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Defendant's Attorney: Jason C.N. Smith
Fort Worth, TX - Age Discrimination lawyer represented Appellant with appealing that the trial court erred by denying its motion for summary judgment.
After serving nearly thirty-four years as the City’s Chief of Police, Childress was
fired on March 29, 2018, at age sixty-nine and replaced by an employee who was
twenty-five years younger.2
Childress filed a charge of discrimination with the Texas
Workforce Commission, received a notice of right to sue, and then filed the
underlying suit against the City in January 2019, claiming age discrimination and
1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 28.1(a).
In total, Childress had worked for the City for forty-eight years; before
becoming police chief, Childress had also worked as a police dispatcher and a police
retaliation in violation of Chapter 21 of the Texas Labor Code. See Tex. Lab. Code
Ann. §§ 21.051, .055. The City subsequently filed a motion for summary judgment,
asserting a plea to the jurisdiction based on governmental immunity from suit under
the Texas Labor Code because it contended that Childress had no evidence to
support all elements of her claims.
As part of its plea, the City attached several
exhibits, including Childress’s deposition transcript and the affidavit of City Manager
Childress claimed that she had always received above-average performance
evaluations during her tenure as Chief of Police and had never received any criticism
of her job performance from her superiors until November 2017, when a police
department employee filed a formal grievance alleging that Childress had
discriminated against males in her recent hiring decisions. Strong, Childress’s
supervisor, promptly began an internal investigation into the grievance. Strong
notified Childress of the discrimination complaint against her on December 4, 2017,
and told Childress not to discuss the investigation with anyone other than her
3While the City used the term “sovereign immunity” both in its motion for
summary judgment and in its brief on appeal, we use the term “governmental
immunity” because this is the type of immunity that protects political subdivisions of
the state—including cities—when they perform governmental functions. See City of
Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 240 (Tex. App.—Fort Worth
2018, pet. denied). The concepts are similar: cities derive their immunity from the
state, so a city’s immunity extends as far as the state’s immunity when the city is acting
as a branch of the state. See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427,
436 (Tex. 2016).
attorney. Childress signed a written acknowledgement that stated, “I have been
ORDERED not to discuss this internal investigation with anyone, other than my
attorney, including but not limited to witnesses. I have further been ORDERED not
to authorize others on my behalf to initiate discussion with witnesses.” Three days
later, Strong provided Childress with an amended complaint adding an allegation that
Childress had retaliated against employees for taking leave protected by the Family
Medical Leave Act, and Childress again signed an acknowledgment of the order not to
discuss the investigation with anyone other than her attorney.
Despite these orders, Childress talked to the police department’s senior
sergeant about the details of his job position, which had been created as part of the
department’s reorganization that also had involved Childress’s hiring decisions
challenged by the grievance. Although Childress did not believe that this discussion
was related to the investigation into the complaints against her, Strong disagreed.
According to Strong, Childress told him that she had also spoken about the
investigation to at least one other person who was not affiliated with the City, but she
would not say who it was because “she had assured the people she had talked to that
she would maintain confidentiality about their identity.” Strong testified in his
affidavit that at that time, in early December 2017, he thought that he and Childress
did not have a “high level of mutual trust” and that their working relationship had
been “irreparably damaged” by her conduct.
Strong did not make a formal finding or take any disciplinary action against
Childress regarding the grievance at that time, but he told Childress that he did not
want her to continue serving as the City’s police chief. Childress was nearing
completion of an accreditation project for the police department with the Texas
Police Chiefs Association, which she told Strong she thought she would finish by
March 2018. Therefore, Strong told Childress that if she did not either resign or retire
by the end of March 2018, he would “involuntarily end her employment with the
Strong eventually completed his investigation into the grievance against
Childress in late December 2017 or early January 2018, and he determined that the
complaints were “not sustained or could not be substantiated.” A few weeks later,
Childress sent a memo to Strong on February 27, 2018, stating, “I am asking you to
reconsider your decision to let me go. I am ready and able to continue serving as the
Chief of Police of Richland Hills and desire to do so.” Childress sent Strong another
memo a week later reiterating her desire to stay on with the City as Chief of Police.
