Court of Appeals of Texas, Third District, Austin
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
THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-14-002459, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Chief Justice Rose, Justices Field and Bourland
Rose, Chief Justice
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
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
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
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.
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)).
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.
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.