Opinion issued March 6, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00469-CV
                           ———————————
    TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES,
                        Appellant
                                       V.
                          ESTHER IREDIA, Appellee



                   On Appeal from the 434th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11-DCV-189589



                       MEMORANDUM OPINION

      The Texas Department of Aging and Disability Services (“DADS”) brings

this interlocutory appeal to challenge the trial court’s denial of its plea to the

jurisdiction on the employment discrimination claims brought by appellee Esther
Iredia under Chapter 21 of the Labor Code. 1 In two issues, DADS contends that

the trial court’s denial of the plea was error because Iredia failed to present a prima

facie case of (1) gender discrimination and (2) race/national origin discrimination.

We affirm in part and reverse in part.

                                      Background

      Iredia was hired by DADS in 2000 as a member of the direct care staff at the

Richmond State Supported Living Care Center.2 Several months after she began

work, she was promoted to the position of Qualified Mental Retardation

Professional (“QMRP”).          Among her responsibilities was the development of

progress plans for the individuals served by the center. In 2007, Kenny Sowemimo

became Iredia’s supervisor and, in 2010, he terminated Iredia’s employment for

allegedly falsifying reports.

      On May 2, 2011, Iredia filed suit against DADS alleging sexual harassment

and both racial discrimination and discrimination based upon her national origin.

In her deposition testimony, Iredia addressed the following incidents involving

Sowemimo:




1
      TEX. LAB. CODE ANN. § 21.051 (West 2006).
2
      The Center provides twenty-four hour campus-based direct services and support to
      individuals with intellectual and developmental disabilities in a thirteen-county
      area. See http://www.dads.state.tx.us/services/SSLC/richmond.html.
                                           2
• 2008—Iredia approached Sowemimo to speak to him about a patient
  transfer, and he said, “[y]ou skinny skeleton. You don’t eat. You know,
  don’t want you to die here,” and told her to get out of his face;

• Sowemimo told another employee, in Iredia’s presence, that he hated
  Nigerian women; when Iredia asked how he could hate Nigerian women
  when he had been born and raised in Nigeria and his mother and sister are
  Nigerian, he responded that his mother was dead and that he did not speak to
  his sister;

• 2009—Iredia introduced her son to Sowemimo, who asked Iredia “[d]id you
  eat today? You so skinny. How can this be your son?”, and asked Iredia’s
  son, “[i]s this your mom? Is this your mother?”

• When Iredia told Sowemimo that she needed to leave early to pick up a male
  friend from the airport, Sowemimo responded that no man would want a
  “skinny bone” like her, except for white people who eat leaves because they
  do not want to gain weight, and “that’s why her husband left her”;

• Whenever Sowemimo visited Iredia’s office, he typically kicked the door
  open;

• When Sowemimo saw Iredia taking pizza to her office, he said she was
  taking it to her children because “they don’t have food to eat”;

• “There is no day . . . that I go to work or Kenny is there that Kenny will not
  call me names.”

• In the presence of Iredia and her co-workers, Sowemimo said he did not like
  skinny women but that he liked “fat women,”; he described “when he’s on
  top of a skinny wom[a]n to the extent he use[] his hand like this (indicating)
  on his, you know, groin area, that that hurts him when he’s . . . lying on top
  of a skinny woman”; and

• Sowemimo constantly told Iredia that he was going to fire her before she
  was terminated.




                                     3
      In addition to these incidents, Iredia claimed that on another occasion, one of

the nurses pulled Iredia’s pants leg up to show visiting nursing students how

skinny she was. She also testified that Sowemimo’s treatment of other QMRPs

was more favorable than his treatment of her, noting that they were allowed to

represent the unit in his absence despite Iredia’s seniority.

      On April 26, 2013, DADS filed an answer and a plea to the jurisdiction.

