AFFIRMED in part; REVERSE a nd RENDER in part; REMAND and Opinion Filed March 10, 2021 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00351-CV TARRANT COUNTY COLLEGE DISTRICT, Appellant V. AMANDA SIMS, Appellee On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-18217 OPINION Before Justices Schenck, Smith, and Garcia Opinion by Justice Smith Appellee Amanda Sims sued her e mployer, appellant Tarrant Count y College District (TCCD), claiming that she was discriminated against du e to her sexual orientation and pled facts alleging a violation of the Texas Wh istleblower Act and the Texas Constitution. TCCD file d a plea to the jurisdiction and moved to dismiss Sims’ claims on the basis of sovereign immunity. The trial cou rt denied TCCD’s plea to the jurisdiction, and TCCD appeals. In two issues, TCC D argues the trial court erred in denying its p lea to the jurisdiction. We conclude the following:–2–  Sims’ claim of discrimination based on sexual orientation may b e brought under the Texas Commission on Human Rights Act (TCHRA).

 Sims’ remedy under the TCHRA forecloses any action under the Texas Whistleblower Act.

 Sims’ constitutional claims established the existence of a genu ine issue of material fact to overcome TCCD’s challenge to the tria l court’s subject matter jurisdiction. We affirm the trial court’s denial of TCCD’s plea to the jurisd iction regarding Sims’ constitutional claims. Regarding Sims’ claims under the Whistleblower Act, we reverse the trial court’s order denying TCCD’s plea to the j urisdiction, render judgment dismissing her Whistleblower Act claims, and remand fo r further proceedings consistent with this opinion. In November 2019, Sims filed her original petition in Dallas Co unty district court against TCCD alleging her employment was terminated only after she revealed to her supervisor that she is a lesbian. Sims claimed she was subjected to discrimination because of her se xual orientation and asserted T CCD’s termination of her employment constituted a violation of the Whistleblower Act and Texas Constitution. Specifically, Sims alleged the following facts: (1) she was a T CCD employee for three years and received pe rformance evaluations reflecting above-average performance throughout her employment and had also received the Chancellor’s Excellence Award for her work ach ievements; (2) Sims revealed s he is a lesbian to her supervisor and co-workers whe n she served as a member of a TCCD committee–3– addressing diversity issues; (3) thereafter, Sims began experie ncing hostile treatment: her supervisor, who “e xpressed religious views that held homosexuals in a negative light,” told Sims she had to “overlook [her] bias” w hen it came to Sims; (4) one of Sims’ responsibilities was to oversee a student-run convention on a TCCD campus; (5) as part of the convention, TCCD had previously allo wed Sims to collect vendor fees for events via her PayPal account; (6) Sims did not spend the funds for her personal use and fully discl osed her activities to TCCD; an d (7) in 2018, TCCD audited Sims’ activities and dete rmined Sims did not engage in any improper activities. Sims’ petition alleged TCCD began to subject her to discriminat ion because of her sexual orientation. A round March 26, 2019, Sims reporte d to the Fort Worth Human Relations Commission that TCCD violated the City of Fort Worth ordinance prohibiting discrimination base d upon sexual orientation. On A pril 4, 2019, TCCD placed Sims on administrative leave, and Sims’ employment was t erminated on July 1, 2019, for what Sims claimed we re “pretextual reasons.” In January 2020, TCCD filed its plea to the jurisdiction and mo tion to dismiss Sims’ claims. TCCD argued it was entitled to dismissal of Sims ’ claims because the TCHRA provided the exclusive re medy for a public employee’s dis crimination and anti-retaliation claims. Further, TCCD argued it had not waive d immunity from suit under the Whistleblower Act for a discrimination-based retaliat ion claim; therefore, dismissal was proper. TCCD argue d the court lacked jurisdictio n to hear Sims’–4– whistleblower and constitutional claims because “the TCHRA is [ Sims’] exclusive statutory remedy for addressing a discriminatory based retaliat ion claim in state
court.” In February 2020, Sims filed a response to TCCD’s plea to the j urisdiction stating that, because she reporte d that TCCD discriminated agai nst her based on her sexual orientation, her claim was not preempted by the TCHRA be cause the TCHRA did not prohibit sexual orienta tion discrimination. As to her constitutional claims, Sims argued the Texas Constitution preempts all state laws, and her constitutional claims could therefore not be preempted by the TCHRA. At a hearing on TCCD’s plea to the jurisdiction, the trial judg e characterized this case as “a situation where there is no remedy [under the T CHRA] for the underlying conduct of being discri minated against based on sexu al orientation.” TCCD argued the fact that the TCHRA did not mention sexual orie ntation did not “mean that the legislature intend ed for employment discriminati on claims premised on other characteristics to be