Southwest Convenience Stores, L.L.C. v. Norma Mora

ACCEPTED
08-15-00099-CV
08-15-00099-CV EIGHTH COURT OF APPEALS
EL PASO, TEXAS
11/13/2015 4:27:13 PM
DENISE PACHECO
CLERK
NO. 08-15-00099-CV
FILED IN
____________________________________________________________
8th COURT OF APPEALS
EL PASO, TEXAS
IN THE EIGHTH COURT OF APPEALS11/13/2015 4:27:13 PM
EL PASO, TEXAS DENISE PACHECO
Clerk
____________________________________________________________
SOUTHWEST CONVENIENCE STORES, LLC.
Appellant
v.
NORA MORA
Appellee
____________________________________________________________
On Appeal from the County Court at Law No. Six
of El Paso County, Texas
____________________________________________________________
APPELLEE’S BRIEF IN RESPONSE TO BRIEF OF APPELLANT
____________________________________________________________
Enrique Chavez, Jr.
State Bar No. 24001873
Miguel Hernandez
State Bar No. 24090161
CHAVEZ LAW FIRM
2101 N. Stanton Street
El Paso, Texas 79902
APPELLEE REQUESTS ORAL ARGUMENT
1
TABLE OF CONTENTS
PAGE
Table of Contents…………………………………………………………….. 2
Index of Authorities………………………………………………………….. 4
Statement of Oral Argument……………………………………………….. 7
Summary of the Argument…………………………………………………. 7
Argument………………………………………………………………………. 9
Standard of Review…………………………………………………. 9
The trial court has jurisdiction over Appellee Mora's hostile
work environment sex discrimination claim (1) precisely
because sexual harassment is a type of sex discrimination, (2)
Appellee Mora’s Charge of Discrimination expressly states she
was discriminated against on the basis of “sex,” and (3) had
the EEOC actually conducted an investigation, her claims of
sexual harassment at the hands of her immediate supervisor
could reasonably have been expected to grow out of the
EEOC’s investigation of her Charge wherein she makes a sex-
based claim and of being “harassed”.…………………………. 10
Appellee Mora exhausted her administrative remedies as to her
retaliation claim — in the form of her supervisor terminating
her employment two months after having filed her Charge of
Discrimination — as the retaliatory conduct grew out of the
earlier-filed Charge………………………………………………… 18
Prayer…………………………………………………………………………. 22
Certification………………………………………………………………..… 23
Certificate of Compliance…………………………………………………. 24
Certificate of Service………………………………………………………. 25
2
Appendix
TAB 1 Plaintiff’s Charge of Discrimination
TAB 2 Plaintiff’s Original Petition
TAB 3 Plaintiff’s First Amended Petition
3
INDEX OF AUTHORITIES
CASES PAGE
ATI Enters., Inc. v. Din, 413 S.W.3d 247(Tex.App.-Dallas 2013, no pet.)……………………………………… 19
Bartosh v. Sam Houston State Univ., 259 S.W.3d 317(Tex. App.—Texarkana 2008, pet. denied)…………………….. 11, 12
Cooper v. Wal-Mart Transp., LLC, 662 F. Supp. 2d 757(S.D. Tex. 2009)…………………………………………………… 19, 20
County of Travis ex rel. Hamilton v. Manion,
No. 03-11-00533-CV, 2012 WL 1839399(Tex. App.-Austin May 17, 2012, no pet.) (mem. op.)…….…… 11, 15
Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133(Tex.App.-Fort Worth 2000, pet. denied)……………………….. 12, 19
Fellows v. Universal Restaurants, Inc., 701 F.2d 447 (5th Cir. 1983)….. 15
Fine v. GAF Chemical Corp., 995 F.2d 576 (5th Cir. 1993)……… 12, 15, 16
Garcia v. Kubosh, 377 S.W.3d 89(Tex.App.-Houston [1st Dist.] 2012, no pet.)…………………………. 9
Gupta v. East Texas State Univ.,
654 F.2d 411 (5th Cir. 1981)…………………………….. 16, 18, 19, 20
Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004)…. 11
Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009)……………….. 21
Lopez v. Tex. State Univ., 368 S.W.3d 695(Tex. App.-Austin 2012, pet. denied)……………………. 10, 12, 14, 17
Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003)……………………….. 21
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)…………… 21
4
Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006)…………….. 10, 11, 14, 16
Preston v. Texas Dep't of Family & Protective Servs.,
222 Fed. Appx. 353 (5th Cir. 2007)………………………………….. 12
San Antonio Water System v. Odem,
No. 04-07-00130-CV, 2007 WL 2376147(Tex.App.-San Antonio, August 22, 2007)…………………..….. 19, 20
Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011)………………………….. 20
Scott v. Univ. of Mississippi, 148 F.3d 493 (5th Cir. 1998)…………… 20, 21
