      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00580-CV



          Aaron V. Bishop; Ronald J. Booker; Richard Burns; Albert Cortez, Jr.;
          Eric De Los Santos; Jovita Lopez; Aurelio Martinez; Norris McKenzie;
             Tomas Montez; Henry D. Moreno; Ricardo Pelayo; Jesse Prado;
            Oscar Ramirez; James Stanesic; Lester Vanzura; et al., Appellants

                                                  v.

                                   The City of Austin, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
        NO. D-1-GN-14-002459, HONORABLE KARIN CRUMP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This dispute arises from the 2013 restructuring of the organized crime division of the

Austin Police Department (“APD”). Seventeen current and former APD officers allege that the

City of Austin restructured that division using discriminatory employment practices prohibited by

the Texas Commission on Human Rights Act (“TCHRA”). See Tex. Lab. Code § 21.051. These

plaintiffs now challenge a series of orders granting the City’s pleas to the jurisdiction and rendering

a take-nothing judgment against each plaintiff. We will affirm the district court’s orders.


                                         BACKGROUND

               Because the parties are familiar with the facts underlying this dispute, and because

many details are classified, we will summarize the relevant facts only to the extent necessary
to resolve this appeal. Sometime in 2012 or 2013, the City and APD leadership initiated a

comprehensive review of the organized crime division to investigate complaints of chronic

inefficiency and unprofessionalism within that division. According to APD, some of the problems

discovered were more serious than originally anticipated, leading the City and APD leadership to

conclude the entire division would need to be restructured.

                At the outset of restructuring, the organized crime division comprised several smaller

units: the human trafficking unit, the gang suppression unit, the career criminal unit, and one or more

narcotics units. After deciding the longstanding problems could not be corrected under existing

division leadership, APD informed the highest ranking officers—including the division commander

and three lieutenants—that they would be reassigned to other divisions. The next-highest ranking

officers—the sergeants—were offered interviews that afforded each sergeant an opportunity to

explain how he or she would address the problems within the organized crime division. One

sergeant chose to retire without attending his interview, and four others were reassigned to other

divisions. APD also reassigned several detectives and other lower-ranking officers. Of the 107

officers in the organized crime division in May of 2013, a total of 29 were reassigned or chose to

retire by the end of the year.

                These personnel decisions ultimately led the plaintiffs here to file individual

complaints with the Texas Workforce Commission alleging discrimination on the basis of ethnicity,

national origin, race, and age in violation of section 21.051 of the Texas Labor Code. Upon

receiving their respective notices of claim closure and right-to-sue letters, they then jointly filed this

suit against the City. The City raised a defense of governmental immunity through a series of pleas



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to the jurisdiction and motions for summary judgment. The district court granted the City’s pleas

to the jurisdiction and motions for summary judgment and issued orders rendering a take-nothing

judgment against each plaintiff. The plaintiffs now appeal from those orders.


                                    STANDARD OF REVIEW

               The district court’s jurisdiction is a question of law we review de novo. Guevara v.

H.E. Butt Grocery Co., 82 S.W.3d 550, 551 (Tex. App.—San Antonio 2002, pet. denied).

“Immunity from suit bars a suit against the State unless the Legislature expressly consents to the

suit.” Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see also

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Texas Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental unit may raise the issue

of immunity and challenge jurisdiction “through a plea to the jurisdiction or other procedural vehicle,

such as a motion for summary judgment.” Alamo Heights Indep. Sch. Dist. v. Clark, ___ S.W.3d

___, ___, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018) (citing Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

               “The TCHRA waives immunity, but only when the plaintiff states a claim for conduct

that actually violates the statute.” Id. The Supreme Court of Texas recently clarified the analytical

framework for evaluating jurisdiction over a TCHRA claim based on circumstantial, rather than

direct, evidence of discrimination. See generally id. (analyzing claims of discrimination and

retaliation). If the defendant in such a case presents evidence of a legitimate, non-discriminatory

justification for the employment actions taken—as the City has done here—the plaintiff cannot

establish jurisdiction merely by pleading a prima facie claim of discrimination or retaliation. Id.

