The opinion
ACCEPTED
13-15-00045-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/8/2015 12:00:00 AM
CECILE FOY GSANGER
CLERK
COURT OF APPEALS NUMBER 13-15-0045-CV
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
*****
6/8/2015 8:00:00 AM
CECILE FOY GSANGER
TEXAS VETERANS COMMISSION Clerk
Appellant
V.
ARMANDO LAZARIN, JOSE VALLEJO
and ROBERT MUSE
Appellees
*****
APPELLEES RESPONSE BRIEF
*****
WILLIAM H. BERRY, JR.
Attorney in Charge for Appellees
Texas Bar 02251000, Federal ID 1155
GAIL D. C. DORN
Attorney of Counsel for Appellees
Texas Bar 06007350, Federal ID 16311
P. O. Box 23064
Corpus Christi, Texas 78403-3064
361-888-5568, No Facsimile
e-mail: berrylaw@sbcglobal.net
APPELLEES REQUEST ORAL ARGUMENT
TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . ix
APPELLEES’ STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . ix
Response to Appellant Issue 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Response to Appellant Issue 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Response to Appellant Issue 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Response to Appellant Issue 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Burden of Proof on a Plea to the Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . 7
Pleading Race/National Origin, Gender and Age Discrimination. . . . . . . . . 8
Age Discrimination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
National Origin (Hispanic) Discrimination. . . . . . . . . . . . . . . . . . . . 10
Gender Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Evidence and Pleading Allegations Overcome Plea to the Jurisdiction. . . 11
Waiver of Sovereign Immunity under ADEA. . . . . . . . . . . . . . . . . . . . . . . 13
Preference for Disabled Veterans Status. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Texas Preference Statute.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Job Counseling, Training and Placement Service for Veterans.. . . . 16
Vallejo claim for FMLA Violations and Retaliation. . . . . . . . . . . . . . . . . . 17
Family Medical Leave Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Texas Waiver of Sovereign Immunity under FMLA. . . . . . . . . . . . . 19
Retaliation under FMLA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ii
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
iii
INDEX OF AUTHORITIES
PAGE
STATUTES
29 U .S.C. § 2601(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
29 U.S.C. § 2611 et. seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, ix, 17
29 U.S.C. § 2612(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20
29 U.S.C. § 2612(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
29 U.S.C. § 2613. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
29 U.S.C. § 2614(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 21
29 U.S.C. § 2615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
29 U.S.C. § 621 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, ix, 8
29 U.S.C. § 623. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
29 U.S.C. § 633. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
29 U.S.C. § 691. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
38 U.S.C. § 3100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
38 U.S.C. § 3110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
38 U.S.C. § 4103a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, 14, 16
38 U.S.C. § 4212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
38 U.S.C. § 4214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iv
38 U.S.C. §4102.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
42 U.S.C. 2000e-2(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, 8
42 U.S.C. § 12101 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
42 U.S.C. § 2000e-2(m).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11
42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Tex. Gov’t Code Ann. § 57.007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tex. Gov’t Code Ann. § 657.001 et seq... . . . . . . . . . . . . . . . . . . . . . viii, 14, 20, 21
Tex. Gov’t Code Ann. § 657.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. Gov’t Code Ann. § 657.003(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
Tex. Gov’t Code Ann. § 657.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
Tex. Gov’t Code Ann. § 657.006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. Gov’t Code Ann. § 657.007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. Gov’t Code Ann. § 657.010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. Labor Code Ann. § 21.001 et seq... . . . . . . . . . . . . . . . . . . . . . . . . ix, 7, 13, 22
Tex. Labor Code Ann. § 21.051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, 8, 9
CASES
Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956).. . . . . . . . . . . . . . . 16
County of El Paso v. Latimer, 431 S.W.3d 844 (Tex.App.–El Paso 2014, no pet.
