Court of Appeals of Texas, Fort Worth.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellant
MIGNON JACKSON, Appellee
Delivered: March 2, 2023
On Appeal from the 141st District Court Tarrant County, Texas
Trial Court No. 141-318487-20
Before Kerr, Birdwell, and Walker, JJ.
Brian Walker Justice
*1 Memorandum Opinion by Justice Walker
This case involves a workers’ compensation retaliation claim filed by Appellee Mignon Jackson against her former employer, the Texas Health and Human Services Commission (HHSC), Appellant. On interlocutory appeal, HHSC appeals the trial court’s orders that denied its plea to the jurisdiction and alternative no-evidence motion for summary judgment and that overruled its objections to Jackson’s evidence opposing the plea to the jurisdiction. We will reverse and render judgment for HHSC.
A. PROCEDURAL BACKGROUND
Jackson filed suit on August 7, 2020, alleging that she was terminated from her employment with HHSC as retaliation for her filing a workers’ compensation claim. HHSC filed a Plea to the Jurisdiction/Alternative No-Evidence Motion for Summary Judgment and then objections to Jackson’s responsive evidence. In its plea/motion, HHSC argued that Jackson had failed to raise a prima facie case for retaliation and that there was no evidence to rebut HHSC’s non-pretextual reason for terminating her. The objections generally focused on (1) questions and answers from Jackson’s deposition concerning HHSC progressive disciplinary policies and (2) alleged hearsay statements from Jackson’s deposition. The trial court denied the plea/motion and overruled the objections.
B. JURISDICTIONAL FACTS
Jackson worked as a program manager for HHSC and had worked for HHSC in some capacity for a total of 32 years. She worked in HHSC’s Fort Worth office, which she characterized as a high-stress environment with low employee morale. In her position, Jackson was responsible for supervising employees at the Fort Worth office, including clerical staff and lower-level supervisors. During her time at HHSC, Jackson had been “repeatedly promoted,” and in 2018 and 2019, she received performance reviews that either met or exceeded expectations.1 At the time she was terminated, Jackson was classified as an at-will employee.
On January 21, 2020, HHSC executive management received an anonymous letter alleging that its Fort Worth office was an abusive, toxic work environment. Wayne Salter, a deputy executive commissioner for HHSC, was tasked with investigating the letter’s allegations.
On February 3, 2020—before Salter’s investigation began—Jackson fell in the Fort Worth office parking lot, injuring her lip and breaking her thumb. She filed a workers’ compensation claim the next day and was required to wear a splint on her hand. A surgery for her hand was scheduled for February 13, 2020.
On February 11 and 12, Salter met with all non-supervisory employees in the Fort Worth office who worked under Jackson’s supervision. A number of those employees reported that Jackson—as the “ring leader”—and other supervisors created a work environment in which employees suffered fear of retaliation, lack of respect, and aggressive behavior such as yelling and cursing at them.2 Salter then met with Jackson on February 12 and reported the allegations made against her. Jackson was wearing a splint on her hand at the meeting. At the end of this meeting, Salter terminated Jackson’s employment effective immediately, citing her involvement in contributing to a hostile work environment. He claimed to have decided to terminate Jackson “halfway through the interviews on the first day.”
*2 Jackson explained in her deposition that Daria Lee, who helped schedule the investigatory meeting between Salter and Jackson, originally sought to have the meeting rescheduled from February 12th to the 13th. Jackson said that she informed Lee that she could not meet on the 13th because she had filed a workers’ compensation claim and was having a related surgery that day. According to Jackson, Lee said that she would relay this information to Salter. Jackson stated that she never told Salter about her workers’ compensation claim and that she was not present to hear Lee relay this information to Salter. But Jackson speculated that Salter learned about the claim from Lee because the meeting was ultimately held on the 12th rather than the 13th.
