                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00343-CV


CITY OF GRANBURY                                                    APPELLANT

                                       V.

CHRISTINE WILLSEY                                                    APPELLEE

                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. C2017090

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

                                I. INTRODUCTION

      Appellant the City of Granbury perfected this interlocutory appeal from the

trial court’s order denying the City’s plea to the jurisdiction, which was heard

before discovery was conducted.      See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(8) (West Supp. 2017). In two issues, the City argues that the trial


      1
      See Tex. R. App. P. 47.4.
court lacked subject-matter jurisdiction over Appellee Christine Willsey’s claims

for age discrimination, gender discrimination, and retaliation.    For the reasons

set forth below, we will affirm in part and reverse and remand in part to allow

Willsey the opportunity to conduct discovery and to replead her claims.

                                      II. BACKGROUND

      Willsey worked for the City for over seventeen years, including nine years

as a police officer and almost nine years as a public works inspector. In June

2016, the City notified Willsey that it was eliminating her position as a public

works inspector. The following month, the City demoted Willsey to the position of

permit clerk and began training her for that position. On or about August 23,

2016, a representative of the City asked Willsey how much time remained until

she would be fully vested and eligible for retirement benefits; Willsey responded

that she needed only eighteen months to be fully vested. Three days later, the

City fired Willsey, who was forty-eight years old.

      Willsey thereafter timely filed a charge of discrimination jointly with the

Equal Employment Opportunity Commission (EEOC) and the Texas Workforce

Commission Civil Rights Division. Willsey received notice of her right to sue and

timely filed suit against the City.

      In her original petition, Willsey alleged that the City discriminated against

her by eliminating her position as a public works inspector, by demoting her to a

permit clerk, by not allowing her to transfer from the permit clerk position, by not



                                            2
giving her a chance to succeed in the permit clerk position, and by terminating

her. Willsey’s petition pleaded the following claims against the City:2

                                 AGE & GENDER

      19. Plaintiff hereby incorporates all the preceding paragraphs [which
      set forth the facts summarized above] as if set out in full.

      20. Defendant’s actions and omissions constitute age discrimination
      and sex discrimination in violation of Texas Labor Code §[]21.051 et
      seq.

      21. Plaintiff resisted and reported Defendant’s discriminatory actions
      and ultimately filed a charge of discrimination with the EEOC.

      22. Defendant took these actions against Plaintiff because of her
      age and/or gender.

                                  RETALIATION

      23. Plaintiff hereby incorporates all the preceding paragraphs as if
      set out in full.

      24.    Defendant’s actions and omissions constitute retaliation
      discrimination in violation of Texas Labor Code §[]21.055 et seq.

      The City filed a combined answer and plea to the jurisdiction and included

special exceptions to Willsey’s petition.     The City’s plea to the jurisdiction

challenged the sufficiency of Willsey’s pleadings. The City argued that Willsey

“attempts to allege that the City discriminated against her on the basis of age and

gender[,] but she does not properly allege and she cannot allege or prove either

of the two alternative methods of proof in discriminatory treatment cases.” The


      2
        Because the City challenges the sufficiency of Willsey’s pleadings, we set
forth her claims exactly as they appear in her original petition.

                                         3
City further argued in its plea to the jurisdiction that Willsey had not alleged a

prima facie case against the City for age discrimination, gender discrimination, or

retaliation. The City attached the affidavit of Steven Roberts, the City’s Director

of Human Resources, who averred as follows:

      I was employed as the Director of Human Resources when Christine
      Willsey was terminated[,] and I am aware of the efforts that the City
      took to reorganize after Ms. Willsey left the employ of the City. Ms.
      Willsey’s job functions were unique and tailored to Ms. Willsey’s
      training and licensure. At the time she was terminated, Ms. Willsey
      was performing inspection work for public works projects, performing
      duties as a permit clerk, and performing pest control measures as
      she was licensed to do. Upon her termination, all of her duties were
      absorbed by people already employed by the City. Specifically, City
      employees Jim Cook and Eric Swaim now perform public works
      inspections, Donna Irwin was transferred from a different City
      department to perform the permit clerk functions, and Aaron
      Heathington and Heather Walls are now qualified to perform and do
      perform the pest control functions. No one person was hired to fill
      Ms. Willsey’s exact position, but rather the functions that Ms. Willsey
      handled are being handled by other City employees.

