Texas Tech University System and Texas Tech University System Board of Regents v. Pureza "Didit" Martinez

Supreme Court of Texas
══════════
No. 22-0843
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Texas Tech University System and
Texas Tech University System Board of Regents,
Petitioners,

v.

Pureza “Didit” Martinez,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════

JUSTICE YOUNG, joined by Justice Boyd and Justice Busby,
dissenting.

Mrs. Martinez claimed that the Texas Tech University Health
Sciences Center terminated her employment due to age-based employment
discrimination, so she sued. The Center—Martinez’s direct employer—is
an entity under the authority of the Texas Tech University System and
its Board of Regents. The System and the Board are not Martinez’s
direct employers, but she also sued them for employment discrimination.
Under Texas law, a plaintiff can sue such a third party as an “employer”
by alleging that it exercised control over the employment action. The
System and the Board filed a plea to the jurisdiction that asserts sovereign
immunity and requests dismissal of Martinez’s claims with prejudice.
The Court rejects that request. I disagree with the Court’s
judgment for reasons that I will explain in detail, but I agree with the
Court that Martinez can indeed sue the Board and the System as
“employers.” After all, if the law did not allow Martinez (or anyone) to
sue the Board or the System as indirect “employers,” it would be pointless
to give Martinez leave to replead; we would just dismiss with prejudice,
as petitioners ask. The distance between the Court’s view and mine,
therefore, is not necessarily great. But what divides us is still important,
especially because the Court’s new concept of the sufficiency of the
pleadings will affect the entire legal system.
The Court sends Martinez back to try again. I cannot see why.
Martinez has already alleged more than enough to state a claim, the
lowest burden in litigation. Satisfying that low bar is all she must do for
us to uphold the judgments of the able district court and the unanimous
court of appeals panel. The Board and the System, after all, chose to file
only “a jurisdictional plea [that] challenges the plaintiff’s pleadings.”
Ante at 7 (emphasis added). They could have, but did not, file a plea to
the jurisdiction that would have required Martinez to provide evidence of
contested jurisdictional facts.
The Court concludes that, despite the liberal construction we must
give pleadings, Martinez’s allegations fail even to state a claim against
the Board and the System. She must say more. But what else, exactly,
must Martinez allege? Here is how the court of appeals interpreted her
original petition:

2
[T]he following picture [is] painted by Martinez’s live
pleading. The University System, through its Board of
Regents, decided to rid the Center of older employees due to
financial concerns relating to their impending retirement.
They then directed [the president of the Health Sciences
Center, who was also the chancellor of the System] to
implement their policy. He did.

683 S.W.3d 111, 116 (Tex. App.—Amarillo 2022). I agree with the court
of appeals. Frankly, I agree with everything in its well-reasoned opinion,
but most importantly, I agree that Martinez’s original petition “satisfies
[the requirements of Texas law]; the System and Board purportedly
‘controlled access to the plaintiff’s employment opportunities and denied
or interfered with that access based on unlawful criteria.’ ” Id. She has
pleaded more than enough to make these points.
Indeed, if her clear, specific, and detailed allegations are
insufficient on their face, then I have been wrong all these years about
what it takes to frame a sufficient pleading. The Court could, I suppose,
treat this case as a ticket good for one ride only (but why, then, did we
grant review?). Otherwise, the problem is not one for Martinez alone—
she will have plenty of company in the lower courts, the bar, and the
public in wondering what the minimum pleading standard really is. So I
must respectfully dissent.
I
This case comes to us on a plea to the jurisdiction because the
Board and the System are state entities whose sovereign immunity has
been waived as to employment-discrimination claims. See Tex. Lab.
Code § 21.002(8)(D). The Labor Code “waives immunity, but only when
the plaintiff states a claim for conduct that actually violates the statute.”

3
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). The statute says this: “An employer commits an unlawful
employment practice if because of . . . age the employer . . . discharges
an individual.” Tex. Lab. Code § 21.051(1). “Generally, an employer
commits an unlawful practice ‘because of’ an employee’s age if the
employee’s age was ‘a motivating factor’ for the practice, ‘even if other
factors also motivated the practice.’ ” Tex. Tech Univ. Health Scis. Ctr.-
El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (quoting Tex. Lab.
Code § 21.125(a)); see also Tex. Lab. Code § 21.101 (plaintiff employee
must be “40 years of age or older”).
For the statute to apply to a defendant, that defendant must be an
“employer.” No one disputes that the Center is Martinez’s “employer”—
it is her direct employer. But what about the Board and the System?
They can be her “employers,” too. As this Court has explained, the Labor
Code’s use of “employer” extends beyond direct employers; instead, it
“affords a claim to people who do not stand in a direct employment
relationship with the defendant-employer.” NME Hosps., Inc. v. Rennels,
994 S.W.2d 142, 146 (Tex. 1999).1 In doing so, we embraced the federal

1 As I will describe, Martinez sufficiently alleges a claim against the

System as her indirect “employer” under Rennels. She could choose to allege
that the System is her direct employer. She noted in her briefing (and the Court
discussed at oral argument), for example, that she has received W-2 forms listing
her employer as the System. Moreover, as she noted, “[t]he parties have not yet
begun discovery. Discovery of Mrs. Martinez’s employee records will answer
important factual questions as to who her ‘employers’ actually were, and given
her position as Chief of Staff to [the president of the Center and the chancellor
of the System], whether she was an employee of [the Center, the] System, or
both.” But for purposes of today’s case, and indeed because today’s decision
matters so much to future cases, I focus on why the allegations are already
sufficient at this stage for the System to be an indirect employer.

