CAUSE NO.

10-03608

MARCIA L. TREJO, § IN THE DISTRICT COURT OF

Plaintiff, §
§
v. § 193rd JUDICIAL DISTRICT
§
CITY OF DALLAS a/k/a/ §
DALLAS POLICE DEPARTMENT, §
Defendant. § DALLAS COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR

FINAL SUMMARY JUDGMENT

TO THE HONORABLE DISTRICT COURT JUDGE:

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

to deny the motion in its entirety.

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

Plaintiff failed to exhaust administrative remedies with the Texas Workforce

Commission.

Contrary to Defendant’s motion, Trejo filed a timely charge of discrimination

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
JUDGMENT – Page 1
acts such as termination or demotion) allow a fact finder to consider additional

harassment occurring outside the 180 day deadline.

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

ample evidence of actionable racial harassment creating a genuine issue of material

fact for a jury.

Second, acts occurring prior to the 180-day deadline are timely under the

Continuing Violation Doctrine. The well-established Continuing Violation Doctrine

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

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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connect them as a continuing violation, (2) the acts were isolated, and (3) the

incidents were fleeting and intermittent, as opposed to permanent.

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-

hearted argument, which consists of five sentences, is absurd. Even a cursory

review of the administrative charge of discrimination reveals that Plaintiff alleged

harassment. In Plaintiff’s charge and supplemented charge of discrimination she

alleges the Defendant discriminated against her based on race, color, sex, religion

and retaliation. In describing Defendant’s acts of discrimination and retaliation

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

officers, made discriminatory comments directed at her, used discriminatory

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.

These allegations clearly constitute allegations of harassment.

For these reasons, summary judgment against Plaintiff must be denied.

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 3
 II.
EVIDENCE

Plaintiff specifically references the following summary judgment evidence:

1. Excerpts from the deposition of Marcia Trejo (“Trejo Dep.”; App. 1-28);

2. A copy of Marcia Trejo’s Supplemental Charge of Discrimination (COD

002877-2879; App. 29-31);

3. Excerpts from the deposition of Alan Bull (“Bull Dep.”; App. 32-38);

4. Excerpts from the deposition of Vincent Golbeck (“Golbeck Dep.”; App.

39-48);

5. Excerpts from the deposition of Larry Litton (“Litton Dep.”; App. 49-

52);

6. A copy of Marcia Trejo’s November 21, 2007 grievance produced by

Defendant (COD 000850-854; App. 53-57);

7. A copy of Marcia Trejo’s January 21, 2008 grievance produced by

Defendant (COD 002930-2931; App. 58-59);

8. Excerpts from the deposition of Thomas Lee Glover, Sr. (“Glover Dep.”;

App. 60-61);

9. A copy of the Internal Affair grievance file produced by Defendant

(COD 000002-13; App. 62-73);

10. A memorandum from Vincent Golbeck to Floyd Simpson produced by

Defendant (COD 000064-67; App. 74-77);

11. A memorandum from Floyd Simpson produced by Defendant (COD

000068; App. 78);

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
JUDGMENT – Page 4
 12. Excerpts from the deposition of Floyd Simpson (“Simpson Dep.”; App.

79-82);

13. A copy of Marcia Trejo’s charge of discrimination filed with the EEOC

produced by Defendant (COD 002880-2881; App. 83-84); and

14. Excerpts from the deposition of Phyllis Sutton (“Sutton Dep.”; App. 85-

87).

Plaintiff has contemporaneously filed an Appendix containing the summary

judgment evidence described above.

III.
FACTS

A. Trejo is a distinguished, career officer with the Dallas Police Department.

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

Dep. 30:7-9; App. 1).

Trejo has had a long and distinguished career with the DPD. Trejo was the

first African American Detective at the Central Investigative Division. (COD

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

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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time Trejo became the first African American supervisor for the bicycle unit for the

South West Division. Id.

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

sector. (Trejo Dep. 41:9-14; App. 3).

C. DPD has two sergeant positions, sector sergeant and station sergeant. The
position of sector sergeant is more prestigious and desirable.

The position of sector sergeant is drastically different from the position of

station sergeant. A sector sergeant is in charge of supervising sworn officers,

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).

D. DPD assigns Lt. Bull, a known racist, to oversee Trejo’s watch.

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.

(Trejo Dep. 126:23 – 127:9; App. 20).

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

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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

to be dissolved shortly thereafter. (Trejo Dep. 56:24-57:10; App. 6-7).

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

assignment. (Golbeck Dep. 27:23-28:10; App. 45-46). However, tellingly, Litton

testified that Bull had approached him and initiated the process of changing the

assignments. (Litton Dep. 9:11-16; App. 51).

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

regarding this re-assignment. (COD 000850-854; App. 53-57). This grievance,

through DPD’s internal grievance process was filed on November 21, 2007. Id.

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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

day-to-day basis throughout her assignment at central.

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).

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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

singing the song. (Sutton Dep. 12:9-19; App. 87).

