COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00343-CV
CITY OF GRANBURY APPELLANT
V.
CHRISTINE WILLSEY APPELLEE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. C2017090
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant the City of Granbury perfected this interlocutory appeal from the
trial court’s order denying the City’s plea to the jurisdiction, which was heard
before discovery was conducted. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West Supp. 2017). In two issues, the City argues that the trial
1 See Tex. R. App. P. 47.4. court lacked subject-matter jurisdiction over Appellee Christine Willsey’s claims
for age discrimination, gender discrimination, and retaliation. For the reasons
set forth below, we will affirm in part and reverse and remand in part to allow
Willsey the opportunity to conduct discovery and to replead her claims.
II. BACKGROUND
Willsey worked for the City for over seventeen years, including nine years
as a police officer and almost nine years as a public works inspector. In June
2016, the City notified Willsey that it was eliminating her position as a public
works inspector. The following month, the City demoted Willsey to the position of
permit clerk and began training her for that position. On or about August 23,
2016, a representative of the City asked Willsey how much time remained until
she would be fully vested and eligible for retirement benefits; Willsey responded
that she needed only eighteen months to be fully vested. Three days later, the
City fired Willsey, who was forty-eight years old.
Willsey thereafter timely filed a charge of discrimination jointly with the
Equal Employment Opportunity Commission (EEOC) and the Texas Workforce
Commission Civil Rights Division. Willsey received notice of her right to sue and
timely filed suit against the City.
In her original petition, Willsey alleged that the City discriminated against
her by eliminating her position as a public works inspector, by demoting her to a
permit clerk, by not allowing her to transfer from the permit clerk position, by not
2 giving her a chance to succeed in the permit clerk position, and by terminating
her. Willsey’s petition pleaded the following claims against the City:2
AGE & GENDER
19. Plaintiff hereby incorporates all the preceding paragraphs [which set forth the facts summarized above] as if set out in full.
20. Defendant’s actions and omissions constitute age discrimination and sex discrimination in violation of Texas Labor Code §[]21.051 et seq.
21. Plaintiff resisted and reported Defendant’s discriminatory actions and ultimately filed a charge of discrimination with the EEOC.
22. Defendant took these actions against Plaintiff because of her age and/or gender.
RETALIATION
23. Plaintiff hereby incorporates all the preceding paragraphs as if set out in full.
24. Defendant’s actions and omissions constitute retaliation discrimination in violation of Texas Labor Code §[]21.055 et seq.
The City filed a combined answer and plea to the jurisdiction and included
special exceptions to Willsey’s petition. The City’s plea to the jurisdiction
challenged the sufficiency of Willsey’s pleadings. The City argued that Willsey
“attempts to allege that the City discriminated against her on the basis of age and
gender[,] but she does not properly allege and she cannot allege or prove either
of the two alternative methods of proof in discriminatory treatment cases.” The
2 Because the City challenges the sufficiency of Willsey’s pleadings, we set forth her claims exactly as they appear in her original petition.
3 City further argued in its plea to the jurisdiction that Willsey had not alleged a
prima facie case against the City for age discrimination, gender discrimination, or
retaliation. The City attached the affidavit of Steven Roberts, the City’s Director
of Human Resources, who averred as follows:
I was employed as the Director of Human Resources when Christine Willsey was terminated[,] and I am aware of the efforts that the City took to reorganize after Ms. Willsey left the employ of the City. Ms. Willsey’s job functions were unique and tailored to Ms. Willsey’s training and licensure. At the time she was terminated, Ms. Willsey was performing inspection work for public works projects, performing duties as a permit clerk, and performing pest control measures as she was licensed to do. Upon her termination, all of her duties were absorbed by people already employed by the City. Specifically, City employees Jim Cook and Eric Swaim now perform public works inspections, Donna Irwin was transferred from a different City department to perform the permit clerk functions, and Aaron Heathington and Heather Walls are now qualified to perform and do perform the pest control functions. No one person was hired to fill Ms. Willsey’s exact position, but rather the functions that Ms. Willsey handled are being handled by other City employees.
Roberts further averred that the employees who assumed Willsey’s duties were
the following ages: Cook was 70, Swaim was 42, Irwin was 46, Heathington was
34, and Walls was 29. Roberts stated that both Irwin and Walls are the same
gender as Willsey.
