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Boson v. Manor Independent School District

Court of Appeals of Texas, Third District, Austin

March 1, 2018

Kenya Boson, Appellant
Manor Independent School District, Appellee


          Before Justices Puryear, Field, and Bourland.


          David Puryear, Justice.

         Kenya Boson appeals the trial court's order granting Manor Independent School District's combined plea to the jurisdiction and motion for summary judgment on Boson's claim asserting employment discrimination based on race. See Tex. Lab. Code § 21.051 (discrimination by employer). In one issue, Boson contends that the trial court erred in dismissing this claim because she established a prima facie case of discrimination. We will affirm.


         Boson, who is African-American, began working for MISD in 2011 as a grant-funded counselor for "at risk" students at Manor High School.[1] Boson worked in that position for three school years until the grant funding expired, at which time the then-superintendent renewed her contract and assigned her to the position of "College and Career Readiness Counselor" at the Manor Excel Academy.

         Boson alleges that during her time working as an "at risk" counselor, she was subjected to disparate treatment by being assigned counseling responsibility for students who were not "at risk" and who would normally be handled by "regular" school counselors. She also 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 filing a sexual harassment charge against another school employee. In 2014, Boson filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC). 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 report 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; not being informed of three available permanent positions until after they had been filled; being excluded from Senior Awards program activities and graduation ceremonies; and being informed in June 2014 that her position for the 2014-2015 school year would be a teaching position.

         After receiving a right-to-sue notice from the Texas Workforce Commission, Boson sued MISD alleging violations of the Texas Commission on Human Rights Act, see Tex. Lab. Code §§ 21.051-.055 (the Act), 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 filed an interlocutory appeal, and this Court reversed the trial court's denial of MISD's plea to the jurisdiction on the hostile-work-environment claims and rendered judgment in MISD's favor on those claims. See Manor Indep. Sch. Dist. v. Boson, No. 03-16-00756-CV, 2017 WL 1228880 (Tex. App.-Austin Mar. 29, 2017, no pet.) (mem. op.). Boson then perfected this appeal asserting that the trial court erred in granting MISD's combined plea to the jurisdiction and motion for summary judgment on her claim for employment discrimination. MISD counters that the trial court properly granted its plea to the jurisdiction because Boson failed to allege a prima facie case of discrimination.[2]


         Governmental immunity protects subdivisions of the State, including school districts, from lawsuits and liability for money damages. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The government waives its immunity from suit under the Act when a plaintiff states a claim for conduct that would violate it. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012). Under the Act, an employer commits an unlawful employment practice if, because of an employee's race, the employer "fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." Tex. Lab. Code § 21.051(1). A prima facie case of racial discrimination requires evidence that the plaintiff (1) is a member of a protected class, (2) was qualified for the employment position at issue, (3) was subject to an adverse employment action, and (4) was treated less favorably than similarly situated members outside the protected class. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). The Texas Legislature patterned the Act after federal law "for the express purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Elgahil v. Tarrant Cty. Junior Coll., 45 S.W.3d 133, 139 (Tex. App.-Fort Worth 2000, pet. denied); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001). Thus, when analyzing a claim brought under the Act, we look not only to state cases, but also to the federal statutes and the cases interpreting those statutes, to the extent the federal statute being interpreted is analogous to the Texas statute. Toennies, 47 S.W.3d at 476.

         In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing Reeves, 530 U.S. at 142-43; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)). Under the burden-shifting analysis, the plaintiff has the initial burden to come forward with a prima facie case of discrimination. Reeves, 530 U.S. at 142; Toennies, 47 S.W.3d at 477. Establishment of a prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the employee. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Toennies, 47 S.W.3d at 477. The burden of production then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its employment decision. Reeves, 530 U.S. at 142; Toennies, 47 S.W.3d at 477. If the employer presents a legitimate reason, the burden shifts back to the plaintiff to show either (1) the stated reason was a pretext for discrimination or (2) the employer's reason, while true, is only one reason, and discrimination was another, "motivating, " factor. Canchola, 121 S.W.3d at 739; Toennies, 47 S.W.3d at 480; see also Tex. Lab. Code § 21.125(a) (providing plaintiff establishes unlawful employment practice by showing discrimination based on race, color, sex, national origin, religion, age, or disability was "motivating factor" for employment practice even if other factors also motivated employment practice unless protected-class status is combined with objective job-related factors to attain diversity in employer's workforce). When the discrimination claim is asserted against a school district, a subdivision of the State, the plaintiff must meet the requirement of the prima facie case for the trial court to have jurisdiction. Garcia, 372 S.W.3d at 637. The failure to present the elements of a prima facie case means that the trial court has no jurisdiction and the claim must be dismissed. Id.

