Opinion
08-24-00034-CV
10-28-2024
CITY OF SAN ANTONIO, Appellant, v. ALFRED E. CARNOT, Appellee.
Appeal from the 131st Judicial District Court of Bexar County, Texas (TC# 2022CI15901)
Before Palafox and Soto, JJ., and Salas Mendoza, Judge Salas Mendoza, Judge (sitting by assignment)
MEMORANDUM OPINION
GINA M. PALAFOX, Justice
Appellee Alfred Carnot worked for Appellant, the City of San Antonio (the City), as an airport police officer assigned to the San Antonio International Airport. Following his employment termination, Carnot filed suit against the City, alleging it had unlawfully retaliated against him based on his filing of a claim of disability discrimination. The City filed a combined plea to the jurisdiction and summary judgment motion based on governmental immunity, which the trial court denied. We reverse the trial court's order and render judgment dismissing Carnot's claim based on lack of jurisdiction.
I. Factual and Procedural Background
Carnot worked for the City from 2015 to 2022. Initially, Carnot was employed as a patrolman with the airport police. In 2017, he was selected to serve as quartermaster and promoted to the rank of corporal. Carnot attested that shortly after his promotion, he informed Lieutenant Karen Falks and Captain Paul Biasiolli, his supervisors, of his dyslexia and dyscalculia diagnoses. He claims that, in response, Lieutenant Falks and Captain Biasiolli thereafter engaged in instances of "demeaning or humiliating actions" towards him.
From 2019 through 2022, Carnot averred that he received increasing reprimands. For example, on September 23, 2019, he received a written reprimand. The basis for the reprimand stated Carnot had failed to maintain his quartermaster office in an organized and presentable appearance as required by department policies. The reprimand also stated Carnot was continuously reminded to clean up and organize his workspace in violation of the City's core value of professionalism. On September 26, 2019, Carnot received a second written reprimand for failing to properly perform his quartermaster responsibilities. On February 18, 2020, Carnot received a one-day suspension for violating the Municipal Civil Service Rules. Less than a month later, after Carnot himself requested a voluntary demotion, he was demoted to patrolman.
On December 5, 2020, Carnot filed a formal Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission-Civil Rights Division (TWCCRD). Carnot alleged that after he informed his supervisor, Lieutenant Richard Griffin, of his disability, he was harassed in response. For example, Carnot asserted he had inventory organized by color-coding due to his disability, but management instructed him to change it as it was not liked nor appreciated. Carnot also reported on another occasion, he was tasked with counting 8,000 rounds of ammunition, for which he requested an accommodation due to his disability, but his request was denied. He acknowledged he had erred, and his count was off by 200 rounds. He further described he had been reprimanded for having an office cluttered with police equipment. Management also sent him for training, and he was subjected to disciplinary action for lost police equipment. Carnot alleged these actions amounted to harassment for which he demoted himself.
In his Charge of Discrimination, Carnot merely described that he had a disability without providing any further details or specificity. Later, he testified by affidavit that he had filed his Charge of Discrimination in response to Lieutenant Falks and Captain Biasiolli's refusal to accommodate his medical conditions and for other actions that were demeaning and humiliating to him. Carnot attested that both Lieutenant Falks and Captain Biasiolli seemed to change their demeanor towards him. He claimed they both assigned him demeaning tasks intended to humiliate him. Additionally, he asserted he was given tasks to perform that were outside the scope of duties required of a quartermaster.
We note, Carnot's affidavit attests that he was reprimanded for failing to timely and accurately count "88,000 rounds of ammunition." Not 8,000 rounds as claimed in his formal charge of discrimination.
Before the City received notice from the EEOC of Carnot's discrimination charge, the EEOC had already issued a dismissal and notice of rights on January 6, 2021 (a right to sue letter). In the meantime, and shortly thereafter, other circumstances arose with Carnot's employment. A few days after Carnot had filed his disability discrimination charge, Captain Biasiolli raised issues with him over a DWI arrest report he had authored. Captain Biasiolli ordered Carnot to attend retraining on Standard Field Sobriety testing. In September 2021, the City then issued a three-day suspension to Carnot. The suspension form stated that Carnot had mishandled a police incident and failed to file several required reports when booking an arrested person. The suspension arose from two different incidents.
