Texas Court of Appeals, 15th District, 2025

University of Texas at Arlington v. James McMerchant

Texas Court of Appeals, 15th District · Decided May 27, 2025

Opinion

ACCEPTED 15-25-00038-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/28/2025 12:20 PM No. 15-25-00038-CV CHRISTOPHER A. PRINE CLERK In the Court of Appeals FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS for the Fifteenth Judicial District 5/27/2025 12:20:42 PM Austin, Texas CHRISTOPHER A. PRINE Clerk

University of Texas at Arlington, Appellant, v. James McMerchant, Appellee.

On Appeal from Cause No. 236-337930-22, in the 236th Judicial District Court of Tarrant County, Texas APPELLANT’S BRIEF

KEN PAXTON KIMBERLY GDULA Attorney General of Texas Chief for General Litigation Division BRENT WEBSTER BRIANNA M. KROMINGA First Assistant Attorney General Assistant Attorney General [email protected] RALPH MOLINA Deputy First Assistant Attorney Office of the Attorney General General General Litigation Division P.O. Box 12548, Capitol Station AUSTIN KINGHORN Austin, Texas 78711-2548 Deputy Attorney General for Civil (214) 290-8884 | FAX: (512) 320-0667 Litigation Identity of Parties and Counsel Appellant (Defendant in Trial Court): University of Texas at Arlington Counsel for Appellant: Brianna M. Krominga Lead Attorney Texas Bar No. 24103252 Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (214) 290-8884 – Phone (512) 320-0667 – Fax [email protected]

Appellees James McMerchant (Plaintiff in Trial Court): Counsel for Appellees: Ali Crocker Crocker Russell & Associates W. Oak Street Mansfield, Texas 76063 Ph: (817) 482-6570 Fax: (682) 232-1850 [email protected] ii Table of Contents

Identity of Parties and Counsel ...............................................................................ii Table of Contents ..................................................................................................iii Index of Authorities ............................................................................................... iv Statement of the Case ........................................................................................... vi Statement Regarding Oral Argument .................................................................... vii Issues Presented .................................................................................................. viii Introduction ............................................................................................................ 1 Statement of Facts ..................................................................................................2 I. Factual Background ..................................................................................2 II. Procedural Background .............................................................................4 Summary of the Argument ...................................................................................... 5 Standard of Review ................................................................................................. 5 Argument................................................................................................................ 7 I. The Trial Court Erred in Denying the University’s Plea to the Jurisdiction Because the Trial Court Lacked Jurisdiction Over McMerchant’s Title VII Claim. ................................................................ 7 A. Plaintiff failed to exhaust his administrative remedies. ............................... 7 B. Plaintiff cannot rely on the continuing violation doctrine to resurrect his procedural failures. ............................................................. 11 Prayer ................................................................................................................... 12 Certificate of Service............................................................................................. 13 Certificate of Compliance ..................................................................................... 13 iii Index of Authorities CASES Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d 681 (Tex. 2022) ....................................................................................................... 6 BNSF Ry. Co. v. Phillips, 485 S.W.3d 908 (Tex. 2015) ....................................................................................................... 8 Chambers-Liberty Cnts. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) ....................................................................................................... 7 Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541 (2019) ................................................................................................................ 1, 8 Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) ....................................................................................................... 6 Jefferson v. Christus St. Joseph Hosp., 374 Fed. Appx. 485 (5th Cir. 2010) ......................................................................................... 10 Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1 (Tex. 2015) ........................................................................................................... 5 Lazarides v. Farris, 367 S.W.3d 788 (Tex.App.—Houston [14th Dist.] 2012, no pet.) ............................................ 7 Matzen v. McLane, 659 S.W.3d 381 (Tex. 2021) ...................................................................................................... 6 McClain v. Lufkin Indus., 519 F.3d 264 (5th Cir. 2008) .................................................................................................... 10 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) ....................................................................................................... 6 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). .............................. 9, 10, 11, 12 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ....................................................................................................... 6 Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ................................................................................. 7 iv Town of Shady Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019) ....................................................................................................... 6 United Indep. Sch. Dist. v. Mayers, 665 S.W.3d 775 (Tex. App.—San Antonio 2023, no pet.) ..................................................... 1, 8 WalMart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex. App.—Austin 1998, pet. denied). .......................................................... 12 STATUTES U.S.C. § 2000e-2(a). .................................................................................................................. 7 U.S.C. § 2000e-3(a). .................................................................................................................. 7 U.S.C. § 2000e-5(b) ............................................................................................................... 1, 8 U.S.C. § 2000e-5(e)(1). ......................................................................................................... 1, 8 Tex. Gov’t Code § 311.034 ......................................................................................................... 1, 8 OTHER AUTHORITIES U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025). ..................... 1, 11 v Statement of the Case Nature of the Case: In June 2015, Plaintiff was hired by the University of Texas at Arlington (the “University”) as a Warehouse Worker III. In 2017, another individual with the classification of Warehouse Worker III and receiving the same pay as Plaintiff, applied for and was offered a new position, Coordinator I, which is a higher graded position with additional responsibilities.

This promotion also included a pay raise. Plaintiff did not apply for this position. In September 2020, at his request, Plaintiff’s position was reclassified as a Mail Carrier II and his salary was increased to $30,000. In January 2021, filed a charge with the EEOC alleging discrimination based on the 2017 promotion of his colleague, for which he did not apply. He now sues the University alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

Course of Proceedings: Defendant filed its Plea to the Jurisdiction and Motion for Summary Judgment on February 26, 2024. CR.19- 81. On February 29, 2024, Defendant’s Plea was noticed to be heard by submission. 1 Trial Court Disposition: The Honorable R.H. Wallace, Jr., entered an Order on March 13, 2025, denying Defendant’s Plea to the Jurisdiction and Motion for Summary Judgment. CR.

168-169. Defendant timely filed its Notice of Appeal on April 2, 2025, pursuant to Texas Rules of Appellate Procedure Rule 4.2. CR. 172.

1 The Clerk’s Record was filed on April 14, 2025. Upon filing, however, the Clerk’s Record was incomplete and the University timely filed a request for a supplemental record from the Clerk.