Strong rejected Childress’s request and asked Childress again either to resign or retire
by the end of March 2018.
When Childress did not give her two-week notice of resignation or retirement,
Strong filed his own complaint against Childress on March 16, 2018. In this
complaint, Strong alleged that Childress had violated City policy by discussing
confidential internal investigations, failing to cooperate with an investigation, and
having “impeded and tainted the investigation by refusing to disclose to the City
Manager with whom she discussed confidential information.” Strong charged that
these actions amounted to insubordination and failure to follow a lawful order from
the City Manager.
Although Childress denied these allegations, Strong issued written findings on
March 26, 2018, that sustained his claims against Childress. In the findings, Strong
stated that Childress had admitted to discussing the internal investigation with two
people in addition to the senior sergeant but that she also had talked to “at least two
other people” whose identities she did not disclose.
Strong notified Childress that a
disciplinary hearing would be held two days later and warned her that he was
considering terminating her employment.
Childress vigorously contested Strong’s findings in a written response, asserting
that she had not talked to the senior sergeant about the investigation; that a person
had told her “what they were hearing” about the investigation but that Strong never
gave Childress a direct order to divulge that person’s identity; and that she had
informed the two police captains, her seconds-in-command, about the investigation
4According to Strong, the City’s two police captains told him that Childress
“had discussed everything about the December 2017 investigation” with them,
including showing them a copy of the December 2017 complaints. The captains both
said that they had learned about the investigation from Childress “almost
immediately” after it had begun.
only in connection with the captains’ supervisory job duties, and she had told Strong
that she had done so. Childress concluded,
As a tenured chief with 34 years of experience at Richland Hills, with
[an] unblemished record, I am acutely aware of my responsibilities and
have done nothing to taint this investigation and certainly nothing that
would rise to the level of termination. Using my best judgment as a
tenured chief and fully understanding the circumstances of which I was
faced, I acted in an appropriate manner by [e]nsuring that the leadership
of the department understood the issues we were facing so that we could
make accurate and reasoned decisions during a tumultuous time. Had I
done otherwise I would have been derelict in my duties to the
community and to the employees of the department.
Despite Childress’s protests, Strong fired Childress the next day.
Based on these facts, the City sought dismissal, asserting that Childress had not
established a waiver of the City’s immunity from suit because she had no evidence to
support all elements of her claims and that she had no compensable lost wages as a
matter of law. After Childress filed a response and after a hearing, the trial court
dismissed Childress’s retaliation claim but not her age-discrimination claim. The City
In two issues, the City contends that the trial court erred by denying part of
its motion for summary judgment—first, because the City’s plea to the jurisdiction
established that Childress had not carried her burden to show that the City had
waived its governmental immunity, and second, because Childress’s current wages
and retirement-account payments must be offset against her damage claims for lost
pay. The City argues that because Childress receives retirement payments from the
City in addition to her wages from a new job, which together exceed the
compensation she had received from the City, she has suffered no economic
damages as a matter of law.
A. Plea to the Jurisdiction
1. Standard of Review
A trial court’s ability to hear a case lies in its subject-matter jurisdiction. Bland
ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “A plea to the jurisdiction is a dilatory
plea that seeks dismissal of a case for lack of subject-matter jurisdiction.”
Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A plea to the jurisdiction
may be used to assert governmental immunity and defeat a court’s subject-matter
jurisdiction. Id. A trial court’s ruling on a plea to the jurisdiction is reviewed de
novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised, just as the trial court must do. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at 555. If the
evidence creates a fact question on the jurisdictional issue, then the trial court
cannot grant the plea to the jurisdiction, and the factfinder will resolve the
question. Miranda, 133 S.W.3d at 227–28. But if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
rules on the plea as a matter of law. Id. at 228. This standard follows our review
of summary judgments, where we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
2. Applicable Law
Childress’s age-discrimination claim falls under the Texas Commission on
Human Rights Act (TCHRA). See Tex. Lab. Code Ann. § 21.051. The TCHRA
prohibits an employer from discharging an individual “because of race, color,
disability, religion, sex, national origin, or age.”
