Margaret Fields v. Houston Independent School District

Affirmed and Memorandum Opinion filed October 15, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00010-CV

MARGARET FIELDS, Appellant

V.

HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2016-86461

MEMORANDUM OPINION

Appellant Margaret Fields filed suit against appellee Houston Independent
School District (HISD) alleging that HISD (1) discriminated against her on the
basis of appellant’s race, and (2) retaliated against her in violation of the Texas
Commission on Human Rights Act (TCHRA) after she made complaints regarding
the alleged discrimination. See Tex. Lab. Code §§ 21.051; 21.055. HISD
eventually filed a plea to the jurisdiction, which the trial court granted. Appellant
appealed the trial court’s dismissal of her claims. Concluding that the trial court
did not err when it granted HISD’s plea, we affirm.

BACKGROUND

Appellant, who is African-American, initially worked for HISD as a
substitute teacher. Appellant wanted to become a full-time teacher for HISD so
she enrolled as a teacher intern in HISD’s alternative-certification program. If the
teacher intern successfully completes the alternative-certification process, she may
apply for a standard teaching certificate. Once enrolled in the program, appellant
received a one-year probationary teacher’s certificate and she was assigned to work
as a fourth-grade teacher intern at Lewis Elementary School for the 2014-2015
academic year. The probationary internship normally lasts one academic year.

HISD assigns a Teacher Development Specialist to each alternative-
certification teacher intern. As part of the alternative-certification process, the
teacher intern is expected to prepare and post daily lesson plans, submit reflection
forms, and work with her Teacher Development Specialist to develop her skills as
a teacher. The Teacher Development Specialist in turn is expected to work closely
with the teacher intern by reviewing the teacher intern’s written papers, observing
the teacher intern’s classroom activities, providing written feedback and additional
resources as needed. The principal at the teacher intern’s assigned school, as the
teacher intern’s supervisor, also plays a role in the development of the teacher
intern. Shanna Morgan served as appellant’s Teacher Development Specialist
during appellant’s first year at Lewis Elementary. Tonya Woods served as the
principal at Lewis Elementary during appellant’s first year. Both Morgan and
Woods are African-American.

HISD operated an alternative-certification committee which makes the final
decision whether to award a teacher intern a standard teaching certificate. The
teacher intern’s Teacher Development Specialist and the school principal submit
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paperwork to the committee making one of the following recommendations: (1)
fully certify the teacher intern; (2) extend the probationary internship; or (3)
dismiss the teacher intern from the program. The committee then reviews and
evaluates the Teacher Development Specialist’s and the principal’s
recommendations, the teacher intern’s work during the program, and the teacher
intern’s certification exams before making the final decision.

Appellant began experiencing performance issues early in her internship.
Woods placed appellant on a Prescriptive Plan for Assistance (PPA)1 in an effort to
improve appellant’s performance by providing additional resources and support.
Woods noted numerous specific areas where appellant needed to improve her
performance. Appellant, however, did not improve her performance in the
specified areas. Indeed, on March 12, 2015, Morgan notified appellant that her
standing with the alternative certification program was changed from “good” to
“poor” because of appellant’s “unsatisfactory progress towards State certification.”
Morgan further notified appellant of specific areas where appellant needed to
improve for removal of her “poor” standing. While appellant alleged in her
petition that Woods told her that she had successfully completed the PPA,
appellant does not cite any documentary evidence in the appellate record
supporting that allegation. Instead, the evidence in the record indicates that at the

1
HISD explains the function of a PPA as follows:
An appraiser shall create a [PPA] for any teacher whose job performance becomes
a concern as evidenced through walk-throughs and observations aligned to the
instructional practice rubric. Teachers shall acknowledge receipt of the PPA
within ten working days from receipt of the plan.
The PPA form shall outline the focus areas for development, specific
development activities and action steps, and expected changes in behavior or
performance outcomes.
The PPA shall be considered complete when the teacher’s performance exhibits
the expected change as noted by the appraiser.

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end of the 2014-2015 academic year, Morgan believed appellant had not shown the
required level of improvement and recommended that appellant should not receive
full state certification and instead be offered an extension of the teacher intern
program.

