TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00548-CV
Texas State University, Appellant
v.
Dr. Kathleen Quinn, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT NO. 14-1061-C26, HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the district court’s judgment denying a plea to the jurisdiction
in an employment-discrimination case. Appellant is Texas State University (the University), and
appellee is Dr. Kathleen Quinn. This Court will affirm the judgment.
In 2011, the University’s School of Nursing was developing a Doctoral of Nursing
Practice program. At that time, Quinn made inquiry regarding employment. She had been a licensed
counselor, a registered nurse, and an advanced practice nurse since 2000. The University offered,
and Quinn accepted, two one-year contracts as an “emergency hire” to teach as a clinical associate
professor. In addition to her teaching responsibilities, the University gave her significant program
writing tasks. When the University made the clinical associate professorship permanent, Quinn
applied for the job. At 68, Quinn was one of the oldest faculty members. She had progressive and severe
nerve damage to her hands and feet. The pain in her feet made walking difficult. She requested an
accommodation, but nothing was done. Quinn claimed that during her tenure at the University,
she endured demeaning harassment and derogatory comments because of her age and disability.
Although she complained to her supervisor, nothing was done. The University did not hire her for the
permanent clinical associate professorship posting, nor did it renew the temporary teaching contract.
Quinn filed suit against the University claiming disability and age discrimination
and retaliation. She cast her case against the University as one coming within the terms of the Texas
Labor Code section 21.051. The University filed a plea to the jurisdiction to which it attached
supporting proof and argued that sovereign immunity barred Quinn’s claims. By the plea, the
University claimed that (1) Quinn failed to plead a claim of discrimination and retaliation under
the Texas Labor Code and (2) Quinn’s evidence was insufficient to support her discrimination
and retaliation claims. The district court denied the plea.
To invoke waiver of sovereign immunity, Quinn had to allege facts that affirmatively
demonstrated the court’s jurisdiction and marshal some evidence in support of the contested
elements of her discrimination and retaliation claims, see Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226-27 (Tex. 2004). The elements of a disability and age-discrimination case
are: (1) the plaintiff has a disability and is over the age of forty; (2) she was qualified for the job
she had or sought; (3) she suffered an adverse action; and (4) she was replaced by a younger,
non-disabled person, or was treated less favorably than a younger, non-disabled person, or was
otherwise discriminated against because of her age or disability. See Mission Consol. Indep. Sch.
2 Dist. v. Garcia, 372 S.W.3d 629, 632 (Tex. 2012). The elements of a retaliation claim are: (1) the
plaintiff engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal
link exists between the two. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015).
Contrary to the University’s argument, Quinn discharged her pleading requirement
in her amended petition by asserting in minute detail the facts supporting her discrimination and
retaliation claims. See Miranda, 133 S.W.3d at 226.
In reply to the University’s plea to the jurisdiction, Quinn filed a lengthy fact-studded
response in which she marshaled evidence in support of each contested element of her discrimination
and retaliation claims. When reviewing a plea to the jurisdiction in which the pleading requirement
has been met, as in this case, and evidence has been submitted to support the plea that implicates the
merits of the case, the reviewing court takes as true all evidence favorable to the non-movant, and
the court indulges every reasonable inference and resolves any doubts in the non-movant’s favor.
Id. at 228. In the following pages, we summarize the proof in that light.
On deposition, Quinn detailed the nerve damage to her hands and feet. She testified
that constant pain in her feet made walking difficult. Her deposition testimony was backed up by
voluminous medical records. She reported her physical problems to her supervisor.
Quinn brought forward evidence that she was qualified for the job she had and for
the post she sought. Apparently satisfied with her qualifications, the University kept her on for two
years. Her supervisor testified that she, the supervisor, did not hire unqualified faculty. The Dean
of the Nursing School testified on deposition that to be employed as an “emergency hire,” one was
3 required to have clinical experience. In addition, Quinn testified on deposition that she had more
than five years of clinical experience.
Quinn asserts that the University’s determination not to renew her term teaching
contract and that its decision not to hire her for the new clinical-associate post in itself is evidence
of “adverse action.” The University replies that employees on term contracts cannot suffer “adverse
action” in employment-discrimination cases. Its argument is that because there is no legal obligation
to renew a term contract, as a matter of law no “adverse action” can occur after the contract is signed.
