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

ELPASO COMMUNI TY COL L EGE, Appellant,

v. ANTON I O L AWL ER, Appellee

. § § § § § § No. 08-08-00174- CV

Appea l from 168th District Court of El Paso County , Texas (TC # 2006-206)

O P I N I O N This is an i n t er l o cutory appea l taken by the El Paso Communi ty College District from an order deny ing its plea

to the jurisdiction. W e af firm.
F ACTUAL SUMMA RY Antonio L awler , who is Hispanic, beg an wor king f or El Paso Communit y College District (EPCC) in 1984 as a part-time, non-cr edit welding instructor. Until 2004, EPCC offe red only noncre dit we lding course s. I n 2004, EPCC beg an offe ring cre dit c ourses in w elding which could lead
to an associate s deg ree in Machining Tec hnology

. EPCC assig ned L ee L ower s, a non-Hispanic, to
teac h the cre dit course s and L awler continued teac hing t h e non-cr edit course s. I n the summer of 2004, the cre dit and non-cr edit classes wer e combined due to low enrol l ment and L ower s was assig ned to teac h the combined class. On J une 10, 2004, L awler sent a written memorandum to the
ATC Direc tor, Carrie Powell, complaining that he had been schedule d to teac h the course and it was 1
instead gi v en to L ower s. L awler expressed his belief that the decision was made beca use of his

A T C i s t h e a b b r e v i a t i o n f o r A d v a n c e d T e c h n o l o g y C e n t e r . 1national orig in and he filed an EEOC co m p l ai n t

. EPCC subsequently deter mined that neither
L ower s nor L awler was cre dentialed to teac h the course . Powell rec ommended L awler for cre dential exception to the F aculty Credentials Review Commi ttee (F CRC ), but the FCRC r ejec ted L awler ’s application on Aug ust 18, 2004. I n response to that decision, L awler filed a reta liation char g e with the EEOC. Vice President Yolanda Ahner revie wed L awler ’s rec ords and substitut ed course work in order for L awler to qualify for a cer tificate o f co m p l et i o n from EPCC

. Throug h the eff orts of Ahner , L awler obtained his colleg e-le vel cer t i fi ca t e in November 2004 and he taug ht a cre dit welding course beg inning in January 2005.
I n September 2005, Craig Acuna provided L awler with a new sy llabus for the cre dit welding

course which he h ad draf ted. The following month, the new ATC Direc tor, J ose Canales, asked
L awler whether h e wa s using Acuna ’s sy llabus. L awler responde d that he had distributed the
sy llabus to the class but it could not be used to teac h the students what they neede d to lear n. L awler

was instead using his own sy llabus from the non-cr edit welding course . Canales order ed L awler to
use t he new sy llabus. The following day , L awler res i gn ed beca use he felt t hat us e of the s y llabus rende red the employ

ment conditions intol era

ble.
L awler filed suit on J anuar y 13, 2006, complaining EPCC discriminated ag ainst him beca use of his Hispanic national orig in when it did not acc ept his cre dentials to teac h cre dit welding course s,

ear marke d his fac ulty cre dentials form to preve nt him from teach i n g credit welding course s, assig ned him to teac h only non-cr edit course s, and combined his non-cr edit class with a cre dit class
to be taug ht by a non-Hispanic instructor. L awler also alleg ed that EPCC reta liated ag ainst him for fi l i n g a discrimination complaint by not hiring him to teac h welding course s, by requiring him to apply for alterna tive cre dentials, and by re q u i ri ng him to use the new sy llabus when teac hing the

cre dit welding course in the Fa ll of 2005. The following month, L awler filed a third EEOC char g ealleg in g age d i s crimi nation and reta liation. On Dec ember 15, 2006, EPCC filed a plea to the

jurisdiction on the g round that beca use L awler had failed to state a prima facie case of discrimination under Chapter 21 of the Texas L abor Code, its sovere ign immunit y had not been waived. On J uly 5, 2 2007, L awler amende d his petition to include the ag e discrimination claim raised in the third EEOC char g e. The trial court de nied the plea to the jurisdiction and EPCC filed notice of appea l. 3
EMP LOYMENT DISCRIMINATION
I n two issues, E P C C arg ues t hat t he trial court erre d by deny ing its plea to the j urisdiction beca use L awler failed to “plea d or prese nt fac ts to establish discrimination” on the basis of national orig in, ag e, or r etaliation.
Sovere ign Immunity Sovereig n immunit y deprive s a trial court of subject-matter jurisdiction of lawsuits in which the state or cer

tain g overnme ntal units have been s u ed u n l es s t h e state consents to suit. Texas Departme nt of

Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 224 (2004). The Texas Commi ssion

on Human Rights Act provides a limit ed waiver of sovere ign immunit y when a g overnme ntal unit has committed employ

ment discrimination o n t he basis of rac e, color, disability , relig ion, sex, national orig in, or ag e. See T E X .L A B O R C O D E AN N
. § 21.051 (Ve rnon 2006)(pr ohibiting unlawful employ ment prac tices by “employ er” ); § 21.002(8)( D)(V ernon Supp. 2010)(de fining “employ er” to include a c ounty , municipality , state ag ency , or state instrumentality ).

I n t h e m o t i o n , E P C C n o t e d t h a t L a w l e r ’ s t h i r d E E O C c h a r g e h a d b e e n d e c i d e d a d v e r s e l y t o h i m b u t h e h a d 2
n o t y e t f i l e d s u i t w i t h r e s p e c t t o t h a t c h a r g e . W e o r d e r e d t h e p a r t i e s t o m e d i a t e b u t m e d i a t i o n w a s u n s u c c e s s f u l

. E P C C l a t e r f

i l e d a m o t i o n t o a b a t e t h e 3
a p p e a l a n d r e m a n d t o t h e t r i a l c o u r t f o r t h e p a r t i e s t o a d d r e s s i s s u e s r a i s e d d u r i n g t h e m e d i a t i o n b e c a u s e E P C C r e p r e s e n t e d i n i t s m o t i o n t h a t i t w o u l d p o s s i b l y f a c i l i t a t e s e t t l e m e n t o f

t h e c a s e . W e g r a n t e d t h e m o t i o n a n d a b a t e d t h e a p p e a l

. I n t h e s u b s e q u e n t t r i a l c o u r t p r o c e e d i n g s , E P C C o f f e r e d a d d i t i o n a l e v i d e n c e r e l a t e d t o i t s p l e a t o t h e j u r i s d i c t i o n a n d t h e t r i a l c o u r t r e c o n s i d e r e d E P C C ’ s p l e a t o t h e j u r i s d i c t i o n . T h e t r i a l c o u r t a g a i n d e n i e d t h e p l e a t o t h e j u r i s d i c t i o n a n d w e r e i n s t a t e d t h e a p p e a l

.Plea to the Jurisdiction

A plea to the jurisdiction is a dil at o ry plea that seeks dismiss al of a case for lack of subject-matter juri s d i ct ion. Harris County v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004); Bland Indepe ndent School District v. Blue , 34 S.W .3d 547, 554 (Tex. 2000). The plaintiff has the burden
to alleg e fac ts t h at aff

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

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

v. Housing Authority of the City of El Paso , 148 S.W .3d 471, 477 (Tex.App.--El P as o 2004, pet. denied)

. When a plea to the jurisdiction challeng es the pleading s, we construe the pleading s liberally in favor of the plaintiff and revie w de novo whether the plaintiff has met his burden. Miranda , 133
S.W .3d at 226; Texas Departme nt of Criminal Justice v. Cooke , 149 S.W .3d 700, 704 (Tex.App.-- Austin 2004, no pet.). When a plea to the jurisdiction challeng es the exis tence of jurisdictional fac ts,

we consider rele vant evidenc e submitt ed by the parties when nece ssary to resolve the jurisdictional issues. Miranda , 133 S.W .3d at 227; Cooke , 149 S.W .3d at 704. I n some case s, the issue is whether undispu t ed evidenc e of jurisdictional fac ts establishes a trial court’s jurisdiction. Miranda , 133
S

. W

. 3 d at 226. This is also a question of l aw subject to de novo revie w. Id. at 226. But in other

case s, there can exis t disputed evidenc e of jurisdictional fac ts which also implicates the merits of the

case . Id. at 227. I n that instance, the trial court revie ws the rele vant evidenc e to deter mine if a fac t issue exis ts. Id. I f a fac t issue exis ts, the trial court cannot g rant the plea to the jurisdiction and the fac t issue must be resolved by the fac t finder. Id. at 227-28. I f the rele vant evidenc e is undisputed

or fails to ra i s e a fa ct question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This standard mirrors that of a summary judgme nt under
T ex as Rule of Civil Procedur e 166a(c ). Id. Where the pleading require ment has been met an d evidenc e has been submitt ed that implicates the merits o f t h e ca se, we take as true all evidenc efavor able to the nonmovant. Id. We indulge ever y rea sonable infere nce and resolve any doubts in the nonmovant’s fa

