City of Houston v. Leslie G. Wills

Reversed and Rendered and Memorandum Opinion filed July 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00178-CV

CITY OF HOUSTON, Appellant

V.

LESLIE G. WILLS, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2020-45680

MEMORANDUM OPINION

Appellee Leslie Wills filed suit against appellant the City of Houston,

alleging her supervising lieutenant discriminated against her based on her sex and

she was subjected to adverse employment actions in retaliation for having

complained about the alleged discrimination. See Tex. Lab. Code Ann. §§ 21.001–

.556. The City filed a plea to the jurisdiction, which the trial court denied.

In three issues in this interlocutory appeal, the City argues the trial court

erred by striking two of the City’s exhibits (issue 1) and denying the City’s plea to

the jurisdiction on Wills’s discrimination and retaliation claims, respectively

(issues 2 and 3). Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Concluding

that (1) Wills has not provided prima facie evidence that she suffered an adverse

employment action for both her discrimination and her retaliation claims and

(2) Wills did not overcome the City’s nondiscriminatory reasons for any allegedly

unequal treatment she received, we reverse and render judgment dismissing the

case for want of subject-matter jurisdiction.

I. BACKGROUND

As of 2017, Wills had been the mounted patrol administrative sergeant in the

Houston Police Department (HPD) for 10 years. Wills was responsible for the

acquisition, retirement, health, and assignment of horses, in addition to general

control over barn operations and officer training. In late 2017, Lieutenant Dean

Thomas was appointed as the new mounted patrol commander. Thomas began

implementing changes with respect to officer training, retirement of horses, and the

policy on use of spurs. Wills perceived that Thomas was disregarding her expertise

and experience at mounted patrol; Thomas was concerned that Wills was

undermining his authority and disobeying direct orders. As a result, Thomas

instructed Wills that she was no longer to have any decision-making authority

regarding the assignment, retirement, or acquisition of horses. Two days later,

Wills prepared a letter to the chief of police alleging that Thomas had subjected her

to a hostile work environment and gender bias.

Despite HPD sending Thomas and Wills to mediation, the two continued to

disagree on how to manage the barn. Because of continued tension between the

two, Captain Ernest Garcia—the HPD captain with oversight of the mounted

patrol—met with Thomas and Wills. Wills indicated that she and Thomas

continued to have “adversity in their relationship” because she wanted to do things

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one way and Thomas wanted to do things another way. While acknowledging

Wills’s experience, Garcia reminded Wills of the chain of command, meaning that

Thomas was in charge. Garcia advised Wills that if conflicts and pushbacks

continued, changes would be made in the mounted patrol. However, according to

officers in the mounted patrol that spoke with Garcia, Wills continued to act “like

the de facto commander, which was negatively impacting the unit as the officers

did not know whose orders to follow.” Because Thomas could not trust Wills to

accept and follow his authority, Thomas reassigned Wills—with Garcia’s

approval—from administrative sergeant to patrol sergeant, but she remained in

mounted patrol.

After the reassignment, Wills complained about on-going harassment and

retaliation by Thomas. HPD immediately put a shielding plan into effect,

temporarily relocating Thomas to a different unit and ordering him to have no

contact with Wills. HPD’s internal affairs division investigated Wills’s complaints,

ultimately finding insufficient evidence to prove or disprove that Thomas’s actions

rose to the level of creating a hostile work environment, workplace harassment,

discrimination, or gender bias. Regardless, Thomas was permanently reassigned to

another division, and Wills has had no contact with Thoms since the shielding plan

was put into effect in 2018.

The new administrative sergeant of mounted patrol, Jeff Dobrucki, claimed

that Wills was causing tension in response to a scheduling change Thomas had

implemented. Dobrucki also claimed that several officers in mounted patrol told

him that they felt threatened and personally targeted because of two posters Wills

had recently hung in her cubicle.1 HPD decided that it was “in the best interest of

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One poster read, “If you betray me at my weakest, don’t expect mercy when I’m at my

strongest”; the other stated, “It’s mercy, compassion and forgiveness I lack[,] not rationality.”

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the Department” to involuntarily transfer Wills, and two other male sergeants, from

mounted patrol to other divisions. Wills was given the option to transfer to any

division with an existing vacancy. After initially transferring to downtown patrol,

Wills initiated a voluntary transfer to the downtown security detail just a few

weeks later—all while retaining her same rank and pay scale.