First, on March 9, 2021, the City alleged Carnot mishandled a police incident concerning an arrested person charged with violating a criminal trespass warning. Specifically, the City claimed Carnot had failed to submit an arrest report, a booking affidavit, and a computerized criminal history report. He also failed to submit a booking slip to include the charges, the arresting officer's information, and the transporting officer's information. It was noted that Carnot had not processed a criminal trespass warning before but failed to contact an on-duty supervisor for guidance. The second incident involved Carnot failing to activate his body-worn camera on May 20, 2021. Per San Antonio Airport Police Department General Manual Procedure, a body- worn camera is required to be activated when an officer initiates contact with a citizen for law enforcement purposes. The City noted it had received a citizen's complaint against Carnot alleging rudeness on his part. Because he had failed to activate his camera, the City could only resolve the complaint by classifying it as inconclusive.
On September 3, 2021, Carnot handled another DWI charge. After Carnot booked the arrested person, the City claimed he failed to adequately perform his duties as follows: (1) he failed to inform the arrested person of his right to request notification of their consulate, (2) he failed to include the identity of a female who informed Carnot that she had witnessed the event, (3) he failed to document the arrested person's personal information, vehicle information, and address, (4) he failed to offer breath/blood testing to the arrested person, (5) he failed to collect and record the evidence associated with the arrest, (6) he failed to correctly submit an affidavit for a blood draw warrant, (7) he failed to document damage sustained to a citizen's vehicle that occurred while handcuffing the arrested person, and (8) he failed to accurately complete several reports. The City also noted he failed to contact an on-duty supervisor for guidance. Based on these deficiencies, the City issued a Notification of Proposed Termination for Classified Employees. The form was signed by Chief William P. McManus. A few days later, on January 13, 2022, the City issued its Final Termination Notice to Carnot, also signed by Chief McManus.
Following his termination, Carnot filed a second Charge of Discrimination with the EEOC and the TWCCRD based on his termination. Carnot alleged the following:
On December 5, 2020, I filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) in which I alleged discrimination based on my disability. On or about September 3, 2021, I made an arrest which led to my termination. Following this arrest, I was subjected to an Internal Affairs (IA) investigation regarding this arrest. Among the reasons to justify the IA investigation were that I hadn't informed the suspect of his right to contact his consulate (I contend that this was the first I was aware of this requirement of me to do so), that I mishandled the documents from our new system (I contend that IA even sent out a recommendation on how to properly download the documents from our new
system, but only alter I was being investigated), and that I improperly stored evidence (I contend that I was previously told not to store evidence that can attract ants which may contaminate other evidence in the property room). I also believe that Lieutenant Walker had a vendetta against me for filling a charge with EEOC as I learned that he had shown others my body camera footage of this arrest in an attempt to isolate any perceived use of force on my part. On or about January l3, 2022, I was terminated I believe that I was retaliated against for filling an EEOC Charge of Discrimination in violation of the Americans with Disabilities Act of 1990, as amended.
After receiving a right to sue letter, Carnot filed suit against the City alleging retaliation in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.051.
Carnot's live petition reflects that he had also alleged the City had discriminated against him by failing to recognize he had a disability for which he was entitled to reasonable accommodations. On appeal, both Carnot and the City describe that only his claim of retaliation remained at issue in the case.
The City filed an answer and a combined traditional motion for summary judgment and plea to the jurisdiction based on governmental immunity. Carnot responded to the motion and the City filed a reply. The trial court held a hearing on the plea and motion and denied both. In making its ruling, the trial court also struck the City's reply and amended reply. This appeal followed.
II. Issues on Appeal
The City presents two issues on appeal. First, the City asserts Carnot failed to timely exhaust administrative remedies, which is a jurisdictional prerequisite to suit for employment retaliation. Specifically, the City contends Carnot failed to file a sworn complaint or to include the requisite declaration required by law to exhaust administrative remedies. Second, the City asserts Carnot failed to state a prima facie case of retaliation; and, even if he did meet his initial burden, it urges he both failed to raise a fact issue on pretext and failed to provide the but-for causation proof required for a retaliation claim so as to survive the jurisdictional plea or summary-judgment motion once the City had established its legitimate, non-retaliatory reason for its adverse employment action.
