The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00051-CV ____________________
LISA GRANGER, Appellant
V.
TEXAS DEPARTMENT OF TRANSPORTATION AND HENRY SAWYER, Appellees _______________________________________________________ ______________
On Appeal from the 88th District Court Tyler County, Texas Trial Cause No. 22,553 ________________________________________________________ _____________
MEMORANDUM OPINION
Relying on her right to appeal, Lisa Granger challenges the trial court’s ruling
dismissing her case against the Texas Department of Transportation (TXDOT), her
former employer, and Henry Sawyer, her former supervisor. In one appellate issue,
Granger contends the evidence the trial court considered before dismissing her case
reveals that genuine issues of material fact exist, which prevented the trial court from
dismissing her case without giving her the benefit of a trial. We hold the evidence
1 the trial court considered before granting TXDOT’s and Sawyer’s plea to the
jurisdiction 1 supports the trial court’s ruling dismissing Granger’s case. For that
reason, we affirm.
Background
TXDOT employed Granger for more than a decade before it fired her in
October 2010. When TXDOT terminated Granger, it informed her that she was being
terminated because she had taken metal pipe, scrap metal, and other material from
TXDOT’s Woodville yard. Before TXDOT reached its decision to fire Granger, one
of Granger’s co-workers reported that Granger had taken TXDOT’s property for
personal use. While investigating the report, Granger was interviewed; during her
interview, Granger admitted that she had taken material owned by TXDOT from
TXDOT’s yard. TXDOT and Sawyer took Granger’s deposition when conducting
discovery in her case. In Granger’s deposition, she admitted she took metal pipe
owned by TXDOT and then gave the pipe to her friend.
1 TXDOT and Sawyer filed a combined plea to the jurisdiction and motion for summary judgment. A plea to the jurisdiction is a dilatory plea that is used to defeat a plaintiff’s cause of action without regard to whether the plaintiff’s claims have merit, as the plea requires the court to decide whether it has subject matter jurisdiction over the plaintiff’s case. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). 2 About four months after Granger was fired, she filed an administrative
proceeding with the Texas Workforce Commission alleging that TXDOT had
violated the Texas Labor Code by discharging her from her job based on her sex. In
the formal charge that Granger filed with the Commission, Granger alleged that
TXDOT told her she was being fired for removing “scrap metal from the trash for
personal use.” According to Granger’s formal administrative charge, two male
employees participated in the same acts, but neither of those men lost their jobs.
In June 2012, Granger sued TXDOT and Sawyer in a Tyler County District
Court. In her Original Petition, Granger alleged that TXDOT and Sawyer had
violated article I, section 3 of the Texas Constitution and section 21.051 of the Texas
Labor Code. See Tex. Const. art. I, § 3a (prohibiting the abridgment of an
individual’s rights based on a person’s sex, race, color, creed or national origin);
Tex. Labor Code Ann. § 21.051 (West 2015) (prohibiting discrimination based on
race, color, disability, religion, sex, age or national origin). In addition to her claims
for monetary relief, Granger included claims for injunctive relief, asking that the
trial court reinstate her to her former position in the maintenance department and
enjoin TXDOT and Sawyer from violating her constitutional rights. According to
Granger’s Original Petition, she filed suit within sixty days of receiving a right to
sue letter from the Commission. See Tex. Labor Code Ann. § 21.254 (West 2015)
3 (creating a sixty-day deadline for filing a civil action after receiving a right to sue
letter).2
After TXDOT and Sawyer answered Granger’s suit, they filed a combined
plea to the jurisdiction and motion for summary judgment.3 In their combined plea,
2 Granger amended her pleadings twice before the trial court dismissed her case. Granger’s Third Amended Petition is her live pleading for the purposes of this appeal. In addition to Granger’s sexual-discrimination claims, she added a disparate pay and a disparate treatment claim. As to these two claims, Granger alleged that she had worked for TXDOT for sixteen years, and that while working for TXDOT, she was treated differently and paid differently than men holding similar jobs. While the formal charge Granger filed with the Commission fails to mention her disparate pay or disparate treatment claims, her live pleading alleges that she exhausted her administrative remedies on these claims before filing suit. 3 TXDOT and Sawyer attached several exhibits to their joint motion: (1) the