.2d 94 (Tex. App.——EI
S.W.2d
678 S. Paso 1984, writ ref‘d
App.-Ef Paso ref'd n.r.e.)
FEDERAL LAWS
FEDERAL LAWS A district that receives federal financial
A tinancial assistance, direc!ly
directly or indi-
SECTION
SECTION 504 rectly, and that employs 15 or more persons shall adopt grievance
rectly,
procedures that incorporate appropriate due process standards
and that provide for the prompt and equitable resolution of com-com-
plaints alleging any action prohibited by 504 of the Reha-
by Section 504
bilitation Act of 1973. 34
bilitation CFFi 104.l(b),
34 CFR 104,11
104.7(b), 104.11
AMERICANS WITH
AMERICANS WITH A district that employs
Adistrict 50 or more persons shall and publish
shalt adopt and
DISABILITIES ACT
ACT grievance procedures providing for prompt and equitable resolution
by the
of complaints alleging any action that would be prohibited by
Code of
Code 28. Part 35 (Americans v.iith
ot Federal Regulations, Title 28, with
28 CFR
Disabilities Act regulations). 28 CFFt 35. 35140
107, 35.140
35.107,
TITLE IX A district
A district that receives federal financial
tinancial assistance, directly or indi-
indi«
rectly, shall adopt and
rectly, and publish grievance procedures providing for
prompt and equitable resolution of employee complaints alleging
title IX
any action prohibited by Title Education/Rmendntents
lX of the Education Amendments of
1972. 34 CFR 106.B(b);
34 CFR 106,8{b): North Haven Board of Education v. Bell,1/.
456 Us. 512
456 U.S. 512 (1982) (1982) ' - DATE ISSUED: 9/6/2007 DATE 1ol4 1of4 UPDATE 81 UPDATE81 DGBA(LEGAL)-P OGBA(LEGAL)-P 165 165 Alamo Alamo Heights ISD 015901 PERSONNEL-MANAG EMENT RELATIONS PERSONNEL-MANAGEMENT RELATIONS DGBA DGBA EMPLOYEE COMPLAINTS/GRIEVANCES EMPLOYEE COMPLAlNTS/GRiEVANCES (LEGAL) STATE LAWS STATE LAWS The prohibition against collective bargaining and strikes [see DGA] The DGA] wAGES_ HOURS, WAGES, HOURS_ does not impair the right of employees to present grievances con- CONDITIONS OF CONDH-IONS OF cerning their wages, hours of employment, or conditions of work, WQRK WO Rf< either individually or through a representative that does not claim eilher Code 617.005 Govt Code the right to strike. Gov't The “conditions of The term "conditions work‘ should be construed broadly to in- oi work" in» any area of wages, hours or conditions of clude ahy ot employment, and is appropriate for communications from any other matter that is em« trom em- ployees to employer concerning an aspect of their relationship. Atty. Gen. Op. JM-177 (1984); Corpus Christi Fed. of Teachers v. Op, JM-177 1/. CUIQUS Christi ISD, Corpus /SD, 572 W.2d 663 572 S. W2d 563 (Tex. 1978) The statute protects grievances presented individually or individual The grievances presented collectively. Lubbock Firefighters v. Froi’I Firefighters Lubbock Prof'/ v. Cit't. 742 City of Lubbock,742 S.W.2d 413
(Tex. App.—Ar-narlllo
S.Vi/.2d 1987. writ
App. -Amarillo 1987,
rel’d n.r.e.)
ref'd
The District cannot deny an employee's representative, including
The
an attorney, the right to represent the employee at any stage of ot the
grievance procedure, so long as the employee designates the rep- rep‘
resentative and the representative does not claim the right to strike.
I-Treliglrters v.
Prof’! Firefighters
Lubbock Prof'/ 742
City of Lubbock, 7
v. Citv 42 S. W222’ 413
5. W.2d
(Tex. /lpp.—Aman'Ilo 1987, writ ref'd n.r.e.); Savre
(Tex, App.-Amari/lo Sayre v. Mullins, 681
i/.
W.2d 25
s. W2d
S. 25 (Tex.
(rex. 1984)
The District should meet with employees or their designated repre-
The
sentatives at reasonable times and and places to hear grievances con~
con·
cerning wages, hours of work, and conditions of work. The The right to
present grievances is if employees have access to those
satistied if
is satisfied
a posttion
in a position of authority to air
air their grievances. However, that au-
thority is under no legal compulsion to take action to rectify the
H-422 (1974);
matter. Atty. Gen. Op. H-422 ISD v.
