Opinion issued September 3 , 2020

In The 

## Court of Appeals
For The 

## First District of Texas

————————————

NO. 01-19-00024- CV

——————————— SURAN WIJE , Appella nt V. DAVID A. BURNS AND TH E UNIVERSITY OF T EXAS AT AUSTIN , Appell ees

On Appeal from the 201st Distric t Court Travis County, Texas Trial Court Ca se No. D-1- GN -18-002435

MEMORANDUM OPINION Appellant, Suran Wije, filed the underlying suit against appellees —hi s former employer , the Uni vers i ty of Tex as at Au stin , and his former supervisor,2 David Burn s
. 1 Wi je alleged, among other things, that after he resigned from his position at UT , Burns and UT falsified his per son nel file in reta liation for Wije ’ s being an “ internal

- only wh i stleblower ” an d th ereby “ de facto b lacklisted ” him
from any fu ture employment with UT or the S tate

. The trial court 2 granted UT ’ s plea to t h e jurisdiction, dismiss ing all of Wije ’ s claims . Wije now appeals,

ass erting in three issues that the trial court er red in ( 1) ove r l oo king its concurrent jurisdiction o ver his civil rights claims; (2 ) deter mi ning that sovereign immunity
was not waived for his claims under 42 U.S. C. S ection 1983, Title VII of the Civil Rights Act of 1964 , and the Texas Tort Claims A c t (TTCA) ; and (3) d i sm iss ing his
claims on limita tions grou nds.
B ecause we con clude tha t the trial court lacked jurisdiction over Wije ’ s cl aim s, we affirm. Background Wi je was employed by UT in the Information Tech nol ogy Department for
the McCombs School of Business from 20 0 0 u ntil 2005. David Burns, the direct or of t he IT Departmen t, was Wi je ’ s supervisor. Wije alleges that he experienced

1 Because we construe Wij e’s claims against Burns to be primarily brought against Bu rns in h is of ficial capacity, see note 9 , infra , we will ref e r to both app ellees collectively as UT, unless we ex pressly refer to Burns in h is individual capacity.

2 The Supreme Court of Texas tr ansferred this appeal fro m the Court of Appeals for the Third Distr ict o f Texas to th is Co urt pursuant to its docket

- eq u alization aut hority. See T EX

. G OV ’ T C ODE § 73.001 (“ The supreme court m ay order cases transferred from one court of appeals to another a t any time that, in the o pinion of the supreme court, there is good caus e for the tra nsfer .”).3 discrimination during his employment with U T, including that the IT D epartmen t

s ecretly recorded his conversation s , leaked confidential s u rv e y responses solic i ted by UT ’ s human reso urces dep artm ent to super visors and othe r leaders, and
excluded him f rom me etings. Wije also asserts that, during his employment, he
acted a s an “ internal

- only whist leblower ” in raising concerns to th e I T Department
and o ther u niver sity pers onne l regardi ng software qua lity and the adequa cy of security s y stems. Wije resigned , effective immediately, on N ovember 1 8, 2005. 3
Sever al years later, Wi je began apply ing for new jobs with UT. Despite applyin g for nu m erous positions , Wije never re ceived any r e quests for interview s and was u lti mately unable to obtain new e mployment with UT. While the exact timeline is unclear, Wije asserts that by March 201 6, he believed that UT had intentionally included a “ lie ” in hi s personnel file b y stating that he had re signed
wi thout notice , a nd this repr esentation served to place Wije on a “ de facto
blacklist ” that prevented him from obtaining employment

. The re cord contains an
email date d April 1, 2016 , in which UT H R pers onnel in formed Wije, ap parentl y in r esponse t o his inquiries , t hat “ [ t]he reduction in severity of your reemployment
code is the action the McCombs School de ems appropriate at this time , ” and

3 In some por tions of h i s pleadings, Wije asserts that he was constructive ly disch arged, but th is assertion is contradicted by other statements in his pleadings

— such as his allegation that he was m isled to believe that he left UT on good terms

— and by docu ments included in the re c ord

— s uch as h is employee separa tion form

— indicating that he resi g ned vo luntarily and relocat ed to anothe r city.4 informing him tha t the “ remaining code is not a ban on emp l oymen t fro m t he University o f Texas at Au stin or ‘ blacklis t

. ’ ” The H R personnel fur ther appeared to deny that he had been banned from future employment , inform ing him that a ban , such as the one he suspected had be en placed in his file , “ is enacted in very
l imite d, legal circumstances, and wo uld prevent y ou from being able t o complete

an appl ica tion for employment. ” Wije filed a complaint based on the alleged errors in his personnel file with
the Equal E mploy ment Opportunity Commission ( EEOC )

. On July 29, 2 0 16, t he EEOC provided Wije with not ice t hat it h ad dismissed his com plaint and informi n g him of h is right to file a lawsuit under federal law in federal or state court,
ad monis hing him that his lawsuit “ must be f iled within 90 days of your receipt of
this notic e. ” This was postmarked August 1, 201 6, but nothing in the reco rd
indicates when Wije received this notice. T hat same month, however, Wije filed a
Texa s P ublic Inform ation Act request s eeking records related to his em ployment. Wije then filed a compl a int i n federal di strict court on Oc tobe r 27, 201 6

. That complain t as serted causes of a ction under Title VII of the Civil Rights Act of
1964 , 42 U.S.C. S ection 198 3 , and several state

- law to rt claims , inc luding fraud, negl igence, libel, and intentional inf l ictio n of emotional distress

. T he federal
distri ct court dismissed W ije ’ s complaint

. I n its final order , signed May 5, 2017 , and entered May 8, 2017 , the federal district court expressly di smissed t he Title5 V II and S ection 1 983 claims with prejudice

. The f edera l district court further
d ecl ined to exercise its supplemental jurisdiction over the remaining state

- law claims, dismissing them without prejudice. Wije appeale d th e di smissal to the F ifth
Circuit , w hich dismissed his appeal for be ing untimely filed , and t o the U n ited
State s Sup reme Cou rt, which denied his writ of certiorari

. Wi je then filed the u nderlying cause of action in state court on May 1,
2018. 4 In his live pleadings, he asserted substa nti vely identical causes of action t o those he alleged in the federal suit. 5 As factua l suppor t for his pleadings, Wije alleg ed that UT d iscrimin ated a gainst him during his employment between 2000 and 2005, including by record ing his conversation s in sec ret , asking h im to perform work it had not trained him to do, leak ing c onfident ial resp o nses to personnel survey s t o antagonistic and punit ive mana ge rs, and exclu ding him f rom

4 Contemporaneously wi th his petition , Wije filed in state court his “ Motion to Reopen Fe dera l Claims Dismissed with Prejud ice , ” reco gnizing t hat his fe der al claims were dis missed with prejudice while his state clai ms were dismissed w ithout pr ejudice. He asked the co urt to “ reo pen ” his claims because UT has

“ never responded to [his] allegation s of grave co nstitutional violations. ”

5 Wije als o name d “ John D oe and Jane Doe ” as d efendants ; h owever, he did not allege an y con duct by or assert any causes of action aga inst t hese part ies

. Other documents in the record indicate th at Wije named th em as “ pla ceholders ” in the event discovery uncovered fu r t her wrong doin g by additional parties. Neverthe less, the trial court ’ s fina l order disposed o f all the claim s alleged by Wije and contain ed language express ly indicating that the trial court in tended that it s judgment was final and appealable. See Lehman n v . Har

- Con Cor p. , 39 S.W.3d 191, 195, 200 (Tex. 2001)

. No one has filed a n otice of appeal im plica ting the Doe partie s, and no ne of the a rguments on appeal challenge the trial court ’ s j udgment with respec t to the Doe parties. A ccordingly, they are not part i es to this ap peal

.6 me etings

. H e further alleged that , upon his resignation in 2005 , UT erroneously
recorded that h e resigned without notice and “ miscoded ” the circums tanc es of his

s eparat ion from the u n ivers ity , pr ohibit ing him from be ing rehired

. UT filed a plea to the jurisdiction as to both itself and Burns , a Rule 91a
motion to dismiss all of Wije ’ s claims , and a m otion to d ismiss the tort claims again st Burns

. In i ts R ule 91a mo tion to di smi ss, UT argued that Wi je ’ s claims had
no b asi s in law o r in fact. In its motion to dismiss th e tort claims against Burns , UT observed that Wije ’ s claims against Burns for fraud by no ndisc losure, neg ligence,
defama tion, and i ntentiona l infliction of emotiona l distress were subje ct to
dismissal under p rovision s of the TTCA as set out in Civi l Prac tice and Rem edies
Code section 101 .106

. 6 I n it s plea to the jurisdiction, UT asserted that the trial

6 Civil Practice and Remedies Co de section 101.106 is entitled “ Election of Remedies , ” and it provides for the dismi ssal of certain parties in su its under the TTCA against governmenta l uni ts a nd t heir employees. See T EX

. C IV

. P RAC

. & R E M

. C ODE § 101 .106 . UT argues that both subsection s 101.106(e) and (f) warra nt dismissal of the tort c laims against Burns . Those sections provide: (e) I f a suit is filed under this chapter against both a gove rnmental unit and any of its employees, the emp lo yees shall i mmediately be dismissed on the filing of a motion by the governmental unit. (f) If a suit is filed against an employee of a governmental un it based on conduct within the general scope of th at em ployee ’ s employment and if it could have been b ro ught under t his chapter against the governmental unit, the suit is conside red to be against the employee in the employee ’ s official cap acity only. On th e employee ’ s motion, the suit against the employee shal l be dismissed unless the plaintiff files amend ed pleadings d ismissing the employee and naming the governmental unit as def endant on or before the 30th day after the date the motion is filed.7 court la cked juri sdict ion over a ny of Wij e ’ s claims , arguing that Wi je failed to alleg e a waiver of UT ’ s gove rnm en tal im mun ity. UT asserted that the TTCA did
not waive imm unity for any of Wije ’ s tort claims and that the election of remedies provision in the Texas Commission on Hu man Righ t s Ac t ( TCH RA ) , codified in
Texas Labor Code chapter 21 to “ provide fo r the e xecution of the policies of T itle
VII of the C ivil Rights Act of 1964 and its subsequent amendments, ” T EX

. L ABOR
C ODE § 21.001 (1) , barred the court from considering Wij e ’ s discrim ination and

ret aliation clai ms be cause he had previously filed them in fe dera l court

. In response to UT ’ s plea t o the jurisdiction, W ije amended his pleadings to
assert that Lab or Code C ha pter 21 “ expressly a brog a tes state sov ereign and offici al
immunit y ” and to “ re iterate [] his emp loyme nt discrimination civil rights claim
und er C hapter 2 1. ” He further a sserted that the T T C A waived immu nity

. Wi j e then
further am ended his pl eadings , continuing to assert causes of actio n for
discri mination and re taliation , referring at times to S e ction 1983, Title VII , and the
TCHRA w ith a specif ic n otation that “ ‘ [Labor Code] Chapte r 21 ’ is to be addressed perhaps after discovery

. ” Thus, Wije ass erted in his l ive pleading claim s for discrimination and retaliation u nder Title VI I , as im plemented a t the state level
in the TCHRA, and he asserted di scrim ination under S ection 1 983. He al so

Id. § 101.106(e), (f).8 as serted state

- law claims , including various fraud allegations , negligence, defamation, intentional infliction of emotion al distres s, a nd breach of contra ct

. 7
The trial c ourt held a h earing on UT ’ s plea to the juris dicti on , Rule 91a
motion to di smiss, and mo tion to d ismis s the tort claims against Burns. The trial court granted onl y the plea t o the jurisdiction , and th is appeal fo llowe d.
Plea to Jurisdiction
A. St andard of Rev iew A plea to the jurisdiction is a dilatory plea, the pur pose of which is to defeat

an action “without regard to whether the claims asserted have merit.” Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 6 35 (Tex. 2012). Without

su bject matter jurisdiction, a court does not have the autho rity to rende r j udgment
and mu st dismiss th e claims without regard to the merits. See City of Houston v.
Rhule , 417 S.W.3d 440, 442 (Tex. 2013). The bu rden is on the pla int iff to plead
facts affi rmative ly demonstrat ing the trial court ’ s jurisdiction. 8 Tex

. De p ’ t of Par ks
& Wi ldlife v. Mir anda , 133 S.W .3d 217, 226 (Tex. 2004).

7 Although Wi je ’ s pleadings are u n clear and d o not specifically delinea te which causes o f action are alleged against the University , Burns , or both , we construe h is pleadings liberally and analyze his claims as if they were as serted against both UT and Burns

.
8 Wije also appears to rais e som e con cerns regarding his obligat ions a s a pro s e litigant to comport with p leading and evidentiary standards . Texas , unlike federal court, follows a “fair notice” standard for pleading

. H orizon/CMS Healthca re Corp. v. Auld , 34 S.W.3d 887, 896 (Tex. 20 00) ; see T EX

. R. C IV

. P

. 45 (requ irin g that petition “ consist of a statement in plain and concise language of the plaintiff's9 We review whether a trial court has s ubject matter jurisdiction under a de

no vo standard. Tex

. D ep ’ t of T ransp
. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 166 (Tex. 2013); Tex. Natur al Res. Con servation Comm ’ n v. IT

-Davy , 74 S.W.3d 849, 855 (Tex. 2002). In doing so, we exercise our own ju dgment and redetermine each legal issue, without giving d e ference to the lower court ’ s deci sion. See Qui ck v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1 999). “ W e construe the plead ings liberall y in favor of the plaintiff[ ] and look to the pleader [ ’ s]
intent.” Miranda , 133 S.W.3d at 226.

“ S overeign immunity protec ts the State from lawsuits f or mon ey damages

. ”
Reata Constr. Corp. v. City of Dallas , 197 S. W. 3d 371, 3 74 (Tex. 2 006)

. Gen erally, “ immu nity from suit implicates courts ’ subject

- matter jurisdiction” for

ca use of action.

. . .” ); id. R. 47 ( providing that petition sh all co ntain “a short stat ement of the cause of action sufficient to give fair notice of the claim involved ” ). Plain tiff s al so bear to the burden of pleading sufficient facts to demonstrate the tria l court ’ s jurisdiction over the claims asserted, and w hen a go vernmental entity c hallenges jurisdiction on immunity grounds, “ the p laintiff must affirmatively demo nstrate the cou rt ’ s jurisdict ion by alleging a valid waiver of immunity.” Ryder Integrate d Logistics, Inc. v. Fayette C ty

. , 453 S.W.3d 922, 927 (Tex. 20 15)

. Pro se litiga nts are held to the same plea ding and evidentiary stan dards as other l i tigants. See Jac kson v. Morris o n , No. 03

- 14

- 00 419

- CV, 201 5 WL 4195578, at * 2 (Tex. App.

— Au sti n July 8, 2 015, no pet. ) (mem . op.) ( “ We construe pro se pleadings and bri efs liberally, but we hold pro se litigants to the same standards as licensed at torneys and requi re them to comply w ith applicable laws and rule s of procedure. ” ) (citing In re N.E.B. , 251 S. W.3 d 211, 211

– 12 (Tex. App.

– – Dallas 2008, no pet.) and Mansfie d St ate Bank v. Coh n , 573 S.W.2d 181, 184

– 85 (Tex.1978)). “ To do otherwise would g ive p ro se litigant s an unfair advanta ge over litigants represente d by counsel. ” Id. ; Mansfield State Bank , 573 S.W.2d at 1 85

.10 lawsuits in which the state or certain governmental un its have been sued, unless t he

stat e consents to suit. Rusk State Hosp. v. Black , 392 S.W.3d 8 8, 91 , 93 (Tex. 2012); Mi randa , 1 33 S.W.3d at 224 ; see also Alamo Heights Indep. Sch. Dist. v.
Clark , 544 S.W.3d 755, 770 (Tex. 201 8) (i mmunity from suit may be a sserted through plea to juri sdict ion ) . A state agency, such as UT, shares this governmental
im munity. L owe v. Tex . Tech U niv. , 540 S.W .2d 297, 298 (Tex. 1 976); see T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.001(3)(D) ; Univ

. Interscholastic League v. S w
. Officials A ss’n , Inc. , 319 S.W.3d 952, 957 (Tex. App

. — Austin 2010, no pet.) ( “The University of T exas was created by th e Texas Constituti on, see T EX

. C ONST

. art. VII, § 10, and it is well settled that state universities are governmental
entities.” ) . The state or gove rnmental unit can be sued on ly if the Leg islature waives immunity in “clear and unambi guous la nguage.” T EX

. G OV ’ T C O DE § 311.0 34. A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. Clark , 544 S.W.3d at 770. “ When a jurisdicti onal plea

c hallenges the pleadings, we determine if the plaintiff has alleged facts
af firma tively d emonstrati ng subject

- matter jurisdiction. ” Id. “ If, however, the plea challenges the existence of jurisdictional facts, we must move beyond the pleadings and con sider e vidence when necessary to resolve the jurisdictional11 issue s, even if the ev idenc e implic ates both sub ject

- matter jurisdiction and the
merits of a claim. ” Id. at 770

– 71. Here, the trial court granted UT ’ s ple a to the jurisdict ion

. Wije argues in his
brief o n appeal that the trial court had jurisdiction over his cl aim s

— inc ludi ng o v er his “ fede r al claims ” fo r dis crimination and retal iation and over his state

- law tort
and breach of contract claims

— and that U T ’ s i mmunity was waived by Title VII,
S ection 198 3, an d the TTCA. W e address each of these assertions in turn.
B. Title VII and Se ct ion 1983 Discrimination and Retaliation Claims Wi th regard to Wije ’ s 42 U.S. C. S ection 198 3 c laims, a State , a state agency,
or a state official in his official capacity has immunit y pursuant to the Eleventh
Amendme nt to the Constitu tion “unless t hat state has waiv e d its sovere ign
immunit y or Congress has clearly abrogate d it.” Moore v. La. Bd. of Ele mentary &
Sec ondary Ed uc. , 743 F.3d 959, 963 (5t h Cir. 2014) . In enacting 42 U.S.C. S ection
1983 , Congress did not abr ogate the States ’ immunity under the Elev enth
Amen dment, and th e State of Texas has not consented by statute

. NiGen Biotech,
LLC v. Paxto n , 804 F.3d 38 9, 394 (5th Cir. 2015)

. Sec tion 1983 “does not provide
a federal forum for litigants who seek a remedy ag ainst a State for alleged depriv ations of civil li berties,” and this rule applies to governmental entities

c onsidered “arms of the State

. ” Will v. Mi ch . Dep ’ t of State Police , 49 1 U.S. 58,
64

– 66 , 70 (1989) (“ [A ] State is n ot a person within the meaning of § 1983 ”)

.12 Therefore, UT, as a s t ate agenc y, is not subject to suit under S ection 1983

. See Tex.
Tech. U niv. He alth Scis. C t r
. – El Pas o v. B ustillos , 556 S.W.3d 3 94, 40 0 (Tex. App.

— El Paso 2018, no pet. ); Harrison v. Tex. De p ’ t of Criminal Justice

– Inst ’ l
Div. , 915 S .W.2d 882, 889 (Te x. App

. — Houston [ 1st Dist.] 19 95, no pet.). Furthermore, to the ex tent Wij e asserted his S ection 1983 cl aim against
B urns for actions Burns undertook i n his o fficial capacity on behalf of the
Un i versity , Burns is generally entitled to th e same immunity as h is e mployer.
Un der Texas law , a suit against a government employee in his official capacity is a
suit a gainst his go vernment employer. See Mo ore , 743 S.W.3d at 963; Franka v. Velasquez , 332 S.W. 3d 367, 382

– 83 (Tex. 2011); see also Texas A & M Univ. Sys.
v. Kos eoglu , 23 3 S.W.3d 835, 844 (Tex. 2007) (“It i s fundamental that a suit against a state official is mere ly ‘another way of pleading an action again st the entity of which [the official] is an agent.’ ” ). “[A]n employee sued in his official capacity has the sa me govern m ental immunity, de rivative ly, as hi s government employer.” Franka , 332 S.W.3d at 382

– 83. A nd a n official acting in his offi cial capacity is not a “person” who may be held liable u n der S ection 1983. See, e.g. , Leachman v. Dretke , 261 S.W.3d 297, 3 05 (Tex. App.

— Fort Worth 2008, no pet.)

. 9

9 Wije ’ s pleadings a nd briefing are un clear regard ing the parties against wh om h e alleges his discriminat ion and re taliation cla ims , or whether he is atte mpti ng to name Burns as a defe ndant in h is personal capacity, official capacity , o r both

. We13 A ccord ingly, we con clude that the trial court did not have jurisdiction over
Wi je ’ s S ection 1983 claims

.

must look to the substance of Wij e ’ s claims to determine w h ether he sued B u rn s in his personal or official capacity. See, e.g. , Perez v. Physi cian Assistant B d

. , No. 03

- 16

- 007 32

- CV, 2017 WL 5078003, at * 4 (Tex. App.

— Austin O c t. 31, 2017, pet. denied ) (concluding that “ s ubstance of [plaintiff ’ s] claims were lim ited to claims against [official] in her official capacity, ” despite fact that pla intif f

“ purported t o sue [officia l] in he r official and individual capacities ” ) (citing City of El Paso v. Heinr ich , 284 S.W.3d 366, 361

– 73, 377 & n. 7 (Tex. 2009), and Tex. P arks & Wildlife Dep ’ t v. Sa wyer Tr. , 354 S.W.3d 384 , 388 (Tex. 2011) ). Wije compl ains of some act ion s undertaken by UT emp loyees leading up to his 2005 resign ation , including all eging that Burn s place d a “ lie ” in his pe rsonnel file , but t he only allegations r elated to his current law suit

— i.e., the allega tions articulated in Wije ’ s EE OC co mp l aint that UT alleged ly discriminate d or retaliated agains t h im in refusing to rehire him because of the circu mstances surrounding his 2005 resignation a nd his role as an “ i nternal

- only whi stleblower ”

— do not appear to implicate any conduct by Burns

. A nd UT provided an affidavit of Burn s ’ s ow n supervisor, who atteste d that Burns did not have any authority to admini ster employment cont racts and that all of Burns ’ s actions as id entified in Wije ’ s pleadings were duties “ expected of any official in David B u rns ’ position, and the perform ance of tho se duties serve the purpo ses of [ UT]. ” Wije mentions, in a conclus ory way, tha t Burns actin g i n his individual capacity is a person for S ection 1983 purposes , but Wije did not plead un

- negated fa cts that would suppo rt su ch a claim

. See Perez , 2017 WL 50780 03, at *5; see also Patel v
. Tex

. Dep ’ t of Licensing & Regulation , 469 S. W.3d 69, 77 (Tex. 20 15) (stating “principle that claims against state officials

— like all claims

— must be properly pleaded in order to be mainta ined” )

. N eit her Wije ’ s pleadings in the t rial court nor his brief on appeal make a clear assertion of the particul ar act ions or omiss ions by Burns in his individual capacity tha t would support a S ection 1983 claim against hi m
. Accordingly, we construe Wije ’ s pl eadings as asserting c laims again st Burns in his official cap acity

. To the e xtent that Wije intended to ma ke a different argument , any such c omplaint on appeal is wai ve d. S ee T EX

. R. A PP

. P

. 33.1(a) , 38.1( i ); see also Jackson v. Morrison , No. 03

- 14

- 0 0419

- CV, 2015 WL 41955 78, at *2 (Tex. App

. — Austin J uly 8, 2015, no pet.) (mem. op.) (citing Moore v. Brown , 408 S.W.3d 423, 431 n.10 (T ex. App.

– –Austin 2013, pet. de nied) ( “ Even though we liberall y construe pro se pleadings and br iefs, w e will not sua spon te ad dress appellate issues and ar guments that a litigant might ha ve raised but did not. ” ) )

.14 Regarding the re maining federal claims , we o bserve that Wije h as already pursued h is Title VII discrimination and reta lia tio n claims in f ederal district court

. The federal district court where he first filed his Title VII claims dismissed them with prejud ice, and that rulin g was not dist urbed durin g the s ubsequent a ppellat e
process. Wij e has no w alleged the same claims , b ased on th e same underlying facts, this time in state court and gover ned by the state law designed to implement
T itl e VII protectio ns in Tex as , the TCHRA

. See T EX

. L ABOR C ODE § 21.0 01 (1) ; Hoffmann

- La R oche Inc. v. Z eltwange r , 144 S.W.3d 4 38, 445 ( Tex. 2004 ) ( “ T he [ T] CH RA ‘ i s modeled after fed eral l aw with the p urpose of executing the policies set forth in Title VII of the federal Civil Righ ts Act of 1964. ’ ” ). The TCHRA, set out in La bor Co de chapter 21, c o ntain s an election of remedies provision:
A person w ho has initia ted a n action in a court of co mpetent juris diction or who has an action pending before an administrative agency und er other law or an order or ordinance of a political subdivision of this state base d on an act that would be an unlawfu l employm ent practice under this chapter may not fil e a complaint under this subchapter for the same grievance.
T EX

. L ABO R C ODE § 21.211. W ije ele ct ed to p ursue his discrimination and
retali ation claims in federal cour t , and this el ection

- of

- remedies provi sion

p rec ludes him fro m pursuing these same claims in state cou rt under the TCHRA. 10

10 We further note that the federal distric t court has already consider e d and dismiss ed Wi je ’ s discrimi nation claims against both UT and Burns under Ti tle V II and15 See City of Waco v. Lopez , 259 S.W.3d 147, 155 (Tex. 200 8) ( “ S ection 21.211 limits the ability to pursu e m ultiple gri evances in multip le forum s over the sam e alleged conduc t

. ” ); Wu v. Tex. A & M Int ’ l Univ. , No. 0 4

- 11

- 001 80

- CV , 2011 WL
54062 63, at *3 (Tex. App.

— San Antonio Nov. 9, 2011, no pet.) (mem. op.)

S ection 1983 with prejudice. The federal district cour t determined, in relevant part, that Wije did not present sufficient e vidence to survive the shift i ng burdens required by M cDon n el l Dougl a s becaus e he did n ot prese nt any p leadings or eviden ce th at he was replaced by someone outsid e his protec ted c lass or treated less favorabl y than other similarly

- si tuat ed employees outside his protected group. See Mc D onnell Doug las Corp. v. Green , 411 U.S. 792 , 802

– 03 (197 3 ) (establishing bu rden

- s hifting fr amework for c ircumstantial

- evidence cases brought und er Title VII ) ; Alam o Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 764 (Tex. 201 8 ) (applying M cDonnell Douglas bu r den

- shifting framework in TCHRA c ase) ; see also Morris v. Town of Indep. , 827 F.3 d 396, 400 (5 th Cir. 2016) ( McDon nell Doug las requi res plai ntif f to show, amon g other things, that he was replaced by someone outside his protected group or was treated less f avo rably than other similarly s ituat ed employees outside the prote cted gr oup)

. Simi larly, the fe der al district court dismissed with prej udice Wije ’ s Title VII retaliation c laim because he provided no factual basis t o support his conclusory allegations tha t UT f

i red him or refu s e d to hir e him because of his previous com plaints a nd “ intern al

only ” whis t l eblowing. See McCo y v. Ci ty of Shr evep ort , 492 F. 3 d 551, 556

– 57 (5 th Cir. 2007) (holding that to prove retaliation by circumstantial evidence, plaintiff must es t ablish causal connection be twee n protected activity and adverse employmen t actio n). Wije ’ s stat e - court pleadings likewise fail to mee t these requi rements , thus imp licat ing the tri al court ’ s jurisdiction to hear Wije ’ s claims

. See, e.g. , Clark , 544 S.W.3d a t 764

. Th is fu rther supports the trial court ’ s ru ling granting UT ’ s plea to the jurisd iction. Finally, we note that, a lthough the trial court g ranted the plea to the jurisdiction and not the Rule 91a motion to dismiss or a summary judgment , the record e vidence would also h ave suppo rted dismissal of th ese claims based on UT ’ s res ju dica ta a ffi rmative defense

. The federal district cou r t dismissed t hese same claims with prejudice. See Hickman v. Adams , 35 S.W.3d 120, 124 (Tex. App.

— Houston [14th Dist.] 2000 , no pet.) (“Dismissal with prejudice const itutes an adjudication on the merits and operates as if the case had been fu lly tried and decided. T h us , orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, ba rring subseq uent relitigation of t he same causes of act ion or is sues between the same partie s.”) (internal c itations omitted).16 ( “ Because Dr. Wu elected to pursue administrative proceedings wit h the EEOC
and file his discrimina tion suit in f ederal court, th e electi on of remedies provisi o n in the [T] CHRA precludes him from pursuin g the same claim in state court under
the [T] CHRA, and any amen dment of his pleadings would be futile. ” ).
C. S tate
- law To rt and Breach of Contract Claims Wije a lleged claims against UT fo r f raud, ne gli gence, defamation , and
intenti onal infl iction of emotional d ist ress. He also asserted that UT breached his employment con tract. 11
W ith regard to his claims for the intentional t orts of fraud, defamation, and
intenti o nal infliction of emotion d istre ss , th e S tate and its gover n mental units ha ve explicit ly retained imm unity from intentional tort claims. The T T C A , codified in
Civ il Practice and Remedies Code Chapter 101 , explicitly s tates that it does not apply to a claim “arising out of assault, b a ttery, fal s e imprisonment, or any oth er intentional tort

. ” T EX

. C IV

. P RAC

. & R EM

. C ODE

. § 101.057 (2) ( e m phasis added);

se e City of Wat auga v. Gordon , 434 S.W.3d 586, 589 (Tex. 2014) (explai ning that
TTCA ’ s “lim ited waiver do es not apply to intentio nal t or ts”)

. Fraud, d e famation , and intentional infliction of e motional dis tress are intentional torts. See Seureau v.

11 Wije alleges a breach of his em ployment contract, but he never provided a copy of the alleged contract. He argued that various paperwork he signed when he ac cepted employment with UT i n 2000 co nstitu ted a n employment agre ement , but none of the documents provid ed in the record appear t o be a contract for employment.17 ExxonMobil Corp. , 274 S .W.3d 206, 219 (Tex. App.

— Houston [14th Dist.] 2008,

no pet.) ( holding that f raud is intentional t ort for which TTCA pr ov ides no waiver
of immunity ) ; Houston Foren sic Sci. Ctr. Inc. v . Barette , No. 01

- 19

- 00129

- CV , 2019 WL 5 7 92194, at * 3 (Tex. App.

— Houston [1st Dist.] Nov. 7, 2019, no pet. ) (mem. op.) ( “ Defamation per se is an intentional tort for which the TTCA does not

wa ive immunity

. ” ); Bates v P e cos C t y
. , 54 6 S.W.3d 277, 292 (T ex. App.

— El Pas o 2017, no pet.) ( “ Intentional infliction claims do not fall wi thin the TTCA waivers, and are accordingly barred. ” )

. Therefore, W ije has not established a waiver of

sove reign immunit y for his i nt entional tort claim s
. Regarding the negligence clai ms, the TT CA provides a narrow waiver of immunity for claims seeking to i mpose liabilit y for (1) property damage, personal injury, and dea th proximately caused by t he wrongful ac t or omission or the neg li gence of a n employe e acting within his scope o f employment if : (A) the property damage, personal injury, or death arises fr om t he operation or use of a motor

- driven vehicle or motor

- driven equipment; and (B) the em ployee would b e personally liable to t he claimant ac cording to Texas law; and (2) per sonal injury an d death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private p erson, be liable to the cl aimant accordi ng to Texas l aw.18 T EX

. C I V

. P RAC

. & R EM

. C ODE § 101.021

. In his negligenc e cause of acti on, Wije
asserted that UT breached its duty n ot to “ engage in t he fr a ud/waste /abuse of taxpayers ’ precious dollars , to administer employment contracts with neutral it y ,

w i thout discri mination, a nd to safeguard employe e s ’ constitutional rights. ” None
of these alleged bre aches implicates conduct falling within the TTCA ’ s waiver of immunity. Wije argues that this case involves the misu se of tangible personal prop erty
because UT used HR f orm s , compu te r s , and computer netw o rk s in neglig en tly managin g his work and administering his employment contract. Wi je ’ s assertions igno re the fact that the governmental unit must not only use the prope rty, the propert y also must have actuall y caused the plaintiff’s i njury for the waiver o f immunity to apply

. Tex. Dep ’ t of Crim

. Ju stice v. Miller , 51 S.W.3d 583, 588 (Tex. 2001)

. If the use of the property merely furnishes a condition that mak es the injur y possible, rather than caus ing it, then the governme nt’s sovere i g n immunity remains
in t act. 12 Id. ; Dallas Cty. Men tal Health & Me ntal Retardation v. Bossley , 968

12 As w ith his discrimination and retaliation claims, Wije ’ s pleadings do no t clearly delineate which state

- law claims are al leged against UT , Burns , or bo th . To the extent that Wije was attempting to plead th e se c laims against Burns, we note that UT moved to dismiss the tort claims against Burns p ursuant to S ection 101 .106(e) a nd (f). Although the trial court did no t grant this motion, other cou rts h ave held that dis missal of the employee was proper under circ u m sta nces similar to those in this case. See, e.g. , Mission Consol. Indep. Sch . Dist. , 253 S.W.3d 653 , 655

– 56 (Tex. 200 8 ) (defamation, negligence, and fraud claims a re subject to Section 101. 106 dismissal ); Donoh ue v. But ts , 516 S.W.3d 578, 58 1

– 82 (Tex. Ap p.

