Opinion
NO. 01-16-01014-CV
06-26-2018
JEANNE HARTRANFT, Appellant v. UT HEALTH SCIENCE CENTER-HOUSTON, Appellee
On Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2015-63281
MEMORANDUM OPINION
This is an employment-discrimination case. Jeanne Hartranft sued her former employer, UT Health Science Center-Houston (UTHealth), alleging it had engaged in racial and gender discrimination against her and had retaliated against her for opposing discriminatory practices in the workplace. Hartranft claimed that the discriminatory and retaliatory practices had created a hostile work environment, resulting in her constructive discharge.
UTHealth filed a traditional motion for summary judgment, asserting that its proffered evidence established that Hartranft's claims fail as a matter of law. After Hartranft responded, offering her own evidence, the trial court granted the motion in UTHealth's favor. On appeal, Hartranft raises four issues to challenge the summary judgment. Because we hold that the summary judgment was properly granted in UTHealth's favor as to Hartranft's gender-discrimination claim, but it was improperly granted as to the remainder of her claims, we affirm the judgment in part and reverse in part and remand.
Background
Two of Hartranft's co-workers, Nancy Perkins and Christie Carver, also filed lawsuits based on the same or similar operative facts that form the basis of this case. See UT Health Sci. Ctr.-Houston v. Perkins, No. 01-16-00901-CV, 2017 WL 2774487 (Tex. App.—Houston [1st Dist.] June 27, 2017, no pet.) (mem. op.); UT Health Sci. Ctr.-Houston v. Carver, No. 01-16-01010-CV, 2018 WL 1473897 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op.).
Jeanne Hartranft, who is Caucasian, was hired on March 3, 2014, by UTHealth to work as a telephone-triage nurse. After working in the position for approximately four months, Hartranft resigned. After her resignation, Hartranft filed suit, asserting that her UTHealth supervisor, David Riley, who is African American, subjected her to harassment, threats of physical violence, and abusive treatment based on her gender and race. Hartranft further asserted that Riley treated other non-African-American female nurses in the same manner. Hartranft claimed that the only African American female nurse in the telephone-triage department was not subjected to the same ill-treatment but was instead treated with respect and given preferential treatment.
Hartranft avers that she verbally complained about Riley's abusive treatment to UTHealth human-resources representative Sandra Kelley and to Dr. Tyson, the department manager. However, Hartranft contends that her complaints were disregarded.
Another Caucasian triage nurse, Christie Carver, sent a written grievance to Dr. Tyson and to Kelley. Carver informed Kelley and Dr. Tyson that "hostile working conditions" had been "allowed to persist" in the telephone triage office. She alleged that the nurses had been "targets of David Riley's volatile temper, bullying, and inappropriate reprimands."
Carver also stated that Riley's behavior resulted in "a stressful and unhealthy working environment," that she "constantly worr[ied]" about herself and her team members, and that the threat of Riley's "explosive temper" kept her "on edge." She also described several specific instances during which Riley became angry with individual nurses for asking job-related questions. Carver said that, during one such incident, Riley told her the answer to her question was "in the policy" and to use her nursing judgment. When she told him she only wanted to do a good job, Riley had ordered her into the hallway. She said that she was frightened "by [Riley's] irate pointing, tone and gestures as he told me that I was the only one confused and I was insubordinate."
On another occasion, Carver and another nurse, Nancy Perkins, were discussing policy when Riley "exploded into a huge outburst at Nancy," yelling from across the room "no more sidebar conversations!" Then, during a meeting, Riley "lost it" when Nancy Perkins explained something to him. "Riley wildly kicked a chair and waved his arms as he loudly yelled at [Nancy Perkins]."
Carver stated that Monica Smith, Riley's supervisor, witnessed Riley's outburst at the meeting. Carver reported that she also told Smith that Riley had frightened her. She said that Smith was "dismissive" of her concerns. Carver averred that Smith "failed to address [the] problems [with Riley] or take corrective action to ensure a violent free, productive and supportive training and work environment." Carver also said in her grievance that she "spoke to Human Resources who agreed to address my concerns" but nothing had changed.
In response to Carver's grievance, Dr. Tyson conducted an investigation. As part of the investigation, Dr. Tyson interviewed a number of the triage nurses. Hartranft was one of the nurses interviewed. Hartranft would later testify that she told Tyson that Riley had nearly hit her in the face during the meeting, albeit unintentionally, when he became angry with Perkins. When he kicked his chair back and lunged toward Perkins, Riley made what Hartranft described as a "tomahawk chop" motion with his arm, almost striking Hartranft. Hartranft testified that she had described this to Tyson, but Dr. Tyson immediately had characterized Riley's action "just . . . pointing down at the ground." Hartranft said that she then corrected Dr. Tyson, reiterating that Riley had made a striking motion.
In her report summarizing the findings of her investigation, Dr. Tyson concluded that Riley presented no threat to Carver or the other nurses. Dr. Tyson found that the nurses interviewed "do not feel scared" of Riley, "nor do they feel unsafe in any way." She also explained that, in her interviews, she had asked each nurse if Riley had "discussed sexual activities; told off-color jokes concerning race, sex, disability, or other protected classes; engaged in unnecessary touching; commented on physical attributes; displayed sexually suggestive, or racially insensitive pictures; used demeaning or inappropriate terms, or epithets; used indecent gestures; used crude language; sabotaged anyone's work; or engaged in hostile physical conduct." Dr. Tyson stated that each nurse interviewed "gave a resounding 'No' to each one."
Dr. Tyson also concluded that Riley's supervisor, Smith, had acted appropriately. She stated that Smith had not been dismissive of Carver's concerns or of Riley's behavior. Dr. Tyson wrote that she had learned that, after the meeting in which Riley had kicked his chair and yelled at Perkins, Smith had met with Riley and Perkins. Dr. Tyson said that Smith had reported that they talked about each person's side and that Riley and Perkins had then apologized to one another.