affidavit of Angela Pratt, a TXDOT Human Resources specialist; (2) excerpts from Granger’s deposition; (3) the charge of discrimination that Granger filed with the Texas Workforce Commission, Civil Rights Division; (4) a copy of TXDOT’s policy on using the Department’s property; (5) a memo, signed by Granger in 2002, outlining the guidelines for the Department’s policy on the conduct of Department employees; (6) the affidavit of Randall Redmond, the district engineer who had supervisory responsibility over the TXDOT employees involved in the decision to terminate Granger’s employment, which addresses why Granger was terminated; (7) an illegible copy of a TXDOT daily activity report for October 14, 2010; (8) TXDOT records addressing an internal audit into a reported October 2010 theft of TXDOT property; (9) the affidavit of Patrick Ryan, Director of Construction for TXDOT, indicating that based on TXDOT’s investigation he agreed with the decision of his supervisor, Randall Redmond, to terminate Granger’s employment; (10) the affidavit of Henry Sawyer, the maintenance supervisor responsible for managing the activities of the Woodville office, which reveals that in October 2010, he learned that Granger had refused to tell another TXDOT employee what she was planning to do with a dump truck that Granger and another employee were loading with scrap metal; and (11) the affidavit of Lori Morgan, a TXDOT Human Resources 4 TXDOT and Sawyer alleged that Granger had exhausted her administrative remedies
solely on her sexual-discrimination-termination claim. According to TXDOT and
Sawyer, the formal charge Granger filed with the Commission alleges a single claim,
not multiple claims based on a course of conduct that occurred during Granger’s
career with TXDOT.
Unlike most of Granger’s claims, which TXDOT and Sawyer challenged on
procedural grounds, TXDOT’s and Sawyer’s combined plea addressed Granger’s
sexual-discrimination-termination claim on its merits. In response to Granger’s
claims that fact issues exist on whether she was fired on the basis of her sex, TXDOT
and Sawyer argued that Granger provided the trial court with no evidence supporting
her claim. On appeal, TXDOT and Sawyer conclude that TXDOT’s decision to
terminate Granger resulted from Granger’s action violating TXDOT’s written
policies prohibiting employees from taking State property for personal use.
TXDOT and Sawyer also challenged Granger’s claim that she was disciplined
more severely than similarly situated males. They provided evidence showing that
the three male employees, who Granger claimed were treated more favorably than
Specialist, who stated that Randall Redmond is the person who decided to fire Granger after TXDOT’s auditor sent him a report revealing that Granger had misused property owned by the State.
5 she was treated, did not hold a position or engage in conduct similar to hers. For
example, the two male employees who Granger pointed to as men holding jobs
similar to hers were not supervised by the same TXDOT District Engineer
responsible for approving TXDOT’s recommendation to fire Granger. The third
male employee, who Granger claimed took TXDOT’s property, did so at Granger’s
direction, had worked for TXDOT for less than two years, and was not fired because
TXDOT did not have any evidence to show that he took the property for his personal
use.
Last, TXDOT’s and Sawyer’s combined plea addressed why Granger was not
entitled to receive equitable relief. According to TXDOT and Sawyer, Granger failed
to show that she was terminated after engaging in any constitutionally protected
speech.
Granger responded to TXDOT’s and Sawyer’s combined plea, 4 and she
admitted in her response that she was not asserting any claim alleging that TXDOT
4 In support of her response, Granger submitted these documents: (1) her Third Amended Petition; (2) her deposition; (3) the formal charge that she filed with the Texas Workforce Commission, Civil Rights Division; (4) excerpts from her diary; (5) affidavits that she signed; (6) the deposition of a TXDOT construction inspector, Brad Murray; (7) the deposition of Henry Sawyer; (8) the affidavit of a former TXDOT employee, Derek Gray; and (9) the affidavit of another former TXDOT employee, Lynn Clow. TXDOT and Sawyer objected to many of the exhibits Granger submitted with her response. When the trial court dismissed the suit, the order of dismissal includes language granting all the objections that the defendants 6 and Sawyer had discriminated against her based on her age or her race. Instead,
Granger suggested that TXDOT and Sawyer, as shown by the evidence that she
included with her response, had violated the Texas Labor Code by discriminating
against her based on her sex. Granger concluded that based on the evidence she
presented, her claims should not be dismissed.
