342-307963-19

CAUSE NO. 342-307963-19
RICARDO AVITIA
Plaintiff,
VS.
TEXAS CHRISTIAN UNIVERSITY,
Defendant.

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FILED
TARRANT COUNTY
7/20/2020 3:07 PM
THOMAS A. WILDER
DISTRICT CLERK

IN THE DISTRICT COURT

TARRANT COUNTY, TEXAS

342nd JUDICIAL DISTRICT

PLAINTIFF’S BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL
RESPONSES TO PLAINTIFF’S FIRST SET OF INTERROGATORIES TO
DEFENDANT TEXAS CHRISTIAN UNIVERSITY, PLAINTIFF’S SECOND SET OF
INTERROGATORIES TO DEFENDANT TEXAS CHRISTIAN UNIVERSITY, AND
PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO
DEFENDANT TEXAS CHRISTIAN UNIVERSITY
AND
PLAINTIFF’S RESPONSE TO DEFENDANT’S AMENDED MOTION TO QUASH
PLAINTIFF’S AMENDED NOTICE OF ORGANIZATIONAL REPRESENTATIVE
DEPOSITION, AND FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff in the above styled and numbered cause, and files this Plaintiff’s
Brief in Support of Plaintiff’s Motion to Compel Responses to Plaintiff’s First Set of
Interrogatories to Defendant Texas Christian University, Plaintiff’s Second Set of Interrogatories
to Defendant Texas Christian University and Plaintiff’s First Request for Production of
Documents to Defendant Texas Christian University, and Plaintiff’s Response to Defendant’s
Amended Motion to Quash Plaintiff’s Amended Notice of Organizational Representative
Deposition, and for Protective Order, pursuant to Rules 192, 193, 196, 197, 201 and 215, of the
Texas Rules of Civil Procedure, for protection and for sanctions, and for grounds would
respectfully show the Court the following:

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 I.
SUMMARY
The Court should reject Defendant TCU’s attempt to hide relevant evidence of other
instances of discrimination, its policies and customs for handling complaints of illegal
discrimination, personnel file information, contact information for persons with knowledge of
relevant facts, and studies and reports of discrimination issues performed by Defendant TCU or
outside consultants.
Accordingly, the Court should compel Defendant TCU to provide the requested
discovery and deny its motion to quash Plaintiff’s deposition notice for an organizational
representative.
Likewise, Plaintiff would ask the court to defer considering Defendant’s Motion for
Summary Judgment until Plaintiff is provided the discovery and has an appropriate time to
conduct any other depositions or discovery necessitated by any disclosure by Defendant TCU.
II.
FACTS
Plaintiff was employed by Defendant TCU for over 6 years and received excellent
performance reviews before he filed a complaint of discrimination.
Around October 1, 2017, Plaintiff made a complaint of illegal race, national origin and
sex discrimination with Dr. Darron Turner, Defendant TCU’s Chief University Inclusion Officer
and Title IX Coordinator. As a result of this complaint, Doctor Turner had a discussion with
Plaintiff’s supervisor Mary Kincannon. Soon thereafter, Ms. Kincannon confronted Plaintiff and
told Plaintiff she did not like hearing complaints from other departments. Soon thereafter,

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 Plaintiff began to receive criticism of his job performance until he was eventually terminated by
Defendant TCU around April 26, 2018.
Plaintiff filed suit against Defendant TCU asserting he was terminated because of his race
and national origin and in retaliation for making complaints of illegal discrimination.
Recently, Defendant TCU has come under scrutiny for racial incidents on campus and
lack of diversity.
Plaintiff sought discovery by interrogatory, request for production and organizational
representative deposition to obtain information regarding discrimination and retaliation at TCU.
Defendant objected to producing any information except generally as regarding Plaintiff’s
situation, although Defendant TCU has objected to producing even some of this information.
The organizational representative deposition was delayed by agreement shortly after the outbreak
of the coronavirus pandemic and recently re-noticed, to which Defendant TCU has objected to
responding on grounds of discoverability.
Defendant has filed a Motion for Summary Judgment and set it for hearing on August 18,
2020.
III.
OTHER INSTANCES OF DISCRIMINATION AND RETALIATION DISCOVERABLE
Information regarding other instances of discrimination and retaliation are discoverable.
The purpose of discovery is to allow the parties to obtain full knowledge of the issues and
facts of the lawsuit before trial and any summary judgment proceedings. West v. Solito, 563
S.W.2d 240, 243 (Tex. 1978). For information to be discoverable, it must be relevant or
reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a);
In re North Cypress Med. Ctr, 559 S.W.3d 128, 129 (Tex. 2018). The phrase “relevant to the

