Texas Southmost College v. Linda Hernandez

NUMBER 13-21-00454-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

TEXAS SOUTHMOST COLLEGE, Appellant,

v.

LINDA HERNANDEZ, Appellee.

On appeal from the 445th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Peña

Memorandum Opinion by Justice Benavides

In this employment dispute, appellee Linda Hernandez filed suit against appellant

Texas Southmost College (“TSC”) for retaliation and gender and age discrimination. The

trial court denied TSC’s plea to the jurisdiction, and on appeal, TSC maintains that it is

immune from Hernandez’s claims. We affirm in part and reverse and render in part.

I. BACKGROUND

A. Hernandez’s Employment History with TSC

In 2014, TSC hired Hernandez as a speech instructor. Hernandez’s employment

contract was renewed on a yearly basis. According to her live pleading, Hernandez had

never been disciplined, reprimanded, or suspended during her employment, and she

received an evaluation of “satisfactory” for her performance during the 2017–2018

academic year.

B. Hernandez’s Role as TSC Faculty Senate President

During the same academic year, Hernandez served as the TSC Faculty Senate

President. According to its constitution, the purpose of the TSC Faculty Senate is to

represent faculty interests and make recommendations to TSC administration. Among its

objectives, the members of TSC Faculty Senate “[w]ork as agents to negotiate and

represent the well-being of the faculty membership.” Hernandez’s duties as TSC Faculty

Senate President included acting “as liaison between the faculty and the college

administration.” The constitution further provides that “recommendations made by the

Faculty Senate will be transmitted by the President of the Faculty Senate to the President

of the College, the Vice President for Academic Affairs, or other administrative personnel.”

However, “[i]n the event that no resolution to a specific issue occurs, the Faculty Senate

may bring the matter before the Board of Trustees.”

C. Relevant TSC Policies

TSC has an employee grievance policy that details the necessary steps for

presenting employment-related complaints. However, the grievance policy does not apply

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to discrimination or retaliation complaints. Rather, such complaints are governed by

TSC’s “Freedom from Discrimination, Harassment, and Retaliation” policy (“Anti-

Discrimination Policy”), which “addresses discrimination, harassment, and retaliation

involving [TSC] employees.” The Anti-Discrimination Policy states that “[a]n employee

who believes that he or she has experienced prohibited conduct or believes that another

employee has experienced prohibited conduct should immediately report the alleged

acts.” An employee may report their concerns to their immediate supervisor, the Title IX

coordinator, or the TSC President.

Among other conduct, the Anti-Discrimination Policy “prohibits retaliation against

an . . . employee who, in good faith, makes a report, serves as a witness, or otherwise

participates in an investigation.” The policy lists “refusal to hire” as an example of

retaliation. The policy also provides that “[a]n employee who intentionally makes a false

claim . . . regarding harassment or discrimination [will be] subject to appropriate

discipline.”

The Anti-Discrimination Policy permits TSC to engage a third party, such as an

attorney, to formally investigate a complaint. The third-party investigator is required to

prepare a written report and submit it to TSC. Finally, the policy states that “[t]o the

greatest extent possible, [TSC] shall respect the privacy of the complainant, persons

against whom a report is filed, and witnesses”; however, “[l]imited disclosures may be

necessary in order to conduct a thorough investigation and comply with applicable law.”

D. Hernandez’s Allegations of Discrimination, Harassment, and Retaliation

On January 4, 2018, Hernandez, acting in her capacity as TSC Faculty Senate

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President, sent the following text message to a member of the TSC Board of Trustees:

I will be calling a vote of no confidence before the board for key

administrators who have many times impeded on the matters of shared

governance by faculty and who have also acted criminally concerning

dismissal of faculty and staff. I would like to meet with the board so this

matter doesn’t side swipe you, and so you understand the severity of

immediate dismissal of such individuals once I call for the vote of no

confidence. On another note, I hope you’re having a wonderful Christmas

with family.

On January 8, 2018, Hernandez, again acting in her capacity as TSC Faculty

Senate President, sent a lengthy email to TSC President Jesus Rodriguez and Vice

President of Instruction Joanna Kile with the subject line, “Vote of no confidence.” In what

would later become a source of contention between the parties, Hernandez also copied

seven TSC Faculty Senate members and one TSC Staff Senate member on the email.

