                           NUMBER 13-17-00480-CV

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


SANTA ROSA INDEPENDENT
SCHOOL DISTRICT,                                                               Appellant,

                                                 v.

JESUS F. RODRIGUEZ JR.,                                                          Appellee.


                     On appeal from the 357th District Court
                          of Cameron County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Benavides
         Santa Rosa Independent School District (SRISD), appellant, challenges the trial

court’s denial of its plea to the jurisdiction on appellee Jesus F. Rodriguez Jr.’s disability

discrimination suit. See TEX. LAB. CODE ANN. § 21.051 (West, Westlaw 2017 through 1st

C.S.).    By a single issue, SRISD argues that the trial court erred in finding it had

jurisdiction over Rodriguez’s claims when he “failed to produce evidence necessary to
create a fact issue on the prima facie elements of such claims.” We reverse and render

judgment.

                                    I.     BACKGROUND

       Rodriguez was a probationary first-year school teacher at Jo Nelson Middle School

in Santa Rosa beginning in September 2015. On January 22, 2016, Rodriguez suffered

a stroke and notified SRISD the same day. He did not return to work that semester and

was notified by letter dated May 17, 2016 that his employment was terminated at the end

of his contract. No reason was stated.

       Rodriguez filed a timely charge of disability discrimination with the Texas

Workforce Commission Civil Rights Division which granted him a right to sue letter in

January 2017.      Rodriguez filed suit in March 2017.         SRISD does not challenge

Rodriguez’s exhaustion of administrative remedies.

       Rodriguez’s first amended petition alleged that SRISD illegally discriminated

against him on the basis of disability and that the superintendent decided to recommend

that Rodriguez be terminated in February 2016. See id. SRISD filed a general denial

and a plea to the jurisdiction challenging the trial court’s jurisdiction and seeking dismissal

of Rodriguez’s petition. SRISD’s plea attached evidence that challenged Rodriguez’s

prima facie case. Rodriguez responded to the plea and included evidence of his own.

SRISD filed a reply and a post-hearing letter brief. The trial court denied SRISD’s plea

to the jurisdiction. SRISD filed this interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.104(a)(8) (West, Westlaw 2017 through 1st C.S.).




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                               II.      PLEA TO THE JURISDICTION

       SRISD argues that the trial court erred because Rodriguez did not produce

evidence in support of his prima facie case.

A.     Standard of Review

       Governmental units, including school districts, are immune from suit unless the

state consents. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004). The labor code waives immunity if the plaintiff alleges conduct within the purview

of the statute. TEX. LAB. CODE ANN. § 21.051(1). Under the Texas Labor Code, an

employer “commits an unlawful employment practice” if it discharges an individual

“because of . . . disability.” Id.

       “A jurisdictional plea may challenge the pleadings, the existence of jurisdictional

facts, or both. When a jurisdictional plea challenges the pleadings, we determine if the

plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction.” Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Miranda, 133 S.W.3d

at 227–28. If the plea challenges the existence of jurisdictional facts, we must consider

evidence when necessary to resolve the jurisdictional facts. Clark, 544 S.W.3d at 770.

If we consider evidence relating to the plea to the jurisdiction, a plaintiff must raise “at

least a genuine issue of material fact.” Id. at 771. “[W]e must take as true all evidence

favorable to the plaintiff, indulging every reasonable inference and resolving any doubts

in the plaintiff’s favor.”   Id.     But “we cannot disregard evidence necessary to show

context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if

reasonable jurors could not.” Id. Once a defendant challenges the plaintiff’s case with


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evidence, as here, “the jurisdictional inquiry focuses on the evidence and whether the

plaintiff can create a fact issue.” Id. at 785. “In a suit against a governmental employer,

the prima facie case implicates both the merits of the claim and the court’s jurisdiction

because of the doctrine of sovereign immunity.” Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 635 (Tex. 2012). If the evidence raises a fact issue, the trial

court cannot grant the plea to the jurisdiction. Miranda, 133 S.W.3d at 228.

B.     Prima Facie Case of Disability Discrimination

       The elements of a disability discrimination case are that the employee: (1) has a

disability, (2) was qualified for the job, and (3) suffered an adverse employment decision

because of his disability. Green v. Dallas Cty Schools, 537 S.W.3d 501, 503 (Tex. 2017).

SRISD does not challenge Rodriguez’s disability, but challenges two parts of his prima

facie case: (1) whether he is a qualified individual with a disability and (2) the causal

relationship between his disability and the decision to terminate Rodriguez’s probationary

contract.

       Rodriguez argues that between the time of his stroke and his termination, SRISD

had no basis to terminate his employment other than his disability. SRISD argues that it

produced evidence to support a non-discriminatory motive to terminate Rodriguez:

Rodriguez’s alleged misconduct that was memorialized in a January 12, 2016 memo from

the principal at Jo Nelson Middle School to the district superintendent. According to the

memo, Rodriguez mishandled his interactions with multiple students on January 6, 2016

during math benchmark testing. At least one female student complained of unwanted




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attention and hugging that made her uncomfortable. 1                     According to the memo, the

principal recommended to the superintendent that Rodriguez’s teacher contract be

terminated immediately. The memo states that the principal talked with Rodriguez and

advised him that he was suspended with pay until further notice and would receive

confirmation from the superintendent in writing.

        Rodriguez does not address his suspension or the allegations of misconduct as a

basis for his termination. He denies that he knew anything about plans to terminate his

employment until he received SRISD’s letter in May 2016. Rodriguez does not deny that

he met with his principal or that they discussed the misconduct outlined in the principal’s

memo to the superintendent.

        When an employer articulates a legitimate reason to terminate a plaintiff’s

employment, the employer eliminates any presumption of discrimination created by the

plaintiff’s prima facie showing, and the burden then shifts back to the plaintiff to show that

the employer’s stated reason was a pretext for discrimination. Garcia, 372 S.W.3d at

635. Rodriguez did not attempt to rebut SRISD’s claim that the reason for his termination

was misconduct. A “plaintiff can usually provide sufficient evidence of discriminatory

intent by showing that the employer’s proffered reason for the adverse action is false.”



        1  According to the memo, the math benchmark, a practice test to determine student knowledge
was held on January 6, 2016. Rodriguez approached a group of students after the test and began to talk
to them about self-defense and pressure points in the human body. He asked for volunteers to
demonstrate. Rodriguez demonstrated on two students, one of whom was female. Another female
student claimed that Rodriguez called on her to volunteer, but she refused. He “proceeded towards her
and pinched her behind her leg close to her behind.” Other students confirmed that they witnessed one or
more of these interactions. One female student alleged that “Rodriguez calls her ‘Mi Amor,’ winks at her
and hugs her randomly telling the class, ‘I really love this girl.’” Rodriguez admitted discussing self-defense
and pressure points. He further admitted that he demonstrated on one male student, but he denied
touching any of the girls. He admitted that he allowed students to lay on the floor after the test.
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Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141–49 (2000). Because

Rodriguez did not produce evidence to raise a fact issue regarding his employer’s motive,

the trial court erred by denying SRISD’s plea to the jurisdiction. See Clark, 544 S.W.3d

at 784–85. We sustain SRISD’s single issue.

                                   III.   CONCLUSION

      We reverse the trial court’s order denying the plea to the jurisdiction and render

judgment dismissing Rodriguez’s claims for lack of jurisdiction.



                                                              GINA M. BENAVIDES,
                                                              Justice


Delivered and filed the
6th day of December, 2018.




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