Opinion
NO. 01-17-00288-CV
05-03-2018
ALICIA GUAJARDO, Appellant v. THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellee
On Appeal from the 10th District Court Galveston County, Texas
Trial Court Case No. 15-CV-1036
MEMORANDUM OPINION
This is an appeal from an order granting a combined plea to the jurisdiction and motion for summary judgment and dismissing claims asserted under the Texas Commission on Human Rights Act. The University of Texas Medical Branch at Galveston hired Alicia Guajardo to work as a clinic nurse. UTMB later promoted Guajardo to nurse supervisor. While working as nurse supervisor, Guajardo received a written reprimand for failing to properly dispose of expired medication, and she was eventually demoted back to nurse after receiving a poor annual evaluation from her immediate supervisor, Samantha McBroom. Guajardo, who is Hispanic, sued UTMB for discrimination based on disparate discipline, alleging that similarly-situated non-Hispanic employees only received verbal warnings for failing to dispose of expired medication. She also sued UTMB for retaliation, alleging that UTMB demoted her in retaliation for her reporting the alleged discrimination.
See TEX. LAB. CODE §§ 21.001-.556.
We hold that Guajardo failed to establish a prima facie case of discrimination because she failed to show that she received less favorable treatment than a similarly-situated non-Hispanic employee. We further hold that Guajardo failed to establish a prima facie case of retaliation because she failed to show that she participated in a protected activity causally connected to her demotion. Therefore, we affirm.
Factual Background
UTMB hires Guajardo and later promotes her to nurse supervisor
Alicia Guajardo is a registered nurse. In 2000, she was hired by UTMB to work as a nurse at a League City clinic. The clinic operated under a "parallel" management structure. The physicians were managed by the medical director, Dr. Jean McAtee. The nurses were supervised by a nurse supervisor, who, in turn, was supervised by a nurse manager. Each clinic's nurse manager was supervised by UTMB's Chief Nursing Officer, Cheryl Bryant.
In 2009, Guajardo was promoted to nurse supervisor. Three years later, in 2012, Samantha McBroom was hired as the clinic's new nurse manager.
"From the very beginning," Guajardo testified, she "was just overwhelmed" by McBroom. Guajardo had worked under three previous nurse managers, none of whom had been critical of her job performance. Guajardo testified that McBroom was the first nurse manager to supervise her who was herself a nurse by training, and she had "high expectations" for Guajardo and the rest of the nursing staff. Guajardo believed McBroom was "singling [her] out," though she did not believe it had "anything to do with race." Instead, Guajardo testified, McBroom seemed displeased with her performance: Guajardo "was just doing [her] job," like she had "always done," but McBroom "didn't like how [she] did it."
McBroom formally criticizes Guajardo's performance
In July 2012, Guajardo received her first annual evaluation from McBroom. For the category of leadership, McBroom gave Guajardo the second-to-lowest rating: "Occasionally Meets" expectations. At the end in the evaluation, in the box for supervisor comments, McBroom noted that Guajardo had never received any "leadership training" but had done "the best she could to figure things out." McBroom stated that she would "work closely" with Guajardo throughout the year to help her "to develop her leadership abilities."
The evaluation's five possible ratings, in descending order, were (1) Consistently Exceeds, (2) Occasionally Exceeds, (3) Consistently Meets, (4) Occasionally Meets, and (5) Did Not Meet. McBroom gave Guajardo an overall rating of "Occasionally Exceeds" expectations.
Over the following twelve months, McBroom worked with Guajardo to develop her leadership abilities. McBroom placed Guajardo on a leadership development plan and began having weekly one-on-one meetings with Guajardo to provide her with direction and guidance. But there continued to be issues with Guajardo's performance.
Guajardo experienced difficulty managing the clinic's inventory and staffing resources. On multiple occasions, the League City clinic ran out of supplies Guajardo was responsible for ordering. On one occasion, Guajardo scheduled a staffing agency to provide the clinic with an unnecessary extra nurse.
Specifically, the clinic ran out of supplies every month between October 2012 and January 2013.
