Wanda A. Akorede v. Texas Workforce Commission F/K/A Texas Department of Assistive Rehabilitation Services ( 2020 )

Affirmed and Memorandum Opinion filed April 7, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00827-CV
WANDA A. AKOREDE, Appellant
V.
TEXAS WORKFORCE COMMISSION F/K/A TEXAS DEPARTMENT OF
ASSISTIVE REHABILITATION SERVICES, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2017-57837
MEMORANDUM OPINION
Wanda Akorede sued the Texas Workforce Commission for retaliation under
the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code
§ 21.055. The trial court granted the Commission’s plea to the jurisdiction, and
Akorede brings this pro se appeal challenging the dismissal of her case. We
affirm.
I. Standard of Review and Legal Principles
Governmental units are immune from suit unless the state consents. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The TCHRA
waives immunity, but only when the plaintiff states a claim for conduct that
violates the statute. Id. Immunity from suit may be asserted in a plea to the
jurisdiction. Id.
A plea to the jurisdiction may challenge the pleadings, the existence of
jurisdictional facts, or, as here, both. See id. If a plea challenges the pleadings, we
determine if the plaintiff has alleged facts affirmatively demonstrating jurisdiction.
Id. We construe the pleadings liberally in favor of the plaintiff. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a plea
challenges the existence of jurisdictional facts, we consider the evidence to resolve
the jurisdictional issue. Alamo Heights, 544 S.W.3d at 770–71. For such a plea,
the standard of review mirrors that of a traditional summary judgment: if the
plaintiff’s factual allegations are challenged with evidence, the plaintiff must raise
a genuine issue of material fact to overcome the plea. See id. at 771.
The TCHRA prohibits employers from engaging in a retaliatory action
against an employee for opposing a discriminatory practice. San Antonio Water
Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015). To establish a violation, the
plaintiff must show: “(1) she engaged in an activity protected by the TCHRA, (2)
an adverse employment action occurred, and (3) there exists a causal link between
the protected activity and the adverse action.” Id. These elements are the prima
facie case that a plaintiff must plead to establish jurisdiction, and a plaintiff must
plead the basic facts that make up the prima facie case. Alamo Heights, 544
S.W.3d at 782; Nicholas, 461 S.W.3d at 135.
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II. Procedural Background and Evidence
A. Allegations in the Petition
In her live pleading, Akorede alleged that she is an African American
woman over the age of forty. She began working for the Commission in 2007.
Problems arose in 2013 when Akorede’s manager transferred additional work to
her that made it “almost impossible” for her to complete her work. When the
increased workload was removed, the manager’s “abusive behavior began to
increase in frequency and tenor.” The manager violated the Commission’s policies
and procedures by “denying legitimate leave requests.”
In September 2014, Akorede filed an “administrative complaint” against the
manager concerning his “offensive and abusive behavior towards her specifically
his unwarranted discipline for unapproved leave which was in fact previously
approved.” The Commission investigated and ultimately disciplined the manager
for his conduct.
Shortly after the manager was disciplined, “he began a systematic and
persistent crusade to get [Akorede] terminated from her employment.” He would
review her completed work “to try and find something he could discipline her for.”
No other employees had their work audited in this manner.
In the year following the complaint, the manager stopped giving her merit
pay increases, although Akorede had previously received merit pay increases each
year she had been employed. The manager excluded her from some assignments
and meetings and would “reverse” her completed work to make it appear that her
performance was substandard. The manager initiated disciplinary actions against
Akorede, and when Akorede refused to sign a “write up,” the manager called
police and told her to leave the office. As a result of the manager’s conduct,
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Akorede was “not made eligible for merit bonuses, promotions, and/or salary
increases.”
In September 2015, Akorede filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging “retaliation based on age, race and
gender.” Subsequent to the filing of this charge, Akorede’s “supervisors and co-
workers retaliated against [her] for taking such action.”
Akorede alleged that in June 2016 the manager “again began review of Mrs.
Akorede’s closed cases in search of any discrepancy that he could use as an excuse
to issue[] Plaintiff another notice of Possible Disciplinary Action.” In July 2016,
the manager assigned Akorede “coaching” that suppressed Akorede’s performance
evaluation scores and kept Akorede in a “disciplinary pattern that would withhold
any promotions or monetary increases or bonuses.” The manager gave Akorede
“false” below average performance evaluations and recommended that she not be
given any merit pay increases, which she did not receive.