rev.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11
El Paso Community College v. Chase, 355 S.W.3d 164 (Tex.App.–El Paso 2011,
rev. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Goff v. Singing River Health System, 6 F.Supp.3d 704 (S.D. Miss. 2014). . . 18, 22
Gold v. Exxon Corp., 960 S.W.2d 378 (Tex.App.--Houston [14th Dist.] 1998, no
pet. rev.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Mission Consol. Independent School Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012)
.................................................................. 9
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972,
155 L.Ed.2d 953 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Office of Atty. Gen. v. Weatherspoon, 435 S.W.3d 844 (Tex.App.–Dallas 2014,
pet. rev. filed, July 28, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60
L.Ed.2d 870 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001). . . . . . . . . . . 10
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
San Antonio Water System v. Nicolas, ___ S.W.3d ____ (Tex. 2015) 2015 WL
1873217 (April 24, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
University of Texas at El Paso v. Herrera, 322 S.W.3d 192 (Tex. 2010). . . 19, 20,
22
vi
REGULATIONS
29 C.F.R. 825.305(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
vii
STATEMENT OF THE CASE
This is an appeal from a denial of Appellant’s plea to the jurisdiction in an
employment discrimination suit brought by all Appellees, Armando Lazarin, Jose
Vallejo and Robert Muse alleging discrimination based on age, gender, and
national origin/race pursuant to the Texas Commission on Human Rights Act1, as
adopted from Age Discrimination in Employment Act2, and Civil Rights in
Employment Act3. All Appellees sued for denial of their rights for employment
preference because of their status as disabled veterans4. Appellee Vallejo, a cancer
patient, sued for damages because Appellant violated his entitlement under the
Family Medical Leave Act5. [C.R.40-55]
Appellant filed a Plea to the Jurisdiction. The Trial Court heard evidence on
January 8, 2015 and denied Appellant’s Plea to the Jurisdiction on January 8,
2015. [C.R.549] Appellant filed a notice of appeal on January 27, 2015. [C.R.550]
1
Tex. Labor Code Ann. § 21.051.
2
29 U.S.C. § 621 et seq.
3
42 U.S.C. 2000e-2(a).
4
38 U.S.C. § 4103a and Tex. Gov’t Code Ann. § 657.001 et seq.
5
29 U.S.C. § 2611 et. seq.
viii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is beneficial in this case because the issues raised by this
interlocutory appeal will result in the interpretation of both State and Federal law.
APPELLEES’ STATEMENT OF THE ISSUES
Response to Appellant Issue 1. The Trial Court’s denial of Appellant’s plea
to the jurisdiction should be affirmed because Appellees properly pleaded and
submitted controverting evidence that met their prima facie burden on their claims
of race, national origin, gender, age, hostile work environment and retaliation
under the Texas Commission on Human Rights Act.6
Response to Appellant Issue 2. The Trial Court denying Appellant’s plea to
the jurisdiction should be affirmed because Appellant is not immune from claims
under the Age in Employment Discrimination Act7.
Response to Appellant Issue 3. The Trial Court denying Appellant’s plea to
the jurisdiction on Appellee Jose Vallejo’s claim under the Family Medical Leave
Act8should be affirmed because Vallejo adequately alleged claims under the
FMLA and the claim of sovereign immunity is an affirmative defense to be raised
6
Tex. Labor Code Ann. § 21.001 et seq.
7
29 U.S.C. § 621 et. seq.
8
29 U.S.C. § 2611 et. seq.
ix
by Appellant.
Response to Appellant Issue 4. The Trial Court denying Appellant’s plea to
the jurisdiction because:
a. Appellant waives immunity to claims alleging Appellant’s
violation of Appellees’ veteran status.
b. Appellees disabled veteran status is protected under 38 U.S.C.
§ 4103a and Tex. Gov’t Code Ann. § 657.001 et seq. (West).
x
STATEMENT OF FACTS
Appellees’ Armando Lazarin, Jose Vallejo and Robert Muse sued Appellant
alleging wrongful termination because of their age (over 40 years) national origin
Hispanic and gender male and denied retention of their job positions because of
their veterans status. [C.R.84-88] Appellees alleged they were terminated from
their positions wrongfully and their positions were replaced by persons who were
younger, persons who were non-Hispanic and persons who were female. [C.R.84-
88, 90-94]
Appellees alleged that their status as disabled veterans and their entitlement
to preference under both the Texas and Federal Veterans preference statutes.