In August 2018, Wills received a “Report of Employee Efficiency Rating,”

which provided additional details regarding her involuntary transfer from mounted

patrol. The report mentioned that conflicts with authority and difficulty following

the chain of command appear to be “a pattern of behavior with Sergeant Wills,

who also struggled to comply with changes implemented by the previous

lieutenant, Diana Poor.” The report concluded: “While Sergeant Wills clearly has a

lot of experience with horses, any such strengths are eclipsed by the disruption she

caused in the unit by causing dissention [sic], refusing to change, adapt, or follow

the directives of her supervisors.”

Wills initiated a grievance because of the involuntary transfer, asking to be

reinstated as the administrative sergeant for the mounted patrol; her grievance was

denied. Several months later, in early 2019, Wills resigned from HPD.

In 2020, Wills filed suit against the City alleging discrimination and

retaliation in violation of Labor Code chapter 21. See Tex. Lab. Code Ann.

§ 21.051. The City filed a plea to the jurisdiction and no-evidence motion for

summary judgment. On February 23, 2023, the trial court signed an order denying

the City’s plea to the jurisdiction. The City filed this interlocutory appeal.

II. ANALYSIS

A. Standard of review and applicable law

We review a trial court’s ruling on a plea to the jurisdiction de novo. See

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Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the case. Id. We construe the pleadings liberally in favor of the plaintiff and

look to the pleader’s intent. Id. If the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at

226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a

plea to the jurisdiction may be granted without allowing the plaintiff an

opportunity to amend. Id. at 227.

When a plea to the jurisdiction challenges jurisdictional facts, we consider

the facts alleged by the plaintiff and, “to the extent it is relevant to the

jurisdictional issue, the evidence submitted by the parties” to determine whether

the plaintiff has affirmatively demonstrated the court’s jurisdiction to hear the case.

See Texas Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.

2001). The process of deciding whether jurisdictional facts have been affirmatively

pleaded is similar to a summary judgment: if the evidence does not raise a genuine

issue of fact regarding the jurisdictional issue, then the plea to the jurisdiction

should be granted. See Miranda, 133 S.W.3d at 228.

The City is a governmental entity and therefore has immunity from suit

unless the legislature waives that immunity. See City of Houston v. Williams, 353

S.W.3d 128, 134 n.5 (Tex. 2011). One such waiver is found under the employment

discrimination provisions of Labor Code chapter 21, which state that an employer

commits an unlawful employment practice if, because of an employee’s gender,

the employer “fails or refuses to hire an individual, discharges an individual, or

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discriminates in any other manner against an individual in connection with

compensation or the terms, conditions, or privileges of employment.”2 Tex. Lab.

Code Ann. § 21.051(1); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 660 (Tex. 2008) (holding that Labor Code chapter 21 clearly and

unambiguously waives immunity from suit) (“Garcia I”).

Labor Code chapter 21’s waiver of immunity only applies in those suits in

which the plaintiff alleges a violation within the scope of the statute. See Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“Garcia

II”). If the plaintiff does not sufficiently plead facts that state a claim under Labor

Code chapter 21, the governmental unit may challenge the pleadings with a plea to

the jurisdiction. Id. at 635. Using the same procedural device, the governmental

unit may also challenge the very existence of those jurisdictional facts. Id.

“In a suit against a governmental employer, the prima facie case implicates

both the merits of the claim and the court’s jurisdiction because of the doctrine of

sovereign immunity.” Garcia II, 372 S.W.3d at 635–36. If the suit involves claims

of disparate treatment, the prima facie case requires proof that the discrimination

claimant was treated less favorably than a similarly situated comparator from the

opposing class. See University of Tex. Med. Branch at Galveston v. Petteway, 373

S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

There are two alternative methods by which a plaintiff can establish

discrimination or retaliation under Labor Code chapter 21. See Garcia II, 372

S.W.3d at 634. First, a plaintiff can offer direct evidence of the employer’s

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The Texas Legislature patterned Labor Code chapter 21 after federal law for the express

purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964, Pub. L. No.

