                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §
 EL PASO COMMUNITY COLLEGE,                                           No. 08-08-00174-CV
                                                      §
                           Appellant,                                      Appeal from
                                                      §
 v.                                                                    168th District Court
                                                      §
 ANTONIO LAWLER,                                                     of El Paso County, Texas
                                                      §
                           Appellee.                                     (TC # 2006-206)
                                                      §

                                              OPINION

       This is an interlocutory appeal taken by the El Paso Community College District from an

order denying its plea to the jurisdiction. We affirm.

                                        FACTUAL SUMMARY

       Antonio Lawler, who is Hispanic, began working for El Paso Community College District

(EPCC) in 1984 as a part-time, non-credit welding instructor. Until 2004, EPCC offered only non-

credit welding courses. In 2004, EPCC began offering credit courses in welding which could lead

to an associates degree in Machining Technology. EPCC assigned Lee Lowers, a non-Hispanic, to

teach the credit courses and Lawler continued teaching the non-credit courses. In the summer of

2004, the credit and non-credit classes were combined due to low enrollment and Lowers was

assigned to teach the combined class. On June 10, 2004, Lawler sent a written memorandum to the

ATC1 Director, Carrie Powell, complaining that he had been scheduled to teach the course and it was

instead given to Lowers. Lawler expressed his belief that the decision was made because of his



       1
           ATC is the abbreviation for Advanced Technology Center.
national origin and he filed an EEOC complaint. EPCC subsequently determined that neither

Lowers nor Lawler was credentialed to teach the course. Powell recommended Lawler for credential

exception to the Faculty Credentials Review Committee (FCRC), but the FCRC rejected Lawler’s

application on August 18, 2004. In response to that decision, Lawler filed a retaliation charge with

the EEOC. Vice President Yolanda Ahner reviewed Lawler’s records and substituted course work

in order for Lawler to qualify for a certificate of completion from EPCC. Through the efforts of

Ahner, Lawler obtained his college-level certificate in November 2004 and he taught a credit

welding course beginning in January 2005.

       In September 2005, Craig Acuna provided Lawler with a new syllabus for the credit welding

course which he had drafted. The following month, the new ATC Director, Jose Canales, asked

Lawler whether he was using Acuna’s syllabus. Lawler responded that he had distributed the

syllabus to the class but it could not be used to teach the students what they needed to learn. Lawler

was instead using his own syllabus from the non-credit welding course. Canales ordered Lawler to

use the new syllabus. The following day, Lawler resigned because he felt that use of the syllabus

rendered the employment conditions intolerable.

       Lawler filed suit on January 13, 2006, complaining EPCC discriminated against him because

of his Hispanic national origin when it did not accept his credentials to teach credit welding courses,

earmarked his faculty credentials form to prevent him from teaching credit welding courses,

assigned him to teach only non-credit courses, and combined his non-credit class with a credit class

to be taught by a non-Hispanic instructor. Lawler also alleged that EPCC retaliated against him for

filing a discrimination complaint by not hiring him to teach welding courses, by requiring him to

apply for alternative credentials, and by requiring him to use the new syllabus when teaching the

credit welding course in the Fall of 2005. The following month, Lawler filed a third EEOC charge
alleging age discrimination and retaliation. On December 15, 2006, EPCC filed a plea to the

jurisdiction on the ground that because Lawler had failed to state a prima facie case of discrimination

under Chapter 21 of the Texas Labor Code, its sovereign immunity had not been waived.2 On July 5,

2007, Lawler amended his petition to include the age discrimination claim raised in the third EEOC

charge. The trial court denied the plea to the jurisdiction and EPCC filed notice of appeal.3

                                   EMPLOYMENT DISCRIMINATION

         In two issues, EPCC argues that the trial court erred by denying its plea to the jurisdiction

because Lawler failed to “plead or present facts to establish discrimination” on the basis of national

origin, age, or retaliation.

                                                Sovereign Immunity

         Sovereign immunity deprives a trial court of subject-matter jurisdiction of lawsuits in which

the state or certain governmental units have been sued unless the state consents to suit. Texas

Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (2004). The Texas Commission

on Human Rights Act provides a limited waiver of sovereign immunity when a governmental unit

has committed employment discrimination on the basis of race, color, disability, religion, sex,

national origin, or age. See TEX .LABOR CODE ANN . § 21.051 (Vernon 2006)(prohibiting unlawful

employment practices by “employer”); § 21.002(8)(D)(Vernon Supp. 2010)(defining “employer” to

include a county, municipality, state agency, or state instrumentality).


