NUMBER 13-20-00305-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PHARR-SAN JUAN-ALAMO
INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
MELBA LOZANO, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides
Appellant Pharr-San Juan-Alamo Independent School District (School District)
appeals from the denial of its motion for summary judgment on appellee Melba Lozano’s
employment discrimination claim alleging constructive discharge based on disability. See
TEX. LAB. CODE ANN. § 21.051(1). By its first issue, the School District argues that
(1) Lozano’s claim is necessarily limited by the allegations contained in her charge of
discrimination filed with the Texas Workforce Commission (TWC), and (2) those
allegations are insufficient as a matter of law to establish a claim for constructive
discharge. By its second issue, the School District argues that Lozano’s failure to make
her charge under oath is a jurisdictional bar to her claim. We affirm.
I. BACKGROUND
This is the second interlocutory appeal we have considered in this case. See
Pharr-San Juan-Alamo Indep. Sch. Dist. v. Lozano, No. 13-16-00408-CV, 2018 WL
655527, at *4 (Tex. App.—Corpus Christi–Edinburg Jan. 31, 2018, pet. denied) (mem.
op.) (“PSJA I”). As detailed in PSJA I, the genesis of Lozano’s discrimination claim was
her demotion from high school principal to middle school assistant principal following the
2013-2014 school year. Id. at *1. The parties dispute the reason for Lozano’s demotion.
According to Lozano, her demotion was motivated by the possibility that her cancer
had returned. Lozano was originally diagnosed with cancer during the 2012-2013 school
year, and she missed part of the 2013 spring semester undergoing treatment. Id. The
following school year, Lozano’s physician told her that her cells were “abnormal,” implying
that her cancer had returned. Id. Lozano claims she shared this news with the assistant
superintendent, and afterwards, the School District began unfairly scrutinizing her job
performance. Id. At the conclusion of the 2013-2014 school year, the superintendent
informed Lozano that she was being reassigned to serve as an assistant principal at a
middle school for the upcoming school year. Id. During this conversation, the
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superintendent allegedly told Lozano that she was being removed because “he needed
a principal on campus” and Lozano had taken too much sick leave in the past.
The School District says it demoted Lozano based strictly on her job performance.
The summary judgment record shows that Lozano’s high school was not meeting state
accountability measures and that Lozano received several reprimands during her tenure
as principal. Lozano counters that other principles in similar situations were not demoted
and that her reprimands were largely pretextual.
Just prior to her demotion, Lozano accepted a “Two Year Certified Administrator
Term Contract” for the 2014-2015 and 2015-2016 school years from the School District.
The contract contains the following provision: “[Lozano] understands that the [School]
District has the right to assign or reassign [Lozano] to positions, duties, or additional duties
and to make changes in responsibilities, work, or transfers, at any time during this
contract.” At the time Lozano was demoted, the School District informed her that she
would maintain her pay grade for the upcoming 2014-2015 school year but that her pay
for the 2015-2016 school year would be based on her work assignment at that time. Thus,
if she remained in the position of middle school assistant principal for the 2015-2016
school year, her pay would decrease in accordance with her position.
Shortly after receiving notice of her reassignment, Lozano filed an internal
grievance with the School District alleging that her demotion was based on disability
discrimination and requesting that she be reinstated as a principal for the 2015-2016
school year so that she would not realize a pay reduction. The internal grievance process
had three levels, and Lozano’s request was denied at each level.
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Lozano accepted her reassignment and served as an assistant middle school
principal during the 2014-2015 school year. Id. According to Lozano, her working
conditions did not improve. Lozano alleges that the School District continued to unfairly
scrutinize her job performance, and she felt like the School District was “waiting for [her]
to make a mistake” so that it could terminate her. During her deposition, Lozano described
an incident where she believes the superintendent intentionally embarrassed her in front
of parents and other administrators. She also described an incident where she felt like a
supervisor was trying to “intimidate” her. At the conclusion of the 2014-2015 school year,
Lozano resigned. On the resignation form she submitted to the School District, Lozano
stated the reason for her resignation was “[d]iscrimination due to illness (demotion).”
