David Deville v. the University of Texas M. D. Anderson Cancer Center

Opinion issued August 26, 2021

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-19-00830-CV

———————————

DAVID DEVILLE, Appellant

V.

THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,

Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 2017-46576

OPINION

Appellant David Deville sued his former employer—The University of Texas

M.D. Anderson Cancer Center (“M.D. Anderson”)—for disability discrimination

under the Texas Commission on Human Rights Act (“TCHRA”) on the theory that

he was terminated less than three months after returning from disability leave

following a stroke. M.D. Anderson filed a plea to the jurisdiction, asserting that it

retained sovereign immunity from suit because Deville did not plead a prima facie

case of disability discrimination despite having an adequate opportunity to do so.

The trial court granted M.D. Anderson’s plea and dismissed Deville’s suit.

Deville appeals on the grounds that (1) he was not required to plead a prima

facie case at the pleadings stage in order to trigger the waiver of sovereign immunity

under the TCHRA; and (2) in the alternative, he satisfied his burden to plead a prima

facie case of disability discrimination. We hold that Deville was required to plead a

prima facie case of disability discrimination to trigger a waiver of M.D. Anderson’s

sovereign immunity, and Deville carried his pleading burden in this case. We reverse

and remand for further proceedings.

Background

Unless the party filing a plea to the jurisdiction has challenged and

conclusively negated a jurisdictional fact pled by the plaintiff, we must assume the

fact to be true for purposes of our jurisdictional analysis. See Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Jones v. City of Dallas, 310

S.W.3d 523, 529 (Tex. App.—Dallas 2010, pet. denied). Because M.D. Anderson

has not attempted to conclusively negate the facts that Deville pleaded at this

juncture, we recount the facts as Deville pleaded them.

2

M.D. Anderson hired Deville as the Director of the Financial Clearance

Center on December 7, 2015. He reported to Angela Bailey, the Executive Director.

Two weeks later, on December 21, Deville was admitted to the hospital. He suffered

a hemorrhagic stroke the following day, which required him to take disability leave

for the next three months. On March 21, 2016, Deville returned to work with

minimal restrictions on his ability to perform his job duties.

When Deville returned to work, he could perform the essential functions of

his job, but M.D. Anderson subjected him to less favorable terms and conditions of

employment. For example, Bailey did not notify Deville of changes to his

department and direct reports, went out of her way to criticize his work performance,

and excluded him from meetings with the other director and a consulting group.

On May 10, 2016, Bailey issued Deville a verbal warning regarding his work

performance, but she was vague and failed to give specific examples of problematic

performance. On May 18, Bailey issued Deville a written “probationary warning”

letter, stating that continued performance issues could result in termination of his

employment. The written warning contained no specific examples of problematic

performance. Instead, it identified duties contained in Deville’s job description and

alleged that he had not “demonstrated the ability to perform” these duties during the

eight days since Bailey’s verbal warning.

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Deville did not have an opportunity to address Bailey’s concerns. The next

day, on May 19, Deville experienced symptoms similar to those that he experienced

during his stroke, causing him to take a second medical leave until May 31, 2016.

He returned to work on June 1. M.D. Anderson terminated Deville’s employment on

June 3, 2016.

Deville sued M.D. Anderson for disability discrimination in violation of the

TCHRA.1 See TEX. LAB. CODE § 21.051. M.D. Anderson filed an answer and a plea

to the jurisdiction. M.D. Anderson asserted that it was entitled to sovereign

immunity because Deville had not alleged facts supporting the final element of a

prima facie disability discrimination claim—i.e., that he was treated less favorably

than non-disabled employees or that he was replaced by a non-disabled employee.

M.D. Anderson did not challenge the allegations that Deville was disabled or

regarded as disabled. Nor did M.D. Anderson contest any of the jurisdictional

allegations in Deville’s petition.2 Deville responded to M.D. Anderson’s plea by

1

Deville also asserted claims for retaliation and discrimination for failure to provide

reasonable accommodations under the TCHRA, see TEX. LAB. CODE §§ 21.055,

21.128(a), but he “argues only his disability discrimination claim in this appeal.”

2

M.D. Anderson attached an affidavit from Bailey to its plea but did not rely on the

affidavit or other evidence in challenging Deville’s discrimination claim. Bailey’s

affidavit summarized the sequence of events of Deville’s hiring through his

termination, stated that Deville “was not meeting [Bailey’s] expectations” for his

position despite her “feedback, coaching, and reminders regarding his performance

and [her] expectations,” and stated that it was Bailey’s decision to terminate

Deville’s employment.