(1.974); Corpus Christi ISO V. Padilla,
Padilla
709 S. W2d
709 {Text App.—Corpus
W.2d 700 (Tex. App.--Corpus Christi, 1986, no no writ)
EMPLOYMENT
EMPLOYMENT The District's employment policy must provide each employee with
The
POLICY
POLICY the right to present grievances to the Board.
The may not restrict the ability of an employee to communi-
The policy may communi-
member or
cate directly with a member of the Board regarding a matter relat-
may pro-
ing to the operation of the District, except that the policy may
hibit ex parte communication relatlng
relating to:
1. A hearing under Edl!cation
A Education Code E
Code Chapter 21, Subchapter E
Contracts) or F
(Term Contrp.cts) F (Hearing Examiners); and
2. Another appeal or hearing in which ex parte communication
parie communicalion
would be inappropriate
inappropriate pending a final decision by
by the Board.
Code 11.1513
Education Code
DATE ISSUED:
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DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLNNTS/GRIEVANCES (LEGAL)
GRIEVANCE POLICY
GRIEVANCE POLICY The Dfstrfct's
The District's grievance policy must permit an employee to report a
grievance against a supervisor to a different supervisor if em-
if the em·
ployee alleges that the supervisor:
i,
1. violated the law in the workplace; or·
Violated or-
2. Unlawfully
Unlawtully harassed the employee.
Code 11.
Education Code 11.171
171
FINALITY OF
F|NALITY OF An
An examination or course grade issued by by a classroom teacher is
GRADES
GRADES final may not be
and may
ttnal and be changed
changed unless the grade is arbitrary, errone-
ous, or not consistent with the District's grading policy applicable to
the grade, as determined byby the board of the district in which the
teacher is employed.
The Board's determination is not subject to appeal.
The
Code 28.0214
Education Code 28. 0214
OPEN MEETINGS
OPEN ACT
MEETINGS ACT The Board is not required to conduct an open meeting to hear aa
The
complaint or charge against an employee. However, the Board
may not conduct a closed meetlng
may who is the sub-
meeting ifit the employee who
Code 551.074
Gov’! Code
ject of the hearing requests a public hearing. Gov't
EEC]
[See BEG]
CLOSED MEETING
CLOSED MEETING The Board may
The may conduct a com—
a closed meeting on an employee com-
plaint to the extent required or provided by !aw. BEC]
law. [See BEG]
RECORD OF
RECORD OF An appeal of the Board's decision to the Commissioner of Educa-
An Educa~
PROCEEDINGS
PROCEEDJNGS tion shall be one review ‘of
be decided based on·a 'Of the record developed at
“Record” includes, at a minimum, an aupible
the District level. "Record" audible
an
electronic recording or written transcript of all oral testimony or ar-
gument. Education CodeCode 7.057(c),
7.057(0), (Q
(f)
make and
Itit is the District's responsibility to make and preserve the records of
the proceedings before the Board. Ifit the District fails to create and
preserve the record without good cause, all all substantial evidence
record for resolution
issues that require missing portions of the recOid
deemed against !he
shall be deemed The record shall include:
the District. The
i.
1. AA tape recording or a transcript of
oi the hearing at the local lev-
|ev—
el. it a tape recording is
el. If is used:
a. The tape recording must be complete, audible, and
The
clear; and ·
‘
b. Each speaker must be clearly identified.
Each identilied.
2. All evidence admitted;
3. All offers of
ot proof;
proot;
DATE ISSUED:
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PERSONNEL-MANAGEMENT FtELAT|ONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTSIGRIEVANCES (LEGAL)
4. All
Ali written intemediate rulings:
wrilfen pleadings, motions, and intermedlate rulings;
5. A description of matters officially noticed;
A
.".°’S".*>
6. IfIf applicable,
appiicabie, the decision of the hearing examiner;
7. Atape
A tape recording or transcript of the oral argument before the
Board; and
8. The decision of the Board.
The
TAG 157.1073(d)
19 TAC
WHISTLEBLOWER
WHISTLEBLOWER suit, an employee who
Before bringing suit, reiief under Govern-
who seeks relief
COMPLAINTS
COMPLAINTS Code Chapter 554
ment Code 554 (whistleblowers)
(whistieblowers) must initiate action under
the District's
Districts grievance or appeal procedures relating to suspension
or termination of employment or adverse personnel action. Gov't Gov?
Code 554.005 [See DG]
Code DG]
DATE ISSUED: 9/6/2007
DATE 4of4
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015901
PERSONNEL-MANAG EMENT RELATIONS
PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTS/GRIEVANGES (LOCAL)
GUIDING PRINCIPLES
GUIDING PRINCIPLES The Board encourages employees to discuss their concerns and
The
INFORMAL
INFORMAL complaints through informal conferences with their supervisor,
PROCESS
PROCESS principal, or other appropriate administrator.
