Donna Indep. Sch. Dist. v. Castillo

DONNA INDEPENDENT SCHOOL DISTRICT, Appellant, v. CYNTHIA CASTILLO, Appellee.

NUMBER 13-19-00395-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

August 13, 2020

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa

Memorandum Opinion by Chief Justice Contreras

Appellant Donna Independent School District (DISD) challenges the trial court's denial of its plea to the jurisdiction in this employment discrimination case filed by appellee Cynthia Castillo. By one issue, DISD argues that Castillo failed to exhaust her administrative remedies prior to filing suit. We affirm in part and reverse and render in part.

I. BACKGROUND

Castillo was employed as a police officer by DISD until her termination on February 13, 2017.¹ On November 10, 2016, Castillo filed a formal charge of discrimination with the Texas Workforce Commission (TWC). The discrimination charge form required Castillo to check boxes next to all bases of discrimination against her. Castillo checked the boxes next to sex, age, and retaliation. The form also prompted Castillo to fill in the earliest and latest dates of discrimination. Castillo filled in "11-12-2015" for the earliest, "5-9-2016" for the latest, and checked the box that indicated the discrimination was a "continuing action." In a field requesting the narrative of the "Particulars," Castillo provided:

I am a 45 year old Hispanic female who is employed as a police officer at Donna ISD with eight years previous experience working at Hidalgo County Sheriff's Department. At all times I have been a loyal hardworking and dedicated employee. On or about November 12, 2015, while working at the Donna ISD North High School campus, Sergeant Francisco A. Limon was standing in the hallway by the nurse's station when he came up to me and with his right hand shook my hand while at the same time tickling the palm of my hand with his fingers which I felt was inappropriate touching and offensive. I immediately reported the incident to the Donna ISD police department, complained to Officer Gabriel Avendano as Officer Don Crist and Officer Adrian Riman when they walked in and also suggested to file a report [sic]. I reported it to Sgt. Daniel Walden regarding same. Additional offensive behavior continued until February 22, 2016.[²]

I felt uncomfortable working around him while still on the same campus and filed a Level I complaint/grievance form with human resources on February 22, 2016. I conferenced with Javier J. Villanueva, Assistant Superintendent for Human Resources until May 26, 2016 which I received a response to complaint until June 9, 2016 stating that relief would not be granted and proceeded to file a Level II complaint. I received a correspondence from DISD on June 27, 2016, also stating remedy is denied.[³] A Level III AppealNotice on June 28, 2016 which complaint was heard during a board meeting on July 6, 2016 [sic]. On August 19, 2016, I received correspondence from DlSD informing me that I would be transferred to their Alternative Education Program for the 2016-2017 school year effective immediately.

I believe that I was discriminated against and/or retaliated because of my age, in the manner described above, in violation of Title VII of the Civil Rights Act of 1964, as amended; the age Discrimination in Employer Act, as amended; and in violation of the Texas Commission on Human Rights Act.

On December 13, 2016, DISD placed Castillo on administrative leave to investigate possible violations by Castillo of DISD District Policy, DISD Police Department policies, and Texas Occupation Code § 1701.655. On February 14, 2017, DISD notified Castillo that the Board had approved her immediate termination at the meeting held on February 13, 2017. On June 5, 2017 the TWC issued Castillo a right-to-sue letter and explained it was dismissing her charge because she requested a notice of right to file civil action "over 180 days after filing her complaint."

Castillo filed suit against DISD alleging discrimination and retaliation under the labor code and family code. DISD filed a general denial and, later, a plea to the jurisdiction. DISD attached to its plea copies of Castillo's charge with TWC, Castillo's level 1 grievance, an excerpt from Castillo's deposition, and an email from Castillo to the Chief of Police for DISD, Roy Padilla. Castillo submitted copies and logs of communications by email, text, letter, and police radio between various parties, detailing the development of issues involving Castillo and her employment with DISD. Castillo then amended her petition, retaining only her causes of action under the labor code and filed a response to DISD's plea.

In her live petition, Castillo brings claims for "age and sex discrimination, sexual harassment/hostile work environment, and retaliation." Castillo claims that, after she wastransferred to the Alternative Education Program, "the discrimination and retaliation continued" because:

(a) DISD took away her police vehicle and gave her a security officer vehicle which did not have the necessary equipment for her to do her job;

(b) DISD took away her master key and would not let her use the normal DISD police department parking lot;

(c) she was harassed by her supervisor and other male police officers when she took off time from work for approved personal and/or sick days;

(d) her new direct supervisor, Sgt. Daniel Walden, began to harass and belittle her, and even told her that she would be supervised directly by the principal of the Alternative Education Program campus, even though he was not in her department and not a certified police officer;

(e) board members bragged about her reassignment being a way to get rid of her and force her to quit;

(f) she was generally ridiculed, harassed, and chastised for simply doing her job, like recording incidents that were in violation of the law or Donna ISD policy;

(g) she was ordered by Sgt. Walden not to report incidents of student abuse by other officers and district employees;

(h) she was harassed for "congregating" with other police officers; and

(i) DISD failed and/or refused to give her doctor-ordered light duty work after undergoing a serious medical procedure, where other male officers were afforded light duty. Castillo also alleged that she was retaliated against when she was placed on suspension pending an investigation and when she was terminated.

After a hearing, the trial court denied DISD's plea. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (providing for interlocutory appeal from a trial court's order on a plea to the jurisdiction).

II. DISCUSSION

By its sole issue, DISD argues that Castillo failed to exhaust her administrative remedies and, therefore, the trial court lacked jurisdiction over her claims.

A. Standard of Review

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's subject matter jurisdiction. Id. Whether a trial court has subject matter jurisdiction and whether the pleader has alleged facts that affirmatively demonstrate the trial court's subject matter jurisdiction are questions of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). If the plaintiff pleaded facts making out a prima facie case and the governmental unit instead challenges the existence of jurisdictional facts, we consider the relevant evidence submitted. Metro. Transit Auth. of Harris Cty. v. Douglas, 544 S.W.3d 486, 492 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see Garcia, 372 S.W.3d at 635. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the plaintiff. Douglas, 544 S.W.3d at 492;see Garcia, 372 S.W.3d at 635. We indulge every reasonable inference and resolve any doubts in the plaintiff's favor. Douglas, 544 S.W.3d at 492; see Miranda, 133 S.W.3d at 226. If the relevant evidence is undisputed or if the plaintiff fails to raise a fact question on the jurisdictional issue, then0020the trial court rules on the plea as a matter of law. Garcia, 372 S.W.3d at 635; see Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798-99 (Tex. 2016) (op. on reh'g).

B. Unlawful Employment Practices

The Texas Commission on Human Rights Act (TCHRA) prohibits sex and age discrimination and retaliation by employers. See TEX. LAB. CODE ANN. §§ 21.001, 21.051, 21.055; see, e.g., Garcia, 372 S.W.3d at 640-42 (age discrimination); County of El Paso v. Aguilar, 600 S.W.3d 62, 90-92 (Tex. App.—El Paso, 2020, no pet.) (retaliation); Santi v. Univ. of Tex. Health & Sci. Ctr. at Hous., 312 S.W.3d 800, 805-06 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (sex discrimination). In particular, § 21.051 of the labor code states, "An employer commits an unlawful employment practice if because of sex [or] age the employer . . . discriminates in any . . . manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." TEX. LAB. CODE ANN. § 21.051(1); Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 432 (Tex. App.—Fort Worth 2009, pet. denied). Section 21.055 provides that an employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who, under chapter 21 of the labor code, "(1) opposes a discriminatory practice; (2) makes or...