Roberts further averred that the employees who assumed Willsey’s duties were

the following ages: Cook was 70, Swaim was 42, Irwin was 46, Heathington was

34, and Walls was 29. Roberts stated that both Irwin and Walls are the same

gender as Willsey.

      Willsey filed a response to the City’s plea to the jurisdiction and attached

various documents, including the charge of discrimination that she had filed with

the EEOC and her declaration in support of her response. Willsey’s response

provided additional facts, including the following:

      7. There were approximately five (5) inspectors working for
      Defendant in May 2016. Plaintiff was the only female inspector.

                                          4
      Therefore[,] on or about June 24, 2016, Defendant chose the only
      female to be forced to take a demotion to a Permit Clerk position,
      which is a secretarial type position. In addition to Plaintiff, Defendant
      eliminated an inspector position of a male employee (John
      Grindstaff)[,] who is believed to be approximately 72 years old.
      Therefore[,] Defendant eliminated the positions of the only female
      inspector and two older inspectors. This did not affect the other
      younger male inspectors.

              ....

      23. After listing numerous specific harms leading up to and including
      her termination, Plaintiff asserts in the sworn Charge the following:

              DISCRIMINATION STATEMENT:
              I believe that I was discriminated against because of my
              age, 48, for taking FMLA time, and because of my
              gender, female, and retaliated against for opposing a
              discriminatory act, in violation of the Age Discrimination
              in Employment Act, Title VII of the Civil Rights Act of
              1964, the FMLA, and the Texas Labor Code, Chapter
              21.

              ....

             [26.]g. With regard to Plaintiff’s [r]etaliation claim, Defendant
      continued pursuing Plaintiff after her termination [by] making up false
      accusations against her and [by] seeking criminal charges against
      her when the City claimed Plaintiff had stolen records. This[,] along
      with other possible actions by Defendant to interfere with Plaintiff’s
      employment prospects[,] may be the basis of a retaliation action.
      [Citation omitted.]

In the addendum to the charge of discrimination that Willsey filed with the EEOC,

she stated:

      7. On or about August 23, 2016, I asked Steve Roberts (HR
      Director) what other jobs were available in the City. He said there
      were only two openings, one was a Water Treatment job[,] but he
      said I was not qualified. I informed Mr. Roberts that I was qualified.
      He then told me that I could apply for that job[,] but since I was on
      probation[,] he would have to talk to the City Manager about it.

                                          5
      The trial court heard the City’s plea to the jurisdiction before the parties

conducted discovery. After hearing argument, the trial court denied the City’s

plea to the jurisdiction without specifying its reasoning. The City then perfected

this interlocutory appeal.

                        III. STANDARD OF REVIEW AND
          THE LAW ON IMMUNITY FROM SUIT AND PROVING DISCRIMINATION

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). A plea to the jurisdiction may be utilized to challenge whether the

plaintiff has met its burden of alleging jurisdictional facts or to challenge the

existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226–27 (Tex. 2004). We review de novo a trial court’s ruling on

a plea to the jurisdiction. Id. at 228.

      A claim of governmental immunity from suit or liability is properly asserted

in a plea to the jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 635–36 (Tex. 2012). A governmental unit is immune from both suit

and liability unless it waives immunity. See Tex. Gov’t Code Ann. § 311.034

(West 2013); Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). In

considering whether a governmental unit has waived sovereign immunity, we

consider the facts alleged by the plaintiff and, to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties. See Tex. Nat. Res.

Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001).


                                          6
      The Texas Commission on Human Rights Act (TCHRA) waives

governmental immunity but only in those instances in which “the plaintiff actually

alleges a violation of the TCHRA by pleading facts that state a claim thereunder.”