88-352, 78 Stat. 241, 253 and its subsequent amendments. Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 474 (Tex. 2001); see 42 U.S.C. §§ 2000e–2000e-17. When analyzing a claim

brought under Labor Code chapter 21, we therefore look to state cases as well as to the

analogous federal statutes and the cases interpreting those statutes. Id. at 476.

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discriminatory actions or words. Id. “Direct evidence of discrimination is evidence

that, if believed, proves the fact of discriminatory animus without inference or

presumption.” College of the Mainland v. Glover, 436 S.W.3d 384, 392 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied) (quoting Jespersen v. Sweetwater

Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.)).

“Courts have tended to find that insults or slurs against a protected group constitute

direct evidence of discrimination.” Anderson v. Houston Cmty. Coll. Sys., 458

S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.). For workplace

comments to provide sufficient evidence of direct discrimination, the comments

must be: (1) related to the employee’s protected class; (2) proximate in time to an

adverse employment decision; (3) made by an individual with authority over the

employment decision at issue; and (4) related to the employment decision at issue.

Id. at 644. “If an inference is required for the evidence to be probative as to the

employer’s discriminatory animus, the evidence is circumstantial, not direct.” Id. at

643. As our supreme court has observed, direct evidence of discrimination is a

rarity in employment cases. See Garcia II, 372 S.W.3d at 634.

In the alternative to presenting direct evidence, a plaintiff can proceed with

indirect or circumstantial evidence of discrimination or retaliation. See Russo v.

Smith Int’l, Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). Under this second method, the employee must make a prima facie case of

discrimination under the McDonnell–Douglas burden-shifting analysis. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).

To establish a prima facie case of discrimination with indirect evidence, the

plaintiff must show that: (1) she was a member of a protected class, (2) she was

qualified for the position she applied for; (3) she suffered an adverse employment

action, such as termination or rejection; and (4) nonprotected class employees were

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not treated similarly. See generally id. at 802. Once the plaintiff establishes a

prima facie case, the burden of production shifts to the defendant-employer to

articulate legitimate nondiscriminatory reasons for any allegedly unequal

treatment. Id. After the employer articulates a nondiscriminatory reason, the

burden shifts back to the employee to prove that the articulated reason is a mere

pretext for unlawful discrimination. Id. at 804. Although the burden of production

shifts between the parties, the burden of persuasion “remains continuously with the

plaintiff.” Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—

Houston [1st Dist.] 2000, no pet.) (citing McDonnell, 411 U.S. at 803).

“To establish a prima facie case of retaliation, a person must show: (1) she

engaged in an activity protected by [Labor Code chapter 21], (2) she experienced a

material adverse employment action, and (3) a causal link exists between the

protected activity and the adverse action.” Alamo Heights Indep. Sch. Dist. v.

Clark, 544 S.W.3d 755, 782 (Tex. 2018). The causal link must be established

through but-for causation. See Apache Corp. v. Davis, 627 S.W.3d 324, 335 (Tex.

2021). Thus, claims of retaliation and discrimination both require the plaintiff to

demonstrate that they experienced an adverse employment action. See Green, 411

U.S. at 802; Clark, 544 S.W.3d at 782.

Constructive discharge is an alternative method available to plaintiffs in

employment cases to satisfy the adverse-employment-action element of their case.

City of Houston v. Carter, No. 01-22-00453-CV, 2023 WL 3632788, at *8 (Tex.

App.—Houston [1st Dist.] May 25, 2023, no pet.). In essence, constructive

discharge converts the plaintiff’s voluntary act of resigning into an adverse

employment action. See Green v. Brennan, 578 U.S. 547, 555 (2016). This Court

has articulated the standard for constructive discharge as follows:

whether a reasonable employee would feel compelled to resign

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depends on the facts of each case, but several factors have been

identified as bearing on this inquiry. These include the following: (1)

demotion; (2) reduction in salary; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) badgering,

harassment, or humiliation by the employer calculated to encourage

the employee’s resignation; and (6) offers of early retirement that

would make the employee worse off whether the offers were accepted

or not.

Microsoft Corp. v. Mercieca, 502 S.W.3d 291, 312 (Tex. App.—Houston [14th

Dist.] 2016, pet. denied).