Dr. Tyson learned that Carver intended to appeal her response. She also learned that Carver had emailed three of the other triage nurses about the grievance. Dr. Tyson went to the area where the phone-triage nurses worked, told them about Carver's grievance, warned them not to discuss or work on the grievance during work time, and informed them were not obligated to assist Carver.
Carver appealed Dr. Tyson's response to her grievance by sending a letter to Andrew Casas, Vice President and Chief Operating Officer of UTHealth. Carver not only contested Dr. Tyson's factual findings, she complained about the manner in which Dr. Tyson had publically announced to the telephone-triage department that Carver had filed a grievance and that the other nurses were not required to assist with the grievance. Carver indicated that she had learned from other nurses that Dr. Tyson's announcement had a chilling effect on other nurses' willingness to support her grievance.
Carver also said, "I did not complain about protected class discrimination. I do not know why Dr. Tyson addressed those things in her response." Carver further asserted that Dr. Tyson's findings misrepresented the facts provided by the employees Dr. Tyson had interviewed. For example, Carver wrote, "Despite Dr. Tyson's findings that no one worried or worries about David Riley's temper, I believe 3 interviewees told her they did and they still do. Each one told me that their answers were very different than Dr. Tyson wrote in her response to me." She averred that Hartranft told her that, during the meeting in which Riley had become enraged at Perkins, Riley had nearly hit Hartranft "as he waved his hand violently in front of her face."
Carver stated that Perkins told her, contrary to what Dr. Tyson found in her report, "that David Riley never apologized to [Perkins] for his temper outbursts." The next day, Perkins was fired "for not being a team player," and she was escorted from the premises by UT police.
About one month later, Hartranft resigned. She stated in her resignation letter that she had "agonized over [her] decision for over a month" but had decided to resign following "a heated discussion" she had with Riley the previous week, which she later testified was regarding overtime. She said that Riley had yelled at her, screaming several times that he was her "superior." During her deposition, Hartranft cited this as another time she feared Riley might assault her because he had charged out of his office yelling at her during the incident.
In her resignation letter, Hartranft had also said that she suffered from fibromyalgia. She indicated that the pain associated with the disease had worsened during her employment.
Carver's appeal to Casas about her grievance was never answered. Carver resigned two weeks after Hartranft's resignation.
Two weeks after Carver resigned, another telephone triage nurse, Anna George, sent an email to a number of people, including UTHealth human resources' representative Sandra Kelley. George was transferred from the telephone triage department to cardiology.
The subject of George's email was "Hostile [W]ork Environment." George wrote, "I am really frightened to work under my current manager D. Riley RN because he was yelling again today at me for asking for a clarification to schedule a [patient.]" She said that Riley "had yelled at other nurses in the past and they no longer work here." She pointed out that that several nurses had already been fired or had quit because of Riley's behavior.
George continued, "I can't work under this situation." She explained that she was "really scared [Riley] is treating me like this." George related that Riley "is really upset about my transfer to cardiology and called me few times and harassed me about it. I am really upset, scared and worried about my health also at this time."
Jeanne Hartranft sued UTHealth for violations of the Texas Commission on Human Rights Act (TCHRA). See TEX. LAB. CODE ANN. §§ 21.001-.556 (West 2015). Her petition included the following factual allegations:
• "Hartranft was a good employee who did her job well."
• "She was discriminated against because of her race and gender and was retaliated against for opposing discriminatory practices in the workplace."
• "Hartranft was a nurse in the DSRIP [Delivery System Reform Incentive Payment] office."
• "David Riley did not like Jeanne Hartranft because she is female and is not African American."
• "Riley is male and African American."
• "He managed Jeanne Hartranft and the other female, non-African-American nurses in the office by bullying them, throwing temper tantrums, and routinely trying to intimidate them."
• "There were several incidents where Jeanne Hartranft feared that David Riley would physically assault her and other nurses."
• "Hartranft was screamed at and was told repeatedly by David Riley that he was her superior."
• "[N]umerous good nurses were either fired or quit because of the hostile work environment created by David Riley, and his supervisors' failure to correct the situation."
• "Hartranft was retaliated against when she supported a grievance filed by Christie Carver, who grieved about . . . discrimination."
• "Perkins was also a witness to a grievance filed by Christie Carver, which complained about David Riley's discriminatory practices."
• "Dr. Tyson conducted an 'investigation,' during which she took Jeanne Hartranft's statement and twisted everything that Jeanne Hartranft said."
• "Dr. Tyson later flew into a rage in front of the whole office, telling everyone about the grievance, and warning others not to support it."
• "Hartranft's work environment was so hostile that it was literally making her sick."
• "[Hartranft] was constantly under stress and worried about being bullied, yelled at or fired and escorted from the building."
Hartranft averred that she had fulfilled all the administrative prerequisites to initiating suit by timely filing a charge of discrimination with the Equal Employment Opportunity Commission and the Texas Workforce Commission. The state agency had issued a right-to-sue letter to Hartranft, and she averred that she had timely filed suit.
UTHealth asserted governmental immunity and filed a single document that included both a plea to the jurisdiction and a traditional motion for summary judgment. UTHealth identified three TCHRA causes of action reasonably alleged by Hartranft's petition: (1) disparate-treatment discrimination based on gender and race; (2) hostile work environment; and (3) retaliation. UTHealth first set out its arguments in support of its plea to the jurisdiction. Under the heading "Grounds for Traditional Summary Judgment," UTHealth "reincorporate[d] all of its preceding arguments about the Plaintiff's failure to establish a prima facie case of discrimination, hostile work environment, retaliation, or constructive discharge under the Texas Labor Code."
