Court of Appeals of Texas, Houston (14th Dist.).
Mercedes HIRSCH, Appellant
v.
CITY OF HOUSTON, TX, Appellee
NO. 14-24-00536-CV
|
Opinion filed December 16, 2025
On Appeal from the 215th District Court, Harris County, Texas, Trial Court Cause No. 2023-83239
Attorneys & Firms
Susan Hutchison, Fort Worth, S. Rafe Foreman, Grapevine, for Appellant.
Monica Nunez-Garza, Donald Hightower, for Appellee.
Panel consists of Justices Wise, Bridges, and Antú.
OPINION
Ken Wise, Justice
*1 Appellant Mercedes Hirsch challenges the trial court’s grant of appellee City of Houston’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing interlocutory appeal from order granting or denying plea to the jurisdiction by governmental entity). In three issues, Hirsch contends that the trial court erred in granting the City’s plea to the jurisdiction because (1) a police cadet qualifies as a first responder for purposes of the express waiver of governmental immunity for a workers’ compensation retaliation claim; (2) she timely filed her section 21.055 retaliation claim; and (3) an applicant qualifies as an employee for purposes of section 21.055 liability. We reverse and remand.
Background
In December 2021, Hirsch entered the Houston Police Academy as a cadet. Officially classified as “police trainees,” cadets are employees of the Houston Police Department (HPD).1 Shortly thereafter, Hirsch suffered an injury during a physical agility test. Hirsch contends that after filing a workers’ compensation claim, a “campaign of false accusations and harassment” began. Hirsch filed an Equal Employment Opportunity Commission (EEOC) Charge of Discrimination in July 2023, alleging that after her injury, a police sergeant accused her of a sexual relationship with a lieutenant; the lieutenant filed a complaint with Internal Affairs accusing Hirsch of stalking; and the City retaliated against her by writing her up on several occasions. Hirsch also alleged that once she was released to return to work, the City informed her that she was permanently denied from employment or from reapplying with the police department. Lastly, Hirsch’s charge asserted that she believed she was discriminated against on the basis of sex and retaliated against in violation of Title VII of the Civil Rights Act.
Hirsch obtained a right to sue letter and sued the City in December 2023. The City filed an answer and a plea to the jurisdiction, asserting governmental immunity from suit. Though the trial court initially granted the City’s plea, it set aside its order after Hirsch filed an amended complaint and response to the City’s plea. In her amended complaint, Hirsch alleged that the City harassed and retaliated against her for filing a workers’ compensation claim in violation of section 451.001 of the Texas Labor Code. See Tex. Lab. Code § 451.001 (prohibiting person from discharging or discriminating against employee for filing workers’ compensation claim in good faith). Hirsch also asserted a claim for retaliation under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code § 21.055.
The City then filed an amended plea to the jurisdiction. As to Hirsch’s chapter 451 claims, the City argued that it had governmental immunity from workers’ compensation retaliation claims because immunity was only waived as to claims brought by first responders, and as a police academy trainee, Hirsch was not a first responder. The City also argued that (1) Hirsch failed to exhaust administrative remedies with respect to any sexual harassment claim; (2) any alleged discrimination or retaliation claim based on conduct occurring prior to January 13, 2023, was time barred; and (3) Hirsch lacked standing to complain of any alleged wrongful act occurring after she voluntarily resigned.
*2 In her response to the amended plea, Hirsch argued that police cadets are part of the class of individuals the Legislature intended to protect by enacting the limited waiver of governmental immunity from workers’ compensation retaliation claims for first responders. In support of her argument, Hirsch noted that cadets receive training in responding to emergencies and participate in “ride alongs” with officers, including rapidly responding to emergencies. She also pointed out that police officers continue to be classified as “trainees” for a year after graduating from the police academy. Hirsch observed that the job description produced by the City stated that all of a police trainee’s duties and responsibilities may not be included in the job description. She supported her response with her own affidavit and a news article noting that a police officer and a cadet were involved in a crash while “responding to a call with lights and sirens activated.”
Concerning her TCHRA claim, Hirsch argued that her Charge of Discrimination listed March 1, 2023, as the latest date of discrimination or retaliation, and thus, her charge was timely. She also clarified that she was “asserting a claim for retaliation for reporting/opposing discrimination and harassment,” not a claim for discrimination or harassment. Hirsch also contended that the TCHRA protected applicants as well as employees and that under the statute, the failure to hire is actionable.
The trial court granted the City’s plea and dismissed Hirsch’s claims with prejudice without stating the basis for its decision. This appeal followed.
