Rosemary Tooker v. Alief Independent School District , 522 S.W.3d 545 ( 2017 )

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed January
4, 2017.
In The
Fourteenth Court of Appeals
NO. 14-15-00124-CV
ROSEMARY TOOKER, Appellant
V.
ALIEF INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2013-06192
OPINION
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 Texas Commission on Human
Rights Act, the Fair Labor Standards Act, the Family and Medical Leave Act, and
the Texas Whistleblower Act. The trial court granted the employer’s pleas to the
jurisdiction and summary-judgment motions and dismissed all of the employee’s
claims. We reverse the trial court’s judgment as to a retaliation claim under the
Fair Labor Standards Act and affirm the remainder of the judgment.
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 met with
2
representatives from the District’s human resources department and mentioned that
the police department had not investigated the 2011 theft incident. According to
Tooker, soon after that meeting the human resources department contacted the
police department to begin the investigation. Tooker alleges that almost
immediately thereafter several Department employees began making false
allegations against Tooker in an effort to further harass her, force her to quit, and
diminish the impact of her incident report and lawsuit that would soon follow. In
January 2013, the District suspended Tooker with pay pending an investigation of
allegations that Tooker had created a hostile work environment. Tooker filed a
second charge of discrimination, alleging that the District was paying her less than
males who perform the same or similar job duties and asserting continued
retaliation and gender discrimination (hereinafter the “Second Charge”).
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 Texas
Commission on Human Rights Act, Chapter 21 of the Texas Labor Code (the
“Human Rights Act”), the Fair Labor Standards Act, title 29, chapter 8 of the
United States Code (the “Fair Labor Act”), the Family and Medical Leave Act, title
29, chapter 28 of the United States Code (the “Leave Act”), and the Texas
Whistleblower Act, chapter 554 of the Texas Government Code (the
“Whistleblower Act”). See 29 U.S.C. § 201, et seq. (West, Westlaw through 2015
R.S.); 29 U.S.C. § 2611, et seq. (West, Westlaw through 2015 R.S.); Tex. Lab.
Code Ann. § 21.001, et seq. (West, Westlaw through 2015 R.S.); Tex. Gov’t Code
Ann. § 554.001, et seq. (West, Westlaw through 2015 R.S.).
In May 2013, the District filed a plea to the jurisdiction, which the trial court
3
granted as to Tooker’s Human Rights Act claims.1 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 the school district’s sovereign immunity
has been waived. See Mission Consol. Indep. Sch. Dist v. Garcia, 372 S.W.3d 629,
636 (Tex. 2012). The Human Rights Act clearly and unambiguously waives
immunity for suits brought against school districts under this statute. See Tex.
Lab. Code Ann. §§ 21.002(4), 21.002(8)(D), 21.051, 21.254 (West, Westlaw
through 2015 R.S.); Garcia, 372 S.W.3d at 636. But, the Legislature has waived
immunity only for those suits in which the plaintiff actually alleges a violation of
the Human Rights Act by pleading facts that state a claim thereunder. See Tex.
1
In August of 2014, while this suit was pending in the trial court, the District terminated
Tooker’s employment, but no claims by Tooker regarding this termination are part of this suit.
2
The second document bears a “July 29, 2014” file stamp, but the trial court signed an order
deeming this document to have been filed on July 28, 2014.
4
Lab. Code Ann. §§ 21.002(4), 21.002(8)(D), 21.051, 21.254; Garcia, 372 S.W.3d
at 636–37.
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
5
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. at 227–28. 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
3
This paragraph and the following four paragraphs describe relevant portions of DeLisle’s
testimony.
6
“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.
7
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 technicians to investigate any
suspected issues with the District’s HVAC systems. Tooker’s job description did
not require her to travel to the District’s campuses to troubleshoot any HVAC
equipment or to make any repairs to HVAC equipment.
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
4
This paragraph describes relevant portions of Woods’s testimony.
8
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
9
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 dismissing
Tooker’s claims under the Human Rights Act, nor does the record show that the
trial court exercised its discretion to consider the untimely declaration as
potentially raising a fact issue in connection with ruling on Tooker’s motion to
reconsider. In this context, we cannot consider the declaration as potentially
raising a fact issue as to the grounds raised in the District’s first jurisdictional plea.
