                                                                             ACCEPTED
                                                                         08-15-00099-CV
                         08-15-00099-CV                      EIGHTH COURT OF APPEALS
                                                                        EL PASO, TEXAS
                                                                   11/13/2015 4:27:13 PM
                                                                      DENISE PACHECO
                                                                                  CLERK

                        NO. 08-15-00099-CV

                                                  FILED IN
____________________________________________________________
                                              8th COURT OF APPEALS
                                                  EL PASO, TEXAS
              IN THE   EIGHTH COURT OF APPEALS11/13/2015 4:27:13 PM
                         EL PASO, TEXAS           DENISE PACHECO
                                                       Clerk

____________________________________________________________

           SOUTHWEST CONVENIENCE STORES, LLC.
                       Appellant
                          v.
                      NORA MORA
                       Appellee

____________________________________________________________

         On Appeal from the County Court at Law No. Six
                    of El Paso County, Texas

____________________________________________________________

   APPELLEE’S BRIEF IN RESPONSE TO BRIEF OF APPELLANT

____________________________________________________________


                                    Enrique Chavez, Jr.
                                    State Bar No. 24001873
                                    Miguel Hernandez
                                    State Bar No. 24090161
                                    CHAVEZ LAW FIRM
                                    2101 N. Stanton Street
                                    El Paso, Texas 79902



            APPELLEE REQUESTS ORAL ARGUMENT

                                1
                    TABLE OF CONTENTS
                                       PAGE
Table of Contents…………………………………………………………….. 2

Index of Authorities………………………………………………………….. 4

Statement of Oral Argument……………………………………………….. 7

Summary of the Argument…………………………………………………. 7

Argument………………………………………………………………………. 9

    Standard of Review…………………………………………………. 9

    The trial court has jurisdiction over Appellee Mora's hostile
    work environment sex discrimination claim (1) precisely
    because sexual harassment is a type of sex discrimination, (2)
    Appellee Mora’s Charge of Discrimination expressly states she
    was discriminated against on the basis of “sex,” and (3) had
    the EEOC actually conducted an investigation, her claims of
    sexual harassment at the hands of her immediate supervisor
    could reasonably have been expected to grow out of the
    EEOC’s investigation of her Charge wherein she makes a sex-
    based claim and of being “harassed”.…………………………. 10

    Appellee Mora exhausted her administrative remedies as to her
    retaliation claim — in the form of her supervisor terminating
    her employment two months after having filed her Charge of
    Discrimination — as the retaliatory conduct grew out of the
    earlier-filed Charge………………………………………………… 18

Prayer…………………………………………………………………………. 22

Certification………………………………………………………………..… 23

Certificate of Compliance…………………………………………………. 24

Certificate of Service………………………………………………………. 25

                               2
Appendix

    TAB 1   Plaintiff’s Charge of Discrimination

    TAB 2   Plaintiff’s Original Petition

    TAB 3   Plaintiff’s First Amended Petition




                                3
                        INDEX OF AUTHORITIES

CASES                                                               PAGE

ATI Enters., Inc. v. Din, 413 S.W.3d 247
     (Tex.App.-Dallas 2013, no pet.)……………………………………… 19

Bartosh v. Sam Houston State Univ., 259 S.W.3d 317
     (Tex. App.—Texarkana 2008, pet. denied)…………………….. 11, 12

Cooper v. Wal-Mart Transp., LLC, 662 F. Supp. 2d 757
    (S.D. Tex. 2009)…………………………………………………… 19, 20

County of Travis ex rel. Hamilton v. Manion,
     No. 03-11-00533-CV, 2012 WL 1839399
     (Tex. App.-Austin May 17, 2012, no pet.) (mem. op.)…….…… 11, 15

Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133
     (Tex.App.-Fort Worth 2000, pet. denied)……………………….. 12, 19

Fellows v. Universal Restaurants, Inc., 701 F.2d 447 (5th Cir. 1983)….. 15

Fine v. GAF Chemical Corp., 995 F.2d 576 (5th Cir. 1993)……… 12, 15, 16

Garcia v. Kubosh, 377 S.W.3d 89
     (Tex.App.-Houston [1st Dist.] 2012, no pet.)…………………………. 9

Gupta v. East Texas State Univ.,
     654 F.2d 411 (5th Cir. 1981)…………………………….. 16, 18, 19, 20

Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004)…. 11

Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009)……………….. 21

Lopez v. Tex. State Univ., 368 S.W.3d 695
     (Tex. App.-Austin 2012, pet. denied)……………………. 10, 12, 14, 17

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003)……………………….. 21

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)…………… 21


                                    4
Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006)…………….. 10, 11, 14, 16

Preston v. Texas Dep't of Family & Protective Servs.,
     222 Fed. Appx. 353 (5th Cir. 2007)………………………………….. 12

San Antonio Water System v. Odem,
     No. 04-07-00130-CV, 2007 WL 2376147
     (Tex.App.-San Antonio, August 22, 2007)…………………..….. 19, 20

Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011)………………………….. 20

Scott v. Univ. of Mississippi, 148 F.3d 493 (5th Cir. 1998)…………… 20, 21

Simmons-Myers v. Caesars Entm't Corp.,
    515 F. App'x 269 (5th Cir. 2013)………………………………… 20, 21

Tarrant Reg'l Water Dist. v. Villanueva, 331 S.W.3d 125
      (Tex. App.—Fort Worth 2010, pet. denied)…………………………. 11

