Opinion
01-20-00838-CV
05-24-2022
THE HARRIS CENTER FOR MENTAL HEALTH AND IDD, Appellant v. DEBORAH MCLEOD, Appellee
On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2019-39250
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
April L. Farris, Justice
Deborah McLeod sued her former employer, the Harris Center for Mental Health and IDD ("the Harris Center"), for disability discrimination, retaliation, and failure to accommodate in violation of the Texas Commission on Human Rights Act ("TCHRA"). The Harris Center filed a plea to the jurisdiction, which the trial court denied. In six issues, the Harris Center argues that the trial court lacked subject-matter jurisdiction over McLeod's claims, and therefore erred by denying its plea to the jurisdiction, because: (1) McLeod did not exhaust her administrative remedies for her discrimination and retaliation claims arising from events occurring after she filed her sole charge of discrimination, including probation and termination of her employment; (2) McLeod abandoned her disability discrimination claim; (3)-(5) McLeod did not establish a prima facie case of disability discrimination, retaliation, or failure to accommodate as required to waive the Harris Center's governmental immunity from her claims; and (6) McLeod did not establish that the Harris Center's legitimate, nondiscriminatory, and nonretaliatory reasons for its challenged actions were pretexts for discrimination and retaliation.
We affirm in part and reverse and render in part.
Background
McLeod makes the following allegations in this lawsuit: McLeod is a psychotherapist who worked for the Harris Center for more than seventeen years with "a virtually discipline-free employment record." Sometime around October 2016, Mary Jane McLaggan became McLeod's supervisor. In February 2017, McLeod presented McLaggan with a letter from a nutritional therapist requesting accommodations regarding lunch breaks, but the Harris Center did not perform a "good faith analysis" of this request. McLaggan may not have forwarded the request to the Harris Center.
Sometime thereafter, McLaggan spoke impatiently, derogatorily, and disrespectfully to McLeod in front of other employees. McLaggan was also rude and hostile to McLeod, causing McLeod to seek psychological help. McLeod filed a grievance complaining about McLaggan, who in turn allegedly retaliated against McLeod almost immediately thereafter by "writing her up." This has caused McLeod anxiety and stress.
McLeod was on medical leave for major depressive disorder from June 8 to July 10, 2017. She requested medical accommodations in August 2017, and she concedes that the Harris Center "offered [her] a proper accommodation to her request this time." However, McLeod declined the offered accommodation because "McLaggan appeared to have a change of heart and treated [McLeod] respectfully and cordially," and McLeod liked the staff and the clinic where she worked.
Soon afterwards, however, McLaggan allegedly retaliated against McLeod by issuing her a notice of disciplinary action. This notice stated that McLaggan could not address the disciplinary concerns sooner because McLeod had been on medical leave. The notice also stated that McLeod had asked to transfer to another supervisor. McLeod alleged that certain dates of documented errors were immediately before she had gone on leave or immediately upon returning from leave. McLaggan gave McLeod unachievable performance tasks, making it clear that McLaggan wanted to terminate McLeod's employment. These actions worsened McLeod's major depressive disorder, requiring her to take a second medical leave from work.
In October 2017, a few days before returning from her second medical leave, McLeod filed a charge of discrimination and retaliation against the Harris Center with the Equal Employment Opportunity Commission ("EEOC") and the Texas Workforce Commission Civil Rights Division ("TWC"). When McLeod returned from medical leave, McLaggan told her that she could no longer stay late to complete her work, a practice she routinely engaged in before going on leave even though she was not paid overtime. McLeod complained that many employees made mistakes, and an employee had resigned over the workload.
McLaggan also allegedly retaliated against McLeod by excessively micromanaging her work, putting her on probation in November 2017, and terminating her employment in January 2018. McLaggan also added additional constraints to McLeod's time at work, including requiring her to complete documentation and attend meetings and potential trainings, which did not lessen her workload. The Harris Center also failed to provide McLeod with her annual evaluation for 2017.
