                                                                                           ACCEPTED
                                                                                      03-14-00079-CV
                                                                                             3772626
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 1/14/2015 4:25:40 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                      CASE NO. 03-14-00079-CV
__________________________________________________________________
                                                         FILED IN
                                                   3rd COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                THIRD JUDICIAL DISTRICT OF TEXAS1/14/2015 4:25:40 PM
__________________________________________________________________
                                                     JEFFREY D. KYLE
                                                          Clerk
                    Texas Parks and Wildlife Department,
                                 Appellant.

                                       vs.

                               Nancy Gallacher,
                                  Appellee,

__________________________________________________________________

 On Interlocutory Appeal from the 250th Judicial District of Travis County, Texas
__________________________________________________________________

              APPELLEE’S MOTION FOR REHEARING
__________________________________________________________________


                                             HOWARD & KOBELAN
                                             Logan Howard
                                             Texas Bar No. 24069952
                                             Derek A. Howard
                                             Texas Bar No. 10064600
                                             100 Congress Avenue, Ste. 1720
                                             Austin, Texas 78701
                                             (512) 480-9300
                                             (512) 480-9374 facsimile

                                             ATTORNEYS FOR APPELLEE



January 14, 2015
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................i

TABLE OF AUTHORITIES .................................................................................... ii

ISSUES PRESENTED FOR REVIEW ..................................................................... 1

         I.        ISSUE ONE:.......................................................................................... 1
                   Whether the Court of Appeals erred in holding that the trial court
                   lacked subject matter jurisdiction over Gallacher’s retaliation claim
                   because she did not present evidence supporting a prima facie case of
                   retaliation under the TCHRA.

                            A) Gallacher has presented evidence to show that TPWD
                            departed from its policies and procedures.

                            B) Gallacher has presented evidence to show a “very close”
                            temporal proximity between her protected activity and the
                            adverse employment action against her.

ARGUMENT AND AUTHORITIES ........................................................................ 2

PRAYER .................................................................................................................. 10

CERTIFICATE OF COMPLIANCE ....................................................................... 11

CERTIFICATE OF SERVICE ................................................................................ 12




                                                             i
                                   TABLE OF AUTHORITIES

Cases:

Ackel v. National Communications, Inc.,
      339 F.3d 376 (5th Cir. 2003) ..................................................................... 8, 10

Anderson v. Coors Brewing Co.,
     181 F.3d 1171 (10th Cir.1999) ........................................................................ 8

Bland Indep. Sch. Dist. v. Blue
      34 S.W.3d 547 (Tex.2000) .............................................................................. 9

Gee v. Principi,
      289 F.3d 342 (5th Cir. 2002) ........................................................................... 8

Long v. Eastfield Coll.,
      88 F.3d 300 (5th Cir.1996) ............................................................................ 10

Pardo-Kronemann v. Jackson,
     541 F.Supp.2d 210 (D.D.C. 2008) aff’d in part, rev’d in part on other
     grounds, 601 F.3d 599 (D.C.Cir.2010) ........................................................... 9

San Antonio Water System v. Nicholas.,
     441 S.W.3d 382 (Tex.App.-San Antonio, 2013) ............................................. 9

Tex. Dep’t. of Parks and Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) ....................................................................... 2, 5




                                                       ii
                     CASE NO. 03-14-00079-CV
__________________________________________________________________

                IN THE COURT OF APPEALS FOR THE
                THIRD JUDICIAL DISTRICT OF TEXAS
__________________________________________________________________

                    Texas Parks and Wildlife Department,
                                 Appellant.

                                        vs.

                          Nancy Gallacher,
                             Appellee,
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW, Appellee, Nancy Gallacher (hereinafter “Gallacher”,

“Plaintiff”, or “Appellee”), and respectfully submits this Motion for Rehearing

pursuant to Tex.R.App.P. 49.1 and would show the Court the following:


                     ISSUE PRESENTED FOR REVIEW

Issue No. 1:   Whether the Court of Appeals erred in holding that the trial court
               lacked subject matter jurisdiction over Gallacher’s retaliation claim
               because she did not present evidence supporting a prima facie case
               of retaliation under the TCHRA. More specifically, the Court
               ignored relevant evidence and incorrectly found (a) that TPWD did
               not depart from its policies and procedures and (b) that “Gallacher’s
               ‘mere temporal proximity’ argument is insufficient to show a causal
               link existed between protected activity she engaged in and an
               adverse employment action against her.”



