City of Richland Hills, Texas v. Barbara Childress

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00334-CV ___________________________

CITY OF RICHLAND HILLS, TEXAS, Appellant

V.

BARBARA CHILDRESS, Appellee

On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067-305366-19

Before Sudderth, C.J.; Kerr and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellee Barbara Childress, former police chief of Appellant City of Richland

Hills, Texas, sued the City for age discrimination after the City terminated her

employment. In this accelerated appeal,1 the City complains that the trial court erred

by denying its motion for summary judgment that asserted a plea to the jurisdiction

and challenged Childress’s damages claim for lost wages. Because Childress provided

sufficient evidence to raise a fact question on her age-discrimination claim, and

because the City fails to show that evidence of compensable lost wages is a

jurisdictional prerequisite to this suit, the trial court did not err by denying the City’s

plea to the jurisdiction. Therefore, we affirm the trial court’s order to the extent that

it denied dismissal of Childress’s age-discrimination claim for want of jurisdiction.

II. BACKGROUND

After serving nearly thirty-four years as the City’s Chief of Police, Childress was

fired on March 29, 2018, at age sixty-nine and replaced by an employee who was

twenty-five years younger.2 Childress filed a charge of discrimination with the Texas

Workforce Commission, received a notice of right to sue, and then filed the

underlying suit against the City in January 2019, claiming age discrimination and

1 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 28.1(a). 2 In total, Childress had worked for the City for forty-eight years; before becoming police chief, Childress had also worked as a police dispatcher and a police officer.

2 retaliation in violation of Chapter 21 of the Texas Labor Code. See Tex. Lab. Code

Ann. §§ 21.051, .055. The City subsequently filed a motion for summary judgment,

asserting a plea to the jurisdiction based on governmental immunity from suit under

the Texas Labor Code because it contended that Childress had no evidence to

support all elements of her claims.3 As part of its plea, the City attached several

exhibits, including Childress’s deposition transcript and the affidavit of City Manager

Eric Strong.

Childress claimed that she had always received above-average performance

evaluations during her tenure as Chief of Police and had never received any criticism

of her job performance from her superiors until November 2017, when a police

department employee filed a formal grievance alleging that Childress had

discriminated against males in her recent hiring decisions. Strong, Childress’s

supervisor, promptly began an internal investigation into the grievance. Strong

notified Childress of the discrimination complaint against her on December 4, 2017,

and told Childress not to discuss the investigation with anyone other than her

3 While the City used the term “sovereign immunity” both in its motion for summary judgment and in its brief on appeal, we use the term “governmental immunity” because this is the type of immunity that protects political subdivisions of the state—including cities—when they perform governmental functions. See City of Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 240 (Tex. App.—Fort Worth 2018, pet. denied). The concepts are similar: cities derive their immunity from the state, so a city’s immunity extends as far as the state’s immunity when the city is acting as a branch of the state. See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 436 (Tex. 2016).

3 attorney. Childress signed a written acknowledgement that stated, “I have been

ORDERED not to discuss this internal investigation with anyone, other than my

attorney, including but not limited to witnesses. I have further been ORDERED not

to authorize others on my behalf to initiate discussion with witnesses.” Three days

later, Strong provided Childress with an amended complaint adding an allegation that

Childress had retaliated against employees for taking leave protected by the Family

Medical Leave Act, and Childress again signed an acknowledgment of the order not to

discuss the investigation with anyone other than her attorney.

Despite these orders, Childress talked to the police department’s senior

sergeant about the details of his job position, which had been created as part of the

department’s reorganization that also had involved Childress’s hiring decisions

challenged by the grievance. Although Childress did not believe that this discussion

was related to the investigation into the complaints against her, Strong disagreed.

According to Strong, Childress told him that she had also spoken about the

investigation to at least one other person who was not affiliated with the City, but she

would not say who it was because “she had assured the people she had talked to that

she would maintain confidentiality about their identity.” Strong testified in his

affidavit that at that time, in early December 2017, he thought that he and Childress

did not have a “high level of mutual trust” and that their working relationship had

been “irreparably damaged” by her conduct.

4 Strong did not make a formal finding or take any disciplinary action against

Childress regarding the grievance at that time, but he told Childress that he did not

want her to continue serving as the City’s police chief. Childress was nearing

completion of an accreditation project for the police department with the Texas

Police Chiefs Association, which she told Strong she thought she would finish by

March 2018. Therefore, Strong told Childress that if she did not either resign or retire

by the end of March 2018, he would “involuntarily end her employment with the

City.”