Tex. Dep't of Parks & Wildlife v. Miranda
      133 S.W.3d 217 (Tex. 2004)…………………………………….… 9, 10

Tex. Natural Res. Conservation Comm'n v. IT-Davy,
      74 S.W.3d 849 (Tex. 2002)…………………………………………….. 9

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex.1993)….. 9

Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734
    (Tex.App.-Houston [14th Dist.] 1999, no pet.)……………………… 19

Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 209
      (Tex. App.-Austin 2010, no pet.)………………………………… 12, 13

Wedow v. City of Kan. City, Mo., 442 F.3d 661 (8th Cir. 2006)………….. 21

RECORD REFERENCES

     The following record references will be used in Appellee’s Brief:


                                     5
Clerk’s Record…………………………………………………………CR______




                     6
                   STATEMENT OF ORAL ARGUMENT

      Appellee respectfully requests oral argument to further the proper

disposition of the instant case by this honorable court.

                     SUMMARY OF THE ARGUMENT

      The trial court has jurisdiction over Appellee Mora's sexual

harassment, hostile work environment sex discrimination claim (1) precisely

because sexual harassment is a type of sex discrimination, (2) Appellee

Mora’s Charge of Discrimination expressly states she was discriminated

against on the basis of “sex,” and (3) had the EEOC actually conducted an

investigation, her claims of sexual harassment at the hands of her

immediate supervisor could reasonably have been expected to grow out of

the EEOC’s investigation of her Charge wherein she makes a sex-based

claim and of being “harassed.” The trial court also has jurisdiction over

Appellee Mora’s retaliation claim because current black-letter law precludes

the creation of additional procedural technicalities in the instance where

retaliatory conduct giving rise to a retaliation claim grows out of a claimant’s

earlier-filed charge of discrimination. In the case at bar, and in conformity

with current black-letter law, Appellee Mora exhausted all administrative

prerequisites to filing suit for retaliation precisely because the retaliatory




                                       7
termination of employment she complains of grows out of her earlier filed

Charge of Discrimination.




                                   8
                                  ARGUMENT

Standard of Review

      Whether a trial court has subject matter jurisdiction is a question of

law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004)(citing Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d

849, 855 (Tex. 2002). When a plea to the jurisdiction challenges the

pleadings, whether the pleader has alleged facts affirmatively

demonstrating a trial court's subject matter jurisdiction is a question of law

reviewed de novo. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex.1993). The pleadings are construed liberally in favor

of the pleader, looking to the pleader’s intent. Id. (see also Garcia v.

Kubosh, 377 S.W.3d 89, 95 (Tex.App.-Houston [1st Dist.] 2012, no pet.)

(emphasis added).

      Evidence is not necessary to resolve a plea to the jurisdiction when

the plaintiff’s petition either affirmatively demonstrates the court’s

jurisdiction, affirmatively negates the court’s jurisdiction, or is insufficient to

determine jurisdiction but does not affirmatively demonstrate incurable

defects in the petition so that it could be amended to bring the cause within

the court’s jurisdiction. Id. at 226-27. When determining if the pleader, i.e.

Appellee Mora in the instant case, has pled sufficiently to invoke the court’s



                                        9
jurisdiction, the court reviews such pleadings liberally in favor of the pleader

and looks to determine the pleader’s intent. Id. at 226.

The trial court has jurisdiction over Appellee Mora's hostile work
environment sex discrimination claim (1) precisely because sexual
harassment is a type of sex discrimination, (2) Appellee Mora’s
Charge of Discrimination expressly states she was discriminated
against on the basis of “sex,” and (3) had the EEOC actually
conducted an investigation, her claims of sexual harassment at the
hands of her immediate supervisor could reasonably have been
expected to grow out of the EEOC’s investigation of her Charge
wherein she makes a sex-based claim and of being “harassed.”

      Because Appellant erroneously attempts to lead this court into error

by ignoring half of the established test for determining the scope of a

charge of discrimination for jurisdictional purposes, its analysis and,

therefore, conclusion that Appellee Mora did not exhaust her administrative

remedies as to her sexual harassment claim are wrong. It is well settled

that courts, in determining what claims are encompassed within the scope

of a charge, look not only to the factual statement, or narrative portion, of

the charge, but also must look outside the four corners of the charge to

include those claims which could reasonably be expected to grow out

of the Equal Employment Opportunity Commission's (“EEOC”)

investigation of the claims stated in the charge. Lopez v. Tex. State

Univ., 368 S.W.3d 695, 701 (Tex. App.-Austin 2012, pet. denied) (citing




                                      10
Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006).1 In addition, trial

courts do well to liberally construe EEOC complaints because, as explained

in Lopez, “EEOC complaints should be liberally construed,” and in so

explaining rejected the employer’s argument that liberal construction should

apply solely to pro se plaintiffs. Id. It further explained that under Title VII

“no one should be boxed out.” Id. at 702.

       Courts must construe charges liberally as most are filed by “persons

unfamiliar with the technicalities of formal pleadings.” County of Travis ex

rel. Hamilton v. Manion, No. 03-11-00533-CV, 2012 WL 1839399, at *10

(Tex. App.-Austin May 17, 2012, no pet.) (mem. op.); see also Pacheco,

448 F.3d at 788 (because provisions of Title VII not designed for the

sophisticated, and because most complaints are initiated pro se, scope of

EEOC complaints should be liberally construed). As long as a charge

contains “an adequate factual basis so that it puts the employer on notice

of the existence and nature of the charges,” it is sufficient for a court to hold

that the charging party has exhausted her administrative remedies as to

those claims. Id. (quoting Bartosh v. Sam Houston State Univ., 259 S.W.3d


1 As Chapter 21 of the Texas Labor Code (the TCHRA) is modeled after federal law, “federal
case law may be cited as authority in cases relating to the Texas Act.” Tarrant Reg'l Water Dist.
v. Villanueva, 331 S.W.3d 125, 129-30 n.3, 134 (Tex. App.—Fort Worth 2010, pet. denied) (citing
Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445-46 (Tex. 2004)).

