Lead Opinion
OPINION
In twо issues, appellant, Ann Rosenberg, challenges the trial court’s order granting the Plea to the Jurisdiction, and Alternatively, Traditional and No-Evidence Motions for Summary Judgment filed by KIPP, Inc. We affirm.
I. Background
Rosenberg is a math teacher with approximately thirty years of experience in New Orleans, Louisiana. She moved to Houston after Hurricane Katrina. Rosenberg’s first teaching position in Houston was as a math teacher at Episcopal High Schоol from 2008 to 2009. In March 2009, Episcopal notified Rosenberg her employment would not continue for the 2009-2010 academic. year because she was “not a good fit” for the school.
One month later, Rosenberg accepted a position as a math teacher with KIPP,
In May 2010, Estrella asked Rosenberg to teach again at KHHS, and he gave her an overall good performance evaluation. Rosenberg requested that Estrella and Burnett offer a “non-AP” calculus class for the 2010-2011 academic year. KIPP elect
Two months later, KIPP hired Paul Castro to become its new Head of Schools for High Schools — Castro would supervise all of KIPP’s high school campuses, including KHHS. Estrella and Burnett reported to Castro. In his role, Castro observed Rosenberg’s classroom, with the first observation taking place during the first week of the 2010-2011 academic year. Castro’s initial impression was that Rosenberg’s performance was not at the level he expected of KIPP’s program. Castro instructed Estrella, as school leader, to speak with Rosenberg about how to improve her skills. Cаstro also addressed the entire math team, advising them he expected improved performance. After observing Rosenberg later in the fall, Castro again believed Rosenberg was not teaching to KHHS standards and she was not preparing students to be successful on the AP calculus exam. Castro asked Es-trella to work with Rosenberg to improve her performance; however, as the academic year progressed, he did not see improved instruction.
In February 2011, Castro decided he was not inviting Rosenberg to teach for the upcoming year, and he instructed Es-trella to advise Rosenberg. Estrella communicated to Castro that he agreed with Castro’s decision. Estrella informed Rosenberg she would not be invited to return and offered her the option of resigning earlier than the effective date of the non-renewal of her position, the end of the acadеmic year in May 2012 (which was August 2012).
The next month, Rosenberg sent an email to Charles Fimble, KIPP’s Human Resources Director, stating she had not been invited back to KIPP, and asking about her last paycheck, insurance coverage, and other matters. Rosenberg also stated “Mr. Castro does not like me....” Fimble responded, suggesting Rosenberg make an appointment to speak with Castro; however, Rosenberg did not do so. Less than a week later, Rosenberg directed another email to Fimble:
Dear Mr. Fimble, AGE, Experience, salary? ? ? ? .... but certainly not poor teaching! I really care about my students! Are there any procedures in place that should have been followed before I am dismissed on the whim of one man? Is there a procedure in place for protesting this?
Fimble replied he would be in a better position to help with her questions after she received written notification of her termination and after she contacted Castro to discuss her concerns.
Estrella conducted Rosenberg’s last evaluation in April 2011. While there were many areas of good performance, and the overall rating was good, there were some areas where Estrella noted less than satisfactory performance. Upon receipt of the evaluation, Rosenberg submitted her letter of resignation, effeсtive at the end of the 2010-2011 academic year.
Approximately one week later, Rosenberg received an email from Peter Unger, the KIPP employee responsible for course scheduling. The email, sent to over twenty-five KHHS administrators and staff, contained the proposed course schedules for the 2011-2012 academic year. The proposed schedule did not include the non-AP calculus class Rosenberg had prоposed. Rosenberg responded to all addressees with an email which Castro, Aaron Bren
Rosenberg filed suit in April 2012. Her amended petition alleged only a claim of age discrimination. KIPP filed its plea to the jurisdiction and, altеrnatively, traditional and no-evidence motions for summary judgment challenging whether Rosenberg had established the existence of jurisdictional facts, and it objected to Rosenberg’s summary judgment evidence. The trial court granted KIPP’s objections to the summary judgment evidence and its plea to the jurisdiction and, alternatively, motions for summary judgment.
II. Analysis
In two issues, Rosenberg challenges whether the trial court had jurisdiction under the Texas Commission on Human Rights Act (“TCHRA”) аnd whether there were genuine issues of fact regarding her age-discrimination claim.
