City of Houston v. Carter

1

CITY OF HOUSTON, Appellant v. EVERNECCA CARTER, Appellee

No. 01-22-00453-CV

Court of Appeals of Texas, First District

May 25, 2023

On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2021-02734

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

MEMORANDUM OPINION

Gordon Goodman Justice

In this interlocutory appeal, the City of Houston argues the trial court should have granted its plea to the jurisdiction. The City argues that Evernecca Carter, an employee who sued the City for sexual harassment and retaliation, failed to establish a waiver of the City's governmental immunity. Because we ultimately agree with the City, we reverse the trial court's order denying the plea and dismiss Carter's claims for lack of jurisdiction.

BACKGROUND

Carter started working for the City's Solid Waste Management Department in June of 2018. The City hired her as a senior sideloader operator, which entails driving a sideloading garbage truck, though she first had to undergo training by working on a rearloader truck.

By August, Shawn Johnson, Carter's supervisor, started sending Carter inappropriate text messages. The text messages included comments such as:

• "You are so sexxy [sic]";

• "I love hearing your voice over the radio, say something; anything";

• "You are simply beautiful, gorgeous and so sexxy [sic]; [I] can't help but compliment you. I love looking at you";

• "I almost want to use profanity, [I] really think that you are so beautiful";

• "I want your eyes on me and a whole lot more[,] sexxy [sic]";

• "I want you . . . [i]n every way possible";

• "I don't want to have sex with you, [I] want to make love and be in a relationship with you"; and

• "I want you so bad."

Johnson continued to send these text messages for months. In December, Johnson called Carter into his office while everyone else was in a meeting, and he grabbed her and tried to kiss her. Carter told him to stop and immediately left the office.

Carter filed a charge alleging sex discrimination with the Equal Employment Opportunity Commission (EEOC) in January of 2019. In February, she reported Johnson's conduct to the City's Office of Inspector General (OIG), a division of the City Attorney's office responsible for investigating employee misconduct. The City issued Johnson an order stating he was not to contact Carter, and he complied. The OIG investigated Carter's complaint against Johnson and ultimately sustained it.

Immediately after Carter reported Johnson's conduct to the OIG, she was transferred to a different facility that Johnson did not supervise, the Judiway facility, but she continued working as a sideloader operator. A City human resources representative explained that Carter was transferred because of the City's policy to separate employees who are the subject of an investigation.

Carter claims that as soon as she began working at the Judiway facility, her new supervisor, Michael Fair, told her coworkers in a meeting that Carter had a pending sexual-harassment complaint so they should not talk to her. She claims her coworkers then badgered her, gossiped about her, and ostracized her. She had to work mandatory overtime up to 70 or 80 hours a week, for six or seven days a week sometimes in 16- to 20-hour shifts. When she complained about the mandatory overtime, her supervisor told her, "Mandatory is mandatory," and, "You either are going to do the job or you are going to quit." Carter also asserts that, because of the long hours, she developed knee problems, and even after submitting a note from her doctor, her supervisors refused to submit a workers' compensation claim for her. Additionally, Johnson refused to submit her payroll after she transferred, though Carter reached out to another supervisor and the issue was resolved.

After Carter received her right-to-sue notice from the EEOC, she filed this lawsuit against the City, alleging sexual harassment, retaliation, and workers' compensation retaliation. The City filed a combined plea to the jurisdiction and motion for summary judgment, claiming governmental immunity. The trial court granted the City's combined plea and motion as to the workers' compensation retaliation claim^[1] but denied it as to the sexual harassment and retaliation claims. The City now appeals.

DISCUSSION

The City argues that Carter did not exhaust her administrative remedies as to her retaliation claim, which is a jurisdictional bar to suit, and that she did not raise a fact issue as to her retaliation claim or make a prima facie case of sexual harassment, which are also jurisdictional bars.

