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Law School Case Brief

Univ. of Tex. at El Paso v. Ochoa - 410 S.W.3d 327 (Tex. App. 2013)


The appellate court applies a hybrid economic realities/common law control test to determine whether an employment relationship exists between the parties for purposes of the Texas Commission on Human Rights Act. The economic realities component considers whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment. The control component focuses on whether the alleged employer has the right to hire, fire, supervise, and set the alleged employee's work schedule. The right to control an employee's conduct is the more important component of the test.


Appellee, Magdalena Ochoa (Ochoa) is a former employee of Human Capital International LLC d/b/a Integrated Human Capital, LLC (IHC), a staff leasing company in El Paso, Texas. UTEP contracted with IHC for the provision of various temporary staffing services on an as-needed basis. Under the contract, IHC would pay the employees it assigned to work at UTEP, and then bill UTEP for the services performed.

On September 15, 2008, pursuant to the contract, IHC assigned Ochoa to provide temporary custodial services at UTEP's facilities. On or around March 26, 2009, Ochoa reported that Emilio Fernandez, her UTEP supervisor, had sexually harassed her. Ochoa made the report to UTEP personnel, Manuela Rocha and Jeff Johnson. On or about March 28, 2009, UTEP ended Ochoa's work assignment and asked her to report back to IHC. UTEP then called IHC to inform them that Ochoa's assignment had been ended due to poor performance. Ochoa subsequently contacted IHC to report the sexual harassment and that she believed she was being retaliated against for reporting the sexual harassment.

On April 8, 2009, UTEP offered to reinstate Ochoa's work assignment under different supervision and to provide her with backpay. Rather than accept a reassignment at UTEP, Ochoa chose to look for other employment.

On January 13, 2010, Ochoa sued IHC and UTEP alleging that Fernandez subjected her to sexual and verbal harassment and that UTEP engaged in sex discrimination and retaliation in violation of the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. §§ 21.05121.055. In response, UTEP filed a general denial and a plea to the jurisdiction. Later, UTEP filed an amended plea to the jurisdiction, which included a motion for partial summary judgment. In its plea to the jurisdiction, UTEP asserted that IHC was Ochoa's employer, UTEP had no control over Ochoa's relationship with IHC, and that it was immune from Ochoa's suit under the TCHRA. Ochoa responded that UTEP was her employer for purposes of the TCHRA. Alternatively, Ochoa maintained that a direct employment relationship with UTEP was not required for her to have standing to file suit under the TCHRA. After a hearing, the trial court denied UTEP's plea to the jurisdiction and motion for partial summary judgment.


Did the trial court lack subject matter jurisdiction and err in denying UTEP's plea to the jurisdiction because Ochoa failed to properly invoke the limited waiver of governmental immunity available under the TCHRA?




On appeal, UTEP complained that the trial court erred in denying its plea to the jurisdiction because it was immune from Ochoa's suit under the TCHRA because: (1) UTEP was not Ochoa's employer; and (2) UTEP did not control Ochoa's relationship or access to employment opportunities with IHC. The appellate court noted that there was no dispute that the economic realities of the employee's relationship with the university did not establish that an employment relationship existed between the parties. The university did not exercise the requisite control over the employee's employment so as to create an employment relationship with the employee under the hybrid economic realities/common law control test. The court found that under the Rennels test, under which the defendant must control access to the plaintiff's employment opportunities and deny or interfere with that access based on unlawful criteria, the employee's evidence established a fact issue as to whether the university controlled access to the employee's employment opportunities with the university and that those opportunities were denied or interfered with based on unlawful criteria.

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