AFFIRM; and Opinion Filed December 17, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00069-CV

                           CITY OF DALLAS, TEXAS, Appellant
                                        V.
                               KOJO NKANSAH, Appellee

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-16-13943

                             MEMORANDUM OPINION
                            Before Justices Myers, Evans, and Brown
                                   Opinion by Justice Brown
       In this interlocutory appeal, the City of Dallas, Texas, appeals the trial court’s order

denying its plea to the jurisdiction regarding a former employee’s claims for retaliation. In three

issues, the City argues the trial court erred in (1) denying its plea because the employee did not

establish that his claims fell within a waiver of the City’s immunity from suit and (2) overruling

its objections to the employee’s affidavit. We affirm.

                                         BACKGROUND

       Kojo Nkansah worked for the City for over seventeen years. He was hired on May 6, 1998,

as a Code Inspector for the Housing Department/Code Compliance. In January 2000, he became

a Senior Contract Compliance Administrator for the Housing and Community Services

Department (HCS). In January 2014, he applied for a Manager II position with HCS. Cynthia
Rogers-Ellickson, who at the time was Nkansah’s immediate supervisor, ultimately offered the

position to Rod Beck in July 2014. Beck became Nkansah’s direct supervisor, and Beck in turn

reported to Rogers-Ellickson.

        Nkansah filed a charge of discrimination with the Equal Employment Opportunity

Commission on May 12, 2014. He complained about being “passed over for three promotions

over the last year despite being well qualified.” He asserted he was harassed, discriminated

against, and retaliated against because of his national origin, gender, and age. Nkansah is an

African-American and a dual citizen of both the United States and Ghana.

        In November 2014, the City suspended Nkansah without pay for five days. He was

informed of the decision by a letter from Beck. Beck cited several reasons for the suspension,

including Nkansah’s failure to inform him he would be out of the office on October 23, 2014, to

attend a safety training session; Nkansah’s discourteous and argumentative behavior in a meeting

on October 24; discourteous emails to Beck and other City employees; and inappropriate face-to-

face interaction with a coworker. The letter also instructed Nkansah to refrain from spending time

during work hours on personal matters. The letter set out the provisions of the City’s personnel

rules Nkansah violated.

        After his suspension, on December 4, 2014, Nkansah filed a second charge of

discrimination with the EEOC. He maintained he had been discriminated against because of his

sex, age, race, and national origin and in retaliation for participating in protected activities,

specifically filing internal grievances and his previous EEOC charge. The record reflects that

between July 2013 and December 2014, Nkansah filed at least five internal grievances with the

City.

        In June 2015, the City sent Nkansah a letter notifying him of possible disciplinary action,

including termination of his employment due to alleged violations of personnel rules. The alleged

                                               –2–
violations included an incident on April 15, 2015, during which Nkansah became combative in a

meeting with Beck and created a workplace disturbance. The City also alleged Nkansah failed to

follow its earlier directive about not spending time on personal matters at work. At a June 30

hearing, Nkansah was allowed to respond to the allegations. On July 7, 2015, he was notified in a

letter from Rogers-Ellickson that his employment was terminated for the reasons provided in June.

The letter states that nothing Nkansah presented at the hearing rebutted the City’s evidence.

           In October 2016, Nkansah sued the City for retaliation under the Texas Commission on

Human Rights Act (TCHRA). He alleged he was suspended and later wrongfully discharged in

retaliation for “filing grievances due to the [City’s] discriminatory promotion practices.” The City

answered with a general denial and several affirmative defenses.

           After discovery, the City filed a plea to the jurisdiction challenging the existence of

jurisdictional facts. The City asserted the TCHRA’s waiver of governmental immunity does not

apply because Nkansah cannot establish a prima facie case of retaliation. In its jurisdictional plea,

the City challenged only whether there was a causal link between Nkansah’s protected activity and

the adverse employment actions. Nkansah responded that he could establish causation and

submitted evidence to the court. The trial court denied the City’s plea to the jurisdiction with

respect to Nkansah’s retaliation claims.1

           In its first two issues, the City contends the trial court erred in denying its plea to the

jurisdiction on Nkansah’s retaliation claims. The City maintains the court lacked jurisdiction

because the City presented evidence to challenge the jurisdictional facts and Nkansah failed to

raise a fact issue in response.




      1
        Nkansah pleaded several other causes of action, but the trial court granted the City’s plea to the jurisdiction regarding those claims and they
are not before us.

