## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

______ _________________

____ No. 02

- 19

- 00378

- CV

___________________________

On Appeal from County Court at Law No. 2

Denton County, Texas Trial Court No. CV

- 2017

- 00827
Before Kerr, Birdwell, and Womack, JJ. Memo randum Opinion by Justice Womack 

### U NIVERSITY OF 

### N ORTH 

### T EXAS 

### S YSTEM 

### , Appellant

V


### . L ISA 

### B ARRINGER 

### , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTION In this acceler ated interlocutor y appeal, 1 Appellant University of North Texas System appeals the trial court’s denial of its plea to the jurisdiction in this age

discrimination and reta liation case brought by Appellee Lisa Barringer. In four issues, UNT argues that the trial c ourt erred by denying its plea because (1) Barringer did not suffer an adverse employment action, (2) Barringer failed to establish she was replaced
or treated dis parately, (3) Barringer failed to establish an adverse employment action

or a causal connecti on between her supervisor’s knowledge of any alleged protected activity by her and the reason she left UNT’s employment, and (4) Barringer did not present sufficie nt evidence of pretext by UNT. Because we conclude that the jurisdictional evidence proves that Barringer resigned of her own free will and that she was not constructively discharged , we reverse the trial court’s order denying UNT’s plea to the jurisdicti on and render judgment that this case be dismissed for want of subject

- matte r jurisdiction.
II. B ACKGROUND Barringer, who at the time this suit was filed was fifty

- one years old, began working for UNT in March 2013 as its sole human resources (HR) proje ct manager.

1 See Tex. Civ. Prac . & Rem . Code Ann. § 51.014(a)(8) ; T ex. R. App

. P. 28.1(a).3

Barringer’s duties initially included various HR compliance and te chnology projects, but later, she was also assigned projects involving HR administrative responsibilities. According to Barringer, she had always received “an over all rating of exceeding expectations” on her informal and fo rmal performance reviews

. Initially, Barringer reported to either Alan Clemson or Steve Sosland, but in November 2014, Luis Lewin
b ecame Barringer’s direct supervisor. By Barringer’s account, no later than e arly 2015, Lewin transferred hi s executive assistant, Louise Hall, who was over seventy years old at the time, to another position under one of his subordinates for the purpose of terminating Hall’s employment. Afterward, Lewin hired Addyson Green, an ind ividual under thirty

y ears of age, to replac e Hall. Lewin allegedly then began to assign Green administrative projects and duties that had traditionally been Barringer’s responsibilities. He also began to remove most of Barringer’s complianc e and
technol ogy projects f

rom her and assign the m to other employees. Barringer contended that she sought direction from Lewin regarding her work on human resources compliance and technology projects, but that Lewin was “non

communicative with respect t o her request for assistance . . . to the point of absolutely ignoring her.” Barringer claims that she complained to UNT’s HR representatives about Lewin, but she was afforded no remedy. On August 12, 2016, as she was seeking assistance f

rom him regarding a p roject s he was working on, Lewin confronted Barringer. According to Barringer, Lewin subjected her to a “harangue”4

that included Lewin’s allegations that she had been inadequately performing her duties for the prior six months and tha t s he was not well li ked by o ther employees. During this encounter, Lewin allegedly also “threatened” her with administrative leave and an investigation based on complaints by others regarding her performance as co

presenter of a recent HR worksho p. Barr in ger pleaded that “[i]n the face of Lewin’s unjustified threat of administrative leave, investigation and discipline and threat of termination only, and for no other reason, [she] was constructively discharged from her position.” Specifically, Ba rringer al leged that she had to quit “with good cause” because she was
dissatisfied with Lewin’s lack of communication and feedback and because he had made false claims of her inadequate performance. Afterward, Lewin allegedl y eliminated Barringe r’s position, hired an assistant for Green (w ho is also under the age of thirty), and promoted Green with an increase in salary. Barringer filed a claim of discrimination with the Equal Employment Opportunity Commission and s ubsequently received a notice of right to file a civil action against UNT from the Texas Workforce Commission. Barringer later filed this suit in April 2017, claiming age discrimination and (eventually) retaliation in violation of Chapter 21 of the Texas Labor Code