Despite having requested this pleading, this appears to be missing from the record. At the time of the filing of this brief, the Clerk’s record has not been supplemented and this document remains missing from the record; therefore, it is attached hereto as Appendix Tab 1.

vi Statement Regarding Oral Argument Oral argument is not necessary in this case, as the briefing amply demonstrates that the trial court erroneously denied the University of Texas at Arlington’s Plea to the Jurisdiction relating to Plaintiff James McMerchant’s Title VII claim. However, if the Court determines that oral argument would be helpful, the University respectfully requests an opportunity to participate.

vii Issues Presented Statutory prerequisites to suit are jurisdictional requirements in suits against governmental entities under Texas law. Did the trial court err in denying the University’s Plea to the Jurisdiction because James McMerchant failed to meet the administrative, statutory prerequisites for bringing a Title VII claim?

viii Introduction McMerchant filed an EEOC charge (the “Charge”) on January 13, 2021, based on an alleged adverse action nearly 4 years prior. This means Plaintiff failed to exhaust administrative remedies before filing suit, thereby depriving the trial court of jurisdiction over his claim. As the Supreme Court explained, “Title VII directs that a ‘charge … shall be filed’ with the EEOC ‘by or on behalf of a person claiming to be aggrieved’ within 180 days ‘after the alleged unlawful employment practice occur[s].’” Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 543 (2019) (quoting 42 U.S.C. § 2000e-5(b), (e)(1)). “The 180 calendar day filing deadline is extended to calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.”2 “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity” under Texas law. Tex. Gov’t Code § 311.034. Thus, as a matter of Texas procedural law, failure to timely exhaust Title VII’s administrative remedies would deprive the trial court of jurisdiction to adjudicate those claims against the University. United Indep. Sch. Dist. v. Mayers, 665 S.W.3d 775, 783 (Tex. App.—San Antonio 2023, no pet.) (“If [Plaintiff] failed to meet those federal statutory

2 U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025). prerequisites, the trial court lacked subject-matter jurisdiction over her Title VII and ADEA claims against [Defendant] as a matter of Texas law.”).

Here, McMerchant failed to meet this statutory prerequisite by filing his Charge more than 300 days after any alleged adverse action occurred.

Statement of Facts I. Factual Background McMerchant was hired as a Warehouse Worker in the Property Management department of the University’s Division of Business Affairs on June 23, 2015. CR.44. at 13:5-11; CR.68. Initially, McMerchant reported to Steve Burdette, who reported to Jason Welch, an Assistant Director in the Division of Business Affairs. CR. 45. at 18:16-17, CR.68. In 2016, while working as a Warehouse Worker, Plaintiff cross trained in the Mail Services department, also in the Division of Business Affairs.

CR.46. at 19:2-22, 74:6-9; CR.68. Specifically, Plaintiff was in training in the mail services department in preparation for the retirement of a Mail Carrier, C.W. Gayle.

CR.62. at 73:10-14, CR. 68. According to Plaintiff, once he started training in the mail room, he stopped working in the Warehouse. CR. 62. at 73:18-21. For context, Warehouse Workers and Mail Carriers serve similar functions: Warehouse Workers deliver and move freight around campus and assist with office and event setup; Mail Carriers deliver mail across campus. CR. 68.

Approximately one year after Plaintiff was hired, Derek Gieralt was hired as a Warehouse Worker. CR. 45. at 18:6-12, CR. 68. In 2017, the Property Management department posted a new position, “Coordinator I,” for which Gieralt applied and was ultimately hired. CR. 68. Plaintiff did not apply for the position. CR. 68.

In 2019, Plaintiff was classified as a Warehouse Worker with a salary of $28,428, and Gieralt was classified as a Coordinator I with a salary of $34,092. CR.

52, 68-69, 74. However, for a time, Gieralt was mistakenly listed on the University’s website as a Mail Carrier, but this was an error; he had never held the position of Mail Carrier. CR. 68. Plaintiff sought out Derek Gieralt’s salary information on the Texas Tribune website’s database purporting to show state of Texas employees’ salaries and found that Derek Gieralt’s yearly salary was listed at $35,000. See CR.10 at 38:16-39:24, 46:22- 48:13. Because of the mistake on the University’s website, Plaintiff believed Gieralt’s higher salary was attributed to his classification as a Mail Carrier, therefore if he [Plaintiff] were classified as a Mail Carrier instead of a Warehouse Worker, he believed he should also receive higher pay. CR. 52 at 40:10- 18; CR.47. at 34:11-36:06, CR.5 at ¶ 13 (claiming that Derek Gieralt was hired as Mail Carrier II in 2020). In reality, as stated above, Gieralt’s salary reflected his 2017 promotion to the Coordinator position. CR. 68. A reclassification from Warehouse Worker to Mail Carrier, however, was not a promotion and would not necessarily result in higher pay. Id. At the end of 2019, around the time Gayle was set to retire, Plaintiff approached Welch and requested a raise and title change from Warehouse Worker to Mail Carrier. CR. 68, CR. 51 at 39:7-19. Welch was amenable to this request but could not take action immediately due to a hiring freeze. CR. 68, CR. 51 at 39:7-24.

As soon as the freeze was lifted, Plaintiff was reclassified as a Mail Carrier and received a raise. CR. 68. Plaintiff’s raise, from $28,428 to $30,000, reflected that Plaintiff was performing the duties of a Mail Carrier and had picked up some of the work previously handled by Gayle and would continue to do so. Id., CR. 74.

II. Procedural Background Plaintiff filed a Charge of Discrimination (“the Charge”) with the EEOC/TWC on January 13, 2021, alleging he was promoted in 2017 but had yet to receive the “appropriate pay raise associated with his promotion.” CR. 41. The Charge also alleges that Welch informed Plaintiff that when Gayle retired, his pay would be adjusted; however, there is no allegation of an adverse action against him related to this assertion. CR.41. On October 20, 2022, Plaintiff filed his Original Petition against the University, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Appendix Tab 2. On November 10, 2022, the University filed its Original Answer and General Denial asserting, among others, the affirmative defense of failure to exhaust administrative remedies for all relevant claims. Appendix Tab 3 at ¶12. On December 1, 2022, Defendant moved to dismiss Plaintiff’s ADEA claim for lack of subject matter jurisdiction because it was barred by sovereign immunity. Appendix Tab 4. Plaintiff subsequently filed his First Amended Petition on January 26, 2023, asserting a single claim for race discrimination in violation of Title VII. CR. 4-10. Defendant filed its Answer to Plaintiff’s First Amended Petition on February 3, 2023, raising once again the failure to exhaust administrative remedies affirmative defense due to Plaintiff’s failure to file a charge with the Equal Employment Opportunity Commission or Texas Workforce Commission within 300 days after the alleged unlawful employment practice occurred. Appendix Tab 5 at ¶12. On February 26, 2024, Defendant filed its Plea to the Jurisdiction and Motion for Summary Judgment asserting the trial court lacked jurisdiction over Plaintiff’s claim due to his failure to exhaust administrative remedies and failure to meet his burden to establish a prima facia case of race discrimination. CR.23-39.

