      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00607-CV



                                  The City of Austin, Appellant

                                                  v.

                                      Donald Baker, 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 suit arises from the 2013 restructuring of the organized crime division of the

Austin Police Department (“APD”). Donald Baker alleges the City of Austin retaliated against him

for reporting certain personnel decisions as possible violations of state or federal law. See Tex. Lab.

Code § 21.055 (forbidding retaliation against a person opposing a discriminatory practice). The trial

court denied the City’s plea to the jurisdiction and motion for summary judgment. We will affirm

the trial court’s order.


                                         BACKGROUND

                Sometime in 2013, the City of Austin began restructuring APD’s organized

crime division to address what the City described as longstanding inefficiency and pervasive

unprofessionalism. The resulting employment actions led numerous employees to file claims of

discrimination with the Texas Workforce Commission and subsequently to file suit against the City.
We addressed those discrimination claims in a separate opinion. See Bishop v. City of Austin,

No. 03-16-00580-CV (Tex. App.—Austin June 21, 2018, no pet. h.) (affirming trial court’s

dismissal of claims).

               When restructuring of the organized crime division began, Art Acevedo was serving

as Chief of Police and Baker was commander of the division. In May of 2013, APD transferred

Baker to another division, allegedly due to Baker’s reluctance to implement some of the desired

changes. While additional personnel decisions were ongoing, Baker heard rumors that older

employees and minorities were being disproportionately affected by the restructuring. Baker alleges

that, after reviewing the numbers for himself, he “immediately began voicing his concerns regarding

age, race, and ethnic discrimination.” It is not clear when Baker first raised these concerns, but the

evidence presented by both parties reveals he had done so by the middle of July at the latest, and the

City’s records confirm the concerns were forwarded up the chain of command at subsequent

meetings of APD leadership.

               The parties provide consistent accounts of what happened next, although they

disagree as to the legal significance of these facts. Baker became the subject of two internal

investigations: in August of 2013 he received a written warning for failing to fully reprimand officers

involved in an incident at the 2012 “Occupy Austin” protests, and in 2014 he was investigated for

declining to fully reprimand an officer for her apparent failure to effectively manage her unit. The

local media received a tip from an undisclosed source and reported that Baker was under scrutiny.

In two decades of law enforcement, Baker had apparently never before been the subject of an internal

investigation or any significant public scrutiny.



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               After completing these internal investigations, APD issued one or more written

reprimands but took no other disciplinary action against Baker. Commander Baker then applied to

serve as assistant chief but was passed over twice in favor of other candidates—once in late 2013

and again in 2014. Baker alleges that before he voiced concerns about possible discrimination, Chief

Acevedo had personally encouraged him to apply for a position as assistant chief. The City responds

that it simply selected the most qualified candidates for the two positions.

               Baker filed a claim of retaliation with the Workforce Commission on October 17, 2014.

After receiving notice of claim closure and a permission-to-sue letter, Baker sued the City under

Texas Labor Code section 21.055, alleging the City had violated the Texas Commission on Human

Rights Act (“TCHRA”) by retaliating against him for reporting possible discrimination. The City

filed a combined plea to the jurisdiction, motion for traditional summary judgment, and motion for

no-evidence summary judgment, arguing that Baker has not alleged the prima facie case necessary

to establish the trial court’s jurisdiction over the claim. The trial court denied the motion and the

City filed timely appeal.


                                   STANDARD OF REVIEW

               The trial 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

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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. (citing Garcia, 372 S.W.3d

at 637).

                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 retaliation. See generally id. If the defendant in such a case is a governmental entity and presents

evidence of a legitimate, non-retaliatory justification for the disputed employment decisions—as is

the case here—the plaintiff cannot establish jurisdiction by merely pleading a prima facie claim of

discrimination or retaliation. Id. at *7. “[I]f the plaintiffs’ factual allegations are challenged with

supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal

plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial

court’s subject matter jurisdiction.” Id. (citing Miranda, 133 S.W.3d at 221, 225–26). “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.

(citing Miranda, 133 S.W.3d at 228).


                                           DISCUSSION

                To overcome the City’s governmental immunity and establish jurisdiction, Baker

must generate a genuine issue of fact as to each element of his retaliation claim. See id. at *17 (“All

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elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional.”). The elements

of a retaliation claim are: “(1) [the plaintiff] engaged in an activity protected by the TCHRA, (2) [he]

experienced a material adverse employment action, and (3) a causal link exists between the protected

activity and the adverse action.” Id. (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,

67–68 (2006), and San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015)). The City

contends Baker has not suffered an adverse employment action, arguing the back-to-back internal

investigations cannot constitute adverse action because no discipline resulted from the investigation.

It further contends the selection of two other candidates to serve as assistant chiefs does not qualify

as adverse action because selection is “entirely discretionary” on the part of Chief Acevedo and

because those two appointments were too far removed in time from Baker’s initial protected activity

to have been caused by that activity.


