COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE UNIVERSITY OF TEXAS 

AT EL PASO,

 Appellant,

v.

DIANA RUIZ ESPARZA,

 Appellee. 

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No. 08-14-00314-CV

Appeal from

County Court at Law No. 3

of El Paso County, Texas

(TC # 2013-DCV-4283)

OPINION CONCURRING IN PART AND DISSENTING IN PART

I concur with the majority that issue preclusion does not bar Esparza’s claims and that 

Esparza should be allowed the opportunity to replead her age, national origin, and gender claims 

because her pleadings, although deficient, do not affirmatively negate the existence of 

jurisdiction. I respectfully dissent, however, to the majority’s decision to remand Esparza’s 

retaliation claim. In my opinion, UTEP presented sufficient evidence to establish a lack of 

causation by showing that Esparza’s retaliation claim arose from alleged defects in a hearing that 

occurred after her termination. It then became Esparza’s burden to present some evidence to 

raise a fact issue that any defects in the post-termination hearing were somehow a causal factor 

in her termination. Because Esparza did not present any such evidence, her retaliation claim 

should be dismissed.
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We were faced with a similar issue in Esparza I. There, we noted that it is axiomatic that 

a plaintiff cannot show a causal link in a retaliation case when the employer’s alleged acts 

occurred before the plaintiff engaged in a protected activity. Esparza v. Univ. of Texas at El 

Paso, 471 S.W.3d 903, 914 (Tex.App.--El Paso 2015, no pet.). In holding that the jurisdictional 

evidence negated causation on Esparza’s retaliation claim in Esparza I, we relied in part on 

Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013). Id. 

In Farran, the Texas Supreme Court considered whether the jurisdictional evidence 

negated causation in Farran’s claim under the Whistle Blower Act. After the school board had 

given notice of its intent to terminate him, Farran made a report of an alleged crime to the FBI. 

409 S.W.3d at 656. The Supreme Court held that in order to prevail on a theory that the FBI 

report caused his termination, Farran had the burden to show that but for his FBI report, the 

school district would have changed its mind and retained him. Id. Farran, like Esparza, claimed 

that in a subsequent due process hearing held after the school board had given notice of its intent 

to terminate, he was unable to present evidence relevant to his whistleblower claims. Id. The 

Supreme Court held that: “Regardless, the record is devoid of evidence that the board would 

have been persuaded to change its mind but for the report to the FBI, that the report had any 

influence on the hearing officer’s recommendation that the initial termination decision be

sustained, or that the report otherwise played a role in the board’s preliminary or final 

termination decisions.” Id. 

Similarly, once UTEP demonstrated through jurisdictional evidence that the due process 

hearing occurred after Esparza’s termination, Esparza had the burden to present evidence to at 

least raise a fact issue that any defects in the post-termination hearing were somehow a causal 

factor in her termination. To do this, Esparza could have presented the evidence she claims she 
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was barred from presenting at the post-termination hearing, in order to show that UTEP would 

have been persuaded to change its mind but for its exclusion. Or assuming Cantu v. Hidalgo 

County, 398 S.W.3d 824, 829 (Tex.App.--Corpus Christi 2012, pet. denied) applies, Esparza 

could have presented some evidence showing that the remedies and procedures of UTEP’s posttermination process entitled her to a better chance of reinstatement or more relief than TCHRA. 

But, because Esparza presented no such evidence, her retaliation claim should have been 

dismissed. Accordingly, I would sustain UTEP’s third issue and dismiss the retaliation claim. 

September 28, 2016

STEVEN L. HUGHES, Justice