Teachers Fed. Credit Union v. Esquivel

621 S.W.3d 786

TEACHERS FEDERAL CREDIT UNION, Appellant,

v.Salvador ESQUIVEL, Appellee.

No. 08-18-00200-CV

Court of Appeals of Texas, El Paso.

February 26, 2021

Mark C. Walker, Mario Franke, El Paso, for Appellant.

Daniela Labinoti, El Paso, John P. Mobbs, for Appellee.

Before Rodriguez, C.J., Barajas, C.J., Senior Judge, and Larsen, J., Senior Judge, Barajas, C.J., Senior Judge (Sitting by Assignment), Larsen, J., Senior Judge (Sitting by Assignment)

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

In this interlocutory appeal, Appellant, Teachers Federal Credit Union ("TFCU"), appeals the trial court's denial of its Motion to Dismiss Pursuant to the Texas Citizens Participation Act (the "Act"). Appellee, Salvador Esquivel, sued TFCU for wrongful termination based on age, sex, and disability discrimination. TFCU filed a motion to dismiss under the Act, asserting Esquivel's claims were based on or related to TFCU's exercise of free speech and free association as defined under the Act.

Because we find TFCU failed to show by a preponderance of the evidence Esquivel's suit is based on, related to, or in response to its exercise of free speech or free association, we affirm the denial of Appellant's Motion to Dismiss.

BACKGROUND

Esquivel is a sixty-two year-old man who was terminated from his employment with TFCU after, according to TFCU, a series of subpar performance reviews in his position as compliance supervisor. In his amended petition, Esquivel asserts TFCU subjected him to a hostile work environment and unnecessarily and unfairly "scrutinized" and "disciplined" him because of his sex, age, and disability.

The parties include lengthy conflicting factual recitations in their briefs not necessary to recount in full here. Esquivel asserts TFCU's account of his alleged faulty job performance is false and TFCU fabricated issues to discriminate and retaliate against him. TFCU posits Esquivel's long history of poor performance reviews and negative feedback supported his supervisor's decision to terminate him for cause. More importantly, the parties disagree about the applicability of the Act to Esquivel's lawsuit, which necessitates our review of this case. For context, we provide some additional factual background below.

Employment History

In the period leading up to his termination, Esquivel was a Compliance Supervisor with TFCU. According to TFCU, a Compliance Supervisor's duties included oversight of TFCU's enforcement of Bank Secrecy Act ("BSA") regulations.

While employed with TFCU, Esquivel experienced a heart attack. He alleges his history of heart issues affected many of his major life activities. Esquivel claims his work history at TFCU was excellent and he consistently received good evaluations. However, when TFCU made Elizabeth Zamora its Vice President of Compliance in April 2015, he alleges his former positive job reviews suddenly took a downturn. He also asserts Zamora mocked him for his health condition and mentioned it when he complained of being assigned excess work duties.

Esquivel complained another employee, Mayra Velarde, was treated more favorably by Zamora, despite her repeated mistakes while doing her job. Esquivel believes Velarde was treated more favorably because she is a woman. He claims he was disciplined for mistakes Velarde made, alleging Velarde was not disciplined for her errors. Zamora continued to degrade Esquivel's job responsibilities and was progressively demoted until his termination on December 13, 2016. He asserts he was replaced by a younger, lesser-qualified female.

TFCU's brief paints a different picture. TFCU describes a suboptimal employment history beginning June 2014—approximately two years before Zamora became his supervisor. Specifically, TFCU asserts Esquivel's previous supervisor counseled him on his follow-through in completing a number of small projects; his 2013-2014 employment appraisal scored in the category of "needs improvement;" and, in 2014, he was placed on a Development Action Plan to address performance deficiencies as supervisor. Esquivel was also issued a written warning for failing to meet deadlines in February of 2015, and another in May of 2015 for failing to adhere to policies and procedure. According to TFCU, all of the foregoing instances occurred prior to Zamora assuming responsibility as his supervisor.

When Zamora became his supervisor, her first documented criticism of Esquivel was a verbal warning in January 2016 for failure to manage his department's completion of the Online University Compliance exams. He was coached by Zamora in March the same year regarding his ability to resolve personnel issues among his team members. In May, Esquivel was warned about alleged misrepresentations he made about an interaction he had with another employee. Following this warning, which TFCU claims was the second of its kind, Esquivel was required to meet weekly with Zamora "to ensure open lines of communication and leadership standards were being met." According to TFCU, during Esquivel's meeting with Zamora regarding the warning, he casually mentioned, for the first time, his heart condition. TFCU claims he never sought accommodation or any change in duties because of this condition.

