Reversed and Rendered and Opinion filed June 5, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01047-CV

                 COLLEGE OF THE MAINLAND, Appellant
                                         V.

                          BRUCE GLOVER, Appellee

                    On Appeal from the 10th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 13-CV-0115

                                   OPINION

      This is a case of alleged gender discrimination. Bruce Glover claims that his
employer, the College of the Mainland (the “College”), gave preferential treatment
to female colleagues in matters concerning their compensation. The College moved
to dismiss, claiming that the trial court lacked jurisdiction because Glover had not
timely pursued his administrative remedies. On alternative grounds, the College
also argued that the court lacked jurisdiction because Glover had failed to establish
a prima facie case of discrimination. The trial court denied the motion, having
rejected both of the College’s theories. We agree with the College’s second theory
that Glover did not establish a prima facie case of discrimination. Accordingly, we
reverse and render judgment dismissing Glover’s suit.

                                BACKGROUND

      The College hired Glover as an assistant professor in 2001. At that time, the
salaries for all faculty members were determined by two factors. The first factor
focused on the professor’s level of educational attainment. Professors with a
doctorate or its equivalent were placed on one pay scale with a high rate of pay.
Professors with anything less than a doctorate were placed on an alternate pay
scale with a lower rate of pay. The College did not recognize any difference
between those professors with a master’s, bachelor’s, or associate’s degree. For
purposes of determining their pay rate, the College simply grouped these
professors together.

      The second factor in salary determinations was the length of the professor’s
contract. All professors were employed at the College on a term basis, and terms
lasted either 9 months, 10.5 months, or 12 months. A professor’s annual base
salary was calculated using both factors considered together, rate of pay and term
length.

      The College instituted additional guidelines for adjusting a professor’s
salary. The guidelines provided that new hires could receive an initial adjustment
above their base pay, up to 10%, depending on the length of their previous
experience. The guidelines further stated that all professors could expect a 2%
increase in salary after each year of service, not to exceed a predetermined
maximum.




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      In 2007, the College restructured its pay scales to address certain budgetary
constraints and to more closely align faculty salaries with academic credentials.
Under the new system, which is still in effect today, the College recognizes four
levels of educational attainment, each corresponding with a different university
degree: associate’s, bachelor’s, master’s, and doctorate. The College identifies
these degrees as horizontal “bands” on its pay scales, and each professor is
assigned to one band based on the highest degree he or she has obtained.

      Along each horizontal band are vertical “steps” ranging from Step 1 to Step
17. A professor’s step is determined by his or her experience. New hires start at
Step 1 and work their way up. The higher the step, the greater the rate of pay.
Likewise, as the level of educational attainment increases, so does the potential for
more pay. Consistent with the College’s former pay system, a professor’s annual
salary is still fixed according to his or her length of contract.

      The College moved all of its professors to the new pay scales in 2007, when
the system was first implemented. During the transition process, the College took
appropriate measures to ensure that all returning employees were assigned to a
band and a step that paid them at a rate equal to or greater than the rate from the
previous year. Glover was placed on the “FM” band, which is reserved for faculty
members possessing a master’s degree or its equivalent. Because of Glover’s
previous salary, he was assigned to Step 4 along this band. Glover was also
awarded a 12-month contract for the 2007–2008 academic school year. Based on
these criteria, the pay scales determined that Glover was to be compensated with
an annual salary of more than 3% from the previous year.

      Two female comparators, whom we identify as F.O. and C.J., teach in the
same department as Glover. F.O. began teaching at the College in 1997, four years
before Glover was first hired. C.J. started three years before that, meaning that she

                                            3
has seven more years of teaching experience than Glover. When the new pay
scales were implemented, F.O. was assigned to Step 10 on the “FA” band, which is
reserved for faculty members with no greater than an associate’s degree or its
equivalent. C.J. was assigned to Step 5 of the FM band, one step above Glover.
Because C.J. and Glover had the same level of educational attainment, C.J.’s
higher step entitled her to a pay rate that was slightly greater than Glover’s. F.O.’s
pay rate was less than Glover’s, despite her higher step, because the FA band
provided the lowest measures of faculty compensation.

