Susan Clifton v. the City of Pasadena

Reversed and Remanded and Memorandum Opinion filed May 16, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00143-CV

SUSAN CLIFTON, Appellant

V.
THE CITY OF PASADENA, Appellee

On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2018-84235

MEMORANDUM OPINION

Appellant Susan Clifton filed suit against the City of Pasadena alleging that
appellee, the City of Pasadena,1 discriminated against her and also retaliated

1
Clifton named both the City of Pasadena and the Pasadena Police Department as
defendants in her First Amended Petition. The Pasadena Police Department, however, has no
separate legal existence and is not subject to suit. See Darby v. Pasadena Police Dep’t, 939 F.2d
311, 313 (5th Cir. 1991); Cronen v. Houston Park Police, No. B14-91-00407-CV, 1992 WL
99533 at *2 (Tex. App.—Houston [14th Dist.] May 14, 1992, no writ) (not designated for
publication) (stating that the Park Police was a department of the City of Houston and was not a
separate entity subject to suit).
against her when acting Pasadena Police Chief Al Espinoza demoted her from
assistant chief back to the rank of lieutenant. Pasadena filed a plea to the
jurisdiction, which the trial court granted. Because Clifton produced sufficient
evidence to create a fact issue on her discrimination and retaliation claims brought
pursuant to the Texas Commission on Human Rights Act (TCHRA), we reverse
and remand to the trial court for further proceedings. See Tex. Lab. Code §§
21.051; 21.055.

BACKGROUND

Clifton became the first female assistant chief of police in the Pasadena
Police Department in 2013. She was one of three assistant chiefs in the
department. In early 2017, the night-shift lieutenant notified Clifton about a field-
training feedback form prepared by Probationary Officer Shawna Brown. The
feedback form addressed Officer Brown’s experience with her field-training officer
(FTO), Steven Espinoza. In her feedback, Officer Brown stated that she did not
believe that FTO Espinoza should be an FTO because, among other things, he
made inappropriate sexual comments to her during her training. Clifton believed
that Officer Brown’s feedback reported that FTO Espinoza had sexually harassed
Officer Brown during her field training. Based on this belief, Clifton made the
decision to report the allegations to the chief of the department at the time. Clifton
subsequently filled out a Record of Complaint to initiate an internal affairs
investigation on FTO Espinoza. Clifton was listed as the complainant to prevent
any stigma from attaching to Officer Brown as a result of the complaint. Once
Officer Brown learned of the complaint, she told Clifton that she did not want to
file a complaint. Clifton told Officer Brown that she did not have a choice and that
she was listed as a witness, not the complainant.

Sergeant Wille conducted the ensuing internal affairs investigation. During

2
the investigation, FTO Espinoza admitted making some of the alleged comments.
At the completion of the investigation, Police Chief Thayer determined that FTO
Espinoza’s actions warranted “a three (3) day suspension from the Pasadena Police
Department.” FTO Espinoza waived his right to appeal and accepted the three-day
suspension without pay on March 31, 2017.

FTO Espinoza’s father was Lieutenant Al Espinoza, also of the Pasadena
Police Department. For reasons not revealed by the record, Sergeant Wille talked
to Lieutenant Espinoza about the investigation into his son’s conduct as an FTO.
According to Sergeant Wille, Lieutenant Espinoza took exception to the fact that
the allegations had gone to internal affairs. Lieutenant Espinoza expressed his
belief that the allegations should have been handled at the shift level because it was
just “cops being cops.” Sergeant Wille informed Clifton about Lieutenant
Espinoza’s response to the investigation.

In mid-June 2017, newly-elected Mayor Jeff Wagner told Lieutenant
Espinoza that he would be promoted to replace the retiring Chief Thayer. On June
23, 2017, Lieutenant Espinoza met with Clifton in her office. Lieutenant Espinoza
told Clifton that he was going to demote her back to the rank of lieutenant.
Lieutenant Espinoza told Clifton that it had nothing to do with her abilities or
skills, but he “just felt more comfortable with starting [his] own team.”
Additionally, Lieutenant Espinoza told Clifton that when he got selected to be the
new chief, a lot of pressure was placed on him to make a “sweeping move” with
the assistant chief positions, to “just change everything.”

