                                     NUMBER 13-07-00119-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


MARGARET VILLARREAL,                                                             Appellant,

                                                         v.

DEL MAR COLLEGE,                                                                  Appellee.


   On appeal from the 117th District Court of Nueces County, Texas.


                                 MEMORANDUM OPINION

                 Before Justices Yañez, Rodriguez, and Benavides
                     Memorandum Opinion by Justice Yañez

       Appellant, Margaret Villarreal, appeals from a summary judgment granted in favor

of appellee, Del Mar College (“the College”), on Villarreal’s retaliation and national origin

discrimination claims.1 By two issues, Villarreal contends the trial court erred in (1) granting

summary judgment and dismissing her retaliation and discrimination claims and (2)

improperly defining the “adverse employment action” element of her retaliation claim. We


       1
           See T EX . L AB . C OD E A N N . §§ 21.051, 21.055 (Vernon 2006).
affirm.

                                            I. Background

          Villarreal began her employment with the College in 1978 as a data entry clerk. In

1985, she was promoted to the position of Senior Reporting Technician in the College

Registrar’s Office. Her immediate supervisor was Frances Jordan, the Registrar and

Assistant Dean of Enrollment Services. Jordan’s supervisor was Jose Rivera, a Vice

President of the College. Villarreal’s duties included data collection and preparation of

reports to the Texas Higher Education Coordinating Board. The reports are used by the

State to allocate funding. Villarreal’s position is classified as “nonexempt,” consistent with

federal wage and hour laws.2

          Villarreal requested several times that her position be reclassified from nonexempt

to exempt.3 Pursuant to the denial of an earlier request to reclassify her position, Villarreal

filed a charge of discrimination with the EEOC and Texas Commission on Human Rights.4

In 2002, she and the College reached a settlement agreement, by which the College paid

her a lump sum and upgraded her position from “Grade 7” to “Grade 8,” in exchange for



          2
          See Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (2009). Prior to 2006, the College itself
classified its job positions as “exem pt” or “nonexem pt” from federal wage and hour laws, based on FLSA
guidelines and exem ptions. Prior to 2006, the “exem pt” classification was referred to as “adm inistrative/
professional/ technical” or “APT.” After 2006, the College retained a consulting group, which prepared job
descriptions and classified em ployees as “exem pt” or “nonexem pt.” For purposes of this opinion, “APT” is
synonym ous with “exem pt,” and in the interest of clarity, we use the term s “exem pt” and “nonexem pt”
throughout this opinion. Villarreal’s position of Senior Reporting Technician has always been classified as a
“nonexem pt” position.

          3
           Villarreal contends she has been “stuck” at the top of the non-exem pt salary scale and that
reclassification to exem pt status would enable her to receive higher pay.

          4
           W hen the Texas Com m ission on Hum an Rights Act (TCHRA) was recodified into the Texas Labor
Code, the revised law om itted as unnecessary the short title of the act. See Little v. Tex. Dep’t of Criminal
Justice, 148 S.W .3d 374, 377 (Tex. 2004). Accordingly, we refer to chapter 21 of the labor code, instead of
the TCHRA, as the Texas em ploym ent discrim ination statute was com m only referred to in the past. A copy
of Villarreal’s earlier charge of discrim ination does not appear in the record before us.

                                                      2
her agreement not to sue. The position remained classified as nonexempt.

        In late 2003, Villarreal again requested that her position be reclassified as exempt.

Jordan and Rivera signed the request, which was then forwarded to Lewis Finch, Assistant

Director of Human Resources.5 Villarreal based her request for reclassification on her

duties to collect and analyze data regarding on-line courses offered by the College. In the

course of reviewing the request, Finch asked for additional information from Jordan and

Rivera regarding Villarreal’s duties. Finch also provided Rivera with the guidelines used

to determine if a position is properly classified as exempt, and asked for his views as to

whether Villarreal’s position met the guidelines.               After reviewing the guidelines and

consulting with Jordan, Rivera responded that in his judgment, the position of Senior

Reporting Technician did not meet the criteria for exempt status. Finch completed the

evaluation, concluded that the position was properly classified as nonexempt, and

recommended denial of the reclassification request. The Acting President of the College,

Jose Alaniz, agreed and denied the request.

        Villarreal filed several charges of discrimination, alleging retaliation and national

origin discrimination. She then sued the College, alleging that she (1) suffered retaliation

for having filed her earlier charge of discrimination, and (2) was discriminated against

because of her national origin.

