Opinion
NUMBER 13-15-00045-CV
02-11-2016
TEXAS VETERANS COMMISSION, Appellant, v. ARMANDO LAZARIN, JOSE VALLEJO AND ROBERT MUSE, Appellees.
On appeal from the County Court at Law No. 4 of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Garza
Appellant, the Texas Veterans Commission ("TVC" or "the Commission"), brings this interlocutory appeal from the trial court's order denying its plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West, Westlaw through 2015 R.S.). Appellees are Armando Lazarin, Jose Vallejo, and Robert Muse, all of whom were terminated at the same time from their employment at TVC for allegedly falsifying job-placement data. By four issues, TVC contends the trial court erred in denying its plea to the jurisdiction. We affirm in part and reverse and render judgment for TVC in part.
I. BACKGROUND
Following their termination, appellees sued TVC, alleging claims of (1) wrongful termination based on age, gender, and race/national origin; (2) retaliation for filing complaints opposing their termination; (3) failure to consider their veteran status; (4) hostile work environment because of their terminations; and (5) unlawful denial of Family and Medical Leave Act ("FMLA") protections as to Vallejo. TVC asserted that appellees were terminated for falsifying job-placement data in order to win cash awards and recognition.
TVC filed a plea to the jurisdiction asserting that: (1) the trial court lacked jurisdiction over appellees' claims of age, gender, and national origin discrimination because they failed to plead or submit evidence of a prima facie case because they were replaced by Hispanic males over forty; (2) appellees' pleadings failed to allege facts supporting the elements of their retaliation claim because they failed to identify any protected activity engaged in prior to termination; (3) appellees' pleadings failed to allege facts supporting the elements of a hostile work environment claim; (4) appellees' veteran status claims must be dismissed for lack of subject-matter jurisdiction because appellees have not alleged a cause of action to which the State has waived sovereign immunity; (5) Vallejo's claim of a FMLA violation fails because he cannot show that he was on FMLA leave at the time of the termination; and (6) Vallejo's claim of FMLA retaliation fails because he cannot show a causal connection between his receipt of FMLA benefits and his termination.
Following a hearing on January 8, 2015, the trial court signed an order denying TVC's plea to the jurisdiction the same day. This interlocutory appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject matter jurisdiction is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.
Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may be properly asserted in a jurisdictional plea. Miranda, 133 S.W.3d at 225-26. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the pleadings unless the defendant presents evidence to negate their existence. Miranda, 133 S.W.3d at 226-27. If a plea to the jurisdiction challenges the jurisdictional facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555. If that evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Miranda, 133 S.W.3d at 228. After the defendant "asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Id. This standard "generally mirrors" that of a traditional motion for summary judgment. Id. 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, we take as true all evidence favorable to the non-movant. Id.; see County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We do not "weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry." Brown, 80 S.W.3d at 555.
III. DISCUSSION
A. Race/National Origin, Gender, and Age Discrimination
By its first issue, TVC contends that it has not waived its immunity from suit because appellees failed to establish a prima facie case of national origin, gender, or age discrimination as they were replaced by Hispanic males over forty years of age. TVC also contends that appellees failed to establish prima facie claims of hostile work environment and retaliation.
Here, appellees alleged claims of national origin and gender discrimination under federal law, see 42 U.S.C.A. § 2000e-2(a)(1) (West, Westlaw through P.L. 114-86), and the Texas Commission on Human Rights Act ("TCHRA"), see TEX. LABOR CODE ANN. § 21.051(1) (West, Westlaw through 2015 R.S.). Appellees also alleged claims of age discrimination under the TCHRA, see id., and the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C.A. § 621 et seq. (West, Westlaw through P.L. 114-114).
"The TCHRA was patterned after federal anti-discrimination statutes in order to carry out the policies elucidated in Title VII of the Civil Rights Act of 1964." Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 466 n.1 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001)). "Thus, in analyzing a TCHRA claim, we may seek guidance not only from Texas cases, but from analogous federal statutes and cases as well." Id.
1. Applicable Law
"Governmental entities are immune from suit unless the government has clearly and unambiguously waived its immunity." Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 342-43 (Tex. App.—Dallas 2013, no pet.); see TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2015 R.S.). "The government waives its immunity from suit under the Texas Commission on Human Rights Act when a plaintiff states a claim for conduct that would violate the Act." Id. (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012)).