4
approach from Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.
Cir. 1973).
Under that test, even if the System and the Board are not
Martinez’s direct employers, Martinez may still sue them as “employers”
if she alleges as to each:
(1) that the defendant is an employer within the statutory
definition of the Act; (2) that some sort of employment
relationship exists between the plaintiff and a third party;
and (3) that the defendant controlled access to the plaintiff’s
employment opportunities and denied or interfered with
that access based on unlawful criteria.

Rennels, 994 S.W.2d at 147 (citations omitted). Making such a showing,
we said, gives a plaintiff “standing” to sue the third party as an employer.
Id. It was a mistake to call it “standing,” which relates to subject-matter
jurisdiction—including when the defendant is not a governmental entity.2
Rather, Rennels clarified that the anti-discrimination laws also reach
defendants who are not direct employers.

2 If it really involved “standing,” then even private defendants could

challenge the pleadings on jurisdictional grounds. In fairness, the Court called
it “standing” because Sibley used that term. See Sibley Mem’l Hosp. v. Wilson,
488 F.2d 1338, 1341 (D.C. Cir. 1973). That usage came from an earlier era in
which courts had not yet begun speaking with precision about the difference
between “standing” and “merits.” Sibley helpfully explains that its use of
standing included those who have “an interest within the zone of those regulated
by the statute or constitutional guarantee in question.” Id. at 1341 n.4 (internal
quotation marks omitted). The Supreme Court has clarified that the zone-of-
interests test actually implicates the merits—does the statute give one a right to
relief? See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
127–28 & n.4 (2014); see also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763,
774 (Tex. 2020) (“[W]e have been clear in this century that the question whether
a plaintiff has established his right to go forward with [his] suit or satisfied the
requisites of a particular statute pertains in reality to the right of the plaintiff
to relief rather than to the [subject-matter] jurisdiction of the court to afford it.”
(alterations in original) (internal quotation marks omitted)).

5
Alleging facts that address the Rennels elements, in other words,
means that a plaintiff has satisfied the statutory requirement of suing an
“employer.” Whether Rennels was right or wrong to define “employer”
this way may be an interesting question—but that question is not before
us. No one here challenges Rennels. Every party instead asks us to apply
rather than modify or discard it. The System and the Board only contend
that they are not “employers,” either directly or under Rennels.
To address this contention, the Court rightly focuses on the third
Rennels element—that the Board and the System “controlled access to
[Martinez’s] employment opportunities and denied or interfered with that
access based on unlawful criteria.” Id. The Board and the System assert
that Martinez has not even alleged that they did so. The Court agrees
with them. Ante at 11. I do not.3
Martinez’s original petition contains both direct allegations of
discrimination by the System and the Board and allegations raising a
presumption of discrimination by them—two ways for her to prevail
under the statute.4 If the System and the Board are not her direct

3 The Board and the System make other arguments, too. One is that
they could not have discriminated because, under the “Regents’ Rules,” they do
not have authority to interfere in employment decisions in the System’s
components. The Court correctly rejects this contention. Ante at 12 n.7. The
Board also asserts, contrary to the statute’s language, see Tex. Lab. Code
§ 21.002(8)(D), that it is not an “employer” at all; Martinez says that this is
disputable, given that various employees report directly to the Board. If either
argument had merit, we would not allow repleading.
4 There are “two alternative methods of proof ” for age-discrimination

claims under § 21.051. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d
629, 634 (Tex. 2012). (Of course, at the pleading stage, “proof ” is not—or at
least should not be—required.) The first “involves proving discriminatory

6
employers, the same allegations assert “control” and “interference” to
satisfy the third Rennels element. See infra Part II.A (discussing
Martinez’s allegations in greater detail).
Our liberal-construction standard of review bolsters this
conclusion. The Court must “construe the pleadings liberally in favor of
the plaintiffs.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). But as I read it, the Court construes Martinez’s
pleading strictly against her and mandates that she greatly exceed what
our law requires of an original petition. The standard thus bears
repeating: “We construe the plaintiff’s pleadings liberally, taking all
factual assertions as true, and look to the plaintiff’s intent.” Heckman v.
Williamson County, 369 S.W.3d 137, 150 (Tex. 2012).5

