Professional Documents
Culture Documents
10-03608
NOW COMES Plaintiff, Marcia Trejo, and files this, Plaintiff’s Response to
Defendant City of Dallas’ Motion for Final Summary Judgment and asks the Court
I.
SUMMARY
In light of the overtly racist and retaliatory behavior that permeates this
lawsuit, Defendant limits its Motion for Summary Judgment to one issue: that
Commission.
with the Texas Workforce Commission. This argument fails because (1) actionable
harassment occurred within the 180 days prior to Trejo’s charge, and (2) the
Continuing Violation Doctrine holds that acts of harassment (as opposed to discrete
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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acts such as termination or demotion) allow a fact finder to consider additional
First, Trejo proffers evidence of harassment occurring within 180 days of her
charge filing. These acts included, by way of example, her direct supervisor
slamming doors, making racist jokes, using racist mannerisms, excluding Plaintiff
from meetings, creating policies specifically for Plaintiff and then using the new
policies to prevent Plaintiff from going to lunch, preventing Plaintiff from earning
overtime, preventing Plaintiff from “flexing” her hours, and generally creating a
hostile work environment in which Plaintiff was to work. Even if the Court only
considered acts within the 180 days immediately prior to the charge date, there is
Second, acts occurring prior to the 180-day deadline are timely under the
holds that "equitable considerations may require that the limitations period not
begin to run at the date of the first incident of retaliatory conduct, but rather be
tolled until facts supportive of a cause of action are, or should be, apparent to a
reasonably prudent person similarly situated." Haley v. Blue Cross Blue Shield of
Tex., Inc., 2000 WL 770112, 1 (Tex. App. – Dallas 2000, no writ hist.) (unpublished)
(citing Glass v. Petro Tex. Chem. Corp., 757 F.2d 1554, 1560 (5th Cir. 1985)). In this
case, actions occurring prior to the 180-day deadline meet the test for a continuing
violation because (1) the violations involve the same type of wrong, tending to
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connect them as a continuing violation, (2) the acts were isolated, and (3) the
Defendant also asserts that Plaintiff has somehow failed to plead a cause of
action for racial harassment, both in her charge and in this case. Defendant’s half-
alleges the Defendant discriminated against her based on race, color, sex, religion
Plaintiff alleged that the Defendant reassigned her without reason, denied her the
ability to “flex” her hours, denied her the ability to change her schedule, routinely
subjected her to different standards, denied her the ability to supervise sworn
mannerisms around her, sang a song about “My Ole Mammy,” excluded her from
meetings, prevented her from attending lunch, made statements to others that she
was stressed and couldn’t “handle it” anymore, denied her overtime, and overturned
a finding against her direct supervisor. The same claims are brought in the lawsuit.
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II.
EVIDENCE
1. Excerpts from the deposition of Marcia Trejo (“Trejo Dep.”; App. 1-28);
3. Excerpts from the deposition of Alan Bull (“Bull Dep.”; App. 32-38);
39-48);
5. Excerpts from the deposition of Larry Litton (“Litton Dep.”; App. 49-
52);
8. Excerpts from the deposition of Thomas Lee Glover, Sr. (“Glover Dep.”;
App. 60-61);
79-82);
13. A copy of Marcia Trejo’s charge of discrimination filed with the EEOC
14. Excerpts from the deposition of Phyllis Sutton (“Sutton Dep.”; App. 85-
87).
III.
FACTS
Plaintiff, Marcia Trejo, is an employee of the City of Dallas. Trejo has been
an employee of the Dallas Police Department (“DPD”) since April 20, 1982. (Trejo
Trejo has had a long and distinguished career with the DPD. Trejo was the
002877; App. 29). Trejo started numerous programs with DPD including the
Citizens on Patrol Program. Id. Due to her exemplary performance, Trejo was
promoted to the position of sergeant in 1993. Id. In 1996 she became the first
African American Training Sergeant in the DPD Training Academy and supervised
all of the recruits during their thirty-two weeks of training. Id. From 1997 until
2007 Trejo worked at various patrol divisions as a shift supervisor. Id. During this
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time Trejo became the first African American supervisor for the bicycle unit for the
B. Following the 2007 bid process, Trejo is assigned the position of sector
sergeant.