In January 2013, McBroom made Guajardo responsible for ensuring that the clinic's medications were not expired, and Guajardo did not delegate the responsibility to a nurse. Several months later, Guajardo completed an internal audit of the clinic's pharmacy and verified that there were no expired medications. The very next day, however, UTMB pharmacy personnel conducted their own audit and found expired medications. As a result, McBroom issued Guajardo a "written reminder" for her "failure to follow instructions." The written reminder stated that Guajardo had "the right to file a grievance" to complain about the discipline. Guajardo did not file a grievance or otherwise complain about the written reminder at that time.
Guajardo admitted in her deposition that, at the time of the audit, there was a "heightened sensitivity to the issue of expired medication" because the previous year the Joint Commission had visited the clinic and found "a lot of expired medications." Guajardo explained that it was a "very serious issue" and that a repeat incident could result in serious consequences, including the clinic's closure.
The Joint Commission is an organization that accredits various healthcare organizations and programs.
In early June 2013, McBroom placed Guajardo on a performance management plan. The plan identified areas in which Guajardo had demonstrated a need for improvement, including (1) delegating tasks, (2) communicating with McBroom, and (3) completing monthly pharmacy audits. After placing Guajardo on the plan, McBroom scheduled a follow-up meeting for late July to discuss Guajardo's progress. Guajardo failed to attend the meeting or notify McBroom that she would not attend. Guajardo complains to Dr. McAtee about her written reminder
On July 19, Guajardo learned that a non-Hispanic nurse supervisor at a different clinic, LaToyia Beard, did not receive a written reminder from her nurse manager when expired medication was found in Beard's clinic. Instead, she received a "'stern' coaching" over the phone from UTMB's Chief Nursing Officer, Bryant. Guajardo "immediately formed" the opinion that she "had been discriminated against." She testified that she believed that Bryant had treated Beard more favorably because she and Bryant were both black. Upon learning that Beard had not received a written reminder, Guajardo complained to her clinic's medical director, Dr. Jean McAtee. According to Guajardo, she told Dr. McAtee that she believed she had received the written reminder because she was Hispanic.
The parties dispute the nature of Guajardo's complaint. Relying on Dr. McAtee's testimony and parts of Guajardo's testimony, UTMB contends that Guajardo simply complained that she had been treated unfairly, while Guajardo, relying on other parts of her own testimony, contends that she complained that she had been discriminated against on the basis of her race or national origin. For purposes of this appeal, we assume Guajardo's account is true. See Brewer v. Coll. of the Mainland, 441 S.W.3d 723, 728 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (standard of review for summary judgment); City of Houston v. HS Tejas, Ltd., 305 S.W.3d 178, 183 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (standard of review for plea to jurisdiction).
McBroom gives Guajardo a negative review due to her failure to improve her leadership skills
On July 29, 2013, Guajardo received her second annual evaluation from McBroom. For leadership, McBroom gave Guajardo the lowest rating: "Did Not Meet" expectations. In the comments box, McBroom wrote:
Guajardo's overall rating was "Occasionally Meets" expectations.
Alicia is a caring nurse, but is unable to keep up with the nursing supervisor responsibilities of a growing clinic. During the past year, the [nurse manager] has met with Alicia weekly to provide direction and guidance. Alicia has also been on a Leadership development plan and action plan this year and has not been able to demonstrate sustained improvement.Guajardo responded in the box for employee comments:
I do not agree with this evaluation. I have been singled out and discriminated. We have been understaffed and management has not been supportive at all. Always out. Management never shares information re: nursing, etc. The morale and staff are very unhappy with management here in clinic. Staffing came to tell me re: management and their concerns. We did speak to Medical Director. Staff afraid of Retaliation from Practice Management.