                                               11
317, 321 (Tex. App.—Texarkana 2008, pet. denied) (emphasis added); see

also Preston v. Texas Dep't of Family & Protective Servs., 222 Fed. Appx.

353, 356 (5th Cir. 2007) (per curiam); Lopez, 368 S.W.3d at 701 (“The

purposes underlying the administrative-complaint requirement include

giving the charged party notice of the claim, narrowing the issues for

speedier and more effective adjudication and decision, and giving the

administrative agency and the employer an opportunity to resolve the

dispute.”). Accordingly, a plaintiff’s subsequent lawsuit “may raise only the

specific issue[s] made in the employee's administrative complaint and ‘any

kind of discrimination like or related to the charge’s allegations.’”

Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 141 (Tex.App.-Fort

Worth 2000, pet. denied) (quoting Fine v. GAF Chemical Corp., 995 F.2d

576, 578 (5th Cir. 1993) (emphasis added)).

     Appellee Mora’s Charge gives Appellant notice of the nature of the

claims that existed at the time she filed her Charge on December 22, 2011,

i.e., sex discrimination in the form of hostile work environment sexual

harassment. See Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 210

(Tex. App.-Austin 2010, no pet.). Firstly, Appellant had actual notice that

Appellee Mora was discriminated against on the basis of her sex as she


                                     12
explicitly indicated that sex served as the basis of her discrimination by

only checking the box reading “sex” on her Charge under the section in

which the claimant indicates on what grounds — e.g. religion, age, sex —

she believes she has been discriminated against. CR 164. Secondly, in the

narrative portion of Appellee Mora’s Charge, she unequivocally states that

she was harassed by her supervisor. CR 164. That factual statement reads,

in part, “On or about October 30, 2011, I told my supervisor, Danny Silva,

male, that starting February 2012 I was going to be stepping down from

manager to clerk. Immediately after I told Mr. Silva about my intentions to

step down, he began harassing and intimidating me about everything.” CR

164. As hostile work environment sexual harassment is a cognizable theory

of sex discrimination, any subsequent EEOC investigation into the

allegations raised in Appellee Mora’s Charge would have involved whether

Appellee Mora was harassed on the basis of her sex in any manner.

Twigland, 335 S.W.3d at 210 (hostile work environment a theory of gender

discrimination through sexual harassment). Indeed, the scope of a charge

includes “claims that were included in the administrative charge of

discrimination and to factually related claims that could reasonably be




                                    13
expected to grow out of the agency's investigation of the claims

stated in the charge.” Lopez, 368 S.W.3d at 701 (emphasis added).

      Appellant implies that, in the context of Appellee Mora’s full factual

statement in its entirety, any subsequent EEOC investigation into the

allegations raised in Appellee Mora’s Charge would not have reasonably

led to the discovery of her supervisor’s sexual harassment from 2009 to

2012. Appellant’s approach would erroneously limit this court to looking

only to the narrative portion of a claimant’s charge in determining what

causes of action fall within the full scope of the charge for purposes of

establishing those claims a claimant may bring in a subsequent lawsuit.

Naturally, we now see that Appellant gets to its false conclusion by ignoring

the elephant in the room; i.e. the subsequent investigation which could

reasonably grow out of the liberal construction which courts must give the

entire charge of discrimination. Lopez, 368 S.W.3d at 701; Pacheco, 448 F.

3d at 778. Courts look to not merely the factual statement of the charge in

its entirety, but rather to the full charge in its entirety as such includes the

section in which the claimant indicates the nature of her claim. The

protected category, the kind of discrimination she alleges. See Pacheco,

448 F.3d at 789 (courts look beyond the four corners of the claimant’s


                                      14
factual statement within the charge); see also Fellows v. Universal

Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983) (Title VII causes of

actions limited only by the scope of the EEOC investigation that could

reasonably be expected to grow out of the initial charges of

discrimination); Fine, 995 at 578 (same).

     Appellee Mora expressly alleged that she was discriminated against

on the basis of her sex as “sex” was the only box she checked as to the

basis for the discrimination she experienced. CR 164. Appellee Mora

additionally states, in her factual statement, that she was harassed by her

supervisor. CR 164. That Appellee Mora does not detail the nature of the

harassment does not preclude her from bringing a hostile work

environment sexual harassment claim as such an allegation would

“reasonably be expected to grow out of the initial charge[] of

discrimination” in which she states she was “harassed” in her Charge of

Discrimination. Fine, 995 F.2d at 578 (emphasis added); compare with

Manion, 2012 WL 1839399, at *12-14 (charge did not encompass gender

discrimination/hostile work environment sex discrimination claim as only the

retaliation box was checked on the charge and nothing in the narrative

portion of the charge served to put defendant on notice that plaintiff


                                    15
intended to complain of discriminatory conduct based on sex). Nor does

established authority require Appellee to be more sophisticated or

sophisticated enough to plead her Charge like a lawyer would. Pacheco,

448 F.3d at 788. Let us not forget that employees who are at the point of

filing a charge are reeling from having lost their job, their livelihood,

oftentimes their health insurance, and almost always the sole means by

which they feed themselves and their children and keep a roof over their

heads at night. The legal niceties and technicalities of legal pleading are

fortunately, for all of us, not a concern the law burdens them with. Id.