        On October 18, 2006, the College moved for summary judgment on both traditional




         5
           The task of reviewing em ployee requests for reclassification was assigned to the College’s Dean
of Equal Em ploym ent Opportunity and Affirm ative Action. However, because the Dean was on leave of
absence during the relevant tim e period, Villarreal’s request was directed to Finch. The final decision on
reclassifications was m ade by the President of the College. According to Finch’s deposition testim ony, an
em ployee requesting reclassification m ust fill out a questionnaire, which requires the em ployee to provide
detailed inform ation about the em ployee’s job duties and responsibilities.

                                                     3
and no-evidence grounds.6 In support of its motion, the College submitted the following

summary judgment evidence: (1) excerpts from Villarreal’s deposition testimony; (2)

Finch’s affidavit; (3) Jordan’s affidavit; (4) documents detailing the College’s review of

Villarreal’s position; and (5) a copy of the 2002 settlement agreement between Villarreal

and the College.

        On November 1, 2006, Villarreal filed her response to the College’s motion, and on

November 7, 2006—the day prior to the summary judgment hearing—she filed a

supplemental response.7 Villarreal submitted various documents as summary judgment

evidence, including: (1) her own affidavit; (2) an expert report regarding calculations as to

Villarreal’s “lost past and future wages and benefits;” (3) the affidavit of Nelda Sanchez,

a former co-worker of Villarreal’s, regarding Jordan’s “demeaning and condescending”

treatment of Villarreal; (4) Jordan’s deposition testimony; (5) Finch’s deposition testimony;

(6) Rivera’s deposition testimony; (7) deposition testimony of Vickie Natale, Dean of

Administrative Services, who allegedy denied Villarreal access to information needed to

compile her reports; (8) Villarreal’s completed questionnaire regarding her reclassification

request; (9) correspondence regarding Villarreal’s work product; (10) information regarding

the salary structure used by the College for exempt positions; (11) salary information for

David Andrus, Barbara Thompson, and Sue Beseda, persons Villarreal alleged to be

“similarly situated employees”; (12) e-mail correspondence reflecting work performed by



        6
            See T EX . R. C IV . P. 166a(c), (i).

         7
           The record reflects that at the Novem ber 8, 2006 hearing, the trial judge acknowledged receipt of
Villarreal’s supplem ental response, as well as several docum ents filed by the College, including the College’s
Motion to Strike Villarreal’s Sum m ary Judgm ent Evidence, its Motion to Strike and Objections to Nelda
Sanchez’s Affidavit, and its Objection to Villarreal’s Affidavit. At the conclusion of the hearing, the trial judge
stated that she had “everything” and would “spend the afternoon looking at this.” The order granting sum m ary
judgm ent and dism issing Villarreal’s claim s was signed Novem ber 29, 2006.

                                                        4
Villarreal; (13) guidelines used by the College for classifying a position as exempt; and (14)

excerpts from the deposition testimony of Jordan, Finch, and Natale.

        The trial court granted summary judgment without specifying the ground or grounds

upon which it relied.

                              II. Standards of Review and Applicable Law

                                            A. Summary Judgment

        The standard of review for the grant of a motion for summary judgment is

determined by whether the motion was brought on no-evidence or traditional grounds.8 A

no-evidence summary judgment is equivalent to a pretrial directed verdict, and this Court

applies the same legal sufficiency standard on review.9 In an appeal of a no-evidence

summary judgment, this Court reviews the evidence in the light most favorable to the non-

movant, disregarding all contrary evidence and inferences.10 If the non-movant produces

evidence to raise a genuine issue of material fact, summary judgment is improper.11

        All that is required of the non-movant is to produce a scintilla of probative evidence

to raise a genuine issue of material fact.12 “Less than a scintilla of evidence exists when

the evidence is ‘so weak as to do no more than create a mere surmise or suspicion of a

fact.’”13 Conversely, more than a scintilla exists when the evidence “rises to a level that

        8
        See T EX . R. C IV . P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W .3d 765, 771 (Tex.
App.–Corpus Christi 2003, no pet.) (op. on reh'g).

        9
            Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006); Ortega, 97 S.W .3d at 772.

        10
           City of Keller v. W ilson, 168 S.W .3d 802, 825 (Tex. 2005) (noting that review of a “no-evidence”
m otion for sum m ary judgm ent is effectively restricted to the evidence contrary to the m otion); Ortega, 97
S.W .3d at 772.

        11
             T EX . R. C IV . P. 166a(i).

        12
             Ortega, 97 S.W .3d at 772.

        13
             Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983)).

