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Cause No. 2018-04375
ERNEST POLK THE DISTRICT COURT
Plaintiff,
JUDICIAL DISTIRCT
TEXAS OFFICE CONSUMER
CREDIT COMMISSIONER
Defendant HARRIS COUNTY, TEXAS
DEFENDANT’S REPLY OBJECTIONS PLAINTIFF’S RESPONSE
OBJECTIONS PLEA THE JURISDICTION
TO THE HONORABLE DISTRICT JUDGE CHRISTINE WEEMS:
Defendant Texas Office of Consumer Credit Commissioner OCCC”) files this Reply and
Objections to Plaintiff’s Response and Objections to Plea to the Jurisdiction. Simply put, nothing
in Plaintiff’s Response negates the simple fact that Plaintiff was caught violating the official state
credit card policy and was terminated shortly thereafter Further, Plaintiff completely fails to
show how he met the stated qualifications for promotion from a Financ al Examiner I to a Financial
Examiner II. This lawsuit amounts to nothing more than Plaintiff’s ongoing attempt to avoid the
consequences of his actions by speculating that he was terminated not because of his credit card
misuse, but because of his 22-month-old EEOC claim for racial discrimination. Plaintiff’s
self-serving speculations are not supported by the evidence. This Court should not permit Plaintiff
to avoid the consequences of his credit card misuse while working for a state agency.
The declarations of Crystal Thompson Hill and Vince Emanuel are not competent
summary judgment evidence.
Plaintiff attached declarations from two different individuals, named Crystal
Thompson-Hill and Vince Emanuel. This Court should strike those declarations because they are
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not competent, admissible summary judgment evidence. The declarations are inadmissible for
multiple independent reasons.
First, Plaintiff did not disclose either of thse individuals in his responses to Defendant’s
Request for Disclosure. See Ex. Thus, Plaintiff may not now seek to introduce their testimony.
Texas Rule of Civil Procedure 193.6 plainly states:
A party who fails to make, amend, or supplement a discovery response, including
a required disclosure, in a timely manner may not introduce in evidence the material
or information that was not timely disclosed, or offer the testimony of a witness
(other than a named party) who was not timely identified, unless the court finds
that:
(1) there was good cause for the failure to timely make, amend, or
supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the other
parties.
Tex. R. Civ. P. 193.6(a).Plaintiff’s Response fails to make any effort whatsoever to establish
good cause for failing to identify Ms. Thompson Hill or Mr. Emanuel in his original response to
Defendant’s Request for Disclosure or any possible supplemental response thereafter. Further,
using testimony from brand new witnesses after the close of discovery is certainly an unfair
surprise and prejudice to OCCC, who now has no opportunity to depose either of thse individuals
or to pursue further discovery to rebut their claims
Second, Mr. Emanuel’s declaration is also inadmissible because it does not meet the
express requirements for an unsworn declaration set forth in Tex. Civ. Prac. & Rem. Code
132.001(d).
OCCC will cite to its own exhibits that accompany its Plea to the Jurisdiction or this
Reply as “Ex. [exhibit letter].” OCCC will cite to Plaintiff’s exhibits, filed as a single Appendix,
as “App. at [page number]
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Third, both declarations contain assertions that are unsupported by the declarant’s personal
knowledge, are not admissible in evidence, and fail to show that the declarant is competent to
testify to them See Tex. R. Civ. P. 166a Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated therein.”).
For example, Ms. Thompson Hill’s declaration shows that (1) she was not Plaintiff’s
supervisor, (2) she has no knowledge of why Plaintiff was being investigated, (3) she has no
knowledge of Plaintiff’s misuse of the credit card, (4) she has no knowledge of Plaintiff’s
violation of OCCC’s policies, and (5) she has no knowledge of why Plaintiff was terminated
App. at 48. As described in its Plea to the Jurisdiction, OCCC’s official policy set forth explicit
rules governing the use of the credit cards given to financial examiners for their work related travel
expenses. The policy plainly stated that the card was “to be used only for official state business.”
Ex. A2 at 3. The policy also explained the Texas Ethics Commission determination that an
employee may not use the card “for personal expenditures or any other type of expenditure not
reimbursable as a state business expense under state law.Id. It is undisputed that Plaintiff used
his official credit card for personal expenditures that were not reimbursable. Plaintiff attempt
to “rebut” this concrete evidence by offering a conclusory assertion from a previously unidentified
witness that OCCC “had no [such] requirement.”App. at 48 ¶ 5. Plaintiff cannot attack the
existence of OCCC’s written policy by simply finding a witness who summarily claims that policy
did not exist. Ms. Thompson Hill’s assertion is not competent summary judgment evidence on its
face because she evidently lacks personal knowledge of Plaintiff’s violations of OCCC’s policy.
Similarly, Mr. Emanuel makes vague and conclusory assertions that are not supported by
any details of personal knowledge. For example, he claims in paragraph 3 of his declaration that
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he met all the qualifications for promotion to a Financial Examiner II. App. at 50 ¶ 3. However,
does not describe thse qualifications or otherwise demonstrate his personal knowledge of the
qualifications beyond his conclusory statement.Further, he certainly does not and apparently
cannotshow how he met the specific qualification requiring the recommendation of his
supervisor. See Ex. A ¶4 (listing this specific requirement among the requirements for promotion
to Financial Examiner II). Additionally, Mr. Emanuel shows no personal knowledge regarding
any of the individualized reasons why any other Financial Examiner I was or was not promoted to
Financial Examiner II. He gives no basis for knowing whether any other employee did or did not
meet the specific requirements for such a promotion, such as, for instance, whether any of those
other employees received their supervisor’s recommendation for promotion and why such
recommendation was or was not given in each individual situation.Mr. Emanuel’s testimony fails
on its face for lack of personal knowledge and foundation.
For all these alternative reasons, this Court should strike the declarations of Ms.
Thompson Hill and Mr. Emanuel. By law, those declarations are not admissible, competent
summary judgment evidence. Thus, they may not be considered by this Court.
The affidavit of Candace Vargas (submitted by OCCC) and its accompanying
exhibits are all competent summary judgment evidence.
