​​​​​​​Opinions Released April 27, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Henry v. Doctor’s Hospital at Renaissance, Ltd, No. 13-15-00561-CV (Memorandum Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Rodriguez)

In this appeal from an order granting the defendants’ motion for no-evidence summary judgment, the Thirteenth Court of Appeals analyzed the “adverse employment action” requirement within the framework of retaliation and discrimination claims under the Texas Labor Code.

Orpha Henry was employed as a nurse at Doctor’s Hospital at Renaissance by RGV Med., LLC (collectively “DHR”), and worked with “Level III” intensive care babies in the neonatal intensive care unit.  Henry requested to be reassigned away from a difficult patient, but her request was denied. Later, Henry was accused of causing a burn to a patient and falsifying related medical records. After these accusations arose, Henry was moved to work with “Level II” intermediate care babies in the intensive care unit.

Henry sued DHR for racial discrimination, retaliation, and IIED. DHR filed a no-evidence motion for summary judgment, arguing that Henry had no evidence of an adverse employment decision or her IIED claim. Henry conceded her IIED claim, but argued that her transfer from Level III to Level II was a demotion. In support of this argument, Henry referenced her own deposition as well as the website of “The Women’s Hospital at Renaissance,” which described the levels of neonatal care at Renaissance.

The trial court granted DHR’s motion for summary judgment, and Henry appealed, arguing that she produced more than a scintilla of probative evidence to show an adverse employment action.

Held: Henry offered no evidence of an adverse employment action other than her subjective opinion regarding the roles. The trial court’s judgment was affirmed.

The Thirteenth Court began by reiterating the standards governing summary judgment. A no-evidence summary judgment is proper only if the nonmovant fails to bring forward more than a scintilla of probative evidence to raise a genuine fact issue regarding the challenged element. The Thirteenth Court reviewed the trial court’s order in a light most favorable to the nonmovant.

Here, the challenged element of Henry’s racial discrimination and retaliation claims was the existence of an adverse employment decision. The key issue presented to the Thirteenth Court was whether Henry’s change in position from Level III to Level II was an “adverse employment decision.” Henry considered the change a demotion with a loss of prestige, while DHR considered the change a “transfer” with the same salary and benefits.

Henry’s claims relied on Texas Labor Code chapter 21, which was enacted to execute the policies of the Civil Rights Act. Thus, the Thirteenth Court looked to federal law for guidance. The Fifth Circuit Court of Appeals has held that a change is a demotion if it decreases the worker’s pay, title, or grade, or if it is less prestigious, interesting, or has less room for advancement. However, these factors are measured objectively.

Here, Henry offered her own deposition and pages from DHR’s website. However, in Henry’s deposition she insisted that Level II was “a step down” because “it’s not the same care,” but did not explain why the transfer could be objectively considered a demotion. Similarly, the website simply distinguished between the two levels of care.

The Thirteenth Court compared Henry’s case to the applicable case law from both federal and state courts. Ultimately, the court found Henry’s case to be analogous to Donaldson v. Texas Department of Aging and Disability Services, 495 S.W.3d 421 (Tex. App.—Houston [1st Dist.] 2016, pet. filed). There, the First Court of Appeals in Houston held that there was no evidence of an adverse employment action when a psychologist complained about the backlog and lack of assistance in his new office but offered no evidence that the same issues were not present in his old office. The Thirteenth Court noted that there was no evidence of the general perception of Level III and Level II work, the prestige of the levels, or the work hours. All Henry offered was her subjective opinion that Level III was better. This was legally insufficient evidence of an adverse employment action. Thus, the trial court’s order granting DHR’s motion for no-evidence summary judgment was affirmed.

Read the Full Opinion Here

Irwin v. State, No. 13-15-00196-CR (Memorandum Opinion by Justice Benavides; Panel Members: Justices Rodriguez and Longoria)

In this appeal from a conviction for possession of a controlled substance, the Thirteenth Court of Appeals analyzed whether the officer’s search of the defendant’s car was permitted under the Fourth Amendment.

Randolph Irwin was stopped for a broken tail light by Officer Eduardo Tagle. Tagle saw Irwin making furtive movements in the car, and Irwin was jittery, shaky, and nervous. Taglelater testified that these movements made him fear for his safety and become concerned regarding the destruction of evidence.

Tagle asked Irwin to step out of the car and conducted a pat-down, but found nothing. Meanwhile, neither of the other passengers in the car would confirm that there was or was not anything illegal in the vehicle.

