Summary
holding plaintiff’s allegations supporting his hostile work environment claim were not so severe or pervasive that they affected a term, condition or privilege of employment when claim was based on allegations of anonymous threats and phone calls, two racial slurs directed at the plaintiff, a confrontation with the plaintiff without evidence it was based on his race or in response to a protected activity, and a single episode of discipline
Summary of this case from Alief Indep. Sch. Dist. v. BrantleyOpinion
No. 05-17-00670-CV
06-04-2018
IN RE PARKLAND HEALTH AND HOSPITAL SYSTEM LITIGATION
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. MDL-14-0598
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Francis
Parkland Health and Hospital System brings this interlocutory appeal from the trial court's denial of its plea to the jurisdiction on claims asserted by Israel Benitez under the chapter 21 of the Texas Labor Code. In five issues, Parkland generally contends the trial court erred in denying its plea because Benitez failed to present evidence sufficient to raise a fact issue on the challenged prima facie elements of his claims. We agree. Accordingly, we reverse the trial court's order and dismiss this cause for want of jurisdiction.
Benitez, a Hispanic male, began working in Parkland's information technology division in 2006. He was Team Lead for the web services team and supervised Brandon Abbott and Bradley Kons, both white males. From 2006 to 2012, Benitez and his team reported to Irfan "Tony" Butt, a Pakistani male. Butt's immediate supervisor was Chief Technology Officer Alan Greenslade, a white male. Greenslade's superior for a portion of that time was Nancy Folz-Murphy, a white female.
In 2010, Greenslade began discussing outsourcing the web services team. Abbott stated the "threat" of outsourcing would resurface every three to six months. Greenslade wanted to implement a new software system called WebSphere that he used at his former job, but no one on the web services team knew how to work with the Java-based application. Abbott said Greenslade made it clear the team needed to learn Java "or else."
On May 31, 2011, Benitez forwarded Greenslade an email he received from parklandwarning@gmail.com stating "We have heard through the rumor mill that you discussed our petition to get rid of [Greenslade] and [Folz-Murphy] with Noah Downs. You were asked explicitly to keep this information to yourself. Since you are not with us, then you must be against us. Watch your back! Asshole!" Shortly after, Benitez forwarded Greenslade a letter signed by "Concerned at Parkland" expressing strong dislike for both Greenslade and Folz-Murphy. The letter said they were unqualified for their positions and engaged in unprofessional conduct that affected the morale of the IT and applications divisions at Parkland. Greenslade reported the communications to the human resources department but, at the request of Benitez, did not immediately reveal him as the source. Greenslade asked if Benitez would be willing to speak with a senior director in HR "as they [were] concerned about the threat and the letter, especially if leadership is involved." Benitez declined to come forward at that time.
On June 28, 2011, Parkland executives received an email from "Concerned at Parkland" expressing disappointment that Greenslade and Folz-Murphy had not been removed and noting "racial divisions between the leadership and staff" of the IT division. The email stated the term "team brown" had been used in reference to IT staff and "redneck country club" was used to refer to the predominantly Caucasian leadership. Although the letter did not identify who used these terms, later statements by personnel indicated the terms were used by both the staff and leadership in the IT department. According to Benitez, Noah Downs, a white male member of IT leadership, told him about the terms and told him "you are either with us or against us." Benitez further said Greenslade "seemed to feel I was a member of the redneck country club."
Parkland executives responded to the June 28 email and offered to meet with the sender, but the sender never responded. An investigation was conducted in which the IT division directors were interviewed. The directors stated lower level employees appeared to believe that white employees were receiving preferential treatment. Because of this, Parkland conducted two sessions of diversity training. The hospital never discovered the identity of the author of the "Concerned at Parkland" messages.
In August 2011, Benitez reported to Greenslade that he had received emails and phone calls "threatening his life." The caller never spoke, but would breathe heavily or laugh. Benitez could not tell if the caller was a man or a woman. Benitez told Greenslade not to report the threats to the human resources department because he wanted to find out who was doing it.
In late 2011 and early 2012, Butt spoke with Greenslade about raises and promotions for members of the IT department including Benitez. Greenslade denied the requests. According to Butt, Greenslade told him he felt the web services team didn't do anything and he was planning on outsourcing "the whole damn thing." When Greenslade told Benitez they would be implementing WebSphere, Benitez told him he believed the switch was a mistake because the proposed new system was outdated, overpriced, and a poor fit for Parkland's needs. Benitez also told Greenslade that if he felt Parkland needed to outsource web services, they should do it.
