Workman v. Tex. Comm'n on Envtl. Quality

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Marcia M. Workman, Appellant v. Texas Commission on Environmental Quality, Appellee

No. 03-23-00341-CV

Court of Appeals of Texas, Third District, Austin

June 20, 2024

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-21-002463, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

Rosa Lopez Theofanis, Justice Before Chief Justice Byrne, Justices Smith and Theofanis

MEMORANDUM OPINION

Marcia M. Workman appeals from the district court's order granting summary judgment and the plea to the jurisdiction of the Texas Commission on Environmental Quality (TCEQ) and dismissing her employment-discrimination suit against TCEQ. We affirm.

BACKGROUND

TCEQ has employed Workman, a Black immigrant from Brazil, in various capacities since 1998. In 2016, she held the title of Spatial Data Manager in the Water Availability Division.^[1] During her annual performance review that year, Workman's supervisor reported that she "consistently met" all the requirements of her job. Her supervisor noted that Workman's "proficiency in cartography and map design has improved Team capabilities and the efficiency and quality of the Team outputs" and her "attitude and skills enable her to handle multiple assignments and tight deadlines," but Workman needed improvement in communication and decision-making. For example, senior members of the division had received many complaints from other divisions that Workman had "communicated programmatic issues and concerns with them." Her supervisor coached Workman to communicate those concerns up the "established-chain-of-supervision."

Per TCEQ policy, Workman and her supervisor met to discuss the review. Workman stated during that meeting that she felt harassed after overhearing a conversation between two coworkers concerning her appearance and accent. The director of the Water Availability Division investigated Workman's allegation but found no evidence of harassment.

Workman's next annual review was similar: her supervisor reported that Workman consistently fulfilled all her job functions but needed improvement in decision-making and communication. For example, the supervisor documented that Workman had "worked on a nonessential project that resulted in overtime hours for the Information Resources Division" rather than her own projects and continued to improperly communicate with others outside her division. In a written memo, the director of the division instructed Workman that she should not send "emails and other communications" outside the division without approval from her supervisor.

In late 2017, Workman filed an administrative charge with the Equal Employment Opportunity Commission (EEOC) alleging race national origin, or sex discrimination in violation of Title VII of the Civil Rights of Act of 1964. More specifically she alleged that the negative evaluations were retaliation for complaining about discrimination, which had been motivated by her complaint concerning the conversation she overheard. The EEOC issued her a right-to-sue letter, but she did not file suit.

In the 2018 performance review, Workman's supervisor reported that she did not consistently meet all the expectations of her job. The review notes that Workman had "not accomplished a specific assignment without significant supervision," left many tasks incomplete since the previous review, and had difficulty communicating clearly. Attached to the review is a "recommended action plan" listing steps that she must take to improve her work performance, including enrolling in a class on writing in plain language, and a schedule with the dates she is to work on specific projects.

Later that year, Workman was subpoenaed to testify in a federal lawsuit brought by one of her former coworkers in the Water Availability Division. The coworker alleged that TCEQ fired him because he is Chinese and in retribution for filing a complaint of discrimination. Workman testified in a deposition that she believes TCEQ discriminates against persons who are not white and native speakers of English.^[2]

In May 2019, Workman filed a whistleblower complaint with the Environmental Protection Agency accusing the Water Availability Division of discriminating against African Americans in providing services to the public and in discriminating against her. The EPA rejected the complaint and referred it to TCEQ. The same month, Workman filed a second complaint with the EEOC alleging that TCEQ retaliated against her for the first complaint and for testifying in her coworker's discrimination lawsuit. EEOC issued her a right-to-sue letter, but she did not file a lawsuit.