II

So how do Martinez and the Court fare in discharging their
duties—Martinez to sufficiently allege that the Board and the System

intent via direct evidence of what the defendant did and said.” Id. Under the
second, “the plaintiff is entitled to a presumption of discrimination if she meets
the ‘minimal’ initial burden of establishing a prima facie case of
discrimination.” Id. (discussing the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). A prima facie case
exists if the plaintiff “was (1) a member of the protected class under the [Labor
Code], (2) qualified for his or her employment position, (3) terminated by the
employer, and (4) replaced by someone younger.” Id. at 642.
5 The Court notes that pleas to the jurisdiction can be similar to “special

exceptions.” Ante at 8 n.5. True enough. But what purpose does this
observation serve? Petitioners do not ask us (and did not ask the lower courts)
to treat their jurisdictional plea as a special exception. Their plea to the
jurisdiction asked for dismissal with prejudice. No party before us mentions
“special exceptions.” Nowhere other than footnote 5 does the Court mention
“special exceptions.” If special exceptions are relevant to today’s decision, I do
not see how.

7
discriminated against her, and the Court in reviewing those allegations
with proper deference at this stage of litigation? I address them in turn.

A

To start with Martinez, here is some of what she alleged. She was
72 when she was discharged as chief of staff. Pl.’s Original Pet. ¶ 45.
“The Board of Regents asked Dr. Mitchell [the president of the Center
and also the chancellor of the System] to reduce the average age of senior
leadership at [the Center].” Id. ¶ 49. Dr. Mitchell sent an email (which
Martinez also attached to her original petition) in which he observed that
the Board was “quite interested” in succession planning at the System
and the Center. Id. ¶ 14 (quoting Ex. B, the email). He reported that the
average employee of the Center’s senior leadership was 60 years old and
62% of employees were eligible for retirement. Id. Martinez was 12 years
above the senior leadership’s average age. Id. ¶ 45.
“One month later, Dr. Mitchell was true to his word and carried
out the Board of Regents’ request to reduce the age of senior leadership
by firing Mrs. Martinez.” Id. ¶ 15. Dr. Mitchell, “while acting for [the
Center] and the TTU System,” id. ¶ 23, fired Martinez both in person and
via email. Id. ¶¶ 16, 18. Dr. Mitchell did this “to appease the Board of
Regents and lower the average age of [the Center’s] President’s Executive
Council . . . by firing Mrs. Martinez and replacing her with a younger
white male.” Id. ¶ 23.
Central to Martinez’s theory is her allegation that there was “no
justifiable reason” for firing her. Id. ¶ 15. She was told that she was fired
for “ ‘leaking’ information from [Dr. Mitchell’s] office,” which she
categorically denied (even offering to take a lie-detector test). Id. ¶¶ 19–

8
20. She observed that she had “never been accused of this type of, or even
similar, conduct.” Id. ¶ 19. Martinez was, instead, “a faithful employee
of more than eleven years.” Id. ¶ 15. She had “repeatedly received
glowing evaluations, and her employee records will show that she has
never been disciplined or accused of any misconduct.” Id. ¶ 13. She was
set to receive a $15,000 merit-based salary increase. Id.
Martinez buttresses her assertion that there was “no justifiable
reason” for her firing by adding that there is “no evidence that [she] acted
improperly.” Id. ¶ 21. She both alleges this and shows that the allegation
is corroborated by a third-party source. The U.S. Equal Employment
Opportunity Commission investigated Martinez’s claims after learning
about them from another older employee (i.e., Martinez did not reach out
to the EEOC but the other way around). Id. ¶ 28.
The EEOC and its investigation are prominent in Martinez’s
original petition, to which the EEOC’s ultimate “determination letter” is
attached. See id. ¶¶ 21, 29, 34 (citing Ex. E). The Court disparages the
letter, but for no good reason (particularly at this stage). The Court says
that the letter formally names only the Center as “Respondent” and does
not make official “findings” as to the System or the Board. Ante at 16 n.9.
So? That is not why the determination letter matters. What is relevant
is that the letter provides a neutral, third-party summary of the events
leading to Martinez’s termination and supports her allegations. In its
letter, the EEOC recounted this: “During the scope of our investigation,
interviews were conducted with those individuals involved in the decision
to terminate [Martinez], and not one could provide any evidence
whatsoever that shows that [Martinez] was responsible for disclosing

9
confidential information as they claimed.” Pl.’s Original Pet. ¶ 21
(emphasis added) (quoting Ex. E).
Martinez uses the letter because it corroborates—indeed,
bolsters—her key allegation that she was fired for “no justifiable reason.”
At this stage of litigation, we must take her allegations as true. If the
letter eliminates leaking information as the reason for her firing, then it
becomes more likely that the real reason is what Martinez alleges: the
Board’s direction to thin the herd of its older members.
There is even more. The letter, for example, also refers to Dr.
Mitchell acting in his capacity as “Chancellor” of the System and sending
the email that describes the “Board of Regents” being concerned about
employee elderliness. Id., Ex. E. (I discuss this email in much greater
length in Part II.B.1.) And as Martinez alleges, she was “one of the oldest
employees” and “was the first to go,” id. ¶ 49, but she was not the only
one to go. The same EEOC determination documents at least one other
older employee who was fired around the same time as Martinez:
[O]n or about June 17, 2019, or five days after [Martinez]
was advised of her termination, the [Center] also
terminated an Executive Administrative Assistant (EAA)
for the Office of the President who was 62 years of age at the
time of her hire. That EAA was hired by [Martinez] and was
terminated on the same date she reported to work. That
EAA was also replaced by someone who is almost half her
age.

