City of Pasadena v. Poulos

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CITY OF PASADENA, Appellant v. JANET POULOS, Appellee

No. 01-22-00676-CV

Court of Appeals of Texas, First District

October 31, 2023

On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2022-09772

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

MEMORANDUM OPINION

April L. Farris, Justice

Janet Poulos sued her employer, the City of Pasadena, and asserted claims under the Texas Commission on Human Rights Act ("TCHRA") for hostile work environment based on race, retaliation, and racial discrimination. The City moved to dismiss Poulos's claims under Rule of Civil Procedure 91a, arguing that the claims lacked a basis in law because the City's governmental immunity had not been waived. The trial court denied the City's motion to dismiss.

In two issues, the City argues that the trial court erred by denying its Rule 91a motion to dismiss because (1) Poulos did not timely file suit under the TCHRA, and (2) the only timely claims that Poulos asserted in her charge of discrimination are not actionable under the TCHRA. We affirm in part and reverse and render judgment in part.

Background

Janet Poulos is Mexican American and has been employed by the City of Pasadena as a Customer Service Assistant in a call center since 2002. Beginning in 2015, she allegedly "observed bias and favorable treatment of white employees when she got assigned a new supervisor" and "this discrimination has continued throughout her employment." Poulos alleged that her supervisor allowed the two white employees in the department "more leniency and privileges" than the three Mexican American employees. Poulos was allegedly subjected to "closer scrutiny than the treatment received by her white co-workers," such as being asked by her supervisor whether she was "logged in" to the call system, while one of her white co-workers was not logged in and was not questioned in this manner. Poulos's supervisor also allegedly yelled at her about time keeping and documentation.

In October 2019, Poulos made a complaint to Human Resources about her supervisor's harassment "and the unequal treatment she was experiencing." However, no action was taken, and "her director . . . dismiss[ed] her concerns and threaten[ed] to issue her a formal write up for voicing the inequality she was facing." Poulos alleged that one of her white co-workers was not disciplined for "fail[ing] to log into the system and assist with the incoming calls" or for sleeping in the office during work hours. Instead, this co-worker was promoted to a supervisory position.

Poulos also alleged that her supervisors subjected her to more stringent requirements concerning leaving work for medical appointments and taking restroom breaks during work hours. For example, in March 2021, the assistant supervisor of the department allegedly instructed Poulos to cancel a cardiologist appointment that she had scheduled weeks in advance and about which she had informed her supervisors. The next day, one of her white co-workers asked to leave work early and this request was granted, even though the co-worker had not provided any advance notice. Poulos's supervisor also allegedly required Poulos to ask permission from the assistant supervisor every time she needed to use the restroom, but none of her white co-workers were subjected to this same requirement.

In June 2021, the assistant supervisor allegedly refused Poulos's request to go to a medical appointment prior to a scheduled surgery. The assistant supervisor allegedly "attempted to intimidate" Poulos by "interrogating her about the necessity of her surgical procedure" and discussing Poulos's personal medical information in front of co-workers. Poulos returned from medical leave in late July 2021 and was placed on "light duty" due to medical restrictions. Less than two weeks later, Poulos's supervisor instructed her to lift "water bottle crates and refill the refrigerator." When Poulos responded that she could not do so due to her medical restrictions, her supervisor "rudely dismissed" her concerns, "berated her publicly," and accused Poulos of being able to lift the water bottles because she carried a purse.

Poulos filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Workforce Commission-Civil Rights Division ("the Commission") on October 13, 2021. Poulos alleged that she has "continued to face additional harassment from her supervisors" following her filing of the charge. She has allegedly been assigned additional work without compensation, has "continue[d] to be closely monitored with her bathroom breaks," and has been "harassed for any breaks or requests for time off." Poulos alleged that she received a right to sue letter from the EEOC on November 18, 2021. She also alleged that she has "requested [that] the Texas Workforce Commission Civil Rights Division issue Complainant's 'Right to File Civil Action.'"