Baker’s Prima Facie Case

                We begin by determining whether Baker has pleaded a prima facie case of retaliation.

“[A] ‘prima facie case’ has a traditional legal meaning . . . . [i]t refers to evidence sufficient as a

matter of law to establish a given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d

579, 590 (Tex. 2015) (orig. proceeding) (citing Simonds v. Stanolind Oil & Gas Co., 136 S.W.2d

207, 209 (1940)). Baker alleges he was wrongfully made the subject of two internal investigations

and then passed over for selection as assistant chief because he reported possible discrimination to

his superiors. These allegations are sufficient to make out a prima facie case.

                First, Baker engaged in protected activity when he reported the possible discrimination.

The City contends Baker’s report was not formal enough or significant enough to fall within the

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purview of the TCHRA, but even informal reports to superiors are protected. See City of Waco v.

Lopez, 259 S.W.3d 147, 151 (Tex. 2008). These reports are protected even when further

investigation reveals no discrimination occurred, provided that the employee genuinely believed the

challenged actions were unlawful at the time of the report. See Cox & Smith Inc. v. Cook,

974 S.W.2d 217, 225–26 (Tex. App.—San Antonio 1998, pet. denied). Here, no one denies Baker’s

genuine belief discrimination was occurring. Moreover, Baker’s complaints were serious enough

to warrant discussion at an APD leadership meeting and to result in a revised approach to certain

personnel decisions, thus weighing against the City’s characterization of Baker’s report as too

insignificant to warrant TCHRA protection.

               Second, Baker has alleged multiple adverse employment actions. An adverse

employment action is any employment decision “harmful to the point that [it] could well dissuade

a reasonable worker from making or supporting a charge of discrimination” in the future. White,

548 U.S. at 57. An employer’s decision not to promote an employee or not to select an employee

for a posted vacancy constitutes an adverse action. See Ptomey v. Texas Tech Univ., 277 S.W.3d

487, 492 (Tex. App.—Amarillo 2009, pet. denied) (listing “hiring” and “promoting” among types

of adverse employment action (quoting Foley v. University of Hous. Sys., 355 F.3d 333, 340 (5th Cir.

2003))). A baseless disciplinary investigation can also rise to the level of adverse action. See Tingle

v. Hebert, ___ F. Supp. 3d ___, ___, No. CV 15-626-JWD-EWD, 2018 WL 1805550, at *10 (M.D.

La. Apr. 16, 2018) (holding allegations of baseless investigation, as pleaded, sufficient to generate

question of fact regarding adverse action under Title VII and gathering additional cases so holding).

According to Baker, the 2013 investigation was unwarranted and the 2014 was “so lacking in merit”



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that it was dismissed within a matter of weeks. Taking Baker’s allegations as true, as we must, the

investigations negatively impacted Baker’s professional standing and ultimately factored into Chief

Acevedo’s decision not to select Baker as assistant chief. These investigations and their effects

would likely dissuade employees from reporting future violations and therefore satisfy Baker’s

burden to show a prima facie adverse employment action.

               Third, Baker has met his burden as to causation. “The causation standard for the

. . . 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. at *17 (citing Evans v. City of Houston,

246 F.3d 344, 354 (5th Cir. 2001)). Baker alleges he began suffering adverse actions immediately

following his report of possible discrimination in 2013 and that the adverse treatment continued

through Chief Acevedo’s decision to reject Baker, for the second time, as candidate for assistant

chief in 2014. This temporal proximity is sufficient to satisfy Baker’s burden at this stage.


The City’s Legitimate, Non-Discriminatory Explanation

               Baker has pleaded a prima facie case of retaliation, thus the City bears the burden of

producing “evidence of a legitimate, nondiscriminatory reason for the disputed employment

action[s].” Id. at *16 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)).

When a claim of retaliation or discrimination is based on disputed disciplinary actions, an employer

can rebut a plaintiff’s prima facie case by presenting evidence of a reasonable basis for the

disciplinary action and evidence that the action was consistent with any internal policies. Weed v.

Sidewinder Drilling, Inc., 245 F. Supp. 3d 826, 849–52 & n.23 (S.D. Tex. 2017); see also Jackson

v. Katy Indep. Sch. Dist., 951 F. Supp. 1293, 1300 (S.D. Tex. 1996) (finding school district’s written

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disciplinary policy and evidence of plaintiff’s repeated rule violations sufficient to rebut claims of

discrimination). Here, the City has produced evidence that the 2013 and 2014 internal investigations

were conducted in accordance with APD policy and were justified, respectively, by the seriousness

of the 2012 “Occupy Austin” incident and by APD’s urgent need to ensure its commanders would

provide the increased top-down supervision necessary to correct what it perceived as pervasive lack

of professionalism in certain divisions of the police force.