Under the TCHRA, it is unlawful for an employer to discharge an employee because of the employee's race, color, disability, religion, sex, national origin, or age. See TEX. LABOR CODE ANN. § 21.051(1). Section 21.051 is modeled after and "'is substantively identical to its federal equivalent in Title VII' but adds age and disability to the protected categories." Tex. Parks & Wildlife Dep't v. Dearing, 240 S.W.3d 330, 349 n. 7 (Tex. App.—Austin 2007, pet. denied) (quoting Quantum Chem. Co. v. Toennies, 47 S.W.3d 473, 475 (Tex. 2001)); see 42 U.S.C.A. § 2000e-2(a)(1) ("[I]t shall be an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin . . . .").
An employee may establish discrimination by either direct evidence of what the employer said or did or by circumstantial evidence of discrimination. Garcia, 372 S.W.3d at 634. In the absence of direct evidence of discrimination—as in the present case—an employee must make out a prima facie case of discrimination under the McDonnell-Douglas burden-shifting analysis. Jespersen v. Sweetwater Ranch Apts., 390 S.W.3d 644, 654 (Tex. App.—Dallas 2012, no pet.) (citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). "Under this framework, the plaintiff is entitled to a presumption of discrimination if [he] meets the 'minimal' initial burden of establishing a prima facie case of discrimination." Garcia, 372 S.W.3d at 634. To establish a prima facie case of discrimination, the employee must show he or she (1) is a member of a protected class; (2) was qualified for his or her position; (3) suffered an adverse employment action; and (4) was replaced by someone outside of his or her protected class or others similarly situated were treated more favorably (disparate treatment cases). AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam); Jespersen, 390 S.W.3d at 654. Once the employee makes this showing, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Jespersen, 390 S.W.3d at 654. If the employer meets this burden, the employee must raise a genuine issue of material fact that the stated reason was a pretext for discrimination. Id. "Because plaintiffs in a workforce reduction case are laid off and frequently unable to prove the replacement element, the Fifth Circuit requires 'evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.'" Ptomey v. Tex. Tech Univ., 277 S.W.3d 487, 492-93 (Tex. App.—Amarillo 2009, pet. denied) (citing 7 Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996)).
A plaintiff proceeding under the McDonnell Douglas approach must meet the requirement of the prima-facie case for the trial court to have jurisdiction. The failure to present the elements of a prima-facie case means the trial court has no jurisdiction and the claim must be dismissed.Mendoza, 441 S.W.3d at 343.
Although a plaintiff must plead facts making up a prima-facie case, the defendant may present evidence negating those facts. If the defendant does so, the plaintiff must then present evidence in support of the facts.
Appellees also alleged claims of age discrimination under the TCHRA and the ADEA. When a plaintiff relies on circumstantial evidence to prove age discrimination, the McDonnell-Douglas burden-shifting framework applies to both types of claims. See Chamblee v. Miss. Farm Bureau Fed'n, 551 Fed. Appx. 757, 759 (5th Cir. 2014) (per curiam) (applying McDonnell Douglas framework to ADEA claim); Wojcik v. Costco Wholesale Corp., No. 3:13-CV-2314-D, 2015 WL 1511093, at *4 (N.D. Tex., Apr. 2, 2015) (mem. op.). Under the ADEA and the TCHRA, it is unlawful for an employer to discharge any individual because of his age. See 29 U.S.C.A § 623(a)(1) (West, Westlaw through PL 114-86); TEX. LABOR CODE ANN. § 21.051(1). To establish a prima facie case of age discrimination, a plaintiff must show that he or she was (1) a member of a protected class, (2) qualified for his or her employment position, (3) terminated by the employer, and (4) replaced by someone younger. Garcia, 372 S.W.3d at 642; Agoh v. Hyatt Corp., 992 F. Supp.2d 722, 740 (S.D. Tex. 2014). "The United States Supreme Court has made clear that, in applying that the evidentiary burden of McDonnell Douglas . . . to an ADEA case, an inference that the employment action was based on a discriminatory motive cannot be drawn where one worker is replaced by another who is not significantly younger but outside the protected class; instead the person replacing the plaintiff must be "substantially younger." Agoh, 992 F.Supp.2d at 740 (citing O'Connor v. Consol. Caterers Corp., 517 U.S. 308, 313 (1996)). "Courts have held that a five-year difference between an employee and her replacement is insufficient as a matter of law to create an inference of discrimination." Id. (citing Grogan v. Savings of Am., Inc., 118 F.Supp.2d 741, 748 (S.D. Tex. 1999) (finding two years is not a substantial difference justifying an inference of age discrimination)).
