the University of Texas at El Paso v. Diana Ruiz Esparza

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
THE UNIVERSITY OF TEXAS No. 08-14-00314-CV
AT EL PASO, §
Appeal from
Appellant, §
County Court at Law No. 3
v. §
of El Paso County, Texas
DIANA RUIZ ESPARZA, §
(TC # 2013-DCV-4283)
Appellee. §

OPINION
In a prior appeal before this court involving the same parties, we considered Diana

Esparza’s claims that the University of Texas at El Paso (UTEP): (i) discriminated against her

based on age, national origin, and gender; (ii) subjected her to a hostile work environment; and

(iii) retaliated against her for filing a charge of discrimination. Esparza v. University of Texas at

El Paso, 471 S.W.3d 903 (Tex.App.--El Paso 2015, no pet.). All of the claims at issue in the

prior appeal arose from alleged actions that took place while she was still employed as a staff

interior designer for UTEP. Id. In this case, we consider whether a different trial court, in a

different lawsuit, should have granted a plea to the jurisdiction for claims relating to her

termination from that job. For the reasons noted below, we affirm in part and reverse in part the

denial of UTEP’s plea to the jurisdiction.
 FACTUAL SUMMARY

As we outlined in our previous opinion, Diana Esparza worked for UTEP as a staff

designer. Id. Beginning at least by 2008 her employment tenure was marked with difficulties, as

evidenced by several written warnings and suspensions. Those difficulties resulted in two prior

lawsuits: a 2010 lawsuit filed in federal court with claims under the federal Equal Pay Act, and a

2012 lawsuit filed in state court under the Texas Commission of Human Rights Act (TCHRA).

TEX.LAB.CODE ANN. §§ 21.051, 21.055 (West 2015). The relevant events from those prior

cases, and the events leading to the third lawsuit which is now before us, are as follows:

 November 19, 2010. The United States District Court for the Western District of Texas
dismissed Esparza’s 2010 Equal Pay Act lawsuit against UTEP because she could not
identify any male employees who were paid more but who did the same job, requiring
equal skill, effort, and responsibilities under similar working conditions.

 February 21 2012. Esparza filed her original petition in the 210th District Court against
UTEP alleging that she was paid less than male employees in her department; she was
given warnings or suspensions because of her age, sex, or national origin; she was
exposed to a hostile work environment; and she was retaliated against in violation of
TCHRA.

 July 17, 2013. The 210th District Court signed its final judgment of dismissal as to the
TCHRA lawsuit based on UTEP’s plea to the jurisdiction.

 August 14, 2013. Esparza filed her notice of appeal from the 210th District Court’s final
judgment.

 September 10, 2013. Esparza received a notice of UTEP’s intent to terminate her
employment and she was placed on indefinite administrative leave by her department
head. The stated reason for the proposed termination was poor job performance.

 September 18, 2013. Esparza filed a charge of discrimination contending she was placed
on indefinite administration leave based on her national origin, and in retaliation for her
having filed a previous charge of discrimination.

 September 20, 2013. Esparza’s employment with UTEP was terminated.

2
  October 28, 2013. Esparza filed a charge of discrimination contending she was placed on
indefinite leave and then terminated based on her national origin, and in retaliation for
having filed a previous charge of discrimination.

 November 22, 2013. In an internal appeals hearing from her termination, Esparza
claimed UTEP’s hearing officer denied her the ability to present evidence and call
witnesses, while giving that right to UTEP.

 February 20, 2014. Esparza filed another charge of discrimination based on sex, national
origin, age, and retaliation. It contended she was denied the opportunity to “present
witnesses [and] evidence that my termination was in retaliation for my prior EEO
activity.” She specifically claimed the hearing officer’s actions were in retaliation for her
filing the 2010 and 2013 charges of discrimination.
Esparza filed her present lawsuit on November 18, 2013, in County Court at Law

Number Three. This case complained only of her termination from UTEP, including the post-

termination hearing. Her first amended petition alleged national origin discrimination under

Count One, age discrimination under Count Two, and retaliation under Count Three.