Following a hearing on May 20, 2013, the trial court signed an order denying the

plea 3 and DADS timely prosecuted this interlocutory appeal. 4

                                      Discussion

      In its first and second issues, DADS contends that the trial court erred in

denying its plea to the jurisdiction because Iredia failed to present a prima facie

case to support her sexual harassment and racial/national origin discrimination

claims. Iredia contends that the trial court properly denied DADS’s plea because

she presented sufficient evidence to create a fact issue regarding jurisdiction.




3
      The record before us contains no reporter’s record of the May 20, 2013 hearing.
4
      DADS brings this interlocutory appeal pursuant to Texas Practice and Remedies
      Code section 51.014(a)(8), which permits a governmental unit to appeal a district
      court’s order denying its plea to the jurisdiction. See TEX. CIV. PRAC. & REM.
      CODE ANN. § 51.014(a)(8) (West 2012).

                                           4
   A. Plea to the Jurisdiction

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004).    The plaintiff has the burden to allege facts that affirmatively

demonstrate that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).              A plea to the

jurisdiction can be utilized to challenge whether the plaintiff has met his burden of

alleging jurisdictional facts, but it can also raise a challenge to the existence of

jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226–27 (Tex. 2004). Pleadings are construed liberally in favor of the pleader,

and all factual allegations are accepted as true. See id. at 228.

      A trial court’s review of a plea to the jurisdiction challenging the existence

of jurisdictional facts mirrors that of a traditional motion for summary judgment.

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);

Miranda, 133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The government

defendant is required to meet the summary judgment standard of proof for its

assertion that the trial court lacks jurisdiction; once the defendant meets its burden,

the plaintiff is then required to show that there is a disputed material fact regarding

the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact

question regarding jurisdiction, the trial court must deny the plea to the jurisdiction

                                           5
and leave its resolution to the fact finder. Id. at 227–28. On the other hand, if the

evidence is undisputed or fails to raise a fact question on the jurisdictional issue,

the trial court rules on the plea to the jurisdiction as a matter of law. Garcia, 372

S.W.3d at 635. An appellate court reviewing a challenge to a trial court’s subject

matter jurisdiction reviews the trial court’s ruling de novo. Miranda, 133 S.W.3d

at 228.

   B. Sovereign Immunity and Chapter 21 of the Labor Code

      Sovereign immunity deprives a trial court of jurisdiction over suits in which

the state or certain governmental units have been sued unless the state consents to

suit. Garcia, 372 S.W.3d at 636. The Legislature has provided a limited waiver of

sovereign immunity for those employment discrimination and retaliation claims

falling within Chapter 21 of the Texas Labor Code. See TEX. LAB. CODE ANN.

§§ 21.051(1), 21.055 (West 2006) (prohibiting unlawful employment practices by

“employer”); § 21.002(8)(D) (defining “employer” to include a county,

municipality, state agency, or state instrumentality). While a plaintiff must plead

the elements of her statutory cause of action—in this case, the basic facts that make

up the prima facie case—so that the court can determine whether she has

sufficiently alleged a violation under Chapter 21, the plaintiff will only be required

to submit evidence if the defendant presents evidence negating one of those basic

facts. Garcia, 372 S.W.3d at 637 (citing Miranda, 133 S.W.3d at 228).

                                          6
      Texas courts look to federal interpretation of analogous federal statutes for

guidance because an express purpose of Chapter 21 is to “provide for the

execution of the policies of Title VII of the Civil Rights Act of 1964 and its

subsequent amendments.” TEX. LAB. CODE ANN. § 21.001(1) (West 2006); see

also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Under the

burden-shifting framework established by the United States Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–

26 (1973), the plaintiff must first establish a prima facie case of discrimination or

retaliation. Id. at 802, 93 S. Ct. at 1824. Establishment of the prima facie case in

effect creates a presumption that the employer unlawfully discriminated against

the employee. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.

Ct. 1089, 1094 (1981). If the plaintiff is successful, the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477

(Tex. 2001). “The offer of a legitimate reason eliminates the presumption of

discrimination created by the plaintiff’s prima facie showing.” Id. The burden

then shifts back to the plaintiff to show that the employer’s reason was a pretext

for discrimination. McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1826–27.