The email begins with Hernandez acknowledging that she “already alerted a board

member that a vote of no confidence on key administrators would be called before the

board.” Hernandez then identified Lissa Frausto and Angelica Fuentes as the

administrators in question and generally alleged that they had engaged in “repeated

patterns concerning forced resignations . . . [and] other severe instances.” Hernandez

then recounted instances where Frausto, Fuentes, or both allegedly mistreated a former

staff member, two former faculty members, and two current faculty members, including

herself.

Many of the allegations in the email did not concern conduct that is unlawful. For

example, Hernandez complained that Fuentes is vindictive, and thus, faculty are not free

to express dissenting opinions because Fuentes may “retaliate” against them. Hernandez

also complained about a lack of shared governance between TSC administration and

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faculty. However, other allegations in the email did raise concerns about age and gender

discrimination against former and current faculty members, as well as a former staff

member. None of the allegations Hernandez made about her personal experiences with

Frausto or Fuentes concerned unlawful conduct.

E. TSC Hires a Third-Party to Investigate Hernandez’s Complaints

Consequently, TSC engaged attorney Bernardo Garza to investigate Hernandez’s

allegations. On May 17, 2018, Garza issued a written report detailing his investigation,

including the interviews he conducted with Hernandez, Fuentes, and Frausto, as well as

various other administrators, faculty, and staff. Garza ultimately found “[n]o evidence” of

discrimination, harassment, or retaliation based on protected activities.

F. TSC Decides Not to Renew Hernandez’s Contract

Vice President Kile initially recommended the renewal of Hernandez’s employment

contract for the 2018–2019 academic year. However, upon reviewing Garza’s report, Kile

changed her recommendation. In a June 1, 2018 email to President Rodriguez, Kile

explained that, “Based on the results of the investigative report and [Hernandez’s]

exposure of the institution to potential liability, I do not recommend her contract be

renewed.” President Rodriguez accepted Kile’s new recommendation, and Hernandez

was informed on June 27, 2018, that her contract would not be renewed.

Hernandez initiated TSC’s formal grievance process, challenging the decision not

to renew her contract. Frausto presided over the hearing and issued a written decision

denying Hernandez’s grievance. In the decision, Frausto explained that the issues raised

in Hernandez’s January 8 email “were not within the explicit purview of the Faculty

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Senate.” Frausto also found that by copying other senators on the email, Hernandez

“failed to consider the privacy and property rights of those named in the email.” According

to Frausto, those individuals copied on the email “had no reason to have that kind of

information,” and by disclosing the allegations without the consent of those accused of

wrongdoing, Hernandez had “exposed [TSC] to liability.” Finally, Frausto cited Garza’s

findings that no unlawful conduct occurred.

G. Trial Court Proceedings

After receiving her right-to-sue letter from the Texas Workforce Commission,

Hernandez timely filed suit for wrongful termination, generally alleging claims of age and

gender discrimination, as well as retaliation for engaging in protected activities.

TSC filed a general denial. Several months later, TSC filed a business records

affidavit, along with eighty-four pages of records, and an additional affidavit from Frausto

explaining TSC’s decision not to renew Hernandez’s contract: “The grounds for the non-

renewal included that Ms. Hernandez made unsubstantiated allegations of purported

improper, criminal and tortious conduct by employees of [TSC] and published such

allegations to multiple other employees of [TSC] via a college email account.”

TSC subsequently filed a plea to the jurisdiction, arguing that Hernandez could not

establish a prima facie case for any of her claims and that TSC had legitimate,

nondiscriminatory, nonretaliatory reasons for not renewing her contract. TSC submitted

eight exhibits in support of its plea, including copies of Hernandez’s January 8 email to

President Rodriguez, Garza’s written report, an affidavit from President Rodriguez, and

records pertaining to the person TSC allegedly hired to replace Hernandez.