OCCC submitted an affidavit from Candace Vargas, who is employed by OCCC as a
Human Resources Officer. Ex. A. Plaintiff argues that Ms. Vargas’ testimony should be stricken
because she allegedly does not have personal knowledge of certain HR related matters. Plaintiff’s
objections are not meritorious. Like many HR employees, it is naturally Ms. Vargas’ job to know
how an entity’s records are made and kept. It is also a standard, recognized HR job function to
know what an entity’s requirements are and historically have been for promotion from one position
to another within the entity. Those are standard facts within the knowledge of typical Human
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Resources Officers. Plaintiff has no basis for speculating (without supporting evidence) that Ms.
Vargas does not have knowledge regarding these basic HR matters, as her affidavit states.
Plaintiff also complains that Ms. Vargas cannot verify one of Gene Dow’s memos
regarding Plaintiff’s job performance. See Ex. A (the specific page bates labeled 003894 That
memo from Mr. Dow, Plaintiff’s supervisor at the time, simply explains why Mr. Dow was
recommending Plaintiff for promotion in November 2015, even though he had declined to
recommend Plaintiff for the same promotion in May 2015. It is eminently reasonable to expect a
supervisor to explain himself if he moves from “not recommending” to “recommending.” That
explanation is contained in Mr. Dow’s memo. There is nothing remarkable about a supervisor
contrasting an employee’s present performance with his previous performance in order to show
that the specific previous concerns preventing his promotion have now been satisfactorily
addressed. The fact that Mr. Dow’s memo was thorough does not mean it somehow fails to
constitute a reliable business recordThe memo records Mr. Dow’s rationale at or near the time
he was explaining that rationale to his own superiors to justify Plaintiff’s promotion.Further, in
response to Plaintiff’s passing hearsay objection, Plaintiff’s communications to Mr. Dow are, by
definition, not hearsay. Mr. Dow’s memo is admissible.
Plaintiff further objects to paragraphs 7 and 8 of Ms. Vargas’ affidavit. Those objections
are also unsupporteOf course an HR Officer can testify regarding one of the classic situations
that HR departments are traditionally responsible to monitor, be involved in, and document
problems with employees that lead to discipline, including termination. Plaintiff has no basis for
speculating that Ms. Vargas is somehow unqualified to talk about those traditional HR matters
including OCCC’s investigation of Plaintiff’s credit card usage, the policy violations that were
discovered the confrontation of Plaintiff regarding those violations, and the subsequent
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termination of Plaintiff. Those are precisely the type of circumstances that HR helps to handle.
Plaintiff has offered noconvincingbasis for excluding Ms. Vargas’ testimony on thse issues.
Plaintiff’s attempt to create a triable failure promote claim fails as a matter of law.
Plaintiff accuses OCCC of circular reasoning, but it is Plaintiff’s own argument that is
facially illogical. OCCC has four requirements for promoting an employee from Financial
Examiner I to Financial Examiner II. Ex. A ¶4. Of those four requirements, Plaintiff did not meet
the fourth requirementhe did not receiv a recommendation from his supervisor, Gene Dow.
Plaintiff does not contend that Mr. Dow did in fact recommend him for promotion in May 2015.
The fact that Plaintiff was not recommended for promotion in May 2015 is undisputed. Instead,
Plaintiff argues the Court should simply ignore this fourth requirement altogether because of
Plaintiff’s personal opinions. Plaintiff believes he was qualified for promotion in May 2015, not
because he met all four requirements, but simply because he thinks there should have been only
three requirements, or that the fourth requirement should simply have been a sort of pro forma
rubber stamp after satisfying the first three requirementsRegardless, Plaintiff cannot discharge
his burden to make a prima facie showing of discrimination by simply stating he disagrees with or
does not personally trust OCCC’s practice of requiring the individualized assessment of a
supervisor before promoting its financial examiners, who must perform complex work on behalf
of the Stateand do so reliably
Furthermore, the very evidence that Plaintiff attached to his own Response demonstrates
that the available objective facts consistently negate Plaintiff’s subjective belief of discrimination.
Plaintiff include in his Appendix the position statement that OCCC provided to the EEOC in
response to Plaintiff’s discrimination complaint. See App. at 3741. That position statement
explained how Plaintiff was hired as one of five new financial examiners. Id. at 38. Four of those
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individuals were African American (including Plaintiff), and one was Hispanic.Id. OCCC
promoted all five of those peers to Financial Examiner II at different times throughout 2015, all
based on identical criteria. Id. at 3839. The fact that Plaintiff was one of the last two financial
examiners to be promoted does nothing to show that thos promotions were based on or influenced
by race. Some of Plaintiff’s own African American peers were promoted faster than Plaintiff was
for the simple reason that they performed better than Plaintiff.There is no evidence that OCCC
delayed Plaintiff’s promotion to Financial Examiner II because he was African American.
Plaintiff’s own declaration does not provide any objective evidence that could support an
inference of discrimination. For example, Plaintiff refers to non specific complaints from other
unidentified financial examiners, but such vague testimony is inadmissible hearsay and does not
even purport to show how the detailed explanations of Plaintiff’s own supervisor for why he
recommended Plaintiff for promotion in November 2015 but not May 2015 were somehow false
or pretextual. See App. at 12, ¶¶ 3. Plaintiff’s testimony also fails for lack of personal
knowledge, as he makes no attempt to show how he knows that any other financial examiner was
qualified for a particular promotion at a particular time but was denied that promotion. See i
Regardless, Plaintiff’s vague and overly generalized assertions ultimately fail to show with any
specificity how OCCC could have been racially motivated in deciding not to promote Plaintiff
until after his supervisor reasonably believed he was able to perform the additional work of a
Financial Examiner II.
In sum, Plaintiff has no legally competent or sufficient evidence to make a prima facie
showing that OCCC promoted Plaintiff in November 2015 instead of May 2015 for discriminatory
reasons. Moreover, Plaintiff certainly has no evidence to show that his supervisor’s litany of
objective reasons for not promoting Plaintiff until November 2015 re somehow false or
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pretextual. Accordingly, Plaintiff has no triable failure promote claim as a matter of law, and
OCCC is immune againstPlaintiff’s claim.
Plaintiff’s attempt to create a triable retaliation claim fails as a matter of law.