Willsey filed a response to the City’s plea to the jurisdiction and attached
various documents, including the charge of discrimination that she had filed with
the EEOC and her declaration in support of her response. Willsey’s response
provided additional facts, including the following:
7. There were approximately five (5) inspectors working for Defendant in May 2016. Plaintiff was the only female inspector.
4 Therefore[,] on or about June 24, 2016, Defendant chose the only female to be forced to take a demotion to a Permit Clerk position, which is a secretarial type position. In addition to Plaintiff, Defendant eliminated an inspector position of a male employee (John Grindstaff)[,] who is believed to be approximately 72 years old. Therefore[,] Defendant eliminated the positions of the only female inspector and two older inspectors. This did not affect the other younger male inspectors.
....
23. After listing numerous specific harms leading up to and including her termination, Plaintiff asserts in the sworn Charge the following:
DISCRIMINATION STATEMENT: I believe that I was discriminated against because of my age, 48, for taking FMLA time, and because of my gender, female, and retaliated against for opposing a discriminatory act, in violation of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the FMLA, and the Texas Labor Code, Chapter 21.
[26.]g. With regard to Plaintiff’s [r]etaliation claim, Defendant continued pursuing Plaintiff after her termination [by] making up false accusations against her and [by] seeking criminal charges against her when the City claimed Plaintiff had stolen records. This[,] along with other possible actions by Defendant to interfere with Plaintiff’s employment prospects[,] may be the basis of a retaliation action. [Citation omitted.]
In the addendum to the charge of discrimination that Willsey filed with the EEOC,
she stated:
7. On or about August 23, 2016, I asked Steve Roberts (HR Director) what other jobs were available in the City. He said there were only two openings, one was a Water Treatment job[,] but he said I was not qualified. I informed Mr. Roberts that I was qualified. He then told me that I could apply for that job[,] but since I was on probation[,] he would have to talk to the City Manager about it.
5 The trial court heard the City’s plea to the jurisdiction before the parties
conducted discovery. After hearing argument, the trial court denied the City’s
plea to the jurisdiction without specifying its reasoning. The City then perfected
this interlocutory appeal.
III. STANDARD OF REVIEW AND THE LAW ON IMMUNITY FROM SUIT AND PROVING DISCRIMINATION
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for
lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004). A plea to the jurisdiction may be utilized to challenge whether the
plaintiff has met its burden of alleging jurisdictional facts or to challenge the
existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226–27 (Tex. 2004). We review de novo a trial court’s ruling on
a plea to the jurisdiction. Id. at 228.
A claim of governmental immunity from suit or liability is properly asserted
in a plea to the jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 635–36 (Tex. 2012). A governmental unit is immune from both suit
and liability unless it waives immunity. See Tex. Gov’t Code Ann. § 311.034
(West 2013); Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). In
considering whether a governmental unit has waived sovereign immunity, we
consider the facts alleged by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties. See Tex. Nat. Res.
Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001).
6 The Texas Commission on Human Rights Act (TCHRA) waives
governmental immunity but only in those instances in which “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 stating a claim under the TCHRA,
the governmental entity’s immunity from suit has not been waived. Id. at 637.
Section 21.051 of the TCHRA provides that an employer commits an
unlawful employment practice if it fails or refuses to hire, discharges, or otherwise
discriminates in any manner against an employee in connection with
compensation or the terms, conditions, or privileges of employment because of
the employee’s race, color, disability, religion, sex, national origin, or age. Tex.
Lab. Code Ann. § 21.051(1) (West 2015). A TCHRA plaintiff can prove
discrimination by either direct or circumstantial evidence. Garcia, 372 S.W.3d at
634. “The first method, rather straightforward, involves proving discriminatory
intent via direct evidence of what the defendant did and said.” Id. But because
direct evidence of discrimination is often “hard to come by,” the plaintiff can also
rely on circumstantial evidence using “the burden-shifting mechanism of
McDonnell Douglas.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 1824 (1973)). “Under this framework, the plaintiff is
entitled to a presumption of discrimination if she meets the ‘minimal’ initial burden
of establishing a prima facie case of discrimination.”3 Id. “Although the precise
3 Once the plaintiff establishes a prima facie case, the burden shifts to the governmental entity to rebut the presumption of discrimination by articulating a 7 elements of this showing will vary depending on the circumstances, the plaintiff’s
burden at this stage of the case is not onerous.” Garcia, 372 S.W.3d at 634
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct.