With regard to the race and gender discrimination claims, UTHealth argued that Hartranft had "no evidence that male or non-Caucasian nurses were treated better than she was" to support her disparate treatment claim. It offered excerpts from Hartranft's deposition in which she testified that there were no male nurses in the telephone-triage department.
UTHealth acknowledged Hartranft's testimony, in which she cited four examples of how L. Sanders, the only African American nurse in the telephone-triage department, was treated more favorably by Riley and Smith. Hartranft had testified that Riley and Smith invited Sanders to be on a committee, while the other nurses were not made aware there was a committee. Hartranft testified that, during staff meetings, Sander's suggestions were well received by the managers while the other nurses' suggestions would be rejected. Hartranft also testified that Sanders would at times sit at her desk, without taking phone calls, while the other nurses were working to take calls. Hartranft testified that Sanders would go into Smith's office with Smith and Riley for periods of time. However, UTHealth asserted that these examples were not sufficient to show disparate treatment.
UTHealth asserted that Hartranft did not know "if Sanders was paid more or received a promotion for the alleged disparate treatment." It averred that Hartranft had had "no evidence that Sanders was not performing other job duties when she was away from the unit, or that that this was somehow a privilege that only Sanders received." Finally, UTHealth argued that the "sole basis" for Hartranft's disparate treatment claims was "her unsupported belief that Riley did not like [her] because she is female and is not African American."
Hartranft responded with her own affidavit, along with affidavits of Nancy Perkins and Christie Carver. Perkins was hired to work in the telephone-triage department in December 2013. Hartranft and Carver began working there in March 2014.
The three nurses each testified in her affidavit that, from the beginning, Riley bullied non-African American female nurses in the department. They all averred that Riley "yelled at" several of them "all of the time," including Hartranft, "often interrupting" their phone calls. They all described Riley's angry outburst during the April 23 meeting when he either kicked or threw his chair and nearly struck Hartranft in the face with his hand as he lunged at Perkins. They all described ongoing intimidating and verbally abusive treatment by Riley directed toward the nurses with one exception—Sanders, the sole African-American nurse, whom they averred was treated respectfully and preferentially. They each stated that, in contrast to how they were treated, Riley "never raised his voice or took an intimidating posture when he spoke to [Sanders]," even when Sanders questioned policy. They stated that "Sanders was often in long, closed-door meetings with David Riley and Monica Smith, even when the office was short staffed, busy with long call wait times and patient calls were being missed." They testified that, although she "was the most recent hire, had the least experience of any of the nurses, and knew the least about the job," Riley and Smith "discussed how they wanted . . . Sanders to go with them to a managerial meeting." The three nurses stated that the pattern of ongoing harassment of the non-African American nurses continued through June or July 2014, the date of each nurse's separation based on firing or resignation.
Regarding the hostile-work-environment claim, UTHealth asserted that the conduct Hartranft relied on to support her claim "was not severe or pervasive enough to alter the conditions of her employment or to create a hostile work environment." UTHealth claimed that, in her deposition, Hartranft had cited the incident at the April 23 meeting, involving Riley lunging at Perkins and nearly hitting Hartranft in the face, to support her allegation that "Riley would bully her and other nurses, throw temper tantrums, and routinely try to intimidate them." UTHealth acknowledged that Hartranft had also testified about several instances in which Riley had been verbally abusive but claimed that Riley's conduct cited by Hartranft in her deposition was not sufficient "to establish a prima facie case for hostile work environment."
Hartranft responded by pointing to evidence that she was subject to "constant yelling" in the workplace making it difficult to perform her job function. She also stated that "[t]here were several incidents where [she] feared that David Riley would physically assault her and other nurses."
Hartranft offered her entire deposition transcript in support of her response. Hartranft testified that, not only was she afraid of being assaulted by Riley at the April 23 meeting, she also indicated that on July 1, 2014, she had been fearful that Riley might assault her during a discussion related to whether she was entitled to overtime. She also offered Anna George's August 2014 email, entitled "Hostile [W]ork Environment," in which George indicated that she was transferring to another department because she was "really frightened" of Riley. She stated that Riley had "again" been yelling at her that day and that Riley had a history of yelling at her and the other nurses. She pointed out that several nurses had already been fired or had quit because of Riley's behavior, and she stated that Riley's behavior was affecting her health.
UTHealth also asserted that Hartranft's voluntary resignation does not qualify as a constructive discharge because she could not "show her personal inability to get along with [Riley] was harassment based on her gender or her race." UTHealth pointed out that, Hartranft had testified "in her deposition that her reasons for resigning were Riley saying he was her 'superior'; that she was never put on the night-shift as promised; and of the fear of being escorted out of the building."
Similar to her hostile-work-environment claim, Hartranft responded by pointing to evidence showing that she had feared that Riley might physically assault her and the other nurses and that Riley engaged in acts of bullying and intimidation. She pointed out that Riley's conduct had been reported to UTHealth's human resources department and to Riley's managers, however, nothing was done about his behavior. As evidence supporting her claims, Hartranft included (1) Carver's grievance, (2) Dr. Tyson's response to the grievance, and (3) Carver's letter internally appealing the response to the grievance to Dr. Tyson's boss.
Hartranft pointed out that Carver also resigned and George transferred to another department, citing Riley's abusive behavior. Both women had stated when they left the triage department that Riley's abusive conduct was making them ill. Hartranft also pointed to her resignation letter, offered in support of her response, which indicated that her health had been negatively affected by the workplace.
Finally, UTHealth asserted that Hartranft could not establish her prima facie case of retaliation based on her support of Carver's grievance because "there is no evidence that either Carver's grievance or [Hartranft's] report to Kelley made any mention of race- or gender-based discrimination." Although she recalled the nurses complaining to her about Riley's conduct, Kelley denied that the nurses had complained that the conduct was motivated by race or gender bias.