[C.R.81-82, 84-94]
Appellee Vallejo, a cancer patient, specifically alleged facts supporting his
claim for Appellant’s violations of his rights under the Family Medical Leave Act
[FMLA] because he was terminated while he was receiving benefits under the
FMLA and was in the process of extending his time to receive benefits when he
was fired. [C.R.92-98] Appellee Vallejo testified that he was diagnosed with
cancer, had been returned to light duty by his physician but remained on FMLA,
and his extension of benefits was being processed when he was fired. [R.R. 18-21]
Vallejo received a 30 percent disability upon his honorable discharge from
1
the United States Air Force in 1992. [R.R.16] He was employed with the Texas
Veteran’s Commission from April 2007 to September 2012. [R.R.16-17] Vallejo
filed for benefits under the Family Medical Leave Act when he was diagnosed in
cancer in 2012. [R.R.17] In August 2012, less than one month prior to his
termination and just before his first claim for FMLA benefits was expiring, Vallejo
had applied for continuing FMLA benefits. [R.R.17-18] While his request was
pending, Appellee Vallejo was terminated. [R.R.18-20] At the time of his
termination, Appellee Vallejo was undergoing chemo therapy at M.D. Anderson in
Houston, Texas. [R.R.20] Vallejo had been released for limited duty, formally he
was on FMLA leave at the time he was terminated. [R.R.21, C.R.486 (PX-13)]
The pleadings and evidence establish the Court’s jurisdiction over Vallejo’s
claims against Appellant.
Appellees Lazarin, Vallejo and Muse specifically pleaded the elements of
the causes of action asserted under the Texas Commission on Human Rights Act,
under the Civil Rights Act in Employment Discrimination and Age Discrimination
in Employment Act. [C.R.81-82, 84-94]
Appellees Lazarin, Vallejo and Muse specifically alleged and cited the
statues giving rise to the Court’s jurisdiction of Appellees claims and causes of
action against Appellant. [C.R.80-101]
2
Appellees alleged the period that they were employed with Appellant.
[C.R.85-86] They presented controverting evidence of their entitlement to veterans
preference and veterans entitlements. [C.R.81-82, 85-94]. Appellees alleged and
submitted controverting evidence that Appellant’s terminated or failed to retain
them in their job positions. [C.R.257-262 (PX-5)] Appellees filed a written
complaint with Appellant dated September 11, 2012, complaining of their
termination and decision to not retain them in their job positions. [C.R.263-272,
274-282, 284-292 (PX-6)] Appellant’s denied Appellees complaint in a letter
dated September 28, 2012. [C.R. 273, 283, 293 (PX-6)]
The letter submitted to Appellees articulating the reason for the termination
that Appellees violated Texas Veterans’ Commission policies in recording job
developments in the system. [C.R.257, 259, 261] Appellees submitted the
memorandum dated December 9, 2011, evidencing that Appellees were in fact
following the mandate issued by Appellant TVC, and no policies had been
violated. [C.R.294-298] Appellees likewise explained how they [Appellees] were
in compliance with the TVC policy in their appeal to the TVC dated September
11, 2012. [C.R.263-272, 274-282, 284-292 (PX-6)]
Appellant submitted evidence controverting the Plea to the Jurisdiction that
Appellees’ job positions were ultimately filled by two females, one non-Hispanic
3
and the other Hispanic, and one much younger than the Appellees. [C.R.122]
Appellees submitted controverting evidence that Appellees were more qualified
for the positions than the persons who were placed in the positions. [C.R. 238-
240]. Appellees received accolades and outstanding evaluations during their
tenure with the Texas Veteran’s Commission [C.R.300-388 (Lazarin evaluations),
390-439 (Muse evaluations), 441-485 (Vallejo evaluations)] coupled with their
proof that they were in compliance with the policies Appellant was accusing them
of violating [C.R.294-298] evidences sufficient pleading for jurisdictional
purposes that Appellees have alleged a cause of action against Appellant.
SUMMARY OF THE ARGUMENT
Armando Lazarin, Jose Vallejo, Robert Muse are veterans who sustained
disabilities in the service of their country and for that service both Texas and
federal law give preference to be retained in the jobs from which they were
terminated. Their petition alleged the necessary facts and legal theories conferring
jurisdiction on the court and defeating Appellant’s Plea to the Jurisdiction.
All Appellees are (1) over the age of forty years, (2) Hispanic, (3) male (4)
suffered adverse employment action when they were terminated (5) qualified for
the positions from which they were terminated, (6) replaced by persons outside the
protected class (female, younger, non-Hispanic). Appellees presented evidence
4
that the reason Appellant gave for their termination was a pretext to
discrimination.
The issue for this Court to decide is merely whether Appellees alleged
claims against Appellant sufficient to invoke the Trial Court’s jurisdiction.
Appellees pled facts that support a prima facie claim under the Texas Commission
of Human Rights Act for gender and national origin discrimination and for Civil
Rights in Employment Discrimination. Appellees alleged the prima facie elements
for age discrimination under the Texas Commission on Human Rights act and
pursuant to the Age Discrimination in Employment Act as adopted by the Texas
Commission on Human Rights Act.