As with Plaintiff’s failure promote claim, his retaliation claim also fails for lack of
legally sufficient objective evidence to support it. It is undisputed that Plaintiff used his official
credit card for personal use. That plainly contradicted the clear, express, written policy governing
the use of such credit cards.See Ex. A2 at 3. As soon as OCCC discovered and confirmed
Plaintiff’s blatant misuse of his official credit card, OCCC terminated Plaintiff for his policy
violation. Plaintiff now attempts to distract this Court with a variety of other speculative
assertions. This Court should set aside those distractions and not permit Plaintiff to escape the
decisive issuehis undisputed use of his official credit card for personal use. Plaintiff continues
to refuse to take responsibility for his actions and accept the consequences of his credit card misuse
as a State employee
Plaintiff attempts to distract the Court by speculating that OCCC must have had nefarious
motives for investigating his credit card misuse. That speculation is unsupported and beside the
point. OCCC did not present evidence detailing how it became aware of Plaintiff’s credit card
misuse because those particular facts are unnecessary. Plaintiff objectively misused his credit
card, which objectively justified his termination. None of Plaintiff’s speculations about how or
why OCCC discovered his policy violation negate the simple fact that he was violating the state
credit card policy.
Plaintiff also relies on inadmissible “evidence” to try and negate the plain terms of the
credit card policy. Plaintiff asserts in his declaration that an unidentified person told him
something that contradicted the clear terms of the written policy. App. at 3 ¶9. Such self serving
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and vague testimony should be disregarded. Even if it were admissible, it would still be
ineffective, since it is objectively unreasonable for a state employee to violate the explicit terms of
a written policy simply because someone else tells him something that violates the clear terms of
that policy. Again, Plaintiff is distracting the Court from his objective credit card misuse and is
desperately trying to justify his policy violation instead of taking responsibility for his actions
Plaintiff also claims that other financial examiners were violating th policy yet were n
terminated. Id.That is also beside the point. Perhaps OCCC needs to discover more about the
credit card use of some of its other employees, but that does not magically excuse Plaintiff from
suffering the fair consequences of his own policy violationespecially a policy violation
involving improper use of a state credit card for personal purposes
OCCC highlight three of Plaintiff’s most egregious policy violations in its Plea to the
JurisdictionThe fact that OCCC did not discuss each and every violation does not somehow
mitigate the force or effect of the policy violations actually selected for discussion.Plaintiff’s
termination would have been amply justified even if based solely on the specific policy violations
OCCC has highlighted.
It is important to note that the specific violations highlighted by OCCC are egregious.
OCCC chose specific examples where Plaintiff used his official credit card to make purchase far
outside of his work areaplaces like New Orleans, Louisiana, and San A ntonio and Kerrville,
Texas. See Ex. B at 1 ¶ 4(a)(b). Plaintiff also used his credit card while on a week of vacation.
Id. 4(c). Those examples are blatant instances of credit card misuse. There is no rational way
that Plaintiff’s personal travels across other areas of Texas, in another state, or on extended
vacation could possibly have been related to work expenses on behalf of the State. Those personal
expenditures are a far cry from filling up a gas tank on Sunday to be ready for work on Monday
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Plaintiff was using his credit card on extensive personal travels far outside the scope of any
possible work activities. He was using his credit card to make purchases that could have had
absolutely no connection to his work for the State. Plaintiff has no excuse for his credit card
misuse. He was finally caught, yet he continues to deflect responsibilityfor his actions
Another way Plaintiff tries to distract the Court is by speculating that OCCC must have
determined to terminate him two days before the meeting where he was terminated, because OCCC
staff had pulled his vacation and sick leave accruals. That proves nothing. If OCCC evidence
that appear to show credit card misuse, of course it s reasonable to be prepared to terminate
Plaintiff at an upcoming meeting, if necessary and appropriate. There is nothing unusual about an
employer who has paperwork showing an employee’s policy violation preparing itself to terminate
that employee unless the employee provides new or additional information during a personal
meeting that might give the employer a reason to pause and investigate further. Once again,
Plaintiff is looking for ways to distract from the fundamental fact that he violated the credit card
policy, got caught, and paid the consequences.
Plaintiff also attempts to deflect attention from his undisputed actions by pointing to the
fact that he recalls his final meeting with OCCC’s management differently. That is both
unremarkable and irrelevant. If different parties disagree over what happened during the meeting
on December 14, 2017, that has absolutely no effect on the undisputed fact that Plaintiff used his
credit card for personal use, and OCCC terminated him when it discovered that policy violation.
The details of the final meeting might be interesting for context, but they are ultimately not
dispositive and cannot carry Plaintiff’s burden to provide objective evidence that OCCC’s reason
for terminating him was a lie to cover up some sort of racial animus or retaliation.
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As far as Plaintiff’s legal arguments are concerned, they are equally ineffective as his
factual arguments. OCCC explained how a gap of 22 months between Plaintiff’s EEOC charge
and his termination is legally insufficient to support an inference of retaliation. See Defendant’s
Plea to the Jurisdiction at 11 (collecting cases). Plaintiff does not dispute that basic legal principle,
but instead attempts to sidestep that conundrum by arguing that he has pleaded an ongoing
opposition” theory of retaliation, not simply a retaliation claim based on his EEOC discrimination
charge that he filed 22 months before he was terminated. However, as pointed out in OCCC’s
Plea, issues not properly raised in an EEOC charge may not be subsequently litigated. See id. at 5
n.1. Plaintiff’s second EEOC charge (i.e., his retaliation charge filed after his termination, not his
discrimination charge filed 22 months before he was terminated) does not clearly describe any
“ongoing opposition” theory, nor does it provide adequate notice of the type of arguments
Plaintiff’s counsel (admittedly new counsel appearing post discovery in this case) is now making.
See Ex. (Plaintiff’s EEOC Charge dated May 2, 2018).Thus, this Court should not consider the
“ongoing opposition” theory.