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Hernandez filed a response in opposition to the plea and attached eighteen

exhibits to the response, including portions of deposition transcripts, copies of the TSC

Faculty Senate Constitution, and Hernandez’s sworn declaration. In that declaration,

Hernandez made the following statements in support of her age and gender

discrimination claims:

I was replaced by Samantha Duque. She assumed the majority of my

classes in the Fall of 2018. She is over 12 years younger than me and was

under 40 years of age at the time that my contract was non-renewed. I was

over 40 years old at the time my contract was non-renewed.

....

I am an outspoken female. Because of this, Dr. Rodriguez would talk down

to me and demean me. He treated outspoken males better than me. One of

those males was Blas Breceda[,] who was also [a member of] Faculty

Senate. [Breceda] almost got into a fist fight with Dr. Rodriguez[,] and he

was not terminated.

Hernandez also amended her petition by elaborating on the factual basis of her claims.

After conducting a hearing, the trial court denied TSC’s plea. This interlocutory

appeal ensued. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

II. STANDARD OF REVIEW & APPLICABLE LAW

Subject matter jurisdiction is essential to a court’s authority to decide a case. In re

Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (original proceeding) (per curiam) (citing Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial

court has subject matter jurisdiction is a question of law we review de novo. Sampson v.

Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

Sovereign immunity is a common-law doctrine that protects the State and its

agencies from lawsuits for money damages and deprives a trial court of subject matter

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jurisdiction over the plaintiff’s claims. Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 655 & n.2 (Tex. 2008) (“Garcia I”). Governmental entities in Texas generally

enjoy immunity from suit unless the Legislature has expressly waived their immunity by

statute. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002).

“A plaintiff has the burden to affirmatively demonstrate the trial court’s jurisdiction.”

Town of Shady Shore v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (citing Heckman v.

Williamson County, 369 S.W.3d 137, 150 (Tex. 2012)). Accordingly, when a plaintiff sues

a governmental entity, they must allege facts that fall within a legislative waiver of

immunity. Id. (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). A

governmental defendant may challenge the trial court’s jurisdiction by attacking the

plaintiff’s pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep.

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

Whether a plaintiff has sufficiently pleaded a waiver of immunity is a question of

law we review de novo. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d

922, 927 (Tex. 2015) (per curiam) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004)). In reviewing the plaintiff’s pleadings, we accept as true the

facts alleged, construe the pleadings liberally, and look to the plaintiff’s intent. See

Miranda, 133 S.W.3d at 226.

When a defendant challenges the existence of jurisdictional facts, the analysis

“mirrors that of a traditional summary judgment.” Tex. Dep’t of Transp. v. Lara, 625

S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372

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S.W.3d 629, 634 (Tex. 2012) (“Garcia II”)). As such, we take as true all evidence favorable

to the nonmovant, indulging every reasonable inference and resolving any doubts in their

favor. Id. (citing Alamo Heights, 544 S.W.3d at 771). Once a governmental entity

establishes the absence of a jurisdictional fact, the burden shifts to the plaintiff to raise a

genuine issue of material fact for the jury to resolve; otherwise, the trial court should rule

on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228.

The Texas Commission on Human Rights Act (TCHRA) prohibits employers from

discriminating against employees based on “race, color, disability, religion, sex, national

origin, or age.” TEX. LAB. CODE ANN. § 21.051. The TCHRA also prohibits employers from

retaliating against employees for engaging in certain protected activities, such as

opposing discriminatory practices, reporting discrimination, or participating in an

investigation. Id. § 21.055. The TCHRA waives a governmental employer’s immunity from

suit for violations under the act. Alamo Heights, 544 S.W.3d at 770 (citing Garcia II, 372

S.W.3d at 637); see TEX. LAB. CODE ANN. § 21.254 (permitting an employee to “bring a

civil action against” their employer).

