Jones v. Tex. Dep't of Pub. Safety

Decision Date03 February 2022
Docket Number03-20-00615-CV
PartiesPatsy Jones, Appellant v. Texas Department of Public Safety, Appellee
CourtCourt of Appeals of Texas

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-15-005182, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Jones [*]

MEMORANDUM OPINION

J WOODFIN JONES, JUSTICE

DPS Trooper Patsy Jones sued the Texas Department of Public Safety for violations of the Texas Commission on Human Rights Act (TCHRA) based on religious discrimination, disability discrimination (including failure to accommodate), race discrimination, and retaliation.[1] The DPS filed a combined plea to the jurisdiction and motion for summary judgment asserting that the court lacked jurisdiction because Jones had not shown a waiver of sovereign immunity. The trial court granted the DPS's plea and motion and dismissed the case for lack of jurisdiction. Jones perfected this appeal from the dismissal of her claims of disability discrimination (including failure to accommodate) and retaliation.[2] We affirm.

Factual and Procedural Background

Trooper Patsy Jones was assigned to the Capitol Detail of the Department of Public Safety. On October 7, 2013, Jones sent an email to her superiors complaining that she was being harassed by three co-workers who were part of her shift at the Capitol Detail. At that time Jones was assigned to the "A-Shift," which was on duty from 6:00 a.m. to 2:00 p.m. The email contained several complaints, including that these co-workers gossiped about her private life and speculated openly about her having a romantic relationship with another trooper; accused her of abusing sick leave never volunteering for anything, and never talking to anyone; called her "weird" and "crazy"; and teased her about her religion (Christianity), or more specifically about the way she practiced her religion.[3]

With respect to her religion, Jones's email described that before the beginning of her shift she would often read her Bible or book of devotional readings. She stated that one of her co-workers would sometimes tease her about it, saying "God bless you" or "God bless them" and making the sign of the cross in front of her, while two other troopers encouraged this behavior.

In describing the effect her co-workers' gossiping had on her, Jones's email stated:

My nerves were out of control. I couldn't control my thought[s] on how these people continue to slander my name and discuss my personal life. I was getting these sharp headaches from the back of my head, tight intense pains in my shoulders, and my stomach unsettled. My heart, chest area had got tighten [sic].

Jones's email closed with the following:

I need help, I'm tired, and I'm perplexed. I'm the victim, for no reason whatsoever. Therefore, I request professional attention to help me understand how to mentally and emotionally deal with the unprofessional and prohibit [sic] conduct[] I had to endure. So, I can perform my job duties according to the department policies.

Chapter 18.25 of the DPS's General Manual contains DPS policies prohibiting "Discrimination, Sexual Harassment, and Unprofessional Conduct." The DPS considered Jones's October 7, 2013 email to be an "18.25 complaint."

One of the recipients of Jones's October 7 email was Capt. George Scheer. Within a day or two after Jones sent the email, Scheer met with her to discuss her complaints. During that meeting Jones began to cry, prompting Scheer to ask if she wanted to meet with the Department's chief staff psychologist, Dr. Frances Douglas. Jones agreed and met with Douglas the same day. Jones did not consider the meeting productive.

Scheer forwarded Jones's email to the DPS's Equal Employment Opportunity (EEO) officer, Nathaniel Haddox, "for any possible EEO policy violations." Within a short time Haddox and Scheer both concluded that the religion portion of the email did not describe a discrimination issue but a "bullying issue." Haddox indicated that he was "closing out the EEO case as 'referred to management' to handle." Scheer filled out an "18.25 Report Form" in which he noted that

This appears to be gossip in the work[place] and should probably fall under the department courtesy policy. A meeting would be facilitated with the employees in the sergeant area to explain the policy, provide employee expectations, consequences, and examples of possible policy violations.

On October 14 a meeting was held at which all the troopers on the A-Shift were required to sign-or re-sign-the DPS's courtesy policy. Jones later reported that the religious bullying stopped around this time.