McLeod filed suit against the Harris Center for disability discrimination, retaliation, and failure to accommodate in violation of the TCHRA. See Tex. Lab. Code §§ 21.051, 21.055, 21.128(a). In her petition, McLeod complained about the actions recited above beginning with her request for accommodations regarding lunch breaks in February 2017, the filing of her EEOC charge of discrimination in October 2017, her placement on probation in November 2017, and her termination in January 2018. McLeod filed a single charge of discrimination with the EEOC on October 5, 2017, complaining of disability discrimination and retaliation. She conceded that she did not file a subsequent charge of discrimination complaining of any actions after October 5, 2017, including her probation and termination.
The Harris Center answered and asserted numerous affirmative defenses, including governmental immunity from all of McLeod's claims. It also asserted that McLeod failed to timely exhaust her administrative remedies. The Harris Center filed a plea to the jurisdiction primarily arguing that it was entitled to governmental immunity and McLeod did not exhaust her administrative remedies for any allegations of discrimination or retaliation post-dating her October 5, 2017 EEOC charge of discrimination, particularly her claims relating to probation and termination of employment. The Harris Center attached twenty-two exhibits to its plea, including the EEOC charge of discrimination.
McLeod responded, disputing all of the Harris Center's arguments. She argued that she was not required to file a second EEOC charge in order to exhaust her administrative remedies for her allegations of discrimination and retaliation relating to her probation and termination that occurred after she filed the EEOC charge in October 2017 because her "subsequent discrimination claims reasonably grew out of her initial claim and her retaliation claim is sufficiently linked to [her] initial charge."
McLeod also argued that the Harris Center offered no evidence proving that it is a governmental entity. She argued that she and her coworkers were not state, county, or other government employees, and they did not receive a government pension. She also argued that the Harris Center's website "is listed as .org, not .gov." She supported her plea response with a declaration verifying that she and her coworkers were not governmental employees and did not participate in a government pension plan.
The Harris Center filed a reply in support of its plea. In its reply, the Harris Center addressed McLeod's dispute of its status as a governmental entity, arguing that it is a community center established under chapter 534 of the Health and Safety Code, and therefore it is a governmental entity entitled to immunity unless immunity has been waived. The Harris Center did not rely on any evidence to support this argument. The Harris Center also argued that the exception to the exhaustion of administrative remedies requirement upon which McLeod's response relied was inapplicable because she asserted claims of both discrimination and retaliation, and therefore she was required to exhaust her administrative remedies by filing a subsequent charge of discrimination.
The trial court denied the Harris Center's plea to the jurisdiction. This appeal followed.
Plea to the Jurisdiction
The Harris Center challenges the trial court's subject-matter jurisdiction on two grounds: failure to exhaust administrative remedies and governmental immunity.
A. Standard of Review
A plea to the jurisdiction is a dilatory plea seeking dismissal of a case for lack of subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (stating that purpose of dilatory plea is "to defeat a cause of action without regard to whether the claims asserted have merit"). Immunity from suit and exhaustion of administrative remedies under the TCHRA both implicate a trial court's subject-matter jurisdiction and are therefore grounds properly asserted in a plea to the jurisdiction. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513-14 (Tex. 2012); Lopez v. Tex. State Univ., 368 S.W.3d 695, 701 (Tex. App.-Austin 2012, pet. denied).
A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights, 544 S.W.3d at 770. When a jurisdictional plea challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively establishing the trial court's subject-matter jurisdiction. Id. This is a question of law that we review de novo. Miranda, 133 S.W.3d at 226.