UTEP filed a plea to the jurisdiction which was amended once. 1 The amended plea

attached jurisdictional evidence including some of the live pleadings and the final judgments

from the two prior lawsuits. It also attached Esparza’s deposition taken in the federal lawsuit,

and the various charges of discrimination that she filed. The plea contended that Counts One and

Two (the age and national origin claims) failed as matter of law because the existence of

comparable employees, essential to her claim, was resolved against her in the two prior lawsuits.

The plea also contended that Esparza failed to plead any facts establishing a prima facie

retaliation or discrimination claim. UTEP further contended that the retaliation claim would fail

in any event based on the amount of time between the termination and the date of the protected

activity.

1
The original plea to the jurisdiction claimed that Esparza failed to exhaust her administrative remedies because she
filed suit before obtaining a right to sue letter from the Texas Workforce Commission. Based on that contention, the
suit was abated for a time, after which UTEP filed its amended plea to the jurisdiction omitting the exhaustion claim,
and raising the arguments now before us.

3
 The trial court denied the plea without explanation. UTEP appeals that ruling in three

issues for review. Issue One contends that Esparza’s claims are collaterally estopped because the

two previous lawsuits established that she has no similarly-situated employees, thus she cannot

establish a prima facie TCHRA case. Issue Two alleges that Esparza did not plead facts to

establish her TCHRA claims. Finally, Issue Three complains that Esparza did not establish a

prima facie case of retaliation because she failed to establish a causal connection between the

actions of which she now complains and her protected activities.

PLEAS TO THE JURISDICTION IN TCHRA CLAIMS

Governmental entities such as UTEP are generally immune from suit. See San Antonio

Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015); Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224 (Tex. 2004). However, the Legislature has waived immunity for

claims properly brought under TCHRA. Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 636 (Tex. 2012). That waiver extends only to “those suits where the plaintiff

actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder.”

Garcia, 372 S.W.3d at 636. Absent a pleading making out a prima facie case, the State’s

immunity from suit has not been waived. Id.

A governmental entity may challenge the existence of that prima facie case through a

plea to the jurisdiction. Miranda, 133 S.W.3d at 225-26; Univ. of Texas at El Paso v. Ochoa,

410 S.W.3d 327, 330 (Tex.App.--El Paso 2013, pet. denied). The plea might attack the face of

the pleading, but it may also include jurisdictional evidence which thereby place into issue the

existence of a jurisdictional fact. Miranda, 133 S.W.3d at 226-27; College of the Mainland v.

Glover, 436 S.W.3d 384, 391 (Tex.App.--Houston [14th Dist.] 2014, pet. denied).

4
 When a plea to the jurisdiction challenges the pleading itself, we determine if the plaintiff

has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. We

accept the allegations in the pleadings as true and construe them in the plaintiff’s favor.

Miranda, 133 S.W.3d at 226-27; Mayfield v. Tarrant Regional Water Dist., 467 S.W.3d 706, 715

(Tex.App.--El Paso 2015, no pet.). If the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction, but also do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency. County of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002). In that instance, the plaintiff should be afforded the

opportunity to amend. Id. However, if the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction can be granted without allowing an opportunity to

amend. Id.; Mayfield, 467 S.W.3d at 715.

“However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised, as the trial court is required to do.” Miranda, 133 S.W.3d at 227. “If there is no

question of fact as to the jurisdictional issue, the trial court must rule on the plea to the

jurisdiction as a matter of law.” City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

“If, however, the jurisdictional evidence creates a fact question, then the trial court cannot grant

the plea to the jurisdiction, and the issue must be resolved by the fact finder.” Id. “This standard

mirrors our review of summary judgments” where the reviewing court takes as true all evidence

favorable to the non-movant, indulging every reasonable inference and resolving any doubts in

the non-movant’s favor. Id.

5
 Wrongful Termination and Issue Preclusion

Counts One and Two of the petition alleged that Esparza was terminated because of

either her age, or national origin. UTEP contends that the undisputed jurisdictional evidence

demonstrates that she could never prove either of those contentions because she had no similarly

situated comparable employees upon which to base her claim. The jurisdictional evidence before

the trial court consisted of the final judgments from the federal Equal Pay Act suit and the

TCHRA suit in the 210th District Court. The federal Equal Pay Act judgment was expressly

based on the lack of comparable employees. We earlier affirmed the dismissal of a disparate pay

claim in the TCHRA suit based on the lack of comparable male co-workers. Esparza, 471

S.W.3d at 911.

