Posted by Rich Phillips
In its weekly orders this morning, the Supreme Court of Texas issued opinions in two argued cases. The Court did not grant any new petitions for review. With these two opinions, the Court now has 47 cases that have been argued this term, but not yet decided. Thus, we will see a rush of opinions over the next three months if the Court is going to continue its recent trend of deciding all of the argued cases in a term before the summer break.
One of the opinions issued this morning was the last remaining case from the September 2017 argument sitting. The other was argued in December. The Court has 2 cases left from the October argument sitting, 5 from the November sitting, and 6 from the December sitting. Not surprisingly, the more recent sittings account for the bulk of the undecided cases (11 from January, 9 from the early February sitting, 11 from the late February/early March sitting, and all 3 from the late-added argument date on March 20).
Cause No. 16-0244, Alamo Heights Indep. Sch. Dist. v. Clark — In this employment retaliation case against a school district, there were two primary issues: (1) whether the plaintiff presented sufficient evidence to raise an inference of gender-motivated discrimination and (2) whether the plaintiff carried her burden to invoke the waiver of governmental immunity in the Texas Commission on Human Rights Act. In an opinion by Justice Guzman (joined by Chief Justice Hecht, Justice Green, Justice Johnson, Justice Devine, and Justice Brown), the Court concluded that the evidence did not raise an inference of gender-motivated discrimination and that the plaintiff did not carry her burden to invoke the immunity waiver. The Court therefore rendered judgment that the plaintiff take nothing. Justice Boyd dissented, joined by Justice Lehrmann. Justice Blacklock did not participate in the decision.
On the first issue, the primary dispute between the majority and the dissent centers on what it means to view the evidence in the light most favorable to the plaintiff. The alleged harassment was perpetrated by one female teacher against another female teacher. Both the majority and the dissent agree that the plaintiff is required to present enough evidence to raise an inference that the alleged harassment was "because of" the plaintiff's gender. The majority concluded that the contextual evidence (which the majority reasoned it could not disregard under City of Keller v. Wilson) precluded an inference that the alleged harassment was gender based because it revealed motivations for the conduct that were not gender related. The dissent would have held that, even in light of the contextual evidence, a reasonable jury could conclude that the alleged harassment was "because of" the plaintiff's gender.
On the second issue, the majority and dissent agreed (on an issue of first impression) that all three steps of the McDonnell Douglas evidentiary framework apply to the jurisdictional inquiry. This holding means that plaintiffs asserting a retaliation claim against a governmental entity must show that the defendant's asserted non-discriminatory reasons for the adverse employment action are pretextual to bring the claim within the governmental-immunity waiver in the TCHRA. The majority assumes without deciding that the proper standard for determining whether the retaliation was the result of protected activity is "but-for" causation (because both parties argued for this standard). The dissent would have applied a "motivating factor" test, at least at the jurisdictional stage of the analysis. Again, the majority and dissent disagree about whether the evidence is sufficient to allow a reasonable jury to decide that the adverse actions were the result of the plaintiff's protected activity.
Cause No. 16-0651, Dudley Construction Ltd. et al. v. ACT Pipe & Supply, Inc. — There are two primary issues in this case: (1) whether an appellate cross-point must be labeled as a cross-point to be effective; and (2) whether attorney's fees are recoverable in a case under the Texas Construction Trust Fund Act ("CTFA"). The Court (in a unanimous opinion by Justice Brown) first concluded that a cross-point does not have to be specifically labeled to be effective. The Court reasoned that even though the argument was not specifically labeled as a cross-point, the appellee's brief in substance raised alternative arguments to support the trial court's grant of a JNOV. The Court held that requiring the argument to be specifically labeled as a "cross-point" would improperly elevate form over substance. On the second issue, the Court held that attorney's fees are not recoverable. The CTFA does not provide for recovery of attorney's fees. And the Court rejected the argument that fees are recoverable under Texas Civil Practice and Remedies Code section 38.001. The Court reasoned that just because a claim under the CTFA might also involve a contract, that is not enough to make it a claim that is subject to section 38.001. (Justice Blackrock did not participate in the decision.)