Cnty. of El Paso v. Flores

• Docket Number: 08-22-00060-CV
• Decision Date: 09 March 2023
• Citation: 677 S.W.3d 31
• Parties: COUNTY OF EL PASO, Texas, Appellant, v. Michael FLORES, Appellee.
• Court: Texas Court of Appeals

677 S.W.3d 31

COUNTY OF EL PASO, Texas, Appellant,

v.Michael FLORES, Appellee.

No. 08-22-00060-CV

Court of Appeals of Texas, El Paso.

March 9, 2023

Kevin McCary, El Paso, Ian R. Kaplan, Michael Gomez, Houston, Harris County, Jo Anne Bernal, for Appellant.

Connie J. Flores, Kirk Cooper, Jessica Mendez, for Appellee.

Before Rodriguez, C.J., Soto, J., Marion, C.J.(Ret.), Marion, C.J.(Ret.)(sitting by assignment)

OPINION

LISA J. SOTO, Justice After AppelleeMichael Flores was terminated from his employment with Appellant County of El Paso, Texas (the County), Flores sued the County claiming it engaged in sex and disability discrimination and retaliation in connection with his termination.The County filed a plea to the jurisdiction, which the trial court denied.The County then filed this interlocutory appeal, arguing: (1) Flores filed his EEOC charge outside the jurisdictional 180-day deadline, and (2) Flores failed to allege sufficient jurisdictional facts to support violations of the Texas Commission on Human Rights Act (TCHRA) for each of his claims.For the following reasons, we affirm the trial court's denial of the plea as to Flores's disability-discrimination claim, and we reverse the denial of the plea as to Flores's sex-discrimination and retaliation claims and render judgment dismissing those claims.

I.FACTUAL AND PROCEDURAL BACKGROUND

A. Flores's employment history

The County hired Flores in 2004 as its Veterans Assistance (VA) Manager for the County's Community Services Department.In 2008, the County eliminated the General Assistance (GA) Manager and VA Manager positions and merged the responsibilities into one position, the GA/VA Manager position, which Flores accepted.In 2013, the County added Child Welfare Services to Flores’ position, and his title became GA/VA/Child Welfare Services Program Manager.

Flores recalled that Department DirectorRosemary Neill was his immediate supervisor from 2004 to 2014.After receiving a performance-evaluation score in the 60s during his first probationary evaluation, Neill subsequently gave Flores consistently high evaluation scores.Flores stated that he received several commendations for successfully submitting grant proposals that profited the County $3.1 million over a three-year period.Flores's final evaluation from Neill in 2014 reflected a high score and characterized him as "effectively performing [his] General Assistance funding responsibilities."At the time of this evaluation, Flores was one of five program managers in the Community Services Department, along with Irene Valenzuela, another female manager, and two male managers.The two male managers later left the department.¹According to her deposition testimony, Valenzuela became the interim director of the Community Services Department in December 2014, and became the permanent director of the Community Services Department in May 2016.

Flores stated in his affidavit that he experienced a heart attack in the fall of 2015 and took approximately sixty days of medical leave under the Family and Medical Leave Act (FMLA) from September to November 2015.After suffering the heart attack, Flores suffered from heart palpitations and gastritis on an ongoing basis.Flores claimed in his affidavit and deposition testimony that when he returned to work in early 2016, Valenzuela, who was aware of his heart attack, informed Flores that his position would be restructured since he was being "overworked."In the spring of 2016, Valenzuela announced that she would split the GA and VA programs into standalone departments and Flores would be allowed to select one of those departments and reapply for the position.At the same time, Flores claimed that Valenzuela also informed him that she would reduce his salary to reflect the starting pay for the newly structured VA manager position.Flores stated that he immediately informed a Human Resources (HR) representative that he believed Valenzuela was discriminating against him because he had recently suffered from a heart attack.The representative told Flores that Valenzuela could not reduce his salary and force him to reapply for his position, and when Flores informed Valenzuela about this conversation, he claimed that she became upset and told Flores that he"should not have gone above her head and spoken with HR."Flores moved into the VA position in October 2016.The GA program became a standalone program on October 3, 2016.