Because the TCHRA was modeled after federal statutes, Texas courts are guided

by federal precedent interpreting those statutes. Lara, 625 S.W.3d at 52 (citing Garcia II,

372 S.W.3d at 634). Violations of the TCHRA can be established with either direct or

circumstantial evidence, and for cases based on circumstantial evidence, Texas courts

employ the three-part McDonnell Douglas burden-shifting framework. Alamo Heights, 544

S.W.3d at 781–82 (first citing Garcia II, 372 S.W.3d at 634; and then citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). First, the employee must

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establish a prima facie case, which gives rise to a rebuttable presumption that a statutory

violation occurred. Id. at 782 (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,

252–54 (1981)). The employer may then rebut this presumption by producing evidence

of a legitimate, nondiscriminatory reason for the disputed employment action. Id. (citing

Burdine, 450 U.S. at 254–55). “Once rebutted, the presumption disappears, and an

employee lacking direct evidence cannot prove a statutory violation without evidence that

the employer’s stated reason is false and a pretext for discrimination.” Id. (citing Burdine,

450 U.S. at 255–56). Each step of the McDonnell Douglas analysis is jurisdictional in

nature. Id. at 783.

However, when direct evidence of discrimination or retaliation exists, the

McDonnell Douglass burden-shifting framework is not implicated. Democratic Schs.

Rsch., Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.—Houston [1st Dist.] 2020, no pet.)

(citing Garcia II, 372 S.W.3d at 634). “Direct evidence of discrimination is evidence that,

if believed, proves the fact of discriminatory animus without inference or presumption.” Id.

at 307 (quoting Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421,

433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)). “In both direct- and

circumstantial-evidence cases, the burden of persuasion remains at all times with the

employee.” Alamo Heights, 544 S.W.3d at 782 (citing Burdine, 450 U.S. at 253).

III. ANALYSIS

The parties agree that TSC is a governmental entity generally entitled to immunity

and that Hernandez suffered an adverse employment action when her contract was not

renewed. TSC argues, however, that Hernandez cannot establish other prima facie

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elements of her claims and that it had legitimate, nondiscriminatory, nonretaliatory

reasons for not renewing her contract. We conclude that the record contains direct

evidence of retaliation but that Hernandez failed to establish prima facie cases of age and

gender discrimination.

A. Defining the Jurisdictional Record on Appeal

As a preliminary matter, we must determine the scope of the jurisdictional record

on appeal. Hernandez contends that we should not consider any jurisdictional evidence

submitted by TSC because, unlike Hernandez, TSC failed to have its supporting

documents “admitted” into evidence during the jurisdictional hearing. Hernandez notes

that, upon her request, the trial court “admitted” the same eighteen exhibits attached to

her response, while “TSC offered no evidence at the hearing.”

As previously mentioned, when a defendant challenges the existence of

jurisdictional facts, the analysis “mirrors that of a traditional summary judgment.” Lara,

625 S.W.3d at 52 (quoting Garcia II, 372 S.W.3d at 634). Therefore, “[t]he trial court is

allowed to conduct a hearing on a plea to the jurisdiction or motion to dismiss for lack of

jurisdiction in a manner similar to how it hears a summary judgment motion, and may

consider affidavits and other summary judgment-type evidence.” FKM P’ship v. Bd. of

Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 628 (Tex. 2008) (citing Miranda, 133

S.W.3d at 227). In fact, when subject matter jurisdiction is in play, “the trial court must

consider relevant evidence submitted by the parties.” Miranda, 133 S.W.3d at 227

(emphasis added) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000)).

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Of course, in summary judgment practice, the parties are required to file their

evidence in advance of any summary judgment hearing, just as the parties did here. See

TEX. R. CIV. P. 166a(c). We are aware of no authority requiring a party to take the

additional step of asking the trial court to “admit” previously submitted summary judgment

evidence. If a party seeks to exclude their opponent’s summary judgment evidence, they

must object and obtain a ruling from the trial court. Seim v. Allstate Tex. Lloyds, 551

S.W.3d 161, 164 (Tex. 2018) (per curiam) (first citing Mansions in the Forest, L.P. v.

Montgomery County, 365 S.W.3d 314, 317 (Tex. 2012) (per curiam); and then citing TEX.

R. APP. P. 33.1(a)(2)); see also TEX. R. CIV. P. 166a(f) (“Defects in the form of affidavits

or attachments will not be grounds for reversal unless specifically pointed out by objection

by an opposing party with opportunity, but refusal, to amend.”). Otherwise, the trial court

will make its decision based on the summary judgment record “on file at the time of the

hearing.” TEX. R. CIV. P. 166a(c).