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

witnesses, Golbeck requested an Internal Affairs Investigation be opened into the

incident. (Golbeck Dep. 54:2 – 55:1; App. 47-48).

J. Throughout her tenure at central division, and while working with Bull, Trejo
is subjected to discrimination and retaliation.

1. Bull makes derogatory statements and gestures about women and

African Americans.

Bull’s derogatory statements to Trejo were ongoing. Bull made statements

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
 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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.

(Trejo Dep. 128:23-129:3; App. 20-21).

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

Trejo. (Trejo Dep. 93:6-13; App. 12).

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

Dep. 132:3-4; App. 21).

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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

harassment continued throughout Trejo’s tenure at central. (Trejo Dep. 104:25 –

105:1; App. 14-15). Due to Bull’s actions Trejo had been labeled a troublemaker.

(Trejo Dep. 106:18-22; App. 15).

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).

During these meetings the sergeants would be given important departmental

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

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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stopped having these meetings altogether while he was the lieutenant at central.

(COD 002878; App. 30).

6. Due to the hostile atmosphere fostered by Bull, others harass Trejo by

going through her desk when she is not around.

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).

All of these forms of discrimination and retaliation continued to occur until

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

September 17, 2008.

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
 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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

000012; App. 72).

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

finding. (COD 000013; App. 73).

M. Trejo’s supervisors summarily reverse IAD’s investigation, based solely on

their own belief.

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-

49:12; App. 81-82).

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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N. Trejo files charges of discrimination and ultimately this lawsuit.

Trejo filed a Charge of Discrimination with the Equal Employment

Opportunity Commission on August 26, 2008. (COD 002880-2881; App. 83-84).

Trejo supplemented her Charge of Discrimination on March 6, 2009. (COD 002877-

2879; App. 29-31).

IV.
ARGUMENT

A. Contrary to Defendant’s assertion, multiple discriminatory actions occurred

after February 28, 2008, and therefore were within the 180-day period prior to
Trejo filing charges of discrimination.

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

plaintiff's protected characteristic, so sufficiently severe or pervasive that it has

altered the conditions of employment and created an abusive working environment.
See Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986). Because a hostile-work-
environment claim is composed of a series of separate acts that collectively
constitute one “unlawful employment practice,” it does not matter that some of the
component acts of the hostile work environment fall outside the statutory time
period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). “Provided
that an act contributing to the claim occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of
 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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 As related in the facts section above, Trejo continued to experience

discrimination and retaliation until she was transferred from central division.

Furthermore, Trejo continued to be directly discriminated against on a frequent

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

after February 28, 2008.

1. Trejo continued to experience discriminatory and retaliatory treatment

at all times during which Bull was stationed at central.

Many of the discriminatory and retaliatory acts are directly tied to Bull’s

presence at central division. Therefore, Trejo continued to experience

discriminatory and retaliatory acts committed by Bull, as well as because of Bull’s

presence as supervisor which created an atmosphere in which such actions against

Trejo were acceptable. The discriminatory and retaliatory acts that occurred until

Bull was transferred in June, 2008 include:

• 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.

(COD 002878; App. 30).

                                                                                                                                                                                                                                                                                                                                                                   
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.
 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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-

106:22; App. 13-15).

• 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).

• Bull made discriminatory and derogatory comments towards women by

making jokes about Mormon women not being allowed to work. (Trejo Dep.

110:5 – 111:5; App. 16).

2. Trejo continued to experience discrimination and retaliation until the

date of her transfer from central division on September 17, 2008.

As discussed above, and contrary to Defendant’s assertion, Trejo experienced

multiple acts of discrimination after February 28, 2008. Many of these

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.

153:13-15; App. 27; COD 002930-2931; App. 58-59).

• 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.

34:24 – 35:4; App. 2; COD 002877-2879; App. 29-31).

• Trejo continued to have people maliciously go through her desk, invading her

privacy, and harassing her. (Trejo Dep. 122:17 – 123:25; App. 19).

3. When Trejo attempts to appear as a witness at the IAD investigation she

is prevented from appearing with her representative.

After February 28, 2008, Trejo continued to experience retaliation in the

pursuit of her grievances. The first instance of this retaliation occurs when she

reported to Internal Affairs in order to attend an interview with the investigator.

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).

4. The thorough and impartial IAD investigation finding in which Trejo

complains of Bull’s discriminatory and derogatory statements were
sustained is summarily overturned based on recommendations from
Trejo’s supervisors.

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

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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.

1. Texas courts have recognized the Continuing Violation Doctrine applies

to a state law claim of discrimination and retaliation.

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

Tex. Labor Code Ann. § 21.202.

Texas law provides an exception to this limitation, the Continuing Violation

Doctrine. The 5th District Appeals Court in Dallas has held that “under the

continuing violation doctrine, 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
 
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

of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983)).

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

discrete discriminatory act, all of Glass’ prior failures to be promoted were

admissible as part of a continuing violation.

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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:

• Being retaliated against when attending an IAD interview.

• Trejo’s supervisors overturning the IAD finding sustaining Trejo’s

allegations regarding Bull.