A. Standard of Review
A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue,
In reviewing an order on a plea to the jurisdiction, we consider the pleadings and evidence relevant to the issue of jurisdiction, as well as evidence tending to negate the existence of jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda,
If the evidence creates a fact question on jurisdiction, the trial court must deny the plea. If the evidence is undisputed or if the plaintiff fails to raise a fact question as to jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. KIPP,
Our review is focused on the propriety of the trial court’s ruling on KIPP’s plea to the jurisdiction.
B. Waiver of Immunity
The Texas Legislature has provided a limited waiver of governmental immunity for emplоyment discrimination claims under Chapter 21 of the Texas Labor Code. See Tex. Lab.Code Ann. § 21.051(1) (West 2006). Immunity is' waived only for those suits in which the plaintiff actually alleges a violation of Chapter 21 by pleading facts that state a claim thereunder. Mission Consol. Indep. School Dist. v. Garcia,
The necessary elements of Rosenberg’s prima facie age-discrimination case are that she (1) was a member of the protected class (age forty or older — Rosenberg was 64), (2) was qualified for the position, (3) was terminated from employment, and, (4) was replaced by someone outside her protected class, or in the disparate treatment case, that others similarly-situated were treated more favorably. See AutoZone, Inc. v. Reyes,
There are two methods by which Rosenberg could prove her discrimination claim. One is by direct evidence of KIPP’s actions or words. Quantum Chem.,
C. Prima Facie Case
In its plea to the jurisdiction and traditional and no-еvidence motions for summary judgment, KIPP contended there was no evidence that either the February or May .2011 employment decisions were motivated by Rosenberg’s age.
The evidence shows Rosenberg was over forty and qualified for the position. The evidence also establishes she was not invited to return for the 2011-2012 academic year, and her employment was terminated in May 2011. For purposes of the jurisdictional inquiry, whether Rosenberg established prima facie evidence on the fourth element of her discrimination claim is the focus here.
Relative to KIPP’s employment actions, Rosenberg alleged:
Ms. Knight took it upon herself to treat Plaintiff differently and less favorably
than the younger teachers and department heads.... In late February 2011 ... Defendant informed Plaintiff that they were not inviting Plaintiff back for the next school year and did not renew her contract .... [D]espite letting Plaintiff go, Defendant was retaining the three individuals in Plaintiffs math department, two of whom were in their 20’s and one who was either in his late 20’s or early 20’s and who had significantly less experience than Plaintiff.... Besides bringing in the significantly younger Lara Knight, Defendant also hired Paul Castro, 39, to oversee the high . schools.... On May 17, 2011, though they had already given Plaintiff notice of non-renewal, Defendant terminated Plaintiff. The alleged (and pre-textual) reason was because Plaintiff did not “live the values or follow the norms of Kipp” ... Defendant did not retain anyone in their 50’s or 60’s at Plaintiffs school and ultimately let Ken Estrella go as well.
(Emphasis added).
Rosenberg claims KIPP had no basis for not renewing her employment for performance reasons because she had never been disciplined or coached as other first year employees had been, suggesting her non-renewal was due solely to her age. In her response to KIPP’s plea to the jurisdiction and traditional and no-evidence motions for summary judgment, Rosenberg presented no evidence showing her not being invited back was motivated by age discrimination.
Castro was the person responsible for the February 2011 decision to decline to invite Rosenberg to return for the 2011-
Further, the evidence revealed Rosenberg injected age into this scenario through an email she sent to Fimble (who played no role in the employment action) wherein she queried whether age played a role in Castro’s decision. See O’Donovan v. Weingarten Realty Management Company, No. 01-11-00884-CV,
Rosenberg asserts there is a “smoking gun” which established the non-renewal of her employment was due to age discrimination. The “smoking gun” was an email of KIPP’s human resources director, Fim-ble, suggesting it may be wise to set aside a reserve for defending a claim. The email was prepared after Rosenberg’s email to Fimble questioning whether age was a reason. Even if this email could be construed as showing age was a factor in the decision,. Fimble was not the decision maker with respect to the non-renewal of Rosenberg’s employment, and there is no evidence he played any role in Castro’s decision. See AutoZone,
With respect to her claims she was treated differently from younger teachers, Rosenberg’s argument is unsubstantiated. Employees may be considered similarly-situated “if their circumstances are comparable in all material respects, including similar standards, supervisors and conduct.” See Monarrez,
Finally, Rosenberg claims the May 2011' termination resulting from what KIPP viewed as an inappropriate and unprofes
In sum, Rosenberg did not offer proof of, or otherwise create a fact issue, to support her prima facie age-discrimination claim. Thus, there is no waiver of immunity, and the trial court properly granted KIPP’s plea to the jurisdiction and dismissed Rоsenberg’s claims. We overrule Rosenberg’s first issue, we need not reach her second issue, and we affirm the trial court judgment.