Simmons-Myers v. Caesars Entm't Corp.,
515 F. App'x 269 (5th Cir. 2013)………………………………… 20, 21
Tarrant Reg'l Water Dist. v. Villanueva, 331 S.W.3d 125(Tex. App.—Fort Worth 2010, pet. denied)…………………………. 11
Tex. Dep't of Parks & Wildlife v. Miranda
133 S.W.3d 217 (Tex. 2004)…………………………………….… 9, 10
Tex. Natural Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849 (Tex. 2002)…………………………………………….. 9
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex.1993)….. 9
Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734(Tex.App.-Houston [14th Dist.] 1999, no pet.)……………………… 19
Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 209(Tex. App.-Austin 2010, no pet.)………………………………… 12, 13
Wedow v. City of Kan. City, Mo., 442 F.3d 661 (8th Cir. 2006)………….. 21
RECORD REFERENCES
The following record references will be used in Appellee’s Brief:
5
Clerk’s Record…………………………………………………………CR______
6
STATEMENT OF ORAL ARGUMENT
Appellee respectfully requests oral argument to further the proper
disposition of the instant case by this honorable court.
SUMMARY OF THE ARGUMENT
The trial court has jurisdiction over Appellee Mora's sexual
harassment, hostile work environment sex discrimination claim (1) precisely
because sexual harassment is a type of sex discrimination, (2) Appellee
Mora’s Charge of Discrimination expressly states she was discriminated
against on the basis of “sex,” and (3) had the EEOC actually conducted an
investigation, her claims of sexual harassment at the hands of her
immediate supervisor could reasonably have been expected to grow out of
the EEOC’s investigation of her Charge wherein she makes a sex-based
claim and of being “harassed.” The trial court also has jurisdiction over
Appellee Mora’s retaliation claim because current black-letter law precludes
the creation of additional procedural technicalities in the instance where
retaliatory conduct giving rise to a retaliation claim grows out of a claimant’s
earlier-filed charge of discrimination. In the case at bar, and in conformity
with current black-letter law, Appellee Mora exhausted all administrative
prerequisites to filing suit for retaliation precisely because the retaliatory
7
termination of employment she complains of grows out of her earlier filed
Charge of Discrimination.
8
ARGUMENT
Standard of Review
Whether a trial court has subject matter jurisdiction is a question of
law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004)(citing Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d
849, 855 (Tex. 2002). When a plea to the jurisdiction challenges the
pleadings, whether the pleader has alleged facts affirmatively
demonstrating a trial court's subject matter jurisdiction is a question of law
reviewed de novo. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex.1993). The pleadings are construed liberally in favor
of the pleader, looking to the pleader’s intent. Id. (see also Garcia v.
Kubosh, 377 S.W.3d 89, 95 (Tex.App.-Houston [1st Dist.] 2012, no pet.)
(emphasis added).
Evidence is not necessary to resolve a plea to the jurisdiction when
the plaintiff’s petition either affirmatively demonstrates the court’s
jurisdiction, affirmatively negates the court’s jurisdiction, or is insufficient to
determine jurisdiction but does not affirmatively demonstrate incurable
defects in the petition so that it could be amended to bring the cause within
the court’s jurisdiction. Id. at 226-27. When determining if the pleader, i.e.
Appellee Mora in the instant case, has pled sufficiently to invoke the court’s
9
jurisdiction, the court reviews such pleadings liberally in favor of the pleader
and looks to determine the pleader’s intent. Id. at 226.
The trial court has jurisdiction over Appellee Mora's hostile work
environment sex discrimination claim (1) precisely because sexual
harassment is a type of sex discrimination, (2) Appellee Mora’s
Charge of Discrimination expressly states she was discriminated
against on the basis of “sex,” and (3) had the EEOC actually
conducted an investigation, her claims of sexual harassment at the
hands of her immediate supervisor could reasonably have been
expected to grow out of the EEOC’s investigation of her Charge
wherein she makes a sex-based claim and of being “harassed.”