On July 1, 2017, Lieutenant Espinoza became the acting chief of the
Pasadena Police Department. As an acting chief, Espinoza did not have the
authority to make personnel decisions. On July 3, 2017, Acting Chief Espinoza
signed the administrative form demoting Clifton to lieutenant. Randy Perry, the

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director of Pasadena’s Human Relations (HR) Department and its Civil Service
Director, signed the same day. Mayor Wagner signed on July 7, 2017. Acting
Chief Espinoza was not confirmed as the Chief of Police until the next meeting of
the Pasadena City Council. See Tex. Loc. Gov’t Code § 143.013(a)(1) (stating that
a department head is appointed by a municipality’s chief executive and confirmed
by the municipality’s governing body). Clifton, as a result of her demotion,
experienced a reduction in her authority as well as a pay decrease. Despite the
alleged pressure on Chief Espinoza to make sweeping moves with the assistant
chiefs, Clifton, the only female assistant chief, was the only assistant chief
involuntarily demoted by Chief Espinoza.2 In addition, according to Josh
Bruegger, the man who eventually replaced Al Espinoza as Chief of the Pasadena
Police Department, Clifton was the only assistant chief he was aware of who had
ever been involuntarily demoted from assistant chief back to lieutenant. Chief
Espinoza selected a male lieutenant to replace Clifton.

Clifton initiated a complaint via an email to Randy Perry, the director of
Pasadena’s HR department, the same month that she was demoted. Clifton
asserted that her demotion was based on her sex and also in retaliation for making
the complaint against Officer Espinoza, Chief Espinoza’s son. Perry received and
opened the complaint email but did not respond to Clifton’s claim. Clifton
followed up on her initial complaint and asked when she would receive a reply.
Perry received this follow-up email as well but he did not respond. In addition,
other than talking to Chief Espinoza, Perry did not investigate Clifton’s complaint.
Perry, however, did generate a draft letter regarding Clifton’s complaint, but he
never sent it to Clifton, or to anyone else. When asked during his deposition

2
Chief Espinoza testified during his deposition that he planned to keep another assistant
chief, Mike Jackson, for only six months and then replace him. Jackson instead opted to
immediately accept a voluntary demotion to lieutenant.

4
whether he had referred Clifton’s complaint to the Pasadena Civil Service
Commission, he testified “I don’t know.”

While Officer Brown initially did not want to file a complaint regarding her
treatment as a probationary officer, she did eventually file a complaint about her
treatment by the Pasadena Police Department. Perry admitted during his
deposition that he did not investigate Officer Brown’s retaliation complaint once it
was filed. Perry explained that he did not investigate Brown’s retaliation
complaint because she had already been terminated for not successfully completing
her period as a probationary police officer.

According to Chief Bruegger, Perry had retired from his Pasadena
employment at the time of Chief Bruegger’s deposition. When asked if it had ever
been alleged that Perry violated department policies, Chief Bruegger testified that
some of Perry’s responses to grievances made to his department had not been
handled in compliance with Pasadena’s policy. Chief Bruegger explained that
Pasadena’s policy was to investigate any grievances made which, at the minimum,
should include interviewing the person making the allegation and the subject of the
allegation. Chief Bruegger testified that it was his understanding Perry never
responded to Clifton’s investigation.

Clifton filed a charge of discrimination with both the Equal Employment
Opportunity Commission (EEOC) and the Texas Workforce Commission Civil
Rights Division (TWC). Clifton received a “right to sue letter.” Clifton
subsequently filed suit against Pasadena asserting causes of action exclusively
under the TCHRA. Clifton alleged that Pasadena discriminated against her on the
basis of her sex in violation of Section 21.051 of the Texas Labor Code. See Tex.
Lab. Code § 21.051 (providing that an employer commits an unlawful employment
practice if it “fails or refuses to hire an individual, discharges an individual, or

5
discriminates in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment”). Clifton also
alleged that Pasadena, when it demoted her back to lieutenant, retaliated against
her for filing the complaint against Officer Espinoza in violation of Section 21.055
of the Texas Labor Code. See id. at § 21.055 (providing that an employer commits
an unlawful employment practice if it retaliates or discriminates against a person
who opposes a discriminatory practice, makes or files a charge, or files a
complaint).

Pasadena filed a plea to the jurisdiction asserting that the trial court did not
have subject matter jurisdiction because Clifton could not demonstrate a prima
facie case of retaliation nor of gender discrimination. After much delay, the trial
court granted Pasadena’s plea and dismissed Clifton’s lawsuit without prejudice.
This appeal followed.