Appellant’s alternative-certification committee included Morgan, Natalie
Rubio, Ivannia Recio, Viviana Lopez, and Sybil Mason. The committee
recommended that appellant not be fully certified, and that she instead be offered
an internship extension. On June 4, 2015, the committee sent appellant a letter
notifying appellant of their decision. On August 21, 2015, HISD notified appellant
that, “[t]o ensure your success at the beginning of your second year extension, you
are being placed on a targeted, 90-day extension plan with the Effective Teacher
Fellowship ACP.” The notification further informed appellant of the requirements
she had to meet and the deadline by which she had to achieve them. The
notification letter concluded by informing appellant that “[c]ontinued failure to
meet performance expectations will result in program exit without certification.”
Appellant signed that she had received the notification letter.

On June 25, 2015, appellant filed a grievance pursuant to HISD’s employee
grievance policies. Appellant’s grievance concerned her frustration with Woods’
and Morgan’s multiple requests for appellant to revise her lessons plans. Appellant
complained that their requests violated HISD’s policy governing the imposition of
excessive paperwork requirements on classroom teachers. Appellant also
complained that she had received contradictory instructions during her teacher
internship and further complained about Morgan recommending that the
alternative-certification committee not certify appellant at the end of the 2014-
2015 school year. Appellant did not, however, include any complaint in her
grievance that she had experienced discrimination based on her race or that she had

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experienced retaliation of any kind.

Appellant accepted the internship extension and returned to Lewis
Elementary. Lewis Elementary had a new principal, Marlen Martinez, for the
2015-2016 academic year. Martinez identifies as Hispanic. As a new principal,
Martinez observed and evaluated all of the Lewis Elementary teachers, including
appellant.

Martinez observed appellant’s performance numerous times and offered
written feedback regarding her observations. Martinez determined that appellant
demonstrated weaknesses in several appraisal areas. As a result, Martinez placed
appellant on a PPA on October 19, 2015. As part of the PPA, Martinez continued
to observe appellant’s classroom performance and offered additional written
feedback in an effort to help appellant improve. As appellant’s 90-day teacher
internship moved toward completion, Martinez observed appellant a final time on
December 1, 2015. Appellant earned the lowest possible score on all instructional
areas Martinez observed.

Viviana Lopez, who identifies as Hispanic, served as appellant’s Teacher
Development Specialist during appellant’s internship extension. Lopez worked
with appellant and observed appellant teaching to assist appellant in improving her
teaching performance. Lopez determined that appellant struggled in several
critical teaching areas. In November 2015, appellant’s performance was below the
alternative-certification program’s minimum requirements for certification. In
addition, Lopez scored appellant as below average in all instructional and
development criteria.

Appellant’s alternative-certification committee during the 2015-2016
academic year consisted of Natalie Rubio, Bonnie Schumacher, Lopez, and Sybil
Mason. The committee reviewed the relevant paperwork and determined that
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appellant had “failed to improve her performance scores as required and dismissed
her from the Program.” The alternative-certification program notified appellant of
the decision in a December 18, 2015 letter. The letter further notified appellant
that her probationary teaching certificate had not expired and that she had “30
calendar days from today to enroll in another [alternative certification program]
and present a Statement of Eligibility Form to Antanita Harvey.” Finally, the letter
notified appellant of the deadline for the submission of proof that she had enrolled
in a new alternative-certification program. When appellant failed to meet that
initial deadline, she was given a ten-day extension to submit the required
paperwork.

Appellant did not notify HISD that she had enrolled in a new alternative-
certification program. As a result, appellant’s probationary teaching certificate
expired on January 17, 2016. Since she no longer had a valid teaching certificate,
HISD could not employ appellant as a full-time teacher of record. HISD
transferred appellant to the “Associate Teacher Pool” effective January 28, 2016.
HISD further notified appellant that this change would affect her “pay, benefits and
leave time.”

