COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00003-CV
WANDA ESKER APPELLANT
V.
CITY OF DENTON, TEXAS APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 14-00942-158
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MEMORANDUM OPINION1
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Appellant Wanda Esker appeals from the trial court’s order granting the
plea to the jurisdiction and motion for summary judgment filed by appellee City of
Denton, Texas (the City). Esker argues that because she raised a genuine issue
of material fact as to whether the City terminated her employment in retaliation
1 See Tex. R. App. P. 47.4. for her reports of sexual harassment by a co-worker, the City was entitled to
neither immunity nor summary judgment. We conclude that Esker failed to raise
a disputed material fact regarding the City’s plea and, accordingly, affirm the trial
court’s order granting the plea and dismissing Esker’s claims.
I. BACKGROUND
A. ESKER’S EMPLOYMENT AND TERMINATION
Esker was employed by the City as a Senior Duty Officer in the City’s
police department (the department). Esker’s duty station was the front desk in
the department’s lobby, and she supervised five other duty officers. Her job
involved answering nonemergency calls, assisting people who came to the
department, and ensuring that the front desk was staffed at all times.
In May 2006, Esker was counseled for reporting to work late and in
November 2006, she was placed on a performance-improvement plan for
“continual tardiness.” Also in 2006, Esker reported to the City’s human-
resources department (HR) that a supervisor had “gotten overly angry at her at
work.” Almost immediately after she made that report, the Chief of Police at that
time, Charles Wiley, allegedly berated Esker for making the report and told her
that she “would be watched.” But in May 2011, Esker’s annual “Performance
Feedback” noted that she displayed “leading performance,” the highest level of
expectation, in her work habits: “Wanda demonstrates attendance and
punctuality to work assignments (e.g., on time to work and meetings). She
2 regularly attends work and taking off only as needed to accommodate childcare
scheduling.”
In mid-December 2011, Esker again approached HR and reported to Kelly
Butler that she was “having problems with a coworker,” who she alleged was
sending her inappropriate text messages and had tried to kiss her. Because of
her 2006 experience and “concern over potential repercussions from the Police
Department,” Esker refused to give any details and, in fact, did not disclose the
name of the co-worker who sent the messages. Esker merely wanted to “know
what [her] rights were.” As such, Butler told her that he needed more information
in order to help.
Meanwhile, on December 12, 2011, a police officer saw Esker “taking a toy
from a toy drive donation bin and stashing it behind her duty desk.” This
allegation caused Lieutenant David Hildebrand, Esker’s direct supervisor, to
begin monitoring the video surveillance of Esker’s desk. Because of interviews
Hildebrand conducted “during this time period,” Esker was aware of the
investigation into her conduct. Hildebrand’s investigation ultimately revealed that
“Esker was leaving her work area without supervisory clearance and without
proper documentation of her time records.” In a two week period—December 10
to December 23—“Esker claimed [on her time sheets] 15½ hours worked, when
she was not present.” The investigation also showed that if Esker had accurately
reported her time during that period, she would have accrued insufficient time in
3 order to take her scheduled vacation, which occurred over the Christmas
holidays.2
On January 10, 2012, Hildebrand questioned Esker about the time
discrepancies between her time sheets and the video. Esker told Hildebrand that
it was “an honest mistake.” The next day—January 11—Hildebrand informed
Esker “that there was an investigation and not to talk to anyone about what was
discussed at [their prior] meeting.” Esker believed that Hildebrand’s questioning
“was in retaliation for [her] going to HR [in December 2011].” On January 13 at
2:16 p.m., Esker informed Hildebrand that she had “stayed over 2 days this
week” and, therefore, would be leaving at 4:00 p.m. that day. Hildebrand
responded at 2:58 p.m., asking Esker to meet with him to discuss her schedule
and “what is expected regarding that schedule.”