ANALYSIS

Clifton raises two issues challenging the trial court’s dismissal of her claims.
We address Clifton’s second issue first.

I. Standard of review

As a governmental unit, Pasadena is immune from suit absent an express
waiver of governmental immunity. See Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 770 (Tex. 2018) (stating governmental units are immune from
suit unless the state consents). The TCHRA provides a limited waiver of immunity
when a governmental unit has discriminated in any manner against an employee on
the basis of race, gender, disability, or other protected classification, or has
retaliated against the employee for opposing or complaining of such
discrimination. Harris Cnty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 191 (Tex.

6
App.—Houston [14th Dist.] 2015, no pet.). The TCHRA’s immunity waiver
applies only if the plaintiff alleges a violation within the scope of the statute.
Clark, 544 S.W.3d at 770; Parker, 484 S.W.3d at 191. If the plaintiff does not
sufficiently plead facts that state a claim under the TCHRA, the governmental unit
may challenge the pleadings with a plea to the jurisdiction. Parker, 484 S.W.3d at
191. The governmental unit may also use a plea to the jurisdiction to challenge the
existence of jurisdictional facts. Id.

Immunity from suit may be asserted through a plea to the jurisdiction or
other procedural vehicle, such as a motion for summary judgment. Clark, 544
S.W.3d at 770. A jurisdictional plea may challenge the pleadings, the existence of
jurisdictional facts, or both. Id. When a jurisdictional plea challenges the
pleadings, we determine if the plaintiff has alleged facts affirmatively
demonstrating subject-matter jurisdiction. Id. If, however, the plea challenges the
existence of jurisdictional facts, we move beyond the pleadings and consider
evidence when necessary to resolve the jurisdictional issues, even if the evidence
implicates both subject-matter jurisdiction and the merits of a claim. Id.

Here, Pasadena’s plea challenged the existence of jurisdictional facts with
supporting evidence. In that situation, the standard mirrors that of a traditional
summary judgment. Id. If the plaintiff’s factual allegations are challenged with
supporting evidence necessary to consideration of the plea to the jurisdiction, to
avoid dismissal, the plaintiff must raise at least a genuine issue of material fact to
overcome the challenge to the trial court’s subject matter jurisdiction. Id. When
the evidence submitted to support the plea implicates the merits of the case, we
take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor. Id. In doing so,
however, we cannot disregard evidence necessary to show context, and we cannot

7
disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors
could not. Id.

To resolve claims of discrimination at this stage of a case, Texas courts
apply the burden-shifting analysis first announced by the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Under
this framework, the plaintiff first has the burden of presenting a prima facie case of
discrimination. Metropolitan Trans. Auth. of Harris Cnty. v. Douglas, 651 S.W.3d
122, 127 (Tex. App.—Houston [14th Dist.] 2021, no pet.). The precise elements
of a prima facie case vary depending on the circumstances but the plaintiff’s
burden at this stage is not onerous. Id. Once the plaintiff establishes a prima facie
case, the burden shifts to the defendant to provide a legitimate, nondiscriminatory
reason for the employment action. Id. If the defendant articulates a legitimate,
nondiscriminatory reason for its decision, the burden shifts back to the plaintiff to
show either that the stated reason was a pretext for discrimination or that, even if
the reason was true, discrimination was also a motivating factor for the adverse
employment action. Id. The McDonnell Douglas framework applies to
jurisdictional issues such as those raised in this appeal, both in the discrimination
and the retaliation contexts. Id.

We review a trial court’s disposition of a jurisdictional plea de novo. Suarez
v. City of Texas City, 465 S.W.3d 623, 632 (Tex. 2015).