Because we determine second the issue is dispositive, we reorder the issues and address the City's second issue first.
III. Standard of Review
Sovereign immunity deprives a trial court of jurisdiction over suits against the State absent the Legislature's consent to suit. See Texas Dep't of Parks &Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). "Political subdivisions of the state, including cities, are entitled to such immunity-referred to as governmental immunity-unless it has been waived." Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity from suit may be asserted in a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
The Legislature has waived immunity from suit for employment discrimination and retaliation claims arising under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.254; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (Garcia I). However, the TCHRA only waives governmental immunity for suits in which a plaintiff alleges sufficient facts to establish a prima facie violation of the Act. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012) (Garcia II). Accordingly, whether a plaintiff has established a prima facie case of discrimination against a governmental employer under the TCHRA is a jurisdiction issue. Alamo Heights, 544 S.W.3d at 770.
We review de novo a trial court's ruling on a plea to the jurisdiction because whether a court has subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226; Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). "[W]hether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. However, in some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact." Miranda, 133 S.W.3d at 226. In such cases, "this standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228.
"[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised[.]" Id. at 227. "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Id. 227-28. "[I]f the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law." Id. at 228. Further, all reasonable inferences are indulged, and any doubts resolved, in favor of the nonmovant. Id.
IV. Jurisdictional Evidence in support of Retaliation
In its second issue, the City asserts Carnot failed to state a prima facie case of retaliation; and, even if he did, he otherwise failed to raise a genuine issue of fact on the element of pretext, or the but for causation standard.
A. Retaliation
The TCHRA prohibits an employer from retaliating against its employee for engaging in certain protected activities. Tex. Lab. Code Ann. § 21.055. Examples of such 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. Id. Here, Carnot's lawsuit alleges the City's decision to terminate his employment constituted unlawful retaliation under § 21.055, as he claims, the City took a material adverse action against him for engaging in a protected activity. In short, Carnot contends the City retaliated against him in January 2022 when it terminated his employment because he had filed a Charge of Discrimination in 2020.
Texas courts recognize two alternative methods of proof to establish a valid claim of unlawful retaliation under the TCHRA. Kaplan v. City of Sugar Land, 525 S.W.3d 297, 302 (Tex. App.-Houston [14th Dist.] 2017, no pet.). A plaintiff may prove unlawful retaliatory intent by direct evidence. Id. Yet, because it is well-recognized that direct evidence is hard to come by, a plaintiff can also establish his case through circumstantial evidence. See Alamo Heights, 544 S.W.3d at 782. In such a case, the three-part McDonnell Douglas burden-shifting framework enables an employee to establish retaliation discrimination with circumstantial evidence. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).
To establish a prima facie case of retaliation, an employee must show: (1) he participated in protected activity, (2) his employer took an adverse employment action against him, and (3) a causal connection existed between his protected activity and the adverse action. Id.; San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). As a part of the prima facie case, the causation standard is not onerous and can be satisfied merely by proving close timing between the protected activity and the adverse action. Alamo Heights, 544 S.W.3d at 782. If the employee meets this burden, the burden shifts to the employer to provide evidence of a legitimate, nondiscriminatory, reason for the adverse action. Id. (citing McDonnell Douglas Corp., 411 U.S. at 802-05); Hernandez v. Grey Wolf Drilling, L.P., 350 S.W.3d 281, 286 (Tex. App.-San Antonio 2011, no pet.). If the employer meets this burden, the burden shifts back to the employee to overcome the rebuttal evidence by raising a genuine issue of material fact indicating that the employer's stated reason is pretextual or that, but-for the protected activity, the termination would not have occurred when it did. County of El Paso v. Flores, 677 S.W.3d 31, 43 (Tex. App.-El Paso 2023, pet. denied) (citing McDonnell Douglas, 411 U.S. at 804). "The but-for causation standard [in this context] is significantly more difficult to prove than prima facie causation." Alamo Heights, 544 S.W.3d at 782. More recently, in 2021, the Supreme Court confirmed that the but- for causation standard applied in cases alleging retaliation for opposing discriminatory practices under § 21.055. See Apache Corp. v. Davis, 627 S.W.3d 324, 335 (Tex. 2021) (citing Alamo Heights, 544 S.W.3d at 782-83, 790).
