Tex. Dep't of Aging & Disability Servs. v. Iredia

• Decision Date: 06 March 2014
• Docket Number: NO. 01-13-00469-CV,01-13-00469-CV
• Court: Texas Court of Appeals
• Parties: TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, Appellant v. ESTHER IREDIA, Appellee

TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, Appellant v. ESTHER IREDIA, Appellee

NO. 01-13-00469-CV

Court of Appeals For The First District of Texas

Opinion issued: March 6, 2014

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Case No. 11-DCV-189589

MEMORANDUM OPINION

The Texas Department of Aging and Disability Services ("DADS") brings this interlocutory appeal to challenge the trial court's denial of its plea to the jurisdiction on the employment discrimination claims brought by appellee EstherIredia under Chapter 21 of the Labor Code.¹ In two issues, DADS contends that the trial court's denial of the plea was error because Iredia failed to present a prima facie case of (1) gender discrimination and (2) race/national origin discrimination. We affirm in part and reverse in part.

Background

Iredia was hired by DADS in 2000 as a member of the direct care staff at the Richmond State Supported Living Care Center.² Several months after she began work, she was promoted to the position of Qualified Mental Retardation Professional ("QMRP"). Among her responsibilities was the development of progress plans for the individuals served by the center. In 2007, Kenny Sowemimo became Iredia's supervisor and, in 2010, he terminated Iredia's employment for allegedly falsifying reports.

On May 2, 2011, Iredia filed suit against DADS alleging sexual harassment and both racial discrimination and discrimination based upon her national origin. In her deposition testimony, Iredia addressed the following incidents involving Sowemimo:

• 2008—Iredia approached Sowemimo to speak to him about a patient transfer, and he said, "[y]ou skinny skeleton. You don't eat. You know, don't want you to die here," and told her to get out of his face;

• Sowemimo told another employee, in Iredia's presence, that he hated Nigerian women; when Iredia asked how he could hate Nigerian women when he had been born and raised in Nigeria and his mother and sister are Nigerian, he responded that his mother was dead and that he did not speak to his sister;

• 2009—Iredia introduced her son to Sowemimo, who asked Iredia "[d]id you eat today? You so skinny. How can this be your son?", and asked Iredia's son, "[i]s this your mom? Is this your mother?"

• When Iredia told Sowemimo that she needed to leave early to pick up a male friend from the airport, Sowemimo responded that no man would want a "skinny bone" like her, except for white people who eat leaves because they do not want to gain weight, and "that's why her husband left her";

• Whenever Sowemimo visited Iredia's office, he typically kicked the door open;

• When Sowemimo saw Iredia taking pizza to her office, he said she was taking it to her children because "they don't have food to eat";

• "There is no day . . . that I go to work or Kenny is there that Kenny will not call me names."

• In the presence of Iredia and her co-workers, Sowemimo said he did not like skinny women but that he liked "fat women,"; he described "when he's on top of a skinny wom[a]n to the extent he use[] his hand like this (indicating) on his, you know, groin area, that that hurts him when he's . . . lying on top of a skinny woman"; and

• Sowemimo constantly told Iredia that he was going to fire her before she was terminated.

In addition to these incidents, Iredia claimed that on another occasion, one of the nurses pulled Iredia's pants leg up to show visiting nursing students how skinny she was. She also testified that Sowemimo's treatment of other QMRPs was more favorable than his treatment of her, noting that they were allowed to represent the unit in his absence despite Iredia's seniority.

On April 26, 2013, DADS filed an answer and a plea to the jurisdiction. Following a hearing on May 20, 2013, the trial court signed an order denying the plea³ and DADS timely prosecuted this interlocutory appeal.⁴

Discussion

In its first and second issues, DADS contends that the trial court erred in denying its plea to the jurisdiction because Iredia failed to present a prima facie case to support her sexual harassment and racial/national origin discrimination claims. Iredia contends that the trial court properly denied DADS's plea because she presented sufficient evidence to create a fact issue regarding jurisdiction.

A. Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The plaintiff has the burden to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the jurisdiction can be utilized to challenge whether the plaintiff has met his burden of alleging jurisdictional facts, but it can also raise a challenge to the existence of jurisdictional facts. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Pleadings are construed liberally in favor of the pleader, and all factual allegations are accepted as true. See id. at 228.

A trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a traditional motion for summary judgment. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The government defendant is required to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction; once the defendant meets its burden, the plaintiff is then required to show that there is a disputed material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea to the jurisdictionand leave its resolution to the fact finder. Id. at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Garcia, 372 S.W.3d at 635. An appellate court reviewing a challenge to a trial court's subject matter jurisdiction reviews the trial court's ruling de novo. Miranda, 133 S.W.3d at 228.

B. Sovereign Immunity and Chapter 21 of the Labor Code

Sovereign immunity deprives a trial court of jurisdiction over suits in which the state or certain governmental units have been sued unless the state consents to suit. Garcia, 372 S.W.3d at 636. The Legislature has provided a limited waiver of sovereign immunity for those employment discrimination and retaliation claims falling within Chapter 21 of the Texas Labor Code. See TEX. LAB. CODE ANN. §§ 21.051(1), 21.055 (West 2006) (prohibiting unlawful employment practices by "employer"); § 21.002(8)(D) (defining "employer" to include a county, municipality, state agency, or state instrumentality). While a plaintiff must plead the elements of her statutory cause of action—in this case, the basic facts that make up the prima facie case—so that the court can determine whether she has sufficiently alleged a violation under Chapter 21, the plaintiff will only be required to submit evidence if the defendant presents evidence negating one of those basic facts. Garcia, 372 S.W.3d at 637 (citing Miranda, 133 S.W.3d at 228).

Texas courts look to federal interpretation of analogous federal statutes for guidance because an express purpose of Chapter 21 is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." TEX. LAB. CODE ANN. § 21.001(1) (West 2006); see also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Under the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26 (1973), the plaintiff must first establish a prima facie case of discrimination or retaliation. Id. at 802, 93 S. Ct. at 1824. Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). If the plaintiff is successful, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001). "The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiff's prima facie showing." Id. The burden then shifts back to the plaintiff to show that the employer's reason was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1826-27. Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier-of-fact that the defendantintentionally discriminated against the plaintiff remains at all times with the plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000).

C. Hostile Environment Sexual Harassment

1. Applicable Law

Chapter 21 of the Labor Code provides that it is unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin, or age. TEX. LAB. CODE ANN. § 21.051 (West 2006). Sexual harassment is a form of prohibited sex discrimination. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.—El Paso 1997, pet. denied). Courts have generally categorized sexual harassment claims as either "quid pro quo" or "hostile work environment." Soto, 942 S.W.2d at 677-78.

Here, it is undisputed that this case presents allegations of sexual harassment based on a hostile work...