Metro. Transit Auth. of Harris Cnty. v. Douglas

651 S.W.3d 122

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, Texas, Appellant

v.Viola M. DOUGLAS, Appellee

NO. 14-19-00714-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed September 2, 2021

Brittany Mortimer, Daniel Nicholas Ramirez, Houston, for Appellant.

Linda D. King, Houston, for Appellee.

Panel consists of Justices Wise, Bourliot, and Spain.

Frances Bourliot, Justice

The Metropolitan Transit Authority of Harris County, Texas (Metro) brings this interlocutory appeal from the trial court's denial of its motion for summary judgment and plea to the jurisdiction in appellee Viola Douglas's gender discrimination and retaliation lawsuit. In her lawsuit, Douglas alleged that the Metro Police Department did not promote her to the rank of captain because of her gender and that the department retaliated against her for filing a complaint and the present lawsuit. In two issues, Metro contends that the trial court erred in failing to dismiss Douglas's discrimination and retaliation claims for want of jurisdiction.

This is the second interlocutory appeal in this case. In the first appeal, Metro unsuccessfully contested the trial court's denial of an earlier plea to the jurisdiction that challenged the sufficiency of Douglas's pleadings. Harris Cty. Metro. Trans. Auth. v. Douglas , 544 S.W.3d 486, 492 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). In the present appeal, Metro contests the trial court's denial of Metro's subsequent plea to the jurisdiction and motion for summary judgment, which challenged the existence of jurisdictional facts. We affirm.

Governing Law

As a governmental unit, Metro is immune from suit absent an express waiver of governmental immunity. Alamo Heights I.S.D. v. Clark , 544 S.W.3d 755, 771 (Tex. 2018) ; Douglas , 544 S.W.3d at 492. The Texas Commission on Human Rights Act (TCHRA) provides a limited waiver of that immunity from suit when a governmental unit has discriminated in any manner against any employee on the basis of age, sex, or other protected classification, or has retaliated against the employee for opposing or complaining of such discrimination. Tex. Lab. Code §§ 21.002(8)(d) (defining "employer" to include "a county, municipality, state agency, or state instrumentality"), 21.051 (prohibiting discrimination by employer), 21.055 (prohibiting retaliation by employer), 21.254 (allowing civil action); Mission Consol. I.S.D. v. Garcia , 253 S.W.3d 653, 660 (Tex. 2008) ; Douglas , 544 S.W.3d at 492.

To prevail on a claim of immunity from suit, a governmental defendant may challenge (1) whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case, as Metro did in its first plea to the jurisdiction; (2) the existence of jurisdictional facts, as Metro did in its second plea and motion for summary judgment; or (3) both. See Tex. Dep't of Transp. v. Lara , 625 S.W.3d 46, 52 (Tex. 2021). When, as here, the defendant challenges the existence of jurisdictional facts, the court must move beyond the pleadings and consider evidence. See id. The analysis then mirrors that of a traditional summary judgment. Id.

When the defendant challenges the plaintiff's allegations with sufficient supporting evidence, the plaintiff must raise at least a genuine issue of material fact to avoid dismissal. Alamo Heights , 544 S.W.3d at 771 ; Metro. Transit Auth. of Harris Cty. v. Carter , No. 14-19-00422-CV, 2021 WL 126687, at *4 (Tex. App.—Houston [14th Dist.] Jan. 14, 2021, no pet.) (mem. op.). When the evidence submitted to support the plea implicates the merits of the case, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Alamo Heights , 544 S.W.3d at 771. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id.

We review a trial court's rulings on the plea to the jurisdiction and motion for summary judgment de novo. See Carter , 2021 WL 126687, at *5. Because the legislature intended for state law to correlate with federal law in employment discrimination cases, we may look to analogous federal cases when applying TCHRA. See Tex. Lab. Code § 21.001 ; Wal–Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 739 (Tex. 2003) ; Douglas , 544 S.W.3d at 492.