. See Tex. Lab

. Code Ann. § 21.055

. More than two years later, UNT filed its plea to the jurisdiction claiming that it had sovereign immunity from this suit under the Texas Labor Code because Barringer
could not meet all prima facie elemen ts of her claims. Among several arguments,5

UNT claim ed that the jurisdictional evidence proved that Barringer had not suffered an adverse employment action by being constructively discharged, an element to both her age

- discri mination and retaliation claims. As part of its plea, UNT attached
several exhibit s including Barringer’s an d Lewin’s depositions. In her deposition, Barringer testified that she had initiated the me eting with
Lewin where he told her that it had been reported to him that at the HR workshop Barringer had made disparaging remarks about upper management and had m ade a pejorative comment regarding Muslims. Barringer said that she admitted to Lewin that she was “unprepared” to present the workshop, but she denied having made the pejorative comment, and she attributed her other comments to her joking. According to Barringer , Lewin told her that b ecause of her performance in the workshop, including the statements she allegedly made, he was going to place her on administrative leave while he was away on vacation and that there would be an
in vestigation into her condu ct at the workshop when he return ed. Barringer said that she asked Lewin whether he was going to fire her, and he told her that he had not
decided: Q: Okay. Did he tell you he was contemplating terminat ing you?
A: He said he h adn’t decided. Q: He did not say that he was contemplating it, based on all the complaints about [your] behavior?
A: No.6

By Barringer’s account, the insinuation that Lewin did not kno w whether he was going to fire her and that he would not decide until he returned from his two

w eek vacation left a cloud of uncertainty over her “that was just torture for no
reason.” Barringer admitted that she told Lewin that she did not want t o go through an investigation. And Barringer said that shortly after the meet ing, she gave Lewin a

two

- week notice 2 that she would be resigning, but “he refused ” to let her serve out the two weeks, and her resignation became ef fective immediately. Lewin testified in his deposition that he had told Barringer that he was placing
he r on administrative leave with pay while he was on vacation because of the alleged
comments she had made at the HR worksho p. Consistent with Barringer’s deposition

2 While Barringer said that she gave a two

- week notice, her August 12, 2016 resignation let ter states : It is with a great deal of sadness that I tender my resignation as P roject Manager for the H R Depar tment at the University of North Texas System effective today, August 12 th

. My tenure in t his role has been at times fr ustra ting and discouraging but also fun and challenging. I continue to be a pro ud UNT Alumni and I wish th e HR team all the best a s they strive to improve and succeed. Barringer testified that she was “ trying to resign with as much dignity and professiona lism as I could. ”7

testimony, 3 Lewin said that Barringer is the one who asked whether he was contemplating fir ing her , and he responded, “I’m contemplating it, but I’m go ing to place you on admin istrative leave pending an investigation .” By Lewin’s account, less than an hour after this conversation, Barringer informed him that she was resigning. Becau se of that , Lewin said tha t a formal investigation never took place , but if it had, someone outside of HR would have
conducted it: Q: But you never did the investigation because she refused?

. . . . A: I couldn’t do the investigation without her

— gi ving her, you k now, a fair chan ce to tel l her story. Q: So is that a formal, like, interview ? Would you be doing the interview, or would it be a third party?
A: We had

—

we had a practice in HR that if there was a complaint about an HR

— with an HR pe rson, we would never make the investi gation. We would call the General Counsel and ask them to recommend a third party from the outside to do an investigation not to show any bias, you know, or unfairness in the investigation, per se. Q: So you couldn’ t threaten [Barringe r ] with an invest igation b y you, correct?

. . . . A: Correct.

3 Barringer testified in her deposition that Lewin had told h er that the reason he was p lacing h er on a dministrative leave was because he was “ going on vac ation , and I don ’ t want to de al with this now. ”8

Lewin stated that had an investigation revealed that Barringer had not made the offensive statements in the HR workshop, she “[a]bsolutel y” would have retained her job. But Lewin said that he did not believe Barring er when she said she had not made inappropriate or pejorative comments in the HR workshop. 4 UNT also provided the trial court with Hall’s affidavit. Hall stated that she never heard Lewin describe her as “old school” and that s he did not believe that
Le win or any other UNT employee ever treated h er differently or unfairly “because o f [ her ] age.” She also swore that Barringer had never complained to her “about any age discrimination by [Lewin].” After having a hearing on UNT’ s pl ea to the jurisdiction, the trial court denied the plea. This appeal followed.
III. D ISCUSSION In its first issue, UNT argues that Barringer failed to establish an adverse employment action and that because an adverse employment action is necessary to

e stablish a prima faci e case of either age discrimination or retaliation, Barring er failed to produce sufficient evidence of a critical element to both of her claims. Specifically,