      F.O. and C.J. each enjoyed relative pay increases when the College moved
to the new pay system. Like Glover, they both experienced raises of more than 3%
from the previous year. Despite these increases, both comparators saw reductions
in their annual salaries because the College shortened the terms of their contracts
from 10.5 months to 9 months. Since 2007, Glover has always had a greater
contract term than both F.O. and C.J. Similarly, Glover’s annual base salary has
always exceeded that of both comparators.

      After implementing the new pay system, the College made several positive
adjustments in pay for each professor. Glover was elevated to Step 5 in 2008, and
to Step 6 in 2009, where he has remained ever since. As of 2010, F.O. has been at
Step 12. C.J. filed a grievance in 2008 relating to her pay, and the College elevated
her two steps to Step 7. She has been at Step 9 since 2010. Glover filed a similar
grievance in 2012, but he requested an elevation to Step 15. When the College
offered him only a single-step increase, Glover rejected the adjustment.

      In October of 2012, Glover filed a charge of discrimination with the EEOC,
claiming that he had been “incorrectly placed on the salary classification scale.”
Glover compared himself directly with F.O., rather than C.J., in his administrative
complaint. Glover noted that he and F.O. each had the same faculty position and

                                          4
teaching load, yet F.O. was assigned to a much higher step. Glover opined that his
gender was the only possible reason for having a lower step. Glover did not
acknowledge the differences in educational attainment and how such differences
impact the rate of pay under the College’s pay scales. Glover also omitted
mentioning that his annual base salary was higher than F.O.’s.

      The EEOC dismissed Glover’s charge, having found no evidence of
actionable discrimination. Glover then filed this lawsuit, complaining in general
terms that the College had treated women more favorably than men in the setting
of faculty wages. No female comparators were named in the petition.

      The College filed a motion for summary judgment and asked the court to
dismiss the suit for want of jurisdiction. The College cited the strict requirements
of the Texas Commission on Human Rights Act (the “TCHRA”), which mandates
that a charge of discrimination be filed within 180 days of an alleged unlawful
employment practice. The College argued that the alleged unlawful employment
practice occurred in 2009, when the College last adjusted Glover’s step. Because
this preceded the date that Glover filed his charge by more than three years, the
College contended that the trial court was deprived of jurisdiction.

      On alternative grounds, the College argued that it was entitled to judgment
because Glover had also failed to demonstrate a prima facie case of discrimination.
The College argued that Glover’s claim must fail because Glover actually had a
higher salary than F.O., the only female comparator identified in his charge of
discrimination. The College also argued that Glover and F.O. were not similarly
situated because F.O. had more teaching experience than Glover.

      Glover amended his pleadings to expand on his claim of disparate treatment,
as well as to remove a cause of action not relevant here. Glover explained that the
College had deviated from the pay plan on an ad hoc basis, all to achieve desired
                                          5
personnel decisions in favor of female faculty members. Once again, Glover did
not identify any comparators by name.

      Glover then filed a response to the College’s motion for summary judgment.
Disputing the jurisdictional bar, Glover argued that it was not the setting of his pay
that triggered his discrimination complaint, but rather the “subsequent” decisions
of the College to give preferential treatment to his female colleagues. Glover did
not identify the dates of these alleged instances, but he did name F.O. and C.J.,
alleging they were the beneficiaries of the disparate treatment. Glover also argued
that his charge of discrimination was timely because of the “continuing violation”
doctrine. He explained that the deadline to file his charge was subject to equitable
tolling because the College had hidden vital information that prevented him from
discovering the discrimination.

      Glover also argued that he had both direct and indirect evidence of gender
discrimination. Glover complained that F.O. had been placed on the FA band when
she did not possess an associate’s degree or its equivalent. He also complained that
C.J. had advanced two steps on the FM band “in clear contravention of the stated
rules for placement on the salary scale.” Both actions, in Glover’s view,
demonstrated the College’s more favorable disposition towards female faculty
members.

      The College filed a reply objecting to the use of C.J. as a comparator, who
had not been identified in either the charge of discrimination or the original
petition. The College also disputed Glover’s attempts to avoid the strict statute of
limitations imposed by the TCHRA. The trial court denied the College’s motion,
prompting this interlocutory appeal.




