Harris County v. Hasan Gokal

Opinion issued December 12, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-23-00391-CV

———————————

HARRIS COUNTY, Appellant

V.

HASAN GOKAL, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2021-60942

MEMORANDUM OPINION

During the COVID-19 pandemic, Dr. Hasan Gokal took home an opened vial

of leftover vaccine doses that were about to expire, and he gave the doses to at-risk

friends and family. Harris County then terminated his employment. According to

Gokal, another Harris County employee told him in the meeting during which he

was fired that he did not equitably distribute the vaccine and gave it to “too many

people with Indian sounding names.” The county asserted he was fired for taking the

vaccine doses home without permission. Gokal sued the county, claiming race

discrimination. We conclude that, assuming Gokal established his prima facie case

of race discrimination, he failed to show the county’s legitimate, nondiscriminatory

reason for his firing was a pretext or that discrimination was another motivating

factor. Therefore, we reverse and render judgment dismissing the case for lack of

jurisdiction.

BACKGROUND

The undisputed facts are that on December 29, 2020, the first day of Harris

County’s mass distribution of the COVID-19 vaccine, Gokal was working for the

county as an emergency physician in Harris County Public Health Department’s

Office of Public Health Preparedness and Response Division. He was working as

the on-site manager at one of the county’s mass vaccine distribution sites. After the

site had closed for the day, there were still ten doses of the vaccine remaining in an

opened vial. The doses would expire and become unusable around midnight that

night. Gokal offered the remaining doses to on-site staff, but everyone had either

already been vaccinated or declined to be vaccinated.

In an effort not to waste any doses of the vaccine, Gokal took the unused doses

home to Fort Bend County and began calling friends and family to find at-risk people

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whom he could vaccinate. He called his wife, his mother, and two friends, and they

referred him to several at-risk people, some of whom Gokal had never met before.

He administered all ten doses to elderly or otherwise at-risk people, including his

wife, who had a significant health condition. Gokal completed the vaccination

records for each recipient and submitted the records for entry into the local and state

tracking systems.

A few days later, Gokal told a coworker that he had taken the leftover doses

home and given them to elderly friends of his mother. The employee reported this

incident to management. Three Public Health Department managers met to discuss

the allegation against Gokal and decide how to handle it: Michael McClendon,

director of the Office of Public Health Preparedness and Response Division and

Gokal’s direct supervisor; Gwen Sims, the deputy or interim director for Harris

County Public Health Department; and Ed Anderson, the director of human

resources. According to McClendon, “We discussed that the vaccine had been taken

from the [vaccination] site and—by Dr. Gokal and it had [gone] out of county and

had been given to people in another county, and we needed to know if there was

anything we needed to do about that.” They agreed Anderson should investigate the

allegation. Anderson explained that because he did not have access to patient

records, to verify the allegation against Gokal, he asked another employee to look

through the vaccination records “to see if she noted any signatures and/or names that

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would be similar to Dr. Gokal’s.” She found 13 vaccination records of patients

whom Gokal might have vaccinated.

Anderson presented his findings to McClendon, Sims, and Sheri Onyiego—

the acting medical director. McClendon said that he, Sims, and Onyiego made the

decision to terminate Gokal for taking the vaccine doses off-site.

McClendon and Anderson met with Gokal on January 7. The parties dispute

what occurred during the meeting.

According to Gokal’s original petition, McClendon and Anderson did not ask

Gokal about his version of events. Instead, Anderson declared that Gokal did not

“equitably” distribute the vaccine and that Gokal gave the vaccine to “too many

people with Indian sounding names.” McClendon and Anderson accused Gokal of

stealing the vial of leftover vaccine doses. McClendon and Anderson fired Gokal at

that meeting.

According to Anderson, he and McClendon wanted to give Gokal a chance to

explain himself regarding the allegation that he took vaccine doses off-site.

Anderson explained that McClendon, Sims, and Onyiego had determined before the

meeting that if the allegation against Gokal was true, then Gokal should be fired.

Anderson had prepared a termination letter to give Gokal if the allegation against

him was true. Anderson said that Gokal admitted to taking the vaccine doses off-site

and giving the doses to friends and family. Because Gokal admitted this, McClendon

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and Anderson fired him. According to Anderson, they did not object to Gokal’s

giving the vaccine to other people; “[i]t was the taking it off-site without making a

phone call to talk about what to do with the vaccine. He took it and gave it to friends

and family, which from a county standpoint, you can’t use county resources to

benefit family members.”

At the meeting, Anderson gave Gokal the already written termination letter

stating in relevant part:

We recently conducted an investigation that revealed you took

COVID Vaccine home without permission and injected your friends

and family. These findings have caused us to lose faith in your ability

to perform your duties. Therefore, your employment with Harris

County Public Health Services is ending today.

Gokal, who is of South Asian descent and Pakistani national origin, sued

Harris County, alleging he had been discriminated against on the basis of his race

and national origin. Harris County filed a plea to the jurisdiction and, in the

alternative, motion for summary judgment, asserting its governmental immunity.

The trial court denied the motion. Harris County appeals.

DISCUSSION

Plea to the Jurisdiction

Political subdivisions of the state like Harris County are immune from suit

and liability unless the legislature expressly waives immunity. Harris Cnty. v.

