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Manor Independent School District v. Boson

Court of Appeals of Texas, Third District, Austin

March 29, 2017

Manor Independent School District, Appellant
Kenya Boson, Appellee


          Before Justices Puryear, Pemberton, and Goodwin.


          David Puryear, Justice.

         In this interlocutory appeal, the Manor Independent School District (MISD) appeals the trial court's denial of its combined plea to the jurisdiction and motion for summary judgment as to Kenya Boson's claims asserting a hostile work environment both based on racial and retaliatory harassment stemming from the statutorily protected activity of reporting workplace sexual harassment. MISD contends that Boson failed to produce evidence necessary to create a fact issue on the prima facie elements of her claim. For the following reasons, we will reverse the trial court's denial of MISD's plea to the jurisdiction and render judgment in favor of MISD, dismissing Boson's hostile-work-environment claims.


         Boson began her employment with MISD in 2011, when she was hired as a grant funded "at risk" counselor for Manor High School. She worked in that position for three school years until the grant funding expired, at which time the then-superintendant renewed her contract and assigned her to the position of "College and Career Readiness Counselor" at the Manor Excel Academy.

         In April 2012 Boson approached the then-principal of Manor High School with a complaint of sexual harassment against another MISD employee, Matthew Tryon, a security guard at the high school. Later that year, Boson again complained about the same employee's alleged sexual harassment, this time to Willie Watson, the school district's Human Resources (HR) Director. While Boson now alleges that during the meeting Watson exhibited "animus" towards her complaint and "turned the tables on her" by accusing her of harassing a different employee, Boson never filed any complaints about Watson's handling of her allegations.

         Between the time of her complaint to Watson and May 2014, when she filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC), Boson, who is African-American, alleges that various MISD employees engaged in harassing conduct, creating for her a hostile work environment, and that the conduct was both racially motivated and in retaliation for her reporting of sexual harassment.[2] Boson's EEOC charge cited the following actionable conduct: disparate treatment compared to white employees; ridicule by her superior lead counselor, Tabitha Gutierrez; criticism by Gutierrez for Boson's reports of sexual harassment; "singling out" by principal Jesse Perez for "not being a team player" and "not doing [her] job"; being "kept out" of various meetings and "denied access" to information needed to perform her job; and not being informed of three available permanent positions until after they had been filled.

         The Texas Workforce Commission issued Boson a right-to-sue-notice in June 2015, prompting this lawsuit. In this suit, Boson alleged violations of the Texas Commission on Human Rights Act (TCHRA), see Tex. Lab. Code §§ 21.0511-.055, based on several theories: racial discrimination, retaliation, and racially and retaliatory hostile work environment. MISD filed a combined motion for summary judgment and plea to the jurisdiction asserting governmental immunity from suit. The trial court granted MISD's motion and plea as to Boson's discrimination and retaliation claims but denied them as to Boson's hostile-work-environment claims. MISD then filed this interlocutory appeal.[3]


         In its sole issue on appeal, MISD contends that the trial court erred in finding that it had jurisdiction over Boson's hostile-work-environment claims under the TCHRA because, it argues, Boson failed to produce evidence necessary to create a fact issue on three of the prima facie elements of such a claim. See Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 646 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (listing elements of prima facie case of hostile work environment); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012) (plaintiff must plead facts comprising prima facie case under TCHRA, defendant may present evidence negating those facts, and plaintiff must then present evidence raising fact question on jurisdictional elements); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228-32 (Tex. 2004) (if plaintiff fails to raise fact issue on jurisdictional issue after defendant presents evidence demonstrating that court has no subject-matter jurisdiction, court must grant plea to jurisdiction). MISD also posits that it is unclear whether Texas courts even recognize a claim for "retaliatory hostile work environment"[4] but that, in any event, Boson has not made a prima facie case for hostile work environment based either on race or retaliation.

         Specifically, MISD contends that after it submitted evidence attached to its combined plea to the jurisdiction and motion for summary judgment, Boson's response with attached evidence failed to raise a fact issue on the following elements of her claim: (1) the harassment that she complains of was based on a protected characteristic (her race) or activity (her making reports of sexual harassment); (2) the harassment she complains of affected a term, condition, or privilege of employment; and (3) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Anderson, 458 S.W.3d at 646. The second challenged element "entails ongoing harassment, based on the plaintiff's protected characteristic, so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment." Id.

         In determining whether an abusive work environment exists, courts look to the totality of the circumstances, including the frequency and severity of the discriminatory conduct and whether it unreasonably interfered with the employee's work performance. Id. (citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 806 (Tex. 2010)). The conduct must be both objectively and subjectively hostile or abusive. Esparza v. University of Tex. at El Paso, 471 S.W.3d 903, 913 (Tex. App.-El Paso 2015, no pet.); Gardner v. Abbott, 414 S.W.3d 369, 382 (Tex. App.-Austin 2013, no pet.) (citing Waffle House, Inc., 313 S.W.3d at 806). "A hostile-work-environment claim is designed to address conduct that is so severe or pervasive that it destroys an employee's opportunity to succeed in the workplace." Gardner, 414 S.W.3d at 382 (citing City of Houston v. Fletcher, 166 S.W.3d 479, 489 (Tex. App.-Eastland 2005, pet. denied)). Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-one that a reasonable person would find hostile or abusive-is not actionable. Esparza, 471 S.W.3d at 913.

         We first consider the evidence pertaining to the second challenged element of Boson's prima face claim: the extent of hostility or abusiveness of Boson's work environment. Boson cites the following evidence from her deposition testimony, which was attached to her response to MISD's combined plea to the ...

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