1089, 1094 (1981)).
IV. WHETHER WILLSEY PLEADED OR CAN PLEAD A CLAIM UNDER THE TCHRA TO WAIVE THE CITY’S IMMUNITY FROM SUIT
In its first issue, the City argues that the trial court did not have subject-
matter jurisdiction over Willsey’s claims for age and sex discrimination because
the evidence demonstrates that “she was not replaced by someone outside the
protected class[es]”—that is, by a younger person or a male. In its second issue,
the City argues that the trial court did not have subject-matter jurisdiction over
any of Willsey’s claims because she did not plead direct evidence of
discrimination and because she failed to plead all the elements of a prima facie
case for each of her claims. The City’s plea to the jurisdiction and arguments on
appeal challenge both the sufficiency of Willsey’s pleadings (via its second issue)
and the existence of jurisdictional facts (via its first issue). We discuss each
separately.
“legitimate, nondiscriminatory reason” for the employment action. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. It then becomes the plaintiff’s burden to show that the reason offered was a pretext for discrimination. Id. at 805, 807, 93 S. Ct. at 1825–27. However, only the prima facie elements of the plaintiff’s case are jurisdictional. Garcia, 372 S.W.3d at 635–38; Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 343 n.2 (Tex. App.—Dallas 2013, no pet.).
8 A. The Sufficiency of the Pleadings4
When a plea to the jurisdiction challenges the pleadings, we determine
whether the plaintiff has met its burden of alleging facts that affirmatively
demonstrate that the trial court has subject-matter jurisdiction. Miranda, 133
S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff, accept
all factual allegations as true, and look to the plaintiff’s intent. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings are
insufficient to establish the trial court’s jurisdiction but do not affirmatively
demonstrate an incurable defect in jurisdiction, the issue is one of pleading
sufficiency, and the plaintiff should be given an opportunity to amend. Miranda,
133 S.W.3d at 226–27. But if the pleadings affirmatively negate the existence of
jurisdiction altogether, then a plea to the jurisdiction may be granted without
allowing a (necessarily futile) chance to amend. See id. at 227.
4 Generally, we first address the issue that offers the greatest potential relief if successful, which, in this case, would be the City’s first issue negating the existence of jurisdictional facts that, if true, would require this court to reverse and render judgment dismissing two of Willsey’s claims. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (explaining that generally, when a party presents multiple grounds for reversal of a judgment on appeal, appellate courts should first address issues that would require rendition). We do not follow that format here because the City’s first issue incorrectly treats this as a replacement case, which is explained in more detail below in the elements of a prima facie case for age discrimination, and because we ultimately hold that Willsey should be given an opportunity to replead her age discrimination, gender discrimination, and retaliation claims after discovery is conducted.
9 1. Direct Evidence
In the first portion of its second issue, the City argues that the trial court did
not have subject-matter jurisdiction over any of Willsey’s claims because she did
not plead direct evidence of discrimination. As set forth above, Willsey can prove
her discrimination claims by either direct or circumstantial evidence. See Garcia,
372 S.W.3d at 634. Because Willsey was not required to plead direct evidence
of discrimination, we overrule the first portion of the City’s second issue
challenging Willsey’s failure to plead direct evidence.
2. Prima Facie Case
a. Discrimination Claims
In the latter part of its second issue, the City argues that Willsey did not
allege a prima facie case of age and gender discrimination against the City and
sets forth the elements to establish a general violation of the TCHRA—that the
plaintiff must show that she was (1) a member of the class protected by the
TCHRA, (2) qualified for her employment position, (3) terminated by the
employer, and (4) treated less favorably than similarly situated members of the
opposing class. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008).
The City contends that Willsey did not establish the second and fourth elements
with respect to her age and gender discrimination claims. We will address the
pleading sufficiency of Willsey’s age and gender discrimination claims separately.