controlled by a statutory scheme other than the TCHRA.” TCCD argued Sims’ claim of “being discriminated agains t on the basis of her sex and gender stereotypi ng” was “covered under the TCHR A,” but no Texas court had ruled on the issue of whether the TCHRA protected her “status of sexual orientation.” Sims’ counsel argued that Sims’ claim was “about being retaliated against for complaining about se xual orientation discrimination .” Sims’ counsel–5– further argued that the “Texas Constitution does protect indivi duals from discrimination based on sexual orientation.” On February 21, 2020, the trial court signed an order denying T CCD’s plea to the jurisdiction. The order outlined the arguments made in the parties’ pleadings and contained the fo llowing paragraph: The parties agree that [T]CHRA does not include a prohibition against sexual orientation discriminati on or retaliation for reporting sexual orientation discrimination. They further agree that the statut e does provide a remedy for sex discri mination based on a failure to c onform to gender stereotypes. It is also undisputed between the partie s that Plaintiff’s lawsuit alleges th e former conduct, not the latter. Plaintiff’s lawsuit expounds upon and allege s facts in support of her claim s that are unrelated to assertions of sex discrimination/gender stereo typing (facts a jury could determine motivated the alleged adverse employment actions), including purported expressions by her supervisor of negative attitudes about gay people and bias agai nst Plaintiff because of her sexual orientation. No authority was offered to the Court that the type of harm claimed by Plaintiff in this su it is the type of harm [T]CHRA was enacted to redress or the type of harm Texas courts have held is ma de unlawful by the statute. This appeal followed. In two issues, TCCD argues the tr ial court erred in denying its plea to the jurisdiction on Sims’ whistleblower and constitutional claims. We review the trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife
v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004); City of Plano v. Hatch , 584 S.W.3d 891, 895 (Tex. App.—Dallas 2019, no pet.). In performing this review, an appellate court does not look to the merits of the case but considers onl y the pleadings and evidence relevant to the jurisdictional inquiry. City of Seagoville v. Lytle , 227–6– S.W.3d 401, 408 (Tex. App.—Dalla s 2007, no pet.). A plea to th e jurisdiction is a dilatory plea that contests the trial court’s authority to dete rmine the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). When a plea to the jurisd iction challenges the pleading s, we must determine if the pleader has alleged sufficient facts to demonstrate affi rmatively the trial court’s jurisdiction to hear the cause. See Ryder Integrated Logis tics, Inc. v. Fayette Cty. , 453 S.W.3d 922, 927 (Tex. 2015); Hatch , 584 S.W.3d at 895. To make this determination we look to the pl eader’s intent, construe the ple adings liberally in favor of jurisdiction, and accept the allegations in the pleadi ngs as true. Hatch , 584 S.W.3d at 895. Where the pleadi ngs do not allege sufficient fa cts to demonstrate affirmatively the trial court’s jurisdiction but do not affirma tively demonstrate an incurable jurisdictional defect, the issue is one of pleading s ufficiency, and the plaintiffs should be given an opportunity to amend. Miranda , 133 S.W.3d at 226– 27. If the pleadings affirmatively negate the existence of jur isdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id . at 227. In Texas, governmental immunity has two components: immunity f rom liability, which bars enforcement of a judgment against a gover nmental entity, and immunity from suit, which bars suit against the entity altogeth er. Tooke v. City of
Mexia , 197 S.W.3d 325, 332 (Tex. 2006) . TCCD does not dispute that immunity is–7– waived for suits brought under the TCHRA; instead, TCCD argues “the TCHRA provides the exclusive remedy fo r a public employee’s discrimin ation claim.” One of the general purposes of the TCHRA is to: “(1) provide fo r the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C . Section 2000e et seq.).” T EX

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. C ODE § 21.001(1). The TCHRA was “enacted to address the specific evil of discrimination and retaliation in the workplace,” as well as to coordinate and conform with federal anti-discrimination and reta liation laws under Title VII. Prairie View A & M Univ.
v. Chatha , 381 S.W.3d 500, 504 (Tex. 2012) (quoting City of Waco v. Lopez , 259 S.W.3d 147, 153–55 (Tex. 2008)). Although the Texas Supreme Co urt considers the TCHRA’s plain language and its own precedent in interpretin g the TCHRA, the court does look to federal law f or guidance in situations where the TCHRA and Title VII contain analogous statutory language. Chatha , 381 S.W.3d at 505. The relevant section of the T CHRA provides the following: An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an indiv idual, or discriminates in any other mann er against an individual in conn ection with compensation or the terms , conditions, or privileges of employment; T EX