Lee agreed that she knew about Jackson’s injury prior to the investigatory meeting but attested that she did not tell Salter about the injury. And both Lee and Salter stated that they did not know that Jackson had filed a workers’ compensation claim until after Jackson was terminated. Salter attested that, even if he had known about Jackson’s claim, it would not have influenced his decision to terminate Jackson.
Jackson stated that no one had expressed any negative comments to her about her injury. However, she also stated that, when she stood to leave the meeting with Salter after being terminated, Lee also stood, prompting Salter to ask Lee, “Where are you going?” According to Jackson, Lee responded, “Well, I got to go help her. Her hand is hurt.” Then Salter told Lee, “No, you sit there.”
Jackson described the steps of an HHSC progressive discipline policy that she was required to follow as a supervisor before terminating her employees for performance issues: (1) oral warning, (2) written warning, (3) performance improvement plan, and (4) consider transfer to a different or lesser position. Jackson then stated that, before her own termination, she was never placed on a performance improvement plan or offered another position.
HHSC provided a copy of the human resources manual that was effective at the time of Jackson’s termination. This manual included HHSC’s employee standards of conduct that required, among other things, that all HHSC employees were to “be familiar with and follow all [HHSC] policies and procedures relating to job performance and work rules” and “exhibit courtesy and respect in all interactions” with coworkers. The manual also contained a copy of HHSC’s progressive discipline policy, which generally agreed with the steps outlined by Jackson. However, the policy explicitly provided that it did not apply to at-will employees. Instead, HHSC’s policy made clear that at-will employees were subject to dismissal “at any time at the discretion” of the relevant HHSC leadership.
After Salter’s investigation, another at-will employee was terminated and a non-at-will employee was disciplined following the HHSC progressive disciplinary policy.
HHSC raises three issues on appeal: (1) the trial court erred in denying its plea to the jurisdiction because Jackson failed to establish a prima facie case of retaliation and to rebut HHSC’s legitimate purpose for terminating her; (2) the trial court erred in refusing to dismiss Jackson’s claim for punitive or liquidated damages because such damages are unavailable in suits against a governmental entity; and (3) the trial court abused its discretion in overruling HHSC’s objections to Jackson’s responsive evidence.
We will reverse and render judgment for HHSC on its first issue.
A. STANDARD OF REVIEW
Sovereign immunity deprives a trial court of subject matter jurisdiction when the state has been sued, unless the state consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A state agency may properly assert immunity from suit by means of a plea to the jurisdiction or motion for summary judgment. See id.; Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 326 (Tex. App.—El Paso 2021, no pet.).
*3 We review a trial court’s ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 228. When, as here, a plea challenges the existence of jurisdictional facts, we consider relevant evidence from both parties to resolve the jurisdictional issue. Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (confining evidence to only that relevant to the jurisdictional issue). When the jurisdictional challenge implicates the merits of the plaintiff’s case and the plea includes evidence, the court necessarily reviews the relevant evidence to determine if a fact issue exists. Id. In such cases, “this standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228.
Under this standard, if the state asserts and supports with evidence a lack of subject matter jurisdiction, the case must be dismissed unless the plaintiff raises an issue of material fact regarding the jurisdiction issue. Id. at 221, 228. To determine if an issue of material fact exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in her favor. Id. at 228. But, in doing so, we cannot disregard necessary contextual evidence nor can we disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).
B. RELEVANT LAW
The Texas Workers’ Compensation Act (TWCA) provides that “[a] person may not discharge or in any other manner discriminate against an employee because the employee has[ ] filed a workers’ compensation claim in good faith ....” Tex. Lab. Code Ann. § 451.001(1). This prohibition against retaliation is an exception to the doctrine of at-will employment recognized in Texas. Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015). The state has waived sovereign immunity for claims of retaliatory termination under the TWCA, but only when the plaintiff states a claim for conduct that actually violates the statute. Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 6 (Tex. 2000); Juarez v. Tex. Legislative Council, No. 14-20-00331-CV, 2022 WL 806054, at *6 (Tex. App.—Houston [14th Dist.] Mar. 17, 2022, no pet.) (mem. op.); Bustillos, 630 S.W.3d at 330.