vor. Id. Purported Challenge to the Pleadings
We w ill first addre ss E PCC ’s purported challeng e to L awler ’s pleading s. Although EPCC includes a challeng e to the pleading s in its statement of I ssue Two, it does not specific ally addre ss this arg ument in the body of the brie f. I nstead, EPC C focuse s its entire a rg ument on the evidenc e submitt ed in support of its challeng e to the jurisdictional fa ct s . Rule 38.1(I ) require s the brief to
cont ain a clea

r and concise arg ument for the contentions made, with appropr iate citations to authorities and to the rec ord. T E X .R.A P P .P. 38.1(I ). I n the absenc e of any ana l y s i s o f L awler’s pleading s or arg ument rela ted to their adequa cy , we find that this aspec t of I ssue Two is inadequa tely briefe d. Challenge to the Jurisdictional Facts
I n its plea to the jurisdiction, EPCC challeng ed the exis tence of cer tain jurisdictional f

acts.
I n discrimination case s based upon circ umstantial evidenc e, the plaintiff must first establish a prima facie case . Bowen v. El Paso Electric Company , 49 S.W .3d 902, 908 (Tex.App.--El Paso 2001, pet. denied)

. The plaintiff must demonstrate : (1) he is a member of a protected class; (2), he suffe red

an adver se employ

ment action; (3) he was qualified for the job he held; and (4) he was repla ced by

someone not in his protec ted class. Id. I n establishing a p r i ma f a ci e case , the plaintiff is only require d to make a minimal showing

. Id. at 908-09. L awler is require d to asser t a prima facie case of national orig in a

nd ag e discrimination for the trial court to ha ve subject matter jurisdiction ove r his claim.
I f the plaintiff is succe ssful in establishing a prima facie case , the burden of production shifts
to the employ er to produce evidenc e that the plai n t i ff was terminated for a leg itimate,nondiscriminatory rea son. Id. at 909. This burden is one of production o n l y , n o t p ersuasion,

involving no cre dib i l i ty assessment. Id. Once the employ er articula tes a leg itimate nondiscriminatory rea son for the adver se job action, the plaintiff may prove discrimination by showing “that the leg itimate r easons offe red by the defe ndant wer e not its true rea sons, but were a prete x t fo r d i s crimi nation.” Id. , quoting Ree ves v. Sanderson Pl umbing Products, Inc. , 530 U.S. 133, 143, 120 S.Ct

. 2097, 2109, 147 L .Ed.2d 105 (2000). The plaintiff may do this by showing that the employ er’ s proffe red e x planation is unworthy of cr edenc e. Id. National Origin Discrimination C laim - Qualification Element
I t is undisputed that L awler is a member of a protec ted class and he was not assig ned to teac h the cre dit welding course in May 2004. EPCC contende d in its plea to the jurisdiction that L awler

was not qualified to teac h the cre dit welding course at that time. I f EPCC is corr ect, L awler cannot maintain his discrimination claim.
L awler rec eived a cer

tificate of compl eti on in welding from the East L os Ang eles Skill s Center in 1981. EPCC attache d to its plea to the jurisdiction an aff idavit of Nanc y Nelson, Associate Vice- President for Employ ee Relations of EPCC

. She stated that the qualifica tion require ments for
teac hing cre dit welding course s are g rea ter than the qualifica tion require ments for t eac hing noncre dit classes. To be qualified to teac h a cre dit welding class, an instructor must have the minimum of a cer tificate of completion in welding from a post-seconda ry instit ution. Acc ording to Nelson, neither L awler nor L ower s had the require d cer tificate of completion. EPCC deter mined in 2003 that
L ower s was qualified to teac h the cre dit welding course beca use he had a Texas Tea cher s Certifica te which his supervisors acc epted as being equivalent to a Ba chelor ’s deg ree . She admitted that L awler had a Texas T eacher s Certifica te but claimed he did not submit it in 2003 as part of his fac ulty

cre dentialing materia ls and he ha d not submit ted i t by May 2004. L awler prese nted evidence thathe had submitt ed his Texas Tea cher s Certifica te to EPCC twice in 2003 and ag ain in ear ly 2004. I t