                                          6
                         APPELLATE JURISDICTION

      Generally, appeals may be taken only from final judgments or orders. See
Lehmann v. Har-Conn Corp., 39 S.W.3d 191, 195 (Tex. 2001). Section
51.014(a)(8) of the Civil Practice and Remedies Code provides an exception to this
rule by allowing an appeal from an interlocutory order that “grants or denies a plea
to the jurisdiction by a governmental unit.” There is no dispute that the College, as
a public junior college district, is a “governmental unit.” See Tex. Civ. Prac. &
Rem. Code § 101.001(3)(B); Tex. Educ. Code § 130.174.

      The trial court denied a pleading that was styled as a traditional motion for
summary judgment, rather than as a plea to the jurisdiction. However, the style of a
pleading does not strictly determine its character. See Tex. R. Civ. P. 71; Daniels v.
Empty Eye, Inc., 368 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied). When assessing our jurisdiction under Section 51.014(a)(8), we must also
consider the substance of the plea for relief. See Lazarides v. Farris, 367 S.W.3d
788, 796–97 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because the College
moved for summary judgment on jurisdictional grounds, we will treat the
College’s motion as a plea to the jurisdiction. Id. The trial court having denied the
plea, we conclude that we have jurisdiction to consider this interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Thomas v. Long, 207 S.W.3d
334, 339 (Tex. 2006) (interlocutory appeal available whenever a trial court denies
a governmental unit’s challenge to subject matter jurisdiction, “irrespective of the
procedural vehicle used”).

                              ISSUES PRESENTED

      The College raises two issues. In its first issue, the College argues that
Glover filed an untimely charge of discrimination. Because the exhaustion of
administrative remedies is a statutory prerequisite to suit, the College contends that
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we must dismiss for want of jurisdiction. In its second issue, the College contends
that the trial court lacked jurisdiction because Glover failed to demonstrate a prima
facie case of discrimination. We only consider this second issue.

                            STANDARD OF REVIEW

      As a political subdivision of the state, the College is immune from suit
absent an express waiver of governmental immunity. See College of the Mainland
v. Meneke, 420 S.W.3d 865, 868 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
One such waiver can be found under the TCHRA, which provides that an employer
may not, on the basis of sex, discriminate in any manner against an employee in
connection with compensation or the terms, conditions, or privileges of
employment. See Tex. Lab. Code § 21.051; Mission Consol. Indep. Sch. Distr. v.
Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (“Garcia I”) (holding that “the TCHRA
clearly and unambiguously waives immunity”).

      The TCHRA’s waiver of immunity only applies in those suits where the
plaintiff actually alleges a violation within the scope of the statute. See Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“Garcia
II”). If the plaintiff does not sufficiently plead facts that state a claim under the
TCHRA, the governmental unit may challenge the pleadings with a plea to the
jurisdiction. Id. Using the same procedural device, the governmental unit may also
challenge the very existence of those jurisdictional facts. Id. at 635.

      The elements of a prima facie case are jurisdictional when a governmental
unit has been sued. Id. at 635–37. If the suit involves claims of disparate treatment,
the prima facie case requires proof that the discrimination claimant was treated less
favorably than a similarly situated comparator from the opposing class. See Univ.
of Tex. Med. Branch at Galveston v. Petteway, 373 S.W.3d 785, 788–89 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). The College argues that Glover cannot
                                           8
allege a claim within the scope of the TCHRA because Glover is not similarly
situated to his female comparators. Because the failure to demonstrate a prima
facie case “means the court has no jurisdiction,” the College’s plea to the
jurisdiction is appropriately construed as a challenge to the existence of
jurisdictional facts. See Garcia II, 372 S.W.3d at 637.

      When a plea to the jurisdiction challenges the existence of jurisdictional
facts, a trial court’s review of the plea mirrors that of a traditional motion for
summary judgment. Id. at 635. Initially, the defendant carries the burden to present
evidence negating the existence of a jurisdictional fact. Id. at 635, 637. If it does,
the plaintiff is then required to show that a disputed material fact exists regarding
the jurisdictional issue. Id. at 635. If a fact issue exists, the trial court should deny
the plea. Id. But if the relevant evidence is undisputed or the plaintiff fails to raise
a fact question on the jurisdictional issue, the trial court rules on the plea as a
matter of law. Id.

      We apply a de novo standard of review to a trial court’s ruling on a
challenge to its subject matter jurisdiction. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We take as true all evidence favorable
to the nonmovant, and indulge every reasonable inference and resolve any doubts
in the nonmovant’s favor. Id.

