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Smith v. Harris County

Court of Appeals of Texas, First District

April 18, 2019

RONALD SMITH, Appellant
v.
HARRIS COUNTY, Appellee

          On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2016-49448

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          JULIE COUNTISS, JUSTICE

         Appellant, Ronald Smith, challenges the trial court's rendition of summary judgment in favor of appellee, Harris County, in his suit against it for retaliation under the Texas Commission on Human Rights Act ("TCHRA").[1] In his sole issue, Smith contends that the trial court erred in granting Harris County summary judgment.

         We affirm.

         Background

         In his petition, Smith alleged that on April 15, 1996, he began working for Harris County as a Juvenile Probation Officer for the Harris County Juvenile Probation Department ("HCJPD"). On April 7, 2008, he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On April 2, 2012, he filed a second charge of discrimination with the EEOC.

         In June 2015, Smith "applied for a promotion to the position of Intake [Screening] Supervisor" for the HCJPD, but, according to Smith, Harris County "gave the promotion to a lesser qualified employee by the name of Doris Cisneros." Smith alleged that Harris County denied him the promotion because he had previously filed EEOC charges in 2008 and 2012. Smith brought a claim against Harris County for retaliation under the TCHRA.[2]

         Harris County answered, generally denying Smith's allegations and asserting additional defenses. Harris County then filed a combined no-evidence and matter-of-law summary-judgment motion, asserting that to establish a prima facie case of retaliation, Smith was required to show: (1) he had engaged in a protected activity, (2) he suffered an adverse employment action, and (3) a causal link existed between Smith's protected activity and the adverse employment action. It further asserted that no evidence established a causal link between Smith's protected activity, i.e., the filing of his EEOC charges in 2008 and 2012, and the adverse employment action, i.e., Harris County's June 2015 denial of a promotion for the position of Intake Screening Supervisor. Harris County argued that Smith's retaliation claim also failed because it had "a legitimate[, ] non-discriminatory reason for not promoting" Smith to the position of Intake Screening Supervisor and no evidence established that Harris County's articulated reason was merely pretextual.

         Harris County attached to its summary-judgment motion the affidavit of Tim Broussard, the former Deputy Director of Intake and Court Services Division for the HCJPD; the affidavit of Alice Charlene Laskoskie, the former Intake Administrator for the Intake and Court Services Division for the HCJPD and the current Assistant Deputy Director for the Intake and Court Services Division; the affidavit of Steve Willing, the former Assistant Deputy Director of the Intake and Court Services Division for the HCJPD and the current Deputy Director of Intake and Court Services Division; the affidavit of Bianca Malveaux, an Assistant Deputy Director of Administrative Services ("HR") for the HCJPD; the job posting for the Intake Screening Supervisor position; a document titled "Procedure [f]or Hiring" related to the position of Intake Screening Supervisor; the job description for the Intake Screening Supervisor position; an email from Broussard related to Smith's removal from "the designation of Lead Officer"; notes taken by Laskoskie, Willing, and Malveaux during their interviews of the applicants for the Intake Screening Supervisor position; Smith's deposition testimony; and Smith's 2008 and 2012 EEOC charges.

         In his response to Harris County's summary-judgment motion, Smith asserted that he began working for Harris County as a Juvenile Probation Officer for the HCJPD in 1996 and he has worked in the intake unit, the field unit, and the court unit. While working in the intake unit, Smith's job "included the pre-booking/intake/detainment/detention hearing report and . . . release process of juveniles admitted into the Harris County Juvenile Justice Center detention." Smith also interviewed families and juveniles, collected paperwork from hospitals and schools, and created "summar[ies]" for judges. According to Smith, he was never disciplined at work and he took "the time to professionally develop younger employees in the absences of supervisors."

