Opinion
No. 05-15-00370-CV
01-04-2016
CITY OF DALLAS, Appellant v. RONALD GILES, Appellee
On Appeal from the 192nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-13-07841
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and O'Neill
Opinion by Justice Stoddart
The Hon. Michael J. O'Neill, Justice, Assigned
The City of Dallas presents an interlocutory appeal of the trial court's order denying its plea to the jurisdiction, which it filed after Ronald Giles sued the City for retaliation pursuant to Chapter 21 of the Texas Labor Code. In this appeal, the City argues the trial court erred by denying its plea to the jurisdiction. We reverse the trial court's order and dismiss the case with prejudice.
FACTUAL BACKGROUND
Giles is a police officer with Dallas Police Department (Department or DPD). In a different lawsuit filed in federal court, Giles sued the City for discrimination. That suit was dismissed, and Giles appealed. After Giles appealed the dismissal of his federal lawsuit, DPD's Internal Affairs Department (IAD) initiated an investigation of Giles because DPD received a complaint from a citizen about Giles's conduct. Giles also was reassigned within DPD from the Communications Division to the Patrol Division. In this lawsuit, Giles, alleges both of these actions were taken to retaliate against him for filing his federal court lawsuit.
1. Investigation by IAD
The IAD investigation began after DPD received a complaint from a citizen who claimed Giles, while working off duty, confronted the citizen and pushed him against a car while making inappropriate comments. Giles denied the allegations and maintained he did not act in an unprofessional or discourteous manner and did not force anyone against a car on the date the complainant alleged.
In this lawsuit, Giles asserts that when he met with IAD, he was told the complaint was not verified, meaning IAD did not have the complainant's contact information, which is a violation of DPD's policies and procedures. Giles testified that when he was presented with the complaint, the complainant's phone number and address were not provided. However, there is evidence in the record that the Department did obtain the complainant's date of birth, address, and phone number.
At the end of its investigation, IAD determined the allegations were "not sustained" and Giles was not disciplined.
Incidental to the investigation, IAD discovered Giles had not followed a temporary procedure for officers to request approval for off-duty jobs. IAD then sent a "Chain of Command Recommendation Memorandum" to Giles's supervising officer. Giles responded that he followed the proper procedures. Giles's supervising officer spoke to Giles about the memorandum and no further action was taken.
2. Reassignment
Giles worked in DPD's Communications Division, which, among other things, includes the 911 call and dispatch center. In August 2012, a 911 call was improperly handled, causing DPD to discipline several employees and transfer most managers working in the Communications Division to other divisions in DPD. Giles was not disciplined as a result of the incident. However, in November 2012, he was reassigned.
After being informed of his transfer from Communications to the Patrol Division, Giles had an opportunity to select which patrol station he would be assigned to. He declined to choose because he considered the change punitive. The Department then assigned Giles to the Northeast Station. Giles considers Patrol to be a less desirable assignment than Communications. Although he alleged it is well known that positions in Patrol are less desirable, he could not name any officers who believe that statement to be true. When asked to support his allegation that Patrol is a less desirable assignment, Giles answered "[t]he weather, the location." He noted the location of his Communications job was closer to his home than is Patrol at the Northeast Station.
When he was reassigned, Giles's rank, pay, days off, and working hours did not change. Some time after the reassignment, Giles was given an opportunity to participate in a bidding process to request which days and shift he would work each week. Giles received the schedule he requested. However, he did not bid for an assignment at a different station "for fear of further retaliation." Thus, he remained at the Northeast Station. Giles testified he is happy with his assignment at the Northeast Station and enjoys supervising other officers there.
Giles agrees the City, as his employer, has the right to assign people to direct his work, the discretion to designate the duties he performs as part of his work, and the discretion to alter the terms and conditions of his job. Giles agrees the police chief has discretion to make reassignments as he deems fit based on the department's needs.
3. Lawsuit
Giles sued the City alleging retaliation proscribed by the Texas Commission on Human Rights Act (TCHRA), Texas Labor Code section 21.055. Giles alleges the City subjected him to "an unwarranted, unjustified and unfounded Internal Affairs Investigation" and the City involuntarily transferred him to the Patrol Division after he filed an appeal in the federal lawsuit.
