Tex. Dep't of Aging & Disability Servs. v. Loya

• Decision Date: 27 April 2016
• Docket Number: No. 08–15–00256–CV,08–15–00256–CV
• Citation: 491 S.W.3d 920
• Parties: Texas Department of Aging and Disability Services, Appellant, v. Lori Loya, Appellee.
• Court: Texas Court of Appeals

491 S.W.3d 920

Texas Department of Aging and Disability Services, Appellant,

v.Lori Loya, Appellee.

No. 08–15–00256–CV

Court of Appeals of Texas, El Paso.

April 27, 2016

Wylie E. Kumler, Assistant Attorney General, General Litigation Division, Austin, TX, for Appellant.

Raymond Martinez, Martinez & Martinez Law Firm, El Paso, TX, for Appellee.

Before McClure, C. J., Rodriguez, and Hughes, JJ.

OPINION

STEVEN L. HUGHES

, Justice

Lori Loya sued her former employer, the Texas Department of Aging and Disability Services (DADS), for sex discrimination, hostile work environment, and retaliation under the Texas Commission on Human Rights Act (TCHRA). DADS filed a plea to the jurisdiction based on sovereign immunity, which the trial court denied. We reverse and dismiss all of Loya's claims for lack of jurisdiction.

BACKGROUND

DADS hired Loya to work at the El Paso State Supported Living Center as an administrative assistant. She reported to Jaime Monardes, the director of the Center. Monardes fired Loya less than two months' later, during her probationary period. Loya filed charges of discrimination and retaliation with the Civil Rights Division of the Texas Workforce Commission. The Commission later issued a right to sue letter without making any findings.

Loya then sued DADS for wrongful termination, alleging discrimination, retaliation, and hostile work environment.¹ In her Second Amended Petition, Loya alleged she reported several harmful and unsafe incidents and practices to Monardes and other managers that included sexual attacks by residents on staff of the Center. In response, Monardes began to treat Loya “in a negative and hostile manner.” In particular, she alleged Monardes responded “that everyone had sexual needs and he proceeded to place his hands in the crotch area of his pants[,] ... [and] exposed his abdomen ... in the course of his making fun of her for her concerns and explaining to her that the residents had sexual needs.” Loya also alleged that she complained to the benefits coordinator Irene Huerta “about Monardes' sexual misconduct and overall demeaning behavior and hostile work environment.” Loya additionally claimed that after her termination, Monardes accused her “of stealing flash drives or some other property at her workplace” and that “upon information and belief, believes such allegations of theft are in retaliation for her complaints and/or pretext for her termination.”

In response, DADS filed a plea to the jurisdiction, asserting Loya could not demonstrate a prima facie case under TCHRA and therefore could not bring her claims within the limited waiver of sovereign immunity TCHRA provides. In particular, DADS argued in part that: (1) Loya's sex discrimination claim failed because she failed to plead and prove she was replaced by a similarly qualified male or otherwise terminated due to her gender; (2) Loya's hostile work environment claim failed because she could not show she had suffered severe and pervasive sexual harassment; and (3) Loya's retaliation claim failed because she could not show an adverse employment action or a causal connection between any alleged protected activity and her termination. Loya responded with jurisdictional evidence of her own. After hearing, the trial court denied DADS' plea without specifying the basis for its ruling.

DISCUSSION

In three issues, DADS argues the trial court erred in denying its plea to the jurisdiction. We conclude the trial court erred in refusing to dismiss Loya's claims for lack of jurisdiction.

Standard of Review

A plea to the jurisdiction based on sovereign immunity challenges a trial court's subject matter jurisdiction. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004)

; Esparza v. Univ. of Texas at El Paso, 471 S.W.3d 903, 908 (Tex.App.–El Paso 2015, no pet.). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Miranda, 133 S.W.3d at 226, 228 ; Esparza, 471 S.W.3d at 908. In a plea to the jurisdiction, a defendant may challenge either the adequacy of the plaintiff's pleadings or the existence of “jurisdictional facts” on the ground that they do not support a finding of subject matter jurisdiction. Miranda, 133 S.W.3d at 226 ; City of El Paso v. Collins, 483 S.W.3d 742, 748–49, 2016 WL 240882, at *4 (Tex.App.–El Paso Jan. 20, 2016, no pet.). The questions whether the plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction, as well as whether undisputed evidence of jurisdictional facts establishes a trial court's lack of jurisdiction, are both questions of law that an appellate court reviews de novo.

Miranda, 133 S.W.3d at 226 ; Collins, 483 S.W.3d at 748–49, 2016 WL 240882, at *4.