      Finally, because the legislature intended for state law to correlate with
federal law in employment discrimination cases, we may look to analogous federal
cases when applying the TCHRA. See Tex. Lab. Code § 21.001; Wal-Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).




                                           9
                                    ANALYSIS

      There are two methods of proof in cases alleging disparate treatment. The
first method involves proving discriminatory intent through direct evidence of
what the defendant did and said. See Garcia II, 372 S.W.3d at 634. Because direct
evidence of discrimination is a “rarity” in employment cases, courts have allowed
claims to proceed with only indirect or circumstantial evidence of discrimination.
See Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied). Under this second method, courts follow the burden-
shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

      The McDonnell Douglas framework was created to make matters easier for
discrimination plaintiffs. See Garcia II, 372 S.W.3d at 634. Under this framework,
the plaintiff is entitled to a presumption of discrimination if he meets the
“minimal” initial burden of establishing a prima facie case of discrimination. Id.
The precise elements of a prima facie case will vary depending on the
circumstances, but the plaintiff’s burden at this stage is not supposed to be onerous.
Id. The McDonnell Douglas presumption is “merely an evidence-producing
mechanism that can aid the plaintiff in his ultimate task of proving illegal
discrimination by a preponderance of the evidence.” See Wright v. Southland
Corp., 187 F.3d 1287, 1293 (11th Cir. 1999). The prima facie case “raises an
inference of discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of impermissible
factors.” See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). If the
defendant fails to articulate a legitimate, nondiscriminatory reason for the
employment decision, then the McDonnell Douglas presumption is sufficient to
support a finding of liability. See Garcia II, 372 S.W.3d at 634.



                                         10
      A.     There is no direct evidence of discrimination.

      Glover contends that a prima facie showing of discrimination is unnecessary
because there is direct evidence of disparate treatment—namely, his request for a
salary adjustment was denied, whereas a similar request by C.J. was granted.
According to Glover, this evidence constitutes direct proof of discrimination
because C.J.’s adjustment was done “without explanation or justification,” in
contravention of a previous statement by College administrators that it would be
“inherently unfair” to advance faculty members on the pay scales without reference
to stated rules and procedures.

      “Direct evidence of discrimination is evidence that, if believed, proves the
fact of discriminatory animus without inference or presumption.” Jesperson v.
Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no
pet.). The evidence here does not affirmatively reflect that Glover was denied a
salary adjustment on the basis of discriminatory animus. There is no evidence that
the College refused Glover’s request because he is male, or that C.J. received her
adjustment because she is female. Even Glover recognizes in his brief that C.J.’s
adjustment was done “without explanation.”

      The evidence cited by Glover would not support a claim of discrimination
under the TCHRA without an inference or presumption that the College treated
Glover and C.J. differently on account of their sex. We accordingly conclude that
there is no evidence of direct discrimination.

      B.     Glover did not establish a prima facie case of discrimination.

      In the absence of direct evidence of discrimination, Glover must establish a
prima facie case of discrimination under the McDonnell Douglas framework. For
claims of disparate treatment, a prima facie case is made by showing that the


                                         11
plaintiff (1) is a member of a protected class, (2) was qualified for his or her
position, (3) was subject to an adverse employment decision, and (4) was treated
less favorably than similarly situated persons not in the protected class. See Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Navy v. College of
the Mainland, 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). There is no dispute that Glover was qualified for his job and that, as a male,
he is a member of a protected class. Furthermore, there is no dispute that Glover
suffered an adverse employment decision when his request for a step increase was
rejected. The sole issue is whether Glover satisfied the fourth element with respect
to F.O. and C.J., the only female comparators identified in his summary judgment
response.

             1.    Glover is not similarly situated to F.O.

      Even though Glover makes more money than F.O., and has for the last
several years, Glover contends that the College has discriminated against him on
account of his gender. Glover bases his complaint on F.O.’s higher step on the FA
band. Glover contends that F.O. has advanced at a faster rate on the College’s pay
scales, solely because she is a woman. The College responds that this claim of
discrimination must fail because, even if he was treated less favorably, Glover
cannot show that he is similarly situated to F.O.