         2
            In the motion, EPCC noted that Lawler’s third EEOC charge had been decided adversely to him but he had
not yet filed suit with respect to that charge.

         3
             W e ordered the parties to mediate but mediation was unsuccessful. EPCC later filed a motion to abate the
appeal and remand to the trial court for the parties to address issues raised during the mediation because EPCC
represented in its motion that it would possibly facilitate settlement of the case. W e granted the motion and abated the
appeal. In the subsequent trial court proceedings, EPCC offered additional evidence related to its plea to the jurisdiction
and the trial court reconsidered EPCC’s plea to the jurisdiction. The trial court again denied the plea to the jurisdiction
and we reinstated the appeal.
                                        Plea to the Jurisdiction

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

subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland

Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plaintiff has the burden

to allege facts that affirmatively demonstrate that the trial court has subject matter jurisdiction.

Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993); Gomez

v. Housing Authority of the City of El Paso, 148 S.W.3d 471, 477 (Tex.App.--El Paso 2004, pet.

denied). When a plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally

in favor of the plaintiff and review de novo whether the plaintiff has met his burden. Miranda, 133

S.W.3d at 226; Texas Department of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex.App.--

Austin 2004, no pet.). When a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues. Miranda, 133 S.W.3d at 227; Cooke, 149 S.W.3d at 704. In some cases, the issue is whether

undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction. Miranda, 133

S.W.3d at 226. This is also a question of law subject to de novo review. Id. at 226. But in other

cases, there can exist disputed evidence of jurisdictional facts which also implicates the merits of the

case. Id. at 227. In that instance, the trial court reviews the relevant evidence to determine if a fact

issue exists. Id. If a fact issue exists, the trial court cannot grant the plea to the jurisdiction and the

fact issue must be resolved by the fact finder. Id. at 227-28. If the relevant evidence is undisputed

or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law. Id. at 228. This standard mirrors that of a summary judgment under

Texas Rule of Civil Procedure 166a(c). Id. Where the pleading requirement has been met and

evidence has been submitted that implicates the merits of the case, we take as true all evidence
favorable to the nonmovant. Id. We indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor. Id.

                               Purported Challenge to the Pleadings

       We will first address EPCC’s purported challenge to Lawler’s pleadings. Although EPCC

includes a challenge to the pleadings in its statement of Issue Two, it does not specifically address

this argument in the body of the brief. Instead, EPCC focuses its entire argument on the evidence

submitted in support of its challenge to the jurisdictional facts. Rule 38.1(I) requires the brief to

contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record. TEX .R.APP .P. 38.1(I). In the absence of any analysis of Lawler’s

pleadings or argument related to their adequacy, we find that this aspect of Issue Two is inadequately

briefed.

                               Challenge to the Jurisdictional Facts

       In its plea to the jurisdiction, EPCC challenged the existence of certain jurisdictional facts.

In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima

facie case. Bowen v. El Paso Electric Company, 49 S.W.3d 902, 908 (Tex.App.--El Paso 2001, pet.

denied). The plaintiff must demonstrate: (1) he is a member of a protected class; (2), he suffered

an adverse employment action; (3) he was qualified for the job he held; and (4) he was replaced by

someone not in his protected class. Id. In establishing a prima facie case, the plaintiff is only

required to make a minimal showing. Id. at 908-09. Lawler is required to assert a prima facie case

of national origin and age discrimination for the trial court to have subject matter jurisdiction over

his claim.

       If the plaintiff is successful in establishing a prima facie case, the burden of production shifts

to the employer to produce evidence that the plaintiff was terminated for a legitimate,
nondiscriminatory reason. Id. at 909. This burden is one of production only, not persuasion,

involving no credibility assessment. Id.          Once the employer articulates a legitimate

nondiscriminatory reason for the adverse job action, the plaintiff may prove discrimination by

showing “that the legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Id., quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 143, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). The plaintiff may do this by showing that

the employer’s proffered explanation is unworthy of credence. Id.