By late 2012, Benitez again received phone calls where the caller breathed heavily into the phone or laughed without speaking. Benitez asserts he also received a threatening text stating "you are either with us or against us" and an email telling him to "watch his back."
In November 2012, Butt resigned his position with Parkland, and Benitez and Abbott also submitted resignations. Benitez stated he resigned because of the harassing phone calls and "corrupt environment." Among the reasons Abbott gave for his resignation was "the constant threat of outsourcing," "downgrade of [his] performance evaluations and the lack of raises" and "knowledge that our team was not liked by Mr. Greenslade." At this point, Benitez chose to file a report with the Parkland Police Department about the phone calls.
Jim Saul, a white male, replaced Butt overseeing the web services team and convinced Benitez and Abbott not to resign. Benitez met with Saul and various members of Parkland's human resources department, including Rebecca Maurer and Kurt Delabar. Maurer and Delabar told Benitez they were concerned for his safety and were opening an investigation into his complaints. They also told Benitez that he, Abbott, and Kons could work from home during the investigation. Benitez asserts Saul told him his team would not be outsourced.
On December 3, 2012, Delabar and Maurer met with Sgt. Johnson of the Parkland Police Department. Johnson began an investigation "which would focus on an alleged culture of intimidation, harassment, and racial bias/favoritism exhibited by employees and leadership in [the IT] department." He was also asked to look into possible criminal behavior associated with the emails and phone calls received by Benitez. The next day, Maurer, Delabar, and Johnson met with all the members of the IT department to inform them of the investigation and asked each of them to sign a copy of the Parkland Hospital Workplace Violence Policy. Two days later, Benitez forwarded Delabar an email he received from a sender identified as "Parkland Justice." The email stated, "We heard you resigned, but then you changed your mind and decided to stay. We hoped that would be the last we saw of you, now you got HR and the Parkland police snooping around IT. You better hope none of us loose [sic] our jobs because of you."
During the course of his investigation, Sgt. Johnson spoke at length with twenty different employees in the IT department including Benitez. Benitez discussed the threatening emails and harassing phone calls. He also told Johnson he received two emails calling him a "wetback," but did not keep the emails and could not remember when he received them. Benitez told Johnson he did not know who was behind the threatening calls and emails but he believed it could be someone from "team brown" who felt he wasn't on their side because they thought he had joined the "redneck country club." Because of the two emails using the term "wetback," Benitez also suggested one of the white supervisors could be involved since he believed minorities didn't typically use that term with each other.
On December 20, Johnson submitted a summary of his investigation stating the overriding consensus from the employees was as follows:
1. Employee advised of emails and phone calls on personal email account from anonymous email addresses. Employee felt these emails were harassing and/or threatening in nature. (Employee could not provide copies of emails.)Johnson concluded the evidence was insufficient to support a criminal prosecution regarding the emails and phone calls Benitez received. He further stated he could not determine if the racial disparity between the senior level management and lower level staff in the IT department was the result of discrimination or merely coincidence. He saw no evidence of discrimination, but felt the perception should be addressed through improved communication. He strongly recommended Nekuza's actions be "scrutinized and reviewed thoroughly" including his alleged use of a racial slur when referring to former President Barack Obama immediately following his re-election. Benitez was not immediately informed of the results of the investigation.
2. Employees believe that a disparity exist[s] when it comes to the promotion of minorit[ies] (including women) in top management positions. Employees advised that top managers/directors are mostly white males.
3. Employees showed concern that some high level managers have resigned, retir[ed], [been] reassigned, or have been terminated with no explanation given by staff. This lack of communication has fostered rumors which in turn has created an environment of uncertainty. Employees believe they will be outsourced or fired.
4. Employees expressed concern[] over hiring favoritism when it comes to CTO Alan Greenslade. Most complain that Greenslade hires personal acquaintances that are not qualified for those positions.
5. Current workload is overwhelming. Employees have asked for additional help with no success.
6. Some employees complained of racial bia[s] when it came to hiring, promoting, or assignments. (This was express[ed] by current Parkland Employees seeking promotion and current contract employees seeking full time employment with Parkland)
7. Some employees advised of inappropriate and derogatory racial remarks made by Jeffery Nekuza, System Analyst Team Lead.
Two weeks after the report was submitted, Delabar terminated Nekuza's employment for his use of a racial slur. Nekuza denied using the slur and appealed his termination under Parkland policy. Nekuza was ultimately reinstated, due in part to the fact he had never before been disciplined for violating Parkland policy in his twenty-six-year career with the hospital.