In a further attempt to avoid the legally problematic 22 month gap between his first EEOC
complaint and his termination, Plaintiff cites several cases holding that retaliation might be
inferred in special circumstanceswhere recent significant events provide a rational basis for
inferring retaliatory intent. None of those cases apply here. Plaintiff’s cited case involve truly
substantial events that occurred closer in time to an employee’s termination, such as: n employer’s
recent payment of a substantial settlement sum to an employee the occurrence of new protected
activity by an employee, or an employee’s recent refusal to arbitrate a pending dispute with his
employer and relinquish his right to a jury trial. See Starnes v. Wallace, 849 F.3d 627, 635 (5th
Cir. 2017) (termination only ten days after employer paid $40,000 to settle a wage dispute with
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plaintiff); amora v. City of Houston, 798 F.3d 326, 335 (5th Cir. occurrence of new
protected activity by employee); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir.
(employee’s refusal to sign agreement that would have subjected his pending dispute to
arbitration and relinquished his right to a jury trial). Here, by contrast, there are no events that rise
to that level of unusual significance. Instead, the EEOC investigation regarding Plaintiff’s first
EEOC charge proceeded in standard, typical fashion. The significant event that did occur right
before Plaintiff’s termination was OCCC’s discovery of his credit card misuse. That is why
Plaintiff was terminated, and Plaintiff has provided no case law to overcome the general rule that
22 months is far too large of a time gap to support any reasonable inference of retaliation.
In sum, Plaintiff has no evidence to support a prima facie case of retaliation as a matter of
law. Further, even if his weak “evidence” were somehow sufficient to push his claims over the
threshold for making a prima facie showing, it certainly cannot meet the heavier burden of showing
pretext. Plaintiff acknowledges that the proper causation standard for pretext is “but for”
causation. This means that Plaintiff must show OCCC would not have terminated him in
December 2017 had he not filed an EEOC charge all the way back in February 2016even though
OCCC had just recently discovered that Plaintiff was violating the official credit card policy by
using his card for personal travel expenses well outside his region that could not possibly have
been related to his work. Such a hypothesis is not rational. Plaintiff wants a jury to speculate (as
Plaintiff does) that OCCC terminate him for his 22 month old complaint about discrimination,
but somehow failed to get around to actually terminating him until coincidentally it discovered he
was misusing his credit card in violation of state poli . No reasonable jury could stretch so far
as to make such a speculation in the face of the objective evidence in this case.
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As with Plaintiff’s failure promote claim, Plaintiff’s retaliation claim ultimately rests on
his subjective beliefs. Plaintiff’s subjective beliefs are legally insufficient to carry his burden to
make a prima facie showing of retaliation, and they are certainly insufficient to carry his burden
to show pretext. See Defendant’s Plea to the Jurisdiction at 1011 (collecting cases) Plaintiff
cannot carry his burden to show pretext by looking at the objective evidence against him and
simply saying, “I think they are making that up.” The evidence simply does not support the
accusation that OCCC was covering up some sort of secret retaliation against Plaintiff’s
discrimination complaint when it swiftly terminated Plaintiff for his objectively clear credit card
misuse.
Plaintiff’s attempt to create other triable claims for discrimination or harassment
equally fail.
To the extent Plaintiff attempts to litigate other claims, such as a separate claim for racial
discrimination or a racial harassment claim, such claims are barred. Plaintiff’s EEOC charges did
not preserve those distinct claims, which is why itwas unnecessary for OCCC to anticipate or
respond to them in its Plea. See Defendant’s Plea to the Jurisdiction at 56 n.1; see also Prairie
View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012) In a statutory cause of action
against a governmental entity, the failure to adhere to the statute s mandatory provisions that must
be accomplished before filing suit is a jurisdictional bar to suit.”). Regardless, to the extent
Plaintiff might have raised a racial discrimination claim based on his termination, such a claim
would fail for substantially the same reasons why his retaliation claim fails. As shown, Plaintiff
has no evidence he was terminated for any sort of racial animus, and he certainly has no evidence
to show that OCCC’s duly proffered reason for terminating him (credit card misuse) was anything
close to pretextual.
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Further, as also noted by OCCC, to the extent Plaintiff seeks to litigate any of the minor
allegations actually mentioned in his EEOC complaints (e.g., implementation of new travel policy
procedures, receiving edits on his work from the Assistant Regional Manager, etc.), those issues
are facially insufficient to state a claim as a matter of law. See, e.g. Harris Cty. Hosp. Dist. v.
Parker, 484 S.W.3d 182, 197 (Tex. App. Houston [14th Dist.] (explaining the high
requirements for a hostile work environment claim, including the requirement that “[c]onduct must
be extreme to amount to a change in the terms and conditions of employment”). Even Plaintiff
admits that he is complaining of “petty harassment.” App. at 2 5. Such allegations are legally
insufficient to show any viable claim for relief.
CONCLUSION & PRAYER
Plaintiff’s claims fail because he cannot ignore simple, undisputed, objective facts. OCCC
discovered that Plaintiff was using his official credit card for personal use. Plaintiff admitted to
such us OCCC terminated Plaintiff. The evidence simply does not support any rational inference
that OCCC terminated Plaintiff for his 22 month old complaint of racial discrimination instead of
for his credit card misuse. Similarly, the simple, objective evidence shows that Plaintiff’s
supervisor had multiple reasonable bases for not recommending Plaintiff for promotion in May
2015, but waiting until November 2015, after Plaintiff had satisfactorily demonstrated an
objectively higher level of ability to perform. Plaintiff attempts to distract this Court from the hard
facts by introducing numerous speculations and surmising about a host of subjective beliefs.
Plaintiff cannot escape reality so easilyOf special importance, P laintiff cannot escape the
consequences of his own credit card misuse while working for a state agency. Plaintiff has no
triable cause of action as a matter of law, and OCCCis therefore immune against all of Plaintiff’s
claims in this lawsuit.
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For all the foregoing reasonsthis Court should grant OCCC’s Plea to the Jurisdiction and
dismiss Plaintiff’s claims with prejudice. OCCC also prays for such further relief to which it may
be entitled.