Id., Ex. E.6 The EEOC determination separately observes that Martinez’s
replacement was “substantially younger.” Id.

6 Atoral argument, Martinez’s counsel said that at least two older
employees were fired around the time that Martinez was, as shown in the record.

10
To be clear, Martinez does not need the EEOC letter to sufficiently
plead anything. But treating the letter as nothing exemplifies how the
Court construes Martinez’s original petition strictly against her instead
of liberally in her favor. Martinez’s allegations are sufficient on their own,
and the letter only bolsters what she says. True, her allegations may not
withstand merits scrutiny, which has not yet commenced. But as to
whether she has adequately alleged a claim against the Board and the
System, I regard this case as pretty easy. She has.

B

The Court does not fare as well as Martinez in discharging its
duty, which is to “liberally construe” Martinez’s pleading and take her
allegations as true, and to read her pleading in a way that reflects the
intent that its text makes manifest. The Court finds her allegations
insufficient, but I cannot see how. Martinez’s pleading adequately alleges
discrimination by the Board and the System—not just a presumptive
claim,7 but one that invokes their direct intent, too.
Assuming that the Board and the System are not her direct
employers, the Court’s obligation is to assess whether she has
successfully alleged that they were her indirect employers under Rennels.
That is, do her allegations permit the inference that, in the context of her
termination, the Board and the System exercised control over and
interfered with Martinez’s employment? Martinez alleges exactly that—

7 Martinez was 72 years old, a good employee, fired about a month after

the Board and the System communicated about the elderly age of certain
employees, and replaced with a younger employee. Cf. Garcia, 372 S.W.3d
at 642 (recognizing presumptive discrimination where the plaintiff is at least 40
years old, qualified for the job, terminated, and replaced by someone younger).

11
yet the Court answers in the negative.
Martinez alleges that the System, acting at the Board’s direction
and via the System’s chancellor, discharged Martinez (or orchestrated her
discharge) because of her age. Put differently, Martinez’s pleading gives
no hint that the Center—her direct employer—would have discharged
her without the Board’s and the System’s communications and their
concerns about the comparative elderliness of senior leadership.
The Court acknowledges that the Board and the System have the
statutory power and ability to control Martinez’s employment. Ante
at 11–12 (quoting and discussing Tex. Educ. Code §§ 109.001(a), (c),
109.002, 110.01–.02). Just as the defendant in Rennels “was permitted
by contract to influence the plaintiff’s employment status,” id. at 12
(citing Rennels, 994 S.W.2d at 147), the Court acknowledges here that,
under the Education Code, the Board (which acts for the System) has a
“general right to ‘direct[], manage[], and control ’ the Health Sciences
Center” where Martinez was employed, id. at 13 (alterations in original)
(emphasis added). The Court’s two reasons why the statutory control is
not enough under Rennels are mistaken.
First, the Court briefly casts doubt on the force of the Education
Code provisions because they are “unpleaded.” Id. at 11. Because the
statutes in the Education Code are unpleaded? No one disputes the
statutory power and control expressly vested in these entities. And in
liberally construing Martinez’s original petition, the Court can (if it really
thinks it is necessary) take judicial notice of these provisions. The Court’s
subtle dig at Martinez and her able counsel for not “pleading” these
statutes again shows how the Court strictly construes her original

12
petition against her. This basis for dismissal is more reminiscent of
sixteenth-century England than twenty-first-century Texas. See JDH
Pac., Inc. v. Precision-Hayes Int’l, Inc., 659 S.W.3d 449, 450–51 & n.2
(Tex. 2022) (Young, J., concurring in denial of petition for review)
(recounting how Sir Edward Coke won a case because his opponent’s
pleading mistakenly translated one word of a centuries-old statute).
Second, the Court says that the Education Code provisions provide
only a “general right of control.” Ante at 13. Indeed—the law gives the
Board and the System that control, which satisfies the first step of
Rennels. But the Court instead draws on two independent-contractor
cases, id., which the Board and the System do not cite in their briefing. I
have no quarrel with those cases. As the Court puts it, they stand for the
innocuous principle “that forbids imposing liability based solely on a
general right of control over the work of an independent contractor.” Id.
(emphasis added). The ability to control is necessary but not sufficient
under Rennels—and so it is necessary for Martinez to allege it, but it is
not all she must allege and it is not all she does allege.
It is necessary for her to allege it because, under Rennels—the case
everyone asks us to apply without modification—to be an “employer,” a
defendant must be someone in a “position of power and control” or “in a
position to exert some control” with respect to the plaintiff’s employment
status. 994 S.W.2d at 147. All Martinez must do for this first Rennels
step is to allege that the Board and the System are in such a position. She
has done so—and the Education Code provisions conclusively establish it
as a matter of law, too.
If the Court is saying that it is not enough to allege how a