B. The trial court lacked jurisdiction

In the City’s first issue, it argues the trial court erred in striking two of its

exhibits. We do not address the City’s evidentiary issue because without

considering the excluded evidence, we conclude that Wills has not affirmatively

demonstrated a waiver of immunity from suit for her discrimination and

retaliations claims. Tex. R. App. P. 47.1.

1. Prima facie evidence of discrimination and retaliation

Under the first prong of the burden-shifting analysis, to establish a prima

facie case for both retaliation and discrimination, Wills needed to prove that she

suffered an adverse employment action. See McDonnell, 411 U.S. at 802; Clark,

544 S.W.3d at 782. Wills identifies four alleged adverse actions she suffered: (1)

she was stripped of her role acquiring, retiring, and assigning horses; (2) she was

removed as barn sergeant/training sergeant; (3) she was involuntarily transferred

out of mounted patrol entirely; and (4) she resigned from the police department,

which she alleges constituted a constructive discharge. But Wills has not provided

sufficient evidence to create a genuine fact issue as to whether any of these events

constituted an adverse employment action.

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a. Adverse employment action

“To adequately plead an adverse employment action, plaintiffs need not

allege discrimination with respect to an ‘ultimate employment decision.’ Instead, a

plaintiff need only show that she was discriminated against, because of a protected

characteristic, with respect to hiring, firing, compensation, or the ‘terms,

conditions, or privileges of employment.’” 3 Hamilton v. Dallas Cnty., 79 F.4th

494, 506 (5th Cir. 2023). Thus, based on the specific facts of each case, a wide

range of employment actions may constitute an “adverse employment action.” See,

e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (observing that “a

significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits” may all constitute an adverse employment action);

Hamilton, 79 F.4th at 503–05 (concluding that changing employee’s shift to less

favorable one is action that affects “terms, conditions, or privileges of

employment”); Serna v. City of San Antonio, 244 F.3d 479, 483 (5th Cir. 2001)

(“A transfer, even without an accompanying cut in pay or other tangible benefits,

may constitute an adverse employment action[.]”); Forsyth v. City of Dallas, Tex.,

91 F.3d 769, 774 (5th Cir. 1996) (demotion may constitute adverse employment

action).

However, a plaintiff must provide more evidence than their mere subjective

belief that they have experienced an adverse employment action. See Serna, 244

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“[T]he Texas Commission on Human Rights Act (TCHRA) . . . ‘is a comprehensive fair

employment practices act and remedial scheme, modeled after Title VII of the federal Civil

Rights Act of 1964 (Title VII), that provides the framework for employment discrimination

claims in Texas.’” Jespersen, 390 S.W.3d at 653 (quoting Prairie View A & M Univ. v. Chatha,

381 S.W.3d 500, 502–03 (Tex. 2012)); see Tex. Lab. Code Ann. §§ 21.001–.556. “In

discrimination and retaliation cases under the TCHRA, Texas jurisprudence parallels federal

cases construing and applying equivalent federal statutes, like Title VII.” Clark, 544 S.W.3d at

781.

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F.3d at 483 (noting in context of deciding whether job transfer was adverse

employment action, “it is insufficient for a plaintiff to show merely that he has

been transferred from a job he likes to one that he considers less desirable. Rather,

a plaintiff must produce enough evidence to allow a reasonable trier of fact to

conclude that, when viewed objectively, the transfer caused harm to the plaintiff,

‘sufficiently serious to constitute a constitutional injury’”) (quoting Breaux v. City

of Garland, 205 F.3d 150, 152 (5th Cir. 2000); Forsyth, 91 F.3d at 774 (“a

plaintiff’s subjective perception that a demotion has occurred is not enough” to

demonstrate an adverse employment action).

The present case is like Serna, in which the Fifth Circuit ultimately

concluded that the evidence produced by the plaintiff amounted to nothing more

than a subjective belief that “he felt stigmatized and injured,” which was

insufficient to prove that he had suffered an adverse employment action. See

Serna, 244 F.3d at 484. In Serna, the plaintiff, Serna, complained about his transfer

from the HPD downtown foot and bike patrol unit to a regular patrol unit. See id.