Strong eventually completed his investigation into the grievance against

Childress in late December 2017 or early January 2018, and he determined that the

complaints were “not sustained or could not be substantiated.” A few weeks later,

Childress sent a memo to Strong on February 27, 2018, stating, “I am asking you to

reconsider your decision to let me go. I am ready and able to continue serving as the

Chief of Police of Richland Hills and desire to do so.” Childress sent Strong another

memo a week later reiterating her desire to stay on with the City as Chief of Police.

Strong rejected Childress’s request and asked Childress again either to resign or retire

by the end of March 2018.

When Childress did not give her two-week notice of resignation or retirement,

Strong filed his own complaint against Childress on March 16, 2018. In this

complaint, Strong alleged that Childress had violated City policy by discussing

confidential internal investigations, failing to cooperate with an investigation, and

5 having “impeded and tainted the investigation by refusing to disclose to the City

Manager with whom she discussed confidential information.” Strong charged that

these actions amounted to insubordination and failure to follow a lawful order from

the City Manager.

Although Childress denied these allegations, Strong issued written findings on

March 26, 2018, that sustained his claims against Childress. In the findings, Strong

stated that Childress had admitted to discussing the internal investigation with two

people in addition to the senior sergeant but that she also had talked to “at least two

other people” whose identities she did not disclose.4 Strong notified Childress that a

disciplinary hearing would be held two days later and warned her that he was

considering terminating her employment.

Childress vigorously contested Strong’s findings in a written response, asserting

that she had not talked to the senior sergeant about the investigation; that a person

had told her “what they were hearing” about the investigation but that Strong never

gave Childress a direct order to divulge that person’s identity; and that she had

informed the two police captains, her seconds-in-command, about the investigation

4 According to Strong, the City’s two police captains told him that Childress “had discussed everything about the December 2017 investigation” with them, including showing them a copy of the December 2017 complaints. The captains both said that they had learned about the investigation from Childress “almost immediately” after it had begun.

6 only in connection with the captains’ supervisory job duties, and she had told Strong

that she had done so. Childress concluded,

As a tenured chief with 34 years of experience at Richland Hills, with [an] unblemished record, I am acutely aware of my responsibilities and have done nothing to taint this investigation and certainly nothing that would rise to the level of termination. Using my best judgment as a tenured chief and fully understanding the circumstances of which I was faced, I acted in an appropriate manner by [e]nsuring that the leadership of the department understood the issues we were facing so that we could make accurate and reasoned decisions during a tumultuous time. Had I done otherwise I would have been derelict in my duties to the community and to the employees of the department.

Despite Childress’s protests, Strong fired Childress the next day.

Based on these facts, the City sought dismissal, asserting that Childress had not

established a waiver of the City’s immunity from suit because she had no evidence to

support all elements of her claims and that she had no compensable lost wages as a

matter of law. After Childress filed a response and after a hearing, the trial court

dismissed Childress’s retaliation claim but not her age-discrimination claim. The City

now appeals.

III. DISCUSSION

In two issues, the City contends that the trial court erred by denying part of

its motion for summary judgment—first, because the City’s plea to the jurisdiction

established that Childress had not carried her burden to show that the City had

waived its governmental immunity, and second, because Childress’s current wages

and retirement-account payments must be offset against her damage claims for lost

7 pay. The City argues that because Childress receives retirement payments from the

City in addition to her wages from a new job, which together exceed the

compensation she had received from the City, she has suffered no economic

damages as a matter of law.

A. Plea to the Jurisdiction

1. Standard of Review

A trial court’s ability to hear a case lies in its subject-matter jurisdiction. Bland

ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “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 used to assert governmental immunity and defeat a court’s subject-matter

jurisdiction. Id. A trial court’s ruling on a plea to the jurisdiction is reviewed de

novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).