                                                      5
would enable reasonable and fair-minded people to differ in their conclusions.”14 In

determining whether the non-movant has produced more than a scintilla of evidence, we

review the evidence in the light most favorable to the non-movant, crediting such evidence

if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.15 The burden of producing evidence is entirely on the non-movant; the movant

has no burden to attach any evidence to the motion.16 We may not consider any evidence

presented by the movant unless it creates a fact question.17

        A no-evidence motion for summary judgment must explicitly state that there is no

evidence of one or more of the opponent’s claim or claims, which the motion must also

identify.18 A no-evidence motion for summary judgment that does not “challenge a specific

element of [the non-movant's] claim” is not reviewed as a no-evidence motion.19 When a

no-evidence motion for summary judgment does not specifically state which elements lack

evidence, the motion should be treated as a motion for a 166a(c) summary judgment.20

The dispositive inquiry is whether the motion provides fair notice to the nonmovant of the

basis on which summary judgment is sought.21


        14
             Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W .2d 10, 25 (Tex. 1994)).

        15
             Tamez, 206 S.W .3d at 582; City of Keller, 168 S.W .3d at 827.

        16
        T     EX .   R. C IV . P. 166a(i).

        17
         Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W .3d 518, 521 (Tex.
App.–Eastland 2007, no pet.).

        18
        Johnson v. Felts, 140 S.W .3d 702, 706 (Tex. App.–Houston [14th Dist.] 2004, pet. denied) (citing
Johnson v. Brewer & Pritchard, P.C., 73 S.W .3d 193, 207 (Tex. 2002)).

        19
             W eaver v. Highlands Ins. Co., 4 S.W .3d 826, 829 n.2 (Tex. App.–Houston [1st Dist.] 1999, no pet.).

        20
             Amouri v. Sw. Toyota, Inc., 20 S.W .3d 165, 168 (Tex. App.–Texarkana 2000, pet. denied).

        21
          See W aite v. W oodard, Hall & Primm, P.C., 137 S.W .3d 277, 281 (Tex. App.–Houston [1st Dist.]
2004, no pet.).

                                                         6
        We review the trial court’s granting of a traditional motion for summary judgment de

novo.22 When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law.23 The movant bears the burden of

proof in a traditional motion for summary judgment, and all doubts about the existence of

a genuine issue of material fact are resolved against the movant.24 We take as true all

evidence favorable to the non-movant, and we indulge every reasonable inference and

resolve any doubts in the non-movant's favor.25

        We will affirm a traditional summary judgment only if the record establishes that the

movant has conclusively proved its defense as a matter of law or if the movant has

negated at least one essential element of the plaintiff's cause of action.26 A matter is

conclusively established if reasonable people could not differ as to the conclusion to be

drawn from the evidence.27 Only when the movant has produced sufficient evidence to

establish its right to summary judgment does the burden shift to the non-movant to come

forward with competent controverting evidence raising a genuine issue of material fact with




        22
          See Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215 (Tex. 2003); Branton v. W ood,
100 S.W .3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.).

       23
        T EX . R. C IV . P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W .3d 211, 215 (Tex. 2002); City of
Houston v. Clear Creek Basin Auth., 589 S.W .2d 671, 678 (Tex. 1979).

        24
             See Sw. Elec. Power Co., 73 S.W .3d at 215.

        25
             Valence Operating Co. v. Dorsett, 164 S.W .3d 656, 661 (Tex. 2005).

        26
         IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex. 2004); Am.
Tobacco Co. v. Grinnell, 951 S.W .2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W .2d at 678.

        27
             City of Keller, 168 S.W .3d at 816.

                                                      7
regard to the element challenged by the defendant.28 A defendant seeking summary

judgment on an affirmative defense must conclusively prove all the elements of the

affirmative defense.29 To accomplish this, the defendant-movant must present summary

judgment evidence that establishes each element of the affirmative defense as a matter

of law.30

        When the trial court’s judgment does not specify which of several grounds proposed

was dispositive, we affirm on any ground offered that has merit and was preserved for

review.31

                                               B. Discrimination

        Under section 21.051 of the labor code, an employer may not discriminate against

or discharge an employee based on “race, color, disability, religion, sex, national origin, or

age.”32 The Texas Legislature modeled chapter 21 of the Texas Labor Code after federal

law for the express purpose of carrying out the policies of Title VII of the Civil Rights Act

of 1964 and its subsequent amendments.33 Consequently, when reviewing an issue in a

proceeding brought under chapter 21, we may look not only to cases involving the state




        28
          Rhone-Poulenc, Inc. v. Steel, 997 S.W .2d 217, 223 (Tex. 1999); see Centeq Realty, Inc. v. Siegler,
899 S.W .2d 195, 197 (Tex. 1995).