In 2007, DPD instituted a new bid process. This bid process, based on
seniority specifically allowed sergeants to bid for their days off, their watch and
their division. (Trejo Dep. 35:17-20; App. 2). Trejo bid for Tuesdays and
Wednesdays off, on the second watch at Central. (Trejo Dep. 35:24-36:1; App. 2).
Trejo was assigned these days off, division, and watch. (Trejo Dep. 36:19-21; App.
2). Trejo was then assigned a position as a Sector Sergeant by the second watch
lieutenant at central division, Lieutenant Dwyer. (Bull Dep. 22:19-21; App. 32).
Trejo was notified that she was assigned to be the sector sergeant over the 120
C. DPD has two sergeant positions, sector sergeant and station sergeant. The
position of sector sergeant is more prestigious and desirable.
including the police officers and senior corporals, in the field in a specific
geographical area called a sector. (Golbeck Dep. 16:3-18; App. 39). The position of
station sergeant on the other hand is an administrative position, which oversees the
front desk staff, ensures details are made, makes sure telephone calls are
addressed, does payroll, and keeps track of holiday leave. (Golbeck Dep. 25:18 –
26:4; App. 43-44). At this time Larry Litton was assigned to the position of station
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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sergeant. (Bull Dep. 26:18-20; App. 34; Litton Dep. 7:4; App. 49). Prior to the 2007
bid Litton had spent seven years in an administrative sergeant position, which
shares a similar set of duties to the station sergeant position. (Litton Dep. 08:8 –
09:10; App. 50-51). The assignments for these positions are made based on the need
of the department, the experience of the officers, and whom would best serve in that
position based on those factors. (Golbeck Dep., 22:20 – 23:12; App. 40-41).
Shortly before Trejo was to begin at central, a new lieutenant, Alan Bull was
transferred from the crime scene response section to central, second watch. (Bull
Dep. 25:19-22; App. 33). Bull has been disciplined by DPD for yelling “nigger” at
suspects in the past. (Bull Dep. 105:12-14; App. 38). In fact, it is common
knowledge at DPD that Bull has been passed over for promotions due to this fact.
E. Shortly before Trejo is to begin work as a sector sergeant, Lt. Bull reassigns
her to the position of station sergeant and gives her sector sergeant position to
a white male.
Bull, upon arriving at central, began reassigning officers. (Trejo Dep. 41:6-
17; App. 3). A week before she was to begin her assignment as a sector sergeant
Bull changed her assignment to station sergeant. (Trejo Dep. 41:16-17; App. 3).
Bull did this even though he had previously stated that she would be unable to be
the station sergeant due to her days off. (Trejo Dep. 42:12 – 43:5; App. 3-4). Trejo
was the only African American female that Bull supervised. (Id.). All of the white,
male sergeants were allowed to decline the assignment to station sergeant. (Trejo
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Dep. 45:11-15; App. 4). Trejo, whom Bull stated was one of two people unable to
take the assignment, was the one to be assigned to the position after the white,
male sergeants had declined the assignment. It had been, and still is, DPD’s
practice that station sergeants have Saturdays and Sundays off. (Trejo Dep. 50:3-
12; App. 5). When Trejo complained Bull offered to give her the position of
storefront sergeant. (Trejo Dep. 56:13-17; App. 6). This was not a true attempt to
remedy the problem however because, as everyone knew, the position was rumored
F. Litton disputes Bull’s stated reason for removing Trejo from the position of
sector sergeant.
There is a dispute between Bull and his supervisor at the time, Vincent
Golbeck, and Larry Litton as to who asked for this reassignment. Bull testified that
Litton was the one who approached him and requested to be switched to the
position of a sector sergeant. (Bull Dep. 27:18-28:9; App. 35-36). Golbeck likewise
testified that Bull told him that Litton had approached him asking to change his
testified that Bull had approached him and initiated the process of changing the
G. Trejo files a grievance of race and sex discrimination because of her re-
assignment.
Trejo, having been moved to this position against her will, filled a grievance
through DPD’s internal grievance process was filed on November 21, 2007. Id.