To recover for TWCA retaliatory discharge, the plaintiff bears an overall burden of showing that her discharge would not have occurred absent the employee’s protected conduct. Tawil v. Cook Children’s Healthcare Sys., 582 S.W.3d 669, 681 (Tex. App.—Fort Worth 2019, no pet.) (citing Melendez, 477 S.W.3d at 312). This burden may be met with either direct or circumstantial evidence. Melendez, 477 S.W.3d at 312.
To this end, we apply a burden-shifting analysis. Tawil, 582 S.W.3d at 682. First, the plaintiff must establish a prima facie showing that demonstrates a causal link between her discharge and the filing of the workers’ compensation claim. Bustillos, 630 S.W.3d at 330; Tawil, 582 S.W.3d at 682. Then, if a prima facie case is established, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for its actions. Tawil, 582 S.W.3d at 682. If the employer provides a legitimate reason, the burden shifts back to the plaintiff to produce controverting evidence that the proffered reason was actually a pretext for a retaliatory motive. Id. “Only the burden of production shifts to the employer in this process; the burden of persuasion always remains with the [plaintiff].” Id.
We impose only a slight burden on the plaintiff to establish her prima facie case, which can be met “merely by proving close timing between the protected activity and the adverse action.” Alamo Heights, 544 S.W.3d at 782; Tawil, 582 S.W.3d at 683. However, if the employer provides a legitimate, non-discriminatory reason for the discharge, the plaintiff then bears a higher, “but-for causation standard” to rebut the employer’s proffered reason, which is “significantly more difficult to prove than prima facie causation.” Alamo Heights, 544 S.W.3d at 782; see Tawil, 582 S.W.3d at 683–84 (stating that mere temporal proximity between the workers’ compensation claim and discharge does not meet this higher burden).
*4 When the plaintiff relies on circumstantial evidence to establish that the proffered reason is merely a pretext, courts must look to the factors enumerated by the supreme court in Continental Coffee: (1) knowledge of the workers’ compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); Tawil, 582 S.W.3d at 682– 83 (explaining that precedent is unclear as to whether these factors should be used at the prima facie stage or later when analyzing whether the employer’s proffered reason was a pretext, and holding that the factors fit more efficiently in the latter stage). To survive dismissal, the plaintiff need not produce evidence as to each of these factors “but must produce evidence to sustain the majority of them.” Tawil, 582 S.W.3d at 685; see Bustillos, 630 S.W.3d at 331.
C. PRIMA FACIE CASE ESTABLISHED
Jackson presented evidence that she filed her workers’ compensation claim on February 4, 2020, and that she was terminated on February 12, 2020. We hold that this close proximity—less than ten days—between Jackson’s claim and HHSC’s adverse action is enough to establish her prima facie case. See Alamo Heights, 544 S.W.3d 755 at 782; Bustillos, 630 S.W.3d at 332 (holding that plaintiff established prima facie case when her termination occurred less than two months after filing a workers’ compensation claim); Tawil, 582 S.W.3d at 687 (holding that plaintiff established prima facie case when his termination occurred less than one month after his injury).
D. HHSC PROVIDED A LEGITIMATE, NON-DISCRIMINATORY REASON FOR JACKSON’S TERMINATION
Because Jackson established her prima facie case, we must determine whether HHSC provided a legitimate, non-discriminatory reason for terminating her. We hold that it did.