Concerns should be be expressed as soon as possible to allow earry
early
resolution at the lowest possible administrative level.
DIRECT
DIRECT Employees shall not be prohibited from communicating with a
COMMUNICATION
COMMUNICATION member of the Board regarding District operations except when
member when
WITH BOARD
WITH BOARD communication ootween member would
and a Board member
between an employee and
MEMBERS
MEMBERS be inappropriate because of a pending hearing or appeal related to
the employee.
FORMAL PROCESS
FORMAL PROCESS Ifit an informal conference regarding a complaint fails to reach the
outcome requested by the employee, he or she may may initiate the
formal process described below by timely filing a written complaint
form.
Even after inltiating
Even initiating the formal complaint process, employees are
iniormal resolution cif
encouraged to seek informal An em-
of their concerns. An em~
whose concerns are resolved may
ployee whose com«
may withdraw a formal com-
plaint at any time.
The process described in this policy shall not be construed to cre-
The
new or additional rights beyond those granted by law or Board
ate new
policy, nor to require a full
lull evidentiary hearing or "mini-trial" at any
level.
TO
NOTICE TO
NOTICE The District shall inform employees of this policy.
The
EMPLOYEES
EMPLOYEES
FREEDOM FROM
FREEDOM FROM any District employee shall unlawfully retali-
Neither the Board nor any
RETALIATION
RETALIATION a concern or complaint.
ate against an employee for bringing a
WHISTLEBLOWER
WHISTLEBLOWER Whistlebiower complaints shall be filed
Whistleblower tiled within the time specified by by
COMPLAINTS
COMPLAINTS may be
law and may made to the Superintendent or designee beginning
be made
Two...Time
at Level Two Time fines
lines for the employee and the District set out
may be shortened to allow the Board to make
in this policy may make i'a1 final
60 calendar days of the initiation of the complaint.
decision within 60
DG]
[See DG]
COMPLAINTS
COMPLAINTS a violation of law by
Complaints alleging a made
may be made
by a supervisor may
AGAINST
AGAINST to the Superintendent or designee. Complaints alleging a a violation
SUPERVISORS
SUPERVISORS of law by may be
by the Superintendent may made directly to the Board or
be made
designee.
COMPLAINTS
COMPLAINTS In
in this policy, the terms "complaint" and "grievance" shall have the
same meaning. This policy shall apply to,all
same complaints.
torall employee complaints,
except asas provided below.
DATE ISSUED:
DATE ISSUED: 6/2/2008 tots
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PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTS/GRIEVANCES (LOCAL)
(LOCAL)
EXCEPTIONS
EXCEPTIONS This policy shall not apply to:
to:
1. Complaints alleging discrimination, including violations of Title
lX (gender),
IX (gender). Title VII
Vil (sex, race, color, religion, national origin),
ADEA {age),
ADEA 504 (disability). [See DIA]
(age), or Section 504 DlA]
2. lorms of harassment, including
Complaints alleging certain forms
harassment by a supervisor and "File Vil.
and violations of Tiiie Vll. [See
DIAJ
DIA] ·
‘
3. Complaints concerning retaliation relating to discrimination
and harassment. [See DIA]
DlA]
4. instructional materials. [See EFA]
Complaints concerning instruclional EFA)
5. who is
Complaints concerning a commissioned peace officer who
an employee of the District. {See CKE]
[See CKE]
6. nonrenewai of
Complaints arising from the proposed nonrenewal oi a term
contract issued under Chapter 21 of the Education Code.
DFBB]
[See DFBB]
7. Complaints arising from the proposed termination or suspen-
ol an employee on a probationary, term, or
pay of
sion without pay
continuing contract issued under Chapter 21 of
oi the Education
Code during the contract term. {See
Code DFCA,
[See DFAA, DFBA, or DFCA,
respectively]
GENERAL
GENERAL Complaint forms may be filed by
lorms and appeal notices may by hand-delivery,
l'rand—dellvery,
PROVISIONS
PROVISIONS fax,
fax, or U.$. filings shall be timely filed if re-
U.S. Mail. Hand-delivered filings it
HLING
FIUNG ceived by the appropriate administrator or designee by by the close ofoi
business on the deadline. Fax filings if they
iilings shall be timely filed it
betore the deadline, as Indicated
are received on or before by the
indicated by
date/time shown
shown on the fax lilings shall be timely filed if
tax copy. Mail filings it
they are postmarked by Mailon or before the deadline and
by U.S. Mail.on and
by the appropriate administrator or designated represen-
received by
more than three days after
tative no more alter the deadline.