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at *7. Instead, the plaintiff “must raise at least a genuine issue of material fact” regarding each

element of the claim. Id. (quoting Miranda, 133 S.W.3d at 221); see also id. at *17 (“All elements

of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional.”). “In determining whether

a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging

every reasonable inference and resolving any doubts in the plaintiff's favor.” Id. at *7 (citing

Miranda, 133 S.W.3d at 228). “In doing so, however, we cannot disregard evidence necessary to

show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if

reasonable jurors could not.” Id.


                                           DISCUSSION

               The plaintiffs’ legal theories have evolved over the course of this litigation, with some

plaintiffs alleging discrimination by disparate treatment and others alleging discrimination by

disparate impact. “[Courts] long have distinguished between ‘disparate treatment’ and ‘disparate

impact’ theories of employment discrimination.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609

(1993). Disparate treatment refers to an employment decision made with an intent to target one or

more members of a protected group, whereas disparate impact refers to employment decisions made

in accordance with some policy that, although facially neutral, affects members of a protected class

more adversely than other employees. See International Bhd. of Teamsters v. United States,

431 U.S. 324, 335 n.15 (1977) (explaining the difference between the two theories of

discrimination). The parties have briefed this Court as though each plaintiff is pursuing both claims.




                                                  4
We assume, for the purpose of this analysis, that each plaintiff has properly pleaded the two claims,

exhausted any administrative remedies, and preserved his or her arguments for our review.1


Disparate Treatment

               To demonstrate disparate treatment under the TCHRA, a plaintiff must show:

(1) that he or she is a member of a protected class, (2) that he or she experienced an adverse

employment action, (3) that other similarly situated employees were treated more favorably, and

(4) that the adverse employment action was motivated by the protected attribute. AutoZone, Inc. v.

Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam); see also Mission Consol. Indep. Sch. Dist.

v. Garcia, 372 S.W.3d 629, 638 (Tex. 2012). The City concedes each plaintiff is a member of a

class protected by the TCHRA but argues the disputed personnel decisions do not qualify as adverse

employment actions, contends the plaintiffs have not identified any similarly situated employees that

were treated more favorably, and denies these decisions were motivated by any protected attribute.

Because it is dispositive of this appeal, we will focus on whether the plaintiffs have raised a genuine

question of fact regarding the fourth element—the motivation behind the challenged decisions—on

an assumption that each plaintiff has alleged an adverse employment action.2 We will, for the

       1
          The City contends certain plaintiffs failed to seek timely administrative relief, failed to
accurately articulate the nature of the claim in the administrative complaint, or otherwise failed to
exhaust administrative remedies. We find it unnecessary to address these issues to resolve this
appeal. See Tex. R. App. P. 47.1.
       2
         We will assume, without deciding, that each plaintiff has alleged an adverse employment
action with the exception of Officer Moreno and Detective Prado. Moreno specializes in housing
enforcement, which was moved from organized crime to another division during restructuring.
Moreno concedes that his responsibilities, hours, and pay remained unchanged and has not identified
any respect in which the restructuring resulted in negative material impact. He therefore has not
alleged an adverse employment action. See Elgaghil v. Tarrant Cty. Junior Coll., 45 S.W.3d 133,

                                                  5
most part, consider each plaintiff’s claims in the context of the unit or group to which the plaintiff

belonged prior to restructuring, as each presents a set of facts and a context that informs

this discussion.

               With respect to the human trafficking unit, APD’s internal review revealed frequent

internal policy violations that led Chief Acevedo and his leadership team to issue an urgent memo

ordering all unit officers to suspend investigations immediately and indefinitely. APD ultimately

decided to disband the unit in its entirety, with no officers exempt from the decision. The officers

in this unit were subject to reassignment irrespective of race, gender, national origin, age, or

seniority. The procedures used in reassignment varied from case to case, but those differences

corresponded with rank and employment contract—not with any characteristic protected by the

TCHRA. When challenged actions are undeniably indiscriminate, the record will not support a

finding of discrimination. See Alamo Heights, 2018 WL 1692367, at *11 (“It would be paradoxical

to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct.”



