A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

A defendant attempting to obtain dismissal for lack of evidence must use a no-evidence motion for summary judgment, not a no-evidence plea to the jurisdiction.

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Edinburg Consol. Ind. Sch. Dist. V. Ayala, No. 13-20-00590-CV (Tex. App.—Corpus Christi Dec. 9, 2021) (mem. op.).

In this appeal from a trial court’s denial of the district’s no evidence plea to the jurisdiction, the district argued that there was no evidence that the plaintiff applied for a new position at the district.  The Thirteenth Court of Appeals affirmed the trial court’s judgment on the no evidence plea to the jurisdiction holding that a no-evidence motion for summary judgment was the proper avenue after discovery for the district’s arguments.

The plaintiff worked for the district but was injured in 2013.  He returned to work, but was terminated in 2015.  He filed an employment law claim for his termination but did not follow up on the claim.  Then, the plaintiff alleges that he reapplied to work at the district in 2018 and was not hired.  He sued the district for employment discrimination based on his disability and national origin for not rehiring him.  The district argued that there is no evidence that the plaintiff reapplied.  The district filed a no-evidence plea to the jurisdiction and the trial court denied the plea.  The district appealed.

A plea to the jurisdiction is used to determine a court’s jurisdiction based on what is plead, a prima facie case, not to make a determination on fact issues.  To establish a prima facie case of discrimination, the employee must show: (1) he is in a protected class; (2) he was qualified for the position he applied for;  and (3) he was not hired.  Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017); Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).   For national origin discrimination, he also must plead that the district gave different treatment to a similarly situated applicant outside the protected class.  The plaintiff stated these elements in his pleading, but the district argued that he needed to do more than plead the elements and he had provided no proof that he had applied for the position.  As a “fair notice” state, the plaintiff does only need to plead facts or elements to show jurisdiction.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see TEX. R. CIV. P. 45(b).  The Court of Appeals upheld the trial court’s denial of the plea to the jurisdiction because the plaintiff had plead sufficient facts to move forward with jurisdiction, although the district does have the ability to file a no-evidence motion for summary judgment.

The court of appeals affirmed the trial court’s judgment and the case was sent back to the trial court.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and  Justices Hinojosa and Silva.  Opinion by Chief Justice Dori Contreras.