HHSC presented evidence that it terminated Jackson because she oversaw and contributed to a hostile work environment, which violated multiple HHSC rules and policies. HHSC received an anonymous letter on January 21, 2020—approximately two weeks before Jackson was injured—alleging the existence of an abusive, toxic work environment in its Fort Worth office. On February 11 and 12, Salter investigated these allegations, which included personally interviewing all non-supervisory staff at the Fort Worth office. After these interviews, Salter determined that Jackson had contributed to an environment in which her employees feared retaliation and were often treated with disrespect. He concluded that this conduct violated various HHSC standards of conduct, including that employees were required to “exhibit courtesy and respect” toward coworkers. Based on these findings, Salter made the decision to terminate Jackson’s employment with HHSC. We hold that HHSC presented a legitimate, non-discriminatory reason for terminating Jackson.
E. JACKSON FAILED TO SHOW THAT HHSC’S PROFFERED REASON FOR TERMINATION WAS A PRETEXT
Because HHSC presented a legitimate, non-discriminatory reason for terminating Jackson, the burden shifted back to her to raise a fact issue that this reason was a pretext and that she would not have been terminated but for her filing a workers’ compensation claim. Alamo Heights, 544 S.W.3d at 790; Bustillos, 630 S.W.3d at 333–34. To carry this burden, Jackson was required to present evidence showing that a majority of the Continental Coffee factors weighed in her favor. Tawil, 582 S.W.3d at 685; see Bustillos, 630 S.W.3d at 331. We hold that Jackson did not do so.
1. Decision-Maker’s Knowledge of Workers’ Compensation Claim
It was undisputed that Salter made the final decision to terminate Jackson. Jackson admitted that she never informed Salter about her workers’ compensation claim and could only speculate that Lee had conveyed this information to Salter. Jackson also contends that the fact that she wore a splint on her hand to the investigatory meeting with Salter was evidence that he knew about her claim shortly before he terminated her.
*5 Salter, however, stated that he did not know about Jackson’s workers’ compensation claim until after her termination. And, though Lee knew about Jackson’s injury, she denied knowing about Jackson’s claim or having told Salter that Jackson had filed a claim.
Thus, Jackson could only speculate that Salter knew about her workers’ compensation claim. Her mere speculation was not enough to defeat HHSC’s competent evidence that Salter did not know about Jackson’s claim prior to terminating her. See Chance v. CitiMortgage, Inc., 395 S.W.3d 311, 315 (Tex. App.— Dallas 2013, pet. denied); see also Wilson v. Dallas Indep. Sch. Dist., 376 S.W.3d 319, 326 (Tex. App.—Dallas 2012, no pet.) (“Conclusory statements are not competent evidence in a plea to the jurisdiction proceeding.”); Univ. of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5 (Tex. App.—El Paso 2009, no pet.) (“When circumstantial evidence is so slight that the choice between opposing plausible inferences amounts to nothing more than speculation, it is legally no evidence at all.”).
We hold that this factor does not weigh in Jackson’s favor.
2. Expression of a Negative Attitude Toward Employee’s Injury
An employer’s comments about an employee’s injury may provide some evidence of discriminatory intent if they are (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the termination; (3) made by individuals with authority over the employment decision; and (4) related to the employment decision at issue. Tawil, 582 S.W.3d at 685. Mere stray remarks, however, are typically insufficient to show discrimination. Id. (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000)). And an employee’s “subjective beliefs ‘are no more than conclusions’ ” and are not competent evidence in a retaliatory termination action brought under the TWCA. Continental Coffee, 937 S.W.2d at 452 (quoting Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994)).
Jackson explicitly stated that no one had expressed any negative comments to her about her injury. She contends on appeal, however, that “Salter expressed a hostile attitude” toward her injury when he directed Lee not to help Jackson with her belongings after she was terminated, which left Jackson to gather her belongings alone and with an injured hand. HHSC argues that this is merely a subjective belief on Jackson’s part and not competent evidence of retaliatory intent. We agree with HHSC.