On January 7, 2016, Fields filed a Charge of Discrimination with the Equal
Employment Opportunity Commission and the Texas Workforce Commission.
Appellant alleged that HISD discriminated against her on the basis of her age and
race in violation of Title VII of the Civil Rights Act (“Title VII”), the Age
Discrimination in Employment Act, and Chapter 21 of the Texas Labor Code.
Appellant’s discrimination complaint states in its entirety:

I began my employment with the school district on August 2014 and I
currently hold a Teacher position earning a yearly salary of $49,500. I
never received any verbal counseling or write up during my tenure.
On October 12, 2015, I was placed on a Prescriptive Plan for

6
 Assistance (PPA) with no prior support or end date. I was given
incorrect feedback on areas needed to improve or to fulfill my PPA
requirements. After being placed on the PPA, I received a public
reprimand which disclosed student data. On December 15, 2015, I
was reprimanded for not submitting my GT recommendations in a
timely manner. Rumor in the school is that the Principal is trying to
hire mostly Hispanic teachers and get rid of the African American
personnel.
I believe I am being discriminated against because of my race, Black
in violation of Title VII of the Civil Rights Act of 1964, as amended
and my age in violation under the Age Discrimination in Employment
Act.
Appellant checked two boxes on her complaint regarding what she alleged the
discrimination was based on: (1) Race and (2) Age. The EEOC and the TWC
dismissed appellant’s charge and issued appellant a right to sue letter.

Appellant filed suit against HISD alleging that HISD discriminated against
her on the basis of her race and retaliated against her because she had opposed a
discriminatory practice. HISD filed an answer and a plea to the jurisdiction.
Among other defenses, HISD alleged that appellant had failed to exhaust her
administrative remedies and that the trial court lacked subject matter jurisdiction
because appellant could not establish a prima facie claim under Chapter 21 of the
Texas Labor Code.

Appellant’s attorneys moved to withdraw less than six months after
appellant filed suit. According to the affidavit attached to the motion, appellant
“requested termination of the attorney-client relationship on April 9, 2018. After
reviewing her letter, it was determined that further representation was unfeasible.”
A new attorney, Landon Keating, took over as appellant’s attorney.

To comply with the trial court’s docket control order, HISD set the oral
hearing on HISD’s plea to the jurisdiction on December 3, 2018. In early

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November, appellant and HISD executed and filed a Rule 11 agreement in which
(1) HISD agreed that it would not oppose appellant’s planned motion for
continuance requesting a 90-day extension of all remaining deadlines in the trial
court’s docket control order, and (2) appellant agreed that she would not seek to
delay the December 3, 2018 hearing on HISD’s plea to the jurisdiction. On
November 7, 2018, appellant filed her unopposed motion for continuance. In the
motion, Keating notified the trial court that he intended to withdraw as appellant’s
counsel and he asked the trial court for a 90-day continuance of the remaining
docket control deadlines to give appellant time to prepare for trial. Keating also
notified the trial court that appellant consented to the continuance.

On November 12, 2018, appellant sent Keating a letter accusing him of
incompetence, negligence, fraud, sabotage, and an “indecorous advance” toward
her. Appellant’s letter continued that she was in agreement with Keating’s motion
to withdraw and that she was “requesting [Keating] file a Motion for Withdrawal
of Counsel and appropriately describe our reasons for dissolving our attorney-
client relationship (Irreconcilable differences).” Appellant also demanded that
Keating refund $2,000 out of the original $4,000 retainer she had paid. Keating
filed a motion to withdraw the same day, 21 days before the scheduled hearing on
HISD’s plea to the jurisdiction. In his motion to withdraw, Keating notified the
trial court that appellant had terminated him and asked Keating to file a motion to
withdraw. Keating, in compliance with appellant’s wishes, also informed the trial
court that a “fundamental and unalterable disagreement over the method and
strategy employed in prosecuting [appellant’s] case” had developed. Keating
stated that the disagreement affected “the very basis of the attorney-client
relationship and impairs both counsel’s ability to exercise his best professional
judgment and the [appellant’s] right to the effective assistance of counsel.” The

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trial court granted the motion on November 21, 2018, twelve days before the
scheduled hearing on HISD’s plea to the jurisdiction.

On November 15, 2018, HISD filed its plea to the jurisdiction to which it
attached extensive evidence, including the transcript from appellant’s deposition.
In this plea, HISD expanded on the arguments initially raised in the plea to the
jurisdiction it had included in its original and amended answers. Appellant, now
acting pro se, filed a response to the plea. Appellant also filed, in violation of the
parties’ Rule 11 agreement, a motion to continue the oral hearing on HISD’s plea
to the jurisdiction. Appellant attached her letter demanding Keating’s withdrawal
from the case to her motion. In that letter, appellant notified Keating that she was
in agreement with his motion to withdraw. The trial court held the oral hearing on
HISD’s plea to the jurisdiction as scheduled. The trial court subsequently granted
the plea and dismissed appellant’s claims with prejudice on December 11, 2018.
This appeal followed.