Because Appellant erroneously attempts to lead this court into error
by ignoring half of the established test for determining the scope of a
charge of discrimination for jurisdictional purposes, its analysis and,
therefore, conclusion that Appellee Mora did not exhaust her administrative
remedies as to her sexual harassment claim are wrong. It is well settled
that courts, in determining what claims are encompassed within the scope
of a charge, look not only to the factual statement, or narrative portion, of
the charge, but also must look outside the four corners of the charge to
include those claims which could reasonably be expected to grow out
of the Equal Employment Opportunity Commission's (“EEOC”)
investigation of the claims stated in the charge. Lopez v. Tex. State
Univ., 368 S.W.3d 695, 701 (Tex. App.-Austin 2012, pet. denied) (citing
10
Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006).1 In addition, trial
courts do well to liberally construe EEOC complaints because, as explained
in Lopez, “EEOC complaints should be liberally construed,” and in so
explaining rejected the employer’s argument that liberal construction should
apply solely to pro se plaintiffs. Id. It further explained that under Title VII
“no one should be boxed out.” Id. at 702.
Courts must construe charges liberally as most are filed by “persons
unfamiliar with the technicalities of formal pleadings.” County of Travis ex
rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 WL 1839399, at *10
(Tex. App.-Austin May 17, 2012, no pet.) (mem. op.); see also Pacheco,
448 F.3d at 788 (because provisions of Title VII not designed for the
sophisticated, and because most complaints are initiated pro se, scope of
EEOC complaints should be liberally construed). As long as a charge
contains “an adequate factual basis so that it puts the employer on notice
of the existence and nature of the charges,” it is sufficient for a court to hold
that the charging party has exhausted her administrative remedies as to
those claims. Id. (quoting Bartosh v. Sam Houston State Univ., 259 S.W.3d
1 As Chapter 21 of the Texas Labor Code (the TCHRA) is modeled after federal law, “federal
case law may be cited as authority in cases relating to the Texas Act.” Tarrant Reg'l Water Dist.
v. Villanueva, 331 S.W.3d 125, 129-30 n.3, 134 (Tex. App.—Fort Worth 2010, pet. denied) (citing
Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004)).
11
317, 321 (Tex. App.—Texarkana 2008, pet. denied) (emphasis added); see
also Preston v. Texas Dep't of Family & Protective Servs., 222 Fed. Appx.
353, 356 (5th Cir. 2007) (per curiam); Lopez, 368 S.W.3d at 701 (“The
purposes underlying the administrative-complaint requirement include
giving the charged party notice of the claim, narrowing the issues for
speedier and more effective adjudication and decision, and giving the
administrative agency and the employer an opportunity to resolve the
dispute.”). Accordingly, a plaintiff’s subsequent lawsuit “may raise only the
specific issue[s] made in the employee's administrative complaint and ‘any
kind of discrimination like or related to the charge’s allegations.’”
Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 141 (Tex.App.-Fort
Worth 2000, pet. denied) (quoting Fine v. GAF Chemical Corp., 995 F.2d
576, 578 (5th Cir. 1993) (emphasis added)).
Appellee Mora’s Charge gives Appellant notice of the nature of the
claims that existed at the time she filed her Charge on December 22, 2011,
i.e., sex discrimination in the form of hostile work environment sexual
harassment. See Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 210
(Tex. App.-Austin 2010, no pet.). Firstly, Appellant had actual notice that
Appellee Mora was discriminated against on the basis of her sex as she
12
explicitly indicated that sex served as the basis of her discrimination by
only checking the box reading “sex” on her Charge under the section in
which the claimant indicates on what grounds — e.g. religion, age, sex —
she believes she has been discriminated against. CR 164. Secondly, in the
narrative portion of Appellee Mora’s Charge, she unequivocally states that
she was harassed by her supervisor. CR 164. That factual statement reads,
in part, “On or about October 30, 2011, I told my supervisor, Danny Silva,
male, that starting February 2012 I was going to be stepping down from
manager to clerk. Immediately after I told Mr. Silva about my intentions to
step down, he began harassing and intimidating me about everything.” CR
164. As hostile work environment sexual harassment is a cognizable theory
of sex discrimination, any subsequent EEOC investigation into the
allegations raised in Appellee Mora’s Charge would have involved whether
Appellee Mora was harassed on the basis of her sex in any manner.