In early January 2013, Benitez received what he has termed a "cost of living raise." At the same time, Abbott's job was reclassified by Parkland resulting in a 17% raise in salary for Abbott. The reclassification of Abbott's job was requested by Benitez.
That same month, Saul assigned Robert McDermott, a white male who was director of data management and reporting, to supervise the web services team. Benitez told Saul he didn't think this was a good idea because McDermott had a bad reputation and there was friction between McDermott and the team. McDermott and Saul went ahead with the transfer of supervision.
In an attempt to resolve things between McDermott and the web services team, a meeting was conducted on January 24, 2013 with McDermott, Benitez, Abbott, and Kons. Before the meeting, McDermott and Saul determined the team needed to return to working at Parkland instead of from home. In light of this and the objections to the new reporting structure, McDermott brought voluntary resignation forms to the meeting for each member of the web services team.
After some preliminary discussion, McDermott talked about team members working from home. When McDermott asked if they had offices at Parkland; Benitez responded, "No. We will not be coming back here." McDermott said he didn't think the work-from-home arrangement could continue and Benitez responded "Well, I think that's pretty much it then." At that point McDermott handed out the resignation forms.
Benitez asked that Saul be brought into the meeting. Saul said he knew Benitez's resignation was a possibility because of his previous resignation and his concerns about reporting to McDermott. Benitez became upset, saying he told Saul the web services team would work for anyone but McDermott because McDermott had said demeaning things about the team's performance and "everybody thinks he's a joke." Saul acknowledged issues with McDermott, but assured Benitez he would hold McDermott accountable for his actions and how he treated the team. Benitez refused to have the team reassigned and felt the meeting was a "set up" for him to resign. He told Saul the only reason they did not resign earlier was because they believed in Saul and if he would not continue to supervise the team, they would resign again. Benitez suggested "maybe the best thing for Parkland is for Parkland to outsource Web." Saul said he wanted the team to continue to work for Parkland and a new chief information officer, Fernando Martinez, would be starting soon. Saul told Benitez that, because of the change in IT leadership and the past issues necessitating a police investigation, the team's transition to McDermott would be "tabled" and they could continue to work from home.
The next day, Saul filed a complaint with human resources regarding Benitez's conduct at the meeting. Saul reported Benitez was loud and aggressive and called McDermott a "joke." Shawn Coleman, a human resources generalist, investigated the complaint. Benitez told Coleman he was unwilling to sign a written statement about the meeting and he no longer trusted Saul. He believed Saul's complaint was retaliatory based on his report in December to Parkland police. Benitez stated in an email to Coleman, "there is no room in the workplace for bullying, racism, hostility, lies, calculated removal of key employees and most importantly intimidation" and suggested Coleman look into the "tactics" used by Saul and McDermott. Coleman concluded Benitez's conduct violated Parkland's behavior standards and recommended Parkland terminate his employment. Ultimately, however, Benitez was given only a "Final Warning."
Martinez, a Hispanic male, began consulting with Parkland in February 2013. In April 2013, he became Parkland's CIO. Martinez immediately began evaluating the outsourcing of certain Parkland IT functions including system engineering, database management, web programming and development, and physical cabling. Martinez stated the purpose of outsourcing was cost savings and efficiency.
Martinez met with the IT division's leadership. Parkland's vice president of corporate communications expressed concern that the Parkland intranet was ineffectively maintained, leading several Parkland departments to each maintain their own, non-standard internal websites. One proposed solution was implementing WebSphere though it was noted the web services team members were not trained in this technology, and Parkland would incur additional time and expense to train them.
On February 4, 2013 Benitez met with Saul, Maurer, and Sgt. Johnson to discuss the results of Johnson's investigation. Johnson informed Benitez he was unable to identify the person responsible for the harassing phone calls and emails and the investigation was closed unless Benitez had any additional information or evidence. According to Maurer, Benitez became upset, stating "things have gotten worse" and alluded to "racism, sexism, and violence in the IT Division." Maurer stated she made repeated requests to Benitez for specifics and evidence to support his allegations of racism, but he did not provide any. Benitez stated he refused to talk with Maurer further because he decided "it was no use" and "Parkland would not do anything about the situation."
