COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ELPASO COMMUNI TY COL L EGE DI STRI CT, Appellant,

v. DAVI D D. CHASE, Appellee

. § § § § § § No. 08-09-00100- CV

Appea l from 327th District Court of El Paso County , Texas (TC # 2003-4851)

O P I N I O N El Paso Communi ty College District bring s t h i s acc eler ated interlocutory appea l from an order deny ing its plea to the jurisdiction. T E X .C I V .P R A C .&R E M .C O D E AN N
. § 5 1 .014(a) (8)( West 2008). We dismiss for want of jurisdiction.
F ACTUAL SUMMA RY David Chase, a tenure d profe ssor at El Paso Communi ty College , filed a char g e of rac e and national orig in discrimination with the EEOC on Dec ember 19, 2002. EPCC suspended Dr. Chase with pay on Marc h 12, 2003 for vi o l at i n g its policies by g iving a student an “A” even though the student did not attend class or do the require d work. EPCC ’s President, Richard M. Rhodes notified Dr. Chase by letter dated April 4,2003 that he was rec ommending termination of employ ment based

on the orig inal char g e and beca use Dr. Chase failed to pr ovide the student rec ords when reque sted and he had subm it t ed a t i meshee t for a period in J uly 2002 which he had not worke d. I n April of 2003, Chase filed a claim of reta liation with the EEOC and the Texas Commi ssion on HumanRights. Following a hear ing and appea l, EPCC terminated Cha s e ’ s e mp lo y ment on Aug ust 13, 2003 1 for violating its policies. Dr. Chase rec eived his rig ht to sue notice from the EEOC on September 6, 2003. On November 4, 2003, he filed suit ag ainst EPCC alleg ing reta liation in violation of Section 21.055 of the Te x as L abor Code. EPCC filed its p l ea to the jurisdiction asser ting that it terminated Dr. Chase for a nondiscriminatory rea son, and there fore , the burden shifted to Dr. Chase to show that he would not have been terminated but f

or filing his EE OC char g e. I t f urther arg ued that if Dr. Chase could not me et this burden, its sovere ign immunit y had not been waived. EPCC attache d evidenc e in support of its plea. The trial court de nied the plea on Marc h 24, 2009. JURISDICTIONAL FA CTS I n four issues, EPCC challeng es the trial court’s denial of its plea to the jurisdiction. Dr. Chase arg ues that EPCC is improperly utiliz ing a plea to the jurisdiction to c halleng e the merits of his cause of

action ra ther than a

jurisdictional fac t. A plea to the jurisdiction is a dilatory plea that s ee k s dismiss al of a case for lack of

s u b j ect-matter jurisdiction. Harris County v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004); Blan d Indepe ndent School District v. Blue , 34 S.W .3d 547, 554 (Tex. 2000). The plaintiff has the burden
to alleg e fac ts that af

firmatively demonstrate that the trial court has subject matter jurisdiction. Texas Association of

Business v. Texas Air Control Board , 852 S.W .2d 440, 446 (Tex. 1993); Gomez

v. Housing Authority of the City of El Paso , 148 S.W .3d 471, 477 (Tex.App.--El Paso 2004, p et

. denied)

. A plea to the jurisdiction ca n b e u t i l i z ed to challeng e whether the plaintiff has met his burden of alleg ing jurisdictional fac ts but it can also raise a challenge to the exis tence of

I n 2 0 0 4 , t h e p o w e r s a n d d u t i e s o f t h e T e x a s C o m m i s s i o n o n H u m a n R i g h t s w e r e t r a n s f e r r e d t o t h e T e x a s 1 W o r k f o r c e C o m m i s s i o n C i v i l R i g h t s D i v i s i o n . T E X
. L A B
. C O D E A N N
. § 2 1

. 0 0 1 5 ( W e s t 2 0 0 6 )

. D r . C h a s e f i l e d h i s c h a r g e w i t h t h e T C H R i n 2 0 0 3

. A c c o r d i n g l y , a n y r e f e r e n c e s i n t h i s o p i n i o n t o t h e C o m m i s s i o n a r e t o t h e T C H R

.jurisdictional fac ts. See Texas Departme nt of Parks and W

ildlif e v. Miranda , 133 S.W .3d 217, 226- 27 (Tex. 2004). A trial court’s revie w of a plea to the jurisdiction challeng ing the exis tence of jurisdictional fac ts mirrors that of a traditional motion for summary judgme nt. Mirand a, 133 S.W .3d at 228; see T E X .R.C I V .P. 166a(c ). The g overnme nt d ef en d an t is require d to meet the summary judgme nt standard of proof for its asser tion that the trial court lacks jurisdiction; once the defe ndant meets its burden, the plaintiff is then require d t o show that there is a disputed materia l fac t reg arding the jurisdictional issue. Miranda , 133 S.W .3d at 228. I f the evidenc e cre ates a fac t question reg arding jurisdiction, the trial court must deny the plea to the jurisdiction a nd leave its re solution to the fac t finder. Id