That same day—January 13—Esker again reported the alleged sexual
harassment to Butler and another HR employee, Carri Byrd. Esker was
“reluctant” to give details and did not reveal the name of her harasser or show
them the texts, stating that she would “think about” giving more information and
then “get back with [Byrd].” Esker also mentioned to Byrd that she had “concerns
with the people in the department, like her supervisors and stuff, how they were
treating her.” Byrd then reported to the HR director that Esker had “mentioned”
that she had been harassed but that she had failed to “give . . . any specific
2 As a result of his investigation, Hildebrand ultimately proposed that Esker’s employment be terminated. 4 information.” At the director’s instruction to “follow-up” with Esker, Byrd called
Esker at work to get more information, but Esker told her that she was not
“comfortable talking on a recorded line within earshot of my co-workers” and
asked Byrd to call back later.3 No follow-up occurred; therefore, Byrd sent Esker
a certified letter on February 6, stating that more information was needed to
proceed with an investigation and that the matter would be “closed” if Esker did
not give more details by February 13.4 In the letter Byrd reminded Esker that she
had “not share[d] any specific information . . . and [was] uncertain about bringing
a complaint forward.” Esker did not respond to the letter, and Byrd did not report
Esker’s unspecific allegations to the department.
On January 26, Hildebrand gave Esker a “memo,” which Esker signed, that
stated she could not adjust her schedule “in any way” from her scheduled work
hours. After Esker took two days off on February 13 and 14 to deal with an
“emergency involving a pet at [her] property,” Hildebrand verbally warned her on
February 15 that she had not followed the correct procedure for requesting the
time off. Between February 16 and 17, Hildebrand and Esker had an email
exchange in which Hildebrand questioned her recent schedule changes and
Esker responded that she “want[ed] the same treatment . . . as the other Duty
Officers.”
Byrd stated that Esker confirmed she would “come down and talk . . . in a 3
few days,” but that Esker never did. 4 Esker denied receiving this letter.
5 On February 20, Captain Scott Fletcher5 sent a memorandum to Esker,
notifying her that the department had ended its investigation into her conduct on
December 12 through December 23 and that the allegations regarding
“Processing Property and Evidence” and “Departmental Reports” had been
sustained. The memorandum informed her that the current Chief of Police, Lee
Howell, would make the final decision regarding the appropriate disciplinary
action and that she had the option to meet with him. In a separate memorandum
dated that same day, Fletcher notified Esker that she had been placed on
administrative leave with pay. Esker signed this memorandum, acknowledging
that she had received it on February 20.
On February 22, Esker was formally notified that Howell had “decided that
termination was in order for this offense[, i.e., falsification of time records].” The
notice of the termination decision, which Esker signed acknowledging receipt,
had a section allowing her to “Comment[]” or “Rebut[]” the allegations. Esker did
not add any comments. As mentioned as an option in Fletcher’s February 20
memorandum, Esker then met with Howell “to discuss her termination, as well as
a number of other operational complaints.” She admittedly did not mention her
sexual-harassment allegations to Howell. Esker administratively appealed the
5 Apparently, Fletcher was also one of Esker’s supervisors.
6 decision as allowed by the City’s policies to no avail.6 In her administrative
appeal, Esker did not mention her sexual-harassment allegations.
B. CHARGE OF DISCRIMINATION AND LAWSUIT
On June 21, 2012—four months after she was terminated and almost three
months after her administrative appeal concluded—Esker submitted a sworn
charge of discrimination to the Equal Employment Opportunity Commission
(EEOC), indicating on the form that her termination was discriminatory because it
was retaliatory and because it was based on her sex. However, the substance of
her charge focused on the retaliation allegation:
I complained to HR in mid-December 2011 about various sexually inappropriate comments and touches made by a Public Information Officer co-worker. I complained again on Jan. 13. I was put on administrative leave on Feb. 20, 2012, and then fired two days later. The Denton Police Department has violated my employment rights, both the Texas Labor Code, and Title VII of the Civil Rights Act of 1964.