Workers’ Compensation Retaliation Claim
In her first issue, Hirsch contends that the trial court erred in granting the City’s plea to the jurisdiction as to her workers’ compensation retaliation claim because there is no governmental immunity from retaliation claims brought by a first responder. The City maintains that as a police academy cadet, Hirsch does not fit the definition of first responder.
A. Plea to the Jurisdiction
Generally, political subdivisions of the state like the City are entitled to governmental immunity from suit unless the Legislature has provided for a waiver of immunity. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022); see also Tex. Civ. Prac. & Rem. Code § 101.001(3)(B). Governmental immunity from suit deprives a trial court of subject matter jurisdiction and is thus properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a plea challenging the trial court’s jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).
If, as here, the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228. Applying this standard, we credit evidence favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor. See id. The defendant must assert the absence of subject matter jurisdiction and present conclusive proof that the trial court lacks subject matter jurisdiction. Id. If the defendant satisfies this burden, the plaintiff must present evidence raising a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.
B. Anti-Retaliation Provision and Waiver of Immunity
The Texas Workers’ Compensation Act (the Act) provides a limited waiver of immunity from worker’s compensation retaliation claims, allowing “first responders” to seek relief under chapter 451. See Ellis v. Dall. Area Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711, at *1–2 (Tex. App.—Dallas Mar. 13, 2019, pet. denied) (mem. op.) (discussing “on-again, off-again relationship” between governmental immunity doctrine and anti-retaliation provision of the Act); see also Tex. Lab. Code § 451.0025 (establishing waiver). In turn, section 421.095 of the Texas Government Code defines first responder as follows:
*3 (1) “First responder” means a public safety employee or volunteer whose duties include responding rapidly to an emergency. The term includes:
(A) a peace officer whose duties include rapidly responding to an emergency;
(B) fire protection personnel under Section 419.021;
(C) a volunteer firefighter …
(D) an individual certified as emergency medical services personnel by the Department of State Health Services;
(E) an emergency response operator or emergency services dispatcher who provides communication support services for an agency by responding to requests for assistance in emergencies; and
(F) other emergency response personnel employed by an agency.
Tex. Gov’t Code § 421.095. We have not located, and the parties have not directed us to, any cases analyzing the meaning of “first responder” as applied to the anti-retaliation provision of the Act.2
C. Analysis
The City argues that Hirsch failed to demonstrate a waiver of the City’s immunity. Although the City acknowledges the waiver for first responders, it argues that because Hirsch did not hold a peace officer license, she did not meet the statutory definition. See id. § 421.095(1)(A) (stating that “first responder” includes “a peace officer whose duties include responding rapidly to an emergency”).
The City construes the definition of first responder too narrowly. Looking at the text of section 421.095, it first provides a more general definition of first responder in section 421.095(1) and then gives a list of examples in subparts (A) through (F). Specifically, section 421.095(1) states that the term “includes” various examples. Id. § 421.095(1). Pursuant to the Government Code, “includes” is a “term[ ] of enlargement and not of limitation or exclusive enumeration, and use of the term does not create a presumption that components not expressed are excluded.” Id. § 311.005(13); see also Vision 20/20, Ltd. v. Cameron Builders, Inc., 525 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (stating that in Texas statutes, “includes” and “including” are terms of enlargement, not limitation). Even if Hirsch is not a peace officer, or any of the other enumerated examples, she may still fit the definition of a first responder if she is otherwise a “public safety employee or volunteer whose duties include responding rapidly to an emergency.” See Tex. Gov’t Code § 421.095(1).
*4 In her amended complaint, Hirsch alleged that she “was working as a first responder for a government employer” when she suffered an on-the-job injury and specifically asserted a claim for “workers compensation retaliation against [the City] pursuant to Texas Labor Code § 451.” The City responded by filing its amended plea, pointing to the job description for a “police trainee” and noting the absence of any duty or responsibility to respond to an emergency. The City argued that as such, Hirsch did not meet the statutory definition of a first responder.
Because the City’s plea challenged the existence of jurisdictional facts and attached evidence attempting to conclusively negate the trial court’s jurisdiction, Hirsch needed to respond with enough evidence to raise a genuine issue of material fact to survive the City’s plea. See City of Austin v. Powell, 704 S.W.3d 437, 447–48 (Tex. 2024) (outlining parties’ evidentiary burdens depending on type of plea to the jurisdiction in governmental immunity case). Hirsch’s response to the City’s amended plea relied on her own affidavit, which stated in relevant part:
2. I am the Plaintiff in the above referenced matter. I was hired by the City of Houston to train as a police officer. The City trained me to be a first responder, including weapons training to become certified to carry and use a handgun as a police officer. It also included substantial training regarding responding to emergencies as well as simulating emergencies, high speed chases, shooting situations and encountering emergencies in the field. Additionally, licensed Houston police officers continue to be labeled “trainees” 6 months after graduating from the academy while they undergo probationary field officer training. Trainees in both the academy and probationary trainees remain under the supervision of the academy for a total of one year.