When a plea challenges the existence of jurisdictional facts, reviewing courts must look beyond the pleadings and consider the parties' evidence when necessary to resolve the jurisdictional issues even if the evidence implicates the merits of a claim. Alamo Heights, 544 S.W.3d at 770-71. When the parties submit jurisdictional evidence, the trial court reviews the relevant evidence to determine whether a fact issue exists. Miranda, 133 S.W.3d at 227. The defendant carries the initial burden to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). If the evidence raises a fact question regarding the jurisdictional issue, a plea to the jurisdiction may not be granted and the issue should be resolved by the factfinder. Miranda, 133 S.W.3d at 227-28. If, however, the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the plea to the jurisdiction may be ruled on as a matter of law. Id. at 228. This standard mirrors the traditional summary judgment standard under Texas Rule of Civil Procedure 166a(c). Alamo Heights, 544 S.W.3d at 771.
B. Exhaustion of Administrative Remedies
The Harris Center first argues that McLeod did not exhaust her administrative remedies for allegations of discrimination and retaliation post-dating her EEOC charge of discrimination, including probation and termination of employment, because she did not file a subsequent EEOC charge complaining of any employment actions after she filed her initial charge. The Harris Center argues that because McLeod did not exhaust her administrative remedies for these claims, the trial court lacked subject-matter jurisdiction over them.
McLeod does not dispute that she did not file a second charge of discrimination after she filed her initial charge on October 5, 2017. She argues, however, that she nevertheless satisfied the exhaustion requirement for employment actions arising after she filed her initial EEOC charge because these actions "reasonably grew out of" and are "sufficiently linked to" the initial charge.
As a jurisdictional prerequisite to filing suit under the TCHRA, an employee must exhaust administrative remedies. Lopez, 368 S.W.3d at 701; see Chatha, 381 S.W.3d at 513-14 (mandating strict compliance with TCHRA procedural requirements). There are several requirements for exhausting administrative remedies under the TCHRA. First, the employee must file a complaint related to the challenged employment action with the TWC or EEOC, sometimes referred to as a charge of discrimination, within 180 days of the alleged discriminatory act. Tex. Lab. Code §§ 21.201(a), 21.202(a); 40 Tex. Admin. Code § 819.41(c) (authorizing complaint to be filed either with TWC or EEOC); see Chatha, 381 S.W.3d at 514; Coogan v. Office of Attorney Gen., No. 01-20-00067-CV, 2020 WL 7213357, at *4 (Tex. App.-Houston [1st Dist.] Dec. 8, 2020, no pet.) (mem. op.).
After the employee files the charge of discrimination, the administrative agency has 180 days to investigate and dismiss or resolve the complaint before the employee can file suit. Tex. Lab. Code § 21.208. Once the agency notifies the employee that the complaint was neither dismissed nor resolved, the employee may request written notice of her right to sue. Id. at § 21.252(a). The employee must file suit within 60 days after receiving the right-to-sue notice and within two years after filing the charge of discrimination. Id. §§ 21.254, 21.256. Failure to exhaust these administrative remedies is a jurisdictional defect. Lopez, 368 S.W.3d at 701; Coogan, 2020 WL 7213357, at *4.
The Fifth Circuit has carved out a narrow exception to the exhaustion requirement for claims involving allegations of retaliation. Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981). In Gupta, a professor filed two charges of discrimination with the EEOC alleging that his university employer discriminated and retaliated against him. Id. at 412-13. After the professor sued the university over these allegations, the university refused to renew the professor's employment contract. Id. at 413. The professor amended his complaint to allege that the university retaliated against him by not renewing his contract, but he did not file a third EEOC charge alleging retaliatory discharge. Id. Because the filing of an administrative complaint is a jurisdictional prerequisite to filing suit under Title VII, the district court's jurisdiction over the retaliatory-discharge claim became an issue. Id.
The TCHRA was enacted to provide for the execution of analogous federal law- specifically Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act of 1990, and subsequent amendments to both. Tex. Lab. Code § 21.001(1) (citing 42 U.S.C. § 2000e et seq.), (3) (citing 42 U.S.C. § 12101 et seq.). When interpreting the TCHRA, Texas courts consider federal caselaw construing analogous federal employment discrimination law. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012).