Id. § 21.051(1). An employer
commits an unlawful employment practice under the statute “because of” an
employee’s age if the employee’s age was “a motivating factor” for the practice, “even
if other factors also motivated the practice.” Id. § 21.125(a). The TCHRA also waives
governmental immunity from suit, but only if the plaintiff alleges facts that would
establish a violation of the TCHRA “and, when challenged with contrary evidence,
provides evidence that is at least sufficient to create a genuine fact issue material to
5The TCHRA’s protection against age discrimination applies to individuals aged
forty years or older. See Tex. Lab. Code Ann. § 21.101.
that allegation.” Tex. Tech Univ. Health Scis. Ctr.–El Paso v. Flores, 612 S.W.3d 299, 305
A plaintiff can establish discrimination under the TCHRA in two ways. See
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476–77 (Tex. 2001). First, an
employee can offer direct evidence of the employer’s discriminatory actions or words.
Id. at 476. “Direct evidence of discrimination is evidence that, if believed, proves the
fact of discriminatory animus without inference or presumption.” Coll. of the Mainland
v. Glover, 436 S.W.3d 384, 392 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(quoting Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—
Dallas 2012, no pet.)). Alternatively, because direct evidence of discrimination or
retaliation is a “rarity” in employment cases, courts allow claims to proceed with
indirect or circumstantial evidence of discrimination or retaliation. Russo v. Smith Int’l,
Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Under
this second method, which applies in this case, Texas courts follow the burdenshifting mechanism set forth by the United States Supreme Court in McDonnell
6See also Alamo Heights ISD v. Clark, 544 S.W.3d 755, 763 (Tex. 2018) (“By
intertwining the TCHRA’s immunity waiver with the merits of a statutory claim, the
Legislature ensures public funds are not expended defending claims lacking sufficient
evidence to allow reasonable jurors to find the governmental entity liable.”).
7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–
26 (1973); Glover, 436 S.W.3d at 392.
Under the McDonnell Douglas framework, as applied to the TCHRA,
(1) the plaintiff must first create a presumption of illegal discrimination
by establishing a prima facie case, (2) the defendant must then rebut that
presumption by establishing a legitimate, nondiscriminatory reason for
the employment action, and (3) the plaintiff must then overcome the
rebuttal evidence by establishing that the defendant’s stated reason is a
Flores, 612 S.W.3d at 305. The City’s first issue, contending that Childress neither
established a prima facie case of discrimination nor produced evidence of pretext that
overcame the City’s proffered reasons for her firing, challenges elements one and
three of this framework. The City argues that, consequently, Childress failed to raise a
fact question regarding whether the City waived its immunity, and the trial court erred
by denying the City’s plea to the jurisdiction.
3. Application of Law to Facts
a. Prima Facie Case
To establish a prima facie case of age discrimination under the TCHRA, the
plaintiff must provide evidence showing that she (1) was a member of the protected
class (forty years of age or older); (2) was qualified for the position; (3) suffered a
final, adverse employment action; and (4) was either (a) replaced by someone
7Analogous federal statutes and the cases interpreting them can guide our
reading of the TCHRA. Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 634 (Tex.
significantly younger or (b) otherwise treated less favorably than others similarly
situated but outside the protected class. Flores, 612 S.W.3d at 305. Under the
McDonnell Douglas framework, as applied to the TCHRA, the plaintiff is entitled to a
presumption of discrimination if the plaintiff meets the “minimal” initial burden of
establishing a prima facie case of discrimination. Mission Consol., 372 S.W.3d at 634.
The City first argues that Childress did not establish a prima facie case because
there was no evidence that her age was a motivating factor for the termination. But
evidence of age as a motivating factor is not an element of the prima facie case; rather,
it is the result. In other words, the plaintiff’s establishment of a prima facie case leads
to the inference that age is a motivating factor for the adverse employment decision
because courts presume that the defendant’s acts, if otherwise unexplained, are more
likely than not motivated by impermissible factors such as age. See id; see also Flores,
612 S.W.3d at 308 (stating that the prima facie case “justif[ies] a presumption that the
plaintiff was removed ‘because of’ her protected status”).