10 i. Age Discrimination Claim
For an age discrimination case, we must first determine whether the
terminated employee is urging a true replacement claim or a reduction-in-force
claim. See generally Garcia, 372 S.W.3d at 639, 642 (stating that the same
factors cannot be utilized when an employee is not replaced as when an
employee is replaced). The Texarkana Court of Appeals has set forth the
following test for determining whether an employee was replaced:
In the context of age discrimination, a terminated employee is replaced by another person when the terminated employee’s position is filled by that person and that person is assigned the terminated employee’s former job duties. Consequently, a terminated employee is not replaced by a person who temporarily assumes the terminated employee’s job duties or a person who only takes over a part of those duties. When a terminated employee’s job duties are distributed among other employees after termination, those employees do not replace the terminated employee. This is not to say, however, that to come under this provision of the [Texas] Labor Code, a terminated employee must be replaced by a new hire. It is possible for a terminated employee to be replaced by someone who already works for the employer so long as that employee completely takes over the terminated employee’s job duties. This could be a common occurrence in a large company or an entity where promoting from within is the preferred method of hiring. A determination of whether an employee was actually replaced by another requires an inquiry into the job position and duties performed by the terminated employee[] and an inquiry into the work performed by the person who is alleged to have replaced that employee.
Baker v. Gregg Cty., 33 S.W.3d 72, 81–82 (Tex. App.—Texarkana 2000, pet.
dism’d) (internal footnote omitted).
Here, the affidavit attached to the City’s plea demonstrates that Willsey’s
job duties—which included performing inspections for public work projects, acting
11 as a permit clerk, and performing pest control—were distributed among five
individuals who ranged in age from 29 to 70. Because no one employee
completely took over Willsey’s job duties, we treat this as a reduction-in-force
case. See Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 303 (Tex. App.—Fort
Worth 2014, pet. denied) (determining that elimination of one employee’s position
in food prep constituted a reduction in force because duties performed by food-
prep position were distributed to other positions). Accordingly, we evaluate
whether Willsey pleaded a prima facie case of age discrimination under the
modified prima facie standard utilized in reduction-in-force cases. See id.
(concluding that modified prima facie standard applied in reduction-in-force
case).
In a reduction-in-force case, a plaintiff makes out a prima facie case of age
discrimination by showing the following: (1) that she is within the protected age
group; (2) that she was qualified for her employment position; (3) that she has
been adversely affected by the employer’s decision; and (4) that there is
“evidence, circumstantial or direct, from which a factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision at
issue.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996);5 see
also Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 436 (Tex. App.—Houston [14th
5 Because the TCHRA was enacted to coordinate Texas law with federal anti-discrimination law, we may look to analogous federal statutes and cases interpreting those statutes in our analysis. See In re United Servs. Auto Ass’n, 307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding).
12 Dist.] 2002, pet. denied) (discussing and utilizing Fifth Circuit’s modified prima
facie standard in cases involving a general reduction in workforce). To show that
she was qualified for the position she held at the time she was terminated, a
plaintiff should show that she continued to possess the necessary qualifications
for her job. See Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 n.3 (5th
Cir. 1988). To set forth the fourth prong, a terminated employee must plead that
she was either (1) replaced by someone outside the protected class, (2) replaced
by someone younger, or (3) otherwise discharged because of her age.
Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). The City
challenges only two of the four elements of a prima facie case of age
discrimination—that Willsey did not sufficiently plead her qualifications and that
she did not sufficiently plead the fourth prong, which under the modified prima
facie standard is sufficiently pleaded if a plaintiff alleges that she was “otherwise
discharged because of her age.” See id.
As set forth above, Willsey alleged that “Defendant’s actions and
omissions constitute age discrimination . . . in violation of Texas Labor Code
§[]21.051 et seq.” and that “Defendant took these actions against Plaintiff
because of her age.” In her response to the City’s plea to the jurisdiction, Willsey
alleges that there were five public works inspectors; that the City eliminated her
inspector position when she was forty-eight years old, as well as the position of a
seventy-two-year-old inspector; that the City did not eliminate the positions of
younger inspectors; and that the City “eliminated positions of the only female
13 inspector [Willsey] and two older inspectors [Willsey and Grindstaff].” Willsey
also alleged that she was terminated by Roberts three days after he had asked
her how much time she had left before she was eligible to receive retirement
benefits. Willsey thus alleged facts to support the fourth element—that she was
otherwise discharged because of her age. With regard to the second element—
that she was qualified for her position—although Willsey pleaded that she had
been a public works inspector for almost nine years, she did not plead that she
was qualified for her position as a permit clerk, which she held at the time of her
termination, and included only a conclusory statement that she was qualified for
the water treatment position that she wanted to apply for. See Durham v.