In June of 2016, Esquivel received another "needs improvement" score on his performance appraisal. Categories requiring improvement, pursuant to the appraisal, included, " ‘Accountability,’ ‘Communication,’ ‘Leadership,’ ‘Teamwork and Cooperation,’ ‘Professionalism,’ ‘Initiative,’ ‘Focus,’ ‘Attention to Detail,’ and ‘Productivity.’ " As a result of his performance appraisal score, Esquivel was placed on a Development Action Plan for six months. The Development Action Plan required Esquivel's improvement in seven areas by the end of its term.

When Esquivel was terminated on December 13, 2016, TFCU determined he had shown "minimal to no progress" in completing the expectations outlined in the Development Action Plan. This, in combination with a number of other alleged issues beginning in early 2013 and discussed in detail in TFCU's brief, ultimately led to Esquivel's termination.

Procedural History

A. Esquivel's Original Petition and TFCU's Original Answer

Esquivel filed his original petition on June 5, 2018, alleging age, disability, sex discrimination, and retaliation. His initial pleading does not cite to any statutory authority upon which his claims are founded, with the exception of his damages allegation, which cites to Rule 47(c)(1) of the Texas Rules of Civil Procedure.

TFCU filed its original answer on June 28, 2018. Included in its answer are special exceptions, including the exception of Esquivel's failure to include the filing date of his charge of discrimination and/or date of issuance of any notice of rights from a state or federal agency. It also specially excepts Esquivel's failure to mention whether his discrimination and retaliation claims are brought under state and/or federal statute(s).

B. TFCU's [Original] Motion to Dismiss

On August 10, 2018, TFCU filed its first motion to dismiss under the Act. In its motion, TFCU argued Esquivel's lawsuit was "based on, related to, or in response to TFCU's exercise of its right of free speech on a matter of public concern, or its right of association," and thus, under the Act, warranted dismissal. Specifically, according to TFCU, because Esquivel's suit involved "communications among TFCU management and/or employees regarding the decision to end his employment," the Act was implicated. TFCU's motion also contends Esquivel is unable to make a prima facie showing of each essential element of his employment discrimination claim, which is required to avoid dismissal under the Act.

In support of its motion, TFCU attached an affidavit from Eliana Avila, its Vice President of Human Resources at its Rojas Branch in El Paso, Texas. Attached to the affidavit and authenticated as business records are twenty-four documents regarding Esquivel's employment with TFCU. These documents range from the counseling Esquivel received from his previous supervisor in June 2014, to the June 15, 2017 "Charge of Discrimination" filed with the EEOC.

C. Esquivel's Amended Petition and TFCU's Amended Motion to Dismiss

On August 21, 2018, Esquivel amended his petition to include references to the federal statutes upon which his claims are based. His amended petition is otherwise identical to his original petition.

TFCU filed an amended motion to dismiss on September 28, 2018. Substantively, the amended motion is virtually identical to the original motion, except for additional case law references and arguments addressing what TFCU believed to be newly-added federal claims. In addition, TFCU attached Esquivel's responses to request for disclosure and answers to interrogatories, along with the EEOC charge as purported evidence of Esquivel's failure to timely file his lawsuit. These three additional attachments were not included as evidence in TFCU's original motion to dismiss.

D. Esquivel's Response to TFCU's Amended Motion

Esquivel responded to TFCU's motion on October 29, 2018. Esquivel asserts the Act does not apply because the Supremacy Clause gives priority to the "federal anti-discrimination and federal anti-retaliation laws" that form the basis of Esquivel's claims given they are in conflict with the Act. Further, Esquivel argues TFCU has failed to meet its burden of showing the Act's applicability. Even if TFCU could satisfy its burden, Esquivel maintains he is able to make a prima facie showing of each essential element of its cause of action, and TFCU is unable to establish the same regarding a defense to those claims.

Esquivel also lodged objections to nearly all of TFCU's exhibits, with the exception of his EEOC charge, and his responses to TFCU's discovery.

E. TFCU's Supplement to its Amended Motion

The day before the scheduled hearing, TFCU filed a supplement to its amended motion to dismiss. The supplement consisted solely of an affidavit from Ms. Avila dated ...