Even though several officers testified that the downtown foot and bike patrol unit

was a “prestigious assignment” and that officers in that unit were given more

freedom to stop criminal activity, “[t]here was no evidence to suggest that a

transfer to a regular patrol unit was generally considered to be a demotion or any

kind of punishment.” Id. at 483–84. Based on the record, the court noted that being

in the downtown foot and bike patrol unit seemed to simply be a matter of

“personal preference.” Id. at 485. Although Serna’s shift hours changed after the

transfer, “nothing in the record shows that Serna was bothered by his new hours or

that he attempted to get them changed, as he had with his days off.” Id. Serna also

never received a reduction in pay or benefits, “and he produced no objective

evidence that his chances for promotion were reduced by his transfer.” Id. Thus,

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the court concluded that “[a]ll the evidence established was that Serna was

transferred from a unit considered prestigious and desirable to another unit on the

force, one to which most of his fellow officers were assigned. That is insufficient

to establish that Serna suffered an adverse employment action.” Id.

Wills argues “it is beyond any dispute that taking an expert horsewoman

who is running one of the largest and most prestigious Mounted Patrol barns in the

country, and reassigning her to be an ordinary beat cop, or to working the security

desk downtown, is an objectively worse job.” But Wills’s evidence did nothing

more than assert that being in the mounted patrol was a “personal preference.” Id.

She offered no additional affidavits from third parties or other evidence suggesting

that being in the mounted patrol was considered prestigious or a promotion. Like in

Serna, Wills also offered no evidence that being transferred to the downtown patrol

was generally considered to be a demotion or a form of punishment. Wills does not

appear to ever complain about any change in her shift hours, and she does not

allege that she received a reduction in pay or benefits.

Wills additionally claims that while she “could have sought out certain other

assignments within the department, she had been permanently barred from

Mounted Patrol, the department she had dedicated her professional life to, and had

the black mark of an involuntary transfer and a bad performance review.” But once

again, this assertion is unaccompanied by any evidence suggesting that an

involuntary transfer or a bad performance review would serve as “black mark”

preventing her obtaining other positions or ranks. She does not plead any facts

suggesting that she was denied a promotion or job transfer because of the “black

mark” she received.

Concerning her allegation of constructive discharge, Wills has not

demonstrated “intolerable circumstances” that essentially forced her to retire. After

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Wills made her original complaints against Thomas, HPD immediately shielded

Wills from Thomas, by removing him from mounted patrol and reassigning him to

temporary duty at an airport. It is undisputed that Thomas never returned to

mounted patrol, and never again supervised or even had face-to-face contact with

Wills. When Wills was involuntarily transferred from mounted patrol more than

three months later, she was afforded the opportunity to arrange a transfer to any

division holding an existing vacancy. And then she requested a voluntary transfer

to downtown security several weeks later. Throughout that time, Wills does not

allege that she received a reduction in pay, or that she was badgered, or humiliated,

or that she was reassigned to menial or degrading work. Beyond her subjective

beliefs, Wills has not presented evidence to suggest that a reasonable employee

would feel compelled to resign. Mercieca, 502 S.W.3d at 312.

On all four of her claims of adverse employment action, including her claim

of constructive discharge, Wills ultimately offers only her subjective belief, which

is insufficient. See Serna, 244 F.3d at 483. The subjective evidence presented by

Wills stands in contrast to other cases in which the plaintiffs provided at least some

“objective” evidence that an adverse employment action had occurred. See, e.g.,

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (finding

plaintiff provided sufficient evidence to create fact issue as to whether

reassignment was adverse employment action because there was “considerable

evidence that the track laborer duties were ‘by all accounts more arduous and

dirtier’; that the ‘forklift operator position required more qualifications, which is an

indication of prestige’; and that ‘the forklift operator position was objectively

considered a better job and the male employees resented White for occupying it’”);

Kessler v. Westchester Cnty. Dep’t of Soc. Services, 461 F.3d 199, 208–09 (2d Cir.