Twigland, 335 S.W.3d at 210 (hostile work environment a theory of gender
discrimination through sexual harassment). Indeed, the scope of a charge
includes “claims that were included in the administrative charge of
discrimination and to factually related claims that could reasonably be
13
expected to grow out of the agency's investigation of the claims
stated in the charge.” Lopez, 368 S.W.3d at 701 (emphasis added).
Appellant implies that, in the context of Appellee Mora’s full factual
statement in its entirety, any subsequent EEOC investigation into the
allegations raised in Appellee Mora’s Charge would not have reasonably
led to the discovery of her supervisor’s sexual harassment from 2009 to
2012. Appellant’s approach would erroneously limit this court to looking
only to the narrative portion of a claimant’s charge in determining what
causes of action fall within the full scope of the charge for purposes of
establishing those claims a claimant may bring in a subsequent lawsuit.
Naturally, we now see that Appellant gets to its false conclusion by ignoring
the elephant in the room; i.e. the subsequent investigation which could
reasonably grow out of the liberal construction which courts must give the
entire charge of discrimination. Lopez, 368 S.W.3d at 701; Pacheco, 448 F.
3d at 778. Courts look to not merely the factual statement of the charge in
its entirety, but rather to the full charge in its entirety as such includes the
section in which the claimant indicates the nature of her claim. The
protected category, the kind of discrimination she alleges. See Pacheco,
448 F.3d at 789 (courts look beyond the four corners of the claimant’s
14
factual statement within the charge); see also Fellows v. Universal
Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983) (Title VII causes of
actions limited only by the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of
discrimination); Fine, 995 at 578 (same).
Appellee Mora expressly alleged that she was discriminated against
on the basis of her sex as “sex” was the only box she checked as to the
basis for the discrimination she experienced. CR 164. Appellee Mora
additionally states, in her factual statement, that she was harassed by her
supervisor. CR 164. That Appellee Mora does not detail the nature of the
harassment does not preclude her from bringing a hostile work
environment sexual harassment claim as such an allegation would
“reasonably be expected to grow out of the initial charge[] of
discrimination” in which she states she was “harassed” in her Charge of
Discrimination. Fine, 995 F.2d at 578 (emphasis added); compare with
Manion, 2012 WL 1839399, at *12-14 (charge did not encompass gender
discrimination/hostile work environment sex discrimination claim as only the
retaliation box was checked on the charge and nothing in the narrative
portion of the charge served to put defendant on notice that plaintiff
15
intended to complain of discriminatory conduct based on sex). Nor does
established authority require Appellee to be more sophisticated or
sophisticated enough to plead her Charge like a lawyer would. Pacheco,
448 F.3d at 788. Let us not forget that employees who are at the point of
filing a charge are reeling from having lost their job, their livelihood,
oftentimes their health insurance, and almost always the sole means by
which they feed themselves and their children and keep a roof over their
heads at night. The legal niceties and technicalities of legal pleading are
fortunately, for all of us, not a concern the law burdens them with. Id.Indeed, were it otherwise, as Appellant misguidedly claims, the laws
reliance on private lawsuits to achieve the goals of Title VII, Gupta v. East
Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981), would be eviscerated
because of legally unsophisticated pleading by legally unsophisticated
claimants. This, intuitively, we now see that what Appellant proposes is for
this court to depart radically from established legal precedent and to
drastically alter the legal landscape for millions of employees in Texas.
Under current law, the factual statement found in Appellee Mora’s
First Amended Petition, her live pleading, is inextricably intertwined with the
narrative portion of her Charge. Fine, 995 at 578. Appellee Mora’s Charge
16
states that after she told her supervisor that she was stepping down from
her position as a manager to a clerk, he issued three written warnings to
her on false grounds in an attempt to terminate her. CR 164. The factual
statement in the Charge is illuminated by the First Amended Petition,
wherein Appellee Mora makes clear that the reason for her self-imposed
demotion from Manager to Clerk was so that she could transfer stores in
order for her to get away from the supervisor who was sexually harassing
her. CR 16-20; CR 164. As the full picture of the hostile work environment
Appellee Mora endured from 2009 to 2012 does not come to light from a
reading of her Charge, but was in fact the extent of her suffering, such
undoubtedly “could reasonably be expected to grow out of the [EEOC’s]
investigation of the claims stated in the charge” as the EEOC could have
discovered the hostile work environment sexual harassment from what
Appellee Mora wrote in the narrative portion of her charge and based on
her indication that she was discriminated against on the basis of her sex.