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Annab, 547 S.W.3d 609, 612–13 (Tex. 2018). Chapter 21 of the Labor Code,1 which

prohibits employment discrimination, waives immunity, but only when a plaintiff

states a claim for conduct that violates that chapter. Tex. Dep’t of Transp. v. Lara,

625 S.W.3d 46, 52 (Tex. 2021). A political subdivision may assert its immunity

through a plea to the jurisdiction or motion for summary judgment. Alamo Heights

Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The political

subdivision may challenge the pleadings, the existence of jurisdictional facts, or

both. Id. We review a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

When, as here, a political subdivision challenges the existence of

jurisdictional facts, our review “mirrors that of a traditional summary judgment.”

Lara, 625 S.W.3d at 52 (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 635 (Tex. 2012)). A challenge to the plaintiff’s jurisdictional facts

implicates the merits of the plaintiff’s claim, so the plaintiff has the burden to raise

a genuine issue of material fact on each element of his claim. Id.; Clark, 544 S.W.3d

at 805. “In determining whether a material fact issue exists, we must take as true all

1

Though some courts still refer to this chapter as the Texas Commission on Human

Rights Act, TCHRA, or CHRA, the Commission on Human Rights was replaced by

the Texas Workforce Commission civil rights division. Waffle House, Inc. v.

Williams, 313 S.W.3d 796, 798 n.1 (Tex. 2010). Courts often use the terms

“TCHRA,” “Chapter 21,” and “the Act” interchangeably in opinions discussing this

chapter. Id.; Jones v. Tex. Dep’t of Pub. Safety, No. 03-20-00615-CV, 2022 WL

318585, at *1 n.1 (Tex. App.—Austin Feb. 3, 2022, no pet.) (mem. op.).

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evidence favorable to the plaintiff, indulging every reasonable inference and

resolving any doubts in the plaintiff’s favor.” Clark, 544 S.W.3d at 771. “In doing

so, however, we cannot disregard evidence necessary to show context, and we

cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable

jurors could not.” Id.

Typically, a party may only appeal from a final judgment or interlocutory

order for which appeal is authorized by statute. Mellon Real Est., Inc. v. Gomez, No.

01-23-00611-CV, 2023 WL 8262778, at *1 (Tex. App.—Houston [1st Dist.] Nov.

30, 2023, no pet.) (mem. op.) (per curiam). Section 51.014(a)(8) of the Texas Civil

Practice and Remedies Code authorizes an appeal from an interlocutory order that

“grants or denies a plea to the jurisdiction by a governmental unit” like Harris

County. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8); see also id. § 101.001(3)

(defining “governmental unit” to include county). Thus, we have appellate

jurisdiction over this interlocutory appeal.

Employment Discrimination

Chapter 21 of the Texas Labor Code prohibits employment discrimination

because of an employee’s “race, color, disability, religion, sex, national origin, or

age.” See TEX. LAB. CODE § 21.051. The legislature enacted Chapter 21 in part to

enforce the policies of Title VII of the federal Civil Rights Act of 1964. Id.

§ 21.001(1); Lara, 625 S.W.3d at 52. Therefore, we may also look to federal statutes

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and the cases interpreting them to guide our reading of Chapter 21. Lara, 625 S.W.3d

at 52.

A plaintiff can prove unlawful employment discrimination under Chapter 21

through either direct evidence or circumstantial evidence. Clark, 544 S.W.3d at 782.

Here, Gokal asserts he has provided both.

Harris County raises one issue on appeal: whether the trial court erred in

denying its plea to the jurisdiction. The county argues the trial court lacked

jurisdiction over Gokal’s race-discrimination claim because Gokal did not provide

direct evidence of discrimination and did not establish a prima facie claim of race

discrimination with circumstantial evidence, or, in the alternative, he did not rebut

Harris County’s legitimate, nondiscriminatory reason for his termination. Because

Gokal failed to state a claim for race discrimination, the county argues, its immunity

was not waived, and therefore the trial court should have granted its plea to the

jurisdiction.

A. Direct Evidence

Harris County argues Gokal did not provide direct evidence of race

discrimination. Gokal alleged in his original petition that on the day he was fired,

“Mr. Anderson declared that Dr. Gokal did not equitably distribute the vaccine and

that Dr. Gokal gave the vaccine to too many individuals with Indian sounding

names.” He claims this comment is direct evidence of discrimination. We take as

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true Gokal’s assertion that Anderson made this comment. See Clark, 544 S.W.3d at

771. Harris County has not disputed that Anderson made the comment. Instead,

Harris County explains the comment was Anderson’s advice to Gokal as to how the

media would perceive his actions, and he expressed no discriminatory animus

toward Gokal’s race or national origin.

Applicable Law

Direct evidence of discrimination is evidence that, if believed, proves an

employer’s discriminatory animus without inference or presumption.2 Clark v.

Champion Nat’l Sec., Inc., 952 F.3d 570, 579 (5th Cir. 2020); Donaldson v. Tex.

Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st

Dist.] 2016, pet. denied). Conversely, if an inference is required to prove the

employer’s discriminatory animus, the evidence is not direct. Donaldson, 495

S.W.3d at 433. Insults or slurs against a protected class are usually direct evidence

of discrimination. Id.; see also Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores,

2

When an employee presents direct evidence of discrimination, we do not need to

apply the McDonnell-Douglas burden-shifting framework for circumstantial

evidence, discussed further below. See Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 121 (1985) (explaining that McDonnell-Douglas test is inapplicable when

plaintiff presents direct evidence of discrimination); Clark, 544 S.W.3d at 784

(explaining that burden-shifting framework is “a mechanism for proving

discriminatory intent absent direct evidence”). Instead, after an employee presents

direct evidence of discrimination, the burden of proof then shifts to the employer to

show that “legitimate reasons would have led to the same decision regardless of any

discriminatory motives.” Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290,

308 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

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612 S.W.3d 299, 313 (Tex. 2020) (explaining that “specific expressions of negativity

or animosity about a person’s . . . protected status can constitute direct evidence to

support a claim of illegal discrimination”).

A workplace comment may be evidence of direct discrimination if the

comment is: (1) related to the plaintiff’s protected class; (2) proximate in time to the

adverse employment decision; (3) made by a person with authority over the

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

Clark, 952 F.3d at 581; Donaldson, 495 S.W.3d at 433.

For example, a supervisor’s comments to a woman who was demoted, stating

she “wouldn’t be worth as much as the men would be to the bank” and “she would

be paid less because she was a woman,” were direct evidence of discrimination.

Clark, 952 F.3d at 579–80 (discussing Portis v. First Nat’l Bank of New Albany, 34

F.3d 325, 329 (5th Cir. 1994)). The comments of a casino manager who did not

promote an African-American woman to a managerial position because he did not

allow “dark skin black person[s to] handle any money at” the casino and he “thought

[the employee] was too black to do various tasks at the casino” were direct evidence

of discrimination. Id. at 580 (alterations in original) (discussing Etienne v. Spanish

Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 476 (5th Cir. 2015)). Similarly,

a casino manager’s comments that “the[y] were not going to hire a black person

unless there were extenuating circumstances” and that he had “been told not to hire

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too many blacks in the poker room” were direct evidence of discrimination against

an African-American applicant who was not hired. Id. (alteration in original)

(discussing Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)).

Analysis

Anderson’s comment, though perhaps ill-advised, is not direct evidence of

discrimination because his comment requires an inference to prove any

discriminatory animus or that Gokal’s race or national origin were factors in the

employment decision.

Anderson’s comment expressed no animus toward people “with Indian

sounding names” directly, so we must infer that Anderson did not want that group

to be vaccinated to find the comment discriminatory. In the same vein, Anderson’s

comment did not connect Gokal’s race or national origin to his termination; we must

infer that Anderson believed Gokal vaccinated people with “Indian sounding names”

because Gokal himself is South Asian and Pakistani. And while Anderson’s

comment does allow for these troublesome inferences, the comment does not

“directly and expressly link[]” Gokal’s national origin to a decisionmaker’s choice

to terminate him. See Clark, 952 F.3d at 580.

Because an inference is required for this comment to prove discriminatory

animus, the comment is not direct evidence. See Donaldson, 495 S.W.3d at 433.

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Instead, it is circumstantial. See id. We proceed to analyze Gokal’s circumstantial

evidence.

B. Circumstantial Evidence

Harris County also argues that Gokal did not prove unlawful employment

discrimination through circumstantial evidence.

Applicable Law

Because “smoking guns are hard to come by,” a plaintiff may also prove

unlawful employment discrimination with circumstantial evidence. Clark, 544

S.W.3d at 782. In that situation, courts employ the three-step McDonnell-Douglas

burden-shifting framework. See id.; see also McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–05 (1973).

In the first step, a plaintiff must produce evidence of a prima facie case of

discrimination. See McDonnell Douglas, 411 U.S. at 802. “To establish a prima facie

case of race discrimination, the employee must show that he (1) is a member of a

protected class; (2) was qualified for his position; (3) suffered an adverse

employment action; and (4) was replaced by someone outside of his protected class

or others similarly situated were treated more favorably.” Donaldson, 495 S.W.3d

at 434. If the plaintiff establishes his prima facie case, a rebuttable presumption of

discrimination arises. Clark, 544 S.W.3d at 782.

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In the second step, the burden shifts to the employer to produce a legitimate,

nondiscriminatory reason for the adverse employment action. Donaldson, 495

S.W.3d at 434. If the employer does so, the presumption of discrimination

disappears. Clark, 544 S.W.3d at 782. The employer’s burden at this stage is one of

production and involves no credibility assessment. Sandstad v. CB Richard Ellis,

Inc., 309 F.3d 893, 898 (5th Cir. 2002).

In the third step, the burden shifts back to the plaintiff to show either: (1) the

employer’s stated reason was false and a pretext for discrimination; or (2) the

employer’s stated reason, “while true, was only one reason for its conduct and

discrimination is another motivating factor.” Goudeau v. Nat’l Oilwell Varco, L.P.,

793 F.3d 470, 475 (5th Cir. 2015) (quoting Reed v. Neopost USA, Inc., 701 F.3d 434,

439 (5th Cir. 2012)); Clark, 544 S.W.3d at 782; Donaldson, 495 S.W.3d at 435.