Ascension Parish School Bd., 624 F. App’x 237, 238 (5th Cir. 2015) (holding that
appellant’s bare pleadings, which did not state that she was qualified for the
position, failed to allege facts to support her claim for age discrimination);
Creaghe v. Albemarle Corp., 98 F. App’x 972, 975 (5th Cir. 2004) (holding that
appellant’s conclusory statement that he was qualified for another position failed
to satisfy qualification element of age discrimination). Willsey therefore did not
sufficiently allege facts to support the second element of her age discrimination
claim.
Willsey’s pleadings fail to state a prima facie case for age discrimination in
the reduction-in-force context and thus do not state a claim for which immunity is
waived under the TCHRA. See Garcia, 372 S.W.3d at 637 (stating that failure to
demonstrate elements of a prima facie case means that plaintiff never gets
14 presumption of discrimination and that trial court has no jurisdiction); Univ. of
Tex. at El Paso v. Esparza, 510 S.W.3d 147, 158 (Tex. App.—El Paso 2016, no
pet.) (holding that terminated employee did not sufficiently plead age
discrimination claim). Accordingly, the trial court erred to the extent it denied the
City’s plea to the jurisdiction challenging Willsey’s pleadings as to her age
discrimination claim.
ii. Gender Discrimination Claim
To establish a prima facie case of gender discrimination, a plaintiff is
required to prove that (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). The City
challenges only two of the four elements of a prima facie case of age
discrimination—that Willsey did not sufficiently plead her qualifications and that
she did not sufficiently plead that she was treated less favorably than similarly
situated members of the opposing class.
Similar to the pleadings on her age discrimination claim, Willsey’s
pleadings on her gender claim state that “Defendant’s actions and omissions
constitute . . . sex discrimination in violation of Texas Labor Code §[]21.051 et
seq.” and that “Defendant took these actions against Plaintiff because of her . . .
gender.” Willsey alleged the same set of facts for both her age discrimination
claim and her gender discrimination claim—that she was the only female
15 inspector and that the City only eliminated her position and the position of a
seventy-two-year-old male inspector. These allegations support the fourth
element of her age discrimination claim rather than the fourth element of her
gender discrimination claim. She did not plead additional facts related to her
gender discrimination claim and thus did not plead facts to support the fourth
element of a prima facie case of gender discrimination. Moreover, as discussed
above, Willsey did not plead that she was qualified for her position as a permit
clerk—the second element of a prima facie case of gender discrimination. At this
stage of the proceedings, Willsey’s pleadings fail to state a prima facie case for
gender discrimination and thus do not state a claim for which immunity is waived
under the TCHRA. See Garcia, 372 S.W.3d at 637; Esparza, 510 S.W.3d at 158
(holding that terminated employee did not sufficiently plead gender discrimination
claim). The trial court therefore erred to the extent it denied the City’s plea to the
jurisdiction challenging Willsey’s pleadings as to her gender discrimination claim.
b. Retaliation Claim
The City also argues in its second issue that Willsey failed to sufficiently
allege a claim for retaliation because she failed to allege what she did or said that
allegedly caused the City to retaliate against her.
To make a prima facie showing of each element of retaliation under the
TCHRA, Willsey must show (1) participation in a protected activity, (2) an
adverse employment action, and (3) a causal link between the activity and the
adverse employment action. See San Antonio Water Sys. v. Nicholas, 461
16 S.W.3d 131, 137 (Tex. 2015); see also Cabral v. Brennan, 853 F.3d 763, 766–67
(5th Cir. 2017). An employee engages in a protected activity when she “opposes
a discriminatory practice”; “makes or files a charge”; “files a complaint”; or
“testifies, assists, or participates in any manner in an investigation, proceeding,
or hearing.” Tex. Lab. Code Ann. § 21.055 (West 2015). To determine whether
an adverse employment action was taken as a result of retaliation at the prima
facie stage, we focus on the final decisionmaker. See Gee v. Principi, 289 F.3d
342, 346 (5th Cir. 2002). The plaintiff must show that the final decisionmaker
was aware of the plaintiff’s protected activity: “If an employer is unaware of an
employee’s protected activity at the time of the adverse employment action, the
employer plainly could not have retaliated against the employee based on that
conduct.” Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168
(5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). Moreover, we can consider
only events that took place after a plaintiff engaged in a protected activity in
deciding whether the defendant took an adverse employment action against the
plaintiff that has a causal link to the protected activity. See Metro. Transit Auth.
of Harris Cty. v. Ridley, No. 01-17-00081-CV, 2017 WL 3910160, at *6 (Tex.
