      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-16-00706-CV



                                 Angela Jo Carter, Appellant

                                                v.

                               The Honorable Glenn Hegar,
                       Texas Comptroller of Public Accounts, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
     NO. D-1-GN-14-000943, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Angelo Jo Carter sued the Honorable Glenn Hegar, Texas Comptroller of Public

Accounts, for disability-based employment discrimination and retaliation under the Texas

Commission on Human Rights Act (TCHRA) and the Americans with Disabilities Act (ADA). The

Comptroller filed a plea to the jurisdiction and motion for summary judgment based on sovereign

immunity. The trial court granted the Comptroller’s plea and motion, dismissing both Carter’s

TCHRA and ADA claims. On appeal, Carter challenges the trial court’s order as to her TCHRA

claims. We will affirm the trial court’s judgment.


                                          Background

               Between 1977 and 2009, Carter worked off and on—approximately ten years

total—for the Comptroller in various positions, including data-entry operator and HUB compliance
and certification analyst.1 According to Carter, she was an exemplary Comptroller employee who

consistently received excellent performance reviews. Carter left the Comptroller for the final time

in 2010 after taking a medical leave of absence related to her having bipolar disorder.

               In 2012, Carter applied for a position as a HUB Certification specialist at the

Comptroller. After an internal screening process eliminated a number of less qualified applicants,

Carter and one other applicant were asked to interview in front of a four-person panel consisting of

the manager over the vacant position, Paul Gibson, and Comptroller employees Suzette Ballenger,

Ricardo Perez, and Allen Roberts. During the separate, live interviews, the panel members asked

the applicants the same job-related questions and scored the applicant’s responses to the questions

based on parameters defined on a Comptroller-approved interview sheet. Those scores were later

tallied and averaged to generate a final interview score for each applicant. The applicant with the

highest average interview score, which was not Carter, was hired for the position.

               After not being hired for the position, Carter sued the Comptroller for violations of

the TCHRA and the ADA. See generally Tex. Lab. Code §§ 21.001–.556 (TCHRA); 42 U.S.C.A.

§§ 12101–12213 (ADA). In her pleadings, Carter alleged that the Comptroller discriminated against

her by hiring a less qualified applicant and basing that decision on the Comptroller’s mistaken belief

that Carter’s bipolar disorder and clinical depression would prevent her from properly performing

the job at issue. According to Carter, at least three of the panel members (including Gibson) knew




       1
          HUB stands for “historically underutilized business.” State agencies and their general
contractors are required to make a “good faith effort” to use HUBs for state projects. See Tex. Gov’t
Code §§ 2161.252–.253. The Comptroller is the state agency tasked with certifying qualified
vendors as HUBs. See id. § 2161.061.

                                                  2
about her disability and leave history, and Gibson told the three other panel members to adjust their

scores for the applicants because “of Angie Carter’s past and it would be difficult to work with her

again, so it would just be hard for them to consider her.”

               The Comptroller vigorously disputes Carter’s characterization of the events and filed

a plea to the jurisdiction and motion for summary judgment to challenge Carter’s claims. These

motions assert that the trial court lacked jurisdiction over Carter’s TCHRA and ADA claims because

Carter failed to demonstrate a prima facie case for her claims and, thus, had failed to show there had

been a waiver of sovereign immunity. The Comptroller also argued that Carter could not meet her

burden to prove that the Comptroller’s legitimate, non-discriminatory reasons were mere pretext for

the discriminatory motive. The trial court agreed, granting both the Comptroller’s plea to the

jurisdiction and motion for summary judgment, and issued an order dismissing Carter’s claims.

Carter challenges that ruling.


                                             Discussion

               Carter raises two issues on appeal: (1) the trial court erred in granting the

Comptroller’s plea to the jurisdiction as to her TCHRA claims because “the Comptroller’s sovereign

immunity was not established as a matter of law”; and (2) the trial court erred in granting the

Comptroller’s motion for summary judgment as to her TCHRA claims because there were genuine

issues of material fact regarding each challenged element of her claims. Carter does not appeal the

trial court’s ruling as it relates to her ADA claims.




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Standard of review

               The State and its agencies, including the Comptroller here, are immune from suit

unless the State consents. See Alamo Heights Indep. Sch. Dist. v. Clark, __ S.W.3d __, No. 16-0244,

2018 WL 169, at *7 (Tex. April 6, 2018) (citing Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 636 (Tex. 2012); Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

224 (Tex. 2004)). The TCHRA waives immunity, but only when the plaintiff states a claim for

conduct that actually violates the statute. Id. (citing Mission, 372 S.W.3d at 637 (citing Tex. Lab.