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arguing that he had sufficiently “alleged that he was treated less favorably and

subjected to different terms and conditions than non-disabled employees.” Deville

also amended his petition to add new factual allegations.

In its reply, M.D. Anderson argued for the first time that “Deville must

identify a comparator” by name to whom he could compare his treatment and that

the comparator could not be himself. M.D. Anderson contended that Deville’s

pleadings relied solely on himself as a comparator and that his “[f]ailure to allege

that he was treated less favorably than non-disabled employees or that he was

replaced by non-disabled employees is fatal to his prima facie case.”

On December 7, 2017, the trial court heard oral argument on M.D. Anderson’s

plea. M.D. Anderson maintained that Deville had the burden to identify a comparator

who was treated more favorably than he was treated, but he had only identified

himself as a comparator, which was insufficient as a matter of law. Deville

acknowledged that he pleaded “that there’s a comparator” and that he “was treated

less favorably than non-disabled employees,” but he contended that, prior to

conducting discovery, “there’s no way to know the specific people that would

qualify as comparators.” He further contended that he could plead himself as his own

comparator by alleging that “he was treated less favorably after he was perceived or

actually had a disability than he was before” the disability.

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After waiting more than a year for a ruling on its plea, M.D. Anderson filed a

petition for writ of mandamus in this Court seeking to compel the trial court to rule

on its plea to the jurisdiction, and the Court conditionally granted the writ. See

generally In re Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00201-CV, 2019

WL 3418567 (Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding). The

trial court then signed an order granting M.D. Anderson’s plea to the jurisdiction and

dismissing Deville’s claims with prejudice. This appeal followed.

Plea to the Jurisdiction

In his sole issue with multiple subparts, Deville contends that the trial court

erroneously dismissed his TCHRA disability discrimination claim. He argues that

he had no obligation to plead a prima facie case of discrimination because the prima

facie requirement is an evidentiary standard, not a pleading standard. Nonetheless,

Deville argues that he did plead a prima facie case of discrimination by alleging facts

demonstrating that M.D. Anderson treated him less favorably shortly after he

became disabled (or regarded as disabled).

M.D. Anderson argues that Deville could not plead a prima facie case of

discrimination without naming a comparator employee who was treated less

favorably than Deville was treated. According to M.D. Anderson, Deville cannot

satisfy the prima facie case requirement by contrasting M.D. Anderson’s treatment

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of Deville before his hemorrhagic stroke with M.D. Anderson’s treatment of him

after his stroke.

A. Standard of Review

It is undisputed that M.D. Anderson, as a governmental entity, enjoys

sovereign or governmental immunity from suit unless the Legislature has waived its

immunity. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.

2018); see also Bansal v. Univ. of Tex. M.D. Anderson Cancer Ctr., 502 S.W.3d 347,

353 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). When the Legislature has

not waived a governmental entity’s immunity, trial courts lack subject matter-

jurisdiction over claims against the entity. Mission Consol. Indep. Sch. Dist. v.

Garcia, 372 S.W.3d 629, 636 (Tex. 2012).

A governmental entity can raise its immunity from suit in a plea to the

jurisdiction, and we review de novo the trial court’s ruling on the plea. Alamo

Heights, 544 S.W.3d at 770; Miranda, 133 S.W.3d at 228. A plea to the jurisdiction

may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo

Heights, 544 S.W.3d at 770. When, as here, a plea challenges only the pleadings,

“we determine if the plaintiff has alleged facts affirmatively demonstrating subject-

matter jurisdiction.” Id. We “construe the pleadings in favor of the plaintiff and look

to the pleader’s intent.” Harris Cty. v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018)

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(quoting Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993)).

B. The TCHRA and Its Impact on Sovereign Immunity

The TCHRA prohibits employers from discriminating against individuals

“because of” disability. TEX. LAB. CODE § 21.051. Specifically, the TCHRA

prohibits an employer, because of disability, from “discharg[ing] an individual” or

“discriminat[ing] in any other manner against an individual in connection with

compensation or the terms, conditions, or privileges of employment.” Id.

§ 21.051(1). This prohibition “applies only to discrimination because of or on the

basis of a physical or mental condition that does not impair an individual’s ability to

reasonably perform a job.” Id. § 21.105. The TCHRA waives a governmental

employer’s immunity for TCHRA claims asserted against the employer, “but only

when the plaintiff states a claim for conduct that actually violates the statute.” Alamo

Heights, 544 S.W.3d at 770.