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 subject matter” is to be broadly construed. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664
(Tex. 2009). It is no ground for objection “that the information sought will be inadmissible at
trial if the information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” TEX. R. CIV. P. 192.3(a). A request “is not overbroad merely because [it]
may call for some information of doubtful relevance” so long as it is “reasonably tailored to
include only matters relevant to the case.” Sanderson, 898 S.W.2d at 815.
A party may obtain names, addresses and telephone numbers of people with knowledge
of relevant facts. Tex. R. Civ. P. 192.3(c). The reason this witness disclosure information is
required is to allow a party to locate, interview and call a witness to trial. $23,900 v. State, 899
S.W.2d 314, 317 (Tex. App.—Houston [14th Dist] 1995, no writ). The plain language of Rules
192.3(c) and 192.5(c)(3) indicates that people with knowledge of relevant facts can never be
protected from discovery. Griffin v. Smith, 688 S.W.2d 112, 113 (Tex. 1985). Thus, Defendant
TCU’s attempts to hide such information should be rejected.
Reports of organizations are discoverable when they are not prepared in anticipation of
litigation. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552-53 (Tex. 1990)(internal investigation,
unrelated to the matter that gave rise to the litigation, was discoverable). Thus, Defendant TCU’s
reports and studies, including those created by outside consultants, on race and diversity issues
are discoverable.
A party may discover documents in the personnel file of a party or witness. In re
Crestcare Nursing and Rehab Ctr., 222 S.W.3d 68, 74 (Tex. App.—Tyler 2006, orig.
proceeding). A personnel file includes all matters about an employee, even if filed separately
under a different name. In re LaVernia Nursing Facility, Inc., 12 S.W.3d 566, 570 (Tex. App.—
San Antonio 1999, orig. proceeding). Thus, the requested personnel files are discoverable.

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 It is illegal for an employer to discriminate against an employee because of sex, race or
national origin. Tex. Labor Code § 21.051. Furthermore, it is illegal to retaliate against an
employee who makes a complaint of illegal discrimination. Tex. Labor Code § 21.055.
In this case, Plaintiff seeks discovery of other instances of sex, race and national origin
discrimination from Defendant TCU. Plaintiff also seeks information regarding other instances
of retaliation.

Defendant TCU seeks to limit discovery to complaints made by Hispanic

complaints in the registrar’s office.
It is well established that plaintiffs in Title VII discrimination cases should be permitted a
very broad scope of discovery, e.g., Morrison v. City & County of Denver, 80 F.R.D. 289, 292
(D.Colo.1978); see Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975). The scope
of discovery in an EEOC case is extensive. The justification for expanding the scope of
discovery is based on this consideration; since direct evidence of discrimination is rarely
obtainable, Title VII plaintiffs must rely on circumstantial evidence. Any evidence of an
employer's overall employment practices may be essential to plaintiff's prima facie
case, Morrison, supra, at pg. 292.
Evidence of other instances of discrimination is relevant concerning an employer’s
general policy and practice with respect to minority employment and may be relevant to showing
pretext. Vance v. Planters Corp., 209 F.3rd 438 (5th Cir. 2000); Kelly v. Boeing Petroleum Servs.,
Inc., 61 F.3d 350, 358 & n. 10 (5th Cir.1995).
Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983) is an instructive Title VII
employment discrimination case. The plaintiff sought to discover extensive information
regarding the defendant's past and present employment practices. The trial court limited
discovery to the two-year period preceding the filing of plaintiff's suit. Trevino, 701 F.2d at 397.