Here, TSC previously filed a business records affidavit and a notice of its intent to

use the attached records. TSC then attached eight additional exhibits to its plea to the

jurisdiction and referred to both sets of evidence in its plea. Hernandez failed to object to

any of TSC’s evidence, and thus, the trial court was required to consider the evidence

submitted by both parties. See Miranda, 133 S.W.3d at 227; Seim, 551 S.W.3d at 164.

Accordingly, we will consider the entire jurisdictional record in our analysis and now turn

to the merits of the appeal. See Miranda, 133 S.W.3d at 227.

B. The Record Contains Direct Evidence of Retaliation

To establish a retaliation claim, the employee must show (1) she engaged in a

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protected activity under the TCHRA, (2) she experienced a material adverse employment

action, and (3) a causal link exists between the protected activity and the adverse action.

Alamo Heights, 544 S.W.3d at 782. TSC contends that the jurisdictional evidence negates

the first and third elements of Hernandez’s retaliation claim. Hernandez responds that the

record contains direct evidence of retaliation. We agree with Hernandez.

As to the first element, TSC argues that Hernandez’s email to President Rodriguez

was not a protected activity.1 To support its argument, TSC selectively quotes portions of

the email where Hernandez raised issues not related to discriminatory practices, such as

shared governance. However, TSC ignores other portions of the email where Hernandez

plainly alleged that Frausto and Fuentes had engaged in age and gender discrimination,

saying, for example, that two past faculty members were “older individuals” who “should

not fear retaliation based on age” and that a current faculty member “falls under a

protect[ed] class concerning harassment as defined by the EEOC.” See City of Waco v.

Lopez, 259 S.W.3d 147, 151 (Tex. 2008) (making an internal complaint about

discriminatory practices is a protected activity under the TCHRA).

Indeed, TSC retained Garza to investigate Hernandez’s claims in accordance with

its Anti-Discrimination Policy. Conversely, TSC’s grievance policy, which specifically

excludes complaints made under the Anti-Discrimination Policy, does not contemplate

hiring a third-party investigator and provides a completely different process for addressing

general faculty complaints. And while Garza commented on other employment practices

1 In its brief, TSC does not address Hernandez’s text message to a TSC board member or her

participation in Garza’s investigation, both of which she alleges are additional protected activities under the

TCHRA. See TEX. LAB. CODE ANN. § 21.055.

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in his report, he also addressed “the more serious allegations that prompted [the]

investigation,” ultimately concluding that “[n]o evidence has been presented of sexual

harassment or harassment because of an individual’s race, color, age, gender religion,

disability or other protected class affiliation.” Thus, contrary to its position on appeal, TSC

clearly understood that Hernandez was reporting what she believed to be discriminatory

conduct.2 We conclude that the January 18 email constitutes evidence of a protected

activity under the TCHRA. See TEX. LAB. CODE ANN. § 21.055.

TSC also argues that the evidence establishes the absence of a causal link

between Hernandez’s email and TSC’s decision not to renew her contract. The Supreme

Court of Texas has not decided the appropriate causation standard for a TCHRA

retaliation claim. Alamo Heights, 544 S.W.3d at 783. The high court has assumed, without

deciding, that a plaintiff must demonstrate but-for causation, so we will do the same. See

id.

It is undisputed that TSC intended to renew Hernandez’s contract until Garza

issued his report. In other words, any concerns TSC had about the way Hernandez

reported her allegations were not sufficient to cause the nonrenewal of her contract.

Instead, by its own words, TSC changed its decision because Garza investigated

Hernandez’s complaints of discrimination and determined that they lacked merit. See

2 TSC does not contest whether Hernandez’s beliefs were “reasonable” under the circumstances.

See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015) (“[T]o establish an employee

opposed a discriminatory practice, the employee must demonstrate a good-faith, reasonable belief that the

underlying discriminatory practice violated the TCHRA.” (citing Turner v. Baylor Richardson Med. Ctr., 476

F.3d 337, 348 (5th Cir.2007))). Viewing the record before us in the light most favorable to Hernandez, we

cannot say at this point that Hernandez did not have “a good-faith, reasonable belief” that Frausto and

Fuentes violated the TCHRA. See id.

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Rock, 608 S.W.3d at 307 (“[A]n employee can prove discriminatory or retaliatory intent by

direct evidence of what the employer did and said.” (citing Garcia II, 372 S.W.3d at 634)).

