Beebe v. City of San Antonio

673 S.W.3d 691

Frederick BEEBE, Appellant

v.CITY OF SAN ANTONIO, BY AND THROUGH its agent, CPS ENERGY, Appellee

No. 04-22-00033-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: June 14, 2023

APPELLANT ATTORNEY: Alan Braun, Adam Poncio, Attorneys at Law, 5410 Fredericksburg Rd., Ste. 109, San Antonio, TX 78229-3550.

APPELLEE ATTORNEY: Michael J. Ritter, Schmoyer Reinhard LLP, 8000 IH 10 West, Ste. 1600, San Antonio, TX 78230-3871, Christine Elaine Reinhard, Schmoyer Reinhard LLP, 17806 IH 10 West, Ste. 400, San Antonio, TX 78257.

Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Beth Watkins, Justice

Opinion by: Patricia O. Alvarez, Justice

This appeal deals with a plea to the jurisdiction. Frederick Beebe sued his former employer, CPS Energy, alleging discrimination based on race and disability, retaliation for reporting discriminatory treatment, and harassment based on national origin and disability. The trial court granted CPS Energy's plea to the jurisdiction. Beebe contends that the trial court erred in granting the plea to the jurisdiction because (1) Beebe presented sufficient evidence on his discrimination and retaliation claims to satisfy a prima facie case, (2) a fact issue existed as to the elements that CPS Energy contested, and (3) his claims are not barred as a matter of law.

BACKGROUND

CPS Energy is a municipally owned electric and natural gas utility serving Bexar County. CPS Energy hired Beebe in 1998. Beebe held various positions before being promoted to the executive level in Customer Engagement as an Executive Account Manager (EAM) in March 2017.

In June 2018, Karma Nilsson, a longtime colleague and former supervisor of Beebe, was promoted to EAM Director. This promotion placed Nilsson in a supervisory position over Beebe. After learning of Nilsson's promotion, Beebe expressed his concern to Nilsson's supervisors, Felecia Etheridge, the Chief Customer Engagement Officer, Lisa Lewis, the Vice-President of People and Culture Department, and Maria Garcia, the Vice President of Community and Key Accounts Engagement. Beebe's concern was that when Nilsson held a supervisory position over him seventeen years earlier, Beebe had filed an internal complaint against Nilsson for potential racial discrimination. He believed this previous conflict would continue to be a problem. According to Beebe, all three supervisors stated they appreciated his concerns and would "keep an eye" on the situation. No change was made; Nilsson was promoted, and Beebe remained an EAM under her supervision.

In September of 2018, Lewis decided to attend Beebe's mid-year performance review with Nilsson, in part due to Beebe's concern that he was being unfairly discriminated against. During that meeting, Nilsson advised Beebe of her concern with his communication and project management skills. Beebe stated he believed he was being treated unfairly either due to his race or because of the racial discrimination complaint he made against Nilsson in 2001.

After this meeting, Lewis followed CPS Energy's practice for harassment complaints at the executive level; she retained a third-party investigator, Sarah Sarahan of DeDe Church & Associates, to investigate Beebe's complaint.

Sarahan conducted her investigation by interviewing Beebe and other employees about Beebe's allegation that Nilsson was treating him differently either due to his race or because of his previous complaint against her. Most of the employees interviewed did not report harsh treatment of Beebe. One colleague, Ricardo Renteria, observed that Nilsson "roast[ed] Mr. Beebe quite a bit on his writing in front of everyone," but that he believed that this was due to Beebe's writing ability and not due to racial discrimination. Renteria reported being "in the same boat" as Beebe regarding his writing ability, but that he asked others to edit his work before submitting it to Nilsson to avoid the type of criticism that Beebe complained of. Sarahan concluded that Nilsson did not treat Beebe more harshly than his peers but rather showed frustration at Beebe's well-documented performance issues.

In October 2018, Ramon Gonzalez, an employee in the EAM Department, reported to Kruse, his supervisor, that Beebe "had said inappropriate things to a female." Kruse forwarded the complaint to Nilsson, who in turn relayed it to Etheridge, and in turn notified Lewis. Lewis informed the Legal Department and, following CPS Energy's practice, that department retained Kelli Cubeta as a third-party investigator.