ANALYSIS

Appellant raises four issues on appeal which she addressed together as a
single issue challenging the trial court’s dismissal of her claims against HISD and
the trial court’s decision allowing appellant’s counsel to withdraw. We address
each argument raised within appellant’s consolidated issue in turn.

I. Standard of review for pleas to the jurisdiction

As a governmental unit, HISD is immune from suit absent an express waiver
of governmental immunity. See Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 770 (Tex. 2018) (“Governmental units, including school districts, are
immune from suit unless the state consents.”). The TCHRA provides a limited
waiver of that immunity when a governmental unit has discriminated in any

9
manner against any employee on the basis of race, gender, or other protected
classification, or has retaliated against the employee for opposing or complaining
of such discrimination. Harris Cty. Hosp. Dist. v. Parker, 484 S.W.3d 182, 191
(Tex. App.—Houston [14th Dist.] 2015, no pet.). The TCHRA’s immunity waiver
applies only if the plaintiff alleges a violation within the scope of the statute.
Clark, 544 S.W.3d at 770; Parker, 484 S.W.3d at 191. If the plaintiff does not
sufficiently plead facts that state a claim under the TCHRA, the governmental unit
may challenge the pleadings with a plea to the jurisdiction. Parker, 484 S.W.3d at
191. The governmental unit may also use a plea to the jurisdiction to challenge the
existence of jurisdictional facts. Id.

Immunity from suit may be asserted through a plea to the jurisdiction or
other procedural vehicle, such as a motion for summary judgment. Clark, 544
S.W.3d at 770. A jurisdictional plea may challenge the pleadings, the existence of
jurisdictional facts, or both. Id. When a jurisdictional plea challenges the
pleadings, we determine if the plaintiff has alleged facts affirmatively
demonstrating subject-matter jurisdiction. Id. If, however, the plea challenges the
existence of jurisdictional facts, we move beyond the pleadings and consider
evidence when necessary to resolve the jurisdictional issues, even if the evidence
implicates both subject-matter jurisdiction and the merits of a claim. Id.

Here, HISD’s plea challenged the existence of jurisdictional facts with
supporting evidence. In that situation, the standard mirrors that of a traditional
summary judgment. Id. at 771. If the plaintiff’s factual allegations are challenged
with supporting evidence necessary to consideration of the plea to the jurisdiction,
to avoid dismissal, the plaintiff must raise at least a genuine issue of material fact
to overcome the challenge to the trial court’s subject matter jurisdiction. Id. When
the evidence submitted to support the plea implicates the merits of the case, we

10
take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor. Id. In doing so,
however, we cannot disregard evidence necessary to show context, and we cannot
disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors
could not. Id.

We review a trial court’s disposition of a jurisdictional plea de novo. Suarez
v. City of Texas City, 465 S.W.3d 623, 632 (Tex. 2015).

II. Appellant met the exhaustion of administrative remedies requirement.

Appellant initially argues that, to the extent the trial court granted HISD’s
plea to the jurisdiction based on an alleged failure to exhaust administrative
remedies, it erred because she complied with that requirement before filing suit.
While HISD does not dispute appellant timely filed a Charge of Discrimination, it
still argues that she did not exhaust administrative remedies because appellant filed
her complaint prior to her alleged termination by HISD and also because she did
not mention discriminatory termination or retaliation in her Charge of
Discrimination.

A lawsuit under the TCHRA is limited to the claims made in the charge or
complaint filed with TWC and factually related claims that can reasonably be
expected to grow out of the TWC’s investigation. Alief Indep. Sch. Dist. v.
Brantley, 558 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied).

The legislature has mandated that all statutory prerequisites to suit are
jurisdictional requirements in suits against governmental entities. Prairie View A
& M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012); Metro. Transit Auth. of
Harris Cty. v. Douglas, 544 S.W.3d 486, 492 (Tex. App.—Houston [14th Dist.]