Poulos filed suit against the City on February 16, 2022, and asserted three claims under the TCHRA. Poulos asserted a claim for hostile work environment based on her race alleging that her supervisors would monitor and interrogate her more than her white co-workers, she was "held to a different standard for her attendance and break times" compared to her white co-workers, and she was "verbally assaulted by her supervisor and endured hostility and yelling on a frequent basis," while her white co-workers were not treated in the same manner.

Poulos also asserted a claim for retaliation. She alleged that she first complained about the discriminatory treatment in October 2019, but "her director" dismissed her concerns and threatened to give her a formal write-up. Poulos alleged that she suffered adverse employment actions including additional harassment from her supervisor; the denial of requested leave days for medical procedures; the ignoring of her medical restrictions and accommodations following a surgical procedure; and increasing hostility from her supervisor. She further alleged that following her EEOC charge, she had been assigned additional work without compensation, her bathroom breaks were closely monitored, and she was harassed concerning breaks and requests for time off.

Finally Poulos asserted a claim for racial discrimination. She alleged that she was "scrutinized to a higher level than her white coworkers and berated and humiliated before her peers by her supervisor"; was "denied requests for leave days requested weeks in advance, while her white coworkers were allowed to leave early without prior notice"; and was "held to a higher standard than her white coworkers, including higher scrutiny for her time and work performance." She further alleged that she was denied a promotion in favor of a white co-worker with less experience and qualifications. Additionally, she alleged that a white co-worker was not disciplined when that co-worker complained about a supervisor, but Poulos was threatened with a write-up for voicing concerns. Poulos sought actual and compensatory damages, "including lost wages and benefits in the past and future," mental anguish damages, and damages for pain and suffering.

Poulos requested issuance of service of citation. She served the City with citation on March 29, 2022.

The City answered and asserted the affirmative defense of governmental immunity, alleging that Poulos had not demonstrated that the City's immunity had been waived.

On May 17, 2022, the City moved to dismiss Poulos's suit for lack of subject-matter jurisdiction under Rule of Civil Procedure 91a. The City acknowledged that the TCHRA provides a limited waiver of governmental immunity, but it argued that the waiver only applies when the plaintiff alleges a violation within the scope of the statue and follows the TCHRA's mandatory procedures. The City first argued that Poulos's suit was untimely because she did not file her petition and serve the City with process within 60 days of receiving a right to sue letter. Although Poulos alleged that she received her right to sue letter from the EEOC on November 18, 2021, she did not file suit until February 16, 2022, and she did not serve the City until March 29, 2022.

The City also argued that Poulos did not file her charge of discrimination within 180 days of the occurrence of an unlawful employment practice. Because Poulos filed her charge of discrimination on October 13, 2021, any claims involving acts more than 180 days before that date-or before April 16, 2021-were untimely and could not be the subject of Poulos's suit. According to the City, Poulos's only timely claims involved complaints regarding absences and bathroom breaks, and those claims were not actionable under the TCHRA.

Poulos responded that she had timely filed suit. She received her right to sue letter from the EEOC and filed suit on February 16, 2022, but at that time, she had not yet received her notice of right to file a civil action from the Commission. She received that letter on March 5, 2022, and served the City on March 29, 2022, within the 60-day time-period. Poulos attached a copy of the notice from the Commission. Poulos also argued that she had alleged claims that were actionable under the TCHRA and that occurred after April 16, 2021, including claims that her white co-workers "were given preference on breaks and access to bathroom privileges," she was denied leave to go to a medical appointment, and the medical restrictions following her surgery were ignored.

The trial court denied the City's motion to dismiss. This interlocutory appeal followed. See Tex. Civ. Prac & Rem. Code § 51.014(a)(8) (allowing party to take interlocutory appeal from order granting or denying plea to jurisdiction filed by...