Robert Herbert became the Police Chief for the City of Forest Hill, Texas in 1994. In 1998, seven months after giving Herbert a “glowing” performance evaluation, David Vestal, the City Manager, demoted Herbert to the position of sergeant. Herbert, who is African-American, responded with a race discrimination lawsuit.
Herbert claimed that the City’s asserted reason for terminating him – his inadequate job performance – was a pretext for discrimination. The Texas Court of Appeals found that Herbert was unable to prove a prima facie case that the City’s decision was pretextual.
The Court noted that “there is no evidence that Vestal generally disliked blacks or that he ever made any racially-motivated statements. Herbert’s permanent replacement was black.”
Herbert argued that similarly-situated white males were treated differently than he was, pointing to a white director of public works who was not fired after complaints of sexual harassment had been filed against him. The Court found the incident cited by Herbert as “factually distinct” from Herbert’s situation. The Court observed that the other incident “was based on allegations of sexual harassment rather than poor job performance. The director of public works was otherwise efficient at his job, had a complaint-free administration of his department, and had a generally professional demeanor.”
Finally, Herbert pointed to his “glowing” performance evaluation as evidence that the City could not be said to have believed that he was performing in his job inadequately. The Court disagreed, noting that the performance evaluation was concluded over seven months before the decision to remove Herbert from the position of Police Chief. The Court held that “loss of confidence caused by an employee’s job performance has been held to be a legitimate nondiscriminatory reason. Here, a sergeant and another officer complained about an abusive rebuke the sergeant received from Herbert in the presence of other personnel. A detective from an independent law enforcement agency investigated the incident and sustained the complaint, also noting Herbert’s lack of cooperation by refusing to meet with him. Herbert failed to complete his Department’s budget proposal on time. Herbert failed to adequately supervise the animal control office, responded unprofessionally to the City Manager’s directive for a police property room audit, and did not decrease the high turnover rate in the Department. All of these facts led to Vestal’s decision to remove Herbert from the position of Police Chief.”
Herbert v. City of Forest Hill, Texas, 2006 WL 668713 (Tex.App. 2006).