Issue preclusion (also termed collateral estoppel), precludes a party from re-litigating an

issue that it previously litigated and lost. Quinney Elec., Inc. v. Kondos Entertainment, Inc., 988

S.W.2d 212, 213 (Tex. 1999), citing Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 329, 99

S.Ct. 645, 58 L.Ed.2d 552 (1979). The proponent of a collateral estoppel defense must establish

that: (1) the issue decided in the first action was actually litigated, (2) was essential to that

lawsuit’s judgment, and (3) is identical to the issue in the pending action. Johnson & Higgins of

Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 521 (Tex. 1998); Getty Oil v. Insurance

Co. of N. Am., 845 S.W.2d 794, 802 (Tex. 1992). Whether issue preclusion applies is a question

of law for the court to decide. Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 138 (Tex.App.--

El Paso 1997, writ denied); Price v. Texas Employers’ Ins. Ass’n, 782 S.W.2d 938, 940

(Tex.App.--Tyler 1989, no pet.); Martin v. U.S. Trust Co. of New York, 690 S.W.2d 300, 307

(Tex.App.--Dallas 1985, writ ref’d n.r.e.).2

2
Both claim preclusion and issue preclusion are affirmative defenses, and the party asserting either defense carries
the burden of pleading and proving their elements. Calabrian Corp. v. Alliance Specialty Chemicals, Inc., 418

6
 Esparza maintains that the prior suits involve different claims--one for equal pay and the

other for discriminatory actions while she was still employed. However, issue preclusion may

bar re-litigation of issues previously litigated even though the subsequent suit is based upon a

different cause of action. See Johnson & Higgins, 962 S.W.2d at 521, citing Wilhite v. Adams,

640 S.W.2d 875 (Tex. 1982). If the cause of action in the second lawsuit involves an element

already decided in the first lawsuit, that cause of action is barred. See Johnson & Higgins, 962

S.W.2d at 519. For this to be true, however, the issue decided in the first action must be identical

to the issue in the pending action. Id.

A TCHRA plaintiff can prove discrimination in one of two ways. Garcia, 372 S.W.3d at

634. “The first method, rather straightforward, involves proving discriminatory intent via direct

evidence of what the defendant did and said.” Id. But because direct evidence of discrimination

is often “hard to come by” the court created a second method often termed “the burden-shifting

mechanism of McDonnell Douglas.” Id., citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). “Under this framework, the plaintiff is

entitled to a presumption of discrimination if she meets the ‘minimal’ initial burden of

establishing a prima facie case of discrimination.” Id. In a disparate treatment case, for instance,

the employee must show she (1) is a member of a protected class; (2) was qualified for her

position; (3) suffered an adverse employment action; and (4) others similarly situated were

S.W.3d 154, 158 (Tex.App.--Houston [14th Dist.] 2013, no pet.). We assume without deciding that jurisdictional
evidence establishing the affirmative defense of claim preclusion might properly be included in a plea to the
jurisdiction. Esparza has not challenged this assumption and neither party has briefed the question, which we note is
not a foregone conclusion. Cf. Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 103 (Tex.App.--
Houston [14th Dist.] 2005, no pet.)(defendant cannot challenge the timeliness of a plaintiff’s suit under the
Whistleblower Act in a plea to the jurisdiction); City of New Braunfels v. Allen, 132 S.W.3d 157, 166 (Tex.App.--
Austin 2004, no pet.)(same) with Crockett County v. Klassen Energy, Inc., 463 S.W.3d 908, 911 (Tex.App.--El Paso
2015, no pet.)(government entity may properly bring a limitations or repose defense in a plea to the jurisdiction if
the applicable statute clearly establishes that timely filing is a statutory prerequisite to suit); Texas Bd. of Pardons &
Paroles v. Feinblatt, 82 S.W.3d 513, 519 (Tex.App.--Austin 2002, pet. denied)(failure to comply with grievance
procedure was jurisdictional and could be raised in plea to the jurisdiction).