Although intermediate evidentiary burdens shift back and forth under this

framework, the ultimate burden of persuading the trier-of-fact that the defendant

                                          7
intentionally discriminated against the plaintiff remains at all times with the

plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120

S. Ct. 2097, 2106 (2000).

      C. Hostile Environment Sexual Harassment

        1. Applicable Law

        Chapter 21 of the Labor Code provides that it is unlawful for an employer

to discriminate against an employee with respect to compensation or the terms,

conditions, or privileges of employment because of race, color, disability, religion,

sex, national origin, or age. TEX. LAB. CODE ANN. § 21.051 (West 2006). Sexual

harassment is a form of prohibited sex discrimination. Green v. Indus. Specialty

Contractors, Inc., 1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no

pet.); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.—El Paso

1997, pet. denied). Courts have generally categorized sexual harassment claims as

either “quid pro quo” or “hostile work environment.” Soto, 942 S.W.2d at 677–

78.

        Here, it is undisputed that this case presents allegations of sexual

harassment based on a hostile work environment. To prevail on a claim involving

a hostile work environment, a plaintiff must show that (1) she was an employee

who belongs to a protected class; (2) she was subjected to unwelcome harassment;

(3) the harassment was based on sex; (4) the harassment affected a term,

                                          8
condition, or privilege of employment; and (5) the employer knew or should have

known of the harassment and failed to take adequate remedial action. Gulf States

Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770 (Tex. App.—Houston [1st Dist.]

2002, no pet.); McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—

Austin 1998, no pet.). However, if the alleged harassment was perpetrated by a

supervisor with immediate or successively higher authority over the harassed

employee—as is the case here—the employee need only satisfy the first four

elements of the test outlined above. Watts v. Kroger Co., 170 F.3d 505, 509 (5th

Cir. 1999).

      To satisfy the fourth element of a hostile environment sexual harassment

claim, a plaintiff must show that the workplace was permeated with discriminatory

intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile

or abusive working environment. See Lauderdale v. Texas Dep’t of Crim. Justice,

512 F.3d 157, 163 (5th Cir. 2007); Waffle House, Inc. v. Williams, 313 S.W.3d

796, 806 (Tex. 2010) (noting abusive environment is created “[w]hen the

workplace is permeated with ‘discriminatory intimidation, ridicule, and insult.’”)

(citation omitted); Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex. App.—Corpus

Christi 1998, no pet.).    The work environment must be both objectively and

subjectively offensive—one that a reasonable person would find hostile or abusive

and one that the victim in fact did perceive to be so. City of Houston v. Fletcher,

                                          9
166 S.W.3d 479, 489 (Tex. App.—Eastland 2005, pet. denied). In reviewing a

hostile work environment claim, we consider the totality of the circumstances,

including the frequency of the discriminatory conduct; its severity; whether the

conduct was physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interfered with the employee’s work performance.

Id.; Dillard Dep’t Stores, Inc. v. Gonzales, 72 S.W.3d 398, 407 (Tex. App.—El

Paso 2002, pet. denied).

      The focus of our inquiry is whether the cumulative effect of the offensive

behavior is so severe or pervasive that it destroys an employee’s opportunity to

succeed in the workplace. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473

(Tex. App.—Austin 2000, pet. denied) (citing Faragher v. City of Boca Raton, 524

U.S. 775, 787, 118 S. Ct. 2275, 2283 (1998); Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 118 S. Ct. 2257 (1998); Oncale v. Sundower Offshore Servs., Inc., 523

U.S. 75, 118 S. Ct. 998; Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 114 S. Ct.

367, 370–71 (1993); and Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 64 106 S.