One month later, Benitez filed a charge of discrimination with the Equal Employment Opportunity Commission and the Texas Workforce Commission. In the charge, Benitez said white male members of senior management made explicitly racist and sexist remarks, including referring to Hispanic employees as "coconuts," "spics," and "fucking brown people." He filed a second discrimination charge with the EEOC and the TWC in June alleging the same complaints and a "continued lack of resolution of my complaints of race discrimination and retaliation."
Benitez was interviewed in June about his discrimination complaints. He stated he had received three or four more anonymous phone calls since the police investigation began and the last call was a month and a half earlier. The calls still involved heavy breathing and laughing but no words. He said he did not report the most recent phone call, but he reported the others.
Benitez described racist remarks he asserted were made by IT leadership. Of the eleven members of IT leadership, Benitez stated he'd either personally heard or was told about racist remarks being made by three of them. He stated Noah Downs was overheard using the term "spics" and "fucking brown people" and Abbott heard Downs refer to Benitez as a "coconut"- brown on the outside and white on the inside. Benitez told a co-worker, Joe Juarez, to report Downs to HR after Juarez overheard Downs talking about "fucking wetbacks." Benitez did not know whether Juarez reported the incident, but said Downs resigned from Parkland shortly thereafter.
Benitez stated Nekuza had not done anything harassing, discriminatory, or retaliatory to him, but reported he heard Nekuza talking to a secretary about her "Mexican baby" with a "white daddy." Nekuza had given the secretary formula for the baby and commented that, without the father, the baby would starve. When Benitez asked her about the incident, she said she felt Nekuza did not mean anything by it and he was "just trying to help her out."
Finally, Benitez described remarks made by James Carpenter, a member of senior management he had known for a long time. Benitez said he had heard Carpenter use the terms "wetback" and the "n" word. Carpenter also used the term "Parkland anchor babies" to refer to children born at the hospital to Mexican mothers. Benitez said he never reported any of the remarks made by Carpenter to HR.
In late July, Abbott and Kons returned to their offices at Parkland, but Benitez continued to work from home.
Martinez ultimately decided to outsource Parkland's web services to Xerox. The stated basis for the decision was that outsourcing would save Parkland a significant amount of money and provide the hospital with immediate access to personnel trained in WebSphere. On October 29, 2013, Martinez sent a memorandum to Saul outlining the reasons for the reduction in force. The memo stated "[t]he purpose of this restructuring/reduction is to align our web services strategies, intranet and internet, to a standard and support model used in the information technology industry." The memo noted that Parkland already had some outsourced resources supporting web services and the elimination of the web services team would result in a reduction in annual salaries, benefits, and overhead. Additional savings would be realized by not needing to train the web services team in "new technologies and solution changes." Martinez also outsourced the cabling team and database management personnel.
All three members of the web services team were terminated. Saul sent Benitez a letter informing him of the outsourcing decision and the termination of his position. The letter further stated Benitez could file a request for reassignment within the next thirty days for any open position at Parkland and he was given a contact person to help him with the process. Benitez did not apply for any other positions at Parkland.
In December 2013, Benitez filed his third discrimination charge and then filed this suit against Parkland one month later asserting he was wrongfully terminated under chapter 21 of the Texas Labor Code. Benitez alleged he was discriminated against on the basis of his race and national origin and he was retaliated against for complaining of unlawful discrimination. In response, Parkland filed a plea to the jurisdiction and traditional and no-evidence motions for summary judgment on Benitez's claims. Prior to the hearing, Benitez amended his petition to add the denial of a merit raise in January 2013 as an adverse employment action and a hostile work environment claim based upon harassment. Parkland addressed these added claims in its reply brief.
At the hearing on the motions, Benitez's counsel stipulated the plea to the jurisdiction addressed all of Benitez's claims, including those asserted in the newly amended petition. The trial court denied Parkland's plea and its motions for summary judgment. In its order, the court specified the plea went to the entire case and the parties stipulated the plea addressed all causes of action asserted in the amended petition. Parkland then brought this interlocutory appeal of the denial of its plea.
Generally, county hospital districts such as Parkland are governmental units that enjoy immunity from lawsuits for damages. See Dallas Cty. Hosp. Dist. v. Hospira Worldwide, Inc., 400 S.W.3d 182, 184-85 (Tex. App.—Dallas 2013, no pet.). Governmental immunity from suit is jurisdictional and can be waived only by clear and unambiguous language in a statute. Id. at 185. In this case, Benitez relies upon chapter 21 of the Texas Labor Code, known as the Texas Commission on Human Rights Act, to establish Parkland's waiver of immunity. The purpose of the TCHRA is to "secure for persons in this state . . . freedom from discrimination in certain employment transactions" and it allows for judicial enforcement by civil action. See TEX. LAB. CODE ANN. §§ 21.001, 21.254 (West 2015). Although the TCHRA waives immunity from suit, it does so only when a plaintiff states a claim that actually violates the statute. See Alamo Heights Indep. Sch. Dist. v. Clark, No. 16-0244, 2018 WL 1692367, at *7 (Tex. April 6, 2018).