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Trejo grieved the re-assignment that was made a week prior to her starting at
central as well as the failure to change her days off to comport with her new
assignment. Id. Trejo also grieved that she was told by Golbeck she would be
unable to supervise sworn officers while she was the station sergeant. (Trejo Dep.
34:24-35:4; App. 2). From this point on, things changed drastically for Trejo on a
H. Bull denies Trejo the ability to “flex” hours, something all the other sergeants
are allowed to do. Trejo files an additional grievance of discrimination and
retaliation.
On January 21, 2008, Trejo submitted a second grievance stating she was
being retaliated against. (COD 002930-2931; App. 58-59). In this grievance Trejo
states that she was not allowed to flex her hours like other sergeants and Bull
himself. Id. Specifically, Trejo had asked Bull if she could flex her hours to attend
church once a month. (Trejo Dep 58:4-8; App. 7). Bull stated that he would have to
“chew on it” and told Trejo that because she had filed her grievance she would likely
have to wait for a decision. (Trejo Dep. 58:10-11, 60:12-61:2; App. 7-8). While Bull
would not allow Trejo to flex her hours, he did allow the other white, male sergeants
to flex their hours. (Trejo Dep. 63:17-21; App. 8). In fact, Bull himself had been
allowed to flex his own hours at times. (Trejo Dep. 64:10-11; App. 8). While Trejo
continued to attempt to flex her hours as others were allowed, she was unable to do
so until her transfer in September 17, 2008. (Trejo Dep. 153:13-15; App. 27).
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I. Shortly after filing her second grievance, Bull stands by Trejo’s desk and sings
that he is “dreaming about my ole mammy.”
At the end of January, Bull walked up to Trejo’s desk and sang that he was
“dreaming about his ole mammy.” (Trejo Dep. 84:3-6; App. 9). Phyllis Sutton,
another employee, was present at the time heard Bull sing this statement. (Trejo
Dep. 85:2-6; App. 16; Sutton Dep. 10:3-10; App. 85). Later, Bull even admitted to
singing that he was “dreaming about his ole mammy” and apologized to Sutton for
This statement was directed at Trejo, and meant to humiliate and offend her.
(Trejo Dep. 90:3 – 91:6; App. 11). The comment shocked and upset Trejo, causing
the rest of the employees in the room to turn and stare at Trejo. (Trejo Dep. 86:2-14;
App. 10). Trejo brought this comment to the attention of Chief Golbeck, Bull’s
supervisor. (Trejo Dep. 83:22-25; App. 9). After discussing the allegations with
J. Throughout her tenure at central division, and while working with Bull, Trejo
is subjected to discrimination and retaliation.
regarding women not being able to work. (Trejo Dep. 110:14-18; App. 16). Trejo
stated that there were multiple comments directed at her. (Trejo Dep. 110:5-111:6;
App. 16). Bull made jokes about accidently attending Obama fundraisers. (Trejo
Dep. 110:5-11; App. 16). Trejo testified that Bull would also repeatedly use the
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mannerism of giving people “dap”. (Trejo Dep. 128:9-15; App. 20). A “dap” is the fist
bump popularized by the Obama campaign and associated with African Americans.
2. Bull would slam the door next to Trejo’s desk in order to harass her.
Trejo testified that Bull would continually slam a door, which was located
next to her desk, in an effort to startle and scare her. (Trejo Dep. 91:7-15; App. 11).
The door was not one directly leading into his office, and was not regularly kept
closed. (Trejo Dep. 94:5-10; App. 12). The slamming of the door was directed at
3. Bull took the other sergeants out to lunch, leaving Trejo behind alone.
Further, Trejo could then not take her own lunch because she would
have to staff the office.
Bull would routinely take the other sergeants to lunch but did not take Trejo.
(Trejo Dep. 130:13-131:4; App. 21). Litton corroborated this statement, testifying
that Bull would take the sergeants to lunch. (Litton Dep. 19:5-8; App. 52). Litton
also stated that he never recalled Trejo attending these lunch outings. (Litton Dep.
19:9-11; App. 52). Trejo in fact never attended one of these lunches. (Trejo Dep.