Summary of the Argument The trial court erroneously denied the University’s Plea to Jurisdiction over McMerchant’s Title VII claim because he failed to exhaust his administrative remedies as required by Title VII. Such statutory prerequisites to suit are jurisdictional requirements in all suits against a governmental entity in a Texas state court, and McMerchant’s failure to demonstrate compliance with all statutory requirements rendered his claims barred against the University. The trial court therefore lacked jurisdiction over McMerchant’s claim against the University, and the Court should reverse and dismiss his claim.

Standard of Review Jurisdiction “is essential to the court’s power to decide a case.” Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015) (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). When a governmental entity challenges subject-matter jurisdiction in a plea to the jurisdiction, as Appellant did here, courts must assure themselves of their jurisdiction. Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647

5 S.W.3d 681, 699 n.8 (Tex. 2022); Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012). The plaintiff bears the burden to affirmatively demonstrate the trial court’s jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019); see also, e.g., Matzen v. McLane, 659 S.W.3d 381, 388-89 (Tex. 2021).

“When a plea to the jurisdiction challenges the pleadings, [the court] determine[s] if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. A plea to the jurisdiction can also “properly challenge the existence of those very jurisdictional facts.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (emphasis in original). The court must determine whether it has jurisdiction under the constitution or by statute at the earliest opportunity. Id. “If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Miranda, 133 S.W.3d at 227. This Court reviews the trial court’s ruling on a plea to the jurisdiction de novo. Chambers-Liberty Cnts. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019).

Similarly, the standard of review for summary judgment motions challenging jurisdiction, and for traditional summary judgment motions under Texas Rule of Civil Procedure 166a(c) is de novo. Lazarides v. Farris, 367 S.W.3d 788, 797

(Tex.App.—Houston [14th Dist.] 2012, no pet.); Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006).

Argument I. The Trial Court Erred in Denying the University’s Plea to the Jurisdiction Because the Trial Court Lacked Jurisdiction Over McMerchant’s Title VII Claim.

A. Plaintiff failed to exhaust his administrative remedies.

The trial court erred in exercising jurisdiction over McMerchant’s Title VII claim because he failed to exhaust the mandatory administrative remedies prescribed by federal law. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In addition, Title VII prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).

However, before a claimant may bring a Title VII action in court, the statute requires the individual to file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 180 days after the alleged unlawful employment practice occurs. See 42 U.S.C. § 2000e-5(b), (e)(1); Fort Bend, 587 U.S. at 543. This filing requirement is a statutory prerequisite to suit.

Because McMerchant filed his Title VII claim in Texas state court, Texas procedural law governs whether the court had subject-matter jurisdiction over the claim. Mayers, 665 S.W.3d at 782 (citing BNSF Ry. Co. v. Phillips, 485 S.W.3d 908, 910 (Tex. 2015) (per curiam)). Under Texas law, statutory prerequisites to suit— including exhaustion of administrative remedies—are considered jurisdictional in cases brought against governmental entities. Tex. Gov’t Code § 311.034. As the Mayers court explained, “[i]f [Plaintiff] failed to meet those federal statutory prerequisites, the trial court lacked subject-matter jurisdiction over her Title VII and ADEA claims against [Defendant] as a matter of Texas law.” 665 S.W.3d at 783.

McMerchant’s Charge of Discrimination centers on the allegation that he was “promoted” to Mail Carrier II in 2017 but did not receive a corresponding pay raise and title promotion until 2020. CR. 41. This mistaken belief is seemingly based on the perceived raise and titled promotion Gieralt, a white man, received immediately when he was promoted to Mail Carrier II in 2017—a position he, but not McMerchant, had applied for— and McMerchant’s misunderstanding about the pay associated with the Warehouse Worker and Mail Carried positions. Id; CR.5, CR.

47-49, at 34:11-36:06. While the undisputed evidence rebuts these allegations, 3 even

3 The undisputed evidence shows that Plaintiff did not receive a promotion in 2017, he did not request a raise or title change until the end of 2019 at earliest, and Gieralt’s salary increase in 2017 if taken as true, McMerchant was required to file his Charge within 300 days of that alleged discriminatory act. Because the Charge fails to identify a specific date in 2017 on which the alleged failure occurred, we construe the latest possible date— December 31, 2017—as the operative date for purposes of calculating timeliness.

Accordingly, to have properly exhausted his administrative remedies, McMerchant was required to file his Charge no later than October 27, 2018. CR.41. He did not file his charge until nearly 4 years later, on January 13, 2021, rendering this claim untimely and barred. Id. As the Supreme Court has explained, each discrete act of discrimination or retaliation must be a separate charge with the EEOC and must be filed within the applicable statute of limitations. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Despite this, McMerchant believes his charge covers numerous instances of discrimination, including his claim that he requested a raise near the end of 2019, around the time Gayle retired or was retiring. CR. 41. However, his Charge does not allege that the request was denied, that he failed to receive a raise, or otherwise describe any action related to this request that could be considered adverse. Not only was McMerchant required to bring this act in a was a result of his promotion to Coordinator I, a position different than Plaintiff’s with different roles and responsibilities. See generally, CR.19-81.

separate charge, but an EEOC charge must include specific details about each discrete adverse employment action and courts will not construe a change to include facts that were omitted. National Railroad, 536 U.S. at 113; see also, Jefferson v. Christus St. Joseph Hosp., 374 Fed. Appx. 485, 490 (5th Cir. 2010) (unpublished) (affirming district court’s ruling that certain claims were unexhausted where plaintiffs failed to describe the discriminatory conduct in the charge) (citing McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008) (Title VII case)). Therefore, the Court must disregard this unsupported allegation as a discrete act requiring timely filing and no basis for tolling the limitations period.

Even if the Court construes the Charge broadly to treat the 2019 raise request as an adverse action, which it should not, McMerchant still needed to file within 300 days and as a separate Charge—by October 26, 2020—to preserve this claim.

McMerchant filed his EEOC Charge on January 13, 2021. So, only adverse actions that occurred within the 300 preceding days—on or after March 19, 2020—are timely brought. There are none.