See Guishard v. Money Mgmt. Intern., Inc., No. 14-14-000362-CV, 2015 WL
4984853, at *2 (Tex. App.—Houston [14th Dist.] Aug. 20, 2015, no pet.) (mem.
op.); Smith v. City of League City, 338 S.W.3d 114, 123 n.6 (Tex. App.—Houston
[14th Dist.] 2011, no pet.); McMahan v. Greenwood, 108 S.W.3d 467, 499–500
(Tex. App.—Houston [14th Dist.] 2003, pet. denied).
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
5
Tooker asserts that if we find the allegations in her pleading defective, we should reverse and
10
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 Tex.
R. App. P. 38.1(i); Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736–37 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Therefore, Tooker has waived any
challenge to the trial court’s granting of the District’s first jurisdictional plea as to
the retaliation claim based on the District’s conduct in 2011. See Kaldis, 424
S.W.3d at 736–37.
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 sufficient facts in her petitions to support a prima facie case of retaliation
remand to allow her a reasonable opportunity to cure the pleading defects. Our analysis in this
section is not based on any pleading defects, so Tooker’s request for an opportunity to cure
pleading defects does not apply.
11
claim under the Human Rights Act. As to any such claim based on conduct other
than the alleged 2011 retaliation conduct that was the basis of the First Charge, the
trial court dismissed these claims based on the District’s “Objections and Motion
to Strike Plaintiff’s Changes to her Deposition Testimony, Plea to the Jurisdiction,
Traditional, and No Evidence Motions for Summary Judgment” (hereinafter the
“Second Motion”). Tooker does not address the grounds in the Second Motion on
which the trial court dismissed these claims. Tooker does not provide any analysis
or legal citations showing how the trial court erred in granting the Second Motion
as to these claims. Even liberally interpreting Tooker’s appellate briefing, we
cannot conclude that she has adequately briefed this issue. See Tex. R. App. P.
38.1(i); Kaldis, 424 S.W.3d at 736–37. Therefore, Tooker has waived any
challenge to the trial court’s granting of the Second Motion as to these claims. See
Kaldis, 424 S.W.3d at 736–37.
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 and 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
12
remedies by means of the Second Charge. In the Second Motion, the District
asserted, among other things, the following:
(1) 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;
(2) Tooker’s hostile-work-environment claim is time barred; and
(3) 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.6 Exhaustion of administrative remedies is not one of these elements.
Tooker also appears to argue in another section of her brief that her hostile-work-
environment claim is not time-barred. Tooker, however, has not adequately
briefed the issue of whether she exhausted her administrative remedies as to her
hostile-work-environment claim based on the Second Charge. Though Tooker
6
In her appellate briefing, Tooker conflates her allegations of actionable retaliation against her
for engaging in a protected activity with a hostile-work-environment claim based on alleged
harassment due to a protected status. Tooker asserts that evidence of retaliation raises a fact
issue as to her hostile-work-environment claim. But, retaliation is not the same as discrimination
or a hostile work environment. See University of Tex. M.D. Anderson Cancer Center v. Eltonsy,
451 S.W.3d 478, 484–85 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (distinguishing
conduct in which an employer retaliates against an employee for engaging in a protected activity
from conduct by the employer constituting gender discrimination); Fort Bend Indep. Sch. Dist. v.
Williams, No. 01-13-00052-CV, 2013 WL 4779693, at *8–10 (Tex. App.—Houston [1st Dist.]
Sept. 5, 2013, no pet.) (distinguishing conduct in which an employer retaliates against an
employee for engaging in a protected activity from conduct creating a hostile work environment
based on harassment regarding the employee’s protected status and concluding that charge of
discrimination and the amendment alleging retaliation did not exhaust administrative remedies as
to the hostile-work-environment claim, even though the charge mentioned a “hostile working
environment”) (mem. op.).
13
does not assert in her opening brief that she exhausted administrative remedies as
to her hostile-work-environment claim based on the Second Charge, in the section
discussing the timeliness of this claim, Tooker cites the legal standard for
exhausting administrative remedies, and states that the facts set forth in the First
Charge and in the Second Charge amounted to allegations of a hostile work
environment. Tooker also twice states in a conclusory manner that the trial court
had jurisdiction over her hostile-work-environment claim based on the Second
Charge. In a footnote, Tooker states that she does not concede that her hostile-
work-environment claim based on the Second Charge “was not well-pled for the
Second and Third Amended Petitions.”