App.—Houston [1st Dist.] Sept. 7, 2017, pet. denied).
The City argues that Willsey failed to allege elements one and three for a
prima facie case of retaliation. Willsey’s response to the City’s plea and the
addendum to the charge of discrimination that Willsey filed with the EEOC states
that she took FMLA time and was retaliated against “for opposing a
17 discriminatory act.” Willsey’s petition, under the age and gender heading that is
incorporated by reference in her retaliation section, states that she resisted and
reported the City’s “discriminatory actions and ultimately filed a charge of
discrimination.” And then Willsey states in her response to the City’s plea that
the City pursued her after her termination by “making up false accusations
against her and seeking criminal charges against her when the City claimed [she]
had stolen records” and that such actions by the City in interfering with her future
employment prospects “may be the basis of a retaliation action.”
Even construing Willsey’s pleadings liberally in her favor, we are left to
guess what the protected activity is that Willsey participated in prior to her
termination that the final decisionmaker for the City was aware of and the causal
link between that protected activity and her termination. Because Willsey’s
pleadings do not plead a prima facie case of retaliation against the City, Willsey
has not stated a claim for which immunity is waived under the TCHRA. See
Garcia, 372 S.W.3d at 637; Esparza, 510 S.W.3d at 160 (holding that terminated
employee did not sufficiently plead retaliation claim). Accordingly, the trial court
erred to the extent it denied the City’s plea to the jurisdiction challenging
Willsey’s pleadings as to her retaliation claim.
c. Result and Remedy
Having held that Willsey’s pleadings are insufficient to establish the trial
court’s jurisdiction over her age discrimination, gender discrimination, and
retaliation claims, we sustain the latter portion of the City’s second issue arguing
18 that Willsey failed to plead all the elements of a prima facie case for each of her
claims. We must now determine whether Willsey’s pleadings affirmatively
demonstrate an incurable defect in jurisdiction. See Miranda, 133 S.W.3d at
226–27. The City does not argue that Willsey’s pleadings affirmatively reveal
incurable jurisdictional defects,6 nor have we found any. The appropriate remedy
in cases like this is to remand the case to permit Willsey to amend her pleadings.
See Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (“When
this Court upholds a plea to the jurisdiction on sovereign immunity grounds, we
allow the plaintiff the opportunity to replead if the defect can be cured.”); Esparza,
510 S.W.3d at 157–58, 160 (allowing terminated employee the opportunity to
replead because it was at least plausible that she might be able to replead her
case to meet the elements of her claims for age discrimination, gender
discrimination, and retaliation).
B. The Existence of Jurisdictional Facts
The City argues in its first issue that as to the fourth element of Willsey’s
age and gender discrimination claims, she cannot allege that she was treated
less favorably than similarly situated members of the opposing class as a matter
of law “because she was not replaced by someone outside the protected class.”
6 The prayer in the City’s brief states, “If Issue 2 is sustained, the City asks this Court to remand the case to the trial court specifically ordering Appellee to plead sufficient facts to allege the respective prima facie case for discriminatory treatment and retaliation.”
19 When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the trial court must consider relevant evidence submitted by the parties to
resolve the jurisdictional issues raised, as the trial court is required to do.
Miranda, 133 S.W.3d at 227. “We do not adjudicate the substance of the case
but instead determine whether a court has the power to reach the merits of the
claim.” Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d 426, 430
(Tex. App.—Houston [1st Dist.] 2015, pet. denied). “Our ultimate inquiry is
whether the particular facts presented, as determined by the foregoing review of
the pleadings and any evidence, affirmatively demonstrate a claim within the trial
court’s subject-matter jurisdiction.” Tex. Dep’t of State Health Servs. v.
