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Center-Houston v. Carver

Court of Appeals of Texas, First District

March 27, 2018


          On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2015-44178

          Panel consists of Justices Jennings, Massengale, and Caughey.


          Michael Massengale, Justice

         Appellant 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.

         Because 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.


         This is 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.

         In the 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 nurse.

         In her 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."

         Two 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.

         Carver 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 police.

         Carver 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 Workforce Commission.

         About a 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 following facts:

• "Christie Carver 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."
• "Christie Carver was a nurse in the DSRIP [Delivery System Reform Incentive Payment] Telephone Triage office."
• "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 them."
• "There were incidents where Christie Carver feared that David Riley would physically assault her and other nurses."
• "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 resources."
• "When nothing was done, Christie Carver filed a grievance.
• "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 was said."
• "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 ...

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