See Tex. Lab. Code Ann. §§ 21.051, 21.055, 21.201 (West 2015); accord
42 U.S.C.A. § 2000e-3(a) (West 2012). During the EEOC’s ensuing
investigation, Esker revealed the name of her alleged harasser, admittedly for the
first time, and the substance of his texts. See Tex. Lab. Code Ann. § 21.204
(West 2015). The City responded to the charge and urged the EEOC to dismiss
6 Both the City and Esker alternately argue that Esker’s termination was based on the toy drive and the time discrepancies or on the time discrepancies alone. Although Howell averred in his affidavit that the toy drive was the catalyst for Hildebrand’s investigation, Howell’s decision to terminate Esker’s employment was based solely on the time discrepancies revealed by the investigation.
7 it. The EEOC notified Esker on December 16, 2013, that it was “terminating its
processing of this charge” and that she had the right to bring a private civil suit.
See id. §§ 21.208, 21.252 (West 2015).
On February 12, 2014, Esker filed a petition in state court, arguing that her
termination had been discriminatory and violated the Texas Commission on
Human Rights Act (the TCHRA) because it had been based on “her complaints
of sexual harassment in the workplace.”7 In the petition, Esker again identified
her alleged harasser by name. The City filed a plea to the jurisdiction and
alternative motion for summary judgment, arguing that because Esker had failed
to allege a prima facie charge of discrimination within the scope of the TCHRA, it
was immune from suit or, alternatively, entitled to judgment as a matter of law.
The City’s plea and motion were based mainly on its contentions that the
decisionmakers involved in her termination never learned of Esker’s sexual-
harassment complaints before she filed her charge of discrimination with the
EEOC.
On November 18, 2016, the trial court granted the City’s plea to the
jurisdiction, granted its motion for summary judgment, and dismissed Esker’s
suit. Esker now appeals and argues in two issues that the trial court erred by
granting the plea and the summary-judgment motion because the City’s
7 Esker did not allege that her termination was discriminatory because it had been based on her sex as she had indicated in her charge of discrimination.
8 governmental immunity was waived by the TCHRA and because she raised a
genuine issue of material fact regarding but-for causation.
II. STANDARD OF REVIEW
Subject-matter jurisdiction is properly raised in a plea to the jurisdiction,
and we review a trial court’s determination of the issue de novo as a question of
law. See Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002). A plea to the jurisdiction may challenge whether the plaintiff’s
pleadings affirmatively allege facts showing the court’s jurisdiction and may also
challenge the existence of jurisdictional facts to support the pleadings. See
Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
Where the plea challenges the existence of jurisdictional facts, the trial
court may consider the evidence submitted by the parties to resolve the issue
“even if that evidence ‘implicates both the subject-matter jurisdiction of the court
and the merits of the case.’” Id. (quoting Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). As such, the trial court’s review
mirrors that of a traditional summary judgment:
Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction. If it does, the plaintiff is then required to show that a disputed material fact exists regarding the jurisdictional issue. If a fact issue exists, the trial court should deny the plea. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law.
Id. (footnotes omitted).
9 A suit against a governmental employer, such as the City, impacts
governmental immunity, which may be raised in a plea to the jurisdiction. See id.
at 635–36. Unless the State has consented to suit, governmental immunity will
deprive the trial court of jurisdiction over the suit. See id. at 636.
The TCHRA waives governmental immunity but only in those instances
where “the plaintiff actually alleges a violation of the TCHRA by pleading facts
that state a claim thereunder.” Id. To do so, the plaintiff first must make a prima
facie showing of each element of her retaliation claim under the TCHRA:
(1) participation in a protected activity, (2) an adverse employment action, and
(3) a causal link between the activity and the adverse action. See Cabral v.
Brennan, 853 F.3d 763, 766–67 (5th Cir. 2017);8 San Antonio Water Sys. v.
Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). Only if the plaintiff does so must the
defendant then present evidence negating one of those basic facts.9 See Garcia,
372 S.W.3d at 637.
III. APPLICATION
Esker alleged that she “complained of sexual harassment in the
workplace,” leading to her termination. In its plea and motion, the City
8 Because the TCHRA was enacted to coordinate Texas law with federal anti-discrimination law, we may look to analogous federal statutes and cases interpreting those statutes in our analysis. See In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding). 9 If the defendant does so, the plaintiff may avoid the defendant’s plea by submitting some evidence, which we take as true, to raise a fact issue as to the negated element. See Garcia, 372 S.W.3d at 637; Miranda, 133 S.W.3d at 228.
10 challenged whether Esker engaged in a protected activity and whether there was
a causal link from the alleged discrimination to her termination.10
Regarding the absence of a causal link, the City asserted that Esker failed
to show that the decisionmakers involved in her termination knew about her
sexual-harassment allegations or that her allegations to HR were a motivating
factor in the decision to terminate her employment. The City pointed to Esker’s
deposition admissions that before she was terminated, she made her sexual-
harassment allegation only to Butler and Byrd in HR—who undisputedly were not
decisionmakers in Esker’s termination—and that she never mentioned the
allegation during Hildebrand’s investigation or during her administrative appeal of
her termination.
Esker responded that she raised a fact issue regarding prima-facie
causation because her termination occurred so close in time to her conversations
with Butler and Byrd, she had received a good performance evaluation less than
a year before she was terminated, and other employees had incorrectly reported
10 On appeal, the City states that it will not concede that Esker’s termination was an adverse employment action; however, the City then contends that it “does not actively dispute that termination is serious enough to be characterized as an adverse employment action, assuming that a causal connection can be shown to protected activity.” We read this assertion to be a recognition that Esker’s termination, standing alone, was an adverse employment action for purposes of assaying her prima facie case. Indeed, there is no authority to support an argument that a termination is not an adverse employment action under the TCHRA. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Accordingly, we will not further address this element of retaliation.
11 their time but had not been fired. As evidence, she attached her 2011
performance evaluation and her unsworn declaration in which she named other
noncompliant, yet not similarly disciplined, employees and referred to her 2006
experience with reporting her supervisor to HR and the prior chief’s threats. See
generally Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (West Supp. 2016)
(governing declarations). On appeal, Esker relies on the same circumstantial
evidence to argue that she raised a fact issue on causation, preventing judgment
in the City’s favor.
Even though Esker relies on circumstantial evidence of retaliation, her
prima facie case of causation does not require her to prove that her protected
activity was the sole factor behind her termination or that she would not have
been terminated but for her protected activity. See Gee v. Principi, 289 F.3d 342,
345 (5th Cir. 2002); Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996).
But Esker still must produce some evidence of a causal link, i.e., the employment
decision and protected activity were not completely unrelated. See Ackel v. Nat’l
Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003); Medina v. Ramsey Steel Co.,
238 F.3d 674, 684 (5th Cir. 2001); Keeley v. Cisco Sys., No. Civ.A.301CV1504D,
2003 WL 21919771, at *4 (N.D. Tex. Aug. 8, 2003). To determine whether an
adverse employment action was taken as a result of retaliation at the prima facie
stage, we focus on the final decisionmaker. See Gee, 289 F.3d at 346; Long,
88 F.3d at 306–07. The plaintiff must show that the final decisionmaker was
aware of the plaintiff’s protected activity: “If an employer is unaware of an
12 employee’s protected activity at the time of the adverse employment action, the
employer plainly could not have retaliated against the employee based on that
conduct.” Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168
(5th Cir. 1999); see Ackel, 339 F.3d at 385–86.