7
treated more favorably. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120

S.Ct. 2097, 147 L.Ed.2d 105 (2000); AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008)

(per curiam). 3 Neither party here disputes that Esparza is proceeding under this second

approach, and neither party contests for the purposes of this appeal that she meets the first three

elements: she is in two protected classes (age and national origin), she was qualified for her

position, and she was terminated.

Rather, UTEP contends through its proofs that Esparza will be precluded from claiming

the existence of any similarly situated employees who were treated more favorably. According

to UTEP, both in the federal equal pay lawsuit, and in the earlier appeal before this court, the

issue of similarly situated co-employees has already been adversely (and finally) decided against

Esparza. We disagree.

The federal suit claimed that Esparza was paid less than her male counterparts. Under the

Equal Pay Act, the plaintiff must identify employees of the opposite sex who were paid more, yet

do the same job requiring “equal skill, effort, and responsibility . . . under similar working

conditions.” 29 U.S.C.A. § 206(d)(1)(West 1998) The federal district court granted summary

judgment because there was no evidence that the persons Esparza identified as her male counter-

parts were in fact her counter-parts. The federal court’s opinion analyzed Esparza’s job duties

and compared it to each of the five male persons she had identified as comparators. The court

concluded that the male persons she identified had different jobs with different duties and

responsibilities.

3
If she made that showing, the burden then shifts to UTEP to articulate a “legitimate, nondiscriminatory reason” for
her discharge. Quantum Chem., 47 S.W.3d at 477, quoting McDonnell Douglas, 411 U.S. at 802. If UTEP did so,
the presumption of discrimination created by the plaintiff’s prima facie showing is eliminated, and the burden shifts
back to Esparza to show UTEP’s stated reason was a pretext for discrimination. Id.

8
 Esparza’s lawsuit in the 210th District Court also claimed she was paid less than the five

identified male employees in her department. The suit further alleged that adverse employment

actions in the nature of written warnings and suspensions were taken against her in 2008, 2009,

and 2010. The pleading alleged that she was held to a stricter standard of performance and

treated dissimilarly from others who were younger, or from a different national origin, or gender.

We affirmed the dismissal of that suit in part, and reversed in part. As to the dismissal of her

disparate pay claim, we upheld the dismissal because the male persons she identified did not

have substantially the same job responsibilities. Esparza, 471 S.W.3d at 911. But we reversed

the age, gender, and national origin claims regarding two unpaid leaves finding that they could

be pled as adverse employment actions. Id. at 910.

The prior suits decided the issue of whether there were comparable male employees who

were paid more that Esparza.4 The present suit, however, includes the contention that there are

comparable employees under 40 years of age, or of a different national origin, who were treated

differently regarding a termination and post-termination hearing. The potential population of

comparable employees in this lawsuit would focus not on pay or gender, but on termination,

national origin, and age. Because the potential population of comparable employees is

necessarily different, the issue resolved in the prior cases is not necessarily the same. For that

reason, we overrule UTEP’s Issue One.

Failure to Plead a Viable Claim

UTEP also argued below that Esparza failed to plead a prima facie case for either her

wrongful discharge or retaliation claims. Our analysis begins by dissecting Esparza’s last

amended petition. The substantive allegations start with a Statement of Facts section which

4
As we noted in Esparza’s earlier appeal, she contended the standard for comparable employees under the Equal
Pay Act and TCHRA’s disparate pay provision may differ. We again find no need to resolve this issue.

9
recited that Esparza was hired in 1999 and terminated in 2013. It alleged she was given notice of

UTEP’s intent to terminate her, and she was placed on administrative leave; ten days later her

employment was terminated. The allegation identified three specific individuals who

participated in the decision. She was informed that the termination was due to poor job

performance. In an appeals hearing on November 22, 2013, she claimed the hearing officer

would not allow her to present evidence or witnesses. The Statement of Facts section then

contains the bare statement that she was “discriminated against because of her gender, national

origin (Mexican American), and retaliated against in violation of the Texas Commission on

Human Rights Act.”

