                    NUMBER 13-14-00113-CV

                      COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG

TEXAS HEALTH AND HUMAN
SERVICES COMMISSION AND
THE TEXAS DEPARTMENT OF
AGING AND DISABILITY SERVICES,                            Appellants,

                                    v.

JOSE P. BALDONADO,                                        Appellee.


               On appeal from the 445th District Court
                    of Cameron County, Texas.


                    MEMORANDUM OPINION
        Before Justices Rodriguez, Benavides, and Perkes
                    Opinion by Justice Perkes

    Appellants Texas Health and Human Services Commission (“HHSC”) and Texas
Department of Aging and Disability Services (“DADS”)1 bring this interlocutory appeal

challenging the trial court’s order denying its plea to the jurisdiction in a suit brought by

appellee Jose P. Baldonado (“Baldonado”).2 Appellants’ appeal presents one point of

error with three sub-issues. Appellants assert that the trial court lacked subject matter

jurisdiction over Baldonado’s employment discrimination claims raised under the Texas

Commission on Human Rights Act (“TCHRA”) because Baldonado:                                   (1) failed to

establish a prima facie case of age discrimination against HHSC; (2) failed to establish a

prima facie case of retaliation against DADS; and (3) failed to exhaust administrative

remedies as to his retaliation claim against DADS. We affirm.

                            I. FACTUAL AND PROCEDURAL BACKGROUND

        Baldonado applied for a Clerk II position with HHSC. This was an entry level

position requiring a high school diploma or GED. 3 The job description described the

position as primarily providing clerical support services (i.e. proofreading documents and

maintaining files) and identified internet usage and knowledge of computers as required

skills. The initial screening criteria included: education that would indicate a general

understanding of the knowledge, skills, and abilities needed to do the job; experience

using a personal computer for inquiry and data entry; and experience using fax machines,

printers, multi-line phones, and other office equipment.



        1DADS is a state agency within HHSC. See TEX. GOV’T CODE ANN. §§ 531.001(4)(A), 531.002(a)
(West, Westlaw through 2013 3d C.S.).

        2 Texas Civil Practice and Remedies Code section 51.014(a)(8) provides a right of interlocutory

appeal from a district court’s order that “grants or denies a plea to the jurisdiction by a governmental unit.”
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West, Westlaw through 2013 3d C.S.).

        3   There was no Clerk I position at the time the Clerk II vacancy was posted.
                                                      2
       In his application, Baldonado provided that he received a bachelor of science

degree in bilingual education and government from the University of Texas and indicated

the following special training, skills, and qualifications: (1) eight years of teaching

experience; (2) clerical work; (3) case management; (4) public relations; (5) information

gathering; (6) supervisory experience; (7) counseling; (8) dual language instruction; and

(9) the ability to type forty-five words per minute. By way of work history, Baldonado

identified experience taking and addressing customer phone calls, resolving client

concerns, updating customer files, information gathering, interviewing clients, and case

management. HHSC did not select Baldonado for an interview out of the fifty-eight

applicants for the Clerk II position.

       Nelda Ogdee (“Ogdee”), the HHSC hiring authority for the Clerk II position, was

responsible for screening applications and selecting applicants for interviews. In her

deposition testimony, Ogdee explained that she reviews an applicant’s prior work

experience to assess how long an applicant has remained at a prior job and whether the

work history is relevant to the current position.       Ogdee agreed that Baldonado’s

application reflected experience and skills consistent with the job description for Clerk II.

Nicole Dunaway, a vocational expert retained by appellants, prepared an expert report in

which she reviewed Baldonado’s education and work history to determine his

employability. In her deposition testimony, she stated that Baldonado would be qualified

for a customer service clerk position, which she explained was similar to the Clerk II

position.




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        After learning he was not selected to interview for the Clerk II position, Baldonado

filed a complaint with the Texas Workforce Commission (“TWC”) and the Equal

Employment Opportunity Commission (“EEOC”) alleging that HHSC failed to hire him

because of his age in violation of the Age Discrimination in Employment Act of 1967, as

amended.4

        On February 11, 2008, Baldonado was interviewed by DADS for the position of

Community Care Worker I. Supervisors Jose Meza (“Meza”) and Theresa Castaneda

(“Castaneda”) were present at the interview. At the conclusion of the interview, Meza

offered Baldonado the Community Care Worker I position. Baldonado then disclosed

that he had a “case” or “grievance” against HHSC. Meza responded “It doesn’t matter,

Mr. Baldonado. You’re hired.”

