Rosemary TOOKER, Appellant v. ALIEF INDEPENDENT SCHOOL DISTRICT, Appellee
NO. 14-15-00124-CV
Court of Appeals of Texas, Houston (14th Dist.).
January 4, 2017
Rehearing and Rehearing En Banc Overruled June 20, 2017
550 S.W.3d 545
Kem Thompson Frost Chief Justice
Victoria Lynn Plante, Northington, Houston, TX, for Appellant.
Jon Erik Nichols, Houston, TX, for Appellee.
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Kem Thompson Frost Chief Justice
This appeal arises out of employment-discrimination claims. An employee filed suit against her employer, an independent school district, asserting claims based on the employer‘s alleged violations of the
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Rosemary Tooker started working for appellee/defendant Alief Independent School District (the “District“) in 1986. At all times material to Tooker‘s claims she was working for the District as an Energy Manager Assistant in the District‘s Maintenance Department. Tooker obtained a Class A Air Conditioning and Refrigeration Contractor License. Upon the retirement of the employee whose Class A Air Conditioning and Refrigeration Contractor License the District was using, Tooker offered the District the use of her Class A License. According to Tooker, in March 2011, the District offered to pay her $400 per month for the use of her License, even though the District had been paying the retired male employee $800 per month for the use of the same type of license. Tooker asserted that she lodged an internal complaint of gender discrimination with the District based on the District‘s refusal to pay her $800 per month for the use of the Class A License. Tooker alleged that after she made this complaint, the District began harassing her “on almost a daily basis.” In July 2011, Tooker filed a charge alleging gender discrimination and retaliation (hereinafter the “First Charge“). She claimed the District retaliated against her because she had appealed the District‘s decision to offer her only $400 per month for the use of her License.
In April 2011, Tooker witnessed an incident that she believed may have been theft of the District‘s property by her supervisor and a coworker. Tooker alleges that she promptly reported the incident to the District‘s police department for investigation. Tooker claims that the police department took no action and that nearly two years later (in January 2013), she was told that the police department never received her incident report. The same month,
Tooker also alleges that the District denied her compensatory time and refused to compensate her at time-and-a-half for all of her overtime hours.
At the end of January 2013, Tooker filed suit against the District, eventually asserting claims based on the District‘s alleged violations of the
In May 2013, the District filed a plea to the jurisdiction, which the trial court granted as to Tooker‘s Human Rights Act claims. The trial court later rendered a final judgment when it granted pleas to the jurisdiction and summary-judgment motions filed by the District on July 7, 2014 and on July 28, 2014.2 Tooker perfected appeal from the trial court‘s final judgment.
II. ISSUES AND ANALYSIS
A. Did the trial court err in dismissing the gender-discrimination claim based on the stipend for the license?
Tooker asserted a gender-discrimination claim against the District alleging that the District offered to pay her $400 per month for the use of her License, even though the District had been paying a male employee $800 per month for the use of the same type of license. The trial court granted the District‘s plea to the jurisdiction and dismissed this claim for lack of jurisdiction. In her first argument on appeal Tooker asserts that the trial court erred in granting the District‘s plea as to this claim.
Sovereign immunity deprives a trial court of jurisdiction over lawsuits in which a party sues a school district unless
For a plaintiff who proceeds under the McDonnell Douglas burden-shifting framework, the prima facie case is the necessary first step to bringing a discrimination claim under the Human Rights Act. See Garcia, 372 S.W.3d at 637. While such a plaintiff must sufficiently plead the prima facie case of her statutory claim, she will be required to submit evidence only if the defendant presents evidence negating one of those basic facts. See Id. In this situation, failure to raise a fact issue on a challenged element of the prima facie case means that the trial court has no jurisdiction and the claim should be dismissed. See Id.
In the absence of direct evidence of discrimination, the elements of Tooker‘s prima facie case of gender discrimination under the McDonnell Douglas framework are that Tooker (1) is a member of a protected class, (2) was qualified for her position, (3) was subject to an adverse employment decision, and (4) was treated less favorably than similarly situated persons not in the protected class. See College of the Mainland v. Glover, 436 S.W.3d 384, 393 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). In its first plea to the jurisdiction, the School District challenged the third and fourth elements. The trial court impliedly granted the plea to the jurisdiction on all bases asserted by the School District.