The City also argues that there was no evidence of the fourth element of a
prima facie case—that Childress was treated less favorably than similarly situated
employees under forty. But a plaintiff can establish the fourth element by showing
that she was either (a) replaced by someone significantly younger or (b) otherwise
treated less favorably than others similarly situated but outside the protected class. See
Flores, 612 S.W.3d at 305, 310 (stating that evidence of less favorable treatment is an
“alternative method” of establishing a prima facie case when the plaintiff cannot show
that she was replaced by someone significantly younger). The City does not dispute
that Childress was replaced by a forty-four-year-old employee or that the twenty-fiveyear age difference made the replacement employee “significantly younger” than
Therefore, because Childress has produced some evidence that she was
replaced by someone significantly younger, and because the City does not challenge
any other elements, we conclude that Childress has met her minimal initial burden to
create a presumption of discrimination by establishing a prima facie case. See id. at
305; Mission Consol., 372 S.W.3d at 634; see also San Benito Consol. ISD v. Cruz, No. 13-
20-00310-CV, 2021 WL 921793, at *7 (Tex. App.—Corpus Christi Mar. 11, 2021, no
pet.) (mem. op.) (concluding that a sixty-eight-year-old employee who was replaced by
a forty-nine-year-old employee raised a fact issue as to whether she was replaced by
someone significantly younger, which sufficiently established a prima facie case of age
b. Legitimate, Nondiscriminatory Reason
With Childress’s establishment of a prima facie case of age discrimination, the
burden then shifted to the City to rebut that presumption by providing a legitimate,
nondiscriminatory reason for terminating Childress’s employment. See Flores,
612 S.W.3d at 305; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct.
2742, 2748 (1993) (stating that the defendant has the burden of production to
introduce evidence that, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action). The City provided several reasons:
Childress violated Strong’s confidentiality orders, Childress refused to identify the
people she had spoken to about the investigation, Childress and Strong had no mutual
trust in each other, and Childress’s failure to maintain the confidentiality of the
investigation caused dissension within the police department. In short, the City
contends that Childress’s insubordination constituted a legitimate, nondiscriminatory
reason for Strong’s decision to fire Childress. See Collier v. Dall. Cty. Hosp. Dist.,
827 Fed. App’x 373, 376 (5th Cir. 2020), cert. denied, No. 20-1004, 2021 WL 1952066
(U.S. May 17, 2021); Kaplan v. City of Sugar Land, 525 S.W.3d 297, 308 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
Citing Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 138 (Tex. App.—
Corpus Christi 1986, writ denied), Childress briefly challenges the City’s violation-ofconfidentiality grounds for her termination by stating that the officers who were being
investigated had no right to privacy regarding their investigation. But the court in
Jacobs held only that the record contained no evidence of a violation of an employee’s
federally protected right of privacy—not that there was no such right. Id. Childress
does not explain why the violation of confidentiality orders pertaining to ongoing
workplace investigations could not qualify as a legitimate, nondiscriminatory reason
for termination. See City of San Antonio ex rel. City Pub. Serv. Bd. v. Gonzalez, No. 04-08-
00829-CV, 2009 WL 4981332, at *3 (Tex. App.—San Antonio Dec. 23, 2009, pet.
denied) (mem. op.) (employee terminated for disclosing confidential information to
another employee); cf. Cruz v. Howard Cty., No. Civ.A. 1:03-CV-107-C, 2004 WL
1585712, at *5 (N.D. Tex. July 15, 2004) (order) (employee terminated for releasing
confidential information in an ongoing criminal investigation involving her relatives).
Accordingly, we conclude that the City has carried its burden of production to rebut
the presumption of discrimination established by the prima facie case by setting forth
legitimate, nondiscriminatory reasons for terminating Childress’s employment.
c. Evidence of Pretext
Because the City produced legitimate, nondiscriminatory reasons for Childress’s
termination, the burden shifted back to Childress to point to evidence demonstrating
that the City’s stated reasons are a mere pretext. See Flores, 612 S.W.3d at 305. To
defeat the City’s plea to the jurisdiction, Childress bore the burden of raising a fact
question on the issue of whether the stated reasons are the City’s true reasons for
terminating Childress and whether the City’s “proffered explanation is unworthy of
credence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097,
2106 (2000); see Miranda, 133 S.W.3d at 227–28. An employee may show that the
employer’s reason is a mere pretext “by revealing weaknesses, implausibilities,
inconsistencies, or contradictions” in the evidence. Tex. Dep’t of Transp. v. Flores,
576 S.W.3d 782, 794 (Tex. App.—El Paso 2019, pet. denied).
First, Childress points to her long history of good performance with the police
department as evidence that the City’s reasons for terminating her were pretextual.
