Texas Veterans Commission v. Armando Lazarin, Jose Vallejo and Robert Muse

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