Texas Tech University System and Texas Tech University System Board of Regents v. Pureza "Didit" Martinez

Supreme Court of Texas

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No. 22-0843

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Texas Tech University System and

Texas Tech University System Board of Regents,

Petitioners,

v.

Pureza “Didit” Martinez,

Respondent

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On Petition for Review from the

Court of Appeals for the Seventh District of Texas

═══════════════════════════════════════

JUSTICE YOUNG, joined by Justice Boyd and Justice Busby,

dissenting.

Mrs. Martinez claimed that the Texas Tech University Health

Sciences Center terminated her employment due to age-based employment

discrimination, so she sued. The Center—Martinez’s direct employer—is

an entity under the authority of the Texas Tech University System and

its Board of Regents. The System and the Board are not Martinez’s

direct employers, but she also sued them for employment discrimination.

Under Texas law, a plaintiff can sue such a third party as an “employer”

by alleging that it exercised control over the employment action. The

System and the Board filed a plea to the jurisdiction that asserts sovereign

immunity and requests dismissal of Martinez’s claims with prejudice.

The Court rejects that request. I disagree with the Court’s

judgment for reasons that I will explain in detail, but I agree with the

Court that Martinez can indeed sue the Board and the System as

“employers.” After all, if the law did not allow Martinez (or anyone) to

sue the Board or the System as indirect “employers,” it would be pointless

to give Martinez leave to replead; we would just dismiss with prejudice,

as petitioners ask. The distance between the Court’s view and mine,

therefore, is not necessarily great. But what divides us is still important,

especially because the Court’s new concept of the sufficiency of the

pleadings will affect the entire legal system.

The Court sends Martinez back to try again. I cannot see why.

Martinez has already alleged more than enough to state a claim, the

lowest burden in litigation. Satisfying that low bar is all she must do for

us to uphold the judgments of the able district court and the unanimous

court of appeals panel. The Board and the System, after all, chose to file

only “a jurisdictional plea [that] challenges the plaintiff’s pleadings.”

Ante at 7 (emphasis added). They could have, but did not, file a plea to

the jurisdiction that would have required Martinez to provide evidence of

contested jurisdictional facts.

The Court concludes that, despite the liberal construction we must

give pleadings, Martinez’s allegations fail even to state a claim against

the Board and the System. She must say more. But what else, exactly,

must Martinez allege? Here is how the court of appeals interpreted her

original petition:

2

[T]he following picture [is] painted by Martinez’s live

pleading. The University System, through its Board of

Regents, decided to rid the Center of older employees due to

financial concerns relating to their impending retirement.

They then directed [the president of the Health Sciences

Center, who was also the chancellor of the System] to

implement their policy. He did.

683 S.W.3d 111, 116 (Tex. App.—Amarillo 2022). I agree with the court

of appeals. Frankly, I agree with everything in its well-reasoned opinion,

but most importantly, I agree that Martinez’s original petition “satisfies

[the requirements of Texas law]; the System and Board purportedly

‘controlled access to the plaintiff’s employment opportunities and denied

or interfered with that access based on unlawful criteria.’ ” Id. She has

pleaded more than enough to make these points.

Indeed, if her clear, specific, and detailed allegations are

insufficient on their face, then I have been wrong all these years about

what it takes to frame a sufficient pleading. The Court could, I suppose,

treat this case as a ticket good for one ride only (but why, then, did we

grant review?). Otherwise, the problem is not one for Martinez alone—

she will have plenty of company in the lower courts, the bar, and the

public in wondering what the minimum pleading standard really is. So I

must respectfully dissent.

I

This case comes to us on a plea to the jurisdiction because the

Board and the System are state entities whose sovereign immunity has

been waived as to employment-discrimination claims. See Tex. Lab.

Code § 21.002(8)(D). The Labor Code “waives immunity, but only when

the plaintiff states a claim for conduct that actually violates the statute.”

3

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.

2018). The statute says this: “An employer commits an unlawful

employment practice if because of . . . age the employer . . . discharges

an individual.” Tex. Lab. Code § 21.051(1). “Generally, an employer

commits an unlawful practice ‘because of’ an employee’s age if the

employee’s age was ‘a motivating factor’ for the practice, ‘even if other

factors also motivated the practice.’ ” Tex. Tech Univ. Health Scis. Ctr.-

El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (quoting Tex. Lab.

Code § 21.125(a)); see also Tex. Lab. Code § 21.101 (plaintiff employee

must be “40 years of age or older”).

For the statute to apply to a defendant, that defendant must be an

“employer.” No one disputes that the Center is Martinez’s “employer”—

it is her direct employer. But what about the Board and the System?