Immunity from suit may be asserted through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. Id. A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. Id. If the plea challenges the existence of jurisdictional facts, we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim. Id.
In this case, Parkland's plea to the jurisdiction challenged the existence of jurisdictional facts with supporting evidence. To avoid dismissal for want of subject matter jurisdiction, Benitez was required to at least raise a genuine issue of material fact. Id. Our standard of review in cases such as this mirrors that of a traditional summary judgment and, in determining whether a material fact issue exists, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id. We cannot, however, disregard evidence necessary to show context. Id. Nor can we disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id.
To establish a prima facie case of disparate treatment race discrimination, Benitez was required to show he was (1) a member of a protected class, (2) qualified for his position, (3) subject to an adverse employment action, and (4) treated less favorably because of his membership in the protected class than other similarly situated employees who were not members of the protected class. See Harris Cty Hosp. Dist. v. Parker, 484 S.W.3d 182, 196 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Adverse employment actions do not include disciplinary filings, supervisor's reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, or criticism of the employee's work. Id. Benitez must show he suffered an "ultimate employment decision," which includes acts such as "hiring, granting leave, discharging, promoting, or compensating." Id.
To establish a prima facie case of retaliation, Benitez was required to show (1) he engaged in a an activity protected by the TCHRA, (2) he experienced a materially adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. Alamo Heights, 2018 WL 1692367, at *17. A "materially adverse employment action" is one that objectively might well dissuade a reasonable worker from making or supporting a charge of discrimination. Id. at *21. The harm must be significant because an employee's decision to report discriminatory behavior does not immunize him from "those petty annoyances that often take place at work and that all employees experience." Id.
Before addressing Parkland's arguments, we note Benitez contends Parkland cannot challenge the court's subject matter jurisdiction over the two claims added in his amended petition because they were not addressed in the original plea. This argument runs contrary not only to his counsel's stipulation at the hearing that the plea was sufficient to challenge all claims asserted, but also the trial court's order memorializing the stipulation and denying the plea as to all Benitez's claims. Even without the stipulation, the law is clear that a governmental entity may assert jurisdictional arguments for the first time on appeal. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). Accordingly, we will consider all Parkland's immunity arguments on appeal, regardless of whether they were raised in the trial court. Id.
The amended petition shows Benitez asserted claims for discrimination and retaliation based on three alleged actions by Parkland: the denial of a merit raise in January 2013, harassment creating a hostile work environment, and the termination of his employment. Benitez concedes he received a raise in January 2013, but it wasn't as large as the raise received by Abbott, a white male. Parkland contends Benitez cannot establish the prima facie elements of his discrimination or retaliation claims based on the allegedly insufficient raise because he has not alleged or provided evidence he sought or requested a larger raise, that he was entitled to a "merit raise," or that another similarly situated employee received a merit raise when he did not. Without such allegations or evidence, Benitez cannot show an "adverse employment action" occurred. See Forbes v. Catalyst Tech. Inc., 31 F. App'x 836 (5th Cir. 2002).
The entirety of Benitez's compensation claim rests on his allegation that Abbott received a larger raise than he did in 2013. The undisputed evidence submitted by Parkland shows Abbott did not receive a merit raise, but an increase in compensation due to a job reclassification supported by Benitez. Benitez does not contend he sought and was denied a job reclassification in 2013 that would have resulted in an increase in salary. Accordingly, he has not shown he was treated less favorably than another similarly situated employee outside the protected class. See Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421, 435 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (plaintiff who proffers fellow employee as comparator must demonstrate employment action at issue was taken under nearly identical circumstances). Nor does Benitez provide any evidence he was otherwise entitled to a larger raise. Benitez's subjective belief that he should have received a larger raise - an assertion made for the first time over four years after the event occurred - does not constitute prima facie evidence of an adverse employment action. McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 554 (Tex. App.—Dallas 2006, no pet.) (subjective belief alone insufficient to establish prima facie case of employment discrimination and retaliation). We conclude the trial court erred in denying Parkland's plea to the jurisdiction on this claim.