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, just as the trial court must do. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at 555. If the

evidence creates a fact question on the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction, and the factfinder will resolve the

question. Miranda, 133 S.W.3d at 227–28. But if the relevant evidence is

8 undisputed or fails to raise a fact question on the jurisdictional issue, the trial court

rules on the plea as a matter of law. Id. at 228. This standard follows our review

of summary judgments, where we take as true all evidence favorable to the non-

movant, indulging every reasonable inference and resolving any doubts in the non-

movant’s favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

2. Applicable Law

Childress’s age-discrimination claim falls under the Texas Commission on

Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.051. The TCHRA

prohibits an employer from discharging an individual “because of race, color,

disability, religion, sex, national origin, or age.”5 Id. § 21.051(1). An employer

commits an unlawful employment practice under the statute “because of” an

employee’s age if the employee’s age was “a motivating factor” for the practice, “even

if other factors also motivated the practice.” Id. § 21.125(a). The TCHRA also waives

governmental immunity from suit, but only if the plaintiff alleges facts that would

establish a violation of the TCHRA “and, when challenged with contrary evidence,

provides evidence that is at least sufficient to create a genuine fact issue material to

5 The TCHRA’s protection against age discrimination applies to individuals aged forty years or older. See Tex. Lab. Code Ann. § 21.101.

9 that allegation.” Tex. Tech Univ. Health Scis. Ctr.–El Paso v. Flores, 612 S.W.3d 299, 305

(Tex. 2020).6

A plaintiff can establish discrimination under the TCHRA in two ways. See

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476–77 (Tex. 2001). First, an

employee can offer direct evidence of the employer’s discriminatory actions or words.

Id. at 476. “Direct evidence of discrimination is evidence that, if believed, proves the

fact of discriminatory animus without inference or presumption.” Coll. of the Mainland

v. Glover, 436 S.W.3d 384, 392 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(quoting Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—

Dallas 2012, no pet.)). Alternatively, because direct evidence of discrimination or

retaliation is a “rarity” in employment cases, courts allow claims to proceed with

indirect or circumstantial evidence of discrimination or retaliation. Russo v. Smith Int’l,

Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Under

this second method, which applies in this case, Texas courts follow the burden-

shifting mechanism set forth by the United States Supreme Court in McDonnell

6 See also Alamo Heights ISD v. Clark, 544 S.W.3d 755, 763 (Tex. 2018) (“By intertwining the TCHRA’s immunity waiver with the merits of a statutory claim, the Legislature ensures public funds are not expended defending claims lacking sufficient evidence to allow reasonable jurors to find the governmental entity liable.”).

10 Douglas.7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–

26 (1973); Glover, 436 S.W.3d at 392.

Under the McDonnell Douglas framework, as applied to the TCHRA,

(1) the plaintiff must first create a presumption of illegal discrimination by establishing a prima facie case, (2) the defendant must then rebut that presumption by establishing a legitimate, nondiscriminatory reason for the employment action, and (3) the plaintiff must then overcome the rebuttal evidence by establishing that the defendant’s stated reason is a mere pretext.

Flores, 612 S.W.3d at 305. The City’s first issue, contending that Childress neither

established a prima facie case of discrimination nor produced evidence of pretext that

overcame the City’s proffered reasons for her firing, challenges elements one and

three of this framework. The City argues that, consequently, Childress failed to raise a

fact question regarding whether the City waived its immunity, and the trial court erred

by denying the City’s plea to the jurisdiction.

3. Application of Law to Facts

a. Prima Facie Case

To establish a prima facie case of age discrimination under the TCHRA, the

plaintiff must provide evidence showing that she (1) was a member of the protected

class (forty years of age or older); (2) was qualified for the position; (3) suffered a

final, adverse employment action; and (4) was either (a) replaced by someone

Analogous federal statutes and the cases interpreting them can guide our 7

reading of the TCHRA. Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012).

11 significantly younger or (b) otherwise treated less favorably than others similarly

situated but outside the protected class. Flores, 612 S.W.3d at 305. Under the

McDonnell Douglas framework, as applied to the TCHRA, the plaintiff is entitled to a

presumption of discrimination if the plaintiff meets the “minimal” initial burden of

establishing a prima facie case of discrimination. Mission Consol., 372 S.W.3d at 634.

The City first argues that Childress did not establish a prima facie case because

there was no evidence that her age was a motivating factor for the termination. But

evidence of age as a motivating factor is not an element of the prima facie case; rather,

it is the result. In other words, the plaintiff’s establishment of a prima facie case leads

to the inference that age is a motivating factor for the adverse employment decision

because courts presume that the defendant’s acts, if otherwise unexplained, are more

likely than not motivated by impermissible factors such as age. See id; see also Flores,

612 S.W.3d at 308 (stating that the prima facie case “justif[ies] a presumption that the

plaintiff was removed ‘because of’ her protected status”).