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 Tex. R. App. P. 38.1(i); Kaldis, 424 S.W.3d at
736–37. Therefore, Tooker has waived any challenge to the trial court’s granting
of the Second Motion as to her hostile-work-environment claim.7 See Kaldis, 424
7
Even if Tooker had adequately briefed this issue, we would conclude that Tooker had not
exhausted administrative remedies as to her hostile-work-environment claim. See Williams,
2013 WL 4779693, at *8–10.
14
S.W.3d at 736–37.
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
concluded that “[e]mployees are similarly situated if their circumstances are
comparable in all material respects.” Ysleta Indep. Sch. Dist., 177 S.W.3d at 917.
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, 395 F.3d at 213. The District submitted with its
Second Motion evidence that negated this element of Tooker’s prima facie case
and showed that Tooker was not similarly situated to the male comparators
identified by Tooker in the trial court. 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.
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
8
We presume that Tooker has sufficiently briefed her challenge to the dismissal of her disparate-
compensation claim.
15
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 College of the Mainland, 436 S.W.3d 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:
(1) Tooker never filed a grievance under the District’s grievance
procedures regarding her Whistleblower Act claim.
(2) Tooker cannot establish a causal connection between her email to
Captain Bonaparte in April 2011 and her administrative leave with
pay in January 2013.
(3) Tooker did not report an alleged violation of law to an appropriate
authority.
(4) The District would have taken the same action against Tooker
even if she had not made the alleged report of a violation of law.
(5) There is no evidence that Tooker suffered an adverse personnel
action when she was placed on administrative leave with pay.
(6) There is no evidence that Tooker made a report of a violation of
law in good faith.
(7) There is no evidence that, but for making the report to the District
16
Police Department in April 2011, Tooker would not have been placed
on administrative leave with pay in January 2013.
When, as in this case, the trial court does not specify the grounds upon
which the trial court relied, we must affirm the trial court’s ruling if any of the
independent grounds is meritorious. See FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000). In this circumstance, the appealing party
must challenge all possible grounds on which the motion could have been granted,
properly or improperly. See FinServ Cas. Corp. v. Transamerica Life Ins. Co.,
No. 14-14-0838-CV, —S.W.3d—, —, 2016 WL 6134442, at *6 (Tex. App.—
Houston [14th Dist.] Oct. 20, 2016, no pet. h.). Even construing Tooker’s
appellate brief liberally, we cannot conclude that she has briefed arguments
challenging each of the independent grounds on which the trial court granted the
Third Motion as to Tooker’s Whistleblower Act claim. See Navarro v. Grant
Thornton, LLP, 316 S.W.3d 715, 719–20 (Tex. App.—Houston [14th Dist.] 2010,
no pet.). As to the no-evidence summary-judgment ground that there is no
evidence that Tooker suffered an adverse personnel action when she was placed on
administrative leave with pay, Tooker’s opening brief, at most, addresses this
ground in a single paragraph containing conclusory statements and no citations to
the record or to legal authority. The briefing is inadequate to constitute a challenge
to the trial court’s ruling on this ground. Because Tooker has not briefed arguments
challenging each of the independent grounds on which the trial court granted the
Third Motion as to Tooker’s Whistleblower Act claim, we overrule Tooker’s
challenge to the trial court’s dismissal of her Whistleblower Act claim. See id.
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
17
(1) a serious health condition that makes the employee unable to
perform the functions of the employee’s position,
(2) the birth or adoption of a child,
(3) the placement of a child with the employee for foster care,
(4) the care of a spouse, child, or parent who has a serious health
condition, or
(5) 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 29 U.S.C. § 2612 (West, Westlaw
through 2015 R.S.); Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 762–63 (5th
Cir. 2001), abrogated on other grounds by, Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 61–67, 126 S. Ct. 2405, 2411–14, 165 L. Ed. 2d 345 (2006).
The statute provides a series of substantive rights. See Hunt, 277 F.3d 757, 763.
The Leave Act requires a covered employer to allow an eligible employee up to a
specified amount of unpaid leave in a twelve-month period for one or more of the
Statutory Reasons. See 29 U.S.C. § 2612; Hunt, 277 F.3d at 763. Subject to
certain provisions of the Leave Act, leave based on the employee’s serious health
condition or to care for a spouse, child, or parent who has a serious health
condition may be taken intermittently or on a reduced leave schedule when
medically necessary. See 29 U.S.C. § 2612(b). When an eligible employee returns
from leave taken under the Leave Act, the employer must restore the employee to
the same position or to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment. See 29 U.S.C. §
2614(a)(1) (West, Westlaw through 2015 R.S.); Hunt, 277 F.3d at 763. The Leave
Act makes it “unlawful for any employer to interfere with, restrain, or deny the
18
exercise of or the attempt to exercise, any right provided under this subchapter.”9
See 29 U.S.C. § 2615(a)(1) (West, Westlaw through 2015 R.S.); Hunt, 277 F.3d at
763. An employer who engages in such unlawful conduct is liable to any eligible
employee for certain losses incurred by such employee as a result of the unlawful
conduct. See 29 U.S.C. § 2617(a)(1)(A)(i).
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
9
The Leave Act also makes it unlawful for any employer to discharge or in any other manner
discriminate against any individual for engaging in certain protected activities. See 29 U.S.C. §
2615(a)(2) & (b). Both in the trial court and on appeal, Tooker has stated that she is not
asserting a Leave Act claim based on these provisions at this time.
10
Although the term “FMLA” is not defined or explained in the affidavit, “FMLA” is an
acronym often used to refer to the Leave Act.
19
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 Act benefits to which she was entitled.11
See Brackens, 2010 WL 5464823, at *21. Tooker has not shown that the
summary-judgment evidence raised a genuine fact question on this issue. See id.
Because Tooker has not shown that the trial court erred in granting the Third
Motion as to Tooker’s Leave Act claim, we overrule Tooker’s challenge to the trial
court’s dismissal of this claim.
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
11
In her briefing Tooker seems to suggest that the District does not dispute any of the essential
elements of her Leave Act claim. The District disputes whether the District denied Tooker Leave
Act benefits to which she was entitled.
20
unpaid overtime compensation. See 29 U.S.C. § 216(b) (West, Westlaw through
2015 R.S.) (providing statutory damage claim for unpaid overtime compensation
against employer who fails to provide overtime compensation as required by
section 207 of the Fair Labor Act).
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.” 29 U.S.C. § 207(a)(1)
(West, Westlaw through 2015 R.S.).
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 29 U.S.C. § 207(o). The
employer and employee must agree on the compensatory-time-off arrangement
before overtime work is performed. See id.
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.
21
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
section 207 of the Fair Labor Act by failing to provide compensation for the
overtime hours. Id. An employee bringing a claim for unpaid overtime
compensation under the Fair Labor Act first must demonstrate she has performed
work for which she was compensated improperly, and the employee must produce
sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference. Id.
On appeal, Tooker asserts that the evidence raised a fact issue as to whether
the District denied her overtime benefits from 2010 to 2012 and that the trial court
erred in dismissing her overtime-compensation claim under the Fair Labor Act.
Tooker asserts that two paragraphs in one of her affidavits and a two-page
document that she created raise a genuine fact issue as to this claim. In one
paragraph in the affidavit Tooker states she was supposed to stop working at 4:30
p.m. Tooker then says that “[e]very day that I worked, I was required to lock up
and take calls regarding HVAC problems until I was instructed not to work
overtime or stay pas[t] 4:40 p.m.” In a sheet Tooker prepared, she lists “Earned
Comp Time” for various dates in 2010, 2011, and 2012. Though it is not clear, it
appears that Tooker calculates that she worked 42.5 weeks in each of these years
and that each day she worked 21 extra minutes. This unsubstantiated and
speculative estimate of uncompensated overtime 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 v. Harris Cnty. Hosp. Dist., 929 F. Supp. 2d 635,
668 A.K. Marsh. 7, 2013), aff’d, 555 Fed. Appx. 372 (5th Cir. 2014).
In the other cited paragraph in her affidavit, Tooker states that she prepared
22
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
12
In her appellate brief, Tooker says that the documents are attached to the Second Motion as
Exhibit C-5.
23
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 aware that “[a]ll time
worked will be reflected on [the] time card” and that compensatory-time-earned
sheets must be turned in to the Foreman and the Secretary by noon on Tuesday of
the week after the compensatory time was earned. Employees asserting claims
under the Fair Labor Act are bound by such policies. See Nieddu v. Lifetime
Fitness, Inc., 977 F. Supp. 2d 686, 698–99 (S.D. Tex. 2013). Tooker did not submit
evidence showing that her time cards reflected that she worked more than forty
hours in a week and that she did not receive one-and-a-half compensatory hours for
every hour worked in excess of forty during that week. Nor did Tooker submit any
evidence showing that the District did not give her credit for the proper amount of
compensatory time earned, even though Tooker submitted a form to obtain
compensatory time based on having worked more than forty hours in a week.