13
defendant could affect employment status, I agree. So does Martinez. An
allegation that a defendant could interfere with her employment must be
linked with the allegation that the defendant did so. She can do this
either via direct allegations of improper age-based termination or via
indirect allegations that raise a presumption of such termination. See
supra note 4. Martinez does both here.
Directly, she alleges that the Board’s demand to lower the ages of
the leadership in the Center led to her firing, which was effected by
someone subject to the Board’s direct control—the System’s chancellor.
Indirectly, she alleges that she was fired and replaced with a younger
employee about a month after the undisputed email communication
involving the System, the Board, and concerns about the advanced age of
senior leadership. She need allege no more than this at the pleading stage
to bring the Board and the System within Rennels.8 I reiterate that
whether she can prove her claim is an entirely different matter, and I
express no view of how the case would come out once she is put to the test.
So how can the Court see it otherwise? Its opinion gives at least
two reasons. First, the Court contests the value of the email—which
Martinez attached to her original petition and which features
prominently in the record and the parties’ briefs—in which Dr. Mitchell

8 The court of appeals held that Martinez’s allegations were insufficient

to sue Texas Tech University as an indirect employer—precisely because of the
“absence of allegations describing how [the University] could, or did, exercise
control over the Center in regard to her termination.” 683 S.W.3d 111, 116 (Tex.
App.—Amarillo 2022). This illustrates my point: A failure to include allegations
of both steps under Rennels—first, that a defendant could affect employment,
and second, that it did so—is when a pleading would veer into insufficiency.
Even Martinez agrees that no such allegations were raised against the
University. But as to the Board and the System, there is a surfeit.

14
describes the Board’s age-related concerns. Second, the Court treats the
judgment below as an “expansive reading of Rennels,” ante at 13, which
leads it to foresee a host of problems that I find illusory. Neither reason
provides any basis to deem Martinez’s allegations insufficient.
1
The Court’s primary reason for regarding Martinez’s allegations
as jurisdictionally insufficient concerns its view of Dr. Mitchell’s email.
The Court contends that Martinez “expressly rests” her allegations of
the Board’s and the System’s discrimination on the email, and “[n]o
reasonable reading of the email supports an allegation that the Board
controlled access to and interfered with Martinez’s employment.” Ante
at 15–16. The Court should read the email liberally in Martinez’s favor,
not strictly against her—and it should recognize that the email is hardly
the only basis for Martinez’s allegations.
Martinez’s intent—discerned from the text of her live pleading—
is clearly to allege that the Board and the System independently
discriminated against her by terminating her, or by having her
terminated, because of her age. See Heckman, 369 S.W.3d at 150 (in
liberally construing a plaintiff’s pleadings, we “look to the plaintiff’s
intent”). She hardly “expressly rests” her entire case of discrimination on
the email alone. The email is simply a piece of circumstantial evidence—
perhaps among the few documents she had at this pre-discovery stage of
litigation—that is probative of the Board’s and the System’s roles in
terminating her. See Burks v. Watson, 48 Tex. 107, 115 (1877) (“An
exhibit to the petition, therefore, may be said to be made in aid of or in
elucidation of allegations . . . .”). Martinez no doubt included it because it

15
helps explain why she was fired. She alleges that there was no other valid
reason, and the email links the Board and the System to her termination
by documenting their concern about employee elderliness. She uses the
email to help explain why her termination was age-based and why the
Board and the System were involved.
True, the email does not compel this conclusion. It does not, by
itself, prove her allegation that the “Board of Regents asked Dr. Mitchell
to reduce the average age of senior leadership at [the Center]” (an
allegation that, ironically enough, the Court would apparently accept as
true if only Martinez had not included the email). But it is not Martinez’s
burden to prove anything without having the benefit of discovery. That
Martinez has the email, and reads it consistently with her theory, does
not increase her pleading standard. It is unlikely in any discrimination
case (indeed, in many other kinds, too) that the plaintiff would have a
“smoking gun” document directly revealing impropriety that could be
appended to an original petition. See Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (recognizing “that motives are
often more covert than overt, making direct evidence of forbidden animus
hard to come by”).
It would be a different story if the email contradicted Martinez’s
theory or was even inconsistent with it. See Freiberg v. Magale, 7 S.W.
684, 685–86 (Tex. 1888) (“Had it contradicted or been inconsistent with
[the allegations], the exhibit, and not the pleading, would control.”). If a
pleading attaches a legal instrument that forms the basis of the plaintiff’s
claims, the instrument itself controls over an allegation about what the
instrument says. For example, in a breach-of-contract case where the