142–43 (Tex. App.—Fort Worth 2000, pet. denied) (“Title VII and chapter 21 [of the Texas Labor
Code] were designed to address ultimate employment decisions, not every action that occurs in the
workplace that makes an employee unhappy.” (citations omitted)).
                APD did not take any action against Prado, a narcotics investigator, because he
announced his retirement before the personnel decisions were made. Nothing in this voluminous
record suggests APD planned to reassign Prado, terminate his position, or take any other adverse
action against him. Any argument that he retired to avoid being reassigned with “all the old guys”
is premised entirely on speculation and is further undermined by evidence of APD’s ultimate
decisions regarding the rest of the narcotics officers. Neither speculation nor subjective belief
creates a genuine issue of fact regarding an element of a TCHRA claim. Madden v. El Paso Indep.
Sch. Dist., 473 S.W.3d 355, 362 (Tex. App.—El Paso 2015, no pet.); c.f. UT Health Sci. Ctr.–Hous.
v. Carver, No. 01-16-01010-CV, 2018 WL 1473897, at *6 (Tex. App.—Houston [1st Dist.]
Mar. 27, 2018, no pet. h.) (mem. op) (rejecting defendant’s characterization of plaintiff’s TCHRA
allegations as speculative); Menefee v. McCaw Cellular Commc’ns., No. 05-02-00142-CV, 2003
WL 1461469, at *5 (Tex. App.—Dallas Mar. 24, 2003, no pet.) (mem. op) (same).

                                                  6
(quoting Baldwin v. Blue Cross/Blue Shield, 480 F.3d 1287, 1301 (11th Cir. 2007))). Accordingly,

the plaintiffs from the human trafficking unit—i.e., Bishop, Booker, Cortez, Martinez, Motez,

Pelayo, and Wesley—have failed to create a genuine question of fact regarding the allegedly

discriminatory motive behind the contested actions.

               APD similarly decided to disband the career criminal unit in its entirety. Although

APD did not find the unit to exhibit the same policy violations identified within the human

trafficking unit, multiple officers were implicated in a highly publicized 2012 incident that left the

City involved in civil and criminal litigation in multiple counties. APD leadership concluded the

unit’s relative isolation had contributed to the incident and that the unit’s mission would be better

accomplished through the combined efforts of multiple units than by a single, freestanding unit.

Courts have acknowledged that the elimination of an entire business unit might, in some instances,

disguise a discriminatory intent. See Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1267 (8th Cir.

1987) (considering such a possibility before affirming trial court’s decision to vacate jury finding

of discrimination). But an inference of discrimination will not lie where the plaintiff’s allegations

are “overwhelmed” by the defendant’s evidence of the non-discriminatory reason for its personnel

decisions, id., as is the case here. Thus, the plaintiffs from the career criminal unit—i.e., Lopez,

McKenzie, Ramirez, and Reza—have failed to create a genuine issue regarding discriminatory intent.

               APD also decided to change its approach to gang suppression. The City submitted

evidence that the gang suppression unit was not operating within its budget and was showing signs

of inadequate supervision. When the two sergeants in charge of the unit offered no solutions—with

each one simply deferring to the other to correct the issues—APD leadership decided to replace



                                                  7
them both. The City also introduced evidence of numerous written complaints from the Austin

Independent School District regarding an APD-sponsored gang-prevention program, including

reports of frequent unexplained absenteeism on the part of the two APD officers assigned to the

program. In response to these complaints, APD reassigned those two officers to other divisions and

reduced the rank associated with the now-vacant school positions to increase supervision and reduce

cost. No juror could reasonably ignore the context in which the actions challenged by the plaintiffs

working in gang suppression—i.e., de los Santos, Stanesic, and Venzura—were taken, so these

plaintiffs cannot satisfy their jurisdictional burden to create a genuine question of fact regarding

discriminatory intent. See Alamo Heights, 2018 WL 1692367, at *7.

                The remaining two claims are those of Lieutenant Yarbrough and Sergeant Burns.

Lieutenant Yarbrough alleges he suffered age discrimination when he was reassigned, along with

the other three highest ranking officers in the organized crime division, to another division. The

record reveals APD reassigned these four officers out of concern that existing division leadership

could not efficiently and effectively correct the issues identified. Given the serious policy violations

identified in APD’s review of the division and the fact that APD chose to remove all four senior

officers together—regardless of age, seniority, or specialty—Yarbrough cannot generate a genuine

issue of material fact regarding discriminatory motive. Leichihman, 814 F.2d at 1267.