The University concedes that there is no Texas authority supporting its argument. That being the
case, this Court declines to hold, as a matter of law, that the University’s decision not to renew the
contract cannot be evidence in support of Quinn’s discrimination claim. The failure to hire Quinn
for the permanent clinical-associate post is some evidence of “adverse action.” See Tex. Lab. Code
§ 21.051(1).
Quinn’s evidence and pleading is that she was replaced by a non-disabled, younger
person, Sarah Guy. The University contends, however, that Quinn was not replaced by anybody
because her term teaching contract had ended. This argument, of course, does not address the fact
that Quinn was not hired for the permanent clinical-associate position.
As to why she was replaced, Quinn points to the fact that she was hired for the 2012-
2013 school year. Her duties were to teach as well as to finish up writing the design program. The
teaching contract for a clinical-associate position could have been renewed, but it was not. Instead,
the University created the permanent clinical-associate position and Sarah Guy was selected for that
4 job. Accordingly, Quinn suggests that the fact-finder could conclude that she was not renewed
because she was replaced by Guy.
Quinn asserts that she presented facts supporting the elements of her retaliation claim.
Quinn maintains that she was engaged in protected activity when, among other things, (1) she
complained to her supervisor of disability discrimination; (2) she requested an accommodation
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00548-CV
Texas State University, Appellant
v.
Dr. Kathleen Quinn, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT NO. 14-1061-C26, HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the district court’s judgment denying a plea to the jurisdiction
in an employment-discrimination case. Appellant is Texas State University (the University), and
appellee is Dr. Kathleen Quinn. This Court will affirm the judgment.
In 2011, the University’s School of Nursing was developing a Doctoral of Nursing
Practice program. At that time, Quinn made inquiry regarding employment. She had been a licensed
counselor, a registered nurse, and an advanced practice nurse since 2000. The University offered,
and Quinn accepted, two one-year contracts as an “emergency hire” to teach as a clinical associate
professor. In addition to her teaching responsibilities, the University gave her significant program
writing tasks. When the University made the clinical associate professorship permanent, Quinn
applied for the job. At 68, Quinn was one of the oldest faculty members. She had progressive and severe
nerve damage to her hands and feet. The pain in her feet made walking difficult. She requested an
accommodation, but nothing was done. Quinn claimed that during her tenure at the University,
she endured demeaning harassment and derogatory comments because of her age and disability.
Although she complained to her supervisor, nothing was done. The University did not hire her for the
permanent clinical associate professorship posting, nor did it renew the temporary teaching contract.
Quinn filed suit against the University claiming disability and age discrimination
and retaliation. She cast her case against the University as one coming within the terms of the Texas
Labor Code section 21.051. The University filed a plea to the jurisdiction to which it attached
supporting proof and argued that sovereign immunity barred Quinn’s claims. By the plea, the
University claimed that (1) Quinn failed to plead a claim of discrimination and retaliation under
the Texas Labor Code and (2) Quinn’s evidence was insufficient to support her discrimination
and retaliation claims. The district court denied the plea.
To invoke waiver of sovereign immunity, Quinn had to allege facts that affirmatively
demonstrated the court’s jurisdiction and marshal some evidence in support of the contested
elements of her discrimination and retaliation claims, see Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226-27 (Tex. 2004). The elements of a disability and age-discrimination case
are: (1) the plaintiff has a disability and is over the age of forty; (2) she was qualified for the job
she had or sought; (3) she suffered an adverse action; and (4) she was replaced by a younger,
non-disabled person, or was treated less favorably than a younger, non-disabled person, or was
otherwise discriminated against because of her age or disability. See Mission Consol. Indep. Sch.
2 Dist. v. Garcia, 372 S.W.3d 629, 632 (Tex. 2012). The elements of a retaliation claim are: (1) the
plaintiff engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal
link exists between the two. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015).
Contrary to the University’s argument, Quinn discharged her pleading requirement
in her amended petition by asserting in minute detail the facts supporting her discrimination and
retaliation claims. See Miranda, 133 S.W.3d at 226.
