Affirmed and Opinion Filed July 1, 2019.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-18-00207-CV

                      JACQUELINE LOVELACE, Appellant
                                    V.
                DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee

                      On Appeal from the 298th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-15-05007

                            MEMORANDUM OPINION
                          Before Justices Myers, Osborne, and Nowell
                                   Opinion by Justice Nowell

       Jacqueline Lovelace appeals an order granting Dallas Independent School District’s plea

to the jurisdiction and dismissing her claim for retaliation under the Texas Commission on Human

Rights Act (TCHRA). Lovelace sued DISD for retaliation under the TCHRA, alleging DISD

terminated her employment in retaliation for her expressing opposition to discrimination. DISD

filed a plea to the jurisdiction raising its governmental immunity from suit and challenged the

existence of jurisdictional facts necessary to establish a waiver of immunity under the TCHRA.

The trial court granted the plea and dismissed Lovelace’s lawsuit. Lovelace argues on appeal that

the record shows she engaged in a protected activity under the TCHRA and there is evidence of a

causal connection between the protected activity and the adverse employment actions. We

conclude Lovelace failed to produce evidence raising a fact question under the burden-shifting
framework applicable to retaliation claims based on circumstantial evidence. Therefore, she failed

to establish a waiver of governmental immunity under the TCHRA. We affirm the trial court’s

order.

                                          BACKGROUND

         Lovelace is African American. She was hired by DISD as an Executive Director in 2012.

Executive Directors are responsible for the schools within their feeder system and the principals

of those schools report directly to their Executive Director. Assistant Superintendents supervise

the Executive Directors. Dr. Josie Hernandez-Gutierrez was the Assistant Superintendent for

Lovelace’s division. Dr. Karon Cofield took over Gutierrez’s position after she resigned. The

Assistant Superintendents are supervised by Dr. Sylvia Reyna, Chief of School Leadership.

         Lovelace was responsible for thirteen schools, including Spruce High School and its feeder

schools. Lovelace’s responsibilities included supervising the principals of those schools. In July

2013, DISD gave Lovelace an excellent performance review for the 2012-2013 school year, stating

she exceeded expectations in several categories.

         In the summer of 2013, parents of Hispanic students at one of Lovelace’s feeder schools,

Burleson Elementary, complained they felt unwelcome at the school and ignored by the African-

American principal, Yolanda Knight. On August 14, 2013, Lovelace sent an e-mail to her

supervisor, Gutierrez, about the situation. Lovelace stated her desire to talk with Gutierrez about

how an Hispanic parent “appears to be manipulating events and circumventing protocol in an effort

to further her agenda of defamation and slander of Principal Yolanda Knight.” In preparation for

a meeting with the parent, Ms. Acosta, Lovelace felt it “gravely necessary” to point out “one

specific thing before we move forward with what may prove to be a politically racial nightmare

that further dichotomizes African-Americans and Latinos.” Lovelace then complained about a

meeting arranged by Gutierrez with Rene Martinez of the League of United Latin American


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Citizens (LULAC) about the situation. Lovelace assumed a parent had contacted LULAC, but

after Martinez stated he was never contacted by parents about the school or principal, Lovelace

“left the meeting with the feeling that you had prompted this meeting but could not justify a logical

reason why you would have done so since our role is to support our campus leadership publicly

but reprimand and coach them privately.”

       Lovelace also complained that Gutierrez made contact with the parent during Lovelace’s

absence while taking classes in Austin. The parent told Gutierrez she did not want to speak with

Lovelace, but Gutierrez never redirected the parent to follow protocol or attempt to bring in

Lovelace to discuss her concerns. Lovelace reminded Gutierrez that she

       told you early on that [the parent’s] decision not to meet with me could be seen as
       “racist” given the climate in Dallas and that she should not be allowed to proceed
       without first talking to me; however, you continued to meet with her and others
       without a postponement that would have included my presence. By doing this, you
       further placed yourself in a position of power and me in a position of
       marginalization.

Lovelace concluded:

       At this time, I understand that Ms. Acosta [parent] and Mr. Martinez [LULAC
       representative] are calling for the removal of Ms. Yolanda Knight [African-
       American principal]. I do not support this request and earnestly feel that I have not
       received support, coaching, and unbiased guidance from you as my supervisor to
       resolve this issue amenably. Your actions appear biased, unethical, and to have a
       racist tenor directed toward Ms. Knight and me. I will be at the meeting tomorrow
       evening supporting Ms. Knight as I would support any principal under my
       supervision, no matter the ethnicity, who champions the success for ALL scholars.

