Tex. Dep't of State Health Servs. v. Kerr
| Decision Date | 16 February 2022 |
| Docket Number | 07-21-00240-CV |
| Parties | TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellant v. Lonzo KERR, Jr., Appellee |
| Court | Texas Court of Appeals |
Robert Notzon, for Appellee.
Jeffrey E. Farrell, for Appellant.
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, the Texas Department of State Health Services ("TDSHS") filed this interlocutory appeal, pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, from the trial court's denial of its plea to the jurisdiction.1 Through two issues, TDSHS contends the trial court erred because Lonzo Kerr, Jr., Appellee, failed to establish a prima facie case of race and/or age discrimination under the requisite law and, even if he did so, he failed to show TDSHS's reasons for terminating his employment were both false and a pretext for what was in fact race and/or age discrimination. We agree with TDSHS's position. Consequently, we reverse the order of the trial court and render judgment granting TDSHS's plea to the jurisdiction.2
Kerr has a long history of working for the State of Texas beginning in the late 1970s.3 Over the ensuing years, he worked for the Texas Department of Human Services and for the Texas Department of Health. He served in many roles, including senior investigator and Director of Criminal Investigations. In that role, he conducted complex investigations into fraud, waste, abuse, regulatory non-compliance, security breaches, and loss of confidential data. In 2004, Kerr began working for the Office of Inspector General ("OIG") as a Manager IV/Supervising Investigator, performing duties similar to those he performed while working at the Department of Health. Kerr also supervised the Vital Records Fraud Unit at OIG.
In November 2004, Kerr began working in the Vital Statistics Unit ("VSU") at TDSHS as a Director I/Deputy State Registrar. He remained in that position until his retirement in 2008. In 2010, Kerr returned to work at VSU as a Manager IV/ Deputy State Registrar, performing the same job duties he had in 2008. Prior to Kerr's returning to work in 2010, the Chief Operating Officer, Ed House, submitted a justification for offering the position to executive leadership. In the request, House recommended Kerr for the management position because Kerr had previously held that position in addition to many other management positions in state government. House also stated that Kerr had a "documented background as being innovative and having the experience and ability to develop and implement modern solutions for automated systems; program policies and procedures for meeting Vital Records program goals and objectives." House recommended that executive management approve Kerr for the position and explained that Kerr's "previous management experience and accomplishments afford him the skills, knowledge and abilities that are vitally needed to quickly move the Vital Statistics Unit forward in the areas of Information Technology; personnel matters; facility and system operations and security; including our federal, state, local and public partners and stakeholders." Based on House's recommendation, Kerr was re-hired to the management position and held that position until his termination.
Kerr's termination stemmed from a missing vital statistics book.4 During a shelving project in 2012-2013, a VSU employee, Chris Guerrero, discovered a VSU records book containing approximately 500 birth certificates was missing.5 Guerrero and a supervisor, Geraldine Harris, conducted a search for the book; however, it was not located. At that time, another TDSHS employee, James Abshier, informed Kerr the book was missing. Kerr did not, however, follow up to determine whether the book was found, and he did not report the missing book to TDSHS leadership, OIG, or the TDSHS Privacy Officer. In May 2016, Jamie Ross, another TDSHS employee, realized the book was missing and conducted another unsuccessful search for it. Ross also reported to Kerr that the book was missing.
In early June 2016, Guerrero met with House and Barbara Klein, General Counsel for TDSHS, to discuss concerns about Guerrero's stress levels. During that meeting, Guerrero discussed the missing book with them. House and Klein then referred the issue of the missing book to OIG6 to investigate whether senior management at VSU was aware of the missing book and whether they failed to report it.
OIG completed its investigation in July 2016. It substantiated allegations that there were significant delays in initiating the process of proper reporting to OIG for the potential unauthorized disclosure of personal identifying information and that approximately 1,500 individuals’ personal identifying information may have been compromised due to the inaction of VSU employees. This event was characterized as a "privacy incident" for TDSHS policy purposes.7 OIG's investigation also found that VSU members reported the book as missing to supervisors as early as 2012 and that the book was still missing as of June 2016.
After TDSHS received OIG's investigation report, it consulted with human resources and legal services and decided to terminate the employment of Harris and Kerr for failing to make proper notifications about the missing book. Kerr received a Notice of Possible Disciplinary Action ("NOPDA") on July 29, 2016. In the NOPDA, House explained that Kerr admitted he was responsible for the management and oversight of the security of vital records8 and that Kerr understood the process to report potential fraud, waste, and abuse allegations. The NOPDA also included statements alleging that Kerr had the duty as Deputy State Registrar to ensure that the missing book was timely reported to OIG, TDSHS leadership, or the TDSHS Privacy Office because information contained in the missing book could be used to commit fraud. Furthermore, TDSHS alleged Kerr was aware of the missing book for more than three years yet did nothing to ensure proper notifications were made. According to TDSHS, Kerr's failure to report the missing book violated TDSHS Policy AA-5003, Section 5.1.4, which requires the prompt reporting of privacy incidents to a supervisor or the TDSHS Privacy Office.9 TDSHS also stated Kerr violated several work rules found in the Health and Human Services Human Resources Policy Manual.10
Kerr was given the opportunity to provide a rebuttal to the NOPDA by August 1, 2016. He did so on that date. The rebuttal focused mainly on the efforts made to locate the book but, according to TDSHS, did not fully address the ultimate concern caused by the missing book and the failure by senior management, including Kerr, to make the proper reports that the book was missing. Kerr stated, however, that it was "not clear when missing records should be reported according to agency policies and procedures."11 He argued that the statement that he did not report the missing book to a supervisor was inaccurate. He stated that the subject of the missing book was discussed during a weekly manager's meeting of all VSU managers and supervisors and that a search for the book was conducted in 2013. That search was conducted by Guerrero, a person Kerr said was "a higher level (classification)" than he and that "she too could have reported a missing book and she had no duty or responsibility to report her actions to me." After reviewing the rebuttal, House issued the decision to terminate Kerr with a Notice of Disciplinary Action ("NODA").
On September 8, 2016, Kerr filed a Charge of Discrimination with the Equal Employment Opportunity Commission. Kerr is a Black man, aged seventy-three at the time of his termination from employment. House, the person who hired Kerr and who ultimately made the decision to terminate his employment while choosing to suspend rather than dismiss Guerrero, is also a Black man, aged sixty-four at the time Kerr was terminated from employment.12 Kerr alleged that in making the decision to terminate him, the TDSHS discriminated against him on the basis of his race and age because he and Guerrero were treated differently for the same misconduct. On February 8, 2018, the Texas Workforce Commission issued a "right to sue" letter to Kerr.
Kerr filed his lawsuit on April 10, 2018. Through it, he alleged TDSHS discriminated against him based on his race and age in violation of provisions of the Texas Commission on Human Rights Act ("TCHRA").13 The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018) ; Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 637 (Tex. 2012) (citing TEX. LABOR CODE ANN. § 21.254 ). By his suit, Kerr sought damages, attorney's fees, and costs. TDSHS filed a plea to the jurisdiction and motion for summary judgment on June 21, 2021. In that plea, it argued its sovereign immunity was not waived because Kerr failed to establish a prima facie case of either race or age discrimination under the TCHRA and even if he had done so, he failed to prove TDSHS's reasons for termination of his employment were false and a pretext for discrimination. The trial court heard TDSHS's plea to the jurisdiction on July 20, 2021. On September 1, 2021, the trial court issued an order denying the plea. TDSHS challenges that denial through this interlocutory appeal.
Governmental immunity generally protects state subdivisions from suit unless the immunity has been waived by the constitution or state law. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie , 578 S.W.3d 506, 512 (Tex. 2019). Immunity may be asserted through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. Alamo Heights Indep. Sch. Dist. , 544 S.W.3d at 771. A plea to the jurisdiction is a dilatory plea that seeks dismissal of...
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