Granger also addressed TXDOT’s and Sawyer’s claim that she had failed to
exhaust her administrative remedies on her claims. According to Granger, she was
not required to allege in the charge she filed with the Commission that TXDOT paid
or treated her differently than men because had TXDOT properly investigated her
claims, it would have uncovered all the claims she advanced after filing suit. We
note that Granger, when responding to TXDOT’s and Sawyer’s arguments, never
argued that she did not take TXDOT’s property for personal use. Instead, Granger
claims that she was treated more severely than male employees who engaged in
made to the exhibits Granger used to support her response. In this appeal, Granger failed to challenge any of the trial court’s rulings granting the defendants’ objections to her exhibits. We presume the trial court ruled properly on the various objections to Granger’s exhibits, as “an appellate court cannot reverse a trial court’s judgment absent properly assigned error.” See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998). Because the trial court left these rulings unchallenged, we presume they were correct, so the evidence that was the subject of the defendants’ objections has been excluded from the evidence we have considered in reviewing Granger’s appeal. Id.
7 similar conduct because the men she pointed to as the men who engaged in similar
conduct were not fired. After considering the combined plea and Granger’s response,
the trial court granted TXDOT’s and Sawyer’s combined plea.
Standard of Review
“A jurisdictional plea may challenge the pleadings, the existence of
jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 770 (Tex. 2018). When a governmental entity and its employees file pleas to
the jurisdiction which challenge the existence of jurisdictional facts and the pleas are
supported with evidence, the standard of review used to review the ruling the trial
court made on the pleas mirrors the standard used in reviewing rulings that trial
courts make on traditional motions for summary judgment. Id. at 771. “[I]f the
plaintiffs’ factual allegations are challenged with supporting evidence necessary to
consideration of the plea to the jurisdiction, to avoid dismissal [the plaintiff] must
raise at least a genuine issue of material fact to overcome the challenge to the trial
court’s subject matter jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 221 (Tex. 2004).
“A defendant who conclusively negates at least one of the essential elements
of a cause of action or conclusively establishes an affirmative defense is entitled to
summary judgment.” Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.
8 2010). In our de novo review of the trial court’s ruling, we take as true all evidence
favorable to the nonmovant, indulging in every reasonable inference and doubt that
favors the nonmovant. See Miranda, 133 S.W.3d at 228 (explaining the standard as
it applies to a plea to the jurisdiction); see also Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (explaining the standard as it applies to a
traditional motion for summary judgment). In conducting our review, 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.”
Clark, 544 S.W.3d at 771. “In reviewing whether a summary judgment was properly
granted, we may not consider struck portions of the record because that evidence is
not a part of the summary judgment record.” McCollum v. Bank of N.Y. Mellon Trust
Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.); see also Trudy’s Tex.
Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no
pet.).
Analysis
In the sole issue Granger raises in her brief, she argues the trial court should
have denied TXDOT’s and Sawyer’s combined plea to the jurisdiction and motion
9 for summary judgment.5 According to Granger, the evidence the trial court
considered reveals that genuine issues of material fact must be resolved by a jury to
determine whether the defendants discriminated against her in ways that violated the
Texas Labor Code. See Tex. Labor Code Ann. §§ 21.051, 21.055 (West 2015).
Granger argues that the Labor Code waives a governmental entity’s and its
employee’s right to rely on immunity to avoid a trial on claims for sexual harassment
and retaliation. That said, we note that the waiver of immunity the Labor Code
provides applies “only when the plaintiff states a claim for conduct that actually
violates the statute.” Clark, 544 S.W.3d at 770.
In Granger’s case, TXDOT and Sawyer attached evidence to their combined
plea. When the plea to the jurisdiction requires the trial court to consider evidence,
and the evidence shows that the decisions affecting the employee “occurred for
legitimate, nondiscriminatory and non-retaliatory reasons, the burden of proof shifts
to the plaintiff to show that ‘a disputed material fact regarding the jurisdictional
issue’ exists.” Jefferson Cty. v. Jackson, 557 S.W.3d 659, 669 (Tex. App.—
5 On appeal, Granger argues that under the Texas Labor Code, she is entitled to injunctive relief. Granger, however, has not complained about the trial court’s ruling dismissing her constitutionally based claims for injunctive relief under article I, section 3 of the Texas Constitution. Thus, Granger waived any complaints about the trial court’s resolution of those claims because she failed to present any argument challenging that part of the trial court’s ruling in her brief. See Tex. R. App. P. 47.1; see also Pat Baker Co., 971 S.W.2d at 450. 10 Beaumont 2018, no pet.) (quoting Miranda, 133 S.W.3d at 228). We conclude that
TXDOT’s and Sawyer’s evidence shifted the burden of proof to Granger because
their evidence shows that she was terminated for a legitimate, nondiscriminatory and
non-retaliatory reason—violating TXDOT’s written policy prohibiting employees
from taking the State’s property for personal use.
