Melissa Brown v. the State of Texas and Texas Department of Health and Human Services

NO. 12-23-00204-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MELISSA BROWN, § APPEAL FROM THE 241ST
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS AND TEXAS
DEPARTMENT OF HEALTH AND § SMITH COUNTY, TEXAS
HUMAN SERVICES,
APPELLEES
MEMORANDUM OPINION

Melissa Brown appeals the trial court’s judgment granting the plea to the jurisdiction filed
by Appellees, The State of Texas (the State) and Texas Health and Human Services Commission
(HHSC), 1 and dismissing her claims with prejudice. In her sole issue, Brown contends the trial
court erred by granting the plea to the jurisdiction. We affirm.

BACKGROUND

Brown is an African American female and a former employee of HHSC. 2 Brown initially
worked for HHSC from 1987 until she voluntarily resigned in 1996. Brown filed suit against
HHSC in 1999 “after repeatedly attempting to reapply for re-employment . . . for her previous
positions or positions for which she was qualified and [being] denied the opportunity to participate
in the interview process.” The parties reached a mediated settlement agreement (MSA), and HHSC

Appellees assert that Brown’s petition misnamed Texas Health and Human Services Commission as “Texas
1

Department of Health and Human Services.” We will refer to said agency as “HHSC.”
2
Brown was employed with HHSC when she filed suit, but the record indicates that she subsequently retired.
ultimately rehired Brown in 2000.
In January 2020, Brown filed a charge with the Texas Workforce Commission Civil Rights
Division, in which she alleged that after filing her complaint of discrimination in approximately
2000, she was “subjected to retaliation” because her leave requests were not approved, she was
denied promotions and merit increases, and she was “subjected to different terms and conditions
of employment.” On April 27, 2020, Brown sued the State and HHSC, asserting claims for (1)
retaliation and racial discrimination in violation of the Texas Commission on Human Rights Act
(TCHRA) and (2) mishandling of her requests to use paid leave and her applications for other jobs
at HHSC pursuant to the Texas Tort Claims Act (TTCA). Specifically, Brown alleged that in
2019, although she “consistently met or exceeded her job performance requirements[,]” she was
twice denied the opportunity to interview for positions within HHSC for which she submitted
applications. Brown also contended that although she was entitled to paid leave and properly
requested to use such leave, her supervisor “repeatedly denied” her requests while granting leave
to other employees or required her to follow procedures for requesting leave that “other employees
were not required to satisfy.” Brown pleaded that (1) an unidentified employee who is not African
American was granted leave on the first Monday of each month, and (2) although other
unidentified employees were permitted to use leave during the Christmas holidays in 2017, 2018,
and 2019, Brown’s requests to use paid leave were denied in each of those years. Moreover,
Brown contended that since her reinstatement, she did not receive merit-based pay increases “that
she would have otherwise received but for her complaint in 1999.”
With respect to her TCHRA claim, Brown asserted that HHSC (1) refused to comply with
the terms of the MSA, (2) refused to grant her paid leave in retaliation for her 1999 lawsuit, (3)
refused to grant her leave pursuant to HHSC’s policies, (4) refused to grant Brown interviews for
other positions with HHSC, (5) refused to approve Brown for advancement into other positions
with HHSC, (6) refused to grant her a performance bonus, (7) required her to work in an area that
harmed her physical and mental health, (8) required her to engage in “improper ‘cross-over’ job
functions between separate government entities, (9) required her to work in facilities in violation
of emergency Covid-19 orders, and (10) required her to work “in facilities in violation” of HHSC’s
Covid-19 policies. With respect to her TTCA claim, Brown contended that HHSC negligently
handled her applications for leave and applications for employment opportunities. Brown

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maintained that her requests to use paid leave and her employment applications constitute “tangible
personal property,” the negligent handling of which is actionable under the TTCA.
Appellees filed a plea to the jurisdiction, in which they argued that the trial court lacks
subject matter jurisdiction because, among other things, (1) Brown’s negligence claim does not
fall within the TTCA’s limited waiver of immunity, (2) HHSC is immune from Brown’s claim for
breach of the MSA, (3) Brown failed to state a prima facie claim for retaliation, and (4) the State
is not Brown’s employer pursuant to the TCHRA. Brown filed a response, and the trial court
ultimately granted Appellees’ plea to the jurisdiction. 3 This appeal followed.

STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s ruling on a plea to the jurisdiction using a de novo standard of
review. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We
liberally construe the pleadings in the plaintiff’s favor and take all factual assertions as true.
Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). When a governmental entity
asserts immunity from suit, the plaintiff must affirmatively demonstrate the trial court’s
jurisdiction by alleging a valid waiver of immunity. Ryder Integrated Logistics, Inc. v. Fayette
Cty., 453 S.W.3d 922, 927 (Tex. 2015). In determining whether a plaintiff’s claims are barred by
immunity, we look to the substance of the claims alleged because a plaintiff’s artful pleading
cannot circumvent governmental immunity. Univ. of Tex. M.D. Anderson Cancer Ctr. v.
McKenzie, 578 S.W.3d 506, 513 (Tex. 2019).
A plea to the jurisdiction is a dilatory plea intended to defeat an action without regard to
the merits of the asserted claims; that is, a plea to the jurisdiction typically challenges whether the
plaintiff alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); City of San Antonio v. Vasquez, 340
S.W.3d 844, 847(Tex. App.—San Antonio 2011, no pet.). However, 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). Therefore, a court deciding a plea to the
jurisdiction “may consider evidence and must do so when necessary to resolve the jurisdictional
issues raised[,]” even if such evidence implicates both the trial court’s subject matter jurisdiction

3
In their plea to the jurisdiction, Appellees also alleged that Brown failed to timely file suit; however, on
appeal, Appellees concede that Brown timely filed suit.

3
and the merits of the case. Blue, 34 S.W.3d at 555; see Garcia, 372 S.W.3d at 635. In suits against
governmental employers, “the prima facie case implicates both the merits of the claim and the
court’s jurisdiction because of the doctrine of sovereign immunity.” Garcia, 372 S.W.3d at 635-
36.
Under Texas law, sovereign immunity deprives a trial court of subject matter jurisdiction
over lawsuits against state agencies unless the Legislature waived such immunity. Miranda, 133
S.W.3d at 224. The TCHRA provides a limited waiver of sovereign immunity for claims of
discrimination and retaliation, but the waiver extends only to suits in which “the plaintiff actually
alleges a violation of the TCHRA by pleading facts that state a claim thereunder.” Garcia, 372
S.W.3d at 636; see Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 504 (Tex. 2012). Absent
a pleading that sets forth a prima facie case, sovereign immunity is not waived. Garcia, 372
S.W.3d at 637. The TTCA also contains a limited waiver of immunity. Alexander v. Walker, 435
S.W.3d 789, 790 (Tex. 2014). The TTCA provides that a governmental unit is liable for “personal
injury and death so caused by a condition or use of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant according to Texas
law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2019).
Because direct evidence of retaliation is rare, courts permit retaliation claims to proceed
based on indirect or circumstantial evidence. Rose v. Houston Indep. Sch. Dist., No. 14-16-
00687-CV, 2017 WL 4697889, at *4 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.)
(mem. op.). Therefore, if a plaintiff meets his initial burden of establishing a prima facie case,
Texas courts apply the burden shifting mechanism set forth by the United States Supreme Court
in McDonnell Douglas. Garcia, 372 S.W.3d at 634 (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d 668 (1973)); see Rose, 2017 WL
4697889, at *4. A 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.’” Garcia, 372 S.W.3d at 634 (quoting Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577, 98 S. Ct. 2943, 2949-50, 57 L. Ed. 2d 957 (1978)).
Analysis

In her appellate brief, Brown challenges the granting of the plea to the jurisdiction only as
to her claims for (1) retaliation under the TCHRA and (2) negligence under the TTCA in handling
her applications for advancement into higher-paying positions that became available within