      The Texas Supreme Court has held that “[e]mployees are similarly situated
if their circumstances are comparable in all material respects.” Ysleta Indep. Sch.
Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). The Fifth
Circuit has articulated a similar standard, saying that employees are similarly
situated if their circumstances are “nearly identical.” See Perez v. Tex. Dep’t of
Criminal Justice, Institutional Div., 395 F.3d 206, 213 (5th Cir. 2004); Okoye v.
Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). When

                                         12
applying these standards to cases alleging disparate treatment in terms of pay, the
material factors we consider are whether the claimant and comparator have similar
levels of experience or education, similar levels of seniority, and similar
disciplinary records. See Cooper v. S. Co., 390 F.3d 695, 741, 743, 745 (11th Cir.
2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006).

      Glover and F.O. do not have similar levels of educational attainment, which
is apparent from their assignments to different horizontal bands. F.O. graduated
from the College in 1995 with a “Graphic Arts/Desktop & Electronic Publishing
Certificate.” There is no indication that she pursued a higher degree either before
or after 1997, when she returned to the College as a full-time faculty member.
Glover, by contrast, has a master’s degree in business administration from Stephen
F. Austin State University.

      Glover and F.O. are also dissimilar in terms of seniority. Glover started
teaching at the College in 2001, four years after F.O. Courts have recognized that
employees are not similarly situated when they lack comparable years of service.
See id. at 743 (prima facie case not shown where comparators were more senior by
six years); Hobbs v. Ketera Techs., Inc., 865 F. Supp. 2d 719, 730 (N.D. Tex.
2012) (prima facie case not shown where claimant had been working for the
employer for over a year, whereas comparator had been working for approximately
six months). Based on their different levels of educational attainment and tenure at
the College, we conclude that Glover and F.O. are not similarly situated or “nearly
identical.” Thus, even if we assumed that Glover was treated less favorably than
F.O., Glover has still failed to establish a prima facie case of gender
discrimination.



                                        13
             2.    Glover is not similarly situated to C.J. either.

      In his next claim, Glover argues that he was treated less favorably than C.J.
because the College granted her request for an adjustment in pay, whereas his
request was denied. Since 2007, when the new pay scales were implemented, C.J.
has had a higher rate of pay than Glover, but her annual salary has still been lower
because of her shorter term contracts. Apparently believing that he is entitled to
even more pay than C.J., Glover contends that he has suffered disparate treatment
as the result of gender discrimination.

      The College did not specifically argue in its plea to the jurisdiction that
Glover was not similarly situated to C.J. Instead, the College argued in a reply that
C.J. could not be considered as a comparator because she was not named in either
the charge of discrimination or the original petition. On appeal, the College asserts
for the first time that Glover is not similarly situated to C.J. because C.J. has been
teaching for a longer period of time. As we stated above, this argument challenges
the existence of jurisdictional facts. On interlocutory appeal, this court must
address a defendant’s jurisdictional arguments, regardless of whether they were
raised in the trial court. See Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41
(Tex. 2013) (per curiam); Univ. of Tex. M.D. Anderson Cancer Ctr. v. Baker, 401
S.W.3d 246, 262 (Tex. App.—Houston [14th Dist.] 2012, pet. filed). Because the
parties have fully briefed the issue here, we now consider their arguments whether
Glover and C.J. are similarly situated. If the record conclusively negates this
jurisdictional fact, then the suit must be dismissed. See Rusk State Hosp. v. Black,
392 S.W.3d 88, 96 (Tex. 2012).

      Glover and C.J. are similar in the sense that they each have master’s degrees,
but their professional experience varies widely. Glover has sixteen more years in
“full time industry,” whereas C.J. has seven more years of teaching experience.

                                          14
Because of her relative seniority at the College, C.J. has accrued a higher rate of
pay over the years. That pay rate was maintained when the College implemented
its new pay scales in 2007.

      Consistent with our previous analysis with respect to F.O., we conclude that
Glover and C.J. are not similarly situated. Glover’s tenure at the College is shorter
than C.J.’s by seven years. Their circumstances are not “nearly identical” for
comparison purposes. See Cooper, 390 F.3d at 743.

                                 CONCLUSION

      We sustain the College’s second issue that Glover is unable to establish a
prima facie case of gender discrimination. In the absence of essential jurisdictional
facts, the plea to the jurisdiction must be granted. Therefore, we reverse and render
judgment dismissing Glover’s suit.




                                       /s/    Tracy Christopher
                                              Justice


Panel consists of Justices Christopher, Jamison, and McCally.




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