Opinion issued August 12, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00695-CV

———————————

KIPP, INC., Appellant

V.

KIMBERLY WHITEHEAD, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Case No. 2011-70657

O P I N I O N

In this interlocutory appeal,

1

appellant, KIPP, Inc. (“KIPP”), challenges the 

trial court’s order denying its plea to the jurisdiction

2 on the claims brought against 

 1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2013) 

(permitting governmental unit to appeal order denying plea to jurisdiction).
2

it by appellee, Kimberly Whitehead, for employment discrimination based on her 

sex and race.

3

 In five issues, KIPP contends that the trial court erred in denying its 

plea.

4

We affirm.

Background

In her original petition, Whitehead, who is Caucasian, alleges that KIPP, an

open-enrollment charter school,5 employed her as an “Administrative Learning 

Specialist” from April 2009 to February 17, 2011, when it terminated her 

employment. Later, KIPP designated her as a “Facilitated Support Service 

employee,” assisting teachers with failing students.

In summer 2010, KIPP hired Daphane Carter, who is African-American, as 

the new “School Leader,” or principal. In August 2010, Whitehead, while 

pregnant, suffered a serious illness requiring her hospitalization and absence from 

 2 Although KIPP challenged the trial court’s jurisdiction in both its summaryjudgment motions and its plea to the jurisdiction, we review KIPP’s challenge as 

one to the trial court’s denial of its plea to the jurisdiction. See id.; Tex. Dep’t of 

Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004).

3 See TEX. LAB. CODE ANN. §§ 21.002–.556 (Vernon 2006 & Supp. 2013).

4 Whitehead acknowledges in her brief to this Court that she has abandoned her 

retaliation claim. Thus, we need not address KIPP’s first issue, in which it argues 

that Whitehead has abandoned the claim. Cf. MacFarlane v. Burke, No. 01-10-

00409-CV, 2011 WL 2503937, at *4 (Tex. App.—Houston [1st Dist.] June 23, 

2011, no pet.) (mem. op.) (reciting elements of judicial admission).

5 See TEX. EDUC. CODE ANN. § 12.105 (Vernon 2012) (“An open-enrollment 

charter school is part of the public school system of this state.”).
3

work under the Family Medical Leave Act (“FMLA”).6 Carter in turn assigned 

Whitehead’s duties to Andrea Dozier, who is also African-American, while 

Whitehead was out on FMLA leave.

Whitehead further alleges that when she returned to work from her FMLA 

leave on October 5, 2010, she “was assigned job duties that were different from the 

job duties she discharged prior to her . . . medical leave.” When she asked for her 

job duties to be reassigned to her, she “was told that would not happen because 

[she] was about to go on maternity leave,” but she “was assured that upon 

returning from pregnancy leave, her old job duties would be given back to her.”

On November 2, 2010, Whitehead went on maternity leave, and she 

delivered her baby the following day. When she returned to work on December 3, 

2010, she “asked for her old job back,” but was told “that would happen after 

Christmas.” When Whitehead met with Carter about her job on January 11, 2011, 

Carter then told her, “You don’t fit i[n]. You just had a baby. You’re just an 

overpaid teacher. I can’t afford your salary. I gave your job away. You cannot do 

this job having children. Things have changed around here. If you don’t like it, 

you need to apply at Nordstrom.”

Subsequently, after Whitehead refused to resign, “Carter became very 

hostile toward” her, and on February 9, 2011, during a job-performance evaluation, 

 6 See 29 U.S.C. §§ 2612(a)(1), 2614(a)(1) (2012).
4

Carter told her that she “was not doing her job.” Immediately afterward, 

Whitehead filed a complaint with Chuck Fimble, KIPP’s Human Resources 

Director, asserting “FMLA discrimination, a hostile work environment, and race 

discrimination.” On February 17, 2011, Carter called Whitehead into a meeting 

with Fimble, and she handed Whitehead a letter terminating her employment.