TSC argues that its decision was motivated by the results of Garza’s investigation,

not the protected activity itself. However, “[r]etaliation claims can be actionable under the

TCHRA even if the underlying discrimination claim is not.” Alamo Heights, 544 S.W.3d at

781; Vadie v. Miss. State Univ., 218 F.3d 365, 374 n.24 (5th Cir. 2000) (“There is no

requirement that a plaintiff must prevail on any underlying claim of intentional

discrimination in order to prevail on a claim of retaliation.”); see also Lewis v. Lowe’s

Home Ctrs., Inc., No. 13-12-00629-CV, 2014 WL 2937010, at *3 (Tex. App.—Corpus

Christi–Edinburg June 26, 2014, no pet.) (mem. op.) (requiring an employee to prove

actual discrimination to prevail on a retaliation claim would have a “chilling [effect on] the

legitimate assertion of employee rights”). Stated differently, an employer cannot take an

adverse employment action against an employee merely because the employer

determines that the employee’s complaints of discrimination lack merit. See Alamo

Heights, 544 S.W.3d at 781. Therefore, even if Garza’s conclusions are correct, TSC

cannot use his investigation as a shield against Hernandez’s retaliation claim. See id.

Based on TSC’s own admissions, we conclude that the record contains some

direct evidence of a but-for causal link between Hernandez’s protected activity and the

adverse employment action. Accordingly, the trial court did not err in denying TSC’s plea

to the jurisdiction with respect to Hernandez’s retaliation claim.

C. Age Discrimination: Hernandez Failed to Establish a Prima Facie Case that

she was Replaced with Someone Significantly Younger

To establish a prima facie case of age discrimination, Hernandez must present

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evidence that she was (1) at least forty years old, (2) qualified for her position, (3)

terminated by TSC, (4) and replaced by someone significantly younger. See Tex. Tech

Univ. Health Sci. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (citing Garcia

II, 372 S.W.3d at 632). Hernandez was forty-one years old at the time her contract was

not renewed. TSC only disputes the fourth element of her claim—that Hernandez was

replaced by someone significantly younger.

TSC informed Hernandez that her contract would not be renewed on June 27,

2018, in between academic years. In her declaration, Hernandez alleges she was

“replaced” by Samantha Duque, another TSC employee who is twelve years younger,

because Duque “assumed the majority of [her] classes in the Fall of 2018.”3 However,

Hernandez did not allege that Duque continued to teach her classes in the spring

semester, and TSC provided uncontroverted evidence that, on August 20, 2018, it hired

Emily Salazar, who is approximately two months younger than Hernandez, to

permanently fill Hernandez’s former position as a speech instructor.4

“[A] terminated employee is not replaced by a person who temporarily assumes

the terminated employee’s job duties or a person who only takes over a part of those

duties.” Rock, 608 S.W.3d at 310 (brackets omitted) (quoting Russo v. Smith Int’l, Inc.,

93 S.W.3d 428, 436 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)); Baker v. Gregg

County, 33 S.W.3d 72, 81 (Tex. App.—Texarkana 2000, pet. dism’d). Rather, “[w]hen a

3Hernandez testified similarly during her deposition: “[Duque] was teaching about three or four of

my classes, and five is a full load, so I would say she had more than half of my classes.”

4 On this point, TSC submitted, among other evidence, the affidavit of President Rodriguez, who

testified as follows: “To fill the position of Speech Instructor previously held by Linda Hernandez, TSC hired

Ms. Emily Salazar. Ms. Salazar was hired on August 20, 2018[,] and her date of birth is November 21,

1976.”

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terminated employee’s job duties are distributed among other employees after

termination, those employees do not replace the terminated employee.” Baker, 33 S.W.3d

at 81–82.

Thus, Hernandez’s testimony merely establishes that Duque temporarily assumed

most of her teaching responsibilities for a single semester, which is not sufficient to show

that Duque replaced her. See Rock, 608 S.W.3d at 310; Baker, 33 S.W.3d at 81. And

because Hernandez’s actual replacement, Salazar, is not “significantly younger” than her,

Hernandez failed to establish that age was a motivating factor in TSC’s decision not to

renew her contract. See Flores, 612 S.W.3d at 305. The trial court erred in denying this

portion of TSC’s plea to the jurisdiction.