Cubeta interviewed several employees regarding sexual harassment allegations against Beebe. One employee told her that Beebe, while standing in front of a female employee's desk, began talking about French kissing. Another employee told Cubeta that Beebe boasted about his connections at CPS Energy, asked for her phone number, and contacted her several times until she stopped answering the phone. All three employees reported to Cubeta that Beebe had a tendency to brag to women about his position at CPS Energy and his close connection to its CEO. Cubeta's report concluded that Beebe's behavior was chronic and inappropriate. Based on Cubeta's report, Lewis and Etheridge terminated Beebe's employment.

In September 2019, Beebe sued CPS Energy for employment discrimination. He included his allegations of racial discrimination and retaliation. He also included a claim that he had been discriminated against and harassed due to his disability, which he identified as dyslexia. CPS Energy filed a plea to the jurisdiction, arguing that Beebe could not prove his prima facie case. CPS Energy argued that Beebe's termination was legitimate, not pretextual. After a period of discovery and a hearing, the trial court granted CPS Energy's plea to the jurisdiction. It also struck one of Beebe's exhibits as inadmissible hearsay. Beebe now appeals the trial court's ruling, arguing that he has raised a question of fact as to the pretextual nature of his firing. Specifically, Beebe contests the trial court's ruling regarding his retaliation claim and his race and disability discrimination claims as well as the trial court's exclusion of his exhibit.

PLEA TO THE JURISDICTION—STANDARD OF REVIEW

A trial court's ruling on a plea to the jurisdiction is reviewed de novo. City of Richland Hills v. Childress , No. 02-20-00334-CV, 2021 WL 4205013, at *3 (Tex. App.—Fort Worth Sept. 16, 2021, pet. denied) (citing Suarez v. City of Tex. City , 465 S.W.3d 623, 632 (Tex. 2015) ). Where, as here, the plea to the jurisdiction challenges the existence of jurisdictional facts, we review the parties’ relevant evidence to determine whether it raises a jurisdictional fact question that would allow the case to move forward. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 227 (Tex. 2004) ). Like in our review of summary judgments, "we take as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor." Id. (citing City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009) ). And where the trial court has discretion to not consider any post-judgment motion for reconsideration and the record does not reflect that it did consider any post-judgment motion, we limit our review to the "arguments and evidence presented prior to the summary-judgment hearing." PNP Petroleum I, LP v. Taylor , 438 S.W.3d 723, 730 (Tex. App.—San Antonio 2014, pet. denied).

PRELIMINARY MATTERS

CPS Energy is a utility company with governmental immunity. City of San Antonio v. Smith , 562 S.W.3d 75, 80 (Tex. App.—San Antonio 2018, pet. denied) (quoting Wheelabrator Air Pollution Control, Inc. v. City of San Antonio , 489 S.W.3d 448, 450 n.1 (Tex. 2016) ). CPS Energy acknowledges that Beebe may sue it for his employment discrimination and retaliation claims if he can establish the merits of his claim at the outset. See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 638 (Tex. 2012). To that end, the parties agree that the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies. See Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 784 (Tex. 2018). The McDonnell Douglas framework begins with the plaintiff's burden to establish his prima facie case. See Remaley v. TA Operating LLC , 561 S.W.3d 675, 679 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Therefore, we begin with Beebe's burden to establish a prima facie case for his allegations of retaliation and race and disability discrimination. See id. ; Garcia , 372 S.W.3d at 634.

STEP 1: PLAINTIFF'S BURDEN TO ESTABLISH A PRIMA FACIE CASE

A. Parties’ Arguments

Beebe argues that he established his prima facie case for discrimination and retaliation by (1) citing unfair treatment at work, (2) establishing his race and disability, (3) demonstrating that he complained of the unfair treatment to his human resources department, and (4) that he was fired shortly after he complained in 2018. CPS Energy argues that Beebe's discrimination complaints are unsubstantiated and that he was not fired in retaliation for his complaint.

B. Law

1. Discrimination Claim

For a discrimination claim, a plaintiff must establish that he is "(1) a member of a protected class, (2) qualified for his position, (3) subject to an adverse employment action, and (4) treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class." Harris Cnty. Hosp. Dist. v. Parker , 484 S.W.3d 182, 196 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Okoye v. Univ. of Tex. Hous. Health Sci. Ctr. , 245 F.3d 507, 512–13 (5th Cir. 2001) ). The similarly situated employees must be "comparable in all material respects." Donaldson v. Tex. Dep't of Aging & Disability Servs. , 495 S.W.3d 421, 435 (Tex....