                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

 THE UNIVERSITY OF TEXAS                         §
 AT EL PASO,                                                 No. 08-12-00115-CV
                                                 §
                 Appellant,                                    Appeal from the
                                                 §
 v.                                                           171st District Court
                                                 §
 MAGDALENA OCHOA,                                          of El Paso County, Texas
                                                 §
                 Appellee.                                      (TC#2010-121)
                                                 §


                                        OPINION

       In this accelerated interlocutory appeal, Appellant, The University of Texas at El Paso

(UTEP) appeals the trial court’s order denying its plea to the jurisdiction. TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014 (a)(8) (West 2008). We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

       Appellee, Magdalena Ochoa (Ochoa) is a former employee of Human Capital International

LLC d/b/a Integrated Human Capital, LLC (IHC), a staff leasing company in El Paso, Texas.

UTEP contracted with IHC for the provision of various temporary staffing services on an

as-needed basis. Under the contract, IHC would pay the employees it assigned to work at UTEP,

and then bill UTEP for the services performed.

       On September 15, 2008, pursuant to the contract, IHC assigned Ochoa to provide
temporary custodial services at UTEP’s facilities. On or around March 26, 2009, Ochoa reported

that Emilio Fernandez, her UTEP supervisor, had sexually harassed her. Ochoa made the report

to UTEP personnel, Manuela Rocha and Jeff Johnson. On or about March 28, 2009, UTEP ended

Ochoa’s work assignment and asked her to report back to IHC. UTEP then called IHC to inform

them that Ochoa’s assignment had been ended due to poor performance. Ochoa subsequently

contacted IHC to report the sexual harassment and that she believed she was being retaliated

against for reporting the sexual harassment.

         On April 8, 2009, UTEP offered to reinstate Ochoa’s work assignment under different

supervision and to provide her with backpay. Rather than accept a reassignment at UTEP, Ochoa

chose to look for other employment.

         On January 13, 2010, Ochoa sued IHC1 and UTEP alleging that Fernandez subjected her to

sexual and verbal harassment and that UTEP engaged in sex discrimination and retaliation in

violation of the Texas Commission on Human Rights Act (TCHRA). See TEX. LAB. CODE ANN.

§§ 21.051, 21.055 (West 2006).2 In response, UTEP filed a general denial and a plea to the

jurisdiction. Later, UTEP filed an amended plea to the jurisdiction, which included a motion for

partial summary judgment. In its plea to the jurisdiction, UTEP asserted that IHC was Ochoa’s

employer, UTEP had no control over Ochoa’s relationship with IHC, and that it was immune from

Ochoa’s suit under the TCHRA. Ochoa responded that UTEP was her employer for purposes of

the TCHRA. Alternatively, Ochoa maintained that a direct employment relationship with UTEP


1
  IHC was dismissed as a party to the suit and is not a party to this appeal.
2
  Under the TCHRA, it is unlawful for an employer to discriminate against an individual with respect to
compensation, or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex,
national origin, or age. TEX. LAB. CODE ANN. § 21.051. The TCHRA also prohibits retaliation by an employer
against a person who opposes a discriminatory practice. Id. at § 21.055. Chapter 21 emulates Title VII of the
Federal Civil Rights Act, and sexual harassment is a form of prohibited sex discrimination. De Santiago v. W. Tex.
Cmty. Supervision & Corr. Dep’t, 203 S.W.3d 387, 391 (Tex. App. – El Paso 2006, no pet.).
                                                          2
was not required for her to have standing to file suit under the TCHRA. After a hearing, the trial

court denied UTEP’s plea to the jurisdiction and motion for partial summary judgment. This

appeal followed.3

                                                  DISCUSSION

          In a single issue on appeal, UTEP contends that the trial court lacked subject matter

jurisdiction and erred in denying its plea to the jurisdiction because Ochoa failed to properly

invoke the limited waiver of governmental immunity available under the TCHRA.

                                                Standard of Review

          A plea to the jurisdiction contests a trial court’s subject matter jurisdiction. City of Dallas

v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010); Samaniego v. Keller, 319 S.W.3d 825, 828 (Tex.

App. – El Paso 2010, no pet.). A trial court’s ruling on a plea to the jurisdiction is reviewed de

novo.       Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); De

Santiago, 203 S.W.3d at 393. The plaintiff has the burden of pleading facts which affirmatively

show that the trial court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993).

          Thus, we first consider the plaintiff’s petition to determine whether the facts pleaded

affirmatively demonstrate that jurisdiction exists. State v. Holland, 221 S.W.3d 639, 642-43

(Tex. 2007), citing Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of

the pleader, look to the pleader’s intent, and accept as true the factual allegations in the pleadings.