On October 21 Jones was interviewed by Lt. Tyler Harpole regarding an unrelated race-discrimination complaint filed by another trooper. (Jones was not the accused in that complaint.) During that interview Jones again brought up the issues she had addressed in her October 7 email and told Harpole that she thought the biggest problem at her shift was "unprofessional and prohibited conduct, gossiping, and slandering her name, always talking about people's personal business." Before and during the interview, Harpole noticed that Jones seemed "almost asleep" and was "slow to answer my questions and seemed to struggle to speak," so he sent her home for the rest of the day.

Two days later, on October 23, Jones had a conversation with her supervisor, Sgt. Todd Ashby, during which Ashby criticized her for leaving work early on the 21st. Jones said she "considered Ashby's tone and attitude towards me in the meeting to be hostile." Based on Ashby's criticism, on November 6 Jones filed a formal 18.25 complaint accusing him of race and sex discrimination as well as harassment through "unwanted criticism of one's job performance or work habits." On November 8 EEO officer Haddox notified Jones that this complaint was insufficient.

Meanwhile, on October 28 Jones met with a private psychologist of her own choosing, Dr. Abigail McNeely. On October 31 the DPS received a letter from McNeely stating:

Trooper Patsy Jones is under my care for acute stress and was directed to take the week off for medical care. Please allow her to return to work on November 4th, 2013.

The DPS granted the requested leave.

Around that same time Jones formally requested a "dispute resolution process," beginning with a meeting with her higher-level supervisor, Maj. Raul Vargas, to discuss the problems she was encountering. They met November 5, the day after Jones returned to work from her week off. Vargas's November 19 report of the meeting summarized Jones's complaint about the gossip and bullying that was affecting her. The report stated: "She was advised that personal supervisory visits are planned with those involved to reiterate the Department's Courtesy, Harassment and Hostile Work Environment policies, as well as area facilitation if needed." Jones later checked a box on the form that stated, "I am not satisfied with the outcome at this level and wish to meet with the next level in my chain of command."

On November 20 Jones and Ashby had a conversation in which Ashby allegedly criticized her for failing to call him over the previous weekend to let him know she would be out sick the following week. Jones later stated that Ashby also said during this meeting that he knew Jones did not like him, and that he asked her if she had considered transferring. Jones left that meeting "despondent" and immediately went to the office of her personal psychologist, Dr. McNeely. That same day McNeely sent the DPS a letter stating:

Trooper Patsy Jones is under my care for acute stress which is not resolving. I recommend that she take an extended leave of absence for the next six weeks, November 20th, 2013 through January 3rd, 2014. During that time, Ms. Jones will continue to see her Primary Care Physician and myself to address her ongoing medical and mental health issues.

The DPS also granted this requested leave, under the Family and Medical Leave Act (FMLA). See 29 U.S.C. § 2601(a)(1).

Prior to Jones's returning to work on January 7, 2014, Sgt. Ashby contacted her November 22 about three upcoming physical readiness tests she needed to take. Jones informed him that she was not allowed to conduct any DPS business, including taking the physical readiness tests, while she was on FMLA leave. On December 3 Ashby sent an interoffice memorandum to Capt. Scheer requesting that, due to the FMLA leave, "Trooper Jones be exempt from the physical readiness testing (PRT) requirements this cycle." Scheer and Lt. Glen Lester signed their approval to this request. Before sending the memorandum on to Regional Commander Jose Ortiz, Maj. Vargas hand wrote the following note to Ortiz:

Commander, I would concur with this request as Patsy has taken FMLA leave and can not be contacted. She has not shown a problem in her ability to complete this requirement, only a scheduling issue. She should be able to test and pass upon returning to work.

Ortiz also signed his approval on the memorandum.

On November 22 Jones requested a meeting with her next-in-line supervisor, Commander Ortiz, but due to her six-week FMLA leave that meeting did not take place until January 13, 2014. Ortiz's February 5, 2014 report of that meeting stated:

This office is recommending a formal facilitation through the Office of Ombudsman to assist Troopers and Supervisors assigned to the [Capitol Complex] and to address communication challenges. This recommendation is based on information received during my meeting with Trooper Patsy Jones, and other administrative factors, to include the conclusion of a formal 18.25 complaint where these matters were addressed.

On the form containing Ortiz's summary, Jones again checked the box...

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