The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It

Discrimination and Employee Rights

In several recent cases, Owen has dissented from rulings by the Texas Supreme Court affecting the rights of employees, including the right to be free from invidious discrimination. In one such case, Owen embraced an interpretation of a key Texas civil rights law that would have effectively rewritten part of that law and made it much more difficult for employees to prove discrimination. In another case, the majority explained that the dissent "defies the Legislature's clear and express limits on our jurisdiction." Owen's dissenting views in these cases were rejected by the Court majority, including justices appointed to the Court by then-Governor Bush.

Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001)

In this case involving age discrimination, the Texas Supreme Court ruled 5-2 (with one justice not participating) that a plaintiff can prove age discrimination by showing that discrimination was a motivating factor in the employee's termination. The case was brought under the Texas Commission on Human Rights Act, which is patterned after Title VII of the 1964 Civil Rights Act. Owen joined the dissent of Justice Hecht, which would have adopted a much more demanding standard requiring a plaintiff to prove that discrimination was the determinative factor in firing cases in which it is alleged that the employer has advanced some other reason for the discharge as a pretext for discrimination.

At issue was the application of a state anti-discrimination law expressly providing that "an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for any employment practice, even though other factors also motivated the practice." 47 S.W.3d at 479-480; Tex. Labor Code §21.125(a) (emphasis added). In holding that a plaintiff in an employment discrimination case must show that discrimination was "a" motivating factor rather than "the" motivating factor, "regardless of how many factors influenced the employment decision," the court noted that "[a] basic rule of statutory construction is that we enforce the plain meaning of an unambiguous statute," and that "[t]he plain meaning" of the statute in question establishes 'a motivating factor' as the plaintiff's standard of causation...." 47 S.W.3d at 470-80 (emphasis added). In sharp contrast, the dissent joined by Justice Owen would have effectively rewritten the statute to create "the determinative factor" or "but for" standard that would have made it significantly harder to prove age discrimination. This "determinative factor" standard would also have made it much harder for an employee to prove discrimination based on any of the other characteristics covered by the statute, including race, sex, and disability.

Both of the other Texas Supreme Court justices appointed by Bush who participated in the decision, Baker and Hankinson, joined the majority opinion, which affirmed the appellate court ruling below.

Montgomery Independent School District v. Davis, 34 S.W.3d 559 (Tex. 2000)

In a 6-3 ruling, with Owen writing the dissent, the Texas Supreme Court affirmed a decision of the court of appeals in favor of a teacher who had effectively been discharged through the non-renewal of her contract. After receiving notice of the proposed non-renewal, the teacher requested a hearing under the provisions of the state Education Code. Following a five-day hearing, the hearing examiner "concluded that the school district failed to prove by a preponderance of the evidence any of the reasons for nonrenewal . . . and recommended that [the teacher's] contract be renewed." 34 S.W.3d at 561. The school board, however, issued its own additional findings of fact and voted not to renew the teacher's contract. The Supreme Court majority held that the board had exceeded its authority under applicable law by making additional factual findings, and that its decision was not supported by substantial evidence. Owen disagreed, and would have held that the board had a right to make the additional findings.

According to the majority, however, Owen's view was contrary to the language of the applicable statute: "Nowhere in the specific provisions of [the statute] has the Legislature provided for a school board to find facts in addition to those found by the hearing examiner. We cannot read into subchapter F's detailed administrative scheme permission for a board to find additional facts when the Legislature did not include that authority." 34 S.W.3d at 564. The majority specifically criticized Owen's dissent as arguing for a "misconception of the hearing examiner's role" that stemmed from "its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards." 34 S.W.3d at 568.

As the majority explained, Owen's dissent advocated a rewrite of the Education Code that would have been detrimental to the rights of teachers. "By resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result, the dissenting opinion not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the Board. Even the Board admits that the hearing examiner's factfindings in this case are supported by substantial evidence. And the Legislature has made plain that when substantial evidence supports those findings, the Board is not free to reject or change those findings to reach a different result." 34 S.W.3d at 568.