In considering whether the plaintiff has produced evidence to demonstrate

pretext, the ultimate question is whether the plaintiff has produced sufficient

evidence to demonstrate the falsity of the employer’s stated reason, together with

the plaintiff’s prima facie case, to allow a jury to find discrimination was the reason

for his termination. Goudeau, 793 F.3d at 478. The plaintiff must produce more than

his subjective belief; he needs evidence of the stated reason’s falsity. See id.; Jones

v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 369 (5th Cir. 2021); see also Brown v.

Wal-Mart Stores E., L.P., 969 F.3d 571, 581 (5th Cir. 2020) (collecting cases in

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which evidence was sufficient to raise fact issue, including evidence such as

disparate treatment, harassment, or prior positive performance reviews). Further,

that evidence must directly address the employer’s stated reason. See Sandstad, 309

F.3d at 899 (concluding plaintiff’s evidence of pretext failed to create fact issue

when evidence failed to address employer’s stated reason for employee’s

termination).

Simply disputing whether the employer came to the correct decision in its

assessment of the employee’s performance is not enough to raise a fact issue as to

pretext. See Jones, 8 F.4th at 369 (concluding employee’s declaration that he did

follow restaurant’s recipe when employer fired him for not following recipe was

insufficient to raise fact issue as to pretext); Clark, 544 S.W.3d at 792 (concluding

employee’s denial of employer’s stated performance issues was insufficient to raise

fact issue as to pretext); McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 760

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (concluding employee’s assertion

that she did not violate code of conduct as employer stated was insufficient to raise

fact issue as to pretext). An employer can be wrong or unreasonable in its

assessment, so long as it does not act with discriminatory animus. Sandstad, 309

F.3d at 899 (stating employer “is entitled to be unreasonable” in its investigation of

employee’s conduct “so long as it does not act with discriminatory animus”); Wal-

Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003) (per curiam)

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(stating at-will employer can fire employee for any reason or no reason, just not for

illegal reason); Tex. Dep’t of State Health Servs. v. Resendiz, 642 S.W.3d 163, 179

(Tex. App.—El Paso 2021, no pet.) (noting that in considering pretext, our “focus is

not on whether the decision itself was error-free,” but on whether employer in good-

faith relied on stated reasons in making that decision). “The issue is whether the

employer’s perception of the [employee’s performance] problems—accurate or

not—was the real reason for termination.” Clark, 544 S.W.3d at 792 (emphasis

added); see also Goudeau, 793 F.3d at 476 (explaining that issue at pretext stage is

whether employer’s stated reason, “even if incorrect,” was real reason for

termination).

Similarly, an employer’s imperfect investigation into an employee’s conduct

does not raise a fact issue as to whether the employer acted in good faith in relying

on the outcome of the investigation. Resendiz, 642 S.W.3d at 179 (rejecting

plaintiff’s argument that employer did not conduct thorough investigation as

evidence of pretext because “[e]ven if there were errors in the investigation, or it

was not as thorough as [the plaintiff] would have liked,” that alone did not raise fact

issue as to pretext); McNeel, 526 S.W.3d at 760–61 (“Evidence of an imperfect or

incomplete investigation is not sufficient to raise a fact issue regarding pretext.”).

An employer’s discriminatory comment can be evidence of pretext or another

motivating factor sufficient to raise a fact issue at this stage. See Goudeau, 793 F.3d

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at 475–76. In a circumstantial-evidence case, the comment must show

“(1) discriminatory animus (2) on the part of a person that is either primarily

responsible for the challenged employment action or by a person with influence or

leverage over the relevant decisionmaker.” Id. (quoting Squyres v. Heico Cos.,

L.L.C., 782 F.3d 224, 236 (5th Cir. 2015)); see also id. at 475 (noting that in

circumstantial-evidence context, courts apply more flexible standard than in direct-

evidence context). However, we must consider the comment in context. See Squyres,

782 F.3d at 236 (explaining that employer’s comment did not show discriminatory

animus when considered in full context); Clark, 544 S.W.3d at 771, 793 (explaining

that in determining whether fact issue exists, we must consider “evidence necessary

to show context” and that “[i]gnoring context is impermissible”).

Although the burden of production shifts at each stage of the McDonnell-

Douglas analysis, the burden of persuasion always remains with the plaintiff. Clark,

544 S.W.3d at 782; Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 308 (Tex.

App.—Houston [1st Dist.] 2020, no pet.).

Each step of the McDonnell-Douglas framework is jurisdictional. See Clark,

544 S.W.3d at 783–84. Thus, to survive a plea to the jurisdiction after the employer

has produced evidence of a legitimate, nondiscriminatory reason for the adverse

employment action, the plaintiff must produce evidence of pretext or discrimination

as another motivating factor. See id.

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Analysis

Harris County argues Gokal did not establish a prima facie case of

discrimination, and even if he did, Harris County articulated a legitimate, non-

discriminatory reason for his termination. The county further argues that Gokal did

not provide evidence of pretext or discrimination as another motivating factor.

Assuming without deciding that Gokal did establish a prima facie case of

discrimination, we proceed to the second step of the McDonnell-Douglas

framework, whether Harris County produced a legitimate, nondiscriminatory reason

for terminating Gokal’s employment. See Donaldson, 495 S.W.3d at 434.