Whitehead then filed a discrimination charge against KIPP with the Equal 

Employment Opportunity Commission (“EEOC”) and the Texas Commission on 

Human Rights (“TCHR”), alleging retaliation and discrimination based on race and

sex.

Whitehead filed the instant suit after the TCHR issued her a “right-to-sue” 

letter. KIPP answered and then filed a matter-of-law and no-evidence summaryjudgment motion and a plea to the jurisdiction, asserting sovereign immunity. In 

its plea, KIPP argued that the trial court did not have subject-matter jurisdiction 

and should dismiss the suit because Whitehead “cannot prove essential elements of 

her claims.” KIPP asserted that Whitehead lacked standing to assert a pregnancydiscrimination claim as she was not a member of a protected class, did not suffer 

an adverse employment action in connection with her race, cannot establish a 

causal connection between her human-resources complaint and the termination of 

employment, cannot demonstrate that KIPP’s stated rationale for terminating her 
5

employment was based on a pretext, and lacked evidence to support the essential 

elements of her claims.

Whitehead responded, arguing that the trial court had subject-matter 

jurisdiction over her claims because her pleaded allegations establish “a prima 

facie case of pregnancy and race discrimination.” The trial court denied KIPP’s 

plea to the jurisdiction and summary-judgment motions.

Standard of Review

We review de novo a trial court’s ruling on a jurisdictional plea. City of

Hous. v. Vallejo, 371 S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet. 

denied). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case 

for lack of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 

(Tex. 2004). A plaintiff has the burden to allege facts that affirmatively 

demonstrate that the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus. 

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the 

jurisdiction can be utilized to challenge whether the plaintiff has met her burden of 

alleging jurisdictional facts, but it can also raise a challenge to the existence of 

jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226–27 (Tex. 2004). When reviewing a trial court’s ruling on a jurisdictional 

plea, we construe the pleadings liberally in favor of the pleader, accept all factual 
6

allegations as true, and look to the pleader’s intent. Heckman v. Williamson Cnty., 

369 S.W.3d 137, 150 (Tex. 2012).

A trial court’s review of a plea challenging the existence of jurisdictional 

facts mirrors that of a matter-of-law summary-judgment motion. Mission Consol. 

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133 

S.W.3d at 228; see also TEX. R. CIV. P. 166a(c). Thus, the court can consider 

evidence as necessary to resolve any dispute over the jurisdictional facts, even if 

the evidence “implicates both the subject matter jurisdiction of the court and the 

merits of the case.” Miranda, 133 S.W.3d at 226. The defendant is required to 

meet the summary-judgment standard of proof on its assertion that the trial court 

lacks jurisdiction; once the defendant meets its burden, the plaintiff is then required 

to show that there is a disputed material fact regarding the jurisdictional issue. Id. 

at 228. If the evidence creates a fact question regarding jurisdiction, the trial court 

must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id.

at 227–28. On the other hand, if the evidence is undisputed or fails to raise a fact 

question on the jurisdictional issue, the trial court rules on the plea to the 

jurisdiction as a matter of law. Garcia, 372 S.W.3d at 635.

Governmental Immunity

Under the common-law doctrine of sovereign immunity, the state cannot be 

sued without its consent. City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex. 
7

2011). Governmental immunity operates like sovereign immunity to afford similar 

protection to subdivisions of the state, including counties, cities, and school 

districts. Sykes, 136 S.W.3d at 638. Like sovereign immunity, “governmental 

immunity has two components: immunity from liability, which bars enforcement 

of a judgment against a governmental entity, and immunity from suit, which bars 

suit against the entity altogether.” Tooke v. City of Mexia, 197 S.W.3d 325, 332

(Tex. 2006). Governmental immunity from suit deprives a trial court of subjectmatter jurisdiction and is properly asserted in a plea to the jurisdiction. See 

Miranda, 133 S.W.3d at 225–26. As an open-enrollment charter school, KIPP 

enjoys governmental immunity from suit. LTTS Charter Sch., Inc. v. Palasota, 

362 S.W.3d 202, 208 (Tex. App.—Dallas 2012, no pet.).

The Texas Legislature has provided a limited waiver of sovereign and 

governmental immunity for employment discrimination and retaliation claims 

falling within Chapter 21 of the Texas Labor Code. See TEX. LAB. CODE ANN.