Garcia, 372 S.W.3d at 636. Absent a pleading stating a claim under the TCHRA,

the governmental entity’s immunity from suit has not been waived. Id. at 637.

      Section 21.051 of the TCHRA provides that an employer commits an

unlawful employment practice if it fails or refuses to hire, discharges, or otherwise

discriminates in any manner against an employee in connection with

compensation or the terms, conditions, or privileges of employment because of

the employee’s race, color, disability, religion, sex, national origin, or age. Tex.

Lab. Code Ann. § 21.051(1) (West 2015). A TCHRA plaintiff can prove

discrimination by either direct or circumstantial evidence. Garcia, 372 S.W.3d at

634. “The first method, rather straightforward, involves proving discriminatory

intent via direct evidence of what the defendant did and said.” Id. But because

direct evidence of discrimination is often “hard to come by,” the plaintiff can also

rely on circumstantial evidence using “the burden-shifting mechanism of

McDonnell Douglas.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802, 93 S. Ct. 1817, 1824 (1973)). “Under this framework, the plaintiff is

entitled to a presumption of discrimination if she meets the ‘minimal’ initial burden

of establishing a prima facie case of discrimination.”3 Id. “Although the precise


      3
      Once the plaintiff establishes a prima facie case, the burden shifts to the
governmental entity to rebut the presumption of discrimination by articulating a
                                         7
elements of this showing will vary depending on the circumstances, the plaintiff’s

burden at this stage of the case is not onerous.” Garcia, 372 S.W.3d at 634

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct.

1089, 1094 (1981)).

   IV. WHETHER WILLSEY PLEADED OR CAN PLEAD A CLAIM UNDER THE TCHRA
                 TO WAIVE THE CITY’S IMMUNITY FROM SUIT

      In its first issue, the City argues that the trial court did not have subject-

matter jurisdiction over Willsey’s claims for age and sex discrimination because

the evidence demonstrates that “she was not replaced by someone outside the

protected class[es]”—that is, by a younger person or a male. In its second issue,

the City argues that the trial court did not have subject-matter jurisdiction over

any of Willsey’s claims because she did not plead direct evidence of

discrimination and because she failed to plead all the elements of a prima facie

case for each of her claims. The City’s plea to the jurisdiction and arguments on

appeal challenge both the sufficiency of Willsey’s pleadings (via its second issue)

and the existence of jurisdictional facts (via its first issue). We discuss each

separately.




“legitimate, nondiscriminatory reason” for the employment action. McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. It then becomes the plaintiff’s
burden to show that the reason offered was a pretext for discrimination. Id. at
805, 807, 93 S. Ct. at 1825–27. However, only the prima facie elements of the
plaintiff’s case are jurisdictional. Garcia, 372 S.W.3d at 635–38; Mesquite Indep.
Sch. Dist. v. Mendoza, 441 S.W.3d 340, 343 n.2 (Tex. App.—Dallas 2013, no
pet.).

                                         8
                      A. The Sufficiency of the Pleadings4

      When a plea to the jurisdiction challenges the pleadings, we determine

whether the plaintiff has met its burden of alleging facts that affirmatively

demonstrate that the trial court has subject-matter jurisdiction.       Miranda, 133

S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff, accept

all factual allegations as true, and look to the plaintiff’s intent.     Heckman v.

Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012).              If the pleadings are

insufficient to establish the trial court’s jurisdiction but do not affirmatively

demonstrate an incurable defect in jurisdiction, the issue is one of pleading

sufficiency, and the plaintiff should be given an opportunity to amend. Miranda,

133 S.W.3d at 226–27. But if the pleadings affirmatively negate the existence of

jurisdiction altogether, then a plea to the jurisdiction may be granted without

allowing a (necessarily futile) chance to amend. See id. at 227.