        29
             Steel, 997 S.W .2d at 223; see T EX . R. C IV . P. 166a(b), (c).

        30
             Ryland Group, Inc. v. Hood, 924 S.W .2d 120, 121 (Tex. 1996).

        31
             Joe v. Two Thirty Nine J.V., 145 S.W .3d 150, 157 (Tex. 2004).

        32
           See T EX . L ABO R C OD E A N N . § 21.051; Autozone, Inc. v. Reyes, 272 S.W .3d 588, 592 (Tex. 2008);
Herbert v. City of Forest Hill, 189 S.W .3d 369, 374 (Tex. App.–Fort W orth 2006, no pet.).

        33
         T EX . L AB . C OD E A N N . § 21.001(1) (Vernon 2006); Autozone, Inc., 272 S.W .3d at 592; W al-Mart
Stores, Inc. v. Canchola, 121 S.W .3d 735, 739 (Tex. 2003); City of Forest Hill, 189 S.W .3d at 374.

                                                           8
statute, but also to cases interpreting the analogous federal provisions.34

           In discrimination cases brought under the Texas Labor Code, a prima facie case of

discrimination is made by showing that the plaintiff (1) is within a protected group, (2) was

adversely affected or suffered an adverse employment action, and (3) was treated less

favorably than similarly situated members outside the protected class.35 In addition, in

order to prove causation, the plaintiff must establish that national origin “was a motivating

factor for an employment practice, even if other factors also motivated the practice, unless

[national origin] . . . is combined with objective job-related factors to attain diversity in the

employer’s work force.”36 To establish a prima facie case of discrimination involving a

failure-to-promote claim, the plaintiff must prove that: (1) she belongs to a protected group

under Title VII; (2) she applied for and was qualified for the position sought; (3) she was

not promoted to the position sought, i.e, she suffered an adverse employment action; and

(4) her employer promoted an employee to the position sought by the plaintiff who was not

a member of the protected class.37

           After the plaintiff establishes a prima facie case, the burden of production shifts to

the employer to articulate legitimate, nondiscriminatory reasons for any allegedly unequal

treatment.38 After the employer articulates legitimate, nondiscriminatory reasons, the

burden shifts back to the plaintiff to prove that the employer’s articulated reasons are a


           34
                Autozone, Inc., 272 S.W .3d at 592; Canchola, 121 S.W .3d at 739; City of Forest Hill, 189 S.W .3d
at 374-75.

           35
                See City of Forest Hill, 189 S.W .3d at 375.

           36
                See id.

           37
                McFall v. Gonzales, 143 F. App’x 604, 607 (5th Cir. 2005).

           38
                City of Forest Hill, 189 S.W .3d at 375 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)).

                                                           9
mere pretext for unlawful discrimination.39 Although the burden of production shifts, the

burden of persuasion remains continuously with the plaintiff.40

                                               C. Retaliation

        The Fifth Circuit has recently stated the standard for retaliation claims:

       Like discrimination claims, we analyze retaliation claims using the McDonnell
       framework. Thus, the plaintiff has the initial burden of establishing a prima
       facie case. To establish a prima facie case of retaliation, the plaintiff must
       show that: (1) she engaged in a protected activity; (2) she suffered an
       adverse employment action; and (3) a causal link existed between the
       protected activity and the adverse employment action. The Supreme Court
       recently clarified in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
       [68] (2006), that for purposes of Title VII, an “adverse employment action” is
       defined differently in the retaliation context than it is in the discrimination
       context. In the retaliation context, it is an action that “a reasonable employee
       would have found . . . [to be] materially adverse, which in this context means
       it well might have dissuaded a reasonable worker from making or supporting
       a charge of discrimination.” The causal link required by the third prong does
       not rise to the level of a “but for” standard at the prima facie stage.[41] “Close
       timing between an employee's protected activity and an adverse action
       against [her] may provide the ‘connection’ required to make out a prima facie
       case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188
       (5th Cir. 1997); see, e.g., Richard v. Cingular Wireless LLC, 233 F. App'x 334,
       338 (5th Cir. 2007) (concluding that two and one half months is a short
       enough time period to support an inference of a causal link); Raggs v. Miss.
       Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a
       five-month lapse, by itself, does not support an inference of a causal link).

               Assuming the plaintiff establishes a prima facie case, then the burden
       shifts to the employer to articulate a legitimate, nondiscriminatory reason for
       its actions. If the employer articulates a legitimate nondiscriminatory reason,
       then “any presumption of discrimination raised by the plaintiff's prima facie
       case vanishes.”