       Lovelace spoke to Gutierrez both before and after the August 14, 2013 e-mail. According

to Lovelace’s declaration, Gutierrez “expressed a clear understanding that I was opposed to race

discrimination in the actions of the DISD across the district and at Burleson Elementary at the

time.” Lovelace also stated in her declaration that she told Gutierrez that “DISD was acting in an

unlawful racial manner which was only going to escalate into even worse racial problems.”

Lovelace stated that “meeting with LULAC and not the NAACP or any other African-American


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organization” could be viewed as racist.

       Gutierrez resigned in October 2013. In November, DISD informed Lovelace that Dr.

Karon Cofield, an African-American, would become her supervisor beginning January 1, 2014.

Lovelace contends Cofield began harassing her in December 2013, even before Cofield assumed

her official duties. Cofield would randomly call Lovelace into her office to answer questions about

anonymous complaints regarding Spruce High School. The meetings pulled Lovelace away from

her work and interfered with her efforts to support principals and improve academic achievement.

Lovelace claimed Cofield gave her a bad performance review in January 2014 without having the

opportunity to adequately observe her performance.

       On March 25, 2014, Lovelace sent a memo to Cofield expressing dissatisfaction with

Cofield’s oversight of the Spruce Feeder system. The memo began: “Due to the increasingly

hostile nature of the work environment, the racial unfairness, inequitable treatment, and prolonged

harassment, I feel it necessary to send you written responses to your questions concerning

complaints received about the Spruce Feeder, especially its high school.” Lovelace complained

she was repeatedly questioned about items she had already investigated and reported on and was

attacked based on anonymous complaints and gossip.

       On March 31, 2014, Lovelace responded to an e-mail from another Executive Director

regarding the scheduling of interviews for their shared administrative assistant. Lovelace declined

to participate in the interviews because Cofield selected the other Executive Director as the primary

evaluator of the administrative assistant and the unprofessional treatment of Lovelace’s current

administrative assistant, Ms. Meza. Lovelace also stated:

       Furthermore, the fact that Dr. Cofield, upon accepting the assistant superintendent
       role for our division, almost instantly removed me as Ms. Meza’s primary evaluator
       and direct supervisor and made you her supervisor without consulting or sharing
       the reasons for the decision with me after she had been with me almost two years
       suggests that she values you and your judgement and that mine is unwelcome and
       undervalued; therefore, I would rather not be placed in a subservient position with
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       a peer again. Additionally, she gave you direction to conduct Ms. Meza’s mid-year
       when she had been under my direct supervision. This further confirms that Dr.
       Cofield clearly finds me a transparent decision-maker in office affairs.

Lovelace copied both Cofield and Reyna with this e-mail.

       Lovelace prepared a memorandum dated March 31, 2014 addressed to Reyna and Cofield

with the subject: “racial discrimination, slander, bullying, and harassment.” According to her

declaration, she sent an e-mail with this memorandum attached to Reyna and Cofield on March

31, 2014. DISD presented evidence that the memorandum was never received by Reyna or

Cofield.

       DISD also presented evidence of performance issues with Lovelace. In the summer of

2013, DISD hired Lovelace’s friend, Teno Sigmon, as principal for Spruce High School. Sigmon

then hired Lovelace’s daughter, Megan Frazier, as a teacher at Spruce High School. In September

2013, Reyna directed Lovelace to transfer her daughter to another campus outside of Lovelace’s

chain of supervision. Lovelace did not timely act on this directive and Frazier remained at Spruce

High School for the entire fall 2013 semester. In November 2013, the district received conflict of

interest complaints regarding Frazier’s employment at a school under Lovelace’s supervision and

local media questioned the ethics of the situation.

       In December 2013, Cofield met with Lovelace to discuss several concerns about the Spruce

Feeder schools. They discussed that Lovelace’s daughter was still working at Spruce High School

despite Reyna’s directive that she be transferred to another campus. They discussed Lovelace’s

failure to regularly clock in and out of work using the mandatory biometric clock and that

principals under her supervision were also failing to use the clock consistently. Another concern

was the failure to address high teacher vacancies and ensure that principals were attending job fairs

as required by the district. They discussed an incident where Principal Sigmon opposed the

enrollment of a student at Spruce High School although there was no basis to do so. Cofield


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requested Lovelace ensure the student was permitted to enroll and report back to her. However,

Lovelace did not timely update Cofield regarding the enrollment issue.