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[HHSC]” and her requests to use paid leave. Additionally, Brown’s brief does not mention or
provide authorities supporting her claim regarding allegedly being required to work in areas that
harmed her health or violated Covid-19 emergency orders. Because Brown’s brief does not
address or provide supporting authorities regarding her claims of racial discrimination, alleged
violations of Covid-19 emergency orders, or requirements that she work in harmful areas, we
conclude that she waived appellate review as to those claims. See TEX. R. APP. P. 33.1(a), 38.1(i).
We now turn to Brown’s TTCA claim against HHSC for allegedly negligently handling
her job applications and requests to use paid time off. As mentioned above, Brown asserts that the
TTCA waived sovereign immunity as to her claims pertaining to alleged mishandling of her job
applications and requests to use paid time off because HHSC’s action or inaction regarding her
applications and requests constituted a “use” of tangible personal property under the TTCA.
Brown argues that her applications and requests, and not merely the information contained therein,
constituted “tangible personal property” under Section 101.021 of the TTCA, and she contends
the mishandling of her applications and requests led to her injury. We disagree.
For purposes of the TTCA, “tangible personal property refers to something that has a
corporeal, concrete, and palpable existence.” Univ. of Tex. Med. Branch at Galveston v. York,
871 S.W.2d 175, 178 (Tex. 1994). “Allegations of mere non-use of property cannot support a
‘use’ claim under the [TTCA].” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex.
2016). Additionally, “mere involvement of tangible personal property in an injury will not, in and
of itself, waive liability.” Tex. Tech Univ. Health Sci. Ctr. v. Jackson, 354 S.W.3d 879, 884 (Tex.
App.—El Paso 2011, no pet.). The tangible personal property must do more than merely furnish
the condition that makes the injury possible; rather, “[a] plaintiff must show that the tangible
personal property was the instrumentality of harm.” Id. “The Texas Supreme Court distinguishes
between tangible property that is itself the instrument of harm, and tangible property that merely
conveys information in a written form.” Univ. of Tex. Health Sci. Ctr. at Houston v. Dickerson,
No. 14-13-00232-CV, 2014 WL 708521, at *4 (Tex. App.—Houston [14th Dist.] Feb. 20, 2014,
no pet.) (mem. op.) (citing Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179
(Tex. 1994)). In York, the Texas Supreme Court concluded that although paper can be touched,
handled, and seen, information is intangible, and intangible medical information recorded on paper
or by a medical device does not constitute tangible personal property. York, 871 S.W.2d at 179;
see Dickerson, 2014 WL 708521, at *5.

5
In support of her argument regarding the TTCA’s limited waiver of immunity, Brown cites
several cases. See Tex. Dep’t of Mental Health and Mental Retardation v. Petty, 848 S.W.2d
680, 685 (Tex. 1992) (finding immunity waived when incorrect diagnosis based upon information
in medical records led to plaintiff’s confinement in mental institutions); Salcedo v. El Paso Hosp.
Dist., 659 S.W.2d 30, 32-33 (Tex. 1983) (concluding that immunity was waived in wrongful death
action because hospital’s misreading of graphs and charts produced by electrocardiographic
equipment constituted use of tangible property); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298,
300 (Tex. 1976) (holding immunity was waived when football player sued state university for
personal injuries because university’s furnishing of defective equipment constituted use of tangible
property). Because Petty, Salcedo, and Lowe were decided before York, their precedential value
is limited. See York, 871 S.W.2d at 176-77 (noting that plurality opinion in Petty “has very limited
precedential value and would control the result only in identical cases.”); Dickerson, 2014 WL
708521, at *5 (determining that holding in Salcedo “is now limited to its facts.”); Spindletop
MHMR Ctr. v. Beauchamp, 130 S.W.3d 368, 371 (Tex. App.—Beaumont 2004, pet. denied)
(quoting Kerrville State Hosp. v. Clark, 923 S.W.2d 585, 585 (Tex. 1996)) (noting that Texas
Supreme Court determined that precedential value of Lowe is limited to claims in which plaintiff
alleges state actor provided property that lacks integral safety component and lack of integral
component led to plaintiff’s injuries).
The gravamen of Brown’s negligence claim is the alleged mishandling of her job
applications and requests to use paid leave. By their nature, job applications and requests to use
paid leave consist of intangible information, such as the applicant’s name and contact information,
experience, qualifications, the position sought, the dates for which leave is requested, and the type
of leave the employee wishes to use. Regardless of whether job applications and requests to use
paid leave are completed electronically or on paper, we conclude that they do not constitute
“tangible property” under Section 101.021(2) of the TTCA. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(2). Moreover, Brown does not contend that the applications or requests
constituted the instrumentality that caused her alleged injury; rather, she complains of HHSC’s
failure to act or erroneous action upon her applications and requests, and we conclude that such
claims do not fall within the limited waiver of immunity provided in Section 101.021(2) of the
TTCA. See McKenzie, 578 S.W.3d at 513; Sampson, 500 S.W.3d at 389; York, 871 S.W.2d at

