El Paso Cmty. Coll. v. Lawler

• Decision Date: 30 November 2010
• Docket Number: No. 08–08–00174–CV.,08–08–00174–CV.
• Citation: 349 S.W.3d 81,272 Ed. Law Rep. 1012
• Parties: EL PASO COMMUNITY COLLEGE, Appellant,v.Antonio LAWLER, Appellee.
• Court: Texas Court of Appeals

349 S.W.3d 81

272 Ed. Law Rep. 1012

EL PASO COMMUNITY COLLEGE, Appellant,

v.Antonio LAWLER, Appellee.

No. 08–08–00174–CV.

Court of Appeals of Texas, El Paso.

Nov. 30, 2010.

Edward Dunbar, Dunbar, Armendariz, Crowley & Hegeman, L.L.P., El Paso, TX, for Appellant.J. Perry Pinon, El Paso, TX, for Appellee.Before McCLURE, J., CHEW, J., and BARAJAS, C.J. (Retired).

OPINION

ANN CRAWFORD McCLURE, Justice.

This is an interlocutory appeal taken by the El Paso Community College District from an order denying its plea to the jurisdiction. We affirm.

FACTUAL SUMMARY

Antonio Lawler, who is Hispanic, began working for El Paso Community College District (EPCC) in 1984 as a part-time, non-credit welding instructor. Until 2004, EPCC offered only non-credit welding courses. In 2004, EPCC began offering credit courses in welding which could lead to an associates degree in Machining Technology. EPCC assigned Lee Lowers, a non-Hispanic, to teach the credit courses and Lawler continued teaching the non-credit courses. In the summer of 2004, the credit and non-credit classes were combined due to low enrollment and Lowers was assigned to teach the combined class. On June 10, 2004, Lawler sent a written memorandum to the ATC ¹ Director, Carrie Powell, complaining that he had been scheduled to teach the course and it was instead given to Lowers. Lawler expressed his belief that the decision was made because of his national origin and he filed an EEOC complaint. EPCC subsequently determined that neither Lowers nor Lawler was credentialed to teach the course. Powell recommended Lawler for credential exception to the Faculty Credentials Review Committee (FCRC), but the FCRC rejected Lawler's application on August 18, 2004. In response to that decision, Lawler filed a retaliation charge with the EEOC. Vice President Yolanda Ahner reviewed Lawler's records and substituted course work in order for Lawler to qualify for a certificate of completion from EPCC. Through the efforts of Ahner, Lawler obtained his college-level certificate in November 2004 and he taught a credit welding course beginning in January 2005.

In September 2005, Craig Acuna provided Lawler with a new syllabus for the credit welding course which he had drafted. The following month, the new ATC Director, Jose Canales, asked Lawler whether he was using Acuna's syllabus. Lawler responded that he had distributed the syllabus to the class but it could not be used to teach the students what they needed to learn. Lawler was instead using his own syllabus from the non-credit welding course. Canales ordered Lawler to use the new syllabus. The following day, Lawler resigned because he felt that use of the syllabus rendered the employment conditions intolerable.

Lawler filed suit on January 13, 2006, complaining EPCC discriminated against him because of his Hispanic national origin when it did not accept his credentials to teach credit welding courses, earmarked his faculty credentials form to prevent him from teaching credit welding courses, assigned him to teach only non-credit courses, and combined his non-credit class with a credit class to be taught by a non-Hispanic instructor. Lawler also alleged that EPCC retaliated against him for filing a discrimination complaint by not hiring him to teach welding courses, by requiring him to apply for alternative credentials, and by requiring him to use the new syllabus when teaching the credit welding course in the Fall of 2005. The following month, Lawler filed a third EEOC charge alleging age discrimination and retaliation. On December 15, 2006, EPCC filed a plea to the jurisdiction on the ground that because Lawler had failed to state a prima facie case of discrimination under Chapter 21 of the Texas Labor Code, its sovereign immunity had not been waived.² On July 5, 2007, Lawler amended his petition to include the age discrimination claim raised in the third EEOC charge. The trial court denied the plea to the jurisdiction and EPCC filed notice of appeal.³

EMPLOYMENT DISCRIMINATION

In two issues, EPCC argues that the trial court erred by denying its plea to the jurisdiction because Lawler failed to “plead or present facts to establish discrimination” on the basis of national origin, age, or retaliation.

Sovereign Immunity

Sovereign immunity deprives a trial court of subject-matter jurisdiction of lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (2004). The Texas Commission on Human Rights Act provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. See Tex.Labor Code Ann. § 21.051 (Vernon 2006)(prohibiting unlawful employment practices by “employer”); § 21.002(8)(D)(Vernon Supp.2010)(defining “employer” to include a county, municipality, state agency, or state instrumentality).

Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plaintiff has the burden to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993); Gomez v. Housing Authority of the City of El Paso, 148 S.W.3d 471, 477 (Tex.App.-El Paso 2004, pet. denied). When a plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally in favor of the plaintiff and review de novo whether the plaintiff has met his burden. Miranda, 133 S.W.3d at 226; Texas Department of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex.App.-Austin 2004, no pet.). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227; Cooke, 149 S.W.3d at 704. In some cases, the issue is whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction. Miranda, 133 S.W.3d at 226. This is also a question of law subject to de novo review. Id. at 226. But in other cases, there can exist disputed evidence of jurisdictional facts which also implicates the merits of the case. Id. at 227. In that instance, the trial court reviews the relevant evidence to determine if a fact issue exists. Id. If a fact issue exists, the trial court cannot grant the plea to the jurisdiction and the fact issue must be resolved by the fact finder. Id. at 227–28. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This standard mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Id. Where the pleading requirement has been met and evidence has been submitted that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. Id. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id.

Purported Challenge to the Pleadings

We will first address EPCC's purported challenge to Lawler's pleadings. Although EPCC includes a challenge to the pleadings in its statement of Issue Two, it does not specifically address this argument in the body of the brief. Instead, EPCC focuses its entire argument on the evidence submitted in support of its challenge to the jurisdictional facts. Rule 38.1(i) requires the brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(i). In the absence of any analysis of Lawler's pleadings or argument related to their adequacy, we find that this aspect of Issue Two is inadequately briefed.

Challenge to the Jurisdictional Facts

In its plea to the jurisdiction, EPCC challenged the existence of certain jurisdictional facts. In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case. Bowen v. El Paso Electric Company, 49 S.W.3d 902, 908 (Tex.App.-El Paso 2001, pet. denied). The plaintiff must demonstrate: (1) he is a member of a protected class; (2), he suffered an adverse employment action; (3) he was qualified for the job he held; and (4) he was replaced by someone not in his protected class. Id. In establishing a prima facie case, the plaintiff is only required to make a minimal showing. Id. at 908–09. Lawler is required to assert a prima facie case of national origin and age discrimination for the trial court to have subject matter jurisdiction over his claim.

If the plaintiff is successful in establishing a prima facie case, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason. Id. at 909. This burden is one of production only, not persuasion, involving no credibility assessment. Id. Once the employer articulates a legitimate nondiscriminatory reason for the adverse job action, the plaintiff may prove discrimination by showing “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id., quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). The plaintiff may do this by showing that the employer's proffered explanation is unworthy of credence. Id.

National Origin Discrimination Claim–Qualification Element

It is undisputed that Lawler is a member of a protected class and he was not assigned to teach the credit welding course in May 2004. EPCC contended in its plea to the jurisdiction that Lawler was not...