The City also argues that there was no evidence of the fourth element of a

prima facie case—that Childress was treated less favorably than similarly situated

employees under forty. But a plaintiff can establish the fourth element by showing

that she was either (a) replaced by someone significantly younger or (b) otherwise

treated less favorably than others similarly situated but outside the protected class. See

Flores, 612 S.W.3d at 305, 310 (stating that evidence of less favorable treatment is an

“alternative method” of establishing a prima facie case when the plaintiff cannot show

12 that she was replaced by someone significantly younger). The City does not dispute

that Childress was replaced by a forty-four-year-old employee or that the twenty-five-

year age difference made the replacement employee “significantly younger” than

Childress.

Therefore, because Childress has produced some evidence that she was

replaced by someone significantly younger, and because the City does not challenge

any other elements, we conclude that Childress has met her minimal initial burden to

create a presumption of discrimination by establishing a prima facie case. See id. at

305; Mission Consol., 372 S.W.3d at 634; see also San Benito Consol. ISD v. Cruz, No. 13-

20-00310-CV, 2021 WL 921793, at *7 (Tex. App.—Corpus Christi Mar. 11, 2021, no

pet.) (mem. op.) (concluding that a sixty-eight-year-old employee who was replaced by

a forty-nine-year-old employee raised a fact issue as to whether she was replaced by

someone significantly younger, which sufficiently established a prima facie case of age

discrimination).

b. Legitimate, Nondiscriminatory Reason

With Childress’s establishment of a prima facie case of age discrimination, the

burden then shifted to the City to rebut that presumption by providing a legitimate,

nondiscriminatory reason for terminating Childress’s employment. See Flores,

612 S.W.3d at 305; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct.

2742, 2748 (1993) (stating that the defendant has the burden of production to

introduce evidence that, taken as true, would permit the conclusion that there was a

13 nondiscriminatory reason for the adverse action). The City provided several reasons:

Childress violated Strong’s confidentiality orders, Childress refused to identify the

people she had spoken to about the investigation, Childress and Strong had no mutual

trust in each other, and Childress’s failure to maintain the confidentiality of the

investigation caused dissension within the police department. In short, the City

contends that Childress’s insubordination constituted a legitimate, nondiscriminatory

reason for Strong’s decision to fire Childress. See Collier v. Dall. Cty. Hosp. Dist.,

827 Fed. App’x 373, 376 (5th Cir. 2020), cert. denied, No. 20-1004, 2021 WL 1952066

(U.S. May 17, 2021); Kaplan v. City of Sugar Land, 525 S.W.3d 297, 308 (Tex. App.—

Houston [14th Dist.] 2017, no pet.).

Citing Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 138 (Tex. App.—

Corpus Christi 1986, writ denied), Childress briefly challenges the City’s violation-of-

confidentiality grounds for her termination by stating that the officers who were being

investigated had no right to privacy regarding their investigation. But the court in

Jacobs held only that the record contained no evidence of a violation of an employee’s

federally protected right of privacy—not that there was no such right. Id. Childress

does not explain why the violation of confidentiality orders pertaining to ongoing

workplace investigations could not qualify as a legitimate, nondiscriminatory reason

for termination. See City of San Antonio ex rel. City Pub. Serv. Bd. v. Gonzalez, No. 04-08-

00829-CV, 2009 WL 4981332, at *3 (Tex. App.—San Antonio Dec. 23, 2009, pet.

denied) (mem. op.) (employee terminated for disclosing confidential information to

14 another employee); cf. Cruz v. Howard Cty., No. Civ.A. 1:03-CV-107-C, 2004 WL

1585712, at *5 (N.D. Tex. July 15, 2004) (order) (employee terminated for releasing

confidential information in an ongoing criminal investigation involving her relatives).