Indeed, were it otherwise, as Appellant misguidedly claims, the laws

reliance on private lawsuits to achieve the goals of Title VII, Gupta v. East

Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981), would be eviscerated

because of legally unsophisticated pleading by legally unsophisticated

claimants. This, intuitively, we now see that what Appellant proposes is for

this court to depart radically from established legal precedent and to

drastically alter the legal landscape for millions of employees in Texas.

      Under current law, the factual statement found in Appellee Mora’s

First Amended Petition, her live pleading, is inextricably intertwined with the

narrative portion of her Charge. Fine, 995 at 578. Appellee Mora’s Charge


                                      16
states that after she told her supervisor that she was stepping down from

her position as a manager to a clerk, he issued three written warnings to

her on false grounds in an attempt to terminate her. CR 164. The factual

statement in the Charge is illuminated by the First Amended Petition,

wherein Appellee Mora makes clear that the reason for her self-imposed

demotion from Manager to Clerk was so that she could transfer stores in

order for her to get away from the supervisor who was sexually harassing

her. CR 16-20; CR 164. As the full picture of the hostile work environment

Appellee Mora endured from 2009 to 2012 does not come to light from a

reading of her Charge, but was in fact the extent of her suffering, such

undoubtedly “could reasonably be expected to grow out of the [EEOC’s]

investigation of the claims stated in the charge” as the EEOC could have

discovered the hostile work environment sexual harassment from what

Appellee Mora wrote in the narrative portion of her charge and based on

her indication that she was discriminated against on the basis of her sex.

Lopez, 368 S.W.3d at 701. Such explains the otherwise nonsensical

statement that Appellee Mora’s supervisor began his attempts to get her

terminated as a result of her self-imposed demotion from manager to clerk

as Appellee Mora’s intent, in demoting herself, was to be able to transfer


                                   17
stores to get away from his severe and pervasive sexual harassment of

her. Indeed, as shown supra, the law has left room for precisely this type of

growth in understanding of the facts from the charge to the filing of the suit

precisely because the law relies on private enforcement of the law by

private litigants to achieve the goals of Title VII. Gupta, 654 F.2d at 414.

Appellee Mora exhausted her administrative remedies as to her
retaliation claim — in the form of her supervisor terminating her
employment two months after having filed her Charge of
Discrimination — as the retaliatory conduct grew out of the earlier-
filed Charge.

      Appellant contends that Appellee Mora failed to exhaust her

administrative remedies as to her claim of retaliation — in the form of being

discharged for having filed her Charge — because she did not file a second

charge of discrimination as to this conduct. The retaliatory conduct

occurred two months after Appellee Mora filed her Charge, in February

2012, and involves Appellee Mora’s supervisor ordering Appellee Mora to

cash money orders for a store deposit and subsequently terminating her for

having done so. CR 18-19, ¶¶ 19-22.

      Contrary to Appellant’s contention, Appellee Mora was not required to

file a subsequent charge as the supervisor's conduct occurred after, and as

a result of, the filing of her one and only Charge. Such is pursuant to the


                                      18
holding in Gupta, wherein the Fifth Circuit created an exception to the

exhaustion requirement for claims of retaliation over the filing of an EEOC

charge. 654 F.2d 411. Specifically, the Fifth Circuit held that “it is

unnecessary for a plaintiff to exhaust administrative remedies prior to

urging a retaliation claim growing out of an earlier charge; the district court

has ancillary jurisdiction to hear such a claim when it grows out of an

administrative charge that is properly before the court.” Id. at 413. The

court reasoned that “[a]dditional EEOC filings based on events after a

suit was filed ‘would serve no purpose except to create additional

procedural technicalities when a single filing would comply with the

intent of Title VII . . . especially since the EEOC relies largely upon the

private lawsuit to obtain the goals of Title VII.’” Cooper v. Wal-Mart

Transp., LLC, 662 F. Supp. 2d 757, 774 (S.D. Tex. 2009) (quoting Gupta,

654 F.2d at 414). Texas Appellate Courts have adopted the Gupta

exception and the underlying reasoning behind its creation. See ATI

Enters., Inc. v. Din, 413 S.W.3d 247, 252 (Tex.App.-Dallas 2013, no pet.);

Elgaghil, 45 S.W.3d at 141-42; Thomas v. Clayton Williams Energy, Inc., 2

S.W.3d 734, 738 (Tex.App.-Houston [14th Dist.] 1999, no pet.); San Antonio




                                      19
Water System v. Odem, No. 04-07-00130-CV, 2007 WL 2376147

(Tex.App.-San Antonio, August 22, 2007).

      From the onset of her suit, Appellee Mora raised her claim of

retaliation based on her supervisor’s conduct in her Original Petition, filed in

September 2012. CR 9-14. As the supervisor’s retaliatory conduct occurred

after Appellee Mora filed her Charge in December 2011, Appellee Mora

was not required to file a second charge as to the conduct, and the district

court has ancillary jurisdiction over the retaliation claim. Gupta, 654 F.2d at

413; Cooper, 662 F. Supp. 2d at 774.

