Cruz v. Texas Health and Human Services Commission
MEMORANDUM OPINION AND ORDER denying 72 Motion to Remand; granting in part and denying in part 28 Motion for Summary Judgment. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
TEXAS HEALTH AND HUMAN
August 22, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 1:16-CV-072
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment. [Doc. No. 28].
According to the pleadings, Plaintiff, Martha Cruz (“Cruz” or “Plaintiff”), is a former employee
of the Defendant, Texas Health and Human Services Commission (“HHSC” or “Defendant”).
Cruz worked for HHSC for more than twenty years. Throughout her time, she received multiple
promotions, eventually holding the position of MEPD MES Worker III. Her work
responsibilities in this position included performing case reviews to determine the validity and
accuracy of Medicaid eligibility determinations made by other staff, actually performing
Medicaid eligibility determinations, and completing formal reports and narratives for
management. Thus, in addition to handling her own case work, Cruz supervised the case work of
employees below her.
Cruz’s specific job responsibilities at issue in this case are related to the preparation of
Form H1217s. A Form H1217 is a Medicaid eligibility case reading checklist. It provides a way
for the State of Texas to monitor and verify the accuracy of its Medicaid distributions. As an
MES Worker III, Cruz not only had to fill out Form H1217s related to her own cases, she also
had to assist and monitor workers that she supervised in their submission of Form H1217s.
Before submitting the Form H1217s, employees are required to correct any casereading errors
that may appear on the forms. By submitting the forms, the employees assert that they have made
such corrections as necessary.
While employed by the Defendant, Cruz was diagnosed with menopause, which caused
her to suffer from depression, crying spells, hot flashes, and sleeplessness. Shortly after, Cruz
sought sick leave for a medical procedure. After the procedure, Cruz began to take many more
sick days. As a result, the Defendant asked Cruz to request leave through the Family Medical
Leave Act (“FMLA”). After initial hesitation, Cruz eventually applied for and received FMLA
Sometime after Cruz received approval for FMLA leave, the Defendant discovered that
one of the workers Cruz supervised had submitted a Form H1217 without making corrections for
errors. When asked about the errors, the employee allegedly told the supervisor that she was
instructed by the Plaintiff to sign and submit the forms without correcting casereading errors.
This spurned an investigation by the Defendant into the Plaintiff’s handling of Form H1217s.
The investigation allegedly revealed that the Plaintiff had been submitting Form H1217s without
making corrections, despite signing the forms in a way that claimed such corrections had been
As a result of the investigation’s alleged results, the Defendant held a series of meetings
with the Plaintiff to discuss what action to take in response to their findings. According to Cruz,
the Defendant eventually gave the Plaintiff the choice of retiring or being fired. The Defendant,
on the other hand, contends that it was still investigating Cruz and had not made a decision on
whether Cruz would be fired. Nevertheless, allegedly faced with these options, the Plaintiff
retired. She, however, made clear she was retiring only to avoid being fired. [Pl.’s Ex. 13].
After retiring, the Plaintiff sued the Defendant, asserting three causes of action. First, the
Plaintiff claims that the Defendant retaliated against her for taking FMLA leave in violation of
the FMLA. Second, the Plaintiff asserts that the Defendant’s actions constituted intentional
infliction of emotional distress. Last, the Plaintiff has brought a claim for age discrimination
against the Defendant under Texas law, asserting that the Defendant constructively discharged
her because of her age.
The Defendant has moved for summary judgment on each of the Plaintiff’s three claims.
For the following reasons, the Court grants summary judgment against Plaintiff’s FMLA and
intentional infliction of emotional distress claims. The Court, however, denies summary
judgment on Plaintiff’s age discrimination claim because fact issues exist as to whether
Defendant’s proffered reason for firing the Plaintiff was merely a pretext for age discrimination.
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to a material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “[T]his court construes ‘all facts and inferences in the light most favorable to the
nonmoving party.’” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012) (quoting Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010)). But “[s]ummary judgment may not be thwarted by
conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence.”