6
179; Dickerson, 2014 WL 708521, at *4-5; Jackson, 354 S.W.3d at 884; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 101.021(2).
We now turn to Brown’s claim for retaliation under the TCHRA. As discussed above, the
TCHRA’s limited waiver of sovereign immunity extends only to suits in which the plaintiff
actually alleged a violation of the TCHRA by pleading facts that state a claim thereunder, and
absent a pleading that sets forth a prima facie case, sovereign immunity is not waived. Garcia,
372 S.W.3d at 636-37; see also Chatha, 381 S.W.3d at 504. Therefore, we must determine
whether Brown stated a prima facie case for her claim of retaliation.
The TCHRA prohibits employers from retaliating or discriminating against employees for
engaging in protected activities, including opposing a discriminatory practice, making or filing a
charge, filing a complaint, or testifying, assisting, or participating “in any manner in an
investigation, proceeding, or hearing.” TEX. LAB. CODE ANN. § 21.055 (West 2021). In retaliation
cases brought under the TCHRA, Texas jurisprudence parallels federal jurisprudence construing
and applying equivalent federal statutes, such as Title VII. Tex. Dep’t of Transp. v. Lara, 625
S.W.3d 46, 58 (Tex. 2021). To establish a prima facie case of retaliation under the TCHRA, a
plaintiff must show that (1) she engaged in a protected activity, (2) she experienced a material
adverse employment action, and (3) a causal connection exists between her protected activity and
the adverse action. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 782 (Tex. 2018);
Donaldson v. Tex. Dep’t of Aging and Disability Servs., 495 S.W.3d 421, 441 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). An employment action is materially adverse if it might
dissuade a reasonable worker from making or supporting a charge of discrimination. Clark, 544
S.W.3d at 788. However, the TCHRA addresses only ultimate employment decisions. Anderson
v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Adverse ultimate employment actions generally involve hiring, granting leave, discharging,
promoting, and compensating employees. City of Passadena v. Poulos, No. 01-22-00676-CV,
2023 WL 7134974, at *10 (Tex. App.—Houston [1st Dist.] Oct. 31, 2023, no pet.) (mem. op.)
(citing Anderson, 458 S.W.3d at 644). To state a prima facie case, a plaintiff must show a minimal
causal link between the protected activity and the adverse action, and temporal proximity between
the activity and the adverse action may state a prima facie case as to causation. Clark, 544 S.W.3d
at 789-90.