Guajardo files an internal grievance letter
Three days later, Guajardo filed an internal grievance letter with UTMB's human resources department. In the letter, Guajardo accused McBroom of "bullying, singling out, retaliation, and discrimination" but did not allege that any mistreatment was based on her race or national origin. Instead, the letter focused on her poor review. She argued that it was unfair to give her a poor review because the clinic had grown but not hired additional staff:
Over the last two years, our clinic has expanded with more doctors but our staffing has remained the same nursing ratio which makes it more challenging for me to do my supervisor duties. Now am I not only doing my supervisor duties but I am also staffing the floor where needed on an everyday basis without any assistance from my practice manager who has only assisted a handful of times in her two years of managing the clinic.She complained that McBroom had misled her by giving her "positive feedback" throughout the year. She further complained that McBroom never met with her to discuss her various performance issues, and she argued that the review itself was completely subjective:
I received "occasionally meets/does not meet" in [various performance categories]. In all these categories throughout the entire year Samantha McBroom never met with me regarding my performance. I never received any verbal or written reprimands regarding "occasionally meeting" or "not meeting" any of my performances. I was not aware that I was not meeting her expectations and I was completely blind-sided when I received my evaluation. This evaluation is completely subjective and unfair of my job performance. I disagree with my evaluation and the only reason I signed it was
because of intimidation and as she stated before "It is what it is and it will not change."
The only differential treatment Guajardo complained about was her written reminder. She wrote that Bryant had stated that there would be "zero tolerance for expired medications and that all nurse managers, nurse supervisors, and nurses would be written up for this violation." But, Guajardo continued, when expired medication was found at Beard's clinic, she only received a verbal warning. Guajardo wrote:
When I learned of [Beard's] verbal disciplinary action compared to my written reprimand for the same exact violation, I knew I had been discriminated and singled out.
Toward the end of the letter, Guajardo explained that she was filing the grievance not only for herself but on behalf of the other nurses as well: "I have stepped forward on behalf of the nurses and their needs . . . because I am the nurse supervisor." Guajardo stated that the nurses had "advised" her that McBroom was "never in the office," could "never be found," and left "at her own leisure." But, Guajardo continued, the nurses did not want to complain about McBroom's frequent absence out of fear of retaliation. Guajardo stated that the nursing staff was "overworked," had "low morale," and could "no longer work" under such conditions.
Guajardo concluded her grievance by requesting that she be "shielded" from McBroom and Bryant and that her "last two evaluations be resubmitted" to "a nonbiased supervisor in order to get a fair and accurate reading."
Guajardo is demoted to nurse
On the same day Guajardo filed her internal grievance letter, she received a letter from McBroom notifying her that McBroom intended to demote her to nurse. In the letter, McBroom listed several reasons for her decision, including Guajardo's failure to properly delegate daily assignments, adequately stock supplies, dispose of expired medication, and correct an outdated emergency kit log. McBroom further wrote:
In this week since your evaluation, you have not taken initiative to seek out direction and/or guidance. You have displayed insubordination by expressing your concerns to the Medical Director instead of the appropriate chains of command. In addition, you have not managed personnel effectively.
Guajardo was demoted to nurse and transferred to another clinic. After Guajardo was transferred, a non-Hispanic white nurse, Stacy Froebel, assumed Guajardo's job duties. Froebel was eventually promoted to nurse supervisor.
Procedural History
In September 2015, Guajardo filed her petition against UTMB. Guajardo asserted a claim for discrimination based on race or national origin, alleging that she received the written reminder for the expired medications (and not a verbal warning, like Beard) because she is Hispanic. Guajardo also asserted a claim for retaliation, alleging that McBroom demoted her in retaliation for reporting the alleged discrimination to Dr. McAtee.
In December 2016, UTMB filed a plea to the jurisdiction. UTMB argued that Guajardo had failed to establish a prima facie case of discrimination or retaliation.
Guajardo filed a response, in which she alleged, for the first time, that UTMB had discriminated against her by replacing her with Froebel. Guajardo also identified another employee whom she claimed was similarly situated and received more favorable treatment as well—Elizabeth Leigh, a nurse who worked under Beard.
The trial court granted UTMB's plea and entered final judgment dismissing Guajardo's claims with prejudice. Guajardo appeals.
Plea to the Jurisdiction
In her first issue, Guajardo argues that the trial court erred in granting UTMB's plea to the jurisdiction because she established a prima facie case of discrimination and retaliation.
A. Standard of review
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether a court has subject-matter jurisdiction is a question of law, which we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
Typically, a plea to the jurisdiction challenges whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). But a plea to the jurisdiction can also challenge the existence of those jurisdictional facts. Id. In such cases, we consider evidence as necessary to resolve the jurisdictional issue, even if that evidence also implicates the merits of the case. Id.
