Whistleblower Failed To State Title VII Retaliation Claims

Written on 02/03/2024

Christopher Perez was a police officer in Floresville, Texas. During his five-month tenure, he filed several grievances and made verbal complaints against his field training officer, Thomas Silvas, over three separate incidents.

Perez claimed that (1) Silvas interfered with his felony arrest of an individual with heroin in his possession; (2) Silvas used racial slurs at a detainee during a traffic stop; and (3) Silvas violated an arrestee’s civil rights and destroyed video evidence while employed at another police department. Lieutenant Billy Herrera and Chief Lorenzo Herrera declined to discipline Silvas. Thereafter, Perez alleged that “Silvas subjected him to a hostile work environment by constantly berating him and subjecting him to verbal abuse ‘for every perceived mistake or misstep, whether well founded or not.’” Perez was terminated shortly after reporting this behavior and sued the City and others for two violations of Title VII – retaliation, and retaliatory hostile workplace. The City moved to dismiss the complaint for failure to state a claim.

The district court granted the motion. It first analyzed Perez’ claim that he was terminated in retaliation for exercising his rights under Title VII. The key question for the Court to resolve was whether Perez was engaged in protected activity under Title VII. Under these circumstances, Perez’ claim could proceed if the Court found that he acted in opposition of “any practice deemed an unlawful employment practice by Title VII.” This required not only that Perez allege that he was terminated for “opposing” an unlawful employment practice, but also that Perez reasonably believed that the complained-of conduct itself violated Title VII.

The Court found that although Perez’ conduct of filing grievances and making complaints constituted “opposition” under the meaning of the law, there was no basis for finding that Silvas’ conduct would have violated Title VII. Perez alleged that Silvas made discriminatory remarks on the basis of race and committed civil rights violations against detainees and arrestees. However, Title VII applies to conduct in the workplace. Since Perez did not allege that Silvas directed any of this conduct against City employees, the Court was constrained to grant the motion for summary judgment on this cause of action. The Court came to a similar conclusion for Perez’ claim of retaliatory hostile work environment; as alleged, Perez was not engaged in protected activity under Title VII. The Court also noted that even if Perez had intended to allege an ordinary hostile work environment claim, he did not put forth facts to indicate that he himself belonged to a protected class. Any hostility directed by Silvas toward Perez was not on the basis of a protected class in violation of Title VII. Accordingly, the Court granted the City’s motion to dismiss.

Perez v. City of Floresville, CASE NO. SA-23-CV-00990-JKP, 2023 WL 8285227 (W.D. Tex. 2023).