(Frost, C.J., dissenting).
Notes
. "KIPP” is an acronym for "Knowledge is Power Program.” KIPP is created under Tex. Education Code Chapter 12.
. Brenner was KIPP’s Head of Schools for Southwest Feeder Pattern and Primary Schools, and Knight was in training to be the KHHS School Leader for the 2011-2012 academic year.
. See Garcia II, 253 S.W.3d at 660 (holding the Texas Commission on Human Rights Act clearly and unambiguously wаives immunity for suits brought against school districts under the Act).
. As an open-enrollment school, KIPP is entitled to governmental immunity from suit. LTTS Charter Sch., Inc. v. Palasota,
Dissenting Opinion
dissenting.
The plaintiff asserted an age-discrimination claim against her former employer, an entity generally entitled to governmental immunity. Under a recent opinion of the Supreme Court of Texas, the trial court erred in dismissing this claim for lack of subject-matter jurisdiction. Therefore, this court should reverse the trial court’s dismissal of this claim and remand for further proceedings.
I.
Appellant/plaintiff Ann Rosenberg filed suit against appellee/defendant KIPP, Inc. asserting an age-discrimination claim .under the Texas Commission on Human Rights Act (hereinafter, the “Act”). In 2012, the Supreme Court of Texas held that, in an age-discrimination case in which the terminated employee wаs replaced, to establish a prima facie case of age discrimination under the Act, the plaintiff must show that the plaintiff was (1) a member of the protected class, (2) qualified for the employment position, (3) terminated by the employer, and (4) replaced by someone younger.
II.
In the trial court, KIPP obtained a dismissal of Rosenberg’s age-discrimination clаim for lack of subject-matter jurisdiction based upon its plea to the jurisdiction, and in the alternative, motion for summary judgment. KIPP did not challenge the sufficiency of the allegations in Rosenberg’s petition; instead, KIPP challenged the existence of jurisdictional facts. See id. at 635; Tex. Dep’t of Parks and Wildlife v. Miranda,
Though KIPP submitted evidence, none of the evidence challenged the existence of any of the four elements of Rosenberg’s prima facie casе. KIPP does not dispute that Rosenberg was over forty years old and thus a member of a protected class. Nor does KIPP dispute that Rosenberg was qualified for her employment position or that KIPP terminated her employment, or that Rosenberg was replaced by someone younger. Because there is at least a fact issue as to each element of Rosenberg’s prima facie case, the trial court erred in dismissing Rosenberg’s age-discrimination claim before trial for lack of subject-matter jurisdiction. See Garcia II,
The majority’s anаlysis conflicts with the Supreme Court of Texas’s opinion in Garcia II and with precedent from the First Court of Appeals. See Garcia II,
. The majority concludes that the fourth element of Rosenberg's prima facie case is that she "was replaced by someone outside her protected class, or in the disparate treatment case, that others similarly-situated were treatеd more favorably.” Ante at p. 7. The majority relies on AutoZone, Inc. v. Reyes for this proposition, but the court in that case stated a fourth element materially different from the fourth element stated by the majority. See
. Rosenberg asserts that she was replaced by Thomas G., a person younger than Rosenberg. In its plea to the jurisdiction, KIPP asserted and submitted evidence that it replaced Rosenberg with Thomas G., a person who was fifty years old at the time, and thus younger than Rosenberg, who was sixty-four years old. In the stаtement of facts of her appellate brief, Rosenberg states that she was replaced by Thomas G., a person younger than' Rosenberg. Because KIPP has not contradicted these facts, this court accepts them as true. See Tex.R.App. P. 38.1(g) (stating that "[i]n a civil case, the court will accept as true the facts stated [in the statement-of-facts section of appellant's brief] unless another party contradicts them.”).