      Appellant disingenuously asserts that the Gupta exception does not

apply to cases in which the plaintiff alleges both discrimination and

retaliation claims, citing to Simmons-Myers v. Caesars Entm't Corp., 515 F.

App'x 269 (5th Cir. 2013), Scott v. Univ. of Mississippi, 148 F.3d 493 (5th

Cir. 1998), and Sapp v. Potter, 413 F. App'x 750 (5th Cir. 2011) in support.

Yet nowhere in any of those cases does the Fifth Circuit hold that the Gupta

exception does not apply in cases where both discrimination and retaliation

claims are raised. Rather, the Fifth Circuit merely declines to do so as the

plaintiffs in those cases wanted the court to apply the exception to both

their retaliation and discrimination claims. Simmons-Myers, 515 F. App’x at


                                      20
273-74; Scott, 148 F.3d at 514. The instant case is distinctly different from

Simmons-Myers, Scott, and Sapp because Appellee Mora is not asking that

the court apply the Gupta exception to her hostile work environment sex

discrimination claim, but only to her retaliation claim. Accordingly, the Gupta

exception is applicable to the instant case.

      Appellant also attempts to mislead the court in arguing that the

Supreme Court has abrogated or narrowed the Gupta exception with its

holding in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

Although the Tenth Circuit has held that the Gupta exception was

abrogated by Morgan in Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.

2003), several other Federal Circuit Courts have held that the exception

survived the Morgan decision. See, e.g., Jones v. Calvert Grp., Ltd., 551 F.

3d 297, 303 (4th Cir. 2009); Wedow v. City of Kan. City, Mo., 442 F.3d 661,

672-76 (8th Cir. 2006). The Fifth Circuit has expressly declined to address

the continued viability of the Gupta exception post-Morgan. Simmons-

Myers, 515 F. App'x at 273 n. 1. Gupta therefore remains the applicable

law in the Fifth Circuit and in Texas state courts. For all the foregoing

reasons, the trial court has jurisdiction over Appellee Mora’s claim of

retaliation.


                                      21
                                PRAYER

      For the above reasons, Appellee Nora Mora respectfully requests that

this court affirm the trial court’s order denying Appellant’s Plea to the

Jurisdiction.




                                   22
                            CERTIFICATION

     I, Enrique Chavez, Jr., certify that I have reviewed the above Brief in

Response to Brief of Appellant, and conclude that every factual statement

in the Brief in Response is supported by competent evidence included in

the Records filed by Appellant and Nora Mora.


                                         Respectfully submitted,

                                         Enrique Chavez, Jr.
                                         State Bar No. 24001873
                                         Miguel Hernandez
                                         State Bar No. 24090161
                                         CHAVEZ LAW FIRM
                                         2101 N. Stanton Street
                                         El Paso, Texas 79902
                                         Phone: (915) 351-7772
                                         Fax: (915) 351-7773


                            By:   ________________________________
                                  Enrique Chavez, Jr.
                                  Attorney for Nora Mora




                                    23
                    CERTIFICATE OF COMPLIANCE

     This response complies with the type-volume limitations of Tex. R.

App. 9.4(i)(2)(B) because this response contains 3,191 words, excluding

the parts of the response exempted by Tex. R. App. 9.4(i)(1).


                                   _______________________________
                                   Enrique Chavez, Jr.




                                    24
                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing

instrument was served in accordance with the Texas Rules of Civil

Procedure upon Mark D. Dore and Bruce A. Koehler, Mounce, Green,

Myers, Safi, Paxson & Galatzan, P.O. Box 1977, El Paso, Texas 79999 on

this 12th day of November, 2015.




                                   _______________________________
                                   Enrique Chavez, Jr.




                                    25
APPENDIX

 TAB 1
         EEOC
     "
                                    CHARGE OF DISCRIMINATION                                                               Charge Presented To:                  Agency{ies) Charge No{s):
                        This form ls affected by the Privacy Act of 1974. See enclosed Privacy Act
                               Statement and other Information before compleling this form.
                                                                                                                               D   FEPA
                                                                                                                               [!}EEOC                              453-2012-00307
                                                        Texas Workforce Commission Civil Rights Division                                                                          and EEOC
                                                                                     State or                   . if any
         Name                •"   . M< . MnU                                                                                       noHOo               r. Aieacoae)           · Date of Birth

         Ms. Norma L. Mora                                                                                                            (915) 822-1269                         07-11-1968
         Street Address                                                                     City, State and ZIP Code

         10401 Helican PI, El Paso, TX 79924 RGO'DEEOCELPRDEC22'11 AM1i:14                                                                                  COPY FOR YOUR
         Named is the Employer, Labor        i                "": Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe
         Discriminated Against Me or Others. (if more thim two, list under PARTICULARS below.)
         Name                                                                                                                      No. Employees, Members          Phone No. (Include Area Code)

         7-ELEVEN I SOUTHWEST CONVIENENCE STORE                                                                                     500 or More                       (915) 751-9826
      Street Address                                                                       City, State and ZIP Code

      4950 Hercules, El Paso, TX 79904

                                                                                                                                   No. Employees, Members         Phone No. (Include Area Code)
     I)""

     Street Address                                                                        City, State and ZIP Code




     DISCRIMINATION BASED ON (Check appropriate box(es).)                                                                                   DATE(S) I                 olu" TOOK PLACE
                                                                                                                                                     Earliest                   Latest
         D           RACE          D     COLOR        [!]SEX                D    RELIGION       D          NATIONAL ORIGIN                        12-03-2011                Continuing
          D              RETALIATION           D      AGE     D       DISABILITY.         D          GENETIC INFORMATION
                         D          OTHER (Specify)                                                                                                  0          CONTINUING ACTION

     THE PARTICULARS ARE {If additional paper is needed, attach extra sheet(s)):


                I.                On or about October 30, 2011, I told my supervisor, Danny Silva, male, that starting February
                                  2012 I was going to be stepping down from manager to clerk. Immediately after I told Mr. Silva
                                  about my intentions to step down, he began harassing and intimidating me about everything.
           )'
                                  From about December 03, 2011 to now, Mr. Silva has given me three written warnings without a
                                  legitimate reason. Mr. Silva's intentions are to get me discharged because of my sex, female.