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 In reversing, the Fifth Circuit referenced the need for an expanded scope of discovery in Title
VII cases and added, “[t]he imposition of unnecessary limitations on discovery is especially
frowned upon” in such cases, Trevino, 701 F.2d at 405-406. The court reasoned much of the
information sought to be discovered by plaintiff “would be highly relevant in proving a
continuing pattern of discrimination in an integrated enterprise's promotion and transfer system.”
Trevino, 701 F.2d at 405. (emphasis added).
In this case, Plaintiff is alleging that Defendant TCU has a policy and practice of
discriminating against non-whites. “Cross category” discrimination, that is discrimination against
other non-whites who are not the same race as the Plaintiff, is relevant to show Defendant’s
discrimination against non-whites. Hernandez v. Yellow Transp. Inc., 670 F.3d 644,653 (5th Cir.
2012) (recognizing use of other examples of discrimination in hostile work environment and that
cross-category discrimination may be relevant when there is sufficient correlation between
discrimination claimed by a plaintiff and that directed at others, but declining to explicitly rule
on use of such evidence in that case).
The court in Murillo v. Travis Cty., held that cross-category discrimination could support
a claim of discrimination and retaliation, to wit, evidence of discrimination against African
Americans was relevant to discrimination claims brought by a Hispanic. 2018 WL 1514094 *4
(W.D. Tex. 2018) citing Hernandez, 670 F.3d at 654 ("We have said that cross-category
discrimination could be relevant when there is a sufficient correlation between the kind of
discrimination claimed by a plaintiff and that directed at others.")
In Abramson v. American University, 1988 WL 152020 (D.D.C.), the plaintiff alleged
religious and national origin discrimination based on her Eastern European Jewish background.
The defendant asked the court to exclude evidence because “plaintiff’s case must be based on

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 evidence of discrimination against members of his race and his ethnic background.” Id. at *1.
The court disagreed, discussing Rule 401’s liberal admissibility standard. Id. Evidence of
discrimination toward other protected classes “would tend to prove that [the decisionmakers]
harbored a discriminatory animus against minorities in general . . .” Id. “Other evidence that may
be relevant to any showing of pretext includes ... [the employer's] general policy and practice
with respect to minority employment.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 804-05 (1973)).
The premise that prejudice of all kinds, including sexism and racism “go together” within
individuals is a venerable one in social psychology. For instance, the “Social Dominance
Orientation” of people can predict both racial- and gender-based prejudice and confirms that they
most often co-exist within the same people. See Felicia Pratto, Jim Sidanius, Lisa M. Stallworth,
and Bertram F. Malle, Social Dominance Orientation: A Personality Variable Predicting Social
and Political Attitudes, 67 Journal of Personality & Social Psychology 4, 741-63 (1994).
Actions and failures to act by Defendant TCU’s managers are relevant to their state of
mind, including their common mindset that they need not comply with any aspect of their
company’s policies prohibiting discrimination and retaliation. The jury can reasonably infer that
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tree. Evidence of institutional state-of-mind may be presented for the consideration of the trierof-fact because an employer's willingness to consider impermissible factors such as race, age,
sex, national origin, or religion while engaging in one set of presumably neutral employment
decisions—in this case, pay scales—might tend to support an inference that such impermissible
considerations may have entered into another area of ostensibly neutral employment decisions—
here, an employee's termination. While this court has recognized that “proof of a general