RESPONSE
RESPONSE At Levels One One and Two, "response" shall mean
mean a written communi-
communi-
cation to the employee from the appropriate administrator. Re-Re~
sponses may may be hand-delivered
handdeiivered or sent by
by U.S. em-
US. Mail to the em-
ployee's mailing address of record. Mailed responses shall be
timely ifit they are postmarked by US. Mail on
by U.S. dead
on or before the dead-
line.
DAYS
DAYS mean District business days, unless otherwise noted.
"Days" shall mean
"Days"
In day a document is
in calculating time lines under this policy, the day is
filed The following
tiled is "day zero." The “day one."
day is "day
lollowirig business day one.“
DATE ISSUED: 6/2/2008
DATE 6/212008 2 of
oi 6
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PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTS/GRiEVANCES (LOCAL)
REPRESENTATIVE
REPRESENTATIVE mean any person who
“Representative” shall mean
"Representative" who or an organization
that does not claim the right to strike and
!hat em-
and is designated by the em-
ployee lo
to represent him or her in the complaint process.
The employee may
The may designate a representative through written no-
any fevel
tice to the District at any if the employee des-
level of this process. lf
ignates aa representative with fewer than three days’
days' notice to the
District before a scheduled conference or hearing, the District may may
reschedule the conference or hearing to a later date, ifif desired, in
reschedufe
order to include the District's The District may
Districts counsel. The may be
be repre-
sented by any level of the process.
by counsel at any
CONSOLIDATING
CONSOLIDATING Complaints arising out of an event or a series of related events
COMPLAINTS
COMPLAINTS shall be addressed in
In one complaint. Employees shall not bring
separate or serial complaints arising from any event or series of
events that have been or could have been addressed in a previous
complaint.
When two or more
When and
more complaints are sufficiently similar in nature and
one proceeding,
remedy sought to permit their resolution through one
remedy
may consolidate the complaints.
the District may
UNTIMELY FIUNGS
UNTIMELY FILINGS All time Hmits
All limits shall be strictly followed unless modilied by
by mutual
written consent.
com-
a complaint form or appeal notice is not timely filed, the com-
IfIt a
may be
plaint may be dismissed, on written notice to the employee, at any
point during the complaint process. The The employee maymay appeal the
dismissal byby seeking review in writing
Writing within ten days from the date
of the written dismissal notice,
notice. starting at the level at which the
was dismissed. Such appeal shall be limited to the issue
complaint was
of timeliness.
COSTS INCURRED
COSTS INCURRED Each party shall pay
Each pay its own costs incurred in the course of the
its own
complaint.
COMPLNNT FORM
COMPLAINT FORM on a form
Complaints under this policy shall be submitted in writing on
by the District.
provided by
any documents that support the complaint should be at-
Copies of any
tached to the complaint form. IfIf the employee does not have cop-
may be
ot these documents, they may
ies of One
be presented at the Level One
One conference, no new
conference. After the Level One new documents
may be submitted by
may by the employee unless the employee did not
know the documents existed before the Level One
know One conference.
A complaint form that is
A is incomplete in anyany material aspect may be
may be
dismissed, but maymay be refiled
reitled with all
all the required information lfif the
is within the designated time for
reliling is
refiling for filing aacomplaint.
complaint.
DATE ISSUED:
DATE rssuso: e/2/2005
6/2/2008 3 of 6
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PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTS/GRIEVANCES (LOCAL)
LEVEL ONE
LEVEL ONE be fifed:
must be
Complaint forms mus! fited:
i.
1. Within 15 days ofoi the date the employee first
first knew, or with
reasonable diligence should have known, of the decision or
action giving rise to the complaint
oornplaint or grievance; and
2. who has the authority lo
With the lowest level administrator who to
remedy the alleged problem.
campus shall
In most circumstances, employees on aa school campus
file One complaints with the campus
file Level One campus principal; other
District employees shall file One complaints with their
file Level One
immediate supervisor.
who has authority .to
IfIt the only administrator who to remedy the al-
at-
Superintendent or designee, !he
leged problem is the Superintendent com-
the com-
Two following the procedure, includ-
may begin at Level Two
plaint may
ing deadlines, for filing the complaint form at Level One.
If the complaint is not filed with the appropriate administrator, the
If
receiving administrator must note the date and time the complaint
form was and immediately forward the complaint form to
was received and
the appropriate administrator.