Appellee Vallejo pled the necessary facts and elements that Appellant
violated the Family Medical Leave Act by terminating Vallejo while he was
actively receiving FMLA and in the process of extending his FMLA benefits. The
State of Texas specifically waived sovereign immunity to be sued under the
Family Medical Leave Act when it enacted the Texas Commission on Human
Rights Act making it a violation of law to discriminate against persons with
disabilities and upon enacting the Texas Veterans Act giving veteran’s a remedy
against employers who do no give preference in hiring and retaining veterans.
Appellees alleged facts supporting their complaints that they were denied
5
retention preference because of their veteran’s status. Both the federal and Texas
preference statutes provide that veterans must be given preference in both
applying for employment and retention of employment.
In addition to pleading the necessary facts of their prima facie case of
discrimination, they also alleged sufficient facts that Appellant’s articulated reason
for terminating Appellees was a pretext to discrimination. Appellees presented to
Appellant the policy for which Appellees were instructed to follow established
that Appellees were in compliance with the Texas Veteran’s Commission’s
policies and had not violated policies as the Appellant had wrongfully accused
Appellees.
In addition to pleading sufficient facts, Appellees specifically cited the
statutory authority in support of their claims that give rise to the Court’s
jurisdiction on their causes of action.
The review by the Court looks to the sufficiency of Appellees pleadings that
give rise to causes of action for which the Texas Veteran’s Commission has
waived immunity and support claims of wrongful termination and discrimination,
which Appellees met their burden in both pleading and evidence.
6
ARGUMENT
1. Burden of Proof on a Plea to the Jurisdiction:
Appellant bears the burden in a plea to the jurisdiction. Appellant’s claim
for immunity from liability is an affirmative defense. A claim for immunity from
suit goes to the Trial Court’s subject matter jurisdiction. Texas Department of
Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). It is a question of law
for the Trial Court to determine whether all Appellees alleged facts affirmatively
demonstrating the trial court's subject matter jurisdiction and considering
undisputed evidence of jurisdictional facts. In cases where there are disputed
evidence of jurisdictional facts that implicate the merits of the case may require
resolution by the finder of fact. Miranda, 133 S.W.3d at 226.
The Trial Court first considers Appellees’ petition to determine whether the
facts pleaded affirmatively demonstrate that jurisdiction exists and construe the
pleadings liberally in favor of the pleader, look to the pleader's intent, and accept
as true the factual allegations in the pleadings. County of El Paso v. Latimer, 431
S.W.3d 844, 847 (Tex.App.–El Paso 2014 no pet. rev.).
Appellant consented to jurisdiction under all theories alleged by Appellees
under the Texas Commission on Human Rights Act. Tex. Labor Code Ann. §
21.001 et seq., and as a subdivision of the State of Texas, can be sued for
7
violations under the Civil Rights Act in Employment Discrimination, 42 U.S.C. §
2000e. Appellees were required only to raise a genuine issue a material fact to
overcome Appellant’s challenge to the court’s jurisdiction. Cf. Texas Dep’t of
Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).
2. Pleading Race/National Origin, Gender and Age Discrimination:
Appellees allege they (a) are a members of (b) a protected class of persons
(c) that individuals with authority over the employment decision. Allegations of
discrimination may be proved by direct or circumstantial evidence.
It is unlawful for an employer ... to discriminate against any individual ...
because of the individual's race, color, religion, sex, or national origin. 42 U.S.C. §
2000e–2(a)(1), Tex. Labor Code Ann. § 21.051 (West). An aggrieved employee
need only present sufficient evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that “race, color, religion, sex, or national origin
was a motivating factor for any employment practice.” 42 U.S.C. § 2000e-2(m),
Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 2155, 156 L.Ed.2d
84 (2003). It is unlawful to discriminate against a person because of age. Age 40
years or over. 29 U.S.C. §§ 621, 623, Tex. Lab. Code Ann. § 21.051 (West).
Under the Texas Commission on Human Rights Act to allege a cause of
action for employment discrimination, the aggrieved employee must demonstrate
8
that they were (1) members of the protected class, (2) qualified for their
employment positions, (3) terminated by their employer, and (4) replaced by
someone outside the protected class.
a. Age Discrimination:
Texas law requires that the aggrieved employee plead and prove a prima
facie case of age discrimination by showing Under the Age Discrimination in
Employment Act, 29 U.S.C. § 691 and the Texas Commission on Human Rights
Act, Tex. Lab. Code § 21.051 (West) Plaintiffs establish an age discrimination
prima facie case by showing that (1) Plaintiffs were a member of the protected
class, (2) qualified for the job, (3) discharged from their position.