II. Appellant fulfilled her obligation to exhaust administrative remedies.

The trial court granted Pasadena’s plea to the jurisdiction and dismissed
Clifton’s lawsuit without specifying a reason for doing so. One of Pasadena’s
arguments asserted in its plea to the jurisdiction was that the trial court did not
have subject matter jurisdiction because Clifton failed to exhaust her
administrative remedies. See Specialty Retailers, Inc. v. DeMoranville, 933
8
S.W.2d 490, 492–93 (Tex. 1996) (per curiam) (providing that exhaustion of
administrative remedies is a subject-matter jurisdictional prerequisite to suing for
unlawful employment practices). “To exhaust administrative remedies under
Chapter 21, a plaintiff must (1) file a complaint with the TWC or the EEOC within
180 days of the alleged discriminatory act; (2) allow the agency 180 days to
dismiss or resolve the complaint; and (3) sue in the district court within 60 days of
receiving a right-to-sue letter from the agency and no later than two years after
filing the complaint.” Galveston Cnty. v. Cooley, No. 14-23-00109-CV, 2024 WL
564191, at *4 (Tex. App.—Houston [14th Dist.] Feb. 13, 2024, no pet.) (mem. op.)
(citing Tex. Lab. Code §§ 21.202, .208, .254, .256). The timely filing of a
complaint is mandatory, and when the defendant is a governmental entity, the
failure to timely file is a jurisdictional bar to suit. Prairie View A & M Univ. v.
Chatha, 381 S.W.3d 500, 514 (Tex. 2012).

In the trial court Pasadena cited a single section of the Local Government
Code, Section 143.054, in support of its argument that Clifton did not exhaust her
administrative remedies prior to filing suit. We conclude Section 143.054 does not
support Pasadena’s jurisdictional argument. Section 143.054, entitled
“Demotions,” creates a procedure for the head of a police department to initiate the
involuntary demotion of a police officer. See Tex. Loc. Gov’t Code § 143.054.
The statute provides that if the head of a police department wants to involuntarily
demote a police officer, “the department head may recommend in writing to the
commission that the commission demote the . . . police officer.” Id. The statute
then provides that “if the commission believes probable cause exists for ordering
the demotion, the commission shall give the . . . police officer written notice to
appear before the commission for a public hearing . . . .” Id. The statute further
provides that the police officer is entitled to a public hearing and the commission

9
may not demote the police officer without the public hearing. Id. Pasadena
provided no evidence that Chief Espinoza followed this procedure when he
decided to demote Clifton. Further, the statute says nothing about a police officer
being required to initiate a hearing procedure after being demoted outside this
statutory framework.

On appeal, Pasadena cites a different section of the Local Government Code,
Section 143.102(e), in support of its failure to exhaust administrative remedies
argument. While it is true this section provides that a police chief may remove an
assistant police chief without cause, the statute applies only to a municipality with
a population of 1.5 million or more people, which does not include Pasadena. 3 See
Tex. Loc. Gov’t Code § 143.101(a) (“Except as otherwise provided, this
subchapter [G] applies only to a municipality with a population of 1.5 million or
more.”); § 143.102 (included within Subchapter G of Chapter 143). It therefore
does not support Pasadena’s failure to exhaust administrative remedies argument.

Because it is undisputed Clifton timely filed her charge of discrimination
with the EEOC and the TWC, received a right to sue letter, and timely filed suit
thereafter, we conclude she exhausted her administrative remedies. We sustain
Clifton’s second issue on appeal.

II. The trial court erred when it dismissed Clifton’s retaliation claim.

Clifton argues in her first issue that the trial court erred when it dismissed
her retaliation claim. We agree.

The TCHRA makes retaliation for opposing a discriminatory practice
actionable. See Tex. Lab. Code § 21.055; Waffle House, Inc. v. Williams, 313
S.W.3d 796, 804 (Tex. 2010). “To establish a prima facie case of retaliation, an
3
The United States Census website provides that Pasadena’s 2022 estimated population
was 147,662. See www.census.gov/quickfacts/fact/table/pasadenacitytexas/PST045222.

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employee must show: (1) she engaged in an activity protected by the TCHRA, (2)
she experienced a material adverse employment action, and (3) a causal link exists
between the protected activity and the adverse action.” Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018). A retaliation claim may be
actionable even if a discrimination claim is not. Id. at 781. The TCHRA provides
that an employer commits an unlawful employment practice if it retaliates or
discriminates against a person who “(1) opposes a discriminatory practice; (2)
makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates
in any manner in an investigation, proceeding, or hearing.” Tex. Lab. Code §
21.055; Navy v. College of the Mainland, 407 S.W.3d 893, 900 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). “Unlike a discrimination claim, a retaliation
claim focuses on the employer’s response to an employee’s protected
activity, . . . rather than on the validity of the underlying discrimination
complaint.” Texas Dep’t State Health Servs. v. Resendiz, 642 S.W.3d 163, 180
(Tex. App.—El Paso 2021, no pet.). Finally, Clifton is not required to establish
that her filing of the complaint regarding Officer Espinoza’s treatment of Officer
Brown was the sole cause of her demotion. River Oaks L-M, Inc. v. Vinton-
Duarte, 469 S.W.3d 213, 226 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