In filing a plea to the jurisdiction, the School District challenged the trial court‘s subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court‘s granting of the plea. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In its plea to the jurisdiction, the School District challenged the existence of jurisdictional facts; therefore, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See Id. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. See Id.. But, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
The District challenged the prima facie element that Tooker was treated less favorably than similarly situated males regarding payment of a stipend for use of a Class A Air Conditioning and Refrigeration Contractor License. See College of the Mainland, 436 S.W.3d at 393. The Supreme Court of Texas has concluded that “[e]mployees are similarly situated if their circumstances are comparable in all material respects.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). The United States Court of Appeals for the Fifth Circuit has articulated a similar standard, saying that employees are similarly situated if their circumstances are “nearly identical.” See Perez v. Tex. Dep‘t of Criminal Justice, Institutional Div., 395 F.3d 206, 213 (5th Cir. 2004). The District submitted with its first plea to the jurisdiction affidavits of Jeff DeLisle and Charles Woods. DeLisle, the Director of the District‘s Maintenance and Operations Department, testified that he supervised Tooker and all of the District‘s Maintenance Department employees.3 According to DeLisle, in March 2011, John Proffitt retired. Proffitt had been working as the HVAC Foreman. During the 2010–2011 school year, Proffitt received an $800 per month stipend for the “Use of License.” Proffitt held three licenses that accounted for the total amount of the stipend: (1) a “Class A Air Conditioning and Refrigeration Contractor License,” (2) an “EPA 608 Certification—Universal License,” and (3) a “3rd Grade Stationary Engineer License” (hereinafter “Boiler Operator License“).
DeLisle determined that no other employee in the HVAC Department held all three licenses that Proffitt held. One employee had the EPA certification, and another employee had the Boiler Operator License, and each employee was willing to dedicate his license or certification for the District‘s use. DeLisle testified that he and Wilton Curry, the Maintenance Department Supervisor, determined what they believed to be a fair value for each of the three licenses and divided the $800 per month stipend that Proffitt had been receiving for the use of the three licenses according to the values they established, which were $400 per month for the Class A License, $200 per month for the EPA license, and $200 per month for the Boiler Operator License. Stanley Kuykendall, a male employee, began receiving a $200 per month stipend for the use of his EPA license, and Robert Pritchard, another male employee, began receiving a $200 per month stipend for the use of his Boiler Operator License. Curry and DeLisle agreed that the Class A License should have a higher value than the other two licenses because it is more difficult to obtain and permits the licensee to perform a wide variety of services on HVAC systems.
The District offered Tooker a $400 per month stipend for the use of her License, which is a Class A Air Conditioning and Refrigeration Contractor License. Tooker refused to accept the $400 per month stipend and instead demanded the full $800 per month stipend that Proffitt had received in consideration of the use of all three of his licenses. DeLisle testified that the District could not have offered Tooker the $800 per month stipend that Proffitt formerly received because she did not hold the same licenses and she was not qualified to perform the full range of duties assigned to Proffitt while Proffitt served as the HVAC Forman. According to DeLisle, Tooker‘s job duties as the Energy Manager Assistant differed from Proffitt‘s duties as the HVAC Foreman.
As the Energy Manager Assistant, Tooker operated mostly in a clerical role. Her job goal was to assist in the coordination of energy management programs for the District‘s campuses. Tooker received requests for maintenance to the District‘s air conditioning systems and input those requests into an automatic scheduler. Tooker also received phone calls regarding the hot or cold conditions at the District‘s campuses and remotely verified those conditions using the energy management system. Tooker also could dispatch techni-cians
Proffitt supervised all of the District‘s HVAC technicians, and ultimately was responsible for troubleshooting, repairing, maintaining, and installing. HVAC equipment. Proffitt also was responsible for disciplining HVAC staff, conducting employee trainings, and for other human resources functions related to HVAC staff, such as granting leave and reviewing time cards and work orders. Proffitt also was charged with completing material and parts requisitions and with receiving bids on goods and services from outside contractors.