A. Sovereign Immunity Bars Plaintiff’s FMLA Claim.
The Court first addresses Plaintiff’s FMLA claim. The statutory basis for Plaintiff’s
FMLA claim is 29 U.S.C. § 2612(a)(1)(D) of the FMLA, which states that an employee is
entitled to leave “[b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.” Courts commonly refer to this section
as the “self-care” provision of the FMLA. Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 321
(5th Cir. 2008).
Plainly stated, sovereign immunity bars Plaintiff’s FMLA claim. The United States
Supreme Court has explicitly held that Eleventh Amendment sovereign immunity protects the
States from lawsuits for monetary damages based on the self-care provision. Coleman v. Court of
Appeals of Md., 566 U.S. 30, 44 (2012); see also Nelson, 535 F.3d at 321. A federal court lacks
subject matter jurisdiction to adjudicate a claim that is barred by Eleventh Amendment sovereign
immunity. Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (holding that a lack of waiver
of sovereign immunity “deprives federal courts of subject matter jurisdiction”). Consequently,
this Court lacks subject matter jurisdiction to hear Plaintiff’s FLMA claims because Defendant is
an agency of the State of Texas, and sovereign immunity protects the Defendant from such
Plaintiff has argued that sovereign immunity does not completely bar her FMLA claim
because she seeks injunctive relief via the form of reinstatement in addition to monetary
damages. [Doc. No. 70 at 11]. She argues that the Ex Parte Young exception to sovereign
immunity applies in this case and saves her claim for reinstatement. [Id.]. In general, a claim for
reinstatement under the FMLA could fall within the Ex Parte Young exception. Nelson, 535 F.3d
at 324. Plaintiff’s argument, however, fails for two reasons.
First, the Ex Parte Young exception only applies when the plaintiff has brought a claim
against state employees acting in their official capacity. See Raj v. La. State. Univ., 714 F.3d 322,
328 (5th Cir. 2013). Consequently, the exception does not apply when the plaintiff has brought a
claim against the state agency itself. Bryant v. Tex. Dept. of Aging and Disability Servs., 781
F.3d 764, 769 (5th Cir. 2015). In this case, Plaintiff has sued only the HHSC. She has sued a
state agency instead of a state employee. Therefore, the Ex Parte Young exception does not
Secondly, Plaintiff did not plead for injunctive relief in the form of reinstatement for
violations of the FMLA. The only injunctive relief Plaintiff has pleaded for is to “[p]rohibit by
injunction the Defendant from engaging in unlawful employment practices as defined in the
Texas Labor Code.” [Doc. No. 1-3, Pet. at 7.]. Plaintiff has waived any alleged claim for
reinstatement in compliance with FMLA law by failing to plead it. The only FMLA relief
Plaintiff has pleaded is asserted against the state agency, HHSC, for monetary damages.
Sovereign immunity bars such claims. Therefore, the Court grants summary judgment against
Plaintiff’s FMLA claims on the basis of sovereign immunity.
B. Sovereign Immunity Bars Plaintiff’s Intentional Infliction of Emotional Distress
Plaintiff has alleged that the Defendant intentionally or recklessly forced her to retire
with false accusations of wrongdoing and that Defendant’s conduct was extreme and outrageous
and proximately caused her severe emotional distress. She brings her intentional infliction of
emotional distress claim under Texas state law. As a general rule, “the State, its agencies and
political subdivisions are immune from tort liability based on the doctrine of sovereign
immunity.” Travis v. City of Mesquite, 830 S.W.2d 94, 104 (Tex. 1992); see also Torres v.
County of Webb, 150 Fed. Appx. 286, 290 (5th Cir. 2005). Thus, the Defendant enjoys absolute
immunity from tort liability absent a specific waiver of such immunity. Id.
The most common waiver of sovereign immunity under Texas law is found in the Texas
Tort Claims Act. See Kerrville State Hosp. v. Clark, 923 S.W.3d 582, 584 (Tex. 1996). The Act,
however, specifically exempts claims arising out of intentional torts. Tex. Civ. Prac. & Rem.
Code Ann. § 101.057(2). Intentional infliction of emotional distress is by definition an
intentional tort. See Stinson v. Fontenot, 435 S.W.3d 793, 793 (Tex. 2014). As a result, sovereign
immunity still bars intentional torts claims brought against Texas governmental agencies.