The petition then asserted three counts alleging claims under national origin (Count One),

age (Count Two) and retaliation (Count Three). The structure of each count is identical. An

introductory sentence alleges that “the unlawful employment practices” occurred in the course of

Esparza’s employment with UTEP by un-named employees, agents, or servants of the

University. Each count then contains the following three sentences, substituting only the legal

theory applicable to the count:

Defendant’s [sic] discriminated against Plaintiff herein because of national origin
with respect to the terms, conditions, privileges, advantages and benefits of her
employment with UNIVERSITY OF TEXAS AT EL PASO [sic] Specifically,
Plaintiff was held to stricter standards of performance, and denied benefits of
employment because of her national origin. In addition, Plaintiff was treated
dissimilarly because of her national origin.

The final sentences in each count alleged that Esparza was discriminated against as a proximate

result of “these actions” and claimed she was required to retain an attorney to file her claim. The

three pleaded counts also incorporated by reference the “Statement of Facts” section into the

allegations. The petition tied itself to the charges of discrimination filed on October 28, 2013,

and February 20, 2014.

10
 Prior cases from the supreme court offer some guidance on a proper TCHRA pleading

against a state entity. In Miranda, the court held that a plaintiff suing a state entity is required to

plead facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Miranda, 133

S.W.3d at 226-27. The court tempered the requirement as being no more onerous than that

required by TEX.R.CIV.P. 45 and 47 which require a short statement of the cause of action

sufficient to give the opposing party fair notice of the claims involved. The majority opinion in

Miranda expressly rejected the contention from one of the dissenting justices which would have

required a more detailed recitation of the evidence establishing the asserted cause of action.

Miranda, 133 S.W.3d at 230; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct.

992, 152 L.Ed2d 1 (2002)(rejecting heightened pleading standard in employment discrimination

cases beyond that in the federal rules of civil procedure). Eight years later, in Garcia, the

majority required a plaintiff’s pleading to include the elements of the claim, to specifically

include the McDonnell Douglas prima facie case when it applies. “While a plaintiff must plead

the elements of her statutory cause of action--here the basic facts that make up the prima facie

case--so that the court can determine whether she has sufficiently alleged a TCHRA violation,

she will only be required to submit evidence if the defendant presents evidence negating one of

those basic facts.” [Emphasis added]. Garcia, 372 S.W.3d at 637. Additionally, a mere

“superficial reference” to the TCHRA is insufficient to establish the State’s consent to be sued.

Id. at 637.

Applying these principles, we agree with UTEP that the last amended petition fails the

fair notice test. The best indication of that failure is Esparza’s multiple references in her

appellate brief to this Court that the petition also included a gender discrimination claim when

none of the three counts contained in the pleading below mention gender discrimination. The

11
only reference to gender discrimination is a single sentence in the Statement of Facts section that

serially lists her claims, and includes the word “gender” along with national origin, age, and

retaliation. If she is asserting a gender discrimination claim, the pleading failed to include the

factual basis for the prima facie elements of that claim and at most is the kind of “superficial

reference” to the TCHRA condemned in Garcia.

Even as to her age and national origin claim, we find a disconnect between the Statement

of Facts section that references three specific events--her indefinite leave, the termination, and

the post-termination hearing--and the allegations in her counts which in generic fashion refer to

unlawful employment practices. The petition itself does not disclose whether she is proceeding

based on direct evidence of discrimination (none is mentioned in Statement of Facts) or the

McDonnell Douglas prima facie case (not all the elements of which are pled). It is unclear to us

if this a “replacement case” where she would be required to plead that the person replacing her

was younger or of a different race. See Garcia, 372 S.W3d at 642. Simply parroting the

wording of the statute and incorporating by reference an unilluminating fact statement gives us

no assurance that a prima facie case has in fact been pled.

But a case should not be dismissed for a pleading deficiency if it appears that an amended

petition might resolve the error. Esparza, 471 S.W.3d at 910. The jurisdictional evidence in the

record suggests some, but not all of the elements of her claim. She was terminated and falls into

at least two suspect classifications. We are unsure whether she can plead the balance of the

required elements, but neither are we convinced she could not do so. And should she be unable

to plead the factual basis of her claims, the trial court can revisit the plea to the jurisdiction. We

accordingly sustain Issue Two, and remand the case to the trial court to reconsider the state of the

pleadings consistent with this opinion.