2006) (concluding evidence was sufficient to satisfy step-one burden in which

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plaintiff provided affidavit and official job descriptions to demonstrate that transfer

stripped him of many responsibilities and that “he was no longer given any

managerial assignments and was not even allowed to attend meetings of lower-

level managers”); Forsyth, 91 F.3d at 774–75 (plaintiff provided evidence that

tended to show that positions in intelligence unit were more prestigious, had better

working hours, were more interesting than those in night uniformed patrol, and that

other members of department had been transferred to night uniformed patrol as

punishment); Click v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992) (plaintiff

provided evidence sufficient to create fact issue as to whether adverse employment

action occurred: (1) the assistant director of the jail unit stated that “everybody”

considered transfer from jail to law enforcement to be a promotion; (2) the civil

service director said that eight people appealed transfers from law enforcement to

jail, but only one appealed a transfer the other way; (3) Sheriff stated that all jail

guards would like to be transferred to law enforcement section if they could; and

(4) two deputies lost certain seniority rights after their transfer).

b. Nonprotected class employees were treated similarly

We also note that Wills has not demonstrated that she was treated differently

than male counterparts in a nearly identical situation; the record suggests the

opposite. Wills complains that Thomas acted unprofessionally and yelled at her

and belittled her in front of other male colleagues, but he apparently did the same

with her male sergeant colleagues. She complains that she had essentially perfect

performance reviews until Thomas became lieutenant and then he started reducing

her performance evaluation, which is true. But Thomas started reducing the

performance reviews of at least two other male sergeants at the same time as Wills.

And two other male officers were also transferred away from mounted patrol at the

same time as Wills.

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Wills has not provided prima facie evidence that she suffered an adverse

employment action for both her discrimination and her retaliation claims.

However, even if any of the complained-of actions constituted an adverse

employment action, she has not overcome the City’s nondiscriminatory reasons for

any allegedly unequal treatment she received.

2. The City provided nondiscriminatory reasons for its actions and

Wills did not prove that the City’s stated reasons were merely

pretext for discrimination

As outlined above, and as established by the pleadings and the relevant

nonstricken evidence, the tension created by Wills and Thomas negatively affected

the unit’s ability to function.

Garcia informed Wills that she needed to respect the chain of command and

indicated that if she could not do so, then “changes” would be made. When Garcia

met with officers in the mounted patrol, they stated that even after being previously

advised, Wills continued to act “like the de facto commander, which was

negatively impacting the unit as the officers did not know whose orders to follow.”

Thomas noted that Wills continued to directly disobey his directives. Her “Report

of Employee Efficiency Rating” suggested that disobeying superiors was “a pattern

of behavior with Sergeant Wills, who also struggled to comply with changes

implemented by the previous lieutenant.” Even when Wills remained in mounted

patrol and Thomas was removed, the new lieutenant, Dobrucki, noted that Wills

continued to create tension. In response, Wills did not show that the City’s

nondiscriminatory reasons for its actions were simply pretext.4

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We offer no opinion as to whether Wills was treated fairly by the City and her

supervisors, but simply having a bad boss is not enough to prevail on her claims. Even if Wills’s

allegations were true, the evidence is still insufficient to demonstrate that Wills suffered statutory

discrimination or retaliation.

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We sustain the City’s second and third issues. And as addressed above,

because of our disposition on issues two and three, it is unnecessary for us to

address the City’s first issue. See Tex. R. App. P. 47.1.

C. Opportunity to amend petition

Because the jurisdictional evidence establishes that Wills’s claims are barred

by governmental immunity from suit, the trial court should have granted the City’s

plea to the jurisdiction. Having reached this conclusion, we must next decide

whether Wills is entitled to an opportunity to amend her petition. See Dohlen v.

City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022) (Texas courts allow parties

to replead unless their pleadings demonstrate incurable defects).

Wills cannot overcome the City’s legitimate, nondiscriminatory reasons for

its actions, as outlined above. Also, Wills has not suggested there is a jurisdictional

defect she can cure. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840

(Tex. 2007) (dismissing claim and concluding plaintiff was not entitled to amend

petition, noting that plaintiff’s “pleading defects cannot be cured, and he has made

no suggestion as to how to cure the jurisdictional defect”). Based on the extensive

facts already in the record or pleadings, remanding this case to allow Wills to

amend her petition would serve no legitimate purpose because she cannot

overcome the defects of her pleadings. Accordingly, Wills is not entitled to an

opportunity to amend in this case.

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III. CONCLUSION

We reverse the trial court’s order denying the City’s plea to the jurisdiction

and render the judgment the trial court should have rendered: a judgment

dismissing Wills’s suit against the City for want of subject-matter jurisdiction. Tex.

R. App. P. 43.2(c).

/s/ Charles A. Spain

Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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