                                         1
                      ARGUMENT AND AUTHORITIES

      While this Court has correctly stated the elements of a prima facie claim of

retaliation, Appellee contends that the Court has misstated relevant facts and,

therefore, misapplied the law.

Gallacher has produced sufficient evidence to support a prima facie claim of
retaliation under the TCHRA

      First, Gallacher would argue that the Court has exceeded its role in reviewing

the trial court’s denial of TPWD’s plea to the jurisdiction. The Court is to “take as

true all evidence favorable to the nonmovant, indulging every reasonable inference

and resolving any doubts in the nonmovant’s favor.” Texas Department of Parks

and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). Here, the Court did not

adhere to this standard of review.

Gallacher has produced sufficient evidence to establish the causation element
of her retaliation claim by showing that TPWD departed from its policies and
procedures.

      The Court’s Opinion states that “[w]hether to approve the 320 hours of

sick-pool leave that Gallacher requested was a decision left to Wagner’s discretion,

and simply requesting that leave did not automatically entitle Gallacher to approval

of it. While the Court is technically correct in stating that Wagner’s actions were

“not prohibited by TPWD’s policies and procedures”, there is no fact in evidence to



                                         2
suggest that the decision was actually within “Wagner’s discretion” or actually

authorized in TPWD’s policies and procedures.

      The Sick Leave Pool Request and Authorization form is to be filled out by

the employee. SCR 246. The top portion of the form states “I hereby request

_____ hours from the Sick Leave Pool.”           CR 61-62.      It then contains an

“Employee Certification” and a place for the employee to sign the form. Id. The

document clearly indicates that it is the employee, and not the employee’s

supervisor, who is supposed to fill out the top half of the form. The supervisor is to

sign the “Recommendation from supervisor” stating that “this employee is meeting

job performance standards, observing TPWD policies and has properly managed

use of his/her sick leave. I recommend approval of this request.” Id. Nowhere

in the TPWD Sick Leave Pool Policy or on the Sick Leave Pool Request and

Authorization does it state that the supervisor has the authority to alter the

employee’s request, or make the final decision as to whether or not to grant or deny

the employee’s request.     Yet Wagner made the decision to alter Gallacher’s

request, admittedly without notifying Gallacher or any other TPWD employee, and

unilaterally denied her request. SCR 87; 175-177. It is Gallacher’s contention

that TPWD Policy permits a supervisor to have input in an employee’s request for




                                          3
Sick Leave Pool, but does not impart on that supervisor the authority to ultimately

make the decision.

      Appellee argues that the ambiguity in TPWD’s policies and procedures,

along with the testimony of Wagner, should be a fact issue to be considered by a

jury. It is clear that the TPWD policies and procedures concerning sick leave pool

do not specifically authorize a supervisor to alter a sick leave pool request form or

ultimately approve or deny an employee’s request for sick leave pool. To the

contrary, the TPWD policies and procedures do specifically state that it is the Sick

Leave Pool Administrator, Rebecca Gonzales, who has the authority to approve or

deny the sick leave pool request. Additionally, the following is an excerpt from

Wagner’s deposition:

             Q: Is it still your belief that you have the authority to

             alter an employee’s sick leave pool request?

                     Ms. Connor: Objection, form.

             A: I didn’t think about it.

             Q: Well, after reviewing this policy, is that still your

             belief?

                     Ms. Connor: Objection, form.

             A: Probably not, no.


                                           4
SCR 176-177 at 69-70. After reviewing the TPWD policy regarding sick leave

pool requests, Wagner admitted that he did not believe that he had the authority to

alter an employee’s sick leave pool request as he did with Gallacher. Additionally,

Ms. Gonzales even testified that had Gallacher’s request been submitted with the

320 hours of sick leave pool she was requesting, there was “nothing that would have

prevented her from granting the full 320 hours. CR 102 at 29; SCR 244-247.

