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Texas Department of Aging and Disability Services v. Lagunas

Court of Appeals of Texas, Eighth District, El Paso

February 24, 2017


         Appeal from 327th District Court of El Paso County, Texas (TC # 2014-DCV-2261)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice.

         The 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.


         DADS 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:

         Image Omitted.

         This 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 Villalobos.

         In 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.

         Lagunas 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.[2]


         On May 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.

         On January 31, 2014, and February 11, 2014, Lagunas filed two additional charges of discrimination.[3] 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.

         On July 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 sentences:

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.

         The 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.

         DADS 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 ...

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