Miranda, 133 S.W.3d at 226, 228. If the pleadings are insufficient to establish jurisdiction but do

not affirmatively demonstrate an incurable defect, the plaintiff should be afforded an opportunity

to replead. Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 226-27. However, in some
3
    On appeal, UTEP does not challenge the trial court’s denial of its motion for partial summary judgment.
                                                           3
instances, a plea to the jurisdiction may require our consideration of evidence pertaining to

jurisdictional facts.   Holland, 221 S.W.3d at 643; Miranda, 133 S.W.3d at 227; Bland

Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “A plea should not be

granted if a fact issue is presented as to the court’s jurisdiction, but if the relevant undisputed

evidence negates jurisdiction, then the plea to the jurisdiction must be granted.” Holland, 221

S.W.3d at 643, citing Miranda, 133 S.W.3d at 227-28.

                              LIABILITY UNDER THE TCHRA

       On appeal, UTEP complains that the trial court erred in denying its plea to the jurisdiction

because it is immune from Ochoa’s suit under the TCHRA because: (1) UTEP was not Ochoa’s

employer; and (2) UTEP did not control Ochoa’s relationship or access to employment

opportunities with IHC.

                                      Sovereign Immunity

       Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against

the State or certain governmental units unless the State consents to suit. Miranda, 133 S.W.3d at

224. A limited waiver of sovereign immunity exists under the TCHRA when a governmental unit

has committed employment discrimination. See TEX. LAB. CODE ANN. § 21.254 (West 2006)

(providing that after certain administrative requirements have been met, complainant may bring

suit); § 21.051 (prohibiting unlawful employment practices by “employer”); § 21.002(8)(D)

(defining “employer” to include a county, municipality, state agency, or state instrumentality);

Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012) (noting that the TCHRA

provides a limited waiver of sovereign immunity).

                               Employer-Employee Relationship


                                                4
        One of the purposes of the TCHRA is to provide for the execution of the policies of Title

VII of the Civil Rights Act of 1964 and its subsequent amendments. TEX. LAB. CODE ANN. §

21.001(1) (West 2006). Accordingly, courts may look to analogous federal precedent for

guidance when interpreting the Act. See NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142, 144

(Tex. 1999); Miles v. Lee Anderson Co., 339 S.W.3d 738, 742 (Tex. App. – Houston [1st Dist.]

2011, no pet.).

        In order for an entity to be subject to liability under the TCHRA, a plaintiff must establish

that:   (1) the entity meets the statutory definition of “employer”; and (2) an employment

relationship existed between the parties. See De Santiago, 203 S.W.3d at 395-96; Ancira Enter.,

Inc. v. Fischer, 178 S.W.3d 82, 88 (Tex. App. – Austin 2005, no pet.). UTEP does not dispute

that the first element is satisfied, but instead argues that no employment relationship existed

between UTEP and Ochoa because UTEP contracted with IHC for the provision of temporary

staffing services.

        We apply a hybrid economic realities/common law control test to determine whether an

employment relationship exists between the parties for purposes of the TCHRA.                See De

Santiago, 203 S.W.3d at 395-96; Johnson v. Scott Fetzer Co., 124 S.W.3d 257, 263 (Tex. App. –

Fort Worth 2003, pet. denied); Thompson v. City of Austin, 979 S.W.2d 676, 681-82 (Tex. App. –

Austin 1998, no pet.). The economic realities component considers whether the alleged employer

paid the employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of

employment. De Santiago, 203 S.W.3d at 396. The control component focuses on whether the

alleged employer has the right to hire, fire, supervise, and set the alleged employee’s work

schedule. Id. The right to control an employee’s conduct is the more important component of


                                                 5
the test. See Deal v. State Farm County Mutual Insurance Company of Texas, 5 F.3d 117, 119

(5th Cir. 1993) (citing Fields v. Hallsville Indep. School Dist., 906 F.2d 1017, 1019 (5th Cir.

1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991)).

                              The Economic Realities Component

       The record before us establishes that UTEP contracted IHC to provide temporary staffing

services on an as-needed basis. IHC hired Ochoa and assigned her to work at UTEP. It was

IHC, and not UTEP, that paid Ochoa’s salary, withheld taxes, provided benefits, and set the terms

and conditions of Ochoa’s employment. On appeal, Ochoa does not dispute this evidence, nor

does she address the economic realities component of the test. Thus, there is no dispute that the

economic realities of Ochoa’s relationship with UTEP do not establish that an employment

relationship existed between the parties for purposes of the TCHRA.