                Sergeant Burns had been with APD since 1985 and specialized in narcotics

investigations. Based on the results of the evaluation interviews offered to all sergeants, he was

retained within the organized crime division, but APD reassigned some of his lesser responsibilities

to others to increase his availability to supervise subordinate officers. He filed a charge of age



                                                   8
discrimination in December of 2013 and voluntarily resigned the following May.              Burns’s

discrimination theory is not entirely clear. He appears to argue that he retired to avoid the

humiliation of being reassigned or forced into retirement, but there is no evidence he was ever

considered a candidate for reassignment or termination, much less that any such action would have

been motivated by discriminatory intent. To the contrary, the record reveals that once he announced

his retirement, his superiors repeatedly asked him to stay with the force. Nor is there any evidence

his conditions became “so intolerable that a reasonable employee would feel compelled to resign.”

Cf. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (discussing resignation as form

of adverse employment action). To whatever extent Burns alleges that the change in responsibilities

constitutes an adverse action, the record precludes any finding that the change was impermissibly

motivated by his age. Thus, like Yarbrough, Burns cannot meet his jurisdictional burden to raise a

fact issue regarding a discriminatory motive. Id.

               Reviewing this record in the light most favorable to the plaintiffs and drawing all

reasonable inferences in their favor, we conclude a reasonable juror could find a discriminatory

motive on the part of APD only by impermissibly ignoring the context in which the decisions were

made or by otherwise disregarding the overwhelming evidence that APD acted primarily on a need

to address ongoing issues within the organized crime division. The plaintiffs therefore have not

raised a genuine question of fact regarding the motivation behind the disputed actions and therefore

cannot establish the district court’s jurisdiction over their disparate-treatment claims. Alamo

Heights, 2018 WL 1692367, at *7, 17. We affirm district court’s entry of take-nothing judgments

on those claims.



                                                 9
Disparate Impact

               The plaintiffs collectively allege the restructuring of the organized crime division

resulted in a “younger and whiter” division and therefore gives rise to a disparate-impact claim under

the TCHRA. To prevail on a claim of disparate impact, a plaintiff must “‘(1) isolate and identify the

specific employment practice challenged; (2) demonstrate any observed statistical disparity that the

practice has on the protected class; and (3) demonstrate a causal link between the identified practice

and the demonstrated disparity.’” City of Austin v. Chandler, 428 S.W.3d 398, 408 (Tex.

App.—Austin 2014 no pet.) (op. on reh’g) (quoting Texas Parks & Wildlife Dep’t v. Dearing, 240

S.W.3d 330, 342 (Tex. App.—Austin 2007, pet. denied)); see also Tex. Lab. Code § 21.122 (setting

forth plaintiff’s burden when pleading disparate impact). To establish the trial court’s jurisdiction

over these claims, the plaintiffs must generate a genuine issue of fact regarding each element. Alamo

Heights, 2018 WL 1692367, at *7, 17.

               After reviewing the arguments raised before the district court and on appeal, we

conclude the plaintiffs have not identified any specific employment practice that might serve as the

basis of a disparate-impact claim. The theory of disparate impact is derived from the original

language of Title VII of the Civil Rights Act, which prohibits an employer from “classify[ing] his

employees in any way which would deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an employee, because of such individual’s

race, color, religion, sex, or national origin.” See Pub. L. No. 88-352, 78 Stat. 255 (1964), codified

as amended at 42 U.S.C. § 2000e-2(a)(2) (2014). Relying on this language, the U.S. Supreme Court

held, “The Act proscribes not only overt discrimination but also practices that are fair in form, but



                                                 10
discriminatory in operation,” and further explained that an employer’s intent is irrelevant in

determining whether a disputed practice is discriminatory in operation. Griggs v. Duke Power Co.,

401 U.S. 424, 430–31 (U.S. 1971); see also International Bhd. of Teamsters, 431 U.S. at 335 n.15

(naming this theory of discrimination “disparate impact”). The Texas Legislature expressly

prohibited this form of employment discrimination under the TCHRA, authorizing employees to

challenge any “particular employment practice that causes a disparate impact on the basis of race,

color, sex, national origin, religion, or disability.” Tex. Lab. Code § 21.122(a)(1); see also id.

§ 21.122(b) (authorizing claims of age-related disparate impact).