Here, there is absolutely no evidence that Howell, the final decisionmaker,
was aware of Esker’s complaints to HR at the time the adverse employment
decision was made. Esker conceded as much in her deposition testimony and
her declaration. And there is no evidence, nor does Esker allege, that Howell
acted as a mere cat’s paw for those acting with retaliatory intent. See Long,
88 F.3d at 307. Howell stated in his affidavit that he knew nothing of Esker’s
complaints to HR:
Upon completion of the investigation . . . , Esker’s supervisor proposed a termination, which made its way up the chain of command. As the Chief, the final decision was mine, and I decided that termination was in order for this offense [i.e., improper documentation of time records]. I was the final decision maker on the termination, and Esker was terminated on February 22, 2012.
....
At the time of my final decision to terminate Esker, I had no knowledge of any prior meeting that Esker had with HR regarding any expression of concern over sexual harassment in the workplace, nor did I have any actual knowledge of such a concern. HR did not approach me with any such information prior to my decision to terminate, and I did not learn of any expression of concern until several months later, after the EEOC mailed its notification to HR in December 2012.
It was undisputed that although Esker mentioned sexual harassment to HR, she
refused to give specifics that would allow HR to begin an investigation. HR in
13 turn never reported the allegations to anyone in Esker’s supervisory chain of
command. Esker’s subjective belief that her termination was based on her
unspecific complaints to HR, which no decisionmaker was aware of, is
insufficient to meet her prima facie burden on causation. See Gollas v. Univ. of
Tex. Health Sci. Ctr. at Hous., 425 F. App’x 318, 321 (5th Cir. 2011); Collins-
Pearcy v. Mediterranean Shipping Co. (USA), 698 F. Supp. 2d 730, 763–64 (S.D.
Tex. 2010). As such, there was no disputed issue of material fact regarding
causation, an element of Esker’s prima facie case of retaliation and, thus, a
jurisdictional issue. See Gollas, 425 F. App’x at 324–26; Manning v. Chevron
Chem. Co., LLC, 332 F.3d 874, 883 n.6 (5th Cir. 2003); Chaney, 179 F.3d at
168; Cole v. City of Port Arthur, No. 1:13-CV-176, 2014 WL 3513366, at *14
(E.D. Tex. July 16, 2014); Garcia, 372 S.W.3d at 635–36.
Esker argues in her reply brief that her retaliation claim does not “stand or
fall on evidence of the knowledge of the final decision-maker” and asserts that
her prima facie case of causation may be “established via multiple
circumstances, not merely that one.” But the case she cites in support of this
statement—Crutcher v. Dallas Independent School District, 410 S.W.3d 487
(Tex. App.—Dallas 2013, no pet.)—does not so hold. Indeed, the court in
Crutcher recognized that Crutcher relied on circumstantial evidence of a causal
link to establish a prima facie case of unlawful retaliation; but the court concluded
that her circumstantial evidence could not overcome the fact that no
decisionmaker involved in the adverse employment decision had been aware of
14 Crutcher’s protected activity. See id. at 493–94, 496–97. Therefore, the court
affirmed the trial court’s summary judgment because Crutcher failed to show a
prima facie case regarding causation. See id. at 497.11
IV. CONCLUSION
Because Esker failed to make a prima facie showing of each element of
her retaliation claim, the TCHRA did not waive the City’s governmental immunity.
See Garcia, 372 S.W.3d at 635–36. Accordingly, the trial court did not err by
granting the City’s plea to the jurisdiction, and we overrule Esker’s first issue.
We need not address her second issue directed to the trial court’s alternative
grant of summary judgment. See Tex. R. App. P. 47.1. We affirm the trial court’s
order. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: October 26, 2017
11 As did the court in Crutcher, we note that even if Esker had established a prima facie case of retaliation, the City met its burden to provide substantial evidence of a legitimate, nondiscriminatory reason for its employment decision— the time-reporting discrepancies—and Esker did not raise a fact issue on pretext. See Crutcher, 410 S.W.3d at 497–98 (“The issue at the pretext stage is not whether the employer made an erroneous decision; it is whether the decision, even if incorrect, was the real reason for the employment determination.”).