Hartranft responded by pointing to her deposition testimony in which she stated that she had verbally reported to human resources representative Kelly that Riley had discriminated against her based on her race and her gender. In her affidavit, Hartranft also testified, "I . . . told Sandra Kelley that I thought we were being discriminated against because of our race and gender. I told Sandra Kelley that I thought the problems may be because we are women or because we are not African American." Carver and Perkins also each stated in her respective affidavit that she had reported to Kelley that she thought that Riley was discriminating against the nurses because of their race and gender. Hartranft also offered Perkins's deposition in which she testified that she told Kelley about the preferential treatment that Sanders was receiving.
UTHealth further asserted that there was no evidence that Kelly told Riley, Smith, or Dr. Tyson about the complaints of race and gender discrimination. However, Perkins testified that Kelley told her that she would talk to Dr. Tyson about the complaints of Riley's conduct. In her deposition testimony, Kelly stated that she spoke to Dr. Tyson multiple times about the nurses' complaints regarding Riley's conduct. However, although she recalled the nurses complaining to her about Riley's conduct, Kelley denied that the nurses had complained that the conduct was motivated by race or gender bias.
Perkins also testified that, when she was interviewed by Dr. Tyson as part of the investigation into Carver's grievance, Dr. Tyson "kept trying to turn my answers into what she wanted to hear." Perkins stated that Dr. Tyson told her that she was Riley's mentor, and she would "always protect" him. Perkins testified that Dr. Tyson said, "I'm going to make sure that [Riley] succeeds."
Each side submitted blank orders to the trial court on both the plea to the jurisdiction and the motion for traditional summary judgment. The court granted the motion for summary judgment, but it did not rule expressly on the plea to the jurisdiction. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006) ("Because a trial court cannot reach the merits of a case without subject matter jurisdiction, a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack has implicitly denied the jurisdictional challenge.").
UTHealth's Evidentiary Objections
Carver offered the same evidence in her suit to defend against UTHealth's combined plea to the jurisdiction and motion for traditional summary judgment. In that case, UTHealth raised essentially the same objections for the first time on appeal as it makes here. See UT Health Sci. Ctr.-Houston v. Carver, No. 01-16-01010-CV, 2018 WL 1473897 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op.). Our analysis and resolution of UTHealth's evidentiary objections in this case and those in Carver are uniform.
Before addressing whether the trial court properly granted summary judgment, we first address objections raised by UTHealth regarding evidence offered by Hartranft in support of her response to UTHealth's motion. In its appellee's brief, UTHealth complains about Hartranft's statement of facts in her brief, raising for the first time on appeal an objection regarding her "supporting evidence." In particular, UTHealth challenges her affidavit and the affidavits of Carver and Perkins as being "conclusory and unsupported." UTHealth does not challenge specific statements in each affidavit, rather, it challenges specific passages from Carver's appellate statement of facts "and the inadmissible evidence she cites in support."
Overall, UTHealth asserts that the statements it challenges were (1) inadmissible; (2) irrelevant; (3) hearsay; (4) lacking in a proper foundation or personal knowledge; (5) speculative, conclusory, or otherwise without factual support; (6) false; (7) contrary to the affiant's deposition testimony; (8) contrary to other documentary evidence or deposition statements by other witnesses; (9) subjective opinion; (10) self-serving; and (11) not the best evidence.
Generally, to preserve an objection for appellate review, the trial court must either make an express or implicit ruling. TEX. R. APP. P. 33.1. However, in the context of affidavits, some defects may be raised for the first time on appeal. See Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Defects in affidavits fall into two categories: defects of substance and defects of form. See Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
"A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible." Id. Objections to substantive defects are never waived, and they may be raised for the first time on appeal because incompetent evidence "cannot be considered under any circumstances." Id.
Objections to formal defects in affidavits are waived if the party contesting the affidavit has not objected and secured a ruling in the trial court. See Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Hung Tan Phan v. An Dinh Le, 426 S.W.3d 786, 792 (Tex. App.—Houston [1st Dist.] 2012, no pet.). "A party must object in writing and obtain an express or implied ruling from the trial court to preserve a complaint about the form of summary judgment evidence." Scott v. Hunt, No. 01-11-00042-CV, 2012 WL 983339, at *5 (Tex. App.—Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (citing TEX. R. CIV. P. 166a(f); TEX. R. APP. P. 33.1(a)(2)(A); Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990)). "[A] trial court's ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment." Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Formal defects include objections to hearsay, lack of foundation, lack of personal knowledge, sham affidavit, statement of an interested witness that is not clear, positive direct, or free from contradiction, best evidence, self-serving statements, and unsubstantiated opinions. See Lagou v. U.S. Bank Nat'l Ass'n, No. 01-13-00311-CV, 2013 WL 6415490, at *4 (Tex. App.—Houston [1st Dist.] Dec. 5, 2013, no pet.) (mem. op.) (best evidence); Scott, 2012 WL 983339, at *5 (sham affidavit); S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.— Dallas 2011, no pet.) (self-serving); Broadnax v. Kroger Texas, L.P., No. 05-04-01306-CV, 2005 WL 2031783, at *5 (Tex. App.—Dallas August 24, 2005, no pet.) (mem. op.) (lack of personal knowledge and hearsay); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.) (interested witness, hearsay, and lack of personal knowledge); Montemayor v. Chapa, 61 S.W.3d 758, 762-63 (Tex. App.—Corpus Christi 2001, no pet.) (unsubstantiated opinion); Rizkallah v. Conner, 952 S.W.2d 580, 585-86 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (lack of personal knowledge and competence). Substantive defects include an objection that the statements in the affidavit are conclusory or irrelevant. See Green, 1 S.W.3d at 130 (conclusory); McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (relevance).