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 atmosphere of discrimination is not the equivalent of proof of discrimination against an
individual,” it may be one indication that the reasons given for the employment action at issue
were “implicitly influenced” by the fact that the plaintiff was of a given race, age, sex or religion.
This is an unlawful termination case filed pursuant to Texas Labor Code 21.051 and
21.055. Plaintiff alleges that he was discriminated against in the terms and conditions of his
employment because of his national origin, Mexico, gender, male, and as a Hispanic. He also
alleges that after complaining of the disparate treatment, his job performance was unjustly
criticized, he was harassed, and set up to fail with extreme and unrealistic job demands.
Ultimately, Plaintiff would show that he was terminated in retaliation for making his complaints.
Plaintiff Avitia, a veteran, was a high performing Veteran Specialist in the Defendant’s
Registrar Office until he complained about the disparate treatment imposed on him by his
supervisor, Tiffany Wendt, and the Registrar, Mary Kincannon.
In the Fall 2017, TCU’s veteran/dependent student population grew by approximately
100 students creating a significant increase in Plaintiff’s workload. Plaintiff requested that the
Defendant re-classify him as an exempt employee from a non-exempt employee so that he could
work as many hours per week as necessary to perform his work requirements without the need
for overtime. He was willing to work more hours for essentially less pay for the benefit of TCU.
He reviewed his job description and his duties and believed that he met the requirements for an
exempt employee. Plaintiff’s Caucasian female counterpart, the NCAA certifying employee, was
classified as exempt. His request was rejected. After his complaint, he was subjected to unjust
criticism and harassment, placed on a Performance Improvement Plan, and ultimately
terminated. Plaintiff seeks discovery regarding Defendant’s efforts to prevent discrimination and
to include persons of color in its community of faculty, staff, and students.

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 TCU’s discrimination and retaliation policies emanate from the top. TCU’s policy against
discrimination and retaliation is applicable to each segment of the TCU community, including
staff, faculty, and students. The anti-discrimination policy specifically designates the Chief
Inclusion Officer and Title IX Coordinator as responsible for overseeing the policy. The
Coordinator is responsible for overseeing a centralized response to all reports of discrimination,
harassment, and other conduct that violates its anti-discrimination policy. The manner in which
the Coordinator investigated and acted upon all complaints of discrimination and retaliation is
relevant to show the effectiveness of its policies through the various departments, whether the
policies were enforced in university departments,

or whether the Coordinator allowed

discrimination and prohibited conduct to occur, thus giving a green light to others to engage in
unlawful practices.
Even if instances of discrimination is limited to the Registrar’s offices, policy and custom
of handling complaints of illegal discrimination should encompass Dr. Turner’s entire purview.
Moreover, Dr. Turner is responsible under TCU policy for receiving and handling complaints of
a broad range of discrimination. Plaintiff testified that Dr. Turner tried to talk him out of filing a
complaint of discrimination. 3 TCU students have also alleged that Dr. Turner tried to talk them
out of complaints of discrimination. Certainly evidence of Dr. Turner’s policy and practice of
receiving and handling complaints of discrimination is relevant to Plaintiff’s retaliation claim
and how it was handled (or discouraged) by Dr. Turner and Defendant TCU. Thus, Defendant
TCU’s attempt to limit discovery to the Registrar’s office ignores the scope of Dr. Turner’s
responsibility.
Plaintiff. Requests the Court reject Defendant TCU’s attempt to hide evidence of
discrimination and retaliation at TCU.

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 IV.
CONCLUSION AND. PRAYER
Accordingly, Defendant TCU should be ordered to produce discovery, including an
organizational representative deposition regarding other discrimination, other complaints of
discrimination and reports on race and diversity issues as well as other discovery issues raised in
Plaintiff’s Motion to Compel.
WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays that this motion be set
for a hearing, and upon said hearing, the Court order the Defendants to fully and adequately
answer the discovery requests previously served on the Defendants, and provide an
organizational representative for deposition; order that such discovery be produced so that
Plaintiff may adequately respond to Defendant’s Motion for Summary Judgment, and for such
other relief to which the Plaintiff may be entitled.
Respectfully submitted,
/s/ JASON C.N. SMITH
JASON C.N. SMITH
State Bar No. 00784999
Law Offices of Jason Smith
600 8th Avenue
Fort Worth, Texas 76104
817-334-0880
817-334-0898, facsimile
Email: jasons@letsgotocourt.com
Service Email: courtfiling@letsgotocourt.com
ZOE COURTNEY
State Bar No. 04897500
Law Offices of Zoe Courtney
612 Eighth Avenue
Fort Worth, Texas 76104
(817) 224-2895, facsimile
Email: zc@courtneylaw.pro
ATTORNEYS FOR PLAINTIFF

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 CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served upon the
attorneys of record of all parties in the above cause in accordance with the Texas Rules of Civil
Procedure, on this the 20th day of July, 2020.
/s/ JASON C.N. SMITH
JASON C.N. SMITH

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