Accordingly, McMerchant failed to timely exhaust his administrative remedies, and the trial court lacked subject-matter jurisdiction over his Title VII claim.

B. Plaintiff cannot rely on the continuing violation doctrine to resurrect his procedural failures.

In his response to Defendant’s Plea, McMerchant tries to excuse his failure to timely exhaust administrative remedies by claiming, for the first time, that he faced continued discrimination from 2017 through October 2020. CR. 93. at ¶ 25. He argues that the continuing violation doctrine applies and that the 300-day filing period did not start until October 2020. CR. 94 at ¶ 26. This argument fails because the continuing violation doctrine does not apply to his claims and lacks support in the record.

First, the continuing violation doctrine applies only to claims of ongoing harassment—a claim which McMerchant has not raise.4 Second, the unlawful conduct must have occurred as a series of related acts over time, not discrete, isolated incidents. WalMart Stores, Inc. v. Davis, 979 S.W.2d 30, 41-42 (Tex. App.— Austin 1998, pet. denied). McMerchant’s alleged failure to receive a promotion in 2017 and failure to receive a raise in 2019 are discrete acts, to which the doctrine does not apply. National Railroad, 536 U.S. at 114 (holding that hostile work environment

4 National Railroad, 536 U.S. at 114 (2002) (holding that hostile work environment claims may qualify as continuing violations, while “termination, failure to promote, denial of transfer, or refusal to hire” are discrete acts); see also, U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge, https://www.eeoc.gov/time-limits-filing-charge (last visited May 27, 2025) (explaining the “one exception to this general rule” of requiring a charge be filed within 180/300 days of each discrete act is “if you are alleging ongoing harassment.”). claims may qualify as continuing violations, while “termination, failure to promote, denial of transfer, or refusal to hire” are discrete acts).

McMerchant therefore had to file his Charge within 300 days of each discrete act: by October 2018 for the 2017 promotion denial, and by October 2020 for the 2019 raise denial. Since he filed on January 13, 2021, he failed to timely exhaust his remedies and the trial court thus lacked subject-matter jurisdiction over Title VII claim.

Prayer For the foregoing reasons, this Court should reverse the trail court’s judgement denying the University’s Plea to the Jurisdiction and Motion for Summary Judgment.

Respectfully submitted, KEN PAXTON BRIANNA M. KROMINGA Attorney General of Texas Assistant Attorney General Texas Bar No. 24103252 BRENT WEBSTER [email protected] First Assistant Attorney General Office of the Attorney General RALPH MOLINA General Litigation Division Deputy First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 AUSTIN KINGHORN (214) 290-8884 | FAX: (512) 320-0667 Deputy Attorney General for Civil Litigation COUNSEL FOR APPELLANT KIMBERLY GDULA Chief for General Litigation Division Certificate of Service I hereby certify that on May 27, 2025, a true and correct copy of the foregoing document has been served via the Court’s electronic notification system to: Ali Crocker Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Office: (817) 482-6570 Fax: (682) 232-1850 [email protected] /S/ Brianna M. Krominga BRIANNA M. KROMINGA Assistant Attorney General

Certificate of Compliance This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 2,923 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

/S/ Brianna M. Krominga BRIANNA M. KROMINGA Assistant Attorney General

No. 5-25-00038-CV In the Court of Appeals for the Fifteenth Judicial District Austin, Texas University of Texas at Arlington, Appellant, v. James McMerchant, Appellee.

On Appeal from Cause No. 236-337930-22, in the 236th Judicial District Court of Tarrant County, Texas APPENDIX

TAB 1. Defendant’s Notice of Submission Hearing PTJ-MSJ................................1 2. Plaintiff’s Original Petition ........................................................................2 3. Defendant’s Original Answer ....................................................................3 4. Defendant’s Plea to the Jurisdiction and motion to dismiss .......................4 5. Defendant’s Answer to Plaintiff’s Amended Petition ................................5 6. 42 U.S.C. 2000e-2(a) .................................................................................6 7. 42 U.S.C. 2000e-3(a) .................................................................................7 8. 42 USC 2000e-5(b),(e)(1) ..........................................................................8 9. Tex Gov Code 311.034 ...............................................................................9 TAB 1: 236-337930-22 FILED TARRANT COUNTY 2/29/2024 4:27 PM CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT Plaintiff, § v. § § UNIVERSITY OF TEXAS AT § TARRANT COUNTY, TEXAS ARLINGTON. § Defendant. § § § 236TH JUDICIAL DISTRICT

NOTICE OF SUBMISSION ON DEFENDANT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGEMENT

PLEASE TAKE NOTICE that Defendant’s Plea to the Jurisdiction and Motion for Summary Judgment has been set for submission on April 19, 2024 in the 236th Judicial District Court, 100 North Calhoun Street, Fort Worth, Texas.

Respectfully submitted.

KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General JAMES LLOYD Deputy Attorney General for Civil Litigation KIMBERLY GDULA Chief, General Litigation Division /s/ Mary B. Quimby______ MARY B. QUIMBY Attorney in Charge Texas Bar No. 24132506 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax [email protected] Counsel for Defendant UTA

CERTIFICATE OF SERVICE I hereby certify that on February 29, 2024, a true and correct copy of this document was electronically filed via the Court’s e-service system, causing electronic service upon all counsel of record.

/s/ Mary B. Quimby MARY B. QUIMBY Assistant Attorney General Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Laura Hendrix on behalf of Mary Quimby Bar No. 24132506 [email protected] Envelope ID: 85071059 Filing Code Description: Notice Filing Description: 20240229_Ntc of Submission PTJ_MSJ Status as of 2/29/2024 4:31 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Ali Crocker [email protected] 2/29/2024 4:27:36 PM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON Name BarNumber Email TimestampSubmitted Status Laura Hendrix [email protected] 2/29/2024 4:27:36 PM SENT Mary Quimby [email protected] 2/29/2024 4:27:36 PM SENT TAB 2: FILED TARRANT COUNTY 236-337930-22 10/20/2022 9:13 AM CAUSE NO. ___________________ THOMAS A. WILDER DISTRICT CLERK JAMES MCMERCHANT, § IN THE DISTRICT COURT Plaintiff, § § v. § _____ JUDICIAL DISTRICT § UNIVERSITY OF TEXAS AT § ARLINGTON, § Defendant. § TARRANT COUNTY, TEXAS PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES James McMerchant, hereinafter called Plaintiff, complaining of University of Texas at Arlington. hereinafter called Defendant, and for cause of action shows unto the Court the following: DISCOVERY CONTROL PLAN LEVEL 1. Plaintiff intends that discovery be conducted under Discovery Level 2.