In discrimination cases under the TCHRA, “Texas jurisprudence parallels

federal cases construing and applying equivalent federal statutes, like Title VII” of

the Civil Rights Act of 1964. Id. at 781. Because the TCHRA was enacted to

“provide for the execution of the policies embodied in Title 1 of the Americans with

Disabilities Act of 1990 and its subsequent amendments” (“ADA”), we look to

federal case law construing provisions of the ADA for guidance in construing the

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TCHRA. TEX. LAB. CODE § 21.001(3) (citing 42 U.S.C. §§ 12101–213); see 42

U.S.C. § 12112(a) (prohibiting discrimination “against a qualified individual on the

basis of disability in regard to” the “discharge of employees” and “other terms,

conditions, and privileges of employment”).

As in federal disability discrimination cases, a plaintiff may prove a TCHRA

violation by either direct or circumstantial evidence. Alamo Heights, 544 S.W.3d at

781–82. “Because smoking guns are hard to come by, the three-part McDonnell

Douglas burden shifting framework enables an employee to establish discrimination

with circumstantial evidence.” Id. at 782. This burden-shifting framework was

propounded in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and was

later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981). Under the framework, the employee bears the initial burden to establish a

prima facie case of discrimination by pleading the basic facts that make up the

elements of the claim. Mission Consol., 372 S.W.3d at 634, 637. If the employee

meets this “minimal” initial burden, he is entitled to a presumption of discrimination

that, if unrebutted, will suffice to support a finding of liability. Id. at 634. Once the

employee establishes a prima facie case of discrimination, the burden shifts to the

employer to negate or rebut the plaintiff’s prima facie case, which generally requires

evidence articulating “some legitimate, nondiscriminatory reason” for the

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employment decision. Id. (quoting McDonnell Douglas, 411 U.S. at 802); see Alamo

Heights, 544 S.W.3d at 782.

C. Analysis

M.D. Anderson’s plea to the jurisdiction argued that Deville’s undisputed

factual allegations were legally insufficient to establish the trial court’s subject-

matter jurisdiction over his disability discrimination claim. See Alamo Heights, 544

S.W.3d at 770 (stating that plea may challenge jurisdiction on pleadings alone, on

existence of jurisdictional facts, or both). M.D. Anderson attached evidence to its

plea, but it did not rely on this evidence to challenge the existence of Deville’s

jurisdictional allegations regarding his discrimination claim. Nor does M.D.

Anderson argue on appeal that its evidence negated Deville’s allegations. Because

M.D. Anderson solely challenged Deville’s pleadings, we need only determine

whether Deville’s undisputed allegations affirmatively demonstrate subject-matter

jurisdiction. Id. at 770, 783.

1. Deville’s burden to plead facts affirmatively demonstrating

subject-matter jurisdiction

Deville first argues that he was not required to plead a prima facie case of

discrimination to trigger the Legislature’s waiver of M.D. Anderson’s sovereign

immunity under the TCHRA. This argument is foreclosed many times over.

The Texas Supreme Court has held that the TCHRA waives a governmental

employer’s immunity for TCHRA claims asserted against the employer, “but only

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when the plaintiff states a claim for conduct that actually violates the statute.” Id. at

770. It is well settled that “when the Legislature conditions an immunity waiver on

the existence of a statutory violation, the elements of the violation are jurisdictional

facts.” Id. at 784.

Consequently, “a plaintiff must plead the elements of her statutory cause of

action—here the basic facts that make up the prima facie case—so that the court can

determine whether she has sufficiently alleged a TCHRA violation” and, thus,

waived the governmental employer’s immunity. Mission Consol., 372 S.W.3d at

637. When a plaintiff proceeds along the McDonnell Douglas burden-shifting

framework, “the prima facie case is the necessary first step to bringing a

discrimination claim under the TCHRA” against a governmental employer. Id. The

Texas Supreme Court did not mince words about the consequences of a plaintiff’s

failure to demonstrate a prima facie case: the plaintiff “never gets the presumption

of discrimination and never proves his claim.” Id. That “failure also means the court

has no jurisdiction and the claim should be dismissed.”3 Id.

3

Notably, this jurisdictional showing does not require evidentiary support or

implicate the last two steps of the McDonnell Douglas burden-shifting evidentiary

framework unless the employer presents evidence negating one of those basic facts

pleaded by the plaintiff. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,

770, 783 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,

637–38 (Tex. 2012).