Harris County did so. Harris County’s stated reason was Gokal’s misconduct

in taking the vaccine doses off-site, to another county, and administering the doses

to his wife and other acquaintances.

In support of its stated reason, the county produced the termination letter that

Anderson had prepared before the meeting with Gokal. Anderson said that he

prepared the termination letter to give Gokal if the allegation was true that Gokal

took vaccine doses off-site. The termination letter, which Anderson gave to Gokal

during the meeting when he was fired, stated the county’s finding that Gokal “took

COVID vaccine home without permission and injected [his] friends and family,”

which caused the county “to lose faith in [Gokal’s] ability to perform [his] duties.”

Gokal has admitted that he took vaccine doses home with him and administered them

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to at-risk people, including his wife and people who were friends of his friends and

family.

The county also produced deposition testimony from McClendon, Gokal’s

direct supervisor, and Anderson, the human resources director. McClendon

confirmed that Gokal was terminated because he took at least one vial of vaccine

doses home for personal use, which was not approved by Public Health Department

leadership and could be considered theft.

Anderson stated:

[W]e wanted to give [Gokal] due process and give him a chance

to explain what happened based on the scenario that was presented by

the employee. It wasn’t until that point that once he admitted to the

scenario of him taking the vial across town, giving it to friends and

family, that we then determined that it was termination due to the

trust—the lack of trust.

Because Harris County produced a legitimate, nondiscriminatory reason for

firing Gokal, the burden shifts back to Gokal to show either: (1) Harris County’s

stated reason was false and a pretext for discrimination; or (2) the stated reason,

while true, was only one reason for his termination and discrimination was another

motivating factor. See Goudeau, 793 F.3d at 475; Clark, 544 S.W.3d at 782;

Donaldson, 495 S.W.3d at 435.

1. Falsity and Pretext of Harris County’s Stated Reason

As for the first factor, that Harris County’s stated reason was false and a

pretext for discrimination, Gokal has admitted the stated reason is true. He admitted

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he took vaccine doses off-site and administered them to his wife and friends of his

friends and family. He has not raised a fact issue as to whether Harris County’s stated

reason was false.

Nonetheless, Gokal asserts two arguments attempting to show that Harris

County’s stated reason was false and a pretext for discrimination. Even without

considering his admission, his evidence does not raise a fact issue as to whether the

stated reason is false.

a. No Policy Violation

Gokal argues that the county fired him for misconduct, which implies he

violated an established standard or policy. He claims that Harris County never

identified a specific standard he violated and that the county did not have a written

policy regarding leftover vaccine doses at the time Gokal took them; therefore, he

argues, the county’s stated reason for his termination must be false. But Harris

County did not claim that Gokal violated a specific standard or policy when he was

fired, so the fact that the county never identified a specific standard or policy is not

evidence of pretext. And although Harris County never produced evidence that it

had any kind of policy or rule against taking vaccine doses home, an at-will employer

may fire an employee for any reason, as long as the reason is not discriminatory. See

Canchola, 121 S.W.3d at 740.

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Gokal argues Harris County has attempted to articulate multiple after-the-fact

justifications for his firing, which he claims are all evidence of pretext. However,

the county has never abandoned its original explanation that Gokal was fired for

taking vaccine doses home. The evidence of these shifting justifications Gokal cites

either does not address the reason for his firing or confirms that the reason for his

firing was taking the vaccine off-site without permission.

For instance, he claims the county’s first justification was that he violated a

Public Health Department policy, but discovery showed no such policy regarding

opened vaccine doses existed. But the evidence he cites for this justification is the

Harris County District Attorney’s Office Public Integrity Division Investigation

Report—not a document created by the Public Health Department or anyone

involved in the termination decision—and it states, “Mr. Anderson advised that Dr.

Gokal was terminated for policy violation. Mr. Anderson stated that a specific policy

number was not listed in the termination letter, only that the letter stated that Dr.

Gokal took something that wasn’t his and gave it to friends and family.” This

confirms that Harris County did not terminate Gokal’s employment for violating a

specific policy but for taking the vaccine doses home with him, which was Harris

County’s stated reason.

Gokal claims the county’s next justification was that it had a verbal policy or

oral understanding, and he cites McClendon’s deposition. When asked whether the

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Office of Public Health Preparedness and Response Division had a policy on what

should be done with a vial that had been opened and was nearing expiration,

McClendon answered that, on December 29, there was no written policy but an oral

understanding. He explained the oral understanding was that if there was an opened

vial with leftover vaccine doses at the end of the day, staff should bring it back to

the main office to find people qualified to receive the vaccine. Nowhere did he say

Gokal was fired for violating this oral understanding. Later, when asked whether

there was any basis for terminating Gokal’s employment “other than the

investigation into these vaccines which Dr. Gokal allegedly took off site,”

McClendon answered, “No.”