They can be her “employers,” too. As this Court has explained, the Labor

Code’s use of “employer” extends beyond direct employers; instead, it

“affords a claim to people who do not stand in a direct employment

relationship with the defendant-employer.” NME Hosps., Inc. v. Rennels,

994 S.W.2d 142, 146 (Tex. 1999).1 In doing so, we embraced the federal

1 As I will describe, Martinez sufficiently alleges a claim against the

System as her indirect “employer” under Rennels. She could choose to allege

that the System is her direct employer. She noted in her briefing (and the Court

discussed at oral argument), for example, that she has received W-2 forms listing

her employer as the System. Moreover, as she noted, “[t]he parties have not yet

begun discovery. Discovery of Mrs. Martinez’s employee records will answer

important factual questions as to who her ‘employers’ actually were, and given

her position as Chief of Staff to [the president of the Center and the chancellor

of the System], whether she was an employee of [the Center, the] System, or

both.” But for purposes of today’s case, and indeed because today’s decision

matters so much to future cases, I focus on why the allegations are already

sufficient at this stage for the System to be an indirect employer.

4

approach from Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.

Cir. 1973).

Under that test, even if the System and the Board are not

Martinez’s direct employers, Martinez may still sue them as “employers”

if she alleges as to each:

(1) that the defendant is an employer within the statutory

definition of the Act; (2) that some sort of employment

relationship exists between the plaintiff and a third party;

and (3) that the defendant controlled access to the plaintiff’s

employment opportunities and denied or interfered with

that access based on unlawful criteria.

Rennels, 994 S.W.2d at 147 (citations omitted). Making such a showing,

we said, gives a plaintiff “standing” to sue the third party as an employer.

Id. It was a mistake to call it “standing,” which relates to subject-matter

jurisdiction—including when the defendant is not a governmental entity.2

Rather, Rennels clarified that the anti-discrimination laws also reach

defendants who are not direct employers.

2 If it really involved “standing,” then even private defendants could

challenge the pleadings on jurisdictional grounds. In fairness, the Court called

it “standing” because Sibley used that term. See Sibley Mem’l Hosp. v. Wilson,

488 F.2d 1338, 1341 (D.C. Cir. 1973). That usage came from an earlier era in

which courts had not yet begun speaking with precision about the difference

between “standing” and “merits.” Sibley helpfully explains that its use of

standing included those who have “an interest within the zone of those regulated

by the statute or constitutional guarantee in question.” Id. at 1341 n.4 (internal

quotation marks omitted). The Supreme Court has clarified that the zone-of-

interests test actually implicates the merits—does the statute give one a right to

relief? See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

127–28 & n.4 (2014); see also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763,

774 (Tex. 2020) (“[W]e have been clear in this century that the question whether

a plaintiff has established his right to go forward with [his] suit or satisfied the

requisites of a particular statute pertains in reality to the right of the plaintiff

to relief rather than to the [subject-matter] jurisdiction of the court to afford it.”

(alterations in original) (internal quotation marks omitted)).

5

Alleging facts that address the Rennels elements, in other words,

means that a plaintiff has satisfied the statutory requirement of suing an

“employer.” Whether Rennels was right or wrong to define “employer”

this way may be an interesting question—but that question is not before

us. No one here challenges Rennels. Every party instead asks us to apply

rather than modify or discard it. The System and the Board only contend

that they are not “employers,” either directly or under Rennels.

To address this contention, the Court rightly focuses on the third

Rennels element—that the Board and the System “controlled access to

[Martinez’s] employment opportunities and denied or interfered with that

access based on unlawful criteria.” Id. The Board and the System assert

that Martinez has not even alleged that they did so. The Court agrees

with them. Ante at 11. I do not.3

Martinez’s original petition contains both direct allegations of

discrimination by the System and the Board and allegations raising a

presumption of discrimination by them—two ways for her to prevail

under the statute.4 If the System and the Board are not her direct

3 The Board and the System make other arguments, too. One is that

they could not have discriminated because, under the “Regents’ Rules,” they do

not have authority to interfere in employment decisions in the System’s

components. The Court correctly rejects this contention. Ante at 12 n.7. The

Board also asserts, contrary to the statute’s language, see Tex. Lab. Code

§ 21.002(8)(D), that it is not an “employer” at all; Martinez says that this is

disputable, given that various employees report directly to the Board. If either

argument had merit, we would not allow repleading.

4 There are “two alternative methods of proof ” for age-discrimination

claims under § 21.051. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d

629, 634 (Tex. 2012). (Of course, at the pleading stage, “proof ” is not—or at

least should not be—required.) The first “involves proving discriminatory

6

employers, the same allegations assert “control” and “interference” to

satisfy the third Rennels element. See infra Part II.A (discussing

Martinez’s allegations in greater detail).

Our liberal-construction standard of review bolsters this

conclusion. The Court must “construe the pleadings liberally in favor of

the plaintiffs.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). But as I read it, the Court construes Martinez’s

pleading strictly against her and mandates that she greatly exceed what

our law requires of an original petition. The standard thus bears

repeating: “We construe the plaintiff’s pleadings liberally, taking all

factual assertions as true, and look to the plaintiff’s intent.” Heckman v.