TPWD also submitted the following position to the EEOC in response to the

EEOC’s request for TPWD to “[e]xplain why Mr. Wagner determined how many

hours Ms. Gallacher would be granted”:

            “it is the [Sick Leave Pool] administrator’s responsibility

            to determine the employee’s eligibility to withdraw time

            from the SLP, including verifying that the employee is

            suffering from a catastrophic illness or injury and has

            exhausted all accrued available leave…”

CR 127. By TPWD’s own admission, it is not the decision of the employee’s

supervisor to make.

      The Texas Supreme Court has held that if the evidence creates a fact

question, the court cannot grant a plea to the jurisdiction. Miranda, 133 S.W.3d

217, at 228. Gallacher is only required to show that there is a disputed material


                                         5
fact, and the Court must take as true all evidence favorable to Gallacher and resolve

any doubts in her favor. Id. Clearly, the evidence is not undisputed and there

remains a fact question as to whether or not Wagner had the authority to unilaterally

alter and deny Gallacher’s sick leave pool request form without notifying Gallacher

or Ms. Gonzales.

Gallacher has produced sufficient evidence to establish the causation element
of her retaliation claim by showing the “very close” temporal proximity
between her protected activity and the adverse employment action against
her.

      The Court’s Opinion further states that “[t]he only remaining basis for

Gallacher’s causation argument is the three-month period between her complaint to

Lopp about Wagner and the termination of her employment.” The “three-month”

period cited by the Court is a gross mischaracterization of the time frame that the

Court should be considering for Gallacher’s retaliation claim.                While

approximately three-months elapsed between the date that Gallacher complained to

Jim Lopp and her last day of employment, the facts clearly show that far less time

passed between the date that Wagner was actually made aware of Gallacher’s

complaint and the date on which he decided to terminate Gallacher. It is this latter

time frame that should have been considered by the Court in its review.




                                         6
The following is the timeline of events relevant to Gallacher’s retaliation claim:

      September 2010 – Gallacher complained to TPWD Deputy Director
      Jim Lopp about alleged discriminatory treatment of her by Wagner.
      CR 120-121, 124; SCR 102.

      Early October 2010 – Lopp met with Wagner to discuss Gallacher’s
      complaints. SCR 102-103.

      November 3, 2010 – Gallacher requested 320 hours of sick leave pool
      for open-heart surgery. CR 61-62

      November 10, 2010 – Wagner sent Gallacher a letter notifying her that
      he was only approving 160 hours of sick leave pool and that he was
      “unable to commit to a longer period of approved leave and will be
      making a decision in the near future on whether the Wildlife Division’s
      business needs will allow for leaving [her] position open.” SCR 213.

      November 23, 2010 – Wagner emailed Gonzales about the termination
      process for Gallacher. SCR 177-178 at 73-74.

      November 29, 2010 – Wagner sent Gallacher a letter notifying her that
      she was being terminated as of December 17, 2010. SCR 214.

Therefore, Wagner made his decision to deny Gallacher 160 hours of sick leave

pool less than six (6) weeks after he was made aware of her complaint to Lopp

(Early October 2010 to November 10, 2010).            Gallacher would argue that

Wagner’s decision to deny Gallacher 160 hours of sick leave pool, knowing that she

needed 320 hours of sick leave pool for open heart surgery, was, in effect, a

decision to terminate Gallacher. Even if the Court takes the position that Wagner

did not actually decide to terminate Gallacher until November 23, 2010 or


                                          7
November 29, 2010, the temporal proximity between Gallacher’s complaint and

Wagner’s decision to fire her is still less than two (2) months from the date he was

made aware of her complaint to Lopp.

      While the Tenth Circuit, as cited in the Court’s Opinion, has found that a

“three-month gap”, by itself, is insufficient to infer a causal link, the Tenth Circuit

has also found that a “one and one-half month period… may, by itself, establish

causation.”    Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th

Cir.1999). Here, Gallacher has produced evidence to show that approximately one

and one-half months (or less) passed between Wagner being made aware of her

complaint to Lopp (in early October 2010) and Wagner effectively terminating her

employment (on or before November 10, 2010 when he denied Gallacher’s request

for 320 hours of Sick Leave Pool). While Gallacher would argue that the adverse

employment action occurred on or before November 10, 2010, the latest date that

should be considered as the date of the adverse employment action against

Gallacher should be November 29, 2010 (the date on which Wagner sent Gallacher

a letter notifying her that she was being terminated).