        39
             Id. (citing McDonnell Douglas, 411 U.S. at 804).

        40
             Id. (citing McDonnell Douglas, 411 U.S. at 803).

        41
            See Evans v. Tex. Dep’t. of Transp. , 547 F. Supp. 2d 626, 655 (E.D. Tex. 2007), aff’d, 273 F.
App’x. 391 (5th Cir. 2008) (noting that to establish a causal link at prim a facie stage, a plaintiff need not prove
that her protected activity was the sole factor in m otivating the em ployer's challenged decision; rather, a
causal link is established when the evidence dem onstrates that the em ployer's decision to take adverse action
was based in part on knowledge of the em ployee's protected activity).

                                                       10
               In the final stage of the McDonnell framework, the plaintiff bears the
       ultimate burden of demonstrating a genuine issue of material fact as to
       whether the employer's proffered reason is a pretext for a retaliatory purpose.
       The plaintiff must show that “the adverse employment action taken against
       the plaintiff would not have occurred ‘but for’ her protected conduct.” This
       court has expressly rejected the notion that temporal proximity standing alone
       is sufficient to establish but-for causation.42

         In determining whether an adverse employment action was taken as a result of

retaliation, the focus is on the final decision-maker.43 When the titular decision-maker

“serves as the ‘cat’s paw’ of those who were acting from retaliatory motives, the causal link

between the protected activity and adverse employment action remains intact.”44

                                                III. Discussion

         In her first issue, Villarreal contends the trial court erred in granting summary

judgment and dismissing her claims for retaliation and national origin discrimination. We

begin by addressing Villarreal’s retaliation claim.

                                            A. Retaliation Claim

         Villarreal contends that by refusing to reclassify her position as exempt, the College

denied her a “promotion.” According to Villarreal, over the year following the 2002

settlement of her earlier charge of discrimination, Jordan, her immediate supervisor,

subjected Villarreal to various retaliatory acts, including withholding training information and

access to computer information, reassigning some of her duties to others, and providing

false information regarding her duties to Finch and Rivera—information on which they



         42
           McCullough v. Houston County Tex., 297 F. App’x 282, 288-89 (5th Cir. 2008) (som e internal
citations om itted); see T EX . L AB . C OD E A N N . § 21.055; City of Forest Hill, 189 S.W .3d at 376-77; Johnson v.
City of Houston, 203 S.W .3d 7, 11 (Tex. App.–Houston [14th Dist.] 2006, pet. denied).

         43
              Ackel v. Nat’l Commc’ns., Inc., 339 F.3d 376, 385 (5th Cir. 2003) (internal quotations om itted).

         44
              Evans, 547 F. Supp. 2d at 656 (quoting Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002)).

                                                         11
relied in denying Villarreal’s request for reclassification.

         In its motion for summary judgment, the College argued that “it is impossible for

Villarreal to establish the required ‘but-for’ causal nexus between the protected conduct

and the activities she contends are adverse.” According to the College, Villarreal “cannot

meet [her] burden” to present either direct evidence or “admissible evidence from which

a discriminatory or retaliatory motive could reasonably be inferred.” The College also

argues that Villarreal’s retaliation claim fails because the College has provided legitimate,

non-discriminatory and non-retaliatory reasons for its action and that “Villarreal has no

evidence that the College’s reasons are pretextual.”45

         In her response to the College’s motion, Villarreal devoted a single sentence to the

causation element of her retaliation claim:

         Element No. 3: A Causal Nexus Between Protected Activity and Adverse
         Employment Action

         The decision-maker knew of Plaintiff’s protected activity:

         25. Plaintiff filed her previous charge of discrimination against defendant
         and named Frances Jordon [sic], specifically, Jordan has remained Plaintiff’s
         supervisor during the events of this lawsuit.

In her supplemental response, Villarreal provides a slightly revised version of the

sentence:

         Element No. 3: A Causal Nexus Between Protected Activity and Adverse
         Employment Action


         45
            W e note that in its m otion for sum m ary judgm ent, the College recited the standards for both a
traditional and no-evidence m otion, and “m ove[d] the Court to grant sum m ary judgm ent, either as a ‘no-
evidence’ or traditional sum m ary judgm ent.” As noted, the determ ination of whether a no-evidence m otion
is sufficiently specific in challenging an elem ent of a claim is governed by whether the m otion provides fair
notice to the non-m ovant of the basis on which sum m ary judgm ent is sought. See W aite, 137 S.W .3d at 281.
W e conclude that here, the College’s m otion provides fair notice to Villarreal that it is challenging the causation
elem ent of her retaliation claim . W e also note that Villarreal did not challenge the College’s no-evidence
m otion as insufficiently specific at trial, nor does she do so on appeal.

