User Name: Warren Westberg

Date and Time: Tuesday, August 29, 2023 5:35:00PM CDT

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1. Tex. State Univ. v. Quinn, 2017 Tex. App. LEXIS 11025

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Warren Westberg
 Caution
As of: August 29, 2023 10:35 PM Z

Tex. State Univ. v. Quinn

Court of Appeals of Texas, Third District, Austin
November 29, 2017, Filed
NO. 03-16-00548-CV
Reporter
2017 Tex. App. LEXIS 11025 *; 2017 WL 5985500
Texas State University, Appellant v. Dr. in support of each contested element of
Kathleen Quinn, Appellee her discrimination and retaliation claims;
[3]-The failure to hire the employee for the
Prior History: [*1] FROM THE DISTRICT permanent clinical-associate post was
COURT OF WILLIAMSON COUNTY, some evidence of adverse action; [4]-The
26TH JUDICIAL DISTRICT. NO. 14-1061- university's decision not to hire the
C26, HONORABLE DONNA GAYLE KING, employee for the post was made after she
JUDGE PRESIDING. complained about disability discrimination.

Outcome
Tex. State Univ. v. Quinn, 2016 Tex. App. Judgment affirmed.
LEXIS 10247 (Tex. App. Austin, Sept. 16,
2016) LexisNexis® Headnotes

Disposition: Affirmed.

Core Terms

disability, hire, teaching, adverse action, Business & Corporate

clinical-associate, renew, retaliation claim,
permanent, clinical, replaced
Case Summary
Overview
HOLDINGS: [1]-The employee discharged
her pleading requirement in her amended
petition by asserting in minute detail the
facts supporting her discrimination and
retaliation claims; [2]-Iin reply to the
university's plea to the jurisdiction, the
employee filed a lengthy fact-studded
response in which she marshaled evidence
Compliance > ... > Disability
Discrimination > Scope &
Definitions > Discriminatory Conduct
Civil Procedure > ... > Federal & State
Interrelationships > State Sovereign
Immunity > Waiver of Immunity
Labor & Employment Law > ... > Age
Discrimination > Scope &
Definitions > Covered Employees
Labor & Employment
Law > Discrimination > Retaliation > Ele
ments

Warren Westberg
 Page 2 of 5
2017 Tex. App. LEXIS 11025, *1

HN1[ ] Scope & Definitions, Mr. Robert J. Wiley, Mr. Jairo Castellanos,
Discriminatory Conduct Rob Wiley, PC, Austin, TX.

To invoke waiver of sovereign immunity, a For Appellant: Mr. Enrique Varela,

plaintiff has to allege facts that affirmatively
demonstrated the court's jurisdiction and
marshal some evidence in support of the
contested elements of her discrimination
and retaliation claims. The elements of a
disability and age-discrimination case are:
(1) the plaintiff has a disability and is over
the age of forty; (2) she was qualified for
the job she had or sought; (3) she suffered
an adverse action; and (4) she was
replaced by a younger, non-disabled
person, or was treated less favorably than
a younger, non-disabled person, or was
otherwise discriminated against because of
her age or disability. The elements of a
retaliation claim are: (1) the plaintiff
engaged in a protected activity; (2) an
adverse employment action occurred; and
(3) a causal link exists between the two.
Civil
Procedure > ... > Jurisdiction > Subject
Matter Jurisdiction > Jurisdiction Over
Actions
HN2[ ] Subject Matter Jurisdiction,
Jurisdiction Over Actions
When reviewing a plea to the jurisdiction in
which the pleading requirement has been
met, and evidence has been submitted to
support the plea that implicates the merits
of the case, the reviewing court takes as
true all evidence favorable to the non- At 68, Quinn was one of the oldest faculty
movant, and the court indulges every members. She had progressive and severe
reasonable inference and resolves any
doubts in the non-movant's favor. * Before Bob E. Shannon, Chief Justice (retired), Third Court of
Counsel: For Appellee: Mr. Colin Walsh,
Assistant Attorney General, Austin, TX.
Judges: Before Justices Puryear, Field,
and Shannon*.
Opinion by: Bob E. Shannon
Opinion
MEMORANDUM OPINION
This is an appeal from the district court's
judgment denying a plea to the jurisdiction
in an employment-discrimination case.
Appellant is Texas State University (the
University), and appellee is Dr. Kathleen
Quinn. This Court will affirm the judgment.
In 2011, the University's School of Nursing
was developing a Doctoral of Nursing
Practice program. At that time, Quinn made
inquiry regarding employment. She had
been a licensed counselor, a registered
nurse, and an advanced practice nurse
since 2000. The University offered, and
Quinn accepted, two one-year contracts as
an "emergency hire" to teach as a clinical
associate professor. In addition to her
teaching responsibilities, the University
gave her significant program writing tasks.
When the University made the clinical
associate professorship permanent, Quinn
applied for the job.
Appeals, sitting by assignment. See Tex. Gov't Code §
74.003(b).