Charles Woods, the Deputy Superintendent of Business Services for the District, testified that in the spring of 2011, DeLisle and Curry informed Woods that they had denied Tooker‘s request for an $800 per month stipend for the District‘s use of Tooker‘s HVAC license.4 According to Woods, DeLisle informed Woods that Tooker demanded that amount based on her mistaken belief that Proffitt received an $800 per month stipend for the use of his HVAC license. Woods stated that Proffitt actually received the $800 per month stipend because he held three licenses, two of which Tooker did not possess. Woods affirmed the decision to offer Tooker a $400 per month stipend.
The evidence attached to the District‘s first plea to the jurisdiction negated the prima facie element that Tooker was treated less favorably than similarly situated males regarding payment of a stipend for use of a Class A Air Conditioning and Refrigeration Contractor License. See College of the Mainland, 436 S.W.3d at 393-95. Therefore, to avoid dismissal Tooker had to submit evidence raising a fact issue as to this essential element. See Garcia, 372 S.W.3d at 637. The only evidence that Tooker filed in response to the first jurisdictional plea was a copy of the Second Charge. That charge does not raise a fact issue as to whether Tooker was treated less favorably than similarly situated males regarding payment of a stipend for use of a Class A Air Conditioning and Refrigeration Contractor License. See Id.
On appeal, Tooker suggests that Proffitt received the $800 per month stipend solely for the use of Proffitt‘s Class A Air Conditioning and Refrigeration Contractor License. Tooker also asserts that DeLisle misrepresented the facts in his affidavit attached to the first jurisdictional plea. According to Tooker, Proffitt did not obtain an $800 per month stipend based on his having three licenses, and Proffitt was receiving an $800 per month stipend before he obtained the EPA license and the Boiler Operator License. Tooker also makes other assertions. The primary evidence upon which Tooker relies as allegedly raising a fact issue is Tooker‘s declaration that was attached to her “Motion to Reconsider Granting Defendant‘s Plea to the Jurisdiction.” But, the trial court denied this motion as to Tooker‘s claims under the Human Rights Act in an order in which the court did not say that the court had considered the evidence attached to Tooker‘s motion to reconsider. Tooker does not argue that the evidence in this declaration was newly discovered and could not have been discovered through due diligence before the trial court granted the first jurisdictional plea. Though Tooker attached the declaration to her motion to reconsider, the record does not show that the trial court considered this declaration in granting the first jurisdictional plea and
In response to the District‘s first jurisdictional plea Tooker did not timely submit evidence raising a fact issue as to whether Tooker was treated less favorably than similarly situated males regarding payment of a stipend for use of a Class A Air Conditioning and Refrigeration Contractor License. See Garcia, 372 S.W.3d at 637. Tooker has not shown that an exception applies under which this court can consider the declaration attached to her motion to reconsider in determining whether the evidence raised a fact issue on this point. See Guishard, 2015 WL 4984853, at *2; Smith, 338 S.W.3d at 123 n.6; McMahan, 108 S.W.3d at 499-500. We conclude that the trial court did not err in granting District‘s first plea to the jurisdiction as to Tooker‘s gender-discrimination claim regarding compensation for Tooker‘s License.5 See College of the Mainland, 436 S.W.3d at 393-95.
B. Has appellant sufficiently briefed a challenge to the trial court‘s dismissal of her retaliation claim based on the District‘s 2011 conduct?
In two paragraphs in her appellate brief, Tooker states that the trial court had jurisdiction over her retaliation claim under the Human Rights Act based on the District‘s conduct in 2011. Tooker asserts that the District substantially reduced or changed her job duties after her 2011 gender-discrimination complaint. Though Tooker cites three documents (two of which were not before the trial court when it granted the District‘s first jurisdictional plea), she does not cite any legal authorities, nor does she discuss the grounds the District asserted in the first jurisdictional plea against this claim. Tooker has not provided any analysis or legal citations showing how the trial court erred in granting the District‘s first plea to the jurisdiction as to this claim. Even liberally interpreting Tooker‘s appellate briefing, we cannot conclude that she has adequately briefed this issue. See
C. Has appellant sufficiently briefed a challenge to the trial court‘s dismissal of her retaliation claims based on other conduct?