16
plaintiff appends a written contract to a pleading and alleges that the
contract obligated the defendant to pay $100, a court would not credit the
allegation if the contract on its face obligates the defendant to pay $50.
Nothing like that exists here. The email is not the basis of her
claims, nor does it contradict her claims—it is collateral to and consistent
with them. Martinez alleges that there was no good reason to fire her,
and the email helps explain why she nonetheless was fired.
The Court, however, gives the email an especially rosy reading—
essentially the same one given by the Board and the System. According
to the Court, the email states “only that the Board was interested in
‘succession planning’—a best practice for any institution hoping to endure
beyond the short-term.” Ante at 16. The Court then liberally extols the
virtues of succession planning. Id. at 16 n.8 (quoting various human-
resources authorities praising the soundness of succession planning).
The Court notes that succession planning “does not require
terminating anyone.” Id. (emphasis added). True—but it could involve
that step.9 Like everything else, succession planning can be done
properly and lawfully or improperly and unlawfully. It would be
irresponsible not to plan for the future—but planning for the future by
firing older workers without cause under the guise of, or even because of,
“succession planning” is unlawful.
The Court’s acclaim for succession planning as a general matter is
surely sound, but it is far too early at this stage of litigation for the Court
to resolve what kind of succession planning was happening here. We may

9 Getting $1 million fast “does not require” robbing a bank—but it could

happen that way.

17
not—at least not yet—accept as true the Board’s and the System’s benign
“succession planning” theory and reject Martinez’s alternative and darker
“succession planning” theory. Her theory is that any “succession
planning” was, at best, pretextual. The standard of review compels us to
accept Martinez’s theory—but the Court accepts petitioners’ instead.
After all, even the Court acknowledges that “Dr. Mitchell’s
motivation” in firing Martinez may have been “ ‘to appease the Board of
Regents’ by lowering the average age of his senior advisors.” Id. at 17.
Martinez and at least one other employee were terminated about a month
after the “succession planning” email was circulated and then were
replaced with younger employees. If—and of course I emphasize that it
is a big “if” that will require proof once Martinez gets to that stage—Dr.
Mitchell (the System’s chancellor10) implemented the Board’s plan to fire
older workers without cause under the guise of, or even because of,
“succession planning” directives, then their conduct was unlawful under
the Labor Code.
Recall, also, that the email does not stand alone, but fits within
Martinez’s larger theory that she was fired due to her age, not for cause
(something that the EEOC corroborated), and that Dr. Mitchell gave
misleading reasons for her departure (such as telling Martinez’s

10 The Court questions whether we can attribute Dr. Mitchell’s conduct

to the System, given his “dual roles” as president of the Center and chancellor of
the System. Ante at 14. Surely at this stage and under our standard of review
we must. It is undisputed that Dr. Mitchell was the System’s chancellor when
Martinez was fired. She alleges that he acted in this capacity in orchestrating
her discharge. The email suggests he was acting as chancellor (at least partially)
because he references the System. Indeed, the EEOC determination letter
states that Dr. Mitchell sent the email as the “Chancellor.” These debates
should await the next step—perhaps an evidence-based plea to the jurisdiction.

18
colleagues that she left to care for an infirm husband). In this context,
Martinez argues, the email helps explain what would otherwise (if we
accept the truth of her allegations) be unexplainable. See also Garcia,
372 S.W.3d at 634 (“The prima facie case raises an inference of
discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of
impermissible factors.” (internal quotation marks omitted)). That is, if no
other reason for her termination holds up, it is reasonable to infer that
the email, while not a smoking gun, implicates the real motive: edging
out older employees.
* * *
The Court may prove correct that, in truth, the email was innocent
all along—that it never reflected more than ordinary business concerns.
Even so, it is too early to give petitioners the benefit of the doubt. When
assessing a non-evidentiary plea to the jurisdiction, I see no precedent in
our cases allowing a court to speculate about extra-record materials—
such as explaining away the email and then wiping away all the other
allegations.11 I cannot agree with the Court that Martinez has not alleged

11 I cannot help but think that the Court’s scrutiny of the email obscures

the role that evidence should play in withstanding a non-evidentiary plea to the
jurisdiction. The word “evidence” appears throughout the Court’s opinion. The
Court says we lack “subject-matter jurisdiction over the dispute absent some
evidence the [defendant] violated Chapter 21.” Ante at 7 (alteration in original)
(emphasis added) (internal quotation marks omitted); see also id. at 9–10, 12, 14
(discussing “evidence”).
This is wrong and the Court should repudiate it. Only later—in an
evidentiary plea to the jurisdiction, at summary judgment (which was the
posture in Rennels), and at trial—will Martinez be obligated to proffer “evidence”
establishing control and interference. But Martinez needs no “evidence” to