2. Discussion
a. National Origin and Gender Discrimination
Appellees' live petition states that all three appellees are Hispanic males over forty years of age. The petition states that, at the time of their termination, September 6, 2013, Lazarin was fifty-seven years old, Vallejo was sixty years old, and Muse was forty-five years old. The petition states that "[p]laintiffs believe their positions was [sic] replaced by a female, by a white male of national origin other than Hispanic, by person(s) under the age of 40 years, and by persons who were not disabled veterans or who were not entitled to receive veteran's preference."
TVC attached to its plea to the jurisdiction two affidavits by Alice Mehringer of its Human Resources Department. Mehringer identified a spreadsheet, also attached to TVC's plea, showing data regarding persons hired to replace appellees. The spreadsheet shows that Lazarin's position was eliminated due to budget considerations; no replacement was hired for that position. Vallejo was replaced by Albert Velasquez, a Hispanic male. Muse was replaced by Rodolfo Garza, a Hispanic male. The sheet also reflects that Garza (Muse's replacement), who was hired November 5, 2012, voluntarily resigned on June 7, 2013, and was replaced five months later on November 8, 2013 with a white female. Velasquez (Vallejo's replacement) was hired December 17, 2012 and voluntarily resigned on January 31, 2013, and was replaced by a Hispanic female. At the plea to the jurisdiction hearing, appellees' counsel acknowledged these facts by stating that "the people that replaced them were female and also because the two veterans they initially replaced them with were gone within a probationary period of time and who were also males and Hispanics, but the ones they have retained are female, both the new people." Appellees' counsel further argued:
We note that, several times during the plea to the jurisdiction hearing, appellees' counsel asserted that Vasquez, Vallejo's replacement, was a "Pacific Islander." However, no evidence was offered in support of that assertion. At other points, as noted above, appellees' counsel acknowledged that both individuals that replaced Vallejo and Muse were Hispanic males.
There's an immediate replacement that meets the criteria and then those people are terminated or somehow resigned, and so you have to not only look at who is there immediately but who is there ultimately that has remained in that—in that position. And we would submit to the Court that I don't think it's that clearcut, and that's—that's a fact issue for the jury to decide.The trial court summarized appellees' counsel's argument:
They're saying they were eventually—they were initially replaced with males. So the fact issue is really, as I see it, you agree that they were initially replaced with people that would kind of, how can I say, nullify your claim because they were Hispanic. They were males. They were within the same general age—age range, and you're saying that because those people were let go and the later replacements didn't meet that criteria, you're saying that that's why you still have a fact issue.TVC's counsel responded, "the statute is who you're replaced with. It doesn't keep going down the line in perpetuity."
We conclude that appellees failed to establish the fourth element of a prima facie case of national origin and gender discrimination: that they were replaced by someone outside of their protected class. See AutoZone, Inc., 272 S.W.3d at 592; Jespersen, 390 S.W.3d at 654. The only evidence offered showed that Vallejo and Muse were replaced by Hispanic males and that Lazarin's position was eliminated. Lazarin offered no evidence—either circumstantial or direct—from which a factfinder might reasonably conclude that TVC intended to discriminate in terminating him. See Ptomey, 277 S.W.3d at 492-93. Appellees argued that because the Hispanic males that replaced Vallejo and Muse were ultimately replaced by persons outside their protected class, a "fact issue" was raised, but provided no authority to support that position. On appeal, appellees offered no authority to support their replacement-of-the-replacement theory, and we have found none. TVC's evidence negated one of the essential elements of appellees' case, and thus triggered their duty to raise a fact issue on the issue of discriminatory intent. See Garcia, 372 S.W.3d at 642. Appellees failed to do so. Because appellees failed to state a claim for national origin and gender discrimination, TVC did not waive its immunity from suit and the trial court should have granted TVC's plea to the jurisdiction as to those claims. We sustain TVC's first issue as to appellees' claims of national origin and gender discrimination.
b. Age Discrimination under TCHRA
As noted above, to establish the fourth element of a prima facie case of age discrimination, a plaintiff must show that he or she was replaced by someone younger. Garcia, 372 S.W.3d at 642; Agoh, 992 F. Supp.2d at 740. Here, TVC's undisputed evidence showed that: (1) Vallejo was sixty years old when he was terminated and was replaced by someone who was fifty-one; (2) Muse was forty-five when he was terminated and was replaced by someone who was fifty-six; and (3) Lazarin was fifty-seven when terminated and was not replaced by anyone. Again, Lazarin offered no evidence at all to establish that TVC intended to discriminate in terminating him. See Ptomey, 277 S.W.3d at 492-93.