The trial court's review of a plea challenging the existence of jurisdictional facts "mirrors that of a traditional summary judgment motion." Id. The defendant must first meet the summary-judgment proof standard for its assertion that the trial court lacks jurisdiction; once the defendant meets its burden, the plaintiff is required to show that a disputed material fact exists regarding the jurisdictional issue. Id. "If a fact issue exists, the trial court should deny the plea. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law." Id.
B. Immunity from suit and the TCHRA
"In a suit against a governmental employer, the prima facie case implicates both the merits of the claim and the court's jurisdiction because of the doctrine of sovereign immunity." Id. at 635-36. Sovereign immunity deprives a trial court of jurisdiction over suits against a governmental unit absent the Legislature's consent to suit. See id. at 636. The Legislature has waived immunity from suit for employment discrimination and retaliation claims falling under the Texas Commission on Human Rights Act. See TEX. LAB. CODE § 21.051 (making it unlawful for "employer" to discriminate); § 21.055 (making it unlawful for "employer" to retaliate); § 21.002(8)(D) (defining "employer" to include governmental entities).
The TCHRA prohibits an employer from discriminating against an employee in connection with compensation or the terms, conditions, or privileges of employment on several bases, including race and national origin. See TEX. LAB. CODE § 21.051(1). The TCHRA also prohibits an employer from retaliating or discriminating against a person who engages in protected activity, including (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. § 21.055.
When appropriate, Texas courts evaluate discrimination and retaliation claims in light of analogous federal employment discrimination law, as the Legislature, in adopting the TCHRA, intended to correlate state law with existing federal law. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012); Autozone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008).
There are two alternative methods by which a plaintiff can prove discrimination or retaliation. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476-77 (Tex. 2001) (adopting U.S. Supreme Court's alternative analyses for employment discrimination cases); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676-77 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (applying same analyses in retaliation case). The first method is by direct evidence of the employer's actions or words. Quantum Chem., 47 S.W.3d at 476. The second method—the McDonnell Douglas burden-shifting scheme—applies in cases like this one, involving circumstantial evidence of discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); see also Garcia, 372 S.W.3d at 634. Under McDonnell Douglas, courts presume discrimination or retaliation if the plaintiff meets her initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at 802; Garcia, 372 S.W.3d at 634. The Texas Supreme Court has explained that, in claims against the government, the trial court has no jurisdiction if the plaintiff fails to demonstrate the prima facie elements of her case. Garcia, 372 S.W.3d at 635-38.
Once the plaintiff establishes a prima facie case under McDonnell Douglas, the burden shifts to the defendant to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). It then becomes the plaintiff's burden to show that the reason offered was a pretext for discrimination. Id. at 807; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001). However, the Texas Supreme Court determined in Garcia that only the prima facie elements of the plaintiff's case are jurisdictional. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-38 (Tex. 2012).
"Although the precise elements of this [prima facie] showing will vary depending on the circumstances, the plaintiff's burden at this stage of the case 'is not onerous.'" Id. at 634. The plaintiff "must plead the elements of her statutory cause of action—here the basic facts that make up the prima facie case—so that the court can determine whether she has sufficiently alleged a TCHRA violation," but "she will only be required to submit evidence if the [employer] presents evidence negating one of those basic facts." Id. at 637.
C. Discrimination
Guajardo contends that she established a prima facie case of discrimination of presenting evidence that she was treated less favorably than similarly-situated non-Hispanic employees and was replaced by a non-Hispanic employee. To establish a prima facie case of discrimination, Guajardo was required to present evidence that she was (1) a member of a protected class, (2) qualified for the employment position at issue, (3) subjected to an adverse employment action, and (4) either replaced by someone outside her protected class or treated less favorably than a similarly-situated employee outside of her protected class. See id. at 642; AutoZone, 272 S.W.3d at 592; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); Metro. Transit Auth. of Harris Cty. v. Ridley, 540 S.W.3d 91, 106 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
"Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct. To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' misconduct must be of 'comparable seriousness.'" Ysleta, 177 S.W.3d at 917 (quoting McDonnell Douglas, 411 U.S. at 804). Although "precise equivalence" in culpability between employees is not required, the plaintiff must usually show that the misconduct for which she was disciplined was "nearly identical" to the conduct of the more-favorably-treated employee. Ysleta, 177 S.W.3d at 917-18. "A demonstration of substantial similarity generally requires a showing that a common supervisor was involved in the decision making." Thompson v. Exxon Mobil Corp., 344 F. Supp. 2d 971, 983 (E.D. Tex. 2004). Decisions made by different supervisors are generally not sufficiently comparable to establish a prima facie case of discrimination because different supervisors may exercise their discretion differently. Id.