The City filed a plea to the jurisdiction contesting the trial court's subject-matter jurisdiction. Specifically, the City argued Giles could not establish a prima facie case of retaliation. The trial court denied the plea, and this interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2015) (authorizing interlocutory appeal from order denying a plea to the jurisdiction by a governmental unit).
LAW & ANALYSIS
A. Plea to the Jurisdiction
A plea to the jurisdiction is a dilatory plea that challenges the trial court's subject matter jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject matter jurisdiction is a question of law that we review de novo. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010). The plea to the jurisdiction standard generally mirrors that of a traditional motion for summary judgment. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When the plea challenges jurisdictional facts, we "'consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,' even where those facts may implicate the merits of the cause of action." Id. at 227. If the evidence creates a fact question as to the jurisdictional issue, then the fact-finder will decide that question. Id. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Id. When reviewing the evidence, we must "'take as true all evidence favorable to the nonmovant' and 'indulge every reasonable inference and resolve any doubts in the nonmovant's favor.'" Id. at 228.
B. Immunity
Governmental immunity deprives a trial court of subject matter jurisdiction. Miranda, 133 S.W.3d at 225-26. Governmental entities retain immunity from suit unless the immunity has been expressly waived by the legislature. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Legislative consent for suit must be "by clear and unambiguous language." Id. (quoting TEX. GOV'T CODE ANN. § 311.034 (West 2013)). The plaintiff must plead facts affirmatively demonstrating that governmental immunity has been waived and that the trial court has subject matter jurisdiction. City of Dallas v. Turley, 316 S.W.3d 762, 767 (Tex. App.—Dallas 2010, pet. denied).
Chapter 21 of the Texas Labor Code provides a limited waiver of immunity for retaliation claims. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012). A plaintiff must make a prima facie case of discrimination to maintain a claim of retaliation against an employer. See Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 493 (Tex. App.—Dallas 2013, no pet.) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). A plaintiff makes a prima facie case of retaliation by showing (a) he engaged in a protected activity, (b) an adverse employment action occurred, and (c) there is a causal link between the protected activity and the adverse action. Id. The City's plea to the jurisdiction challenged the second element, asserting there was not adverse employment action. The City makes the same argument on appeal.
C. Adverse Employment Actions
TCHRA protects an individual from actions that a reasonable employee would find materially adverse. See, e.g., Madden v. El Paso Indep. Sch. Dist., No. 08-13-00169-CV, 2015 WL 4480871, at *5 (Tex. App.—El Paso July 22, 2015, no pet.) (citing Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex. App.—Fort Worth 2006, no pet.)); Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901 (Tex. App.—Houston [14th Dist.] 2013, no pet.). It is an objective inquiry. See Jenkins v. City of San Antonio Fire Dept., 784 F.3d 263, 269 (5th Cir. 2015). Material actions are those that would likely to deter a reasonable worker from making or supporting a charge of discrimination. Madden, 2015 WL 4480871, at *5; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60 (2006) ("a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination"). The materially adverse standard ensures that only significant harms "as judged from the standpoint of a reasonable employee" can be redressed in court. Madden, 2015 WL 4480871, at *5 (quoting Niu, 206 S.W.3d at 731); see also Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). The standard is also general enough to provide flexibility in assessing harm because "context matters" and "the significance of any given act of retaliation will often depend upon the particular circumstances[.]" Madden, 2015 WL 4480871, at *5 (quoting Niu, 206 S.W.3d at 731); Navy, 407 S.W.3d at 901. Generally, petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. Navy, 407 S.W.3d at 901.
Because the TCHRA was enacted in part to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments," we look to relevant federal law for guidance when the relevant provisions of Title VII are analogous. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136-37 (Tex. 2015) (citing TEX. LAB. CODE § 21.001(1); AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam)). --------
D. Giles Fails to Show He Suffered a Materially Adverse Employment Action
The basis for Giles's retaliation claims are the IAD investigation and the reassignment from Communications to Patrol.
1. Investigation by IAD
The City cites this Court's opinion in Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256 (Tex. App.—Dallas 2009, pet. denied) to support its argument the IAD investigation was not a materially adverse employment action. Gumpert involved a retaliation claim against a private employer. The plaintiff in Gumpert was told he would receive a warning letter because a third party complained to the employer that the plaintiff "made crude remarks to [the third party] including suggestive comments about his wife and daughter." The plaintiff denied making the remarks. Gumpert, 293 S.W.3d at 263. This Court decided that "this single alleged disciplinary action does not amount to a materially adverse employment action necessary to support a claim for retaliation." Id. (citing Grice v. FMC Techs. Inc., 216 Fed. Appx. 401, 407 (5th Cir. 2007)).