        Baldonado began his employment under the direct supervision of Castaneda. On

or about March 10, Baldonado again told Castaneda that he had “filed a complaint.”

Castaneda also learned that Baldonado, on several occasions, told a co-worker that he

“was going to file a complaint.” Castaneda shared this report with her supervisor Sylvia

Vela (“Vela”).      Baldonado disclosed to another co-worker that he filed a complaint

because “he had applied for several positions with the state but he was never called for

an interview.”

        On March 17, Castaneda held a conference with Baldonado to admonish him for

working outside of assigned hours and for taking confidential client files home. On March


          4 At that time, Baldonado also alleged that HHSC did not hire him for two other positions due to his

age. Baldonado’s counsel has since clarified that he is only bringing a claim against HHSC relating to the
failure to hire him for the Clerk II position.

                                                      4
19, Castaneda submitted to Vela a recommendation for termination of Baldonado’s

employment. Vela approved the recommendation on March 24, but Castaneda decided

to allow Baldonado further opportunity to meet her expectations. Between March 25 and

April 22, Castaneda held four additional conferences with Baldonado to address work-

related concerns.     On April 25, 2008, DADS terminated Baldonado’s employment,

notifying him in writing that he was being dismissed “due to a determination that [he was]

not suited for [his] assigned position.”

       Following his termination, Baldonado filed a second TWC complaint alleging that

he was “discharged because [he] filed a previous charge of discrimination.” Baldonado

received separate notices from the TWC advising him of his right to bring a civil action in

relation to his first and second complaints.        Baldonado brought suit against HHSC

asserting claims of discrimination and retaliation. He amended his petition to include

DADS as an additional defendant.

       On October 18, 2010, appellants filed a combined motion for summary judgment

and plea to the jurisdiction, arguing, in relevant part, that Baldonado failed to file and

serve his lawsuit within the sixty-day period prescribed by law. The trial court entered a

final order granting appellants’ plea to the jurisdiction. Following an interlocutory appeal

to this Court, we reversed the trial court’s order, concluding that “service of citation within

the 60-day filing period in section 21.254 is not an act that can be performed prior to filing

suit and is therefore not a ‘prerequisite’ to filing suit and is not a jurisdictional requirement

for purposes of section 311.034 of the Government Code.” Baldonado v. Tex. Dep’t of

Health & Human Servs. Comm’n, No. 13-11-00167-CV, slip op. at 7–8 (Tex. App.—


                                               5
Corpus Christi Aug. 27, 2012, pet. denied) (mem. op.).5 We remanded the case to the

trial court for consideration of the alternative grounds for dismissal asserted in appellants’

plea to the jurisdiction.        Id.    The trial court denied appellants’ combined motion for

summary judgment and plea to the jurisdiction, and this interlocutory appeal followed.6

                                        II. STANDARD OF REVIEW

        A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject

matter jurisdiction over a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of

law; therefore, when the determinative facts are undisputed, we review the trial court’s

ruling on a plea to the jurisdiction de novo. Id. “Sovereign immunity deprives a trial

court of jurisdiction over lawsuits in which the state or certain governmental units have

been sued, unless the state consents to suit. As a result, immunity is properly asserted

in a plea to the jurisdiction.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d

629, 636 (Tex. 2012).

        When, as here, a plea to the jurisdiction challenges the existence of jurisdictional

facts, a trial court’s review “mirrors that of a traditional summary judgment motion.” Id.

at 635.     The trial court must take as true all evidence favorable to the nonmovant,


        5The opinion is available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=
b8a09d6a-00cb-4105-a040-40f67735ff5&coa=coa13&DT=Opinion&MediaID=1031c375-7955-4584-b6f0-
f72c73ee5398.

          6 Only the trial court’s denial of appellants’ plea to the jurisdiction is subject to this interlocutory

appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (providing right of interlocutory appeal from
district court’s order that “grants or denies plea to jurisdiction by governmental unit.”) (emphasis added).
                                                        6
indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.