To overcome TXDOT’s and Sawyer’s evidence, Granger must show that her
sex served as a “but for” cause of TXDOT’s decision to fire her. See Clark, 544
S.W.3d at 782 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973)). Additionally, TXDOT and Sawyer produced evidence showing that
Granger failed to exhaust her administrative remedies on each of her claims except
for her claim alleging that she was fired based on her sex—the only claim that
Granger included in the formal charge of discrimination that she filed with the
Commission.
Before addressing Granger’s sexual-discrimination-termination claim, we
address Granger’s arguments alleging that she was not required to exhaust her
administrative remedies on her other claims seeking damages. A claimant who sues
a governmental entity for unlawful discrimination must exhaust her administrative
remedies, as failing to do so deprives a trial court of jurisdiction to hear the case. See
11 Jackson, 557 S.W.3d at 673; Free v. Granite Publications, L.L.C., 555 S.W.3d 376,
379 (Tex. App.—Austin 2018, no pet.).
To overcome TXDOT’s and Sawyer’s claims that Granger failed to exhaust
her administrative remedies, Granger needed to establish that she filed her various
claims with the Texas Workforce Commission 6 not less than 180 days after the
various unlawful employment practices occurred. See Tex. Lab. Code Ann. § 21.202
(West 2015). Generally, under the requirements that apply to unlawful
discrimination claims, governmental employees may not sue without first
exhausting their administrative remedies. See Prairie View A & M Univ. v. Chatha,
381 S.W.3d 500, 513 (Tex. 2012) (explaining that a claimant cannot sue a
governmental employer for unlawful discrimination under the Labor Code without
complying with the administrative requirements that are in the statute); Tex. Gov’t
Code Ann. § 311.034 (West 2013) (providing that “[s]tatutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against
6 We note the Texas Workforce Commission authorizes individuals claiming that their employers subjected them to unlawful employment practices to file formal charges on their claims with “an EEOC office.” 40 Tex. Admin. Code § 819.41(c) (Westlaw through 43 Tex. Reg. No. 7494) (Tex. Workforce Comm’n, Equal Emp’t Opportunity Complaints & Appeals Process). Relying on this administrative regulation, the Texas Supreme Court has suggested that “[a] claimant may file a complaint with either the EEOC, the federal agency authorized to investigate charges of discrimination, or the [Texas Workforce Commission], the Texas equivalent.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 504 n.4 (Tex. 2012). 12 a governmental entity”). Thus, to obtain the right to sue a governmental employer
for an unlawful employment practice, the plaintiff must file a formal charge
complaining about the practice before suing a governmental employer who,
otherwise, is immune from suit. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 637 (Tex. 2012).
According to TXDOT and Sawyer, Granger’s wrongful termination claim
asserts a single claim of discriminatory conduct involving TXDOT’s decision to fire
her. Relying on the language in the formal charge that Granger filed with the
Commission, TXDOT and Sawyer argue that the charge does not raise multiple
discrimination claims based on conduct that allegedly occurred over the course of
Granger’s career at TXDOT.
In evaluating the claims covered by the charge she filed with the Texas
Workforce Commission, we look to the information the Labor Code requires
claimants to include in their formal charge. Section 21.201(c) requires the formal
charge to state:
• that an unlawful employment practice has been committed;
• the facts on which the complaint is based, including the date, place, and circumstances of the alleged unlawful employment practice; and
• facts sufficient to enable the commission to identify the respondent.
13 Tex. Labor Code Ann. § 21.201(c) (West 2015). 7 Explaining the crux of the
information that a claimant should include in a formal charge of discrimination filed
with the Equal Employment Opportunity Commission, a federal appellate court
stated: “The crucial element of a charge of discrimination is the factual statement
contained therein.” Preston v. Tex. Dep’t of Family & Protective Servs., 222 F.
App’x 353, 357 (5th Cir. 2007) (per curiam). Granger’s factual statement claims she
was discriminated against by being fired, but it does not allege she was discriminated
against in any other ways while working for TXDOT.