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. C ODE § 21.051. Similarly, Title V II provides the following: (a) Employer practices It shall be an unlawful employm ent practice for an employer--–8– (1) to fail or refuse to hire or to discharge any individual, o r otherwise to discriminate against any individual with respect to his comp ensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religio n, sex, or national origin; or 42 U.S.C. § 2000e-2. Thus, both the TCHRA and Title VII prohib it discrimination “because of . . . sex.” The parties agree that no Texas state court has addressed the i ssue of whether discrimination based on sexual or ientation is prohibited under the TCHRA. Therefore, we look to federal law for guidance. Chatha , 381 S.W.3d at 505. At the time of the hearing on TCCD’s plea to the jurisdiction, applica ble federal authority held that, “[f]or four decades, it has been the uniform law of the land, affirmed in eleven circuits, that Title VII of the 1964 Civil Rights Act pr ohibits sex discrimination—not sexual orienta tion or transgender discrimina tion.” Wittmer v. Phillips 66 Co. , 915 F.3d 328, 333 (5th Cir. 2019) (Ho, J., concurring). Clea rly, the trial court was aware of this authority when it stated in its o rder that the parties agreed the TCHRA “ does not include a prohibition against sexual orientation discrimination or retaliation fo r reporting sexual orientation discrimination.” The trial court in this case entered its order in February 202 0. Four months later, the United States Supreme Court, in June 2020, issued it s opinion in Bostock v. Clayton County, Georgia , 140 S. Ct. 1731, 1754 (2020). In Bostock , the court held that Title VII’s prohibition on discrimination “because of . . . sex” prohibits an employer from failing or refusing to hire or from firing an ind ividual for being–9– homosexual or being a transgender person. Id. at 1738–43. In reaching this decision, the court reasoned as follows: Those who adopted the Civil Rights Act might not have anticipat ed their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, incl uding its prohibition against disc rimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statu te give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. Id. at 1737. As the court concluded , “[a]n employer who fires an individual merely for being gay or transge nder defies the law.” Id. at 1754. In order to reconcile and confor m the TCHRA with federal antidiscrimination and retaliation la ws under Title VII, we conclud e we must follow
Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status a s a homosexual or transgender person. See Bostock , 140 S. Ct. at 1738–43; Chatha , 381 S.W.3d at 504–05. In light of Bostock , Sims’ claims are now properly brought under the
TCHRA. See Bostock , 140 S. Ct. at 1738–43; Chatha , 381 S.W.3d at 504–05. Sims’ remedy under the TCHRA forecloses relief under the more general Whistleblower
Act. See City of Waco , 259 S.W.3d at 154. Thus, to the extent TCCD argues Sims was not entitled to relief under the Whistleblower Act, we sust ain TCCD’s first issue in part.–10– However, where the pleadings do not allege sufficient facts to demonstrate affirmatively the trial court’s jurisdiction but do not affirma tively demonstrate an incurable jurisdictional defect, the issue is one of pleading s ufficiency, and the plaintiffs should be given an opportunity to amend. Miranda , 133 S.W.3d at 226– 27. TCCD does not dispute that Sims’ claims come under the TCH RA. Here, Sims alleged she was discharged becau se of her sexual orientation, b ut she incorrectly characterized her claim as a cla im under the Whistleblower Act. After Bostock , it is clear that Sims’ claim must be brought under the TCHRA. We the refore remand in order to give Sims an opportunity to amend her pleadings. See Miranda , 133 S.W.3d at 226–27. To the extent TCCD ar gues in its first issue that S ims’ claims should be dismissed, we overrule TCCD’s first issue in part. As to Sims’ constitutional claims, TCCD argues Sims has failed to sufficiently plead a constitutional claim against TCCD. Specifically, TCCD argues Sims has failed to allege any protected p roperty interest upon which her due process claim can be based, she has failed to alle ge that she was treated differe ntly than similarly situated TCCD employees investigated and found guilty of violat ing TCCD policy, and her allegation that she was t erminated for pretextual reaso ns is “simply not enough to invoke TCCD’s waiver of immunity.” TCCD did not rais e these arguments in its plea to the jurisdiction or its supplement to the plea to the jurisdiction, and it did not make these arguments at the hearin g on its plea to the jurisdiction.–11– TCCD acknowledges the Texas Cons titution authorizes suits again st political subdivisions for equitable or injunctive relief for violations of the Texas Bill of Rights. See City of Beaumont v. Bouillion , 896 S.W.2d 143, 148–49 (Tex. 1995) (citing T EX

. C ONST . art. I , § 29); City of Houston v. Do wnstream Envtl., L.L.C. , 444 S.W.3d 24, 38 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) . The guarantees found in the Bill of Rights are excepted from the general power s of government; the State has no power to commit acts contrary to the guarantees fo und in the Bill of Rights. T EX