Gokal claims the county’s next justification was its assertion that he should

have brought the vial back to the main office so people on the waiting list could

receive the vaccine doses. He does not claim that Harris County stated this was a

reason for firing him. The evidence he cites for this claim is the criminal indictment

against him for theft prepared by the Harris County District Attorney’s Office—

again, not a document created by the Public Health Department or anyone involved

in the termination decision. The indictment alleges McClendon “stated that Gokal

was a county employee at the time that he took the vaccine off-site and vaccinated

his family and friends.” It goes on to allege that McClendon “explained that any

vials that had been punctured and still contained viable doses of the vaccine were

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supposed to be brought back to the main office.” The next sentence says that

McClendon “stated that Harris County Public Health personnel are not permitted to

take vaccine doses for personal use.” The indictment does not claim Gokal was fired

for not taking the vial to the main office, but it confirms that McClendon believed

Gokal should not have taken the vial home.

Construing Gokal’s brief liberally, he also suggests that he had permission to

take the vaccine doses home. In his discrimination charge filed with the EEOC,

Gokal explained that he called Trey Frankovich, a senior analyst in the Harris

County Public Health Department, before taking the vaccine doses home. Gokal said

that he told Frankovich that he, Gokal, “was going to find individuals to give the

vaccine to,” and Frankovich responded, “OK, good.” To the extent Gokal argues he

in fact had permission to take the vaccine doses home, the record does not support

that contention. According to Gokal’s description of the phone call, he did not say

he was taking the doses home, so Frankovich’s response cannot be construed as

permission to do so. Gokal only said that he was going to find people to give the

vaccine to, which has never been the reason for his firing.

None of this evidence raises a fact issue as to whether Harris County’s stated

reason for Gokal’s termination was false or a pretext for discrimination.

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b. Compliance with State and Federal Guidelines

Gokal next argues he was complying with state and federal guidelines to avoid

wasting vaccine doses when he found people to vaccinate rather than wasting those

vaccine doses, so he did not commit any misconduct. But the sources Gokal cites do

not authorize a person to take vaccine doses home to vaccinate people, as Gokal did,

even though these sources encourage public health employees not to waste vaccine

doses.

For instance, Gokal points out that Harris County’s daily notes for December

28, 2020, state that “no one will be turned away” and that “the goal is to get everyone

vaccinated” regardless of whether they are outside the county. In context, though,

those statements read:

• “Sites will close when the lines are gone, no one will be turned away”; and

• “There will be an overlap in jurisdictions but will need to service in our

jurisdiction, if other jurisdictions want to come with us, we should take

them. The goal is to get everyone vaccinated.”

See Clark, 544 S.W.3d at 771 (explaining that in determining whether material fact

issue exists, we cannot disregard evidence necessary to show context). These

statements indicate that people who showed up at the vaccination site should be

vaccinated; they do not indicate Gokal was authorized to take vaccine doses from

the vaccination site.

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Similarly, an email from the chief state epidemiologist emphasizes the strong

encouragement to vaccinate people as quickly as possible and not waste vaccine

doses, but the email does not authorize employees to take vaccine doses from the

vaccination site. The email explained:

[W]e have also tried to make it clear that no doses of vaccine

should be wasted. So, if a site has completely vaccinated all of the 1a

population, they can feel free to vaccinate people in 1b, so that no doses

are wasted. Likewise, if all 1b people that want vaccine have been

vaccinated, then it would be ok to move onto other populations. We

want to maintain the priority groups, but we also don’t want wasted

vaccine.

The record indicates the “1a population” included health care workers and first

responders who might be exposed to COVID-19 through their work as well as

residents of long-term health care facilities, and the 1b population included people

65 years and older and people with a chronic medical condition that put them at

increased risk for severe illness from COVID-19. Gokal’s pleading, which we take

as true, explains that he could not find anyone from the 1a population at the

vaccination site to vaccinate with the leftover vaccine doses at the end of the day, so

he moved on to people in the 1b population. Harris County has not disputed that the

people Gokal vaccinated were included in the 1b population.

But the stated reason for Gokal’s termination was not vaccinating people in

the 1b population too early; the stated reason was taking vaccine doses away from

the vaccination site. See Sandstad, 309 F.3d at 899 (concluding employee’s evidence

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did not raise fact issue because it did not directly address employer’s stated reason).

Although the email encourages vaccine administrators not to waste vaccine doses,

the email says that if “a site” has completely vaccinated one group, the site can move

on to people in the next group. Nothing in this email indicates a vaccine

administrator could or should remove vaccine doses from the site to administer the

vaccines. Although there was general guidance not to waste vaccine doses, that

guidance does not support taking vaccine doses off-site, as Gokal did.

Gokal has produced evidence that he complied with state and federal

guidelines not to waste vaccine doses when he found at-risk people to receive the

vaccine doses that otherwise would have gone to waste. In other words, he produced

some evidence he did not engage in misconduct. But simply disputing an employer’s

assessment of an employee’s conduct does not raise a fact issue as to pretext. See,

e.g., McNeel, 526 S.W.3d at 760 (concluding employee’s assertion that she did not

violate code of conduct as employer stated was insufficient to raise fact issue as to

pretext). This evidence, then, fails to raise a fact issue as to whether Harris County’s

stated reason was false or a pretext.