                                    The Control Component

       As to the control component, UTEP maintains that based on its contract with IHC, no

employment relationship existed between UTEP and Ochoa. UTEP contends that it could not

hire or fire IHC’s employees, it was not responsible for providing IHC employees with assignment

details, such as the duration of their work assignment or appropriate work attire. UTEP asserts

that it merely placed an order for services with IHC and that it did not coordinate any of the

services provided by IHC employees.

       Ochoa argues that UTEP controlled and supervised the employees IHC assigned to work at

UTEP. Ochoa refers us to the deposition testimony of Rosa Santana, Latisha Times, Jeff

Johnson, and Emilio Fernandez in support of her argument.          Santana, the owner of IHC,

explained that once an IHC employee reported to work at UTEP, a UTEP employee or supervisor


                                               6
provided the instruction, direction, and control over the IHC employee. Similarly, Times, IHC’s

branch manager in 2009, stated that IHC did not have a supervisor located at UTEP’s facilities, and

that it was a UTEP supervisor who provided the day-to-day supervision of IHC’s employees.

Johnson, a supervisor in UTEP’s custodial department, testified that UTEP’s supervisors decided

which temp would work in a particular area. Fernandez, one of UTEP’s team leaders in the

custodial department and Ochoa’s alleged harasser, explained that he would meet with the

custodial workers on a daily basis to give them their assignments and instructions. Ochoa asserts

that this testimony clearly establishes that UTEP was Ochoa’s employer under the hybrid

economic realities/common law control test. We disagree.

        The contract between UTEP and IHC provided that IHC was to maintain a staff of properly

trained and experienced personnel. UTEP had the right to request the replacement of an IHC

employee who could not perform the required duties.          However, UTEP did not have the right to

hire and fire IHC employees from their employment with IHC. After UTEP ended Ochoa’s

assignment, IHC still considered Ochoa to be its employee. At that time, Ochoa was still eligible

for other assignments through IHC.4

        During their work assignment at UTEP, IHC employees had an off-site IHC supervisor

who was responsible for checking in with the employees and whom employees could contact if

there was a need. Although UTEP supervised and controlled the daily activities of IHC’s

employees, including Ochoa, while they were assigned to work at UTEP, that supervision and

control was part and parcel of the services contract entered into by IHC and UTEP. See

Magallanes v. Penske Logistics, LLC, 570 F.Supp.2d 907, 912-14 (W.D. Tex. 2008) (finding that


4
  IHC attempted to find Ochoa another assignment at UTEP because UTEP was the only client with whom Ochoa
could have been placed as IHC did not have much janitorial work with other clients.
                                                     7
an employee hired by Penske and then assigned to provide truck delivery services at another

company pursuant to a contract, was an employee of Penske and not the contracting company even

though the contracting company exercised several elements of control because the control and

direction of the employee was contemplated by the very nature of the parties’ agreement); see also

Reith v. TXU Corp., No. 4:05CV33, 2006 WL 887413, at *4 (E.D. Tex. Apr. 4, 2006) (finding that

plaintiff was the employee of a staffing agency and not of the defendant that contracted with

agency); Mayes v. Kelly Servs., Inc., No. 4:03-CV-091-A, 2004 WL 533951, at *3 (N.D. Tex. Feb.

11, 2004), aff’d, 108 Fed. Appx. 932, 933 (5th Cir. 2004) (finding that a temporary staffing agency

and not the company that contracted with the agency for staffing services, was the plaintiff’s

employer where agency paid plaintiff’s salary, withheld taxes, provided benefits and set certain

terms and conditions of employment). Based on the foregoing, we conclude that UTEP did not

exercise the requisite control over Ochoa’s employment so as to create an employment

relationship with Ochoa under the hybrid economic realities/common law control test. Reith,

2006 WL 887413, at *4; Mayes, 2004 WL 533951, at *3.

                                     Standing Under Rennels

        Next, UTEP argues that Ochoa cannot maintain standing to sue under the TCHRA because

she failed to meet the Rennels test for standing. In Rennels, the Texas Supreme Court held that a

direct employment relationship is not a prerequisite under the TCHRA if a plaintiff establishes

that:   (1) the defendant is an employer within the statutory definition of the Act; (2) some sort

of employment relationship existed between the plaintiff and a third party; and (3) the defendant

controlled access to the plaintiff’s employment opportunities and denied or interfered with that

access based on unlawful criteria.   Rennels, 994 S.W.2d at 147.    A defendant is in a position to


                                                8
control access to a plaintiff’s employment with a third party and deny or interfere with that

access based on unlawful criteria when the defendant can exert some control over the third

party’s employment decisions, and a contract gives the defendant control over certain

employment issues.      See id.   The control component under the interference theory of the

Rennels test is not the same as the control factor required to conclude that an employee-employer

relationship existed.   See Magallanes, 570 F.Supp.2d at 915.