PARTIES AND SERVICE 2. Plaintiff, James McMerchant, is an individual residing in the State of Texas whose address is 7413 Beckwood Drive, Fort Worth, Texas 76112.

3. Defendant University of Texas at Arlington is an agency of the State of Texas and may be served with process by serving its interim President, Teik C. Lim, located at 701 S.

Nedderman Drive, Arlington, Texas 76019, or wherever he may be found.

JURISDICTION AND VENUE 4. The subject matter in controversy is within the jurisdictional limits of this court.

5. The damages sought in this suit are within the jurisdictional limits of this Court. As required by Texas Rule of Civil Procedure 47, Plaintiff seeks only monetary relief aggregating $250,000 or less, excluding costs, prejudgment interest, and attorney’s fees. Tex. R. Civ. P. 47(c)(1).

6. Venue is proper in Tarrant County in that the events giving rise to this cause of action occurred within Tarrant County.

FACTS 7. Plaintiff is sixty-seven (67) year old African-American individual.

8. Plaintiff was initially employed by Defendant as a warehouse worker.

9. Throughout Plaintiff’s tenure with Defendant, he was not written up, reprimanded, or admonished.

10. In or around 2017, Defendant promoted Plaintiff from warehouse worker to a Mail Carrier II position which included a new title, new job duties, and a pay raise. Thereafter, Plaintiff assumed his new job duties but Defendant failed to change his title and pay.

11. Plaintiff repeatedly brought the title and pay issues to the attention of his manager, Jason Welch, as well as Defendant’s human resource department. Neither Jason Welch nor Defendant’s human resource department did anything to remedy the problems.

12. In or around 2019, two years after Plaintiff’s promotion but still without the pay raise associated with that promotion, Jason Welch informed Plaintiff that when another employee left her position, Plaintiff’s pay and title would be adjusted to the proper rate.

13. In or around 2020, Defendant hired Derek Gieralt, a younger Caucasian man, for a Mail Carrier II position. Derek Gieralt started working as a warehouse employee, but with the Mail Carrier II title, and was receiving pay associated with the Mail Carrier II position. When questioned about this by Plaintiff, Defendant could not explain why it took over two years to get Plaintiff’s, a black man, title and pay raised to the Mail Carrier II position when he was hired for and began working in that position in 2017, but that Defendant would go out of its way to make sure that the title and pay were accurate for a white individual immediately upon hiring but then pay that increased pay for someone doing less as a warehouse worker.

CAUSE OF ACTION I: AGE DISCRIMINATION IN EMPLOYMENT ACT (“ADEA”) VIOLATION 14. Plaintiff incorporates all preceding paragraphs herein.

15. Age Discrimination in Employment Act of 1967., 81 Stat. 602, states: “it shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of age.” See also Tex. Lab. Code § 21.051.

16. The case law is clear. A plaintiff must establish a prima facie case of discrimination.

If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate some legitimate nondiscriminatory reason for its employment decision. If the defendant articulates a legitimate nondiscriminatory reason, then, the plaintiff, in order to prevail, must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

17. Within this general framework, the specifics to establish a prima facie case are outlined in the four-point McDonnell test. In McDonnell, the Court established a four-point test by which a plaintiff can show a prima facie case of discrimination. The plaintiff must show that: (1) the plaintiff belongs to a class protected by Title VII; (2) the plaintiff was qualified for his position; (3) the plaintiff, despite being qualified, was rejected; plaintiff experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.

18. With respect to the first requirement, under ADEA, discrimination based on age is prohibited. In 2017 at the onset of this discrimination, Plaintiff was sixty-two (62) years old which falls within a protected class as a person over 40 years of age.

19. As to the second requirement, throughout Plaintiff’s tenure with Defendant, he was not written up, reprimanded, or admonished. In fact, after having worked for and developed a good working history for Defendant, Plaintiff was promoted to a Mail Carrier II position in 2017.

Plaintiff worked in that Mail Carrier II position for years despite not receiving the title and pay increase that he was promised by Defendant in his promotion. Despite not receiving his additional promised benefits, Plaintiff dutifully worked in that position without any complaints from Defendant. Thus, it is apparent that Plaintiff was qualified for his position.

20. Despite being qualified, Plaintiff received adverse employment action. Despite his work performance history and never having received a reprimand or other disciplinary action during his tenure with Defendant, Plaintiff was given increased responsibility with his new position but was refused the correct title and pay raise that was part of that position. He was directly damaged as a result because he was forced to work in his new position with increased responsibilities for over two years without receiving the pay for which he was promised in that promotion to Mail Carrier II.

16. Defendant has previously responded to Plaintiff’s allegations with the excuse that Plaintiff said he didn’t want a pay raise. That is absolutely false. Between 2017 when he was promoted and 2020 when the younger white male was hired for the same position and immediately given the new title and increased pay associated with the Mail Carrier II position, Plaintiff repeatedly went to his manager, Jason Welch, and Defendant’s human resources department to complain that he wasn’t receiving the proper pay and title. Each time Plaintiff was repeatedly given an excuse as to why the pay could not be adjusted at that time. Plaintiff simply wanted to be paid for the work he was doing. Defendant had no problem immediately paying the younger white man the proper pay for having the same position title as Plaintiff, they only had problems paying the older African-American man what he was entitled to be paid.

17. Defendant has yet to provide a legitimate reason for the refusal to grant Plaintiff the pay and title for which he was hired but denied but were so eager to provide to Plaintiff’s younger, Non-African American colleagues.

CAUSE OF ACTION II: TITLE VII VIOLATION FOR DISCRIMINATION BASED ON RACE 18. Plaintiff incorporates all preceding paragraphs herein.

19. Title VII of the Civil Rights Act of 1964 (the “Act”) makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity) or religion. The Act prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

20. The case law is clear. A plaintiff must establish a prima facie case of discrimination.

21. Within this general framework, the specifics to establish a prima facie case are outlined in the four-point McDonnell test. In McDonnell, the Court established a four-point test by which a plaintiff can show a prima facie case of discrimination. The plaintiff must show that: (1) the plaintiff belongs to a protected class; (2) the plaintiff was qualified for his position; (3) the plaintiff, despite being qualified, was rejected; plaintiff experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.

22. With respect to the first requirement, Plaintiff is African-American and thus a member of a protected class based on his race.