Williamson County, 369 S.W.3d 137, 150 (Tex. 2012).5

II

So how do Martinez and the Court fare in discharging their

duties—Martinez to sufficiently allege that the Board and the System

intent via direct evidence of what the defendant did and said.” Id. Under the

second, “the plaintiff is entitled to a presumption of discrimination if she meets

the ‘minimal’ initial burden of establishing a prima facie case of

discrimination.” Id. (discussing the burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). A prima facie case

exists if the plaintiff “was (1) a member of the protected class under the [Labor

Code], (2) qualified for his or her employment position, (3) terminated by the

employer, and (4) replaced by someone younger.” Id. at 642.

5 The Court notes that pleas to the jurisdiction can be similar to “special

exceptions.” Ante at 8 n.5. True enough. But what purpose does this

observation serve? Petitioners do not ask us (and did not ask the lower courts)

to treat their jurisdictional plea as a special exception. Their plea to the

jurisdiction asked for dismissal with prejudice. No party before us mentions

“special exceptions.” Nowhere other than footnote 5 does the Court mention

“special exceptions.” If special exceptions are relevant to today’s decision, I do

not see how.

7

discriminated against her, and the Court in reviewing those allegations

with proper deference at this stage of litigation? I address them in turn.

A

To start with Martinez, here is some of what she alleged. She was

72 when she was discharged as chief of staff. Pl.’s Original Pet. ¶ 45.

“The Board of Regents asked Dr. Mitchell [the president of the Center

and also the chancellor of the System] to reduce the average age of senior

leadership at [the Center].” Id. ¶ 49. Dr. Mitchell sent an email (which

Martinez also attached to her original petition) in which he observed that

the Board was “quite interested” in succession planning at the System

and the Center. Id. ¶ 14 (quoting Ex. B, the email). He reported that the

average employee of the Center’s senior leadership was 60 years old and

62% of employees were eligible for retirement. Id. Martinez was 12 years

above the senior leadership’s average age. Id. ¶ 45.

“One month later, Dr. Mitchell was true to his word and carried

out the Board of Regents’ request to reduce the age of senior leadership

by firing Mrs. Martinez.” Id. ¶ 15. Dr. Mitchell, “while acting for [the

Center] and the TTU System,” id. ¶ 23, fired Martinez both in person and

via email. Id. ¶¶ 16, 18. Dr. Mitchell did this “to appease the Board of

Regents and lower the average age of [the Center’s] President’s Executive

Council . . . by firing Mrs. Martinez and replacing her with a younger

white male.” Id. ¶ 23.

Central to Martinez’s theory is her allegation that there was “no

justifiable reason” for firing her. Id. ¶ 15. She was told that she was fired

for “ ‘leaking’ information from [Dr. Mitchell’s] office,” which she

categorically denied (even offering to take a lie-detector test). Id. ¶¶ 19–

8

20. She observed that she had “never been accused of this type of, or even

similar, conduct.” Id. ¶ 19. Martinez was, instead, “a faithful employee

of more than eleven years.” Id. ¶ 15. She had “repeatedly received

glowing evaluations, and her employee records will show that she has

never been disciplined or accused of any misconduct.” Id. ¶ 13. She was

set to receive a $15,000 merit-based salary increase. Id.

Martinez buttresses her assertion that there was “no justifiable

reason” for her firing by adding that there is “no evidence that [she] acted

improperly.” Id. ¶ 21. She both alleges this and shows that the allegation

is corroborated by a third-party source. The U.S. Equal Employment

Opportunity Commission investigated Martinez’s claims after learning

about them from another older employee (i.e., Martinez did not reach out

to the EEOC but the other way around). Id. ¶ 28.

The EEOC and its investigation are prominent in Martinez’s

original petition, to which the EEOC’s ultimate “determination letter” is

attached. See id. ¶¶ 21, 29, 34 (citing Ex. E). The Court disparages the

letter, but for no good reason (particularly at this stage). The Court says

that the letter formally names only the Center as “Respondent” and does

not make official “findings” as to the System or the Board. Ante at 16 n.9.

So? That is not why the determination letter matters. What is relevant

is that the letter provides a neutral, third-party summary of the events

leading to Martinez’s termination and supports her allegations. In its

letter, the EEOC recounted this: “During the scope of our investigation,

interviews were conducted with those individuals involved in the decision

to terminate [Martinez], and not one could provide any evidence

whatsoever that shows that [Martinez] was responsible for disclosing

9

confidential information as they claimed.” Pl.’s Original Pet. ¶ 21

(emphasis added) (quoting Ex. E).

Martinez uses the letter because it corroborates—indeed,

bolsters—her key allegation that she was fired for “no justifiable reason.”

At this stage of litigation, we must take her allegations as true. If the

letter eliminates leaking information as the reason for her firing, then it

becomes more likely that the real reason is what Martinez alleges: the

Board’s direction to thin the herd of its older members.

There is even more. The letter, for example, also refers to Dr.