In the trial court, Pasadena argued that Clifton failed to meet her initial
burden to show a prima facie case of retaliation because she did not engage in a
protected activity nor establish the causal link between the protected activity and
the adverse action. On appeal, Pasadena relies on numerous Fifth Circuit opinions
addressing Title VII claims.4 See e.g. EEOC v. Rite Way Serv., Inc., 819 F.3d 235,

4
Section 2000e-3 of Title VII provides that it is an unlawful employment practice for an
employer to discriminate against an employee for opposing “any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a).

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239 (5th Cir. 2016) (dividing Title VII retaliation claims into opposition clause and
participation clause categories). In addition, Pasadena argues that the trial court
properly dismissed Clifton’s suit because Clifton was not able to identify direct
evidence establishing that Chief Espinoza’s non-discriminatory reason for
demoting Clifton, his desire to form his own command staff, was pretextual.

We turn first to whether Clifton established the challenged elements of a
prima facie case of retaliation. Like Title VII, the Texas Labor Code provides that
a protected activity includes opposing a discriminatory practice, making or filing a
charge, filing a complaint, or testifying, assisting, or participating in an
investigation, proceeding, or a hearing. See Tex. Lab. Code § 21.055. Because the
Texas Supreme Court has directed that federal cases applying Title VII “guide”
Texas appellate courts’ application of the TCHRA, we will use the opposition
clause and participation clause categories here. See Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012).

Citing EEOC v. Rite Way Servs., Inc., Pasadena argues that the participation
clause does not apply to a purely internal investigation such as the one at issue here
that was not connected with a formal EEOC proceeding. 819 F.3d at 239, n.2.
Because it is undisputed that there had not been a complaint filed with the EEOC
or the TWC at the time Clifton initiated her complaint regarding FTO Espinoza’s
sexually harassing Officer Brown, we agree. See Byers v. Dallas Morning News,
Inc., 209 F.3d 419, 428 (5th Cir. 2000) (“In the instant case, the ‘participation
clause’ is irrelevant because Byers’s did not file a charge with the EEOC until after
the alleged retaliatory discharge took place.”) (emphasis in original).

Turning to the opposition clause, we conclude that Clifton established a
prima facie case because she opposed what she reasonably believed was a
discriminatory practice when she initiated a complaint regarding FTO Espinoza’s

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treatment of Officer Brown. See Rite Way Servs., Inc., 819 F.3d at 240 (pointing
out that a reasonable belief that an employment practice was unlawful is sufficient
under the opposition clause); Warrick v. Motiva Enter., L.L.C., No. 14-13-00938-
CV, 2014 WL 7405645, at *7 (Tex. App.—Houston [14th Dist.] 2014, Dec. 30,
2014, no pet.) (“The employee must offer evidence that she had a reasonable belief
that the employer’s opposed practice was unlawful”). Here, Clifton opposed a
discriminatory practice when she made the decision to go to the then chief of
police with her belief that Officer Brown had been subjected to sexual harassment
by FTO Espinoza. The fact that Chief Thayer may have subsequently ordered
Clifton to file an internal affairs complaint to initiate an internal affairs
investigation does not change the fact that Clifton initially opposed FTO
Espinoza’s actions which ultimately resulted in FTO Espinoza being suspended
without pay for three days. See Jenkins v. Orkin Exterminating Co., 646 F.Supp.
1274, 1277–78 (E. D. Tex. 1986) (holding coworker’s report of sexual harassment
of colleague to corporate headquarters, calling for investigation and resulting in his
termination, constituted protected opposition). The fact this was an internal
complaint does not change this analysis because the Supreme Court of Texas has
concluded that an internal grievance implicates the anti-retaliation provisions of
the Texas Labor Code. See City of Waco v. Lopez, 259 S.W.3d 147, 151 (Tex.
2008) (“An internal grievance alleging conduct that is actually prohibited by the
CHRA reasonably equates to opposition to discriminatory conduct ‘under’ the
CHRA, regardless of whether a formal CHRA complaint has been filed”).

