Tex. Dep't of State Health Servs. v. Resendiz

TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellant, v. GUSTAVO RESENDIZ, Appellee.

No. 08-19-00273-CV

Court of Appeals of Texas, Eighth District, El Paso

November 29, 2021

Appeal from the 168th Judicial District Court of El Paso, Texas (TC #320710168)

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, JUSTICE

Appellee Gustavo Resendiz was terminated in February of 2014 from his position as a Maintenance Specialist at the El Paso Psychiatric Center (the Center) for allegedly stealing state property. He then sued Appellant Texas Department of State Health Services (the Department), the agency currently responsible for overseeing the Center, raising claims of gender, national origin, and disability discrimination, in addition to retaliation and sexual harassment.

The Department filed a plea to the jurisdiction, challenging with evidence several elements of Resendiz's claims. The trial court denied the plea in its entirety For the reasons set forth below, we agree with the Department that Resendiz failed to establish a prima facie case of gender discrimination and retaliation. And even assuming Resendiz presented a prima facie case for these, and his other claims, he failed to sufficiently rebut the Department's evidence that he was terminated based on its belief that he committed theft. This failure negates his gender, national origin, disability discrimination, and retaliation theories. We further conclude that while he lacks evidence to support a quid pro quo sexual harassment claim, he does have sufficient evidence to support his claim for sexual harassment based on a hostile work environment. We therefore reverse in part and affirm in part the trial court's judgment.

I. Factual Background

A. The Alleged Theft

The Center is a state hospital that provides psychiatric services to citizens of Texas. Resendiz was hired to work at the Center in November of 2002 as a Maintenance Specialist IV under the supervision of Josefina Herrera, the Center's Support Services Director. Resendiz's job responsibilities included construction and general maintenance work, and as such, he had access to all areas of the Center, including the loading dock and supply room.

On January 20, 2014, Herrera and her administrative assistant, Lazaro Sanchez, reviewed video footage of the loading dock area which showed Edgar Garcia, Resendiz's co-worker, take a roll of vinyl flooring from a storage area behind the loading dock, place it on a dolly, roll it outside, and leave it near a large dumpster. Shortly thereafter, Resendiz can be seen exiting through the loading dock carrying what appeared to be a bucket of flooring adhesive, and walking in the general direction of the same dumpster. Resendiz is then seen walking back to the loading dock empty-handed. There is nothing in the video to indicate that either of the two items were ever returned to the loading dock, and a subsequent inventory review revealed that a roll of vinyl flooring valued at $1, 596 and a 5-gallon bucket of flooring adhesive valued at $37.40 were missing. In addition, a car was later seen entering the loading dock area and momentarily parking near the dumpster area where the supplies had been left; the ownership of the car was never established.

According to Herrera, after confirming that the vinyl flooring was missing, she confronted Garcia, who advised her that he thought he had brought the vinyl back to the loading dock. She did not, however, initially realize that the adhesive was missing, and therefore did not question Resendiz about that item. Herrera then consulted with her then-supervisor, David Osterhout, and the matter was referred to the Texas Office of Inspector General (OIG) to investigate whether Garcia and Resendiz had stolen the missing property. Although the investigator believed that the two men may have been working together, he conducted separate investigations to determine whether Garcia had stolen the vinyl flooring and whether Resendiz had stolen the bucket of adhesive. The investigator reviewed the video footage, the inventory receipts, and spoke with various witnesses, including Resendiz, who denied taking the adhesive from the loading dock, and further denied seeing Garcia move the vinyl flooring. Garcia, on the other hand, advised the investigator that he recalled seeing Resendiz take a bucket of adhesive from the loading docket, but did not ask him why he had done so. Garcia claimed that he took the vinyl flooring from the loading dock as it was obstructed the work area, but then forgot to return it to the dock.

After completing his investigation, the investigator issued two separate reports finding that the theft charges against both men were "substantiated." In finding that the charge against Resendiz was substantiated, he noted that it was unclear on the video whether the bucket that Resendiz was seen carrying to the dumpster area was full or not. But given that a similar sized bucket of adhesive was later found to be missing, he deduced that Resendiz had in fact taken the adhesive. ^[1] The investigator referred the theft charge against Resendiz to the El Paso City Attorney's office, but that office never brought any charges. The theft charge against Garcia, however, was referred to the El Paso County Attorney's office, and following a jury trial, Garcia was acquitted.

B. The Termination

The Center sent Resendiz a "Notice of Possible Disciplinary Action" on February 27, 2017, signed by both Herrera and Osterhout, which notified him that the OIG investigation had substantiated the theft charge, and that this subjected him to possible disciplinary action. Although the notice gave Resendiz the opportunity to provide "rebuttal information," Resendiz declined to do so. Osterhout notified Resendiz that he was being terminated effective February 28, 2014.

II. Procedural Background

Resendiz filed a charge of discrimination with the Texas Workforce Commission Civil Rights Division, alleging discrimination under the Texas Commission Human Rights Act (TCHRA). After the Workforce Commission issued a right to sue letter, Resendiz filed his lawsuit against the Department, alleging unlawful discrimination based on gender (male), national origin (Mexican), and disability (hypertension). He further alleged that he was the victim of "unlawful retaliation for engaging in protected activities, and a hostile work environment." After responding to the suit and engaging in discovery, the Department filed a plea to the jurisdiction, arguing that the jurisdictional evidence did not support a finding that Resendiz had been terminated for any unlawful reason, or that he was the victim of a hostile work environment, and that the true cause of his termination was the theft of the building supplies. The Department therefore claimed that its governmental immunity from suit was not waived, and that the trial court therefore lacked jurisdiction to hear the lawsuit. Resendiz responded, claiming that he had come forward with sufficient jurisdictional evidence to support his claims and to support a waiver of the Department's immunity. Both parties submitted voluminous exhibits in support of their positions.

The trial court denied the plea in its entirety, and the Department filed an appeal from the trial court's order. The Department raises one global issue contending the trial court failed to dismiss each of Resendiz's claims.

III. Applicable Law and Standard of Review

State agencies, such as the Department, are protected by sovereign immunity from lawsuits other than for claims for which their immunity has been waived by the legislature. Texas Dep't of Aging and Disability Services v. Lagunas, 546 S.W.3d 239, 246 (Tex.App.--El Paso 2017, no pet.) citing Texas Parks &Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). Absent a waiver, a governmental unit's sovereign immunity deprives a trial court of subject matter jurisdiction. Texas Dep't of Parks &Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex.App.--El Paso 2012, no pet.). The Texas Legislature has, however, created a limited waiver of immunity for discrimination claims brought under the TCHRA. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). That waiver, however, extends "only for those suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder." Id.

A governmental entity may challenge the validity of a plaintiff's claim through a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26. A plea may attack the face of the pleading but may also include evidence which thereby places into issue the existence of a jurisdictional fact. Id. at 226-27. When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider all the relevant evidence submitted by the parties. Id. "If there is no question of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law." City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). On the other hand, if the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the jurisdiction, and the issue must be resolved by the fact finder. Lagunas, 546 S.W.3d at 246. Our review of the trial court's decision mirrors that of our review of summary judgments, which we review de novo, accepting as true all evidence favorable to the non-movant, and indulging every reasonable inference and resolving any doubts in the non-movant's favor. Id., citing Miranda, 133 S.W.3d at 226-27; State Dep't of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

In determining whether a...