130:13-131:4; App. 21). Bull would then make sure he and the other sergeants
would not return to the office in time to relieve Trejo for lunch. (Trejo Dep. 130:13-
131:4, 131:14-17; App. 21). The policy requiring Trejo to have someone relieve her
when she went to lunch was a new policy that applied only to Trejo. (Trejo Dep.
130:13-131:4; App. 21). This occurred throughout Trejo’s tenure at central. (Trejo
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4. Bull’s demeanor and actions encourage the rest of the sergeants to
harass trejo when Bull is around.
Trejo also testified that, while she and Bull were both at central, on a daily
basis she was treated differently by the other sergeants when Bull was present.
(Trejo Dep. 98:15-21; App. 3). When Bull was around the sergeants would not talk
to Trejo, would not volunteer to relieve her for lunch, and would not offer to help
Trejo around the office. (Trejo Dep. 99:18-100:2; App. 13). In fact, Bull created an
atmosphere that was so tolerant of harassment that other sergeants started to joke
about Trejo. (Trejo Dep. 102:7 – 103:18; App. 14). These jokes and acts of
105:1; App. 14-15). Due to Bull’s actions Trejo had been labeled a troublemaker.
5. Bull excludes Trejo from sergeant meetings. When Bull is told to stop, he
permanently cancels sergeant meetings altogether.
Trejo also complained that Bull would exclude her from sergeant meetings
where Bull would only allow the white, male sergeants to attend. (Trejo Dep. 94:16-
19; App. 12). These meetings were sergeant meetings, which are normally held for
the attendance of all sergeants, including Trejo. (Trejo Dep. 95:7-10; App. 12).
information. (Trejo Dep. 94:20-24; App. 12). Once Bull would gather the sergeants
into the meeting room, located right behind Trejo, he would slam the door closed.
(Trejo Dep. 96:17:21; App. 12). When Trejo complained about this to Golbeck,
Golbeck ordered Bull to stop excluding her. (Trejo Dep. 96:3-7; App. 12). Bull then
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stopped having these meetings altogether while he was the lieutenant at central.
Trejo also alleges that, due to the hostile environment that Bull fostered
toward her, people would go through her desk when she was not on duty. (Trejo
Dep. 122:17 – 123:20; App. 19). There was no reason for anyone to go through her
paperwork and personal items kept in the desk. (Trejo Dep. 123:21-25; App. 19).
Bull was transferred from central in June, 2008. (Trejo Dep. 105:1; App. 15). Bull
testified that he was transferred because of Trejo’s complaints against him. (Bull
Dep. 63:18-25; App. 37). Other forms of discrimination, such as Trejo being denied
overtime, flexing and supervising sworn officers continued until Trejo’s transfer on
K. DPD retaliates against Trejo for attempting to pursue her complaint against
Bull for his use of the word “mammy.” DPD refuses to allow Trejo to have a
representative in the investigation, despite longstanding policy otherwise.
Trejo was also discriminated and retaliated against for pursuing her
grievance against Bull for the use of the word “mammy.” (Trejo Dep. 134:4-19; App.
22). When Trejo went to IAD to provide a statement to the investigator she was
told she was not allowed to bring her representative with her into the interview. Id.
Trejo’s representative, Lieutenant Thomas Lee Glover, testified that this was the
one and only time he had been told he could not accompany the witness into an
interview. (Glover Dep. 33:8-12; App. 61). Glover testified he had represented
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hundreds of witnesses over the past couple of decades. (Glover Dep. 33:1-7; App. 61).
Glover also testified that comments were made at this time regarding him being up
for promotion when he argued against his exclusion. (Glover Dep. 17:1-16; App. 60).
This behavior by DPD was in retaliation for Trejo opposing her treatment, making
her feel as if she was the one being investigated, not Bull. (Trejo Dep. 154:4-155:22;
App. 27). Trejo was finally allowed to give her statement on April 3, 2008. (COD
L. IAD finds in favor of Trejo, sustaining her complaint that Bull discriminated
against her by singing “dreaming about my ole mammy.”
