Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2015-44178
consists of Justices Jennings, Massengale, and Caughey.
Michael Massengale, Justice
UT Health Science Center-Houston (UTHealth) has filed an
interlocutory appeal from the trial court's denial of its
plea to the jurisdiction. The underlying case is a suit by
appellee Christie Carver, a former employee of UTHealth,
alleging employment discrimination and retaliation. UTHealth
raises three issues arguing that the trial court erred by
denying its plea to the jurisdiction as to Carver's
claims for disparate treatment based on race and gender,
hostile work environment, and retaliation. In addition,
UTHealth challenges Carver's affidavit evidence for the
first time on appeal.
we conclude that the trial court should have dismissed
Carver'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, Christi
Carver, who is Caucasian, worked as a telephone-triage nurse
for UTHealth for approximately 18 weeks in 2014. 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. Carver contends that she complained to Sandra
Kelley, the human-resources representative, and Dr. Sandra
Tyson, the department manager, but her complaints were not
addressed. She further contends that the mistreatment
continued and worsened after she filed a grievance with Dr.
Tyson and later appealed its disposition.
grievance, Carver asserted that hostile working conditions
persisted in the department where she worked. She alleged
that the nurses had been targets for Riley's volatile
temper, bullying, and inappropriate reprimands. She stated
that Riley's behavior resulted in "a stressful and
unhealthy working environment, " that she constantly
worried about herself and her team members, and that the
threat of Riley's "explosive temper" kept her
"on edge." She also noted several specific
instances when Riley's temper flared at individual nurses
when they asked a question or commented during a departmental
meeting. On one occasion, Riley "wildly kicked a chair
and raised his arms as he loudly yelled at" another
response to the grievance, Dr. Tyson conducted an
investigation, which included interviewing the other nurses.
Dr. Tyson concluded that Riley presented no threat to Carver
or anyone else and that the supervisors had acted
appropriately. Among other things, Dr. 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." Dr. Tyson found that each person interviewed
"gave a resounding 'No' to each one."
days later, Dr. 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 seeking support. Dr. Tyson told
the telephone-triage nurses about Carver's grievance,
warned them not to discuss or work on it during the work day,
and said they were not obligated to assist.
appealed Dr. Tyson's response to her grievance by
submitting a letter to Andrew Casas, Vice President and Chief
Operating Officer of UTHealth. Carver refuted the findings in
the response, and she added information pertaining to Dr.
Tyson's warning to the nurses. Carver asserted that Dr.
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 Carver stated that Nancy
Perkins, the nurse who had been the subject of the
chair-throwing incident, told her "that David Riley
never apologized to her for his temper outbursts." The
next day, Perkins was fired "for not being a team
player, " and she was escorted from the premises by UT
developed physical symptoms including dizzy spells, chest
pain, shortness of breath, and difficulty breathing, which
she contends was a result of her hostile work environment.
She also had been seen in the emergency room due to chest
pain, sleeplessness, and dizziness. Carver resigned, and
about a month later she filed a discrimination charge with
the Equal Employment Opportunity Commission and the Texas
year later, Carver sued UTHealth for violations of the Texas
Commission on Human Rights Act (TCHRA). See Tex.
Lab. Code §§ 21.001-.556. Her petition alleged the
• "Christie Carver 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."
• "Christie Carver was a nurse in the DSRIP
[Delivery System Reform Incentive Payment] Telephone Triage
• "David Riley did not like Christie Carver because
she is female and is not African American."
• "Riley is male and African American."
• "He managed Christie Carver 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 Christie Carver
feared that David Riley would physically assault her and
• "Between February and July of 2014, at least
twelve 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."
• "Christie Carver reported this discrimination to
David Riley's supervisor, Monica Smith, her supervisor,
Dr. Sandra Tyson, and to Sandy Kelley in human
• "When nothing was done, Christie Carver filed a
• "She was severely retaliated against when she
reported and later grieved about the discrimination."
• "Dr. Tyson conducted an 'investigation, '
during which she took witness statements and lied about what
• "Witnesses that supported Christie Carver's
claims of discrimination were fired."
• "Christie Carver filed an appeal of Dr.
Tyson's finding that David Riley had done ...