was not until afte r L awler voiced his natio n al o ri gi n discrimination complaint and broug ht to EPCC ’s attention that he had a Texas Tea cher s Certifica te that EPCC rec onsidered the propriety of qualify ing an instructor based on a Texas Tea cher s Certifica te. At that point, EPCC deter mined that
a Te x as Tea cher s Certificate is not the equivalent of a Ba chelor ’s deg ree . The issue is not what qualifica tion standard applied afte r the alleg ed discriminatory act but what standard applied at the time it occur red. EPCC established with its own ev i d en ce that an instructor could qualify to teac h a cre dit welding course in May 2 0 0 4 i f he possessed a Texas
Tea cher s Certifica te. L awler offe red evidenc e that he had a Texas Tea cher s Certifica te and he had provided it to EPCC in 2003 and ear ly 2004. This e vidence is suf ficient to c rea te a fac t issue as to whether L awler was qualified to teac h the cre dit welding course under the qualifica tion standard utiliz ed by EPCC in May 2004. The ex i s t en ce of this fac t issue would prec lude the g ranting of
EPCC ’s plea to the jur isdiction. See M iranda , 133 S.W .3d at 227-28.Age Discrimination and Retaliation - Adverse Employme nt Action Element

EPCC next arg ues that sovere ign immun i ty is not waived with respe ct to L awler ’s ag e discrimination and reta liation claims b ec au s e, wi th the exception of constructive discharg e, the actions he complains of are not adver se employ ment actions. I n his second amende d petition, L awler based his ag e discrimination cla i m o n al l egations that his ag e was a motivating fac tor in EPCC ’s decision (1) to exclude him from a meeting with J ose Canales wher e expectations of the fac ulty was d i s cu s s ed, (2) to require him to attend a private meeting with Canales, and (3) to require h i m t o fol l ow the course sy llabus. L awler also asser ted that he was constructively discharg ed. I n

connec tion with his retaliation claim, L awler alleg ed that EPCC reta liated aga inst him for filing a discrimination complaint by requiring him to apply for alterna tive cre dentials, and by requiring him
to use the new sy llabus when teac hing the cre dit welding course in the Fa ll of 2005

. He ag ain alleg ed he w as construc tively discharg ed.
An employ

ment discrimination claim require s that the plaintiff prove that he su ff ere d an adver se emplo y

m en t action. See Bowen , 49 S.W .3d at 908 (stating elements of employ ment discrimination c laim unde r TCHRA). L ikewise, a re taliation claim made under Section 21.055 of
t h e T ex as L abor Code require s the plaintiff to make a prima facie showing that he suffe red an adver se employ

ment action. See Bartosh v. Sam Houston State University , 259 S.W .3d 317, 329 (Tex.App.--Te x arka

na 2008, pet. denied); Dias v. Goodman Mfg. Co., L.P. , 214 S.W .3d 672, 676 (Tex.App.--Houston [14t h Dist.] 2007, pet. denied)

. To prove that a challeng ed action constitutes

an adver se employ

ment action, the plaintiff must show that a rea sonable employ ee would have found the challeng ed action materia lly adver se, which in this context means it might well have dissuaded

a rea sonable worke r from making or supporting a char g e of discrimination. Burlington Northern &
Santa Fe Railway Company v. W hite , 548 U.S. 53, 68, 126 S.Ct

. 2405, 2415, 165 L

. E d .2d 345(2006); Niu v. Rev cor Molded Products Company , 206 S.W .3d 723, 731 (Tex.App.--F ort Worth

2006, no pet.)(a

pply ing Burlington standard to r etaliation claim under TCHRA). The require ment that an action be “mater ially adver se” exis ts to separ ate signific ant from trivial harms, such as “petty slights, minor annoy ance s, and simple lack of g ood manner s.” Burlington , 548 U.S. at 68; Niu , 206
S.W .3d at 7 3 1

. T he action is judge d from the standpoint of a rea sonable employ ee beca use the standard for judging harm must be objective. Id

. The standard is g ener al beca use the signific ance of any g iven ac t of reta liation will often depend upon the pa rticular c ircumstance s. Id

. L awler does not arg ue on appea l that exclusion from a meeting , require d atten d ance at a meeting , or being require d to use a new sy llabus are adver se employ ment actions under Burlington’s standard. We find as a matter of law t h at a rea sonable employ ee would not have found the challeng ed actions materia lly adver se beca use they would not dissuade a rea sonable wo rker from making or supporting a char g e of discrimination. Howeve r, L awler als o alleg ed he was constructively discharg ed. Constructive discharg e is an adver se employ ment acti o n u nder Burlington