Further, Harris County’s stated reason for his termination was taking vaccine

doses home and giving them to friends and family, not Gokal’s noncompliance with

state or federal guidelines. And while there was some tension between the guidance

not to waste vaccine doses and the guidance to vaccinate priority groups as soon as

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possible, Harris County could terminate Gokal’s employment for an incorrect

reason, just not a discriminatory reason. See Sandstad, 309 F.3d at 899 (stating

employer “is entitled to be unreasonable” in its investigation of employee’s conduct

“so long as it does not act with discriminatory animus”); Canchola, 121 S.W.3d at

740 (stating at-will employer can fire employee for any reason or no reason, just not

for illegal reason).

2. Discrimination as Another Motivating Factor

Gokal may also meet his burden at this stage by producing evidence raising a

fact issue as to whether Harris County’s stated reason for his termination was only

one reason and that discrimination was another motivating factor. See Goudeau, 793

F.3d at 475. We conclude Gokal’s evidence fails to do so.

a. Anderson’s Investigation into Patient Records

Construing Gokal’s brief liberally, Gokal argues that Anderson’s

investigation into patient records shows his discriminatory animus. According to

Gokal, after Anderson learned of the allegation that Gokal took vaccine doses home

and administered them to friends and family, Anderson “set out on [a] mission” to

find those patient records, using “patient race and national origin as a main criterion

for suspicion,” and eventually expanding the search to include records with names

that “potentially . . . looked Asian.” Anderson’s investigation identified 13 records

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of patients whom Gokal might have vaccinated, and this included some patients

whom he did not vaccinate.

But Anderson’s investigation does not raise a fact issue as to whether

discrimination was a motivating factor for Gokal’s termination, because we must

consider the context surrounding Anderson’s investigation. See Clark, 544 S.W.3d

at 771 (explaining that in determining whether material fact issue exists, we cannot

disregard evidence necessary to show context). When we do so, we conclude that

the investigation was not racially motivated as Gokal suggests. Anderson explained

that, because he did not have access to patient records, he asked another employee

to “look[] for documents that could be tied to friends and family where Dr. Gokal’s

name was there on that particular date.”

In response to the question, “Did you ever notice that there were an unusual

number of Pakistanis on these patient forms that were pulled?” Anderson answered

in his deposition: “At some point looking at the forms, I mean, it—there was some

that had indicated they were, you know, Asia Pacific Islander, and there were others

that weren’t checked at all. I think there was some familiarity with last names, so I

think they were potentially looked at as possibly being Asian or Pacific Islander.”

Anderson in no way indicated that he told the other employee to search for names

that “potentially looked . . . Asian,” as Gokal suggests.

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Instead, Anderson explained, they were looking for the particular date,

December 29, and looking for Gokal’s signature because “that would be the key

indicator that [a vaccine was administered] off-site because he wasn’t traditionally

giving them on-site.” He elaborated:

We were looking for Gokal’s name as a signature, the particular date, .

. . . And then looking at the name . . . . I mean, did we notice it? Yes, I

mean, it definitely was one thing that was an indicator, but it wasn’t the

sole—it wasn’t the sole thing we were looking at. We were looking at

the signature first because that indicated that he potentially did it off-

site.

Anderson admitted his investigation was flawed because the employee found

13 patient records that met their search criteria, but Gokal said that he only

administered 10 vaccine doses off-site. Anderson acknowledged the investigation

“wasn’t an exact science,” and that he was only “trying to do part of [his]

investigation to at least get some validity” to the allegation that Gokal took vaccine

doses home before he and McClendon met with Gokal. When asked whether, in his

investigation, he concluded that Gokal gave the vaccine doses to friends and family,

Anderson answered that yes, he did, because Gokal admitted to it.

When considered in context, Anderson’s investigation does not show he acted

with discriminatory animus. This evidence, therefore, fails to raise a fact issue as to

whether discrimination was another motiving factor for Gokal’s termination.

Even though Anderson’s investigation was flawed, the flawed investigation

does not raise a fact issue as to whether Harris County acted in good faith in relying

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on the outcome of the investigation, to the extent it did rely on the outcome. See

Resendiz, 642 S.W.3d at 179 (rejecting plaintiff’s argument that employer did not

conduct thorough investigation as evidence of pretext because “[e]ven if there were

errors in the investigation, or it was not as thorough as [the plaintiff] would have

liked,” that alone did not raise fact issue as to pretext); McNeel, 526 S.W.3d at 760–

61 (“Evidence of an imperfect or incomplete investigation is not sufficient to raise a

fact issue regarding pretext.”). And ultimately, the outcome of Anderson’s

investigation was immaterial because Gokal admitted to committing the same

conduct that Anderson’s investigation concluded he did—vaccinating friends and

family members, off-site, without permission. Thus, Anderson’s investigation does

not raise a fact issue as to whether discrimination was another motivating factor for

Gokal’s firing.

b. Anderson’s Comment in Termination Meeting

We must also consider Anderson’s comment that “Gokal did not equitably

distribute the vaccine and that Dr. Gokal gave the vaccine to too many individuals

with Indian sounding names,” which he made during the meeting in which Gokal

was fired. We have already concluded that this comment is not evidence of direct

discrimination, but we must also determine whether it is circumstantial evidence of

discrimination.

