Christina Drew v. City of Houston ( 2023 )

Opinion issued August 1, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00212-CV
———————————
CHRISTINA DREW, Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2020-68794
OPINION
Christina Drew sued her former employer, the City of Houston (“City”),
alleging claims for sexual harassment, retaliation, and hostile work environment.
She claimed that the City’s actions and inactions had resulted in her constructive
discharge.
The City filed a plea to the jurisdiction, asserting that its proffered evidence
established that the trial court lacked subject matter jurisdiction because Drew
failed to exhaust her administrative remedies, barring her suit against the City. The
City also moved for summary judgment on Drew’s claims. After a hearing, the trial
court orally announced that it granted the City’s plea to the jurisdiction based on
timeliness. The trial court then signed an order granting both the City’s plea to the
jurisdiction and motion for summary judgment. We affirm.
Background
Drew was employed by the City’s Department of Neighborhoods as a Code
Enforcement Officer Trainee, responsible for enforcing city ordinances on
properties in Houston. On Friday, November 9, 2018, Drew was at a jobsite with
several crewmembers, including Chris Varela. Varela asked for a ride back to the
office. Drew informed him that she was not going immediately to the office, but
instead, she had to make a stop along the way. Varela agreed to go with her. When
Drew arrived in a store parking lot, Varela grabbed her and kissed her. She told
him not to do so and went into the store. Drew returned to the car and continued
driving with Varela as her passenger. In the car, Varela tried to convince Drew to
go somewhere so they could talk, but instead Drew took him back to the jobsite.
According to Drew, Varela got out of her car at the jobsite and slammed the door.
She believed he was angry that she did not return his advances.
2
Drew’s supervisor, who was unaware of what had happened, asked her to
drive Varela back to the office. Drew and Varela returned to the car. While Drew
was driving, Varela pulled out his penis and started masturbating. He grabbed
Drew’s hand from the steering wheel and tried to get her to touch his penis. Drew
continued driving back to the office.
Later that Friday afternoon, Drew texted her supervisor and asked him to
call her. She did not report the incident to her supervisor until the following
Tuesday.1 The next day, she reported the incident to Reginald Harris, her next level
supervisor and Deputy Assistant Director for the Department of Neighborhoods.
He asked Drew to put her complaint in writing, which she did in the form of an
email. Harris forwarded the email to the City’s Inspector General (“OIG”), who
initiated an investigation. Harris placed Varela on relief-of-duty status during the
investigation, suspending him with pay. Varela never returned to work. A few days
later, Harris delivered a no-contact order to Varela, instructing him not to have any
contact with Drew.
In January 2019, Drew emailed Harris to (1) complain that other employees
were spreading rumors about her at work, and (2) request information about the
Employee Assistance Program (“EAP”) so she could obtain counseling. Harris
1
Monday, November 12, 2018 was Veteran’s Day, a City holiday.
3
promptly responded with the information. He also reminded Drew that Varela had
been relieved from work duty and that the OIG was investigating the case.
A few weeks later, the Department of Neighborhoods was tasked with
visiting abandoned buildings that were slated for demolition to confirm whether
the buildings remained in existence. The project was part of a special initiative
from the mayor. Ten code enforcement officers, including Drew, were picked for
the project. Their job was to drive to a list of addresses and take pictures, verifying
the structures on the properties were still standing. Harris testified that Drew was
selected based on her workload. The addresses each employee was tasked with
visiting were assigned by a central scheduler.
On January 22, 2019, the OIG sustained Drew’s allegations against Varela,
and Drew was notified by letter. On the same day, Drew contacted Harris saying
she did not feel safe using her assigned parking space and requested another
parking location closer to her home where she could access her City-issued
vehicle. Harris assigned Drew to a new parking location.
Following the OIG decision, Harris began the process to terminate Varela’s
employment, but Varela resigned on February 7, 2019, before the process was
completed. Drew voluntarily resigned her employment with the City on February
4, 2019.
4
Drew filed her charge with the EEOC on August 5, 2019, asserting sex
discrimination, retaliation, and hostile work environment. She sued the City
alleging the same claims in October 2020. The City answered and filed a plea to
the jurisdiction and motion for summary judgment. At the conclusion of a hearing,
the trial court granted the City’s plea to the jurisdiction, stating it was doing so
based on timeliness. The court signed an order granting the City’s plea to the
jurisdiction as well as the City’s motion for summary judgment. Drew appealed.
Plea to the Jurisdiction
On appeal, Drew contends that the trial court erred in granting the City’s
plea to the jurisdiction. Drew argues that she exhausted her administrative
remedies by filing her charge of discrimination within 180 days of her resignation.