Warren Westberg

2017 Tex. App. LEXIS 11025, *1
nerve damage to her hands and feet. The
pain in her feet made [*2] walking difficult.
She requested an accommodation, but
nothing was done. Quinn claimed that
during her tenure at the University, she
endured demeaning harassment and
derogatory comments because of her age
and disability. Although she complained to
her supervisor, nothing was done. The
University did not hire her for the
permanent clinical associate professorship
posting, nor did it renew the temporary
teaching contract.
Quinn filed suit against the University
claiming disability and age discrimination
and retaliation. She cast her case against
the University as one coming within the
terms of the Texas Labor Code section
21.051. The University filed a plea to the
jurisdiction to which it attached supporting
proof and argued that sovereign immunity
barred Quinn's claims. By the plea, the
University claimed that (1) Quinn failed to
plead a claim of discrimination and
retaliation under the Texas Labor Code
and (2) Quinn's evidence was insufficient
to support her discrimination and retaliation
claims. The district court denied the plea.
HN1[ ] To invoke waiver of sovereign
immunity, Quinn had to allege facts that
affirmatively demonstrated the court's
jurisdiction and marshal some evidence in
support of the contested elements [*3] of
her discrimination and retaliation claims,
see Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226-27 (Tex.
2004). The elements of a disability and
age-discrimination case are: (1) the plaintiff
has a disability and is over the age of forty;
(2) she was qualified for the job she had or On deposition, Quinn detailed the nerve
sought; (3) she suffered an adverse action; damage to her hands and feet. She
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Page 3 of 5
and (4) she was replaced by a younger,
non-disabled person, or was treated less
favorably than a younger, non-disabled
person, or was otherwise discriminated
against because of her age or disability.
See Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 632 (Tex. 2012).
The elements of a retaliation claim are: (1)
the plaintiff engaged in a protected activity;
(2) an adverse employment action
occurred; and (3) a causal link exists
between the two. San Antonio Water Sys.
v. Nicholas, 461 S.W.3d 131, 137 (Tex.
2015).
Contrary to the University's argument,
Quinn discharged her pleading
requirement in her amended petition by
asserting in minute detail the facts
supporting her discrimination and
retaliation claims. See Miranda, 133
S.W.3d at 226.
In reply to the University's plea to the
jurisdiction, Quinn filed a lengthy fact-
studded response in which she marshaled
evidence in support of each contested
element of her discrimination and
retaliation claims.HN2[ ] When reviewing
a plea to the jurisdiction in which the
pleading requirement has been met, as in
this case, and evidence has been [*4]
submitted to support the plea that
implicates the merits of the case, the
reviewing court takes as true all evidence
favorable to the non-movant, and the court
indulges every reasonable inference and
resolves any doubts in the non-movant's
favor. Id. at 228. In the following pages, we
summarize the proof in that light.
 Page 4 of 5
2017 Tex. App. LEXIS 11025, *4

testified that constant pain in her feet made Quinn's evidence and pleading is that she
walking difficult. Her deposition testimony was replaced by a non-disabled, younger
was backed up by voluminous medical person, Sarah Guy. The University
records. She reported her physical contends, however, that Quinn was not
problems to her supervisor. replaced by anybody because her term
teaching contract had ended. This
Quinn brought forward evidence that she argument, of course, does not address the
was qualified for the job she had and for fact that Quinn was not hired for the
the post she sought. Apparently satisfied permanent clinical-associate position.
with her qualifications, the University kept
her on for two years. Her supervisor As to why she was replaced, Quinn points
testified that she, the supervisor, did not to the fact that she was hired for the 2012-
hire unqualified faculty. The Dean of the 2013 school [*6] year. Her duties were to
Nursing School testified on deposition that teach as well as to finish up writing the
to be employed as an "emergency hire," design program. The teaching contract for
one was required to have clinical a clinical-associate position could have
experience. In addition, Quinn testified on been renewed, but it was not. Instead, the
deposition that she had more than five University created the permanent clinical-
years of clinical experience. associate position and Sarah Guy was
selected for that job. Accordingly, Quinn
Quinn asserts that the University's suggests that the fact-finder could
determination not to renew her term conclude that she was not renewed
teaching contract and that its decision [*5] because she was replaced by Guy.
not to hire her for the new clinical-
associate post in itself is evidence of Quinn asserts that she presented facts
"adverse action." The University replies supporting the elements of her retaliation
that employees on term contracts cannot claim. Quinn maintains that she was
suffer "adverse action" in employment- engaged in protected activity when, among
discrimination cases. Its argument is that other things, (1) she complained to her
because there is no legal obligation to supervisor of disability discrimination; (2)
renew a term contract, as a matter of law she requested an accommodation from her
no "adverse action" can occur after the supervisor; (3) she had her attorney send a
contract is signed. The University letter to the University complaining of
concedes that there is no Texas authority disability and age discrimination; and (4)
supporting its argument. That being the she filed a charge of discrimination.
case, this Court declines to hold, as a
Quinn's response advanced some
matter of law, that the University's decision
evidence that she suffered adverse action
not to renew the contract cannot be
subsequent to a protected activity. The
evidence in support of Quinn's
University's decision not to renew Quinn's
discrimination claim. The failure to hire
contract was made after her complaint to
Quinn for the permanent clinical-associate
her supervisor about disability
post is some evidence of "adverse action."
discrimination. Also, the University's
See Tex. Lab. Code § 21.051(1).
decision not to hire Quinn for the clinical-

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 Page 5 of 5
2017 Tex. App. LEXIS 11025, *6

associate post was made [*7] after Quinn

had complained about disability
discrimination. Quinn's response contains
evidence supporting a causal connection
between Quinn's protected activity and the
adverse action. For example, after Quinn
had requested an accommodation, and
after she had applied for the permanent
clinical-associate position, her supervisor
and the Dean of the Nursing School met
and agreed that they would not allow
Quinn to teach in the nursing program no
matter how well she scored in her
interview.

Taking as true all evidence favorable to

Quinn, the non-movant, and in indulging
every reasonable inference and resolving
any doubts in the non-movant's favor, this
Court concludes that she has made out a
prima facie case of discrimination and
retaliation. See Miranda, 133 S.W.3d at
228.

The judgment is affirmed.

Bob E. Shannon, Justice

Before Justices Puryear, Field, and

Shannon

Affirmed

Filed: November 29, 2017

End of Document

Warren Westberg