3. The City’s “Exhibit B” omits the cadet field training requirement, which puts cadets in the field with police officers. The cadets are required to assist in emergencies if called upon or needed. It should be noted that under “Miscellaneous” on the Exhibit, it states that “[a]ll duties and responsibilities may not be included in the above description.”
4. The newspaper article attached to the Response to the Amended Plea to the Jurisdiction as Exhibit 7 is a true and correct copy of an article from [KHOU] 11 news at Khou.com that I read and retrieved regarding a crash involving a Houston police officer with a cadet as passenger involved in a car crash. It states that a Houston police officer and cadet were responding to an emergency, engaging lights and siren, when the crash occurred. Additionally, the certified crash report that is Exhibit 8 supports this, listing the cadet on the crash report as a passenger. This supports my testimony that cadets are “first responders.”
Hirsch’s affidavit and the accompanying news article are some evidence that a cadet’s duties include responding rapidly to an emergency for purposes of the statutory definition of “first responder.” See Tex. Gov’t Code § 421.095(1). Hirsch avers that cadets are required to assist in emergencies if called upon or needed, and the City’s own job description notes that the “police trainee” position may have duties and responsibilities outside of those expressly identified in the job description. Further, the news article produced by Hirsch also demonstrates that cadets can and do accompany officers in responding to service calls. Taking all evidence favorable to Hirsch as true, as we must, and indulging every reasonable inference in her favor, we conclude that Hirsch raised a fact question as to the trial court’s jurisdiction. See Powell, 704 S.W.3d at 448 (citing City of San Antonio v. Maspero, 640 S.W.3d 523, 528–29 (Tex. 2022); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)). Thus, the trial court should not have granted the City’s plea to the jurisdiction as to her workers’ compensation retaliation claim.
*5 We sustain her first issue.
TCHRA Retaliation Claim
Hirsch also alleged a TCHRA retaliation claim against the City. The TCHRA waives governmental immunity, but only when the plaintiff states a claim for conduct that actually violates the statute. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The TCHRA prohibits an employer from retaliating against an individual who engages in one or more of the following protected activities: (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing. Tex. Lab. Code § 21.055. Hirsch’s live pleading alleged that the City retaliated against her for “reporting and/or opposing harassment/discrimination based on gender.”
A. Timeliness of Charge
In her second issue, Hirsch argues that the trial court erred in granting the City’s plea to the jurisdiction as to her TCHRA claim because she timely filed her underlying charge of discrimination. In its plea to the jurisdiction, the City argued that the trial court lacked jurisdiction over Hirsch’s TCHRA claims because “any alleged claim for discrimination and retaliation based on alleged wrongful acts occurring prior to January 13, 2023 is time-barred.”3
A person alleging a TCHRA violation must exhaust her administrative remedies before bringing a civil action. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). Relevant here, a plaintiff must first file a complaint with the EEOC or the Texas Workforce Commission within 180 days of the allegedly unlawful employment practice. See Tex. Lab. Code § 21.202; Houston Cmty. Coll. v. Arellano, No. 14-24-00491-CV, 2024 WL 5250498, at *5 (Tex. App.—Houston [14th Dist.] Dec. 31, 2024, no pet.) (mem. op.).
Hirsch filed her charge of discrimination on July 12, 2023, alleging that the City retaliated against her by permanently denying her from employment or reapplying with the police department on March 2, 2023. Applying the 180-day framework, any discriminatory conduct occurring before January 13, 2023, would not be actionable. See Tex. Lab. Code § 21.202. Because the alleged retaliation occurred in March 2023, Hirsch’s charge was timely filed with respect to that allegation. On appeal, the City acknowledges that “any claims premised upon events occurring after January 13, 2023 would not be time-barred for purposes of Hirsch’s suit.”
We sustain Hirsch’s second issue.
B. Hirsch’s Employment Status
In her third issue, Hirsch argues that the TCHRA protects both applicants and employees. Hirsch contends that for purposes of TCHRA liability, it makes no difference that she was a prospective employee and not a current employee at the time of the alleged retaliation. The City’s amended plea raised a slightly different argument—it contended that because Hirsch voluntarily resigned on February 10, 2022, she could not bring a TCHRA claim for any alleged wrongful conduct occurring after that date. The City does not address this argument on appeal.
