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UT Health Science Center-Houston v. Perkins

Court of Appeals of Texas, First District

June 27, 2017

UT HEALTH SCIENCE CENTER-HOUSTON, Appellant
v.
NANCY PERKINS, Appellee

         On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2015-60644.

          Panel consists of Jennings, Higley, and Massengale, Justices.

          MEMORANDUM OPINION

          Michael Massengale, Justice.

         Appellant UT Health Science Center-Houston (UTHSC-H) has filed an interlocutory appeal from the trial court's denial of its motion for summary judgment, which challenged subject-matter jurisdiction. The underlying case is a suit by appellee Nancy Perkins, a former employee of UTHSC-H, alleging employment discrimination and retaliation. UTHSC-H raises three issues arguing that the trial court erred by denying its plea to the jurisdiction as to each of the three claims raised by Perkins in her original petition.

         Because we conclude that the trial court should have dismissed Perkins's claim for gender-based disparate-treatment discrimination, we reverse the trial court's order, in part, and we otherwise affirm the order.

         Background

         This is an employment-discrimination case. The plaintiff, Nancy Perkins, who is Caucasian, worked as a telephone-triage nurse for UTHSC-H for approximately six months. She contends that her supervisor, David Riley, who is African-American, harassed her, threatened her with physical violence, and treated her in an abusive manner due to her gender and race. She further contends that he treated other non-African-American female nurses the same way, but he behaved much differently toward Lela Sanders, the only African-American female nurse in the telephone-triage department. Perkins contends that her complaints to Sandra Kelley, the human-resources representative, and Dr. Sandra Tyson, the department manager, were not addressed.

         Christie Carver, another Caucasian nurse who worked in the telephone-triage department, filed a grievance based on Riley's behavior. In the grievance, Carver described an incident when Riley's anger was directed at Perkins. Perkins supported Carver by testifying consistently with the grievance during an investigation conducted by Tyson. In her response to the grievance, Tyson concluded that Riley presented no threat to Carver or anyone else and that the supervisors had acted appropriately. Among other things, Tyson found that Riley had "apologized to the person, to whom the anger and raised voice was directed, " and that those interviewed "do not feel scared" of him, "nor do they feel unsafe in any way." She also explained that in her interviews she had asked each nurse if Riley had "discussed sexual activities; told off-color jokes concerning race, sex, disability, or other protected classes; engaged in unnecessary touching; commented on physical attributes; displayed sexually suggestive, or racially insensitive pictures; used demeaning or inappropriate terms, or epithets; used indecent gestures; used crude language; sabotaged anyone's work; or engaged in hostile physical conduct." Tyson found that each person interviewed "gave a resounding 'No' to each one."

         Two days later, Tyson became aware that Carver intended to appeal the response to the grievance, and that she had sent an email to four of the nurses- including Perkins-seeking support. Tyson warned the nurses not to discuss or work on Carver's grievance during the work day, and she reminded them that they were not obligated to assist.

         Carver appealed Tyson's response to her grievance by submitting a letter to the Vice President and Chief Operating Officer of UTHSC-H. Carver refuted the findings in the response, and she added information pertaining to Tyson's warning regarding her appeal. Carver asserted that Tyson's findings misrepresented the facts that had been shared by the people who were interviewed. For example, Carver wrote: "Despite Dr. Tyson's findings that no one worried or worries about David Riley's temper, I believe 3 interviewees told her they did and they still do. Each one told me that their answers were very different than Dr. Tyson wrote in her response to me." She also wrote, "I did not complain about protected class discrimination. I do not know why Dr. Tyson addressed those things in her response." And she stated that Perkins told her "that David Riley never apologized to her for his temper outbursts." The next day, Perkins was fired.

         Perkins sued UTHSC-H for violations of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code §§ 21.001-.556. Her petition alleged the following facts:

• "Nancy Perkins was a good employee who did her job well."
• "She was discriminated against because of her race and gender and was retaliated against for opposing discriminatory practices in the workplace."
• "Nancy Perkins was a nurse in the DSRIP [Delivery System Reform Incentive Payment] office."
• "David Riley did not like Nancy Perkins because she is female and is not African American."
• "Riley is male and African American."
• "He managed Nancy Perkins and the other female, non-African-American nurses in the office by bullying them, throwing temper tantrums, and routinely trying to intimidate them."
• "There were incidents where Nancy Perkins feared that David Riley would physically assault her and other nurses."
• "Numerous good nurses were either fired or quit because of the hostile work environment created by David Riley, and his supervisors' failure to correct the situation."
• "Perkins reported this discrimination to David Riley's supervisor, Monica Smith, her supervisor, Dr. Sandra Tyson, and to Sandy Kelley in human resources."
• "Perkins was also a witness to a grievance filed by Christie Carver, which complained about David Riley's discriminatory practices."
• "Tyson conducted an 'investigation, ' during which she took witness statements and twisted what Nancy Perkins said."
• "Perkins was told by Dr. Tyson that nothing was going to interfere with David Riley's progress, as she ...

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