In the 2019 annual review, Workman's supervisor again rated her as not meeting the requirements of her job and placed her on a Performance Improvement Plan (PIP) to remedy the deficiencies. The PIP identified three essential job functions at which she needed improvement, stated what level of performance was expected, and gave her specific assignments with deadlines. For the duration of her time on the PIP, she was ineligible for alternative work hours but required to work in the office from 8:00 AM to 5:00 PM; all requests for time off would be considered in light of her progress; and no request to attend training, conferences, or events would be approved "unless shown to directly benefit" one of her assignments. After Workman did not sufficiently improve, the PIP was extended in September 2019. Workman completed her PIP successfully in January 2020.

Workman filed a complaint with the EEOC alleging that TCEQ retaliated against her for her two previous EEOC complaints by, among other things, placing her on the PIP without justification and denying her bonuses and promotions. While that charge was pending, Workman filed a pro se lawsuit against TCEQ for violating the Texas Commission on Human Rights Act (TCHRA). See Tex. Labor Code §§ 21.001-.556. She amended her petition four more times. In her second amended petition, Workman dropped her claims under the TCHRA and alleged discrimination in violation of Title VII of the Civil Rights Act.

After the EEOC issued her a right-to-sue letter for her third complaint, Workman amended her petition a third time to include those allegations. Her third amended petition alleged causes of action for discrimination, retaliation, and creating a hostile work environment under Title VII and a section 1983 claim for violating her constitutional right to equal protection. See 42 U.S.C 1983. TCEQ filed a combined plea to the jurisdiction on the Section 1983 claim and a hybrid motion for summary judgment on the Title VII claims ("combined motion").

The combined motion was set for a hearing on December 21, 2022. Seven days before the hearing, Workman amended her pleading a fourth time to reassert the same TCHRA claims and a new claim for violation of the Texas Whistleblower Act. See generally Tex. Gov't Code § 554.003. She simultaneously filed a "Motion for Leave to Add New Defendants" seeking leave "pursuant . . . to Rule 37 of the of the Texas Rules of Civil Procedure" to add her three supervisors-Kim Nygren, Kelly Mills, and Abiy Berehe-as defendants. She explained that if the court granted leave, she would file an amended petition asserting that her supervisors violated her constitutional right to equal protection.

Workman also filed a response to TCEQ's combined motion and attached the three EEOC charges; position statements she provided to EEOC investigators; a right-to-sue letter from the EEOC; a description of her job duties; and a purported whistleblower complaint Workman filed with the Environmental Protection Agency. She followed the entire response with a declaration under Section 132.001 of the Civil Practice and Remedies Code "that the facts as set forth in the foregoing are true and correct."

TCEQ filed a reply arguing, among other things, that the fourth amended petition "was filed to unfairly surprise and prejudice TCEQ and should be struck." TCEQ attached Workman's performance reviews from 2015 onwards; TCEQ policies regarding salary increases, promotions, leave, and expected work hours; emails between Workman and her supervisors, including responses to Workman's initial complaints of discrimination during the performance review conference in 2016; the PIP; a memorandum extending the PIP and assigning her additional tasks; emails between Workman and her supervisor concerning Workman's requests for vacation time and time off to attend professional trainings; and the EEOC charges.

The district court held a remote hearing on December 21, 2022. At the start of the hearing, the district court observed that she had not yet reviewed the pleadings and that the people watching the livestream "know everything that I know." The parties first addressed whether the district court possessed jurisdiction over the section 1983 claim. Counsel for TCEQ argued that it retained sovereign immunity because Section 1983 claims must be brought against individuals. Workman responded that she filed her motion for leave to add her supervisors as defendants to cure this jurisdictional defect. The district court asked counsel for TCEQ whether Workman can "cure by filing this amendment?" Counsel responded that the defect is incurable because Workman would need to assert ultra vires claims against her supervisors, and her fourth amended petition does not assert any claims against them.

The parties then moved to whether TCEQ was entitled to summary judgment. After hearing argument from Workman, the district court asked TCEQ's counsel "Was any of those facts or a portion of those facts presented in a verified way in her response to your MSJ?" Counsel replied that they were not.

At the close of the hearing, the district court orally granted the plea to the...