Ct. 2399, 2405–06 (1986)). In other words, the sexual harassment is sufficiently

“severe” or “pervasive” as to alter the terms, conditions, or privileges of the

victim’s employment when it can be said to create an “abusive working

environment.” See Harris, 510 U.S. at 24, 114 S. Ct. at 371–72 (Scalia, J.,

concurring) (“‘[A]busiveness’ is . . . the test of whether legal harm has been

                                        10
suffered . . . .”). The critical inquiry is environment: evidence of general work

atmosphere as well as specific instances of hostility or abuse are important. See

Soto, 942 S.W.2d at 678. In making this determination, “single incidents should

not be viewed in isolation because it is the cumulative effect of all offensive

behavior that creates the work environment.” Williams, 313 S.W.3d at 806; see Itz,

21 S.W.3d at 473 (“The critical inquiry is the environment . . . .”) (quotations

omitted).

      2. Analysis

      DADS challenges the sufficiency of the evidence supporting the fourth

element of Iredia’s hostile environment claim—that is, whether the alleged

harassment by Sowemimo affected a “term, condition, or privilege” of Iredia’s

employment. Specifically, DADS argues that Iredia has failed to present a prima

facie case of sexual harassment because she has not shown that the alleged conduct

was severe or pervasive or that the harassment interfered with her work

performance. Iredia contends that she has presented sufficient evidence to create a

fact issue regarding the fourth element of her hostile environment claim, and, thus,

the trial court has subject matter jurisdiction over her claim.

      In her deposition and interrogatory responses, Iredia testified that from 2007

until her termination in 2010, Sowemimo repeatedly called her “skinny,”

“skeleton,” and “skinny bone” in front of her co-workers, and once in front of her

                                          11
son; accused her of not eating and of taking food from an office lunch to her

children at home because they did not have food to eat; after calling her a “skinny

skeleton,” he told her he did not want her to die in his office; told her that no man

would want a “skinny bone” like her and that was the reason her husband had left

her; stated in Iredia’s and her co-workers’ presence that he did not like to have sex

with skinny women because when he lay on top of skinny women his bones rubbed

against their bones and hurt him, but that he liked how it felt to lay on top of fat

women; entered Iredia’s office by kicking the door open; and constantly told Iredia

that he was going to fire her before she was terminated. Iredia also testified that

the only days that Sowemimo did not insult her in front of her co-workers was

when he was not at work, and that she felt scared working in that environment.

      We begin by examining the frequency or pervasiveness of Sowemimo’s

alleged conduct. Sowemimo was Iredia’s supervisor from 2007 until he terminated

her employment in 2010. Accepting Iredia’s allegations as true, Sowemimo’s

alleged conduct occurred on a nearly daily basis during an approximately three-

year period.   According to Iredia, her only harassment-free days were when

Sowemimo was absent from work. DADS argues that Iredia’s testimony that

Sowemimo’s conduct was ongoing was conclusory and that there is no other

evidence showing that the alleged conduct was pervasive.          However, Iredia’s

testimony regarding the frequency of the alleged conduct is sufficient to

                                         12
demonstrate pervasiveness and she was not required to present other evidence.

Further, DADS has not presented evidence to negate this factual allegation. See

Garcia, 372 S.W.3d at 637 (citing Miranda, 133 S.W.3d at 228) (noting that

plaintiff will only be required to submit evidence if defendant presents evidence

negating basic fact of plaintiff’s prima facie case).

      DADS also contends that Iredia’s allegations, even if true, cannot be

considered “severe” under controlling standards. We agree. The conduct of which

Iredia complains cannot be considered the sort of objectively severe conduct that

would be deemed to alter the terms, conditions, or privileges of Iredia’s

employment. Other courts have found more egregious uninvited physical and

verbal conduct insufficiently severe to alter terms, conditions, or privileges of

employment. See, e.g., Hockman v. Westward Commc’ns, LLC, 407 F.3d 317,

321–22 (5th Cir. 2004) (plaintiff’s supervisor made sexually suggestive remarks to

her, repeatedly insisted that she be alone with him, remarked on another

employee’s body, brushed up against plaintiff’s breast and behind, once tried to

kiss her, once stood in bathroom doorway while plaintiff was present, and once

swatted plaintiff’s behind with newspaper over one-and-a-half year period);

Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999) (co-

worker touched plaintiff’s arm several times, rubbed arm down to her wrist,

simulated looking up her dress, tried to look down her clothing, and made sexually

                                          13
suggestive comments that included referring to color of her nipples and size of her

thighs); Garcia, 967 S.W.2d at 885, 887 (supervisor stared at and commented on

plaintiff’s breasts, touched his genitals in front of plaintiff, discussed highly

personal and sexual matters with plaintiff, remarked on plaintiff’s appearance, and

repeatedly made sexual references in attempt to sexually arouse plaintiff); Green v.

Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 129, 132–34 (Tex. App.—

Houston [1st Dist.] 1999, no pet.) (supervisor made numerous sexual comments,

including expressing desire to hold “a wet T-shirt contest” with plaintiff as

contestant).

      However, sexual harassment may give rise to an abusive work environment

through either its objective severity or its pervasiveness, or some combination of

the two. See Harris, 510 U.S. at 21, 114 S. Ct. 367. The level of objective

severity in harassment necessary to give rise to an objectively hostile work

environment may be said to vary inversely with its pervasiveness, and vice versa.

See Lauderdale, 512 F.3d at 163 (“[T]he test—whether the harassment is severe or

pervasive—is stated in the disjunctive. An egregious, yet isolated incident can alter

the terms, conditions, or privileges of employment . . . . The inverse is also true:

Frequent incidents of harassment, though not severe, can reach the level of

‘pervasive,’ thereby alerting the terms, conditions, or privileges of employment

such that a hostile work environment exists.”) (citations omitted).

                                         14
      Several Fifth Circuit decisions are particularly instructive on the issue of

pervasiveness. In a recent en banc decision, the Fifth Circuit found a supervisor’s

sex-based epithets aimed at a subordinate “two-to-three times a day, almost every

day, for months on end,” to constitute sufficient evidence of severe or pervasive

harassment. See E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 461 (5th

Cir. 2013) (en banc). In Farpella–Crosby v. Horizon Health Care, the Fifth

Circuit found that the plaintiff had presented sufficient evidence from which a jury

could have found severe or pervasive harassment where the plaintiff was subjected

to offensive, sex-based comments two to three times per week, some comments

were made in front of co-workers, and the harassing supervisor threatened the

plaintiff with her job on numerous occasions when she asked him to stop making

the comments. 97 F.3d 803, 806 (5th Cir. 1996); cf. E.E.O.C. v. WC&M Enters.,

Inc., 496 F.3d 393, 400 (5th Cir. 2007) (reversing summary judgment in favor of

defendant where plaintiff was subjected to verbal harassment—including

nicknames like “Taliban” and “Arab”— on “a regular basis for a period of

approximately one year”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000)

(holding that African–American employees who were subjected to variety of racial

slurs over three-year period raised fact issue as to whether slurs were sufficiently

severe or pervasive), abrogated on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). Here, because Iredia alleged

                                        15
conduct that occurred on a nearly daily basis over a three-year period, the

pervasiveness suggests that a less heightened level of severity is required. See

Lauderdale, 512 F.3d at 163.

       We also consider whether the conduct was physically threatening or

humiliating, and whether it unreasonably interfered with the employee’s work

performance. Fletcher, 166 S.W.3d at 489; Gonzales, 72 S.W.3d at 407. In her

deposition, Iredia testified that Sowemimo typically kicked the door of her office

open upon entering. She also testified that his constant name-calling disgraced her

in front of her co-workers and, on one occasion, in front of her son, that he

repeatedly threatened to fire her, and that she felt scared working in that

environment.