In April 2017, the manager initiated a “Special Performance Evaluation” for
Akorede that was “grossly unfair, contained false statements and was clearly
created to harm the Plaintiff’s career.” When Akorede provided a rebuttal to the
manager’s supervisor, the supervisor determined that the evaluation was without
merit and would not be placed in her personnel file. She continued to work for the
Commission when she filed suit.
In the petition, Akorede alleged a claim for retaliation under the TCHRA.
She alleged that retaliation occurred as a result of Akorede filing the September
2015 EEOC charge.
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B. Plea to the Jurisdiction and Evidence
In its plea to the jurisdiction, the Commission argued that Akorede failed to
plead a valid retaliation claim because Akorede did not show that she suffered an
adverse employment action or that any alleged adverse action was caused by her
filing the EEOC charge. The Commission argued that a causal link was not
alleged and could not be inferred from the facts stated due to the length of time
between the EEOC charge and the alleged adverse employment actions. The
Commission filed Akorede’s EEOC charge as evidence, which showed that
Akorede had complained about discrimination based on race, color, sex, age, and
disability, and retaliation.
In her response to the plea, Akorede alleged that she engaged in protected
activity “by filing her written grievance” against the manager in September 2014.
Akorede argued that the denial of merit pay increases, the manager’s “papering” of
Akorede’s employment file, and excluding her from assignments amounted to
adverse employment actions. Regarding causation, Akorede alleged only that her
petition “provides several causal links between the adverse action taken and her
EEOC” charge. Akorede did not file any evidence with the response.
The Commission filed a reply and argued that Akorede’s September 2014
administrative complaint was not protected activity. The Commission attached the
complaint as evidence. Akorede alleged in the complaint that she was filing it
against the manager for “harassment, retaliation, creating a hostile work
environment, and favoritism.” She included a three-page, single-space narrative
that focused on events occurring in August and September 2014 concerning the
manager’s denial of Akorede’s leave requests. Akorede did not refer to her age,
race, color, sex, or disability, or any discrimination based on those characteristics.
Instead, she complained about the manager’s “negativity,” his “discouraging”
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management style, and him “not being reasonable at all.” She complained that the
manager was “rude and unprofessional” and that his failure to approve or deny her
requested leave was “simply not fair.” She described a meeting she had with the
manager when he “rose abruptly from his chair and walked to the door asking [her]
to leave that our conversation was over.” She felt that this “unprofessional
behavior has created a hostile work environment.” She elaborated:
[The manager] is not an easy person to get along with. He does not
show empathy and compassion for his staff. He never asks how I feel
nor motivates me to do a good job. He never rewards his staff and
regularly informs us that “you should be glad you have a job.” He is
always critical and looks for the negative not the positive in your
performance. I feel I am working in a hostile environment that is
created by a manager who does not see his staff as human beings but
as subordinates.
She believed that the manager was “not cut out to manage an office,” and
she wanted “someone to care about” her. She explained her request: “I am asking
that my leave is approved, that my manager receives training on how to
communicate with a diverse staff, how to be a leader, how not to micro-manage
staff and how to show empathy to the people you work with.”
The Commission also attached a declaration from the director of the Civil
Rights Office of the Texas Health and Human Services Commission, to which
Akorede had sent her internal complaint. The director testified that Akorede
verbally informed the Civil Rights Office that “her concerns were not
discriminatory based on a protected class.”
After a hearing, the trial court granted the plea and dismissed Akorede’s
claim.
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III. Protected Activity
Akorede contends that she engaged in a protected activity by filing the
internal complaint and the EEOC charge. We disagree with Akorede regarding the
internal complaint but agree with her regarding the EEOC charge.
An employee may engage in protected activity by filing an internal
complaint, opposing a discriminatory practice, or making a charge of
discrimination with the EEOC. Alamo Heights, 544 S.W.3d at 786. To be
protected activity, the employee’s complaint must, at a minimum, alert the
employer to the employee’s reasonable belief that unlawful discrimination is at
issue. Id. Although “magic words” are not required to invoke the TCHRA’s anti-
retaliation protection, complaining only of “harassment,” “hostile environment,”
“discrimination,” or the like, is not enough. Id. at 786–87 (holding that internal
complaints were not protected activity even though a handful of allegations
contained a sexual component because a fact-finder could not reasonably have
concluded that the offending conduct constituted sex-based discrimination; the
employee “never even hinted that she believed she was targeted because of her
gender or any other protected trait”).