There are two methods of proof in cases alleging disparate treatment. The first involves using direct evidence of what the defendant did and said to prove discriminatory intent. See Mission Consol. I.S.D. v. Garcia , 372 S.W.3d 629, 634 (Tex. 2012). However, because direct evidence of discrimination is rare in employment cases, claimants often must rely on indirect or circumstantial evidence of discrimination. See Coll. of the Mainland v. Glover , 436 S.W.3d 384, 392–93 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under the latter method, courts follow the burden-shifting mechanism set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas framework, the plaintiff is entitled to a presumption of discrimination if she can present a prima facie case of discrimination. See Garcia , 372 S.W.3d at 634. The precise elements of a prima facie case vary depending on the circumstances, but the plaintiff's burden at this stage is not onerous. Id. The prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Constr. Corp. v. Waters , 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the employment action. See Navy v. Coll. of the Mainland , 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.). If the defendant articulates a legitimate, nondiscriminatory reason for its decision, the burden then shifts back to the plaintiff to show either that the stated reason was a pretext for discrimination or that even if the reason was true, discrimination was also a motivating factor for the adverse employment action. The McDonnell Douglas framework applies to jurisdictional issues such as those raised in this appeal, both in the discrimination and the retaliation contexts. See Alamo Heights , 544 S.W.3d at 781-83 ; see also Univ. of Tex. Sw. Med. Ctr. v. Vitetta , No. 05-19-00105-CV, 2020 WL 5757393, at *7–8 (Tex. App.—Dallas Sept. 28, 2020, no pet.) (mem. op.) ; Avila v. United Parcel Serv., Inc. , No. 03-18-00233-CV, 2018 WL 4100854, at *4 (Tex. App.—Houston [14th Dist.] Aug. 29, 2018, no pet.) (mem. op.).

I. Discrimination Claims

In its first issue, Metro contends that the trial court erred in failing to dismiss Douglas's discrimination claims for want of jurisdiction. We will begin by reviewing Douglas's claims and then will turn to Metro's motion and the evidence provided by both parties.

A. Douglas's Pleadings

In her Fourth Amended Petition, Douglas alleged that Metro discriminated against her in 2014 because of her gender when two male candidates for the rank of captain were promoted instead of her. Douglas asserted that Metro PD "has a long history of discrimination against women," has had only one female captain in its history, and currently has no female captains. She claimed that statistically, it takes women in the department longer to be promoted than their male counterparts.

In 2012, Metro issued a memorandum outlining the promotional process after an applicant for a prior open captain's position raised concerns about the fairness of the internal promotional procedure. The assessment and selection process was to be led by an outside consultant, the Law Enforcement Management Institute of Texas, and would include an outside panel of law enforcement professionals. Since January 31, 2012, all promotions had used this process, including those for the sergeant and lieutenant ranks, until the captain openings in the present case in September 2014. In place of the outside-led process, the Metro police chief at the time, Tim Kelly, decided that the three candidates for captain in 2014 would first interview with a five-person panel of Metro employees chosen by Kelly and then would interview with him personally. At the time, Kelly was aware that when Douglas was promoted to lieutenant in 2012, the outside-led promotional process had ranked her first out of eleven candidates, a field which also included both male applicants for captain in 2014.

After tabulation of the panel interview scores, Douglas was the highest-scoring candidate. Kelly was aware of this at the time of his one-on-one interviews with the candidates. Kelly was also aware that he would soon be leaving his post as chief for a position as a vice president of Metro and the promotion of his replacement as chief, Captain Vera Bumpers, would open a second captain position for the three candidates to fill. After Kelly's interview scores were added to the panel scores, Douglas went from being ranked first to ranked last. Kelly then promoted the two male candidates over Douglas.

Douglas also pointed out that one of the male 2014 candidates, Felix Vara, was allowed to participate in the promotional process despite the fact that he had been disciplined within the prior year for a serious violation of department rules and Metro PD had a long-standing policy of disqualifying any officer who had been disciplined within the prior year from promotion. Douglas contended that "Kelly's interview questions were completely subjective and had no reasonable relationship to an individual's qualifications for the position as captain." Kelly also admitted to Douglas that he had decided to promote the two male candidates based on his "gut" feeling. Douglas further asserted...