                                                        12
        The decision-maker knew of Plaintiff’s protected activity:

        25. Plaintiff filed her previous charge of discrimination against Defendant
        and named Frances Jordon [sic], specifically. Jordan engaged in a prior fact
        finding investigation and has remained Plaintiff’s supervisor during the
        events of this lawsuit.

        Villarreal does not cite any evidence in support of her assertion that there is a causal

nexus between her protected activity (her earlier Charge of Discrimination) and the alleged

retaliatory “adverse employment action” that she suffered.46

        Without addressing whether the College’s refusal to reclassify Villarreal’s position

as exempt constituted an adverse employment action, we hold that there is no evidence

that the College’s denial of the request for reclassification or any of the other matters

complained of were causally related to Villarreal’s exercise of protected activity.

        Moreover, whether or not Villarreal established a prima facie case of retaliation, the

College has offered legitimate non-retaliatory reasons for its refusal to reclassify Villarreal’s

position as exempt. In his deposition testimony, which Villarreal attached to her response,

Finch states that after analyzing the job duties and responsibilities of Villarreal’s position

and reviewing the College’s and FLSA’s criteria for exempt positions, he determined that

the position did not meet the College or FLSA criteria for exempt positions. Villarreal has

not pointed to anything in the record demonstrating a genuine issue of material fact as to

whether the College’s proffered reason is pretextual and that but for the filing of her earlier

charge of discrimination, the College would have approved her request for




        46
            In her response and supplem ental response, in the section addressing the “adverse em ploym ent
action” elem ent of her retaliation claim , Villarreal cites the denial of her request to reclassify her position as
exem pt. She also alleges that she is paid substantially less than “coworkers with sim ilar levels of
responsibility, using the sam e data base and with sim ilar reporting functions.” In support of this statem ent,
Villarreal cites her own affidavit.

                                                        13
reclassification.47 We hold the trial court did not err in granting the College’s motion for

summary judgment on no-evidence grounds with regard to Villarreal’s retaliation claim.48

                                        B. Discrimination Claim

         In its motion for summary judgment, the College argued it is entitled to summary

judgment on Villarreal’s claim for national origin discrimination because (1) its “denial of

Villarreal’s request to change the status of the position to non-exempt is not a ‘failure to

promote’”; and (2) Villarreal cannot establish the fourth element of a prima facie case for

discrimination in a failure-to-promote case: that the College sought applications from

others outside the protected class for the position.49 The College also argued that

Villarreal’s discrimination claim fails because the College offered legitimate, non-

discriminatory reasons for its refusal to reclassify Villarreal’s position, and she has no

evidence that the College’s reasons are pretextual.




         47
              See McCullough, 297 F. App’x at 288.

        48
             The College also asserted that it was entitled to sum m ary judgm ent on traditional grounds because
it offered legitim ate, non-retaliatory reasons for its actions and Villarreal had no evidence that the College’s
reasons were pretextual. W e agree. The College’s sum m ary judgm ent evidence included Finch’s affidavit,
in which he stated that his recom m endation for denying Villarreal’s request was based on his determ ination
that the position did not m eet the College’s or the FLSA’s criteria for exem pt positions. Villarreal provided no
sum m ary judgm ent evidence rebutting the College’s proffered legitim ate non-discrim inatory reasons for
denying her request. Villarreal sim ply asserted that Jordan “provided false and incorrect inform ation”
regarding Villarreal’s job duties. Although Jordan adm itted in her deposition testim ony that Villarreal “directs”
the work of the data entry clerks in the Registrar’s office, she also stated that Villarreal had no authority to hire
and fire, evaluate other em ployees, or exercise any other supervisory responsibilities. Accordingly, we hold
that the College is entitled to sum m ary judgm ent on traditional grounds because it offered legitim ate, non-
retaliatory reasons for its actions and Villarreal had no evidence that the College’s reasons were pretextual.
See Fuentes v. Postmaster Gen. of U.S. Postal Serv., 282 F. App’x 296, 304 (5th Cir. 2008) (finding that even
if plaintiff could m ake prim a facie case, sum m ary judgm ent was proper where plaintiff could not prove
defendant’s justifications were pretextual).

        49
            See Gonzales, 143 F. App’x at 607. W e construe the College’s argum ent as contending that
Villarreal has no evidence of the fourth elem ent of a prim a facie case of discrim ination based on failure to
prom ote: that she has no evidence that the College continued to seek or prom oted applicants who were
outside the protected class for the position, or that she was treated less favorably than other sim ilarly situated
em ployees. See id.; City of Forest Hill, 189 S.W .3d at 375.

