Univ. of Tex. at El Paso v. Esparza

• Decision Date: 28 September 2016
• Docket Number: No. 08-14-00314-CV,08-14-00314-CV
• Citation: 510 S.W.3d 147
• Parties: The UNIVERSITY OF TEXAS AT EL PASO, Appellant, v. Diana Ruiz ESPARZA, Appellee.
• Court: Texas Court of Appeals

510 S.W.3d 147

The UNIVERSITY OF TEXAS AT EL PASO, Appellant,

v.Diana Ruiz ESPARZA, Appellee.

No. 08-14-00314-CV

Court of Appeals of Texas, El Paso.

September 28, 2016

Enrique Varela, Office of the Attorney General, General Litigation Division, Austin, TX, for Appellant.

Enrique Lopez, El Paso, TX, for Appellee.

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

OPINION

ANN CRAWFORD McCLURE, Chief Justice

In a prior appeal before this court involving the same parties, we considered Diana Esparza's claims that the University of Texas at El Paso (UTEP): (i) discriminated against her based on age, national origin, and gender; (ii) subjected her to a hostile work environment; and (iii) retaliated against her for filing a charge of discrimination. Esparza v. University of Texas at El Paso , 471 S.W.3d 903 (Tex.App.–El Paso 2015, no pet.). All of the claims at issue in the prior appeal arose from alleged actions that took place while she was still employed as a staff interior designer for UTEP. Id . In this case, we consider whether a different trial court, in a different lawsuit, should have granted a plea to the jurisdiction for claims relating to her termination from that job. For the reasons noted below, we affirm in part and reverse in part the denial of UTEP's plea to the jurisdiction.

FACTUAL SUMMARY

As we outlined in our previous opinion, Diana Esparza worked for UTEP as a staff designer. Id . Beginning at least by 2008 her employment tenure was marked with difficulties, as evidenced by several written warnings and suspensions. Those difficulties resulted in two prior lawsuits: a 2010 lawsuit filed in federal court with claims under the federal Equal Pay Act, and a 2012 lawsuit filed in state court under the Texas Commission of Human Rights Act (TCHRA). TEX.LAB.CODE ANN. §§ 21.051, 21.055 (West 2015). The relevant events from those prior cases, and the events leading to the third lawsuit which is now before us, are as follows:

• November 19, 2010. The United States District Court for the Western District of Texas dismissed Esparza's 2010 Equal Pay Act lawsuit against UTEP because she could not identify any male employees who were paid more but who did the same job, requiring equal skill, effort, and responsibilities under similar working conditions.

• February 21 2012. Esparza filed her original petition in the 210th District Court against UTEP alleging that she was paid less than male employees in her department; she was given warnings or suspensions because of her age, sex, or national origin; she was exposed to a hostile work environment; and she was retaliated against in violation of TCHRA.

• July 17, 2013. The 210th District Court signed its final judgment of dismissal as to the TCHRA lawsuit based on UTEP's plea to the jurisdiction.

• August 14, 2013. Esparza filed her notice of appeal from the 210th District Court's final judgment.

• September 10, 2013. Esparza received a notice of UTEP's intent to terminate her employment and she was placed on indefinite administrative leave by her department head. The stated reason for the proposed termination was poor job performance.

• September 18, 2013. Esparza filed a charge of discrimination contending she was placed on indefinite administration leave based on her national origin, and in retaliation for her having filed a previous charge of discrimination.

• September 20, 2013. Esparza's employment with UTEP was terminated.

• October 28, 2013. Esparza filed a charge of discrimination contending she was placed on indefinite leave and then terminated based on her national origin, and in retaliation for having filed a previous charge of discrimination.

• November 22, 2013. In an internal appeals hearing from her termination, Esparza claimed UTEP's hearing officer denied her the ability to present evidence and call witnesses, while giving that right to UTEP.

• February 20, 2014. Esparza filed another charge of discrimination based on sex, national origin, age, and retaliation. It contended she was denied the opportunity to "present witnesses [and] evidence that my termination was in retaliation for my prior EEO activity." She specifically claimed the hearing officer's actions were in retaliation for her filing the 2010 and 2013 charges of discrimination.

