Retaliation—Proof of Causation—Discrimination in Promotion

Retaliation—Proof of Causation—Discrimination in Promotion—Metropolitan Transit Authority of Harris County v. Ridley, ___ S.W.3d ___, 2017 WL 3910160 (Tex. App.—Houston [1st Dist.] 2017)—In a Chapter 21 suit against a public employer the plaintiff bears elevated pleading requirements to overcome the employer’s sovereign immunity defense. In this case the court holds that the plaintiff failed to present sufficient facts to show a causal link between her protected activity (complaining about discrimination) and a series of disciplinary actions, because the disciplinary actions began before the plaintiff’s protected activity. The court also rejected the plaintiff’s race discrimination claim with respect to a promotion granted to an employee of a different race. In doing so, the court invoked the “similarly situated” and “nearly identical” standards ordinarily used to evaluate comparative disciplinary action, instead of the usual test for promotion cases that asks whether a plaintiff’s qualifications were superior to those of the successful candidate. Applying the “nearly identical” standard from discriminatory discipline cases, the court found that a comparison of “professional experience” as a qualification for promotion is not “susceptible to comparison.” In any event, the court also found that the plaintiff’s disciplinary record had disqualified her from the position in question.