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2018, pet. denied). The TCHRA requires a person claiming to be aggrieved by an
unlawful employment practice to file a charge with the TWC or the EEOC within
180 days of the alleged unlawful employment practice. Tex. Lab. Code
§ 21.201(a), (g). Thus, filing a timely charge with the TWC or the EEOC is
generally a jurisdictional prerequisite to filing suit for unlawful employment
practices against a governmental entity. Chatha, 381 S.W.3d at 511–12, 514; see
also Douglas, 544 S.W.3d at 492. A plaintiff’s lawsuit under the TCHRA will be
limited in scope to only those claims that she included in a timely administrative
charge and to factually-related claims that could reasonably be expected to grow
out of the agency’s investigation of the claims stated in the plaintiff’s charge. City
of Sugar Land v. Kaplan, 449 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.]
2014, no pet.). Additionally, in Douglas, this court determined that a plaintiff such
as appellant is not required to file a new Charge of Discrimination to allege
discriminatory discharge or retaliation if those claims are factually related to
claims that were previously included in a Charge of Discrimination. 544 S.W.3d at
498–99 (citing Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981)).
Because appellant’s discriminatory discharge and retaliation claims are factually
related to the claims she made in her Charge of Discrimination, we conclude that
she was not required to file an additional Charge of Discrimination on those claims
in order to exhaust administrative remedies. Douglas, 544 S.W.3d at 499.

III. The trial court did not err when it granted HISD’s plea to the
jurisdiction.

A. Appellant’s discrimination claim

Appellant argues that she pleaded the elements of a prima facie case of
discrimination, and once HISD produced evidence that its actions were non-
discriminatory, she “showed that [HISD’s] claims were pretextual.” HISD

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responds that, even if appellant established a prima facie case of racial
discrimination, it rebutted the presumption of discrimination by producing
evidence of legitimate non-discriminatory reasons for its decisions regarding
appellant’s employment, and appellant did not meet her burden to then present
evidence that HISD’s reasons were pretextual. We agree with HISD.

Discrimination cases under the TCHRA can be established with either direct
or circumstantial evidence. Clark, 544 S.W.3d at 782. The three-part burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), enables an employee to establish discrimination with circumstantial
evidence. Clark, 544 S.W.3d at 782. If the employee can establish a prima facie
case of discrimination, a rebuttable presumption of discrimination arises, which
can alone sustain a discrimination claim. Id. The employer, however, can defeat
this presumption merely by producing evidence of a legitimate, non-discriminatory
reason for the disputed employment action. Id. Once rebutted, the presumption
disappears, and an employee lacking direct evidence cannot prove a statutory
violation without producing evidence that the employer’s stated reason is false and
a pretext for discrimination. Id. In both direct and circumstantial evidence cases,
the burden of persuasion always remains with the employee. Id. To prevail on a
claim of discrimination in the absence of direct evidence, the plaintiff must
establish that she (1) is a member of a protected class, (2) was qualified for her
position, (3) was subject to an adverse employment decision, and (4) was treated
less favorably than similarly situated persons not in the protected class. Tooker v.
Alief Indep. Sch. Dist., 522 S.W.3d 545, 551 (Tex. App.—Houston [14th Dist.]
2017, no pet.).

Assuming without deciding that appellant has established a prima facie case
of discrimination with regard to HISD’s decisions impacting her employment, we

13
conclude that HISD produced evidence of legitimate, nondiscriminatory reasons
for its actions thereby rebutting any presumption of discrimination. This evidence,
summarized above, established non-discriminatory, performance-based reasons for
HISD’s decisions impacting appellant’s employment. Once HISD presented
evidence rebutting the prima facie case, appellant was required to present sufficient
evidence of pretext to survive HISD’s jurisdictional plea. See Clark, 544 S.W.3d
at 783. In her brief, appellant points out several documents that she contends met
her burden.