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.” 29 U.S.C. § 215(a)(3) (West, Westlaw through 2015 R.S.).
24
A retaliation claim under the Fair Labor Act is subject to the McDonnell
Douglas analytical framework. See Kanida v. Gulf Coast Med. Pers., LP, 363 F.3d
568, 577 (5th Cir. 2004). For a Fair Labor Act retaliation claim the plaintiff must
make a prima facie showing of (1) participation in protected activity under the Fair
Labor Act, (2) an adverse employment action, and (3) a causal link between the
activity and the adverse action.13 See Hagan v. Echostar Satellite, LLC, 529 F.3d
617, 624 (5th Cir. 2008).
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 29 U.S.C. §
215(a)(3); Hagan, 529 F.3d at 624.
For purposes of a Fair Labor Act retaliation claim,
an adverse employment action must include conduct that “a reasonable employee
would have found . . . materially adverse, which in this context means it well might
have dissuaded a reasonable worker from [participating in the protected activity].”
13
To succeed in a Fair Labor Act retaliation claim, a plaintiff need not show that she had a
meritorious Fair Labor Act compensation claim; therefore, Tooker’s failure to show that the trial
court erred in dismissing her Fair Labor Act compensation claim does not affect this court’s
analysis of her Fair Labor Act retaliation claim. See Little v. Technical Specialty Prods.,
LLC, 940 F. Supp. 2d 460, 478 (E.D. Tex. 2013).
14
The trial court also impliedly dismissed the Federal Labor Act retaliation claim to the extent
Tooker relied on a termination of her employment as the adverse employment action, based on a
traditional ground in the Second Motion. Tooker has not challenged this ruling on appeal.
25
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Cantu-Thacker
v. River Oaks, Inc., No. H-08-2109, 2009 WL 1883967, at *4 (S.D. Tex. June 30,
2009). The significance of any given act of retaliation often will depend upon the
particular circumstances. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69;
Cantu-Thacker, 2009 WL 1883967, at *4. It is important to separate “significant
from trivial harms.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68; Cantu-
Thacker, 2009 WL 1883967, at *4.
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
26
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 issue as to whether the overtime-restriction memorandum
“well might” have dissuaded a reasonable worker in this context from making or
supporting a Fair Labor Act compensation claim. See White, 2015 WL 5047955,
at *6–7; Williams, 2010 WL 797145, at *5–6.
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 title 29, section 785.13 of the
Code of Federal Regulations. See 29 C.F.R. 785.13 (stating that “In all such cases
it is the duty of the management to exercise its control and see that the work is not
27
performed if it does not want it to be performed. It cannot sit back and accept the
benefits without compensating for them. The mere promulgation of a rule against
such work is not enough. Management has the power to enforce the rule and must
make every effort to do so.”). This regulation addresses the need for employers to
enforce policies restricting the performance of overtime. See id. This regulation
does not address whether an employer’s increase in the restriction that it places on
overtime work as to a specific employee — coupled with threats of discipline for
“insubordination and/or misconduct” resulting in action “up to and including a
recommendation for termination” — after she files a Fair Labor Act compensation
claim may constitute an adverse employment action in the employee’s Fair Labor
Act retaliation claim. See id. The District also cites an opinion form the United
State Court of Appeals for the Fifth Circuit. See Von Friewalde v. Boening
Aerospace Operations, Inc., 339 Fed. Appx. 448, 459 (5th Cir. 2009). It is an
unpublished opinion and is not precedential. See 5th Cir. R. 47.5.4. Even if it
were, the court did not address any Federal Labor Act retaliation claim; instead, the
court concluded that the employer’s overtime policies may be considered and
given effect in determining whether the employee has made the initial showing
required in a Fair Labor Act compensation claim. See id.
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
28
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 month after Tooker engaged in a
protected activity under the Fair Labor Act. In the memorandum DeLisle noted
Tooker’s protected activity and appeared to indicate that he imposed the additional
restriction on overtime work in response to the protected activity. We thus find a
genuine fact issue as to whether there is a causal link between Tooker’s protected
activity and the adverse employment action. See Mora v. Affiliated Customs
Brokers USA, Inc., No. EP-13-CV-367-KC, 2015 WL 12551108, at *9 (E.D. Tex.
Aug. 26, 2015).
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
29
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.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Wise.
15
We do not express any opinion on the ultimate merits of Fair Labor Act retaliation claim based
on DeLisle’s memorandum.
30