12
 Retaliation Claim

For the retaliation claim, however, UTEP affirmatively argues that the jurisdictional

evidence it submitted belies Esparza’s ability to ever plead that claim. To establish a prima facie

case for retaliation, Esparza must show: (1) she engaged in protected activity; (2) an adverse

employment action occurred; and (3) there is a causal connection between the protected activity

and the adverse employment action. San Antonio Water Sys., 461 S.W.3d at 137; Mayfield v.

Tarrant Regl. Water Dist., 467 S.W.3d 706, 714 (Tex.App.--El Paso 2015, no pet.); Herbert v.

City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App.--Fort Worth 2006, no pet.). Protected

activities include: (1) opposing a discriminatory practice; (2) making or filing a charge; (3)

filing a complaint; and (4) testifying, assisting, or participating in any manner in an investigation,

proceeding or hearing. TEX.LAB.CODE ANN. § 21.055. The causation element requires the

plaintiff to establish a “but for” causal nexus between the protected activity and the employer’s

prohibited conduct. University of Texas Southwestern Med. Ctr. v. Nassar, __ U.S. __, 133 S.Ct.

2517, 2528, 186 L.Ed.2d 503 (2013)(“Title VII retaliation claims require proof that the desire to

retaliate was the but-for cause of the challenged employment action.”); McMillon v. Texas Dept.

of Ins., 963 S.W.2d 935, 940 (Tex.App.--Austin 1998, no writ). UTEP’s plea to the jurisdiction

contends there is no causal connection between any of its actions and Esparza’s protected

activity because of the substantial lapse of time between the protected activity and the retaliatory

act.

We discern two threads to Esparza’s retaliation claim. The first alleged that her

suspension on September 10, 2013, and then her termination ten days later, were in retaliation for

her earlier protected activities. The second argued that a UTEP hearing officer in a post-

termination proceeding denied her request to present witnesses and evidence in retaliation for her

13
earlier protected activity. UTEP suggests that the protected activity necessarily refers to her

having filed and pursued her earlier discrimination charge and that it is too far removed in time

to support any inference of retaliatory motive. It further argues the actions at the post-

termination hearing cannot be considered because she had already been terminated by that time.

Retaliation claims are often provable only through circumstantial evidence which may

include the temporal proximity between the protected activity and the alleged retaliatory action.

Temporal proximity may indeed raise an inference of retaliation, but the events must be very

close in time. Cf. Texas Dept. of State Health Services v. Rockwood, 468 S.W.3d 147, 157-58

(Tex.App.--San Antonio 2015, no pet.)(“we hold this temporal proximity of approximately one

month to be sufficient to raise a fact issue on the causation element of Rockwood’s retaliatory

discharge claim.”); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001)(five day span

between giving testimony and adverse employment action sufficient for prima facie case) with

Clark County. School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d

509 (2001)(holding that actions taken after twenty months “suggests, by itself, no causality at

all”); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)(three month period

insufficient); Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex.App.--Houston [14th Dist.]

1998, no pet.)(holding that a two and one-half year gap, “with nothing more, is too long to

establish that there was a causal connection”); see also Fields v. Teamsters Local Union No. 988,

23 S.W.3d 517, 529 (Tex.App.--Houston [1st Dist.] 2000, pet. denied)(noting proximity may

establish causal connection when protected activity and adverse employment action are separated

by weeks, as opposed to months and years).

“But it also is true that there is no hard-and-fast rule that any specified amount of time is

too removed for an inference of causation. Especially where a defendant retaliates at the first

14
opportunity that is presented, a plaintiff will not be foreclosed from making out a prima facie

case despite a substantial gap in time.” Pardo-Kronemann v. Jackson, 541 F.Supp.2d 210, 218

(D.D.C. 2008), aff’d in part, rev’d in part on other grounds, 601 F.3d 599 (D.C.Cir. 2010). The

length of time between the protected activity and the retaliation “is part of our analysis, but not in

itself conclusive of our determination of retaliation.” Shirley v. Chrysler First, Inc., 970 F.2d 39,

44 (5th Cir. 1992); Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 178 (3rd Cir.

1997)(“It is important to emphasize that it is causation, not temporal proximity itself, that is an

element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary

basis from which an inference can be drawn.”).