The appropriate administrator shaU
The and
shall investigate as necessary and
hold a conference with the employee within ten days after receipt
may set reasonable
The administrator may
of the written complaint. The
time limits for the conference.
The administrator shall provide the employee a written response
The
within ten days following the conference. TheThe written response
shall set forth the basis of the decision. In reaching a decision, the
One
may consider information provided at the Level One
administrator may
conference and any other relevant documents or information the
administrator
administrator believes will
will help resolve the complaint.
TWO
LEVEL TWO
LEVEL One or
IfIf the employee did not receive the relief requested at Level One
ifif the time for a response has expired, may request a
expired. the employee may
conference with the Superintendent or designee to appeal the
Level One One decision.
The atorm
be filed in writing, on a
The appeal notice must be form provided by
District. within ten days of the date of the written Leve!
the District, One re-
Level One re»
sponse or, if no
or, if was received, within ten days of the
no response was
One response deadline.
Level One deadline‘
After receiving notice of the appeal, One administrator
appeal. the Level One administrator
One complaint to
shall prepare and forward a record of the Level One
Two administrator. The
the Level Two may request a copy
The employee may copy of
the Level One
One record.
DATE ISSUED:
DATE rssueo; 6/2/2008 44 of 6
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015901
015901
PERSONNELMANAGEMENT RELATIONS
PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTSIGRIEVANCES '
(LOCAL)
One record shall include:
The Level One
The
1. The original complaint form and
The and any
any attachments.
2. All other documents submitted by the employee at Level One.
by !he
3. The One and any attach-
The written response issued at Level One
ments.
merits.
4. One administra-
All other documents relied upon by the Level One
One decision.
tor in reaching the Level One
The Superintendent or designee shall hold a conference within ten
The
days alter the appeal notice is filed. The conference shall be lim-
filed. The
ited lo
to the issues presented by One and
by the employee at Level One
Two appeal notice. At the conference, the
identified in the Level Two
employee may may provide information concerning any documents or
information relied upon by the administration for the Level One
information de
One de-
cision. The
The Superintendent or designee maymay set reasonable time
limits for the conference.
‘
The Superintendent or designee shall provide the employee a writ-
The
ten response within ten days following the conference. TheThe written
in reaching a
response shall set forth the basis of the decision. In
may consider the Level
decision, the Superintendent or designee may
One record, information provided at the Level Two
One Two conference, and
any other relevant documents or information the Superintendent or
designee believes will help resolve the complaint.
One and Level Two
Recordings of the Level One Two conferences, if any,
if
Two records.
One and Level Two
shall be maintained with the Level One
THREE
LEVEL THREE
LEVEL Two or
Ifif the employee did not receive the relief requested at Level Two
.
may appeal
ifit the time for a response has expired, the employee may
the decision to the Board.
The appeal notice must be filed in
The In writing, on a form provided byby
Two re-
the District, within ten days of the date of the written Level Two
sponse or, if was received, within ten
or, if no response was ‘ten days of the
Two response deadline.
Level Two
The Superintendent or designee shall inform the employee of the
The
date, time, and place of the Board meeting at which the complaint
wlll
will be on the agenda for presentation to the Board.
The
The Superintendent or designee shall provide the Board the record
Two complaint. The
oi the Level Two
of may request a copy
The employee may copy of
Two record.
the Level Two
The Level Two
The Two record shall include:
1. The One record.
The Level One
DATE ISSUED:
DATE 5/2/2003
lSSl_JED: 6/212008 5 of 6
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DGBA(LOCAL)-A
173
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Alamo Heighls
015901
015901
PERSONNELMANAGEMENT RELATIONS
PERSONNEL-MANAGEMENT RELATIONS DGBA
DGBA
EMPLOYEE COMPLAINTS/GRIEVANCES
EMPLOYEE COMPLAINTS/GRIEVANCES (LOCAL)
2. The Two and
The written response issued at Level Two and any attach-
ments.
3.
3, All other documents relied upon by
AH by the administration in
Two decision.
reaching the Level Two
If
if at the Level Three hearing the administration intends to rely on
Two record, the administration
evidence not included in the Level Two
the evidence at
shall provide the employee notice of the nature of lhe
before the hearing.
least three days oefore
The District shall determine whether the complaint will
The will be pre-
sented in open or closed meeting in accordance with the Texas
Open Meetings Act and other applicable law.
Open law, [See BE]
The presiding officer may
. The may set reasonable time limits and guidelines
for the presentation including an opportunity for the employee and
make aa presentation and provide rebuttal
administration to each make
and an opportunity for questioning by the Board. TheThe Board shall
may request that the administration provide
hear the complaint and may
an explanation for
an for the decisions at the preceding levels.