The Fifth Circuit held that an employee is not required to exhaust administrative remedies "prior to urging a retaliation claim growing out of an earlier charge" that is properly before the court. Id. at 414. The court grounded its holding on "strong practical reasons and policy justifications for this conclusion":
It is the nature of retaliation claims that they arise after the filing of the EEOC charge. Requiring prior resort to the EEOC would mean that two charges would have to be filed in a retaliation case[, ] a double filing that would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII. We are reluctant to erect a needless procedural barrier to the private claimant under Title VII, especially since the EEOC relies largely upon the private lawsuit to obtain the goals of Title VII. Intertwined with this practical reason for our holding is a strong policy justification. Eliminating this needless procedural barrier will deter employers from attempting to discourage employees from exercising their rights under Title VII.Id. (internal citations omitted).
The parties agree that several of our sister courts of appeals have recognized the Gupta exception to the exhaustion requirement for TCHRA cases, yet they disagree as to its application. See, e.g., Sw. Convenience Stores, LLC v. Mora, 560 S.W.3d 392, 404-05 (Tex. App.-El Paso 2018, no pet.) (collecting cases); Wernert v. City of Dublin, 557 S.W.3d 868, 876 (Tex. App.-Eastland 2018, no pet.) (collecting cases); Tex. Dep't of Transp. v. Esters, 343 S.W.3d 226, 230-31 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (relying on Gupta and collecting cases). The sole disagreement between the parties is whether the Gupta exception applies to save a retaliation claim when a plaintiff asserts that an adverse employment action, occurring after the filing of a charge, resulted both from discrimination and retaliation for filing the charge. The Harris Center argues that the Gupta exception does not apply to McLeod's post-charge allegations of discrimination or retaliation. McLeod contends that the exception applies to all of her post-charge discrimination and retaliation claims.
There are two important limitations to the Gupta exception. First, the exception applies only to "a retaliation claim growing out of an earlier charge"; it does not apply to discrimination claims. Gupta, 654 F.2d at 414; see Metro. Transit Auth. of Harris Cty. v. Douglas, 544 S.W.3d 486, 497 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (stating that Gupta exception "is applicable only to retaliation claims growing out of an earlier discrimination charge"). It is the special nature of retaliation claims-that they arise after the filing of an EEOC charge-that justifies their exception from the exhaustion requirement. Gupta, 654 F.2d at 414. Thus, McLeod is incorrect that the exception applies to her post-charge discrimination claims.
Second, "when an employer's action, such as a discharge, is claimed to have resulted both from discrimination and retaliation, then the Gupta exception cannot save the retaliation claim." Mora, 560 S.W.3d at 405 (citing Simmons-Myers v. Caesars Entm't Corp., 515 Fed.Appx. 269, 273 (5th Cir. 2013) (per curiam)); see Wernert, 557 S.W.3d at 876 ("The Fifth Circuit noted in Sapp that the Gupta exception does not apply when the plaintiff asserts claims for both retaliation and discrimination.") (citing Sapp v. Potter, 413 Fed.Appx. 750, 753 (5th Cir. 2011) (per curiam)). When an employee alleges that an action resulted from both discrimination and retaliation, the Gupta exception does not apply because the employee "would be required to return to the EEOC and exhaust her administrative remedies with respect to her discrimination claim, while proceeding with litigation on her retaliation claim." Simmons-Myers, 515 Fed.Appx. at 274. "Permitting simultaneous proceedings such as these for the same inciting event would 'thwart the administrative process and peremptorily substitute litigation for conciliation.'" Id. (quoting McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008)). Because McLeod asserts both discrimination and retaliation claims, the Gupta exception does not apply to her post-charge retaliation claims.