Childress said that she had never been disciplined the entire thirty-four years that she
served as Chief of Police, and she had received positive evaluations throughout her
career from all the city managers who had supervised her. When an employer points
to an employee’s poor performance as a reason for an adverse employment decision,
contradictory evidence that an employer is satisfied with an employee’s work
performance can serve as evidence of pretext. See Bell Helicopter Textron, Inc. v. Burnett,
552 S.W.3d 901, 915 (Tex. App.—Fort Worth 2018, pet. denied). The City argues
that any evidence of Childress’s prior good performance is irrelevant because
Childress was fired for insubordination, not poor performance. We conclude that
under these facts, this is a distinction without a difference: Childress’s alleged
insubordination occurred in the performance of her job duties, and the City points us
to no evidence that Childress had ever been counseled about, or disciplined for,
insubordination prior to Strong’s complaint.
In addition, Childress identifies the City’s delay in acting on her alleged
insubordination as evidence of pretext. Childress argues that if her stated
insubordination had caused “irreparable harm” to her working relationship with
Strong, as the City claimed, then the City would have immediately investigated and
terminated her employment rather than waiting over three months to take any action.
The City’s delay, Childress contends, is some evidence that the stated reason of
insubordination was unworthy of credence.
In support, Childress cites Peirick v. Indiana University–Purdue University
Indianapolis Athletics Department, 510 F.3d 681, 692 (7th Cir. 2007), in which a university
terminated one of its tennis coaches for the stated reason of unprofessional conduct:
the coach used abusive language with students, left a van of students behind on an
out-of-state road trip, was an unsafe driver, and told students that the university
administration was to blame for scheduling conflicts. But even after becoming aware
of these complaints, the coach’s supervisor did not address these concerns with the
coach but instead allowed her to continue performing her job—including continuing
to drive the team to tournaments—for another two months before terminating her
employment. See id. at 692–93. In concluding that a fact question existed on the issue
of pretext, the reviewing court stated that this “pattern of delay” raised a question
whether the university was truly concerned about the coach’s stated unprofessional
conduct. Id. at 693.
Similarly, in Daoud v. Avamere Staffing, LLC, 336 F. Supp. 2d 1129, 1132–33
(D. Or. 2004), a retirement-home-staffing company fired a “personal care aid” after
receiving numerous complaints from clients regarding the aid’s patient care. The
staffing company never told the aid about any of the complaints or warned her about
her job performance, and it allowed her to continue providing care for a client even
after that client complained. See id. at 1137. The court concluded that an issue of fact
was raised regarding whether the complaints actually triggered the aid’s termination.
The City responds that Strong immediately confronted Childress when he
became aware of her alleged insubordination and that the delay in termination was
explained by the fact that Childress was allowed to remain in her position for a few
more months to complete the certification project, at her request. Citing Jackson v.
General Motors, LLC, No. 4:18-CV-1243 RLW, 2020 WL 3469334 (E.D. Mo. June 25,
2020), and Allen v. Wal-Mart Stores, Inc., No. 1:10cv42-SPM/GRJ, 2011 WL 13228323
(N.D. Fla. Apr. 15, 2011), the City argues that there is no evidence of pretext when
the employer presents a reasonable explanation for the delay and when that delay was,
at least in part, a result of the employee’s own actions.
In Jackson, the employer’s stated reason for terminating its employee was an
unexcused absence, but the employer did not actually terminate the employee until six
months after the absence occurred. 2020 WL 3469334, at *31. The court determined
that the delay did not establish an issue of fact as to pretext because the employer’s
policy was to administer all discipline in person, but the employee did not return to
work until over two months after his unexcused absence; furthermore, the employer
delayed termination for several more months to give the employee time to obtain
documentation from his physician to show that his absence was actually excused. See
id. And in Allen, the court held that a two-month delay between the employee’s
misconduct and her termination was not evidence of pretext because the employee’s
new supervisor was in the process of moving in from another state, and by the time
the supervisor began “hands on management,” the employee had already begun to
take several weeks of approved leave. 2011 WL 13228323, at *4. When the employee
returned to work, her new supervisor immediately began an investigation into her
misconduct and then terminated her employment. See id.