4 Also attached to UNT’s plea to t he ju risdiction a re what appear to be two completed feedback forms from attende es of t he HR workshop. One form indicated that Barringer did “not seem prepared” for the worksho p and that she “sometimes seemed a bit insulting to the group.” Another form ha d the comment that Barringer was “a little unprepared” for the workshop. Barri nger’s co

- presenter of the workshop

— the employee who allegedly brought Barring er’s conduct in the workshop to Lewin’s attention

— on the other hand received revie ws of being “exce llent ” and “Wonderful! A++!”9

UNT argues that Barringer failed to rebut UNT’s evidence that she was n ot

c onstructively discharge d. Thus, UNT argues, the trial court erred by denying its plea

. We agree.
A. Standard of Review A trial court’s ability to hear a case lies in its subject

- matter jurisdiction. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). “A plea t o the jurisdiction is a
dil atory plea that seeks dismissal of a case for lack of subject matter jurisdiction.” Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004) (citing Bland , 34 S.W.3d at 554). A plea to the jurisdiction may be used to assert gove rnmental immunity and
defea t 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 p lea 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 & Wildlif e

v. Miranda , 133 S.W.3d 217, 227 (Tex. 200 4); 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. Mir anda , 133 S.W.3d at 227

– 28. But if the rel evant evidence is undispute d 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. The standard mirrors our review of summary judgments, whe re we10

take as true all evidence favorab le to the non

- movant, indul ging 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). B. Waiver of Governmental Immunity and the McDonald Douglas Framework
Both of Ba rringer’s claims fall under t he Texas Commission on Human Rights Act (TCHRA). See Tex. Lab

. Code Ann. §§ 21.051 (age discrimination), 21.055 (retaliation). The TCHRA waives governmental immunity but only in thos e i nstances in which “the plaintiff actuall y alleges a violation of t he TCHRA by pleading facts that
state a claim thereunder.” Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629,
63 6 (Tex. 2012). Absent a pleading stating a claim under the TCHR A, the governmental entity’s immunity from suit has not been waived. Id . at 637. There are two alternative methods by which a plaintiff can establish
discrimination or retaliation under the TCHRA. See Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473, 476

– 7 7 (

Tex. 2001). An employee can offer direc t 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 presumpt io n . Coll. of the Mainland v. Glover , 436 S. W.3d 384, 392 (Tex. Ap p.

— Houston [14th Dist.] 2014, pet. denied)

. Alternatively, because direct evidence o f discrimination or retaliation is a “rarity” in employment cases, courts allow claims to proceed with indirect or
circumstantial evidence of discrimi nation or retaliation. See Russo v. Smith Int ’ l, Inc. ,11

93 S.W.3d 428, 434 (Tex. App.

— Houston [14th Dist .] 2002, pet. denied). Under this second method, which applies in th is case, Texas courts follow the burden

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

. 5 See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802

– 05 , 9 3 S. Ct. 1817, 18 24

– 26 (1973);
Glover , 436 S.W.3d at 392.
Under the Mc

Donnell 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 p rima f acie case of discrimination. See Mission Consol. , 372 S.W.3d at 63 4

. The prima facie case raises an inference of discrimination because
courts p resume these acts, if otherwise unexplained, are more likely than not based on the consideration of impe rmissible fact o rs. See id

. Once a plaintiff has established a prima facie case of discrimination , the burden shifts to the defendant to produce
eviden ce of a legitimate, nondiscriminatory reason for the adverse employment action. See M.D. Anderson Hosp. & Tumor Inst

. v. Willrich , 28 S.W.3d 22, 24 (Tex. 2000) (per curiam)

. A plainti ff “ will only be required to submit ev idence if the defendant
presents evidence negating one of ” the basic fact s that make up the p rima facie case.
Mission Consol. , 372 S.W.3 d at 63 7

.