In her appellate brief, Tooker states in a conclusory manner that she provided suffi-cient
D. Has appellant sufficiently briefed a challenge to the trial court‘s dismissal of her hostile-work-environment claims on the ground that she failed to exhaust administrative remedies?
In its first jurisdictional plea, the District asserted that Tooker had not exhausted administrative remedies as to her hostile-work-environment claim. The trial court granted the plea on this ground and6 dismissed this claim. On appeal, Tooker has not challenged this dismissal. In fact, in her appellate brief, Tooker notes that although she argued in the trial court that the trial court had jurisdiction over her hostile-work-environment claim based on the First Charge, she does not make this argument on appeal or challenge the trial court‘s dismissal of her hostile-work-environment claim based on the First Charge.
Tooker amended her petition and apparently sought to plead another hostile-work-environment claim on the premise that she had exhausted administrative remedies by means of the Second Charge. In the Second Motion, the District asserted, among other things, the following:
- Tooker had not exhausted her administrative remedies as to her hostile-work-environment claim because neither the First Charge nor the Second Charge were sufficient to exhaust remedies as to this claim;
- Tooker‘s hostile-work-environment claim is time barred; and
- Tooker has not pleaded and cannot prove that any alleged harassment under her hostile-work-environment claim affected a term, condition, or privilege of Tooker‘s employment because the alleged conduct falls short of the severe or pervasive conduct necessary to establish such a claim.
Tooker argues in one section of her appellate brief that the evidence raised a fact issue as to each of the essential elements of her hostile-work-environment claim.
Though Tooker cites two cases on the general legal standard for exhausting administrative remedies in a charge of discrimination, she does not cite any legal authorities regarding exhaustion of administrative remedies as to a hostile-work-environment claim. More importantly, Tooker does not analyze the language of the First Charge or the Second Charge, nor does she apply any legal standard to this language in an attempt to show that she exhausted administrative remedies as to her hostile-work-environment claim. Tooker has not provided an analysis in which she purports to show that the trial court erred in granting the Second Motion based on the District‘s argument that Tooker had not exhausted administrative remedies as to her hostile-work-environment claim. Even under a liberal interpretation of Tooker‘s appellate briefing, we cannot conclude that she has adequately briefed this issue. See
E. Has appellant shown that she raised a fact issue as to whether the District treated her less favorably than similarly situated male employees regarding compensation?
On appeal, Tooker asserts that the evidence raised a fact issue as to each element of her prima facie case on her disparate-compensation claim, in which she alleges that her salary was lower than similarly situated male employees. Under the McDonnell Douglas framework, one element of this claim is, that the District treated Tooker less favorably as to salary than similarly situated male employees. See College of the Mainland, 436 S.W.3d at 393. The Supreme Court of Texas has
On appeal, Tooker points to evidence that Proffitt was in the same pay grade when he retired in 2011 as Tooker was in 1993.8 We presume for the sake of argument that this statement is correct. Tooker then asserts that she performed the job duties of a foreman and suggests that she should have received the same salary as Proffitt, the only male comparator Tooker identifies on appeal. But, the evidence Tooker cites does not raise a fact issue as to whether she performed the same job duties as Proffitt. Tooker has not shown that she and Proffitt (or any other male comparator) were similarly situated. See College of the Mainland, 436 S.W.3d at 393-95. Therefore, Tooker has not shown that the trial court erred in granting the Second Motion as to her disparate-compensation claim and dismissing this claim. See Id. at 393-95; Garcia, 372 S.W.3d at 637.