      4
          Generally, we first address the issue that offers the greatest potential
relief if successful, which, in this case, would be the City’s first issue negating the
existence of jurisdictional facts that, if true, would require this court to reverse
and render judgment dismissing two of Willsey’s claims. See Bradleys’ Elec.,
Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (explaining that
generally, when a party presents multiple grounds for reversal of a judgment on
appeal, appellate courts should first address issues that would require rendition).
We do not follow that format here because the City’s first issue incorrectly treats
this as a replacement case, which is explained in more detail below in the
elements of a prima facie case for age discrimination, and because we ultimately
hold that Willsey should be given an opportunity to replead her age
discrimination, gender discrimination, and retaliation claims after discovery is
conducted.

                                          9
                                1. Direct Evidence

      In the first portion of its second issue, the City argues that the trial court did

not have subject-matter jurisdiction over any of Willsey’s claims because she did

not plead direct evidence of discrimination. As set forth above, Willsey can prove

her discrimination claims by either direct or circumstantial evidence. See Garcia,

372 S.W.3d at 634. Because Willsey was not required to plead direct evidence

of discrimination, we overrule the first portion of the City’s second issue

challenging Willsey’s failure to plead direct evidence.

                               2. Prima Facie Case

                            a. Discrimination Claims

      In the latter part of its second issue, the City argues that Willsey did not

allege a prima facie case of age and gender discrimination against the City and

sets forth the elements to establish a general violation of the TCHRA—that the

plaintiff must show that she was (1) a member of the class protected by the

TCHRA, (2) qualified for her employment position, (3) terminated by the

employer, and (4) treated less favorably than similarly situated members of the

opposing class. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008).

The City contends that Willsey did not establish the second and fourth elements

with respect to her age and gender discrimination claims. We will address the

pleading sufficiency of Willsey’s age and gender discrimination claims separately.




                                          10
                           i. Age Discrimination Claim

      For an age discrimination case, we must first determine whether the

terminated employee is urging a true replacement claim or a reduction-in-force

claim. See generally Garcia, 372 S.W.3d at 639, 642 (stating that the same

factors cannot be utilized when an employee is not replaced as when an

employee is replaced).     The Texarkana Court of Appeals has set forth the

following test for determining whether an employee was replaced:

      In the context of age discrimination, a terminated employee is
      replaced by another person when the terminated employee’s
      position is filled by that person and that person is assigned the
      terminated employee’s former job duties.           Consequently, a
      terminated employee is not replaced by a person who temporarily
      assumes the terminated employee’s job duties or a person who only
      takes over a part of those duties. When a terminated employee’s job
      duties are distributed among other employees after termination,
      those employees do not replace the terminated employee. This is
      not to say, however, that to come under this provision of the [Texas]
      Labor Code, a terminated employee must be replaced by a new hire.
      It is possible for a terminated employee to be replaced by someone
      who already works for the employer so long as that employee
      completely takes over the terminated employee’s job duties. This
      could be a common occurrence in a large company or an entity
      where promoting from within is the preferred method of hiring. A
      determination of whether an employee was actually replaced by
      another requires an inquiry into the job position and duties
      performed by the terminated employee[] and an inquiry into the work
      performed by the person who is alleged to have replaced that
      employee.

Baker v. Gregg Cty., 33 S.W.3d 72, 81–82 (Tex. App.—Texarkana 2000, pet.

dism’d) (internal footnote omitted).

      Here, the affidavit attached to the City’s plea demonstrates that Willsey’s

job duties—which included performing inspections for public work projects, acting

                                       11
as a permit clerk, and performing pest control—were distributed among five

individuals who ranged in age from 29 to 70.            Because no one employee

completely took over Willsey’s job duties, we treat this as a reduction-in-force

case. See Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 303 (Tex. App.—Fort

Worth 2014, pet. denied) (determining that elimination of one employee’s position

in food prep constituted a reduction in force because duties performed by food-

prep position were distributed to other positions).        Accordingly, we evaluate

whether Willsey pleaded a prima facie case of age discrimination under the

modified prima facie standard utilized in reduction-in-force cases.          See id.