Some portions of the statement of facts that UTHealth challenges are not supported by the nurses' affidavits at all. Instead Hartranft relied upon deposition testimony from Dr. Tyson or Kelley or other documents in the appellate record. Because UTHealth did not object to this evidence in the trial court, its objections are waived. See TEX. R. APP. P. 33.1. Other challenged portions of the statement of facts refer to statements in the nurses' affidavits that UTHealth claims were false or contrary to documents or testimony from other witnesses. This does not demonstrate that the challenged statements are incompetent, only that they are controverted, raising a question of fact. See Mathis, 982 S.W.2d at 60. Thus, these arguments do not raise a non-waivable substantive defect in Hartranft's evidence. See id.
Other objections to the affidavits are waivable formal defects. These include UTHealth's contentions that statements in the affidavits were inadmissible, hearsay, lacking a proper foundation or personal knowledge, subjective opinion, self-serving, and not the best evidence. These challenges are waived because UTHealth did not raise them in the trial court. See Grand Prairie Indep. Sch. Dist., 792 S.W.2d at 945; Hung Tan Phan, 426 S.W.3d at 792. UTHealth's contention that Hartranft's affidavit contradicted her earlier deposition testimony is an objection to a sham affidavit, and it is waived as well. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882-83 (Tex. App.—Dallas 2006, no pet.) (sham affidavit).
UTHealth's contentions that some statements in the affidavits were irrelevant, speculative, conclusory, or otherwise without factual support are objections to substantive defects. See Green, 1 S.W.3d at 130; McMahan, 108 S.W.3d at 498. UTHealth specifically challenged (1) the nurses' statements that Riley was bullying and targeting people (conclusory), (2) a reference to nurse Marsha Urbina as "an older nurse" (relevance), (3) allegations in the nurses' affidavits regarding Riley's and Smith's treatment of Sanders on April 15, 2014 (speculation and relevance to adverse employment action), (4) allegations in the nurses' affidavits about Dr. Tyson's investigation conducted on May 30, 2014 (conclusory), and (5) allegations in the nurses' affidavits relating to the June 12, 2014 firing of Perkins and Carver's July 25, 2014 resignation (relevance to Hartranft's case).
"A conclusory statement is one that does not provide the underlying facts to support the conclusion." Frank's Int'l, Inc. v. Smith Int'l, Inc., 249 S.W.3d 557, 566 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). "[T]estimony is speculative if it is based on guesswork or conjecture." Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012).
UTHealth challenged the nurses' statements that Riley was bullying and targeting people in the department as conclusory. However, the basis for the conclusion was provided in the affidavit. Carver testified in her affidavit that "David Riley bullied Penny (Caucasian), an older nurse, in front of me." Perkins testified that Riley "bullied Penny (Caucasian), an older nurse, on the side of me." Carver and Perkins had each already averred that the affidavit was made on her personal knowledge, and the underlying fact is the bullying of Penny.
Similarly, Hartranft, who also stated that her affidavit was made on her personal knowledge, averred that Marsha Urbina was "targeted" by Riley. Hartranft testified that "Riley got very angry when he was asked a question that he did not know the answer to. . . . David Riley yelled at Marsha Urbina in front of me. Marsha started crying and told David Riley that she didn't deserve to be talked to that way." Hartranft stated, "Marsha was fired soon after that for being insubordinate." These facts support Hartranft's statement that Urbina was "targeted."
UTHealth's contention that the May 30, 2014 allegations about Dr. Tyson's investigation in Perkins's and Hartranft's affidavits are conclusory is similarly without merit. Again, both Perkins and Hartranft swore that their affidavits were made from personal knowledge. Perkins and Hartranft each testified that Dr. Tyson lied on May 30, 2014, about what was said during the investigation's interview process. Perkins and Hartranft each stated that she was interviewed as part of the investigation, that she complained about Riley's actions, and that she was shown Dr. Tyson's response to the grievance. Perkins and Hartranft averred that Dr. Tyson's response "completely changed or ignored everything that I had told Dr. Tyson about David Riley and his conduct." These underlying facts, though controvertible, support the conclusion that Dr. Tyson "lied."
UTHealth challenged the nurses' allegations about the events of April 15, 2014, relating to the preferential treatment of Sanders, as being speculative. Hartranft stated in her affidavit that Riley and Smith came into the office looking for Sanders, who was the most recent hire and had the least experience and knowledge about the job. Part of Hartranft's statement included a conclusion about Sanders's knowledge of the job. This was not speculative because it was based on the fact of Sanders's tenure in her position. The remaining statements detailed factual observations, such as Riley and Smith telling Sanders that they wanted her to go to a managerial meeting and that Sanders was often in closed-door meetings "even when the office was short staffed, busy with long call wait times and patient calls were being missed." These were observations based on Hartranft's personal knowledge. Accordingly, we conclude that the April 15, 2014 allegations about Sanders were not speculative. See Nat. Gas Pipeline, 397 S.W.3d at 156.
"Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." TEX. R. EVID. 401. UTHealth challenges statements in the nurses' affidavits that Urbina was "older," that Perkins was fired and Hartranft resigned, and that Riley was more patient and amiable with Sanders than the other nurses. Urbina's age is not relevant to Hartranft's claim because she has not claimed age discrimination. However, the facts averred by Perkins and Carver are relevant to the constructive discharge inquiry because these facts have some tendency to influence a determination of whether a reasonable person would resign from a job. Facts averred about the different treatment of Sanders has some tendency to make it more probable that Riley would be found to have engaged in disparate treatment of the employees because he favored her. Accordingly, we conclude that all of the challenged evidence, except for the allegation that Urbina was "older" was relevant. We will not consider Urbina's age in our disposition of this appeal.
Motion for Traditional Summary Judgment
In four issues, Hartranft contends that the trial court erred in granting UTHealth's traditional motion for summary judgment regarding her discrimination, hostile work environment, and retaliation claims.