B. Analysis
Assuming Carnot established a prima facie case for his retaliation claim, the burden shifted to the City to offer controverting evidence showing Carnot was terminated for other legitimate reasons. Alamo Heights, 544 S.W.3d at 783. In its Final Termination Notice, the City noted the bases for his termination were outlined in its Notice of Proposed Termination issued on January 6, 2022. The City documented that Carnot had mishandled a police incident involving a DWI case, pointing out, among other things, that he had failed to identify a female who had informed Carnot that she witnessed the event; failed to document pertinent information; and failed to accurately complete several reports. The City further noted the actions violated subsections of Rule XVII of the Municipal Civil Service Rules and policies of the San Antonio Airport Police General Manual. Based on the evidence presented, we determine the City produced evidence of a legitimate, nondiscriminatory reason for the disputed employment action. See id. at 782.
After Carnot filed an objection, the trial court sustained his objection to the City's reply because it raised a new summary judgment ground late and on the eve before the hearing, without providing adequate notice. The City's reply had asserted that Carnot had failed to raise a prima facie case of retaliation, which is the first step of the three step, McDonnell Douglas framework. Ordinarily, because the City is a governmental unit, the question of whether Carnot had established a prima facie case of retaliation implicates the trial court's subject matter jurisdiction. See Alamo Heights, 544 S.W.3d at 770; Garcia, 372 S.W.3d at 635-36; see also San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015) (explaining appellate court was obligated to consider new jurisdictional arguments on appeal when governmental entity challenged plaintiff's prima facie case under TCHRA). For our purposes, we determine we will resolve this aspect of the analysis by assuming without deciding that Carnot met his initial burden to establish a prima facie case of retaliation. Our analysis, then, focuses on the second and third steps of the evidentiary framework.
Because the City demonstrated legitimate reasons for Carnot's termination, the burden shifted to him to raise a genuine issue of material fact showing that the City's stated reasons were pretextual and he would not have been terminated but for his protected activity. See id. at 790. In evaluating but-for causation evidence in retaliation cases, the Texas Supreme Court has instructed us to examine "all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee's protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer's stated reason is false." Id. Because these factors are not exclusive, we must still consider "all of the circumstances." Id.
To begin, Carnot initially concedes that he failed to identify a female witness of the DWI event and violated several other procedures. To this extent, he does not challenge per se the violations listed in the City's notice of proposed termination. Instead, he asserts the City's reasons were a pretext for its retaliation. Carnot contends that: (1) his supervisors knew of his 2020 Charge of Discrimination, (2) he was treated differently than a similarly situated employee and the disciplinary action applied to him was too severe, and (3) Captain Biasiolli acted hostile towards him and his disability. Based on these assertions, Carnot claims the evidence he presented raised a genuine issue of material fact regarding whether the City's reasons for terminating his employment were merely a pretext for its retaliation against him.
We consider each factor in turn.
(1) The decision makers' knowledge of Carnot's protected activity
Carnot asserts he presented evidence of Captain Biasiolli's negative attitude towards him and his knowledge of Carnot's 2020 Charge of Discrimination. Relying on the City's own policy, Carnot contends the City routinely claims that "[e]very complaint shall be documented thoroughly and investigated promptly[,]" and thus, it can be reasonably inferred that the City investigated Carnot's 2020 Charge of Discrimination consistent with its policy. And Carnot further claims an inference can be made that the City's investigation would have necessarily included Carnot's supervisors. From this reasoning, Carnot contends the evidence supports his contention that Captain Biasiolli retaliated against him for his filing of the disability discrimination charge. We disagree.