We turn next to whether Clifton established a causal link between her filing
the complaint against Chief Espinoza’s son and her later demotion. In arguing that
there is no evidence of such a link, Pasadena liberally relies on Chief Espinoza’s
self-serving testimony explaining his reasons for demoting Clifton and his denial

13
that Clifton’s gender and role in his son’s suspension played any part in the
demotion. See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374 379 (5th
Cir. 2010) (stating that terminated employee’s “self-serving statements that he did
not commit sexual harassment are insufficient to create a triable issue of fact”);
Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 55 (Tex. App.—Houston
[1st Dist.] 2011, pet. denied) (“To support this contention, Hertz relies solely on
Newman’s own testimony that he did not make the decision to terminate
Barousse’s employment or eliminate his position. The trial court was not required
to credit Newman’s self-serving denial, particularly in light of Newman’s
equivocal testimony about the nature of his involvement in meetings concerning
the layoff.”). However, even if Chief Espinoza’s self-serving denials were
competent evidence, it is well-recognized that “smoking gun” direct evidence of
retaliation is rare and therefore plaintiffs such as Clifton can rely on circumstantial
evidence, and the reasonable inferences therefrom, to establish a prima facie case.
See Clark, 544 S.W.3d at 782 (“Because smoking guns are hard to come by, the
three-part McDonnell Douglas burden-shifting framework enables an employee to
establish discrimination with circumstantial evidence.”); Kingsaire, Inc. v.
Melendez, 477 S.W.3d 309, 312 (Tex. 2015) (stating that a plaintiff is not required
to prove her claim through only direct evidence). Such circumstantial evidence
may include: (1) the employer’s failure to follow its usual policy and procedures in
carrying out the challenged employment actions; (2) an employer’s discriminatory
treatment of the employee in comparison with similarly situated employees; (3)
knowledge of the discrimination charge or suit by those making the adverse
employment decision; (4) evidence that the employer’s stated reasons for the
adverse action were false; and (5) the temporal proximity between the employee’s
conduct and the employer’s adverse employment action. Adeshile v. Metropolitan
Transit Auth. of Harris Cnty., No. 14-12-00980-CV, 2014 WL 3734140, at *4
14
(Tex. App.—Houston [14th Dist.] Jan. 16, 2014, no pet.) (mem. op.); see River
Oaks L-M, Inc., 469 S.W.3d at 226 (listing possible types of circumstantial
evidence of causal link).

We therefore examine the evidence Clifton contends supports the existence
of a causal link. This evidence includes Pasadena’s failure to follow its normal
procedures when Acting Chief Espinoza demoted Clifton. See Clark, 544 S.W.3d
at 823 (“This evidence is significant not only because it is evidence of the close
timing and retaliatory nature of the District’s actions, but also because this Court
has held that an employer’s failure to adhere to relevant established company
policies is probative in a retaliation suit.”). As already pointed out above, Acting
Chief Espinoza did not follow the civil service procedures for demoting police
officers. Instead, he unilaterally demoted Clifton days after he became acting chief
and before he was confirmed by the Pasadena City Council. This action also
exceeded Pasadena’s normal procedures because, as Chief Bruegger explained,
acting chiefs do not have the authority to make employment decisions.

Clifton also presented evidence that she was treated differently compared to
similarly situated employees. When Mayor Wagner appointed Lieutenant
Espinoza acting chief, Pasadena had three assistant chiefs, Bruegger, Jackson, and
Clifton. Clifton was the only female assistant chief. Acting Chief Espinoza
decided to keep Bruegger on as an assistant chief and planned to keep Jackson as
an assistant chief for six months out of “pure respect” before he would be demoted.
Thus, Clifton, the only female assistant chief, was the only assistant chief Acting
Chief Espinoza chose to immediately demote back to lieutenant. In addition, the
evidence established that Clifton, the first and only female assistant chief in the
Pasadena Police Department’s history, was also the first assistant chief to be
involuntarily demoted back to lieutenant during her nearly thirty years on the force.

15
The evidence also established that Acting Chief Espinoza knew about
Clifton’s complaint regarding his son’s actions as Officer Brown’s training officer.
This evidence includes Chief Bruegger’s deposition testimony that he learned from
Sergeant Wille, the internal affairs officer handling Clifton’s complaint, that then
Lieutenant Espinoza “took exception to the fact that [the complaint] had gone to
internal affairs and he thought it could have been handled on the shift.” Acting
Chief Espinoza himself admitted his knowledge of Clifton’s complaint when he
denied stating that the complaint just involved “cops being cops.”