23. As stated above, throughout Plaintiff’s tenure with Defendant, he was not written up, reprimanded, or admonished. In fact, after having worked for and developed a good working history for Defendant, Plaintiff was promoted to a Mail Carrier II position in 2017. Plaintiff worked in that Mail Carrier II position for years despite not receiving the title and pay increase that he was promised by Defendant in his promotion. Despite not receiving his additional promised benefits, Plaintiff dutifully worked in that position without any complaints from Defendant. Thus, it is apparent that Plaintiff was qualified for his position.

24. Also as previously stated, despite being qualified Plaintiff received adverse employment action from Defendant. Despite his work performance history and never having received a reprimand or other disciplinary action during his tenure with Defendant, Plaintiff was given increased responsibility with his new position but was refused the correct title and pay raise that was part of that position. He was directly damaged as a result because he was forced to work in his new position with increased responsibilities for over two years without receiving the pay for which he was promised in that promotion to Mail Carrier II.

25. Between 2017 when he was promoted and 2020 when the younger white male was hired for the same position and immediately given the new title and increased pay associated with the Mail Carrier II position, Plaintiff repeatedly went to his manager, Jason Welch, and Defendant’s human resources department to complain that he wasn’t receiving the proper pay and title. Each time Plaintiff was repeatedly given an excuse as to why the pay could not be adjusted at that time. Plaintiff simply wanted to be paid for the work he was doing. Defendant had no problem immediately paying the younger white man the proper pay for having the same position title as Plaintiff, they only had problems paying the older African-American man what he was entitled to be paid.

26. Defendant has yet to provide a legitimate reason for the refusal to grant Plaintiff the pay and title for which he was hired but denied but were so eager to provide to Plaintiff’s younger, Non-African American colleagues.

CONDITIONS PRECEDENT 27. All conditions precedent to jurisdiction have occurred or been complied with: a charge of discrimination was filed with the Equal Employment Opportunity Commission within three-hundred days of the acts complained of herein and Plaintiff's Petition is filed within ninety days of Plaintiff's receipt of the Equal Employment Opportunity Commission's issuance of a right to sue letter.

DAMAGES 28. Plaintiff incorporates all preceding paragraphs herein. As a direct and proximate result of the occurrence made the basis of this lawsuit and Defendant’s acts as described herein, Plaintiff suffered damages including but not limited to the loss of income and earnings, attorney fees, court costs, and other damages as described herein or as may be prove at the time of trial.

ATTORNEY'S FEES 29. Request is made for all costs and reasonable and necessary attorney's fees incurred by or on behalf of Plaintiff herein, including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just, as provided by: (a) Section 17.50(d) of the Texas Business and Commerce Code; (b) Chapter of the Texas Civil Practice and Remedies Code; and, (c) common law.

PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendant for the economic and actual damages requested hereinabove in an amount in excess of the minimum jurisdictional limits of the Court, together with prejudgment and post judgment interest at the maximum rate allowed by law, attorney's fees, costs of court, and such other and further relief to which the Plaintiff may be entitled at law or in equity, whether pled or unpled.

Respectfully Submitted, Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Tel: (817) 482-6570 Fax: (682) 232-1850 /s/ Ali Crocker Russell Ali Crocker Russell Bar No: 24098868 Email: [email protected] Attorney for Plaintiff DocuSign Envelope ID: 96AD8DE2-21F8-4693-B300-DA58E9CE3ED8

James McMerchant Crocker Russell & Associates c/o Ali Crocker 2401 Callender Road, Suite 103 Mansfield, TX 76063

NOTICE OF DISMISSAL AND RIGHT TO FILE CIVIL ACTION James McMerchant v UNIVERSITY OF TEXAS AT ARLINGTON TWCCRD Charge Number EEOC Charge Number TWCCRD Representative 1A21464 31C-2021-00415 Monica John

The Civil Rights Division has dismissed this Charge and is closing its file for the following reason: [ ] The facts alleged in the charge fail to state a claim under any of the statutes enforced by the TWCCRD.

[ ] Your allegations did not involve a disability that is covered by the Americans with Disabilities Act or the Texas Labor Code, Chapter 21.

[ ] The Respondent employs less than the required number of employees or not otherwise covered by the statutes.

[ ] We cannot investigate your charge because it was not filed within the time limits required by law.

[ ] Having been given 30 days in which to respond, you failed to provide information, failed to appear or be available for interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve your charge.

[ ] While reasonable efforts were made to locate you, we were not able to do so.

[ ] You had 30 days to accept a reasonable settlement offer that afforded full relief for the harm you alleged. You failed to accept the full relief.

[X] The TWCCRD issues the following determination: Based upon its investigation, the TWCCRD is unable to conclude that the information obtained establishes any violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

[ ] Other:

101 E. 15th Street, Room: Guadalupe CRD • Austin, Texas 78778-0001• Austin, Texas 78701 • (512) 463-2642 (T) • (512) 482-8465 (F) • Relay Texas: 800-735-2989 (TDD) 800-735-2988 (Voice) • www.texasworkforce.org Equal Opportunity Employer / Program DocuSign Envelope ID: 96AD8DE2-21F8-4693-B300-DA58E9CE3ED8 James McMerchant v UNIVERSITY OF TEXAS AT ARLINGTON TWCCRD Charge Number: 1A21464«Field2» EEOC Charge Number: 31C-2021-00415

NOTICE OF RIGHT TO FILE CIVIL ACTION Pursuant to Sections 21.208, 21.252 and 21.254 of the Texas Labor Code, as amended, this notice is to advise you of your right to bring a private civil action in state court in the above referenced case. PLEASE BE ADVISED THAT YOU HAVE SIXTY (60) DAYS FROM THE RECEIPT OF THIS NOTICE TO FILE THIS CIVIL ACTION. The time limit for filing suit based on a federal claim may be different.

EEOC REVIEW NOTICE As your charge was dual filed under Title VII of the Civil Rights Act/Age Discrimination in Employment Act/Americans with Disabilities Act, which are enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request an EEOC review of this final decision on your case.

To secure a review, you must request it in writing within fifteen (15) days from the date of the notice.

Send your request to: San Antonio EEOC, 5410 Fredericksburg Road, Suite 200, San Antonio, TX 78229.

On behalf of the Division ________________________ 8/24/2022 ________________ Bryan Snoddy Date Division Director cc: THE UNIVERSITY OF TEXAS AT ARLINGTON c/o Shelby Boseman S. Nedderman Drive, Suite 246 Arlington, TX 76019 Automated Certificate of eService This automated certificate of service was created by the efiling system.