Carnot's evidence of the City's investigation policy, coupled with his claim that Captain Biasiolli expressed a negative attitude, is insufficient to raise a fact issue on whether "the final decision-makers" knew of his protected activity at the time of his termination. See Texas Health &Human Servs. Comm'n v. Enriquez, 642 S.W.3d 21, 35 (Tex. App.-El Paso 2021, no pet.) ("In order to establish a causal connection between an employee's protected activity and an adverse employment action, the focus is on the final decision-makers and what knowledge, if any, they had at the time of the adverse action."). From the record, it is clear Chief McManus signed off on Carnot's termination, with Brian Reyes signing off as a supervisor. There is also evidence that Chief McManus was the ultimate decision maker when it came to discipline. The record contains no evidence that Chief McManus knew of the 2020 Charge of Discrimination claim. In fact, Carnot testified that he did not have any complaints regarding McManus's treatment of him. Carnot contends that Captain Biasiolli and Lieutenant Falks knew of the 2020 Charge as evidenced by their hostility towards him, but Carnot failed to raise a fact issue that Captain Biasiolli or Lieutenant Falks were individuals with any influence over Chief McManus or the decision to terminate. See Rodriguez v. City of Poteet, No. 04-13-00274-CV, 2014 WL 769286, at *9 (Tex. App.-San Antonio Feb. 26, 2014, no pet.) (mem. op.) (holding the record established that the decision to terminate plaintiff was made by the city council and not mayor, who plaintiff asserted possessed retaliatory animus towards him, and there was no evidence to suggest any animus of the mayor was imputed or exerted influence over the decision).
Carnot also complains of Captain Biasiolli's testimony at a civil service appeal hearing. Specifically, when asked what the incident was that led to the proposed termination, Captain Biasiolli testified that Carnot "lied under oath [] when he submitted his affidavit for a search warrant for the blood of an individual." Carnot contends this shows Captain Biasiolli was retaliating against Carnot. However, any mention of Carnot being untruthful in an affidavit was not included in the listed bases for termination. Carnot has thus failed to provide sufficient evidence that would rise to a genuine issue of material fact on a causal connection between Captain Biasiolli's alleged animosity and his termination.
(2) Disparate treatment theory
Carnot also presented evidence of the disciplinary record of two different employees, claiming the evidence raised a factual issue on whether he was treated differently from others in similar situations. To establish disparate treatment, Carnot must demonstrate that he and other employees were "similarly situated" employees and that the other employees were treated more favorably under "nearly identical circumstances." Rodriguez, 2014 WL 769286, at *7 (quoting Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005)). Carnot and the other employees must be similarly situated in "all material respects, including similar standards, supervisors, and conduct." Alamo Heights, 544 S.W.3d at 791; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). It is not "nearly identical" if the two have "different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records ...." AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (per curiam).
Carnot contends he presented evidence of the discipline of Officer Babcock, who only received a written reprimand in response to a "similar situation." Problematically, Carnot provides no details on the "similar situation" of this comparator. Rather, Nathalie Bullock-the City's Human Resources Administrator-testified as to an email she sent to Captain Biasiolli on August 29, 2021. The subject of the email provided, "Carnot discipline review," and it concerned two separate incidents that resulted in Carnot's three-day suspension. In the email, Bullock discussed Carnot's disciplinary history, recommended the 3-day suspension, and referenced Officer Babcock "who had a similar situation" where they issued a written reprimand. Bullock stated she did not recall the details of Officer Babcock's specific situation. Still, Carnot contends that Officer Babcock was an airport police officer who was disciplined for a similar situation and the situation involved Captain Biasiolli as his supervisor. There is no evidence that Officer Babcock held the same position as Carnot or whether Captain Biasiolli was also his supervisor. However, even if we assume these claims were true, there is no evidence describing the details of Officer Babcock's conduct, his responsibilities, his specific violations, or his disciplinary record in general. In addition to not producing enough details, Carnot's argument also fails because he attempts to compare Officer Babcock's situation with his own prior suspension, not his termination.