                                                        14
        In her response and supplemental response,50 Villarreal argued that she has

established the fourth element of her prima facie case by identifying four similarly-situated

Anglo employees of the College, whose jobs are similar to Villarreal’s. Specifically,

Villarreal contends, “David Andrus, Jay Knioum, Sue Beceda and Barbara Thompson are

or were Anglo employees of [the College], their jobs are similar to [Villarreal’s] and they

receive substantially higher wages for the same work as [Villarreal] performs.”                              As

evidence, Villarreal refers to her own affidavit and “Salary Information Sheets” for Andrus,

Thompson, and Beseda, identifying each employee’s title, department, salary, and “FLSA

status,” which is exempt.

        We note that the College filed objections to and moved to strike Villarreal’s affidavit

on numerous grounds, including that it is “rife with inadmissible hearsay, opinions, and

conclusory statements.” The record does not reflect that the trial court ruled on the

College’s objections or motion to strike. Objections to the substance of summary-judgment

evidence may be raised for the first time on appeal.51 The College’s objection that

Villarreal’s affidavit contains conclusory statements challenges the substance of Villarreal’s

summary-judgment evidence, and we may therefore address the objection.52 We decline

to do so, however, because even if considered, the relevant portions of Villarreal’s affidavit



        50
           The sections addressing this issue in Villarreal’s response and supplem ental response are identical,
except that the supplem ental response refers to evidence regarding salary inform ation for three of the
allegedly sim ilarly-situated individuals.

        51
            See Page v. State Farm Lloyds, 259 S.W .3d 257, 265-66 (Tex. App.–W aco 2008, pet. filed)
(distinguishing objections to form of sum m ary-judgm ent evidence, which are preserved only if objections are
m ade and ruled on by trial court from objections to substance of sum m ary-judgm ent evidence, which m ay be
raised for first tim e on appeal) (citing Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W .3d 235, 241
(Tex. App.–W aco 2003, no pet.) and Trusty v. Strayhorn, 87 S.W .3d 756, 765 (Tex. App.–Texarkana 2002,
no pet.)).

        52
             See id.

                                                      15
do not assist her in avoiding summary judgment.

      Villarreal’s affidavit states, in relevant part:

             Third, by comparing me with others at the College with similar
      responsibility such as those whose primary task [i]s to work with the same
      data base I do and/or have substantial state reporting functions, I am paid
      substantially less than they. As to most comparators, I have been employed
      at the College much longer. David Andrus, an Anglo employee who has not
      charged discrimination, has recently become the Director of Institutional
      Research (IR). He prepares some reports to the State Board as I do as well
      as reports to federal agencies and the Board of Regents. He uses my
      reports and collected data to present in slightly different summary form to the
      Board. The job is APT scale and pays substantially more. See Andrus
      Deposition, Exhibit H, page 49-50. Another example for comparison is Jay
      Knioum at College Relations, an Anglo who has not charged discrimination
      against the College. He prepares reports using the same or similar
      databases I use. He has less years at the College than me, is APT level and
      earns substantially more than I earn. Also, Sue Beceda [sic] was a Manager
      at the Payroll Department before she retired and passed away. She used
      databases created by a number of data entry clerks as I do and created
      reports required by the State and other entities as I do. She was an Anglo
      employee who had not charged discrimination against her employer. She
      did not have a college degree and she was APT scale making substantially
      more than I. See Exhibit O. The Assistant Registrar, Barbara Thompson,
      is Anglo and has not charged discrimination against the College. She has
      substantially fewer responsibilities than I but she does compile reports for the
      [S]tate and other agencies relating to foreign students at the College. She
      indirectly supervises one assistant share with others [sic] and, very indirectly,
      the rest of the clerks. She has substantially less experience and
      responsibility but she is graded APT and earns substantially more than I.

      The “Salary Information Sheets” included in Villarreal’s summary judgment evidence

establish that (1) Andrus is Director of the Institutional Research and Effectiveness

Department; (2) Thompson is Assistant Director of the Registrar’s Office; and (3) Beseda

was Manager of the Payroll Department.

      “More favorable treatment of a person outside a protected class can be used to

show discrimination only if the circumstances are nearly identical.”53 In the context of


      53
           City of Forest Hill, 189 S.W .3d at 376.

                                                      16
employment discrimination, “[e]mployees are similarly situated if their circumstances are

comparable in all material respects, including similar standards, supervisors, and

conduct.”54 To establish that employees are “comparable in all material respects,” a

plaintiff must “show not only that the employees reported to the same supervisor, engaged

in the same conduct, and had the same qualifications, but also show that there were no