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Deville does not analyze any of these cases. Instead, he invokes the United

States Supreme Court’s statement in Swierkiewicz v. Sorema N.A. that the “prima

facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading

requirement.” See 534 U.S. 506, 510 (2002). In Mission Consolidated Independent

School District v. Garcia, the Texas Supreme Court explained why a plaintiff

nevertheless must plead a prima facie case when asserting a TCHRA claim against

an entity with sovereign or governmental immunity:

Chapter 21 of the Labor Code waives immunity from suit only when

the plaintiff actually states a claim for conduct that would violate the

TCHRA. The section waiving immunity from suit, Section 21.254,

provides that after satisfying certain administrative requirements, “the

complainant may bring a civil action.” A “complainant” is defined in

the TCHRA as “an individual who brings an action or proceeding under

this chapter.” Thus, . . . it necessarily follows that a plaintiff must

actually “bring[] an action or proceeding under this chapter” in order to

have the right to sue otherwise immune governmental employers.

372 S.W.3d at 637 (internal citations omitted).

To give effect to this statutory text, the plaintiff “must plead the elements of

her statutory cause of action—here the basic facts that make up the prima facie

case—so that the court can determine whether she has sufficiently alleged a TCHRA

violation . . . .” Id. This inquiry “is necessary because if TCHRA plaintiffs were

allowed to stand on talismanic allegations alone, the constraining power of pleas to

the jurisdiction would be practically eliminated.” Id. at 638.

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Thus, we conclude that Deville was required to plead facts establishing a

prima facie case of disability discrimination in order to demonstrate the trial court’s

subject-matter jurisdiction over his discrimination claim against M.D. Anderson.

2. Deville’s prima facie discrimination claim

Deville argues in the alternative that he satisfied his burden to plead a prima

facie case of discrimination. M.D. Anderson responds that Deville could not carry

his burden of alleging a prima facie case of disability discrimination without

pleading that he was treated less favorably than non-disabled employees or that he

was replaced by non-disabled employees. According to M.D. Anderson, Deville

could not satisfy his pleading burden by alleging that his supervisor treated him less

favorably after he returned to work following his stroke than he was treated before

he became disabled. Rather, M.D. Anderson contends that Deville was required to

identify a specific employee comparator in his pleadings.

Initially, M.D. Anderson assumes that a prima facie discrimination showing

always has four elements: (1) the plaintiff is disabled or regarded as disabled; (2) he

is qualified for the job; (3) he was subjected to an adverse employment action on

account of his disability; and (4) he was replaced by or treated less favorably than

non-disabled employees. See Donaldson v. Tex. Dep’t of Aging & Disability Servs.,

495 S.W.3d 421, 434 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). But

“[c]ourts have recognized the flexibility inherent in the McDonnell Douglas formula

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and that the precise elements of a prima facie case will vary depending on the

circumstances.” Id. at 436. The “precise requirements of a prima facie case can vary

depending on the context and were ‘never intended to be rigid, mechanized, or

ritualistic.’” Swierkiewicz, 534 U.S. at 512 (quoting Furnco Constr. Corp. v. Waters,

438 U.S. 567, 577 (1978)).

The fourth element—that a plaintiff was treated less favorably than or

replaced by a non-disabled employee—is not universal. In E.E.O.C. v. LHC Group,

Inc., the Fifth Circuit declined to require such pleadings or proof in an ADA

disability termination case. 773 F.3d 688, 695–97 (5th Cir. 2014) (stating that

requiring employees to prove termination was because of disability and to prove

disfavored treatment requires employees to prove causation twice, which is

inconsistent with McDonnell Douglas and underlying purpose of anti-discrimination

legislation—“namely, to remove ‘artificial, arbitrary, and unnecessary barriers to

employment when the barriers operate invidiously to discriminate on the basis of

racial or other impermissible classification’”) (quoting McDonnell Douglas, 411

U.S. at 801). The court stated that the “requirement that a plaintiff prove she was

replaced by or treated less favorably than non-disabled employees was likely

imported from McDonnell Douglas—a case focused on discriminatory hiring, not

termination.” Id. at 695. The court explained:

In the McDonnell Douglas context, where the employer and the

applicant have only a handful of interactions before the allegedly

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discriminatory hiring decision is made, the subsequent history of the

open position is highly relevant to a finding of discrimination. By

contrast, where termination is at issue, plaintiffs may draw on their

employment history to prove a nexus between their protected trait and

their termination. Therefore, rather than articulating the standard for a

prima facie discriminatory-discharge claim, the [requirement that a

plaintiff prove she was replaced by or treated less favorably than non-

disabled employees] is best understood as providing one possible way

to prove nexus between the employee’s disability and her termination.