Benitez next contends the evidence he submitted "established triable discrimination and retaliation claims related to harassment." The law is clear that a harassment claim is separate and distinct from a discrimination or retaliation claim under the TCHRA and involves separate elements. See Sw Bell Tel., L.P. v. Edwards, No. 05-09-00606-CV, 2011 WL 3672288, at *11-12 (Tex. App.—Dallas, Aug. 23, 2011, no pet.) (mem. op.). The same events which form the basis of claims for discrimination and retaliation cannot form the basis of a hostile work environment claim. Id. at *12. To do so would blur the distinctions among the claims and the type of harm each was designed to address. Id.
Benitez argues he has asserted a separate hostile work environment claim because he does not rely on the same actions by Parkland to show harassment as he does to support his claims for discrimination and retaliation. He states his hostile work environment claim is based solely on his allegations of excessive discipline, threats, and "name calling" that are not otherwise actionable as adverse employment actions. See Parker, 484 S.W.3d at 196. To properly keep the claims separate, we limit our review of his hostile work environment claim to those alleged actions.
A hostile work environment claim "entails ongoing harassment, based on the plaintiff's protected characteristic, so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment." See Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The abusiveness standard requires extreme conduct. See Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 219 (Tex. App.—Austin 2010, no pet.). The elements of a prima facie case of hostile work environment are: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on the protected characteristic; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Anderson, 458 S.W.3d at 646. An employee complaining of harassment by a supervisor need only show the first four elements. Id. But an employer may mitigate or avoid liability for harassment by a supervisor by showing it exercised reasonable care to prevent and promptly correct any harassing behavior and the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities that were provided. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Smith v. Carter BloodCare, No. 02-12-00523-CV, 2014 WL 1257273, at *4 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.).
Benitez asserts some of the acts of harassment were retaliatory in nature rather than racially motivated. Although the federal courts have recognized claims for retaliatory hostile work environment, Texas has not. See Manor Indep. Sch. Dist. v. Boson, No. 03-16-00756-CV, 2017 WL 1228880, *2 n. 4 (Tex. App.—Austin Mar. 29, 2017, no pet.); cf. Metro. Transit Auth. of Harris Cty. v. Ridley, 540 S.W.3d 91, 99 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (analyzing retaliatory hostile work environment allegations under retaliation framework rather than separate elements of hostile work environment). Because we conclude Benitez failed to raise a fact issue on at least one of the prima facie elements of his hostile work environment claim regardless of whether the alleged harassment was based on his race or was in retaliation for a protected act, we need not address whether such a cause of action is cognizable in Texas.
The primary basis for Benitez's harassment claim is the anonymous threats and phone calls he began receiving in 2011. Because of these calls and messages, Benitez began working from home. It is undisputed Benitez has no idea who was behind the harassment. Benitez argues, however, that "[i]n view of the context in which they occurred, involving undisputed repetitive national origin as well as racial slurs by members of white senior management of the IT division of Parkland," it must be assumed the anonymous harassment was directed at him because of his race. We disagree.
The evidence produced by both parties suggests a different context. The threatening messages accused Benitez of siding with management over staff. Although the management and staff appeared divided along primarily, though not exclusively, racial lines, no evidence shows the threats of being "with us or against us" were directed at Benitez because he was Hispanic. Indeed, Benitez alleged Abbott, who is white, received an email containing a substantially similar threat. Instead, the messages indicated they were directed at Benitez because his allegiance in ongoing disputes within the IT department was unclear. Benitez himself originally believed the messages were most likely sent by another minority member of the IT department upset over his relationship with senior management. Only after he began having serious disagreements with the senior management, did Benitez accuse them of having been behind the anonymous threats.
In addition, Parkland produced substantial evidence of its efforts to remediate the work environment both in general and for Benitez specifically. These efforts included a police investigation, diversity training, and allowing Benitez to work at home. Benitez contends these efforts were insufficient because the anonymous threats were never resolved to his satisfaction. However, Benitez admitted that, after he was informed of the results of the police investigation, he stopped reporting incidents of alleged harassment to human resources because he did not feel it would do any good. When he protested his supervisor's request for him to return to working at Parkland because he felt it was still unsafe, he was allowed to continue working from home for another ten months until his position was outsourced.