Mitchell acting in his capacity as “Chancellor” of the System and sending

the email that describes the “Board of Regents” being concerned about

employee elderliness. Id., Ex. E. (I discuss this email in much greater

length in Part II.B.1.) And as Martinez alleges, she was “one of the oldest

employees” and “was the first to go,” id. ¶ 49, but she was not the only

one to go. The same EEOC determination documents at least one other

older employee who was fired around the same time as Martinez:

[O]n or about June 17, 2019, or five days after [Martinez]

was advised of her termination, the [Center] also

terminated an Executive Administrative Assistant (EAA)

for the Office of the President who was 62 years of age at the

time of her hire. That EAA was hired by [Martinez] and was

terminated on the same date she reported to work. That

EAA was also replaced by someone who is almost half her

age.

Id., Ex. E.6 The EEOC determination separately observes that Martinez’s

replacement was “substantially younger.” Id.

6 Atoral argument, Martinez’s counsel said that at least two older

employees were fired around the time that Martinez was, as shown in the record.

10

To be clear, Martinez does not need the EEOC letter to sufficiently

plead anything. But treating the letter as nothing exemplifies how the

Court construes Martinez’s original petition strictly against her instead

of liberally in her favor. Martinez’s allegations are sufficient on their own,

and the letter only bolsters what she says. True, her allegations may not

withstand merits scrutiny, which has not yet commenced. But as to

whether she has adequately alleged a claim against the Board and the

System, I regard this case as pretty easy. She has.

B

The Court does not fare as well as Martinez in discharging its

duty, which is to “liberally construe” Martinez’s pleading and take her

allegations as true, and to read her pleading in a way that reflects the

intent that its text makes manifest. The Court finds her allegations

insufficient, but I cannot see how. Martinez’s pleading adequately alleges

discrimination by the Board and the System—not just a presumptive

claim,7 but one that invokes their direct intent, too.

Assuming that the Board and the System are not her direct

employers, the Court’s obligation is to assess whether she has

successfully alleged that they were her indirect employers under Rennels.

That is, do her allegations permit the inference that, in the context of her

termination, the Board and the System exercised control over and

interfered with Martinez’s employment? Martinez alleges exactly that—

7 Martinez was 72 years old, a good employee, fired about a month after

the Board and the System communicated about the elderly age of certain

employees, and replaced with a younger employee. Cf. Garcia, 372 S.W.3d

at 642 (recognizing presumptive discrimination where the plaintiff is at least 40

years old, qualified for the job, terminated, and replaced by someone younger).

11

yet the Court answers in the negative.

Martinez alleges that the System, acting at the Board’s direction

and via the System’s chancellor, discharged Martinez (or orchestrated her

discharge) because of her age. Put differently, Martinez’s pleading gives

no hint that the Center—her direct employer—would have discharged

her without the Board’s and the System’s communications and their

concerns about the comparative elderliness of senior leadership.

The Court acknowledges that the Board and the System have the

statutory power and ability to control Martinez’s employment. Ante

at 11–12 (quoting and discussing Tex. Educ. Code §§ 109.001(a), (c),

109.002, 110.01–.02). Just as the defendant in Rennels “was permitted

by contract to influence the plaintiff’s employment status,” id. at 12

(citing Rennels, 994 S.W.2d at 147), the Court acknowledges here that,

under the Education Code, the Board (which acts for the System) has a

“general right to ‘direct[], manage[], and control ’ the Health Sciences

Center” where Martinez was employed, id. at 13 (alterations in original)

(emphasis added). The Court’s two reasons why the statutory control is

not enough under Rennels are mistaken.

First, the Court briefly casts doubt on the force of the Education

Code provisions because they are “unpleaded.” Id. at 11. Because the

statutes in the Education Code are unpleaded? No one disputes the

statutory power and control expressly vested in these entities. And in

liberally construing Martinez’s original petition, the Court can (if it really

thinks it is necessary) take judicial notice of these provisions. The Court’s

subtle dig at Martinez and her able counsel for not “pleading” these

statutes again shows how the Court strictly construes her original

12

petition against her. This basis for dismissal is more reminiscent of

sixteenth-century England than twenty-first-century Texas. See JDH

Pac., Inc. v. Precision-Hayes Int’l, Inc., 659 S.W.3d 449, 450–51 & n.2

(Tex. 2022) (Young, J., concurring in denial of petition for review)

(recounting how Sir Edward Coke won a case because his opponent’s

pleading mistakenly translated one word of a centuries-old statute).

Second, the Court says that the Education Code provisions provide

only a “general right of control.” Ante at 13. Indeed—the law gives the

Board and the System that control, which satisfies the first step of

Rennels. But the Court instead draws on two independent-contractor

cases, id., which the Board and the System do not cite in their briefing. I

have no quarrel with those cases. As the Court puts it, they stand for the

innocuous principle “that forbids imposing liability based solely on a

general right of control over the work of an independent contractor.” Id.

(emphasis added). The ability to control is necessary but not sufficient

under Rennels—and so it is necessary for Martinez to allege it, but it is

not all she must allege and it is not all she does allege.

It is necessary for her to allege it because, under Rennels—the case

everyone asks us to apply without modification—to be an “employer,” a

defendant must be someone in a “position of power and control” or “in a

position to exert some control” with respect to the plaintiff’s employment

status. 994 S.W.2d at 147. All Martinez must do for this first Rennels

step is to allege that the Board and the System are in such a position. She

has done so—and the Education Code provisions conclusively establish it

as a matter of law, too.