Id. at 696.

The court went on to hold that a plaintiff could establish a prima facie case of

disability discrimination simply by proving that (1) she has a disability; (2) she is

qualified for the job she held; and (3) she was “subject to an adverse employment

decision on account of her disability.” Id. at 697 (quoting Zenor v. El Paso

Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). In so holding, the court

noted that “the other circuits have overwhelmingly required plaintiffs to prove their

termination was because of their disability rather than provide evidence of disfavored

treatment or replacement.” Id. at 696 (citing Demyanovich v. Cadon Plating &

Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014), Smothers v. Solvay Chems., Inc.,

740 F.3d 530, 544 (10th Cir. 2014), Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055,

1060 (7th Cir. 2014), McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013),

Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 (1st Cir. 2012), and Reynolds v.

Am. Nat’l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012)).

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Applying these authorities, we conclude that Deville was not required to

identify a non-disabled employee who was treated more favorably than he was treated

in order to plead a prima facie case. Cf. Palasota v. Haggar Clothing Co., 342 F.3d

569, 575 (5th Cir. 2003) (holding that, under federal Age Discrimination in

Employment Act, “[t]reating younger workers more favorably is not the only way to

prove age discrimination”). Instead, Deville pleaded an amalgam of other facts—

particularly the suspicious timing of his disciplinary write-up and termination—that

can give rise to an inference of discrimination when taken together. See Cruz v.

R2Sonic, LLC, 405 F. Supp. 3d 676, 692 (W.D. Tex. 2019) (“Cruz has introduced

countervailing evidence that she was in fact fired on account of her disability. First,

there is the timing.”) (internal citations omitted).

Here, less than two months elapsed between the time that Deville returned to

work following his medical leave from a stroke and Bailey’s first verbal warning to

him. Deville was then given less than a week to course correct before Bailey issued

him a written warning threatening termination of his employment, in part based on

his failure to demonstrate an “ability to perform” duties contained in his job

description in the mere eight days since her verbal warning. Deville was then

terminated only two days after his second medical leave. All told, Deville was fired

less than three months after returning to work from his first leave. All the while, he

was no longer permitted to attend meetings with Bailey and the other director and

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consultants when he was in the office, he was not notified of changes to his

department, and his work performance was criticized.

M.D. Anderson has not put forth evidence disputing Deville’s allegations, so

we must take them as true. His allegations raise a permissible inference of

discrimination. In cases where an employee becomes disabled or regarded as disabled

after hiring, courts have credited evidence that an employer suddenly started treating

the employee less favorably than before the disability came to light.4 See E.E.O.C. v.

Chevron Phillips Chem. Co., LP, 570 F.3d 606, 623–24 (5th Cir. 2009) (stating that

jury could reasonably find that management immediately reacted to announcement

of employee’s disability recurrence and need for medical leave by looking for reasons

to fire her because of her disability, accommodation request, or both); Cruz, 405 F.

Supp. 3d at 693 (“If her disability had nothing to do with her termination, why was

she fired two months after returning to work full-time despite never being formally

reprimanded in 18 months before her injury?”); Donaldson v. Trae-Fuels, LLC, No.

3:18CV00097, 2019 WL 6646735, at *9, 11 (W.D. Va. Dec. 5, 2019) (crediting proof

4

Courts have largely conducted this analysis without referring to the plaintiff as his

own comparator. By describing Deville’s allegations as “alleging oneself as one’s

comparator,” M.D. Anderson attempts to fit a square peg into a round doctrinal hole.

For the reasons that the Fifth Circuit gave in E.E.O.C. v. LHC Group, Inc., Deville

can make his prima facie case using proof of his disparate treatment before and after

the discovery of his disability. See 773 F.3d 688, 695–97 (5th Cir. 2014). Using a

comparator is just one option for proving a disability discrimination claim, and

Deville need not utilize it. This conceptual mismatch likely explains the alleged

“rarity” of the argument that a plaintiff can use himself as his own comparator.