It is undisputed that Guajardo is a Hispanic registered nurse with over 22 years of experience and that she established the first three elements of her prima facie case. Guajardo contends that she established the fourth element of her prima facie case of discrimination—that she was either replaced by someone outside her protected class or treated less favorably than a similarly-situated employee outside her protected class—by presenting evidence that (1) Beard did not receive a written reminder when expired medication was found at her clinic, (2) Leigh received verbal and written reminders for expired medications but was not demoted, and (3) Froebel replaced her after she was demoted. We consider each allegation in turn.
1. Beard
Guajardo contends that she established a prima facie case of discrimination by presenting evidence that Beard did not receive a written reminder when expired medication was found at her clinic. We disagree for two principal reasons.
First, Beard and Guajardo were disciplined for different misconduct. Guajardo received a written reminder because she failed to perform a task that had been expressly assigned to her and for which she assumed direct responsibility. McBroom expressly made Guajardo responsible for ensuring the clinic's medications were not expired, and Guajardo declined to delegate the responsibility to a nurse—even though that was her prerogative as nurse supervisor. Guajardo personally audited the clinic's pharmacy and personally failed to identify the expired medication. Beard, on the other hand, received a verbal coaching because the nurse to whom she had delegated the task, Elizabeth Leigh, failed to perform it. Leigh, moreover, did receive a written reminder for the infraction.
Second, the decision of whether and how to discipline Guajardo and Beard was made by different combinations of supervisors. In the case of Guajardo, the decision was made by Guajardo's nurse manager, McBroom, and McBroom's Chief Nursing Officer, Bryant. McBroom recommended that Guajardo receive a written reminder, and Bryant agreed. In the case of Beard, the decision was made by Beard's nurse manager, whom Guajardo has failed to identify, and Bryant. Guajardo has presented no evidence indicating what level of discipline, if any, Beard's nurse manager thought appropriate. In the absence of such evidence, Guajardo has not shown that she and Beard were similarly situated.
2. Leigh
Guajardo next contends that she established a prima facie case of discrimination by presenting evidence that Leigh received a written reminder for expired medications but was not demoted. Again, we disagree.
Guajardo and Leigh received the same discipline for the same misconduct: they both received written reminders for expired medications. Guajardo's subsequent demotion is not evidence that they received disparate discipline because Guajardo has not presented evidence that her written reminder was the sole—or even primary—reason she was demoted. Moreover, Leigh held the position of nurse, not nurse supervisor. She did not have a leadership position from which to be demoted as a disciplinary measure.
Leigh also received a verbal reminder for expired medication in August 2012, just before the meeting at which Bryant stated there would be "zero tolerance" for expired medications.
3. Froebel
Finally, Guajardo contends that she established a prima facie case of discrimination by presenting evidence that she was replaced by someone outside her protected class, Stacey Froebel. Assuming Guajardo properly pleaded this theory of discrimination, we hold that she failed to establish a prima facie case.
Guajardo did not present evidence that she was "replaced" by Froebel. When an employee is demoted and her former duties are reassigned to an existing employee, the existing employee has not "replaced" the demoted one. See Caldwell v. Enter. Prods. Co., CV H-15-3463, 2016 WL 3166866, at *3 (S.D. Tex. June 7, 2016) ("Reassignment of duties to an existing employee is not replacement by [someone outside the protected class]."); see also Griffin v. Kennard Indep. Sch. Dist., 567 Fed. Appx. 293, 294-95 (5th Cir. 2014) (unpublished) (holding that "an employee 'has not been replaced . . . when his former duties are distributed among other co-workers") (quoting Rexses v. Goodyear Tire & Rubber Co., 401 Fed. Appx. 866, 868 (5th Cir. 2010) (unpublished) (internal quotations and ellipses omitted)). UTMB did not demote Guajardo to promote Froebel. It is undisputed that, when Guajardo was demoted and transferred, Froebel was not immediately promoted to nurse supervisor. Instead, Froebel retained her position as lead nurse and simply "assumed" Guajardo's former "job duties." Thus, Froebel did not replace Guajardo; Guajardo's former duties were simply reassigned to her.