Here, the City claims that it has provided a reasonable explanation for the delay
because Childress requested, and the City allowed, a few more months for her to
finish her accreditation project with the Texas Police Chiefs Association. But the City
points to no evidence that it relieved Childress of her duties as police chief during this
time or that she remained on staff only to work on the accreditation project that she
had requested time to finish. Rather, it appears that Childress continued to perform
all aspects of her job—despite the claimed “irreparable harm” caused by her
insubordination—for another three months before the City terminated her
employment. There is no evidence that Childress could not have been disciplined
earlier because she was absent from work during this time, or that the City was
allowing her extra time to gather evidence to explain, refute, or remedy her allegedly
insubordinate conduct. We conclude that here, like in Peirick and Daoud, the fact that
Childress was allowed to remain in her position and apparently perform her job duties
even after the stated fireable offense raises some “weaknesses, implausibilities,
inconsistencies, or contradictions” in the evidence and, thus, is some evidence of
pretext. See Tex. Dep’t of Transp., 576 S.W.3d at 794. We hold that this evidence, along
with evidence of Childress’s long history of good performance with the City’s police
department, is sufficient to raise a genuine issue of material fact as to whether the
City’s stated reasons for firing Childress were not true but instead were a pretext for
All in all, the City’s plea to the jurisdiction challenging the existence of
jurisdictional facts did not put Childress to the ultimate burden of proving her claims
at this stage in the case; rather, she only needed to raise a fact issue on the existence of
a violation of the TCHRA. See Alamo Heights, 544 S.W.3d at 785. Taking as true all
evidence favorable to Childress and indulging every reasonable inference and
resolving any doubts in her favor, as we must, we hold that the trial court did not err
by denying the City’s motion for summary judgment asserting a plea to the
jurisdiction on Childress’s claim of age discrimination. See Miranda, 133 S.W.3d at
227–28. We overrule the City’s first issue.
B. Wages Claim
In its second issue, the City argues that the trial court erred by denying the
portion of the City’s motion for summary judgment that challenged Childress’s
requested recovery of lost wages. The City asserts on appeal that its governmental
immunity is waived only for compensable economic losses and that because the
amount of Childress’s lost wages (both back pay and front pay) was fully offset by
the amounts she has received from her current employment and her City-provided
8Because we hold that this evidence is sufficient to raise a fact issue, we need
not discuss the City’s challenges to other evidence raised by Childress in support of
pretext. See Tex. R. App. P. 47.4.
retirement account,9 Childress suffered no economic losses. See Tex. Lab. Code
Ann. § 21.258(c) (providing that an employee’s “[i]nterim earnings . . . operate to
reduce the back pay otherwise allowable” to the employee upon a finding that the
employer engaged in an unlawful employment practice).
However, the City did not present this governmental-immunity argument to
the trial court; in its motion for summary judgment, the City argued only that if the
case proceeded to trial, the court should rule that Childress was not entitled to
receive lost wages. But because the defense of governmental immunity implicates
the trial court’s subject-matter jurisdiction to hear the case, the City may raise this
argument for the first time on appeal. See Manbeck v. Austin ISD, 381 S.W.3d 528,
530 (Tex. 2012).
Even though the City may raise governmental immunity in this appeal, the
cases that the City cites in support of its argument that its immunity was not waived
are inapposite. See Tooke v. City of Mexia, 197 S.W.3d 325, 330–31 (Tex. 2006);
Zachry Constr. Corp. v. Port of Hous. Auth., 449 S.W.3d 98, 105–06 (Tex. 2014); City of
Colleyville v. Newman, No. 02-15-00017-CV, 2016 WL 1314470, at *1 (Tex. App.—
Fort Worth Mar. 31, 2016, pet. denied) (mem. op.). In each of these cases, the
plaintiff brought a breach-of-contract claim against a local government entity based
upon the statutory waiver in Local Government Code Section 271.152, which
9The City provided retirement benefits to its employees through the Texas
Municipal Retirement System.
“waives sovereign immunity to suit for the purpose of adjudicating a claim for
breach of the contract,” subject to certain statutory conditions. Tex. Loc. Gov’t
Code Ann. § 271.152.
One of these statutory conditions is that damages are limited to the balance
due under the contract, the amount owed for change orders or additional work
performed, attorney’s fees, and interest; a plaintiff may not recover damages for
consequential damages, exemplary damages, or damages for unabsorbed homeoffice overhead. See id. § 271.153(a)–(b). The cases cited by the City stand for the
proposition that unless a plaintiff suing a local government entity for breach of
contract seeks recovery for damages for which the entity’s immunity is specifically
waived by the Local Government Code, the trial court has no jurisdiction over the
plaintiff’s claim. See Tooke, 197 S.W.3d at 346; Zachry Constr. Corp., 449 S.W.3d at
110; City of Colleyville, 2016 WL 1314470 at *5. Here, however, the Local
Government Code’s limitation on the waiver of immunity has no applicability to
Childress’s claim because Childress has not sued the City for breach of contract.
Instead, Childress’s lawsuit alleges age discrimination in violation of the
TCHRA. See Tex. Lab. Code Ann. § 21.051. The TCHRA waives immunity by
providing that, after satisfying certain administrative requirements, “the complainant
may bring a civil action.” Id. § 21.254; see Alamo Heights, 544 S.W.3d at 770.
Accordingly, to show that this waiver of immunity applies, the plaintiff in an agediscrimination case must allege facts that would establish a violation of the TCHRA:
that the employer discriminated against the plaintiff “because of” his or her age.
Tex. Lab. Code Ann. § 21.051; see Alamo Heights, 544 S.W.3d at 770. As we have
concluded in our discussion of the City’s first issue, Childress has alleged evidence
sufficient to raise a genuine fact issue regarding her age-discrimination claim, and
the City does not point to any provision of the TCHRA that additionally requires
evidence of any specific type of damages to establish a waiver of immunity.
Therefore, the City’s complaint that Childress has failed to show evidence of lost
wages is irrelevant to the question of whether the City has waived its immunity to
Childress’s suit. We overrule the City’s second issue.10
10To the extent the City asks us to hold that, if the case proceeds, the trial court
must offset Childress’s lost wages by amounts from her current employment and City
retirement, we do not have authority to reach this argument in this interlocutory
appeal. This argument does not involve a challenge to the trial court’s ruling on the
jurisdictional issue, and the City cites no other law giving us authority to review this
issue in an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(providing that a person may appeal an interlocutory order that grants a plea to the
jurisdiction by a governmental unit); Sykes, 136 S.W.3d at 638 (explaining that a plea
to the jurisdiction seeks dismissal of a case for lack of subject-matter jurisdiction);
Liverman v. Denton Cty., No. 02-17-00240-CV, 2017 WL 6377437, at *1–2 (Tex.
App.—Fort Worth Dec. 14, 2017, no pet.) (mem. op.) (dismissing portion of appeal
from order granting jurisdictional plea that complained of the trial court’s dismissal of
claims against government officials in their individual capacities but addressing
portion of appeal that complained of dismissal of claims against governmental unit
and government officials in their official capacities); Swanson v. Town of Shady Shores,
Nos. 02-15-00351-CV, 02-15-00356-CV, 2016 WL 4395779, at *3 (Tex. App.—Fort
Worth Aug. 18, 2016, no pet.) (mem. op.) (stating that only the portions of orders
denying the town’s motions for summary judgment on immunity grounds were
reviewable by interlocutory appeal under Section 51.014(a)(8)); see also Dallas Symphony
Ass’n, Inc. v. Reyes, 571 S.W.3d 753, 761 n.36 (Tex. 2019) (collecting cases). Therefore,
we do not address this argument.
Outcome: After carefully reviewing the evidence before the trial court, we conclude that
Childress produced evidence sufficient to raise a fact issue regarding whether the City waived its governmental immunity to her age-discrimination claim. We affirm the trial court’s order to the extent that it denies the City’s motion for summary judgment asserting a plea to the jurisdiction.