We conclude that Vallejo met his initial burden of establishing a prima facie case of age discrimination. The only evidence offered, TVC's evidence, showed that Vallejo, age sixty, was replaced by someone who—although at fifty-one within the protected class—was "substantially younger." See Agoh, 992 F.Supp.2d at 740. TVC did not present evidence negating these facts. See Mendoza, 441 S.W.3d at 343. TVC also did not dispute that Vallejo was qualified for his position. See Garcia, 372 S.W.3d at 642. Because Vallejo established a prima facie case of age discrimination, TVC waived its immunity to suit as to that claim and the trial court did not err by denying TVC's plea to the jurisdiction as to Vallejo's age discrimination claim. We overrule that part of TVC's first issue challenging the trial court's denial of its plea to the jurisdiction as to Vallejo's age discrimination claim. Because neither Muse nor Lazarin established a prima facie case of age discrimination, the trial court erred in denying TVC's plea to the jurisdiction as to those claims. We sustain TVC's first issue as to Muse and Lazarin's age discrimination claims.
c. Hostile Work Environment
In a sub-issue of its first issue, TVC also contends that appellees failed to establish a prima facie case of hostile work environment and the trial court therefore erred in denying its plea to the jurisdiction as to those claims.
The elements of a prima facie case of hostile work environment are: (1) the employee belongs to a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on the protected characteristic, e.g., religion; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 n.14 (Tex. App.—Texarkana 2008, pet. denied) (citing Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 353 (5th Cir. 2001)). While termination may serve as evidence of the fourth element, it is not proof of "unwelcome harassment" under the second element. Id. A hostile-work-environment claim entails ongoing harassment, based on the plaintiff's protected characteristic, so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment. Id. at 324 (citing Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986)).
In appellees' live pleading, appellees assert that their termination "constitute[d] a hostile work environment." Termination does not qualify as a predicate act supporting a hostile-work-environment claim; termination is not itself harassing conduct. Id. Appellees failed to establish a prima facie claim of hostile work environment and the trial court erred in denying TVC's plea to the jurisdiction as to those claims.
d. Retaliation
By a sub-issue within its first issue, TVC contends that appellees failed to establish a prima facie case of retaliation. To establish a prima facie claim of retaliation, a plaintiff must establish that: (1) he engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse action. Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 487 (5th Cir. 2004)); see TEX. LABOR CODE ANN. § 21.055 (West, Westlaw through 2015 R.S.). Protected activities consist of (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. TEX. LABOR CODE ANN. § 21.055.
Appellees alleged in their petition that they "pursued their grievance rights and remedies through the appeal process" provided at TVC and that they "protested their termination and specifically requested they be provided an opportunity to be heard." To establish the third element—a causal connection between the protected activity and the adverse action—an employee must show that the employer had knowledge of the protected activity before the retaliation. See Winters v. Houston Chronicle Pub'g Co., 795 S.W.2d 723, 732-33 (Tex. 1990). Here, appellees' alleged protected activity—appealing and protesting their termination—occurred after the terminations and therefore could not have caused the terminations. See id.; see also Allbritain v. Tex. Dep't of Ins., No. A-12-CA-431-SS, 2014 WL 272223, at *10 (W.D. Tex., Jan. 23, 2014) (order) (holding that no causal link established in retaliation claim where termination occurred before the protected activity). Appellees therefore failed to establish a prima facie claim of retaliation and the trial court erred in denying TVC's plea to the jurisdiction as to these claims.
The petition also alleges that TVC retaliated against Vallejo by unlawfully interfering with his entitlement to FMLA benefits by terminating him when he had submitted a claim for FMLA benefits. We will address this claim separately below. --------
A. Eleventh Amendment Immunity for ADEA Claims
By its second issue, TVC contends that appellees' claims for age discrimination under the ADEA are foreclosed by Eleventh Amendment immunity.
Under the Eleventh Amendment, the State of Texas and its agencies are immune from claims based on federal law, whether brought in federal or state court, absent either a clear indication by the United States Congress that it intends to abrogate the immunity afforded to states under the Eleventh Amendment to the federal Constitution, or a waiver of immunity by the Texas Legislature.City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 360, 366 (Tex. App.—Fort Worth 2009, no pet.); see U.S. CONST. amend. XI; Hidalgo Cnty. v. Dyer, 358 S.W.3d 698, 709 (Tex. App.—Corpus Christi 2011, no pet.) ("The Eleventh Amendment to the United States Constitution protects the State of Texas from suit in its own courts for an alleged violation of federal law."). The United States Supreme Court has held that the ADEA is not a valid exercise of Congress's power to waive immunity under section 5 of the Fourteenth Amendment and does not validly abrogate the states' Eleventh Amendment immunity from suit. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000); see Sullivan v. Univ. of Tex. Health Sci. Ctr. at Houston Dental Branch, 217 F. App'x 391, 395 (5th Cir. 2007) (holding that medical center had Eleventh Amendment immunity from an age discrimination claim); Univ. of Tex. at Dallas v. Matney, 280 S.W.3d 882, 885 (Tex. App.—Dallas 2009, no pet.) (holding that plaintiff's ADEA claim barred by Eleventh Amendment immunity).
