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Lamar University v. Jenkins

Court of Appeals of Texas, Ninth District, Beaumont

January 11, 2018

LAMAR UNIVERSITY, Appellant
v.
STEVE JENKINS, Appellee

          Submitted on November 22, 2017

         On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-196, 060

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice

         Appellant, Lamar University ("the University"), brings this interlocutory appeal from the trial court's order denying its amended plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). We reverse the trial court's order and render judgment granting the University's plea and dismissing the appellee's claims against the University with prejudice.

         BACKGROUND

         In August 2014, the appellee, Dr. Steve Jenkins, sued the University for alleged retaliation in violation of section 21.055 of the Texas Commission on Human Rights Act (TCHRA). See Tex. Labor Code Ann. § 21.055 (West 2015). In his petition, Jenkins alleged that the University had retaliated against him by denying his application for promotion to the academic rank of Full Professor, with accompanying tenure status, because Jenkins had opposed the University's use of the Graduate Records Exam (GRE) as a criteria for admission into the University's College of Education's graduate program. According to Jenkins, he opposed the University's use of the GRE because it is an inherently racist test that the University used as a threshold discriminatory entry requirement to exclude or limit downstream employment of minority professional educator administrators in Texas public schools. Jenkins maintained that the College Dean and the chairman of the Department of Educational Leadership opposed his application for promotion and tenure because Jenkins had opposed the use of the GRE for ethical reasons, and the University's President and Provost arbitrarily ratified the decision of the Dean, rather than the larger body of the University's tenured faculty who supported his application.

         The University filed a plea to the jurisdiction asserting that Jenkins's retaliation claim under section 21.055 of the TCHRA is based on an admission practice to a graduate program and not on an unlawful discriminatory employment practice. According to the University, because Jenkins failed to allege a prima facie violation under the TCHRA, there is no waiver of sovereign immunity, and the trial court should dismiss the suit for lack of subject matter jurisdiction. Jenkins filed a response to the University's plea to the jurisdiction, arguing that the University's discriminatory admissions practice was an unlawful employment practice because the use of the GRE excluded racial minorities and women from being hired in the doctoral program and from gaining teaching experience at the University. The trial court conducted a hearing on the University's plea to the jurisdiction, during which Jenkins's counsel requested the opportunity to amend the pleadings to supplement the factual allegations supporting Jenkins's retaliation claim. The record shows that the trial court granted the University's plea to the jurisdiction and also granted Jenkins leave to amend his petition.

         Jenkins filed an amended petition alleging that the University had retaliated against him for opposing the College of Education's discriminatory admission practice of using the GRE to deprive qualified female and minority instructors the opportunity to teach at the University. Jenkins also sought a declaratory judgment under the Uniform Declaratory Judgments Act (UDJA) declaring that the University had violated Jenkins's rights secured by the TCHRA, as well as his rights to free speech and due course of law secured by the Texas Constitution. See Tex. Const. art. I, §§ 19; Tex. Labor Code Ann. § 21.055; Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-37.011 (West 2015).

         The University argued that Jenkins's amended petition failed to allege that Jenkins had engaged in a protected activity because Jenkins's retaliation claim was not based on an unlawful employment practice under the TCHRA. The University further contended that Jenkins failed to plead a viable UDJA claim because Jenkins had not challenged the constitutionality of a statute or ordinance, alleged that state officials in their official capacities had violated his constitutional rights, or sought to compel the University to follow the law in the future. Concerning Jenkins's constitutional claims, the University asserted that Jenkins had failed to plead a viable due-course-of-law claim because Jenkins did not have a protected liberty or property interest in his continued employment or in obtaining tenure, and that there is no private cause of action for a free speech claim.

         Jenkins filed a response to the University's amended plea to the jurisdiction, arguing that the University had failed to appeal the trial court's October 2016 order, in which Jenkins claims that the trial court denied the University's plea to the jurisdiction, and that the University could not revive the right to an interlocutory appeal by filing a duplicate plea to Jenkins's amended petition. Jenkins also argued that the University's plea to the jurisdiction is actually a time-barred Rule 91a motion to dismiss, and that the University is attempting to characterize its pleading sufficiency challenge as a jurisdictional argument. See Tex. R. Civ. P. 91a. According to Jenkins, the TCHRA forbids retaliation against a person who opposes a "discriminatory practice, " and discrimination in employment and discrimination to or in a training program are both discriminatory practices under the TCHRA. Jenkins argued that his retaliation claim opposed a discriminatory employment practice because the doctoral program included the opportunity to teach at the University. Jenkins further argued that he had opposed the University's discrimination in admission to or participation in a training program on the basis of race, national origin, and gender, which is also a protected activity under the TCHRA. See Tex. Labor Code Ann. § 21.054(a) (West 2015); Id. § 21.055. Jenkins also maintained that the trial court had jurisdiction over his UDJA claims.

         The University disputed Jenkins's contention that the University's doctoral program is a "training program" under the TCHRA. The University argued that the doctoral program is a degree-earning educational program and not a job-related training program, and that the graduate students in the program are not provided an opportunity to teach at the University. According to the University, section 21.054 of the TCHRA prohibits an employer or a labor organization from discriminating in the admission to an apprenticeship, on-the-job training, or other training or retraining program, and that such training programs vastly differ in purpose and effect from the University's doctoral program. See id. § 21.054(a). The University argued that the purpose of putting "training program" in the TCHRA was to prohibit discrimination in the skilled, labor-union trades, and unlike an individual in a skilled craft apprenticeship or training program, a graduate of the doctoral program is not automatically entitled to employment in his field. The University further argued that Jenkins's attempt to couch his retaliation claim as an employment practice is too attenuated, because admission into the doctoral program does not guarantee employment as an instructor.

         The trial court conducted a hearing on the University's amended plea to the jurisdiction, and after hearing the parties' arguments, denied the University's amended plea without issuing findings of fact and conclusions of law. The University filed this interlocutory appeal. We note that Jenkins contends that this Court lacks jurisdiction over the University's interlocutory appeal because the University did not appeal from the trial court's order granting Jenkins's request to replead and because the University's amended plea to the jurisdiction did not assert any new grounds. We disagree with Jenkins's contention, as the record fails to show that the trial court denied the University's original plea to the jurisdiction or that the University's amended plea to the jurisdiction was merely a motion to reconsider the denial of its original plea. Cf. City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012). Our review of the record shows that the trial court granted the University's original plea to the jurisdiction, and the University's amended plea addressed Jenkins's UDJA claim, which Jenkins added in his first amended petition. ...


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