*6 As framed by Hirsch, we first consider whether the TCHRA’s anti-retaliation provision applies to an employer’s decision not to hire a job applicant. We considered this question in Rose v. Houston Independent School District, No. 14-16-00687-CV, 2017 WL 4697889, at *6 (Tex. App.—Houston [14th Dist.] Oct. 19, 2017, no pet.) (mem. op.). In Rose, the plaintiff alleged that the school district retaliated against her for opposing discrimination and filing an EEOC complaint by refusing to rehire her following a reduction in force. Id. at *1–2. This court ultimately assumed, based on the parties’ presumptions, that a failure to hire qualifies as an adverse employment action. Id. at *6. Nevertheless, the court noted that the language of section 21.055 prohibits an employer from retaliating against “a person” who engages in protective activity, not an “employee.” Id. The Rose court also pointed out that “[a]t least one Texas court of appeals has assumed that an alleged failure to hire qualifies as an adverse employment action for purposes of the TCHRA’s anti-retaliation provision.” Id. (citing Crutcher v. Dall. Indep. Sch. Dist., 410 S.W.3d 487, 491, 493 (Tex. App.—Dallas 2013, no pet.)). Lastly, we observed that Title VII’s analogous anti-retaliation provision applies to employer actions “that would have been materially adverse to a reasonable employee or job applicant.” Id. at *6 n.7 (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006)).4
Considering the foregoing, we conclude that the TCHRA’s anti-retaliation provision applies to an employer’s decision not to hire a prospective employee. See White, 548 U.S. at 57; Rose, 2017 WL 4697889, at *6. For the same reasons, we reject the City’s argument that any conduct occurring after Hirsch’s February 10, 2022 resignation would not be actionable because Hirsch was no longer an employee. According to Hirsch, when she advised the City that she had been released to return to work without restrictions, she was informed that she was permanently denied from employment. We see no reason to treat Hirsch differently from any other applicant seeking employment for purposes of the TCHRA’s anti-retaliation provision. See, e.g., Rose, 2017 WL 4697889, at *1 (concerning former teacher’s TCHRA retaliation claim against school district for failing to rehire her after reapplying); Kennedy v. Tex. Dep’t of Protective & Regul. Servs., No. 03-04-00608-CV, 2005 WL 3499442, at *1 (Tex. App.—Austin Dec. 22, 2005, no pet.) (mem. op.) (involving retired employee’s TCHRA retaliation claim against former employer, alleging employer retaliated against her for filing EEOC complaint by refusing to rehire her).
We sustain Hirsch’s third issue.
Conclusion
We reverse the trial court’s judgment granting the City’s plea to the jurisdiction and remand the case for further proceedings consistent with this opinion.
Footnotes |
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| 1 | The City acknowledges that Hirsch briefly was an employee of HPD. |
| 2 | A handful of cases make passing reference to the waiver of immunity for first responders (enacted in 2017), but none of them interpret the meaning of the statutory definition of “first responder” as the City asks us to do here. See Conroe Indep. Sch. Dist. v. Osuna, No. 09-22-00424-CV, 2024 WL 2340797, at *5 (Tex. App.—Beaumont May 23, 2024, no pet.) (mem. op.) (stating school custodian did not plead facts showing she was performing work as a first responder as defined in section 421.095(1)); Ellis v. Dall. Area Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711, at *3 (Tex. App.—Dallas Mar. 13, 2019, pet. denied) (mem. op.) (noting that Legislature amended chapter 451 to waive immunity for claims of first responders, but not for bus drivers like plaintiff); Webb v. City of Huntsville Police Dep’t, No. 4:17-CV-03829, 2019 WL 669850, at *4 n.3 (S.D. Tex. Feb. 19, 2019) (order) (assuming senior police officer met statutory definition of first responder for purposes of waiver). |
| 3 | The City also argued that because Hirsch’s Texas Workforce Commission complaint did not include any claim for sexual harassment and nothing in the complaint would put the City on notice of a claim for sexual harassment, Hirsch failed to exhaust her administrative remedies with respect to any claim for sexual harassment. In her response to the City’s plea, Hirsch acknowledged that she was not asserting a claim for sexual harassment. |
| 4 | Because one of the purposes of the TCHRA is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964,” Tex. Lab. Code § 21.001(1), we look to not only state cases but also to analogous federal statutes and cases interpreting those statutes when reviewing a TCHRA claim. Waffle House, Inc. v. Williams, 313 S.W.3d 795, 804 & n.25 (Tex. 2010). |