(concluding that modified prima facie standard applied in reduction-in-force

case).

         In a reduction-in-force case, a plaintiff makes out a prima facie case of age

discrimination by showing the following: (1) that she is within the protected age

group; (2) that she was qualified for her employment position; (3) that she has

been adversely affected by the employer’s decision; and (4) that there is

“evidence, circumstantial or direct, from which a factfinder might reasonably

conclude that the employer intended to discriminate in reaching the decision at

issue.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996);5 see

also Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 436 (Tex. App.—Houston [14th

         5
        Because the TCHRA was enacted to coordinate Texas law with federal
anti-discrimination law, we may look to analogous federal statutes and cases
interpreting those statutes in our analysis. See In re United Servs. Auto Ass’n,
307 S.W.3d 299, 308 (Tex. 2010) (orig. proceeding).

                                          12
Dist.] 2002, pet. denied) (discussing and utilizing Fifth Circuit’s modified prima

facie standard in cases involving a general reduction in workforce). To show that

she was qualified for the position she held at the time she was terminated, a

plaintiff should show that she continued to possess the necessary qualifications

for her job. See Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 n.3 (5th

Cir. 1988). To set forth the fourth prong, a terminated employee must plead that

she was either (1) replaced by someone outside the protected class, (2) replaced

by someone younger, or (3) otherwise discharged because of her age.

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). The City

challenges only two of the four elements of a prima facie case of age

discrimination—that Willsey did not sufficiently plead her qualifications and that

she did not sufficiently plead the fourth prong, which under the modified prima

facie standard is sufficiently pleaded if a plaintiff alleges that she was “otherwise

discharged because of her age.” See id.

      As set forth above, Willsey alleged that “Defendant’s actions and

omissions constitute age discrimination . . . in violation of Texas Labor Code

§[]21.051 et seq.” and that “Defendant took these actions against Plaintiff

because of her age.” In her response to the City’s plea to the jurisdiction, Willsey

alleges that there were five public works inspectors; that the City eliminated her

inspector position when she was forty-eight years old, as well as the position of a

seventy-two-year-old inspector; that the City did not eliminate the positions of

younger inspectors; and that the City “eliminated positions of the only female

                                         13
inspector [Willsey] and two older inspectors [Willsey and Grindstaff].” Willsey

also alleged that she was terminated by Roberts three days after he had asked

her how much time she had left before she was eligible to receive retirement

benefits. Willsey thus alleged facts to support the fourth element—that she was

otherwise discharged because of her age. With regard to the second element—

that she was qualified for her position—although Willsey pleaded that she had

been a public works inspector for almost nine years, she did not plead that she

was qualified for her position as a permit clerk, which she held at the time of her

termination, and included only a conclusory statement that she was qualified for

the water treatment position that she wanted to apply for.            See Durham v.

Ascension Parish School Bd., 624 F. App’x 237, 238 (5th Cir. 2015) (holding that

appellant’s bare pleadings, which did not state that she was qualified for the

position, failed to allege facts to support her claim for age discrimination);

Creaghe v. Albemarle Corp., 98 F. App’x 972, 975 (5th Cir. 2004) (holding that

appellant’s conclusory statement that he was qualified for another position failed

to satisfy qualification element of age discrimination). Willsey therefore did not

sufficiently allege facts to support the second element of her age discrimination

claim.

         Willsey’s pleadings fail to state a prima facie case for age discrimination in

the reduction-in-force context and thus do not state a claim for which immunity is

waived under the TCHRA. See Garcia, 372 S.W.3d at 637 (stating that failure to

demonstrate elements of a prima facie case means that plaintiff never gets

                                           14
presumption of discrimination and that trial court has no jurisdiction); Univ. of

Tex. at El Paso v. Esparza, 510 S.W.3d 147, 158 (Tex. App.—El Paso 2016, no

pet.) (holding that terminated employee did not sufficiently plead age

discrimination claim). Accordingly, the trial court erred to the extent it denied the

City’s plea to the jurisdiction challenging Willsey’s pleadings as to her age

discrimination claim.