         Smith further asserted in his response that, from 2006 to 2007, he served as a "Lead Officer/Senior Officer" for the Intake and Court Services Division for the HCJPD. According to Smith, "[a] Lead Officer does basically everything that a supervisor does except there is no increase in pay." While serving as a Lead Officer, Smith oversaw fifteen other officers. Smith was removed from his role as a Lead Officer after a year because another Lead Officer "return[ed] from military leave."

         In 2008, Smith filed an EEOC charge against Harris County for sex and race discrimination stemming from treatment that he had received from his supervisor, Patricia Sanders. At the time of Smith's 2008 EEOC charge, Laskoskie was Sanders's manager and Broussard was Laskoskie's manager. According to Smith, Laskoskie was ultimately "the decision maker who decided not to promote Smith" in 2015. In 2012, Smith filed a second EEOC charge "because he was not promoted to two positions he was qualified for in November 2011 and March 2012 in retaliation for [the] filing of his 2008 EEOC charge."

         According to Smith, in June 2015, a three-person screening committee consisting of Laskoskie, Willing, and Malveaux interviewed eleven applicants for the position of Intake Screening Supervisor. Each applicant was asked the same six questions in his or her interview. Ultimately, Cisneros was hired for the position of Intake Screening Supervisor, although Smith asserted that she was "significantly less qualified" than him. Smith explained that Cisneros "worked very closely with Laskoskie," and Laskoskie and Malveaux, who were both members of the screening committee, "were aware of Smith's 2012 and 2008 EEOC charges."

         Moreover, Smith asserted in his summary-judgment response that Cisneros was subsequently removed from her position as Intake Screening Supervisor and "abruptly switched . . . into a different position away from the Intake line staff." While Cisneros served as Intake Screening Supervisor, she, according to Smith, falsely accused him "of closing certain deferred prosecution cases without Intake [M]anagement's permission."

         Smith argued that circumstantial evidence showed a causal link between his filing of his 2008 and 2012 EEOC charges and Harris County's June 2015 denial of his promotion to the position of Intake Screening Supervisor because Harris County "failed to follow its . . . hiring policy when it failed to promote" him; Laskoskie, a member of the screening committee, had a personal relationship with Cisneros, who was eventually hired for the position of Intake Screening Supervisor; Laskoskie and Malveaux, members of the screening committee who interviewed the applicants for the promotion, knew of Smith's previous EEOC charges as did Broussard, "who had the final say on the [I]ntake [Screening] [S]upervisor promotion"; Cisneros was "significantly less qualified than Smith" for the position of Intake Screening Supervisor; and "[t]emporal proximity exist[ed] between the conduct complained of" and Smith's EEOC charges. Smith further asserted that "Harris County's non-discriminatory reason for not choosing [him] for [the] promotion to [Intake Screening] [S]upervisor in June 2015 [was] pretextual."

         Smith attached to his summary-judgment response his resume; his deposition testimony; his affidavit; Broussard's 2014 deposition testimony purportedly from a 2012 lawsuit between the parties; the job description for a Juvenile Probation Officer in the Intake and Court Services Division of the HCJPD; his 2008 and 2012 EEOC charges; notes taken by Laskoskie, Willing, and Malveaux during their interviews of the applicants for the Intake Screening Supervisor position; his original petition from his 2012 lawsuit between the parties and a March 24, 2014 "Order Granting Plaintiff's Notice of Dismissal Without Prejudice" related to that lawsuit; the job posting for the Intake Screening Supervisor position; an email regarding Smith's "new responsibilities as [a] Lead Officer on weekends"; and Broussard's "Harris County Grievance Form 200 Supervisor Response."

         In its reply to Smith's response, Harris County asserted that Smith failed to bring forth "any circumstantial evidence to establish the requisite causal connection or retaliatory animus." More specifically, Harris County asserted that it followed its policies and procedures for promoting an individual to the position of Intake Screening Supervisor, "[t]here was no discriminatory treatment toward[] [Smith] in relation to others that applied for the" Intake Screening Supervisor position, any knowledge by the screening committee members of Smith's previous EEOC charges, standing alone, was not sufficient to demonstrate a causal connection, there was no evidence "that the reason . . . Cisneros was promoted over [Smith] was false," and "[t]oo long of a temporal proximity exist[ed] between the conduct complained [of] and [Smith's EEOC] charge[s] of discrimination."