She argues that the discrimination she experienced continued through her
resignation and that she was constructively discharged. The City responds that the
trial court does not have subject matter jurisdiction over Drew’s claims because
she did not timely file her administrative complaint. The City argues that Drew did
not raise a fact issue on jurisdiction because the continuing violation doctrine does
not apply, and she was not constructively discharged. We agree with the City.
A. Standard of Review
A plea to the jurisdiction challenges the trial court’s subject matter
jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Whether the
5
plaintiff has alleged facts showing subject matter jurisdiction is a question of law
that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). Although we are not to reach the merits of the plaintiff’s
case, when the plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider the relevant evidence submitted by the parties necessary to
resolve the jurisdictional issue. Id. at 227. This procedure generally mirrors that of
a summary judgment. Id. at 228; see TEX. R. CIV. P. 166a(c).
The plaintiff has the initial burden to plead facts showing the trial court’s
subject matter jurisdiction. See Miranda, 133 S.W.3d at 226. The burden then
shifts to the governmental unit to show that the trial court lacks subject matter
jurisdiction. Id. at 228. If the governmental unit does so, the plaintiff must raise a
material fact issue to overcome the plea to the jurisdiction. Id. If the evidence
creates a fact issue on jurisdiction, the trial court should deny the plea to the
jurisdiction. Id. If the evidence is undisputed or fails to raise a fact issue about the
jurisdictional issue, the trial court should grant the plan to the jurisdiction. Id.
B. The Texas Commission on Human Rights Act (“TCHRA”)
The TCHRA prohibits an employer from discriminating against employees
based on “race, color, disability, religion, sex, national origin, or age[.]” TEX. LAB.
CODE § 21.051. It is also an unlawful employment practice to retaliate or
discriminate against a person who, under the TCHRA, opposes a discriminatory
6
practice, makes or files a charge, or files a complaint. Id. § 21.055. In adopting the
TCHRA, the Legislature “intended to correlate state law with federal law in
employment discrimination cases”; accordingly, we may look to federal law to
interpret its provisions. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008)
(per curiam).
The exhaustion of administrative remedies is a jurisdictional prerequisite to
suing for unlawful employment practices. See Specialty Retailers, Inc. v.
DeMoranville, 933 S.W.2d 490, 492–93 (Tex. 1996) (per curiam); Santi v. Univ. of
Tex. Health Sci. Ctr. at Hous., 312 S.W.3d 800, 803–04 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). To exhaust administrative remedies under the TCHRA, a
plaintiff must (1) file a complaint with the Texas Workforce Commission (“TWC”)
or the Equal Employment Opportunity Commission (“EEOC”) within 180 days of
the alleged discriminatory act; (2) allow the agency 180 days to dismiss or resolve
the complaint; and (3) sue in the district court within 60 days of receiving a right-
to-sue letter from the agency and no later than two years after filing the complaint.
TEX. LAB. CODE §§ 21.202, .208, .254, .256.
“The purposes underlying the administrative-complaint requirement include
giving the charged party notice of the claim, narrowing the issues for speedier and
more effective adjudication and decision, and giving the administrative agency and
the employer an opportunity to resolve the dispute.” Lopez v. Tex. State Univ., 368
7
S.W.3d 695, 700–01 (Tex. App.—Austin 2012, pet. denied). The timely filing of a
complaint is mandatory, and when the defendant is a governmental entity, the
failure to timely file is a jurisdictional bar to suit. Prairie View A&M Univ. v.
Chatha, 381 S.W.3d 500, 514 (Tex. 2012).
C. Analysis
Both Drew and the City agree that Drew filed her administrative complaint
on August 5, 2019. In her charge of discrimination, Drew checked the boxes
asserting that the discrimination was based on sex, retaliation, and “other – hostile
work environment.” She identified the latest date of the discrimination as February
2, 2019 and checked the “continuing action” box.
In its plea to the jurisdiction, the City argued that pursuant to the 180-day
limitations period of the Texas Labor Code, any events that occurred prior to
February 6, 2019 are outside the 180-day limitations period and therefore untimely.
The City contends that this encompasses all of Drew’s complaints, including the
sexual assault on November 9, 2018, alleged retaliation by assigning her to
demolition inspection in January 2019, and her resignation on February 4, 2019.
On appeal, Drew argues that the trial court should have considered all the allegedly
unlawful acts through her resignation date under the continuing violation doctrine.
She also argues that her resignation was a constructive discharge.
8
1. The continuing violation doctrine does not apply.
Drew argues that the alleged acts she experienced were one continuing
violation, from the sexual harassment by Varela to her reassignment to the
demolition review job. The City contends that Drew failed to provide any evidence
demonstrating unlawful acts that qualified as a continuing violation.