Miranda, 133 S.W.3d at 228. If there is a fact question regarding the jurisdictional issue,

the trial court must deny the plea. Id. at 227–28. However, if the evidence is undisputed

or if the plaintiff failed 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.

                                    III. APPLICABLE LAW

       The TCHRA provides a limited waiver of sovereign immunity for employment

discrimination claims. TEX. LAB. CODE ANN. § 21.254 (West, Westlaw through 2013 3d

C.S.); Garcia, 372 S.W.3d at 637.         An employer commits an unlawful employment

practice “if because of race, color, disability, religion, sex, national origin, or age the

employer . . . fails or refuses to hire an individual, discharges an individual, or

discriminates in any other manner against an individual in connection with compensation

or the terms, conditions, or privileges of employment[.]” Id. § 21.051(1). The TCHRA

prohibits “retaliat[ion] or discriminat[ion] against a person who . . . (1) opposes a

discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies,

assists, or participates in any manner in an investigation, proceeding, or hearing.” Id. §

21.055.

       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; therefore, analogous federal statutes and

interpretative cases guide our reading of the TCHRA. Garcia, 372 S.W.3d at 633-34.

       A plaintiff may prove a claim of intentional discrimination by either direct or

circumstantial evidence. Id. at 634. Where there is no direct evidence of discrimination,


                                               7
we apply the modified burden-shifting framework articulated in McDonnell Douglas

Corporation v. Green, 411 U.S. 792, 802-04 (1973). Under this framework, a plaintiff is

entitled to a presumption of discrimination if he meets an initial burden of establishing a

prima facie case of discrimination.           Garcia, 372 S.W.3d at 634; see McCoy v. Tex.

Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.—Dallas 2006, no pet.) (noting

retaliation claims use “[t]he same burden-shifting analysis” as discrimination claims). In

claims brought under the TCHRA, a plaintiff must demonstrate a prima facie case of

discrimination to invoke that statute’s limited waiver of sovereign immunity. Id. at 637.

Therefore, the prima facie elements of a discrimination claim are jurisdictional facts

properly challenged in a plea to the jurisdiction.7 Id. A plaintiff need only raise a fact

issue as to the challenged prima facie element to survive a plea to the jurisdiction. Id. at

635. Additionally, the question of whether a plaintiff exhausted administrative remedies

under the TCHRA is a jurisdictional issue that may be raised in a plea to the jurisdiction.

Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex. App.—Austin 2012, pet. denied).

                                             IV. ANALYSIS

A. Age Discrimination

        Appellants first argue that Baldonado failed to establish a prima facie case of age

discrimination. Specifically, appellants maintain that Baldonado did not show he was

qualified for the Clerk II position, because his employment application fails to demonstrate


        7  If a plaintiff establishes a prima facie case and survives a plea to the jurisdiction, the burden
would then shift to the employer to “articulate some legitimate, nondiscriminatory reason for the employee's
rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The offer of a legitimate reason
eliminates the presumption of discrimination created by the plaintiff's prima facie showing. Tex. Dep't of
Cmty Affairs v. Burdine, 450 U.S. 248, 255 (1981). The burden then shifts back to the complainant to show
that the employer's stated reason was a pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at
805–07; Burdine, 450 U.S. at 256.
                                                     8
experience using a personal computer and other office equipment; skills required for the

position. We disagree.

        To establish a prima facie case of age discrimination, the plaintiff must show that:

(1) he was a member of a protected class (age forty or older); (2) he sought and was

qualified for an available employment position; (3) he was not selected for the position;

and (4) the employer selected someone younger. Garcia. 372 S.W.3d at 642. As to the

second element, “[a]n employer may establish job requirements, and rely on them in

arguing that a prima facie case is not established because the employee is not ‘qualified.’”

Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003). Therefore, an employee must

demonstrate that he meets objective hiring criteria to establish his prima facie case.

Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001).8 An employee may

overcome a lack of objective qualifications at the prima facie stage if he can demonstrate

that the objective requirements were not applied to the employee(s) actually hired.

Johnson, 351 F.3d at 624–25.