There was no evidence of any direct, negative statements related to Jackson’s injury or claim. Instead, we have only Salter’s comments to Lee not to help Jackson with her belongings, which were not explicitly related to Jackson’s injury. Without more, Jackson’s interpretation of these comments is merely speculative belief and does not constitute competent evidence for our purposes. Continental Coffee, 937 S.W.2d at 452. In the end, Jackson’s characterizations of Salter’s comments are “merely [the kind of] conclusory allegations, improbable inferences[,] and unsupported speculation” that cannot serve as competent evidence of retaliatory intent. Tawil, 582 S.W.3d at 689 (internal quotations omitted). For these reasons, we hold that this factor does not weigh in Jackson’s favor.
3. Employer’s Failure to Adhere to Established Company Policies
*6 The dispositive issue on this factor is not whether an employer engaged in any activity against their own policies; rather, “we must ask whether an employer terminated an employee against its own policies.” Bustillos, 630 S.W.3d at 335 (emphasis added).
There is no evidence that Jackson was terminated against any HHSC policy. Jackson contends that she raised evidence of the progressive disciplinary policy and that the policy was not adhered to before her termination. However, Jackson never established that the disciplinary policy applied to her. In fact, HHSC’s evidence established just the opposite—that, because she was an at-will employee, the policy did not apply to her. And her status as an at-will employee meant that she was subject to termination at any time and at the discretion of her supervisor.
Accordingly, because Jackson was not terminated against any of HHSC’s policies, we hold that this factor does not weigh in her favor.
4. Comparison to Similarly Situated Employees
To establish that another similarly situated employee received dissimilar treatment, the complaining employee must establish that her circumstances match those of the employee being compared. Tawil, 582 S.W.3d at 686. Employees are similarly situated only if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct. Alamo Heights, 544 S.W.3d at 791. This also includes whether the other employee was terminated or suffered an adverse employment action after filing a workers’ compensation claim. Bustillos, 630 S.W.3d at 336.
On this issue, Jackson contends that Salter stated that, after his investigation, he terminated another at-will employee and transferred another non-at-will employee who was subject to HHSC’s progressive discipline policy. From this evidence, Jackson contends that HHSC “only proposed discipline for another employee accused of the same conduct” and transferred “another employee who was investigated.” Importantly, though, no evidence showed that either of these other employees filed a workers’ compensation claim before suffering their adverse employment action. Id.
Accordingly, Jackson has not shown that she was treated differently than another similarly situated employee, and we hold that this factor does not weigh in her favor.
5. Evidence that the Stated Reason for the Termination was False
Jackson pointed to several pieces of evidence to establish that HHSC’s reason for terminating her—that she oversaw and contributed to a hostile work environment in violation of HHSC policy—was false:
•She denied engaging in toxic or abusive behavior towards employees;
•Salter determined that he would terminate her before the completion of his investigation;
•She had been repeatedly promoted and received performance reviews that either met or exceeded expectations; and
•The Fort Worth office suffered from high-stress and low-morale before Jackson was promoted to oversee the office.
On this factor, “[t]he issue is whether the employer’s perception of the problems—accurate or not—was the real reason for termination.” Alamo Heights, 544 S.W.3d at 792; see Bustillos, 630 S.W.3d at 334 (“When an employer’s decision to terminate a claimant’s employment is based on the results of an investigation into whether the claimant violated workplace rules, ‘evidence that the employer’s investigation merely came to an incorrect conclusion does not establish a racial motivation behind an adverse employment decision. Management does not have to make proper decisions, only non-discriminatory ones.’ ”) (emphasis in original) (quoting Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 818 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)). An employee’s subjective belief that her employer’s reason for termination was false cannot alone supply a basis for such a finding because such beliefs are mere conclusions. Bustillos, 630 S.W.2d at 333; Tawil, 582 S.W.3d at 682. But, evidence that an employer is “pleased with an employee’s work performance supports a finding of pretext when that evidence contradicts the reason given by the employer of poor performance.” Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 916–17 (Tex. App.—Fort Worth 2018, pet. denied) (quoting Dell, Inc. v. Wise, 424 S.W.3d 100, 112 (Tex. App.—Eastland 2013, no pet.)).