– – S an Anto nio 2017, no pet.) (def a mation and intentional i nfliction of emotional distress19 S.W.2d 339, 343 (Tex. 1998); Univ. of Tex. Med. Branch at Galveston v. Tatum , 389 S .W.3d 457, 461 (Tex. App.

— Houston [1st Dist.] 2012, no pet.). He r e, the

per so nal property used by U T personnel did not actual ly cause Wi je ’ s injuries; rather, they m erely furnished the condition that m ade the alleged injury possible.
See Miller , 51 S.W.3d at 588.
Fi nally, nothing in the TTCA o r other auth ority cited b y Wije waiv es UT ’ s immunity from su it for breach of the alleg ed employment c ontract

. G enerally, a governmental unit possesses both immuni ty from liabili ty and immunity from suit. Catalina Dev., Inc. v. C ty

. of El Paso , 121 S.W.3d 704, 705 (T ex. 2003) . When a
govern ment al unit contracts wi th a private party it waiv es immunity fro m l iability, but not immunity from suit. Id. The governmental u nit can only waive immunity from suit through its express consent. Id. Wije has failed to po int to any s uch

express con sent, and we find none in the r ec ord. See, e.g. , Koseoglu , 233 S.W .3d at

claims ar e subject to dismissal under Section 101.106) ; see also T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.106(f) ( quo t ed in note 6 , supr a , as providing that to rt claim aga inst governme nt empl oyee is foreclosed when su ed in his individual capacit y if he is acting within th e scope of his employ ment). As discussed in note 9 , supra , UT provided the affidavit of Burn s ’ s own su pervisor, who attested that all of Burns ’ s actions as identified i n Wije ’ s pleadings were dutie s “ expected of any official in David B urns ’ position, and t he perform ance of those duties serve the purposes of [ UT]. ” T h us, even if we were to construe that W ij e had alleged claims against Burns in his individual capacity, UT establ ished the Burns was a ct i ng with in the scope of his employment and , therefore, the tort claims against Burns are foreclosed by S ection 101. 106.20 840 (sovereign immunity bars breach of contract claims). Wije ’ s breach of contract claim is, thus, barred by sover ei gn immunity

. 13
Because we conclude th at the trial court lack e d juris diction over all the
cla ims alleged by Wije, we overrule his first issue, co mplaining about the trial

court ’ s failure to recognize its co ncurrent juris diction over federal claims, 14 and his

seco nd issue , arguing that Title VII , S ection 1983, and the TTCA wa ive UT ’ s immu nity here. T hese defects are not curable, but instead affir matively negate the
existenc e of jurisd iction ; t herefore, the tri al court properly dismis sed Wije ’ s claim s
. See id. at 839

– 40. Furt hermo re , the above

- discussed grou nds are sufficient

t o support the trial c ourt ’ s granting of UT ’ s plea to jurisd iction, so we need not

13 I t is unc le ar whether Wije intended t o allege breach of contract against Burns, or only UT

. B ecause Wij e did n ot identify any contrac t between him self and Burns, and because UT provid ed an affidavi t from Burns ’ s sup ervisor averring that Burns lacked any authority t o administer employment con t racts, w e construe Wije ’ s ple adings as asserting the breach of con tract c laim solely against the University.

14 Wije argues that the tr ial court erroneously s tated that it lac ked any jurisdict ion over his federal claims. However, w hen Wije asked whether t he tr ial court had concurrent jurisdiction o ver those c laims , the trial c ourt responded, “In som e circumstance s, yes, but this agency also has sov ereign immunity that covers a lot of that.” The trial c ourt stated its intent to look at all of the pleadings and o ther motions on file and weigh the m thoroughly b efore ruling. N othin g in the record indicat es that the tr ial court rejected the federa l claim s without fully considering th e extent of its j urisdiction

. A nd our conclu sion that the trial court lacked ju r isdic tion over the d iscrimination and retaliation cla ims demonstra tes tha t the trial court corre ctly determine d that it could not exercise jurisdi ction in this case.21 address Wije ’ s third issue , asserting that the tria l co urt erred to the extent it
dismissed h is claims on limitations grou nds

. 15
Co nclusion
W e affirm the j udgment of the tria l court.

Richar d Hightower Justice
Panel consists of Justices Goodman , Land au , and Hightower

.

15 There are several pend in g motions , including UT ’ s motion to strike Wije ’ s reply brie f , Wije ’ s mo ti on for leave to file a sur

- reply brief, and Wije ’ s mo tion to strike por tions of UT ’ s brief. Becau se we considered the p ortions of the appellate briefing that were ti mely filed and properly before this Court for consideration and have now reso l ved th is appeal , we d ismiss the pending motions as mo ot.