The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. The plea challenges the trial court’s subject matter jurisdiction. 3 3 regard to whether the claims asserted have merit. TSTC does not address this request on appeal, and so neither do we. Standard of Review A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without TSTC’s plea to the jurisdiction also asked the trial court to find as a matter of law that Owen cannot recover exemplary damages. § 101.001(3)(D) (defining “governmental unit” to include “any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution”) see also TEX. § 51.014(a)(8) (permitting immediate appeal of interlocutory order denying plea to the jurisdiction by a governmental unit) id. Without holding a hearing, the trial court denied the plea to the jurisdiction. Owen filed a response, arguing: (1) TSTC waived its exhaustion-of-administrative-remedies argument because it did not raise that argument until eleven months after suit was filed and (2) TSTC’s sovereign immunity to the breach of contract claim is waived under chapter 271 of the Texas Local Government Code. 3 In its conclusion paragraph, the plea argued that “Owen cannot meet the prima facie elements for age discrimination, retaliation or breach of contract, and cannot overcome ’s sovereign immunity.” Attached to the plea was a copy of the signed Charge of Discrimination which Owen filed with TWC on March 1, 2018. 2 On February 26, 2020, TSTC filed a plea to the jurisdiction, arguing that: (1) Owen failed to exhaust his administrative remedies regarding his retaliation claim and (2) Owen’s breach of contract claim is barred by sovereign immunity. The offer of appointment is limited to the period specified and does not create a right or expectation of continued employment beyond that period. 2 The September 2001 letter stated, among other things: The purpose of this correspondence is to offer you an appointment to Harlingen, from Septemthrough Aug(this constitutes a 12 month contract). 1 Owen has not filed a brief to assist us in the resolution of this matter. 2 Owen’s petition did not allege that TSTC’s immunity to suit, as a governmental entity, had been waived. Owen’s petition requested actual and exemplary damages and attorney’s fees, and it included three exhibits: (1) an unsigned and undated “Employment Discrimination Complaint Form,” promulgated by the Texas Workforce Commission (TWC), partially filled out to allege age discrimination (2) a right-to-sue letter from the TWC to Owen dated Februand (3) a letter dated September 2001, signed by Owen and TSTC’s president, confirming that Owen had accepted TSTC’s offer of employment. Finally, Owen argued that TSTC breached his employment contract by terminating him without cause. Owen’s petition also alleged that “’s actions were a form of retaliation because of his complaints of discrimination.” See id. On March 27, 2019, Owen filed suit against TSTC under the Texas Commission on Human Rights Act (TCHRA), alleging that he was subjected to age discrimination. On August 18, 2017, TSTC advised Owen that his employment contract would not be renewed for the 2017–2018 academic year. BACKGROUND Owen was employed as an English instructor at TSTC from 2001 to 2017. 1 Because we agree with TSTC on both issues, we affirm in part and reverse and render in part. TSTC contends by two issues that: (1) Owen failed to exhaust administrative remedies as to his retaliation claim, and (2) sovereign immunity bars Owen’s breach of contract claim. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Chief Justice Contreras In this accelerated interlocutory appeal, appellant Texas State Technical College (TSTC) argues the trial court erred by denying its plea to the jurisdiction in a suit filed by appellee John Clark Owen. On appeal from the County Court at Law No. NUMBER 13-20-00264-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG TEXAS STATE TECHNICAL COLLEGE, Appellant, v.
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