                        ii. Gender Discrimination Claim

      To establish a prima facie case of gender discrimination, a plaintiff is

required to prove that (1) she is a member of a protected class, (2) she was

qualified for her position, (3) her employment was terminated, and (4) she was

treated less favorably than similarly situated members of the opposing class.

Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). The City

challenges only two of the four elements of a prima facie case of age

discrimination—that Willsey did not sufficiently plead her qualifications and that

she did not sufficiently plead that she was treated less favorably than similarly

situated members of the opposing class.

      Similar to the pleadings on her age discrimination claim, Willsey’s

pleadings on her gender claim state that “Defendant’s actions and omissions

constitute . . . sex discrimination in violation of Texas Labor Code §[]21.051 et

seq.” and that “Defendant took these actions against Plaintiff because of her . . .

gender.” Willsey alleged the same set of facts for both her age discrimination

claim and her gender discrimination claim—that she was the only female

                                         15
inspector and that the City only eliminated her position and the position of a

seventy-two-year-old male inspector.        These allegations support the fourth

element of her age discrimination claim rather than the fourth element of her

gender discrimination claim. She did not plead additional facts related to her

gender discrimination claim and thus did not plead facts to support the fourth

element of a prima facie case of gender discrimination. Moreover, as discussed

above, Willsey did not plead that she was qualified for her position as a permit

clerk—the second element of a prima facie case of gender discrimination. At this

stage of the proceedings, Willsey’s pleadings fail to state a prima facie case for

gender discrimination and thus do not state a claim for which immunity is waived

under the TCHRA. See Garcia, 372 S.W.3d at 637; Esparza, 510 S.W.3d at 158

(holding that terminated employee did not sufficiently plead gender discrimination

claim). The trial court therefore erred to the extent it denied the City’s plea to the

jurisdiction challenging Willsey’s pleadings as to her gender discrimination claim.

                               b. Retaliation Claim

      The City also argues in its second issue that Willsey failed to sufficiently

allege a claim for retaliation because she failed to allege what she did or said that

allegedly caused the City to retaliate against her.

      To make a prima facie showing of each element of retaliation under the

TCHRA, Willsey must show (1) participation in a protected activity, (2) an

adverse employment action, and (3) a causal link between the activity and the

adverse employment action.       See San Antonio Water Sys. v. Nicholas, 461

                                         16
S.W.3d 131, 137 (Tex. 2015); see also Cabral v. Brennan, 853 F.3d 763, 766–67

(5th Cir. 2017). An employee engages in a protected activity when she “opposes

a discriminatory practice”; “makes or files a charge”; “files a complaint”; or

“testifies, assists, or participates in any manner in an investigation, proceeding,

or hearing.” Tex. Lab. Code Ann. § 21.055 (West 2015). To determine whether

an adverse employment action was taken as a result of retaliation at the prima

facie stage, we focus on the final decisionmaker. See Gee v. Principi, 289 F.3d

342, 346 (5th Cir. 2002). The plaintiff must show that the final decisionmaker

was aware of the plaintiff’s protected activity: “If an employer is unaware of an

employee’s protected activity at the time of the adverse employment action, the

employer plainly could not have retaliated against the employee based on that

conduct.” Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 168

(5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). Moreover, we can consider

only events that took place after a plaintiff engaged in a protected activity in

deciding whether the defendant took an adverse employment action against the

plaintiff that has a causal link to the protected activity. See Metro. Transit Auth.

of Harris Cty. v. Ridley, No. 01-17-00081-CV, 2017 WL 3910160, at *6 (Tex.

App.—Houston [1st Dist.] Sept. 7, 2017, pet. denied).