The first document is a September 8, 2016 Field Supervisor/Coach
Observation Report completed at Hunters Glen school in Fort Bend Independent
School District. It states, in part, “Great Job, Ms. Fields! Your classroom
management is very good and you have incorporated some excellent techniques to
keep students engaged.” We conclude this report, dated months after appellant’s
internship at HISD ended, and for her work at a different school in another school
district, does not establish that HISD’s reasons were pretextual, or that
discrimination was a motivating factor in HISD’s actions toward appellant. See
Brantley, 558 S.W.3d at 760–61 (“Brantley not only failed to refer the trial court to
any evidence in support of this argument, but also, he has not shown how such
evidence establishes pretext or that gender or race was a motivating factor in his
termination.”).

The second group of documents cited by appellant are alleged statements
from some of her fellow teachers at Lewis Elementary. The first, an unsigned
letter emailed to appellant, contains the conclusory statement that the author
“experienced harsh discriminatory, malicious, and fabricated leadership” during
the 2015-2016 academic year. The second is another unsigned letter from the
same author that reported actions by principal Martinez that the letter’s author

14
believed demonstrated discriminatory treatment against African-American teachers
at Lewis Elementary. Neither of these unsworn letters establish a fact-issue on
whether HISD’s stated reasons for its treatment of appellant were pretextual or that
discrimination was a motivating factor. See Thanh Le v. North Cypress Med. Ctr.
Operating Co., Ltd., No. 14-16-00314-CV, 2017 WL 1274241, at *6 (Tex. App.—
Houston [14th Dist.] April 4, 2017, no pet.) (mem. op.) (“Le’s unsworn assertions
in his response that he suffered economic harm or detriment as a result of North
Cypress’s lawsuit are merely conclusory statements that do not constitute
competent summary judgment evidence.”); Hou-Tex, Inc. v. Landmark Graphics,
26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“To be
considered by the trial or reviewing court, summary judgment evidence must be
presented in a form that would be admissible at trial.”). The remainder of the
statements are short emails that state the senders either transferred away from
Lewis Elementary or resigned from HISD. None cite discriminatory conduct as
the reason for their actions and thus do not support appellant’s argument that
HISD’s proffered reasons are pretextual.

We conclude that HISD presented evidence rebutting the presumption of
discrimination in this case by producing evidence of legitimate non-discriminatory
reasons for its decisions regarding appellant and that appellant did not meet her
burden to present jurisdictional evidence raising a fact-issue on the question
whether HISD’s stated reasons were pretextual. As a result, we conclude that the
trial court did not err when it granted HISD’s plea to the jurisdiction on appellant’s
discrimination claim.

B. Appellant’s retaliation claim

We turn next to appellant’s retaliation claim. “To establish a prima facie
case of retaliation, an employee must show: (1) she engaged in an activity

15
protected by the TCHRA, (2) she experienced a material adverse employment
action, and (3) a causal link exists between the protected activity and the adverse
action.” Clark, 544 S.W.3d at 782. If the defendant presents jurisdictional
evidence rebutting the prima facie case, the presumption disappears and there is no
evidence of illegal intent. Id. at 785. At that point, the burden shifts to the plaintiff
to come forward with evidence showing either (1) the stated reasons were a pretext
for discrimination, or (2) even though the reasons were true, discrimination was
another “motivating” factor. See Clark, 544 S.W.3d at 783–84; Parker, 484
S.W.3d at 200. When, as here, the jurisdictional evidence rebuts the prima facie
case, sufficient evidence of pretext must exist to survive the jurisdictional plea.
See Clark, 544 S.W.3d at 783.

Appellant asserts that she established a prima facie retaliation claim against
HISD. Appellant continues that when conducting a jurisdictional analysis in a
retaliation case, we are limited to examining whether the plaintiff has shown a
prima facie case. Appellant cites KIPP, Inc. v. Whitehead, 446 S.W.3d 99, 112–13
(Tex. App.—Houston [1st Dist.] 2014, pet. denied) in support of this proposition.
While KIPP certainly states that proposition, the Texas Supreme Court expressly
disapproved of this holding in Clark. See Clark, 544 S.W.3d at 784, n.105 (“We
thus disapprove of those cases limiting the jurisdictional inquiry to the prima-facie-
case element of a TCHRA circumstantial-evidence case.”). Thus, all elements of a
circumstantial-evidence retaliation claim are jurisdictional, and appellant was
required to come forward with evidence that HISD’s stated reasons were
pretextual. Clark, 544 S.W.3d at 783 (“[I]f, as here, jurisdictional evidence rebuts
the prima facie case, the entire McDonnell Douglas framework is fully implicated,
and sufficient evidence of pretext and causation must exist to survive the
jurisdictional plea.”). Appellant has not pointed out on appeal any evidence that

16
HISD’s reasons for its actions toward her were pretextual. As a result, we
conclude that she has not met her jurisdictional burden and the trial court did not
err when it granted HISD’s plea to the jurisdiction on appellant’s retaliation claim.