Approximately six months prior to her resignation, Lozano filed a charge of
discrimination with the TWC alleging that she was demoted based on her disability. Id.
Shortly after her resignation, Lozano filed a second charge of discrimination, alleging as
follows:
I was constructively discharged from [the School District] in that I was not
offered a principal contract. My discharge was motivated by unlawful
disability discrimination. I am a cancer survivor who missed work for routine
monitoring and treatment, including continuous visits to M.D. Anderson. I
feel [the School District’s] refus[al] to extend a principal contract was also
retaliation for missing work as a result of my cancer treatment.
Id. at *2.
The TWC dismissed both of Lozano’s charges, and she filed suit. Id. After the trial
court denied the School District’s plea to the jurisdiction, we concluded in PSJA I that
Lozano’s first charge, filed more than six months after her demotion, was untimely and
could not otherwise be saved by the continuing violation doctrine. Id. at *4. Accordingly,
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we rendered a judgment dismissing that claim for want of jurisdiction. Id. at *6.
Conversely, we determined that the trial court had subject matter jurisdiction over
Lozano’s constructive discharge claim. Id. In doing so, we held that the second charge
was timely filed with the TWC, Lozano’s failure to make the second charge under oath
was not a jurisdictional bar, and Lozano had presented a prima facie case of constructive
discharge. Id. at *4, 5. Finally, drawing on United States Supreme Court precedent
discussing the permissible scope of hostile work environment claims and other federal
precedent “recognizing the similarity between a hostile environment and a constructive
discharge,” we rejected the School District’s argument that “Lozano cannot rely on the
otherwise time-barred discrete act of her 2014 demotion to support her constructive
discharge claim.” Id. at *6 (citing Nat’l R.R. Passenger Corp, v. Morgan, 536 U.S. 101,
119 (2002); Univ. of Tex. M.D. Anderson Cancer Ctr., 54 Fed. Appx. 404 n.4 (5th Cir.
2002)).
On remand, the School District filed a combined traditional and no-evidence motion
for summary judgment, raising a new argument for limiting the scope of Lozano’s
constructive discharge claim and contending that such claim could not support a
constructive discharge as a matter of law. The School District also reasserted its
argument that Lozano’s failure to make the second charge under oath constitutes a
jurisdictional bar to her claim. The trial court denied the motion, and this interlocutory
appeal ensued.1
1The School District made additional arguments in its motion for summary judgment that it has not
asked us to review on appeal.
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II. STANDARD OF REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that
affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
Air Control Bd., 852 S.W.2d at 446).
Governmental immunity from suit protects political subdivisions of the State like
the School District from lawsuits for money damages and deprives a trial court of subject
matter jurisdiction over the plaintiff’s claims. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008). To prevail on a claim of immunity, the
governmental defendant “may challenge the pleadings, the existence of jurisdictional
facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). When a defendant challenges the existence of jurisdictional facts, the analysis
“mirrors that of a traditional summary judgment.” Tex. Dep’t of Transp. v. Lara, 625
S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 634 (Tex. 2012)).
The Texas Commission on Human Rights Act (TCHRA) prohibits employers from
discriminating against employees based on disability. TEX. LAB. CODE ANN. § 21.051(1).
Because the TCHRA was modeled after federal statutes, Texas courts are guided by
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federal precedent interpreting those statutes. Lara, 625 S.W.3d at 52 (citing Garcia, 372
S.W.3d at 634).
The TCHRA waives a governmental employer’s immunity from suit for violations
under the act. Alamo Heights, 544 S.W.3d at 770. However, a person must first exhaust
the TCHRA’s administrative remedies prior to filing suit, and failure to do so is a
jurisdictional defect that deprives the trial court of subject matter jurisdiction. City of Waco
v. Lopez, 259 S.W.3d 147, 156 (Tex. 2008). This includes filing a timely charge of
discrimination with the TWC. See TEX. LABOR CODE ANN. § 21.202; Lopez, 259 S.W.3d at
156.