During her deposition, which took place in July 2016, Dr. McAtee stated that Froebel had only "recently" been promoted to nurse supervisor.
We hold that Guajardo failed to establish a prima facie case of discrimination.
D. Retaliation
Guajardo contends that she established a prima facie case of retaliation by presenting evidence that UTMB demoted her after she complained about alleged discrimination. To establish a prima facie case of retaliation, Guajardo was required to show that (1) she participated in a protected activity, (2) UTMB took an adverse employment action against her, and (3) the protected activity and adverse employment action were causally connected. Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421, 441 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
The TCHRA provides that an employee engages in a protected activity when she (1) opposes a discriminatory practice, (2) makes or files a charge, (3) files a complaint, or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. TEX. LAB. CODE § 21.055. Protected activity "can range from filing formal charges to voicing informal complaints to superiors." Fye v. Oklahoma Corp. Comm'n, 516 F.3d 1217, 1228 (10th Cir. 2008) (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004)). However, a "vague charge of discrimination will not invoke protection under the statute." Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see Spinks v. Trugreen Landcare, L.L.C., 322 F. Supp. 2d 784, 797 (S.D. Tex. 2004) (same). Although the employee need not use "magic words" to oppose unlawful discrimination, her complaint must at least alert her employer of what discriminatory practice she reasonably believes occurred. Houston Methodist San Jacinto Hosp. v. Ford, 483 S.W.3d 588, 593 n.3 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). The employee's complaint "must indicate what alleged discriminatory conduct is at issue." Id.
Guajardo contends that she established a prima facie case of retaliation by presenting evidence that UTMB demoted her after she (1) complained about discrimination in her 2013 evaluation, (2) filed her internal grievance letter, and (3) complained to Dr. McAtee about alleged discrimination. We consider each allegation in turn.
1. Guajardo's comments in her 2013 employee evaluation
First, Guajardo contends that she established a prima facie case of retaliation by presenting evidence that UTMB demoted her after she complained about discrimination in her 2013 evaluation. In the space for employee comments to her 2013 evaluation, Guajardo wrote:
I do not agree with this evaluation. I have been singled out and discriminated. We have been understaffed and management has not been supportive at all. Always out. Management never shares information re: nursing, etc. The morale and staff are very unhappy with management here in clinic. Staffing came to tell me re: management and their concerns. We did speak to Medical Director. Staff afraid of Retaliation from Practice Management.
Although Guajardo's comments included the words "discriminated" and "retaliation," they do not contain sufficient description to have alerted UTMB of what discriminatory practice Guajardo believed had occurred. See Ford, 483 S.W.3d at 593 n.3. Guajardo's comments do not identify the alleged discriminatory conduct at issue. Id. Read as a whole in light of the context of her poor evaluation, Guajardo's comments indicate that she believed she was being evaluated unfairly because "management" was responsible for the problems McBroom was attributing to her.
McBroom stated in her affidavit that, even though Guajardo alleged that she had been "singled out" and "discriminated" against, she did not believe that Guajardo was complaining about discrimination related to her race or national origin.
We hold that Guajardo's comments to her 2013 employee evaluation did not constitute protected activity under the TCHRA because they did not contain sufficient description to alert UTMB of what discriminatory practice Guajardo believed had occurred. See id.
2. Guajardo's internal grievance letter
Guajardo next contends that she established a prima facie case of retaliation by presenting evidence that UTMB demoted her after she filed her internal grievance letter. Like the comments to her 2013 evaluation, Guajardo's grievance letter is too vague to have constituted protected activity.
Most of the letter focuses on her poor review, offers reasons why it was unfair and why she should have been reviewed more favorably, and criticizes management. She complained that (1) the nursing staff was overworked and understaffed, (2) McBroom misled her by giving her positive feedback and failed to discuss with her the various performance issues identified in the evaluation, and (3) the evaluation was itself overly subjective. She further complained that McBroom was frequently absent from the clinic and had caused the nursing staff to have low morale. Guajardo accused McBroom of "bullying, singling out, retaliation and discrimination" but did not give a specific example of such mistreatment.
