Patricia Sullivan and Dannah Broughton v. Texas Department of Criminal Justice

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00149-CV

Patricia Sullivan and Dannah Broughton, Appellants

v.

Texas Department of Criminal Justice, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. 97-02945, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

Patricia Sullivan and Dannah Broughton appeal from the summary judgment

rendered in favor of appellee Texas Department of Criminal Justice ("the Department") in

Sullivan and Broughton's age discrimination suit. See Texas Commission on Human Rights Act

("the Act"), Tex. Lab. Code Ann. §§ 21.001 -.306 (West 1996 & Supp. 2000) ("Labor Code").

We will affirm the district-court judgment.

Factual and Procedural Background

Sullivan and Broughton served as adult probation officers for the Hardin County

Community Supervision and Corrections Department (HCCSCD). The district judge or judges

trying criminal cases in each judicial district must establish a community supervision and

corrections department, formerly known as an adult probation department, whose charge is to

conduct presentence investigations of criminal defendants, supervise and rehabilitate defendants

placed on community supervision, enforce the conditions of community supervision, and staff

community corrections facilities. See Tex. Gov't Code Ann. §§ 76.001 -.017 (West 1998 & Supp.

2000) ("Gov't Code"). (1) The Community Justice Assistance Division, a department of the Texas

Department of Criminal Justice, is under a statutory mandate to establish minimum standards for

programs, facilities and services provided by these community supervision and corrections

departments and to fund programs, facilities, and services for them. The Community Justice

Assistance Division is also responsible for inspecting and auditing these local departments. See

Gov't Code §§ 509.001-.012.

The Department audited HCCSCD and found several problems, including

HCCSCD's reporting and receiving state payments for completing presentence investigation

reports that were ineligible for state funding. At that point, on May 15, 1995, the Department

sent HCCSCD a letter stating that it was "imposing fiscal and management controls over

HCCSCD." HCCSCD had hired a new director, Cindy Cain, who began work May 18, 1995.

On June 5, 1995, Sullivan, Broughton and Robert Phipps received letters from Cain advising them

that because of drastic cuts in state funding, she had to reduce the workforce. (2) Because they were

all over the age of forty, they concluded that their firing was due to age discrimination and sued

both HCCSCD and the Department. See Labor Code § 21.254.

The Department moved for summary judgment on the basis that it was not plaintiff-appellants' employer. However, an entity that is not the plaintiff's nominal employer may be

liable for employment discrimination under the "single employer" theory. See Lusk v. Foxmeyere

Health Corp., 129 F.3d 773 , 777 (5th Cir. 1997); Trevino v. Celanese Corp. , 701 F.2d 397, 404

(5th Cir. 1983) (in civil rights actions, "superficially distinct entities may be exposed to liability

upon a finding they represent a single, integrated enterprise: a single employer."). The parties

stipulated that the only issue in the summary judgment underlying this appeal was whether the

Department was a "single employer" under Title VII at the time of Sullivan and Broughton's

termination. The district court granted the Department's motion for summary judgment and

severed that judgment, making it final for purposes of appeal. Appellants attack the summary

judgment in one issue, contending that they produced enough evidence to overcome the

Department's no-evidence summary-judgment motion. See Tex. R. Civ. P. 166a(i). We will

overrule the issue presented.

Discussion

Standard of Review

This Court has recently addressed the standard for reviewing a summary judgment

that is based on paragraph (i) of Rule 166a:

A no-evidence summary judgment is essentially a pretrial directed verdict, and we

apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. Like a directed verdict,

then, the task of the appellate court is to determine whether the plaintiff has

produced any evidence of probative force to raise fact issues on the material

questions presented. The appellate court must consider all of the evidence in the

light most favorable to the party against whom the no-evidence summary judgment

was rendered; every reasonable inference must be indulged in favor of the

nonmovant, and any doubts resolved in its favor. A no-evidence summary

judgment is properly granted if the nonmovant fails to bring forth more than a

scintilla of probative evidence to raise a genuine issue of material fact as to an

essential element of the nonmovant's claim on which the nonmovant would have

the burden of proof at trial. If the evidence supporting a finding rises to a level

that would enable reasonable, fair-minded persons to differ in their conclusions,

then more than a scintilla of evidence exists. Less than a scintilla of evidence

exists when the evidence is 'so weak as to do no more than create a mere surmise

or suspicion' of a fact, and the legal effect is that there is no evidence.

Jackson v. Fiesta Mart, Inc. , 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.) (citations

and internal quotation marks omitted); see also Hon. David Hittner & Lynne Liberato, Summary

Judgments in Texas , 34 Hous. L. Rev. 1303 , 1356 (1998) (no-evidence summary judgment is

essentially pre-trial directed verdict).