        A plaintiff in Baldonado’s position is not required to marshal evidence and prove

his claim to survive a plea to the jurisdiction. See Garcia, 372 S.W.3d at 637. Even

when a plaintiff is required to submit evidence demonstrating a jurisdictional fact, his

burden of proof must not involve significant inquiry into the substance of the claims. Id.

at 637–38. For instance, we need not decide at this stage whether HHSC can articulate

a legitimate, nondiscriminatory reason for Baldonado’s rejection or whether there is


        8 An employer may only rely on objective requirements to show an employee is not qualified.

Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003). An employer may not rely on wholly subjective
standards and then plead lack of qualification when its hiring process is challenged as discriminatory. Id.

                                                    9
evidence that the stated reason was a pretext for discrimination.           See McDonnell

Douglas Corp., 411 U.S. at 802, 805–07. Rather, our inquiry is limited to determining

whether a fact question exists regarding the prima facie elements of Baldonado’s

discrimination claim.

       Clerk II is an entry level clerical position. Viewed in comparison with the Clerk II

job description, Baldonado’s application illustrated the following work experience:

clerical work; file maintenance; case management; typing skills; and use of the phone to

address customer concerns.        In her deposition testimony, HHSC’s hiring authority

agreed that Baldonado’s application reflected experience and skills consistent with the

job description for Clerk II. Further, appellants’ vocational expert testified that Baldonado

was qualified for the similar position of customer service clerk.

       This evidence is sufficient to create a fact question as to Baldonado’s prima facie

case of age discrimination. If a fact question exists regarding the jurisdictional issue, the

trial court must deny a plea to the jurisdiction. Garcia, 372 S.W.2d at 635.

B. Retaliation

       Next, appellants maintain that Baldonado failed to establish a prima facie case of

retaliation regarding his termination. Specifically, appellants argue that Baldonado failed

to demonstrate a causal link between his charge of discrimination against HHSC and his

later termination by DADS. We disagree.

       To establish a prima facie case of retaliation, the plaintiff must show:       (1) he

engaged in a protected activity; (2) an adverse employment action occurred; and (3) a

causal link existed between the protected activity and the adverse action.           Dias v.


                                             10
Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied) (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)).

The causal link required by the third prong does not rise to the level of a “but for” standard

at the prima facie stage.9 Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); see also

Montalvo v. County of Refugio, No. 13-08-00003-CV, 2010 WL 1731651, at *2 (Tex.

App.—Corpus Christi Apr. 29, 2010, no pet.) (mem. op.). To establish causation, the

employee must first demonstrate the employer’s knowledge of the protected activity.

Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003). Temporal

proximity alone can, in some instances, establish the prima facie causation element.

Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). “[C]ases that

accept mere temporal proximity . . . as sufficient evidence of causality to establish a prima

facie case uniformly hold that the temporal proximity must be ‘very close.’” Clark County

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

        Baldonado’s disclosure to his supervisors that he had a “complaint” or “grievance”

against HHSC is sufficient to raise a fact issue regarding whether his employer had

knowledge of his protected activity. As discussed previously, our inquiry here is limited

to determining whether a fact issue exists regarding the prima facie elements of

Baldonado’s retaliation claim. Baldonado relies primarily on the temporal proximity of

his disclosure to Castaneda of a “complaint” against HHSC and his termination to support



        9   The Supreme Court of the United States recently held that a plaintiff must ultimately prove a Title
VII retaliation claim “according to traditional principles of but-for causation.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2533 (2013). However, the requirement of showing “causation . . . at the prima
facie stage is much less stringent than a ‘but for’ standard[.]” Montemayor v. City of San Antonio, 276 F.3d
687, 692 (5th Cir. 2001).

                                                      11
his prima facie case. He also cites the temporal proximity of his March 10 conversation

with Castaneda and the job-related concerns that followed. Baldonado was terminated

approximately two and a half months after he disclosed that he filed a complaint. In

those two and a half months, Castaneda held five conferences with Baldonado to address

work-related concerns.

       Given the relaxed causation standard required to establish a prima facie case of

retaliation, we conclude the temporal proximity of Baldonado’s disclosure of his complaint

against HHSC and his termination is sufficient to create a fact question as to causation.