         Although a plaintiff must plead facts that constitute a prima facie case of discrimination, the defendant may present evidence negating those facts. If the defendant does so, the plaintiff must then present evidence in support of the pleaded facts. Id. In this case, the trial court found that Boson failed to present a prima facie case of employment discrimination based on race and dismissed her claim. Because we conclude that Boson failed to raise a fact question on whether she suffered an adverse employment action and thus did not establish a prima facie case of discrimination, the trial court properly dismissed the discrimination claim for lack of subject-matter jurisdiction.[3]

         In her petition, Boson alleged that (1) MISD assigned her counseling responsibility for students "that would normally be handled by regular school counselors, " which constituted treating her differently from other white "at risk" counselors; (2) she was "ridiculed" in front of her white peers by the lead counselor; (3) she was singled out by an assistant principal for "not being a team player" and "not doing her job"; (4) she was "kept out of attendance and transition meetings for students"; (5) she was the only grant-based employee to be given a performance evaluation and was not aware of the performance criteria used or that she was going to be given an evaluation; (6) she did not know about and was not considered for one of three permanent counselor positions that were filled by white or non-Black counselors; (7) she was excluded from a senior awards program and from participating in graduation exercises; and (8) she was told her job was changed to a teaching position. For purposes of discrimination, the Act only addresses ultimate employment decisions; it does not address every decision made by an employer that arguably might have some tangential effect on employment decisions. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Generally, adverse employment decisions involve hiring, granting leave, discharging, promoting, and compensating employees. Id.; Elgahil, 45 S.W.3d at 143. Adverse employment actions do not include disciplinary filings, supervisor's reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee's work, or negative employment situations. See Winters, 132 S.W.3d at 575; Elgahil, 45 S.W.3d at 143; see also Navy v. College of the Mainland, 407 S.W.3d 893, 899 (Tex. App.-Houston [14th Dist.] 2013, no pet.). Thus, the only conduct by MISD that could potentially qualify as actionable is its alleged failure to hire Boson for one of three permanent counselor positions and its allegedly telling Boson that her position changed from a counselor to a teacher.

         In her deposition, which was attached as an exhibit to her response to MISD's plea to the jurisdiction and motion for summary judgment, Boson testified regarding the three permanent counselor positions she alleges she did not know about and was not considered for. According to Boson, while she was working as a grant-funded counselor she learned of the existence of other permanent counselor position openings but was not hired for those positions, which were then filled with individuals who had less experience and who were not African-American. Boson testified that, even though there was a year left in the grant-funded position she held, she applied for the permanent counselor jobs because she believed that they would provide more job security. Boson stated: "So for a position that's more permanent, not affiliated with the grant, I would think that you would look to somebody who has already been there and who has experience." It appears that Boson is asserting that failing to move her to one of the permanent counselor position was a failure to promote, which can support a claim of disparate treatment. See Haire v. Board of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 364 (5th Cir. 2013) ("Failure to promote is clearly an adverse employment action."). However, MISD submitted to the trial court evidence that the "permanent counselor positions" Boson referred to were not promotions but, instead, were lateral assignments. Other than offering her subjective belief that the "permanent positions" offered more job stability, Boson presented no evidence that moving her from the grant-funded counselor position to the "permanent counselor position" would constitute a promotion. Moreover, when the grant funding for her counselor position at Manor High School expired, MISD renewed Boson's contract ...

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