Univ. of Tex. At El Paso v. Ochoa

• Decision Date: 10 July 2013
• Docket Number: No. 08–12–00115–CV.,08–12–00115–CV.
• Parties: The UNIVERSITY OF TEXAS AT EL PASO, Appellant, v. Magdalena OCHOA, Appellee.
• Court: Texas Court of Appeals

410 S.W.3d 327

The UNIVERSITY OF TEXAS AT EL PASO, Appellant,

v.Magdalena OCHOA, Appellee.

No. 08–12–00115–CV.

Court of Appeals of Texas,

El Paso.

July 10, 2013.

Gunnar P. Seaquist, Assistant Attorney General, General Litigation Division, Austin, for Appellant.

Enrique Moreno, El Paso, for Appellee.

Before RIVERA, J., BARAJAS, C.J. (Senior Judge), sitting by assignment, and LARSEN, J. (Senior Judge), sitting by assignment.

OPINION

GUADALUPE RIVERA, Justice.

In this accelerated interlocutory appeal, Appellant, The University of Texas at El Paso (UTEP) appeals the trial court's order denying its plea to the jurisdiction. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Magdalena Ochoa (Ochoa) is a former employee of Human Capital International LLC d/b/a Integrated Human Capital, LLC (IHC), a staff leasing company in El Paso, Texas. UTEP contracted with IHC for the provision of various temporary staffing services on an as-needed basis. Under the contract, IHC would pay the employees it assigned to work at UTEP, and then bill UTEP for the services performed.

On September 15, 2008, pursuant to the contract, IHC assigned Ochoa to provide temporary custodial services at UTEP's facilities. On or around March 26, 2009, Ochoa reported that Emilio Fernandez, her UTEP supervisor, had sexually harassed her. Ochoa made the report to UTEP personnel, Manuela Rocha and Jeff Johnson. On or about March 28, 2009, UTEP ended Ochoa's work assignment and asked her to report back to IHC. UTEP then called IHC to inform them that Ochoa's assignment had been ended due to poor performance. Ochoa subsequently contacted IHC to report the sexualharassment and that she believed she was being retaliated against for reporting the sexual harassment.

On April 8, 2009, UTEP offered to reinstate Ochoa's work assignment under different supervision and to provide her with backpay. Rather than accept a reassignment at UTEP, Ochoa chose to look for other employment.

On January 13,2010, Ochoa sued IHC ¹ and UTEP alleging that Fernandez subjected her to sexual and verbal harassment and that UTEP engaged in sex discrimination and retaliation in violation of the Texas Commission on Human Rights Act (TCHRA). SeeTex. Lab.Code Ann. §§ 21.051, 21.055 (West 2006).² In response, UTEP filed a general denial and a plea to the jurisdiction. Later, UTEP filed an amended plea to the jurisdiction, which included a motion for partial summary judgment. In its plea to the jurisdiction, UTEP asserted that IHC was Ochoa's employer, UTEP had no control over Ochoa's relationship with IHC, and that it was immune from Ochoa's suit under the TCHRA. Ochoa responded that UTEP was her employer for purposes of the TCHRA. Alternatively, Ochoa maintained that a direct employment relationship with UTEP was not required for her to have standing to file suit under the TCHRA. After a hearing, the trial court denied UTEP's plea to the jurisdiction and motion for partial summary judgment. This appeal followed. ³

DISCUSSION

In a single issue on appeal, UTEP contends that the trial court lacked subject matter jurisdiction and erred in denying its plea to the jurisdiction because Ochoa failed to properly invoke the limited waiver of governmental immunity available under the TCHRA.

Standard of Review

A plea to the jurisdiction contests a trial court's subject matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex.2010); Samaniego v. Keller, 319 S.W.3d 825, 828 (Tex.App.-El Paso 2010, no pet.). A trial court's ruling on a plea to the jurisdiction is reviewed de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); De Santiago, 203 S.W.3d at 393. The plaintiff has the burden of pleading facts which affirmatively show that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

Thus, we first consider the plaintiff's petition to determine whether the facts pleaded affirmatively demonstrate that jurisdiction exists. State v. Holland, 221 S.W.3d 639, 642–43 (Tex.2007), citing Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Miranda, 133 S.W.3d at 226, 228. If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the plaintiff should be afforded an opportunity to replead. Holland, 221 S.W.3d at 643;Miranda, 133 S.W.3d at 226–27. However, in some instances, a plea to the jurisdiction may require our consideration of evidence pertaining to jurisdictional facts. Holland, 221 S.W.3d at 643;Miranda, 133 S.W.3d at 227;Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000). “A plea should not be granted if a fact issue is presented as to the court's jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted.” Holland, 221 S.W.3d at 643,citing Miranda, 133 S.W.3d at 227–28.