Code § 21.254)).

               Immunity from suit may be asserted through a plea to the jurisdiction or other

procedural vehicle, such as a motion for summary judgment. Id. (citing Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000)). 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.

Id. (citing Miranda, 133 S.W.3d at 227). If, however, the plea challenges the existence of

jurisdictional facts, we must move beyond the pleadings and consider evidence when necessary to

resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and

the merits of a claim. Id. (citing Mission, 372 S.W.3d at 635; Bland, 34 S.W.3d at 555).

               Here, the Comptroller’s jurisdictional plea challenged the existence of jurisdictional

facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional

summary judgment: “[I]f the plaintiffs’ factual allegations are challenged with supporting evidence

necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at



                                                  4
least a genuine issue of material fact to overcome the challenge to the trial court’s subject matter

jurisdiction.” Miranda, 133 S.W.3d at 221, 225–26. In determining whether a material fact issue

exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable

inference and resolving any doubts in the plaintiff’s favor. Id. at 228. In doing so, however, we

cannot disregard evidence necessary to show context, and we cannot disregard evidence and

inferences unfavorable to the plaintiff if reasonable jurors could not. See City of Keller v. Wilson,

168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005).


Disability discrimination

                The TCHRA prohibits discrimination based on disability: “An employer commits an

unlawful employment practice if because of . . . disability . . . the employer fails or refuses to hire

an individual . . . .” Tex. Lab. Code § 21.051(1). To obtain relief for such discrimination, a plaintiff

must show that (1) she has a “disability”; (2) she is “qualified” for the job; and (3) she suffered an

adverse employment decision—here, that she was not hired—on account of her disability. See

E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (adopting elements); Adams v.

Artco-Bell Corp., No. 03-08-00690-CV, 2010 WL 1507796, at *2 (Tex. App.—Austin 2010, no pet.)

(mem. op.) (citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996); Davis v.

City of Grapevine, 188 S.W.3d 748, 757 (Tex. App.—Fort Worth 2006, pet. denied)). The

dispositive issue in this appeal is whether Carter raised a fact issue on the third element, that she was

not hired because of her disability.

                Carter makes, and has offered at least some evidence for, the following contentions

in support of the third element of her disability claim:

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•      In her prior employment at the Comptroller, Carter received positive performance reviews
       and promotions and had a good working relationship with her supervisors.

•      Carter had to take disability-related leave during her prior employment with the
       Comptroller’s office.

•      Panel members Gibson and Ballenger knew of Carter’s disability and leave history before
       Carter’s 2012 interview.

•      Gibson, the manager of the vacant position for which Carter applied, was reluctant to
       interview Carter and did so only after he was directed by human resources to do so. In
       connection with the interview, Gibson told human resources that he “knew [Carter] had HUB
       experience but he could not let that influence his scoring on her [interview] responses.”

•      Gibson told the other members of the 2012 interview to adjust their scores for the applicants
       because “they knew of Angie Carter’s past and it would be difficult to work with her again,
       so it would just be hard for them to consider her.”

•      Carter was not hired for the HUB certification analyst position because her average interview
       score was lower than the other applicant’s average score.


In addition, Carter’s own evidence conclusively establishes that Gibson (and Roberts) actually

awarded higher scores to Carter than they awarded to the other applicant.

               Carter maintains that the evidence is sufficient to give rise to a question of fact

regarding whether she was not hired on account of her disability. But even under the applicable

standard of review—i.e., taking as true all evidence favorable to Carter, indulging every reasonable

inference, and resolving any doubts in Carter’s favor, see Miranda, 133 S.W.3d at 228—we disagree.

Carter has failed to offer any causal nexus between her disability and the Comptroller’s motivation

for not hiring her. That Carter had a known disability and Gibson allegedly conspired to make sure

she was not hired does not support, without something more, the conclusion that Gibson’s reason

for not wanting to hire her was motivated by the disability. A plaintiff “cannot establish a prima



                                                 6
facie case of employment discrimination based upon ‘conclusory allegations, . . . or subjective

beliefs and feelings.’” Michael v. City of Dallas, 314 S.W.3d 687, 692 (Tex. App.—Dallas 2010,

no pet.) (finding no prima facie case of disability discrimination under TCHRA and quoting, in

support, Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 425 (Tex. App.—Houston [1st Dist.]

2000, no pet.) (alteration in original)). Accordingly, we hold that Carter has failed to establish a

prima facie case of disability discrimination and we overrule Carter’s issues.


                                           Conclusion

               Having overruled Carter’s issues on appeal, we affirm the trial court’s judgment.



                                              _________________________________________
                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: May 25, 2018




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