Micala Munoz on behalf of Ali Crocker Bar No. 24098868 [email protected] Envelope ID: 69398406 Status as of 10/20/2022 9:23 AM CST Associated Case Party: James McMerchant Name BarNumber Email TimestampSubmitted Status Ali Crocker [email protected] 10/20/2022 9:13:32 AM SENT Martha Aguilar [email protected] 10/20/2022 9:13:32 AM SENT Micala Munoz [email protected] 10/20/2022 9:13:32 AM SENT TAB 3: 236-337930-22 FILED TARRANT COUNTY 11/10/2022 6:05 PM CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT § Plaintiff, § v. § § TARRANT COUNTY, TEXAS UNIVERSITY OF TEXAS AT § ARLINGTON. § § Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S ORIGINAL ANSWER AND REQUEST FOR DISCLOSURE

TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant University of Texas at Arlington (“UTA”) who files this Original Answer and Request for Disclosure, and would respectfully show the Court as follows: I.

ORIGINAL ANSWER Defendant asserts a general denial to the allegations contained in Plaintiff’s Original Petition and all matters subsequently set up by Plaintiff, as authorized by Rule 92 of the Texas Rules of Civil Procedure, and demand that Plaintiff prove such allegations by a preponderance of the evidence as required by law.

II.

DEFENSES In addition to its general denial, Defendant UTA asserts the following defenses: 1. Defendant UTA denies that it violated any of Plaintiff’s rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., Chapter 21 of the Texas Labor Code, or any other law or statute which Plaintiff sues or may be suing.

2. Defendant UTA denies that Plaintiff is entitled to damages, attorney’s fees, interest, or costs in any amount whatsoever, or to any other relief demanded in Plaintiff’s Original Petition.

3. Defendant UTA asserts, with respect to any alleged material adverse employment action it took concerning Plaintiff and of which Plaintiff complains in this lawsuit, that it would have taken the same action or actions regardless of Plaintiff’s alleged protected characteristics or status or alleged retaliation.

4. Defendant UTA denies that its employees were motivated by any discriminatory or retaliatory intent of any kind.

5. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff were taken without any discriminatory or retaliatory intent.

6. Defendant UTA asserts that the employment actions, if any, taken regarding Plaintiff concerning any claim alleged by Plaintiff in this lawsuit were based on a good-faith belief that such actions were lawful and consistent with agency policy.

7. Defendant UTA asserts that each alleged challenged action of which Plaintiff complains in this lawsuit was taken for legitimate, non-discriminatory business reasons.

8. Defendant UTA asserts that Plaintiff has failed to mitigate or avoid damages, emotional or monetary, he claims to have suffered and that none of the alleged damages, if any, are the result of any discriminatory or retaliatory act by Defendant.

9. Sovereign immunity from suit bars any and all of Plaintiff’s claims to which that affirmative defense may apply.

10. Sovereign immunity from liability bars Plaintiff’s recovery to such an extent that this affirmative defense may apply.

11. Defendant UTA asserts its right to any allowable credits or offsets against any judgment in Plaintiff’s favor.

12. Defendant UTA asserts the affirmative defense of failure to exhaust administrative remedies for all claims to which it may apply.

13. Any damages Plaintiff may allege are subject to applicable statutory caps or specifically denied by statute.

14. To the extent that Plaintiff’s claims or filings occurred outside any applicable statutory periods or were not thoroughly exhausted through any required administrative process, her claims are barred.

15. Defendant UTA asserts the right to raise additional affirmative defenses that become apparent throughout the factual development of this case.

III.

PRAYER Defendant requests judgment of the Court that Plaintiff take nothing by this suit and that Defendant recovers all costs and such other and further relief to which they may be justly entitled.

Respectfully submitted.

KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General GRANT DORFMAN Deputy First Assistant Attorney General SHAWN COWLES Deputy Attorney General for Civil Litigation CHRISTOPHER D. HILTON Chief, General Litigation Division /s/ Benjamin S. Walton BENJAMIN S. WALTON Attorney in Charge Texas Bar No. 24075241 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax [email protected] ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served electronically through the electronic-filing manager in compliance with TRCP 21a on this 10th day of November, 2022, to: Ali Crocker Russell 2401 Callender Road, Suite 103 Mansfield, Texas 76063 [email protected] ATTORNEY FOR PLAINTIFF /s/ Benjamin S. Walton BENJAMIN S. WALTON Assistant Attorney General Automated Certificate of eService This automated certificate of service was created by the efiling system.

Laura Hendrix on behalf of Benjamin Walton Bar No. 24075241 [email protected] Envelope ID: 70089140 Status as of 11/11/2022 8:22 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Ali Crocker [email protected] 11/10/2022 6:05:28 PM SENT Micala Munoz [email protected] 11/10/2022 6:05:28 PM SENT Martha Aguilar [email protected] 11/10/2022 6:05:28 PM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON Name BarNumber Email TimestampSubmitted Status Benjamin Walton [email protected] 11/10/2022 6:05:28 PM SENT Mary Quimby [email protected] 11/10/2022 6:05:28 PM SENT Laura Hendrix [email protected] 11/10/2022 6:05:28 PM SENT TAB 4: 236-337930-22 FILED TARRANT COUNTY 12/1/2022 8:46 AM CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT § Plaintiff, § v. § § TARRANT COUNTY, TEXAS UNIVERSITY OF TEXAS AT § ARLINGTON. § § Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S PLEA TO THE JURISDICTION AND MOTION TO DISMISS UNDER TEXAS RULE OF CIVIL PROCEDURE 91A

NOW COMES Defendant The University of Texas at Arlington (“UTA”) and files this Plea to the Jurisdiction and Motion to Dismiss under Texas Rule of Civil Procedure 91a.

This Court should dismiss Plaintiff’s ADEA claims for lack of subject-matter jurisdiction because it is barred by sovereign immunity. Additionally, Plaintiff’s ADEA claim has no basis in law for the reasons described in more detail below. As such, this Court should dismiss Plaintiff’s ADEA claims under Texas Rule of Civil Procedure 91a.

I. BACKGROUND Plaintiff alleges he is a 67 year-old African American man, employed by the defendant, originally as a “warehouse worker.” Orig. Pet. ¶¶ 7-8. Plaintiff alleges that in 2017, he was promoted to a “Mail Carrier II” position which included a pay raise, but Defendant failed to change his title and pay even though he had assumed his new role. Id. ¶ 10. Plaintiff alleges that in 2019, two years after he assumed the “Mail Carrier II” position, his pay and title were adjusted to the proper rate. Id. ¶ 12.