               Consistent with the language of these statutes, a plaintiff pleading disparate impact

must identify a specific, uniformly imposed practice or policy that disproportionately impacts a

protected class. Chandler, 428 S.W.3d at 408. This requirement exists “to avoid the result of

employers being potentially liable for the myriad of innocent causes that may lead to statistical

imbalances.” Id. (quoting Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100 (2008)). For

example, the Griggs Court considered a screening exam required of all applicants for internal

transfer and deemed it unlawful because it adversely impacted certain minorities and was not “shown

to bear a demonstrable relationship to successful performance of the jobs for which it was used.”

Griggs, 401 U.S. at 431. And this Court previously found a prima facie case of disparate impact

where older employees challenged a restructuring policy that credited all reassigned employees

with a maximum of just three years of service—regardless of actual years of service. Chandler,

428 S.W.3d at 408–09.




                                                11
               Unlike the plaintiffs in Griggs and Chandler, the plaintiffs here have not

identified any specific policy or practice used in the contested restructuring decisions. They claim

to “challenge[] the specific employment practice of transferring officers with more than four or five

(4 or 5) years of service.” Referring to this alleged practice as the “4-5 year rule,” they further

contend “this specific practice permeated the entire selection process” and resulted in “gross

statistical disparity” among the reassigned officers versus those selected to stay in the restructured

organized crime division. But the evidence refutes any argument such a rule was used in

restructuring. Despite APD’s submission of thousands of pages of personnel files, internal

memoranda, and other documents, there is no reference to such a practice or policy anywhere in the

record. As explained in our discussion of disparate treatment, whole units were disbanded in their

entirety, irrespective of the tenure of the officers within those units. All three lieutenants were

reassigned, including one that had only been with the organized crime division a few months. While

the record confirms that seniority and tenure factored into the personnel decisions made during

restructuring, those factors, in and of themselves, are not impermissible considerations in personnel

decisions. Id. at 410.

               It appears the plaintiffs are simply recasting their allegations of disparate treatment

as disparate impact. They allege, for example, that Chief Acevedo was “the architect” of “the

specific employment practice of transferring officers with more than four or five years of service in

[the organized crime division].” They point to evidence that Acevedo believed officers sometimes

“get into a rut” and “become stale” after more than a few years of service. They argue that he and

one of his commanders used restructuring as a means to “target” officers on the basis of age and



                                                 12
ethnicity. Even taking these allegations as true, as we must, these are arguments regarding pretext

and discriminatory motive—not disparate impact. See International Bhd. of Teamsters, 431 U.S.

at 335 n.15. As already explained, in light of the record as a whole—including its classified

components—the plaintiffs did not meet their jurisdictional burden to establish a genuine question

of fact regarding a discriminatory motive. Thus, even if we were to construe the entire restructuring

approach as the “specific employment practice” resulting in disparate impact, the plaintiffs could not

satisfy their jurisdictional burden, as the overwhelming evidence of business necessity and use of

reasonable evaluation factors would prevent them from “creat[ing] a fact issue on the ultimate issue”

in the case.3

                Because the plaintiffs have not generated a genuine question of fact regarding

disparate impact, they cannot overcome the City’s governmental immunity from suit. Alamo

Heights, 2018 WL 1692367, at *7, 17. We therefore overrule their challenge to the district court’s

entry of take-nothing judgment on the disparate-impact claims. Having concluded that the plaintiffs

cannot overcome the City’s governmental immunity from suit, we find it unnecessary to reach any

other issues raised by the parties. See Tex. R. App. P. 47.1.




        3
           Alamo Heights, 2018 WL 1692367, at *18; see also Tex. Lab. Code §§ 21.122(a)(1)
(providing defense of “business necessity” where practice has disparate impact on the basis of race,
color, sex, national origin, religion, or disability), .122(b) (instructing Texas courts to look to judicial
interpretation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq.,
for defenses to age-related disparate-impact claims); Meacham v. Knolls Atomic Power Lab.,
554 U.S. 84, 97–98 (2008) (clarifying that ADEA provides a defense of “reasonable factor[s] other
than age” but not the defense of “business necessity” provided by other discrimination statutes).

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                                        CONCLUSION

               We affirm the district court’s orders granting the City’s motions and entering a

take-nothing judgment against each plaintiff.



                                                _________________________________________
                                                Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: June 21, 2018




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