                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 THE UNIVERSITY OF TEXAS                                       No. 08-14-00314-CV
 AT EL PASO,                                    §
                                                                    Appeal from
                       Appellant,               §
                                                            County Court at Law No. 3
 v.                                             §
                                                             of El Paso County, Texas
 DIANA RUIZ ESPARZA,                            §
                                                              (TC # 2013-DCV-4283)
                       Appellee.                §


            OPINION CONCURRING IN PART AND DISSENTING IN PART

       I concur with the majority that issue preclusion does not bar Esparza’s claims and that

Esparza should be allowed the opportunity to replead her age, national origin, and gender claims

because her pleadings, although deficient, do not affirmatively negate the existence of

jurisdiction. I respectfully dissent, however, to the majority’s decision to remand Esparza’s

retaliation claim. In my opinion, UTEP presented sufficient evidence to establish a lack of

causation by showing that Esparza’s retaliation claim arose from alleged defects in a hearing that

occurred after her termination. It then became Esparza’s burden to present some evidence to

raise a fact issue that any defects in the post-termination hearing were somehow a causal factor

in her termination. Because Esparza did not present any such evidence, her retaliation claim

should be dismissed.
       We were faced with a similar issue in Esparza I. There, we noted that it is axiomatic that

a plaintiff cannot show a causal link in a retaliation case when the employer’s alleged acts

occurred before the plaintiff engaged in a protected activity. Esparza v. Univ. of Texas at El

Paso, 471 S.W.3d 903, 914 (Tex.App.--El Paso 2015, no pet.). In holding that the jurisdictional

evidence negated causation on Esparza’s retaliation claim in Esparza I, we relied in part on

Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013). Id.

       In Farran, the Texas Supreme Court considered whether the jurisdictional evidence

negated causation in Farran’s claim under the Whistle Blower Act. After the school board had

given notice of its intent to terminate him, Farran made a report of an alleged crime to the FBI.

409 S.W.3d at 656. The Supreme Court held that in order to prevail on a theory that the FBI

report caused his termination, Farran had the burden to show that but for his FBI report, the

school district would have changed its mind and retained him. Id. Farran, like Esparza, claimed

that in a subsequent due process hearing held after the school board had given notice of its intent

to terminate, he was unable to present evidence relevant to his whistleblower claims. Id. The

Supreme Court held that: “Regardless, the record is devoid of evidence that the board would

have been persuaded to change its mind but for the report to the FBI, that the report had any

influence on the hearing officer’s recommendation that the initial termination decision be

sustained, or that the report otherwise played a role in the board’s preliminary or final

termination decisions.” Id.

       Similarly, once UTEP demonstrated through jurisdictional evidence that the due process

hearing occurred after Esparza’s termination, Esparza had the burden to present evidence to at

least raise a fact issue that any defects in the post-termination hearing were somehow a causal

factor in her termination. To do this, Esparza could have presented the evidence she claims she



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was barred from presenting at the post-termination hearing, in order to show that UTEP would

have been persuaded to change its mind but for its exclusion. Or assuming Cantu v. Hidalgo

County, 398 S.W.3d 824, 829 (Tex.App.--Corpus Christi 2012, pet. denied) applies, Esparza

could have presented some evidence showing that the remedies and procedures of UTEP’s post-

termination process entitled her to a better chance of reinstatement or more relief than TCHRA.

But, because Esparza presented no such evidence, her retaliation claim should have been

dismissed. Accordingly, I would sustain UTEP’s third issue and dismiss the retaliation claim.


September 28, 2016
                                     STEVEN L. HUGHES, Justice




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