Plaintiff has pointed to no other statute or basis of law to support a waiver of sovereign
immunity. Thus, as Plaintiff’s claim for intentional infliction of emotional distress is an
intentional tort brought against a Texas governmental agency, sovereign immunity bars her
claim. Therefore, the Court grants summary judgment against Plaintiff’s intentional infliction of
emotional distress claim on the basis of sovereign immunity.
C. A Fact Question Exists as to Whether Defendant’s Proffered Reason for Its Alleged
Adverse Action to Plaintiff was a Pretext for Age Discrimination.
Plaintiff brings her claim for age discrimination under the Texas Labor Code. Tex. Lab.
Code Ann. § 27.051. Courts use the burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) to analyze a case of age discrimination.
Furthermore, Texas courts look to federal caselaw for guidance on how to interpret and apply the
Texas age discrimination statute due to its similarity to the federal age discrimination statute.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633 (Tex. 2012). The framework
first requires the plaintiff to establish a prima facie case of discrimination. Id.at 634. If the
plaintiff can establish a prima facie case, then a presumption of discrimination arises. Id. The
burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. McDonnel Douglas Corp., 411 U.S. at 802. If the employer meets
this burden, the presumption of discrimination disappears, and the employee must prove (or in
the summary judgment context, raise a genuine issue of material fact) that the employer’s
proffered reason was merely a pretext for discrimination. Id. at 804. To establish a prima facie
case of age discrimination, the plaintiff must demonstrate: (1) she was a member of the protected
class; (2) she was qualified for the employment position; (3) she was terminated by her
employer; and (4) she was replaced by someone younger. Mission, 372 S.W.3d at 642.1
The plaintiff has easily established the first element of a prima facie case of
discrimination. Under state law, the protected class for age discrimination claims consists of
those 40 years of age and older. Tex. Lab. Code Ann. § 21.101. Plaintiff is 60 years old and well
within the protected class for age discrimination claims.
Defendant has not adamantly challenged the second element of the prima facie case of
discrimination, which requires the Plaintiff to be qualified for the employment position from
which she was removed. Additionally, Plaintiff has attached positive reviews she received while
working in the MS-III position. Therefore, the Court finds that Plaintiff has produced evidence
supporting that she was qualified for her employment position.
Defendant does, however, contend that Plaintiff cannot satisfy the third element of a
prima facie case of discrimination because she was not fired; she retired. In response, Plaintiff
argues that she was constructively discharged from her position since she retired only because
Defendant’s brief asserts a different fourth element to establish a prima facie case of discrimination. Defendant
claims the fourth element is that the plaintiff was treated less favorably than similarly situated members who were
not members of the plaintiff’s protected class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). The
Supreme Court of Texas, however, has distinguished the AutoZone elements in Mission, an opinion issued four years
after AutoZone. In Mission, the Court held that in a true replacement age discrimination case, the proper fourth
element to establish a prima facie case of discrimination is that the plaintiff was replaced by someone younger.
Mission, 372 S.W.3d at 642. Since this is a case where plaintiff was replaced, the Court uses the four elements
articulated in Mission. Nevertheless, even if this Court addressed the question of “less favorable treatment,” it would
find that the Plaintiff has raised an issue of material fact.
she would have been fired if she had not retired. Constructive discharge can serve as a legal
substitute for the discharge element of a prima facie case of discrimination. Harris Cty. Hosp.
Dist. v. Parker, 484 S.W.3d 182, 194 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing
Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.]
1991, no writ)). A constructive discharge occurs when an employer makes conditions so
intolerable that an employee reasonably feels compelled to resign. Id.; see Jurgens v. EEOC, 903
F.2d 386, 390 (5th Cir. 1990). This Court considers the following factors relevant, singly or in
combination, when determining if a constructive discharge has occurred:
(1) [D]emotion; (2) reduction in salary; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) reassignment to work under a
younger [or less experienced/qualified] supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage the employee's resignation;
or (7) offers of early retirement [or continued employment on terms less
favorable than the employee's former status].
Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001) (citations omitted and second
alteration in original) (emphasis added). The test that Plaintiff must meet is an objective,
“reasonable employee” test: whether a reasonable person in the plaintiff's shoes would have felt
compelled to resign. Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 n. 19 (5th Cir.
1994). Aggravating factors used to support constructive discharge include hostile working
conditions or the employer's invidious intent to create or perpetuate the intolerable conditions
compelling the resignation. Jurgens, 903 F.2d at 393 n. 10; see also Brown, 237 F.3d at
566 (noting that “[d]iscrimination alone, without aggravating factors, is insufficient for a claim
of constructive discharge”). The resigning employee bears the burden to prove constructive
discharge. Jurgens, 903 F.2d at 390–91.
Here, Plaintiff has provided evidence that she was given the choice of retiring or being
fired if she stayed. [Pl.’s Ex. 7, 13]. Plaintiff produced evidence showing that if she had not
retired, she would be fired. [Pl.’s Ex. 7, 13]. Given that offers of early retirement qualify as
evidence of a constructive discharge, the Court holds that Plaintiff has produced evidence
sufficient to raise a fact issue as to the discharge element.
Regarding the fourth element of a prima facie case of discrimination, Plaintiff must
produce evidence that she was replaced by someone younger. The Fifth Circuit has modified this
element such that a plaintiff could establish a prima facie case of age discrimination by
producing evidence that he was (a) replaced by someone outside the protected class, (b) replaced
by someone younger, or (c) otherwise discharged because of age. Elliott v. Grp. Med. & Surgical
Serv., 714 F.2d 556, 565 (5th Cir. 1983). Here, Plaintiff was replaced by Corina Herrera, who is
45 years old. While her replacement was still a part of Plaintiff’s protected class since she was
older than 40, her replacement was nonetheless fifteen years younger than plaintiff.
The Fifth Circuit has not settled on a standard for what age difference qualifies as
“substantially younger” such that an inference of age discrimination may be made to establish
a prima facie case. Flanner v. Chase Inv. Servs. Corp., 600 Fed. Appx. 914, 920 (5th Cir. 2015).
It has held that a four-year difference does not satisfy the fourth element, a five-year difference is
a close call, and a twenty-seven-year difference clearly satisfies the fourth element. Earle v.
Aramark Corp., 247 Fed. Appx. 519, 523 (5th Cir. 2007) (four-year difference); Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 313 (5th Cir. 2004) (five-year difference); Flanner, 600 Fed.
Appx. at 919 (twenty-seven-year difference). Among sister circuits, however, age differences of
ten or more years have generally been held to be sufficiently substantial to meet the requirement
of the fourth element of a prima facie case age discrimination. Grosjean v. First Energy Corp.,
349 F.3d 332, 340 (6th Cir. 2003) (citing thirty-four cases from nine different circuits in which
an age difference of ten years satisfied the fourth element needed to make a prima facie case of
The age difference between the Plaintiff in this case and her replacement was 15 years.
This is ten years greater than the age difference that the Fifth Circuit considers to be a close call
as to whether it establishes the fourth element of a prima facie case of age discrimination (five
years). The difference is also five years greater than the difference that nearly all other circuits
consider satisfactory (ten years). For these reasons, the Court holds that Plaintiff has produced
evidence sufficient to raise a fact issue as to the fourth element of a prima facie case of age
Consequently, Plaintiff has produced evidence to support each of the four elements
necessary to make a prima facie case of age discrimination. In turn, the burden shifts to the
Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. McDonnel Douglas Corp., 411 U.S. at 802. To meet this burden, Defendant claims that if
it treated Plaintiff adversely, it did so because Plaintiff allegedly submitted false Form H1217s
and instructed employees that she supervised to also incorrectly submit Form H1217s. While
other workers may have incorrectly filled out Form H1217s at various times, Defendant claims
that Cruz was the only worker who intentionally submitted false forms and the only employee
who, as a supervisor, instructed other employees to submit false forms. Furthermore, the
Defendant produced evidence that Plaintiff received training on the gravity of falsifying Form
H1217s and, therefore, claims that Plaintiff knew she should not have been submitting false
If the “employer produces any evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action, then the employer
has satisfied its burden of production.” Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.