         The trial court, without specifying the ground, granted Harris County summary judgment on Smith's retaliation claim.

         Standard of Review

         We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).

         A party seeking summary judgment may combine in a single motion a request for summary judgment under the no-evidence standard with a request for summary judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004). When a party has sought summary judgment on both grounds and the trial court's order does not specify its reasons for granting summary judgment, we first review the propriety of the summary judgment under the no-evidence standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a(i). If we conclude that the trial court did not err in granting summary judgment under the no-evidence standard, we need not reach the issue of whether the trial court erred in granting summary judgment as a matter of law. See Ford Motor Co., 135 S.W.3d at 600.

         To prevail on a no-evidence summary-judgment motion, the movant must establish that there is no evidence to support an essential element of the non-movant's claim on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ford Motor Co., 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal quotations omitted).

         To prevail on a matter-of-law summary-judgment motion, the movant must establish that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a defendant moves for a matter-of-law summary judgment, it must either: (1) disprove at least one essential element of the plaintiff's cause of action, or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff's cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.- Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded fact finders could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

         Summary Judgment

         In his sole issue, Smith argues that the trial court erred in granting Harris County summary judgment on his retaliation claim because he established a causal link between his protected activity and the adverse employment action and "Harris County's non-discriminatory reason for not choosing [him] for [the] promotion to [Intake Screening] [S]upervisor in June 2015 [was] pretextual."

         The TCHRA prohibits an employer from retaliating against an employee for engaging in certain protected activities. See Tex. Lab. Code Ann. § 21.055; see also Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 822 (Tex. App.- Houston [1st Dist.] 2012, pet. denied). Because one of the purposes of the TCHRA is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964," when analyzing a retaliation claim brought under the TCHRA, we look not only to state cases but also to analogous federal statutes and the cases interpreting those statutes. See Tex. Lab. Code Ann. § 21.001(1); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012).

         To prevail on a retaliation claim under the TCHRA, an employee must establish a prima facie case by showing: (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse action. Chandler, 376 S.W.3d at 822. Protected activities include: (1) opposing a discriminatory practice, (2) making or filing a charge, (3) filing a complaint, or (4) testifying, assisting, or participating in any manner in an investigation, proceeding or hearing. See Tex. Lab. Code Ann. § 21.055; Datar v. Nat'l Oilwell Varco, L.P., 518 S.W.3d 467, 477 (Tex. App.- Houston [1st Dist.] 2017, pet. denied). Here, it is undisputed that Smith engaged in a protected activity by filing his 2008 and 2012 EEOC charges and an adverse employment action occurred, i.e., Harris County's June 2015 denial of a promotion to Smith for the position of Intake Screening Supervisor. See Haire v. Bd. 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."); Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018) ("An employee engages in a protected activity by . . . making a charge of discrimination with the EEOC.").

         Harris County moved for summary judgment, arguing, in part, that no evidence established a causal link between Smith's protected activity, i.e., the filing of his EEOC charges in 2008 and 2012, and the adverse employment action, i.e., the June 2015 denial of a promotion to Smith for the position of Intake Screening Supervisor.

         An employee asserting a TCHRA retaliation claim must establish that, in the absence of his protected activity, his employer's prohibited conduct would not have occurred when it did. Chandler, 376 S.W.3d at 823; Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.-Fort Worth 2006, no pet.). Thus, an employee must establish a "but for" causal nexus between the protected activity and the prohibited conduct. Chandler, 376 S.W.3d at 823 (internal quotations omitted); Herbert, 189 S.W.3d at 377 (internal quotations omitted). However, an employee is not required to establish that the protected activity was the sole cause of the employer's prohibited conduct. Chandler, 376 S.W.3d at 823; Herbert, 189 S.W.3d at 377.