Respectfull submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
SHAWN COWLES
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT
Chief General Litigation Division
/s/ Benjamin S. Walton
BENJAMIN S. WALTON
Texas Bar No.24075241
Assistant Attorney General
General Litigation Division
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711 2548
512) 463 Phone
(512) 320 Fax
benjamin.walton@oag.texas.gov
Counsel for Defendant
Texas Office of Consumer Credit Commissioner
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CERTIFICATE OF SERVICE
certify that a true and correct copy of th document was served on the following counsel
of record via the court’s e service systemMay 7
David C. Holmes
Law Offices of David C. Holmes
13201 Northwest Freeway, Suite 800
Houston, Texas
(713) 586 Phone
(713) 586 Fax
dholmes282@aol.com
Counsel for Plaintiff
/s/ Benjamin S. Walton
BENJAMIN S. WALTON
Assistant Attorney General
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Preview
Cause No. 2018-04375 ERNEST POLK THE DISTRICT COURT Plaintiff, JUDICIAL DISTIRCT TEXAS OFFICE CONSUMER CREDIT COMMISSIONER Defendant HARRIS COUNTY, TEXAS DEFENDANT’S REPLY OBJECTIONS PLAINTIFF’S RESPONSE OBJECTIONS PLEA THE JURISDICTION TO THE HONORABLE DISTRICT JUDGE CHRISTINE WEEMS: Defendant Texas Office of Consumer Credit Commissioner OCCC”) files this Reply and Objections to Plaintiff’s Response and Objections to Plea to the Jurisdiction. Simply put, nothing in Plaintiff’s Response negates the simple fact that Plaintiff was caught violating the official state credit card policy and was terminated shortly thereafter Further, Plaintiff completely fails to show how he met the stated qualifications for promotion from a Financ al Examiner I to a Financial Examiner II. This lawsuit amounts to nothing more than Plaintiff’s ongoing attempt to avoid the consequences of his actions by speculating that he was terminated not because of his credit card misuse, but because of his 22-month-old EEOC claim for racial discrimination. Plaintiff’s self-serving speculations are not supported by the evidence. This Court should not permit Plaintiff to avoid the consequences of his credit card misuse while working for a state agency. The declarations of Crystal Thompson Hill and Vince Emanuel are not competent summary judgment evidence. Plaintiff attached declarations from two different individuals, named Crystal Thompson-Hill and Vince Emanuel. This Court should strike those declarations because they are Page of not competent, admissible summary judgment evidence. The declarations are inadmissible for multiple independent reasons. First, Plaintiff did not disclose either of thse individuals in his responses to Defendant’s Request for Disclosure. See Ex. Thus, Plaintiff may not now seek to introduce their testimony. Texas Rule of Civil Procedure 193.6 plainly states: A party who fails to make, amend, or supplement a discovery response, including a required disclosure, in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. Tex. R. Civ. P. 193.6(a).Plaintiff’s Response fails to make any effort whatsoever to establish good cause for failing to identify Ms. Thompson Hill or Mr. Emanuel in his original response to Defendant’s Request for Disclosure or any possible supplemental response thereafter. Further, using testimony from brand new witnesses after the close of discovery is certainly an unfair surprise and prejudice to OCCC, who now has no opportunity to depose either of thse individuals or to pursue further discovery to rebut their claims Second, Mr. Emanuel’s declaration is also inadmissible because it does not meet the express requirements for an unsworn declaration set forth in Tex. Civ. Prac. & Rem. Code 132.001(d). OCCC will cite to its own exhibits that accompany its Plea to the Jurisdiction or this Reply as “Ex. [exhibit letter].” OCCC will cite to Plaintiff’s exhibits, filed as a single Appendix, as “App. at [page number] Page of Third, both declarations contain assertions that are unsupported by the declarant’s personal knowledge, are not admissible in evidence, and fail to show that the declarant is competent to testify to them See Tex. R. Civ. P. 166a Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”). For example, Ms. Thompson Hill’s declaration shows that (1) she was not Plaintiff’s supervisor, (2) she has no knowledge of why Plaintiff was being investigated, (3) she has no knowledge of Plaintiff’s misuse of the credit card, (4) she has no knowledge of Plaintiff’s violation of OCCC’s policies, and (5) she has no knowledge of why Plaintiff was terminated App. at 48. As described in its Plea to the Jurisdiction, OCCC’s official policy set forth explicit rules governing the use of the credit cards given to financial examiners for their work related travel expenses. The policy plainly stated that the card was “to be used only for official state business.” Ex. A2 at 3. The policy also explained the Texas Ethics Commission determination that an employee may not use the card “for personal expenditures or any other type of expenditure not reimbursable as a state business expense under state law.Id. It is undisputed that Plaintiff used his official credit card for personal expenditures that were not reimbursable. Plaintiff attempt to “rebut” this concrete evidence by offering a conclusory assertion from a previously unidentified witness that OCCC “had no [such] requirement.”App. at 48 ¶ 5. Plaintiff cannot attack the existence of OCCC’s written policy by simply finding a witness who summarily claims that policy did not exist. Ms. Thompson Hill’s assertion is not competent summary judgment evidence on its face because she evidently lacks personal knowledge of Plaintiff’s violations of OCCC’s policy. Similarly, Mr. Emanuel makes vague and conclusory assertions that are not supported by any details of personal knowledge. For example, he claims in paragraph 3 of his declaration that Page of he met all the qualifications for promotion to a Financial Examiner II. App. at 50 ¶ 3. However, does not describe thse qualifications or otherwise demonstrate his personal knowledge of the qualifications beyond his conclusory statement.Further, he certainly does not and apparently cannotshow how he met the specific qualification requiring the recommendation of his supervisor. See Ex. A ¶4 (listing this specific requirement among the requirements for promotion to Financial Examiner II). Additionally, Mr. Emanuel shows no personal knowledge regarding any of the individualized reasons why any other Financial Examiner I was or was not promoted to Financial Examiner II. He gives no basis for knowing whether any other employee did or did not meet the specific requirements for such a promotion, such as, for instance, whether any of those other employees received their supervisor’s recommendation for promotion and why such recommendation was or was not given in each individual situation.Mr. Emanuel’s testimony fails on its face for lack of personal knowledge and foundation. For all these alternative reasons, this Court should strike the declarations of Ms. Thompson Hill and Mr. Emanuel. By law, those declarations are not admissible, competent summary judgment evidence. Thus, they may not be considered by this Court. The affidavit of Candace Vargas (submitted by OCCC) and its accompanying exhibits are all competent summary judgment evidence. OCCC submitted an affidavit