Even though IAD treated Trejo this way, on May 8, 2008, the IAD
investigator made a finding that Trejo’s complaint was sustained. (COD 000002-12;
App. 62-72). The investigator’s division and bureau commander approved of this
Golbeck then reviewed the decision and requested his supervisor, Chief Floyd
Simpson, overturn the finding. (COD 000064-67; App. 74-77). Even though
Simpson agrees the purpose of IAD is to provide a fair and unbiased department to
investigate and make findings, he reversed the investigator’s finding. (COD 000068;
App. 78; Simpson Dep. 17:20-18:20; App. 79-80). Simpson’s reversal stated that he
made a thorough review. (COD 000068; App. 78). Simpson then testified that he
merely reviewed the file and had a conversation with Golbeck. (Simpson Dep. 48:23-
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N. Trejo files charges of discrimination and ultimately this lawsuit.
IV.
ARGUMENT
Defendant asserts that all of Trejo’s claims in the lawsuit occurred outside of
the 180 day time period. (Defendant City of Dallas’ Motion for Final Summary
Judgment, page 14). This however is untrue. While some acts occurred prior to
February 28, 2008, many other discriminatory and retaliatory actions occurred after
this time as well. This is the most straightforward reason why Defendant’s motion
must be denied. If the Court finds Trejo complained of acts of harassment that
occurred within the 180 period (i.e. since February 28, 2008) then the Court need
not address the more complicated analysis of the Continuing Violation Doctrine.1
1 A hostile-work-environment claim entails ongoing harassment, based on the
discrimination and retaliation until she was transferred from central division.
basis until her direct supervisor, lieutenant Alan Bull, was removed from his
position at central for his actions in June, 2008. There is no question that Trejo
alleges, and there is evidence, that acts of discrimination and retaliation occurred
Many of the discriminatory and retaliatory acts are directly tied to Bull’s
Trejo were acceptable. The discriminatory and retaliatory acts that occurred until
• Bull continued to prevent Trejo from going to lunch by taking all the other
sergeants out to lunch, purposefully not bringing them back to relieve her for
lunch until shortly before the end of her shift. (Trejo Dep. 130:12-131:17;
App. 21).
• Bull quit holding sergeant meetings after he was told to stop excluding Trejo.
determining liability.” Id. Therefore, by showing harassing acts within the 180
days, Trejo is entitled to have the fact finder consider acts that occurred before the
180 in establishing liability.
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• Bull frequently used black mannerisms such as “dap” in and around the office
with employees at central station. (Trejo Dep. 128:9 – 129:3; App. 20-21).
• Others at central treated Trejo differently while Bull was present because of
the atmosphere his actions created. The other officers at central would
ignore Trejo, joke about her and refuse to offer her help. (Trejo Dep. 98:15-
• Bull continued to slam the door next to Trejo’s desk in order to startle and
harass her. (Trejo Dep. 91:7-15; App. 11; 93:6-13; App. 12).
making jokes about Mormon women not being allowed to work. (Trejo Dep.
discriminatory and retaliatory acts continued until she was transferred from
Central Division on September 17, 2008. The acts that occurred until Trejo’s
transfer include:
• Trejo was continually not allowed to “flex” her hours to attend church or
change her schedule to the normal days off of a station sergeant. (Trejo Dep.
• Trejo was continually not allowed to earn any overtime as directed by her
superiors until she transferred out of central. (Trejo Dep. 170:9-16; App. 28).
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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• Trejo continued to not be allowed to supervise sworn officers. (Trejo Dep.
• Trejo continued to have people maliciously go through her desk, invading her
privacy, and harassing her. (Trejo Dep. 122:17 – 123:25; App. 19).
pursuit of her grievances. The first instance of this retaliation occurs when she
When Trejo arrived at Internal Affairs she was told that she could not bring her
representative with her into the interview. (Trejo Dep. 134:4-19; App. 22). Officers
at DPD even made threats regarding her representative being on a list for
promotion. (Glover Dep. 17:1-16; App. 60). This is not IAD’s normal process, and in
fact Glover, who has represented literally hundreds of persons like Trejo, had never
before, nor since, been told he was not allowed to attend an interview with his
client. (Glover Dep. 33:1-7; App. 61). This behavior by DPD was in retaliation for
Trejo pursuing her grievances and made her feel as if she was the one being
investigated for wrong doing instead of Bull. (Trejo Dep. 154:4 – 155:22; App. 27).