III. The trial court did not abuse its discretion when it granted appellant’s
motion for continuance, when it allowed appellant’s attorney to
withdraw, nor when it denied her motion for continuance of the plea to
the jurisdiction hearing.

Next, appellant argues that the trial court abused its discretion when it (1)
granted her own motion for continuance of all remaining docket-control deadlines;
(2) granted her counsel’s motion to withdraw, and (3) denied her motion for
continuance of the plea to the jurisdiction hearing. We review each for an abuse of
discretion. In re C.F., 565 S.W.3d 832, 843 (Tex. App.—Houston [14th Dist.]
2018, pet. denied). We turn first to the trial court’s granting of appellant’s motion
for continuance of all docket-control deadlines.

Appellant filed an unopposed motion for continuance on November 7, 2018.
At that time HISD’s plea to the jurisdiction was already set for oral hearing on
December 3, 2018. In the motion, appellant notified the trial court that her counsel
intended to withdraw from the case and she explained to the trial court that she was
asking for “additional time to properly review the case file, conduct any additional
discovery, and prepare for trial.” Appellant did not ask the trial court for more
time because she wished to retain new counsel. Appellant then asked the trial
court to “enter a new Docket Control Order extending all deadlines by at least 90
days.” The motion specifically states that appellant “consents to this continuance.”
Appellant’s motion addressed only pending docket-control deadlines, it did not ask
for an extension of any approaching hearings on motions such as HISD’s pending
plea to the jurisdiction. The trial court granted the motion. Because the trial court
granted appellant the relief she requested, she cannot now complain about it on

17
appeal. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (stating
that “a party cannot complain on appeal that the trial court took a specific action
that the complaining party requested.”).

Next, appellant complains that the trial court abused its discretion when it
granted her second attorney’s motion to withdraw as her counsel. An attorney may
withdraw from representing a party only upon written motion for good cause
shown. Tex. R. Civ. P. 10. Appellant does not dispute that Keating met both
requirements found in Rule 10. Indeed, she notified the trial court that she had
terminated Keating, her second attorney, due to malpractice and unethical
behavior. In addition, Rule 1.15(a) of the Texas Rules of Professional Conduct
required Keating to withdraw from representing appellant because she had
terminated his representation. See Tex. Disciplinary Prof’l Conduct R. 1.15(a)(3),
reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G, app. A (Tex. State Bar R. art.
X, § 9) (requiring lawyer to withdraw if “the lawyer is discharged, with or without
cause”). While ordinarily an attorney may not withdraw unless the withdrawal can
be accomplished without a materially adverse effect on the client’s interests, that
limitation did not apply to Keating because paragraph (b) provides an exception
when withdrawal is required by paragraph (a) of the rule. Id. Because Keating
was required to withdraw from representing appellant, we cannot say that the trial
court abused its discretion when it granted his motion and permitted him to do so.

Finally, appellant argues that the trial court abused its discretion when it
denied her motion for continuance of the plea to the jurisdiction hearing.2

2
There is no order denying appellant’s motion for continuance of the hearing on HISD’s
plea to the jurisdiction in the appellate record. Because it is undisputed that the hearing occurred
as scheduled on December 3, 2018, we conclude that the trial court implicitly denied appellant’s
motion when the trial court proceeded with the hearing. See Munz v. Schrieber, No. 14-17-
00687-CV, 2019 WL 1768590, at *10 (Tex. App.—Houston [14th Dist.] April 23, 2019, no pet.)
(mem. op.).