Granger argues that had TXDOT adequately investigated her complaint, it
would have learned the facts surrounding all her claims. She admits, however, that
her various claims occurred over a variety of dates that are unrelated to the dates
relevant to her discharge. Granger checked a box on the formal charge indicating
that she was claiming that TXDOT had discriminated against her based on her sex,
but she left the other boxes on the form unchecked, including a box indicating that
7 During the administrative proceedings, a claimant is entitled to amend her formal charge to allege additional facts about the alleged unlawful employment practices that relate to the employee’s complaint, and the dates related to the facts in the charge, as amended, relate back to the date the employee filed her original charge. Tex. Lab. Code Ann. § 21.201(f) (West 2015). Nothing in the appellate record, however, suggests that Granger amended the original charge she filed with the Commission.
14 she was asserting a retaliation claim. Granger also failed to check another box on the
form indicating that she was claiming the defendants had engaged in a continuous
course of discriminating against her based on her sex.
We conclude that Granger’s formal charge contains a single complaint
focused on her termination for taking pipe from TXDOT’s yard when men who
engaged in what she claims constitutes similar conduct were not discharged.8
Therefore, the factual statement in Granger’s charge required TXDOT to investigate
whether Granger took pipe from TXDOT’s yard for personal use and to investigate
whether Granger was disciplined more harshly than others who she claimed
committed similar acts. Based on the facts alleged in the charge Granger filed with
the Commission, the Commission was not required to investigate any alleged
8 Granger’s formal charge of discrimination states:
I. On October 27, 2010, I was terminated from my position with the [TXDOT]. [TXDOT] employs more than 15 employees and is covered by Title VII of the Civil Rights Act of 1964, as amended.
II. The reason given for my termination was that I misused state property when I removed scrap metal from the trash for personal use. I know of two male employees who also committed the same act and neither of them were terminated.
III. I believe I was subjected to discrimination due to my gender, female, in violation of Title VII of the Civil Rights Act of 1964, as amended.
15 disparate pay and disparate treatment claims spanning Granger’s sixteen-year career
at TXDOT. See Bexar Cty. v. Gant, 70 S.W.3d 289, 293 (Tex. App.—San Antonio
2002, pet. denied) (holding that an employee failed to exhaust his remedies on claims
he failed to include in the formal charge that he filed with the Texas Commission on
Human Rights). Except for Granger’s sexual-discrimination-termination claim, we
conclude that Granger failed to exhaust her administrative remedies before filing
suit. As a result, the trial court did not have jurisdiction over Granger’s unexhausted
claims. See Jackson, 557 S.W.3d at 673; Free, 555 S.W.3d at 379.
Next, we address the parties’ main arguments, which focus on whether
TXDOT fired Granger based on her sex. TXDOT and Sawyer do not argue that
Granger failed to properly exhaust her administrative remedies on that claim. To
show that TXDOT disciplined Granger more severely than it disciplined male
employees who took State property for their personal use, Granger was required to
produce evidence showing that her misconduct was nearly identical to the conduct
engaged in by male employees the company chose to retain. See Ysleta Indep. Sch.
Dist. v. Monarrez, 177 S.W.3d 915, 918 (Tex. 2005).
In her brief, Granger relies on evidence the trial court struck before
considering whether her sexual-discrimination-termination claim had merit. In her
appeal, Granger failed to challenge the trial court’s rulings striking the evidence she
16 used to support the arguments she relies on in her brief. Thus, the evidence the trial
court struck cannot be considered in resolving Granger’s appeal. See McCollum, 481
S.W.3d at 362; Trudy’s Tex. Star, Inc., 307 S.W.3d at 898 n.2.
Without the benefit of the evidence that the trial court excluded, the evidence
the defendants presented shows that the male employees Granger pointed to did not
engage in conduct that is identical or nearly identical to hers. See Monarrez, 177
S.W.3d at 917. Therefore, we conclude the trial court did not err by dismissing
Granger’s sexual-discrimination-termination claim. Having concluded that Granger
failed to state a claim that TXDOT or Sawyer actually violated the Texas Labor
Code, we hold that the trial court properly dismissed her case.
Conclusion
Because Granger failed to meet her burden of proof to show that fact issues
existed justifying a trial on her claims, we overrule Granger’s sole issue and affirm
the trial court’s judgment.
AFFIRMED.
________________________________ HOLLIS HORTON Justice Submitted on July 24, 2018 Opinion Delivered December 20, 2018
Before McKeithen, C.J., Kreger and Horton, JJ.