In
in addition to any other record of the Board meeting required by
law, the Board shall prepare a separate record of
at the Level Three
The Level Three presentation, including the presen-
presentation. The
the employee or the employee's representative,
tation by !he any pres-
representative. any
entation from the administration, and questions from the Board with
be recorded by audio recording, video/audio re-
responses, shall be
cording, or court reporter.
The Board shall then consider the complaint. Itit may
The may give notice of
its decision orally or in writing at any time up to and including the
next regularly scheduled Board meeting. Ifit the Board does not
make a decision regarding the complaint by
make by the end of the next
regularly scheduled meeting, the lack of a response by the Board
upholds the administrative decision at Level Two.
DATE ISSUED:
DATE ISSUED: 6/212008
6/2/2008 ADOPTED:
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Appendix
Tab 5
Case: 14-50391
Case: Document: 00512885589
Document: Page: 1
Page: Date Filed: 12/30/2014
THE UNITED
IN THE
IN UNITED STATES COURT OF
STATES COURT OF APPEALS
APPEALS
FOR THE
FOR THE FIFTH
FIFTH CIRCUIT
CIRCUIT
No.
NO‘ 14-50391
1 4' 1 United
United States
States Court _of
of Appeals
Summary
Summary Calendar Fifth °"°“"
F””‘ Circuit
FILED
December 30, 2014
RODOLFO MARTINEZ,
RODOLFO MARTINEZ, W. Cayce
Lyle W. Cayce
Clerk
Plaintiff - Appellant
—
v.
V.
TEXAS WORKFORCE COMMISSION
TEXAS WORKFORCE COMMISSION -- CIVIL RIGHTS
RIGHTS DIVISION,
DIVISION,
Defendant - Appellee
-
Appeal from the United States District Court
for the Western District of Texas
KING, JOLLY,
Before KING, HAYNES, Circuit Judges.
JOLLY, and HAYNES,
PER CURIAM:
PER CURIAM:
Rodolfo Martinez appeals the district summary
district court’s order granting summary
judgment in favor of the Texas Workforce Commission-Civil Rights Division
(“TWC”) on Martinez’s claims of national origin discrimination under Title VII,
VII,
42 U.S.C. 2000e-2(a).11 Martinez,
U.S.C. §§ 2000e-2(a). Martinez, a Mexican-American, TWC
Mexican-American, argues that the TWC
when it
discriminated against him when it appointed Janet Quesnel, a white Woman,
White woman,
11We note that Martinez was represented by
We by counsel at various points below, but he
proceeds with this appeal pro se. we review his brief and other filings
se. As such, we filings liberally.
liberally. See
Abdul-Alim Amin v. 1). Universal
Universal Life
Life Ins. of Memphis,
Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 n.1 (5th (5th Cir. Cir. 1983). 1983). Case: 14-50391 Case: Document: 00512885589 Document: Page: 2 Page: Date Filed: 12/30/2014 No. 14-50391 14-50391 to management position over him in May to a management TWC counters that itit May 2011. The TWC was more qualified and performed better promoted Quesnel because she was during the interview process than Martinez. A magistrate judge issued a Martinez. A Report and Recommendation (“R&R”) recommending that the district district court grant summary TWC because Martinez failed to summary judgment in favor of the TWC to show TWC’s reasons for that the TWC’s for promoting Martinez were a pretext for for unlawful discrimination; the district district court agreed. we agree agreed. For the following reasons, we district court and AFFIRM with the district summary judgment. AFFIRM the grant of summary I. I. We review the district We summary judgment de novo and district court’s grant of summary apply same standard as the district apply the same district court. Day Day v. U. Wells Bank Nat’l Wells Fargo Bank Ass’n,768 F.3d 435
, 435 (5th Cir. Cir. 2014). 2014). The district district court is is entitled to to grant summary judgment only “if the movant shows that there is summary is no genuine dispute as to to any any material fact and the movant is to judgment as a matter of is entitled to law.” law. Fed. R. Civ. 77 Civ. P. P. 56(a). summary judgment stage, 56(a). At the summary we “review the stage, we facts facts in the light most favorable to to the non-movant.” Price v. v. Fed. Fed. Express Corp., 283 288 F.3d F.8d 715, 719 (5th Cir. Cir. 2002). 2002). As Martinez presents a Title VII claim based on circumstantial evidence, we review the case in accordance with the traditional burden-shifting we framework for for such claims. claims. See Meinecke v. H&R Block of v. H&R of Houston,66 F.3d 77
, 77, 83 (5th Cir. Cir. 1995) (citing McDonnell Douglas Corp. 1995) (citing Corp. v. v. Green, Green,411 U.S. 792
, 802 (1973)). (1973)). The plaintiff must first first present a prima facie case of discrimination, and if if the plaintiff plaintiff does so, so, the defendant must respond by by offering a legitimate, legitimate, non-discriminatory reason behind its its decision.Id. Id. If