Balquinta, 429 S.W.3d 726, 738 (Tex. App.—Austin 2014, pet. dism’d). If the
evidence raises a fact question on jurisdiction, the trial court must deny the plea
and let the factfinder resolve the question. Miranda, 133 S.W.3d at 227–28. In
contrast, if the evidence is undisputed or fails to raise a fact question regarding
jurisdiction, the trial court must rule on the jurisdictional plea as a matter of law.
Id. at 228.
But when a plea to the jurisdiction requires examining evidence, a trial
court has the discretion to decide “whether the jurisdictional determination should
be made at a preliminary hearing or await a fuller development of the case.” Id.
at 227; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)
(“Whether a determination of subject-matter jurisdiction can be made in a
preliminary hearing or should await a fuller development of the merits of the case
20 must be left largely to the trial court’s sound exercise of discretion.”). A trial court
may postpone its consideration of a jurisdictional plea so that the plaintiff has
sufficient opportunity to produce evidence that might raise a fact issue. Combs v.
City of Webster, 311 S.W.3d 85, 91 n.1 (Tex. App.—Austin 2009, pet. denied)
(citing Miranda, 133 S.W.3d at 227). Because a trial court should make a
jurisdictional determination as early as practicable, the court should allow
“reasonable opportunity for targeted discovery” if necessary to illuminate
jurisdictional facts. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491
(Tex. 2012) (quoting Miranda, 133 S.W.3d at 233), cert. denied, 569 U.S. 947
(2013). Whether to allow such discovery and to give the parties more time to
gather evidence and prepare for the hearing on the plea is within the trial court’s
broad discretion. Garcia, 372 S.W.3d at 642–43 (citing Miranda, 133 S.W.3d at
229, 233).
As discussed above, because this is a reduction-in-force case rather than
a true replacement case, we utilize a modified prima facie standard in which the
fourth element of an age discrimination claim—that there is “evidence,
circumstantial or direct, from which a factfinder might reasonably conclude that
the employer intended to discriminate in reaching the decision at issue”—can be
established by Willsey alleging that she was “otherwise discharged because of
her age.” See Nichols, 81 F.3d at 41; Bodenheimer, 5 F.3d at 957; see also
Russo, 93 S.W.3d at 436. Willsey thus does not need to allege that she was
21 replaced by someone outside the protected class in order to plead a prima facie
case of age discrimination.
Similarly, the fourth element of a prima facie case of gender discrimination
requires that Willsey demonstrate that she was treated less favorably than
similarly situated members of the opposing class. See Monarrez, 177 S.W.3d at
917. Willsey thus does not need to allege that she was replaced by someone
outside the protected class in order to plead a prima facie case of gender
discrimination. See id.
Because the City challenges Willsey’s failure to plead the existence of
jurisdictional facts solely based on a true replacement theory—which is not the
type of case presented here—and because the trial court had the discretion to
decide to await a fuller development of the case, we hold that the trial court did
not err by denying the City’s plea to the jurisdiction to the extent it challenged the
existence of jurisdictional facts on Willsey’s age and gender discrimination
claims. Based on the record before us, both Willsey’s age discrimination claim
and her gender discrimination claim may be fleshed out once discovery has been
conducted.7 See Campos v. Tex. Dep’t of Crim. Justice, 385 S.W.3d 35, 42
(Tex. App.—Corpus Christi 2009, no pet.) (instructing trial court to allow
discovery to “flesh out these issues” because “appellants’ ability to state a claim
7 Willsey mentioned the lack of discovery at the hearing on the City’s plea, stating that “this is more or less a motion for summary judgment, and[] therefore, we have to be given time to do discovery so we can present our evidence.”
22 is hampered by the lack of discovery in this case, and discovery should be
permitted before appellants are required to replead”). Accordingly, we overrule
the City’s first issue.
V. CONCLUSION
Having overruled the City’s first issue, we affirm the trial court’s denial of
the portion of the City’s plea to the jurisdiction asserting a lack of jurisdictional
facts to establish that Willsey was not replaced by someone outside the
protected age and gender classes. Having sustained the latter portion of the
City’s second issue, we reverse the trial court’s denial of the City’s plea to the
jurisdiction challenging the sufficiency of Willsey’s pleadings to allege every
element of a claim under the TCHRA for age discrimination, gender
discrimination, and retaliation, and we remand this case to the trial court to
provide Willsey with the opportunity to replead these claims and for further
proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d).
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
DELIVERED: March 15, 2018