Ann Rosenberg v. KIPP, Inc.

Affirmed and Majority and Dissenting Opinions filed January 29, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00969-CV

ANN ROSENBERG, Appellant

V.

KIPP, INC., Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2012-23965

DISSENTING OPINION

The plaintiff asserted an age-discrimination claim against her former

employer, an entity generally entitled to governmental immunity. Under a recent

opinion of the Supreme Court of Texas, the trial court erred in dismissing this

claim for lack of subject-matter jurisdiction. Therefore, this court should reverse

the trial court’s dismissal of this claim and remand for further proceedings.

I.

Appellant/plaintiff Ann Rosenberg filed suit against appellee/defendant

KIPP, Inc. asserting an age-discrimination claim under the Texas Commission on

Human Rights Act (hereinafter, the “Act”). In 2012, the Supreme Court of Texas

held that, in an age-discrimination case in which the terminated employee was

replaced, to establish a prima facie case of age discrimination under the Act, the

plaintiff must show that the plaintiff was (1) a member of the protected class, (2)

qualified for the employment position, (3) terminated by the employer, and (4)

replaced by someone younger.1 See Mission Consol. Indep. School Dist. v. Garcia,

372 S.W.3d 629, 632 (Tex. 2012) (“Garcia II”). Rosenberg was replaced.2

Therefore, to establish a prima facie case of age discrimination, she must show

these four elements. See id.

1

The majority concludes that the fourth element of Rosenberg’s prima facie case is that she “was

replaced by someone outside her protected class, or in the disparate treatment case, that others

similarly-situated were treated more favorably.” Ante at p. 7. The majority relies on AutoZone,

Inc. v. Reyes for this proposition, but the court in that case stated a fourth element materially

different from the fourth element stated by the majority. See 272 S.W.3d 588, 592 (Tex. 2008).

In addition, the AutoZone case is not on point because it did not involve an age-discrimination

case in which the terminated employee was replaced. See id. at 592–94; Mission Consol. Indep.

School Dist. v. Garcia, 372 S.W.3d 629, 640 (Tex. 2012) (distinguishing the AutoZone case

because it did not involve an age-discrimination case in which the terminated employee was

replaced). The majority’s fourth element conflicts with Mission Consolidated Independent

School District v. Garcia, in which the Supreme Court of Texas held that the fourth element is

that the plaintiff was “replaced by someone younger.” See Mission Consol. Indep. School Dist.,

372 S.W.3d at 641–42.

2

Rosenberg asserts that she was replaced by Thomas G., a person younger than Rosenberg. In

its plea to the jurisdiction, KIPP asserted and submitted evidence that it replaced Rosenberg with

Thomas G., a person who was fifty years old at the time, and thus younger than Rosenberg, who

was sixty-four years old. In the statement of facts of her appellate brief, Rosenberg states that

she was replaced by Thomas G., a person younger than Rosenberg. Because KIPP has not

contradicted these facts, this court accepts them as true. See Tex. R. App. P. 38.1(g) (stating that

“[i]n a civil case, the court will accept as true the facts stated [in the statement-of-facts section of

appellant’s brief] unless another party contradicts them.”).

2

II.

In the trial court, KIPP obtained a dismissal of Rosenberg’s age-

discrimination claim for lack of subject-matter jurisdiction based upon its plea to

the jurisdiction, and in the alternative, motion for summary judgment. KIPP did

not challenge the sufficiency of the allegations in Rosenberg’s petition; instead,

KIPP challenged the existence of jurisdictional facts. See id. at 635; Tex. Dep’t of

Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, this

court considers relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do. See

Miranda at 227. If the evidence creates a fact question regarding the jurisdictional

issue, then a pre-trial dismissal for lack of jurisdiction is improper. See id. at 227–

28. But, if the relevant evidence is undisputed or fails to raise a fact question on

the jurisdictional issue, then the court rules as a matter of law. Id. at 228.

Though KIPP submitted evidence, none of the evidence challenged the

existence of any of the four elements of Rosenberg’s prima facie case. KIPP does

not dispute that Rosenberg was over forty years old and thus a member of a

protected class. Nor does KIPP dispute that Rosenberg was qualified for her

employment position or that KIPP terminated her employment, or that Rosenberg

was replaced by someone younger. Because there is at least a fact issue as to each

element of Rosenberg’s prima facie case, the trial court erred in dismissing

Rosenberg’s age-discrimination claim before trial for lack of subject-matter

jurisdiction. See Garcia II, 372 S.W.3d at 635–38, 642 (stating that, if a defendant

challenges the existence of jurisdictional facts regarding an age-discrimination

claim under the Act, the plaintiff need only raise a fact issue as to the challenged

elements of the plaintiff’s prima facie case to avoid a pre-trial dismissal for lack of

subject-matter jurisdiction); Fort Bend ISD v. Williams, No. 01-13-00052-CV,

2013 WL 4779693, at *3 n.4 (Tex. App.—Houston [1st Dist.] Sept. 5, 2013, no

3

pet.) (stating that “the Texas Supreme Court determined in Garcia II that only the

prima facie elements of the plaintiffs case are jurisdictional”) (mem. op.); accord

KIPP, Inc. v. Whitehead, 446 S.W.3d 99, 112–13 (Tex. App.—Houston [1st Dist.]

2014, pet. filed). Though KIPP sought dismissal based on the second and third

prongs of the McDonnell Douglas analysis of the merits, which follows after the

plaintiff has made the prima facie showing, the high court in Garcia II determined

that these issues should not be used as a basis for obtaining a pre-trial jurisdictional

dismissal. See Garcia II, 372 S.W.3d at 635–38, 642; Fort Bend ISD, 2103 WL

4779693, at *3 n.4; KIPP, Inc., 446 S.W.3d at 112–13.

The majority’s analysis conflicts with the Supreme Court of Texas’s opinion

in Garcia II and with precedent from the First Court of Appeals. See Garcia II,

372 S.W.3d at 636–38, 642; Fort Bend ISD, 2103 WL 4779693, at *3 n.4; KIPP,

Inc., 446 S.W.3d at 112–13. This court should reverse the trial court’s order and

remand for further proceedings. Because it does not, I respectfully dissent.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown. (Donovan,

J., majority).

4