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Brown does not assert that Appellees failed to allow her to earn and accrue paid time off
in the same manner as other employees; rather, she complains of the denial of her request to use
such time. Although the granting of paid time off is an employment action that may constitute an
adverse employment action because it is part of an employee’s compensation, an employer’s
refusal of an employee’s request to use such accrued paid leave does not affect an employee’s
compensation and is not an adverse employment action. Poulos, 2023 WL 7134974, at *11;
Craven v. Gonzalez, No. Civ. A 4:05-CV-00709, 2006 WL 133477, at *8 (S.D. Tex. Jan. 17, 2006)
(mem. op.). Therefore, we conclude that Brown failed to establish a prima facie case as to those
retaliation claims.
We now turn to Brown’s retaliation claims that concern HHSC’s alleged failure to consider
her for advancement, alleged denial of merit increases, and alleged failure to comply with the
MSA. Assuming without deciding that HHSC took adverse employment action against Brown by
failing to consider her for other positions for which she applied, failing to provide merit increases,
and failing to comply with the MSA, to state a prima facie case for retaliation as to these claims,
Brown was required to offer evidence of a causal connection between her protected activity and
the adverse action. See Clark, 544 S.W.3d at 789-91, Poulos, 2023 WL 7134974, at *10; Rose,
2017 WL 4697889, at *7. Circumstantial evidence sufficient to establish a causal link between a
protected activity and an adverse employment decision may include (1) the employer’s failure to
follow its usual policies and procedures in carrying out the challenged employment actions, (2)
discriminatory treatment compared to similarly situated employees, (3) knowledge of the
discrimination charge by those making the adverse employment decision, (4) evidence that the
stated reason for the adverse employment decision was false, and (5) temporal proximity between
the employee’s conduct and the adverse employment action. Crutcher v. Dallas Indep. Sch. Dist.,
410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.). “Temporal proximity is relevant to
causation when it is ‘very close.’” Clark, 544 S.W.3d at 790 (citing Strong v. Univ. Healthcare
Sys., L.L.C., 483 F.3d 802, 808 (5th Cir. 2007)).
Brown provided no evidence that HHSC failed to follow its usual policies and procedures
or failed to specifically identify similarly situated employees. See Crutcher, 410 S.W.3d at 494.
Additionally, Brown does not identify the decisionmakers regarding her job applications and merit
increases, and the record contains no evidence that the decisionmakers regarding merit increases
or her 2019 job applications were aware of her protected activity in 1999. See Rose, 2017 WL

8
4697889, at *7. We conclude that the approximately twenty-year time span between Brown’s
1999 protected activity and HHSC’s failure to consider Brown’s 2019 applications is too great to
establish a causal connection. See Clark, 544 S.W.3d 790 (concluding that eight-month gap
between filing of charge with EEOC and employer’s termination recommendation “is so long as
to be of little, if any, probative value”); Rose, 2017 WL 4697889, at *7 (concluding that timespan
between protected activity in 2010 and employer’s failure to hire plaintiff in 2013 “is too long to
establish that there was a causal connection.”). We further conclude that the lack of a causal link
between Brown’s 1999 protected activity and HHSC’s failure to consider her for advancement or
merit increases is fatal to Brown’s prima facie case, and she is not entitled to a presumption of
retaliation. See Rose, 2017 WL 4697889, at *7. As was the case in Rose, Brown’s argument
consists of her subjective opinion, and her belief or opinion regarding the motivation for the alleged
adverse employment action does not suffice. See id. at *8. Moreover, Brown cites no authorities
supporting her argument that an alleged breach of the MSA constitutes an adverse employment
action. See TEX. R. APP.P. 38.1 (i). For all these reasons, we conclude that Brown failed to meet
her burden of establishing a prima facie case of retaliation, and the trial court therefore lacked
subject matter jurisdiction over her retaliation claim. See Garcia, 372 S.W.3d at 636; Rose, 2017
WL 4697889, at *7-8.
Lastly, we note that the TCHRA defines a governmental “employer” as “a county,
municipality, state agency, or state instrumentality[.]” TEX. LAB. CODE ANN. § 21.002(8)(D) (West
2021). The State itself does not fit the definition of “employer” under the TCHRA. See id. In
addition, as set forth above, the TTCA provides that a “governmental unit” is liable for “personal
injury and death so caused by a condition or use of tangible personal or real property if the
governmental unit would were it a private person, be liable to the claimant according to Texas
law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). Having already concluded that Brown’s
negligence claim against HHSC does not fall within the limited waiver of sovereign immunity
under Section 101.021(2), for the same reasons discussed in detail above, we likewise conclude
that Brown’s TTCA claim against the State does not fall within the TTCA’s limited waiver. See
id. We therefore conclude that the trial court properly granted the plea to the jurisdiction as to the
State of Texas.
For all the above reasons, the trial court properly granted the plea to the jurisdiction.
Accordingly, we overrule issue one.

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DISPOSITION
Having overruled Brown’s sole issue, we affirm the trial court’s judgment granting
Appellees’ plea to the jurisdiction and dismissing Brown’s claims with prejudice.

GREG NEELEY
Justice

Opinion delivered May 8, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 8, 2024

NO. 12-23-00204-CV

MELISSA BROWN,
Appellant
V.
THE STATE OF TEXAS AND TEXAS DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 20-0893-C)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, Melissa Brown, for which execution may issue, and that this decision be
certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.