Edcouch-Elsa Indep. Sch. Dist. v. Cabrera
| Docket Number | 13-21-00365-CV |
| Decision Date | 11 August 2022 |
| Parties | EDCOUCH-ELSA INDEPENDENT SCHOOL DISTRICT, Appellant, v. LISA CABRERA, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 332nd District Court of Hidalgo County Texas.
Before Justices Longoria, Hinojosa, and Silva
Appellant Edcouch-Elsa Independent School District (EEISD) appeals the denial of its plea to the jurisdiction in this employment discrimination suit brought by appellee Lisa Cabrera, a former EEISD employee. By two issues that we construe as one EEISD argues that the trial court erred when it denied its plea as to Cabrera's discrimination claims under the Texas Commission on Human Rights Act (TCHRA) because Cabrera fails to provide evidence of a statutorily protected violation. See Tex. Lab. Code Ann. §§ 21.001-.556. We reverse and render.
Cabrera first began her employment with EEISD in 1997. In May 2019, Cabrera's employment was terminated due to "excessive absences and documented instances of checking [sic] during the work[ ]day." Cabrera filed a discrimination charge with the Texas Workforce Commission (TWC) on August 1, 2019, contending that she had been discriminated based on her sex and age. After receiving a "right to sue" letter from the TWC on December 30, 2020, Cabrera filed the underlying suit bringing the same causes of action under the TCHRA.
EEISD filed its original answer and a plea to the jurisdiction, wherein EEISD asserted that the trial court lacked jurisdiction over Cabrera's claims because she is unable to proffer evidence of her discrimination claims. In support of its motion, EEISD attached Cabrera's TWC complaint, her original petition, an affidavit from human resources stating the reasons for Cabrera's termination, and the notice of termination letter sent to Cabrera.
By written response, Cabrera argued: "governmental immunity has absolutely nothing to do with these [TCHRA] claims"; "[i]f this were a true to [sic] plea to the jurisdiction, it would not turn on why [EEISD] maintains that it fired [Cabrera]"; EEISD's plea to the jurisdiction "was procedurally rendered moot upon" Cabrera's filing of her first amended petition[1]; and EEISD's affidavit in support of its plea to the jurisdiction should be stricken. Cabrera also filed an affidavit, wherein she contended that she became the subject of unfair treatment at work following an "awkward encounter" involving her supervisor Monica Vela-Barco and Vela-Barco's husband, Tony Barco.[2] The incident occurred mid-November 2018 inside Vela-Barco's office. Cabrera contends Barco looked at her and "made an expression through facial or body language[] that drew the immediate anger of [Vela-Barco], who became visibly upset." Cabrera stated, "I recall having the distinct impression at that time that [Vela-Barco] now regarded me negatively for the reason that she considered me to be a potential or actual distraction to the interest and attention of her husband's." According to Cabrera, a few weeks after this incident, Vela-Barco "issued a writeup," claiming that Cabrera had declined to complete "a particular task that [Vela-Barco] knew was within another's familiarity and job purview." Cabrera asserted that she later heard that Vela-Barco had gone to Barco's father, a school board trustee, to report that Cabrera had been having an affair with Barco-an allegation that Cabrera denies. Cabrera further denied ever being "written up or otherwise disciplined for absences." Cabrera stated that she was ultimately terminated from her employment and replaced with a woman who "would pose no similar threat to the marital security of [Vela-Barco] because one, she was not viewed by him in past times as a romantic interest that he felt attraction to, and two, she is married to another woman." Cabrera acknowledged that her replacement is one year older than her and of the same ethnicity.
Following a hearing, the trial court denied EEISD's requested relief. This interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (providing for interlocutory appeal from a trial court's order on a plea to the jurisdiction).
Cabrera briefly avers on appeal that EEISD's plea to the jurisdiction is "moot in view of the subsequently filed live pleadings." Mootness implicates subject matter jurisdiction, and an appellate court is prohibited from deciding a moot controversy. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021). Therefore, we address this matter first.
