Reversed and Rendered and Opinion filed June 5, 2012.




                                        In The

                         Fourteenth Court of Appeals
                                ___________________

                                 NO. 14-11-00498-CV
                                ___________________

     THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                            Appellant

                                           V.

                           NICOLE PETTEWAY, Appellee


                       On Appeal from the 10th District Court
                             Galveston County, Texas
                         Trial Court Cause No. 09CV1537


                                     OPINION

      In this gender-discrimination case, Nicole Petteway sued her former employer, the
University of Texas Medical Branch at Galveston (“UTMB”), alleging that she received
disparate discipline on the basis of her gender. UTMB filed a plea to the jurisdiction in
which it argued that Petteway failed to assert a claim for which UTMB’s sovereign
immunity had been waived. The trial court denied the plea, and UTMB brought this
interlocutory appeal. Because (a) Petteway failed to assert a claim for which immunity
has been waived, and (b) UTMB has negated the existence of jurisdictional facts, we
reverse and render judgment dismissing the case with prejudice.


                    I. FACTUAL AND PROCEDURAL BACKGROUND

      In 2007 and the early part of 2008, Nicole Petteway and Leon McGrew had an
extramarital affair while they were employed as nurses at UTMB. The two worked on the
adjacent units on the same floor of the facility. Their respective spouses also were
employed by UTMB, but worked in other departments.

      On or about January 28, 2008, Petteway was confronted at work about her
relationship with McGrew by Mary Jackson, another female UTMB employee who also
had a longstanding relationship with him. The two women then went to the unit where
McGrew worked, and in the presence of other co-workers, confronted him about the
relationships. As Petteway was leaving work that night, she again confronted McGrew in
the parking lot. According to Petteway, she ended the relationship with McGrew at that
time. The next day, McGrew complained to Dee Gallardo, the nurse manager for both
McGrew’s unit and Petteway’s unit, that Petteway was sexually harassing him. Gallardo
spoke with both Petteway and McGrew, and both employees agreed that they would have
no further communication that was not work-related. Ten days later, McGrew gave his
employer a written complaint in which he stated that Petteway continued to harass him.
He stated that on February 1, 2008, Petteway came to his unit, told him that she wanted to
be friends, and asked “how I could do her this way.” McGrew complained that he locked
himself in a bathroom to get away from Petteway, and when he opened the door, he found
that she was waiting for him. He related that he closed the door and waited for her to
leave, then telephoned Gallardo and reported the behavior.           Petteway allegedly
approached McGrew again, and he told her that he had reported her actions. According to
McGrew, Petteway apologized and said that she would not violate the terms of their
agreement again if he would speak with Gallardo and ask her “not to pursue this situation
                                          2
with Human Resources.” Six days later, however, there was another confrontation on the
unit where McGrew worked, and he was heard yelling at Petteway to get away from him.
McGrew stated in his written report that Petteway repeatedly followed him, telling him
“she would always be there for me” and asking him why he was “acting so cold” to her.
According to McGrew, Petteway approached him twice at the nurses’ station, and when he
was leaving, she followed him to the elevator. McGrew stated that he went to a different
elevator, and then to the stairs, but Petteway continued to follow him until he yelled at her.
He claimed that she then approached him in the parking lot.

       McGrew’s complaint was forwarded to the Human Resources Consultant Yoni
Benson, who interviewed McGrew and Petteway.              According to Benson, Petteway
admitted the allegations, but Petteway testified at a later hearing that she told Benson the
allegations were false. Petteway further stated that she asked to write a rebuttal and that
Benson told her it was unnecessary. Benson concluded that McGrew’s complaint was
substantiated. Because Petteway was a “Nurse Clinician IV” with specialized skills and
McGrew was a “Nurse Practitioner I or II,” Benson initially determined to recommend that
UTMB should retain Petteway in her current position and transfer McGrew; however,
before Benson made any recommendation, McGrew submitted a third complaint. He
stated on February 21, 2008, Petteway again came to his unit and repeatedly followed him
and tried to talk about their relationship until he yelled at her and telephoned Gallardo.
Gallardo then asked to speak to Petteway and told Petteway to leave. Petteway later stated
that she had been scheduled to work on McGrew’s unit at Gallardo’s request. Gallardo
denied this.

