Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-14-000943, HONORABLE LORA J. LIVINGSTON, JUDGE
Chief Justice Rose, Justices Pemberton and Goodwin
Rose, Chief Justice
Jo Carter sued the Honorable Glenn Hegar, Texas Comptroller
of Public Accounts, for disability-based employment
discrimination and retaliation under the Texas Commission on
Human Rights Act (TCHRA) and the Americans with Disabilities
Act (ADA). The Comptroller filed a plea to the jurisdiction
and motion for summary judgment based on sovereign immunity.
The trial court granted the Comptroller's plea and
motion, dismissing both Carter's TCHRA and ADA claims. On
appeal, Carter challenges the trial court's order as to
her TCHRA claims. We will affirm the trial court's
1977 and 2009, Carter worked off and on-approximately ten
years total-for the Comptroller in various positions,
including data-entry operator and HUB compliance and
certification analyst. According to Carter, she was an exemplary
Comptroller employee who consistently received excellent
performance reviews. Carter left the Comptroller for the
final time in 2010 after taking a medical leave of absence
related to her having bipolar disorder.
2012, Carter applied for a position as a HUB Certification
specialist at the Comptroller. After an internal screening
process eliminated a number of less qualified applicants,
Carter and one other applicant were asked to interview in
front of a four-person panel consisting of the manager over
the vacant position, Paul Gibson, and Comptroller employees
Suzette Ballenger, Ricardo Perez, and Allen Roberts. During
the separate, live interviews, the panel members asked the
applicants the same job-related questions and scored the
applicant's responses to the questions based on
parameters defined on a Comptroller-approved interview sheet.
Those scores were later tallied and averaged to generate a
final interview score for each applicant. The applicant with
the highest average interview score, which was not Carter,
was hired for the position.
not being hired for the position, Carter sued the Comptroller
for violations of the TCHRA and the ADA. See
generally Tex. Lab. Code §§ 21.001-.556
(TCHRA); 42 U.S.C.A. §§ 12101-12213 (ADA). In her
pleadings, Carter alleged that the Comptroller discriminated
against her by hiring a less qualified applicant and basing
that decision on the Comptroller's mistaken belief that
Carter's bipolar disorder and clinical depression would
prevent her from properly performing the job at issue.
According to Carter, at least three of the panel members
(including Gibson) knew about her disability and leave
history, and Gibson told the three other panel members to
adjust their scores for the applicants because "of Angie
Carter's past and it would be difficult to work with her
again, so it would just be hard for them to consider
Comptroller vigorously disputes Carter's characterization
of the events and filed a plea to the jurisdiction and motion
for summary judgment to challenge Carter's claims. These
motions assert that the trial court lacked jurisdiction over
Carter's TCHRA and ADA claims because Carter failed to
demonstrate a prima facie case for her claims and, thus, had
failed to show there had been a waiver of sovereign immunity.
The Comptroller also argued that Carter could not meet her
burden to prove that the Comptroller's legitimate,
non-discriminatory reasons were mere pretext for the
discriminatory motive. The trial court agreed, granting both
the Comptroller's plea to the jurisdiction and motion for
summary judgment, and issued an order dismissing Carter's
claims. Carter challenges that ruling.
raises two issues on appeal: (1) the trial court erred in
granting the Comptroller's plea to the jurisdiction as to
her TCHRA claims because "the Comptroller's
sovereign immunity was not established as a matter of
law"; and (2) the trial court erred in granting the
Comptroller's motion for summary judgment as to her TCHRA
claims because there were genuine issues of material fact
regarding each challenged element of her claims. Carter does
not appeal the trial court's ruling as it relates to her
State and its agencies, including the Comptroller here, are
immune from suit unless the State consents. See Alamo
Heights Indep. Sch. Dist. v. Clark, S.W.3d, No. 16-0244,
2018 WL 169, at *7 (Tex. April 6, 2018) (citing Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636
(Tex. 2012); Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). The TCHRA
waives immunity, but only when the plaintiff states a claim
for conduct that actually violates the statute. Id.
(citing Mission, 372 S.W.3d at 637 (citing Tex. Lab.
Code § 21.254)).
from suit may be asserted through a plea to the jurisdiction
or other procedural vehicle, such as a motion for summary
judgment. Id. (citing Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A jurisdictional
plea may challenge the pleadings, the existence of
jurisdictional facts, or both. When a jurisdictional plea
challenges the pleadings, we determine if the plaintiff has
alleged facts affirmatively demonstrating subject-matter
jurisdiction. Id. (citing Miranda, 133
S.W.3d at 227). If, however, the plea challenges the
existence of jurisdictional facts, we must move beyond the
pleadings and consider evidence when necessary to resolve the