Accordingly, we conclude that the City has carried its burden of production to rebut

the presumption of discrimination established by the prima facie case by setting forth

legitimate, nondiscriminatory reasons for terminating Childress’s employment.

c. Evidence of Pretext

Because the City produced legitimate, nondiscriminatory reasons for Childress’s

termination, the burden shifted back to Childress to point to evidence demonstrating

that the City’s stated reasons are a mere pretext. See Flores, 612 S.W.3d at 305. To

defeat the City’s plea to the jurisdiction, Childress bore the burden of raising a fact

question on the issue of whether the stated reasons are the City’s true reasons for

terminating Childress and whether the City’s “proffered explanation is unworthy of

credence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097,

2106 (2000); see Miranda, 133 S.W.3d at 227–28. An employee may show that the

employer’s reason is a mere pretext “by revealing weaknesses, implausibilities,

inconsistencies, or contradictions” in the evidence. Tex. Dep’t of Transp. v. Flores,

576 S.W.3d 782, 794 (Tex. App.—El Paso 2019, pet. denied).

First, Childress points to her long history of good performance with the police

department as evidence that the City’s reasons for terminating her were pretextual.

Childress said that she had never been disciplined the entire thirty-four years that she

15 served as Chief of Police, and she had received positive evaluations throughout her

career from all the city managers who had supervised her. When an employer points

to an employee’s poor performance as a reason for an adverse employment decision,

contradictory evidence that an employer is satisfied with an employee’s work

performance can serve as evidence of pretext. See Bell Helicopter Textron, Inc. v. Burnett,

552 S.W.3d 901, 915 (Tex. App.—Fort Worth 2018, pet. denied). The City argues

that any evidence of Childress’s prior good performance is irrelevant because

Childress was fired for insubordination, not poor performance. We conclude that

under these facts, this is a distinction without a difference: Childress’s alleged

insubordination occurred in the performance of her job duties, and the City points us

to no evidence that Childress had ever been counseled about, or disciplined for,

insubordination prior to Strong’s complaint.

In addition, Childress identifies the City’s delay in acting on her alleged

insubordination as evidence of pretext. Childress argues that if her stated

insubordination had caused “irreparable harm” to her working relationship with

Strong, as the City claimed, then the City would have immediately investigated and

terminated her employment rather than waiting over three months to take any action.

The City’s delay, Childress contends, is some evidence that the stated reason of

insubordination was unworthy of credence.

In support, Childress cites Peirick v. Indiana University–Purdue University

Indianapolis Athletics Department, 510 F.3d 681, 692 (7th Cir. 2007), in which a university

16 terminated one of its tennis coaches for the stated reason of unprofessional conduct:

the coach used abusive language with students, left a van of students behind on an

out-of-state road trip, was an unsafe driver, and told students that the university

administration was to blame for scheduling conflicts. But even after becoming aware

of these complaints, the coach’s supervisor did not address these concerns with the

coach but instead allowed her to continue performing her job—including continuing

to drive the team to tournaments—for another two months before terminating her

employment. See id. at 692–93. In concluding that a fact question existed on the issue

of pretext, the reviewing court stated that this “pattern of delay” raised a question

whether the university was truly concerned about the coach’s stated unprofessional

conduct. Id. at 693.

Similarly, in Daoud v. Avamere Staffing, LLC, 336 F. Supp. 2d 1129, 1132–33

(D. Or. 2004), a retirement-home-staffing company fired a “personal care aid” after

receiving numerous complaints from clients regarding the aid’s patient care. The

staffing company never told the aid about any of the complaints or warned her about

her job performance, and it allowed her to continue providing care for a client even

after that client complained. See id. at 1137. The court concluded that an issue of fact

was raised regarding whether the complaints actually triggered the aid’s termination.

Id.

The City responds that Strong immediately confronted Childress when he

became aware of her alleged insubordination and that the delay in termination was

17 explained by the fact that Childress was allowed to remain in her position for a few

more months to complete the certification project, at her request. Citing Jackson v.

General Motors, LLC, No. 4:18-CV-1243 RLW, 2020 WL 3469334 (E.D. Mo. June 25,

2020), and Allen v. Wal-Mart Stores, Inc., No. 1:10cv42-SPM/GRJ, 2011 WL 13228323

(N.D. Fla. Apr. 15, 2011), the City argues that there is no evidence of pretext when

the employer presents a reasonable explanation for the delay and when that delay was,

at least in part, a result of the employee’s own actions.

