Rosemary Tooker v. Alief Independent School District, 522 S.W.3d 545

Background

Rosemary Tooker, Energy Manager Assistant for Alief ISD since 1986, held a Class A HVAC license and was offered $400/month by the District in 2011 for use of that license; a male predecessor received $800/month for use of three licenses.
Tooker filed internal complaints and an EEOC/TWC charge in July 2011 (First Charge) alleging gender discrimination and retaliation; she filed a second charge in January 2013 (Second Charge) after additional adverse events and was later suspended with pay in Jan 2013.
Tooker sued the District (claims under Texas Labor Code ch. 21, FLSA, FMLA, and Texas Whistleblower Act) in Jan 2013; the trial court granted the District’s jurisdictional pleas and summary-judgment motions and dismissed all claims.
On appeal, the Fourteenth Court of Appeals affirmed dismissal of all claims except one: Tooker’s FLSA retaliation claim arising from a February 22, 2013 memorandum restricting her ability to work overtime, which the court found raised fact issues and reversed/remanded that claim.
The court concluded jurisdictional dismissal of Tooker’s Human Rights Act (gender discrimination, hostile-work-environment, and disparate-compensation) and other statutory claims was generally proper based on lack of timely evidence, failure to exhaust administrative remedies, time-bar, or inadequate appellate briefing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred in dismissing Gender-discrimination claim re: license stipend	Tooker: District paid male predecessor $800; she was offered only $400 so she was treated less favorably	District: Predecessor’s $800 covered three separate licenses; Tooker only had one license so $400 was appropriate; evidence negates prima facie similarity	Court: Affirmed dismissal — Tooker failed to timely present evidence creating fact issue on similarity
Whether Tooker preserved challenge to dismissal of 2011-retaliation claim under Human Rights Act	Tooker: Briefly asserted job duties were reduced/changed after 2011 complaint	District: Argued jurisdictional defects in plea; court relied on pleadings/evidence	Court: Waived on appeal for inadequate briefing; no reversal
Whether trial court erred dismissing FLSA unpaid-overtime compensation claim	Tooker: Submitted affidavits and her compensatory-time calculations alleging unpaid overtime (2010–2012)	District: Evidence shows compensatory-time agreement, policies, and no proof Tooker worked >40 hrs/wk unpaid; submissions were speculative	Court: Affirmed dismissal — Tooker’s calculations were speculative/unsubstantiated and failed to raise genuine fact issue
Whether trial court erred dismissing FLSA retaliation claim based on Feb 22, 2013 memorandum restricting overtime	Tooker: Memorandum (after she sued) barred her from initiating overtime and threatened discipline — materially adverse; temporal proximity shows causation	District: Memo was enforcement of overtime control and cannot be adverse; cited regulation and authority	Court: Reversed/remanded — evidence raised genuine fact issues as to protected activity, materially adverse action, and causal link

Key Cases Cited

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) (sovereign immunity waiver and pleading burden under Texas Human Rights Act)
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for reviewing pleas to the jurisdiction and when evidence may be considered)
College of the Mainland v. Glover, 436 S.W.3d 384 (Tex. App.—Houston [14th Dist.] 2014) (elements of prima facie employment-discrimination under McDonnell Douglas)
Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915 (Tex. 2005) (standard for whether employees are similarly situated)
Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206 (5th Cir. 2004) (similarly situated standard — “nearly identical”)
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (definition of materially adverse action in retaliation context)
Harvill v. Westward Communications, L.L.C., 433 F.3d 428 (5th Cir. 2005) (employee’s burden to prove amount and extent of uncompensated work under FLSA)
Hagan v. Echostar Satellite, LLC, 529 F.3d 617 (5th Cir. 2008) (McDonnell Douglas framework for FLSA retaliation claims)