      In determining whether an adverse employment action was retaliatory, the

Court must focus on “the final decisionmaker.”                   Ackel v. National

Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (citing Gee v. Principi,


                                          8
289 F.3d 342, 346 (5th Cir. 2002). Here, the final decision maker is Wagner, and

therefore, the time period relevant to Gallacher’s retaliation claim should focus on

Wagner’s knowledge of her complaint and Wagner’s decision to terminate

Gallacher. Further, the Fourth Court of Appeals in San Antonio has stated that

“[e]specially where a defendant retaliates at the first opportunity that is presented, a

plaintiff will not be foreclosed from making out a prima facie case despite a

substantial gap in time.” San Antonio Water System v. Nicholas, 441 S.W.3d 382,

392-393 (Tex.App.-San Antonio, 2013) (citing Pardo-Kronemann v. Jackson, 541

F.Supp.2d 210, 218 (D.D.C. 2008) aff’d in part, rev’d in part on other grounds, 601

F.3d 599 (D.C.Cir.2010). Gallacher would argue that the evidence supports the

contention that Wagner retaliated at the first opportunity he had following her

complaint; i.e. when Gallacher submitted a request for sick leave pool for open

heart surgery on November 3, 2010 and Wagner discovered from HR that Gallacher

would soon be running out of FMLA protected leave. SCR 174-175 at 61-62; SCR

178 at 76.

       In addition to taking as true all evidence favorable to Gallacher, the Court

must also make its decision “without delving into the merits of the case.” Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Gallacher is not

required to “put on [her] case simply to establish jurisdiction.” Id. Gallacher has


                                           9
pled sufficient facts to establish a prima facie case of retaliation, and she has

submitted evidence in support of those facts.          At the prima facie stage, “the

standard for satisfying the causation element is ‘much less stringent’ than a ‘but for’

causation standard.” Ackel, 339 F.3d 376, at 385 (citing Long v. Eastfield Coll., 88

F.3d 300, 305 n. 4 (5th Cir.1996). Gallacher need only submit some evidence of a

causal link between her protected activity and the adverse action taken against her

to establish her prima facie claim of retaliation. Id. Gallacher has met this

burden, and the trial court’s denial of TPWD’s Plea to the Jurisdiction with respect

to Gallacher’s retaliation claim should be affirmed.

                                      PRAYER

      Based on the reasons described hereinabove, Gallacher respectfully requests

that this Court grant this motion for rehearing, modify its December 31, 2014

Opinion to affirm the trial court’s denial of TPWD’s Plea to the Jurisdiction with

respect to Gallacher’s retaliation claim, and grant such further relief to which

Gallacher may show herself justly entitled.




                                          10
                                              Respectfully submitted,

                                              HOWARD & KOBELAN
                                              100 Congress Avenue, Ste. 1720
                                              Austin, Texas 78701
                                              (512) 480-9300
                                              (512) 480-9374 facsimile

                                              By: /s/ Logan Howard
                                              Logan E. Howard
                                              State Bar No. 24069952
                                              Derek A. Howard
                                              State Bar No. 10064600

                                              ATTORNEYS FOR APPELLEE



                      CERTIFICATE OF COMPLIANCE

       I certify that this document contains 2,050 words (counting all portions of the
document that are subject to the word limits of Texas Rule of appellate Procedure
9.4(i)), according to the word-processing software used to produce this document.


                                              /s/ Logan Howard
                                              Logan Howard




                                         11
                       CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was forwarded in
accordance with Texas Rules of Appellate Procedure to all counsel of record, as
listed below, via e-mail on this the 14th day of January 2015.


Madeleine Connor, Assistant Attorney General
Office of Attorney General
P.O. Box 12548
Austin, Texas 78711
Madeleine.connor@texasattorneygeneral.gov


                                           /s/ Logan Howard
                                           Logan Howard




                                      12