         A retaliation plaintiff generally may rely on circumstantial evidence to establish a causal link between the protected activity and the retaliatory action. Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015); see Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 389 (Tex. 2005). Circumstantial evidence sufficient to show a causal link between an adverse employment decision and an employee's protected activity may include: (1) the employer's failure to follow its usual policies and procedures in carrying out the challenged employment actions; (2) discriminatory treatment in comparison to similarly situated employees; (3)evidence that the stated reason for the adverse employment decision was false; (4) the temporal proximity between the employee's conduct and the challenged conduct; and (5) knowledge of an employee's discrimination charge or suit by those making the adverse employment decision. Datar, 518 S.W.3d at 478; see also Alamo Heights, 544 S.W.3d at 790. "[A]n employee's subjective beliefs of retaliation are merely conclusions and do not raise a fact issue precluding summary judgment" in a retaliation claim. Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex. App.-Fort Worth 2006, no pet.) (citing Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994)).

         A. Policies and Procedures

         In his summary-judgment response, Smith argued that Harris County failed to "follow company polic[ies] and procedures" when hiring for the Intake Screening Supervisor position because Thomas Brooks, the purported Chief Juvenile Probation Officer/Executive Director in 2015, was required to make the June 2015 hiring decision for the Intake Screening Supervisor position. In support of his argument, Smith relies solely on the job description for the Intake Screening Supervisor position, which states: "The Chief Juvenile Probation Officer/Executive Director shall hire the employees of the Probation Department."

         Broussard, in his affidavit, testified that in 2015, he was the Deputy Director of Intake and Court Services Division for the HCJPD, and as deputy director, he was responsible for the Intake Screening and Court Services Units. In June 2015, he posted a notice for an open Intake Screening Supervisor position. According to Broussard, in general, "[t]he selection process for choosing the best qualified application for that position beg[an] with a screening committee," who "first conduct[ed] interviews [with] all of the qualified applicants." Because the screening committee and/or HR pre-screen[ed] all applicants, "only those who me[t] the minimum requirements" for the position were interviewed. Once the screening committee completed its interviews of the applicants, it prepared a list of the most qualified applicants for Broussard to consider. According to Broussard, "[t]his practice [was] reflected in the HCJPD's policies and procedures for the office."

         Broussard further explained that because, in the instant case, the position to be filled was a supervisor position, the screening committee consisted of two higher level employees from the Intake Screening Unit along with an HR representative who chaired the committee. Here, the screening committee included Laskoskie, who at the time was the Intake Administrator for the Intake and Court Services Division, and Willing, who at the time was the Assistant Deputy Director of the Intake and Court Services Division. Broussard, as Deputy Director of Intake and Court Services Division, was "authorized to make the final decision to select the best [applicant] for the position."

         According to Broussard, in June 2015, he met with the screening committee and received the names of the two applicants that the committee had selected as the most qualified: Cisneros and Laura Gallardo. Smith was not included in the screening committee's list of most-qualified applicants. Broussard discussed the merits of each applicant with the members of the screening committee, and because Laskoskie would ultimately be the manager over the individual selected for the Intake Screening Supervisor position, he asked her opinion as to "the more preferable" applicant. Laskoskie "advised [that] she would prefer" Cisneros for the position, and the other members of the screening committee agreed with Laskoskie's recommendation. Broussard approved Cisneros for the Intake Screening Supervisor position.

         In addition to Broussard's affidavit testimony, the record also contains Broussard's 2014 deposition testimony that was purportedly taken in the course of Smith's 2012 lawsuit involving the same parties. There, Broussard testified that he had previously served as an Intake Screening Supervisor in the Intake and Court Services Division of the HCJPD from 2000 until 2007, when he was then appointed to be the Administrator of Intake Screening for the Intake and Court Services Division. In August 2009, he was appointed as Deputy Director of Intake and ...


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