As for the alleged repetitive slurs based on race and national origin, Benitez complained about occasional comments and racial remarks made over the course of several years by three of the IT department's eleven senior managers. Of those three managers, one was fired for his alleged use of the "n word" despite his twenty-six-year career with the hospital without any disciplinary history. He was allowed to return to Parkland only after an appeal of the decision. The second person resigned shortly after Benitez told a colleague to report him to human resources for using a racial slur. And the third, Benitez admits, he did not report to HR and did not complain about until he was interviewed after his EEOC/TWC charges. None of the verbal derogatory comments was said directly to Benitez and most were overheard by other people. The only slur Benitez could point to as being directed at him were two emails he alleged he received that used the term "wetback." Benitez did not keep the emails, could not identify the source of the messages or when he received them, and did not indicate any other content or context for them. Although the remarks were clearly offensive, Benitez did not provide evidence they were so severe or pervasive they affected a term, condition, or privilege of his employment or unreasonably interfered with his work performance. See Moore v. United Parcel Serv., Inc., 150 F. App'x 315, 319 (5th Cir. 2005). Occasional comments largely directed at others are insufficient to create a prima facie case of a hostile work environment. See Septimus v. Univ. of Houston, 399 F. 3d 601, 612 (5th Cir. 2005).
Benitez contends McDermott's attempt to force his resignation by requiring him to return to working out of a Parkland office was an incident of harassment. Even if the confrontation with McDermott is characterized as hostile, Benitez points to no evidence it occurred because of his race or in response to a protected activity. The evidence shows a history of animosity between McDermott and the entire web services team, including its two white members, and the same demands were made to all three. Furthermore, the incident was resolved entirely in Benitez's favor the same day it occurred when it was determined he would no longer report to McDermott and he was permitted to continue working from home. Benitez stated his supervisor, Saul, apologized to him several times about the incident.
Finally, Benitez contends the discipline he received as a result of his calling McDermott a "joke" was retaliatory harassment because he was given a final warning instead of a first warning even though he had never been disciplined before. Benitez does not address the fact he was given only a warning despite termination being recommended. Even assuming a retaliatory basis for the disciplinary action, an employee must show severe or pervasive conduct to make a prima facie case for a hostile work environment. Id. A single episode of discipline, particularly without evidence of an effect on the plaintiff's job, is insufficient to raise a fact issue on a claim for hostile work environment. See Mendoza v. Helicopter, 548 F. App'x. 127, 129 (5th Cir. 2013). We conclude the trial court erred in denying Parkland's plea to the jurisdiction on Benitez's hostile work environment claim.
Benitez alleges the termination of his job at Parkland was the result of both discrimination and retaliation. Benitez lost his job when his entire team was outsourced as a cost savings measure. His termination was, therefore, the result of a reduction-in-force. See Hall v. RDSL Enter. LLC, 426 S.W.3d 294, 303 (Tex. App.—Fort Worth 2014, pet. denied). Because his termination was the result of a reduction-in-force, to establish a prima facie case of discrimination Benitez was required to show not only that he was a member of a protected group adversely affected by his employer's decision, but also that he was qualified to assume another position at the time he was discharged and Parkland intended to discriminate in terminating his position, while others who were not members of the protected class remained in similar positions. See Ortiz v. Shaw Group, Inc., 250 F. App'x 603, 606 (5th Cir. 2007).
The evidence shows Benitez failed to establish most of the elements of his prima facie case. Benitez's entire team was outsourced and all positions in his area of employment were eliminated. The other members of Benitez's team who were discharged were both white, so Benitez cannot show other employees who were not members of his protected class were treated differently. Parkland informed Benitez he was free to apply for a transfer to any open position at the hospital and gave him a contact person to help with the process. He chose not to apply for any jobs within Parkland and provided no evidence of his qualifications with respect to any open position. Accordingly, no evidence shows he was qualified to assume another position at the time he was discharged. See Dubaz v. Johnson Controls World Servs., Inc., 163 F.3d 1357 (5th Cir. 1998).
The decision to terminate Benitez's employment was ultimately made by Martinez who, like Benitez, is Hispanic. Because the decision maker was in the same protected class as Benitez, there is a presumption that unlawful discrimination was not a factor in the discharge. See Agoh v. Hyatt Corp., 992 F. Supp. 2d 722, 744 (S.D. Tex. 2014). In an attempt to overcome this presumption, Benitez points to the white employees who approved the termination decision - specifically Saul, Maurer, and Jim Johnson, Maurer's supervisor in HR. But no evidence indicates these people were involved in the decision-making or suggests racial animus. Neither Maurer nor Johnson was a member of the so-called "redneck country club" and both assisted with the investigation of Benitez's harassment complaints. Saul had on two previous occasions gone to great lengths to ensure Benitez did not voluntarily leave his employment with Parkland. Because Benitez did not establish a prima facie case of termination based on discrimination, we conclude the trial court erred in denying Parkland's plea to the jurisdiction on that claim.