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To raise a fact issue as to whether discrimination was another motivating

factor, the comment must show “(1) discriminatory animus (2) on the part of a person

that is either primarily responsible for the challenged employment action or by a

person with influence or leverage over the relevant decisionmaker.” Goudeau, 793

F.3d at 475–76 (quoting Squyres, 782 F.3d at 236). According to Gokal, Anderson

said “that Dr. Gokal did not equitably distribute the vaccine and that Dr. Gokal gave

the vaccine to too many individuals with Indian sounding names.”

But, when considered in context, see Squyres, 782 F.3d at 236; Clark, 544

S.W.3d at 771, Anderson’s comment does not show a discriminatory animus or raise

a fact issue as to whether discrimination was a motivating factor for Gokal’s

termination.

As we discussed above, Anderson’s comment allows for the inferences that

Anderson did not want people “with Indian sounding names” to be vaccinated or

that Gokal was unduly giving preference to people with “Indian sounding names”

because Gokal was also of South Asian descent. But the context in which Anderson’s

comments were made disproves that Anderson intended either of these meanings. In

his deposition, Anderson explained:

This part about equity came after the termination discussion

when Dr. Gokal was stating that he was going to go to the media

because he wasn’t happy with his termination. . . .

I was trying to inform him that based on equity in the news, the

media was concerned with people getting doses equitably, and for

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him—for the picture of him that he presented to me, which was he took

the one dose used vial, threw it in his backpack, drove across town,

gave it to friends and family, who happened to be all of one national—

national origin or—or however you want to describe it, that might be

seen as a nonequitable distribution. . . . I didn’t want him to go out there

and start making comments that could potentially come back and hurt

him. I was trying to make him understand that he might want to think

about it . . . .

Gokal has not disputed Anderson’s description of the context in which he

made the comment. Anderson’s comment, considered in context, was only a

description of how the media might perceive Gokal’s actions and did not necessarily

reflect Anderson’s personal views; the comment, considered in context, did not show

a discriminatory animus.

Even if Anderson’s comment showed a discriminatory animus, the comment

still does not raise a fact issue as to whether discrimination was a motivating factor

for Gokal’s termination. Harris County produced evidence that McClendon decided

before the meeting in which Anderson made the comment, that if the allegation that

Gokal took vaccine doses home was true, Gokal would be fired. Anderson said that

McClendon and Sims made the decision to terminate Gokal, and they had

“predetermined” before the meeting with Gokal that if the allegation that Gokal took

vaccine doses home turned out to be true, then Gokal would be fired. Anderson said

that he came to the meeting with Gokal with the termination letter in hand, but he

was not going to give the letter to Gokal unless Gokal admitted to taking the vaccine

doses home. Thus, Harris County produced evidence that Anderson’s comment had

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no influence over the decision to terminate Gokal because the comment was made

after the decision to terminate was made.

Because Anderson’s comment, when considered in context, does not show

discriminatory animus, and even if it did, Anderson made the comment after the

decision to terminate was made, Gokal has not raised a fact issue as to whether

discrimination was another motivating factor for his termination.

***

We are not unsympathetic to Gokal’s actions. The COVID-19 pandemic

created unprecedented difficulties and ethical questions. When COVID-19

vaccinations first became available, many people were desperate to be vaccinated,

especially people who were particularly susceptible to complications from

contracting COVID-19—like the people Gokal vaccinated. Although not relevant to

our decision today, both the Harris County District Attorney’s Office and the Texas

Medical Association found no wrongdoing by Gokal. If the question before us was

whether Harris County was justified in firing Gokal for finding at-risk people to give

vaccine doses to instead of wasting those doses, we might very well come up with a

different answer than our outcome today suggests. However, that is not the question

before us. Instead, we are asked to decide whether Gokal has presented evidence that

Harris County fired him because of his race or national origin. We conclude he has

not.

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Gokal has failed to produce evidence raising an issue of material fact showing

that the county’s stated reason for terminating his employment was a pretext or that

discrimination was another motivating factor for his termination. See Goudeau, 793

F.3d at 475; Clark, 544 S.W.3d at 782. Therefore, he has not met his burden to

produce sufficient evidence under the McDonnell-Douglas framework to survive a

plea to the jurisdiction. See Clark, 544 S.W.3d at 783–84. Accordingly, the trial

court erred in denying the county’s plea to the jurisdiction. We sustain the county’s

sole issue.

Gokal has requested an opportunity to replead. However, when, as here, a plea

to the jurisdiction challenges the existence of jurisdictional facts and the evidence

fails to raise a fact question on the jurisdictional issue, we must rule on the plea to

the jurisdiction as a matter of law. See Miranda, 133 S.W.3d at 228. When the

governmental unit has asserted its immunity in the trial court and the plaintiff fails

to show facts demonstrating a waiver of immunity after having a reasonable

opportunity to amend his pleadings and conduct discovery directed to the issue, then

the plaintiff’s claims should be dismissed. See Tex. Dep’t of Crim. Just.-Cmty. Just.

Assistance Div. v. Campos, 384 S.W.3d 810, 816 (Tex. 2012) (per curiam).

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CONCLUSION

We reverse the trial court’s order denying Harris County’s plea to the

jurisdiction and render judgment dismissing Gokal’s claim for lack of jurisdiction.

Gordon Goodman

Justice

Panel consists of Justices Goodman, Landau, and Hightower.

Justice Landau, dissenting.

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