§§ 21.051(1), 21.055 (Vernon 2006) (prohibiting unlawful employment practices 

by “employer”); see also id. § 21.002(8)(D) (Vernon Supp. 2013) (defining 

“employer” to include “a county, municipality, state agency, or state 

instrumentality”). To establish waiver, a plaintiff must plead the elements of her 

statutory cause of action, i.e., the basic facts that make up a prima facie case, so 

that a court can determine whether she has sufficiently alleged a violation under 
8

Chapter 21; she will only be required to submit evidence if the defendant presents 

evidence negating one of those basic facts. Garcia, 372 S.W.3d at 637.

Although the Texas Legislature has waived immunity for suits brought 

against school districts under Chapter 21, immunity is waived only for those suits 

in which “the plaintiff actually alleges a violation” of Chapter 21 “by pleading 

facts that state a claim thereunder.” Garcia, 372 S.W.3d at 636. In other words, a 

plaintiff must actually allege a violation of Chapter 21 in order for there to be a 

waiver from suit. Id. at 636–37. Failure by a plaintiff to allege a Chapter 21

violation means the court has no jurisdiction and the claim should be dismissed. 

Id. at 637. This standard does not require the plaintiff to marshal evidence and 

prove her claim. Id. Again, the plaintiff is required to submit evidence only if the 

defendant presents evidence negating one of those basic facts. Id.

Employment Discrimination

In its second and third issues, KIPP argues that the trial court erred in 

denying its plea to the jurisdiction on Whitehead’s claim against it for 

discrimination based on sex because (1) she was not “a member of a protected 

class based on pregnancy when she was not pregnant at the time” it terminated her 

employment and (2) “neither she nor her replacements were pregnant.” In its 

fourth issue, KIPP argues that the trial court erred in denying its plea on 

Whitehead’s claim against it for discrimination based on race because she cannot 
9

establish she was “replaced by an African-American employee.” In its fifth issue, 

KIPP argues that the trial court erred in denying its plea on Whitehead’s claims

against it for discrimination based on both sex and race because she did not 

establish that its “legitimate, nondiscriminatory . . . reasons for terminating her 

employment were pretextual.”

Whitehead brings her claims against KIPP for employment discrimination, 

based on sex and race, under Chapter 21. See TEX. LAB. CODE ANN. §§ 21.001–

.556 (Vernon 2006 & Supp. 2013). Chapter 21 “is a comprehensive fair 

employment practices act and remedial scheme, modeled after Title VII of the 

federal Civil Rights Act of 1964,” which “provides the framework for employment 

discrimination claims in Texas.” Prairie View A & M Univ. v. Chatha, 381 

S.W.3d 500, 502–03 (Tex. 2012). Chapter 21 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 retaliation laws under Title VII.” 

Id. at 504 (quoting City of Waco v. Lopez, 259 S.W.3d 147, 153–55 (Tex. 2008)). 

Although we consider the plain language of Chapter 21 and state case-law 

precedent in interpreting Chapter 21, because of its relationship to Title VII, we 

also look to federal law for guidance in situations where Chapter 21 and Title VII 

contain analogous statutory language. Id. at 505.
10

Under Chapter 21,

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 

individual, or discriminates in any other manner against an 

individual in connection with compensation or the terms, 

conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for 

employment in a manner that would deprive or tend to deprive 

an individual of any employment opportunity or adversely 

affect in any other manner the status of an employee.

TEX. LAB. CODE ANN. § 21.051. Discrimination based on sex includes 

discrimination because of pregnancy, childbirth, or related medical conditions. Id.

§ 21.106(a) (Vernon 2006). The employee may establish discrimination by either 

direct or circumstantial evidence, or both. Garcia, 372 S.W.3d at 634, 638; 

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476–77 (Tex. 2001).

Direct vs. Circumstantial Evidence

At the outset, KIPP, in support of its arguments made in its second, third, 

and fourth issues that the trial court erred in denying its plea on Whitehead’s 

claims against it for discrimination based on sex and race, first asserts that she “has 

no direct evidence” of discrimination, as Carter’s alleged behavior towards

Whitehead was not “discriminatory in nature.” It further argues that none of 

Carter’s “comments, even if true, constitutes direct evidence of discrimination 
11

because each requires an inference or presumption to discern a discriminatory 

animus.” In response, Whitehead asserts that the comments that Carter made to 

her at their January 11, 2011 meeting do constitute direct evidence of 

discrimination.

In an employment-discrimination case, if the employee produces direct 

evidence that discriminatory animus played a role in the decision at issue, the 

burden of persuasion shifts to the employer, who must prove that it would have 

taken the same action regardless of discriminatory animus. Price Waterhouse v.

Hopkins, 490 U.S. 228, 250–53, 109 S. Ct. 1775, 1790–92 (1989); Sandstad v. CB 

Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002); Walcott v. Tex. S. Univ., No. 

01-12-00355-CV, 2013 WL 593488, at *4 (Tex. App.—Houston [1st Dist.] Feb. 

14, 2013, no pet.) (mem. op.).

“Direct evidence of discrimination is evidence that, if believed, proves the 

fact of discriminatory animus without inference or presumption.” Jespersen v. 

Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no 

pet.); see also Sandstad, 309 F.3d at 897. “If an inference is required for the 

evidence to be probative as to the employer’s discriminatory animus in making the 

[adverse] employment decision, the evidence is circumstantial, not direct.” 

Jespersen, 390 S.W.3d at 653–54; see also Sandstad, 309 F.3d at 897–98. 

Generally, statements that courts have found to constitute direct evidence of 
12

discrimination are insults or slurs made against a protected group. See Jespersen, 

390 S.W.3d at 654; see also Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 

(5th Cir. 1994) (discussing case in which supervisor routinely made open racial 

slurs); Martin v. Bayland Inc., 403 F. Supp. 2d 578, 582 (S.D. Tex. 2005), aff’d, 

181 F. App’x 422 (5th Cir. 2006).

Here, in deposition testimony attached to Whitehead’s response to KIPP’s 

plea to the jurisdiction, Whitehead testified that when she met with Carter about 

her job on January 11, 2011, Carter told her, “You don’t fit in. You don’t fit in 

anymore. I gave your job away.” Further, Carter stated, “You are just an overpaid 

teacher. . . . You just had a baby. I gave your job away. What do you want me to 

do? You just don’t fit in.” And, “Things have changed. If you don’t like it, you 

can . . . go work at Nordstrom’s.” Whitehead also explained that “Carter told [her] 

that [she] couldn’t handle th[e] job having children.”

However, Whitehead has not alleged, and she did not produce evidence, that 

anyone from KIPP ever told her that she would not be returned to her previous job 

duties after her illness in August because she was pregnant. Nor did she allege or 

present any evidence that anyone at KIPP made negative comments about her 

pregnancy.

7

 The evidence relied upon by Whitehead requires an inference or 

 7 The only specific comment that Carter made to Whitehead about her pregnancy 

was when she “rude[ly]” asked Whitehead, in October, why she was still at work 

if her water had broken.
13

presumption that KIPP terminated her employment because of her pregnancy, and, 

thus, it is circumstantial. See Appel v. Inspire Pharm., Inc., 428 F. App’x 279, 282 

(5th Cir. 2011) (evidence employment terminated because employee could not 

perform her job duties due to medical complications resulting from pregnancy did

not constitute direct evidence of discrimination).

In the absence of direct evidence of discrimination, an employee must make 

out a prima facie case of discrimination under the McDonnell-Douglas burden 

shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 

S. Ct. 1817, 1824–26 (1973); see also Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 142–43, 120 S. Ct. 2097, 2106 (2000); Fort Bend Indep. Sch. Dist. v. 

Williams, No. 01-13-00052-CV, 2013 WL 4779693, at *3 (Tex. App.—Houston 

[1st Dist.] Sept. 5, 2013, no pet.) (mem. op.); Jespersen, 390 S.W.3d at 654. 

Under this analysis, the employee is entitled to a presumption of discrimination if 

she meets the “minimal” initial burden of establishing a prima facie case of 

discrimination. Garcia, 372 S.W.3d at 634. 

To establish a prima facie case of discrimination, the employee must show 

that she: (1) is a member of a protected class; (2) was qualified for her position; 

(3) suffered an adverse employment action; and (4) was replaced by someone 

outside of her protected class or others similarly situated were treated more 

favorably (disparate-treatment cases). Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; 
14

AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). To establish a prima 

facie case, the plaintiff is only required to make a minimal showing. El Paso 

Cmty. Coll. v. Lawler, 349 S.W.3d 81, 86 (Tex. App.—El Paso 2010, pet. denied).

Sex Discrimination

In its second issue, KIPP specifically argues that Whitehead has not

provided evidence of the first element8 of her sex-discrimination claim because she 

has not shown that she was actually pregnant at the time that KIPP terminated her 

employment. Whitehead responds that Chapter 21 does not require that a woman 

be pregnant at the time of an adverse employment action based upon pregnancy.

Chapter 21 prohibits employers from discriminating against employees “on 

the basis of pregnancy, childbirth, or a related medical condition.” TEX. LAB.

CODE ANN. § 21.106(a). Women who were pregnant at, or very near the time of,

an adverse employment action are members of the protected class, as are women 

who were on maternity leave, or who had recently returned to work at the time of 

the adverse action. Helmes v. S. Colonie Cent. Sch. Dist., 564 F. Supp. 2d 137, 

147 (N.D.N.Y. 2008). However, unlike other protected traits, “pregnancy is 

somewhat divergent” because “‘it is not immutable,’ and at some point, ‘the

female employee is no longer affected by pregnancy, childbirth, or related 

conditions.’” Walker v. Wal-Mart Stores, Inc., No. 1:12-CV-74-SA-DAS, 2013 

 8 In its jurisdictional arguments, KIPP does not challenge the second and third 

elements of Whitehead’s claim for sex discrimination.
15

WL 3940662, at *7 (N.D. Miss. July 31, 2013) (quoting Solomen v. Redwood 

Advisory Co., 183 F. Supp. 2d 748, 753 (E.D. Pa. 2002)). Thus, one of the primary 

issues presented in a case in which a woman is not pregnant at the time of an

adverse employment action becomes where to “draw th[e] line.” Id. Accordingly, 

whether the plaintiff is a member of the protected class in pregnancy 

discrimination cases is best determined on a “case-by-case basis.” Helmes, 564 F. 

Supp. 2d at 147. 

Here, Whitehead, in her original petition, alleges in pertinent part: 

Plaintiff is a White female. . . .

In August 2010 Plaintiff became ill while pregnant. . . .

On October 5, 2010 Plaintiff returned to work and was assigned 

job duties that were different from the job duties she discharged prior

to her going on medical leave. . . .

On November 2, 2010 Plaintiff went on pregnancy leave and 

delivered a boy on November 3, 2010. Thereafter she was on 

maternity leave for 19 days. She returned to work on December 3, 

2010 . . . .

Upon returning to work Plaintiff asked for her old job back. 

She was told that would happen after Christmas. . . .

On January 11, 2011 Plaintiff met with . . . Carter who told the 

Plaintiff “You don’t fit i[n]. You just had a baby. You’re just an 

overpaid teacher. I can’t afford your salary. I gave your job away. 

You cannot do this job having children. Things have changed around 

here. If you don’t like it, you need to apply to Nordstrom.”
16

. . . On February 9, 2011 [Carter] called a Mid-Year 

Performance Evaluation in the presence of 2 of Plaintiff’s coworkers. 

Plaintiff was told she was not doing her job. . . .

. . . On February 17, 2011 . . . Carter called the Plaintiff into a 

meeting with . . . Fimble in which she was handed a termination letter.

. . . .

. . . Because of her sex/pregnancy Plaintiff was a member of a 

protected class which enjoyed the special protection of the law. 

During her employment with [KIPP], [KIPP] treated the Plaintiff less 

favorably in the terms and conditions of her employment than its

similarly situated, non-pregnant employees, because of her 

sex/pregnancy. Plaintiff also was terminated because of pregnancy 

and/or on account of her pregnancy leave and/or childbearing. The 

acts of [KIPP] constitute discrimination against the Plaintiff in the 

terms and conditions of her employment because of her pregnancy. 

This discrimination is the proximate cause of both economic and 

mental damages suffered by the Plaintiff.

Whitehead also attached evidence to her response to KIPP’s motions

showing that KIPP terminated her employment on February 17, 2011, less than 

three months after she had returned from maternity leave, and KIPP does not 

dispute that it terminated her employment on this date. Further, near the time 

Whitehead was hospitalized and absent from work from August to October, Carter 

discussed with Fimble terminating Whitehead’s employment and Whitehead’s

pregnancy.

We conclude that Whitehead presented evidence establishing a prima facie 

case that she was a “member of the protected class” in regard to her sexdiscrimination claim based on her pregnancy, childbirth, and related medical 
17

issues. Her evidence that she returned to work from maternity leave on December 

3, 2010 and KIPP terminated her employment less than three months later is 

sufficient to create a fact issue as to her membership in the protected class. And 

the existence of this fact issue precludes the granting of KIPPS’s plea to the 

jurisdiction. See Miranda, 133 S.W.3d at 227–28. Accordingly, we hold that the 

trial court did not err in denying KIPP’s plea to the jurisdiction on Whitehead’s 

sex-discrimination claim on the ground that she was not a member of a protected 

class. 

We overrule KIPP’s second issue.

In its third issue, KIPP specifically argues that Whitehead has not provided 

evidence of the fourth element of her sex-discrimination claim because she has not 

shown that she was replaced by someone outside of her protected class, i.e., a nonpregnant person. It argues that she cannot logically do so because she was not 

actually pregnant when KIPP terminated her employment. 

As discussed above, an employee does not have to be pregnant at the time of 

an adverse employment action to be a member of the class of individuals protected 

from sex discrimination based on pregnancy. Likewise, Whitehead did not have to 

be pregnant to establish the “replacement” element of her prima facie case for 

pregnancy discrimination. Again, Chapter 21 specifically prohibits employers 
18

from discriminating against employees “on the basis of pregnancy, childbirth, or a 

related medical condition.” TEX. LAB. CODE ANN. § 21.106(a).

Here, Whitehead provided evidence that she was replaced by Dozier and/or 

Nicole Santos, neither of whom, during the pertinent time period, had been 

pregnant, given birth to a child, or suffered from a medical condition related to 

pregnancy or childbirth. KIPP does not dispute these facts.

We conclude that Whitehead presented evidence establishing a prima facie 

case that KIPP replaced her with someone outside of her protected class.

Whitehead’s evidence that KIPP replaced her with either Dozier or Santos is 

sufficient to create a fact issue that she was replaced by someone who was not a 

member of the protected class. And the existence of this fact issue precludes the

granting of KIPP’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 227–28. 

Accordingly, we hold that the trial court did not err in denying KIPP’s plea to the 

jurisdiction on Whitehead’s sex-discrimination claim on the ground that she was 

not replaced with someone outside of her protected class.

We overrule KIPP’s third issue. 

