the University of Texas M.D. Anderson Cancer Center v. Maria Valdizan Garcia ( 2012 )

Opinion issued November 15, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00386-CV
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THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,
Appellant
V.
MARIA VALDIZAN-GARCIA, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 1029251
MEMORANDUM OPINION
This is an interlocutory appeal from the trial court’s denial of a motion to
dismiss filed by appellant The University of Texas M.D. Anderson Cancer Center.
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008). We vacate the
trial court’s order denying M.D. Anderson’s plea to the jurisdiction and dismiss the
case.
BACKGROUND
Appellee Maria Valdizan-Garcia went to medical school in Peru and later
became licensed in Texas as a registered nurse and nurse practitioner. She worked
for M.D. Anderson off-and-on in various capacities from 1984 until she resigned
on December 29, 2009. This lawsuit involves only her time working in the Post-
Anesthesia-Care Unit (PACU). She was hired by Marian Thomas, a nursing
supervisor, to work in the PACU in August 2005, and remained in that department
until she left M.D. Anderson.
Valdizan-Garcia alleges that she suffered age discrimination and retaliation
in the PACU until she was constructively discharged. Specifically, she contends
that two supervisors—Marcela Romero and Marian Thomas—“[m]otivated by
considerations of age and retaliation . . . wanted Appellee out of their recovery
room.” According to Valdizan-Garcia, they “terrorized her with false and
pretextual accusations of deficient patient care and threats of professional licensure
complaints.” After she was placed on probation following five write-ups in a
twelve-month period related to deficient patient care, Valdizan-Garcia was told
that one more “negative incident” would result in termination of her employment
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and action against her professional license. At that point, she opted for early
retirement on December 31, 2009.
On March 19, 2010, following an investigation, M.D. Anderson’s Nursing
Peer Review Committee issued a one-page Formal Hearing Report finding that
Valdizan-Garcia “did not exhibit a pattern of poor practice and therefore will not
be reported to the Texas Board of Nursing.” Valdizan-Garcia relies primarily on
that report as evidence that the five complaints about her were groundless and a
pretext for age discrimination and retaliation.
Valdizan-Garcia sued M.D. Anderson under the Health and Safety Code and
the Texas Labor Code. M.D. Anderson filed a plea to the jurisdiction based on
sovereign immunity. It argued that Valdizan-Garcia failed to make a prima facie
case that she was constructively discharged. Alternatively, it argued that the
evidence shows that the conditions that allegedly motivated her resignation were
not discriminatory or retaliatory. The trial court granted M.D. Anderson’s motion
with regard to the Heath and Safety Code claim, but denied it as to the Labor Code
claims. M.D. Anderson then brought this interlocutory appeal.
APPLICABLE LAW
A. Plea to the Jurisdiction
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638
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(Tex. 2004). The plaintiff has the burden to allege facts that affirmatively
demonstrate that the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the jurisdiction
can be utilized to challenge whether the plaintiff has met his burden of alleging
jurisdictional facts, but it can also raise a challenge to the existence of
jurisdictional facts. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226–27 (Tex. 2004).
A trial court’s review of a plea to the jurisdiction challenging the existence
of jurisdictional facts mirrors that of a traditional motion for summary judgment.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);
Miranda, 133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The government
defendant is required to meet the summary judgment standard of proof for its
assertion that the trial court lacks jurisdiction; once the defendant meets its burden,
the plaintiff is then required to show that there is a disputed material fact regarding
the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact
question regarding jurisdiction, the trial court must deny the plea to the jurisdiction
and leave its resolution to the fact finder. Id. at 227–28. On the other hand, if the
evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a matter of law. Garcia, 372
S.W.3d at 635.
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A. Sovereign Immunity and Chapter 21 of the Labor Code
“In a suit against a governmental employer, the [plaintiff’s] prima facie case
implicates both the merits of the claim and the court’s jurisdiction because of the
doctrine of sovereign immunity.” Id. at 635–36. “Sovereign immunity deprives a
trial court of jurisdiction over lawsuits in which the state or certain governmental
units have been sued, unless the state consents to suit.” Id. at 636.
The Legislature has provided a limited waiver of sovereign immunity for
those employment discrimination and retaliation claims falling within Chapter 21
of the Texas Labor Code. See TEX. LAB. CODE ANN. §§ 21.051(1), 21.055 (Vernon
2006) (prohibiting unlawful employment practices by “employer”); § 21.002(8)(D)
(defining “employer” to include a county, municipality, state agency, or state
instrumentality). “While a plaintiff must plead the elements of her statutory cause
of action—here the basic facts that make up the prima facie case—so that the court
can determine whether she has sufficiently alleged a [Chapter 21] violation, [the
plaintiff] will only be required to submit evidence if the defendant presents
evidence negating one of those basic facts.” Garcia, 372 S.W.3d at 637 (citing
Miranda, 133 S.W.3d at 228).
In cases involving only circumstantial evidence of discrimination, Texas
courts look to federal interpretation of analogous federal statutes because one
express purpose of Chapter 21 is to “provide for the execution of the policies of
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Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” TEX.
LAB. CODE ANN. § 21.001(1) (Vernon 2006). In McDonnell Douglas Corporation
v. Green and subsequent decisions, the United States Supreme Court established an
allocation of the burden of production and an order for the presentation of proof in
such cases. See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142, 120
S. Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
05, 93 S. Ct. 1817, 1824–26 (1973). Under this framework, the plaintiff must first
establish a prima facie case of discrimination or retaliation. McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824; Quantum Chem. Corp. v. Toennies, 47 S.W.3d
473, 477 (Tex. 2001); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). “The precise elements of this
showing will vary depending on the allegations.” Quantum, 47 S.W.3d at 477.
Establishment of the prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee. Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). If the
plaintiff is successful, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. McDonnell Douglas,
411 U.S. at 802, 93 S. Ct. at 1824; Quantum, 47 S.W.3d at 477. “The offer of a
legitimate reason eliminates the presumption of discrimination created by the
plaintiff’s prima facie showing.” Quantum, 47 S.W.3d at 477. The burden then
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shifts back to the plaintiff to show that the employer’s reason was a pretext for
discrimination. McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1826–27.
Although intermediate evidentiary burdens shift back and forth under this
framework, the ultimate burden of persuading the trier-of-fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff. Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Burdine, 450 U.S. at 253,
101 S. Ct. at 1093.
ISSUES ON APPEAL
M.D. Anderson argues that the trial court erred in denying its plea to the
jurisdiction on Valdizan-Garcia’s discrimination and retaliation Labor Code
claims.
AGE DISCRIMINATION
Valdizan-Garcia argues that M.D. Anderson “wanted [her] out of their
recovery room because of her age.” According to Valdizan-Garcia, the trial
court’s denial of M.D. Anderson’s plea to the jurisdiction was appropriate because
“there are both allegations and evidence that age was a motivating factor in this
case.” Specifically, she points to her own testimony about “Romero’s open
preference and favoritism for younger nurses.” She further argues:
Appellee has testified to an age-oriented and cliquish
atmosphere in the MDACC PACU. Essentially, the older nurses
looked down on the younger nurses, viewing them as inexperienced
and lazy. Members of one group would not help nurses in the other
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group. Appellee was older, but a relatively new nurse. She did not fit
with either group. As a result of the age-oriented factions in the
PACU, Appellee frequently found herself without appropriate back-up
when she needed help. These age-oriented behaviors left Appellee’s
patients at risk of harm, and exposed Appellee to more of the false and
pretextual accusations of job performance deficiencies that made her
continued employment at MDACC intolerable.
Additionally, Appellee testified specifically to supervisor
Marcela [Romero] and supervisor Alieli Cabali treating her differently
because of her age, primarily through calling her “slow.” She also
testified to ridicule stemming from her slowness in becoming
acclimated to the PYXIS medication dispensing software, ridicule she
did not see meted out to the younger nurses. Slowness has long been
recognized as one of the sentinel stereotypes of illegal age
discrimination in employment decisions. The prevention of
discrimination based on inaccurate stereotyping of older workers is
one of the decided purposes of our age discrimination statutes . . . .
Appellant’s argument that Appellee has not identified similarly
situated comparators does not, in any event, conclusively divest the
court of jurisdiction. A dearth of direct comparator evidence is
certainly no fatal blow to Appellee’s case. There is more than one
way to prove illegal employment discrimination. The prima facie
case method established in McDonnell Douglas was never intended to
be rigid, mechanized, or ritualistic.
M.D. Anderson responds that because Valdizan-Garcia has not proffered any
direct evidence of age discrimination, this case is governed by the burden-shifting
framework of McDonnell Douglas. Under this framework, M.D. Anderson asserts,
Valdizan-Garcia “had the initial burden to establish a prima facie case of
discrimination,” which she did not do. Specifically, M.D. Anderson contends that
Valdizan-Garcia (1) “failed to present any evidence (other than her own subjective
belief) that the reason for any of her allegedly negative treatment by M.D.
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Anderson was motivated by age discrimination or retaliation,” and (2) “did not
sustain her prima facie burden that others similarly situated were treated
differently.”
A. Applicable Law
Under the Texas Commission on Human Rights Act, an employer may not
discriminate against or discharge an employee based on “race, color, disability,
religion, sex, national origin, or age.” TEX. LAB. CODE Ann. § 21.051 (Vernon
2006). “To establish a violation of the Act, a plaintiff must show that he or she
was (1) a member of the class protected by the Act, (2) qualified for his or her
employment position, (3) terminated by the employer, and (4) treated less
favorably than similarly situated members of the opposing class.” Autozone, Inc.
v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v.
Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)); see Reeves, 530 U.S. at 142, 120 S.
Ct. at 2106 (2000). The plaintiff bears the burden of proving that age was a
motivating factor in the defendant’s alleged discrimination. Wal–Mart Stores, Inc.
v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Quantum, 47 S.W.3d at 479.
B. Analysis
Because the parties disagree about their respective pleadings and evidentiary
burdens, we begin by addressing Valdizan-Garcia’s argument that she does not
need to identify “similarly situated comparators.” According to Valdizan-Garcia,
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“[t]here is more than one way to prove illegal employment discrimination” and the
“prima facie case method established in McDonnell Douglas was never intended to
be rigid, mechanized, or ritualistic.” Earlier this year, the Texas Supreme Court
addressed this very issue when faced with the question of how broadly to interpret
the requirement that a plaintiff show he or she was “treated less favorably than
similarly situated members of the opposing class” in making a prima facie case
under McDonnell Douglas. Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 634 (Tex. 2012). It began by clarifying that the two methods of
proving age discrimination are (1) with “direct evidence of what the defendant did
and said” or (2) “the burden-shifting mechanism of McDonnell Douglas.” Id. The
court acknowledged that “the precise elements of this [McDonnell Douglas prima
facie] showing will vary depending on the circumstances,” but further admonished
that “despite the flexible nature of the prima facie case, this Court has determined
it is important to give concrete guidelines on the basic facts necessary to establish a
presumption of discrimination.” Id. at 634, 640. The court explained that while
the precise elements of a plaintiff’s case would differ depending on whether the
case involves an employee who was replaced by another worker, the prima facie
case nonetheless requires “that each element . . . have a ‘logical connection’ to the
illegal discrimination for which it establishes a legally mandatory, rebuttable
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presumption.” Id. at 641 (citing O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 311–12, 116 S. Ct. 1307, 1310 (1996)).
Valdizan-Garcia does not claim that she was replaced with a younger
worker, and it does not appear from the record evidence that the PACU nurse
staffing lends itself to such analysis.1 That does not mean, however, that Valdizan-
Garcia need not establish a logical connection between her age and M.D.
Anderson’s alleged discriminatory actions to demonstrate that she was “treated less
favorably than similarly situated members of the opposing class.” Autozone, Inc.,
272 S.W.3d at 592. While Valdizan-Garcia’s petition makes general references to
perceived differences between how she and “significantly younger” nurses were
treated, she does not claim that younger nurses engaged in similar patient treatment
without being cited for deficient treatment, nor does she claim that she was
disciplined more severely than younger nurses for similar infractions. In fact, she
acknowledges in her brief that she is not relying on any comparators in claiming
that she was unfairly disciplined. That is significant, because it is that discipline
that she identifies as the illegal discriminatory actions leading to her alleged
1
The record does reflect the following statistics about the ages of the PACU nurses
as of June 4, 2010, about five months after Valdizan-Garcia retired.
20–29 23.89%
30–39 30.09%
40–49 26.55%
50–59 16.81%
60+ 2.65%
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constructive discharge. Under McDonnell Douglas, she cannot establish a prima
facie case of discrimination without evidence, or even an allegation, that younger
nurses were disciplined differently for deficient patient care.
Valdizan-Garcia urges us to accept M.D. Anderson’s nursing Peer Review
Committee’s ultimate decision not to report her to the state’s licensing agency as
evidence that “false and pretextual accusations of patient care deficiencies” were
motivated by age discrimination. But the decision to not report her to the state
does not mean that the patient care leading to the complaints was not deficient, nor
does it mean that that she was written up for age-related reasons or that younger
nurses were disciplined differently. The fact that the peer review committee found
her write-ups did not warrant reporting to the licensing agency does not mean that
the write-ups were frivolous or pretexual.
Valdizan-Garcia did not offer any direct evidence of age discrimination.
Because she also failed to make out a prima facie case under the framework of
McDonnell Douglas, the trial court erred in denying M.D. Anderson’s plea to the
jurisdiction on her age discrimination claim. Garcia, 372 S.W.3d at 635.