If the defendant satisfies satisfies its its burden, burden, the burden shifts shifts back to to the plaintiff to to demonstrate that the defendant’s proffered reason is is a pretext for for discrimination.Id. Id. 2
Case: 14-50391 Case: Document: 00512885589 Document: Page: 3 Page: Date Filed: 12/30/2014 No. 14-50391 14-50391 II. II. made out a prima facie The parties do not dispute that Martinez made facie case of national origin discrimination based on a failure to to promote theory. See Haynes v. Haynes U. Pennzoil Co., Co.,207 F.3d 296
, 300 (5th Cir. Cir. 2000) (identifying the prima facie facie elements of a failure to to promote claim). TWC then proffered a non- claim). The TWC discriminatory reason for for failing failing to to promote Martinez—Quesnel was more qualified than Martinez. Martinez. Specifically, TWC pointed to Specifically, the TWC to Quesnel’s extensive TWC and in state government—she had over thirty experience within the TWC years of state government experience, experience, she had worked for TWC for the TWC continuously for for over seventeen years, was already employed years, and she was employed in a managerial capacity at the time of her promotion. Additionally, Quesnel out- scored Martinez during the interview process. We must decide whether We Martinez produced sufficient evidence to TWC’s reasons were to suggest that TWC’s pretext for for discrimination. discrimination. Martinez argues that he has shown pretext because “the evidence in the was substantially more qualified for record establishes that he was for the position of May 2011 than [Quesnel].” Manager in May Manager We have held that a plaintiff [Quesnel].” We may plaintiff may establish pretext by was “clearly better qualified” such by demonstrating that he was that “the qualifications are so widely disparate that no reasonable employer made the same would have made same decision.” Moss Moss v. BMC 12. BMC Software, Software, Inc., Inc., 610 F.3d F.8d 917, 923 (5th Cir. marks omitted). Cir. 2010) (internal quotation marks omitted). Martinez does not cite cite the record on appeal, nor does he identify such qualifications in his brief. brief. we turn to For guidance, we R&R, in which the magistrate judge noted to the R&R, that Martinez claimed he had four superior qualifications: (1) (1) he had more supervisory experience; (2) (2) he had higher-level experience; (3) (3) he had spent more years as an investigator; and (4) (4) he had more education. We agree with education. We was the magistrate judge that these factors do not suggest that Martinez was clearly more qualified than Quesnel. Quesnel. Even accepting that Martinez had more 33 Case: 14-50391 Case: Document: 00512885589 Document: Page: 4 Page: Date Filed: 12/30/2014 No. 14-50391 14-50391 supervisory experience and higher-level higher—level experience generally, generally, an employer may discount both years of service and general experience in favor of specific may specific qualifications. 923-24. As the magistrate judge noted,Moss, 610 F.3d at 923
–24. qualifications. Mass, noted, came from 1990 Martinez’s supervisory experience came 1990 through 1997, 1997, whereas Quesnel was currently working in a supervisory role TWC when role at the TWC when she was promoted. Indeed, it it is TWC valued Quesnel’s is clear from the record that the TWC TWC, which included regular promotions strong record of service within the TWC, from investigatory to supervisory roles. roles. See Nichols v. v. Lewis Grocer,138 F.3d 563
, 567-69 (5th Cir. 563, 567–69 Cir. 1998) was not clearly more 1998) (finding that an employee was qualified than another in part because the employee selected had experience in the department of the available position). position). We also reject We reject the notion that the magistrate judge weighed the evidence in reaching his conclusion. Instead, Instead, our precedents recognize that employers are generally free to to weigh the qualifications of prospective employees, employees, so long as they are not motivated by by race. Indeed, an employee’s “better education, education, work experience, company do not establish that he experience, and longer tenure with the company is is clearly better qualified.” Price,Price, 283 F.3d at 723
. Here, Quesnel had the TWC, a strong service record at the TWC, longer tenure at the TWC, TWC, a supervisory TWC, and a stronger performance than Martinez in her position at the TWC, interview. interview. We cannot say We make him say that Martinez’s other qualifications make him clearly more qualified than Quesnel. Seeid. was id.