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that plaintiff “was terminated three months after he was diagnosed with pancreatic

cancer and one month after he began chemotherapy”); Meinelt v. P.F. Chang’s China

Bistro, Inc., 787 F. Supp. 2d 643, 653 (S.D. Tex. 2011) (denying summary judgment

in part based on “temporal coincidence” of firing employee three days after employee

disclosed his tumor to employer); Schrack v. R+L Carriers, Inc., No. 1:10cv603,

2012 WL 2309365, at *13 (S.D. Ohio June 18, 2012) (concluding that “close

temporal proximity” between employee’s initial termination immediately after

employer first learned of disability and second termination after attempting to return

from medical leave when symptoms were under control as well as evidence

suggesting that employee’s medical condition played role in termination decision

sufficed to establish prima facie case). Here, the brief window between Deville’s

return from medical leave and his termination makes this case similar to Cruz v.

R2Sonic, LLC and Donaldson v. Trae-Fuels, LLC.

M.D. Anderson cites no Texas precedent to the contrary.5 In a previous case to

which M.D. Anderson was also a party, this Court held that M.D. Anderson retained

sovereign immunity from a nurse’s age-discrimination suit. See Univ. of Tex. M.D.

Anderson Cancer Ctr. v. Valdizan-Garcia, No. 01-12-00386-CV, 2012 WL 5545783,

5

Both parties cite to Hart v. City of Austin, No. 03-99-00216-CV, 2000 WL 1228633

(Tex. App.—Austin Aug. 31, 2000, no pet.) (mem. op, not designated for

publication). Hart is an unpublished opinion that predates January 1, 2003, and thus

has no precedential value. See TEX. R. APP. P. 47.7(b).

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at *5 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012, no pet.) (mem. op.). There, we

found that the plaintiff could not “establish a prima facie case of discrimination

without evidence, or even an allegation, that younger nurses were disciplined

differently for deficient patient care.” Id. But in that case, the nurse’s discrimination

claims were based solely on her own subjective beliefs. Id. at *4–5. The nurse did not

allege that her employer discovered her age only after she had been hired and

promptly terminated her thereafter.

M.D. Anderson also invokes Texas Department of Aging & Disability Services

v. Loya, which held that an employee had not produced any evidence that she was

treated less favorably than similarly situated males. 491 S.W.3d 920, 925 (Tex.

App.—El Paso 2016, no pet.). But that was not the end of the matter. The court went

on to consider whether other alleged facts could raise a “reasonable inference” of

gender-based discrimination, found the remaining allegations lacking in probative

value, and reversed the trial court’s order denying the Department’s plea to the

jurisdiction. Id. The court did not cut off every avenue to a prima facie case except a

comparator.

Jespersen v. Sweetwater Ranch Apartments is distinguishable as well. See 390

S.W.3d 644 (Tex. App.—Dallas 2012, no pet.). There, the court considered

Jespersen’s claim that her employer discriminated against her based on pregnancy by

replacing her with a non-pregnant woman. Id. at 648–51, 654–55. Jespersen did not

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argue that she was treated differently after becoming pregnant than before becoming

pregnant, and the court did not mention the issue. See id. at 654–55. The court stated

only that she did not “produce any evidence that she was replaced by someone outside

of her protected class or others similarly situated were treated more favorably” than

she was treated. Id. at 655. The court also found that, even if Jespersen had

established a prima facie case, her employer had articulated legitimate, non-

discriminatory reasons for not reinstating her employment. Id.

Here, Deville alleged what Jespersen did not: that he was treated less favorably

after becoming disabled than he had been treated before becoming disabled.

Moreover, because M.D. Anderson did not rely on evidence supporting its

jurisdictional challenge and did not articulate a legitimate, non-discriminatory reason

for terminating Deville, the burden never switched to Deville to produce any evidence

proving his less favorable treatment. See Alamo Heights, 544 S.W.3d at 783.

In sum, we reaffirm that the elements of a prima facie discrimination claim are

flexible, not a body cast. Deville’s allegations of his less favorable treatment upon

his return to work and his termination shortly thereafter are sufficient to raise a

presumption of disability-based discrimination. Construing the pleadings in Deville’s

favor and looking to his intent in pleading, as we must, we conclude that Deville has

alleged basic facts allowing an inference that he was subjected to an adverse

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employment decision because of his disability. See Annab, 547 S.W.3d at 612–13;

Alamo Heights, 544 S.W.3d at 770. We sustain Deville’s issue.

Conclusion

We reverse and remand for further proceedings consistent with this opinion.

April L. Farris

Justice

Panel consists of Justices Kelly, Guerra, and Farris.

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