Trejo, having put her trust into the grievance process afforded to her by DPD,
was prevented from receiving vindication when Golbeck had Simpson reverse the
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investigator’s finding that Bull had in fact walked by Trejo’s desk and sang in a
derogatory manner that he was “dreaming bout my ole mammy”. Simpson reversed
IAD’s finding after Golbeck, one of the persons to have previously discriminated and
retaliated against Trejo, wrote Simpson a memo and discussed the finding in
private. (Simpson Dep. 48:23-49:12; App. 81-82; COD 000064-68; App. 74-78).
B. The incidents prior to February 28, 2008 are not barred by the 180 day time
limit because they constitute prior discriminatory acts that are related to those
within the 180 day time limit under the Continuing Violation Doctrine.
Defendant claims that Trejo’s claims, as they relate to actions that occurred
prior to February 28, 2008, are statutorily barred. As Trejo sued in state court, The
Texas Commission on Human Rights Act governs Trejo’s claim for racial
discrimination, retaliation, and harassment. See Tex. Labor Code Ann. § 21.051.
The Act requires a complaint be filed with the TWC or EEOC no later than the
180th day after the date the alleged unlawful employment practice occurred. See
Doctrine. The 5th District Appeals Court in Dallas has held that “under the
limitations period not begin to run at the date of the first incident of retaliatory
conduct, but rather be tolled until facts supportive of a cause of action are, or should
Cross Blue Shield of Tex., Inc., 2000 WL 770112, 1 (Tex. App. – Dallas 2000, no writ
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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hist.) (unpublished) (citing Glass v. Petro Tex. Chem. Corp., 757 F.2d 1554, 1560
(5th Cir. 1985)). The court then explained, “to qualify for this exception one must
show a series of related acts, one or more of which falls within the limitations
period.” Id. The court then instructed, “to determine whether a plaintiff is
complaining of a continuing violation the court must look to three factors: (1)
whether the violations involve the same type of wrong, tending to connect them as a
continuing violation; (2) whether the acts are recurring or isolated, and most
importantly; (3) the degree of permanence of the act.” Id. at 2 (citing Berry v. Board
In Glass, the 5th Circuit found that the continuing violation doctrine applied.
Glass was an employee who, on multiple occasions, had been passed up for
promotion due to the bias her supervisor held against women. The only act within
the statutory time frame was Glass’ last failure to be promoted. The Glass court
then held that this last failure to be promoted was a continuing violation of the
previous failures to be promoted which had occurred well outside the 180-day filing
period. Because the Court found that the last failure to promote was a separate and
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2. The acts cited as occurring before February 28, 2008 meet the standard to be
considered a continuing violation.
In Trejo’s case there are multiple discrete discriminatory acts that occurred
after February 28, 2008. As noted above, these acts include a laundry list of:
would take all the other sergeants out during her lunchtime.
These acts, occurring within the 180 day time period, are discrete instances of
discrimination and retaliation prior to the 180 day time period. The Court should
therefore find that the acts prior to February 28, 2008 are admissible as continuing
violations.
Defendant argues that Trejo failed to plead racial harassment in her charge
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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motion to this particularly spurious argument. A cursory review of the charge and
A lawsuit under the Texas Labor Code for discrimination is limited to claims
made in the charge or complaint filed with the EEOC or the Commission as well as
factually related claims that can reasonably be expected to grow out of the
commission's investigation. Bartosh v. Sam Houston State Univ., 259 S.W.3d 317,
discrimination before the EEOC or Commission, courts should construe them with
“utmost liberality,” although the charge must contain an adequate factual basis so
that it puts the employer on notice of the existence and nature of the charges. Id.
(citing Preston v. Tex. Dep't of Family & Prot. Servs., 222 Fed.Appx. 353, 356 (5th
222 Fed.Appx. at 356); see also 29 C.F.R. § 1601.12(b) (2009) (“a charge is sufficient
when. . . sufficiently precise to identify the parties, and to describe generally the
2 The Texas Supreme Court has held that the Texas Legislature expressly enacted
the Texas Commission on Human Rights Act to correlate state law with federal law
in the area of employment discrimination. Schroeder v. Texas Iron Works, Inc., 813
S.W.2d 483, 485 (Tex. 1991). In fact, the TCHRA has as its express purpose, “the
execution of the policies embodied in Title VII of the federal Civil Rights Act of
1964, as amended.” Id. Accordingly, when reviewing a case, the Court should look
to federal case law interpreting Title VII when determining the burdens of proof
under the TCHRA. Id.
