Mesquite Indep. Sch. Dist. v. Mendoza

Thomas P. Brandt, Fanning Harper Martinson Brandt & Kutchin, PC, Francisco Valenzuela, Dallas, TX, for Appellant. John E. Wall Jr., Law Offices Of John E. Wall, Jr., Dallas, TX, for Appellee.

Opinion by Justice MYERS.

Mesquite Independent School District brings this interlocutory appeal of the trial court's denial of its motion for summary judgment asserting the court lacked jurisdiction to hear Tomasa Mendoza's suit for sex and national-origin discrimination under the Texas Commission on Human Rights Act. See Tex. Civ. Prac. Rem.Code Ann. 51.014(a)(8) (West Supp.2012) (authorizing interlocutory appeal from grant or denial of plea to jurisdiction by governmental unit); Tex. Dept. of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004) (interlocutory appeal may be taken from refusal to dismiss for want of jurisdiction when jurisdictional argument is presented in a plea to the jurisdiction or other procedural vehicle including a motion for summary judgment); see also Tex. Lab.Code Ann. 21.051 (West 2006) (prohibiting discrimination by employers). The District brings two issues on appeal asserting the trial court erred by denying its motion for summary judgment. We reverse the trial court's denial of the District's motion for summary judgment on Mendoza's claim of sex discrimination, we affirm the trial court's denial of summary judgment on Mendoza's claim of national-origin discrimination, and we remand the cause for further proceedings.

The District's two issues assert the trial court erred by denying the District's motion for summary judgment. Our jurisdiction over this appeal, however, is limited to reviewing the motion for summary judgment as a plea to the jurisdiction. See Tex. Civ. Prac. Rem.Code Ann. 51.014(a)(8). Whether a court has subject-matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.2002). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue must be resolved by the fact finder. Id. at 227–28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

Governmental entities are immune from suit unless the government has clearly and unambiguously waived its immunity. See Tex. Gov.Code Ann. 311.034 (West Supp.2012); Miranda, 133 S.W.3d at 224. The government waives its immunity from suit under the Texas Commission on Human Rights Act when a plaintiff states a claim for conduct that would violate the Act. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex.2012).

Section 21.051 of the Act provides that an employer commits an unlawful employment practice if the employer refuses to hire, discharges, or otherwise discriminates against an employee in connection with compensation or the terms, conditions, or privileges of employment because of the employee's race, color, disability, religion, sex, national origin, or age. Lab. § 21.051. There are two alternative methods by which a plaintiff may establish a discriminatory treatment case. The first is by proving discrimination through direct evidence of what the defendant did and said. Garcia, 372 S.W.3d at 634. However, because direct evidence of discriminatory motive is usually hard to come by, the courts created a second method, the burden-shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Garcia, 372 S.W.3d at 634. Under this approach, discrimination is presumed if the plaintiff meets an initial burden of establishing a prima-facie case of discrimination. Id. A plaintiff proceeding under the McDonnell Douglas approach must meet the requirement of the prima-facie case for the trial court to have jurisdiction. Id. at 637. The failure to present the elements of a prima-facie case means the trial court has no jurisdiction and the claim must be dismissed. Id.

Although a plaintiff must plead facts making up a prima-facie case, the defendant may present evidence negating those facts. If the defendant does so, the plaintiff must then present evidence in support of the facts. Id. To establish a prima-facie case of employment discrimination, the plaintiff must show (1) she was a member of a protected class, (2) she was qualified for her employment position, (3) she was subjected to an adverse employment decision, and (4) she was replaced by someone outside of the protected class, or she was treated less favorably than similarly situated members of the opposite class. Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 654 (Tex.App.-Dallas 2012, no pet.); Michael v. City of Dallas, 314 S.W.3d 687, 690–91 (Tex.App.-Dallas 2010, no pet.).

In this case, Mendoza maintains she established jurisdiction by presenting a prima-facie case of employment discrimination. The District asserts Mendoza failed to meet the fourth requirement, that she was replaced by someone outside the protected class or that she was treated less favorably than similarly situated members of the opposite class.

In its first issue, the District contends the trial court should have determined it lacked jurisdiction over Mendoza's claim of sex discrimination and dismissed the claim. The District asserts Mendoza cannot meet the fourth element of a prima-facie case because she was replaced by a woman and Mendoza was not treated less favorably than similarly situated men.

It is undisputed that Mendoza was replaced by a woman, either Nora Castellanos or Tammy Burleson. However, Mendoza contends she received disparate treatment in that a similarly situated male employee, Gudiel, violated the policy regarding offsite cleaning of mop heads—he failed to pick up the mop heads to deliver them to the cleaning location—but was not terminated. The Texas Supreme Court has discussed the circumstances necessary for employees to be similarly situated:

Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct. To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' misconduct must be of “comparable seriousness.” Although “precise equivalence in culpability between employees is not the ultimate question,” the Fifth Circuit has held that to prove discrimination based on disparate discipline, the plaintiff must usually show “that the misconduct for which [he] was discharged was nearly identical to that engaged in by a [female] employee whom [the company] retained.”
Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex.2005) (citations and footnotes omitted) (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n. 11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); Smith v. Wal–Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir.1990)).

The District argues that Mendoza and Gudiel are not similarly situated because they worked at different locations, had different supervisors, different job duties, and different misconduct. Mendoza was a custodian at McDonald Middle School, her supervisor was Kelly Long, her job duties were to clean the school, and she was terminated for starting a fire by placing mop heads in the dryer. Gudiel was a driver at the District's L.A. Berry Support Complex, his supervisor was Larry Brown, his job duties were to drive to the District's campuses delivering cleaned cleaning tools and furniture and collecting dirty cleaning tools, and he was reprimanded for not collecting the dirty mop heads from McDonald Middle School. Because of the many differences in their positions and conduct, we conclude that Mendoza and Gudiel were not similarly situated employees.

Because the evidence conclusively established that Mendoza was replaced by a woman and she was not treated differently from any similarly situated male employee, we conclude Mendoza has not established a prima-facie case of sex discrimination. Accordingly, the District did not waive its immunity to suit, and the trial court erred by denying the District's motion for summary judgment asserting lack of jurisdiction over this claim. We sustain the District's first issue.

In its second issue, the District contends the trial court should have determined it lacked jurisdiction over Mendoza's claim of national-origin discrimination and dismissed the claim. The District asserts Mendoza could not present a prima-facie case of discrimination because her duties were assumed by another Hispanic, Nora Castellanos.

The District attached as evidence to its motion for summary judgment Mendoza's deposition, where she testified she was told that the District moved a night-shift custodian, Castellanos, to her day-shift position. The District then hired a new custodian, Tammy Burleson, who filled the night-shift custodian position. Mendoza's response to the District's motion for summary judgment attached as evidence an internal e-mail and other documents from the District stating Burleson replaced Mendoza and that Burleson's ethnicity was “white.” The District's documents raise a genuine issue of material fact as to whether Mendoza was replaced by someone outside of the protected class.

Because the District failed to conclusively prove the jurisdictional fact that Mendoza was replaced by a Hispanic employee, the District has not established the trial court lacked jurisdiction over Mendoza's claim of national-origin discrimination. We conclude the trial court did not err by denying the District's motion for summary judgment on that claim. We overrule the District's second issue.

We reverse the trial court's order denying the motion for summary judgment as to Mendoza's claim of sex discrimination, and we dismiss the claim for want of jurisdiction. We affirm the trial court's order denying the motion for summary judgment as to Mendoza's claim of national-origin discrimination. We remand the cause to the trial court for further proceedings. -------- Notes: