Patti Whitmire Carlton and Pamela Reed v. Houston Community College ( 2012 )

Opinion issued August 23, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00249-CV
———————————
PATTI WHITMIRE CARLTON AND PAMELA REED, Appellants
V.
HOUSTON COMMUNITY COLLEGE, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2009-25125
MEMORANDUM OPINION
Plaintiffs-appellants Patti Whitmire Carlton and Pamela Reed are both
former employees of defendant-appellee Houston Community College (HCC).
Their claims here arise primarily from their complaints about alleged sexual
harassment by HCC’s Interim Chancellor, Norm Nielsen, and subsequent
retaliation by HCC after they reported that harassment. The trial court granted
summary judgment in HCC’s favor on plaintiffs’ retaliation claims, and the
plaintiffs appealed here. We affirm.
BACKGROUND
A. Parties
HCC is a public college that is governed by an elected board of trustees.
Christopher Oliver has served as a trustee since 1995, and served as chairman of
the board in 2007. In 2006, when HCC’s chancellor Bruce Leslie resigned, the
board appointed Dr. Norm Nielsen as an interim chancellor pending a national
search process to replace Leslie. The board eventually selected Dr. Mary Spangler
for the chancellor position, and she took over in that role on March 5, 2007.
During the relevant time periods, Pamela Reed and Patti Carlton worked in
HCC’s Contract Training/Continuing Education department (CTCE). “Continuing
Education” refers to non-credit classes offered to the community, and “Contract
Training” refers to training programs provided to a particular company.
B. Plaintiffs’ Claims and HCC’s Motions for Summary Judgment
Both Plaintiffs filed charges of discrimination against HCC with the Equal
Employment Opportunity Commission on June 13, 2007. HCC learned of the
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EEOC charges on June 29, 2007. Plaintiffs filed a federal lawsuit in October 2008,
and filed this suit April 21, 2009.
In this state lawsuit, Plaintiffs sued HCC for (1) “sex discrimination and
retaliation in violation of the Texas Commission on Human Rights Act. TEX. LAB.
CODE §21.051 (“TCHRA”),” (2) “hostile environment sexual harassment in
violation of §21.051 of the TCHRA,” (3) “retaliation in violation of § 21.055 of the
TCHRA,” (4) breach of employment contract, (5) invasion of privacy, and (6)
intentional infliction of emotional distress. HCC filed a general denial and special
exceptions. HCC also filed a plea to the jurisdiction, arguing that—as a
community college—it has absolute immunity from tort liability. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.051 (Vernon 2011).
Plaintiffs later nonsuited their tort claims, as well as their breach-of-contract
claim, and any attorneys’ fees claim that is “derivative of a breach of contract
cause of action.” That same day, the trial court granted HCC’s plea to the
jurisdiction, expressly retaining jurisdiction only over “the retaliation claims under
the Texas Commission on Human Rights Act” and ordering that “all other claims
alleged in Plaintiff’s petition and not nonsuited are dismissed with prejudice.”
C. The Underlying Dispute
The dispute giving rise to Plaintiffs’ EEOC complaints and lawsuits centers
primarily around Nielsen’s conduct during his time as interim chancellor. HCC’s
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summary-judgment evidence established that, when Nielsen took over in that role,
HCC’s board of trustees charged him with overhauling the CTCE department. His
experience and success in developing a national CTCE program during his 20-year
tenure as president of Kirkwood Community College in Iowa was one of the main
reasons the board actively recruited him to the interim position.
Nielsen assigned Dr. Charles Cook, Vice Chancellor of Instruction, to
spearhead an internal assessment of CTCE. Cook already headed the CTCE
division—a position assigned to him by Leslie before he retired—and he already
supervised both Carlton and Reed. Cook in turn asked Larry Markey, Director of
Grants and Special Projects, to lead the internal CTCE assessment.
1. Reed’s March 29, 2007 Written Statement
In conjunction with her internal complaint at HCC that eventually led to this
lawsuit, Reed gave a written statement to HCC in which she expressed her view of
Markey as hostile, incompetent, and ignorant of matters relevant and important to
the CTCE department. She specifically complained of an October 6, 2006 meeting
at which she was “yelled at and humiliated in front of other Directors of CTCE by
Larry Markey who was conducting the Directors’ meeting; he agrees that he knows
very little of CTCE.” In Reed’s view, Cook could not actually make her report to
Markey because they were the same grade level. Her written statement included
several examples of Markey’s decisions and behavior she disagrees with that she
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“mention[s] . . . simply to set the backdrop for the lack of knowledge of CTCE by
Markey, his hateful and hostile temperament, as well as having alcohol on his
breath most days and the support he gets from Cook to do whatever he wants
regardless of the impact on others and regardless of any corruptive activities.”
During the week of October 23–27, 2006, Reed learned that the “Plan” for
restructuring CTCE had been completed by Cook and Markey and forwarded to
Nielsen for presentation to HCC’s Executive Team on Monday morning, October
20, 2006. After trying for about eight months to secure a meeting with Cook to
complain about having “spent the better part of a year utilizing about 60% of [her]
time ‘cleaning up’ behind Markey’s ‘oversight,’” Reed was finally able to meet
with Cook that same week of October 23–27, 2006. There, Reed told Cook that
Markey was “hostile, attacking, rude” and was “making major attempts at
continued illegal activities and from what [she] could smell, drinking even more.”
Reed was dismayed when Cook told her that Markey was given oversight of CTCE
because he “gets things done.”
a. Reed’s first meeting with Nielson
Dissatisfied with the outcome of her meeting with Cook, Reed then sought a
private meeting with Nielsen on October 27, 2006. She took her resume to the
meeting and introduced herself. She “explained [her] concerns about the [CTCE
reorganization] Plan being presented to the Executive Team and being adopted
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without any perusal by the CTCE Directors of the System Office of CTCE,” and
Nielsen “seemed to listen to [her] concerns and at the closing of [the] meeting
indicated he was not going to move forward with it yet, and that he too had many
concerns with it and thanked [her] for coming forward.” At that meeting Reed also
“explained to him [her] frustration with Markey and Cook and the abusive
behaviors by Markey and that [HCC’s] HR Generalist and our head of EEO had
both said to [her] that ‘there is no such thing as a hostile work environment unless
it involves sexual harassment.’”
When Reed told Nielsen that she did not want to quit “in spite of all of this
as I did love my job and also am not that far from retirement age,” Nielsen
responded that he thought she was “about 40” and that he “had noticed what a
great body [she] has.” Neilsen also told her he really wanted to continue picking
her brain about CTCE issues, but suggested they meet again off campus because
Nielsen “would prefer Cook or Markey not know.” Meeting off campus made
sense to Reed “since Markey and Cook were keeping all the information to
themselves and not allowing CTCE Directors any knowledge of what they had put
forth to [Nielsen] and Markey took great pleasure in smirking at all of us that he
knew what was in the plan and we did not.” At Nielson’s request, they exchanged
home and cell phone numbers “so he could reach [her] on a non HCC phone if
needed.” Reed believed that he “was truly interested in getting information from a
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long time CTCE person who had been at one of the colleges and at the system and
who knew many of the hidden issues.” Reed ran into Cook immediately after this
first meeting with Nielsen, and Reed reiterated to Cook her view that Markey was
hostile and engaged in illegal activity.
b. Reed’s second meeting with Nielson
According to Reed’s written statement, at Nielson’s suggestion she met him
at Ibiza Restaurant on November 2, 2006 to “continue [their] conversation
regarding the restructuring of CRCE.” Reed secretly recorded their meeting, she
explained, “as I was still feeling a bit uneasy about his motives since he had made
remarks about my body and insisted on picking me up at my house for our off
campus meeting even though I insisted that I meet him at the restaurant and did not
want him to pick me up at my home.” During the course of the dinner, Nielson
made several suggestive comments, asking if he was too old for Reed, and
commenting on her great body. He also discussed the “frequency of the average
couple’s sex life and began expounding upon statistics he had read.” Reed
attempted to bring the subject back to CTCE. At the end of the evening, Nielson
requested another meeting “to continue the CTCE reorganization discussions.”
c. Reed’s third meeting with Nielson
Reed met with Nielson again on November 15, 2006 at Bonnie’s Restaurant.
At that dinner, they discussed the three top positions to be created in CTCE.
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Nielson recommended that Reed apply for “Executive Director of Continuing
Education System.” He asked her questions about her current responsibilities so he
could incorporate those into the job description for that position. He then
suggested that Reed persuade one of her co-workers, Madeline, to apply for the
position of “Executive Director of Corporate Training” so that they would not be in
the running for the same position. Finally, Nielson expressed his preference that
the third position, “Associate Vice Chancellor of CTCE” position be an “external-
only” posting and explained that he had “a couple of highly qualified people in
mind.”
During their dinner, Nielson inquired whether Reed missed him, and
referenced her great body. Reed explained in her written statement that, if he had
“not been someone with power and influence over [her] job and impending
promotion, [she] would have made far more harsh remarks and shut him down the
first time he said anything.” She thought the better course of action was to ignore
and keep him fended off because that would be beneficial to the restructuring, her
promotion, and the college.
d. Reed’s fourth meeting with Nielson
After their dinner at Bonnie’s, Reed made the assumption that Nielson had
given up pursuing her, which reduced their contact. On December 7, 2006, she
went to his office to express her continued concerns about corruption within CTCE
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by Markey and Cook. He gave her the same response he had given previously: he
was only at the school for a short period of time to do specific things and her
complaints about corruption were not part of his area of concern.
e. The CTCE job postings
Later, when three jobs were posted, Reed applied for both Director of
Continuing Education and Associate Vice Chancellor of CTCE. When Reed went
to the first interview for the Associate Vice Chancellor position, she was shocked
to see the screening committee members. At their dinners, Nielson had asked Reed
for a list of her enemies that should be kept off the selection committees for the
positions to increase her chances. She told him it “would help” if Markey, Cook,
and Maya Durnovo (Dean of Workforce at NW College) were not on the
committees because “they had all been a part of much of the corruption” Reed had
been reporting over time. It was clear to her, when she saw the committees, that
Nielson had instead taken suggestions from Cook and Markey. Reed’s statement
identifies one committee member who she had suggested, and criticizes all the
others as being friends with Cook or with Durnovo.
According to Reed, neither of the internal HCC candidates who became
finalists for the Associate Vice Chancellor position had as much experience as
Reed or her co-plaintiff, Carlton. HCC eventually gave the Associate Vice
Chancellor position to Dan Seymour, whose “resume reflects no experience in
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CTCE, but rather he is an academic and a consultant.” By Seymour’s own
admission, Reed pointed out, he had worked with both Nielson and Spangler
(HCC’s new Chancellor), and it is thus “crystal clear that Nielsen and Spangler
decided to bring in someone they knew in the past rather than someone who was
truly qualified.” In fact, the position of Associate Vice Chancellor had been
reopened after the posting closed, and Reed believed that was because “after Mary
Spangler was hired in mid-December even though she was not to start until
February or ultimately March, they both decided they wanted Dan Seymour to
apply, especially since Nielsen had already said that he had external people in
mind.”
Reed also interviewed for the Director of Continuing Education position.
After initially being informed that she did not make it as a finalist for that position,
she called Nielsen on January 31, 2007 and complained again that she had “major
concerns about the input from Cook and others to the committee since it was
obvious he had put people on the committee based on Cook’s preferences.”
According to Reed, Nielsen was rude in response, and “reiterated that he had no
interest or care in who got the jobs as he was leaving.”
f. Reed’s sexual harassment allegations
During their January 31, 2007 call, Reed informed Nielsen that her
supervisor, Patti Carlton, was in her office and that she was putting Nielsen on
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notice that she was disclosing to Carlton his “sexual harassment of her over the
past months and of his retaliation utilizing the selection committee he chose to
ensure or most likely prevent a promotion” for her. Reed’s written statement also
asserts that Carlton disclosed to Reed on that same day that she and another
woman at HCC had been sexually harassed by Nielsen.
2. Carlton’s March 29, 2007 Written Statement
Carlton also provided a written statement in conjunction with her internal
complaint that eventually gave rise to this lawsuit. She devoted some of that
statement to complaints about how her position and pay grade had been handled
before Nielson was hired as Interim Chancellor. The remainder of her statement,
“entitled harassment and discrimination,” dealt with Nielson’s time at HCC.
a. Carlton’s first meeting with Nielson
On August 22, 2006, Carlton first met with Nielson, and he told her that he
planned to reorganize CTCE, “to centralize the operation and have it managed
from the system in place of the current structure that was in operation at each
college,” and to “create new positions of Associate Vice Chancellor of [CTCE], as
well as Executive Director of Continuing Education and an Executive Director of
Contract Training.” When Carlton indicated her interest in the Associate Vice
Chancellor position, Nielson responded that he would “only be advertising that
position externally” because he wanted “someone with more potential for
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longevity and less baggage.” When Carlton retorted that she did not “have one
foot in the grave,” he responded that “I’m surprised that you are not already
retired. You should try it. I’m enjoying the heck out of it.” Carlton took this
statement to be discriminatory about her age. At one point in the meeting, when
she inquired “What will happen to me?,” Nielson “moved his hand across the table
near [hers] and said ‘I don’t know. We will have to work on that. Leave it to
me.’”
b. Carlton’s second meeting with Nielson
On October 31, 2006, Carlton emailed Cook and Nielsen outlining her “deep
concern that [she] had been excluded from all CTCE activities and planning
associated with the reorganization of CTCE.” On January 5, 2007, Carlton and
Nielson met again at Carlton’s request to discuss her “title, grade, and CTCE
reorganization concerns.” She had applied for the Associate Vice Chancellor of
CTCE position but, in light of comments Nielsen had made about wanting to hire
an outside candidate, she brought to Nielsen a proposal for upgrading her pay
grade status and title in exchange for withdrawing her application for the Vice
Chancellor position.
During that meeting, Nielsen leaned across the table toward Carlton, smiled,
and said, “How is your husband doing?” She responded, “He’s fine.” Nielsen
added, “He’s a lot older than you, isn’t he?” When she explained, “Well, yes, he
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is, but he is still working at M.D. Anderson,” he said “Well if anything ever
happens to him, I hope that I will still be in the running.” This comment upset
Carlton, especially given that Nielsen was aware that her husband had been
seriously ill with an inflamed cranial artery and a back injury. In response, she
reiterated that she was offering a proposal to upgrade her position in exchange for
withdrawing her Associate Vice Chancellor application “since you have already
told me that I am too old and that you want someone with more potential for
longevity.” Nielsen smiled and said, “Why you don’t need to withdraw. You’re a
pretty young thing, and you are more than qualified. That was a poor choice of
words and I apologize. So, go ahead and sue me.” He “then laughed and
mentioned some kind of grievance that had been filed against him when he worked
at Kirkwood.” At the end of the meeting, Nielsen asked Carlton to email to him
her proposed new areas of responsibility for her position. She did so and, after he
responded with “[t]hanks for the input,” she never heard from him again about her
pay grade or position.
c. Carlton’s application and interview for the Associate Vice
Chancellor position
Carlton was interviewed for the Associate Vice Chancellor of CTCE, but
was not selected as a finalist. She considered the interview a mockery because she
believed that Nielsen had already selected someone else. That time period was
very stressful, and Carlton had “found it necessary to visit with [her] primary
13
physician due to concern about a spike in blood pressure readings.” Based on
information she heard through the grapevine, Carlton believes the committee may
not have received all her application materials demonstrating her qualifications,
and that Nielson gave the committee instructions that made it difficult for it to
consider internal candidates like herself.
d. Carlton’s concern about abuse of herself and others
Carlton’s written statement expressed concern about Nielsen’s behavior
being offensive, and complained about an Accounts Payable supervisor’s sexual
harassment of her grandson and about Nielsen’s sexual harassment of Reed and
another employee, Keeney Harrington.
e. Carlton’s internal complaint to HCC
Carlton’s written statement references a February 5, 2007 letter to the HCC
Board Chair, Christopher Oliver, reporting Nielsen’s sexual harassment of senior
female administrators of the college. Carlton did not like the first two investigators
proposed by the college, as they had ties to HCC or its lawyers. She expressed
dismay that Nielsen was not removed pending the investigation.
3. Allegations in Plaintiffs’ Petition
Plaintiffs’ petition lifts largely from their written statements summarized
above, and contains additional allegations related to HCC’s investigation.
Specifically, the petition alleges that Harrington (not a party to this suit), perceived
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to be the leader of the three women, “was fired on trumped up charges.” Then, the
petition alleges, “Spangler acted to further retaliate” against Carlton and Reed,
burying them “beneath denied promotions and restructuring, a corporate
euphemism for retaliation.” Seymour, who was hired as Associate Vice
Chancellor of CTCE, is alleged to have given Reed busy work, and “dumbed
down” her job.
Plaintiffs’ petition also complains that Reed’s and Carlton’s offices were
vandalized, with Reed’s trashcan being sliced into strips and Carlton’s display of
family photos being placed down in disarray. Reed and Carlton viewed this as a
threat.
Plaintiffs’ petition also complains of “the next attempt to deter” Reed, which
it describes as “Board of Trustee Chair, Christopher Oliver, standing near where
Reed was standing in a hallway and making very sexual rude ‘animal humping’
sounds at her.” “When Reed looked at him he laughed at her.” The petition goes
on to allege that, “Later, Reed had to pass by Oliver and another male (an attorney
for the HCCS’ Board of Trustees) who had reportedly been in the restroom when
Oliver was waiting in the hallway and making the obscene sounds at Reed. When
Reed passed by the two of them, the men looked at her and laughed.” According
to plaintiffs, when Reed complained about this incident, HCC performed an
unsatisfactory investigation designed to whitewash Oliver’s misconduct.
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On January 20, 2007, Reed was taken to the hospital with high blood
pressure after “she had been threatened and verbally assaulted by Daniel Seymour
in her office.” According to the petition, this “hypertensive episode resulted in a
disabling ischemic stroke verified by [her] neurologist.” Ultimately, plaintiff’s
petition asserts that “[b]oth Carlton and Reed were advised for their health to
involuntarily resign.”
In support of Plaintiffs’ retaliation complaint (the only live claim at the
summary-judgment stage), the petition alleges:
Plaintiff timely filed a charge of sex discrimination with the EEOC
and the TCHR. Subsequent to the filing of this charge, Plaintiff’s
supervisors and co-workers retaliated against Plaintiffs for taking such
action. Despite Plaintiffs’ complaints regarding such retaliation,
Defendant took no action to curtail or stop the retaliation. The
retaliatory conduct continued until Plaintiffs were constructively
discharged from their employment with Defendant.
D. HCC’s Motions for Summary Judgment
HCC filed summary-judgment motions challenging Reed’s and Carlton’s
claims on both no-evidence and traditional grounds. On no-evidence grounds, it
challenged the lack of evidence of an adverse employment action for having
complained about Nielsen. On traditional grounds, it argues that its evidence
demonstrates that there is no genuine issue of material fact on the plaintiffs’
retaliation claims, as any “decisions that HCC made were legitimate and non-
retaliatory, and [Plaintiffs] ha[ve] not shown that HCC’s reasons are a pretext for
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unlawful retaliation.” HCC’s summary judgment evidence laid out (1) the timeline
and process for its employment decisions, and (2) its process of HCC’s
investigation of Plaintiffs’ complaints.
1. HCC’s Employment Decisions
On December 1, 2006, Nielsen distributed a memorandum to all employees
announcing details of the proposed CTCE reorganization. This structure was the
result of a study and proposal Nielsen commissioned from an outside organization.
Later the same week, the newly created Associate Vice Chancellor of CTCE
position was posted, and 71 people eventually applied, including Carlton and Reed.
The application deadline for the Associate Vice Chancellor position was
early January 2007. HCC put together a six-person committee to screen the
Associate Vice Chancellor applications. Don Washington, the Human Resources’
Department Director of Employment, and Willie Williams, Human Resources’
Associate Vice Chancellor, both assisted Nielsen in selecting members of the
committee, with a goal of ensuring that the committee was diverse and included
individuals with knowledge of the relevant fields. Dr. Orfelina Garza, President of
the Southeast College, was selected as the chair of the committee. The other five
members were: Johnny Sessums, Interim Deal of Workforce Development; Van
O’Neal, Department of Transportation Chair; Evelyn McClain, Training Specialist;
Gil Ontiveros, Adult High School & Alternative Education Supervisor; and Celia
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Gee, Director of Administrative Services. These committee members were
announced in early December 2006.
Nielsen charged the committee with interviewing and ranking candidates,
taking into consideration prior experience and whether a candidate would be a
good fit for HCC (including getting along well with other leadership) and giving
particular weight to candidates who were creative and entrepreneurial. Nielsen did
not suggest particular candidates, nor did he express a preference for internal or
external candidates.
Following a committee screening process in January 2007, Carlton’s
application ranked 10th and Reed’s ranked 13th. The committee then interviewed
the candidates, with all candidates being asked the same questions. After this first
round of interviews, Carlton dropped to 11th and Reed moved up to 6th. Neither
Reed nor Carlton proceeded to the next level because only the top five were
selected as finalists.
Reed, but not Carlson, also applied for a newly created Director of
Continuing Education. These interviews took place on January 30, 2007 before the
same six-person committee. Initially, Reed did not advance to the finalist stage.
HCC’s director of employment and the screening committee chair expressed their
concern to Nielsen that the pool of finalists was too small because two of the three
finalists were also finalists for the Associate Vice Chancellor of CTCE position.
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On January 30, 2007, committee member Evelyn McClain thus notified the
screening committee via email that the pool was expanded. That expansion
resulted in Reed’s inclusion on the list of finalists. 1 On February 2, 2007,
however, the screening process for the newly created director positions was put on
hold because several of the Associate Vice Chancellor applicants had expressed a
desire, if selected for that position, to be involved in the process of selecting the
directors that he or she would supervise.
The Associate Vice Chancellor position was offered to Daniel Seymour, the
top-ranked candidate after interviews. Seymour had worked with Spangler several
years earlier at a community college in California. Seymour is a Fulbright Scholar,
had authored numerous books relating to higher education, and had 12 years’
experience in senior-level positions in higher education. Members of the
committee were impressed with his interview and felt he had a good grasp of the
needs of the position. The members of the committee did not know about Reed’s
or Carlton’s sexual harassment allegations against Nielsen, nor were they pressured
to rank any candidate a certain way.
Nielson’s last day at HCC was February 26, 2007. Seymour began work in
the Associate Vice Chancellor of CTCE position on March 1, 2007, and Spangler
1
Reed had not yet been notified about the expanded pool when she called Reed on
January 31, 2007 to complain about not advancing and to tell him she was filing a
sexual harassment complaint.
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took over as HCC Chancellor several days later. On March 23, 2007, Spangler
directed Seymour to prepare a final plan for a reorganization of the CTCE
department. Seymour set about drafting that plan by reviewing prior assessments
and reports, attending meetings, and speaking with numerous personnel in CTCE,
including Reed and Carlton. On May 4, Seymour unveiled the reorganization plan.
As part of this reorganization, new positions were created and some existing
positions were modified. Reed’s and Carlton’s responsibilities, while remaining
largely the same, were revised in some areas to reflect the new organizational chart
and work flow. Both Reed’s and Carlton’s salaries remained the same.
2. HCC’s Investigation of Plaintiffs’ Complaints
Oliver received Carlton’s letter complaining of Nielsen’s harassment on
February 8, 2007, which he immediately forwarded to the Board’s legal counsel to
ensure that he followed all the proper procedures and laws. He notified Nielsen
about the complaint and told him not to contact plaintiffs or make any decisions
affecting them in his last few weeks at HCC. Oliver also called Spangler to inform
her about the complaint against Nielsen and asked her if she could assume her
duties at HCC early to minimize disruption in light of these developments.
On February 12, 2007, Oliver notified Plaintiffs that an investigation had
begun. In that notification, he asked that any concerns about retaliation be brought
to his attention, and he emphasized HCC’s commitment to conducting an impartial
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investigation. HCC’s in-house counsel, Miles LeBlanc, initially engaged Elizabeth
Kroger, a board-certified employment lawyer, to conduct the investigation, and he
contacted plaintiffs’ lawyer on February 14, 2007 to facilitate interviews.
Plaintiffs objected to Kroger, and so LeBlanc hired Richard Hightower, a mediator.
The plaintiffs objected to Hightower, so LeBlanc next hired Wendy Sicola, an
employment investigator. She had never done work for HCC, and did not know
the plaintiffs, Nielsen, or the lawyers.
Plaintiffs delayed almost a month in providing the written statement
outlining their complaints that HCC requested. Over a period of two months,
LeBlanc and Sicola unsuccessfully tried to schedule interviews with the plaintiffs.
Sicola finally notified plaintiffs’ lawyers that the investigation would conclude on
May 11, 2007 with or without their interviews. She did not receive a response.
After she received a facsimile from plaintiffs’ lawyer in June, she reopened the
investigation and again offered to interview the plaintiffs. Again there was no
response, and she closed the investigation.
Sicola prepared detailed investigation reports based on 16 interviews. The
reports provide a summary of those interviews, along with all the documentary
evidence reviewed, and contains the following conclusions:
a. Pamela Reed
1. The investigation revealed that Nielsen complimented Reed’s
appearance and engaged in conversation of a sexual nature on at
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least three occasions. The evidence is insufficient to determine if
Nielsen tried to pressure Reed into a sexual relationship.
2. The investigation revealed that Nielsen and Reed talked at length
about the CT/CE program, Reed’s concerns about Markey and
Cook, Reed’s ideas about how to improve the program, and Reed’s
ideas about an appropriate position for her within the new
program.
3. The investigation revealed that Nielsen did not influence the
screening committee’s decision on the finalist for the [Associate
Vice Chancellor of] CT/CE and Directors positions.
4. The investigation revealed that Nielsen did expand the committee’s
list of Director finalists from three to six, which included Reed’s
name, and that he gave Reed high recommendations when
speaking to Seymour about her. The investigation also revealed
that Nielsen did not make any negative comments about Reed to
any of the witnesses involved. The evidence was insufficient to
conclude if Nielsen promised Reed a position in the new structure.
5. The investigation revealed that Spangler gave Seymour
instructions to abandon Nielsen’s prior instructions to proceed with
the Director positions, and directed Seymour to make his own
assessment before proceeding.
6. The investigation revealed Nielsen did not influence Seymour on
how to structure the new CT/CE organization and did not
recommend Seymour to hire or not hire anyone for a specific
position. The investigation revealed Seymour has not
communicated with Nielson since March 1, 2007.
7. The investigation revealed that when allegations were made
against Nielsen, the Board sought legal advice on how to proceed.
This was the first time sexual harassment charges had been made
against a Chancellor, and therefore, not comparable to other claims
which were handled by HR. Spangler is creating a
method/position to handle all complaints in a consistent manner.
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b. Patti Whitmire Carlton
1. The investigation revealed that Nielsen told Carlton something to
the effect that he wanted the [Associate Vice Chancellor]-CT/CE
to have new ideas and no “baggage.” He later regretted making
the comment because it could appear to be inappropriately related
to Carlton’s age. Nielsen apologized to Carlton for making the
comment.
2. The investigation revealed that Nielsen did believe that an external
candidate would likely be the best fit for the new AVC position;
however, all witnesses agreed that Nielsen did not tell anyone to
only focus on external candidates. The evidence indicated that
Nielson did not have a particular individual in mind for the AVC
position before he interviewed Daniel Seymour.
3. The evidence was insufficient to conclude if Nielsen made a
comment about Carlton’s physical appearance.
4. The evidence was insufficient to conclude if Nielsen made
inappropriate innuendoes about a potential sexual relationship
between Nielsen and Carlton. The investigation revealed that
Nielsen asked Carlton about her husband’s health more than once.
5. The investigation revealed that when allegations were made
against Nielsen, the Board sought legal advice on how to proceed.
This was the first time sexual harassment charges had been made
against a Chancellor, and therefore, not comparable to other claims
which were handled by HR. Spangler is creating a
method/position to handle all complaints in a consistent manner.
E. The Trial Court’s Judgment
The trial court granted summary judgment on Plaintiffs’ retaliation claims.
Plaintiffs filed a motion for new trial, attaching new affidavits as evidence. The
trial court denied the motion, and Plaintiffs timely appealed.
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ISSUE ON APPEAL
In one issue, Plaintiffs argue that the “trial court erred in granting summary
judgment against Carlton and Reed.”
STANDARD OF REVIEW
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch
Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied). When a party has filed both a traditional and no-evidence summary
judgment motion and the order does not specify which motion was granted, we
typically first review the propriety of the summary judgment under the no-evidence
standard. See TEX. R. CIV. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). If the no-evidence summary judgment was properly
granted, we need not reach arguments under the traditional motion for summary
judgment. Ford Motor Co., 135 S.W.3d at 600.
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
24
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.
In a traditional summary judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick
v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A
defendant moving for traditional summary judgment must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
RETALIATION CLAIMS UNDER THE TCHRA
The TCHRA generally prohibits employment discrimination on the basis of
race, gender, age and other protected classes, and also prohibits retaliation against
employees who complain of discrimination. TEX. LAB. CODE ANN. §§ 21.001–
21.556 (Vernon Supp. 2011). The TCHRA is patterned after Title VII of the Civil
Rights Act of 1964, the federal anti-discrimination law. Id. § 21.001(1).
Plaintiffs’ retaliation claims are premised on three Labor Code sections:
An employer, labor union, or employment agency commits an
unlawful employment practice if the employer, labor union, or
25
employment agency retaliates or discriminates against a person who,
under this chapter:
(1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an
investigation, proceeding, or hearing.
TEX. LAB. CODE § 21.055.
An employer, labor union, or employment agency commits an
unlawful employment practice if the employer, labor union, or
employment agency aids, abets, incites, or coerces a person to engage
in a discriminatory practice.
TEX. LAB. CODE § 21.056.
An employer, labor union, or employment agency commits an
unlawful employment practice if the employer, labor union, or
employment agency willfully obstructs or prevents a person from
complying with this chapter or a rule adopted or order issued under
this chapter.
TEX. LAB. CODE § 21.058.
Before an employee may sue for violation of the TCHRA, he or she must
first file an administrative charge with either the Texas Workforce Commission
(TWC) or the Equal Employment Opportunity Commission (EEOC) within 180
days of the discriminatory act. Id. § 21.202 (a). This requirement is jurisdictional.
See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.3d 490, 492 (Tex. 1996).
26
To establish a prima facie case of retaliation, a plaintiff must show that: (1)
he or she engaged in a protected activity; (2) the employer took an adverse
employment action; and (3) it did so because of the plaintiff’s participation in the
protected activity. E.g., Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 518
(Tex. App.—Houston [1st Dist.] 2006, pet. denied). To satisfy this causation
showing, the plaintiff must establish that without the protected activity, the
employer’s prohibited conduct would not have occurred when it did. See Dep’t of
Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). In other words, the
plaintiff must establish a “but for” causal nexus between her protected activity and
the employer’s prohibited conduct. Tex. Natural Res. Conservation Comm’n v.
McDill, 914 S.W.2d 718, 723 (Tex. App.—Austin 1996, no writ). The plaintiff
need not establish, however, that her protected activity was the sole cause of the
employer’s prohibited conduct. Hinds, 904 S.W.2d at 635.
Once the employee establishes a prima facie case, the employer bears the
burden to rebut the alleged improper termination by producing evidence that a
legitimate reason exists for termination. Green, 199 S.W.3d at 519. If the
employer satisfies its burden of production, the burden shifts back to the employee
to raise a fact issue as to pretext and a retaliatory motive. Id.
27
ANALYSIS
As a threshold matter, the parties disagree about whether the trial court could
properly have considered plaintiffs’ summary-judgment arguments (that fail to cite
to evidence), or plaintiffs’ summary-judgment evidence (because plaintiffs’
affidavits simply verify that the facts in the summary-judgment response are true).
The parties also disagree about whether plaintiffs’ EEOC charges were broad
enough to encompass all of plaintiffs’ claims in this lawsuit and, thus, effectively
exhaust plaintiff’s administrative remedies. Because we conclude that the
evidence does not raise a fact issue on plaintiffs’ retaliation claims—even
considering all plaintiffs’ claims and evidence—we affirm the trial court’s
summary judgment without addressing these issues.
The parties agree that plaintiffs engaged in two protected activities: (1) filing
their February 5, 2007 internal sexual harassment grievance with HCC, and (2)
filing their June 29, 2007 EEOC complaint. Plaintiffs additionally argued in their
response to HCC’s motion for summary judgment that several other activities
constituted protected activity, including their ongoing complaints about corruption
and unfair treatment directed at them under the new CTCE organization.
The adverse employment actions alleged by plaintiffs are (1) plaintiffs’ non-
selection as finalist for the Associate Vice Chancellor of CTCE and Reed’s non-
selection for a CTCE Director position, (2) plaintiffs’ effective demotions and
28
reduced responsibilities with the May 2007 CTCE reorganization, (3) HCC’s
unfair investigation of Reed’s and Carlton’s sexual harassment complaints, and (4)
plaintiffs’ constructive discharge caused by hostile acts, including Oliver making a
grunting noise at Reed, and Seymour’s assaulting Reed.
We agree with HCC that (1) plaintiffs failed to raise a fact issue on their
claim that the adverse employment actions alleged by plaintiffs were taken because
of plaintiffs’ engaging in protected activity, and (2) as a matter of law, some of
plaintiffs’ allegations do not rise to the level of an adverse employment action. We
thus affirm the trial court’s summary judgment on plaintiffs’ retaliation claims.
A. Plaintiffs’ Non-Selection for the New Associate Vice Chancellor
Position and Director Positions
Both Reed and Carlton applied for the Associate Vice Chancellor of CTCE
position, and Reed also applied for Director of Continuing Education. Neither
Reed nor Carlton was selected for either of these positions. Plaintiffs concede that
HCC put forth “non-retaliatory reason[s]” for plaintiffs’ non-promotion to these
positions. They argue, however, that the “pretextual nature” of the proffered
reasons was clear.
With regard to Reed, plaintiffs assert that she rebuffed Nielsen’s unwanted
sexual advancements. They then argue that it is reasonable to infer from the
evidence that Nielsen purposely put her enemies on the selection committee.
29
As for Carlton, plaintiffs assert that “Nielsen informed Carlton that he
wanted someone younger for the [Associate Vice Chancellor of] CTCE position,
an illegal discriminatory statement.” Plaintiffs also note that Nielsen made
“suggestive statements to Carlton such as, ‘Don’t worry, I’ll take care of you.’”
Although HCC brought forth evidence that the committee was selected
through a neutral process with input from people other than Nielsen before
plaintiffs’ lodged their complaints about Nielsen, Plaintiffs’ brief nonetheless
alleges that the committee’s make-up was retaliatory:
Although HCC claims that Don Washington and Willie
Williams helped formulate the committee and had no knowledge of
Nielsen’s sexual harassment of Plaintiffs, it is reasonable to infer, and
a material fact question for a jury, that Nielsen acted as the ‘man
behind the curtain’ and either influenced their choices or made
seemingly innocuous suggestions, or knew that Washington and
Williams had a bone to pick with Carlton or Reed. After all, when
Reed saw who was on the committee and realized her chances for
promotion were effectively destroyed, she called Nielsen on January
21, 2007 to express her concerns. Nielsen, having realized that he
was not going to get Reed into bed, reacted negatively, telling Reed he
didn’t care who got the job because he was leaving. Reed felt Nielsen
had retaliated against her by placing her “enemies” on the selection
committee, and informed him that she was filing a sexual harassment
complaint.
Plaintiffs’ brief does not explain in what regard Washington and Williams had a
“bone to pick” with Carlton or Reed.2 And, while the plaintiffs’ brief lumps
2
This notion conflicts somewhat with Reed’s earlier assertion that it was Nielsen’s
hostility towards Reed that led to the committee selection, rather than animus on
30
together their retaliation allegations, Carlton has not otherwise claimed that the
committee was made up of her enemies; she in fact admitted the opposite in her
deposition, i.e., that she did not have prior friction with those on the committee.
As a threshold matter, it is axiomatic that—to support a retaliation claim—a
decision-maker must know about the plaintiffs’ exercise of a protected activity.
E.g., Marsaglia v. Univ. of Tex.-El Paso, 22 S.W.3d 1, 4 (Tex. App.—El Paso
the part of the Washington and Williams. In her written statement in support of
her internal complaint, she asserted specifically:
[Nielsen] asked if I had any enemies that he should make sure
weren’t on the selection committee . . . which seemed strange, but I
told him as long as Larry Markey, Charles Cook or Maya Durnovo
(Dean of Workforce at NW College) were not on it that would help
as they had all been a part of much of the corruption I had reported
over time. . . . He had asked who I thought would be good CTCE
people that would be knowledgeable to be on the committee and yet
not applying for any of the jobs. I provided some names for him
which he wrote down. . . . I was shocked when I saw the committee
members. It was crystal clear that he had gotten names and
suggestions from Charles Cook and Cook via Larry Markey. There
was ONE person who I had suggested who was former CTCE and
extremely knowledgeable but had left and moved to HR to another
position. Other than her, he had put Fena Garza (President of the SE
College) as Chair of the committee. She is drinking, traveling, poker
playing friends with Charles Cook and the former President of SW
College, Sue Cox. To have her on the committee was the same as
having Cook or Larry on it or even Maya Durnovo as Fena Garz and
Maya were close for years and I assume still are. Also on the
committee were not one, but TWO of the people who had
departments in which much corruption had been occurring and of
which I had informed the chancellor. It was as if he had
intentionally chosen people either at Cook’s direction or people that
he knew would have reason to not want me even at the college much
less in a higher position due to what I know of their corruptive
practices.
31
1999, pet. denied). Here, the committee was put together at least a month before
plaintiffs made any sexual harassment complaints, either internally or to the
EEOC. In other words, although plaintiffs allege that Nielsen improperly
influenced the selection of the members of that committee in retaliation for their
complaints about sexual harassment, the committee was selected long before either
plaintiff complained, a fact fatally inconsistent with their theory. 3
HCC’s summary-judgment evidence demonstrates a nondiscriminatory
reason for plaintiffs’ non-promotion by showing that the candidates chosen over
plaintiffs gave better interviews and ultimately scored higher in the evaluation
process. While plaintiffs clearly disagree with the assessment of the relative merits
of the candidates, no fact issue is created by such disagreement. As the Dallas
Court of Appeals recently explained, a retaliation claim cannot be supported by the
mere assertion that the plaintiff was a better choice for a particular position:
Merely disputing [the employer’s] assessment of [plaintiff’s]
qualifications will not create an issue of fact. See Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002). Federal and
state laws protecting employees against discrimination and retaliation
were not intended to be vehicles for judicial second-guessing of
employment decisions nor intended to transform courts into personnel
managers. See Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 332
(Tex. App.—Austin 1999, no pet.). Absent a discriminatory motive, a
3
There is also no evidence—only plaintiffs’ speculation—that Nielsen interfered
with the committee’s decision-making. HCC’s summary-judgment evidence
demonstrated the opposite, that the committee members reviewed the applications
on their own, conducted their own interviews, engaged in their own impartial
review and were not pressured to select any particular applicant.
32
disagreement between an employer and employee over assessment of
job performance is not actionable. Evans [v. City of Houston], 246
F.3d [344,] 355 [(5th Cir. 2001)]. Even an incorrect belief that an
employee’s performance is inadequate constitutes a legitimate, non-
discriminatory reason for [an employment action]. Little v. Republic
Ref. Co., 924 F.2d 93, 97 (5th Cir.1991).
McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.—Dallas 2006,
no pet.).
Plaintiffs’ subjective belief that HCC’s evidence is false and its reasons
pretexual, sincere as that belief may be, does not create a fact issue to defeat
summary judgment. See e.g., Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 576
(Tex. App.—Houston [14th Dist.] 2004, no pet.) (“An employee’s own subjective
belief of discrimination, no matter how genuine, cannot serve as the basis for
judicial relief.”).
B. Effective Demotions and Reduced Responsibilities with the CTCE
Reorganization in May 2007
Plaintiffs contend that, after Seymour took over as Associate Vice
Chancellor, both “Carlton and Reed were placed into positions which constituted
demotions.” They concede that “[t]heir new job descriptions did contain many of
the duties both had already been performing; however, a number of former
responsibilities were removed and reassigned.” They also concede that their pay
was not reduced. Plaintiffs point out, however, that they were both “highly
experienced and qualified.” “It is a reasonable conclusion supported by all the
33
facts and evidence,” they thus assert, “that the legitimate, non-retaliatory reasons
stated by HCC were a pretext for retaliation against Carlton and Reed and an
attempt to drive them to quit their jobs and eliminate the threat they, and their
potential negative publicity, posed.” At the very least, they claim, “Plaintiffs have
illustrated significant questions of material fact regarding the motivation of HCC
which must be determined by a jury.”
In response, HCC argues that plaintiffs’ jobs remained substantially
unchanged, they received the same pay, and that, as a matter of law, the changes in
their positions were not an adverse employment action, as their subjective
preference for a particular position does not constitute an actionable demotion. See
McGarry v. Univ. of Miss. Med. Ctr., 355 F. Appx. 853, 859 (5th Cir. 2009).
More importantly, HCC asserts, there is no evidence that “any protected
activity caused the alleged demotions,” as the evidence “proves, and Reed admitted
at her deposition, that the wheels of change in CT/CE were in motion before the
harassment complaint was ever filed.” Nielsen announced the reorganization on
December 1, 2006, and described three new leadership positions and explained that
reassignment of existing staff would occur after the new Associate Vice Chancellor
started. It is undisputed, HCC emphasizes, that the final reorganization in May
was designed and implemented by people other than Nielsen, who had already left
in February. HCC’s summary judgment evidence indicated that the final
34
reorganization took into consideration factors such as workload, efficiency, and
compatibility and relatedness of job tasks.
This Court has expressly recognized “[a]gency restructuring is a legitimate,
nondiscriminatory reason for an employee’s termination.” Henderson v. Univ. of
Texas M.D. Anderson Cancer Ctr., No. 01-08-00376-CV, 2010 WL 4395416, at
*6 (Tex. App.—Houston [1st Dist.] Nov. 4, 2010, pet. denied) (mem. op.) (citing
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The evidence
demonstrates that Nielsen did not make the decisions about restructuring CTCE
that plaintiffs complain about, and they have not articulated why those in charge of
restructuring the CTCE department would be incentivized to retaliate against
plaintiffs. Assuming that the changes in plaintiffs’ job duties amounted to an
actionable demotion, plaintiffs have not brought forth evidence that the CTCE
restructuring was a pretext for retaliation.
C. Complaints about Investigation of Sexual Harassment Claims
Plaintiffs next complain about the investigation of their sexual harassment
and retaliation claims against Nielsen, asserting it “was managed with repeated
attempts to hire, and the eventual hiring of, external investigators with ties or
previous history with HCC, its internal counsel, and/or its external counsel.”
While “Wendy Sicola, Employment Practices Solutions, Inc., concluded her
investigation in favor of HCC,” plaintiffs note that HCC’s general counsel
35
“LeBlanc admitted in his deposition that a former co-worker of his was employed
at Employment Practices Solutions and that is why he chose them to conduct the
investigation.” According to plaintiffs, the “reasonable inference is that the
‘investigators’ . . . were selected to render a result-oriented investigation, contain
Carlton’s and Reed’s allegations, and whitewash Nielsen and HCC.”
In response, HCC contends that, while plaintiffs’ complaints about the
investigation of their harassment complaints are “potentially relevant to a sexual
harassment claim and the employer’s duty to take corrective action to prevent
future sexual harassment,” they do not constitute complaints about an “adverse
employment action for purposes of a retaliation claim.” Moreover, HCC asserts,
“the evidence shows that, despite the plaintiffs’ refusal to be interviewed as part of
the investigation into their claims,” the investigator did a commendable job that
was “diligent, fair, and non-retaliatory.” And plaintiffs’ unsupported innuendo
about the investigator’s alleged bias against plaintiffs notwithstanding, the
evidence showed that the investigation was performed by an experienced attorney
who knew none of the parties.
To maintain a retaliation claim, the employee must show the employer took
action against the employee. TEX. LAB. CODE § 21.055. “An employer’s action is
an adverse employment action for purposes of a retaliation claim when it is
harmful to the point that it could ‘dissuade a reasonable worker from making or
36
supporting a charge of discrimination.’” Cox v. Waste Mgmt. of Tex., Inc., 300
S.W.3d 424, 438 (Tex. App.—Fort Worth 2009, pet. denied) (citing Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68 (2006)). Misguided or
ineffective investigations—even those that cause an aggrieved employee additional
discomfort or distress—cannot support a retaliation claim absent evidence of a
sinister motive on the part of the employer. Id. at 438 (employer’s forcing
employee to attend meeting with alleged harasser, while potentially an imprudent
move that the employer concedes could have increased employee’s anxiety and
intimidated him, was not an adverse employment action for purposes of retaliation
claim because the evidence uniformly demonstrated the purpose was to
investigate).
We agree that plaintiffs have failed to present any evidence in support of
their claim that HCC’s investigation (in which they refused to participate) was
unfair or biased. In any event, plaintiffs have not articulated how their complaints
about that process, even if taken as true, implicate their retaliation claims.
D. Constructive Discharge
Plaintiffs contend that “[b]eing forced to resign or retire from your position
due to a hostile work environment engendered by an employer in retaliation for
opposing illegal employment actions, or constructive discharge, is an adverse
employment action.” They argue that the trial court erred in granting summary
37
judgment because, the “issue of whether or not the various actions experienced as
retaliation by both Reed and Carlton rise to the level of creating a hostile work
environment such that a reasonable person would have been forced to quit their job
is a disputed material fact question which must be decided by a jury.” Plaintiffs
point to three specific things as causing their constructive discharge: (1) Oliver’s
actions towards Reed, (2) Seymour’s actions towards both Carlton and Reed, and
(3) an incident of vandalism in their office.
The term “constructive discharge” refers to “an employee’s reasonable
decision to resign because of unendurable working conditions.” Baylor Univ. v.
Coley, 221 S.W.3d 599, 605 (Tex. 2007) (quoting Pa. State Police v. Suders, 542
U.S. 129, 141 (2004)). It is not a separate cause of action but, rather, permits an
employee to satisfy the element of “adverse employment action” despite having
voluntarily quit. See Cox, 300 S.W.3d at 435; Univ. of Tex. Med. Branch at
Galveston v. Hohman, 6 S.W.3d 767, 772 (Tex. App.—Houston [1st Dist.] 1999,
pet. dism’d w.o.j.). “General allegations of mere ‘harassment,’ without more, are
insufficient to raise an issue of material fact as to whether working conditions were
so intolerable that a reasonable person would have felt compelled to resign.”
Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 178 (Tex. App.—Houston
[14th Dist.] 1991, no pet.). We must analyze a constructive discharge claim with
38
reference to a reasonable-person test, not the plaintiff’s subjective opinions. Cox,
300 S.W.3d at 435.
Plaintiffs argue that Seymour, the new Vice Chancellor of CTCE, was
“moved in to help Spangler manage Plaintiffs.” “Upon his arrival,” plaintiffs
claim, “Seymour immediately proceeded to make Carlton’s day-to-day existence
miserable.” Carlton contends that he was “openly cold, hostile and rude.” She
also argues that she was intimidated by an instance of vandalism in her office
during which personal photographs were taken down and one photo was removed.
Carlton’s psychologist ultimately wrote a letter to Seymour explaining that
Carlton’s anxiety levels were dangerously high, she was suffering from symptoms
of depression, and she needed some time off. She went on FMLA medical leave
on July 20, 2007; when her sick leave time ran out, she retired from HCC on
January 1, 2008.
In support of her constructive discharge claim, Reed claims that Oliver made
a grunting noise outside her office “in a manner perceived by Reed to be offensive,
threatening, and clearly intended to mock her sexual harassment claim against
Nielsen.” She also contends she was frightened and threatened by her office being
vandalized when her trash can was sliced, and she viewed that as a retaliatory
action.
39
Finally, Reed complains of an alleged assault by Seymour that precipitated
her departure from HCC for medical reasons. On July 7, 2007, Reed sent an email
to Seymour informing him that she was going to work from home because she was
upset about the vandalism of her office. He responded that she would need to use a
sick or vacation day because she had not received advance approval. According to
Reed, she “wrote a lengthy email back to Seymour questioning his treatment of her
and arbitrary and unequal application of HCC policies to Reed, contrary to
established practices at HCC.” In that same email, she made what she
characterized as a “passing reference to Seymour’s wife.” According to Reed, the
following day “Seymour stormed into Reed’s office and began raging at Reed
about her mention of his wife in her email to him the previous day.”
Reed has a history of transient ischemic attacks, and “was terrified and
began experiencing precursor systems.” When Seymour left her office, she ran
downstairs to campus police, reported the incident, and an ambulance was called
and transported her to the hospital. She left the hospital without treatment because
experience taught her that lying down quietly at home was the best preventative of
an onset of a stroke. Reed’s neurologist wrote a letter stating that she could not
return to work, and she resigned from HCC for the sake of her health.
HCC argues that, as a matter of law, plaintiffs were not constructively
discharged. Alternatively, it argues that plaintiffs have not demonstrated that any
40
constructive discharge was causally related to their engaging in a protected activity
as required to support a retaliation claim.
The summary judgment evidence demonstrates that the officer who
investigated the alleged vandalism incident in plaintiffs’ office tried to discuss the
investigation with Carlton, but she declined that request. He spoke to the manger
of the office cleaning crews, who reported that the wastecan that Reed claims was
sliced was “still functional” but “had been in a state of disrepair for some time and
other wastebaskets also were in poor shape.” The officer reviewed the access-card
logs and video surveillance, which showed nothing out of the ordinary. “Based on
the evidence, [he] was unable to conclude that the [waste]basket was intentionally
damaged.”
In response to Reed’s complaint about Oliver’s grunting noises, HCC hired
two investigators: (1) Gracie Saenz, a former City Councilwoman and former
Harris County assistant district attorney, and (2) attorney Franklin Holcomb. They
performed a thorough investigation, conducted interviews, and prepared a final
report concluding that “the evidence does not substantiate Ms. Reed’s allegations.”
Plaintiffs do not address the significance of HCC’s investigations in
response to their vandalism complaints and in response to Reed’s complaint about
Oliver. HCC’s investigation of plaintiffs’ complaints, however, undercuts their
claim of constructive discharge when properly measured against a reasonable-
41
employee standard. See Cox, 300 S.W.3d at 433 (as a matter of law, the conditions
of employment should not have compelled resignation given that employer’s
investigation and action in response to employee’s complaint about treatment by
supervisor was timely and reasonable); Tiner v. Tex. Dept. of Transp., 294 S.W.3d
390 395 (Tex. App.—Tyler 2009, no pet.) (rejecting claim of constructive
discharge because employer timely investigated and acted on employee’s
complaint about treatment by co-worker). And, as HCC points out in their brief,
an allegation of vandalism by an unknown person or coworker does not constitute
an adverse employment action. Gumpert v. ABF Freight Sys. Inc., 293 S.W.3d 256,
262 (Tex. App.—Dallas 2009, pet. denied). Finally, we note that there is no
evidence that would support plaintiffs’ theory that the vandalism and the alleged
grunting incidents were tied to their exercise of a protected activity.
We likewise conclude that Seymour’s alleged conduct—i.e., being cold and
hostile to Carlton and allegedly assaulting Reed—does not create a fact issue on
plaintiffs’ retaliatory constructive discharge claims. To be sure, there was clearly
friction in the CTCE department and clashes between Seymour and plaintiffs. But
discrimination laws are not designed to set forth a “general civility code for the
American workplace.” White, 548 U.S. at 68; Olivarez v. Univ. of Tex. at Austin,
No. 03-05-00781-CV, 2009 WL 1423929, at *3 (Tex. App.—Austin May 21,
2009, no pet.) (mem. op.) (plaintiff must show more than “a rude or uncivil boss”
42
(quoting Webb v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532,
539 (5th Cir. 1998)). Carlton offers no details of Seymour’s treatment of her, and
does not articulate how his actions related to her exercise of a protected activity.
Olivarez, 2009 WL 1423929, at *3 (“Because she provided absolutely no factual
allegations of even an approximate date on which those alleged acts occurred, we
will not consider the undated allegations in our analysis and will limit our
consideration to [plaintiff’s] claims for discrete acts of alleged discriminatory
conduct.”).
Reed does provide details of her July 20, 2007 altercation with Seymour.
We agree with HCC, however, that single incident does not raise a fact issue on
retaliatory constructive discharge. Reed’s own version of that episode as
recounted in her written report to campus police and in her briefing here makes
clear that Seymour confronted Reed because he was angry about an email she sent
to multiple people that he read as making unflattering insinuations about his
personal life. Thus, even if a single incident such as this one could contribute to a
constructive discharge, it cannot create a fact issue on Reed’s retaliation claim
given that she does not argue that Seymour’s reaction was related to her engaging a
protected activity.
We overrule plaintiffs’ sole issue.
43
CONCLUSION
We affirm the trial court’s summary judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
44