      The City argues that Willsey failed to allege elements one and three for a

prima facie case of retaliation. Willsey’s response to the City’s plea and the

addendum to the charge of discrimination that Willsey filed with the EEOC states

that she took FMLA time and was retaliated against “for opposing a

                                        17
discriminatory act.” Willsey’s petition, under the age and gender heading that is

incorporated by reference in her retaliation section, states that she resisted and

reported the City’s “discriminatory actions and ultimately filed a charge of

discrimination.” And then Willsey states in her response to the City’s plea that

the City pursued her after her termination by “making up false accusations

against her and seeking criminal charges against her when the City claimed [she]

had stolen records” and that such actions by the City in interfering with her future

employment prospects “may be the basis of a retaliation action.”

      Even construing Willsey’s pleadings liberally in her favor, we are left to

guess what the protected activity is that Willsey participated in prior to her

termination that the final decisionmaker for the City was aware of and the causal

link between that protected activity and her termination.       Because Willsey’s

pleadings do not plead a prima facie case of retaliation against the City, Willsey

has not stated a claim for which immunity is waived under the TCHRA. See

Garcia, 372 S.W.3d at 637; Esparza, 510 S.W.3d at 160 (holding that terminated

employee did not sufficiently plead retaliation claim). Accordingly, the trial court

erred to the extent it denied the City’s plea to the jurisdiction challenging

Willsey’s pleadings as to her retaliation claim.

                              c. Result and Remedy

      Having held that Willsey’s pleadings are insufficient to establish the trial

court’s jurisdiction over her age discrimination, gender discrimination, and

retaliation claims, we sustain the latter portion of the City’s second issue arguing

                                         18
that Willsey failed to plead all the elements of a prima facie case for each of her

claims.   We must now determine whether Willsey’s pleadings affirmatively

demonstrate an incurable defect in jurisdiction. See Miranda, 133 S.W.3d at

226–27. The City does not argue that Willsey’s pleadings affirmatively reveal

incurable jurisdictional defects,6 nor have we found any. The appropriate remedy

in cases like this is to remand the case to permit Willsey to amend her pleadings.

See Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 623 (Tex. 2011) (“When

this Court upholds a plea to the jurisdiction on sovereign immunity grounds, we

allow the plaintiff the opportunity to replead if the defect can be cured.”); Esparza,

510 S.W.3d at 157–58, 160 (allowing terminated employee the opportunity to

replead because it was at least plausible that she might be able to replead her

case to meet the elements of her claims for age discrimination, gender

discrimination, and retaliation).

                    B. The Existence of Jurisdictional Facts

      The City argues in its first issue that as to the fourth element of Willsey’s

age and gender discrimination claims, she cannot allege that she was treated

less favorably than similarly situated members of the opposing class as a matter

of law “because she was not replaced by someone outside the protected class.”



      6
       The prayer in the City’s brief states, “If Issue 2 is sustained, the City asks
this Court to remand the case to the trial court specifically ordering Appellee to
plead sufficient facts to allege the respective prima facie case for discriminatory
treatment and retaliation.”

                                         19
      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, the trial court must consider relevant evidence submitted by the parties to

resolve the jurisdictional issues raised, as the trial court is required to do.

Miranda, 133 S.W.3d at 227. “We do not adjudicate the substance of the case

but instead determine whether a court has the power to reach the merits of the

claim.” Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d 426, 430

(Tex. App.—Houston [1st Dist.] 2015, pet. denied).          “Our ultimate inquiry is

whether the particular facts presented, as determined by the foregoing review of

the pleadings and any evidence, affirmatively demonstrate a claim within the trial

court’s subject-matter jurisdiction.”     Tex. Dep’t of State Health Servs. v.

Balquinta, 429 S.W.3d 726, 738 (Tex. App.—Austin 2014, pet. dism’d). If the

evidence raises a fact question on jurisdiction, the trial court must deny the plea

and let the factfinder resolve the question. Miranda, 133 S.W.3d at 227–28. In

contrast, if the evidence is undisputed or fails to raise a fact question regarding

jurisdiction, the trial court must rule on the jurisdictional plea as a matter of law.

Id. at 228.