Under federal law, Appellees establish the fourth element by showing that
Plaintiffs were (4)(a) replaced by someone outside the protected class, (4)(b)
replaced by someone younger, or (4)© otherwise discharged because of age.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 144, 120 S.Ct. 2097,
2107, 147 L.Ed.2d 105 (2000).
Under Texas law, Appellees establish the fourth element by showing that
they were (4) treated less favorably than similarly situated members of the
opposing class. Mission Consol. Independent School Dist. v. Garcia, 372 S.W.3d
629, 641 (Tex. 2012).
9
Once Appellees establish their prima facie burden, then the Appellant must
show that there was a non-discriminatory reason for terminating Appellees’
employment which Appellees then have the burden to show by a preponderance of
the evidence, that Appellant’s reason was a pretext to discrimination. It is
sufficient if Appellees’ evidence shows that age was a motivating factor in the
adverse employment decision. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. at 153, 120 S.Ct. at 2112, Quantum Chemical Corp. v. Toennies, 47 S.W.3d
473, 482 (Tex. 2001).
b. National Origin (Hispanic) Discrimination9:
The proof necessary for age discrimination apply in claims alleging adverse
employment discrimination because of an employees national origin. El Paso
Community College v. Chase, 355 S.W.3d 164 (Tex.App.–El Paso 2011, rev.
denied). Appellees’ allegations that persons were treated more favorably than
Appellees’ that were of a different national origin than Appellees is sufficient to
place the burden of production on Appellant to show that Appellant had a non-
discriminatory reason for the action taken, to which Appellees’ must respond with
evidence that Appellees’ national origin was a motivating factor in the action
taken against Appellees. El Paso Community College v. Chase, 355 S.W.3d 164
9
Id.
10
(Tex.App.–El Paso 2011, rev. denied).
c. Gender Discrimination:
The proof necessary for age discrimination apply in claims alleging adverse
employment discrimination because of an employee’s gender. Appellees need only
“demonstrat[e]” that an employer used a forbidden consideration with respect to
“any employment practice” 42 U.S.C. § 2000e–2(m). The proof may be by direct
or circumstantial evidence and by a preponderance of the evidence. Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99, 123 S.Ct. 2148, 2154, 156 L.Ed.2d 84 (2003).
3. Evidence and Pleading Allegations Overcome Plea to the
Jurisdiction:
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the court considers the relevant evidence submitted by the parties to resolve
the jurisdictional issues. If the evidence does not negate jurisdiction as a matter of
law or if it creates a fact issue, the trial court should deny the plea. Office of Atty.
Gen. v. Weatherspoon, 435 S.W.3d 844, 848 (Tex.App.–Dallas 2014, pet. rev.
filed, July 28, 2014).
Appellees pleaded facts and presented evidence sufficient to establish the
Trial Court’s subject matter jurisdiction of their claims against Appellant.
Appellees pleaded a prima facie case for age, gender, and national origin
11
discrimination thus overcoming Appellant’s Plea to the Jurisdiction. Appellees
alleged their membership in a class of persons intended to be protected, i.e. they
are over the age of 40 years, they are Hispanic, and they are males. Appellees
alleged that adverse employment action was taken against them and the facts
identifying the adverse employment action. Appellees alleged that Appellant’s
articulated reason for terminating their employment was a pretext for unlawful
discrimination. Appellees pleaded their age, their gender, their national origin, and
that they were replaced by persons that were younger, female, and of a national
origin other than Hispanic. Appellees alleged that they were qualified for the
positions from which they were terminated and were more qualified than the
persons with whom Appellant placed in Appellee’s Lazarin and Muse former
positions. [C.R.84-94]
Appellant’s evidence proffered in support of its plea to the jurisdiction
established that persons hired to replace the position were female and of a national
origin other than Hispanic. [C.R.122]
Appellee Lazarin first learned that his position was eliminated when
Appellant filed its Plea to the Jurisdiction. Appellee sufficiently alleged a prima
facie case for discrimination because Appellant remains liable if it practices
discrimination in eliminating a job position or in its selection of who to retain and
12
who to reduce from the force. Gold v. Exxon Corp., 960 S.W.2d 378, 382
(Tex.App.--Houston [14th Dist.] 1998, no pet. rev.).