       Cofield met with Lovelace again in January 2014 to discuss the concerns and expectations

about Lovelace’s performance. Cofield prepared a memo of understanding summarizing the topics

of concern they discussed including: the hiring and reassignment of Lovelace’s daughter; use of

the biometric clock by Lovelace and her principals; student registration must be processed within

the law and policy; hiring to fill teacher vacancies; and processing and consequences for student

discipline. Cofield expressed that she had “serious concerns” about Lovelace’s effectiveness and

the assistance and support she provided to the Spruce Feeder schools. Cofield plainly stated, “You

are not meeting essential and fundamental job functions at this time.”

       DISD continued to receive complaints from staff and parents about the conditions at Spruce

High School in the spring of 2014. In March 2014, Reyna visited Spruce High School and

observed “one of the most dysfunctional high school environments [she] had ever seen in [her]

career.” She found over fifty students unsupervised and socializing in the school gymnasium, a

choir class practicing on its own with no teacher present, and students wandering the hallways

without consequences. No school administrators were walking the hallways to maintain order and

assure that classroom instruction proceeded in accordance with district standards. Reyna requested

Christi Buell, another Executive Director, to visit Spruce High School to observe the instruction

and climate at the school. Buell observed the situation at Spruce on four occasions in March 2014

and found several violations of district standards and a lack of leadership from the school’s

administration. She observed that students were unengaged in classrooms and roamed the halls

during class.   Administrators failed to observe classroom instruction and support teachers’

professional development.      Assistant principals complained to Buell about the lack of

communication or focus on instructional leadership. The district also received complaints from

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staff about Lovelace and Sigmon’s performance.

       On April 9, 2014, DISD terminated Lovelace’s employment for the following reasons:

              You failed to comply with directives from your immediate supervisor.
              You failed to carry out your professional duties and responsibilities in managing
               parent and staff concerns.
              You failed to adequately manage and coach principals under you direct supervision.
              You failed to complete assignments issued by your immediate supervisor.
              You failed to effectively communicate with your immediate supervisor.
              You failed to maintain accurate personal attendance records.
              Finally, on March 31, 2014, you displayed poor judgment when you sent an email
               to a colleague that maligned your immediate supervisor. You also copied the
               immediate supervisor and the Chief of School Leadership on this email.
       After exhausting her administrative remedies, Lovelace filed this lawsuit against DISD on

May 1, 2015. She alleged DISD terminated her employment in retaliation for her opposition to

discrimination. She argued it was discriminatory to invite a LULAC representative to discuss

complaints about an African-American principal, the parent’s decision not to meet with Lovelace

“could be seen as racist,” Gutierrez meeting with the parent in Lovelace’s absence placed Lovelace

in a position of marginalization, and Lovelace’s August 14, 2013 e-mail stated that Gutierrez’s

“actions appear biased, unethical, and to have a racist tenor directed toward Ms. Knight and

[Lovelace.]”

       DISD filed a plea to the jurisdiction in July 2016 arguing it was immune from suit and

Lovelace’s claims did not fall within the waiver of immunity provided by the TCHRA. DISD

challenged Lovelace’s jurisdictional facts and presented supporting evidence. Lovelace responded

with her declaration in opposition to the plea to the jurisdiction. DISD also filed a motion for

summary judgment with supporting evidence. Both parties filed supplemental briefs and reply

briefs on both the plea to the jurisdiction and motion for summary judgment. On January 30, 2018,

the trial court, after hearing the arguments of counsel and considering the evidence attached to the

plea and the supplements and replies, granted the plea to the jurisdiction and dismissed Lovelace’s
                                               –7–
suit.

                                            DISCUSSION

    A. Standard of Review

        Governmental units, including school districts, are immune from suit unless the state

waives immunity. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

The TCHRA waives immunity when the plaintiff states a claim for conduct that actually violates

the statute. Id.; Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).

Immunity from suit may be asserted through a plea to the jurisdiction which challenges the

pleadings, the existence of jurisdictional facts, or both. Clark, 544 S.W.3d at 770. We review a

trial court’s disposition of a plea to the jurisdiction de novo. City of Houston v. Houston Mun.

Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018). Here, DISD’s plea to the jurisdiction

challenged the existence of jurisdictional facts with supporting evidence. In such cases, the

standard of review mirrors that of a traditional summary judgment. Clark, 544 S.W.3d at 771. To

avoid dismissal, a plaintiff must raise at least a genuine issue of material fact to overcome the

challenge to the trial court’s subject matter jurisdiction. Id. 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. However, we cannot disregard

evidence necessary to show context or evidence and inferences unfavorable to the plaintiff if

reasonable jurors could not. Id.

    B. Retaliation

        The TCHRA waives immunity from suit only for statutory violations; thus a trial court

lacks subject matter jurisdiction over the dispute absent some evidence the school district violated

the TCHRA. Clark, 544 S.W.3d at 763. The elements of a claim under the TCHRA are

jurisdictional in nature because “the Legislature has waived immunity only for those suits where


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the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim

thereunder.” San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015) (quoting

Garcia, 372 S.W.3d at 636).

       The statutory claim at issue in this appeal is a retaliation claim under the TCHRA. The

statute prohibits retaliation against an employee for engaging in certain protected activities. TEX.

LAB. CODE ANN. § 21.055. To establish a violation, the employee must show that: (1) she engaged

in an activity protected by the TCHRA, (2) an adverse employment action occurred, and (3) there

exists a causal link between the protected activity and the adverse action. Nicholas, 461 S.W.3d

at 137. An employee engages in protected activity when she “opposes a discriminatory practice.”

TEX. LAB. CODE ANN. § 21.055(1). Opposition to a discriminatory practice is a protected activity

irrespective of the merits of the underlying discrimination claim. City of Waco v. Lopez, 259

S.W.3d 147, 151 (Tex. 2008). However, to establish an employee opposed a discriminatory

practice, the employee must demonstrate a good-faith, reasonable belief that the underlying

discriminatory practice violated the TCHRA. Nicholas, 461 S.W.3d at 137. The prohibition

against retaliation does not protect an employee from all ostracism, discipline, or even termination

following a protected activity. Clark, 544 S.W.3d at 764. Rather, a remedy exists only when the

evidence establishes that a materially adverse employment action resulted from the employee’s

protected activities. Id.

       An employee may prove its retaliation claim with either direct or circumstantial evidence

of discriminatory intent.     See Garcia, 372 S.W.3d at 634.         Because direct evidence of

discriminatory intent is rarely available, the three-part McDonnell Douglas burden-shifting

framework permits an employee to raise a presumption of discrimination with circumstantial

evidence. Clark, 544 S.W.3d at 782 (discussing the framework established by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)). If the employee establishes a prima facie case of

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discrimination, a rebuttable presumption of discrimination arises, which can support a

discrimination claim if not rebutted. Id. The burden then shifts to the employer to defeat the

presumption by producing evidence of a legitimate, nondiscriminatory reason for the adverse

employment action. Id. Once the presumption of discrimination is rebutted, the burden shifts back

to the employee to produce evidence that the employer’s stated reason is false and a pretext for

discrimination. Id.

       In Clark, the supreme court clarified that all parts of the burden-shifting framework are

jurisdictional: “Consistent with our analysis in Mission Consolidated Independent School District

v. Garcia, we hold that when jurisdictional evidence negates the prima facie case or, as in this

case, rebuts the presumption it affords, some evidence raising a fact issue on retaliatory intent is

required to survive a jurisdictional plea.” Clark, 544 S.W.3d at 764.

   C. Application

       We resolve this appeal under the third part of the burden-shifting analysis required by

McDonnell Douglas and Clark. Thus, we assume for purposes of this appeal that Lovelace’s

August 14, 2013 e-mail to her supervisor and her later termination satisfy the prima facie case step

of the burden-shifting framework. The burden then shifted to DISD to produce evidence of

nondiscriminatory reasons for terminating Lovelace. DISD presented such evidence in its plea to

the jurisdiction and supplemental filings, thereby rebutting the presumption. See Clark, 544

S.W.3d at 790 (“Assuming Clark stated a prima facie retaliation case based on her termination,

any presumption raised by that has been rebutted because Alamo Heights produced evidence of

many performance reasons for terminating Clark’s employment.”). The burden then shifted back

to Lovelace to present evidence raising a fact issue that DISD’s stated reasons for terminating her

were merely a pretext for discrimination. See id.

       Lovelace contends she was not required to produce evidence of pretext because Clark was


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decided after the trial court ruled on the plea to the jurisdiction. Although Clark was decided after

the trial court ruled in this case, Clark merely clarified existing law and the supreme court did not

limit the retroactive application of its decision. Accordingly, we conclude Lovelace was required

to present evidence raising a fact issue on the pretext requirement once the burden shifted back to

her.