                II.               No legitimate reasons are given.

                Ill.              I believe I have been discriminated against because of my sex, female, in violation of Title VII of
'I                                the Civil Rights Act of 1964, as amended.
I




     I want this charge flied with both the EEOC and the State or local Agency, if any. I                 •v•Mn            ·When          'fn'.
     will advise the agencies if I change my address or phone number and I will
                                                                                                                                                                  '"' "'
     cooperate fully with them in the processing of my charge in accordance with their
     procedures.            .
                                                                                                          I swear or affirm !hall have read the above charge and that it is true to
     I declare under ""''""Y uo' perjury that the above is true and correct.                              the best ol my knowledge, Information and belief.
                                                                                                                    TURE OF COMPLAINANT

                                                                                                                           '/.D.

                                                        Mo{V?                                             (tt v " /
                                                                                                          .01
           Dec 22,2011                                                                                                                ;           BEFORE ME THIS
                      Date                               Charging Parly Signature
                                                                                                      .
                                                                                                                              y                                                         /{
                                                                       I,                                                                                                     164               •
                                                                                 EXIDBITA
                                                                       I
APPENDIX

 TAB 2
                        IN THE      JUDICIAL DISTRICT COURT
                    IN THE COUNTY COURT AT LAW NUMBER J.Q_
                               EL PASO COUNTY, TEXAS

NORMA MORA                                         §
    Plaintiff,                                     §
      v.                                           §
                                                   §
SOUTHWEST CONVENIENCE                              §
STORES, L.L.C., SOUTHWEST                          §
CONVENIENCE STORES, INC., and                      §
SOUTHWEST CONVENIENCE STORES                       §
EL PASO, LLC.                                      §
      Defendant.                                   §         JURY TRIAL DEMANDED

                            PLAINTIFF'S Ol,UGINAL PETITION

TO THE HONORABLE COURT:

       Plaintiff NORMA MORA ("Employee Mora") now files this Petition complaining

of Southwest Convenience Stores, LLC., Southwest Convenience Stores, Inc., and

Southwest Convenience Stores El Paso, LLC. ("Employer Southwest Convenience

Stores") and respectfully shows as follows:

                                          I. Discovery

1. Discovery is intended to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil

   Procedure.

                                              II. Parties

2. Norma Mora, is an individual residing in H Paso County, Texas.

3. Defendant Southwest Convenience                 L.L.C., may be served with process by serving

    their registered agent Sarah Campbell at 7616 LBJ Freeway, Ste. 300, Dallas, Texas 75251,




                                                   1
                                                                                             9
   or wherever she may be            Defendant is an employer within the meaning of the Texas

   Commission on Human Rights Act.

4. Defendant Southwest Convenience Stores, liNC., may be served with process by serving their

   registered agent Glenn E. Galloway at 610 W. Lucas, Beaumont, Texas 77706, or wherever

   he may be found. Defendant is an employet within the meaning of the Texas Commission on

   Human Rights Act.

5. Defendant Southwest Convenience Stores El Paso LLC., may be served with process by

   serving their registered agent Corporation Service Company D/B/A CSC Lawyers Inc. at 701

   Brazos Suite 1050, Austin, Texas 78701 OJ!' wherever they may be found. Defendant is an

   employer within the meaning of the Texas Commission on Human Rights Act.

                                           III. Venue

6. Pursuant to Texas Civil Practice and Remedies Code Section 15.002, venue is proper in El

   Paso County, Texas because all or a substa.I)tial part of the events or omissions giving rise to

   Norma Mora's claims occurred in El Paso, Texas.

                                     IV. Facts1 of the Case

7. Employers MUST prevent sex                       by supervisors in the workplace to protect the

   financial safety and emotional safety of all $mployees from harm.

8. Employers MUST prevent retaliation agai$1st employees who report sexual harassment by

   supervisors at work in order to protect the financial safety and emotional safety of all

   employees from harm.

9. Employers MUST never retaliate against employees who report complaints of sexual

   discrimination.



                                                2
                                                                                               10
10. Employer Southwest Convenience Stores hired Employee Mora on or about February 2,

   2002.

11. In 2007 Employer Southwest Convenience Stores promoted Employee Mora to a managerial

   position.

12. In late 2009, Employee Mora's supervisor Daniel Silva began making sexual advances

   towards Employee Mora.

13. Supervisor Silva frequently insulted Employee Mora for not yielding to his sexual advances

   and told Employee Mora that she was useles$ and that she was not pretty anymore whenever

   she would refuse his overtures.

14. Employer Southwest Convenience Stores was on notice of Supervisor Silva's conduct

   because Employee Mora made numerous c<l)mplaints about Supervisor Silva's unwelcome

   sexual advances.