Relatedly, “[a] lawsuit under the [TCHRA] will be limited in scope to only those
claims that were 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 charge.” El Paso County v. Vasquez, 508 S.W.3d 626, 635 (Tex. App.—El
Paso 2016, pet. denied) (citing City of Sugar Land v. Kaplan, 449 S.W.3d 577, 581–82
(Tex. App.—Houston [14th Dist.] 2014, no pet.); Williams–Pyro, Inc. v. Barbour, 408
S.W.3d 467, 475–76 (Tex. App.—El Paso 2013, pet. denied)). Although a charge should
be adequate to put the employer on notice of the existence and nature of the claims
against it, courts should construe the charge with “utmost liberality,” recognizing, as here,
that charges are often written by laypersons. See Santi v. Univ. of Tex. Health Sci. Ctr. of
Hous., 312 S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (quoting
Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.—Texarkana 2008,
pet. denied)); Preston v. Tex. Dep’t of Fam. & Protective Servs., 222 F. App’x 353, 356–
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57 (5th Cir. 2007) (per curiam) (quoting Price v. Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th
Cir. 1982)). Thus, in striking the appropriate balance between these two principles, the
Fifth Circuit has explained that an employment discrimination suit “may be based, not only
upon the specific complaints made by the employee’s initial [TWC] charge, but also upon
any kind of discrimination like or related to the charge’s allegations, limited only by the
scope of the [TWC] investigation that could reasonably be expected to grow out of the
initial charges of discrimination.” Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th
Cir. 1983). We construe the initial charge by “look[ing] slightly beyond its four corners, to
its substance rather than its label.” Vasquez, 508 S.W.3d at 634 (quoting Pacheo v.
Mineta, 448 F.3d 783, 789 (5th Cir. 2006)).
III. ANALYSIS
A. Our Jurisdiction Over this Appeal
As a threshold matter, Lozano challenges our jurisdiction over this interlocutory
appeal. According to Lozano, our jurisdiction is based solely on the School District’s
second issue—an argument we previously rejected in PSJA I—and its insertion in an
otherwise “merits-based” motion for summary judgment was nothing more than “creative
procedural maneuvering” by the School District to invoke our interlocutory jurisdiction.
See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (stating general rule
that, absent a statutory exception, appeals may be taken only from final judgments); TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (providing a list of interlocutory orders that
may be appealed, including an order that “grants or denies a plea to the jurisdiction by a
governmental unit”). Stated differently, Lozano contends that the School District’s new
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argument challenging the merits of her claim does not implicate the trial court’s subject
matter jurisdiction, and therefore, we should disregard the School District’s recycled
second issue and dismiss the appeal for want of jurisdiction. As discussed below, we will
not revisit our holding in PSJA I; however, our jurisdiction over this interlocutory appeal
exists independently of the School District’s second issue.
“Because a statutory violation is necessary to establish an immunity waiver [under
the TCHRA], jurisdiction and the merits intertwine.” Alamo Heights, 544 S.W.3d at 783
(citing Garcia, 372 S.W.3d at 635–36). In other words, “the elements of the violation are
jurisdictional facts” that may be challenged in a plea to the jurisdiction or a motion for
summary judgment. See id. at 784; Bland, 34 S.W.3d at 554 (“The absence of subject-
matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other
procedural vehicles, such as a motion for summary judgment.”). In fact, a plaintiff’s failure
to prove an element of their claim at any point in the proceeding, even at trial, deprives
the trial court of jurisdiction. Alamo Heights, 544 S.W.3d at 785.
Consequently, we have jurisdiction over the trial court’s order denying the School
District’s “merits-based” motion for summary judgment. See id.; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014(a)(8). We deny Lozano’s request to dismiss the appeal.