A. Standard of Review
We review the granting of a motion for summary judgment de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). To prevail on a traditional Rule 166a(c) summary judgment motion, a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). We consider all of the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
B. Legal Principles Governing Discrimination & Retaliation Claims
Chapter 21 of the TCHRA provides that an employer commits an unlawful employment practice if it discharges an employee or "discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment" on the basis of "race, color, disability, religion, sex, national origin, or age . . . ." TEX. LAB. CODE ANN. § 21.051(1) (West 2015). Employers are also not permitted to retaliate or discriminate against a person who engages in a protected activity under Chapter 21. TEX. LAB. CODE ANN. § 21.055 (West 2015). Section 21.055 provides, "An employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who, under this chapter: (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." Id.
One of the purposes of the TCHRA is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964." TEX. LAB. CODE ANN. § 21.001(1) (West 2015). For this reason, when analyzing a claim brought under the TCHRA, we look not only to state cases but also to analogous federal statutes and the cases interpreting those statutes. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012).
Discrimination and retaliation cases under the TCHRA can be established with either direct or circumstantial evidence. Alamo Heights Indep. Sch. Dist. v. Clark, No. 16-0244, 2018 WL 1692367, at *16 (Tex. Apr. 6, 2018). The three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973) enables an employee to establish discrimination with circumstantial evidence. Id. If the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim. Id. But the employer can defeat this presumption merely by producing evidence of a legitimate, nondiscriminatory reason for the disputed employment action. Id. Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer's stated reason is false and a pretext for discrimination. Id. In both direct- and circumstantial-evidence cases, the burden of persuasion remains at all times with the employee. Id. These three burden-shifting steps apply to retaliation claims, but the precise evidentiary elements of the prima facie case differ from discrimination cases due to the nature of the claims. Id.
C. Disparate Treatment
In her first issue, Hartranft contends that the trial court erred in granting summary judgment because the evidence raised a genuine issue of material fact regarding her prima case of disparate-treatment race and gender discrimination. And, in her fourth issue, she contends that the evidence created fact issues regarding her claim of constructive discharge.
To establish a prima facie case of disparate-treatment discrimination, a plaintiff must show that she was (1) a member of a protected class, (2) qualified for her position, (3) subject to an adverse employment action, and (4) treated less favorably than similarly situated members of the opposing class. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017); Autozone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). In its motion for summary judgment, UTHealth asserted that Hartranft could not establish the third and fourth elements of her disparate-treatment claims; that is, it claims that Hartranft was not subject to an adverse employment action, and she was not treated less favorably than similarly situated members of an opposing class.
1. Less favorable treatment
"Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct." Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). In its motion for summary judgment, UTHealth asserted that Hartranft could not demonstrate that she was treated less favorably than similarly situated men because, according to her deposition testimony, there were no male nurses in the telephone-triage department. Hartranft did not respond with contradictory evidence. Because there is no fact issue, UTHealth conclusively negated Hartranft's claim of gender-based disparate-treatment discrimination, and the trial court properly granted summary judgment on that claim. See Garcia, 372 S.W.3d at 635; see also Tex. Dep't of Aging & Disability Servs. v. Loya, 491 S.W.3d 920, 925 (Tex. App.—El Paso 2016, no pet.) (holding that female employee's gender-discrimination claim failed when there was no evidence of similarly-situated male employees).
Regarding her claim of race-based disparate-treatment, UTHealth asserted that the "sole basis" of Hartranft's discrimination claims was "her unsupported belief that 'Riley did not like [Hartranft] because she is female and is not African American.'" UTHealth acknowledged that Hartranft testified that Sanders had been treated more favorably by Riley and Smith. Specifically, UTHealth cited Hartranft's testimony showing that (1) Riley and Smith invited only Sanders to be on a committee of which the other nurses were not made aware; (2) Sander's suggestions were well received by the managers during staff meetings, while the other nurses' suggestions would be rejected; (3) Sanders would at times sit at her desk, without taking phone calls, while the other nurses were working to take calls; and (4) Sanders would go into Smith's office with Smith and Riley for periods of time.
UTHealth asserted, however, that these examples of favorable treatment were not sufficient to show disparate treatment because Hartranft "did not even know if Sanders was paid more or received a promotion for the alleged disparate treatment." UTHealth continued, "[Hartranft] also has no evidence to show that Sanders was not performing other job duties when she was away from the unit, or that this was somehow a privilege that only Sanders received."
Among UTHealth's summary-judgment evidence was Dr. Tyson's response to Carver's grievance. In her response, Dr. Tyson detailed the findings of the investigation she conducted regarding Carver's allegations. Based on the findings, Dr. Tyson had concluded that the nurses' allegations against Riley regarding his abusive and discriminatory conduct were without merit.
Hartranft responded to UTHealth's motion by offering her affidavit and the affidavits of Carver and Perkins. The three nurses each testified in her respective affidavit that, from the beginning, Riley bullied and intimidated non-African American nurses in the department. They all averred that Riley "yelled at" several of them "all of the time," including Hartranft, "often interrupting" their phone calls with patients. They all described Riley's angry outburst during the April 23 meeting when he either kicked or threw his chair and nearly struck Hartranft in the face with his hand as he lunged at Perkins. They all described ongoing intimidating and verbally abusive treatment by Riley directed toward the nurses with one exception—Sanders, the sole African-American nurse, whom they averred was treated respectfully. They each stated that, in contrast to how they were treated, Riley "never raised his voice or took an intimidating posture when he spoke to [Sanders]," even when Sanders questioned policy.
The evidence showed that Sanders was a similarly-situated employee to Hartranft. She was a nurse, in the same department, working telephone triage, reporting to the same supervisors, and like Hartranft, she was female. Hartranft's and Sanders's circumstances were nearly identical except for the manner in which Riley treated them.