                And with respect to the selection of alternate candidates to serve as Acevedo’s

assistant chiefs, the City has admitted evidence, including classified personnel files, that the other

candidates were equally or more qualified than Baker and suggesting that APD needed more

diversity among its top leadership. “Selecting a more qualified applicant generally constitutes a

legitimate, nondiscriminatory justification for a failure to hire an applicant.” Little v. Texas Dep’t

of Criminal Justice, 177 S.W.3d 624, 631 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(finding evidence sufficient to rebut prima facie case and citing, in support, Patrick v. Ridge,

394 F.3d 311, 318 (5th Cir. 2004), and Manning v. Chevron Chem. Co., 332 F.3d 874, 881–82 (5th

Cir. 2003)). Thus, the City’s evidence, though not conclusive, is sufficient to rebut Baker’s prima

facie case of retaliation.


Baker’s Evidence of Pretext

                “[I]f, as here, jurisdictional evidence rebuts the prima facie case, the entire McDonnell

Douglas framework is fully implicated, and sufficient evidence of pretext and causation must exist

to survive the jurisdictional plea.” Alamo Heights, 2018 WL 1692367, at *17 (referring to the

burden-shifting framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792


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(1973), to evaluate Title VII claims based on circumstantial evidence of discrimination). The City’s

rebuttal thus “triggers the plaintiff’s duty to create a fact question on the ultimate issue—whether

retaliation caused the adverse employment action—to survive [the] jurisdictional challenge.” Id. at

*18. In determining whether a fact issue exists, “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. at *7 (citing Miranda, 133 S.W.3d at 228).

               The City correctly observes that some of the adverse employment actions alleged by

Baker occurred too early to have been rendered actionable by the Workforce Commission’s

permission to file civil action. In addition, the City correctly observes that any deliberate “leak” of

the 2014 investigation to the media—while perhaps an adverse action in a general sense—is not an

adverse employment action under the TCHRA. See Elgaghil v. Tarrant Cty. Junior Coll., 45 S.W.3d

133, 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)). Nevertheless, those actions

are “necessary to show context” and therefore must be considered in evaluating Baker’s allegations

of pretext. Alamo Heights, 2018 WL 1692367, at *7.

               Our review of the evidence submitted by both parties, including sealed internal

records, reveals a genuine question of fact as to whether Baker suffered retaliation for opposing

possible discrimination. On the one hand, APD puts forth evidence that would support an inference

that the disputed actions were not retaliatory. The timing of Baker’s initial report of discrimination

is not clear, and it appears that his transfer from organized crime to another division may have



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preceded that report. If so, a jury might infer the City had concerns about Baker’s leadership

before he ever engaged in protected activity. The confidential records also support the City’s

characterization of the internal investigations as a critical part of APD’s improvement process.

Additional sealed records include some evidence to support APD’s assertion that the two candidates

selected for promotion were simply better qualified and better suited to serve as assistant chief.

               On the other hand, competing evidence—when taken as true and reviewed in the light

most favorable to Baker—would allow a reasonable juror to draw an inference of retaliation. The

City’s own personnel records confirm that Baker’s employment history was essentially unblemished

until 2013. These records also support Baker’s argument that he was qualified for a position as

assistant chief and that his superiors had personally encouraged him to apply for such a position until

he reported the possible discrimination. The City attempts to justify the alternate appointments as

an effort to increase diversity among police leadership, but one of the appointments was an older

Caucasian male, much like Baker. And internal records reveal that both investigations were

launched when Baker tried to defend officers he believed were being treated unfairly. Baker

characterizes the defense of his officers—including a female officer and Latino officers—as

the right thing to do. APD characterizes it as an act of insubordination. This is precisely the

kind of fact-intensive dispute that raises material questions not appropriate for resolution at

summary judgment.1




       1
          See Frias v. Atlantic Richfield Co., 999 S.W.2d 97, 106 (Tex. App.—Houston [14th Dist.]
1999, pet. denied) (“Summary judgment should not be granted when the issues are inherently those
for a jury, as in cases involving intent.”).


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               We express no opinion as to whether Commander Baker can meet his ultimate burden

and prevail on his claim of retaliation. But bearing in mind the context, as we must, and construing

the record in favor of the plaintiff, as we must, we conclude Baker’s evidence is sufficient to

generate a genuine question of fact as to whether he suffered retaliation for reporting possible

discrimination within the Austin Police Department. Alamo Heights, 2018 WL 1692367, at *7, *17.

He has therefore met his burden to establish the trial court’s jurisdiction over his claim, and the

trial court did not err in denying the City’s combined plea to the jurisdiction and motion for

summary judgment.


                                         CONCLUSION

               Having found no error in the trial court’s order denying the City’s motion, we affirm

that order.



                                              __________________________________________
                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: June 21, 2018




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