Tex. Health & Human Servs. Comm'n v. Cruz
| Decision Date | 09 March 2023 |
| Docket Number | 13-21-00082-CV |
| Parties | TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellant, v. DAVID DE LA CRUZ, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 10 of Hidalgo County Texas.
Before Justices Benavides, Tijerina, and Peña
Appellant Texas Health and Human Services Commission (HHSC) appeals the denial of its plea to the jurisdiction, contending that appellee David De La Cruz did not establish a waiver of HHSC's sovereign immunity because he failed to present evidence of pretext to support his claim of gender discrimination. We affirm.
After HHSC terminated De La Cruz's employment as a Texas Works Supervisor II, he filed a gender discrimination complaint with the Texas Workforce Commission (TWC). TWC issued a dismissal and notice of right to sue letter. Thereafter, De La Cruz initiated the present suit. He alleges he was terminated for violating HHSC's conflict-of-interest policies, but similarly situated females who were known to violate the same policies were not disciplined.
HHSC filed its first plea to the jurisdiction, arguing that De La Cruz did not timely file his discrimination complaint. The trial court denied the plea, and HHSC filed an interlocutory appeal. We affirmed the denial, and the case returned to the trial court. Tex. Health & Hum. Servs. Comm'n v. De La Cruz, No. 13-17-00292-CV, 2018 WL 2371702 (Tex. App.-Corpus Christi-Edinburg May 24, 2018, pet. denied) (mem. op.).
HHSC then filed a subsequent plea to the jurisdiction, arguing that De La Cruz could not demonstrate a statutory waiver of its sovereign immunity for unlawful discrimination. HHSC attached the following evidence: (1) the affidavit of Cynthia Pena, De La Cruz's supervisor; (2) De La Cruz's job description; (3) notice of possible disciplinary action; (4) notice of termination; (5) internal investigation report and related records; (6) HHSC employment policy; (7) De La Cruz's deposition; (8) De La Cruz's personnel records; (9) employee grievance records; and (10) the affidavit of an HHSC investigator.
De La Cruz filed a response, arguing HHSC's reason for terminating him was pretextual and its decision was instead motivated by gender discrimination. He maintained that similarly situated female employees were treated more favorably. He also claimed he did not violate HHSC's conflict-of-interest policies. De La Cruz attached his affidavit and Pena's deposition testimony and deposition exhibits.
HHSC employed De La Cruz from 1990 through his termination in 2014. In 2009, HHSC hired De La Cruz for the position of Texas Works Supervisor II in HHSC's Edinburg office. The office is located within HHSC's Region 11, which is overseen by regional director Pena. De La Cruz supervised a team of employees responsible for processing applications for government assistance such as food stamps, Medicaid, and Temporary Assistance for Needy Families.
In 2013, the Health and Human Services' Office of the Inspector General (OIG) assigned George Elizondo Jr. to investigate one of De La Cruz's subordinates for fraud. The investigation revealed that HHSC employee Joleen Garcia accepted bribes in exchange for approving falsified benefit applications. Elizondo also found that Garcia submitted her own benefit application, but she was properly determined to be eligible. Pena authorized Elizondo to investigate De La Cruz's involvement in handling Garcia's personal application. Upon doing so, Elizondo discovered that Garcia's application was processed by an employee in the same unit and that De La Cruz performed reviews of Garcia's disbursements, which Elizondo believed to be a violation of HHSC's conflict-of- interest policies. In a sworn statement, De La Cruz admitted to the conduct. He also explained he performed second level reviews of supplementary benefit disbursements to Garcia.[1]
The final OIG report found that De La Cruz was unaware of Garcia's fraudulent acts but that he nevertheless violated HHSC employment policy A-114, titled "Applications Causing Conflicts of Interest," which provides in part as follows:
Although not cited in the OIG report, provision A-114.1,[2] titled "Applications Submitted by Texas Works Employees," provides in pertinent part:
HHSC sent De La Cruz a notice of possible disciplinary action, stating he violated provision A-114.1 by assigning Garcia's application to Worker IIIs in his unit who had "quasi-supervisory authority" over Garcia. The notice also claimed De La Cruz violated A-114.1 by completing second-level reviews of disbursements to Garcia. The notice states that De La Cruz previously assigned another employee's benefit application to a worker with "quasi-supervisory authority" over the applicant. These infractions were alleged to have occurred over two years prior to the OIG investigation. According to the notice, a Worker III in De La Cruz's unit informed him that agency policy required the assignment of a subordinate's benefit application to an advisor in another unit and that afterwards "all interviews involving unit employees were conducted by [W]orker IIIs in other units." The notice also asserted that De La Cruz accessed and viewed case comments in the aforementioned subordinates' files.
De La Cruz submitted a written rebuttal, stating he should not be disciplined because HHSC does not enforce its policies and does not provide adequate training. He also denied that his actions violated policy. Alternatively, he claimed his conduct did not constitute a major or repeated offense justifying dismissal for cause. De La Cruz asserted another HHSC supervisor engaged in the same conduct but was not disciplined.
Thereafter, Pena, the Region 11 director, sent De La Cruz a notice of termination. The notice explains that supervisors, including De La Cruz, were directed to review the conflict-of-interest policies with HHSC staff. The notice states, "By assigning staff in your unit to process applications for benefits from employees in their direct line of supervision, and by conducting second-level reviews in cases involving employees you supervise, you failed to avoid the appearance of impropriety or a conflict of interest . . . in violation of policy and procedures[.]" The notice claimed this conduct violated employment policies A-114 and A-114.1 and constituted a major offense pursuant to the human resources manual. Pena clarified in her deposition that the violations were not expressly listed as major offenses but that they constituted gross misconduct, a type of major offense which justifies termination. Pena testified she did not review De La Cruz's personnel file before deciding on his termination.
De La Cruz later filed an employee grievance contesting the employment decision. Following an administrative hearing, an administrative law judge upheld his termination. HHSC hired a female to replace De La Cruz.
In his affidavit, De La Cruz asserts that three female HHSC supervisors violated HHSC policy A-114.1 but were not disciplined-Dalia Ochoa, Janie Diaz, and Alma Mendez. He stated that another supervisor, Sylvia Barron, assigned a subordinate's benefit application to someone in her direct line of supervision, and while she was disciplined, she was not terminated. At his grievance hearing, De La Cruz testified that Ochoa told him she violated the same policy, but a supervisor merely informed her that she misapplied the policy and did not discipline her. De La Cruz elaborated in his deposition that Ochoa informed him that she, Diaz, and Mendez violated the conflict-of-interest policy by assigning a subordinate's benefit application to an employee in their unit.
In her deposition testimony, Pena testified that Barron, who held the same position as De La Cruz in HHSC's Corpus Christi office, violated policy A-114.1. HHSC gave the employee a third level notice, which is the highest disciplinary action preceding termination. According to Pena, Barron assigned a subordinate's benefit application to someone in her direct chain of command. Pena explained that unlike De La Cruz, Barron did not personally work on the employee's file, and she did not violate the policy for multiple subordinate applications. Pena acknowledged there were allegations that three other female supervisors-Ochoa, Diaz, and Mendez-violated the conflict-of-interest policy, but after an investigation, the allegations were unsubstantiated. Pena testified she authorized...
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