Court of Appeals of Texas, Eighth District, El Paso
from 327th District Court of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice.
Texas Department of Aging and Disability Services, which
identifies itself with the acronym DADS, brings this appeal
from the denial of its plea to the jurisdiction. On appeal
DADS questions whether several allegations in an amended
petition were timely raised after they were filed
administratively, or for some allegations, whether they were
administratively raised at all. Another issue is whether
Lagunas has presented a prima facie claim for failure to
promote/hire sufficient to confer jurisdiction. We affirm in
part and reverse in part.
runs the El Paso State Supported Living Center (the
"State Center") which provides residential
treatment and training services for people with intellectual
and developmental disabilities. In 2013, Laura Cazabon-Braley
was the Director of the State Center. Organizationally, the
State Center also had an Assistant Director of Programs. In
early 2013, Ruben Ochoa was the acting Assistant Director of
Programs. Beneath him was a Unit Director, identified in our
records as Adriane Hanway. Beneath her were two Assistant
Unit Directors positions. Graphically, the relevant portion
of the structure in February 2013 was as follows:
case arises out of an opening for the one the Assistant Unit
Director positions which was posted in February 2013. Michael
Lagunas, who has worked at the State Center as a
security/safety officer since 2010, applied for the position.
Lagunas was sixty years old at the time. Several others
submitted applications, including an applicant younger than
forty years of age. Ruben Ochoa believed that Laura
Cazabon-Braley had delegated to him the authority to make the
hiring decision for the position. After the interviews, Ochoa
concluded that Lagunas was qualified and the best candidate
for the position. Ochoa intended for Lagunas to start in the
new position on March 25, 2013, and Ochoa completed his part
of the necessary paperwork. But before he could submit the
paperwork to the personnel department, he was directed to
send it to Laura Cazabon-Braley (a departure from the usual
process). Cazabon-Braley then informed Ochoa that she
"did not want me to hire Mr. Lagunas." She decided
to conduct her own interviews and had Ochoa re-post the
position. No one was actually interviewed for the Assistant
Unit Director position following the re-posting. Instead,
both Assistant Unit Director positions were temporarily
filled by two younger persons, Joana Alfrez and Alice
April 2013, Ruben Ochoa was removed as the acting Assistant
Director of Programs. Laura Cazabon-Braley then reorganized
the department, essentially replacing the existing Unit
Director and two Assistant Unit Director slots with just two
Unit Directors. Both Unit Director positions were filled by
persons in their thirties. Cazabon-Braley swore that the
majority of centers around the State have this two Unit
Director structure (sometimes also termed "Residential
Directors" or "Directors of Residential
Services") and that after the acting Assistant Director
of Programs and the second Assistant Unit Director positions
were vacated, she took the opportunity to reorganize the unit
to follow that statewide model. Ochoa swore that her claim
about how the majority of other facilities are structured is
"false" and that she did not want Lagunas as an
Assistant Unit Director because of his age.
did not apply for the newly created Unit Director position.
DADS contends this was because the posted qualifications for
those two new positions required a bachelor's degree
which Lagunas did not possess.
17, 2013, which would have been after the Assistant Unit
Director position was re-posted, Lagunas filed a Charge of
Discrimination with the Civil Rights Division of the Texas
Workforce Commission and the EEOC. The charge alleged that
around March 25, 2013, he applied for the Assistant Unit
Director position. A month later, he was informed that the
positon had not been offered to anyone. In mid-May, he
internally complained to DADS' human resources department
about the "unorthodox and unfair process conducted in
trying to fill this position." The charge alleged age
discrimination. It was closed by the EEOC on May 21, 2013,
and the Texas Workforce Commission on July 21, 2014 with
"right to sue" letters.
January 31, 2014, and February 11, 2014, Lagunas filed two
additional charges of discrimination. The new charges complained
of various acts of discrimination and retaliation occurring
after May 15, 2013, and May 17, 2013. The particulars
included: (1) a complaint about being reassigned; (2) denial
of a merit pay increase; (3) verbal and physical threats; (4)
being accused of unfounded charges; (5) discrimination in
scheduling; (6) denial of overtime pay; (7) being excluded
from necessary job information, and (8) being restricted in
his communications to others. One of the new charges was
administratively resolved through the issuance of a right sue
letter dated June 20, 2014.
18, 2014, Lagunas filed his Original Petition in this case.
The substantive factual assertions in the "Facts"
section of the Original Petition are contained in these four
On or about March 25, 2013, Plaintiff applied for the
Assistant Director of Residential Services position with
Defendant. Plaintiff was 60 years old at the time he applied
and was qualified for the position. Defendant unlawfully
discriminated against plaintiff when they denied the
promotion as a result of age discrimination in violation of
Texas Labor Code Section 21.000 et seq. The position of
Assistant Director of Residential Services was assigned to 2
similarly situated employees under the age of 40.
petition then referenced the May 17, 2013 charge of
discrimination. As noted above, that charge specifically
referenced the re-posting of the position and
"unorthodox and unfair process" used to try and
fill this position. Under its "Causes of Action"
section, the petition incorporated by reference the factual
statement and then stated nothing more than Lagunas
"believes that he has been discriminated against because
of his age" which is unlawful discrimination in
violation of the Texas Labor Code.
answered the suit and filed a plea to the jurisdiction
claiming that for the single claim made, Lagunas could not
make out a prima facie case because a younger person was not
hired for the Assistant Unit Director position; in fact, no
one was hired for that post. Instead, the reorganization
resulted in two new positions being posted, which Lagunas did
not bid ...