Lopez, 368 S.W.3d at 701. Such explains the otherwise nonsensical
statement that Appellee Mora’s supervisor began his attempts to get her
terminated as a result of her self-imposed demotion from manager to clerk
as Appellee Mora’s intent, in demoting herself, was to be able to transfer
17
stores to get away from his severe and pervasive sexual harassment of
her. Indeed, as shown supra, the law has left room for precisely this type of
growth in understanding of the facts from the charge to the filing of the suit
precisely because the law relies on private enforcement of the law by
private litigants to achieve the goals of Title VII. Gupta, 654 F.2d at 414.
Appellee Mora exhausted her administrative remedies as to her
retaliation claim — in the form of her supervisor terminating her
employment two months after having filed her Charge of
Discrimination — as the retaliatory conduct grew out of the earlier-
filed Charge.
Appellant contends that Appellee Mora failed to exhaust her
administrative remedies as to her claim of retaliation — in the form of being
discharged for having filed her Charge — because she did not file a second
charge of discrimination as to this conduct. The retaliatory conduct
occurred two months after Appellee Mora filed her Charge, in February
2012, and involves Appellee Mora’s supervisor ordering Appellee Mora to
cash money orders for a store deposit and subsequently terminating her for
having done so. CR 18-19, ¶¶ 19-22.
Contrary to Appellant’s contention, Appellee Mora was not required to
file a subsequent charge as the supervisor's conduct occurred after, and as
a result of, the filing of her one and only Charge. Such is pursuant to the
18
holding in Gupta, wherein the Fifth Circuit created an exception to the
exhaustion requirement for claims of retaliation over the filing of an EEOC
charge. 654 F.2d 411. Specifically, the Fifth Circuit held that “it is
unnecessary for a plaintiff to exhaust administrative remedies prior to
urging a retaliation claim growing out of an earlier charge; the district court
has ancillary jurisdiction to hear such a claim when it grows out of an
administrative charge that is properly before the court.” Id. at 413. The
court reasoned that “[a]dditional EEOC filings based on events after a
suit was filed ‘would serve no purpose except to create additional
procedural technicalities when a single filing would comply with the
intent of Title VII . . . especially since the EEOC relies largely upon the
private lawsuit to obtain the goals of Title VII.’” Cooper v. Wal-Mart
Transp., LLC, 662 F. Supp. 2d 757, 774 (S.D. Tex. 2009) (quoting Gupta,
654 F.2d at 414). Texas Appellate Courts have adopted the Gupta
exception and the underlying reasoning behind its creation. See ATI
Enters., Inc. v. Din, 413 S.W.3d 247, 252 (Tex.App.-Dallas 2013, no pet.);
Elgaghil, 45 S.W.3d at 141-42; Thomas v. Clayton Williams Energy, Inc., 2
S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.); San Antonio
19
Water System v. Odem, No. 04-07-00130-CV, 2007 WL 2376147(Tex.App.-San Antonio, August 22, 2007).
From the onset of her suit, Appellee Mora raised her claim of
retaliation based on her supervisor’s conduct in her Original Petition, filed in
September 2012. CR 9-14. As the supervisor’s retaliatory conduct occurred
after Appellee Mora filed her Charge in December 2011, Appellee Mora
was not required to file a second charge as to the conduct, and the district
court has ancillary jurisdiction over the retaliation claim. Gupta, 654 F.2d at
413; Cooper, 662 F. Supp. 2d at 774.
Appellant disingenuously asserts that the Gupta exception does not
apply to cases in which the plaintiff alleges both discrimination and
retaliation claims, citing to Simmons-Myers v. Caesars Entm't Corp., 515 F.
App'x 269 (5th Cir. 2013), Scott v. Univ. of Mississippi, 148 F.3d 493 (5th
Cir. 1998), and Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011) in support.
Yet nowhere in any of those cases does the Fifth Circuit hold that the Gupta
exception does not apply in cases where both discrimination and retaliation
claims are raised. Rather, the Fifth Circuit merely declines to do so as the
plaintiffs in those cases wanted the court to apply the exception to both
their retaliation and discrimination claims. Simmons-Myers, 515 F. App’x at
20
273-74; Scott, 148 F.3d at 514. The instant case is distinctly different from
Simmons-Myers, Scott, and Sapp because Appellee Mora is not asking that
the court apply the Gupta exception to her hostile work environment sex
discrimination claim, but only to her retaliation claim. Accordingly, the Gupta
exception is applicable to the instant case.