Race Discrimination

In its fourth issue, KIPP argues that Whitehead has not established a prima 

facie case of race discrimination because she cannot establish that she was replaced 

by an African-American employee. Whitehead argues that the trial court properly 
19

denied KIPP’s plea to the jurisdiction on this ground because genuine issues of 

material fact exist as to whether she was replaced by Dozier, an African-American,

or Santos, an Hispanic.

The prima facie elements of a race-discrimination claim are the same as 

those for a sex-discrimination claim. In order to establish a prima facie case of 

race discrimination, a plaintiff must show that she: (1) is a member of a protected 

class; (2) was qualified for her position; (3) suffered an adverse employment 

action; and (4) was replaced by someone outside of her protected class. Vaughn v. 

Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).

Here, Whitehead, in her original petition, alleges in pertinent part: 

Plaintiff is a White female. . . .

In August 2010 Plaintiff became ill while pregnant. . . .

On October 5, 2010 Plaintiff returned to work and was assigned 

job duties that were different from the job duties she discharged prior 

to her going on medical leave. During her absence, the person to 

whom she reported, Jamila Singleton, was removed from her position 

and was replaced by a new principal, . . . Carter. In her previous 

position Plaintiff was replaced by . . . Dozier, African American. . . .

. . . .

Upon returning to work [from maternity leave] Plaintiff asked 

for her old job back. She was told that would happen after 

Christmas. . . .

On January 11, 2011 Plaintiff met with . . . Carter who told the 

Plaintiff “You don’t fit i[n]. You just had a baby. You’re just an 

overpaid teacher. I can’t afford your salary. I gave your job away. 
20

You cannot do this job having children. Things have changed around 

here. If you don’t like it, you need to apply to Nordstrom.”

Plaintiff refused to resign. Thereafter [Carter] became very 

hostile toward the Plaintiff. On February 9, 2011 [Carter] called a 

Mid-Year Performance Evaluation in the presence of 2 of Plaintiff’s 

coworkers. Plaintiff was told she was not doing her job. The same 

day she went in to HR and filed a complaint against . . . Carter

alleging FMLA discrimination, a hostile work environment, and race 

discrimination. The race discrimination complaint was based 

on . . . Carter, who is Black, telling the Plaintiff that she did not fit 

i[n]. In contrast, Plaintiff is Caucasian, and at that time was the only 

Caucasian employee on the Defendant’s administrative staff. 

Everyone else was Black. Plaintiff was replaced by a Black person. 

. . . On February 17, 2011 . . . Carter called the Plaintiff into a 

meeting with . . . Fimble in which she was handed a termination letter.

. . . .

. . . Because of her race, White, Plaintiff was a member of a 

protected class which enjoyed the special protection of the law. 

During her employment with [KIPP], [KIPP] treated the Plaintiff less 

favorably in the terms and conditions of her employment than its 

similarly situated, yet nonprotected employees, because of her race. 

The acts of [KIPP] constitute discrimination against the Plaintiff in the 

terms and conditions of her employment because of her race. 

Defendant terminated Plaintiff’s employment because of her race, and 

preference for African-American employees. This discrimination is a 

proximate cause of both economic and mental damages suffered by 

the Plaintiff. 

KIPP asserts that it presented evidence that it replaced Whitehead only 

temporarily with Dozier and permanently with Santos when Dozier left KIPP. 

Thus, according to KIPP, Whitehead cannot establish the prima facie element that 

KIPP replaced her with someone outside of her protected class. However, 
21

Whitehead did present evidence that KIPP replaced her with Dozier when it 

terminated Whitehead’s employment in February 2011, and she established that 

Dozier, an African-American, is not a member of Whitehead’s protected class. See 

Young v. City of Hous., Tex., 906 F.2d 177, 182 (5th Cir. 1990) (concluding fact 

question existed regarding when evidence showed employee alleging age 

discrimination replaced by someone older or younger than himself). Additionally, 

if Santos, an Hispanic, was Whitehead’s permanent replacement, she too, is not a 

member of Whitehead’s protected class. See Arevalo v. Hous. Cmty. Coll., No. H12-3607, 2013 WL 5168949, at *2 (S.D. Tex. Sept. 12, 2013) (concluding that 