(concluding that the employer was entitled to to summary when it summary judgment when it valued a candidate’s military experience and other skills skills over the plaintiff’s plaintiffs college degree, greater management experience, management experience, and other qualifications). qualifications). TWC improperly relied on the results Second, Martinez argues that the TWC of a “subjective” interview score to him. An employer may to select Quesnel over him. may rely rely on subjective reasons to to select select one candidate over another, another, however, “such as a subjective assessment of the candidate’s candidates performance in an interview.” 4 Case: 14-50391 Case: Document: 00512885589 Document: Page: 5 Page: Date Filed: 12/30/2014 No. 14-50391 14-50391 Alvarado v. U. Tex. Tex. Rangers, Rangers,492 F.3d 605
, 616 (5th Cir. Cir. 2007). TWC 2007). Here, the TWC them based on asked the candidates an identical set of questions and scored them the similarity of their answers to to a model answer. answer. Cf. Cf.id. id. at
617 (finding that there was no evidence as to how the interviewers to how interviewers arrived at their scores). scores). TWC has provided some evidence demonstrating how Because the TWC how it it scored the applicants in the interview process, we conclude that the subjective assessment process, we may serve as a legitimate, may legitimate, non-discriminatory reason for for its its decision, and the use of the subjective assessment does not serve as evidence of pretext. Finally, TWC “misrepresented the bases for Finally, Martinez claims that the TWC for the selection of [Quesnel], [Quesnel], rather than truthfully stating that the only basis for for promotion of [Quesnel] was . . . the subjective scoring during the interview.” [Quesnel] was . . . We see no evidence of a misrepresentation. We TWC consistently misrepresentation. Instead, the TWC stated that it it selected Quesnel based both on her qualifications, namely her qualifications, namely TWC, and her performance in the interview. record at the TWC, interview?2 III. III. In sum, sum, Martinez has failed to to show that he was clearly better qualified for TWC’s bases for for the manager position or that the TWC’s for its its decision were otherwise affected by by his national origin. origin. Accordingly, the district Accordingly, district court R&R granting summary properly adopted the magistrate’s R&R summary judgment in favor TWC. of the TWC. AFFIRMED. 2 We note that the magistrate judge also considered and rejected a number We number of additional arguments in R&R. Although Martinez has not raised those issues here, in his R&R. we here, we R&R and the record evidence and have found no error. have nonetheless reviewed the R&R error. 55
Alvarado v. Texas Rangers , 492 F.3d 605 ( 2007 )
McCoy v. City of Shreveport , 492 F.3d 551 ( 2007 )
Evans v. The City of Houston , 246 F.3d 344 ( 2001 )
Nasti v. CIBA Specialty Chemicals Corp. , 492 F.3d 589 ( 2007 )
Wheeler v. BL Development Corp. , 415 F.3d 399 ( 2005 )
Stewart v. Mississippi Transportation Commission , 586 F.3d 321 ( 2009 )
susan-septimus-plaintiff-appellee-cross-appellant-v-the-university-of , 399 F.3d 601 ( 2005 )
Robert MAYBERRY, Plaintiff-Appellant, v. VOUGHT AIRCRAFT ... , 55 F.3d 1086 ( 1995 )
Jeannene Meinecke v. H & R Block of Houston, a General ... , 66 F.3d 77 ( 1995 )
36-fair-emplpraccas-330-35-empl-prac-dec-p-34756-equal-employment , 745 F.2d 967 ( 1984 )
77-fair-emplpraccas-bna-1555-73-empl-prac-dec-p-45349-vera-ann , 138 F.3d 563 ( 1998 )
75-fair-emplpraccas-bna-483-71-empl-prac-dec-p-44797-tommy-l , 110 F.3d 1180 ( 1997 )
prodliabrep-cch-p-14081-wilma-little-v-liquid-air-corporation , 37 F.3d 1069 ( 1994 )
Debra Jean SHEPHERD, Plaintiff-Appellant, v. the ... , 168 F.3d 871 ( 1999 )
Constance Chaix INDEST, Plaintiff-Appellant, v. FREEMAN ... , 164 F.3d 258 ( 1999 )
Jamil Abdul-Alim Amin v. Universal Life Insurance Company ... , 706 F.2d 638 ( 1983 )
Fayette Long Jeanell Reavis v. Eastfield College , 88 F.3d 300 ( 1996 )
Patricia HORNSBY, Plaintiff-Appellant, v. CONOCO, INC., ... , 777 F.2d 243 ( 1985 )
Sherry A. SMITH, Plaintiff-Appellant, Kenneth H. Molberg, ... , 891 F.2d 1177 ( 1990 )