In Jackson, the employer’s stated reason for terminating its employee was an

unexcused absence, but the employer did not actually terminate the employee until six

months after the absence occurred. 2020 WL 3469334, at *31. The court determined

that the delay did not establish an issue of fact as to pretext because the employer’s

policy was to administer all discipline in person, but the employee did not return to

work until over two months after his unexcused absence; furthermore, the employer

delayed termination for several more months to give the employee time to obtain

documentation from his physician to show that his absence was actually excused. See

id. And in Allen, the court held that a two-month delay between the employee’s

misconduct and her termination was not evidence of pretext because the employee’s

new supervisor was in the process of moving in from another state, and by the time

the supervisor began “hands on management,” the employee had already begun to

take several weeks of approved leave. 2011 WL 13228323, at *4. When the employee

18 returned to work, her new supervisor immediately began an investigation into her

misconduct and then terminated her employment. See id.

Here, the City claims that it has provided a reasonable explanation for the delay

because Childress requested, and the City allowed, a few more months for her to

finish her accreditation project with the Texas Police Chiefs Association. But the City

points to no evidence that it relieved Childress of her duties as police chief during this

time or that she remained on staff only to work on the accreditation project that she

had requested time to finish. Rather, it appears that Childress continued to perform

all aspects of her job—despite the claimed “irreparable harm” caused by her

insubordination—for another three months before the City terminated her

employment. There is no evidence that Childress could not have been disciplined

earlier because she was absent from work during this time, or that the City was

allowing her extra time to gather evidence to explain, refute, or remedy her allegedly

insubordinate conduct. We conclude that here, like in Peirick and Daoud, the fact that

Childress was allowed to remain in her position and apparently perform her job duties

even after the stated fireable offense raises some “weaknesses, implausibilities,

inconsistencies, or contradictions” in the evidence and, thus, is some evidence of

pretext. See Tex. Dep’t of Transp., 576 S.W.3d at 794. We hold that this evidence, along

with evidence of Childress’s long history of good performance with the City’s police

department, is sufficient to raise a genuine issue of material fact as to whether the

19 City’s stated reasons for firing Childress were not true but instead were a pretext for

discrimination.8

All in all, the City’s plea to the jurisdiction challenging the existence of

jurisdictional facts did not put Childress to the ultimate burden of proving her claims

at this stage in the case; rather, she only needed to raise a fact issue on the existence of

a violation of the TCHRA. See Alamo Heights, 544 S.W.3d at 785. Taking as true all

evidence favorable to Childress and indulging every reasonable inference and

resolving any doubts in her favor, as we must, we hold that the trial court did not err

by denying the City’s motion for summary judgment asserting a plea to the

jurisdiction on Childress’s claim of age discrimination. See Miranda, 133 S.W.3d at

227–28. We overrule the City’s first issue.

B. Wages Claim

In its second issue, the City argues that the trial court erred by denying the

portion of the City’s motion for summary judgment that challenged Childress’s

requested recovery of lost wages. The City asserts on appeal that its governmental

immunity is waived only for compensable economic losses and that because the

amount of Childress’s lost wages (both back pay and front pay) was fully offset by

the amounts she has received from her current employment and her City-provided

8 Because we hold that this evidence is sufficient to raise a fact issue, we need not discuss the City’s challenges to other evidence raised by Childress in support of pretext. See Tex. R. App. P. 47.4.

20 retirement account,9 Childress suffered no economic losses. See Tex. Lab. Code

Ann. § 21.258(c) (providing that an employee’s “[i]nterim earnings . . . operate to

reduce the back pay otherwise allowable” to the employee upon a finding that the

employer engaged in an unlawful employment practice).

However, the City did not present this governmental-immunity argument to

the trial court; in its motion for summary judgment, the City argued only that if the

case proceeded to trial, the court should rule that Childress was not entitled to

receive lost wages. But because the defense of governmental immunity implicates

the trial court’s subject-matter jurisdiction to hear the case, the City may raise this

argument for the first time on appeal. See Manbeck v. Austin ISD, 381 S.W.3d 528,

530 (Tex. 2012).

Even though the City may raise governmental immunity in this appeal, the

cases that the City cites in support of its argument that its immunity was not waived

are inapposite. See Tooke v. City of Mexia, 197 S.W.3d 325, 330–31 (Tex. 2006);

Zachry Constr. Corp. v. Port of Hous. Auth., 449 S.W.3d 98, 105–06 (Tex. 2014); City of

Colleyville v. Newman, No. 02-15-00017-CV, 2016 WL 1314470, at *1 (Tex. App.—

Fort Worth Mar. 31, 2016, pet. denied) (mem. op.). In each of these cases, the

plaintiff brought a breach-of-contract claim against a local government entity based

upon the statutory waiver in Local Government Code Section 271.152, which

9 The City provided retirement benefits to its employees through the Texas Municipal Retirement System.

21 “waives sovereign immunity to suit for the purpose of adjudicating a claim for

breach of the contract,” subject to certain statutory conditions. Tex. Loc. Gov’t

Code Ann. § 271.152.