4. Waiver of Sovereign Immunity under ADEA:
The Texas legislature, in its stated purpose in enacting the Texas
Commission on Human Rights Act making age discrimination unlawful,10
incorporates the Age in Discrimination in Employment Act11 to “identify and
create an authority that meets the criteria” of the ADEA. Consequently, Texas has
waived immunity from suit for age discrimination. The Texas legislature likewise
incorporates, in its stated purpose, the enforcement provisions of the Civil Rights
in Employment Discrimination Act, 42 U.S.C. § 2000e-5, Tex. Labor Code Ann. §
21.001(2). By adopting federal law in defining and enforcing employment
discrimination, the Texas courts look to federal interpretation in applying the law
to state employees. San Antonio Water System v. Nicolas, ___ S.W.3d ____ (Tex.
2015) 2015 WL 1873217 *3 (April 24, 2015).
Appellees pleaded the Age Discrimination in Employment Act and the
Texas Commission on Human Rights Act provisions relating in support of
Appellees’ allegations of age discrimination in their wrongful termination from
10
Tex. Labor Code Ann. § 21.001 (West)
11
29 U.S.C. § 633
13
employment by the Texas Veteran’s Commission. [C.R.84-94]
5. Preference for Disabled Veterans Status:
All Appellees alleged their veteran’s status and that they were veterans with
a disability entitling them to veteran’s preference pursuant to Tex. Gov’t Code
Ann. § 657.001 et seq. and 38 U.S.C. § 4103a. Appellees were hired by Appellant
as part of the Federal Program giving preference to disabled veterans and as such
were entitled to preference in their employment with Appellant. 38 U.S.C. § 4214.
Appellees specifically pled their entitlement to veterans preference and
veterans entitlements. [C.R.81-82, 85-94]. Appellees alleged and submitted
controverting evidence that Appellant’s terminated or failed to retain them in their
job positions. [C.R.257-262 (PX-5)] Appellees filed a written complaint with
Appellant dated September 11, 2012, complaining of their termination and
decision to not retain them in their job positions. [C.R.263-272, 274-282, 284-292
(PX-6)] Appellant’s denied Appellees complaint in a letter dated September 28,
2012. [C.R. 273, 283, 293 (PX-6)] Clearly, Appellees sufficiently alleged the legal
and factual basis of their entitlement that the Trial Court has jurisdiction over their
claims.
a. Texas Preference Statute:
Appellees alleged their disabled veterans status entitling them to receive
14
veterans preference in employment with the Defendant. Tex. Gov’t Code Ann. §
657.002 (West) because they served in the military for not less than 90
consecutive days, were honorably discharged from military service and are
competent. Tex. Gov’t Code Ann. § 657.002(a)(1)-(3) (West). Appellees have
service-connected disabilities and are entitled to veterans employment preference
for employment in a position with a public entity over persons who are not more
qualified. Tex. Gov’t Code Ann. § 657.003(a), (b) (West).
As qualified veterans, Appellees were entitled to preference in employment
with a public entity. Tex. Gov’t Code Ann. § 657.003(a). The statute mandates
that the public entity shall give preference to qualified veterans if the statutory
requirements are met. Tex. Gov’t Code Ann. § 657.004. The Texas preference
statute is to be construed in harmony with federal law. Tex. Gov’t Code Ann. §
657.006. The preference applies to reduction in force cases. Tex. Gov’t Code Ann.
§ 657.007 (West). An aggrieved veteran entitled to preference may file a
complaint with the public entity protesting the agency’s action. Tex. Gov’t Code
Ann. § 657.010.
In discussing the history of the veteran’s preference statutes, United States
Supreme Court Justice Marshall noted in this dissent that states “conferring a
permanent preference, the legislation allows veterans to invoke their advantage
15
repeatedly, without regard to their date of discharge.” Indicating an
acknowledgment of veteran’s to enforce their rights under the preference statutes.
Cf. Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 286, 99 S.Ct.
2282, 2300, 60 L.Ed.2d 870 (1979).
b. Job Counseling, Training and Placement Service for Veterans:
The purpose of the federal legislation is to provide an effective job and job
service programs for eligible veterans to provide veterans the maximum of
employment and training opportunities, with priority given to the needs of
disabled veterans. 38 U.S.C. §4102. The Appellees were employed with the Texas
Veteran’s Commission working in the program for veterans. The states were
mandated, to the maximum extent practicable, employ qualified veterans to carry
out the services referred to in subsection (a). Preference shall be given in the
appointment of such specialists to qualified disabled veterans. 38 U.S.C.
§4103a(b).
Appellees were entitled to preference to be retained in their job positions.