Tagle confirmed that Irwin had no problems with his driver’s license and no warrants, but decided to search the car based on Irwin’s furtive movements and nervousness. Tagle found an Altoids tin between the console and driver’s seat inside Irwin’s car, and opened the tin to find a bag of crystal meth. Irwin was arrested and charged with possession of a controlled substance.

Irwin filed a motion to suppress the drug evidence. After a hearing at which Tagle testified, the trial court denied the motion without issuing findings of fact or conclusions of law. Irwin pleaded guilty, then appealed on the suppression issue.

The Thirteenth Court of Appeals originally ruled on the case on April 13, 2017, then sua sponte withdrew the opinion and reconsidered the issues.

Held: Tagle did not have probable cause to search Irwin’s car, and any drugs found during the search should have been suppressed. The trial court’s judgment was reversed and the cause remanded.

First, the State argued that Irwin waived his right to appeal by pleading guilty, and that the trial court’s certification of his right to appeal was a mistake. The Thirteenth Court of Appeals reiterated therule that a trial court must enter a certification of a defendant’s right to appeal—if such right is reserved—but that the certification can be corrected if it is inaccurate in light of the record as a whole. The Thirteenth Court then reviewed the record to determine if Irwin waived his right to appeal. Although the court noted that the parties’ written plea agreement said the State would ask that Irwin not be given the right to appeal, Irwin’s admonishments read differently. The admonishments stated that Irwin would not appeal unless the trial court gave him permission “or except on those matters raised by pretrial motion.” Another section in the admonishments regarding waiver of appeal was crossed out rather than initialed. Moreover, at the plea hearing, the trial court stated that Irwin had the right to appeal his pretrial motion. Thus, Irwin did not waive his right to appeal the motion to suppress, and the trial court correctly certified Irwin’s right to appeal.

Next, the State attacked Irwin’s standing to challenge the search of the vehicle. This was an issue the State raised for the first time on appeal. The Thirteenth Court noted that Irwin bore the burden to establish his personal right to a legitimate expectation of privacy within the car— both subjectively and objectively. Reviewing the evidence at the suppression hearing, Tagle found Irwin driving the car, with care, custody and control of the vehicle. There was no evidence offered regarding ownership of the car. Moreover, the State stipulated to the warrantless arrest and attempted to justify the arrest during the suppression hearing. The Thirteenth Court thus held that the State acquiesced to Irwin’s standing through its concessions and conduct in the suppression hearing.

Finally, the court turned to the substance of the suppression issue. The Thirteenth Court reviewed the trial court’s motion to suppress by giving “almost complete deference” to the trial court’s factual findings and to its application of the law to the facts, but analyzing the questions of law de novo.

Irwin argued that Tagle did not have probable cause for the warrantless search. The court noted that a traffic stop is a detention under the Fourth Amendment, and is subject to the Terry v. Ohio analysis: (1) was the officer’s decision to stop the vehicle justified; and (2) were the officer’s subsequent actions reasonably related to the reason for the stop. The officer must have reasonable suspicion to detain the citizen, meaning that the officer must be aware of articulable facts that indicate the citizen is, has been, or will be engaged in criminal activity. The investigative stop must last no longer than necessary to effectuate the purposes of the stop; it cannot be used as a fishing expedition.

Here, the Thirteenth Court held that Tagle did not articulate any facts to justify Irwin’s continued detention after stopping him for the broken tail light; Tagle provided only his subjective perception that “something was up.” Moreover, Tagle was required to justify his search of the car as well. Under the automobile exception to the warrant requirement, Tagle could search the car—including all contents of the car—only if he had probable cause that it contained contraband. Although Tagle pointed to Irwin’s behavior to justify his search—his furtive movements and nervousness—the Texas Court of Criminal Appeals has held that neither furtive movements nor nervousness establish probable cause for a search. Although these factors may have justified a brief detention to investigate possibly-criminal behavior, Tagle could not continue to detain Irwin or search the car without facts that set Irwin apart from an innocent person. Yet,  Tagle did not observe any additional signs of criminal activity during the stop. Tagle’s belief that “something was up” was merely an inarticulable hunch that did not justify the continued detention or the search. Thus, Tagle did not have probable cause to continue his detention of Irwin or to search his car. The trial court’s judgment was reversed and the cause remanded.

Read the Full Opinion Here