from Candace Vargas, who is employed by OCCC as a Human Resources Officer. Ex. A. Plaintiff argues that Ms. Vargas’ testimony should be stricken because she allegedly does not have personal knowledge of certain HR related matters. Plaintiff’s objections are not meritorious. Like many HR employees, it is naturally Ms. Vargas’ job to know how an entity’s records are made and kept. It is also a standard, recognized HR job function to know what an entity’s requirements are and historically have been for promotion from one position to another within the entity. Those are standard facts within the knowledge of typical Human Page of Resources Officers. Plaintiff has no basis for speculating (without supporting evidence) that Ms. Vargas does not have knowledge regarding these basic HR matters, as her affidavit states. Plaintiff also complains that Ms. Vargas cannot verify one of Gene Dow’s memos regarding Plaintiff’s job performance. See Ex. A (the specific page bates labeled 003894 That memo from Mr. Dow, Plaintiff’s supervisor at the time, simply explains why Mr. Dow was recommending Plaintiff for promotion in November 2015, even though he had declined to recommend Plaintiff for the same promotion in May 2015. It is eminently reasonable to expect a supervisor to explain himself if he moves from “not recommending” to “recommending.” That explanation is contained in Mr. Dow’s memo. There is nothing remarkable about a supervisor contrasting an employee’s present performance with his previous performance in order to show that the specific previous concerns preventing his promotion have now been satisfactorily addressed. The fact that Mr. Dow’s memo was thorough does not mean it somehow fails to constitute a reliable business recordThe memo records Mr. Dow’s rationale at or near the time he was explaining that rationale to his own superiors to justify Plaintiff’s promotion.Further, in response to Plaintiff’s passing hearsay objection, Plaintiff’s communications to Mr. Dow are, by definition, not hearsay. Mr. Dow’s memo is admissible. Plaintiff further objects to paragraphs 7 and 8 of Ms. Vargas’ affidavit. Those objections are also unsupporteOf course an HR Officer can testify regarding one of the classic situations that HR departments are traditionally responsible to monitor, be involved in, and document problems with employees that lead to discipline, including termination. Plaintiff has no basis for speculating that Ms. Vargas is somehow unqualified to talk about those traditional HR matters including OCCC’s investigation of Plaintiff’s credit card usage, the policy violations that were discovered the confrontation of Plaintiff regarding those violations, and the subsequent Page of termination of Plaintiff. Those are precisely the type of circumstances that HR helps to handle. Plaintiff has offered noconvincingbasis for excluding Ms. Vargas’ testimony on thse issues. Plaintiff’s attempt to create a triable failure promote claim fails as a matter of law. Plaintiff accuses OCCC of circular reasoning, but it is Plaintiff’s own argument that is facially illogical. OCCC has four requirements for promoting an employee from Financial Examiner I to Financial Examiner II. Ex. A ¶4. Of those four requirements, Plaintiff did not meet the fourth requirementhe did not receiv a recommendation from his supervisor, Gene Dow. Plaintiff does not contend that Mr. Dow did in fact recommend him for promotion in May 2015. The fact that Plaintiff was not recommended for promotion in May 2015 is undisputed. Instead, Plaintiff argues the Court should simply ignore this fourth requirement altogether because of Plaintiff’s personal opinions. Plaintiff believes he was qualified for promotion in May 2015, not because he met all four requirements, but simply because he thinks there should have been only three requirements, or that the fourth requirement should simply have been a sort of pro forma rubber stamp after satisfying the first three requirementsRegardless, Plaintiff cannot discharge his burden to make a prima facie showing of discrimination by simply stating he disagrees with or does not personally trust OCCC’s practice of requiring the individualized assessment of a supervisor before promoting its financial examiners, who must perform complex work on behalf of the Stateand do so reliably Furthermore, the very evidence that Plaintiff attached to his own Response demonstrates that the available objective facts consistently negate Plaintiff’s subjective belief of discrimination. Plaintiff include in his Appendix the position statement that OCCC provided to the EEOC in response to Plaintiff’s discrimination complaint. See App. at 3741. That position statement explained how Plaintiff was hired as one of five new financial examiners. Id. at 38. Four of those Page of individuals were African American (including Plaintiff), and one was Hispanic.Id. OCCC promoted all five of those peers to Financial Examiner II at different times throughout 2015, all based on identical criteria. Id. at 3839. The fact that Plaintiff was one of the last two financial examiners to be promoted does nothing to show that thos promotions were based on or influenced by race. Some of Plaintiff’s own African American peers were promoted faster than Plaintiff was for the simple reason that they performed better than Plaintiff.There is no evidence that OCCC delayed Plaintiff’s promotion to Financial Examiner II because he was African American. Plaintiff’s own declaration does not provide any objective evidence that could support an inference of discrimination. For example, Plaintiff refers to non specific complaints from other unidentified financial examiners, but such vague testimony is inadmissible hearsay and does not even purport to show how the detailed explanations of Plaintiff’s own supervisor for why he recommended Plaintiff for promotion in November 2015 but not May 2015 were somehow false or pretextual. See App. at 12, ¶¶ 3. Plaintiff’s testimony also fails for lack of personal knowledge, as he makes no attempt to show how he knows that any other financial examiner was qualified for a particular promotion at a particular time but was denied that promotion. See i Regardless, Plaintiff’s vague and overly generalized assertions ultimately fail to show with any specificity how OCCC could have been racially motivated in deciding not to promote Plaintiff until after his supervisor reasonably believed he was able to perform the additional work of a Financial Examiner II. In sum, Plaintiff has no legally competent or sufficient evidence to make a prima facie showing that OCCC promoted Plaintiff in November 2015 instead of May 2015 for discriminatory reasons. Moreover, Plaintiff certainly has no evidence to show that his supervisor’s litany of objective reasons for not promoting Plaintiff until November 2015 re somehow false or Page of pretextual. Accordingly, Plaintiff has no triable failure promote claim as a matter of law, and OCCC is immune againstPlaintiff’s claim. Plaintiff’s attempt to create a triable retaliation claim fails as a matter of law. As with Plaintiff’s failure promote claim, his retaliation claim also fails for lack of legally sufficient objective evidence to support it. It is undisputed that Plaintiff used his official credit card for personal use. That plainly contradicted the clear, express, written policy governing the use of such credit cards.See