An exception to application of the 180-day limitations period for the
discriminatory act is the continuing violation doctrine. Santi, 312 S.W.3d at 804.
The doctrine applies when an unlawful employment practice manifests over time,
rather than as discrete acts. Id. at 804–05. Under the continuing violation theory, a
plaintiff must show an organized scheme leading to and including a present
violation, so that it is the cumulative effect of the discriminatory practice, rather
than any discrete occurrence, that gives rise to the cause of action. Davis v.
Autonation USA Corp., 226 S.W.3d 487, 493 (Tex. App.—Houston [1st Dist.]
2006, no pet.). A plaintiff need not establish that all the alleged discriminatory
conduct occurred within 180 days if the plaintiff can show a series of related acts,
including one or more that are within the limitations period. Tex. S. Univ v. Nayer,
No. 01-21-00497-CV, 2023 WL 138621, at *3 (Tex. App.—Houston [1st Dist.]
Jan. 10, 2023, no pet.) (mem. op.) (citing Pegram v. Honeywell, Inc., 361 F.3d 272,
279 (5th Cir. 2004). The “focus is on what event should, in fairness and logic, have
alerted the average layperson to act to protect his or her rights.” Autonation, 226
9
S.W.3d at 493 (quoting Wal-mart Stores v. Davis, 979 S.W.2d 30, 42 (Tex. App.—
Austin 1998, pet. denied)).
According to the City, its timely remedial efforts upon learning of Drew’s
complaint severed any later alleged act that occurred within the relevant time.
Under the continuing violation doctrine, the plaintiff must demonstrate that the
separate acts are related, and that the violation was continuing. See Stewart v. Miss.
Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009) (citing Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 118 (2002)). Intervening action by the employer,
among other things, severs the acts that preceded it from those after it, precluding
liability for preceding acts outside the filing window. Id. “When a company, once
informed of allegations of sexual harassment, takes prompt remedial action to
protect the claimant, the company may avoid . . . liability.” Id. (quoting Hockman
v. Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th Cir. 2004)).
In Stewart, an employee reported sexual harassment by a supervisor to her
employer. 586 F.3d at 325. The supervisor was instructed to stop the harassing
conduct. Id. at 326. When Stewart complained a second time, the employer
reassigned her to a similar position with a different supervisor. Id. A year later, the
Stewart’s supervisor was replaced by the original offending supervisor due to a
vacancy. Id. The original supervisor resumed the harassment. Id. Stewart sued, and
the Fifth Circuit upheld the district court’s summary judgment in favor of the
10
employer because the continuing violation doctrine did not apply. Id.at 333. The
Court held that the employer’s intervening acts severed the two periods of alleged
harassment, making her complaint about prior harassment outside the limitations
period. See id. at 328–29.
As in Stewart, the City’s remedial efforts break any continuity among the
individual violations Drew alleges. See Stewart, 586 F.3d at 328 (stating
intervening action by employer precludes liability for preceding acts outside the
filing window). The City’s efforts to protect Drew included suspending Varela and
imposing a no-contact order in November 2018. In January 2019, the OIG
sustained Drew’s complaint, setting in motion the process that led to Varela’s
indefinite suspension. The City also reassigned Drew’s parking spot in January
2019 in response to her concerns. In February 2019, Drew resigned.
The record does not contain evidence that supports the contentions that
unlawful acts continued until February 2019. Drew argues that Varela continued to
try to communicate with her through her coworkers until the date of her
resignation; but this allegation is not supported by the record. In January 2019,
Drew reported to Harris that coworkers were gossiping about her and asked Harris
for information about the employee assistance program. He promptly responded
with the information she requested. The evidence does not support that Varela was
attempting to contact Drew through the coworkers, nor does the record contain
11
evidence supporting that any of Drew’s complaints continued until the day that she
resigned. See Autonation, 226 S.W.3d at 491 (stating the focus is on the
discriminatory act, not when the consequence of the act becomes most painful).
The continuing violation doctrine does not apply to extend the statute of limitations
to the date that Drew resigned because the resignation was not the time that Drew
was “alerted . . . to act to protect . . . her rights.” Wal-Mart Stores, 979 S.W.2d at
42. The trial court did not err to the extent it granted the City’s plea because the
continuing violation doctrine did not apply.
2. Drew’s resignation was not a constructive discharge.
Drew argues that though she resigned from the City, her voluntary
resignation on February 4, 2019 should be treated as a constructive discharge.
Based on this date, she argues that she met the 180-day deadline to file her
administrative claim by filing on the 182nd day, which was the first business day
180 days after she was discharged. The City responds that Drew voluntarily
resigned and was not constructively discharged. We agree.
Constructive discharge is “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. St. Police v. Suders, 542 U.S. 129, 141 (2004)).
