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Bishop v. The City of Austin

Court of Appeals of Texas, Third District, Austin

June 21, 2018

Aaron Bishop; Ronald J. Booker; Richard Burns; Albert Cortez, Jr.; Eric De Los Santos; Jovita Lopez; Aurelio Martinez; Norris McKenzie; Tomas Montez; Henry D. Moreno; Ricardo Pelayo; Jesse Prado; Oscar Ramirez; James Stanesic; Lester Vanzura; et al., Appellants
The City of Austin, Appellee


          Before Chief Justice Rose, Justices Field and Bourland


          Jeff Rose, Chief Justice

         This dispute arises from the 2013 restructuring of the organized crime division of the Austin Police Department ("APD"). Seventeen current and former APD officers allege that the City of Austin restructured that division using discriminatory employment practices prohibited by the Texas Commission on Human Rights Act ("TCHRA"). See Tex. Lab. Code § 21.051. These plaintiffs now challenge a series of orders granting the City's pleas to the jurisdiction and rendering a take-nothing judgment against each plaintiff. We will affirm the district court's orders.


         Because the parties are familiar with the facts underlying this dispute, and because many details are classified, we will summarize the relevant facts only to the extent necessary to resolve this appeal. Sometime in 2012 or 2013, the City and APD leadership initiated a comprehensive review of the organized crime division to investigate complaints of chronic inefficiency and unprofessionalism within that division. According to APD, some of the problems discovered were more serious than originally anticipated, leading the City and APD leadership to conclude the entire division would need to be restructured.

         At the outset of restructuring, the organized crime division comprised several smaller units: the human trafficking unit, the gang suppression unit, the career criminal unit, and one or more narcotics units. After deciding the longstanding problems could not be corrected under existing division leadership, APD informed the highest ranking officers-including the division commander and three lieutenants-that they would be reassigned to other divisions. The next-highest ranking officers-the sergeants-were offered interviews that afforded each sergeant an opportunity to explain how he or she would address the problems within the organized crime division. One sergeant chose to retire without attending his interview, and four others were reassigned to other divisions. APD also reassigned several detectives and other lower-ranking officers. Of the 107 officers in the organized crime division in May of 2013, a total of 29 were reassigned or chose to retire by the end of the year.

         These personnel decisions ultimately led the plaintiffs here to file individual complaints with the Texas Workforce Commission alleging discrimination on the basis of ethnicity, national origin, race, and age in violation of section 21.051 of the Texas Labor Code. Upon receiving their respective notices of claim closure and right-to-sue letters, they then jointly filed this suit against the City. The City raised a defense of governmental immunity through a series of pleas to the jurisdiction and motions for summary judgment. The district court granted the City's pleas to the jurisdiction and motions for summary judgment and issued orders rendering a take-nothing judgment against each plaintiff. The plaintiffs now appeal from those orders.


         The district court's jurisdiction is a question of law we review de novo. Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 551 (Tex. App.-San Antonio 2002, pet. denied). "Immunity from suit bars a suit against the State unless the Legislature expressly consents to the suit." Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental unit may raise the issue of immunity and challenge jurisdiction "through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment." Alamo Heights Indep. Sch. Dist. v. Clark, S.W.3d,, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

         "The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute." Id. The Supreme Court of Texas recently clarified the analytical framework for evaluating jurisdiction over a TCHRA claim based on circumstantial, rather than direct, evidence of discrimination. See generally id. (analyzing claims of discrimination and retaliation). If the defendant in such a case presents evidence of a legitimate, non-discriminatory justification for the employment actions taken-as the City has done here-the plaintiff cannot establish jurisdiction merely by pleading a prima facie claim of discrimination or retaliation. Id. at *7. Instead, the plaintiff "must raise at least a genuine issue of material fact" regarding each element of the claim. Id. (quoting Miranda, 133 S.W.3d at 221); see also id. at *17 ("All elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional."). "In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor." Id. at *7 (citing Miranda, 133 S.W.3d at 228). "In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not." Id.


         The plaintiffs' legal theories have evolved over the course of this litigation, with some plaintiffs alleging discrimination by disparate treatment and others alleging discrimination by disparate impact. "[Courts] long have distinguished between 'disparate treatment' and 'disparate impact' theories of employment discrimination." Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993). Disparate treatment refers to an employment decision made with an intent to target one or more members of a protected group, whereas disparate impact refers to employment decisions made in accordance with some policy that, although facially neutral, affects members of a protected class more adversely than other employees. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (explaining the difference between the two theories of discrimination). The parties have briefed this Court as though each plaintiff is pursuing both claims. We assume, for the purpose of this analysis, that each plaintiff has properly pleaded the two claims, exhausted any administrative remedies, and preserved his or her arguments for our review.[1]

         Disparate ...

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