McLeod relies on Texas Department of Transportation v. Esters to support her position that the Gupta exception applies to her post-charge claims of retaliation and discrimination. See 343 S.W.3d at 230-31. In that case, a former employee of a state agency filed a charge of racial discrimination against the agency with the EEOC and the TWC. Id. at 227-28. This charge did not contain any allegation of retaliation. Id. at 230. Subsequently, the employee was constructively discharged but did not file another charge of discrimination complaining about the constructive discharge. Id. at 229. The employee later sued the agency asserting causes of action for racial discrimination, constructive discharge, and retaliation. Id. The employee's retaliation claims allegedly arose both from his opposing racial discrimination by complaining to management and from filing the charge of discrimination. Id. at 230. Because the employee did not file a charge of discrimination alleging retaliation, he did not exhaust administrative remedies for his claim of retaliation for opposing racial discrimination. Id. Regarding retaliation for filing the charge, however, the court relied in part on Gupta in holding that the employee had exhausted his remedies for this claim "even though the charge contains no reference to any alleged retaliation." See id. at 230-31 (citing Gupta, 654 F.2d at 413-14). The only cause of action arising from the earlier filed EEOC charge was one for retaliation. See id.
The employee attempted to file a second charge of discrimination, but the court determined that this filing was ineffective as a matter of law, and therefore the employee did not exhaust his administrative remedies for allegations contained in the second attempted charge. Tex. Dep't of Transp. v. Esters, 343 S.W.3d 226, 229- 30 (Tex. App.-Houston [14th Dist.] 2011, no pet.).
Unlike the employee in Esters, it is undisputed that McLeod asserts both retaliation and discrimination claims based on the filing of her EEOC charge. McLeod's petition alleges that the Harris Center "has discriminated and retaliated against [McLeod] . . . based on [her] disability, perceived disability or report of disability and for engaging in protected activity." McLeod does not limit her discrimination claims to pre-charge allegations. See id. Thus, Esters does not support application of the Gupta exception to McLeod's discrimination and retaliation claims based on adverse actions arising after she filed the EEOC charge. See id.
The authorities relied upon by both parties agree that the Gupta exception does not apply to post-charge claims of discrimination and retaliation. We see no reason to depart from these holdings from our sister courts. Therefore, we conclude that McLeod did not exhaust her administrative remedies for her post-charge claims of discrimination and retaliation, including probation and termination of her employment. See McClain, 519 F.3d at 273 ("Failure to exhaust [administrative remedies] is not a procedural 'gotcha' issue. It is a mainstay of proper enforcement of Title VII remedies.").
Furthermore, because more than 180 days have passed since the probation and termination of her employment, McLeod is barred from administratively complaining about these actions. See Tex. Lab. Code § 21.202(a); Mora, 560 S.W.3d at 400 ("A plaintiff must file her charge within 180 days of the alleged discriminatory practice and any late-filed charge will be dismissed as untimely."). We therefore conclude that the trial court lacked subject-matter jurisdiction over McLeod's discrimination and retaliation claims for actions arising after she filed her EEOC charge, particularly her claims concerning probation and termination of her employment, because she did not exhaust her administrative remedies for these claims. Therefore, the trial court erred by denying the Harris Center's plea to the jurisdiction seeking dismissal of these claims. We sustain the Harris Center's first issue.
C. Governmental Immunity From Suit Under the TCHRA
In its second through sixth issues, the Harris Center argues that the trial court erred by denying its plea to the jurisdiction because it is entitled to governmental immunity from all of McLeod's claims. A threshold requirement of an assertion of governmental immunity is that the party asserting immunity must be a governmental entity authorized by the legislature to assert immunity. See Mission Consol., 372 S.W.3d at 636 (stating that sovereign or governmental "immunity deprives a trial court of jurisdiction over lawsuits in which the state or certain governmental units have been sued, unless the state consents to suit"). McLeod disputes that the Harris Center is a governmental entity. Therefore, we address this threshold issue first.