                                                                        –3–
        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 only when

the plaintiff states a claim for conduct that actually violates the statute. Id.; Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).          Immunity from suit may be asserted

through a plea to the jurisdiction which challenges the pleadings, the existence of jurisdictional

facts, or both. Alamo Heights, 544 S.W.3d at 770. We review a trial court’s disposition of a plea

to the jurisdiction de novo. City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d

566, 575 (Tex. 2018). Here, the City’s jurisdictional plea challenged the existence of jurisdictional

facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional

summary judgment. Alamo Heights, 544 S.W.3d at 771. To avoid dismissal, a plaintiff must raise

at least a genuine issue of material fact to overcome the challenge to the trial court’s subject matter

jurisdiction. Id. 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.

        The TCHRA prohibits retaliation against an employee for engaging in certain protected

activities, such as making a discrimination complaint. Id. at 781; see TEX. LAB. CODE ANN.

§ 21.055. An employee engages in a protected activity by, among other things, 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. A TCHRA claim focuses on the employer’s response

to an employee’s protected activity. Id. at 763–64. A remedy exists only when the evidence

establishes that a materially adverse employment action resulted from the employee’s protected

activities. Id. at 764. To prevail in a retaliation action under the TCHRA, the plaintiff must prove

(1) he engaged in an activity protected by the TCHRA; (2) he experienced a material adverse




                                                 –4–
employment action; and (3) a causal link existed between the protected activity and the adverse

action. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 585 (Tex. 2017).

           TCHRA violations can be established with either direct or circumstantial evidence. Alamo

Heights, 544 S.W.3d at 781–82; Mission, 372 S.W.3d at 634. Direct evidence of discrimination

is evidence of what the defendant did and said. Mission, 372 S.W.3d at 634. It is evidence that,

if believed, proves the fact of discriminatory animus without inference or presumption. Jespersen

v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.).

“[M]otives are often more covert than overt,” however, “making direct evidence of forbidden

animus hard to come by.” Mission, 372 S.W.3d at 634. Because direct evidence in these types of

cases is often unavailable, an employee can establish discrimination with circumstantial evidence

using a three-part, burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).2 Alamo Heights, 544 S.W.3d at 764; Mission, 372 S.W.3d at 634.

           The City treats this case as if it involves circumstantial evidence and the McDonnell

Douglas framework. The City argues it negated the existence of causation by establishing it had

legitimate, non-retaliatory reasons for suspending and terminating Nkansah—his unacceptable

conduct in the workplace which violated the City’s personnel rules. The City asserts the burden

shifted to Nkansah to produce evidence to create a material fact issue regarding jurisdiction by

showing that the City’s stated reasons were false and a pretext for retaliation. According to the



      2
        In Alamo Heights, the supreme court considered an issue of first impression regarding the McDonnell Douglas framework. Alamo Heights,
544 S.W.3d at 763–64. Under McDonnell Douglas, if the employee can establish a prima facie case of discrimination, a rebuttable presumption
of discrimination arises. Id. at 782. The employer can defeat this presumption by producing evidence of a legitimate, nondiscriminatory reason
for the disputed employment action. Id. The Alamo Heights court held that, once rebutted, the presumption disappears and an employee lacking
direct evidence cannot prove a statutory violation without evidence the employer’s stated reason is false and a pretext for discrimination. Id. The
causation standard for the McDonnell Douglas prima facie case element is not onerous and can be satisfied merely by proving close timing between
the protected activity and the adverse action. Id. The supreme court has not yet determined the appropriate causation standard for a TCHRA
retaliation claim. Id. at 783. It applied a “but for” standard in Alamo Heights because the parties advocated for such a standard. Id. In evaluating
but-for causation evidence in retaliation claims with circumstantial evidence, courts examine all of the circumstances, including temporal proximity
between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s
protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated
employees, and evidence the employer’s stated reason is false. Id. at 790.



                                                                       –5–
City, Nkansah cannot show he would not have been subjected to an adverse employment action

“but for” his protected activity. The City maintains it retains immunity because Nkansah did not

present any competent evidence establishing a causal link. It contends Nkansah’s response

presented only his subjective beliefs and conclusory statements and that his subjective belief is

insufficient to establish causation. And the City further asserts the temporal proximity between

the protected activity and the adverse employment actions is insufficient in this case to establish

causation.

       But contrary to the City’s argument, the record reflects that Nkansah presented direct

evidence of causation in response to the City’s plea to the jurisdiction. Attached to Nkansah’s

response were the affidavits of three former coworkers, Sherry Powell, Odus Oglesby, and Maria

Verduzco. Powell and Oglesby held the same position at HCS as Nkansah and were also under

the direct supervision of Beck. In their affidavits, both Powell and Oglesby testified about an

August 2014 staff meeting called by Rogers-Ellickson to introduce Beck as the new manager.