II. ARGUMENT AND AUTHORITIES A. Plea to the Jurisdiction i. Standard of Review A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012). The plaintiff bears the burden to affirmatively demonstrate the trial court’s jurisdiction. Id. at 150; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (The standard of review for subject-matter jurisdiction requires the pleader to “allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”); Texas Dep’t of Crim. Justice v. Miller, 48 S.W.3d 201, 203 (Tex. App.—Houston [1st Dist.]1999), rev’d on other grounds, 51 S.W.3d 583, 589 (Tex. 2001)). Subject-matter jurisdiction cannot be waived, nor is it presumed. Id. at 443–44. At the earliest opportunity the court must determine whether it has jurisdiction under the constitution or by statute to allow litigation to proceed. Miranda, 133 S.W.3d at 226. “When a plea to the jurisdiction challenges the pleadings, [the court] determine[s] if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Id. at 226. “If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id. at 227.

ii. Plaintiff’s ADEA claim is barred by sovereign immunity.

A suit against the State or its agencies is barred by sovereign immunity absent clear and unambiguous legislative consent. Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, -225 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign immunity deprives a court of subject-matter jurisdiction, and dismissal with prejudice is proper.

Ramos v. Texas Dep’t of Pub. Safety, 35 S.W.3d 723, 734 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (citing City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App.—Austin 1998.). This immunity extends to various divisions of state government, including universities.

Slade v. Tex. S. Univ. Bd. of Regents, 232 S.W.3d 395, 398 (Tex.App.-Houston [1st Dist.] 2007, no pet.) citing Tooke v. City of Mexia, 197 S.W.3d 325, 330 n. 11 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). UTA is part of the University of Texas System, a state agency. TEX. EDUC. CODE §§ 65.02(a)(1), 68.01 et seq.

Plaintiff is required to affirmatively demonstrate the Court’s jurisdiction to hear the lawsuit under some statute that waives sovereign immunity. Miller, 51 S.W. 3d at 587. To avoid dismissal based on sovereign immunity, a plaintiff must demonstrate either a valid Congressional abrogation of that immunity or a waiver of immunity by the state. Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010). Plaintiff can demonstrate neither. 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’ sovereign 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 sovereign 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 sovereign immunity); Tex. A&M AgriLife Ext. Servs. v. Garcia No. 10-18- 00094-CV, 2018 WL 4354055 at *1-2 (Tex.App – Waco 2018, no pet.) (plaintiff did not show that the Texas legislature waived the State’s immunity from suits under the ADEA); Klebe v. Univ. of Tex. Sys. No. 03-05-00527-CV, 2007 WL 2214344 at *5 (Tex.App – Austin 2007, no pet) (plaintiff offered no legislative authority that authorized an ADEA suit against the State). As a result, this Court lacks subject-matter jurisdiction over Plaintiff’s ADEA claim. Therefore, the Court must dismiss Plaintiff’s ADEA claim for lack of subject-matter jurisdiction.

B. Motion to Dismiss Generally, “a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.” Tex. R. Civ. P. 91a.1. Per Rule 91a, “[a] cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id. Defendant files this motion to dismiss in accordance with the time limits prescribed in Rule 91a.3(a)–(b). Rule 91a requires this motion to be “granted or denied within 45 days after the motion is filed.” Tex. R. Civ. P. 91a.3(c).

Plaintiff’s ADEA claim has no basis in law because it is barred by sovereign immunity, as discussed above. Thus, this Court should dismiss the ADEA claim pursuant to Rule 91a.

CONCLUSION For the foregoing reasons, Defendant UTA respectfully request this Court to dismiss Plaintiff’s ADEA claim.

Respectfully submitted.

KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General GRANT DORFMAN Deputy First Assistant Attorney General SHAWN COWLES Deputy Attorney General for Civil Litigation CHRISTOPHER D. HILTON Chief, General Litigation Division /s/ Mary B. Quimby______ MARY B. QUIMBY Attorney in Charge Texas Bar No. 24132506 Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711 (512) 463-2120 – Phone (512) 320-0667 – Fax [email protected] Counsel for Defendant UTA CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was electronically filed and served using the Court’s e-service system on December 1, 2022 and was also served via electronic mail to the following: Ali Crocker Crocker Russell & Associates 2401 Callender Road, Suite 103 Mansfield, Texas 76063 Office: (817) 482-6570 Fax: (682) 232-1850 [email protected] /s/ Mary B. Quimby MARY B. QUIMBY Assistant Attorney General Automated Certificate of eService This automated certificate of service was created by the efiling system.

Laura Hendrix on behalf of Mary Quimby Bar No. 24132506 [email protected] Envelope ID: 70593433 Status as of 12/1/2022 9:02 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Ali Crocker [email protected] 12/1/2022 8:46:46 AM SENT Micala Munoz [email protected] 12/1/2022 8:46:46 AM SENT Martha Aguilar [email protected] 12/1/2022 8:46:46 AM SENT

Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON Name BarNumber Email TimestampSubmitted Status Laura Hendrix [email protected] 12/1/2022 8:46:46 AM SENT Mary Quimby [email protected] 12/1/2022 8:46:46 AM SENT TAB 5: 236-337930-22 FILED TARRANT COUNTY 2/3/2023 9:02 AM CAUSE NO. 236-337930-22 THOMAS A. WILDER DISTRICT CLERK

JAMES MCMERCHANT, § IN THE DISTRICT COURT § Plaintiff, § v. § § TARRANT COUNTY, TEXAS THE UNIVERSITY OF TEXAS AT § ARLINGTON. § § Defendant. § 236TH JUDICIAL DISTRICT

DEFENDANT’S ANSWER TO PLAINTIFF’S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant The University of Texas at Arlington (“UTA”) who files this Original Answer and Request for Disclosure, and would respectfully show the Court as follows: I.

II.

DEFENSES In addition to its general denial, Defendant UTA asserts the following defenses: 1. Defendant UTA denies that it violated any of Plaintiff’s rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., Chapter 21 of the Texas Labor Code, or any other law or statute which Plaintiff sues or may be suing.

2. Defendant UTA denies that Plaintiff is entitled to damages, attorney’s fees, interest, or costs in any amount whatsoever, or to any other relief demanded in Plaintiff’s First Amended Petition.