In the case before us, the result of the IAD investigation was less harmful to Giles than the warning letter in Gumpert. While the plaintiff in Gumpert was told he would receive a warning letter, Giles was not disciplined as a result of the investigation. Rather, at the end of its investigation into the citizen's complaint, IAD concluded the allegations were "not sustained." Being questioned about a complaint, without more, does not constitute an adverse employment action. See id.; Brewer v. College of the Mainland, 441 S.W.3d 723, 731 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68; Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 438 (Tex. App.—Fort Worth 2009, pet. denied)). Even if the complaint in the IAD investigation was not verified, we consider the IAD's investigation of a citizen's complaint to be the type minor annoyances that are not protected by the TCHRA. See Navy, 407 S.W.3d at 901; see also Montgomery Cnty. v. Park, 246 S.W.3d 610, 614-15 (Tex. 2007) (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68). It is not the type of significant harm that needs to be redressed in court. See Madden, 2015 WL 4480871, at *5 (quoting Niu, 206 S.W.3d at 731).
The same is true of Giles's complaint about IAD's conclusion he failed to follow a temporary procedure for officers to request approval for off-duty jobs. IAD sent Giles's supervisor a memorandum concerning the matter and the supervisor spoke to Giles about it. No further action was taken. We cannot conclude this was an adverse employment action. See Gumpert, 293 S.W.3d at 263; Niu, 206 S.W.3d at 731-32 ("And taken by themselves, the reprimands do not rise to the level of adverse employment action."). Such an encounter with a supervisor would not dissuade a reasonable worker from making or supporting a charge of discrimination. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Rather, it too was the type minor annoyances that are not protected by the TCHRA. See Navy, 407 S.W.3d at 901.
2. Reassignment
The transfer from Communications to Patrol also will not support Giles's claim for retaliation. While Giles expressed his desire to remain in Communications, he has not presented any evidence that working in Patrol is objectively worse. Giles's subjective preference to remain in Communications is insufficient to make the transfer materially adverse. See Jenkins, 784 F.3d at 269. Giles's rank, pay, days off, and working hours did not change when he was transferred. Without more, these facts show Giles experienced a lateral transfer, which is not materially adverse. See Cox, 300 S.W.3d at 438-39 (citing Sabzevari v. Reliable Life Ins. Co., 264 Fed. Appx. 392, 396 (5th Cir. 2008) ("a transfer that does not involve a demotion in form or substance cannot rise to the level of a materially adverse employment action"); Alvarado v. Tex. Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (noting a transfer can be an adverse employment action if "the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement")). Although he complains about the station to which he was assigned, Giles declined two opportunities to select a different station.
Further, Giles acknowledges the City has the right to assign people to direct his work, the discretion to designate the duties he performs as part of his work, and the discretion to alter the terms and conditions of his job. Giles agrees the police chief has discretion to make reassignments as he deems fit based on the department's needs.
Finally, examining the context of the reassignment shows it was not retaliatory. Nearly every manager in the Communications Division was reassigned following an improperly handled 911 call. DPD's decision to staff the Communications Division differently in wake of the incident is not materially adverse to Giles. See Madden, 2015 WL 4480871, at *5 (quoting Niu, 206 S.W.3d at 731); Navy, 407 S.W.3d at 901.
CONCLUSION
We conclude Giles failed to show he suffered a materially adverse employment action and thus has not made a prima facie claim of retaliation. Therefore, the City retains its immunity. We reverse the trial court's order denying the City's plea to the jurisdiction. We grant the City's plea and dismiss this case with prejudice.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 150370F.P05
JUDGMENT
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-13-07841.
Opinion delivered by Justice Stoddart. Justices Fillmore and O'Neill participating.
In accordance with this Court's opinion of this date, the trial court's order denying the City of Dallas's plea to the jurisdiction is reversed. This case is dismissed with prejudice.
It is ORDERED that appellant City of Dallas recover its costs of this appeal from appellee Ronald Giles.