5 Analogo us federal statutes and the cases interp reting them guide our readi ng of the TCHRA. Mission Consol. , 372 S.W.3d at 634

.12

C
. Adverse Employment Action and Constructive Discharge An age discr im ination prima facie case requires that the plaintiff show that she

s uffered an adverse employment action. See Mission Consol

. , 372 S.W.3d at 634 ; Bowen
v. El Paso Elec. Co

. , 49 S.W.3d 90 2, 908 (Tex. App.

— El Paso 2001, pet. denied). Likewise, a retaliat io n prima facie case requires the plaintiff to produce evidence that

s he suffered an adverse employment action

. 6 See Alamo Hei ghts Indep. Sch. Dist. v.
Clark , 544 S.W.3d 755 , 789 (Tex. 201 8) ; Bartosh v. Sam Houston State Univ. , 259 S.W.3d 317, 329 (Tex. A pp . —

Texarkana 2008, pet. denied); Dias v. Goodman Mfg. Co., L.P. , 214 S.W.3d 672, 676 (Tex. App.

— Houston [14th Dist.] 2007, pet

. denied ). One way of demonstrating an adverse employment action is with proof that an employee was constructively discharged. Waffle Ho use, Inc. v. Williams , 313 S.W.3d 796, 805 (Tex. 2010).
A con structive discharge occurs when an employer makes conditions s o intolerable that an employee reasonably feels compelled to res ign. See Baylor Univ. v. Coley , 221 S.W.3d 599, 604

– 05 (Tex. 2007) ( citing Penn. State Police v. Suders , 542 U.S. 129, 141, 124 S . Ct. 2342, 2351 (2004) ) ; Hammond v. Katy Indep. Sch. Dist. , 8 21 S.W.2d 174, 177 (Tex. App.

— Houston [14t h Dist.] 1991, no writ ). Many factors are relevant

6 Citing Burlington Northern & Santa Fe Railway Co. v. White , Barringer claims that an “adverse e mploy ment action

. . . is actually not re quired to establish an ac tionable claim of reta liation . . . .” 548 U.S. 53, 69

– 70, 126 S. Ct. 2405, 2415

– 16 (2006)

. But the Supreme Court of Texas explained in Alamo Heights that an employee must experience a “ma teria l adverse employment act ion” to establish a prima facie case of retaliation under t he TCHRA. 544 S.W .3d at 782

.13

to the consideration of whether the p la intiff was constructively discharged, including
evidence of b adgering, harassment, or humiliation by the employer calculate d to encourage the employee’s resignation. Davis v. City of Gra pevine , 188 S.W.3d 748, 766 (Tex. App.

— Fort Worth 2006, pet. denied ) , abrogated on other grounds by Lujan v. Navistar, Inc. , 555 S

. W.3d 79, 87 (Tex. 2018). I n deciding if the work conditions meet that standard , c ourts consider a numbe r of employer actions, such as demotion or a reduction in salary or job responsibilities

. Aryain v. Wal

- Mart Stores Tex. LP , 534 F.3d 473, 481 (5th Ci r. 2 008). But potential disciplinary action, investigations into alleged
work

- place violations, or work

- place criticisms are insufficient alone to cause a reasonable person to resign. See Wal

- M art Stores, Inc. v. Bertrand

, 37 S.W.3d 1, 9 (Tex. App.

— Tyler 200 0, pet. denied) . And courts “have repeatedly held that complaints of ostracism and personality conf licts , unfair criticism, and heated exchanges are petty
annoyances, not co nduct likely to deter an employee from making a discrimination

co mplaint.” Al

amo Heights , 544 S.W.3d at 78 9 ; see also Burlington , 548 U.S. at 6 8 , 126 S.
Ct. at 2415 ( r easoning that “ ‘ p er sonality conflicts at work that generate antipathy ’ and

‘ snubbing b y supervisors and co

- workers ’ are not actionable” under Title VII ) (quoting 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) )

. Evidence that an employee was forc ed to choose between resig ning or being fired may also be sufficien t to raise a fact issue regarding constructive discharge.
Gardner v. Abbott

, 4 14 S.W.3d 369, 383 (Tex. App.