15. In late 2011 Employer Southwest                  Stores rejected Employee Mora's request for

   a lateral transfer to another store, a request motivated by Employee Mora's desire to be free

   from Supervisor Silva's sexual harassment.

16. Employer Southwest Convenience Stores ttld Employee Mora that she would have to

   demote herself in order to transfer to another store.

17. In October of 2011 Employer Southwest Conyenience Stores was put on notice of Employee

   Mora's intent to transfer stores when she instructed Supervisor Silva that she was stepping

   down as a manager to resume a position as a clerk.




                                                 3
                                                                                             11
18. Supervisor Silva retaliated against Employ<;11e Mora for not yielding to sexual advances and

   for expressing her intent to transfer to anotlter store by reprimanding Employee Mora on at

   least three occasions from December 11, 20] 1 to December 22, 2011.

19. On December 22, 2011, Employee Mora :tlled a Charge of Discrimination with the Equal

   Employment Opportunity Commission (EEOC) against Employer Southwest Convenience

   Stores for sex discrimination and retaliation.

20. In February of 2012 Supervisor Silva                Employee Mora to cash money orders for a

   store deposit, as he ordered to do in the years! he was her supervisor.

21. On or about February 27, 2012 Employer Southwest Convenience Stores terminated

   Employee Mora's employment for following Supervisor Silva's order to cash money orders

   for a store deposit.

22. Employee Mora was terminated because sh.e refused to capitulate to Supervisor Silva's

    sexual advances, and in retaliation for protected activity under the law.

                             V. Notice of Right to1 File a Civil Action

23. Attached, as Exhibit A to Plaintiff's Original Petition is the Notice of Right to File a Civil

   Action issued by the Texas Commission of H\Ullan Rights Act.

                                   VI. Harms and Losses
24. Plaintiff seeks back pay, lost wages in the past and future. Further, Plaintiff is entitled
   to compensatory damages, including pecu.niary damages, mental anguish or
   emotional pain and suffering, inconvenience, and loss of enjoyment of life in the past
   and in the future.
25. Additionally, Plaintiff is entitled to recover punitive damages against Defendant
   because Defendant acted with malice or, at least, with reckless and/or conscious
    indifference to Plaintiffs rights to be free from age discrimination and retaliation.


                                                    4
                                                                                                     12
                                     VII. Attorney's Fees
26. Plaintiff is entitled to reasonable attorney's :fl'ees and reasonable expert fees as costs in
    prosecuting this lawsuit.



                                     VIII. Jury Demand
27. Plaintiff requests that this case be decided b)l a jury as allowed by Texas Rule of Civil
   Procedure 216.

                                 X. Request for Uisclosure

28. Pursuant to Texas Rule of Civil Procedure 194, Defendant is requested to disclose the

   information and material described in Rule 194.2(a)-(k).




                                                 5
                                                                                                    13
                                              XI. Prayer

29. For these reasons, Employee Mora asks t®.t Employer Southwest Convenience Stores be

   cited to appear and answer, and, on final trial, that Employee Mora have judgment against

   Employer Southwest Convenience Stores fo11 the following:

      a.     General damages;
      b.     Special damages;
      c.     Punitive damages as determined by the jury;
      d.     Prejudgment interest as provided by law;
      e.     Attorney's fees and expert fees;
      f.     Post judgment interest as provided by law;
      g.     Court costs and all costs of suit;
     h.      Reinstatement;

     1.      Such other and further relief to which Employee Mora may be justly
             entitled to in law and equity.

                                               Respectfully submitted,

                                              CH..WEZ LAW FIRM
                                              21 0 1! Stanton Street
                                              El         Texas 79902
                                              915/$51-7772
                                              915/351-7773 facsimile




                                              State1BarNo. 24001873
                                              Isaa(jl A. Cordero
                                              State Bar No. 24079791
                                                       A. Lara
                                              State Bar No. 24078827
                                              Felix: Valenzuela
                                              State'Bar No. 24076745
                                              Attof1lley for Plaintiff




                                                 6
                                                                                         14
APPENDIX

 TAB 3
                                                                                   F/LF,_,
                                                                             ..,
                                                                                      L
                                                                                    . . : I,,.,
                                                                                                      .'\
                                                                                                  -Lf-\

                    INTHECOUNTYCOURTATLAWNUMBERSIX                                        :··-·: :.
                           EL PASO COUNTY, TEXAS

NORMA MORA,                                    §
    Plaintiff,                                 §
                                               §
v.                                             §
                                               §
SOUTHWEST CONVENIENCE                          §
STORES, L.L.C.,                                §
     Defendant.                                §          JURY TRIAL DEMANDED

                       PLAINTIFF'S FIRST &MENDED PETITION

TO THE HONORABLE COURT:

        Plaintiff NORMA MORA ("Employee Mora") now files this her First Amended

Petition complaining of Southwest Convenience Stores, LLC. ("Employer Southwest

Convenience Stores") and respectfully shows as follows:

                                        I. Discovery

1. Discovery is intended to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil

     Procedure.

                                         II. Parties

2. Employee Mora is an individual residing in El Paso County, Texas.

3. Employer Southwest Convenience Stores, may be served with process by servmg its

     registered agent, Sarah Campbell, at 7616 LBJ Freeway, Ste. 300, Dallas, Texas 75251, or

     wherever she may be found. Employer Southwest Convenience Stores is an employer within

     the meaning of the Texas Commission on Human Rights Act.                                                    I
                                                                                                                 J
                                                                                                            ·'




                                              1
                                                                                                   16
                                          III. Venue

4. Pursuant to Texas Civil Practice and Remedies Code Section 15.002, venue is proper in El

   Paso County, Texas because all or a substantial part of the events or omissions giving rise to

   Employee Mora's claims occurred in El Paso, Texas.