After Valenzuela became Flores's supervisor in 2016, his performance evaluation score dropped significantly.On July 28, 2016, Flores received an evaluation from Valenzuela with an overall score of 61; in that evaluation, Valenzuela noted that the pauper-burial program experienced "setbacks when [Flores] suffered a medical emergency that sidelined him for several weeks."After the spring of 2016, Flores claimed that Valenzuela also began restricting Flores's interactions with the Commissioners Court and told him that he could not serve on the board of the El Paso Coalition of the Homeless because he was taking over the VA program and she wanted to keep him in the office to check on his work.²Flores also stated that Valenzuela began treating him adversely compared to the female program managers during this time.According to Valenzuela's October 2016 investigation report discussed below, Flores had been given "numerous oral counseling sessions related to his management performance over the last two years," and Flores received a written warning in September 2016 for missing a program deadline and disregarding a directive from Valenzuela.Flores explained that after the male program managers left their positions, Valenzuela replaced the open program-manager positions exclusively with women during 2016.Flores alleged that Valenzuela made sexist comments to him, stating that "women are smarter than men and do things better"; Flores did not assert any particular dates or occasions during which Valenzuela made these comments.Flores also alleged that in June 2016, Valenzuela conducted interviews for the GA manager position in an irregular manner, claiming that she did not hire any of the finalists interviewed for the position but rather hired County employee Yvette Gonzalez because "she knew Ms. Gonzalez was going to lose her job."

According to Gonzalez, on October 6, 2016, she met with Flores to discuss her transition into Flores's former role and the status of twenty-five to forty "cremains"(cremated human remains) for which burial was pending through the County's pauper-burial program.Flores told Gonzalez that prior to burial, the County Roads and Bridges Department would dig burial plots.Gonzalez recalled Flores informing her that he would typically wait until he had approximately twenty-five cremains before requesting a plot to be dug because it was more cost-effective to do so but that he had recently experienced difficulty in contacting Roads and Bridges for the digging.Gonzalez went to the area where the cremains were stored and discovered over forty cremains stored in closets and in and on top of filing cabinets.Gonzalez immediately informed Valenzuela about the situation, and Valenzuela contacted HR.HR suggested that Valenzuela start an internal investigation into the pauper-burial program.

On October 7, 2016, Valenzuela began an investigation focused on Flores's purported mismanagement of the pauper-burial program.According to the investigation report, Flores had communicated with the funeral home to schedule the burials, but the funeral home was unresponsive to his requests.Flores also told Valenzuela that he had attempted to contact the Public Works representative for burials, but he had not received any communication from that person.When Valenzuela submitted her report on October 20, 2016, the audit of the burial program showed that there were sixteen "remains/bodies" and 148 cremains pending burial since 2011, and no burials had taken place since February 2015.Although Flores made initial attempts to coordinate the disposition of cremains at the Medical Examiner's Office, Valenzuela found that Flores's communication attempts were not timely and that he did not attempt to follow up on the disposition process.Valenzuela concluded that Flores was negligent in his handling of the pauper-burial program and recommended his immediate termination.

On October 14, 2016, during the investigation, Flores went on medical leave because his stomach issues had worsened and required treatment.Due to ongoing medical issues, Flores’ return to work date was pushed back several times, eventually to December 1, 2016.In a series of October 18, 2016 text messages, Flores told Valenzuela that he had been admitted to the hospital for additional tests, and Valenzuela ordered Flores to "please contact HR to get on FMLA for [his] condition."On November 1, 2016, Valenzuela consulted with County HR Deputy Michelle Cochrane, who told her that Flores was allowed twelve weeks of leave and that any employment-related decisions should not be made until Flores returned from FMLA leave to guard against retaliation for taking FMLA leave.Cochrane recorded in her notes that Valenzuela expressed frustration at Cochrane's advice but also expressed understanding and agreement that Flores could not be terminated at that time.On November 14, 2016, Flores went to work to submit a doctor's note and left soon thereafter because he was feeling sick.

B. Flores's termination

On November 21, 2016, Valenzuela sent Flores a certified letter stating that his employment was terminated effective immediately because he had violated the County's Personal Conduct and Affairs Policy by mismanaging the pauper-burial program.The letter further stated that if Flores had "any information to provide that would make [Valenzuela] reconsider [his] termination, please provide [it] to [Valenzuela] no later than Monday, December 1, 2016."

Flores responded in writing on December 1, 2016, contending...