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Trejo’s charge clearly asserts facts that would lead the TWC to investigate
harassment and would put the employer on notice that Trejo is asserting
harassment.
• Denying Trejo flex time (Charge, App. 83; Supplemental Charge ¶¶ 30-32,
App. 30.)
• Bull talking with a fake Black accent. (Supplemental Charge ¶ 42, App. 30.)
30.)
• Having to take time off from work for medically diagnosed stress, as well as
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• Refusal of the DPD to cooperate or assist Trejo with administrative matters.
These facts would reasonably lead the TWC to investigate harassment and put the
Similarly, these same facts are contained in Plaintiff’s Original Petition. (See
Plaintiff’s Original Petition and Request for Disclosures). Further, under Plaintiff’s
(a) Giving Plaintiff the undesirable position of Station Sergeant, when she
(c) Being harassed by Lieutenant Bull’s use of a “black accent” and purported
black mannerisms.
when he sang, “I’m dreaming about by ole’ Mammy” next to Trejo’s desk.
(h) Being forced to take personal sick time and vacation time.
(Id., pp. 7-8.) These facts clearly give rise to an action for hostile work environment.
This Court should find that Trejo has pled a cause of action of discrimination,
and that she has pled, through her alleged facts, harassment as a method of proving
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 24
her discrimination claim. If, however, Defendant is truly confused, the proper
attempt to have the Court award the “Death Penalty” sanction of dismissal without
giving the Plaintiff the opportunity to re-plead. Friesenhahn v. Ryan, 960 S.W.2d
656, 659 (Tex. 1998); Pietila v. Crites, 851 S.W.2d 185, 186 (Tex. 1993); Natividad v.
Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Because the summary judgment
a suit based on pleading defects, and so the Court should deny Defendant’s motion
on this ground. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 54-55 (Tex. 2003);
Saenz v. Southern Un. Gas Co., 916 S.W.2d 703, 705 (Tex. App. – El Paso 1996, writ
denied); Texas Dept. of Corr. v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974).
D. Defendant has improperly pled its no evidence motion for summary judgment
and therefore should not be granted summary judgment on a no evidence
basis.
Timpte Indus. v. Gish, 286 S.W. 3d 306, 310 (Tex. 2009); Notes & Comments to Tex.
claim that Defendant claims has no support in the evidence. Ortiz v. Collins, 203
S.W.3d 414, 425 (Tex. App. – Houston [14th Dist.] 2006, pet. denied). Defendant
merely alleged there is no evidence to support Plaintiff’s entire claim. See Tex. R.
Civ. P. 166a(i); Notes & Comments to Tex. R. Civ. P. 166a(i). Defendant only
mentions its no-evidence motion for summary judgment two times in its motion.
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 25
First, the Defendant states that it asserts “both the ‘no-evidence’ standard and the
Final Summary Judgment, p. 1). The only other time the Defendant asserts the no-
(Defendant City of Dallas’ Motion for Final Summary Judgment, page 9). The
Defendant never asserts the elements of Plaintiff’s claim for which no evidence
Even if the Court finds that the Defendant has properly plead a no-evidence
motion for summary judgment, the Court should deny Defendant’s motion for
material fact regarding the Plaintiff’s claims, as shown by the discussion of the
evidence above.
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 26
V.
PRAYER
Respectfully submitted,
By: _____________________________________
Robert J. Wiley
Texas Bar No. 24013750
Board Certified in Labor & Employment Law
by Texas Board of Legal Specialization
Justin G. Manchester
Texas Bar No. 24070207
Stacey Cho
Texas Bar No. 24063953
CERTIFICATE OF SERVICE
I certify that on March 7, 2011 I served a true and correct copy of the
_________________________________________
Robert J. Wiley
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 27