We turn next to whether Clifton met her burden to make a prima facie
showing that Chief Espinoza’s stated reasons for demoting Clifton were false. The
initial reason then Lieutenant Espinoza gave Clifton for her demotion was that he
was receiving pressure from the incoming mayor to make a “sweeping move” with
all three assistant chiefs. If this was indeed his reason, it would follow that Acting
Chief Espinoza would have immediately demoted all three assistant chiefs. As
mentioned above, he involuntarily demoted only one, Clifton. In its position
statement to the EEOC, Pasadena stated the reason for Clifton’s demotion was
Chief Espinoza’s personal preference. During his deposition Chief Espinoza, by
then retired, directly contradicted the reason for the demotion that he had given
Clifton when he testified that the decision to demote Clifton was a personal
decision, it was his decision alone, and no one else had input into the decision.
Perry mentioned another reason for Chief Espinoza demoting Clifton. According
to Perry, Chief Espinoza “had long thought that [Clifton] lacked the skills to serve
at a high level in his incoming administration.” Because the reasons Pasadena and
Chief Espinoza have given for Clifton’s demotion have varied over time, we
conclude that Clifton met her initial burden to make a prima facie showing that the
stated reasons for demoting her were false. See Univ. of Tex. Sw. Med. Ctr. v.

16
Vitetta, No. 05-19-00105-CV, 2020 WL 5757393, at *21 (Tex. App.—Dallas Sept.
28, 2020, no pet.) (mem. op.) (“Doubt in the employer’s asserted reason can be
established in a number of ways, including by proof that the employer provided
shifting or different reasons for its action at different times.”).

Finally, the temporal proximity between Clifton’s complaint regarding
Officer Espinoza and her demotion back to lieutenant also supports Clifton’s prima
facie case. Here, Clifton filed her complaint regarding FTO Espinoza’s treatment
of Officer Brown in February 2017. FTO Espinoza agreed to his three-day
suspension on March 31, 2017. The next relevant event occurred on June 23,
2017, mere days after he found out that he would be the new police chief with the
authority to make employment decisions, when then Lieutenant Espinoza told
Clifton that he would be demoting her back to lieutenant. See Univ. of Tex. at El
Paso v. Esparza, 510 S.W.3d 147, 159 (Tex. App.—El Paso 2016, no pet.) (“But it
also is true that there is no hard-and-fast rule that any specified amount of time is
too removed for an inference of causation. Especially where a defendant retaliates
at the first opportunity that is presented, a plaintiff will not be foreclosed from
making out a prima facie case despite a substantial gap in time.”) (internal
quotations omitted). The formal demotion occurred on July 3, 2017. The
approximate three-month period between Officer Espinoza’s suspension and
Clifton being told that she would be demoted supports an inference that the two
events were connected. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir.
2001) (noting that time lapse of up to four months was sufficient to satisfy
retaliatory causal connection for summary judgment purposes); River Oaks L-M,
Inc., 469 S.W.3d at 228 (stating that “a gap of slightly over three months” from the
initial report of sexual harassment to termination was a “sufficiently close temporal
proximity”).

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While not mentioned above in the listing of possible types of circumstantial
evidence relevant to the existence of a causal link between Clifton’s report of
sexual harassment against Officer Brown and her demotion to lieutenant, the close
family relationship between Al Espinoza and Steven Espinoza cannot be ignored.
See Rite Way Serv., Inc., 819 F.3d at 238–39, 345 (finding fact issue on retaliatory
animus after noting male harasser’s brother-in-law replaced him as plaintiff’s
supervisor and quickly issued plaintiff three written warnings and two oral
warnings for poor job performance that resulted in plaintiff’s termination).

Based on the above evidence, we conclude Clifton produced sufficient
circumstantial evidence of a causal link to meet the low threshold to establish a
prima facie case of retaliation.

In the trial court Pasadena asserted that Chief Espinoza had a legitimate,
non-retaliatory reason for demoting Clifton, his personal decision so that he could
assemble a command staff that he trusted. Based on this subjective reason,
Pasadena argues that the burden then passed back to Clifton to put forward
evidence that the proffered legitimate reason offered by Pasadena was not the
actual reason but merely a pretext. Douglas, 651 S.W.3d at 127. In this situation,
Clifton must show either that the stated reason was a pretext, or that, even if the
reason was true, retaliation was also a motivating factor for the adverse
employment action. Id.

