HOUSTON – A Texas appeals court has upheld a lower court’s decision to concur with the Texas Office of Consumer Credit Commissioner’s decision to fire one of its examiners for using a business credit card for personal use, and to reject the plaintiff’s allegations of discrimination and retaliation.
On Sept. 17, Court of Appeals for the First District of Texas justices Terry Adams, Sarah Beth Landau and Veronica Rivas-Molloy unanimously upheld the 152nd District Court of Harris County, Texas’s ruling, in Ernest Polk’s lawsuit versus the Texas Office of Consumer Credit Commissioner (OCCC).
Rivas-Molloy authored the Court’s opinion in this case.
“The OCCC is a state agency that regulates consumer lenders, such as payday lenders and pawn shops. In January 2014, OCCC hired appellant Ernest Polk for the position of Financial Examiner I. As a financial examiner, Polk was required to apply for and obtain a credit card to be used exclusively for business travel expenses. Polk, who is African-American, worked out of OCCC’s Houston office, where most of the financial examiners were African-American. According to Polk, many of the African-American examiners complained about racial discrimination and most African-American examiners left the Houston office within a short time. Financial examiners are tested after their initial examiner training and during examiner training conferences throughout the year. On April 30, 2015, Polk received his first annual performance evaluation. His supervisor, Gene Dow, stated in the evaluation that although Polk had passed his initial examiner training test on his second attempt, Polk needed to “pass all future tests on the first try in order to be considered for promotions,” Rivas-Molloy said.
“Polk alleges that even though he became eligible for consideration for promotion to Financial Examiner II in May 2015, Dow did not recommend him for the promotion at that time. OCCC contends that a supervisor recommendation is one of the requirements for promotion. According to Polk, while the promotions of eligible African-American examiners often were delayed, eligible white examiners in other offices were promoted on schedule. Polk alleges that ‘late grade promotions’ were a common complaint among OCCC’s African-American examiners. Polk alleges that at a regional meeting in the summer or fall of 2015, he and other African-American examiners complained about the late grade promotion issue, and Polk told OCCC that there appeared to be a racial difference. According to Polk, OCCC did nothing to address their concerns.”
Polk was promoted to the position of Financial Examiner II in November 2015, after Dow recommended him for the promotion. After his promotion, Polk requested six months of back pay because of the six-month delay in his promotion, but OCCC refused his request.
Over the next two years, Polk met with his superiors to raise issues of perceived racial discrimination and on one occasion, told his supervisor Greg Williams that “OCCC would have a hard time retaining African-American examiners if the issues continued.”
Polk also filed an initial charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and Texas Workforce Commission (TWC).
“On Dec. 14, 2017, OCCC met with Polk to discuss its recent discovery that Polk had been using his credit card to purchase gasoline for personal use, including while Polk was on vacation. That day, Polk met with Williams, Garcia, Aguilar, and OCCC’s General Counsel. When Garcia asked Polk if he had used his travel credit card for personal use, Polk answered that he had ‘because it’s impossible not to use it for personal use, when you submit a travel voucher for personal reimbursement, it’s called personal mileage reimbursement.’ Garcia fired Polk immediately. Polk complained to the meeting participants that OCCC was retaliating against him, and that retaliation was the only reason they were firing him,” Rivas-Molloy stated.
“Polk filed a second charge of discrimination on May 2, 2018, alleging OCCC had terminated his employment in retaliation for ‘rais[ing] previous concerns about racial discrimination and because [he] filed a charge of discrimination with the EEOC.”
After Polk sued OCCC for wrongful termination based on race discrimination and retaliation, failure to promote based on racial discrimination and hostile work environment based on racial harassment, OCCC filed a Plea to the Jurisdiction seeking dismissal of Polk’s claims and was successful.
This led Polk to appeal to the First District.
On appeal, Polk asserted that the trial court “erred by (1) granting OCCC’s Plea to the Jurisdiction on Polk’s wrongful termination claims based on race discrimination and retaliation; (2) granting OCCC’s Plea on Polk’s failure-to-promote claim based on racial discrimination; (3) granting OCCC’s Plea on Polk’s hostile work environment claim based on racial harassment; and (4) considering Human Resources Officer Candace Vargas’s affidavit and [Polk’s then-supervisor] Gene Dow’s Nov. 3, 2015 memoranda, which was attached to Vargas’s affidavit.”