19
what she needed to—and indeed far more.
Agreeing that Martinez stated a claim in no way predicts how the
claim will fare once it is probed. It just means it is time to put Martinez
to the test—which is what she claims she wants. If her allegations turn
out to be fluff, then they will collapse like a house of cards. If limited
discovery provides no basis to tag the Board or the System, they will be
out. But today’s decision is so inconsistent with notice pleading that it
will affect far more than this single case.
2
Second, the Court worries that “[t]he court of appeals’ expansive
reading of Rennels” (the court of appeals did not expand Rennels) “would
essentially make every parent corporation liable under Chapter 21 for the
employment actions of a subsidiary or affiliated entity governed by the
parent.” Ante at 13.
I do not understand this corporate-liability concern at all.12 It may

withstand a non-evidentiary plea to the jurisdiction. The Court’s scrutiny of the
email will surely scare future plaintiffs from attaching exhibits to their
pleadings, not just in discrimination cases, but in any civil case.
12 In fact, the Court’s focus on “liability” misses the mark—unless the

Court is trying to change rather than apply Rennels. The Court continually
smuggles “liability” into this pleadings-standards case. The Court even asserts
that “[t]he key question in this case is whether Martinez alleges sufficient facts
to demonstrate that the TTU System and the Board can be liable to Martinez
as an ‘employer’ under Chapter 21.” Ante at 8 (emphasis added). The italicized
word, which recurs throughout the opinion, reflects an undue focus on the merits
at this most preliminary of stages. In any event, “[i]mmunity from liability does
not affect a court’s jurisdiction to hear a case.” Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638 (Tex. 1999) (emphasis added). Such immunity “is an
affirmative defense that cannot be raised by a plea to the jurisdiction.” State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009) (emphasis added). As the Court
observes, the System and the Board raised their non-employer status by way of

20
be true as an empirical matter that Rennels applies more often when the
non-direct-employer defendant is a parent corporation of the direct
employer (because who else would care about some other corporation’s
employees?). But Rennels is hardly confined to the corporate-family
context. Rennels itself did not involve a parent corporation. Under
Rennels, anyone—a parent corporation or someone else—who has the
requisite ability to affect employment and who uses that ability is an
“employer.” That principle, which just defines who is an “employer”
under the statute, is the whole point of Rennels. There is nothing new or
surprising in it.
So I wholly agree with the Court’s quotations about respecting
corporate formalities, but I find them irrelevant. I agree, for example,
that corporations are not “liable for each other’s obligations merely
because of centralized control, mutual purposes, and shared finances.”
Id. at 14 (emphasis added) (internal quotation marks omitted). But
Martinez does not try to hold the Board and the System liable “merely
because” of their authority over the Center. She claims that they directly
acted against her. Likewise, everyone agrees that “[t]here must be
something more than mere unity of financial interest, ownership and
control for a court to treat the subsidiary as the alter ego of the parent
and make the parent liable for the subsidiary’s tort.” Id. (first emphasis
added) (internal quotation marks omitted). Martinez alleges “something

an “affirmative defense.” Ante at 5.
I do not think that the Court intends to sub silentio overrule the
principles from Jones and Lueck stated above. What I think the Court’s “key
question” means is that if Martinez has not adequately alleged a claim, then she
cannot further pursue liability. I agree with the logic but not the conclusion,
because she has adequately alleged a claim.

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more”—she does not treat the Center as the alter ego of the Board or the
System. She seeks to hold them liable for their own acts, not merely some
“subsidiary’s tort.”
Affirming the judgment below, in other words, would leave the law
exactly as we found it. That decision creates no new litigation peril.
Someone who does not allege that a third party could and did interfere
with her employment will not benefit from Rennels even at the pleading
stage. Someone who does make such an allegation will lose any benefit
from Rennels if she cannot identify any evidence to support the claim
that a parent corporation or anyone else could and did achieve unlawful
employment discrimination.
Said differently, what are we to take from today’s decision and its
focus on anodyne principles of corporate liability? Does the Court mean
to suggest that a parent entity that has undoubted power to control a
subsidiary and is alleged to have exercised it should escape on the
pleadings? If so, then today’s decision is a massive change to our law that
could only reflect dislike of Rennels. If that dislike motivates today’s
decision, we should confront Rennels head on—in a case where someone
asks us to. The Board and the System only claim that Martinez’s
allegations do not satisfy Rennels. They do not ask us to demand more
than Rennels requires. Nobody here asks us to overrule or even modify
that precedent. No one has asked us (at least openly) to require more
than allegations when a defendant only challenges the sufficiency of the
allegations.