. C ONST . art. I, § 29; Bouillion , 896 S.W.2d at 148. To avoid dismissal on a plea to the jurisdiction, a plaintiff must establish the e xistence of a genuine issue of material fact to overcome the challenge to the trial court’s subject matter jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770–71 (Tex. 2018). Here, as already discussed, Sims’ pleadings alleged she was ret aliated against and discriminated against based on her sexual orientation in vi olation of the Texas Constitution. Sims sought monetary relief in her claim for dam ages. There is no implied right of action to recove r money damages for violation of the due-courseof-law provision in the Texas Bill of Rights. Downstream Envtl. , 444 S.W.3d at 40. However, as to her constitutional claims, Sims requested a “dec laration that [TCCD] violated [Sims’] right under th e Texas Constitution and City of Fort Worth ordinance to be free from discrimination on the basis of her sexual orien tation” and “an injunction against [TCCD] to prohibit discrimination against [S ims] and other–12– homosexual employees because of their sexual orientation.” Thu s, Sims’ constitutional claims did not seek monetary damages; instead, S ims’ constitutional claims sought the kind of equitabl e and injunctive relief autho rized under the Texas Constitution for violations of the Texas Bill of Rights. See Bouillion , 896 S.W.2d
at 148–49. TCCD did not conclusively negate the validity of Sims’ constitu tional claims.
See Downstream , 444 S.W.3d at 38–39. Under the facts and circumstances of th is case, we conclude Sims’ constitutional claims established the e xistence of a genuine issue of material fact to overcome TCCD’s challenge to the tria l court’s subject matter jurisdiction. Clark , 544 S.W.3d at 770–71. We therefore affirm the trial court’s denial of TCCD’s plea to the jurisdiction regarding Sim s’ constitutional claims. Finally, we reject TCCD’s argumen t that Sims has engaged in imp ermissible “venue shopping” in bringing her claim in Dallas County. 1 We note that venue and jurisdiction are two separate questions. See , e.g. , State v. Pounds , 525 S.W.2d 547, 550 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.). “Jurisdictio n is the power of the court to decide a controversy be tween parties and to render and enforce a judgment

1 Although Sims’ petition alleged she resides in Tarrant County and TCCD’s address for service of process is in Fort Worth, Sims filed suit in Dallas County purs uant to section 554.007(b) of the Whistleblower Act. Section 554.007(b) provides that “[a] publi c employee of a local governmental entity may sue under this chapter in a district court of the county in which the cause of action arises or in a district court of any county in the same geographic area that has establ ished with the county in which the cause of action arises a council of governments or other regional commis sion under Chapter 391, Local Government Code.” T EX

. G OV ’ T C ODE A NN . § 554.007(b). Sims’ petition alleged Tarrant County and Dall as County are members of the North Texas Council of Governments and venue was therefore proper in Dallas County.–13– with respect thereto; venue is the proper place where that powe r is exercised.” Id. Here, we consider only the plead ings and evidence relevant to t he jurisdictional inquiry. See Lytle , 227 S.W.3d at 408. Further, we are not convinced our resolut ion of this matter would in any way encourage venue shopping in fut ure cases. We overrule TCCD’s second issue. We affirm the trial court’s denial of TCCD’s plea to the jurisd iction regarding Sims’ constitutional claims. Regarding Sims’ claims under the Whistleblower Act, we reverse the trial court’s order denying TCCD’s plea to the j urisdiction, render judgment dismissing Sims’ Whistleblower Act claims, and remand for further proceedings consistent with this opinion.

Schenck, J., concurring and dissenting.

200351F.P05 /Craig Smith/ CRAIG SMITH JUSTICE–14– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TARRANT COUNTY COLLEGE DISTRICT, Appellant

No. 05-20-00351-CV V. AMANDA SIMS, Appellee On Appeal from the 116th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-19-18217. Opinion delivered by Justice Smith. Justices Schenck and Garcia participating.
In accordance with this Court’s opinion of this date, the tria l court’s order denying Tarrant County College Dist rict’s plea to the jurisdict ion on Amanda Sims’ constitutional claims is AFFIRMED . The trial court’s order denying Tarrant County College District’s plea to the jurisdiction on A manda Sims’ claims under the Whistleblower Act is REVERSED , and we RENDER judgment dismissing Amanda Sims’ claims under the Whistleblower Act. Th is cause is REMANDED to the trial court for furthe r proceedings consistent with thi s opinion. It is ORDERED that each party bear its o wn costs of this appeal.
Judgment entered this 10th day of March 2021.