In determining whether a plaintiff has carried her burden to allege facts sufficient to establish subject matter jurisdiction, we review the allegations in the pleadings—accepting them as true and construing them in the plaintiff's favor—and any evidence relevant to the inquiry. Miranda, 133 S.W.3d at 226–27

; Esparza, 471 S.W.3d at 908 ; Mayfield v. Tarrant Regional Water Dist., 467 S.W.3d 706, 711 (Tex.App.–El Paso 2015, no pet.). If the evidence raises a fact question on jurisdiction, the plea must be denied. Miranda, 133 S.W.3d at 227–28 ; Esparza, 471 S.W.3d at 908 ;

Mayfield, 467 S.W.3d at 711

. If the defendant's evidence is undisputed and demonstrates a lack of jurisdiction, and if the plaintiff's responsive evidence does not raise a fact question on the jurisdictional issue, the trial court must grant the plea to the jurisdiction as a matter of law. Mayfield, 467 S.W.3d at 711–12.

Sovereign Immunity

As a governmental entity, DADS is generally immune from suit. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex.2015)

; Esparza, 471 S.W.3d at 908 ; see also

Texas Dep't of Aging & Disability Servs. v. Sierra Home Care, L.L.C., 235 S.W.3d 835, 838 (Tex.App.–El Paso 2007, no pet.) (recognizing DADS as a governmental entity subject to sovereign immunity). However, the Legislature has waived immunity for claims properly brought under TCHRA. San Antonio Water Sys., 461 S.W.3d at 135 ; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex.2008) ; Esparza, 471 S.W.3d at 908. But, that waiver extends only “to those suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder.” San Antonio Water Sys., 461 S.W.3d at 135 (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex.2012) ); Esparza, 471 S.W.3d at 908. To establish a trial court's jurisdiction over her TCHRA claim, a plaintiff must plead the elements of her statutory cause of action—the basic facts that make up her prima facie case. See

San Antonio Water Sys., 461 S.W.3d at 135 ; Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 636 ; Esparza, 471 S.W.3d at 908.

Sex Discrimination Claim

Under TCHRA, an employer commits an unlawful employment practice if employer discharges an individual because of her sex. Tex. Lab. Code Ann. ODE ANN. § 21.051(1)

(West 2015). In a discrimination case based on circumstantial evidence, as here, the plaintiff must first establish a prima facie case. Esparza, 471 S.W.3d at 908 ; El Paso Community College v. Lawler, 349 S.W.3d 81, 86 (Tex.App.–El Paso 2010, pet. denied). To establish a prima facie case of gender discrimination, a plaintiff is required to prove: (1) she is a member of a protected class; (2) she was qualified for her position; (3) her employment was terminated; and (4) she was treated less favorably than similarly situated members of the opposing class. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005) (per curiam). DADS contends in part that Loya failed to plead facts and produce evidence on the fourth element, i.e., that she was (i) replaced with a similarly qualified male, (ii) was treated less favorably than males who were similarly situated, or (iii) was otherwise discharged due to her gender. See

Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir.2004) (noting that a plaintiff can meet the fourth element by showing she was replaced with a similarly qualified person who was not a member of the protected class, that similarly situated employees were treated more favorably, or that she was otherwise discharged due to her sex).

Loya did not allege that she was replaced by a male after her termination, and DADS presented evidence that Loya was replaced by a female, who worked with Monardes until he resigned. Thus, the evidence establishes as a matter of law that Loya was not replaced by a similarly qualified male.

That does not end our inquiry, however. To prevail on a claim of gender discrimination, a plaintiff can also prove that she was “treated less favorably than similarly situated members of the opposing class [.]” Monarrez, 177 S.W.3d at 917

; see also

Esparza, 471 S.W.3d at 911. The Texas Supreme Court has held that “[e]mployees are similarly situated if their circumstances are comparable in all material respects [.]” Monarrez, 177 S.W.3d at 917

. The Fifth Circuit has articulated a similar standard, stating that employees are similarly situated if their circumstances are “nearly identical.” See

Perez v. Tex. Dep't of Criminal Justice, Institutional Div., 395 F.3d 206, 213 (5th Cir.2004) ; Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir.2001) ; see also

Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App.–Fort Worth 2006, no pet.) (“More favorable treatment of a person outside a protected class can be used to show discrimination only if the circumstances are nearly identical.”). Loya admits there are no male comparators that would meet this standard because the only other administrative assistants were females.² Consequently, Loya could have neither alleged nor produced any evidence that she was treated less favorably than similarly situated males.

Moreover, we are...