• The repeated denial to be allowed to “flex” her time for personal

reasons as others had been allowed to do.

• The repeated denials to exercise overtime like other officers.

• The repeated instances of not being able to go to lunch because Bull

would take all the other sergeants out during her lunchtime.

These acts, occurring within the 180 day time period, are discrete instances of

both discrimination and retaliation by members of the Dallas Police Department.

Furthermore, these acts are directly related to other 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.

C. Trejo has properly pled a claim of disparate treatment race discrimination

based on the severe and pervasive harassment she suffered.

Defendant argues that Trejo failed to plead racial harassment in her charge

to the Texas Workforce Commission. Defendant devotes five sentences of their

 
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

supplemental charge reveal that Trejo met the pleading standard.

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,

321 (Tex.App. – Texarkana 2008, pet. denied). In reviewing a claimant’s charge of

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

Cir. 2007) (unpublished)). “The crucial element of a charge of discrimination is the

factual statement contained” in the administrative complaint. Id. (quoting Preston,

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

action or practices complained of”).2

                                                                                                               
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.
 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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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.

• Reassigning Trejo to a position contrary to her preferences (Charge, App. 83;

Supplemental Charge ¶¶ 21-29, App. 30.)

• 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.)

• Bull’s singing “Dreaming About my Ole Mammy” (Charge, App. 84;

Supplemental Charge ¶ 43, App. 30.)

• Officers talking (improperly joking, hopefully) about attending KKK

meetings, as well as the DPD’s failure to address complaints about this by

other Black officers. (Supplemental Charge ¶¶ 44, App. 30.)

• Excluding Trejo from meetings. (Supplemental Charge ¶¶45-46, App. 30.)

• Bull’s door-slamming. (Supplemental Charge ¶45, App. 30.)

• Being excluded from group lunches. (Supplemental Charge ¶¶49-51, App.

30.)

• Having to take time off from work for medically diagnosed stress, as well as

Bull’s derogatory comments about Trejo’s stress to co-workers. (Supplemental

Charge ¶53-55, App. 30.)

• Bull’s sexist remarks. (Supplemental Charge ¶56, App. 31.)

 
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF DALLAS’ MOTION FOR FINAL SUMMARY
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 • Refusal of the DPD to cooperate or assist Trejo with administrative matters.

(Supplemental Charge ¶¶57-64, App. 30.)

These facts would reasonably lead the TWC to investigate harassment and put the

Defendant directly on notice of Trejo’s claims in this case.

Similarly, these same facts are contained in Plaintiff’s Original Petition. (See

Plaintiff’s Original Petition and Request for Disclosures). Further, under Plaintiff’s

cause of action, she specifically cites:

(a) Giving Plaintiff the undesirable position of Station Sergeant, when she

was entitled to a patrol position in the Central Division.

(b) Not allowing Plaintiff time off to attend church services.

(c) Being harassed by Lieutenant Bull’s use of a “black accent” and purported

black mannerisms.

(d) Being subject to harassment, ridicule, and mockery by Lieutenant Bull

when he sang, “I’m dreaming about by ole’ Mammy” next to Trejo’s desk.

(e) Being excluded from supervisor meetings.

(f) The cessation of the supervisor meetings altogether.

(g) Not being allowed to take lunch.

(h) Being forced to take personal sick time and vacation time.

(i) Enduring sexist remarks by Lieutenant Bull.

(j) Being denied the rights of the internal grievance process.

(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
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her discrimination claim. If, however, Defendant is truly confused, the proper

remedy is to file special exceptions. Defendant’s motion is nothing more than an

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

procedure does not provide an opportunity to replead, it cannot be used to terminate

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.

The Court cannot grant a no-evidence summary judgment based on a

conclusory no-evidence challenge to the non-movant’s case. Tex.R.Civ.P. 166a(i);

Timpte Indus. v. Gish, 286 S.W. 3d 306, 310 (Tex. 2009); Notes & Comments to Tex.

R. Civ. P. 166a(i). The Defendant’s motion fails to identify an element of Plaintiff’s

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

traditional summary judgment standard’. (Defendant City of Dallas’ Motion for

Final Summary Judgment, p. 1). The only other time the Defendant asserts the no-

evidence summary judgment is when it discusses the timing of the motion.

(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

exists. Therefore, Defendant’s no-evidence motion for summary judgment lacks

specificity and should be denied.

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

summary judgment because there is enough evidence to raise a genuine issue of

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
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 V.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Trejo prays this Court deny

Defendant’s Motion for Final Summary Judgment.

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

ROB WILEY, P.C.

1825 Market Center Blvd., Ste. 385
Dallas, Texas 75207
Telephone: (214) 528-6500
Facsimile: (214) 528-6511
jmanchester@robwiley.com
www.robwiley.com

CERTIFICATE OF SERVICE

I certify that on March 7, 2011 I served a true and correct copy of the

foregoing on counsel for Defendant via hand delivery.

_________________________________________
Robert J. Wiley

 
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