The record indicates that McBroom met with her on a weekly basis to discuss various performance-related issues.
The only allegation in Guajardo's grievance letter of differential treatment was that Beard received a verbal coaching from Bryant after expired medications were found at her clinic. Although Guajardo argued that Beard's verbal coaching was evidence that Guajardo had been "discriminated" against and "singled out," she did not state that she believed the perceived discrimination was based on her race or national origin, and she did not provide any facts from which such an allegation might be reasonably inferred. Instead, Guajardo stated that she was filing the grievance "on behalf of the nurses and their needs," indicating that Guajardo was complaining about generally unfair treatment rather than discrimination based on race or national origin.
We hold that Guajardo's internal grievance letter did not constitute protected activity under the TCHRA because it did not contain sufficient description to alert UTMB of what discriminatory practice Guajardo believed had occurred. See id.
3. Guajardo's complaints to Dr. McAtee
Finally, Guajardo contends that she established a prima facie case of retaliation by presenting evidence that UTMB demoted her after she complained to Dr. McAtee about alleged discrimination. However, there is no evidence that Dr. McAtee told McBroom that Guajardo had complained about discrimination related to her race or national origin.
Dr. McAtee did not testify that she told McBroom that Guajardo had complained about discrimination related to her race or national origin. She only testified that she told McBroom that Guajardo had generally complained that a nurse who "probably knew" or was "somehow friends" with Bryant did not receive a written reminder when expired medications were found at her clinic:
Dr. McAtee further testified that McBroom, in response, told her that she had "no knowledge of what went on in other clinics, that processes may be different," and that she "could only speak to her interaction with [Guajardo] regarding her incident."
Counsel: What specifically do you recall telling Ms. McBroom about Ms. Guajardo's concerns or complaints?
McAtee: I recall that she—that I told her that she had concern about the nurse in this other clinic who probably knew Cheryl Bryant or was somehow friends with Cheryl Bryant and that that nurse had an incident in their clinic in which they had an expired medication and she believes that she did not receive a written discipline for that.
Counsel: Anything else that you told Ms. McBroom?
McAtee: No.
Likewise, no evidence suggests that McBroom ever stated that Dr. McAtee told her that Guajardo had complained about discrimination. McBroom only stated that Dr. McAtee told her that Guajardo had complained about her poor evaluation. McBroom further stated that she had no knowledge and did not believe that Guajardo had complained about discrimination related to her race or national origin when she wrote her demotion letter.
Guajardo contends that McBroom's demotion letter itself proves that McBroom demoted her in retaliation for reporting discrimination to Dr. McAtee because in it McBroom claimed that Guajardo had been "insubordinate" by voicing her "concerns" to Dr. McAtee instead of going through the "appropriate chains of commands." But if Dr. McAtee never told McBroom that Guajardo had complained about discrimination, and McBroom did not otherwise know or suspect that Guajardo had complained to Dr. McAtee about discrimination, then a complaint about racial discrimination could not have been the basis of McBroom's charge of insubordination. In her affidavit, McBroom explained that, when she wrote that Guajardo had been insubordinate, she was referring to Guajardo complaining to Dr. McAtee about her poor evaluation instead of complaining to McBroom herself or someone else in the chain-of-command, such as Bryant.
In sum, there is no evidence that McBroom was aware of Guajardo's alleged complaint when she decided to demote her. And if McBroom was unaware of Guajardo's alleged complaint, then the complaint could not have influenced McBroom's decision to demote her. Therefore, Guajardo failed to establish a prima facie case of a causal connection between her complaint and demotion.
We hold that, because Guajardo failed to establish a prima facie case of discrimination or retaliation, UTMB retained its sovereign immunity from suit, and the trial court properly granted its plea to the jurisdiction. Accordingly, we overrule Guajardo's first issue.
Because we overrule Guajardo's first issue, we need not address Guajardo's second issue, in which she contends that the trial court erred by granting summary judgment on her claims.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown.