Tex. Southmost Coll. v. Hernandez

Decision Date26 January 2023
Docket Number13-21-00454-CV
CourtTexas Court of Appeals

On appeal from the 445th District Court of Cameron County Texas.

Before Justices Benavides, Tijerina, and Peña



In this employment dispute, appellee Linda Hernandez filed suit against appellant Texas Southmost College ("TSC") for retaliation and gender and age discrimination. The trial court denied TSC's plea to the jurisdiction, and on appeal, TSC maintains that it is immune from Hernandez's claims. We affirm in part and reverse and render in part.

A. Hernandez's Employment History with TSC

In 2014, TSC hired Hernandez as a speech instructor. Hernandez's employment contract was renewed on a yearly basis. According to her live pleading, Hernandez had never been disciplined, reprimanded, or suspended during her employment, and she received an evaluation of "satisfactory" for her performance during the 2017-2018 academic year.

B. Hernandez's Role as TSC Faculty Senate President

During the same academic year, Hernandez served as the TSC Faculty Senate President. According to its constitution, the purpose of the TSC Faculty Senate is to represent faculty interests and make recommendations to TSC administration. Among its objectives, the members of TSC Faculty Senate "[w]ork as agents to negotiate and represent the well-being of the faculty membership." Hernandez's duties as TSC Faculty Senate President included acting "as liaison between the faculty and the college administration." The constitution further provides that "recommendations made by the Faculty Senate will be transmitted by the President of the Faculty Senate to the President of the College, the Vice President for Academic Affairs, or other administrative personnel." However, "[i]n the event that no resolution to a specific issue occurs, the Faculty Senate may bring the matter before the Board of Trustees."

C. Relevant TSC Policies

TSC has an employee grievance policy that details the necessary steps for presenting employment-related complaints. However, the grievance policy does not apply to discrimination or retaliation complaints. Rather, such complaints are governed by TSC's "Freedom from Discrimination, Harassment, and Retaliation" policy ("Anti-Discrimination Policy"), which "addresses discrimination, harassment, and retaliation involving [TSC] employees." The Anti-Discrimination Policy states that "[a]n employee who believes that he or she has experienced prohibited conduct or believes that another employee has experienced prohibited conduct should immediately report the alleged acts." An employee may report their concerns to their immediate supervisor, the Title IX coordinator, or the TSC President.

Among other conduct, the Anti-Discrimination Policy "prohibits retaliation against an . . . employee who, in good faith, makes a report, serves as a witness, or otherwise participates in an investigation." The policy lists "refusal to hire" as an example of retaliation. The policy also provides that "[a]n employee who intentionally makes a false claim . . . regarding harassment or discrimination [will be] subject to appropriate discipline."

The Anti-Discrimination Policy permits TSC to engage a third party, such as an attorney, to formally investigate a complaint. The third-party investigator is required to prepare a written report and submit it to TSC. Finally, the policy states that "[t]o the greatest extent possible, [TSC] shall respect the privacy of the complainant, persons against whom a report is filed, and witnesses"; however, "[l]imited disclosures may be necessary in order to conduct a thorough investigation and comply with applicable law."

D. Hernandez's Allegations of Discrimination, Harassment, and Retaliation

On January 4, 2018, Hernandez, acting in her capacity as TSC Faculty Senate President, sent the following text message to a member of the TSC Board of Trustees:

I will be calling a vote of no confidence before the board for key administrators who have many times impeded on the matters of shared governance by faculty and who have also acted criminally concerning dismissal of faculty and staff. I would like to meet with the board so this matter doesn't side swipe you, and so you understand the severity of immediate dismissal of such individuals once I call for the vote of no confidence. On another note, I hope you're having a wonderful Christmas with family.

On January 8, 2018, Hernandez, again acting in her capacity as TSC Faculty Senate President, sent a lengthy email to TSC President Jesus Rodriguez and Vice President of Instruction Joanna Kile with the subject line, "Vote of no confidence." In what would later become a source of contention between the parties, Hernandez also copied seven TSC Faculty Senate members and one TSC Staff Senate member on the email. The email begins with Hernandez acknowledging that she "already alerted a board member that a vote of no confidence on key administrators would be called before the board." Hernandez then identified Lissa Frausto and Angelica Fuentes as the administrators in question and generally alleged that they had engaged in "repeated patterns concerning forced resignations . . . [and] other severe instances." Hernandez then recounted instances where Frausto, Fuentes, or both allegedly mistreated a former staff member, two former faculty members, and two current faculty members, including herself.

Many of the allegations in the email did not concern conduct that is unlawful. For example, Hernandez complained that Fuentes is vindictive, and thus, faculty are not free to express dissenting opinions because Fuentes may "retaliate" against them. Hernandez also complained about a lack of shared governance between TSC administration and faculty. However, other allegations in the email did raise concerns about age and gender discrimination against former and current faculty members, as well as a former staff member. None of the allegations Hernandez made about her personal experiences with Frausto or Fuentes concerned unlawful conduct.

E. TSC Hires a Third-Party to Investigate Hernandez's Complaints

Consequently, TSC engaged attorney Bernardo Garza to investigate Hernandez's allegations. On May 17, 2018, Garza issued a written report detailing his investigation, including the interviews he conducted with Hernandez, Fuentes, and Frausto, as well as various other administrators, faculty, and staff. Garza ultimately found "[n]o evidence" of discrimination, harassment, or retaliation based on protected activities.

F. TSC Decides Not to Renew Hernandez's Contract

Vice President Kile initially recommended the renewal of Hernandez's employment contract for the 2018-2019 academic year. However, upon reviewing Garza's report, Kile changed her recommendation. In a June 1, 2018 email to President Rodriguez, Kile explained that, "Based on the results of the investigative report and [Hernandez's] exposure of the institution to potential liability, I do not recommend her contract be renewed." President Rodriguez accepted Kile's new recommendation, and Hernandez was informed on June 27, 2018, that her contract would not be renewed.

Hernandez initiated TSC's formal grievance process, challenging the decision not to renew her contract. Frausto presided over the hearing and issued a written decision denying Hernandez's grievance. In the decision, Frausto explained that the issues raised in Hernandez's January 8 email "were not within the explicit purview of the Faculty Senate." Frausto also found that by copying other senators on the email, Hernandez "failed to consider the privacy and property rights of those named in the email." According to Frausto, those individuals copied on the email "had no reason to have that kind of information," and by disclosing the allegations without the consent of those accused of wrongdoing, Hernandez had "exposed [TSC] to liability." Finally, Frausto cited Garza's findings that no unlawful conduct occurred.

G. Trial Court Proceedings

After receiving her right-to-sue letter from the Texas Workforce Commission, Hernandez timely filed suit for wrongful termination, generally alleging claims of age and gender discrimination, as well as retaliation for engaging in protected activities.

TSC filed a general denial. Several months later, TSC filed a business records affidavit, along with eighty-four pages of records, and an additional affidavit from Frausto explaining TSC's decision not to renew Hernandez's contract: "The grounds for the non-renewal included that Ms. Hernandez made unsubstantiated allegations of purported improper, criminal and tortious conduct by employees of [TSC] and published such allegations to multiple other employees of [TSC] via a college email account."

TSC subsequently filed a plea to the jurisdiction, arguing that Hernandez could not establish a prima facie case for any of her claims and that TSC had legitimate, nondiscriminatory, nonretaliatory reasons for not renewing her contract. TSC submitted eight exhibits in support of its plea, including copies of Hernandez's January 8 email to President Rodriguez, Garza's written report, an affidavit from President Rodriguez, and records pertaining to the person TSC allegedly hired to replace Hernandez.

Hernandez filed a response in opposition to the plea and attached eighteen exhibits to the response, including portions of deposition transcripts, copies of the TSC Faculty Senate Constitution, and Hernandez's sworn declaration. In that declaration, Hernandez made the following statements in support of her age and gender discrimination claims:...

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