If the Court is saying that it is not enough to allege how a

13

defendant could affect employment status, I agree. So does Martinez. An

allegation that a defendant could interfere with her employment must be

linked with the allegation that the defendant did so. She can do this

either via direct allegations of improper age-based termination or via

indirect allegations that raise a presumption of such termination. See

supra note 4. Martinez does both here.

Directly, she alleges that the Board’s demand to lower the ages of

the leadership in the Center led to her firing, which was effected by

someone subject to the Board’s direct control—the System’s chancellor.

Indirectly, she alleges that she was fired and replaced with a younger

employee about a month after the undisputed email communication

involving the System, the Board, and concerns about the advanced age of

senior leadership. She need allege no more than this at the pleading stage

to bring the Board and the System within Rennels.8 I reiterate that

whether she can prove her claim is an entirely different matter, and I

express no view of how the case would come out once she is put to the test.

So how can the Court see it otherwise? Its opinion gives at least

two reasons. First, the Court contests the value of the email—which

Martinez attached to her original petition and which features

prominently in the record and the parties’ briefs—in which Dr. Mitchell

8 The court of appeals held that Martinez’s allegations were insufficient

to sue Texas Tech University as an indirect employer—precisely because of the

“absence of allegations describing how [the University] could, or did, exercise

control over the Center in regard to her termination.” 683 S.W.3d 111, 116 (Tex.

App.—Amarillo 2022). This illustrates my point: A failure to include allegations

of both steps under Rennels—first, that a defendant could affect employment,

and second, that it did so—is when a pleading would veer into insufficiency.

Even Martinez agrees that no such allegations were raised against the

University. But as to the Board and the System, there is a surfeit.

14

describes the Board’s age-related concerns. Second, the Court treats the

judgment below as an “expansive reading of Rennels,” ante at 13, which

leads it to foresee a host of problems that I find illusory. Neither reason

provides any basis to deem Martinez’s allegations insufficient.

1

The Court’s primary reason for regarding Martinez’s allegations

as jurisdictionally insufficient concerns its view of Dr. Mitchell’s email.

The Court contends that Martinez “expressly rests” her allegations of

the Board’s and the System’s discrimination on the email, and “[n]o

reasonable reading of the email supports an allegation that the Board

controlled access to and interfered with Martinez’s employment.” Ante

at 15–16. The Court should read the email liberally in Martinez’s favor,

not strictly against her—and it should recognize that the email is hardly

the only basis for Martinez’s allegations.

Martinez’s intent—discerned from the text of her live pleading—

is clearly to allege that the Board and the System independently

discriminated against her by terminating her, or by having her

terminated, because of her age. See Heckman, 369 S.W.3d at 150 (in

liberally construing a plaintiff’s pleadings, we “look to the plaintiff’s

intent”). She hardly “expressly rests” her entire case of discrimination on

the email alone. The email is simply a piece of circumstantial evidence—

perhaps among the few documents she had at this pre-discovery stage of

litigation—that is probative of the Board’s and the System’s roles in

terminating her. See Burks v. Watson, 48 Tex. 107, 115 (1877) (“An

exhibit to the petition, therefore, may be said to be made in aid of or in

elucidation of allegations . . . .”). Martinez no doubt included it because it

15

helps explain why she was fired. She alleges that there was no other valid

reason, and the email links the Board and the System to her termination

by documenting their concern about employee elderliness. She uses the

email to help explain why her termination was age-based and why the

Board and the System were involved.

True, the email does not compel this conclusion. It does not, by

itself, prove her allegation that the “Board of Regents asked Dr. Mitchell

to reduce the average age of senior leadership at [the Center]” (an

allegation that, ironically enough, the Court would apparently accept as

true if only Martinez had not included the email). But it is not Martinez’s

burden to prove anything without having the benefit of discovery. That

Martinez has the email, and reads it consistently with her theory, does

not increase her pleading standard. It is unlikely in any discrimination

case (indeed, in many other kinds, too) that the plaintiff would have a

“smoking gun” document directly revealing impropriety that could be

appended to an original petition. See Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (recognizing “that motives are

often more covert than overt, making direct evidence of forbidden animus

hard to come by”).

It would be a different story if the email contradicted Martinez’s

theory or was even inconsistent with it. See Freiberg v. Magale, 7 S.W.

684, 685–86 (Tex. 1888) (“Had it contradicted or been inconsistent with

[the allegations], the exhibit, and not the pleading, would control.”). If a

pleading attaches a legal instrument that forms the basis of the plaintiff’s

claims, the instrument itself controls over an allegation about what the

instrument says. For example, in a breach-of-contract case where the

16

plaintiff appends a written contract to a pleading and alleges that the

contract obligated the defendant to pay $100, a court would not credit the

allegation if the contract on its face obligates the defendant to pay $50.