*7 As a result, Jackson’s denials that she contributed to a toxic work environment are mere conclusions and could not serve as competent jurisdictional evidence. Bustillos, 630 S.W.2d at 333. Further, the fact that Salter decided to terminate Jackson only midway through his investigation is not evidence that his reason for terminating Jackson was false. Jackson seems to imply that this fact shows that Salter’s investigation was a sham and that he truly desired to terminate her for filing the workers’ compensation claim. But the most logical inference to draw from this fact is that Salter’s investigation quickly made it clear that Jackson should be terminated for violating HHSC policy. Thus, at best this evidence is so slight that it raises opposing plausible inferences so as to be no evidence at all. See Muro, 341 S.W.3d 1, 5.
As to Jackson’s performance evaluations, this evidence was similarly slight and not sufficient to show that the reason for her termination was false. It is true that in the two years prior to her termination, Jackson was reported to have met expectations related to her personal conduct and compliance with HHSC rules, policies, and ethics. Conceivably, this raises an inference that Salter did not terminate her because she violated any HHSC policies. However, this inference is offset by other compelling facts:
•Jackson’s evaluations occurred before HHSC leadership received the anonymous letter, thus they were completed by her supervisors without knowledge of the alleged problems;
•her evaluations were not conducted by Salter, who made the ultimate decision to terminate Jackson;
•the investigation started shortly after the anonymous letter was received and wrapped up in less than two days;
•Jackson did not refute with evidence that the Fort Worth office was toxic for its employees—to the contrary, she acknowledged that the environment had been characterized by high-stress and low-morale for some time; and
•ample evidence supported Salter’s determination that Jackson oversaw a toxic environment—all of the reporting employees stated that they feared retaliation and more than eighty percent reported having been demeaned or having seen a coworker demeaned by supervisors.
Though we should generally take as true all evidence favorable to Jackson, in light of these facts, we hold that no reasonable juror could disregard this contextual evidence nor disregard the inference that Salter’s perception of the problem—that Jackson contributed to a toxic work environment—was the real reason for her termination. See Alamo Heights, 544 S.W.3d at 771, 792.
For these reasons, we hold that this factor does not weigh in Jackson’s favor.
Having evaluated the evidence pertaining to each of the Continental Coffee factors, we conclude that Jackson failed to produce evidence weighing in her favor on any of these factors. See Continental Coffee, 937 S.W.2d at 451. She has, therefore, failed in her ultimate burden of establishing a genuine issue of material fact on but-for causation. See id. We hold that the trial court erred in denying HHSC’s plea to the jurisdiction and sustain HHSC’s first issue.3
We reverse the trial court’s order denying HHSC’s plea to the jurisdiction and render judgment dismissing Jackson’s retaliation claim under Chapter 451 of the Texas Labor Code. See Tex. R. App. P. 43.2, 43.3; Bustillos, 630 S.W.3d at 337 (reversing, rendering, and dismissing plaintiff’s Chapter 451 claim on the same grounds).
Specifically, both her 2018 and 2019 employee performance evaluations stated that Jackson met expectations related to her personal conduct, courteousness with co-workers, and compliance with HHSC rules, policies, and ethics. The supervisor that completed Jackson’s 2018 evaluation was named Lavonda Vickrey, and the supervisor for her 2019 evaluation was Monica Holloway.
As evidence of these allegations, HHSC provided copies of forms on which eighteen employees answered questions such as, “Do you have a fear of being retaliated against after we leave your office?” and, “Have you ever been spoken to in a demeaning ma[nn]er?” Fifteen of these employees reported that they feared retaliation and all eighteen stated that they had been demeaned or had witnessed a coworker being demeaned by supervisors; many provided specific examples of the alleged demeaning behavior and comments.
Because this holding is dispositive of the entire appeal, we need not address HHSC’s remaining issues. See Tex. R. App. P. 47.1.