There is nothing in the veterans preference act that allows for Appellees discharge
and the reason articulated by Appellant does not provide a basis for denying
Appellees preference in retaining their job positions. Cole v. Young, 351 U.S. 536,
76 S.Ct. 861, 100 L.Ed. 1396 (1956).
16
6. Vallejo claim for FMLA Violations and Retaliation:
Appellee Vallejo alleged the necessary allegations giving rise to his claims
under the FMLA. [C.R.84-88, 94-98] Vallejo pleaded his diagnosis of cancer, his
continuing on going treatment by doctors for a chronic medical condition, his
periods of incapacity, that he reported his condition to his employer, and with
specificity that he was in the process of providing additional information
requested from Appellant to continue with his FMLA benefits, when Appellee
Vallejo was terminated. [C.R.84-85, 93-98]
a. Family Medical Leave Act:
A serious health condition is an illness, injury or impairment, either physical
or mental, that involves continuing treatment by a health care provider. 29 U.S.C.
§ 2611(11). An employee is entitled to a total of 26 work weeks of leave. 29
U.S.C. § 2612(a)(4). An employer may require an employee to provide
certification with the application for FMLA. 29 U.S.C. § 2613. The employer must
give the employee fifteen days to get the medical certification. 29 U.S.C. § 2613,
29 C.F.R. 825.305(b). Terminating the employee during the fifteen day
certification period violates the FMLA. 29 U.S.C. § 2612. The employer is
required to apply the Certification policy uniformly. 29 U.S.C. § 2614(a)(4).
Terminating an employee within days of filing for FMLA benefits articulates a
17
prima facie case for retaliation. Goff v. Singing River Health System, 6 F.Supp.3d
704, 709 (S.D. Miss. 2014). The employer and employee can agree that the
employee will take intermittent leave of which the employee may be transferred to
an alternative position that has equivalent pay and benefits and better
accommodation periods that would the employee’s regular position. 29 U.S.C. §
2612(b)(2). The Family Medical Leave Act protects the employee by mandating
that the employee shall upon return from FMLA, be restored to his position held
prior to when his leave commenced or an equivalent position. The employee shall
suffer no loss of benefits. 29 U.S.C. § 2614. It is unlawful for an employer to
interfere with, restrain or deny, discriminate against, or interfere with an
employee’s exercising his FMLA benefits. 29 U.S.C. § 2615.
Vallejo received a 30 percent disability upon his honorable discharge from
the United States Air Force in 1992. [R.R.16] It is undisputed that he is a disabled
veteran. He was employed with the Texas Veteran’s Commission from April 2007
to September 2012. [R.R.16-17] Vallejo filed for benefits under the Family
Medical Leave Act when he was diagnosed with cancer in 2012. [R.R.17] In
August 2012, less than one month prior to his termination and just before his first
claim for FMLA benefits were expiring, Vallejo had applied for continuing FMLA
benefits. [R.R.17-18] While his request was pending, Appellee Vallejo was
18
terminated. [R.R.18-20] At the time of his termination, Appellee Vallejo was
undergoing chemo therapy at M.D. Anderson in Houston, Texas. [R.R.20] Vallejo
had been released for limited duty, formally he was on FMLA leave at the time he
was terminated. [R.R.21, C.R.486 (PX-13)] The pleadings and evidence establish
the Court’s jurisdiction over Vallejo’s claims against Appellant.
The Texas Supreme Court in University of Texas at El Paso v. Herrera, 322
S.W.3d 192 (Tex. 2010) relies upon the holding in Nevada Department of Human
Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) to
justify denying an aggrieved employee the right to sue its state employer for
violations under the self-care provision of the Family Medical Leave Act because
the U. S. Supreme Court in Hibbs held the state waived immunity from suit under
the family care provision of the FMLA and withheld deciding waiver under the
self-care provision because it was not before the United States Supreme Court in
Hibbs. The Hibbs and Herrera reasoning both recognize a state employee suing its
employer if the state employer has waived immunity or there is an overriding
interest to apply federal legislation to the states.
b. Texas Waiver of Sovereign Immunity under FMLA:
The State of Texas has waived sovereign in immunity on Vallejo’s claim
under the FMLA by Texas enacting both the Texas Commission on Human Rights
19
Act [TCHRA] and the Veterans Preference Act statutes.