       Based on the continued complaints, Benson recommended Petteway’s termination.
On February 26, 2008, Gallardo notified Petteway in writing that McGrew’s complaints
had been investigated and “violations of the sexual harassment policy were validated.”
Gallardo stated that she intended to ask UTMB to terminate Petteway’s employment the

                                              3
following day, and invited Petteway to inform her, in person or in writing, if any of the
facts were incorrect or if there was any reason that she should not be terminated. Petteway
did not respond, and UTMB terminated her employment on February 27, 2008. She
appealed the decision to in accordance with UTMB’s internal policies, and her termination
was upheld.

       After exhausting her administrative remedies with the Equal Employment
Opportunity Commission, the Texas Commission on Human Rights, and the Texas
Workforce Commission, Petteway sued UTMB for gender discrimination. She alleged
that she received disparate treatment from UTMB because she was terminated and
McGrew was not. UTMB filed a plea to the jurisdiction in which it asserted that Petteway
had not and could not plead a prima facie case of discrimination. Specifically, UTMB
argued that Petteway alleged only that McGrew received more favorable treatment in that
his employment was not terminated, but did not allege that she and McGrew were similarly
situated. In addition, UTMB asserted and offered evidence that the two are not similarly
situated because Petteway was the subject of sexual-harassment complaints and McGrew
was not. The trial court denied the plea, and UTMB timely appealed. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2011) (authorizing the interlocutory
appeal of the trial court’s denial of a plea to the jurisdiction).


                                 II. STANDARD OF REVIEW

       Governmental entities such as UTMB are immune from suit unless the legislature
has waived immunity. See Univ. of Tex. Med. Branch at Galveston v. Simmons, No.
14-11-00215-CV, 2012 WL 19665, at *2 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012,
no pet.) (mem. op.). One such waiver can be found in the Texas Commission on Human
Rights Act (the “TCHRA”), which provides that an employer may not discriminate against
or discharge an employee based on the employee’s race, color, disability, religion, sex,
national origin, or age. See TEX. LAB. CODE ANN. § 21.002(8)(D) (West Supp. 2011)
                                         4
(defining “employer” to include “a county, municipality, state agency, or state
instrumentality”); id. § 21.051 (West 2006) (listing the protected classes of people to
whom the TCHRA applies); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
660 (Tex. 2008) (holding that “the TCHRA “clearly and unambiguously waives
immunity”). UTMB, however, filed a plea to the jurisdiction in which it argued that the
trial court lacked jurisdiction because Petteway has not and cannot allege a claim within
the scope of the TCHRA’s waiver of immunity. Thus, UTMB has challenged both the
sufficiency of Petteway’s pleadings and the existence of jurisdictional facts.

       The determination of whether the pleadings contain factual allegations
affirmatively demonstrating the trial court’s subject-matter jurisdiction presents a question
of law that we review de novo. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). To make this determination, we construe the pleadings liberally in
favor of the plaintiff and look to the plaintiff’s intent Miranda, 133 S.W.3d at 226. If the
pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction, the plaintiff should be afforded the opportunity to amend unless the pleadings
demonstrate incurable jurisdictional defects. Id. at 226–27. If the defendant challenges
the existence of jurisdictional facts and the jurisdictional challenge implicates the merits of
the plaintiff’s case, the trial court considers relevant evidence if necessary to resolve the
jurisdictional issues. Id. at 227. If the evidence creates a question of fact, then the trial
court cannot grant the plea to the jurisdiction. Id. at 227–28. On the other hand, if the
pleadings or evidence affirmatively negate a jurisdictional fact, then the court may grant
the plea to the jurisdiction without allowing the plaintiff an opportunity to amend the
pleadings. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008).