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Appellant used a pre-printed form that included check boxes and blanks. In her
motion, appellant checked the boxes notifying the trial court that she was asking
for the continuance because (1) she needed “time to get legal advice and get ready
to represent myself at the hearing;” and (2) she “was not given adequate and
reasonable notice of the hearing, as I was made aware of the hearing on 11/6/2018.
The attorney of record for me was terminated due to mal-practice and unethical
behavior; however, I have requested my entire case file from him, but I have not
received it. Therefore I am requesting a continuance so I can prepare for the
hearing.” Appellant did not, however, check the box asking the trial court for a
continuance because she needed “time to hire a lawyer.” Appellant also did not
verify the motion or support it with an affidavit.

As mentioned above, appellant and HISD signed a Rule 11 agreement in
which HISD agreed it would not oppose appellant’s motion for continuance
seeking an extension of the deadlines contained in the trial court’s docket control
order and appellant agreed she would not seek a delay in the previously-scheduled
hearing on HISD’s plea to the jurisdiction. Appellant has not challenged that Rule
11 agreement on appeal. Therefore, because there was a valid Rule 11 agreement
in place in which appellant agreed that she would not seek a continuance of the
oral hearing on HISD’s plea to the jurisdiction, we cannot say that the trial court
abused its discretion when it impliedly denied appellant’s motion for continuance.
See Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007) (stating that trial
courts have a duty to enforce Rule 11 agreements); City of San Antonio v. En
Segundo, Ltd., 227 S.W.3d 237, 241 (Tex. App.—San Antonio 2007, no pet.)
(stating that trial court did not abuse discretion when it denied motion to continue
hearing that had been set pursuant to Rule 11 agreement).

Even without the Rule 11 agreement, we conclude that the result would be

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the same. Rule 251 requires, among other things, that motions for continuance be
“supported by [an] affidavit.” Tex. R. Civ. P. 251. Generally, when a movant fails
to file a written motion for continuance supported by an affidavit, we presume that
the trial court did not abuse its discretion when it denied the motion. Villegas v.
Carter, 711 S.W.2d 624, 626 (Tex. 1986). We do not, however, apply that
presumption to a pro-se movant who, without fault, has experienced the
withdrawal of counsel. Id. That is not the situation here.

When exercising its discretion over whether to grant or deny a continuance
based on withdrawal of counsel, a trial court may consider the entire procedural
history of the case. In re Harrison, 557 S.W.3d 99, 119 (Tex. App.—Houston
[14th Dist.] 2018, pet. denied). Previously Keating had notified the trial court that
he sought to withdraw from the case because there was a fundamental
disagreement between appellant and himself regarding the method and strategy to
be employed in appellant’s case. Keating also notified the trial court that appellant
“has substantially failed to meet her financial obligations to” him and had asked to
switch to a contingent fee method for compensating Keating. Appellant does not
dispute that she and Keating fundamentally disagreed about the best method to
proceed with her case. Appellant also does not deny that there was a disagreement
regarding the fees to be paid for Keating’s legal services or her effort to convert
her agreement with Keating to a contingency-fee basis. Finally, the trial court
could consider the fact that appellant’s original counsel withdrew from
representing appellant because “the attorney-client relationship [had] become
unworkable.” Based on this, we cannot conclude that the trial court abused its
discretion when it impliedly denied appellant’s motion for continuance. See id. at
119–20 (concluding that trial court did not abuse discretion when it denied motion
for continuance because movant had not demonstrated that her counsel’s

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withdrawal was through no fault of movant’s).3

We overrule appellant’s arguments challenging the trial court’s application
of its discretion.

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s
order dismissing appellant’s lawsuit against HISD.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Christopher, Wise, and Zimmerer.

3
In the final paragraph of appellant’s brief appellant states that “Judge Burke erred in
refusing to allow plaintiff to object on the record. The judge also erred in refusing to accept
plaintiff’s motion for continuance on the plea to the jurisdiction and her accompanying exhibits.”
We conclude that appellant has presented nothing for our review in this paragraph. First, the
continuance motion and exhibits appear in the appellate record. Second, with respect to the first
sentence, appellant has not adequately set forth the alleged error, has not provided any type of
legal argument supported by citations to the record or to legal authority. Accordingly, we
conclude that she has waived any alleged error due to inadequate briefing. Tex. R. App. P.
38.1(i); Barnhart v. Morales, 459 S.W.3d 733, 745, n.4 (Tex. App.—Houston [14th Dist.] 2015,
no pet.).

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