                                    IV. Facts .of the Case

5. Employers MUST prevent sex discrimination by supervisors in the workplace to protect

   employees' financial and emotional safety.

6. Employers MUST prevent retaliation against employees who report sexual harassment by

   supervisors at work in order to protect employees' financial and emotional safety.

7. Employers MUST never retaliate against employees who report complaints of sexual

   discrimination.

10. Employer Southwest Convenience Stores hired Employee Mora on or about February 2,

   2002.

11. In 2007, Employer Southwest Convenience Stores promoted Employee Mora to a managerial

   position.

12. In late 2009, Employee Mora's supervisor, Daniel Silva ("Supervisor Silva"), began making

   sexual advances toward Employee Mora.

13. Supervisor Silva frequently insulted Employee Mora for not yielding to his sexual advances

   and told Employee Mora that she was "useless" and that she "was not pretty anymore"

   whenever she would refuse his overtures.




                                                2
                                                                                             17
14. Employer Southwest Convenience Stores was on notice of Supervisor Silva's conduct

   because Employee Mora made numerous complaints about Supervisor Silva's unwelcome

   sexual advances.

15. In late 2011, Employer Southwest Convenience Stores rejected Employee Mora's request for

   a lateral transfer to another store, a request 11!J.otivated by Employee Mora's desire to be free

   from Supervisor Silva's sexual harassment.

16. Employer Southwest Convenience Stores told Employee Mora that she would have to
                                                    1




   demote herself in order to transfer to another store.

17. In October of 2011, Employer Southwest Convenience Stores was put on notice of Employee

   Mora's intent to transfer stores when she instructed Supervisor Silva that she was stepping

   down as a manager to resume a position as a clerk.

18. Supervisor Silva retaliated against Employee Mora for not yielding to sexual advances and

   for expressing her intent to transfer to anotber store by reprimanding Employee Mora on at

   least three occasions between December 11, 2011 to December 22, 2011.

19. On December 22, 2011, Employee Mora flied a Charge of Discrimination with the Equal

   Employment Opportunity Commission ("EBOC") against Employer Southwest Convenience

   Stores for sex discrimination and retaliation.

20. In February of 2012, Supervisor Silva ordered Employee Mora to cash money orders for a

   store deposit, as he ordered to do in the year$ he was her supervisor.

21. On or about February 27, 2012, Employer Southwest Convenience Stores terminated

   Employee Mora's employment for followill(!; Supervisor Silva's order to cash money orders

   for a store deposit.



                                                    3                                           18
22. Employee Mora was terminated because she refused to capitulate to Supervisor Silva's

   sexual advances, and in retaliation for proteqted activity under the law.

                             V. Notice of Right tkl File a Civil Action

23. Attached, as Exhibit A to Employee Mora's First Amended Petition, is the Notice of Right to

   File a Civil Action issued by the Texas Comll!lission of Human Rights Act.

                                  VI. Harms and Losses
24. Employee Mora seeks back pay, lost wages in the past and future. Employee Mora is
   also entitled to compensatory damages, incl111ding pecuniary damages, mental anguish
   or emotional pain and suffering,                    and loss of enjoyment of life in the
   past and in the future.
25. Additionally, Employee Mora is entitled to recover punitive damages against
   Employer Southwest Convenience Stores because Employer Southwest Convenience
   Stores acted with malice or, at least, with reckless and/or conscious indifference to
   Employee Mora's rights to be free from sex111al harrassment and retaliation.
                                   VII. Attorney's Fees
26. Employee Mora is entitled to reasonable attorney's fees and reasonable expert fees as
   costs in prosecuting this lawsuit.


                                   VIII. Jury Demand
27. Employee Mora requests that this case be decided by a jury as allowed by Texas Rule
   of Civil Procedure 216.
                                IX. Request for Disclosure

28. Pursuant to Texas Rule of Civil Procedure 194, Employer Southwest Convenience

   Stores is requested to disclose the information and material described in Rule

    194.2(a)-(k).




                                                 4
                                                                                              19
_.,

                                                    X. Prayer

      29. For these reasons, Employee Mora asks that Employer Southwest Convenience Stores be

         cited to appear and answer, and, on final trial, that Employee Mora have judgment against

         Employer Southwest Convenience Stores for the following:

            a.     General damages;
            b.     Special damages;
            c.     Punitive damages as determined by the jury;
            d.     Prejudgment interest as provided by law;
            e.     Attorney's fees and expert fees;
            f.     Post judgment interest as provided by law;
            g.     Court costs and all costs of suit;
            h.     Reinstatement;
            1.     Such other and further relief to which Employee Mora may be justly
                   entitled to in law and equity.
                                                     Respectfully submitted,

                                                     CHAVEZ LAW FIRM
                                                     2101 Stanton Street
                                                     El Paso, Texas 79902
                                                     915/351-7772


                                          By:


                                                     Isaac A. Cordero
                                                     Sta11e Bar No. 24079791
                                                     Osear A. Lara
                                                     Sta11e Bar No. 24078827
                                                     Felix Valenzuela
                                                     Sta11e Bar No. 24076745
                                                     Attorney for Plaintiff




                                                        s                                     20
