Affirm in part; Reverse in part and Remand; Opinion Filed June 3, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01479-CV
MESQUITE INDEPENDENT SCHOOL DISTRICT, Appellant
V.
TOMASA MENDOZA, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 11-09131-F
OPINION
Before Justices Lang, Myers, and Evans
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. Dep’t 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.
BACKGROUND
During the 2010 spring semester, a custodian at one of the District’s schools started a fire
by placing a mop head in a school dryer. The District then set up a system for dirty mop heads to
be collected and taken to another location to be safely cleaned. The District sent a memo to the
schools informing them of the new policy and directing them to instruct their custodians
accordingly.
Mendoza moved to the United States from Mexico. In 2010, Mendoza was an employee
of the District and worked as a custodian at McDonald Middle School. On November 9, 2010,
Mendoza noticed several dirty and smelly mop heads at the school. She washed the mop heads
and put them in a dryer. The mop heads caught fire in the dryer. When confronted about the
fire, Mendoza admitted she had put the mop heads in the dryer. The District then terminated her.
The mop heads needed cleaning because Carlos Gudiel, the District employee responsible
for collecting them and delivering them to the cleaning facility, had not done so. Gudiel received
a written reprimand for failing to collect the mop heads, but he was not terminated.
Mendoza filed suit against the District on July 25, 2011, alleging the District violated the
Texas Commission on Human Rights Act by discriminating against her on the basis of her sex
and national origin by terminating her. See TEX. LAB. CODE ANN. § 21.051(1) (West 2006). The
District moved for summary judgment, asserting governmental immunity from suit. The District
argued it had not waived its immunity from suit because Mendoza could not establish a
prima-facie case of sex and national-origin discrimination as she was replaced by a Hispanic
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woman. The trial court denied the District’s motion for summary judgment on sex and
national-origin discrimination. 1
STANDARD OF REVIEW
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.
IMMUNITY FROM SUIT
Governmental entities are immune from suit unless the government has clearly and
unambiguously waived its immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 311.034 (West
Supp. 2012); Miranda, 133 S.W.3d at 224. The government waives its immunity from suit under
1
Mendoza also contended the District retaliated against her for reporting claims of age and sex discrimination while an employee of the
District. The trial court granted the District’s motion for summary judgment on the retaliation claim. The order granting that part of the motion
for summary judgment is not before us in this interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice & Remedies Code.
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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 (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. 2 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
2
Under the McDonnell Douglas burden-shifting approach, once jurisdiction is established through the plaintiff presenting a prima-facie
case, the burden shifts to the defendant, who may rebut the presumption of discrimination by presenting evidence of a legitimate,
nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to prove
the defendant’s reason was a pretext for a discriminatory decision. Id. at 804. Because our review in this interlocutory appeal is limited to a
determination of the trial court’s subject-matter jurisdiction, we do not consider any matters beyond whether Mendoza presented a prima-facie
case of discrimination.
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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.
SEX DISCRIMINATION
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,
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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; McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n.11 (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.
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NATIONAL-ORIGIN DISCRIMINATION
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. 3
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.
3
The parties treat Mendoza’s claim of national-origin discrimination as one for racial discrimination. Neither side complains about the
apparent misnomer of the claim. See Lopez v. Tex. State Univ., 368 S.W.3d 695, 702–03 (Tex. App.—Austin 2012 pet. denied) (discussing the
overlapping nature of national-origin and racial discrimination claims when employee asserts discrimination because he is Hispanic). Mendoza’s
claim of discrimination from being replaced by Burleson appears to be one of racial discrimination because Mendoza supported her assertion with
evidence that Burleson was white but presented no evidence of Burleson’s national origin.
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CONCLUSION
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.
/Lana Myers/
LANA MYERS
JUSTICE
121479F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
Mesquite Independent School District, On Appeal from the 116th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. 11-09131-F.
No. 05-12-01479-CV V. Opinion delivered by Justice Myers.
Justices Lang and Evans participating.
Tomasa Mendoza, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court denying
appellant Mesquite Independent School District’s motion for summary judgment is REVERSED
as to appellee Tomasa Mendoza’s claim of sex discrimination, and judgment is RENDERED
that appellee Tomasa Mendoza’s claim of sex discrimination is DISMISSED for want of
jurisdiction; the trial court’s order is AFFIRMED as to appellee Tomasa Mendoza’s claim of
national-origin discrimination. We REMAND the cause to the trial court for further
proceedings. It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 3rd day of June, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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