Nothing like that exists here. The email is not the basis of her

claims, nor does it contradict her claims—it is collateral to and consistent

with them. Martinez alleges that there was no good reason to fire her,

and the email helps explain why she nonetheless was fired.

The Court, however, gives the email an especially rosy reading—

essentially the same one given by the Board and the System. According

to the Court, the email states “only that the Board was interested in

‘succession planning’—a best practice for any institution hoping to endure

beyond the short-term.” Ante at 16. The Court then liberally extols the

virtues of succession planning. Id. at 16 n.8 (quoting various human-

resources authorities praising the soundness of succession planning).

The Court notes that succession planning “does not require

terminating anyone.” Id. (emphasis added). True—but it could involve

that step.9 Like everything else, succession planning can be done

properly and lawfully or improperly and unlawfully. It would be

irresponsible not to plan for the future—but planning for the future by

firing older workers without cause under the guise of, or even because of,

“succession planning” is unlawful.

The Court’s acclaim for succession planning as a general matter is

surely sound, but it is far too early at this stage of litigation for the Court

to resolve what kind of succession planning was happening here. We may

9 Getting $1 million fast “does not require” robbing a bank—but it could

happen that way.

17

not—at least not yet—accept as true the Board’s and the System’s benign

“succession planning” theory and reject Martinez’s alternative and darker

“succession planning” theory. Her theory is that any “succession

planning” was, at best, pretextual. The standard of review compels us to

accept Martinez’s theory—but the Court accepts petitioners’ instead.

After all, even the Court acknowledges that “Dr. Mitchell’s

motivation” in firing Martinez may have been “ ‘to appease the Board of

Regents’ by lowering the average age of his senior advisors.” Id. at 17.

Martinez and at least one other employee were terminated about a month

after the “succession planning” email was circulated and then were

replaced with younger employees. If—and of course I emphasize that it

is a big “if” that will require proof once Martinez gets to that stage—Dr.

Mitchell (the System’s chancellor10) implemented the Board’s plan to fire

older workers without cause under the guise of, or even because of,

“succession planning” directives, then their conduct was unlawful under

the Labor Code.

Recall, also, that the email does not stand alone, but fits within

Martinez’s larger theory that she was fired due to her age, not for cause

(something that the EEOC corroborated), and that Dr. Mitchell gave

misleading reasons for her departure (such as telling Martinez’s

10 The Court questions whether we can attribute Dr. Mitchell’s conduct

to the System, given his “dual roles” as president of the Center and chancellor of

the System. Ante at 14. Surely at this stage and under our standard of review

we must. It is undisputed that Dr. Mitchell was the System’s chancellor when

Martinez was fired. She alleges that he acted in this capacity in orchestrating

her discharge. The email suggests he was acting as chancellor (at least partially)

because he references the System. Indeed, the EEOC determination letter

states that Dr. Mitchell sent the email as the “Chancellor.” These debates

should await the next step—perhaps an evidence-based plea to the jurisdiction.

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colleagues that she left to care for an infirm husband). In this context,

Martinez argues, the email helps explain what would otherwise (if we

accept the truth of her allegations) be unexplainable. See also Garcia,

372 S.W.3d at 634 (“The prima facie case raises an inference of

discrimination only because we presume these acts, if otherwise

unexplained, are more likely than not based on the consideration of

impermissible factors.” (internal quotation marks omitted)). That is, if no

other reason for her termination holds up, it is reasonable to infer that

the email, while not a smoking gun, implicates the real motive: edging

out older employees.

* * *

The Court may prove correct that, in truth, the email was innocent

all along—that it never reflected more than ordinary business concerns.

Even so, it is too early to give petitioners the benefit of the doubt. When

assessing a non-evidentiary plea to the jurisdiction, I see no precedent in

our cases allowing a court to speculate about extra-record materials—

such as explaining away the email and then wiping away all the other

allegations.11 I cannot agree with the Court that Martinez has not alleged

11 I cannot help but think that the Court’s scrutiny of the email obscures

the role that evidence should play in withstanding a non-evidentiary plea to the

jurisdiction. The word “evidence” appears throughout the Court’s opinion. The

Court says we lack “subject-matter jurisdiction over the dispute absent some

evidence the [defendant] violated Chapter 21.” Ante at 7 (alteration in original)

(emphasis added) (internal quotation marks omitted); see also id. at 9–10, 12, 14

(discussing “evidence”).

This is wrong and the Court should repudiate it. Only later—in an

evidentiary plea to the jurisdiction, at summary judgment (which was the

posture in Rennels), and at trial—will Martinez be obligated to proffer “evidence”

establishing control and interference. But Martinez needs no “evidence” to

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what she needed to—and indeed far more.

Agreeing that Martinez stated a claim in no way predicts how the

claim will fare once it is probed. It just means it is time to put Martinez

to the test—which is what she claims she wants. If her allegations turn

out to be fluff, then they will collapse like a house of cards. If limited

discovery provides no basis to tag the Board or the System, they will be

out. But today’s decision is so inconsistent with notice pleading that it

will affect far more than this single case.