F. Has appellant challenged all the grounds upon which the trial court dismissed appellant‘s Whistleblower Act claim?
Tooker asserts that the District violated the Whistleblower Act by suspending her with pay in 2013. The District sought dismissal of Tooker‘s Whistleblower Act claim in its “Plea to the Jurisdiction, Traditional, and No Evidence Motions for Summary Judgment,” deemed by the trial court to have been filed on July 28, 2014 (hereinafter the “Third Motion“). In the Third Motion, the District asserted the following grounds:
- Tooker never filed a grievance under the District‘s grievance procedures regarding her Whistleblower Act claim.
- Tooker cannot establish a causal connection between her email to Captain Bonaparte in April 2011 and her administrative leave with pay in January 2013.
- Tooker did not report an alleged violation of law to an appropriate authority.
- The District would have taken the same action against Tooker even if she had not made the alleged report of a violation of law.
- There is no evidence that Tooker suffered an adverse personnel action when she was placed on administrative leave with pay.
- There is no evidence that Tooker made a report of a violation of law in good faith.
- There is no evidence that, but for making the report to the District Police Department in April 2011, Tooker would not have been placed on administrative leave with pay in January 2013.
G. Has appellant shown that the trial court erred in granting the Third Motion as to appellant‘s Leave Act claim?
The Leave Act allows eligible employees working for covered employers to take temporary leave without the risk of losing employment because of
- a serious health condition that makes the employee unable to perform the functions of the employee‘s position,
- the birth or adoption of a child,
- the placement of a child with the employee for foster care,
- the care of a spouse, child, or parent who has a serious health condition, or
- any qualifying exigency (as determined by regulation) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
(collectively the “Statutory Reasons“). See
Tooker asserted a damage claim against the District under title 29, section 2617 of the United States Code. See Id. In the Third Motion, the District sought a no-evidence summary judgment as to this claim on the ground that there was no evidence of the essential element that the District denied Tooker Leave Act benefits to which she was entitled. Tooker agrees that this is an essential element of her claim. See Brackens v. Dallas Indep. Sch. Dist., No. 3:09-CV-0642-D, 2010 WL 5464823, at *21 (N.D. Tex. Sept. 20, 2010) (listing denial of Leave Act benefits to which the employee was entitled as one of the essential elements of this claim). The only evidence Tooker cites as raising a fact issue on this element is the following paragraph from an affidavit of Tooker:
I requested FMLA10 leave in March 2014. I submitted all documentation and medical forms but my FMLA [sic] was never approved. In 2012 and 2013, I told DeLisle that my son was very ill. He never suggested FMLA leave. I had to use vacation or sick days. Some of these days were ultimately counted against me and affect my attendance record. I have been under the doctor care [sic] for years and would have benefitted from intermittent FMLA leave. I did not know this would qualify for FMLA until my attorney told me about it. She requested it as well on my behalf in March 2014 but did not hear back from [the District‘s] attorney[ ]s until July 2014. To date, I still have not received an answer regarding FMLA. Since I have been suspended and notified of my termination, it really is too late.
In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex. 2002). In our de novo review of a trial court‘s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 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).
The above-quoted paragraph does not raise a raise a genuine fact issue as to whether the District denied Tooker Leave
H. Has appellant shown that the trial court erred in dismissing her overtime-compensation claim under the Fair Labor Act?
Tooker asserted a claim against the District under the Fair Labor Act for unpaid overtime compensation. See
The Fair Labor Act mandates that “[e]xcept as otherwise provided in [section 207], no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
As a public employee, Tooker could receive compensatory time off in lieu of overtime pay at a rate of at least one-and-a-half hours for each hour of employment for which overtime compensation is required. See
The evidence before the trial court established that Tooker and the District agreed Tooker would earn one-and-a-half hours of compensatory time for each hour of work in excess of forty hours per week. Until 2013, when the District ended the practice of having maintenance-department employees “on-call” during non-business hours, the Maintenance Department policy allowed department employees, including Tooker, to earn compensatory time for being “on-call,” even if the employee did not receive any calls and did not work any hours while “on call.”