Governmental Immunity

The City is a governmental entity and therefore has immunity from suit unless the legislature waives that immunity. See City of Houston v. Williams, 353 S.W.3d 128, 134 &amp n.5 (Tex. 2011). A governmental entity may assert its immunity through a plea to the jurisdiction because immunity from suit implicates a trial court's jurisdiction. Id. at 133.

The Texas Commission on Human Rights Act (TCHRA), Chapter 21 of the Texas Labor Code, waives immunity from suit for a governmental employer that violates the TCHRA's anti-discrimination statutes. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex. 2018); see Tex. Lab. Code §§ 21.001-.556. The TCHRA prohibits an employer from discriminating on the basis of race, color, disability, religion, sex, national origin, or age and prohibits retaliation against an employee for opposing or reporting a discriminatory practice. Tex. Lab. Code §§ 21.051, 21.055. The TCHRA, however, only waives governmental immunity for suits in which a plaintiff alleges sufficient facts to establish a prima facie violation of the Act. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012). Thus, whether a plaintiff has established a prima facie case of discrimination against a governmental employer under the TCHRA is a jurisdictional issue. See id.; Clark, 544 S.W.3d at 770.

Standard of Review

We review a trial court's ruling on a plea to the jurisdiction de novo.^[2] Tex. Dep 't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Clark, 544 S.W.3d at 770. When the plea challenges the pleadings, we determine whether the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction. Id. When the plea challenges the existence of jurisdictional facts with supporting evidence, the plaintiff must raise "at least a genuine issue of material fact" to avoid dismissal of her claim. Id. at 770-71. In determining whether the plaintiff has raised a material fact issue, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id. at 771. The standard of review for a plea challenging jurisdictional facts mirrors that of a traditional summary judgment. Id.

We have appellate jurisdiction to review an interlocutory order denying a governmental entity's plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); see, e.g., City of Houston v. Guthrie, 332 S.W.3d 578, 586 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).

New Arguments

Carter argues that the City has raised several new issues for the first time on appeal, including:

• Carter failed to exhaust her administrative remedies because certain events occurred after she filed the EEOC charge;

• Carter did not establish constructive discharge;

• Carter failed to establish a causal link between her discrimination complaint and a material adverse employment action; and

• the City was not liable based on the Faragher/Ellerth defense.

Ordinarily a party may not raise new issues for the first time on appeal, but there is an exception for issues demonstrating the trial court lacked subject-matter jurisdiction. See City of Webster v. Hunnicutt, 650 S.W.3d 792, 798 n.6 (Tex. App.- Houston [14th Dist.] 2022, pet. filed); see also Tex. Ass 'n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440, 445 (Tex. 1993) ("Subject matter jurisdiction is an issue that may be raised for the first time on appeal[.]"). Because the City is a governmental entity, whether Carter has established a prima facie case against it implicates the trial court's jurisdiction. See Clark, 544 S.W.3d at 770; Garcia, 372 S.W.3d at 635-36; see also San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015) (explaining appellate court was obligated to consider new jurisdictional arguments on appeal when governmental entity challenged plaintiff's prima facie case under TCHRA). Further, while we generally may not consider issues that were not raised in the trial court, the parties may make new arguments in support of issues that were raised below. Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 704 (Tex. 2021) (per curiam). The record shows the City raised in its plea to the jurisdiction the issues of Carter's exhaustion of remedies, whether she established a prima facie case of retaliation or rebutted the City's proffered reason for her transfer, and whether she established a prima facie case of sexual harassment, and these are the issues the City raises on appeal. Further, other than the constructive-discharge question, which the parties substantively argued in the trial court, we either resolve in Carter's favor or do not reach the remaining new arguments.

Exhaustion of Administrative Remedies

In its first issue, the City argues Carter failed to exhaust her administrative remedies for her retaliation claim because the charge she filed with the EEOC did not mention the City's alleged retaliation against her.

1. Applicable Law

To file a...