2

Second, the Court worries that “[t]he court of appeals’ expansive

reading of Rennels” (the court of appeals did not expand Rennels) “would

essentially make every parent corporation liable under Chapter 21 for the

employment actions of a subsidiary or affiliated entity governed by the

parent.” Ante at 13.

I do not understand this corporate-liability concern at all.12 It may

withstand a non-evidentiary plea to the jurisdiction. The Court’s scrutiny of the

email will surely scare future plaintiffs from attaching exhibits to their

pleadings, not just in discrimination cases, but in any civil case.

12 In fact, the Court’s focus on “liability” misses the mark—unless the

Court is trying to change rather than apply Rennels. The Court continually

smuggles “liability” into this pleadings-standards case. The Court even asserts

that “[t]he key question in this case is whether Martinez alleges sufficient facts

to demonstrate that the TTU System and the Board can be liable to Martinez

as an ‘employer’ under Chapter 21.” Ante at 8 (emphasis added). The italicized

word, which recurs throughout the opinion, reflects an undue focus on the merits

at this most preliminary of stages. In any event, “[i]mmunity from liability does

not affect a court’s jurisdiction to hear a case.” Tex. Dep’t of Transp. v. Jones, 8

S.W.3d 636, 638 (Tex. 1999) (emphasis added). Such immunity “is an

affirmative defense that cannot be raised by a plea to the jurisdiction.” State v.

Lueck, 290 S.W.3d 876, 880 (Tex. 2009) (emphasis added). As the Court

observes, the System and the Board raised their non-employer status by way of

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be true as an empirical matter that Rennels applies more often when the

non-direct-employer defendant is a parent corporation of the direct

employer (because who else would care about some other corporation’s

employees?). But Rennels is hardly confined to the corporate-family

context. Rennels itself did not involve a parent corporation. Under

Rennels, anyone—a parent corporation or someone else—who has the

requisite ability to affect employment and who uses that ability is an

“employer.” That principle, which just defines who is an “employer”

under the statute, is the whole point of Rennels. There is nothing new or

surprising in it.

So I wholly agree with the Court’s quotations about respecting

corporate formalities, but I find them irrelevant. I agree, for example,

that corporations are not “liable for each other’s obligations merely

because of centralized control, mutual purposes, and shared finances.”

Id. at 14 (emphasis added) (internal quotation marks omitted). But

Martinez does not try to hold the Board and the System liable “merely

because” of their authority over the Center. She claims that they directly

acted against her. Likewise, everyone agrees that “[t]here must be

something more than mere unity of financial interest, ownership and

control for a court to treat the subsidiary as the alter ego of the parent

and make the parent liable for the subsidiary’s tort.” Id. (first emphasis

added) (internal quotation marks omitted). Martinez alleges “something

an “affirmative defense.” Ante at 5.

I do not think that the Court intends to sub silentio overrule the

principles from Jones and Lueck stated above. What I think the Court’s “key

question” means is that if Martinez has not adequately alleged a claim, then she

cannot further pursue liability. I agree with the logic but not the conclusion,

because she has adequately alleged a claim.

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more”—she does not treat the Center as the alter ego of the Board or the

System. She seeks to hold them liable for their own acts, not merely some

“subsidiary’s tort.”

Affirming the judgment below, in other words, would leave the law

exactly as we found it. That decision creates no new litigation peril.

Someone who does not allege that a third party could and did interfere

with her employment will not benefit from Rennels even at the pleading

stage. Someone who does make such an allegation will lose any benefit

from Rennels if she cannot identify any evidence to support the claim

that a parent corporation or anyone else could and did achieve unlawful

employment discrimination.

Said differently, what are we to take from today’s decision and its

focus on anodyne principles of corporate liability? Does the Court mean

to suggest that a parent entity that has undoubted power to control a

subsidiary and is alleged to have exercised it should escape on the

pleadings? If so, then today’s decision is a massive change to our law that

could only reflect dislike of Rennels. If that dislike motivates today’s

decision, we should confront Rennels head on—in a case where someone

asks us to. The Board and the System only claim that Martinez’s

allegations do not satisfy Rennels. They do not ask us to demand more

than Rennels requires. Nobody here asks us to overrule or even modify

that precedent. No one has asked us (at least openly) to require more

than allegations when a defendant only challenges the sufficiency of the

allegations.

III

I end where I began—wondering what else Martinez is supposed

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to do when she repleads. The Court says she “falls just short of the mark,”

but the Court does not pinpoint what is missing. Ante at 19. The Court

instructs her to “allege facts regarding both the exercise of control and

interference with Martinez’s employment by each of the TTU System and

the Board.” Id. She has already done this, both by alleging petitioners’

direct control and interference and by alleging facts permitting a

presumption of that conduct. The Court provides no examples of the sort

of facts she would be able to plead in good faith on remand without having

the benefit of discovery.