RETALIATION
Valdizan-Garcia argues that her defense of another older nurse in the face of
“Romero’s withering dismissal is entitled to status as protected conduct” supports
her retaliation claim. She also contends a fair inference of retaliation can be drawn
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from her attempting to discuss concerns with some of the younger nurses, only to
be told, “Don’t make yourself a victim.” She asserts that management was
unreceptive to her “reporting violations involving patient safety and nurse
staffing.” Finally, she contends that Romero retaliated by “threatening her with
false and prextual professional licensure complaints.”
In response, M.D. Anderson points out that Valdizan-Garcia’s allegations in
her brief do not match the trial court evidence she cites. She did not argue in the
trial court that she “spoke out in opposition to” age discrimination against another
nurse. M.D. Anderson argues that in fact she did not engage in any protected
conduct, and that she has presented nothing other than “a conclusory denial of
M.D. Anderson’s legitimate and reasonable response to reports involving patient
safety.” Absent evidence of protected conduct or a causal connection between that
activity and M.D. Anderson’s writing her up for legitimate patient safety incidents,
M.D. Anderson argues that the trial court should have granted its plea to the
jurisdiction on Valdizan-Gacia’s retaliation claim.
A. Applicable Law
In a retaliation action brought under Section 21.055 of the Texas Labor
Code, the plaintiff is required to make a prima facie showing that: (1) he or she
engaged in a protected activity; (2) an adverse employment action occurred; and
(3) a causal link existed between the protected activity and the adverse action.
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Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied); Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 730–
31 (Tex. App.—Fort Worth 2006, no pet.). “Protected activities consist of (1)
opposing a discriminatory practice; (2) making or filing a charge; (3) filing a
complaint; or (4) testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing.” Dias, 214 S.W.3d at 676; see TEX. LAB.
CODE ANN. § 21.055 (Vernon 2006). “A plaintiff asserting a retaliation claim must
establish that, in the absence of his protected activity, the employer’s prohibited
conduct would not have occurred when it did.” Chandler v. CSC Applied Techs.,
L.L.C., No. 01-10-00667-CV, ___ S.W.3d ___, __, 2012 WL 2924396, at *17
(Tex. App.—Houston [1st Dist.] July 12, 2012, no pet. h.) (citing Herbert v. City of
Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.)). “Thus,
the plaintiff must establish a ‘but for’ causal nexus between the protected activity
and the prohibited conduct.” Id. “The plaintiff is not required to establish that the
protected activity was the sole cause of the employer's prohibited conduct.” Id.
B. Analysis
We agree with M.D. Anderson that there is no evidence that Valdizan-
Garcia’s citations for deficient patient care were related to any retaliatory motive.
See, e.g., Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort
Worth 2006, no pet.) (plaintiff’s conclusory allegations of retaliatory
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discrimination were insufficient to support retaliation claim, especially in light of
defendant’s asserted legitimate reasons for employment actions). Here, Valdizan-
Garcia’s specific retaliation allegations are that she suffered unfounded complaints
about her care of patients resulting in referral to the peer-review committee (1)
“after [she] began reporting violations involving patient safety and nurse staffing,”
and (2) after she stood up for another nurse who was allegedly discriminated
against because of her age.
M.D. Anderson provided detailed evidence and documentation about the
patient-care incidents that led up to Valdizan-Garcia’s being placed on “Final
Notice” and her referral to the peer-review committee. In other words, M.D.
Anderson met its burden to demonstrate a non-retaliatory reason for its disciplining
Valdizan-Garcia. In response, Valdizan-Garcia does not dispute the factual basis
of the hospital’s write-ups (i.e., that she provided deficient patient care), nor does
she provide any evidence that she would not have been cited on these occasions
but for her alleged complaints about patient care and staffing and the treatment of
another nurse in an age-protected class. Instead, she argues that there is a “relaxed
deterrence standard of causation in retaliation, as contrasted to the ‘but for’
causation test in disparate treatment discrimination claims.”
The relaxed causation standard advocated by Valdizan-Garcia is not
supported by Texas law. Our precedent requires a plaintiff claiming retaliation to
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demonstrate he or she would not have suffered an adverse employment action but-
for the exercise of a protected activity. E.g., Chandler, __ S.W.3d at __, 2012 WL
2924396, at *17. She has not done so. A plaintiff’s subjective beliefs of
retaliation alone are not evidence of causation. Id. at *16. Even if Valdizan-
Garcia’s vague references to complaints made to PACU management about patient
safety or treatment of another nurse amounted to protected activity, the trial court
should have granted M.D. Anderson’s plea to the jurisdiction on Valdizan-Garcia’s
retaliation claim because Valdizan-Garcia has not alleged, or provided evidence,
that these complaints were the cause of her write-ups for deficient patient care.
CONCLUSION
We vacate the trial court’s judgment denying M.D. Anderson’s plea to the
jurisdiction and dismiss the case. See TEX. R. APP. P. 43.2(e).
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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