       In its reply brief, DADS urges us to disregard a number of Iredia’s

allegations because “they are not based on sex and/or gender.” However, even if

some of the alleged harassing conduct was not overtly sexual in nature, some of it

was.   According to Iredia, Sowemimo stated that he disliked skinny women

because it hurt him when he lay on top of skinny women but that he liked the way

it felt to lay on top of fat women, and that no man would want a “skinny bone” like

Iredia and that is the reason her husband left her. Further, even the comments

which were not overtly sexual, such as calling Iredia “skinny skeleton” and

“skinny bone,” could be considered sexual under some circumstances, particularly

                                        16
in light of Sowemimo’s statements equating Iredia’s size with her alleged sexual

undesirability. 5

       The critical inquiry is environment—we do not consider single incidents

alone, but rather the cumulative effect that these incidents have on the overall

environment. See Itz, 21 S.W.3d at 473; Soto, 942 S.W.2d at 678. The evidence is

undisputed that Iredia personally perceived her work environment to be hostile

because of Sowemimo’s conduct. We also find that a reasonable person could

have found the work environment to be hostile or abusive. See Lauderdale, 512

F.3d at 163; Fletcher, 166 S.W.3d at 489. Because Iredia has alleged sufficient

facts to raise a fact issue regarding whether the complained-of conduct altered the

terms, conditions, or privileges of her employment and created an abusive working

environment, the trial court has subject matter jurisdiction to hear her claim. See

Miranda, 133 S.W.3d at 226. We overrule DADS’s first issue.

    D. Race/National Origin Discrimination

       To allege a claim of race or national origin discrimination based on disparate

treatment under Chapter 21, a plaintiff must first present a prima facie case.

5
       “[H]arassing conduct need not be motivated by sexual desire to support an
       inference of discrimination on the basis of sex.” Oncale v. Sundowner Offshore
       Services, Inc., 523 U.S. 75, 80–81, 118 S. Ct. 998 (1998). Further, the conduct
       underlying a sexual harassment claim need not be overtly sexual. See Soto v. El
       Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.—El Paso 1997, pet.
       denied) (noting that “[h[arassment based on gender need not take the form of a
       sexual advance or contain otherwise carnal overtones to constitute prohibited sex
       discrimination.”).
                                          17
Reeves, 530 U.S. at 142, 120 S. Ct. 2097. Specifically, a plaintiff must show that

she was (1) a member of a protected class, (2) qualified for the employment

position at issue, (3) subject to an adverse employment action, which includes

termination, and (4) treated less favorably than similarly situated members outside

of the protected class. Reeves, 530 U.S. at 142, 120 S. Ct. 2097; Ysleta Indep. Sch.

Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).

      In its plea to the jurisdiction, DADS challenged the fourth element of

Iredia’s race and national origin discrimination claim. Specifically, it argued that

Iredia had failed to show that she was treated less favorably than other similarly

situated employees outside of the protected classes. In her petition, Iredia alleged

that Sowemimo treated her differently than similarly situated employees who also

made mistakes in the performance of their job. In her deposition, she testified that

Sowemimo treated other QMRPs more favorably than her by allowing them to

represent the unit in his absence even though Iredia had more seniority, and she

identified “Cassandra” as one of the QMRPs treated more favorably than her.

However, these allegations do not affirmatively demonstrate that Cassandra or the

other QMRPs to whom Iredia refers were outside of the protected class and that

they were similarly situated to Iredia. See Monarrez, 177 S.W.3d at 917 (noting

“[e]mployees are similarly situated if their circumstances are comparable in all

material respects, including similar standards, supervisors, and conduct”).

                                         18
         Iredia argues that DADS’s plea to the jurisdiction with respect to her race

and national origin discrimination claim is premature because she intends to

conduct additional discovery which will generate evidence to support her claim.

Notwithstanding her argument, Iredia has failed to meet her burden to allege facts

that affirmatively demonstrate the trial court’s jurisdiction to hear her race and

national origin discrimination claim. Accordingly, we sustain DADS’s second

issue.

                                     Conclusion

         We affirm the trial court’s order denying DADS’s plea to the jurisdiction

with respect to Iredia’s sex discrimination claim, and we reverse the trial court’s

order with respect to her race and national origin discrimination claim and dismiss

the claim for lack of subject matter jurisdiction.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.




                                          19