According to Rivas-Molloy, the trial court did not err in dismissing Polk’s claims, because those claims were not properly substantiated.
“Polk filed a charge of discrimination stemming from his termination in May 2018. In it, he marked the box ‘Retaliation’ only, and in describing the particulars of his claim, he did not allege that he was wrongfully terminated based on his race. Polk alleged that ‘he was discharged by Juan Garcia, Director of Communications for alleged misuse of the organizations credit card’, an allegation which was ‘patently false.’ He alleged that he was ‘discharged in retaliation for [his] having raised previous concerns of racial discrimination and because [he] filed a charge of discrimination with the EEOC, in violation of Title VII of the Civil Rights Act of 1964 as amended,” Rivas-Molloy said.
“There is no allegation in Polk’s charge that his race played a role in his termination. Polk thus did not articulate a factual basis supporting a claim that he was terminated based on his race, as opposed to in retaliation for him raising ‘previous concerns of racial discrimination.’ Because Polk’s charge does not contain an adequate factual basis to put OCCC on notice of the existence and nature of his claim for wrongful termination based on race discrimination, the trial court did not err in granting OCCC’s Plea on that claim.”
Rivas-Molloy also elaborated on why Polk’s failure-to-promote claim wasn’t successful.
“Polk argues that the discriminatory conduct at issue is Dow’s failure to recommend him for the promotion in May 2015. However, Polk does not point to any evidence of discriminatory animus on Dow’s part or identify any evidence that race was a motivating factor behind Dow’s decision not to recommend Polk for a promotion in May 2015. In particular, there is no evidence Dow supervised the other unnamed African-American examiners in the Houston office whose promotions Polk asserts were delayed, that Dow supervised the white examiners in other offices Polk contends were ‘promoted on the regular schedule,’ or that the promotions of the unnamed African-American examiners in the Houston office were delayed because Dow did not recommend them for a promotion, much less Dow’s purported reason for not recommending them for a promotion. There is also no evidence of the test scores for the other examiners who were recommended for a promotion to Financial Examiner II,” Rivas-Molloy stated.
“Conversely, OCCC presented evidence that underscores Polk’s claims of pretext. When OCCC hired Polk, it also hired four other examiners: three African-American examiners, and one Hispanic examiner. OCCC promoted all five examiners to Financial Examiner II at different times in 2015 based on identical criteria: (1) two African-American peers were promoted in June 2015, and (2) the Hispanic peer was promoted in May 2015. Only Polk and another examiner’s promotion were delayed due to performance concerns, and both were promoted in November 2015. Polk has thus failed to bring forth sufficient evidence raising a question of fact as to whether racial discrimination was a motivating factor behind Dow’s decision not to recommend him for a promotion in May 2015.”
As to the hostile work environment based on racial harassment claim, Rivas-Molloy also found the allegations of “petty harassment” in connections with it weren’t properly supported.
“According to Polk, ‘OCCC had been preparing to feature me in an ‘employee spotlight,’ but I was removed without explanation shortly after filing the charge. My supervisors challenged my decision to change hotels in Beaumont. I explained that his original hotel was in an area known for racial discrimination and that I had witnessed racial slurs at that hotel. Afterwards, I had to write ‘exception safety community conditions’ on my vouchers. In fact, management regularly sent Black examiners, including me, to ‘sundown towns’ (i.e., towns where it was not safe to be Black after sundown). Management would become hostile when I insisted on staying in hotels in safer areas. Later, I protested the discussion of ‘Texas Heroes’ during the Civil War in the OCCC newsletter and explained that it was insensitive to racial discrimination and slavery. OCCC put the ‘Texas Heroes’ section back into the newsletter and left it there for three months. In sum, there were many incidents of petty harassment and abuse directed at me and the other African-American examiners. Over time, many of them just quit and moved on to other jobs. I stayed working at OCCC but remained outspoken about the racial disparities that I observed,” Rivas-Molloy said.
“Such ‘petty harassment,’ however, is not sufficiently severe or pervasive enough to create a hostile work environment. Thus, even assuming Polk exhausted his administrative remedies for his hostile work environment claim, Polk failed to establish a prima facie case that the alleged racial harassment was so ‘severe or pervasive’ and ‘extreme’ that it affected a term, condition or privilege of Polk’s employment.”
Court of Appeals for the First District of Texas case 01-22-00712-CV
152nd District Court, Harris County, Texas case 2018-04375
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at: nick.malfitano@therecordinc.com