       UTEP concedes that Ochoa meets the first two elements of the Rennels test. However,

UTEP maintains that Ochoa cannot satisfy the third element because UTEP did not control

access to Ochoa’s employment opportunities with IHC.      In support of its argument, UTEP relies

on Magallanes and Mayes. We find Magallanes and Mayes to be distinguishable from the

present case. Magallanes and Mayes complained about the control and interference with the

employment opportunities that corresponded to their third-party employer; however, Ochoa also

contends that UTEP controlled access to her employment opportunities with UTEP, and that these

opportunities with UTEP were denied or interfered with based on unlawful criteria.           See

Magallanes, 570 F.Supp.2d at 914-15; Mayes, 2004 WL 533951, at *1-3.

       Ochoa points to Johnson’s testimony as evidence establishing that UTEP controlled

Ochoa’s employment opportunities and denied or interfered with that access based on unlawful

criteria. Johnson described Ochoa as a “temp” who worked for UTEP. He agreed that often

times, the temporary employees became full-time employees, and that they were being evaluated

to see how well they performed. If a position was available, the temporary employees who

performed well would be offered a full-time position at UTEP.

       UTEP asserts that Ochoa’s argument is a misapplication of Rennels, and that “[i]t is


                                                9
nonsensical to attempt to apply Rennels standing where the allegation is essentially that an

employer has somehow impaired a plaintiff’s ability to obtain direct employment and has thereby

interfered with itself.” We disagree with UTEP’s understanding of the application of the Rennels

test. As noted in Rennels, under Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir.

1973), the seminal case allowing suit under Title VII in the absence of a direct employment

relationship between the plaintiff and the defendant, proper defendants do not have to be actual or

potential employers of a complainant, but they must control access to such employment and deny

such access based on discriminatory criteria. See Rennels, 994 S.W.2d at 145, 147. Moreover,

there is nothing in the language of the Rennels test requiring that a defendant control access to or

interfere with a plaintiff’s employment opportunities with the third-party. See Rennels, 994

S.W.2d at 147.        The language of the test clearly states that the defendant must control access to

the plaintiff’s employment opportunities and deny or interfere with that access based on unlawful

criteria.   See id.     To be sure, the Rennels test did not arise out of concern for a defendant’s

ability to interfere “with itself,” but rather out of the recognition and concern for the potential

interference of a person’s employment relationships or access to employment by those who do

not have a direct employment relationship with that person.          See id. at 146 (noting the Texas

Legislature’s acknowledgment that someone other than a plaintiff’s direct employer may

interfere with a person’s employment relationships and opportunities).

        While UTEP maintains that Ochoa has not identified any evidence in the record to support

her argument under Rennels, we agree with Ochoa that the evidence establishes a fact issue as to

whether UTEP controlled access to her employment opportunities with UTEP and that these

opportunities were denied or interfered with based on unlawful criteria. At her deposition, Ochoa


                                                    10
testified that she was offered and applied for a permanent position at UTEP.5 After Ochoa

reported the sexual harassment to Johnson, he discussed Ochoa’s sexual harassment allegations

with Albert Villalobos and Juan Guerra, UTEP’s directors of custodial services. Guerra then

directed Johnson to end Ochoa’s assignment at UTEP on the grounds that she was not meeting

performance standards.6 According to Johnson he never reported that Ochoa was not meeting

work performance standards to Villalobos or Guerra. Johnson did not recall any discussions as to

whether Ochoa was being considered for a permanent position and did not know whether she

applied for such a position.

        Because there is evidence in the record raising a fact issue as to whether UTEP controlled

access to Ochoa’s employment opportunities and denied or interfered with that access based on

unlawful criteria, we conclude that the trial court did not err in denying UTEP’s plea to the

jurisdiction. Holland, 221 S.W.3d at 643, citing Miranda, 133 S.W.3d at 227-28; Rennels, 994

S.W.2d at 147.      Issue One is overruled.

                                                    CONCLUSION

        We affirm the judgment of the trial court.



                                                     GUADALUPE RIVERA, Justice
July 10, 2013

Before Rivera, J., Barajas, C.J. (Senior Judge), and Larsen, J. (Senior Judge)
Barajas, C.J. (Senior Judge), sitting by assignment
Larsen, J. (Senior Judge), sitting by assignment


5
  Ochoa stated that at the time she applied for a permanent position with UTEP, she had already been subjected to
Fernandez’ sexual harassment, but explained that she was no longer working under his supervision. She further
explained that she submitted an application because UTEP offered good benefits.
6
  According to Guerra’s deposition testimony, his decision to send Ochoa back to IHC was based on incorrect and
incomplete information as well as his understanding of the university’s policy at that time.
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