Hispanic plaintiff alleging replacement by white employee, not member of her 

protected class, had alleged facts adequately stating claim for discrimination); Elsik 

v. Regency Nursing Ctr. Partners of Kingsville, Ltd., No. V-06-41, 2007 WL 

2428288, at *5 (S.D. Tex. Aug. 22, 2007) (stating Caucasian plaintiff established 

prima facie element of replacement by employee outside her protected class when 

replaced by Hispanic male).

We conclude that Whitehead has raised a genuine issue of material fact as to 

whether KIPP replaced her with someone outside of her protected class. 

Whitehead’s evidence is sufficient to create a fact issue as to whether she was 

replaced by someone who was not a member of the protected class. And the 

existence of this fact issue precludes the granting of KIPP’s plea to the jurisdiction.
22

See Miranda, 133 S.W.3d at 227–28. Accordingly, we hold that the trial court did 

not err in denying KIPP’s plea to the jurisdiction on Whitehead’s racediscrimination claim on the ground that she was not replaced with someone outside 

of her protected class.

We overrule KIPP’s fourth issue.

Pretext

In its fifth issue, KIPP asserts that Whitehead “failed to create a fact issue as 

to the legitimacy of all of KIPP’s nondiscriminatory and non-retaliatory reasons” 

for terminating her employment. The Texas Supreme Court has explained that the 

prima facie elements of a Chapter 21 employment-discrimination claim are 

jurisdictional, and thus, properly addressed in a plea to the jurisdiction. Garcia, 

372 S.W.3d at 634; see also Williams, 2013 WL 4779693, at *3 n.4 (“[T]he Texas 

Supreme Court determined in Garcia II that only the prima facie elements of the 

plaintiff[’]s case are jurisdictional.”). However, KIPP urges us to go further and 

consider its argument on pretext because “the Supreme Court did not expressly 

hold that the pretext analysis is not jurisdictional.” (Emphasis added.) Essentially, 

KIPP asks us to place an additional burden on Whitehead beyond the establishment 

of her prima facie case. It asks us to require her to “rebut” KIPP’s reasons for 

terminating her employment and prove pretext in order to establish that the trial 

court had subject-matter jurisdiction over her claims.
23

KIPP’s interlocutory appeal, however, is limited to those issues properly 

raised in its plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8) (Vernon Supp. 2013). The purpose of a plea to the jurisdiction is to 

defeat an action “without regard to whether the claims asserted have merit.” Bland 

v. Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). And the Supreme 

Court has specifically held that in an appellate review of a trial court’s grant or 

denial of a jurisdictional plea, we review evidence only when necessary to resolve 

any dispute over jurisdictional facts. Miranda, 133 S.W.3d at 226.

Accordingly, we only reach the merits of a plaintiff’s claims to the extent 

necessary to resolve the dispute over jurisdictional facts, identified by the Supreme 

Court as the elements of a prima facie case of employment discrimination. See 

Williams, 2013 WL 4779693, at *3 n.4 (“Because our review of this interlocutory 

appeal is limited to the trial court’s determination of its own subject-matter 

jurisdiction, we do not consider any matters beyond whether Williams presented a 

prima facie case of discrimination or retaliation.”). By asking us to consider its 

pretext arguments, KIPP is asking us to consider facts and evidence beyond 

Whitehead’s “minimal” burden of establishing her prima facie Chapter 21 

employment-discrimination claims. See State v. Lueck, 290 S.W.3d 876, 881–84

(Tex. 2009). Under the appropriate standard of review applied to a jurisdictional 

plea, we may not do so.
24

Accordingly, we overrule KIPP’s fifth issue. 

Conclusion

We affirm the order of the trial court denying KIPP’s plea to the jurisdiction.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley, and Sharp.