Ex. A2 at 3. As soon as OCCC discovered and confirmed Plaintiff’s blatant misuse of his official credit card, OCCC terminated Plaintiff for his policy violation. Plaintiff now attempts to distract this Court with a variety of other speculative assertions. This Court should set aside those distractions and not permit Plaintiff to escape the decisive issuehis undisputed use of his official credit card for personal use. Plaintiff continues to refuse to take responsibility for his actions and accept the consequences of his credit card misuse as a State employee Plaintiff attempts to distract the Court by speculating that OCCC must have had nefarious motives for investigating his credit card misuse. That speculation is unsupported and beside the point. OCCC did not present evidence detailing how it became aware of Plaintiff’s credit card misuse because those particular facts are unnecessary. Plaintiff objectively misused his credit card, which objectively justified his termination. None of Plaintiff’s speculations about how or why OCCC discovered his policy violation negate the simple fact that he was violating the state credit card policy. Plaintiff also relies on inadmissible “evidence” to try and negate the plain terms of the credit card policy. Plaintiff asserts in his declaration that an unidentified person told him something that contradicted the clear terms of the written policy. App. at 3 ¶9. Such self serving Page of and vague testimony should be disregarded. Even if it were admissible, it would still be ineffective, since it is objectively unreasonable for a state employee to violate the explicit terms of a written policy simply because someone else tells him something that violates the clear terms of that policy. Again, Plaintiff is distracting the Court from his objective credit card misuse and is desperately trying to justify his policy violation instead of taking responsibility for his actions Plaintiff also claims that other financial examiners were violating th policy yet were n terminated. Id.That is also beside the point. Perhaps OCCC needs to discover more about the credit card use of some of its other employees, but that does not magically excuse Plaintiff from suffering the fair consequences of his own policy violationespecially a policy violation involving improper use of a state credit card for personal purposes OCCC highlight three of Plaintiff’s most egregious policy violations in its Plea to the JurisdictionThe fact that OCCC did not discuss each and every violation does not somehow mitigate the force or effect of the policy violations actually selected for discussion.Plaintiff’s termination would have been amply justified even if based solely on the specific policy violations OCCC has highlighted. It is important to note that the specific violations highlighted by OCCC are egregious. OCCC chose specific examples where Plaintiff used his official credit card to make purchase far outside of his work areaplaces like New Orleans, Louisiana, and San A ntonio and Kerrville, Texas. See Ex. B at 1 ¶ 4(a)(b). Plaintiff also used his credit card while on a week of vacation. Id. 4(c). Those examples are blatant instances of credit card misuse. There is no rational way that Plaintiff’s personal travels across other areas of Texas, in another state, or on extended vacation could possibly have been related to work expenses on behalf of the State. Those personal expenditures are a far cry from filling up a gas tank on Sunday to be ready for work on Monday Page of Plaintiff was using his credit card on extensive personal travels far outside the scope of any possible work activities. He was using his credit card to make purchases that could have had absolutely no connection to his work for the State. Plaintiff has no excuse for his credit card misuse. He was finally caught, yet he continues to deflect responsibilityfor his actions Another way Plaintiff tries to distract the Court is by speculating that OCCC must have determined to terminate him two days before the meeting where he was terminated, because OCCC staff had pulled his vacation and sick leave accruals. That proves nothing. If OCCC evidence that appear to show credit card misuse, of course it s reasonable to be prepared to terminate Plaintiff at an upcoming meeting, if necessary and appropriate. There is nothing unusual about an employer who has paperwork showing an employee’s policy violation preparing itself to terminate that employee unless the employee provides new or additional information during a personal meeting that might give the employer a reason to pause and investigate further. Once again, Plaintiff is looking for ways to distract from the fundamental fact that he violated the credit card policy, got caught, and paid the consequences. Plaintiff also attempts to deflect attention from his undisputed actions by pointing to the fact that he recalls his final meeting with OCCC’s management differently. That is both unremarkable and irrelevant. If different parties disagree over what happened during the meeting on December 14, 2017, that has absolutely no effect on the undisputed fact that Plaintiff used his credit card for personal use, and OCCC terminated him when it discovered that policy violation. The details of the final meeting might be interesting for context, but they are ultimately not dispositive and cannot carry Plaintiff’s burden to provide objective evidence that OCCC’s reason for terminating him was a lie to cover up some sort of racial animus or retaliation. Page of As far as Plaintiff’s legal arguments are concerned, they are equally ineffective as his factual arguments. OCCC explained how a gap of 22 months between Plaintiff’s EEOC charge and his termination is legally insufficient to support an inference of retaliation. See Defendant’s Plea to the Jurisdiction at 11 (collecting cases). Plaintiff does not dispute that basic legal principle, but instead attempts to sidestep that conundrum by arguing that he has pleaded an ongoing opposition” theory of retaliation, not simply a retaliation claim based on his EEOC discrimination charge that he filed 22 months before he was terminated. However, as pointed out in OCCC’s Plea, issues not properly raised in an EEOC charge may not be subsequently litigated. See id. at 5 n.1. Plaintiff’s second EEOC charge (i.e., his retaliation charge filed after his termination, not his discrimination charge filed 22 months before he was terminated) does not clearly describe any “ongoing opposition” theory, nor does it provide adequate notice of the type of arguments Plaintiff’s counsel (admittedly new counsel appearing post discovery in this case) is now making. See Ex. (Plaintiff’s EEOC Charge dated May 2, 2018).Thus, this Court should not consider the “ongoing opposition” theory. In a further attempt to avoid the legally problematic 22 month gap between his first EEOC complaint and his termination, Plaintiff cites several cases holding that retaliation might be inferred in special circumstanceswhere recent significant events provide a rational basis for inferring retaliatory intent. None of those cases apply here. Plaintiff’s cited case involve truly substantial events that occurred closer in time to an employee’s termination, such as: n employer’s recent payment of a substantial settlement sum to an employee the occurrence of new protected activity by an employee, or an employee’s