An employer who knows that an employee is working overtime cannot stand by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation. Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005). If the employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer does not violate
On appeal, Tooker asserts that the evidence raised a fact issue as to whether the District denied her overtime benefits from
In the other cited paragraph in her affidavit, Tooker states that she prepared a document showing her calculations of compensatory time. She says she made these calculations based on documents the District produced in this lawsuit and that these documents “only show comp-time as straight time.” In her affidavit, Tooker does not identify the documents to which she refers.12 In any event, beyond the calculation of the 21 minutes extra per day discussed above, in her calculation document Tooker simply lists dates along with a corresponding number of compensatory hours earned, totals the hours, and adds 50% of the total to achieve time-and-a-half. In her calculations, Tooker does not reflect whether she timely submitted a form to the District claiming to have earned any of these hours of compensatory time. Nor does Tooker state how many hours of compensatory time the District gave her for the items listed in these calculations. Significantly, under the District‘s policies during 2010–2012, Tooker could earn compensatory hours for reasons other than working more than forty hours in a week. For example, Tooker could have earned compensatory hours for being “on call.” Listing numbers of compensatory hours Tooker claims she earned is not the same as saying that she worked more than forty hours during any week because she might have earned the hours by being “on call.” Nowhere in her calculation document does Tooker state or clearly indicate that she worked more than forty hours in a week. Tooker‘s conclusory, unsubstantiated, and speculative calculation document does not raise a genuine fact issue to preclude summary judgment as to Tooker‘s overtime-compensation claim under the Fair Labor Act. See Ihegword, 929 F.Supp.2d at 668.
In her affidavit, Tooker states, “[f]or instance, I worked 4 hours of overtime on January 14, 2010, as reflected in [the calculation document]. I should have received 6 hours of comp-time but [the District] only gave me 4 hours straight time.” Evidence from the District shows that on that date Tooker earned 4 hours of compensatory time for being “on call,” not for working more than forty hours in a week. Presuming that Tooker‘s statements in the affidavit raise a genuine fact issue as to whether she worked more than forty hours that week, the evidence also contained a document Tooker signed, showing that she was
The evidence Tooker cites does not raise a raise a genuine fact issue as to her overtime-compensation claim under the Fair Labor Act. See Harvill, 433 F.3d at 441; Ihegword, 929 F.Supp.2d at 668. We overrule Tooker‘s challenge to the trial court‘s dismissal of this claim.
I. Did the trial court err in dismissing appellant‘s retaliation claim under the Fair Labor Act?
The Fair Labor Act makes it unlawful for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.”
The trial court dismissed Tooker‘s Fair Labor Act retaliation claim based on the District‘s grounds that there is no evidence of any of the three elements of the prima facie case.14 On appeal, Tooker asserts that the evidence raises a fact issue as to each element.
Tooker filed the original petition in the trial court, asserting a claim against the District for violation of the Fair Labor Act and alleging that the District failed to compensate her for all of the overtime she had worked. This action constitutes participation in protected activity under the Fair Labor Act. See
For purposes of a Fair Labor Act retaliation claim, an adverse employment
Tooker asserts that the District engaged in an adverse employment action when Jeff DeLisle gave her a memorandum on February 22, 2013, less than a month after she filed this lawsuit. In this memorandum, DeLisle stated as follows:
In addition to your issues above it has come to my attention that you have alleged that you have not been properly compensated for overtime work. You are hereby directed not to work any overtime unless specifically asked to do so by either Wilton Curry or me.
Failure to follow these directives will be viewed as insubordination and/or misconduct; therefore, resulting in disciplinary action up to and including a recommendation for termination.
Evidence before the trial court showed a District policy requiring all nonexempt employees to have the approval of their supervisor before working overtime. Thus, before the lawsuit, Tooker was permitted to seek approval to work overtime. DeLisle‘s memorandum changed that. Tooker was not to work overtime unless the named individuals asked her to do so, and DeLisle threatened Tooker with a potential recommendation for termination if she failed to comply with this directive. The evidence raises a fact issue as to (1) whether under the new restriction, Tooker could not initiate an overtime possibility as other employees were permitted to do under the District‘s policy; and (2) whether the new restriction effectively eliminated Tooker‘s overtime hours unless she received a specific request. Because the potential need for overtime work is sometimes only within the employee‘s knowledge, an employee who is barred from seeking prior approval for overtime might effectively lose that overtime and so might be dissuaded from pursuing the protected activity.