. EPCC challeng es L awler ’s claim of constructive dis c harg e. A constructive discharg e occur s when an employ er makes conditions so intolerable that an employ ee rea sonably fee ls compelled to resig n. See Baylor Univ. v. Coley , 221 S.W .3d 599, 604-05 (Tex. 2007), citing Pennsylv ania State Police v . Suders , 542 U.S. 129, 141, 124 S.C t. 2342, 2351, 159 L .Ed.2d 204 (2004); Hammond v

. Katy Indepe ndent School District , 821 S.W .2d 174, 177 (Tex.App.--Houston [14t h Dist.] 1991, no writ). Many fac tors are rele vant to the consideration of whether the plaintiff was constructively discharg ed, including evidenc e of badg ering , hara ssment, or humiliation by the employ er calc ulated
to encour ag e the empl o y ee ’s re signa tion. Davis v. City of Grapev ine , 188 S.W .3d 748, 766 (Tex.App.--F ort Worth200 6 , p e t. d e n ie d )

. E v e n a c cepting L awler ’s pleading s as true, his alleg ationsrela ted to the employ ment conditions do not sta t e a prima facie case that the conditions wer e so intolerable tha t an employ ee w ould rea sonably fee l compelled to re sign.
We have also examined the evidenc e rela ted to L awler ’s pleading s of constructive discharg e to determine if L awler can establish a prima facie case of construc tive discharg e. I n his affida vit,
L awler re l at ed that in the summer of 2005, he was assig ned to teac h a welding course for the fall
semester

. On September 2, 2005, the ATC direc tor, J ose Canales, met with the fac ulty but L awler did not attend because he had not been noti fied about the m eeting

. L awler stated i n his pleading s that Canales met with the fac ulty on this date to discuss his expectations of the fac ulty

. L awler also descr ibed in his affida vit how Canales met with him on September 19, 2005 for the s ame purpose b ut Canales never discussed his expectations of the fac ulty with L awler

. Canales did, howeve r, discuss L awler ’s char g es of discrimination but there is n o e v id e nce that Canales made any statements that would have c aused a n employ ee to r easona

bly fee l compelled to re sign.
L awler also maintains in his aff idavit that EPCC ’s insistence that he use the new sy llabus to
teac h the Welding Using Multipl e Processe s course is the condition which compelled him to resig n his employ

ment, or as he put it, the “last straw.” He rela t ed how Canales order ed him on October 18, 2005 to use t he new s y llabus despite hi s objections. L awler explained in his aff idavit that the Welding using Multipl e Processe s course is EPCC ’s introductory welding course . I t is the foundation for al l o f t h e o t h er cre dit welding course s offe red by the College and the students are expected to lear

n using the equipment in the welding labora tory

. I t was impossibl e for an instructor
to follow the new sy llabus cale ndar beca use the College had limit ed equipment. As an example of the problem, L awler explained t h at t h e sy llabus cale ndar require d lab prac tice on four dates in October for torch set-up and opera tion, torch cutting and plate prepa ration, and torch flame cutting and ox y fuel welding , but t h er e we re only five torche s for the class’s eleve n students. I n hisexperience , the students neede d three hours of prac tice on the torch eac h schedule d day to pass the

course and to be rea dy for the highe r level cre d i t welding course s. I f the instructor used the new
sy l l ab u s , t h e s t u dents would be behind at t he conclusion of t he class and the instructor would not have taug ht the students what they neede d to lear n. L awler conclude d that EPCC ’s require ment that he use the new sy llabus had a materia lly adver se eff ect on the conditions of employ ment beca

use he could not teac h the cour se using the sy llabus. Consequently , he quit his positi on. We find that a fac t issue exis ts reg arding whether Canales’ pointed insistence that L awler use

a sy llabus with which he fundame ntally disag ree d for the rea sons set forth in his aff idavit would

cre ate the ty

pe of intolerable conditions that would cause him to rea sonably fee l compelled to resig n. Given the exis tence of this fac t issue, the trial court did not err by deny ing the plea to the jurisdiction

as it rela tes to the ag e discrimination a nd reta liation c laims. We ove rrule I ssues One and Two and aff irm the order

deny ing the plea to the jurisdiction.

November

30, 2010 ANN CRAWFORD McCL URE, J ustice
Be fore McClure, J., C hew, J., and Ba raja s, C.J . (Ret.) Chew, Judge, sitting by

assig nment Ba raja s, C.J . (Ret.), sitting by assig nment