Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-15-003577, HONORABLE TIM SULAK, JUDGE PRESIDING
Justices Puryear, Pemberton, and Goodwin.
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.
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.
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.
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. 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.
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
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" but that, in any event, Boson has not made
a prima facie case for hostile work environment based either
on race or retaliation.
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."
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.
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 ...