Speaking of discovery, I find it important to emphasize that

Rennels and the other cases the Court cites arose in a more mature

posture with the benefit of discovery. Rennels itself, for example, was a

summary-judgment case where “evidence” obtained through discovery

was needed. The Court’s disposition today, however, does not guarantee

Martinez any discovery, even as it imposes a higher standard at this first

stage than Rennels did at the summary-judgment stage. The Court today

simply instructs Martinez to take another shot. But then the Board and

the System can file yet another pleadings-only challenge, which would

keep delaying this case’s resolution until the appellate process divines

whether her new allegations are sufficient. “[T]he practical result” of

sending back a case that is already so populated with allegations “well

might be to establish a merry-go-round of litigation upon the issue, which

could be used to defer indefinitely consideration of the merits.” United

States v. Nat’l City Lines, 334 U.S. 573, 591–92 (1948).13

13 Suppose, moreover, that her renewed allegations are again deemed

insufficient on their face—but that discovery against the Center (which cannot

23

It would be better to affirm the judgment below, which just means

that the Board and the System can file a different kind of plea to the

jurisdiction—one that challenges the existence of jurisdictional facts. If

they do so, they will instantly put Martinez to the test, where mere

allegations will no longer be sufficient. I recognize that the Board and

the System do not relish discovery. I agree that discovery is sometimes

abused. But jurisdictional discovery in particular can and should be

limited to nothing but the challenged jurisdictional facts. The trial court

need not and must not allow full-scale discovery:

Discovery that implicates only the merits is wholly improper

until it is clear that the court has authority to reach the

merits. . . .

....

. . . [I]f an adverse party . . . seeks to leverage

permissible jurisdictional discovery into clearly

impermissible merits discovery, the other side (in this case,

the State) may seek a protective order, resist a motion to

compel, or take similar steps. A trial court who issued an

order in good faith only to determine its own jurisdiction

would not permit that order to be abused. If it does, the

appellate courts can and should appropriately limit

discovery.

Tex. S. Univ. v. Young, 682 S.W.3d 886, 888, 890 (Tex. 2023) (Young, J.,

yet proceed because of this interlocutory appeal) eventually reveals that the

Board and the System were the central parties responsible for her discharge all

along. That result may seem unlikely, but if it were to happen, the statute of

limitations might well prevent her from pleading the Board and the System back

into the case, even though it would mean that her pleading was accurate from

the start. See Tex. Lab. Code § 21.256 (two-year limitations period); Levinson

Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622, 631 (Tex. 2023)

(agreeing “that the running of a limitations period is not tolled when a suit is

dismissed and refiled because a dismissal is equivalent to a suit never having

been filed” (internal quotation marks omitted)).

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concurring in denial of petitions).

Thus, the trial court’s “broad discretion to allow ‘reasonable

opportunity for targeted discovery,’ ” Garcia, 372 S.W.3d at 643 (quoting

Miranda, 133 S.W.3d at 233), does not mean unlimited discovery.

Properly targeted discovery might reveal improper motives underlying

Martinez’s discharge, to which Martinez may not yet be privy. Or it might

confirm that the succession planning was wholly innocent and premised

on the idea that the Board and the System hoped that Martinez would

stay on the job forever. Maybe it would reveal nothing at all, in which

case the Board and the System could more properly seek dismissal.

Any other options that avoid targeted discovery exceed the scope

of this appeal. The legislature could, of course, change the law. It could

abrogate Rennels, which was, after all, only a statutory-construction case.

Or it could expand existing exceptions to the anti-discrimination laws.

For example, the Labor Code provides no claim for plaintiffs who are

“executive or high policy-making position” employees, “at least 65 years

of age,” and subjected to “compulsory retirement.” See Tex. Lab. Code

§ 21.103. (The Board and the System have not invoked this statute, so I

assume without deciding that it does not apply.) The legislature could

amend this law or create a new one that enables high-ranking officials

like Dr. Mitchell to terminate their chiefs of staff—someone in whom

personal confidence is essential—without having to defend against claims

of age discrimination.

It is also possible that, in a case where someone asks, this Court

could reconsider Rennels or examine whether the law in fact reaches

high-level employees like Martinez. Such a rule, of course, would end a

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case like this one not only against the Board and the System but also

the Center. At this moment, there is no dispute that the law covers

Martinez—and I cannot see a legitimate dispute about whether she has

sufficiently alleged the facts that undergird her claim.

* * *

My concern is for other cases, not just this one, because I think

today’s decision destabilizes the concept of notice pleading. “Our notice-

pleading rules require pleadings to not only give notice of the claim and

the relief sought but also of the essential factual allegations.” Kinder

Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835, 849 (Tex. 2021)

(internal quotation marks omitted). Saying she is “just short of the mark”

does not tell her or anyone else what the new pleading standard in Texas

is. I believe, however, that Martinez already has pleaded the essential

factual allegations necessary to withstand a pleadings-only jurisdictional

challenge. Accordingly, I would affirm the court of appeals’ judgment so

that this case may proceed and come to a resolution, whatever that

resolution may be. Because the Court does not, I respectfully dissent.

Evan A. Young

Justice

OPINION FILED: June 14, 2024

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