D. Gender Discrimination: Hernandez Failed to Establish a Prima Facie Case of

Disparate Discipline

To establish a prima facie case of gender discrimination, Hernandez must present

evidence that she “(1) is a member of a protected group; (2) was qualified for the position

at issue; (3) was discharged or suffered some adverse employment action by the

employer; and (4) was replaced by someone outside h[er] protected group or was treated

less favorably than other similarly situated employees outside the protected group.”

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing Wheeler v. BL Dev.

Corp., 415 F.3d 399, 405 (5th Cir. 2005)). The parties only dispute the fourth element.

Hernandez “was not replaced by someone outside her protected group; thus, she

must present evidence of a similarly situated employee who was treated differently than

her.” Wallace v. Seton Fam. of Hosps., 777 F. App’x 83, 87 (5th Cir. 2019) (per curiam).

“The situations and conduct of the employees in question must be ‘nearly identical.’”

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AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (per curiam) (quoting Ysleta

Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005)). The employees

should “hold the same job or responsibilities, share the same supervisor or have their

employment status determined by the same person[,] and have essentially comparable

violation histories.” Wallace, 777 F. App’x at 88 (cleaned up) (quoting Lee v. Kansas City

S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009)). But “nearly identical” does not mean

“identical,” as “a requirement of complete or total identity rather than near identity would

be essentially insurmountable.” Id.

In her declaration, Hernandez alleges that an “outspoken” male colleague on TSC

Faculty Senate, Blas Breceda, “almost go into a fist fight with [President] Rodriguez” but

was not terminated. Even accepting these allegations as true, Hernandez’s declaration

lacks key details that would allow us to compare the two employees. For example,

Hernandez failed to specify when Breceda’s incident occurred or whether the same

person determined their employment status. See Lee, 574 F.3d at 259 (“Employees with

different supervisors, who work for different divisions of a company or who were the

subject of adverse employment actions too remote in time from that taken against the

plaintiff generally will not be deemed similarly situated.” (citing Wyvill v. United Cos. Life

Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000))).

Regardless, even if we assume that Breceda and Hernandez were otherwise

similarly situated, their alleged violations were “not in the same category of conduct.” See

AutoZone, 272 S.W.3d at 594. Hernandez alleges that Breceda had a near-physical

altercation with the TSC president, while TSC alleges that Hernandez made unfounded

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accusations of “criminal” conduct against two TSC administrators, including sending a

text message to a sitting TSC board member before reporting her concerns internally, as

required under the Anti-Discrimination Policy. TSC also alleges that Hernandez violated

the privacy rights of the accused administrators by unnecessarily copying other faculty

and staff members on her email to President Rodriguez. Finally, TSC alleges that

Hernandez exceeded her purview as TSC Faculty Senate Speaker and had no authority

to initiate a “no confidence” vote before the TSC board. Thus, even if both employees

were generally “outspoken,” their violation histories were not “nearly identical,” and

consequently, evidence of Breceda’s circumstances does not give rise to an inference

that Hernandez’s gender was a motivating factor in the nonrenewal of her contract. See

id. at 594–95 (finding employees were not similarly situated where one employee was

disciplined for making an improper comment in front of a customer, and the other

employee was terminated for sexual harassment); cf. Wilder v. Stephen F. Austin State

Univ., 552 F. Supp. 3d 639, 658–59 (E.D. Tex. 2021) (finding professors were similarly

situated where students filed similar complaints against each, but one received an

unsatisfactory evaluation, while the other was given a terminal contract).

Therefore, we conclude that Hernandez failed to state a prima facie case of gender

discrimination, and the trial court erred in denying this portion of TSC’s plea to the

jurisdiction.

IV. CONCLUSION

We affirm the trial court’s order with respect to Hernandez’s retaliation claim, and

we reverse and render a judgment of dismissal for want of jurisdiction on Hernandez’s

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age and gender discrimination claims.

GINA M. BENAVIDES

Justice

Delivered and filed on the

26th day of January, 2023.

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