. at 227-28. On the other hand, if the evidenc e is undisputed or fails to raise a fac t question

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id

. at 228. Dr. Chase alleg ed in his petition that afte r he filed a char g e of rac e and nat i o n al o rig in discrimination, E PCC first suspended and then terminated him. EPCC ’s plea to the jurisdiction is
not direc ted at Dr. Chase’s pleading s. I nstead, EPCC asser ted in its plea that it terminated Dr. Chase for non-discriminatory rea sons, and there fore , he must prese nt evidenc e raising a fact i s s ue on whether the rea son g iven was a prete x t for reta liatory action, or he must challeng e EPCC ’s evidenc e

as failing to prove as a mat t er o f law that the rea son g iven was a leg itimate, nondiscriminatory

rea son. Sovereig n immunit y deprive s a trial court of subject-matter jurisdiction of lawsuits in which the state or cer

tain g overnme ntal units have been sued unless the L eg islature waives that immunit y . State v. Lueck , 290 S.W .3d 876, 880 (Tex. 2009); Miranda , 133 S.W .3d at 224; see also T E X .G O V ’ T C O D E AN N
. § 311.034 (West Supp. 2010)(“ [A] statute shall not be co n s t ru ed as a waiver ofsovere ign immunit y unless the waiver is eff ecte d by clea

r and unambig uous lang uag e.”)

. Sovereig n immunit y includes two distinct principles, immunit y from suit and immunit y fr om liability

. Miranda , 133 S.W .3d at 224. A statute waives immunit y from suit, immunit y from liability , or both. Lueck , 290 S.W .3d at 880. I mmunity from suit is a jurisdictional question of whether the State has expressly consente d to suit. Lueck ; 290 S.W .3d at 880; W ichita Falls State Hospital v. Taylor , 106 S.W .3d 692, 696 (Tex. 2003). This issue is pr operly raised in a plea to the jurisdiction. Miranda , 133 S.W .3d at 225-26. I n contra st, immunit y fr o m l i abil ity deter mines whether the State has

acc epted liability even afte r it has co n s en t ed t o s u it. Lueck , 290 S.W .3d at 880. I mmunity from liability is an aff

irmative defe nse which cannot be ra i s ed i n a plea to the jurisdiction. Id. ; Texas Departme nt of Tr ansportation v. Jones , 8 S.W .3d 636, 638 (Tex. 1999). The L eg islature has provided a limit ed waiver of sovere ign immunit y for those employ ment discrimination and reta liation claims falling within Chapter 21 of the Texas L ab o r C o de. See T E X .L A B O R C O D E A N N
. §§ 21.051(1), 21.055 (West 2006)(pr ohibiting unlawful employ ment
prac tices by “employ er” ); § 21.002(8)( D)(West Supp. 2010)(de fining “employ er” to include a county , municipality , state ag ency , or s t ate instrumentality ); Mission Consolidat ed Indepe ndent School District v. Garcia , 253 S.W .3d 653, 660 (Tex. 2008); Texas Departme nt of Criminal Justice

v. C o o ke , 149 S.W .3d 700, 704 (Tex.App.--Austin 2004, no pet.). Under Section 21.055, an employ er commits an unlawful employ ment prac tice if it reta liates or discriminates ag ainst a person who, under

Chapter 21 of

the L abor Code: (1) oppose s a discriminatory prac tice; (2) make s or files a c harg e; (3) f iles a complaint; or (4) testifies, assists, or participa tes in any manner in an investiga tion, proce eding , orhear ing.

T E X .L A B O R C O D E A N N . § 21.055. One e x press purpose of Chapter 21 is to “provide for the execution of t he poli cies of Title VI I of the Civil Rights Ac t o f 1964 and its subsequent amendments.” T E X .L A B O R C O D E AN N
. § 21.001(1). There fore , our rea d i n g o f Chapter 21 is g uided by analog ous fede ral statutes and the

ca ses i nterpre ting them. Quantum C hemical Corpor ation v. T oennies , 47 S.W .3d 473, 4 7 6 (T ex . 2001); Ptom ey v. T

exas Tech University , 277 S.W .3d 487, 492 (Tex.App.--Ama rillo 2009, pet. denied)

. I n McD onnell Douglas Corporati on v. Gr ee n an d subsequent decisions, the Unit ed S tates Supreme Court established an allocation of the burden of production and an order for the
prese ntation of proof in cases wh ere there is only circ umstantial evidenc e of discrimination. See Ree ves v. Sanderson Plumbing Products, Inc ., 530 U.S. 133, 142, 120 S.Ct