Even if we presume that UTHealth's summary-judgment evidence—specifically Dr. Tyson's report—disproved an element of Hartranft's racial-disparate-treatment claim, namely, that Riley treated her harshly because of her race, Hartranft proffered evidence creating a question of fact regarding whether she was treated less favorably than a similarly situated member of the opposing class. Thus, a fact issue exists regarding the fourth element of Hartranft's race-based disparate-treatment discrimination claim. See Autozone, 272 S.W.3d at 592.
2. Adverse employment action: constructive discharge
In its motion for summary judgment, UTHealth also asserted that Hartranft did not suffer an adverse employment action, and that, therefore, she failed to establish a prima facie case as to the third element of her race-based disparate-treatment discrimination claim. Specifically, UTHealth averred that Hartranft "failed to establish that her voluntary resignation should be treated as a constructive discharge." See Carlton v. Hous. Comty. Coll., No. 01-11-00249-CV, 2012 WL 3628890, at *16 (Tex. App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (recognizing that constructive discharge satisfies element of "adverse employment action").
Constructive discharge is "an employee's reasonable decision to resign because of unendurable working conditions." Baylor Univ. v. Coley, 221 S.W.3d 599, 605 (Tex. 2007) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351 (2004)). "A constructive discharge qualifies as an adverse personnel action under the TCHRA, but requires proof that the employer made the working conditions so intolerable that a reasonable person would feel compelled to resign." Waffle House, Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010); see Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ). In determining whether an employee's resignation was reasonable, we may consider the following factors: (1) demotion, (2) reduction in salary, (3) reduction in job responsibilities, (4) reassignment to menial or degrading work, (5) reassignment to work under a supervisor who subjects the employee to discriminatory or harassing behavior, (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation, or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
UTHealth argued that Hartranft cannot establish that she was constructively discharged because she does not claim that "she was demoted, that UTHealth reduced her salary, that she was reassigned to menial or degrading work, that she was reassigned under a harassing supervisor, or that she was made an offer of early retirement on terms that would make her worse off regardless of whether or not she accepted." UTHealth asserted that, instead, Hartranft "testified in her deposition that her reasons for resigning were Riley saying he was her 'superior'; that she was never put on the night-shift as promised; and [her] of the fear of being escorted out of the building [if she were fired]." UTHealth offered Hartranft's resignation letter in which she also identified these reasons for leaving her job. And UTHealth's evidence included Dr. Tyson's response to Carver's grievance, in which she concluded that Riley's behavior was not a cause for concern, stating, "it is my belief that neither you, nor anyone else in the nurse triage room, are in any danger."
Hartranft responded to the motion for summary judgment with evidence showing that she worked under a volatile supervisor and was routinely subjected to his outbursts and bullying. The evidence revealed that Riley would become angry and lash out when Hartranft and the other nurses asked him work-related questions that he could not answer or when he perceived that the nurses were discussing department policy without his permission. Hartranft's evidence indicated that Riley's yelling interfered with her ability to do her job because his yelling would interrupt the calls she was taking from patients.
Hartranft testified that she feared physical violence from Riley. Hartranft explained that, at the April 23 meeting, Riley "lost it" and lunged at Perkins. Hartranft testified that Riley "violently yelled at Nancy Perkins and swung his arm and hand out toward my face, like a 'tomahawk chop, in fury.'" She said that she "had to duck to avoid [Riley's] hand hitting me in the face." Hartranft also indicated that she had been afraid that Riley might assault her on July 1, 2014, when Riley had become angry with her during a discussion regarding her entitlement to overtime and had charged out of his office. Her evidence also showed that both Hartranft and George left the department due to the intolerable conditions created by Riley's behavior.
Hartranft's evidence showed that she and the other nurses complained about Riley's conduct, however, Smith and Dr. Tyson downplayed and discounted the complaints, taking no action to correct the situation. Her evidence also indicated that Dr. Tyson acted in a manner to dissuade the nurses from assisting Carver with her grievance, signaling to them that complaints about Riley were discouraged. Specifically, Hartranft testified in her affidavit that Dr. Tyson had "stormed" into the telephone-triage work area and harshly instructed the nurses not to discuss Carver's grievance during work time and informed them that they did not need to assist Carver with the grievance. "Dr. Tyson loudly repeated her announcement as a warning." Hartranft stated that Dr. Tyson then left the work area "in an infuriated huff."
Viewed in the light most favorable to Hartranft, we conclude that the summary-judgment evidence raised a genuine issue of material fact regarding whether the working conditions in the telephone-triage department were so intolerable that a reasonable person would have felt compelled to resign. Thus, a fact issue exists with regard to whether Hartranft was constructively discharged and suffered an adverse employment action. We hold that the trial court erred when it granted summary judgment as to Hartranft's race-based disparate treatment claim.
We sustain Hartranft's fourth issue, which asserted that a fact issue exists with regard to whether Hartranft was constructively discharged. We overrule Hartranft's first issue to the extent that it challenges the summary judgment as to her gender-based disparate treatment claim, but we sustain her challenge to the summary judgment regarding her race-based disparate treatment claim.
D. Hostile Work Environment
In her second issue, Hartranft contends that the trial court erred in granting summary judgment because the evidence raised a genuine issue of material fact regarding her prima case of hostile work environment. A claim that a plaintiff has been subjected to a hostile work environment "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." Bartosh v. Sam Hous. State Univ., 259 S.W.3d 317, 324 (Tex. App.—Texarkana 2008, pet. denied) (citing Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)). In determining whether a hostile work environment exists, courts look to all of the circumstances, including the frequency of the discriminatory conduct and whether it unreasonably interfered with the employee's work performance. Waffle House, Inc., 313 S.W.3d at 806 (involving sexual-harassment claim).
