410 S.W.3d 327
Tex. App.2013Background
- Ochoa, hired by staffing agency Integrated Human Capital (IHC), was assigned to temporary custodial work at UTEP pursuant to a staffing contract; IHC paid wages and retained employment records.
- Ochoa reported sexual harassment by UTEP supervisor Emilio Fernandez; UTEP ended her assignment and sent her back to IHC; IHC attempted to find her other work but she was no longer assigned to UTEP.
- Ochoa sued IHC and UTEP under the Texas Commission on Human Rights Act (TCHRA) for sexual harassment, sex discrimination, and retaliation; IHC was later dismissed; UTEP filed a plea to the jurisdiction.
- UTEP argued it was not Ochoa’s employer and thus immune from suit (limited waiver under TCHRA not invoked); Ochoa argued UTEP was her employer or, alternatively, that Rennels standing applied (defendant controlled access to employment opportunities).
- The trial court denied UTEP’s plea to the jurisdiction and partial summary judgment; UTEP appealed the denial. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UTEP was Ochoa’s employer under the TCHRA (employee-employer relationship) | Ochoa: UTEP supervised and directed IHC temps on a day-to-day basis, showing control sufficient to create an employment relationship. | UTEP: IHC hired, paid, withheld taxes, set terms and retained hiring/firing rights; UTEP’s on-site supervision was part of the services contract, not employer control. | Court: No employment relationship; economic realities and right-to-control test weigh for IHC, not UTEP. |
| Whether Ochoa has standing under Rennels (interference/control over access to employment opportunities) | Ochoa: UTEP evaluated temps for permanent positions, she applied for a UTEP job, and UTEP decisionmakers ended her assignment after her harassment complaint — raising a fact issue that UTEP controlled and interfered with her access to UTEP employment. | UTEP: Did not control IHC’s employment decisions; Rennels should not apply where defendant allegedly interfered only with its own potential employment. | Court: Fact issue exists on Rennels interference element; denial of plea to jurisdiction affirmed. |
Key Cases Cited
- City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex. 2010) (standard for plea to the jurisdiction)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (de novo review and pleading burden in jurisdictional challenges)
- Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (plaintiff must plead facts affirmatively showing jurisdiction)
- De Santiago v. W. Tex. Cmty. Supervision & Corr. Dep’t, 203 S.W.3d 387 (Tex. App.—El Paso 2006) (hybrid economic realities/common-law control test for employment relationship under TCHRA)
- Rennels v. NME Hospitals, Inc., 994 S.W.2d 142 (Tex. 1999) (standing where defendant controls access to plaintiff’s employment opportunities and interferes based on unlawful criteria)
- Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012) (TCHRA as limited waiver of sovereign immunity)
- Deal v. State Farm County Mut. Ins. Co. of Tex., 5 F.3d 117 (5th Cir. 1993) (control test emphasis on right to control)
- Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017 (5th Cir. 1990) (discussing employer control factor)
- Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) (Title VII precedent recognizing suits where defendant controls access to employment despite no direct employment relationship)