A member of the faculty of Texas Southmost College was not retained after she quarreled with the administration in her capacity as president of the faculty senate. She sued the college for wrongful termination and alleged claims of age and gender discrimination, as well as retaliation for engaging in protected activities. The college filed a plea to the jurisdiction, which the trial court denied. The college filed an interlocutory appeal.
Texas Southmost College v. Linda Hernandez (No. 13-21-00454-CV; filed January 26, 2023) arose from a spat between Hernandez, a speech instructor hired in 2014 who was elected president of the faculty senate for the 2017-18 school year, and two administrators. Complaining that the administrators mistreated staff and faculty members and committed acts of gender and age discrimination, Hernandez communicated her concerns to the college board of trustees, the college president, and the vice president of instruction. These communications named the accused. In response to the allegations, the college hired an independent third-party attorney to conduct an investigation. His report found no evidence of discrimination, harassment, or retaliation based on protected activities. Shortly after receiving and reviewing the report, the VP for instruction, who had initially recommended renewal of Hernandez’s contract, changed her mind and recommended non-renewal. The president accepted the recommendation and informed Hernandez that her contract would not be renewed. Hernandez filed a formal grievance under the college’s policy, which was denied on the basis that Hernandez’s actions were not within the purview of the Faculty Senate and her disclosure of the names of the accused administrators violated their privacy and exposed the college to liability. Hernandez obtained a right to sue letter from the Texas Workforce Commission and filed suit. As previously noted, the trial court denied the college’s plea to the jurisdiction on all of Hernandez’s claims.
The court of appeals affirmed in part and reversed in part. The central legal issue in the case was whether Hernandez carried her burden of showing that the college’s actions waived a governmental employer’s immunity under the Texas Commission on Human Rights Act. Generally, the TCHRA prohibits employment discrimination based on race, color, disability, religion, sex, national origin, or age. It further prohibits employers from retaliating against employees for engaging in certain “protected activities, such as opposing discriminatory practices, reporting discrimination, or participating in an investigation.” Following federal law, claimants may establish a violation of the TCHRA with either direct or circumstantial evidence. The college claimed that Hernandez failed to make a prima facie case as to each element of her claims and that it had a legitimate, nondiscriminatory, nonretaliatory reason for not reviewing her contract.
First, the court determined that the record contained direct evidence of retaliation. In order to establish a retaliation claim, “the employee must show (1) she engaged in a protected activity under the TCHRA, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action” (citation omitted). The college argued that Hernandez failed to show items (1) and (3). The court disagreed, finding that Hernandez did engage in protected activity when she complained about age and gender discrimination, and that those complaints had a but-for causal relationship with the subsequent decision not to renew her contract because the college decided not to renew after reviewing the independent report. Even though that report concluded that no discriminatory activity had occurred, Hernandez’s retaliation claims could still be actionable. According to the court, “an employer cannot take an adverse employment action against an employee merely because the employer determines that the employee’s complaints of discrimination lack merit” (citations omitted). Hernandez’s thus established a prima facie showing of retaliation, waiving the college’s governmental immunity as to that claim.
Second, the court reversed the trial court with regard to Hernandez’s age and discrimination claims. As to the age discrimination claim, Hernandez alleged, in accordance with case law, that she was at least 40 years old, qualified for her position, terminated by the employer, and replaced by someone significantly younger. But while the instructor tabbed to temporarily pick up some of her courses was 12 years younger than Hernandez, her ultimate replacement was only two months younger. The age discrimination claim failed. As to the gender discrimination claim, Hernandez had to show that she “(1) is a member of a protected group; (2) was qualified for the position; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside h[er] protected group or was treated less favorably than other similarly situated employees outside the protected group” (citations omitted). Since another female instructor replaced her, Hernandez had to make a prima facie case for less favorable treatment than another employee in a “nearly identical” situation received. She could not make this showing. First, her allegation that a male colleague who “almost got into a fistfight” with the college president but was still renewed did not specify when the incident occurred or whether the same person made the employment decisions in both cases, thus failing the “similarly situated” test. Second, nearly getting into a fistfight and accusing college administrators of discriminatory conduct are far from the “nearly identical” circumstances that have to be shown to make a prima facie case. The court dismissed those claims.
It’s not often that we see retaliation claim in which the employer admits to retaliating. Here the college thought that the independent investigator’s finding of no discrimination protected it from liability for not renewing Hernandez’s contract. The catch was that the VP of instruction had already decided to recommend renewing Hernandez beforereceiving the investigator’s report. Had the VP waited, the college could very well have escaped liability since it could have more credibly maintained that it didn’t renew Hernandez because she violated the privacy of the administrators when she ratted them out to the board of trustees.