The evidence raises a genuine fact issue as to whether, when DeLisle gave Tooker the overtime-restriction memorandum and had her sign it, Tooker had worked and been compensated for overtime in the past under a policy requiring only prior supervisor approval. In the memorandum, DeLisle noted Tooker‘s overtime-compensation claim and then directed Tooker not to work any overtime unless specifically asked to do so by either Wilton Curry or DeLisle. The evidence raises a genuine fact issue as to whether a reasonable employee, who had worked overtime in the past and been compensated for it, would have found DeLisle‘s memorandum to be materially adverse conduct due to DeLisle‘s change in policy, apparently only as to that one employee, from a requirement of prior approval to a requirement that Curry or DeLisle specifically ask the employee to work overtime. See White v. Denton Cnty., No. 4:13CV13, 2015 WL 5047955, at *6-7 (E.D. Tex. Aug. 26, 2015); Tex. Dept. Pub. Safety v. Williams, No. 03-08-00466-CV, 2010 WL 797145, at *5-6 (Tex. App.-Austin Feb. 19, 2010, no pet.) (mem. op.). On this record, we see a fact
The District cites two authorities in support of the position that an employer‘s limitation on an employee‘s ability to work overtime cannot constitute an adverse employment action. The first authority is
The District has not cited any authority holding that an increased restriction on an employee‘s ability to work overtime coupled with threats of discipline “up to and including a recommendation for termination” cannot constitute an adverse employment action. The Third Court of Appeals has concluded that evidence an employer‘s action decreased the employee‘s opportunity to work overtime and earn overtime pay can constitute evidence that the action is an adverse employment action. See Williams, 2010 WL 797145, at *5-6. We conclude that the evidence raised a genuine fact issue as to whether DeLisle‘s memorandum constituted an adverse employment action for the purposes of the prima facie case in Tooker‘s Federal Labor Act retaliation claim. See White, 2015 WL 5047955, at *6-7; Williams, 2010 WL 797145, at *5-6.
The final element of the Tooker‘s prima facie case requires some “causal link” between Tooker‘s filing of this lawsuit and the alleged adverse employment action—DeLisle issuing the memorandum to Tooker. See Hagan, 529 F.3d at 624. A causal link is shown when the evidence demonstrates that the adverse employment action was based in part on knowledge of the employee‘s protected activity. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). While temporal proximity is not determinative, close timing between the employee‘s protected activity and the adverse employment action may provide a causal link for the purposes of the employee‘s prima facie case in a retaliation claim. Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). The adverse employment action occurred less than a
The evidence raises a genuine fact issue as to each element of Tooker‘s prima facie case, and the District did not seek dismissal based on any alleged legitimate, nondiscriminatory reason, or on any other ground as to the Fair Labor Act retaliation claim based on DeLisle‘s memorandum. We thus sustain Tooker‘s appellate challenge to the trial court‘s dismissal of this claim.15
III. CONCLUSION
Because the evidence raises a genuine fact issue as to each element of Tooker‘s prima facie case in her Fair Labor Act retaliation claim based on the overtime-restriction memorandum, the trial court erred in dismissing this claim. We thus sustain the part of Tooker‘s fourth appellate issue in which she challenges the trial court‘s dismissal of this claim. As to all of the other claims whose dismissal Tooker challenges on appeal, we have addressed all of Tooker‘s appellate arguments necessary to the disposition of this appeal without finding any reversible error. We thus overrule all of Tooker‘s other appellate issues as well as the remainder of Tooker‘s fourth issue. We reverse the trial court‘s judgment as to the Fair Labor Act retaliation claim based on the overtime-restriction memorandum, remand this claim for further proceedings, and affirm the remainder of the trial court‘s judgment.
Kem Thompson Frost
Chief Justice