In reply to the University’s plea to the jurisdiction, Quinn filed a lengthy fact-studded
response in which she marshaled evidence in support of each contested element of her discrimination
and retaliation claims. When reviewing a plea to the jurisdiction in which the pleading requirement
has been met, as in this case, and evidence has been submitted to support the plea that implicates the
merits of the case, the reviewing court takes as true all evidence favorable to the non-movant, and
the court indulges every reasonable inference and resolves any doubts in the non-movant’s favor.
Id. at 228. In the following pages, we summarize the proof in that light.
On deposition, Quinn detailed the nerve damage to her hands and feet. She testified
that constant pain in her feet made walking difficult. Her deposition testimony was backed up by
voluminous medical records. She reported her physical problems to her supervisor.
Quinn brought forward evidence that she was qualified for the job she had and for
the post she sought. Apparently satisfied with her qualifications, the University kept her on for two
years. Her supervisor testified that she, the supervisor, did not hire unqualified faculty. The Dean
of the Nursing School testified on deposition that to be employed as an “emergency hire,” one was
3 required to have clinical experience. In addition, Quinn testified on deposition that she had more
than five years of clinical experience.
Quinn asserts that the University’s determination not to renew her term teaching
contract and that its decision not to hire her for the new clinical-associate post in itself is evidence
of “adverse action.” The University replies that employees on term contracts cannot suffer “adverse
action” in employment-discrimination cases. Its argument is that because there is no legal obligation
to renew a term contract, as a matter of law no “adverse action” can occur after the contract is signed.
The University concedes that there is no Texas authority supporting its argument. That being the
case, this Court declines to hold, as a matter of law, that the University’s decision not to renew the
contract cannot be evidence in support of Quinn’s discrimination claim. The failure to hire Quinn
for the permanent clinical-associate post is some evidence of “adverse action.” See Tex. Lab. Code
§ 21.051(1).
Quinn’s evidence and pleading is that she was replaced by a non-disabled, younger
person, Sarah Guy. The University contends, however, that Quinn was not replaced by anybody
because her term teaching contract had ended. This argument, of course, does not address the fact
that Quinn was not hired for the permanent clinical-associate position.
As to why she was replaced, Quinn points to the fact that she was hired for the 2012-
2013 school year. Her duties were to teach as well as to finish up writing the design program. The
teaching contract for a clinical-associate position could have been renewed, but it was not. Instead,
the University created the permanent clinical-associate position and Sarah Guy was selected for that
4 job. Accordingly, Quinn suggests that the fact-finder could conclude that she was not renewed
because she was replaced by Guy.
Quinn asserts that she presented facts supporting the elements of her retaliation claim.
Quinn maintains that she was engaged in protected activity when, among other things, (1) she
complained to her supervisor of disability discrimination; (2) she requested an accommodation
from her supervisor; (3) she had her attorney send a letter to the University complaining of disability
and age discrimination; and (4) she filed a charge of discrimination.
Quinn’s response advanced some evidence that she suffered adverse action subsequent
to a protected activity. The University’s decision not to renew Quinn’s contract was made after her
complaint to her supervisor about disability discrimination. Also, the University’s decision not to
hire Quinn for the clinical-associate post was made after Quinn had complained about disability
discrimination. Quinn’s response contains evidence supporting a causal connection between
Quinn’s protected activity and the adverse action. For example, after Quinn had requested an
accommodation, and after she had applied for the permanent clinical-associate position, her
supervisor and the Dean of the Nursing School met and agreed that they would not allow Quinn to
teach in the nursing program no matter how well she scored in her interview.
Taking as true all evidence favorable to Quinn, the non-movant, and in indulging
every reasonable inference and resolving any doubts in the non-movant’s favor, this Court concludes
that she has made out a prima facie case of discrimination and retaliation. See Miranda, 133 S.W.3d
at 228.
The judgment is affirmed.
5 __________________________________________ Bob E. Shannon, Justice
Before Justices Puryear, Field, and Shannon*
Affirmed
Filed: November 29, 2017
* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code § 74.003(b).