LIABILITY UNDER THE TCHRA

On appeal, UTEP complains that the trial court erred in denying its plea to the jurisdiction because it is immune from Ochoa's suit under the TCHRA because: (1) UTEP was not Ochoa's employer; and (2) UTEP did not control Ochoa's relationship or access to employment opportunities with IHC.

Sovereign Immunity

Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against the State or certain governmental units unless the State consents to suit. Miranda, 133 S.W.3d at 224. A limited waiver of sovereign immunity exists under the TCHRA when a governmental unit has committed employment discrimination. SeeTex. Lab.Code Ann. § 21.254 (West 2006) (providing that after certain administrative requirements have been met, complainant may bring suit); § 21.051 (prohibiting unlawful employment practices by “employer”); § 21.002(8)(D) (defining “employer” to include a county, municipality, state agency, or state instrumentality); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex.2012) (noting that the TCHRA provides a limited waiver of sovereign immunity).

Employer–Employee Relationship

One of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Tex. Lab.Code Ann. § 21.001(1) (West 2006). Accordingly, courts may look to analogous federal precedent for guidance when interpreting the Act. See NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999); Miles v. Lee Anderson Co., 339 S.W.3d 738, 742 (Tex.App.-Houston [1st Dist.] 2011, no pet.).

In order for an entity to be subject to liability under the TCHRA, a plaintiff must establish that: (1) the entity meets the statutory definition of “employer”; and (2) an employment relationship existed between the parties. See De Santiago, 203 S.W.3d at 395–96;Ancira Enter., Inc. v. Fischer, 178 S.W.3d 82, 88 (Tex.App.-Austin 2005, no pet.). UTEP does not dispute that the first element is satisfied, but instead argues that no employment relationship existed between UTEP and Ochoa because UTEP contracted with IHC for the provision of temporary staffing services.

We apply a hybrid economic realities/common law control test to determine whether an employment relationship exists between the parties for purposes of the TCHRA. See De Santiago, 203 S.W.3d at 395–96;Johnson v. Scott Fetzer Co., 124 S.W.3d 257, 263 (Tex.App.-Fort Worth 2003, pet. denied); Thompson v. City of Austin, 979 S.W.2d 676, 681–82 (Tex.App.-Austin 1998, no pet.). The economic realities component considers whether the alleged employer paid the employee'ssalary, withheld taxes, provided benefits, and set the terms and conditions of employment. De Santiago, 203 S.W.3d at 396. The control component focuses on whether the alleged employer has the right to hire, fire, supervise, and set the alleged employee's work schedule. Id. The right to control an employee's conduct is the more important component of the test. See Deal v. State Farm County Mutual Insurance Company of Texas, 5 F.3d 117, 119 (5th Cir.1993) (citing Fields v. Hallsville Indep. School Dist., 906 F.2d 1017, 1019 (5th Cir.1990), cert. denied,498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991)).

The Economic Realities Component

The record before us establishes that UTEP contracted IHC to provide temporary staffing services on an as-needed basis. IHC hired Ochoa and assigned her to work at UTEP. It was IHC, and not UTEP, that paid Ochoa's salary, withheld taxes, provided benefits, and set the terms and conditions of Ochoa's employment. On appeal, Ochoa does not dispute this evidence, nor does she address the economic realities component of the test. Thus, there is no dispute that the economic realities of Ochoa's relationship with UTEP do not establish that an employment relationship existed between the parties for purposes of the TCHRA.

The Control Component

As to the control component, UTEP maintains that based on its contract with IHC, no employment relationship existed between UTEP and Ochoa. UTEP contends that it could not hire or fire IHC's employees, it was not responsible for providing IHC employees with assignment details, such as the duration of their work assignment or appropriate work attire. UTEP asserts that it merely placed an order for services with IHC and that it did not coordinate any of the services provided by IHC employees.

Ochoa argues that UTEP controlled and supervised the employees IHC assigned to work at UTEP. Ochoa refers us to the deposition testimony of Rosa Santana, Latisha Times, Jeff Johnson, and Emilio Fernandez in support of her argument. Santana, the owner of IHC, explained that once an IHC employee reported to work at UTEP, a UTEP employee or supervisor provided the instruction, direction, and control over the IHC employee. Similarly, Times,...