. 2097, 2106, 147 L .Ed.2d 105 (2000); McD onnell Douglas Co r p o r a t i o n v. Gree n , 411 U.S. 792, 802-05, 93 S.Ct

. 1817, 36 L .Ed.2d 668 (1973); Quantum , 4 7 S.W .3d at 477. The McD onnell Douglas burden- shifting framework applies only to a case which has n o t been fully tried on the merits. See Ree ves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 142-43, 120 S.Ct

. 2097, 2106, 147 L .Ed.2d 105 (2000); W al-Mart Stores, Inc. v. Canchola , 121 S.W .3d 735, 739 (Tex. 2003). Thus, it is ty pically applied in the context of a summary judgme nt motion. See e .g. , Dias v. Goodman Manufacturing Company, L.P. , 214 S.W

. 3 d 6 72, 676-77 (Tex.App.--Houston [14t h Dist.] 2007, pet. denied) (apply ing McDonne ll Doug las fra mework in a reta liation case wher e summary ju dg ment
g rante d in favor of

employ er)

. Under this fra

mework, the plaintiff must first establish a prima facie case of discrimination

or reta liation. McD onnell Douglas , 411 U.S. at 802, 93 S.Ct

. at 1824; Quantum , 47 S.W .3d at 477;Dias v. Goodman Manufacturing Company, L.P. , 214 S.W .3d 672, 676 (Tex.App.--Houston [14t h

Dist.] 2007, pet. denied) ; Herbe rt v. City of Forest Hill , 189 S.W .3d 369, 377 (Tex.App.--F ort Worth 2006, no pet.)(holding that the McD onnell Douglas burden- shifting fra mework applies to reta liation claims in the same manner as to discrimination claims). The prec ise elements of this showing will
vary depending on the alleg ations. Quantum , 47 S.W .3d at 477. I n a reta liation action broug ht under Section 21.055, the plain t i ff is require d to make a prima facie showing that: (1) he eng ag ed in a protec ted activity ; (2) an adver se employ ment action occur

red; and (3) a causa l link exis ted betwee n the protec ted activity and the adver se action. Dias, 214 S.W .3d at 6 7 6 ; N iu v. Rev cor Molded Products Co. , 206 S.W .3d 723, 730-31 (Tex.App.-

- For t Worth 2006, no pet.). The plaintiff’s burden
at this stag e of the case is not onerous. Texas Departme nt of Community Affairs v. Burdine , 450 U.S. 248, 253, 101 S.Ct

. 1089, 1094, 67 L .Ed.2d 207 (1981). Establishment of the prima facie case in eff ect cre ates a presumption that the employ er unlawfully discriminated ag ainst the employ ee. Burdine , 450 U.S. at 254, 101 S.Ct

. at1094. I f the plaintiff is succe ssful, the burden shifts to the employ er to articula te a leg itimate, nondiscriminatory rea son for the adver se employ ment action. McD onnell Douglas , 411 U.S. at 802, 93 S.Ct. at 1824; Quantum , 47 S.W .3d at 477. The offe r of

a leg itimate rea son eliminates the presumption of discrimination cre ated by the pl ai n tiff’s prima facie showing

. See Quantum , 47 S.W .3d at 477. I n Burdine , the Supreme Court explained the eff ect of the de fenda

nt employ er me eting its burden of proof : I f the defe ndant car

ries this burden o f production, the presumption raised by the prima fac ie case is rebutted, and the fact u al i n q u iry proce eds to a new level of specific ity

. Placing this burden of production on the defe ndant thus serve s simult aneously to meet the plaintiff’s prima fac i e case by prese nting a leg itimate rea son for the action and to fra me the fac tual issue with sufficie nt clar ity so that the plaintiff will have a full and fair opportunity to demonstrate prete x t. The sufficie ncy of the defe ndant’s evidenc e should be evalua ted by the extent to which it fu l fi l ls these func tions.450 U.S. at 255- 56, 101 S.Ct

. at1094-95. The burde n then shifts back to the pla intiff to show that

the employ er’ s rea son was a prete x t for discrimination. McD onnell Douglas , 411 U.S. at 807, 93 S.Ct

. at 1826-27. Al t h o u gh intermediate evidentiar y burdens shift back and forth under this framework , t h e u ltimate burden of persua ding the trier of fac t that the defe ndant intentionally discrimi n at ed ag ainst the plaintiff rema ins at all times with the plaintiff. Ree ves v. Sanderson Plumbing Products , 530 U.S. 133, 143, 120 S.Ct