Appellees argue that, by enacting the Texas Commission on Human Rights Act outlawing age discrimination, the Texas Legislature waived immunity from suit for ADEA age discrimination claims. Appellees have cited no authority in support of this assertion, and we find none. We conclude that appellees' ADEA claims are barred in their entirety by the Eleventh Amendment, and the trial court erred in denying TVC's plea to the jurisdiction as to those claims. See Matney, 280 S.W.3d at 885. We sustain TVC's second issue.
B. Immunity for Vallejo's FMLA Claims
By its third issue, TVC contends that the trial court erred in denying its plea to the jurisdiction as to Vallejo's claims that TVC "unlawfully interfered with" his entitlement to FMLA benefits and retaliated against him by terminating him after he submitted a claim for FMLA benefits. TVC contends that Vallejo's claims are FMLA "self-care" claims, which are barred by Eleventh Amendment immunity.
We agree. The FMLA grants eligible employees up to "12 workweeks of leave during any 12-month period" for various health-related reasons, including an employee's "serious health condition," the so-called "self-care" provision. 29 U.S.C.A. § 2612(a)(1)(D) (West, Westlaw through P.L. 114-112); Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 194 (Tex. 2010). Here, Vallejo applied for FMLA leave because he was diagnosed with cancer.
Congress has validly abrogated states' sovereign immunity with respect to the FMLA's family-care provision, but has not done so with respect to the statute's self-care provision. Bryant v. Tex. Dep't of Aging & Disability Servs., 781 F.3d 764, 760 (5th Cir. 2015); Herrera, 322 S.W.3d at 199-200. The Texas Supreme Court held in Herrera that the State could not be sued under the FMLA's self-care provision. Herrera, 322 S.W.3d at 202. We conclude that Vallejo's FMLA claims are barred by Eleventh Amendment immunity, and the trial court erred in denying TVC's plea to the jurisdiction as to those claims. We sustain TVC's third issue.
C. Veteran Status Claims
By its fourth issue, TVC contends that the trial court erred in denying its plea to the jurisdiction as to appellees' veteran status claims because appellees' pleadings did not allege facts supporting a waiver of sovereign immunity. Appellees alleged that they were entitled to preference in employment with a public entity. See TEX. GOV'T CODE ANN. § 657.003(a) (West, Westlaw through 2015 R.S.) (providing that "[a]n individual who qualifies for a veteran's employment preference is entitled to a preference in employment with or appointment to a state agency over other applicants for the same position who do not have a greater qualification").
Section 657.010 of the government code provides:
An individual entitled to a veteran's employment preference under this chapter who is aggrieved by a decision of a state agency to which this chapter applies relating to hiring or appointing the individual, or relating to retaining the individual if the state agency reduces its workforce, may appeal the decision by filing a written complaint with the executive director of the state agency under this section.TEX. GOV'T CODE ANN. § 657.010(a) (West, Westlaw through 2015 R.S.). However, as TVC notes, there is no waiver of sovereign immunity in the text of the statute. See id.; see TEX. GOV'T CODE ANN. § 311.034 ("a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.").
The federal counterpart to the statute, which requires certain parties contracting with the federal government to take affirmative action to employ and advance qualified veterans, does not limit an employer's ability to discharge employees at will. See 38 U.S.C.A. § 4212 (West, Westlaw through P.L 114-12); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 376 (Tex. App.—Houston 1st Dist.] 2007, no pet.). Moreover, the federal statute does not purport to waive sovereign immunity. Taydus v. Cisneros, 902 F. Supp. 278, 284 (D. Mass. 1995). Appellees have cited no authority establishing a waiver of sovereign immunity as to their veterans' status claims. We agree with TVC that the trial court erred in denying its plea to the jurisdiction as to those claims.
IV. CONCLUSION
We affirm the trial court's order denying TVC's plea to the jurisdiction only on Vallejo's claim of age discrimination under the TCHRA. We reverse the order insofar as it denies TVC's plea to the jurisdiction as to all other claims, and render judgment dismissing all other claims against TVC for lack of jurisdiction.
Dori C. Garza
Justice Delivered and filed the 11th day of February, 2016.