Bush appointees Gonzales, Baker and Hankinson were in the majority, and Hankinson wrote the majority opinion.

Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001)

In this case, a school district employee filed suit against district officials alleging intentional infliction of emotional distress and defamation. The officials moved for summary judgment, claiming that the case should be dismissed on the ground that they had immunity from such lawsuits under state law because they were acting within the scope of their duties when they made the allegedly defamatory statements. The trial court denied the motion, and the court of appeals affirmed on the basis that the officials' affidavits did not "conclusively prove that they were acting within the scope of their duties." 73 S.W.3d at 180. Seven of the nine state Supreme Court justices agreed that the court did not have jurisdiction to hear an appeal by the school district officials of the denial of their motion for summary judgment based on their immunity claim, since the ruling below was not a final judgment and Texas state law does not give the Supreme Court jurisdiction to consider appeals of non-final orders except in specified instances set out by statute. Justice Owen joined a dissent by Justice Hecht taking the position that the Court should have heard the officials' interlocutory appeal.

The majority criticized the dissent by Hecht and Owen, stating that the dissent's view "defies the Legislature's clear and express limits on our jurisdiction." 73 S.W.3d at 182. According to the majority, "we cannot simply ignore the legislative limits on our jurisdiction." 73 S.W.3d at 183.

Bush appointees Baker and Hankinson were in the majority, and Hankinson wrote the majority opinion.

Continental Casualty Company v. Downs, 2001 WL 1876345 (Tex. 2002)

In a 5-4 ruling, with Owen joining the dissent, the Texas Supreme Court held that a workers' compensation carrier cannot contest a worker's right to compensation if the carrier has violated the express statutory requirement that within seven days of its receipt of a claim it must either begin paying benefits or notify the employee in writing of its refusal to pay. The dissent would have adopted the carrier's argument that a violation of this express statutory mandate subjected it only to a monetary fine. The majority specifically criticized the carrier's position, stating that to read the statute as the carrier had proposed would "render[] meaningless" the seven-day deadline and related statutory provisions. 2001 WL 1876345, *3.

Bush appointee Hankinson wrote the majority opinion, which was joined by Bush appointee Baker.

Texas Municipal League Intergovernmental Risk Pool v. Texas Workers' Compensation Commission, 74 S.W.3d 377 (Tex. 2002)

This case involved the Texas Municipal League Intergovernmental Risk Pool, which includes more than 1,600 Texas cities that provide "workers' compensation benefits to their employees through a joint-insurance fund." 74 S.W.3d at 379. The Risk Pool challenged the constitutionality, under the Texas Constitution, of the applicability to the Risk Pool of state laws requiring insurance carriers to contribute unclaimed death benefits to a fund established by the Texas legislature to pay "lifetime workers' compensation benefits to injured employees and to encourage employers to hire people with disabilities or preexisting injuries." 74 S.W.3d at 380. In a 7-2 ruling, the Texas Supreme Court upheld the constitutionality of the challenged statutes as applied to the Risk Pool. The majority specifically rejected Owen's dissenting argument that applying the law to the Risk Pool violated the Constitution, explaining that there was a "clear public benefit" to the contribution. According to the Court,

    The Fund ensures that employers do not deny employment to individuals with preexisting injuries because they fear that later injuries will expose them to greater liability. . . The Fund -- by expanding Texas' workforce, placing disabled workers on a more equal plane as compared to other workers, and lowering workers' compensation rates -- benefits the public as a whole, and not merely a particular private interest. Therefore, we conclude that [the challenged statutes] accomplish a legitimate public purpose with a clear public benefit received in return.
    74 S.W.3d at 385.

Bush appointees Baker and Hankinson were in the majority, and Baker wrote the Court's opinion.

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