. 2097, 2106, 147 L .Ed.2d 105 (2000); Burdine , 450 U.S. at 253, 101 S.Ct . at1093. I n El Paso Community College v. Lawl er , this Court addre ssed an appea l from the denial of

a plea to the jurisdiction in an employ ment discrimination case wher e the g overnme ntal unit asser ted that its immunit y from suit was not waived beca use the plaintiff had failed to establish a prima facie

case of discrimination. El Paso Community College v. Lawler , --- S.W .3d --- , 2010 WL 4851390 (Tex.App.--El Paso 2010, no pet. h.). The issue joined in Lawl er was whether the plaintiff had made

a prima facie showing of di scrimination, not whether h e wa s re q u ired to do so in the contex t of a plea to the jurisdiction. I n other words, the plea focuse d on the first part of the McD onnell Douglas framework by asser

ting that the pla intiff could not establish a prima facie case of di scrimination. I n the instant case , the defe ndant’s jurisdictional challeng e is direc ted to the third part of the framework by arg uing that Dr. C h as e ca nnot show that EPCC ’s rea son for terminating him was prete x tual. EPCC has not cited and we are unawa re of any case s expressly holding that any part of the McD onnell Douglas fra mework is a jurisdictional fac t that can implicate the trial court’s subjectmatter jurisdiction in a discrimination or re taliation case filed under Chapter 21. The Waco Court of Appea ls has held that there are only two jurisdictional require ments for

a claim filed under Chapter 21: (1) the g overnme ntal entity must fall within Section 21.002(8)( D)’s definition of “employ er” ; and (2) the plaintiff must file an administrative complaint within 180 day sof any alleg ed discriminatory act as require d by Section 21.202(a) of the L abor Code. See Texas

Departme nt of Criminal Justice v. Guar d , No. 10-06-00065- CV, 2007 WL 1119572, at *2 (Tex.App.--Waco April 11, 2007, no pet.). The College arg ues that this decision is contra ry to the Supreme Court’s decision in Miranda

. Foc using on Miranda’s instruction that a trial court’s revie w of a plea t o t h e jurisdiction challeng ing the exis tence of jurisdictional fac ts mirrors that of a traditional motion for

summary judgme nt, Mirand

a, 133 S.W .3d at 228, the College contends that it should be able to challeng e any element of the plaintiff’s reta liation cause of action since it could raise such a challeng e in a motion for summary judgme nt. We do n o t rea d Miranda so broadly

. Miranda explains t he standa rd by which a plea to the jurisdiction is reviewed w here jurisdictional fac ts implicate the merits of the case , but it does not hold that non-jurisdictional issues or fac ts can be prope rly

raised in a

plea to the jurisdiction. I n State v. Lueck , the Texas Supreme Court held that the elements of a Whis tleblower claim under Section 554.002(a) of the Gover nment Code “ca

n be considere d to deter

mine both jurisdiction and liability .” Lueck , 290 S.W .3d at 883. The Court based its holding on the Whis tleblower Act’s immunit y provision which states that “[a] public employ ee who alleg es a violation of t his chapte r may sue the employ ing state or l ocal gove rnmental entity for the relief provided by this chapter.” Lueck , 290 S.W .3d at 881 (discussing T E X .G O V ’ T C O D E § 554.0035). Given this statutory lang uag e, the Supreme Court rea soned that a plaintiff must actua lly alleg e a violation of the Whis tleblower Act in order for there to be a waiver of immunit y from suit

. Id

. Chapter 21 does not include simil ar statutory lang uag e from which it could be conclude d that all of the elements of a discrimination or
reta liation claim must be alleg ed in order for there to be a waiver of immunit y from suit. I t follows that the pl aint i ff’ s alleg ed failure to satisfy some part of its burden under the McD onnell Douglas framework is likewise not a jurisdictional fac t. Acc ording ly , we hold that EPCC ’s challeng e cannotbe ra ised in a plea to the jurisdiction. Al t h o ug h Dr. Chase does not expressly reque st dismiss al of the appea l, that is the corr ect dispositi on beca

use EPCC has raised a

n issue in its pl ea to the jur isdiction that does not impl icate subject matter jurisdiction. See Texas Departme nt of Criminal Justice v. Simons , 140 S.W .3d 338, 349 (Tex. 2004)(dismissing inte rl o cu t o ry appea l from denial of plea to the jurisdiction based on inmate’s failure to provide the notice require d by Section 101.101 of the Tor t Claims Act be cause the notice r equire ment is not jurisdi ctional). We there fore dismiss the interlocutory appea l.

May 4, 2011 ANN CRAWFORD McCL URE, J ustice Be fore McClure, J., R ivera , J ., and B ara jas, C.J . (Ret.) Ba raja s, C.J . (Ret.), sitting by assig nment