Amended pleadings take the place of prior pleadings. See Tex. R. Civ. P. 65. Claims raised in an original petition or prior pleading but absent in subsequent amended pleadings are no longer "live" and thereafter cannot be subject to challenge. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012); see, e.g., City of Hidalgo Ambulance Serv. v. Lira, 17 S.W.3d 300, 304 (Tex. App.-Corpus Christi- Edinburg 2000, no pet.) ("The plea addressed a claim of waiver of liability that was no longer in the petition; it was indeed moot."). In contrast, claims which remain following an amended filing, challenged in a dispositive motion prior to the amended filing, may remain challengeable. See, e.g., Ward v. Lamar Univ., 484 S.W.3d 440, 449 (Tex. App.- Houston [14th Dist.] 2016, no pet.) (concluding, where a plaintiff filed an amended petition after the defendant filed a plea to the jurisdiction, that the trial court appropriately addressed claims challenged in defendant's plea to the jurisdiction which remained in the live petition but could not address new claims which post-dated the plea to the jurisdiction); Lira, 17 S.W.3d at 304 (); see also City of San Antonio v. Reyes, No. 04-16-00748-CV, 2017 WL 3701772, at *4 (Tex. App.-San Antonio Aug. 23, 2017, no pet.) (mem. op.) (concluding plaintiffs' amended pleading did not moot defendant's plea to the jurisdiction where the amendment did not address or cure the defendant's challenge).
Cabrera's amended petition, filed three days after EEISD's plea to the jurisdiction, contained no new claims. The only substantive addition was the incorporation of her affidavit into the body of the amended petition-which had previously been filed in response to EEISD's plea to the jurisdiction. Because EEISD's plea to the jurisdiction addresses the same claims which exist in the live petition-and for reasons discussed below, the amended petition did not allege facts which would cure EEISD's challenge- EEISD's plea to the jurisdiction was not rendered moot by Cabrera's amended petition. See Ward, 484 S.W.3d at 449; Lira, 17 S.W.3d at 304.
As a public school district, EEISD is immune from suit absent an express waiver of governmental immunity. See Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 904 (Tex. 2021); El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d 521, 526 (Tex. 2020). The TCHRA-which prohibits an employer from committing an "unlawful employment practice" against an employee "because of" the employee's "race, color, disability, religion, sex, national origin, or age"-creates such waiver of immunity. Tex. Lab. Code Ann. §§ 21.002(8)(D), 21.051; Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 n.33 (Tex. 2012) ("TCHRA clearly and unambiguously waives immunity for school districts.").
Immunity from suit implicates a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022); Alamo Heights, 544 S.W.3d at 770. When, as here, jurisdictional facts are challenged, our standard of review mirrors that of a summary judgment. Alamo Heights, 544 S.W.3d at 771; see City of San Antonio v. Riojas, 640 S.W.3d 534, 536 (Tex. 2022). In response to a plea to the jurisdiction, a plaintiff must allege "facts that would establish that the state agency violated the [TCHRA] and, when challenged with contrary evidence, provides evidence that is at least sufficient to create a genuine fact issue material to that allegation." Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (citing Alamo Heights, 544 S.W.3d at 770-71). A plaintiff may rely on either direct or circumstantial evidence, and we take as true all evidence favorable to the plaintiff. Id. "In both direct- and circumstantial-evidence cases, the burden of persuasion remains at all times with the employee." Alamo Heights, 544 S.W.3d at 782.
"Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 478 (Tex. App.-El Paso 2013, pet. denied) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)); see Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.-Houston [1st Dist.] 2016, pet. denied); see also Chau v. Harlingen Med. Ctr., No. 13-15-00115-CV, 2016 WL 1072619, at *3 (Tex. App.- Corpus Christi-Edinburg Mar. 17, 2016, pet. denied) (mem. op.). For example, "specific expressions of negativity or animosity about a person's age or...
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