Alamo Heights ISD v. Catherine Clark

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 [1st 7 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., 199 199 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., 164 164 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, 411 411 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. 381 381 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 168 168 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, 891 891 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, 110 110 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, 133 133 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, 133 133 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, 121 121 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, 177 177 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, 411 411 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, 133 133 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, 411 411 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 24 168 168 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, 411 411 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, 177 177 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, 381 381 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 Area 133 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 trial Id. (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, 411 411 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, 411 411 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. Comm 586 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. See id. 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, 121 121 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, 133 133 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;‘field 88 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., 110 110 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, 177 177 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”). 46 id. 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 AHISD Id. 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. Plaintiffs 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, 411 411 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, 133 133 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 liable 524 U.S. 775, 789 (1998). Accordingly, AHISD liable if if it it was negligent in in controlling working conditions. See id. 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., 164 164 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. See id. 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, 168 168 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. See id. 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. See id., 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, in Id. 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. will Id. 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’s Id. 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 EEOC Id. 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). See id., 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 plaintiff Id. 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 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 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 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 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 11of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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: 22of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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 33of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 4of53 4 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 55of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 66of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 77of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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 88of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 99of53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 10 of 53 10 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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 110f53 11 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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 12 of 53 12 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 13 of 53 13 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 14 of 53 14 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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; 15 of 53 15 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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. 16 of 53 16 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 17 of 53 17 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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, 18 of 53 18 1/1/15, 1/1/15. 12:01 PM 12:01 PM LABORCODECHAPTERZLEMPLOYMENTDSCRMHNW LABOR CODE CHAPTER 21. EMPLOYMENT DISCRIMIN... 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 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 190f53 19 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 20 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 21 of 53 21 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 22 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 23 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 24 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 25 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 26 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 27 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 28 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 29 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 30 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 310f53 31 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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 32 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 33 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM LABORCODECHAPTERZLEMPLOYMENTDSCRMHNW LABOR CODE CHAPTER 21. EMPLOYMENT DISCRIMIN... 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 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, 340f53 34 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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: 35 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 (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. 36 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 37 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 38 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 39 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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, 40 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 41 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 42 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 43 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 44 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 45 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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: 46 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 (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, 47 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 48 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 49 of 53 1/1/15, PM 12:01 PM 1/1/15, 12:01 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 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 50 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 51 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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 52 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM 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 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. 53 of 53 1/1/15, 1/1/15, 12:01 PM 12:01 PM ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 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 12/16/2003 1of2 1of2 UPDATE 72 UPDATE DFCA(LEGAL)~P DFCA(LEGAL)-P 163 163 [SD Alamo Heights !SD 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: DATE ISSUED: 12/16/2003 2 of 2 2 UPDATE 72 UPDATE72 DFCA(LEGAL)~P DFCA(LEGAL)-P 164 Alamo Alamo Heights ISD 015901 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: DATE ISSUED: 9/6/2007 2 at 4 2of4 UPDATE 81 UPDATE81 DGBA(LEGAL)—P DGBA(LEGAL)-P 166 Alamo tSD Alamo Heights ISO 015901 Oi 5901 PERSONNELMANAGEMENT RELATIONS PERSONNEL-MANAGEMENT RELATIONS DGBA 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: DATE iSSUED: 9/6/2007 3 ot4 of 4 UPDATE 81 UPDATE DGBA(LEGAL)-P DGBA(LEGAL)-P 167 Alamo Alamo Heights ISD 015901 015901 PERSONNEL-MANAGEMENT RELATIONS 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 4 of 4 UPDATE 81 UPDATE DGBA(LEGAL)-P DGBA{LEGAL)-P 168 Alamo Heights ISO Alamo ISD 4015901 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 1of6 UPDATE 83 UPDATE83 DGBA(LOCAL)—A DGBA(LOCAL)-A 169 169 Alamo ISD Alamo Heights lSD 015901 PERSONNEL-MANAGEMENT RELATIONS 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 UPDATE 33 UPDATE83 DGBA(LOCAL)—A DGBA{LOCAL)-A 170 Alamo Heights ISO ISD 015901 Oi590i PERSONNEL-MANAGEMENT RELATIONS 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 UPDATE as UPDATE83 _ DGBA(LOCAL)-A DGBA(LOCAL)-A 171 Alamo ISD Alamo Heights ISO 015901 Oi5S01 PERSONNEL~MANAGEMENT RELATIONS 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 UPDATE 83 UPDATE83 DGBA(LOCAL)-A DGBA(LOCAL)-A 172 172 ISD Alamo Heights ISO 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 UPDATE 83 UPDATE83 DGBA{LOCAL)-A DGBA(LOCAL)-A 173 lSD Heights ISO 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: ADOPTED: 6 6 of 6 6of UPDATE 83 UPDATE83 DGBA(LOCAL)-A DGBA(LOCAL)-A 174 174 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 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. See id. 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

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