B. The Scope of Actionable Conduct
By its first issue, the School District argues that Lozano’s constructive discharge
claim should be limited to the factual allegation in her charge that she was “not offered a
principal contract.” The School District characterizes this allegation as a mere “failure-to-
promote” that cannot support a constructive discharge claim. Because she failed to
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specifically mention her demotion in the second charge, the School District argues that
this discrete act should be siloed from Lozano’s constructive discharge claim, and without
it, the remainder of her claim fails as a matter of law. We disagree.
As the School District concedes in its brief, “it is undisputed that [Lozano] did not
apply for a promotion to principal.” Instead, the summary judgment record establishes
that Lozano filed multiple grievances with the School District asking to be reinstated to
her position as principal because she believed her demotion was discriminatory.
Additionally, she informed the School District in writing, approximately six weeks before
she filed her second charge with the TWC, that the reason for her resignation was
“[d]iscrimination due to illness (demotion).” Therefore, Lozano’s demotion was “factually
related” to her inartful allegation that she was “not offered a principal contract,” and we
would expect the TWC to investigate the circumstances of Lozano’s demotion as part of
her constructive discharge claim. See Vasquez, 508 S.W.3d at 635; Fellows, 701 F.2d at
451. The School District has not provided any record of the TWC’s investigation to
demonstrate otherwise.2 See Sw. Convenience Stores, LLC v. Mora, 560 S.W.3d 392,
402 (Tex. App.—El Paso 2018, no pet.) (“[I]n this case we need not speculate about the
questions that the EEOC asked and the answers given because the investigator’s notes
are included in the record.”). Moreover, unlike some other cases, Lozano has always
maintained that she was constructively discharged based on her disability; she did not
2 It is not clear from the record whether the TWC investigated Lozano’s separate charges—filed
approximately six months apart—together or successively before issuing Lozano a right to sue letter.
Regardless, the School District was certainly aware of both charges, as well as Lozano’s internal
grievances; therefore, it cannot credibly suggest that it was without notice that Lozano considered her
demotion discriminatory.
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change the nature of her complaint when she filed suit. See id. (finding that a charge
alleging discrimination based on “sex” did not put the employer “on notice of the existence
and nature of [plaintiff’s] sexual harassment hostile work environment claim as alleged in
her petition”); Harris-Childs v. Medco Health Sols., Inc., 169 F. App’x 913, 916 (5th Cir.
2006) (per curiam) (finding that a charge alleging “unfair treatment” and “harassment” did
not put the employer on notice that charge was based on racial or sexual discrimination).
Construing Lozano’s second charge liberally, as we must, we overrule the School
District’s first issue.3
C. Verification Requirement is Non-Jurisdictional
By its second issue, the School District asks us to reexamine our holding in PSJA I
that Lozano’s failure to verify her second charge of discrimination was a non-jurisdictional
defect. See 2018 WL 655527, at *4 (adopting the holding in Reid v. SSB Holdings, Inc.,
506 S.W.3d 140, 143–150 (Tex. App.—Texarkana 2016, pet. denied)); TEX. LABOR CODE
ANN. § 21.201(b) (“The complaint must be in writing and made under oath.”). Since our
memorandum opinion in PSJA I, one of our sister courts has reached the opposite
conclusion. See Univ. of Tex. at El Paso v. Isaac, 568 S.W.3d 175, 182–87 (Tex. App.—
El Paso 2019, pet. denied). Without further guidance by the Supreme Court of Texas, we
decline to revisit our holding.
IV. CONCLUSION
We affirm the trial court’s judgment.
3 As we discussed in PSJA I, through her allegations and evidence, Lozano has presented a prima
facie case of constructive discharge. Pharr-San Juan-Alamo Indep. Sch. Dist. v. Lozano, No. 13-16-00408-
CV, 2018 WL 655527, at *5 (Tex. App.—Corpus Christi–Edinburg Jan. 31, 2018, pet. denied) (mem. op.).
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GINA M. BENAVIDES
Justice
Delivered and filed on the
2nd day of December, 2021.
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