III

I end where I began—wondering what else Martinez is supposed

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to do when she repleads. The Court says she “falls just short of the mark,”
but the Court does not pinpoint what is missing. Ante at 19. The Court
instructs her to “allege facts regarding both the exercise of control and
interference with Martinez’s employment by each of the TTU System and
the Board.” Id. She has already done this, both by alleging petitioners’
direct control and interference and by alleging facts permitting a
presumption of that conduct. The Court provides no examples of the sort
of facts she would be able to plead in good faith on remand without having
the benefit of discovery.
Speaking of discovery, I find it important to emphasize that
Rennels and the other cases the Court cites arose in a more mature
posture with the benefit of discovery. Rennels itself, for example, was a
summary-judgment case where “evidence” obtained through discovery
was needed. The Court’s disposition today, however, does not guarantee
Martinez any discovery, even as it imposes a higher standard at this first
stage than Rennels did at the summary-judgment stage. The Court today
simply instructs Martinez to take another shot. But then the Board and
the System can file yet another pleadings-only challenge, which would
keep delaying this case’s resolution until the appellate process divines
whether her new allegations are sufficient. “[T]he practical result” of
sending back a case that is already so populated with allegations “well
might be to establish a merry-go-round of litigation upon the issue, which
could be used to defer indefinitely consideration of the merits.” United
States v. Nat’l City Lines, 334 U.S. 573, 591–92 (1948).13

13 Suppose, moreover, that her renewed allegations are again deemed

insufficient on their face—but that discovery against the Center (which cannot

23
It would be better to affirm the judgment below, which just means
that the Board and the System can file a different kind of plea to the
jurisdiction—one that challenges the existence of jurisdictional facts. If
they do so, they will instantly put Martinez to the test, where mere
allegations will no longer be sufficient. I recognize that the Board and
the System do not relish discovery. I agree that discovery is sometimes
abused. But jurisdictional discovery in particular can and should be
limited to nothing but the challenged jurisdictional facts. The trial court
need not and must not allow full-scale discovery:
Discovery that implicates only the merits is wholly improper
until it is clear that the court has authority to reach the
merits. . . .
....
. . . [I]f an adverse party . . . seeks to leverage
permissible jurisdictional discovery into clearly
impermissible merits discovery, the other side (in this case,
the State) may seek a protective order, resist a motion to
compel, or take similar steps. A trial court who issued an
order in good faith only to determine its own jurisdiction
would not permit that order to be abused. If it does, the
appellate courts can and should appropriately limit
discovery.
Tex. S. Univ. v. Young, 682 S.W.3d 886, 888, 890 (Tex. 2023) (Young, J.,

yet proceed because of this interlocutory appeal) eventually reveals that the
Board and the System were the central parties responsible for her discharge all
along. That result may seem unlikely, but if it were to happen, the statute of
limitations might well prevent her from pleading the Board and the System back
into the case, even though it would mean that her pleading was accurate from
the start. See Tex. Lab. Code § 21.256 (two-year limitations period); Levinson
Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622, 631 (Tex. 2023)
(agreeing “that the running of a limitations period is not tolled when a suit is
dismissed and refiled because a dismissal is equivalent to a suit never having
been filed” (internal quotation marks omitted)).

24
concurring in denial of petitions).
Thus, the trial court’s “broad discretion to allow ‘reasonable
opportunity for targeted discovery,’ ” Garcia, 372 S.W.3d at 643 (quoting
Miranda, 133 S.W.3d at 233), does not mean unlimited discovery.
Properly targeted discovery might reveal improper motives underlying
Martinez’s discharge, to which Martinez may not yet be privy. Or it might
confirm that the succession planning was wholly innocent and premised
on the idea that the Board and the System hoped that Martinez would
stay on the job forever. Maybe it would reveal nothing at all, in which
case the Board and the System could more properly seek dismissal.
Any other options that avoid targeted discovery exceed the scope
of this appeal. The legislature could, of course, change the law. It could
abrogate Rennels, which was, after all, only a statutory-construction case.
Or it could expand existing exceptions to the anti-discrimination laws.
For example, the Labor Code provides no claim for plaintiffs who are
“executive or high policy-making position” employees, “at least 65 years
of age,” and subjected to “compulsory retirement.” See Tex. Lab. Code
§ 21.103. (The Board and the System have not invoked this statute, so I
assume without deciding that it does not apply.) The legislature could
amend this law or create a new one that enables high-ranking officials
like Dr. Mitchell to terminate their chiefs of staff—someone in whom
personal confidence is essential—without having to defend against claims
of age discrimination.
It is also possible that, in a case where someone asks, this Court
could reconsider Rennels or examine whether the law in fact reaches
high-level employees like Martinez. Such a rule, of course, would end a

25
case like this one not only against the Board and the System but also
the Center. At this moment, there is no dispute that the law covers
Martinez—and I cannot see a legitimate dispute about whether she has
sufficiently alleged the facts that undergird her claim.

* * *
My concern is for other cases, not just this one, because I think
today’s decision destabilizes the concept of notice pleading. “Our notice-
pleading rules require pleadings to not only give notice of the claim and
the relief sought but also of the essential factual allegations.” Kinder
Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835, 849 (Tex. 2021)
(internal quotation marks omitted). Saying she is “just short of the mark”
does not tell her or anyone else what the new pleading standard in Texas
is. I believe, however, that Martinez already has pleaded the essential
factual allegations necessary to withstand a pleadings-only jurisdictional
challenge. Accordingly, I would affirm the court of appeals’ judgment so
that this case may proceed and come to a resolution, whatever that
resolution may be. Because the Court does not, I respectfully dissent.

Evan A. Young
Justice

OPINION FILED: June 14, 2024

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