It is undisputed that Appellee Vallejo is a disabled veteran. It is also
undisputed that both Texas and federal law have enacted legislation giving
preference to disabled veterans in job retention. Tex. Gov’t Code Ann. §§
657.001, 657.007, 38 U.S.C. § 3100. The Texas preference statute specifically
applies to the State of Texas as an employer mandating Texas giving preference to
disabled veterans. Tex. Gov’t Code Ann. § 657.001(2). Congress recognizes the
federal government’s overriding interest in protecting our veterans in job
preference. 38 U.S.C. § 3100. The reasoning applied by the U. S. Supreme court in
applying the family care provision to state employers, would equally hold in
applying the self-care provision to veterans who seek their FMLA benefits for
treatment and being given preference in retaining their jobs upon return from
FMLA leave. Enacting the FMLA was to provide job security for employees who
have serious health conditions that prevent them from working for temporary
periods and is analogous to the leave of absence provision of the veterans
preference statutes that veterans absent from their employment are considered to
be pursuing their benefits. 38 U.S.C. § 3110, 29 U .S.C. § 2601(a)(4), 29 U.S.C. §
2612(a)(1)(D). The Texas Supreme Court acknowledged the provision added to
the FMLA to specifically protect exigencies for military families. University of
20
Texas at El Paso v. Herrera, 322 S.W.3d at 194, fn. 7.
Appellant participated in the federal program by hiring disabled veterans
such as Appellees in this litigation mandating that Appellant employ covered
veterans. 38 U.S.C. § 4212(a)(1). The Texas legislature recognizes the need to
give preference to veterans in job employment and retention. Tex. Gov’t Code
Ann. §§ 657.004, 657.003. The FMLA likewise mandates retention of employees
who must be away from their job for medical reasons and provide them a job in
which to return when they are medically able. 29 U.S.C. § 2614.
Applying the reasoning of both the Texas and United States Supreme Courts
there is an overriding interest to protect veterans in retaining their jobs and giving
them preference in employment retention. Selectively applying the enforcement
provisions of the statutes enacted to protect employees should not discriminate
because of the status of the employer. It is inapposite that an employer may accept
the benefits of the statute and dispel the enforcement entitlements of their
employees. The Veterans Preference Act specifically allows enforcement of its
provisions by the affected veteran. Tex. Gov’t Code Ann. § 657.001 et seq.
The TCHRA specifically waives immunity for claims of discrimination
against employees with a disability and specifically cites to the American’s with
Disabilities Act stating “[t]he general purposes of this chapter are to . . . provide
21
for the execution of the policies embodied in Title I of the Americans with
Disabilities Act of 1990 and its subsequent amendments (42 U.S.C. § 12101 et
seq.). Tex. Lab. Code Ann. § 21.001(3). The UTEP v. Herrera court acknowledges
the need to protect employees with serious health conditions, and specifically
references employees with cancer. University of Texas at El Paso v. Herrera, 322
S.W.3d at 200-201,l fn. 46.
c. Retaliation under FMLA:
Vallejo was terminated while on FMLA leave and during the time that he
had applied to extend his FMLA benefits. [R.R.18-21] Vallejo establishes a claim
for retaliation for terminating his employment for seeking FMLA benefits. Goff v.
Singing River Health System, 6 F.Supp.3d 704, 709 (S.D. Miss. 2014).
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellees move this court
affirm the Trial Court’s denial of Appellant’s Plea to the Jurisdiction and for all
other relief to which Appellees are entitled in law and equity.
CERTIFICATE OF SERVICE: This is to certify that a true and correct copy
of the foregoing document was this date served upon attorney for the Appellant,
Melissa Holman, Assistant Attorney General, SBOT 24064501, P.O. Box 12548,
Capitol Station, Austin, Texas 78711-2548, (512) 463-2120, FAX: (512) 320-
22
0667, e-mail: Melissa.Holman@texasattorneygeneral.gov, through the electronic
filing system, on this date June 7, 2015.
CERTIFICATE OF COMPLIANCE: The undersigned hereby certifies that
this document contains 4,494 words as provided Tex. R. App. P. 9.4 ( i)(1) and
9.4( i)(2)(B) using WordPerfect X6©.
/s/ William H. Berry, Jr., Gail D. C. Dorn
WILLIAM H. BERRY, JR.
Attorney in Charge for Appellees
Texas Bar 02251000, Federal ID 1155
GAIL D. C. DORN
Attorney Of Counsel for Appellees
Texas Bar 06007350, Federal ID 16311
P. O. Box 23064
Corpus Christi, Texas 78403-3064
361-888-5568, No Facsimile
e-mail: berrylaw@sbcglobal.net
23