Appellant also attempts to mislead the court in arguing that the
Supreme Court has abrogated or narrowed the Gupta exception with its
holding in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Although the Tenth Circuit has held that the Gupta exception was
abrogated by Morgan in Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.
2003), several other Federal Circuit Courts have held that the exception
survived the Morgan decision. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.
3d 297, 303 (4th Cir. 2009); Wedow v. City of Kan. City, Mo., 442 F.3d 661,
672-76 (8th Cir. 2006). The Fifth Circuit has expressly declined to address
the continued viability of the Gupta exception post-Morgan. Simmons-
Myers, 515 F. App'x at 273 n. 1. Gupta therefore remains the applicable
law in the Fifth Circuit and in Texas state courts. For all the foregoing
reasons, the trial court has jurisdiction over Appellee Mora’s claim of
retaliation.
21
PRAYER
For the above reasons, Appellee Nora Mora respectfully requests that
this court affirm the trial court’s order denying Appellant’s Plea to the
Jurisdiction.
22
CERTIFICATION
I, Enrique Chavez, Jr., certify that I have reviewed the above Brief in
Response to Brief of Appellant, and conclude that every factual statement
in the Brief in Response is supported by competent evidence included in
the Records filed by Appellant and Nora Mora.
Respectfully submitted,
Enrique Chavez, Jr.
State Bar No. 24001873
Miguel Hernandez
State Bar No. 24090161
CHAVEZ LAW FIRM
2101 N. Stanton Street
El Paso, Texas 79902
Phone: (915) 351-7772
Fax: (915) 351-7773
By: ________________________________
Enrique Chavez, Jr.
Attorney for Nora Mora
23
CERTIFICATE OF COMPLIANCE
This response complies with the type-volume limitations of Tex. R.
App. 9.4(i)(2)(B) because this response contains 3,191 words, excluding
the parts of the response exempted by Tex. R. App. 9.4(i)(1).
_______________________________
Enrique Chavez, Jr.
24
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument was served in accordance with the Texas Rules of Civil
Procedure upon Mark D. Dore and Bruce A. Koehler, Mounce, Green,
Myers, Safi, Paxson & Galatzan, P.O. Box 1977, El Paso, Texas 79999 on
this 12th day of November, 2015.
_______________________________
Enrique Chavez, Jr.
25
APPENDIX
TAB 1
EEOC
"
CHARGE OF DISCRIMINATION Charge Presented To: Agency{ies) Charge No{s):
This form ls affected by the Privacy Act of 1974. See enclosed Privacy Act
Statement and other Information before compleling this form.
D FEPA
[!}EEOC 453-2012-00307
Texas Workforce Commission Civil Rights Division and EEOC
State or . if any
Name •" . M< . MnU noHOo r. Aieacoae) · Date of Birth
Ms. Norma L. Mora (915) 822-1269 07-11-1968
Street Address City, State and ZIP Code
10401 Helican PI, El Paso, TX 79924 RGO'DEEOCELPRDEC22'11 AM1i:14 COPY FOR YOUR
Named is the Employer, Labor i "": Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe
Discriminated Against Me or Others. (if more thim two, list under PARTICULARS below.)
Name No. Employees, Members Phone No. (Include Area Code)
7-ELEVEN I SOUTHWEST CONVIENENCE STORE 500 or More (915) 751-9826
Street Address City, State and ZIP Code
4950 Hercules, El Paso, TX 79904
No. Employees, Members Phone No. (Include Area Code)
I)""
Street Address City, State and ZIP Code
DISCRIMINATION BASED ON (Check appropriate box(es).) DATE(S) I olu" TOOK PLACE
Earliest Latest
D RACE D COLOR [!]SEX D RELIGION D NATIONAL ORIGIN 12-03-2011 Continuing
D RETALIATION D AGE D DISABILITY. D GENETIC INFORMATION
D OTHER (Specify) 0 CONTINUING ACTION
THE PARTICULARS ARE {If additional paper is needed, attach extra sheet(s)):
I. On or about October 30, 2011, I told my supervisor, Danny Silva, male, that starting February
2012 I was going to be stepping down from manager to clerk. Immediately after I told Mr. Silva
about my intentions to step down, he began harassing and intimidating me about everything.