Age Discrimination

Discrimination based on age violates the Act. See Labor Code § 21.051. (3) The Act

is intended to carry out the policies of Title VII of the Civil Rights Act of 1964. See Labor Code

§ 21.001(1); Schroeder v. Texas Iron Works, Inc. , 813 S.W.2d 483, 485 (Tex. 1991); Wal-Mart

Stores, Inc. v. Davis , 979 S.W.2d 30, 34 (Tex. App.--Austin 1998, pet. denied). One of the

purposes behind the Act is to correlate state law with federal law in the area of discrimination in

employment. See Schroeder , 813 S.W.2d at 485 . Texas courts routinely rely for guidance on

federal court decisions addressing Title VII. See Specialty Retailers, Inc. v. DeMoranville , 933

S.W.2d 490, 492 (Tex. 1996); City of Austin v. Gifford , 824 S.W.2d 735, 739 (Tex. App.--Austin

1992, no writ).

Was the Department Sullivan and Broughton's Employer?

As stipulated by the parties, the only issue before the district court was whether the

Department was appellants' employer under the "single employer" doctrine; that is, whether the

Department and HCCSCD represent a single, integrated enterprise. (4) The status of probation

officers and employees of these community supervision and corrections departments has been

described by one commentator as "murky." See 36 David B. Brooks, County and Special

District Law § 22.31, 111-12 (Texas Practice 1989). The statute creating these entities declares

that such officers "shall not be deemed state employees" except for purposes of workers'

compensation insurance coverage and state indemnification for certain acts. See Gov't Code §

76.006(e) (emphasis added). Several courts and the office of the attorney general have held them

to be officers and employees of the judicial districts they serve rather than employees of the

county. See Clark v. Tarrant County, Tex. , 608 F. Supp 209, 211 (N.D. Tex. 1985) (holding that

probation department employees were not county employees), rev'd in part on other grounds , 798

F.2d 736, 739 (5th 1986); Shore v. Howard , 414 F. Supp. 379, 390 (N. D. Tex. 1976) (holding

that probation department employees were employees of the district judges); see also Op. Tex.

Att'y Gen. LA-97-090 (1997).

Sullivan and Broughton nevertheless argue that the Department and HCCSCD are

a "single employer." A four-part formula has been applied to make this determination: (1)

interrelation of operations; (2) centralized control of labor relations; (3) common management;

and (4) common ownership or financial control. See Trevino, 701 F.2d at 404 . The second of

these factors has traditionally been the most important, with courts refining their analysis to the

single question: "What entity made the final decisions regarding employment matters related to

the person claiming discrimination?" See id. ; Schweitzer v. Advanced Telemarketing Corp. , 104

F.3d 761, 764 (5th Cir. 1997).

The Department argues in part that the "single employer" test may not be applied

to governmental units as a matter of law. See Trevino , 701 F.2d at 404 n.10, (citing Dumas v.

Town of Mt. Vernon , 612 F.2d 974 , 979 n.9 (5th Cir. 1980) (standard not readily applicable to

governmental subdivisions)). We do not decide that broad issue. However, under the facts of this

case, we decline to apply the "single employer" doctrine to hold the Department liable as

appellants' employer. Although the authority of a court to suspend the imposition of a sentence

in a criminal case was expressly recognized by a 1935 amendment to the Texas Constitution,

probation departments (5) are completely a creation of statute. See Brooks, § 22.31 at 111. Section

76.006 expressly excludes the State (and by implication the Department as an agency of the State)

as the employer of community supervision and corrections department personnel except for certain

specific purposes. That the statute classifies employees of a community supervision and

corrections department as state employees for some purposes and excludes them for other

purposes shows their status as state employees was considered by the Legislature. We decline to

override the express statutory mandate that created these entities in order to deem the Department

to be Sullivan and Broughton's employer under the "single employer" doctrine, which was

developed in a different context. (6) We note that the community supervision and corrections

department employees are not excluded from the coverage of the Act; the State of Texas and its

agencies are simply not available to sue as their employer.

Further, even were we to apply the "single employer" doctrine, we would reach

the same result. Appellants argue that the Department generally exercises a high degree of control

over the community supervision and corrections departments through its control over funding and

by setting standards for licensing probation officers and other statutory mandates. They argue

that, at the time of their firing, the Department's control over HCCSCD was even greater.