Nothing in Akorede’s internal complaint even hints that she believed she
was being discriminated against based on any protected trait, and the Commission
adduced uncontradicted evidence that Akorede disclaimed any discrimination
based on a protected class. Accordingly, Akorede has not raised a genuine issue of
material fact regarding the internal complaint—it was not a protected activity for
purposes of the retaliation claim. See id. at 786–88.
The Commission does not dispute, on appeal or in its plea, that Akorede’s
EEOC charge is protected activity. We agree that it is. See id. at 786 (noting that
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the parties agreed that an EEOC charge was protected activity and concluding that
the EEOC charge was protected activity).
IV. Adverse Employment Action
The THCRA protects employees from actions that are “materially adverse,”
meaning an action that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. at 788 (quotation omitted).
This objective requirement is necessary to separate significant from trivial harms.
Id. “An employee’s decision to report discriminatory behavior cannot immunize
that employee from those petty slights or minor annoyances that often take place at
work and that all employees experience.” Id. at 788–89 (quotation omitted)
(noting that complaints of unfair criticism, exclusion from meetings, or being
micromanaged were petty annoyances and not materially adverse actions).
We assume without deciding that Akorede pleaded an adverse employment
action based on the disciplinary “coaching” and “papering” of Akorede’s personnel
file with false negative performance evaluations so as to prevent Akorede from
receiving merit pay increases. See Mayberry v. Tex. Dep’t of Agric., 948 S.W.2d
312, 316 (Tex. App.—Austin 1997, writ denied).
V. Causation
Retaliation claims require proof that the employee would not have suffered
the adverse employment action but for engaging in the protected activity. Navy v.
Coll. of the Mainland, 407 S.W.3d 893, 901 (Tex. App.—Houston [14th Dist.]
2013, no pet.); see also See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
352 (2013) (“Title VII retaliation claims require proof that the desire to retaliate
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was the but-for cause of the challenged employment action.”).1 Alleging a prima
facie case regarding causation is not onerous and can be satisfied merely by
proving close timing between the protected activity and the adverse action. Alamo
Heights, 544 S.W.3d at 782. Although temporal proximity may raise an inference
of retaliation, the events must be “very close in time.” Smith v. Harris Cty., No.
01-18-00247-CV, 2019 WL 1716418, at *13 (Tex. App.—Houston [1st Dist.] Apr.
18, 2019, no pet.) (mem. op.); see Barnes v. Tex. A & M Univ. Sys., No. 14-13-
00646-CV, 2014 WL 4915499, at *5 (Tex. App.—Houston [14th Dist.] Sept. 30,
2014, pet. denied) (mem. op.); see also Alamo Heights, 544 S.W.3d at 790
(“Temporal proximity is relevant to causation when it is ‘very close.’” (quoting
Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007))).
Akorede alleged in her petition that her EEOC charge was made in
September 2015, and the next disciplinary action by the manager occurred in June
2016—nine months later. This adverse employment action is not “very close” in
time to the EEOC charge, so the temporal proximity is insufficient to establish a
causal link in this case. See Alamo Heights, 544 S.W.3d at 790 (reasoning that an
eight-month gap between the EEOC charge and termination recommendation was
“so long as to be of little, if any, probative value” (citing Jackson v. Honeywell
Int’l, Inc., 601 F. App’x 280, 286–87 (5th Cir. 2015) (“We have found a five
month period between the protected activity and the adverse employment action
insufficient to establish a causal link.”))); Goudeau v. Nat’l Oilwell Varco, L.P.,
793 F.3d 470, 478–79 (5th Cir. 2015) (temporal gap of eight to ten months
insufficient to establish causal link); see also Fields v. Teamsters Local Union No.
988, 23 S.W.3d 517, 529 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)
(upholding temporal proximity as evidence of causation when the protected
1
We consider federal law concerning Title VII of the Civil Rights Act for guidance in
interpreting the TCHRA. Nicholas, 461 S.W.3d at 136–37.
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activity and adverse employment action were “separated by weeks, as opposed to
months”).
Akorede identifies no other facts to support a causal link between her EEOC
charge and any subsequent adverse employment actions. Thus, her petition fails to
allege a prima facie case for retaliation under the TCHRA.
VI. Conclusion
Because Akorede has not stated a claim for retaliation under the TCHRA,
sovereign immunity is not waived. The trial court correctly concluded that it
lacked subject matter jurisdiction and dismissed the suit.
The trial court’s judgment is affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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