Esparza filed her present lawsuit on November 18, 2013, in County Court at Law Number Three. This case complained only of her termination from UTEP, including the post-termination hearing. Her first amended petition alleged national origin discrimination under Count One, age discrimination under Count Two, and retaliation under Count Three.

UTEP filed a plea to the jurisdiction which was amended once.¹ The amended plea attached jurisdictional evidence including some of the live pleadings and the final judgments from the two prior lawsuits. It also attached Esparza's deposition taken in the federal lawsuit, and the various charges of discrimination that she filed. The plea contended that Counts One and Two (the age and national origin claims) failed as matter of law because the existence of comparable employees, essential to her claim, was resolved against her in the two prior lawsuits. The plea also contended that Esparza failed to plead any facts establishing a prima facie retaliation or discrimination claim. UTEP further contended that the retaliation claim would fail in any event based on the amount of time between the termination and the date of the protected activity.

The trial court denied the plea without explanation. UTEP appeals that ruling in three issues for review. Issue One contends that Esparza's claims are collaterally estopped because the two previous lawsuits established that she has no similarly-situated employees, thus she cannot establish a prima facie TCHRA case. Issue Two alleges that Esparza did not plead facts to establish her TCHRA claims. Finally, Issue Three complains that Esparza did not establish a prima facie case of retaliation because she failed to establish a causal connection between the actions of which she now complains and her protected activities.

PLEAS TO THE JURISDICTION IN TCHRA CLAIMS

Governmental entities such as UTEP are generally immune from suit. See San Antonio Water Sys. v. Nicholas , 461 S.W.3d 131, 135 (Tex.2015) ; Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex.2004). However, the Legislature has waived immunity for claims properly brought under TCHRA. Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 636 (Tex.2012). 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." Garcia , 372 S.W.3d at 636. Absent a pleading making out a prima facie case, the State's immunity from suit has not been waived. Id .

A governmental entity may challenge the existence of that prima facie case through a plea to the jurisdiction. Miranda , 133 S.W.3d at 225–26 ; Univ. of Texas at El Paso v. Ochoa , 410 S.W.3d 327, 330 (Tex.App.–El Paso 2013, pet. denied).

The plea might attack the face of the pleading, but it may also include jurisdictional evidence which thereby place into issue the existence of a jurisdictional fact. Miranda , 133 S.W.3d at 226–27 ; College of the Mainland v. Glover , 436 S.W.3d 384, 391 (Tex.App.–Houston [14th Dist.] 2014, pet. denied).

When a plea to the jurisdiction challenges the pleading itself, we determine if the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Id . We accept the allegations in the pleadings as true and construe them in the plaintiff's favor. Miranda , 133 S.W.3d at 226–27 ; Mayfield v. Tarrant Regional Water Dist. , 467 S.W.3d 706, 715 (Tex.App.–El Paso 2015, no pet.). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction, but also do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency. County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex.2002). In that instance, the plaintiff should be afforded the opportunity to amend. Id . However, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction can be granted without allowing an opportunity to amend. Id . ; Mayfield , 467 S.W.3d at 715.

"However, if 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 raised, as the trial court is required to do." Miranda , 133 S.W.3d at 227. "If there is no question of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law." City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex.2009). "If, however, the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the jurisdiction, and the issue must be resolved by the fact finder." Id. "This standard mirrors our review of summary judgments" where the reviewing court takes as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Id.

Wrongful Termination and Issue Preclusion

Counts One and Two of the petition alleged that Esparza was terminated because of either her age, or national origin. UTEP contends that the undisputed jurisdictional evidence demonstrates that she could never prove either of those contentions because she had no similarly situated comparable employees upon which to base her claim. The jurisdictional evidence before the trial court consisted of the final judgments from the federal Equal Pay Act suit and the TCHRA suit in the 210th District Court. The federal Equal Pay Act judgment was expressly based on the lack of comparable employees. We earlier affirmed the dismissal of a disparate pay claim in the TCHRA suit based on the lack of comparable male co-workers. Esparza , 471 S.W.3d at...