Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2015-60644.
consists of Jennings, Higley, and Massengale, Justices.
Michael Massengale, Justice.
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.
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.
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.
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
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.
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.
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
• "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
• "There were incidents where Nancy Perkins feared
that David Riley would physically assault her and other
• "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
• "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
• "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