To establish a prima facie case for his claim for retaliatory discharge, Benitez was required to show a causal link between a protected activity and his termination. See Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 493 (Tex. App.—Dallas 2013, no pet.). Circumstantial evidence sufficient to show a causal link between an adverse employment decision and the filing of a discrimination charge or suit may include: (1) the employer's failure to follow its usual policy and procedures in carrying out the challenged employment actions; (2) discriminatory treatment in comparison to similarly situated employees; (3) knowledge of the discrimination charge or suit by those making the adverse employment decision; (4) evidence that the stated reason for the adverse employment decision was false; and (5) the temporal proximity between the employee's conduct and discharge. Id. Although Benitez need only show a minimal causal link between the protected activity and his termination, carrying out a previously planned employment decision is no evidence of causation. See Alamo Heights, 2018 WL 1692367 at *22. Furthermore, where the person making the decision to terminate the plaintiff's employment has no knowledge of the protected activity, a causal connection cannot be shown. See Gorman v. Verizon Wireless TX, L.L.C., 753 F.3d 165, 171 (5th Cir. 2014).
The Texas Supreme Court recently stated it had not yet determined whether the "but for" or the "motivating factor" standard is the appropriate causation standard for a TCHRA retaliation claim. See Alamo Heights, 2018 WL 1692367 at *17. Because the result in this case does not depend on which standard is applied, we also do not address this issue.
The evidence submitted by both Parkland and Benitez showed that senior managers in the IT division at Parkland were discussing outsourcing web services for years before Benitez engaged in any protected activity. Benitez was repeatedly told Parkland wanted to move to a different platform, but he was resistant, stating he did not believe it was a good decision.
Martinez was brought in as a consultant, and ultimately as CIO at Parkland, in part to implement cost savings. Benitez admitted in the trial court Martinez was never told about the discrimination charges or the police investigation. He states for the first time on appeal that Abbott told Martinez in January 2013 he was concerned minority members were being retaliated against for their participation in Parkland's police investigation. Benitez does not point to any evidence in the record that supports this allegation and the evidence shows Martinez began working at Parkland in February 2013. In addition, Benitez argues on appeal that Martinez's awareness of his protected conduct could be established by circumstantial evidence. This argument is directly contradicted by Benitez's own repeated assertions in the trial court that Martinez had no knowledge of any discrimination or retaliation claims before making the outsourcing decision. Martinez stated he was aware the term "redneck country club" was used to describe IT senior management, and that he was considered a member of this club, but he was not informed of any EEOC complaints made by Benitez or anyone else. Martinez spent months evaluating various cost savings measures before making the final decision to outsource not only web services, but other IT departments as well.
Benitez attempts to once again avoid the effect of Martinez being the decision maker by saying he was not the only one involved in making the decision. Benitez invokes the "cat's paw" theory of liability under which a plaintiff can establish an employer's liability where another employee with retaliatory animus influenced the actual decision maker to take retaliatory action against the plaintiff. See Zamora v. City of Houston, 798 F.3d 326, 332 (5th Cir. 2015). But Benitez fails to identify any employee with retaliatory animus who had influence or leverage over the decision. See Gorman, 753 F.3d at 171. He simply speculates that white male members of Parkland's IT division were "involved." Such speculation is insufficient to create a fact issue. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 437 (Tex. 1997). Benitez produced no evidence retaliatory animus played any role in his discharge. Accordingly, Benitez did not establish a prima facie case of termination based on retaliation.
We conclude the trial court erred in denying Parkland's plea to the jurisdiction. We reverse the trial court's order denying the plea and dismiss this case for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
JUSTICE 170670F.P05
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas
Trial Court Cause No. MDL-14-0598.
Opinion delivered by Justice Francis. Justices Evans and Boatright participating.
In accordance with this Court's opinion of this date, the order of the trial court denying the plea to the jurisdiction filed by PARKLAND HEALTH AND HOSPITAL SYSTEM is REVERSED and this case is DISMISSED FOR WANT OF JURISDICTION.
It is ORDERED that appellant PARKLAND HEALTH AND HOSPITAL SYSTEM recover its costs of this appeal from appellee Israel Benitez. Judgment entered June 4, 2018.