)'
From about December 03, 2011 to now, Mr. Silva has given me three written warnings without a
legitimate reason. Mr. Silva's intentions are to get me discharged because of my sex, female.
II. No legitimate reasons are given.
Ill. I believe I have been discriminated against because of my sex, female, in violation of Title VII of
'I the Civil Rights Act of 1964, as amended.
I
I want this charge flied with both the EEOC and the State or local Agency, if any. I •v•Mn ·When 'fn'.
will advise the agencies if I change my address or phone number and I will
'"' "'
cooperate fully with them in the processing of my charge in accordance with their
procedures. .
I swear or affirm !hall have read the above charge and that it is true to
I declare under ""''""Y uo' perjury that the above is true and correct. the best ol my knowledge, Information and belief.
TURE OF COMPLAINANT
'/.D.
Mo{V? (tt v " /
.01
Dec 22,2011 ; BEFORE ME THIS
Date Charging Parly Signature
.
y /{
I, 164 •
EXIDBITA
I
APPENDIX
TAB 2
IN THE JUDICIAL DISTRICT COURT
IN THE COUNTY COURT AT LAW NUMBER J.Q_
EL PASO COUNTY, TEXAS
NORMA MORA §
Plaintiff, §
v. §
§
SOUTHWEST CONVENIENCE §
STORES, L.L.C., SOUTHWEST §
CONVENIENCE STORES, INC., and §
SOUTHWEST CONVENIENCE STORES §
EL PASO, LLC. §
Defendant. § JURY TRIAL DEMANDED
PLAINTIFF'S Ol,UGINAL PETITION
TO THE HONORABLE COURT:
Plaintiff NORMA MORA ("Employee Mora") now files this Petition complaining
of Southwest Convenience Stores, LLC., Southwest Convenience Stores, Inc., and
Southwest Convenience Stores El Paso, LLC. ("Employer Southwest Convenience
Stores") and respectfully shows as follows:
I. Discovery
1. Discovery is intended to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil
Procedure.
II. Parties
2. Norma Mora, is an individual residing in H Paso County, Texas.
3. Defendant Southwest Convenience L.L.C., may be served with process by serving
their registered agent Sarah Campbell at 7616 LBJ Freeway, Ste. 300, Dallas, Texas 75251,
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or wherever she may be Defendant is an employer within the meaning of the Texas
Commission on Human Rights Act.
4. Defendant Southwest Convenience Stores, liNC., may be served with process by serving their
registered agent Glenn E. Galloway at 610 W. Lucas, Beaumont, Texas 77706, or wherever
he may be found. Defendant is an employet within the meaning of the Texas Commission on
Human Rights Act.
5. Defendant Southwest Convenience Stores El Paso LLC., may be served with process by
serving their registered agent Corporation Service Company D/B/A CSC Lawyers Inc. at 701
Brazos Suite 1050, Austin, Texas 78701 OJ!' wherever they may be found. Defendant is an
employer within the meaning of the Texas Commission on Human Rights Act.
III. Venue
6. Pursuant to Texas Civil Practice and Remedies Code Section 15.002, venue is proper in El
Paso County, Texas because all or a substa.I)tial part of the events or omissions giving rise to
Norma Mora's claims occurred in El Paso, Texas.
IV. Facts1 of the Case
7. Employers MUST prevent sex by supervisors in the workplace to protect the
financial safety and emotional safety of all $mployees from harm.
8. Employers MUST prevent retaliation agai$1st employees who report sexual harassment by
supervisors at work in order to protect the financial safety and emotional safety of all
employees from harm.
9. Employers MUST never retaliate against employees who report complaints of sexual
discrimination.
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10. Employer Southwest Convenience Stores hired Employee Mora on or about February 2,
2002.
11. In 2007 Employer Southwest Convenience Stores promoted Employee Mora to a managerial
position.
12. In late 2009, Employee Mora's supervisor Daniel Silva began making sexual advances
towards Employee Mora.
13. Supervisor Silva frequently insulted Employee Mora for not yielding to his sexual advances
and told Employee Mora that she was useles$ and that she was not pretty anymore whenever
she would refuse his overtures.
14. Employer Southwest Convenience Stores was on notice of Supervisor Silva's conduct
because Employee Mora made numerous c