Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL
DISTRICT NO. 14-1061-C26, HONORABLE DONNA GAYLE KING, JUDGE
Justices Puryear, Field, and Shannon. [*]
an appeal from the district court's judgment denying a
plea to the jurisdiction in an employment-discrimination
case. Appellant is Texas State University (the University),
and appellee is Dr. Kathleen Quinn. This Court will affirm
2011, the University's School of Nursing was developing a
Doctoral of Nursing Practice program. At that time, Quinn
made inquiry regarding employment. She had been a licensed
counselor, a registered nurse, and an advanced practice nurse
since 2000. The University offered, and Quinn accepted, two
one-year contracts as an "emergency hire" to teach
as a clinical associate professor. In addition to her
teaching responsibilities, the University gave her
significant program writing tasks. When the University made
the clinical associate professorship permanent, Quinn applied
for the job.
Quinn was one of the oldest faculty members. She had
progressive and severe nerve damage to her hands and feet.
The pain in her feet made walking difficult. She requested an
accommodation, but nothing was done. Quinn claimed that
during her tenure at the University, she endured demeaning
harassment and derogatory comments because of her age and
disability. Although she complained to her supervisor,
nothing was done. The University did not hire her for the
permanent clinical associate professorship posting, nor did
it renew the temporary teaching contract.
filed suit against the University claiming disability and age
discrimination and retaliation. She cast her case against the
University as one coming within the terms of the Texas Labor
Code section 21.051. The University filed a plea to the
jurisdiction to which it attached supporting proof and argued
that sovereign immunity barred Quinn's claims. By the
plea, the University claimed that (1) Quinn failed to plead a
claim of discrimination and retaliation under the Texas Labor
Code and (2) Quinn's evidence was insufficient to support
her discrimination and retaliation claims. The district court
denied the plea.
invoke waiver of sovereign immunity, Quinn had to allege
facts that affirmatively demonstrated the court's
jurisdiction and marshal some evidence in support of the
contested elements of her discrimination and retaliation
claims, see Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). The
elements of a disability and age-discrimination case are: (1)
the plaintiff has a disability and is over the age of forty;
(2) she was qualified for the job she had or sought; (3) she
suffered an adverse action; and (4) she was replaced by a
younger, non-disabled person, or was treated less favorably
than a younger, non-disabled person, or was otherwise
discriminated against because of her age or disability.
See Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 632 (Tex. 2012). The elements of
a retaliation claim are: (1) the plaintiff engaged in a
protected activity; (2) an adverse employment action
occurred; and (3) a causal link exists between the two.
San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131,
137 (Tex. 2015).
to the University's argument, Quinn discharged her
pleading requirement in her amended petition by asserting in
minute detail the facts supporting her discrimination and
retaliation claims. See Miranda, 133 S.W.3d at 226.
reply to the University's plea to the jurisdiction, Quinn
filed a lengthy fact-studded response in which she marshaled
evidence in support of each contested element of her
discrimination and retaliation claims. When reviewing a plea
to the jurisdiction in which the pleading requirement has
been met, as in this case, and evidence has been submitted to
support the plea that implicates the merits of the case, the
reviewing court takes as true all evidence favorable to the
non-movant, and the court indulges every reasonable inference
and resolves any doubts in the non-movant's favor.
Id. at 228. In the following pages, we summarize the
proof in that light.
deposition, Quinn detailed the nerve damage to her hands and
feet. She testified that constant pain in her feet made
walking difficult. Her deposition testimony was backed up by
voluminous medical records. She reported her physical
problems to her supervisor.
brought forward evidence that she was qualified for the job
she had and for the post she sought. Apparently satisfied
with her qualifications, the University kept her on for two
years. Her supervisor testified that she, the supervisor, did
not hire unqualified faculty. The Dean of the Nursing School
testified on deposition that to be employed as an
"emergency hire, " one was required to have
clinical experience. In addition, Quinn testified on
deposition that she had more than five years of clinical
asserts that the University's determination not to renew
her term teaching contract and that its decision not to hire
her for the new clinical-associate post in itself is evidence
of "adverse action." The University replies that
employees on term contracts cannot suffer "adverse
action" in employment-discrimination cases. Its argument
is that because there is no legal obligation to renew a term
contract, as a matter of law no "adverse action"
can occur after the contract is signed. The University
concedes that there is no Texas authority supporting its
argument. That being the case, this Court declines to hold,
as a matter of law, that the University's decision not to
renew the contract cannot be evidence in support of
Quinn's discrimination claim. The failure to hire Quinn
for the permanent clinical-associate post is some evidence of
"adverse action." See Tex. Lab. Code
evidence and pleading is that she was replaced by a
non-disabled, younger person, Sarah Guy. The University
contends, however, that Quinn was not replaced by anybody
because her term teaching contract had ended. This argument,
of course, does not address ...