recent refusal to arbitrate a pending dispute with his employer and relinquish his right to a jury trial. See Starnes v. Wallace, 849 F.3d 627, 635 (5th Cir. 2017) (termination only ten days after employer paid $40,000 to settle a wage dispute with Page of plaintiff); amora v. City of Houston, 798 F.3d 326, 335 (5th Cir. occurrence of new protected activity by employee); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. (employee’s refusal to sign agreement that would have subjected his pending dispute to arbitration and relinquished his right to a jury trial). Here, by contrast, there are no events that rise to that level of unusual significance. Instead, the EEOC investigation regarding Plaintiff’s first EEOC charge proceeded in standard, typical fashion. The significant event that did occur right before Plaintiff’s termination was OCCC’s discovery of his credit card misuse. That is why Plaintiff was terminated, and Plaintiff has provided no case law to overcome the general rule that 22 months is far too large of a time gap to support any reasonable inference of retaliation. In sum, Plaintiff has no evidence to support a prima facie case of retaliation as a matter of law. Further, even if his weak “evidence” were somehow sufficient to push his claims over the threshold for making a prima facie showing, it certainly cannot meet the heavier burden of showing pretext. Plaintiff acknowledges that the proper causation standard for pretext is “but for” causation. This means that Plaintiff must show OCCC would not have terminated him in December 2017 had he not filed an EEOC charge all the way back in February 2016even though OCCC had just recently discovered that Plaintiff was violating the official credit card policy by using his card for personal travel expenses well outside his region that could not possibly have been related to his work. Such a hypothesis is not rational. Plaintiff wants a jury to speculate (as Plaintiff does) that OCCC terminate him for his 22 month old complaint about discrimination, but somehow failed to get around to actually terminating him until coincidentally it discovered he was misusing his credit card in violation of state poli . No reasonable jury could stretch so far as to make such a speculation in the face of the objective evidence in this case. Page of As with Plaintiff’s failure promote claim, Plaintiff’s retaliation claim ultimately rests on his subjective beliefs. Plaintiff’s subjective beliefs are legally insufficient to carry his burden to make a prima facie showing of retaliation, and they are certainly insufficient to carry his burden to show pretext. See Defendant’s Plea to the Jurisdiction at 1011 (collecting cases) Plaintiff cannot carry his burden to show pretext by looking at the objective evidence against him and simply saying, “I think they are making that up.” The evidence simply does not support the accusation that OCCC was covering up some sort of secret retaliation against Plaintiff’s discrimination complaint when it swiftly terminated Plaintiff for his objectively clear credit card misuse. Plaintiff’s attempt to create other triable claims for discrimination or harassment equally fail. To the extent Plaintiff attempts to litigate other claims, such as a separate claim for racial discrimination or a racial harassment claim, such claims are barred. Plaintiff’s EEOC charges did not preserve those distinct claims, which is why itwas unnecessary for OCCC to anticipate or respond to them in its Plea. See Defendant’s Plea to the Jurisdiction at 56 n.1; see also Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012) In a statutory cause of action against a governmental entity, the failure to adhere to the statute s mandatory provisions that must be accomplished before filing suit is a jurisdictional bar to suit.”). Regardless, to the extent Plaintiff might have raised a racial discrimination claim based on his termination, such a claim would fail for substantially the same reasons why his retaliation claim fails. As shown, Plaintiff has no evidence he was terminated for any sort of racial animus, and he certainly has no evidence to show that OCCC’s duly proffered reason for terminating him (credit card misuse) was anything close to pretextual. Page of Further, as also noted by OCCC, to the extent Plaintiff seeks to litigate any of the minor allegations actually mentioned in his EEOC complaints (e.g., implementation of new travel policy procedures, receiving edits on his work from the Assistant Regional Manager, etc.), those issues are facially insufficient to state a claim as a matter of law. See, e.g. Harris Cty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 197 (Tex. App. Houston [14th Dist.] (explaining the high requirements for a hostile work environment claim, including the requirement that “[c]onduct must be extreme to amount to a change in the terms and conditions of employment”). Even Plaintiff admits that he is complaining of “petty harassment.” App. at 2 5. Such allegations are legally insufficient to show any viable claim for relief. CONCLUSION & PRAYER Plaintiff’s claims fail because he cannot ignore simple, undisputed, objective facts. OCCC discovered that Plaintiff was using his official credit card for personal use. Plaintiff admitted to such us OCCC terminated Plaintiff. The evidence simply does not support any rational inference that OCCC terminated Plaintiff for his 22 month old complaint of racial discrimination instead of for his credit card misuse. Similarly, the simple, objective evidence shows that Plaintiff’s supervisor had multiple reasonable bases for not recommending Plaintiff for promotion in May 2015, but waiting until November 2015, after Plaintiff had satisfactorily demonstrated an objectively higher level of ability to perform. Plaintiff attempts to distract this Court from the hard facts by introducing numerous speculations and surmising about a host of subjective beliefs. Plaintiff cannot escape reality so easilyOf special importance, P laintiff cannot escape the consequences of his own credit card misuse while working for a state agency. Plaintiff has no triable cause of action as a matter of law, and OCCCis therefore immune against all of Plaintiff’s claims in this lawsuit. Page of For all the foregoing reasonsthis Court should grant OCCC’s Plea to the Jurisdiction and dismiss Plaintiff’s claims with prejudice. OCCC also prays for such further relief to which it may be entitled. Respectfull submitted. KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General GRANT DORFMAN Deputy First Assistant Attorney General SHAWN COWLES Deputy Attorney General for Civil Litigation THOMAS A. ALBRIGHT Chief General Litigation Division /s/ Benjamin S. Walton BENJAMIN S. WALTON Texas Bar No.24075241 Assistant Attorney General General Litigation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711 2548 512) 463 Phone (512) 320 Fax benjamin.walton@oag.texas.gov Counsel for Defendant Texas Office of Consumer Credit Commissioner Page of CERTIFICATE OF SERVICE certify that a true and correct copy of th document was served on the following counsel of record via the court’s e service systemMay 7 David C. Holmes Law Offices of David C. Holmes 13201 Northwest Freeway, Suite 800 Houston, Texas (713) 586 Phone (713) 586 Fax dholmes282@aol.com Counsel for Plaintiff /s/ Benjamin S. Walton BENJAMIN S. WALTON Assistant Attorney General Page of