More fundamental is determining what was the protected activity which started the clock

from which the temporal proximity may be judged. UTEP contends that the protected activity is

the claim of discrimination leading to the lawsuit in the 210th District Court, making the time

gap close to a year and a half. Esparza contends the protected activity might include the notice

of appeal from the dismissal of the suit in the 210th District Court. That filing was made a little

less than a month before she was notified of UTEP’s intent to terminate her. Pursuing an appeal

of a dismissed TCHRA case might be considered “participating in any manner” in a TCHRA

proceeding, assuming the decision maker was aware of her court filing. TEX.LAB.CODE ANN. §

21.055. Esparza’s present pleading provides no factual basis for the retaliation claim, and we

have already sustained Issue Two agreeing that it must be repled. Our only inquiry here is

whether the jurisdictional evidence conclusively shows she could never replead the retaliation

claim to make out a prima facie case. The various events outlined in the chronology we recite

above are all raised by the plea to the jurisdiction and its attachments, and Esparza’s response. It

15
is at least plausible that she might be able to replead her case to meet the causation requirement

for a retaliation-termination case.

The last issue we address is UTEP’s contention that any retaliation against Esparza at the

post-termination hearing is not actionable because she had already been terminated. We decline

to address the issue primarily because the record here is bare of any evidence explaining the

nature of the post-termination process at UTEP, and in particular what relief she might have been

entitled to under that procedure.

Neither party addresses whether the denial of an impartial post-termination procedure

would constitute an adverse employment action. TCHRA applies only to adverse employment

actions and does not provide relief for every decision made by an employer that might have some

tangential effect upon employment decisions. Anderson v. Houston Community College System,

458 S.W.3d 633, 644 (Tex.App.--Houston [1st Dist.] 2015, no pet.). An adverse employment

action requires a significant change in employment status. See Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998); Green v.

Administrators of Tulane Educational Fund, 284 F.3d 642, 657 (5th Cir. 2002)(adverse

employment actions “include only ultimate employment decisions such as hiring, granting leave,

discharging, promoting, or compensating”). Events such as disciplinary filings, supervisor’s

reprimands, poor performance reviews, negative employment evaluations, verbal threats to fire,

reprimands, and criticism of the employee’s work do not constitute actionable adverse

employment decisions. Elgaghil v. Tarrant County Junior College, 45 S.W.3d 133, 143

(Tex.App.--Fort Worth 2000, pet. denied).

Denial of a post-termination internal grievance proceeding does not constitute an

“adverse employment action” unless the post-termination conduct has some tangible adverse

16
effect on the terms and conditions of the plaintiff’s current or prospective employment. Cantu v.

Hidalgo County, 398 S.W.3d 824, 829 (Tex.App.--Corpus Christi 2012, pet. denied)(and cases

cited therein). In Cantu, for instance, a county employee was entirely denied the ability to

pursue an internal post-termination grievance procedure because he had already filed a charge of

discrimination with the Texas Workforce Commission. Id. at 826. The court held the denial of

the post-termination procedure was not actionable under the retaliation provisions of TCHRA

because the relief available under the county’s grievance procedure was no greater than that

available under the TCHRA claim and thus it did not harm the employee. There was no claim

that the internal procedure gave the employee a better chance of reinstatement, or entitled the

employee to more relief. Id. at 829. But the court rejected the county’s argument that post-

termination actions could never constitute an adverse employment action. Id.

We hesitate to follow Cantu here only because we have no jurisdictional evidence

addressing the remedies and procedures of the UTEP internal grievance procedure, and neither

party here has cited Cantu or discussed this issue.5 In sustaining Issue Two, we anticipate that

Esparza will replead her claim and that the trial court may address on a complete record whether

she has met her prima facie burden for including any post-termination conduct as an adverse

employment decision. Except to the extent noted, we overrule Issue Three.

CONCLUSION

We overrule Issue One and Three. We sustain Issue Two, but only to the extent that we

remand to the trial court to consider the pleadings in light of our opinion.

5
The only argument that UTEP makes in its briefing regarding the post-termination hearing is that it occurred after
the date of termination. UTEP then cites Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.
1996) and Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431(1980). These cases,
however, address when limitations begin to run and are simply too far afield from the TCHRA post-termination
retaliation issue to be of any help.

17
September 28, 2016
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Concurring in part; Dissenting in part

18