The TCHRA waives a governmental employer's immunity "when the plaintiff states a claim for conduct that actually violates the statute." Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a governmental employer asserts its immunity from TCHRA claims, courts employ a burden-shifting analysis to resolve the jurisdictional issue. Id. at 764, 782. Initially, the plaintiff must plead a prima facie case of an unlawful employment practice in violation of the TCHRA. Id. at 782. If successful, the burden shifts to the employer to establish a legitimate nondiscriminatory, nonretaliatory reason for the allegedly unlawful employment practice. Id. If the employer is successful, the burden shifts back to the plaintiff to adduce evidence that the employer's stated reasons are pretexts for discrimination or retaliation. Id. Each step in this burden-shifting framework is jurisdictional. Id. at 764, 783. Each of the Harris Center's issues two through six concern whether McLeod established a prima facie case of an unlawful employment practice in violation of the TCHRA or whether she established pretext, which are jurisdictional issues.
When an employer is a county, municipality, state agency, or state instrumentality, the TCHRA provides a waiver of the employer's immunity for TCHRA claims asserted against it. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (quoting Tex. Lab. Code § 21.002(8)(D)). The Harris Center claims that it is a "community center" under chapter 534 of the Health and Safety Code, and it therefore claims that it is a governmental entity entitled to assert immunity from suit.
Section 534.001 of the Health and Safety Code authorizes counties, municipalities, hospital districts, or school districts to establish and create a "community center" that has the status of a governmental entity entitled to assert governmental immunity. Tex. Health & Safety Code § 534.001(a), (c)(1); see Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 148 (Tex. 2003) (per curiam) (acknowledging that entity filed plea to jurisdiction asserting governmental immunity under section 534.001(c)(1)). A community center is defined as: (1) a community mental health center that provides mental health services; (2) a community intellectual disability center that provides intellectual disability services; or (3) a community mental health and intellectual disability center that provides mental health and intellectual disability services. Tex. Health & Safety Code § 534.001(b); see id. § 534.001(e) (providing that community centers "may operate only for the purposes and perform only the functions defined in the center's plan"). A community center must be established under contract approved by an appropriate department of the state. Id. § 534.001(d).
McLeod disputes the Harris Center's claimed status as a governmental entity, arguing that no evidence supports this contention. She argues that she was not a state or county employee, that she did not participate in a government pension plan, and that the website for the Harris Center has a .org domain rather than a .gov domain. She made these arguments in her response to the Harris Center's plea to the jurisdiction, and her declaration supporting her plea response verified that she and her coworkers were not government employees. This evidence is relevant to the issue of the Harris Center's status as a governmental entity. And it is the only relevant record evidence concerning the issue.
As McLeod correctly argues, no record evidence shows that the Harris Center is a governmental entity. Although we recognize that community centers established under section 534.001 are governmental entities, the Harris Center does not cite to any record evidence supporting its argument that it qualifies as such a community center. See Mission Consol., 372 S.W.3d at 635 (stating that defendant bears initial burden in plea to jurisdiction to meet summary judgment standard of proof to support defendant's assertion that trial court lacks jurisdiction).
Our own review of the record evidence-including declarations by two of the Harris Center's supervisory employees and a transcript of McLeod's deposition in this case-did not reveal any proof that the Harris Center meets the statutory definition of a community center. Except for the reference in the Harris Center's name to mental health and some other references to mental health in the appellate record, there is no record evidence proving that the Harris Center is a community center under section 534.001. Therefore, on the record before us, the Harris Center has not met its burden to establish that it is a governmental entity entitled to assert governmental immunity. See id.
Rather than rely on evidence to support its argument, the Harris Center relies on the definition of "community center" in section 534.001(c). But the definition in section 534.001 does not answer the question whether the Harris Center meets this definition. The plain language of section 534.001 does not specifically identify the Harris Center as a community center. See Tex. Health & Safety Code § 534.001. Instead, it creates conditions to an entity's qualification as a community center. See id. Thus, the language in section 534.001 does not support the Harris Center's argument that it is a governmental entity as defined in that section.