In support of summary judgment, UTHealth asserted that Hartranft could not show that the alleged harassment was based on a protected characteristic. More specifically, she could not "point to any evidence that this perceived unfair treatment occurred because of her race[.]" We note that, in a traditional motion for summary judgment, the burden was on UTHealth to produce evidence to negate this element. See Cathey, 900 S.W.2d at 341. In any event, as discussed, Hartranft presented evidence showing that Riley yelled at and bullied all of the nurses except one, Sanders, who is African American. According to the testimony of Hartranft, Carver, and Perkins, Riley treated Sanders with respect and gave her privileges not accorded to the non-African American nurses. Viewed appropriately, this evidence raises a fact issue with respect to whether Riley's ongoing harassment of Hartranft was based on her race.
UTHealth also asserted that the conduct Hartranft relied on to support her claim "was not severe or pervasive enough to alter the conditions of her employment or to create a hostile work environment." UTHealth pointed out that, in her deposition, Hartranft had cited the incident at the April 23 meeting, involving Riley lunging at Perkins and nearly hitting Hartranft in the face, to support her allegation that "Riley would bully her and other nurses, throw temper tantrums, and routinely try to intimidate them." UTHealth acknowledged that Hartranft had also testified about several instances in which Riley had been verbally abusive but claimed that the conduct cited by Hartranft in her deposition was not sufficient "to establish a prima facie case for hostile work environment."
Hartranft responded by pointing to evidence that she was subject to "constant yelling" in the workplace, making it difficult to perform her job function. The evidence showed that the nurses worked together in close quarters. Hartranft testified that not only did Riley yell at her over the course of her employment but that she heard him yell at the other nurses. Sometimes Riley's yelling would interrupt her phone calls with patients. In her deposition, Hartranft indicated that Riley would often have angry outbursts when he was asked work-related questions. When asked how often this occurred, she stated "all of the time." She recalled one day when it happened three times. Hartranft and the other nurses testified that Riley yelled at them when he overheard them discuss department policy, particularly when the nurses were discussing a question that Riley had been unable or unwilling to answer.
Hartranft also stated that "[t]here were several incidents where [she] feared that David Riley would physically assault her and other nurses. Hartranft testified that, not only was she afraid of being assaulted by Riley at the April 23 meeting, when he lunged at Perkins, she also indicated that, on July 1, 2014, she had been fearful that Riley might assault her during a discussion related to whether she was entitled to overtime.
Hartranft also offered George's August 2014 email, entitled "Hostile [W]ork Environment," in which George indicated that she was transferring to another department because she was "really frightened" of Riley. She stated that Riley had "again" been yelling at her that day and that Riley had a history of yelling at her and the other nurses. She pointed out that that several nurses had already been fired or had quit because of Riley's behavior, and she stated that Riley's behavior was affecting her health. Hartranft and Carver also indicated that Riley's behavior had negatively affected their health.
We conclude that the summary-judgment evidence raises genuine issues of material fact with respect to whether Riley's ongoing harassment was severe or pervasive. We hold that the trial court erred when it granted summary judgment on Hartranft's hostile-work-environment claim.
E. Retaliation
In her third issue, Hartranft contends that the trial court erred when it granted summary judgment on her retaliation claim. As mentioned, the TCHRA also prohibits an employer from retaliating against an employee for engaging in certain protected activities. TEX. LAB. CODE ANN. § 21.055. Protected activities consist of (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.; Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 822 (Tex.App.—Houston [1st Dist.] 2012, pet. denied). To prevail in a retaliation case under this section, the employee must first establish a prima facie case showing that (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse action. Chandler, 376 S.W.3d at 822.
UTHealth asserted that Hartranft did not engage in a protected activity or suffer an adverse employment action. We have already determined that fact issues were raised by the summary-judgment evidence with regard to Hartranft's prima facie showing of an adverse employment action. Thus, we must determine if the summary judgment evidence conclusively showed that Hartranft did not engage in a protected activity.
UTHealth pointed out that Hartranft "complains that UTHealth retaliated against her for supporting Christie Carver's grievance and for verbally complaining about Riley to HR representative Sandra Kelley." It asserted that "supporting Carver's grievance and verbally complaining to Kelley does not constitute protected activity because there is no evidence that either Carver's grievance or [Hartranft's] report to Kelley made any mention of race- or gender-based discrimination."
The evidence offered by UTHealth showed that Carver's grievance did not mention gender of race discrimination. And Kelley testified in her deposition that none of the nurses ever mentioned anything about gender- or race-based discrimination. However, Hartranft testified in her deposition that she had verbally told Kelley on the telephone that Riley was discriminating against her based on her gender and her race. Hartranft also testified in her affidavit that she "told Sandra Kelley that I thought we were being discriminated against because of our race and gender. I told Sandra Kelley that I thought the problems may be because we are women or because we are not African American."
UTHealth further asserted in its motion that "there is no evidence that Kelley ever told Riley, Smith and Dr. Tyson, about her alleged verbal complaint. Thus, [Hartranft] has failed to establish any causal connection between the alleged phone conversation with Kelley, and any alleged adverse employment action perpetrated by Riley, Smith and Tyson." However, in her deposition testimony, Kelly stated that she spoke to Tyson multiple times about the nurses' complaints regarding Riley's conduct. Also, in her affidavit, Hartranft testified that she "told Dr. Tyson about the same things" that she had "stated in this affidavit," which by implication include her claim of race and gender discrimination. Viewing the evidence in the light most favorable to Hartranft, a reasonable inference could be made that Hartranft's report of gender- and race-based discrimination was relayed to Dr. Tyson.
We conclude that the summary-judgment evidence raised genuine issues of material fact regarding Hartranft's prima facia case of retaliation. We hold that the trial court erred when it granted summary judgment as to that claim.
Conclusion
We affirm the summary judgment as to Hartranft's claim of gender-based disparate-treatment discrimination. We otherwise reverse the summary judgment and remand the case for further proceedings.
Laura Carter Higley
Justice Panel consists of Justices Higley, Brown, and Caughey.