— Austin 2013, no pet.); Perret v.14

Nationwide Mut. Ins. Co. , 770 F.3d 336, 33 8

– 39 (5th Cir. 2014). In these so

- called “ultimatum” cases, courts requ ire something beyond the employee’s subjective belief
that termination was inev itable. See Perret , 770 F.3d at 338

– 39 (holding that employees were not given ultimatum when employer pl aced employees on a performance improvement plan, which was the last step in employer’s process for terminating employees) ; Faruki v. Parsons S.I.P., I nc. , 123 F.3 d 315, 319 (5th Cir. 1997) (reasoning ultimatum standard met when supervisor told employee he should find a nother job,
and he had one week befo re he would be placed on indefinite unpaid leave); Davis , 188 S.W.3d at 766 (holding ultimatum s tanda rd met when manager informed employee that “it would be in his best interest if he decid ed to resign rather than b e terminated because future employers may ask the City whether Davis resigned or was terminated”).
D. No Evidence of Constructive Disc harge
Barri nger argues, as she did in the trial court, that the cumulation of Lewin’s

recent unsatisfacto ry performanc e reviews of her, his telling her that sh e was unliked by her coworkers, his assuming the truthfulness of the allegation that she had made inap propri ate comments at the HR workshop, his alleged position that an investigation would not change h is mind about terminating her employment, and his

ac tu al threat of termination all led her to reasonably believe she needed to resign. We disagre e.15

Regar ding Lewin’s recent unsatisfactory performance reviews, it is well

established that work

- place cr iti cisms are insufficient to cause a re as onable person to resign for purposes of establishing constructive discharge. Bertrand , 37 S.W.3d at 9.
A s to Le win’s telling Barringer that she was disliked by fellow employees, this

comment amounts to no thing mor e t han potentially unfair criticism abo ut personality
conflicts and is “not conduct likely to deter an employee from making a discrimination compla int.” Alamo Heights , 544 S.W.3d at 789. The evidence also does not support Barringer’s contention t hat Lewin ha d already assumed the truthfulness o f the allegations against her and thus an alleged investigation would have been a sham. Indeed, Lewin testi fied at his deposition that he intended to have these claims investigated once he returned from his two

- week

vac ation and that had the results of an i nvestigation exonerated Barringer, she would have “[a]bsolutely” retained her position at UNT. Further, investig ation s into alleged
work

- place violations are insufficient alone to cause a reasonable person t o resign.
Bertrand , 37 S.W.3d at 9. A dditionally, believing one employee’s version of events over another’s is not evidence of constructive discharge

. Tex. St ate O ffice of Admin. Hearings v. Birch , No. 04

- 12

- 00681

- CV, 2013 WL 3874473, at * 8 (T ex. App.

— San
A ntoni o July 24, 2013, pet. denied) (mem. op.) (reasoning that belief in “one employee’s statements over another’s is not supportive of a claim for constructi ve di scharge. If so, employers would be subject to a constructive discharge claim eac h
time there w as a dispute between two or more e mployee s . . . .”).16

Barringer points to no evidence in the record that Lewin did not intend to do exactly what she testi fied he told her, which was that he was placing her on paid leave pending an investiga tion. And to the e xtent that Barringer contends that L ewin’s testimony that he did not believe her explanations for what occurred at the HR workshop demonstrate s that he had already predetermined to terminate her employment, Barringer has pointed to no ev idence in the recor d contradicting Lewin’s
testi mony th at he told her that an investigation into these allegations would occur prior to making a deci sion as to her employ ment. M oreover , the evidence
demonstrates that Lewin would not have been the one cond ucting the inv estig ation into Barringer’s behavi or at t he HR workshop , and Lewi n said he did not have the authority to threaten Barringer with an inve stigation by him

. And t o the extent that Barringer contends that her allegations that Lewin took
away a project tha t B arrin ger wanted and gave it to a y ounger employee constitutes a factor demonstrating constructive discharge, e ven if a change in job assignments is
based on disc riminatory action, that alone, without the presence of aggravating factors, 7 is n ot sufficie nt to sh ow constructive discharge. J ett v. Dallas Indep

. Sch

. Dist. , 798 F.2d 748, 755 (5th Cir. 1986), remanded in part on other grounds , 491 U.S. 701,