The Harris Center also relies on Dallas Metrocare Services v. Pratt to support its argument that it is a section 534.001 community center. See 124 S.W.3d at 148. In that case, the court held that a community center retained its governmental immunity for a whistleblower claim asserted against it. Id. at 149. But the plaintiff in Pratt did not contest the community center's status as a governmental entity as McLeod does here. See id. at 148-49. Pratt did not hold that the community center was a governmental entity as a matter of law or opine on whether or what evidence is necessary to prove its status as a community center. See id. at 149. Therefore, the Harris Center's reliance on Pratt is inapposite.
At least one of our sister courts has concluded that an entity is a community center entitled to governmental immunity based on the entity's evidence that it met the definition of a community center in section 534.001. Castillo v. Tropical Tex. Ctr. for Mental Health & Mental Retardation, 962 S.W.2d 622, 624, 625-26 (Tex. App.-Corpus Christi-Edinburg 1997, no pet.). In Castillo, Tropical Texas Center for Mental Health and Mental Retardation filed a motion for summary judgment asserting its governmental immunity from suit. Id. at 624; see Alamo Heights, 544 S.W.3d at 770-71 (stating that immunity from suit may be asserted through plea to jurisdiction or motion for summary judgment, and standard of review for plea mirrors summary-judgment standard). Tropical Texas supported its assertion of immunity with an affidavit from the Commissioner of the Texas Department of Mental Health and Mental Retardation averring that the department "has recognized and continues to recognize" that Tropical Texas "is a community mental health and mental retardation center," which tracked the definition of community center in effect under section 534.001 at the time. Castillo, 962 S.W.2d at 625.
The definition of "community center" in effect when Castillo was decided included "a community mental health and mental retardation center that provides mental health and mental retardation services." Act of April 29, 1991, 72nd Leg., R.S., ch. 76, § 1, 1991 Tex. Gen. Laws 515, 539 (amended 2015) (codified at former Tex. Health & Safety Code § 534.001(b)(3)).
The plaintiffs disputed Tropical Texas's status as a governmental entity, but they did not support their position with any evidence to create a fact question on the issue of immunity. Id. Because the uncontroverted evidence showed that Tropical Texas met the statutory definition for a community center, the court concluded that the trial court properly granted summary judgment in Tropical Texas's favor on the basis of governmental immunity. Id. at 625-26. Importantly for our purposes, the court did not conclude that Tropical Texas was a community center as a matter of law based solely on reference to the language in section 534.001. Id.
Here, the uncontroverted evidence supports McLeod's position that the Harris Center is not a governmental entity. The Harris Center did not adduce any evidence to establish its status as a community center entitled to governmental immunity, such as evidence establishing its creation by a county or municipality, a contract approved by the appropriate state agency, or its plan of development and availability of an effective mental health or intellectual disability program. See Tex. Health & Safety Code § 534.001(a), (d); see also Mission Consol., 372 S.W.3d at 635 (stating that defendant carries initial burden to meet summary judgment standard of proof for its assertion that trial court lacks jurisdiction). Therefore, we conclude that the trial court did not err by denying the Harris Center's assertion of governmental immunity on the evidence before it. Accordingly, we overrule the Harris Center's second, third, fourth, fifth, and sixth issues.
Conclusion
We reverse the part of the trial court's order denying the Harris Center's plea to the jurisdiction on McLeod's unexhausted discrimination and retaliation claims arising from actions occurring after she filed her October 5, 2017 EEOC charge, including probation and termination of her employment, and we render judgment dismissing these claims for lack of subject-matter jurisdiction. We affirm the remainder of the trial court's order denying the Harris Center's plea to the jurisdiction on McLeod's discrimination, retaliation, and failure to accommodate claims raised in her EEOC charge.