When giving a non-discriminatory reason for an employment action, an
employer can provide a subjective reason. Alvarado v. Tex. Rangers, 492 F.3d
605, 616 (5th Cir., 2007). “Such a reason will satisfy the employer’s burden of
production, however, only if the employer articulates a clear and reasonably
specific basis for its subjective assessment.” Id. Here, Pasadena asserts that Chief
Espinoza “had long thought that [Clifton] lacked the skills to serve at a high level

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in his incoming administration.” Pasadena, however, offers no specifics to sustain
Chief Espinoza’s belief that Clifton lacked the skills to serve as an assistant chief.
Pasadena itself does point to Chief Espinoza’s contrary statement to Clifton that he
had “no doubt about [her] professionalism, [her] skills or anything like that.”
There is evidence that Chief Espinoza recognized that Assistant Chief Jackson
needed to be replaced. Then Lieutenant Espinoza told Clifton that Jackson was
“going to be gone,” but he was keeping him for six more months as an assistant
chief out of “pure respect.” Yet, Chief Espinoza was not willing to retain the only
female assistant chief, the assistant chief who had reported his son for sexual
harassment, even though he had no doubt about her professionalism or skills. We
conclude that even if Pasadena’s proffered subjective reason for removing Clifton
met its burden of production, Clifton met her ensuing burden to produce sufficient
evidence at this stage of the proceedings to show that Pasadena’s stated reason was
a pretext for retaliation, or even if it was true, that retaliation was also a motivating
factor for her demotion.

Based on the above, we conclude that the trial court erred when it dismissed
Clifton’s opposition clause retaliation cause of action.

III. The trial court erred when it dismissed Clifton’s gender discrimination
claim.

A prima facie case of sex or gender discrimination under the TCHRA
required Clifton to present evidence that she: (1) was a member of a protected class
(that is, a female); (2) was qualified for her position; (3) suffered an adverse
employment action; and (4) was either (a) replaced by a male or (b) otherwise
treated less favorably than similarly situated employees. Ysleta v. Indep. Sch. Dist.
v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). Employees are
similarly situated if their circumstances are comparable in all material respects,

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including similar standards, supervisors, and conduct. Exxon Mobil Corp. v.
Rincones, 520 S.W.3d 572, 584 (Tex. 2017).

The evidence detailed at length above establishes that Clifton established her
prima facie case of sex or gender discrimination. This includes the only element
challenged by Pasadena: that Clifton was treated less favorably than the other two
assistant chiefs, who were both male. Clifton produced evidence that Chief
Espinoza fully retained one assistant chief and offered the other male assistant
chief an opportunity to retain his position for six months. He offered Clifton, the
only female, neither. The fact that Jackson declined Chief Espinoza’s offer of six
more months and voluntarily accepted demotion back to lieutenant does not change
the fact that he, and not Clifton, was presented with that choice.

The same evidence recounted above also meets Clifton’s burden to establish
that Chief Espinoza’s reason for demoting Clifton—his personal decision to build a
command staff he was most comfortable with—was a pretext for sex or gender
discrimination, or, at the least was a motivating factor. For example, Chief
Espinoza decided to retain an assistant chief he admitted needed to be replaced out
of “pure respect,” yet he failed to offer such a sign of respect to the only female
assistant chief, who he believed had the skills and professionalism to do the job.

If additional evidence was necessary, Clifton offered evidence detailing
Chief Espinoza’s handling of other events involving females. For example, Chief
Espinoza graphically stated that he would not hire a female for a particular job
within the department because she would engage in sexual relations with “half the
night shift.” In addition, when Chief Espinoza learned about Officer Brown’s
formal complaint against the Pasadena Police Department, rather than order an
investigation, he stated that he would not let Officer Brown blackmail him and that
he would fire her himself. Brown was terminated a short time later.

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Based on this evidence, we conclude that Clifton met her burden sufficiently
to survive Pasadena’s plea to the jurisdiction on her sex or gender discrimination
claim and the trial court erred when it dismissed this cause of action. Because we
conclude that Clifton met her burden on both of her alleged causes of action, we
sustain Clifton’s first issue.

CONCLUSION

Having sustained both of Clifton’s issues on appeal, we reverse the trial
court’s order dismissing Clifton’s suit and remand to the trial court for further
proceedings.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

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