1995). If it is true that Defendant allegedly threatened to fire Plaintiff for intentionally falsifying
Medicaid forms and instructing other employees to falsify Medicaid forms, then such a reason is
a non-discriminatory reason for the adverse action toward Plaintiff. The reason was unrelated to
Plaintiff’s age. Thus, the Court holds that Defendant has articulated a legitimate, nondiscriminatory reason for its adverse employment action against the Plaintiff.
By meeting its burden, Defendant has produced evidence to rebut Plaintiff’s prima facie
case of discrimination. Thus, the presumption of age discrimination disappears, and Plaintiff
must provide evidence that the employer’s proffered reason was merely pretext for
discrimination. McDonnel Douglas Corp., 411 U.S. at 802. Plaintiff does this by “showing that
the employer’s proffered explanation is unworthy of credence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (citing Tex. Dept. of Comm. Affairs v. Burdine, 450 U.S.
248, 256 (1981)). Moreover, although the presumption of discrimination “drops out of the
picture” once the defendant meets its burden of production, St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 511 (1993), the trier of fact may still consider the evidence establishing the plaintiff's
prima facie case “and inferences properly drawn therefrom…on the issue of whether the
defendant's explanation is pretextual,” Burdine, 450 U.S. at 255 n. 10. One way to prove that
Defendant’s proffered reason is not worthy of credence is to provide evidence that shows
Defendant’s proffered reason is false. See Reeves, 530 U.S. at 147-48. As the United States
Supreme Court has stated,
The factfinder's disbelief of the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional discrimination. Thus,
rejection of the defendant's proffered reasons will permit the trier of fact to infer
the ultimate fact of intentional discrimination.
St. Mary’s Honor Ctr., 509 U.S. at 511 (emphasis in original). In response to Defendant’s
proffered reason, Plaintiff claims that she submitted the forms the way she did and directed those
she supervised the way she did because her superiors instructed her that this was the way to fill
out the forms. She claims her supervisors told her she could submit the forms without making
corrections and then later go back and make any corrections that needed to be made. Naturally,
the Defendant claims that no such thing happened and points to evidence that Plaintiff attended
training seminars where she learned her method was the wrong way to submit the forms.
Nevertheless, given this competing evidence, this Court is faced with a fact issue on whether
Defendant’s proffered reason is a pretext for firing Plaintiff for her age. If Plaintiff’s version of
the facts is true, then she was merely doing her job as Defendant instructed her to do it, and
Defendant’s proffered reason for firing her is false. If Defendant’s version of the facts is true,
then Defendant had a legitimate, non-discriminatory reason for firing Plaintiff. When there is a
fact issue on pretext, summary judgment is improper, and the question should be submitted to the
jury for resolution. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001).
The Court holds that Plaintiff has submitted enough evidence to create a fact issue on her
age discrimination claim. Therefore, the Court denies summary judgment as to Plaintiff’s age
The Court grants Defendant’s Motion for Summary Judgment in part and denies it in
part. [Doc. No. 28]. Summary judgment is granted as to Plaintiff’s FMLA claim and intentional
infliction of emotional distress claim because the Defendant has sovereign immunity from such
claims. Summary judgment is denied as to Plaintiff’s age discrimination claim because of the
presence of genuine issues of material fact.
Also before the Court is Plaintiff’s Notice of Partial Voluntary Dismissal [Doc. No. 67]
and Plaintiff’s Opposed Motion to Remand [Doc. No. 72]. In compliance with Rule 41 of the
Federal Rules of Civil Procedure, the Court denies Plaintiff’s Notice of Partial Voluntary
Dismissal. Fed R. Civ. P. 41(a); [Doc. No. 67]. Additionally, the Court exercises its discretion
and retains supplemental jurisdiction over Plaintiff’s remaining Texas age discrimination claim,
which has fact issues that need to be resolved. 28 U.S.C. § 1367(c). Therefore, the Court denies
Plaintiff’s Opposed Motion to Remand. [Doc. No. 72].
Signed this 22nd day of August, 2017.
Andrew S. Hanen
United States District Judge
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