7 “ Aggravating factors ” include hostile working conditions and any other evidence suggesting any invidious intent on the part of the employ er in creating or perpetuatin g the i ntolerable conditions compelling retirement or resig nation. Pittman v . Hattiesburg Mun

. Separate Sch

. Dist. , 644 F.2d 1071, 1074 (5th Cir. 1981 )

. Barringer has not pointed to any evidence showing that she experienced p erpet ually intolerable condit ions co mpelling her resignation.17

109 S

. Ct. 2702 (1989). Furthermore, constructive discharge cannot be based upon the employ ee ’ s subjectiv e pre ference for one position over anothe r. Id

. Barringer also contends that Hall was fired 8 and replaced by a younger worker and that Hall had been subje cted to age discrimination and that this is a factor demonstrating she was cons tructively dis charged. In her affidavit, howeve r, Hall stated that she had never been subjected to age discrimination by Lewin or any UNT employee, that she had never heard Lew in de scribe her as “old school,” and that Barringer had never complained t o her (Hall) “about any age disc rimination by [Lewin] .” We conclude that not only is there no evidence that Hall was subjected to age discrimination, the contrary is true: UNT pres ented undisputed evidence that
Hall never experienced age discrimination a t UNT

. I f the rele vant undisput ed evidence negates j urisdic tion, then the plea to the jurisdiction must be granted. S tate v. Holland , 221 S.W.3d 639, 643 (Tex. 2007 )

. Additionall y, th ere is no evidence that Lewin threatened Barringer with terminating her em ployment. Fir st, Barringer is the one who initi ated th e meeting with Lewin. Second, Barringer’s own testimony establishes that L ewin had not

8 Hall disputes that she w as fired. Rather, Hall stated in her September 18, 2019 affidavit, After I re tired in April 20 16, I was rehired a few weeks later with [Lewin’s] approval to work in t he Sy stem Human Resources Dep artment on a part

- time basis. This allowed me to collect m y full retirement benefits and also continue to work for the System. I am stil l currently emplo yed in this position.18

mentioned firing Barringer until s he as ked him whether he was considering firing her. Indeed, Barringer admitted in her deposi tion that whe n she did ask Lewin w hether he would fire her, he said that he had not yet decided. Third, Barringer’s belief that it was “torture” to be placed on p aid a dministrative leave while Lewin was away for two weeks is nothing more tha n Barringer’s subjective be lief that termination was in evitable. Faruki

, 123 F.3d at 319

. Fourth, the resignation letter that Barringer sent on the day of the meeting with Lew i n ma kes no mention of any termination. In coming to a different conclusion, Barringer argu es that Faruk i supports her positi on that she had effectively been given an ultimatum, but in Faruki the plainti ff’s deposition testimony was that the employer had spec ifically told him that he “should find another job, as [the employer] woul d be unable to retain him, and that he had

one w eek bef

ore he would be placed on indefinite unpaid leave.” Id

. There is simply
no evidence in this record that Lewin told Barri nger that she should find another job or that she would be placed on unpaid le a ve. In fact, both Lewin’s and Ba rringer ’s deposition testimony established that Lewin intended to place Barrin ger on paid leave pending his return from vacation and an investig ation into Barringer’s alleged statements made at the HR workshop. In short, F aruki and this case have ve ry lit tle
in common. Accordingly, Barringer has failed to present any evidence that Lewin made conditions at work so intolerable that she reasonably felt compelled to resign. See Coley , 221 S.W.3d at 604

– 05.19

Because the und is puted evidence negated one of th e prima facie elements to both her age

- discrimination and retalia tion claims ( an adverse employment action in the form of constructive discharge) and Barringer ’ s evidence failed to raise a fact issue

o n that element , the tri al court erred by denying U NT’s plea to the jurisdiction. We
sustai n UNT’s first issue. B ecause our resolution of UNT’s first issue is dispositive of this case, we n eed not ad dress UNT’s remaining three issues. See Tex. R. App. P.
47.1.
IV. C ONCLUSION Having held that the trial court erred by denying UNT’s plea to the jurisdiction, we reverse the trial court’s order and render judgment that Barringer’s suit be
dismi ssed for l ack o f the trial court’s subject

- matter jurisdiction.

/s/ Dana Womack
Dana Womack Justice
Delivered: September 10, 2 020