                                       III. ANALYSIS

       To prevail on a claim of gender discrimination, the plaintiff must establish that
(1) she is a member of a of a class protected by the TCHRA, (2) she was qualified for her
                                             5
position, (3) she was terminated, and (4) she was treated less favorably than similarly
situated members of the opposing class. See Ysleta Indep. Sch. Dist. v. Monarrez, 177
S.W.3d 915, 917 (Tex. 2005) (per curiam). UTMB does not dispute that Petteway meets
the first three elements, but instead argues both that Petteway failed to allege that she and
McGrew are similarly situated, and that the undisputed evidence establishes that they are
not similarly situated. We agree with both of these contentions.

       “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.’”                  Id. (footnotes omitted).        In a
gender-discrimination case, the plaintiff usually must show that the misconduct for which
she was discharged was nearly identical to that engaged in by an employee of the other
gender whom the company retained. See id. at 918 (citing Smith v. Wal-Mart Stores, Inc.,
891 F.2d 1177, 1180 (5th Cir. 1990)).1 In addition, the plaintiff and the comparator must
“have essentially comparable violation histories.” Lee v. Kan. City S. Ry. Co., 574 F.3d
253, 260 (5th Cir. 2009).

       In her pleadings, Petteway specifically alleged that McGrew filed a complaint of
sexual harassment against her on January 28, 2008, but she did not allege that anyone made
similar complaints against McGrew. Thus, she failed to allege that she and McGrew are
similarly situated. See Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 562 (7th Cir.
1998) (employees who are the subject of sexual-harassment complaints are not similarly
situated to employees against whom no such complaint was made); accord, Hawn v.
Executive Jet Mgmt., Inc., 615 F.3d 1151, 1160 (9th Cir. 2010); accord, Yeager v. City
Water & Light Plant of Jonesboro, Ark., 454 F.3d 932, 933–34 (8th Cir. 2006).

       1
          Because the legislature intended state employment-discrimination law to correlate with federal
law, we may look to federal employment-discrimination cases for guidance. Id. (citing Wal-Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)).
                                                   6
Moreover, the evidence establishes that Petteway and McGrew are not similarly situated.
It is undisputed that McGrew reported to his supervisor that he was sexually harassed at
work by Petteway on or about January 15–29,2 February 1, February 7, and February 21,
2008, but there is no evidence that McGrew’s co-workers accused him of workplace sexual
harassment.

        Petteway has tried to avoid this dissimilarity by focusing on Dee Gallardo’s
instruction that McGrew and Petteway were not to converse at work about matters that
were not work-related. Petteway contends that she was terminated even though she did
not approach McGrew or violate any workplace rules, whereas McGrew violated this rule
and was not terminated. Thus, she seems to contend that she and McGrew engaged in
similar misconduct in that McGrew violated Gallardo’s orders by speaking to Petteway,
whereas she violated the order, if at all, only by listening to McGrew’s statements on those
dates. Under the applicable standard of review, we assume that McGrew violated this rule
and Petteway complied with it; however, this does not change the fact that Petteway was
the subject of repeated sexual-harassment complaints, and McGrew was not. Given this
difference in their violation histories, Petteway and McGrew are not similarly situated.
See, e.g., Hawn, 615 F.3d at 1160; Yeager, 454 F.3d at 933–34; Morrow, 152 F.3d at 562.

        We accordingly sustain UTMB’s sole issue.




        2
          In a later letter, McGrew stated that he complained on January 29, 2008 that Petteway had been
harassing him “for the last two weeks.”
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                                        IV. CONCLUSION

       Because both Petteway’s pleadings and the undisputed facts negate jurisdiction, we
reverse the trial court’s judgment and render judgment dismissing Petteway’s case with
prejudice.3




                                                /s/       Tracy Christopher
                                                          Justice



Panel consists of Justices Frost, Brown, and Christopher.




       3
           See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007) (dismissal pursuant to a
plea to the jurisdiction based on sovereign immunity is with prejudice).
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