Although appellants produced evidence that the degree of control exercised by the Department was

high during this time period (statements such as "imposing managerial control" in a letter and an

announcement at local governing board meeting that the Department has "taken over fiscal and

management operations"), appellants have produced no evidence of specific control over the

decision to fire them. For example, in Trevino , there was evidence that the parent company

managers and supervisors had, on numerous occasions, authorized the hiring, firing, transfers,

and layoffs of specific employees of the subsidiary company. See Trevino , 701 F.2d at 400 ; see

also Schweitzer , 104 F.3d at 765 (evidence of involvement in daily employment decisions central

to "single employer" relationship). Appellants presented no comparable evidence to show that

the Department was the entity making the final decision regarding employment matters. We

overrule appellants' sole issue presented.

Conclusion

We conclude that the Department is not appellants' employer under the "single

employer" doctrine for purposes of the Act. (7) Having overruled the only issue presented, we

affirm the district-court judgment.

Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: February 3, 2000

Do Not Publish

1. The provisions governing community supervision and corrections departments were formerly

found in the Code of Criminal Procedure. See Act of April 25, 1995, 74th Leg., R.S., ch. 76,

§ 7.11, 1995 Tex. Gen. Laws 458 , 580-84 (transferring the substance of article 42.131 of Code

of Criminal Procedure to Government Code); Act of April 25, 1995, 74th Leg., R.S., ch. 76,

§ 7.12, 1995 Tex. Gen. Laws 458 , 584 (repealing article 42.131, Code of Criminal Procedure).

Because the relevant substance of the provisions implicated in this appeal has not changed, the

Government Code is cited for convenience. See Tex. Att'y Gen. LA-97-090 (1997) (section

76.006 substantially the same in 1997 as 1977 enactment).

2. Robert Phipps non-suited his claims and was not a party to the judgment or this appeal. See

Tex. R. Civ. P. 162.

3. Age discrimination is part of one comprehensive act covering employment discrimination in

Texas, rather than being addressed in a separate act. See Age Discrimination in Employment Act

of 1967, 29 U.S.C. §§ 621-34 (1994).

4. Of course, the Department is a state agency and therefore, holding the Department to be

appellants' employer holds the State of Texas to be their employer.

5. Now called community supervision and corrections departments.

6. As noted in Trevino and Dumas , the "single employer" doctrine was developed by the

National Labor Relations Board to determine whether private corporations should be consolidated

for the purposes of applying the National Labor Relations Act. See Trevino , 701 F.2d at 404

n.10; Dumas , 612 F.2d at 979 n.9.

7. Because of the parties' stipulation limiting the issue before the district court, we offer no

opinion on the potential applicability of NME Hospitals, Inc. v. Rennels , 994 S.W.2d 142 (Tex.

1999). In the context of considering the plaintiff's standing to sue one defendant, the court held

that the plaintiff and the potential defendant need not have a direct employment relationship. Id .

at 146. Instead, the plaintiff must show: the potential defendant is an employer within the

statutory definition of the Act, an employment relationship exists between plaintiff and a third

party, and the defendant controlled access to the plaintiff's employment opportunities and denied

or interfered with that access based on unlawful criteria. Id . at 147. The court overruled

Guerrero v. Refugio County , 946 S.W.2d 558 (Tex. App.--Corpus Christi 1997, no writ), to the

extent it holds an employment relationship must exist between plaintiff and defendant. Id . at 146-47.

ion and corrections departments through its control over funding and

by setting standards for licensing probation officers and other statutory mandates. They argue

that, at the time of their firing, the Department's control over HCCSCD was even greater.

Although appellants produced evidence that the degree of control exercised by the Department was

high during this time period (statements such as "imposing managerial control" in a letter and an

announcement at local governing board meeting that the Department has "taken over fiscal and

management operations"), appellants have produced no evidence of specific control over the

decision to fire them. For example, in Trevino , there was evidence that the parent company

managers and supervisors had, on numerous occasions, authorized the hiring, firing, transfers,

and layoffs of specific employees of the subsidiary company. See Trevino , 701 F.2d at 400 ; see

also Schweitzer , 104 F.3d at 765 (evidence of involvement in daily employment decisions central

to "single employer" relationship). Appellants presented no comparable evidence to show that

the Department was the entity making the final decision regarding employment matters. We

overrule appellants' sole issue presented.

Conclusion

We conclude that the Department is not appellants' employer under the "single

employer" doctrine for purposes of the Act. (7) Having overruled the only issue presented, we

affirm the district-court judgment.

Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: February 3, 2000

Do Not Publish

1. The provisions governing community supervision and corrections departments were formerly

found in the Code of Criminal Procedure. S