“A constructive discharge qualifies as an adverse personnel action under the
TCHRA, but requires proof that the employer made the working conditions so
12
intolerable that a reasonable person would feel compelled to resign.” Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010). The key inquiry for
constructive discharge does not focus on whether a particular employee felt
compelled to resign; instead, it focuses on whether a reasonable employee would
have felt compelled to do so. Merrell v. City of Sealy, No. 01-21-00347-CV, 2022
WL 3970078, at *8 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022, no pet.) (mem.
op). “The inquiry addresses the conditions imposed, not the employer’s state of
mind.” Id. In determining whether an employee’s resignation was reasonable, we
may consider the following factors: (1) demotion, (2) reduction in salary,
(3) reduction in job responsibilities, (4) reassignment to menial or degrading work,
(5) reassignment to work under a supervisor who subjects the employee to
discriminatory or harassing behavior, (6) badgering, harassment, or humiliation by
the employer calculated to encourage the employee’s resignation, or (7) offers of
early retirement on terms that would make the employee worse off whether the
offer was accepted or not. Hartranft v. UT Health Sci. Ctr.-Houston, No. 01-16-
01014-CV, 2018 WL 3117830, at *13 (Tex. App.—Houston [1st Dist.] June 26,
2018, no pet.) (mem. op.) (citing Winters v. Chubb & Son, Inc., 132 S.W.3d 568,
575 (Tex. App.—Houston [14th Dist.] 2004, no pet.)).
Drew alleges that her reassignment to inspecting buildings before demolition
was a retaliatory reassignment that, coupled with Varela’s attempts to reach her
13
through coworkers, created an intolerable work environment. She argues that
management’s lack of response and disregard for her safety while she was working
alone inspecting abandoned buildings from the end of January through her
resignation demonstrates that she was constructively discharged on February 4,
2019.
There is no evidence in the record that Varela directed coworkers to
communicate with Drew on his behalf. There is also no evidence he threatened to
harm Drew or that she expressed concern for her safety based on the coworkers’
comments. Even if Varela told coworkers that he expected to return to work, the
OIG decision at the end of January 2019 and the City’s actions that followed show
that Varela’s plans were fantastical. Harris also testified that reassigning Drew
along with nine other colleagues to inspect whether buildings were still standing
and in need of demolition was based on the employee’s workloads and availability,
and it was not related to her November 2018 sexual harassment complaint. Harris
further testified that while Drew inspected the sites alone, she was only expected to
take photographs from her car and was instructed to leave or call a supervisor if
she felt unsafe. She was also provided with technology that tracked her location.
The facts do not support that Drew’s job reassignment was retaliatory or in any
way related to her prior sexual harassment complaint. The record further reflects
that the City responded to Drew’s complaints about her safety following the sexual
14
harassment allegation. When Drew felt unsafe in her parking spot, the City
promptly reassigned her. At Drew’s request, Harris promptly provided Drew with
the employment assistance program.
The record does not reflect the kind of aggravating factors to discrimination
that would be sufficient for a claim of constructive discharge. See Harvill v.
Westward Commc’ns, L.L.C., 443 F.3d 428, 440 (5th Cir. 2005) (stating
discrimination alone is insufficient for constructive discharge without aggravating
factors). The City timely investigated and acted on Drew’s complaints. See Carlton
v. Hous. Cmty. Coll., No. 01-11-00249-CV, 2012 WL 3628890, at *18 (Tex.
App.—Houston [1st Dist.] Aug. 23, 2012, no pet.) (mem. op.) (holding employer’s
investigation of plaintiffs’ complaints undercut claim of constructive discharge
when measured against a reasonable-employee standard); Cox v. Waste Mgmt. of
Tex., Inc., 300 S.W.3d 424, 433 (Tex. App.—Fort Worth 2009, pet. denied) (as a
matter of law, conditions of employment should not have compelled resignation
given employer’s investigation and action in response to employee’s complaint
about treatment by supervisor was timely and reasonable); Tiner v. Tex. Dep’t of
Transp., 294 S.W.3d 390, 395–96 (Tex. App.—Tyler 2009, no pet.) (rejecting
constructive discharge when employer timely investigated and acted on
employee’s complaint about coworker). We decline to hold that Drew was
constructively discharged.
15
* **
Because the continuing violation doctrine does not apply and Drew was not
constructively discharged, Drew failed to timely exhaust her administrative
remedies. We therefore hold that the trial court did not err by granting the City’s
plea to the jurisdiction and dismissing Drew’s claim. We overrule Drew’s issue
related to the plea to the jurisdiction. We need not address Drew’s remaining issues
related to summary judgment. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the trial court’s judgment.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
16