Court of Appeals of Texas, Ninth District, Beaumont
Submitted on August 12, 2019
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 17-02-02044-CV
Kreger, Horton and Johnson, JJ.
CHARLES KREGER, JUSTICE
Hocevar sued Molecular Health, Inc. under the Texas
Commission on Human Rights Act ("TCHRA") claiming
that a Molecular Health Vice President of Sales sexually
harassed her, and when she complained, Molecular Health
retaliated by unlawfully terminating her employment.
See Tex. Lab. Code Ann. § 21.001 et
seq. In her first amended petition, Hocevar alleged that
Molecular Health's corporate headquarters are in The
Woodlands, Texas. Molecular appeared for the first time in
the suit by filing an answer to Hocevar's First Amended
Petition, and it never contested Hocevar's allegation
that it is headquartered in Texas. About six weeks later,
Molecular Health filed a plea to the jurisdiction and motion
to dismiss contending that because it did not employ Hocevar
in Texas, the trial court lacked subject matter jurisdiction.
Hocevar later amended her petition to add claims under the
Minnesota Human Rights Act ("MHRA") for gender
discrimination and retaliatory conduct. See Minn.
Stat. §§ 363A.01-363A.44. The trial court
ultimately granted Molecular Health's plea to the
jurisdiction following two hearings and affording Hocevar the
opportunity to amend her petition. Per its order, the trial
court found that the case "should be dismissed for lack
of subject-matter jurisdiction."
raises three issues on appeal asserting: (1) the trial court
erred in failing to conduct a choice-of-law analysis to
determine whether the TCHRA or the MHRA applies; (2) even
assuming the TCHRA applies, the trial court erred in granting
Molecular Health's amended plea to the jurisdiction
because § 21.111 of the Labor Code is not
jurisdictional; and (3) even assuming the trial court
correctly held that the TCHRA applies and Labor Code §
21.111 is jurisdictional, the trial court erred in granting
Molecular Health's amended plea to the jurisdiction
because Hocevar raised a fact issue that Molecular Health
employed her in Texas. We confine our analysis to the trial
court's subject matter jurisdiction and reverse the trial
Health is an oncological technology company selling products
and services to hospitals and physicians. Molecular Health
offered Hocevar a job as an Account Director selling and
marketing its products and services in the Upper Midwest.
Hocevar's assigned sales region included North Dakota,
South Dakota, Illinois, Iowa, Wisconsin, and Minnesota.
Molecular Health offered Hocevar the position pursuant to a
consulting agreement which characterized Hocevar as an
independent contractor. Hocevar resided in Minnesota and
worked from an office in her home. Deposition testimony
provided in support of the plea to the jurisdiction indicated
Hocevar did not market or sell products for Molecular Health
in Texas. However, Hocevar alleged that she reported to Bruce
Mrachek, Molecular Health's Central Regional Vice
President of Sales who lived and worked in San Antonio,
Texas, via telephone daily. Mrachek's testimony confirmed
this. Hocevar further alleged Molecular Health trained her in
Texas, and she attended company meetings at its headquarters
in The Woodlands, Texas.
January of 2016, Molecular Health's Vice President of
Sales and Business Development for the United States
interviewed Hocevar in Minnesota to determine whether she
would continue working as an Account Director for Molecular
Health. Hocevar alleged that during the meeting, the Vice
President of Sales and Business Development engaged in sexual
harassment in the form of sexually discriminatory conduct and
statements. Hocevar alleged that she reported the harassment
to Mrachek, who in turn, reported the conduct to human
resources. On February 19, 2016, Molecular Health advised it
would not convert Hocevar from a consultant to an employee
and declined to renew her contract.
filed suit under the TCHRA alleging Molecular Health violated
her rights "by discharging and otherwise discriminating
against her on the basis of her gender" and "by
discharging and otherwise discriminating against her . . . in
retaliation for her opposition to [Molecular Health's]
discriminatory and retaliatory employment practices."
See Tex. Lab. Code Ann. § 21.001 et.
seq. In her third amended petition, Hocevar added claims
under the MHRA. Molecular Health subsequently filed a plea to
the jurisdiction asserting that the trial court lacked
subject matter jurisdiction because the TCHRA did not apply
to employment outside of Texas, and Molecular Health employed
Hocevar to work in Minnesota. See id. § 21.111.
an initial hearing on the plea to the jurisdiction, the trial
court allowed Hocevar an opportunity to replead. Hocevar
filed her fourth amended petition asserting claims under both
the TCHRA and the MHRA for discrimination and retaliation,
including factual allegations: (1) that she reported to a
supervisor located in Texas; (2) that Molecular Health
trained her in Texas; (3) that Molecular Health required her
to attend meetings at Molecular Health's headquarters in
The Woodlands; and (4) that Molecular Health dictated the
terms and conditions of her employment including her
compensation and employment status from its Texas corporate
headquarters. Molecular Health then filed a combined motion
to dismiss and amended plea to the jurisdiction again arguing
that the trial court lacked subject matter jurisdiction,
because Hocevar was not employed in Texas and the TCHRA does
not apply to employment outside of Texas. The trial court
granted the motion to dismiss and amended plea to the
jurisdiction for "lack of subject-matter
jurisdiction." Hocevar timely appealed.
a court has subject matter jurisdiction is a question of law
we review de novo. Tex. Dept. of Parks and
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A
court may not decide a case unless it has subject matter
jurisdiction. Id. A plea to the jurisdiction
challenges the trial court's power to exercise subject
matter jurisdiction. Id.; City of Waco v.
Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009). A plea to
the jurisdiction is a dilatory plea typically used to defeat
a plaintiff's cause of action without regard to whether
the claims have any merit. Cty. of Cameron v. Brown,
80 S.W.3d 549, 555 (Tex. 2002); Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). "A plea to
the jurisdiction challenges a trial court's authority to
hear a case by alleging that the factual allegations in the
plaintiff's pleadings, when taken as true, fail to invoke
the trial court's jurisdiction." Dillard Tex.
Operating Ltd. P'ship v. City of Mesquite, 168
S.W.3d 211, 214 (Tex. App.-Dallas 2005, pet. denied). When we
consider a trial court's order on a plea to the
jurisdiction, we construe the pleadings in the
plaintiff's favor and look to the pleader's intent.
See Tex. Ass'n of Bus. v. Tex. Air ...