One of these statutory conditions is that damages are limited to the balance

due under the contract, the amount owed for change orders or additional work

performed, attorney’s fees, and interest; a plaintiff may not recover damages for

consequential damages, exemplary damages, or damages for unabsorbed home-

office overhead. See id. § 271.153(a)–(b). The cases cited by the City stand for the

proposition that unless a plaintiff suing a local government entity for breach of

contract seeks recovery for damages for which the entity’s immunity is specifically

waived by the Local Government Code, the trial court has no jurisdiction over the

plaintiff’s claim. See Tooke, 197 S.W.3d at 346; Zachry Constr. Corp., 449 S.W.3d at

110; City of Colleyville, 2016 WL 1314470 at *5. Here, however, the Local

Government Code’s limitation on the waiver of immunity has no applicability to

Childress’s claim because Childress has not sued the City for breach of contract.

Instead, Childress’s lawsuit alleges age discrimination in violation of the

TCHRA. See Tex. Lab. Code Ann. § 21.051. The TCHRA waives immunity by

providing that, after satisfying certain administrative requirements, “the complainant

may bring a civil action.” Id. § 21.254; see Alamo Heights, 544 S.W.3d at 770.

Accordingly, to show that this waiver of immunity applies, the plaintiff in an age-

discrimination case must allege facts that would establish a violation of the TCHRA:

22 that the employer discriminated against the plaintiff “because of” his or her age.

Tex. Lab. Code Ann. § 21.051; see Alamo Heights, 544 S.W.3d at 770. As we have

concluded in our discussion of the City’s first issue, Childress has alleged evidence

sufficient to raise a genuine fact issue regarding her age-discrimination claim, and

the City does not point to any provision of the TCHRA that additionally requires

evidence of any specific type of damages to establish a waiver of immunity.

Therefore, the City’s complaint that Childress has failed to show evidence of lost

wages is irrelevant to the question of whether the City has waived its immunity to

Childress’s suit. We overrule the City’s second issue.10

10 To the extent the City asks us to hold that, if the case proceeds, the trial court must offset Childress’s lost wages by amounts from her current employment and City retirement, we do not have authority to reach this argument in this interlocutory appeal. This argument does not involve a challenge to the trial court’s ruling on the jurisdictional issue, and the City cites no other law giving us authority to review this issue in an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (providing that a person may appeal an interlocutory order that grants a plea to the jurisdiction by a governmental unit); Sykes, 136 S.W.3d at 638 (explaining that a plea to the jurisdiction seeks dismissal of a case for lack of subject-matter jurisdiction); Liverman v. Denton Cty., No. 02-17-00240-CV, 2017 WL 6377437, at *1–2 (Tex. App.—Fort Worth Dec. 14, 2017, no pet.) (mem. op.) (dismissing portion of appeal from order granting jurisdictional plea that complained of the trial court’s dismissal of claims against government officials in their individual capacities but addressing portion of appeal that complained of dismissal of claims against governmental unit and government officials in their official capacities); Swanson v. Town of Shady Shores, Nos. 02-15-00351-CV, 02-15-00356-CV, 2016 WL 4395779, at *3 (Tex. App.—Fort Worth Aug. 18, 2016, no pet.) (mem. op.) (stating that only the portions of orders denying the town’s motions for summary judgment on immunity grounds were reviewable by interlocutory appeal under Section 51.014(a)(8)); see also Dallas Symphony Ass’n, Inc. v. Reyes, 571 S.W.3d 753, 761 n.36 (Tex. 2019) (collecting cases). Therefore, we do not address this argument.

23 IV. CONCLUSION

After carefully reviewing the evidence before the trial court, we conclude that

Childress produced evidence sufficient to raise a fact issue regarding whether the City

waived its governmental immunity to her age-discrimination claim. We affirm the

trial court’s order to the extent that it denies the City’s motion for summary judgment

asserting a plea to the jurisdiction.

/s/ Dana Womack

Dana Womack Justice

Delivered: September 16, 2021