See, e.g., Wooten v. McDonald Transit Assoc’s, Inc., 775 F.3d 689, 697 (5th Cir. 2015)

(finding sufficient causal connection was established where adverse treatment began

within two months of filing of plaintiff’s EEOC complaint); Haire v. Bd. of Supervisors of

La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 368 (5th Cir. 2013) (concluding

temporal proximity of three months between filing of EEOC charge and adverse

employment action in addition to gradual changes in plaintiff’s job duties was sufficient to

establish causation element).

       Because a fact question exists on the causation element, the trial court properly

denied appellants’ plea to the jurisdiction on this ground. See Garcia, 372 S.W.2d at

635.

C. Exhaustion of Administrative Remedies

       Appellants lastly argue that Baldonado failed to exhaust administrative remedies

regarding his claim against DADS.         Appellants maintain that because Baldonado




                                            12
identified HHSC and not DADS as the respondent in his second TWC complaint, he has

not timely filed a charge of discrimination as to DADS. We disagree.

        “The exhaustion of administrative remedies is a jurisdictional prerequisite to filing

suit for unlawful employment practices.” Lopez, 368 S.W.3d at 701. Before bringing a

suit under the TCHRA, a plaintiff must file an administrative complaint “not later than the

180th day after the date the alleged unlawful employment practice occurred.” TEX. LAB.

CODE ANN. § 21.202. Texas Labor Code section 21.201 requires that the complaint state

“facts sufficient to enable the commission to identify the respondent.” Id. § 21.201(c)(3).

This requirement enables the TWC to serve the respondent with a copy of the complaint.

Id. § 21.201(d). We construe an administrative charge of discrimination liberally in the

complaining party’s favor. See Ramirez v. DRC Distributors, Ltd., 216 S.W.3d 917, 922

(Tex. App.—Corpus Christi 2007, pet. denied); Price v. Sw. Bell Tel. Co. 687 F.2d 74, 78

(5th Cir. 1982) (“[c]onsistent with the remedial purposes underlying Title VII, we construe

employment discrimination charges with the ‘utmost liberality,’ bearing in mind that such

charges are generally prepared by laymen untutored in the rules of pleading.”).

        DADS is named as a state agency within HHSC by Texas statute. See TEX. GOV’T

CODE ANN. §§ 531.001(4)(A), 531.002(a) (West, Westlaw through 2013 3d C.S.).

Baldonado’s intake questionnaire, submitted just prior to his second TWC complaint,

identifies DADS as his employer.10 HHSC submitted a position statement on behalf of

DADS responding to the second complaint. In that statement, HHSC explains that “[t]he



          10 See Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280–81 (5th Cir.1994) (looking beyond the

plaintiff’s charge, the court relied, in part, on an affidavit and questionnaire to determine that the plaintiff's
disparate treatment claim was like or related to her sexual harassment and retaliation claims).
                                                       13
Health and Human Services Commission’s Civil Rights Office (CRO) on behalf of the

Department of Aging and Disability Services (DADS) submits the following information[.]”

The response provides information and documents submitted by DADS personnel.

      The purpose for requiring a complaint to identify the respondent is so the

respondent can receive notice of the charge. TEX. LAB. CODE ANN. § 21.201(d). DADS,

a state agency within HHSC, responded fully to the charge by and through HHSC’s civil

rights office, and participated in the investigation.     Accordingly, we conclude that

Baldonado’s timely filed charge of discrimination provided “facts sufficient to enable the

commission to identify the respondent”, Id. § 21.201(c)(3), and that Baldonado exhausted

his administrative remedies as to his claim of retaliation against DADS. Cf. Overstreet

v. Underwood, 300 S.W.3d 905, 909 (Tex. App.—Amarillo 2009, pet. denied) (explaining

that although complaint did not designate district judge as employer, complaint presented

sufficient facts to identify him as a respondent); Ramirez, 216 S.W.3d at 923 (holding that

plaintiffs complied with section 21.201(c)(3) where they provided enough facts for the

TWC to identify the respondent).

D. Summary

      Having addressed each of appellants’ sub-issues, we overrule their point of error.

                                    V. CONCLUSION

      We affirm the trial court’s order denying appellants’ plea to the jurisdiction.

                                                 GREGORY T. PERKES
                                                 Justice

Delivered and filed the
30th day of April, 2015.


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