       In Clark, the supreme court answered the question of whether all three steps in the

McDonnell Douglas burden-shifting scheme are jurisdictional when a discrimination claim is

raised against a governmental entity protected by governmental immunity. The court explained

that because a circumstantial evidence case depends on the McDonnell Douglas framework, the

burden-shifting scheme in total defines the jurisdictional facts. Clark, 544 S.W.3d at 783.

       If the jurisdictional evidence does not negate or rebut the prima facie case, the
       ensuing aspects of the burden-shifting analysis are not implicated in the
       jurisdictional inquiry. But if, as here, jurisdictional evidence rebuts the prima facie
       case, the entire McDonnell Douglas framework is fully implicated, and sufficient
       evidence of pretext and causation must exist to survive the jurisdictional plea.

Clark, 544 S.W.3d at 783. Once the defendant rebuts the prima facie case by producing evidence

of a legitimate reason for its employment action, the plaintiff must present evidence raising a fact

question “on the ultimate issue—whether retaliation caused the adverse employment action—to

survive a jurisdictional challenge. The entire burden-shifting framework is a mechanism for

proving discriminatory intent absent direct evidence, and all phases, not just the prima facie case,

are relevant to the jurisdictional inquiry.” Id. at 784. The court explained that its holding is

supported by the core holding of Garcia and the reasoning “in State v. Lueck, San Antonio Water

System v. Nicholas, and our Texas Tort Claims Act jurisprudence.” Id. at 783–845 (citations

omitted). Thus, the Clark decision did not announce a new rule of law that could not have been

anticipated.

       As a rule, the decisions of the Texas Supreme Court apply retroactively. Baker Hughes,


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Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex. 1999). A decision of the supreme court operates

retroactively unless that court exercises its discretion to modify that application. Bowen v. Aetna

Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex. 1992) (per curiam). The supreme court did not exercise

its discretion to limit the application of its Clark decision to future cases. “[I]t is solely the Texas

Supreme Court’s prerogative, not ours, to decide whether its decisions should have only

prospective effect.” Balderas-Ramirez v. Felder, 537 S.W.3d 625, 636 (Tex. App.—Austin 2017,

pet. denied); accord ViewPoint Bank v. Allied Prop. & Cas. Ins. Co., 439 S.W.3d 626, 631 n.4

(Tex. App.—Dallas 2014, pet. denied). Because only the supreme court has the power to say

otherwise, we conclude that Clark applies to this case.

       Lovelace argues that she disputed the stated reasons for her termination as a pretext for

retaliation. She cites to her supplemental brief in response to the plea to the jurisdiction filed in

the trial court. That supplemental brief includes the statement that “Lovelace shows pretext with

evidence that the accusations against her are either false or not credible reasons that would have

caused her termination, but for her opposition to the initial discrimination.” However, neither the

supplement brief filed in the trial court nor her appellate brief identifies any evidence in the record

that the stated reasons were merely a pretext for retaliatory intent. Nor have we found any evidence

in the record raising a fact issue as to the pretext portion of the McDonnell Douglas framework.

       We conclude that Lovelace failed to satisfy her burden to present some evidence that

DISD’s stated reasons for terminating her employment were mere pretext for retaliatory intent.

We overrule Lovelace’s issues.

                                            CONCLUSION

       Assuming Lovelace satisfied the prima facie case element of the McDonnell Douglas

framework, she failed to present evidence raising a question of fact that DISD’s stated reasons for

terminating her employment were a pretext for retaliatory intent. Accordingly, she failed to


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establish a waiver of governmental immunity under the TCHRA and the trial court properly

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




                                                    /Erin A. Nowell/
                                                    ERIN A. NOWELL
                                                    JUSTICE

180207F.P05




                                                –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JACQUELINE LOVELACE, Appellant                       On Appeal from the 298th Judicial District
                                                      Court, Dallas County, Texas
 No. 05-18-00207-CV          V.                       Trial Court Cause No. DC-15-05007.
                                                      Opinion delivered by Justice Nowell.
 DALLAS INDEPENDENT SCHOOL                            Justices Myers and Osborne participating.
 DISTRICT, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Dallas Independent School District recover its costs of this
appeal from appellant Jacqueline Lovelace.


Judgment entered this 1st day of July, 2019.




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