‘differentiating or mitigating circumstances as would distinguish . . . the employer's

treatment of them.’”55 Employees who hold different job positions are not similarly

situated.56 Ordinarily, a plaintiff is not similarly situated to another employee when the

plaintiff is subordinate to that employee.57

        Here, except for Thompson, none of the allegedly “similarly situated” employees

identified by Villarreal had the same supervisor. As Villarreal notes in her affidavit, Andrus

was the Director of the Institutional Research Department.58 According to Villarreal, he has

similar duties because he “prepare[s] some reports” as she does for the State Board and

Board of Regents. Knioum, who, according to Villarreal, is in a different department

(College Relations), is similarly situated only because he “prepares reports using the same


        54
           Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W .3d 915, 917 (Tex. 2005); see Burks v. W isconsin
Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006) (noting factors relevant to inquiry of whether an em ployee
is com parable in all m aterial respects include “whether the em ployees reported to the sam e supervisor,
whether they were subject to the sam e standards and whether they had com parable education, experience
and qualifications”).

        55
           Ineichen v. Ameritech, 410 F.3d 956, 960-61 (7th Cir. 2005) (quoting Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)); see Edwards v. Grand Casinos of Miss., Inc., 145 F. App’x 946,
948 n.2 (5th Cir. 2005) (noting that as to sim ilarly situated requirem ent, circum stances surrounding the
com pared em ployees m ust be “nearly identical”) (citing W allace v. Methodist Hosp. Sys., 271 F.3d 212, 221
(5th Cir. 2001) and W yvill v. United Cos. Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir. 2000)).

        56
             Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1115 (10th Cir. 2005).

        57
             Burks, 464 F.3d 744 at 751.

        58
          W e note that David Andrus’s deposition, referenced in Villarreal’s affidavit, is not included in the
record before us.

                                                      17
or similar databases” that she uses. Beseda was the Manager of the Payroll Department,

whose job, according to Villarreal, was similar to hers because they both “used databases”

and “created reports.” Thompson was in the same department as Villarreal and had the

same supervisor (Jordan), but Thompson was the Assistant Registrar. According to

Villarreal, Thompson’s duties were comparable to Villarreal’s because Thompson also

“compile[d] reports.”          However, Villarreal’s own summary judgment evidence, which

included Jordan’s deposition testimony, established that Thompson was next-in-charge,

second only to Jordan, at the Registrar’s Office.

        As noted, Villarreal is not “similarly situated” to Thompson because she was

subordinate to Thompson, and a plaintiff is not “similarly situated” to another employee

when the plaintiff is subordinate to that employee.59 We hold that Villarreal failed to

establish that any of the Anglo employees she identified were similarly situated.

Accordingly, she failed to establish the fourth element of her discrimination claim, that she

was treated less favorably than similarly situated members of the opposing class.60

       We also agree with the College that based on Finch’s deposition testimony, it offered

legitimate, non-discriminatory reasons for its refusal to reclassify Villarreal’s position as

exempt, and Villarreal has presented no evidence that the College’s reasons are pretextual.

We hold the trial court did not err in granting the College’s motion for summary judgment

on no-evidence grounds with regard to Villarreal’s discrimination claim.61 We overrule

        59
             See Burks, 464 F.3d 744 at 751.

        60
             See City of Forest Hill, 189 S.W .3d at 375.

        61
            W e also hold that for the reasons explained above in our discussion of Villarreal’s retaliation claim ,
the College is entitled to sum m ary judgm ent on traditional grounds because it offered legitim ate, non-
retaliatory reasons for its actions and Villarreal had no evidence that the College’s reasons were pretextual.
See Fuentes, 282 F. App’x at 304 (finding that even if plaintiff could m ake prim a facie case, sum m ary
judgm ent was proper where plaintiff could not prove defendant’s justifications were pretextual).

                                                       18
Villarreal’s first issue.

                                    C. Adverse Employment Action

       By her second issue, Villarreal contends that the trial court failed to apply the

definition of an “adverse employment action” established by the United States Supreme

Court in Burlington.62 We need not decide this issue, however, because regardless of the

definition of “adverse employment action” used by the trial court, we have determined that

summary judgment was properly granted (1) as to Villarreal’s retaliation claim because there

was no evidence of a causal nexus between the denial of her reclassification request and

her exercise of protected activity, and (2) as to her discrimination claim because there was

no evidence that she was treated less favorably than similarly situated Anglo employees.

                                              IV. Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment dismissing Villarreal’s

claims.




                                                            ________________________
                                                            LINDA REYNA YAÑEZ,
                                                            Justice




Memorandum Opinion delivered and filed
this the 26th day of March, 2009.




          62
               See Burlington N. & Santa Fe Ry. Co. v. W hite, 548 U.S. 53, 68 (2006).

                                                       19