                 National Origin Discrimination Claim - Qualification Element

       It is undisputed that Lawler is a member of a protected class and he was not assigned to teach

the credit welding course in May 2004. EPCC contended in its plea to the jurisdiction that Lawler

was not qualified to teach the credit welding course at that time. If EPCC is correct, Lawler cannot

maintain his discrimination claim.

       Lawler received a certificate of completion in welding from the East Los Angeles Skills

Center in 1981. EPCC attached to its plea to the jurisdiction an affidavit of Nancy Nelson, Associate

Vice-President for Employee Relations of EPCC. She stated that the qualification requirements for

teaching credit welding courses are greater than the qualification requirements for teaching non-

credit classes. To be qualified to teach a credit welding class, an instructor must have the minimum

of a certificate of completion in welding from a post-secondary institution. According to Nelson,

neither Lawler nor Lowers had the required certificate of completion. EPCC determined in 2003 that

Lowers was qualified to teach the credit welding course because he had a Texas Teachers Certificate

which his supervisors accepted as being equivalent to a Bachelor’s degree. She admitted that Lawler

had a Texas Teachers Certificate but claimed he did not submit it in 2003 as part of his faculty

credentialing materials and he had not submitted it by May 2004. Lawler presented evidence that
he had submitted his Texas Teachers Certificate to EPCC twice in 2003 and again in early 2004. It

was not until after Lawler voiced his national origin discrimination complaint and brought to

EPCC’s attention that he had a Texas Teachers Certificate that EPCC reconsidered the propriety of

qualifying an instructor based on a Texas Teachers Certificate. At that point, EPCC determined that

a Texas Teachers Certificate is not the equivalent of a Bachelor’s degree.

       The issue is not what qualification standard applied after the alleged discriminatory act but

what standard applied at the time it occurred. EPCC established with its own evidence that an

instructor could qualify to teach a credit welding course in May 2004 if he possessed a Texas

Teachers Certificate. Lawler offered evidence that he had a Texas Teachers Certificate and he had

provided it to EPCC in 2003 and early 2004. This evidence is sufficient to create a fact issue as to

whether Lawler was qualified to teach the credit welding course under the qualification standard

utilized by EPCC in May 2004. The existence of this fact issue would preclude the granting of

EPCC’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 227-28.
           Age Discrimination and Retaliation - Adverse Employment Action Element

       EPCC next argues that sovereign immunity is not waived with respect to Lawler’s age

discrimination and retaliation claims because, with the exception of constructive discharge, the

actions he complains of are not adverse employment actions. In his second amended petition, Lawler

based his age discrimination claim on allegations that his age was a motivating factor in EPCC’s

decision (1) to exclude him from a meeting with Jose Canales where expectations of the faculty was

discussed, (2) to require him to attend a private meeting with Canales, and (3) to require him to

follow the course syllabus. Lawler also asserted that he was constructively discharged. In

connection with his retaliation claim, Lawler alleged that EPCC retaliated against him for filing a

discrimination complaint by requiring him to apply for alternative credentials, and by requiring him

to use the new syllabus when teaching the credit welding course in the Fall of 2005. He again

alleged he was constructively discharged.

       An employment discrimination claim requires that the plaintiff prove that he suffered an

adverse employment action. See Bowen, 49 S.W.3d at 908 (stating elements of employment

discrimination claim under TCHRA). Likewise, a retaliation claim made under Section 21.055 of

the Texas Labor Code requires the plaintiff to make a prima facie showing that he suffered an

adverse employment action. See Bartosh v. Sam Houston State University, 259 S.W.3d 317, 329

(Tex.App.--Texarkana 2008, pet. denied); Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676

(Tex.App.--Houston [14th Dist.] 2007, pet. denied). To prove that a challenged action constitutes

an adverse employment action, the plaintiff must show that a reasonable employee would have found

the challenged action materially adverse, which in this context means it might well have dissuaded

a reasonable worker from making or supporting a charge of discrimination. Burlington Northern &

Santa Fe Railway Company v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345
(2006); Niu v. Revcor Molded Products Company, 206 S.W.3d 723, 731 (Tex.App.--Fort Worth

2006, no pet.)(applying Burlington standard to retaliation claim under TCHRA). The requirement

that an action be “materially adverse” exists to separate significant from trivial harms, such as “petty

slights, minor annoyances, and simple lack of good manners.” Burlington, 548 U.S. at 68; Niu, 206

S.W.3d at 731. The action is judged from the standpoint of a reasonable employee because the

standard for judging harm must be objective. Id. The standard is general because the significance

of any given act of retaliation will often depend upon the particular circumstances. Id.

       Lawler does not argue on appeal that exclusion from a meeting, required attendance at a

meeting, or being required to use a new syllabus are adverse employment actions under Burlington’s

standard. We find as a matter of law that a reasonable employee would not have found the

challenged actions materially adverse because they would not dissuade a reasonable worker from

making or supporting a charge of discrimination.           However, Lawler also alleged he was

constructively discharged.     Constructive discharge is an adverse employment action under

Burlington.

       EPCC challenges Lawler’s claim of constructive discharge. A constructive discharge occurs

when an employer makes conditions so intolerable that an employee reasonably feels compelled to

resign. See Baylor Univ. v. Coley, 221 S.W.3d 599, 604-05 (Tex. 2007), citing Pennsylvania State

Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, 159 L.Ed.2d 204 (2004); Hammond v.

Katy Independent School District, 821 S.W.2d 174, 177 (Tex.App.--Houston [14th Dist.] 1991, no

writ). Many factors are relevant to the consideration of whether the plaintiff was constructively

discharged, including evidence of badgering, harassment, or humiliation by the employer calculated

to encourage the employee’s resignation. Davis v. City of Grapevine, 188 S.W.3d 748, 766

(Tex.App.--Fort Worth2006, pet. denied). Even accepting Lawler’s pleadings as true, his allegations
related to the employment conditions do not state a prima facie case that the conditions were so

intolerable that an employee would reasonably feel compelled to resign.

       We have also examined the evidence related to Lawler’s pleadings of constructive discharge

to determine if Lawler can establish a prima facie case of constructive discharge. In his affidavit,

Lawler related that in the summer of 2005, he was assigned to teach a welding course for the fall

semester. On September 2, 2005, the ATC director, Jose Canales, met with the faculty but Lawler

did not attend because he had not been notified about the meeting. Lawler stated in his pleadings

that Canales met with the faculty on this date to discuss his expectations of the faculty. Lawler also

described in his affidavit how Canales met with him on September 19, 2005 for the same purpose

but Canales never discussed his expectations of the faculty with Lawler. Canales did, however,

discuss Lawler’s charges of discrimination but there is no evidence that Canales made any statements

that would have caused an employee to reasonably feel compelled to resign.

       Lawler also maintains in his affidavit that EPCC’s insistence that he use the new syllabus to

teach the Welding Using Multiple Processes course is the condition which compelled him to resign

his employment, or as he put it, the “last straw.” He related how Canales ordered him on

October 18, 2005 to use the new syllabus despite his objections. Lawler explained in his affidavit

that the Welding using Multiple Processes course is EPCC’s introductory welding course. It is the

foundation for all of the other credit welding courses offered by the College and the students are

expected to learn using the equipment in the welding laboratory. It was impossible for an instructor

to follow the new syllabus calendar because the College had limited equipment. As an example of

the problem, Lawler explained that the syllabus calendar required lab practice on four dates in

October for torch set-up and operation, torch cutting and plate preparation, and torch flame cutting

and oxy fuel welding, but there were only five torches for the class’s eleven students. In his
experience, the students needed three hours of practice on the torch each scheduled day to pass the

course and to be ready for the higher level credit welding courses. If the instructor used the new

syllabus, the students would be behind at the conclusion of the class and the instructor would not

have taught the students what they needed to learn. Lawler concluded that EPCC’s requirement that

he use the new syllabus had a materially adverse effect on the conditions of employment because he

could not teach the course using the syllabus. Consequently, he quit his position.

        We find that a fact issue exists regarding whether Canales’ pointed insistence that Lawler use

a syllabus with which he fundamentally disagreed for the reasons set forth in his affidavit would

create the type of intolerable conditions that would cause him to reasonably feel compelled to resign.

Given the existence of this fact issue, the trial court did not err by denying the plea to the jurisdiction

as it relates to the age discrimination and retaliation claims. We overrule Issues One and Two and

affirm the order denying the plea to the jurisdiction.



November 30, 2010
                                                         ANN CRAWFORD McCLURE, Justice

Before McClure, J., Chew, J., and Barajas, C.J. (Ret.)
Chew, Judge, sitting by assignment
Barajas, C.J. (Ret.), sitting by assignment