Next, Carnot presents evidence of Officer Ledesma who was disciplined for not conducting a thorough investigation on a DWI case. Captain Biasiolli viewed a video where the individual appeared to be intoxicated but Officer Ledesma released the suspect. Officer Ledesma was subjected to an Internal Affairs investigation and the charges against him were sustained. As for punishment, Officer Ledesma received a written reprimand. Carnot asserts that he similarly was subject to an Internal Affairs investigation for mishandling a DWI stop but, rather than receive a reprimand, he was terminated. Also, Carnot points out the DWI incident from which he was disciplined resulted in an arrest, conviction, and punishment of the suspect. In comparison, Officer's Ledesma's mishandling of an incident resulted in the suspected driver avoiding any charges. However, like with Babcock, there is no evidence of Ledesma's responsibilities or Ledesma's disciplinary record. Without necessary details, there is insufficient evidence to rise to a genuine issue of material fact that other employees were treated more favorably than Carnot in a nearly identical circumstance. See Rodriguez, 2014 WL 769286, at *8.
(3) Other evidence of retaliatory and discriminatory animus
Carnot also asserts he presented evidence raising a fact issue that Captain Biasiolli and Lieutenant Falks were hostile towards him due to his disability. For example, he asserts both displayed hostility towards him after he disclosed his disability and initiated his 2020 Charge of Discrimination. Additionally, he contends Captain Biasiolli rejected his requests for accommodation in the form of permitting him to use color coding to organize and complete inventory. By his affidavit, Carnot points out he was "terminated based on a recommendation by Captain Biasiolli, the very police officer who had originally mocked and targeted [him] after [his] disclosure of [a] disability." Generally, self-serving, speculative, and conclusory statements of fact or law are insufficient to raise a material issue of fact. See County of El Paso v. Flores, 677 S.W.3d 31, 43 (Tex. App.-El Paso 2023, pet. denied). Here, Carnot's subjective belief of Captain Biasiolli's purported animus towards him, without corroborating evidence in the record, fails to raise a fact issue that Captain Biasiolli's animus was the true reason behind his termination. Id.
As previously discussed, Carnot argues that the City's policy to investigate all charges can be used to infer that Captain Biasiolli had knowledge of his 2020 Charge. Responding to the City's motion, however, Carnot argued differently, asserting the City had failed to comply with its own policies by failing to investigate his 2020 Charge of Discrimination, and this failure alone raised fact issues on but-for causation. At any rate, for purposes of retaliation, the material question is not whether the City followed its policies concerning Carnot's complaint of discrimination but whether it followed its policies concerning its termination of his employment. See Lund v. Texas Health &Human Services Comm'n, No. 04-17-00625-CV, 2019 WL 1049347, at *9 (Tex. App.- San Antonio Mar. 6, 2019, pet. denied) (analyzing a "failure to adhere to company policy" contention). Here, Carnot does not cite to any evidence raising a fact issue on whether the City failed to follow its termination policies. The record shows the City followed procedures by holding an Internal Affairs investigation, having Chief McManus review the findings, and having Chief McManus make the ultimate termination decision. Moreover, Carnot followed this action by appealing the termination decision to the Civil Service Commission, while represented by counsel, and a panel of individuals outside his chain of command upheld the termination decision.
(4) Conclusion
In considering all the circumstances, the totality of Carnot's evidence fails to raise a genuine issue of fact that he would not have been terminated but for his 2020 Charge of Discrimination. Carnot failed to meet his burden of proof on the third step of the required analysis. Accordingly, governmental immunity has not been waived as to Carnot's retaliation claim. Because the trial court erred in denying the City's jurisdictional plea, we sustain the City's second issue.
V. Conclusion
The City produced evidence of legitimate, nondiscriminatory reasons for terminating Carnot's employment. In turn, Carnot failed to sustain his burden of raising a fact issue on whether the City's stated reasons were false and a mere pretext for its unlawful retaliation against him. Because no fact issue has been raised on the jurisdictional issue of waiver of immunity, we reverse the trial court's denial of the City's combined plea to the jurisdiction and motion for summary judgment, and we render judgment dismissing with prejudice Carnot's retaliation claim against the City for lack of subject matter jurisdiction.