Nkansah was present at the meeting. According to both Powell and Oglesby, Beck professed to

the employees that “I know nothing about Housing programs, but I was hired based on my HR

experience to get rid of those filing grievances in the division.” Verduzco was an office assistant

with HCS. In her affidavit, she stated that in her presence, Beck and Rogers-Ellickson discussed

“their plan to terminate Nkansah for filing discrimination grievances.” Verduzco stated, “I was

aware that the City of Dallas management ultimately terminated Nkansah in retaliation for

opposing their discrimination in promotions.” Because Nkansah produced direct evidence of

discrimination, the McDonnell Douglas burden-shifting analysis is inapplicable. See Jespersen,

390 S.W.3d at 654.




                                               –6–
           The City did not address Powell’s, Oglesby’s, and Verduzco’s affidavits in its opening

brief.3 In a reply brief, the City responds only to the allegations in the Powell and Oglesby

affidavits about the August 2014 staff meeting. The City asserts that Beck’s statement at the

meeting is irrelevant because Beck mentioned “grievances,” not EEOC charges of discrimination,

and Beck was not the person who terminated Nkansah. We disagree that the evidence is irrelevant.

Filing an internal complaint can be a protected activity. See Alamo Heights, 544 S.W.3d at 786.

The City’s plea to the jurisdiction assumed Nkansah could establish he engaged in a protected

activity. Thus, it did not attempt to negate that element of retaliation. Evidence Nkansah’s

immediate supervisor was hired to get rid of people filing grievances bears on the City’s motives

for the adverse employment actions. Further, Verduzco’s affidavit, which the City does not

address, expressly states the City terminated Nkansah for opposing the City’s discrimination in

promotions. The evidence in Powell’s, Oglesby’s, and Verduzco’s affidavits, if believed, directly

proves the City’s discriminatory animus. See Jespersen, 390 S.W.3d at 653. Even if this evidence

was somehow circumstantial instead of direct evidence, it nevertheless raised a fact issue regarding

whether the City’s stated reasons for the adverse employment actions were false or a pretext.

Because Nkansah presented evidence raising a fact issue on causation, the trial court properly

denied the City’s plea to the jurisdiction on the retaliation claims. We overrule the City’s first and

second issues.

           In its third issue, the City contends the trial court erred in considering Nkansah’s affidavit,

which was attached to his response to the plea to the jurisdiction. The City objected to Nkansah’s

affidavit on numerous grounds. It asserted portions of the affidavit were speculative, not supported

by facts demonstrating personal knowledge, conclusory, legal conclusions, hearsay, and in



     3
       The City’s opening brief in this case was filed prior to the supreme court’s April 2018 opinion in Alamo Heights. After the Alamo Heights
opinion, the City filed a reply brief which clarified its arguments.

                                                                     –7–
violation of the best evidence rule. The trial court overruled the City’s objections. In its brief, the

City has not provided separate argument and authorities for this issue, but rather has combined it

with its argument on the first two issues. The City’s brief addresses one ground for objection—

that the affidavit was conclusory. The City complains of only one sentence in the affidavit,

Nkansah’s assertion that “Once he participated in protected action by filing [his] EEOC Charge on

May 12, 2014, and filing internal grievances,” he was singled out for “unlawful employment

practices.” Even if the trial court erred in overruling the City’s objection that this particular

statement was conclusory, the City cannot show the error probably caused the rendition of an

improper judgment. See TEX. R. APP. P. 44.1(a)(1). The erroneous admission of evidence is

harmless if it is merely cumulative. Cardona v. Simmons Estate Homes I, LP, No. 05-14-00575-

CV, 2016 WL 3014792, at *2 (Tex. App.—Dallas May 25, 2016, no pet.) (mem. op.). Nkansah

had other evidence, discussed above, that showed a connection between his protected activity and

the adverse employment actions. We overrule the City’s third issue.

       We affirm the trial court’s order.




                                                    /Ada Brown/
                                                    ADA BROWN
                                                    JUSTICE

180069F.P05




                                                 –8–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 CITY OF DALLAS, TEXAS, Appellant                     On Appeal from the 192nd Judicial District
                                                      Court, Dallas County, Texas
 No. 05-18-00069-CV          V.                       Trial Court Cause No. DC-16-13943.
                                                      Opinion delivered by Justice Brown,
 KOJO NKANSAH, Appellee                               Justices Myers and Evans participating.

      In accordance with this Court’s opinion of this date, the trial court’s January 12, 2018 order
is AFFIRMED.

        It is ORDERED that appellee Kojo Nkansah recover his costs of this appeal from appellant
City of Dallas, Texas.


Judgment entered this 17th day of December, 2018.




                                                –9–