      But when a plea to the jurisdiction requires examining evidence, a trial

court has the discretion to decide “whether the jurisdictional determination should

be made at a preliminary hearing or await a fuller development of the case.” Id.

at 227; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)

(“Whether a determination of subject-matter jurisdiction can be made in a

preliminary hearing or should await a fuller development of the merits of the case

                                         20
must be left largely to the trial court’s sound exercise of discretion.”). A trial court

may postpone its consideration of a jurisdictional plea so that the plaintiff has

sufficient opportunity to produce evidence that might raise a fact issue. Combs v.

City of Webster, 311 S.W.3d 85, 91 n.1 (Tex. App.—Austin 2009, pet. denied)

(citing Miranda, 133 S.W.3d at 227).         Because a trial court should make a

jurisdictional determination as early as practicable, the court should allow

“reasonable opportunity for targeted discovery” if necessary to illuminate

jurisdictional facts. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491

(Tex. 2012) (quoting Miranda, 133 S.W.3d at 233), cert. denied, 569 U.S. 947

(2013). Whether to allow such discovery and to give the parties more time to

gather evidence and prepare for the hearing on the plea is within the trial court’s

broad discretion. Garcia, 372 S.W.3d at 642–43 (citing Miranda, 133 S.W.3d at

229, 233).

      As discussed above, because this is a reduction-in-force case rather than

a true replacement case, we utilize a modified prima facie standard in which the

fourth element of an age discrimination claim—that there is “evidence,

circumstantial or direct, from which a factfinder might reasonably conclude that

the employer intended to discriminate in reaching the decision at issue”—can be

established by Willsey alleging that she was “otherwise discharged because of

her age.” See Nichols, 81 F.3d at 41; Bodenheimer, 5 F.3d at 957; see also

Russo, 93 S.W.3d at 436. Willsey thus does not need to allege that she was



                                          21
replaced by someone outside the protected class in order to plead a prima facie

case of age discrimination.

      Similarly, the fourth element of a prima facie case of gender discrimination

requires that Willsey demonstrate that she was treated less favorably than

similarly situated members of the opposing class. See Monarrez, 177 S.W.3d at

917. Willsey thus does not need to allege that she was replaced by someone

outside the protected class in order to plead a prima facie case of gender

discrimination. See id.

      Because the City challenges Willsey’s failure to plead the existence of

jurisdictional facts solely based on a true replacement theory—which is not the

type of case presented here—and because the trial court had the discretion to

decide to await a fuller development of the case, we hold that the trial court did

not err by denying the City’s plea to the jurisdiction to the extent it challenged the

existence of jurisdictional facts on Willsey’s age and gender discrimination

claims. Based on the record before us, both Willsey’s age discrimination claim

and her gender discrimination claim may be fleshed out once discovery has been

conducted.7 See Campos v. Tex. Dep’t of Crim. Justice, 385 S.W.3d 35, 42

(Tex. App.—Corpus Christi 2009, no pet.) (instructing trial court to allow

discovery to “flesh out these issues” because “appellants’ ability to state a claim


      7
        Willsey mentioned the lack of discovery at the hearing on the City’s plea,
stating that “this is more or less a motion for summary judgment, and[] therefore,
we have to be given time to do discovery so we can present our evidence.”

                                         22
is hampered by the lack of discovery in this case, and discovery should be

permitted before appellants are required to replead”). Accordingly, we overrule

the City’s first issue.

                                  V. CONCLUSION

       Having overruled the City’s first issue, we affirm the trial court’s denial of

the portion of the City’s plea to the jurisdiction asserting a lack of jurisdictional

facts to establish that Willsey was not replaced by someone outside the

protected age and gender classes. Having sustained the latter portion of the

City’s second issue, we reverse the trial court’s denial of the City’s plea to the

jurisdiction challenging the sufficiency of Willsey’s pleadings to allege every

element of a claim under the TCHRA for age discrimination, gender

discrimination, and retaliation, and we remand this case to the trial court to

provide Willsey with the opportunity to replead these claims and for further

proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d).



                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, KERR, and PITTMAN, JJ.

DELIVERED: March 15, 2018




                                         23
