                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              _________________

                               NO. 09-18-00044-CV
                              _________________

       HUMAN SERVICES OF SOUTHEAST TEXAS, INC., Appellant

                                         V.

                      CASSANDRA GOFFNEY, Appellee
________________________________________________________________________

                    On Appeal from the 60th District Court
                          Jefferson County, Texas
                         Trial Cause No. B-197,275
________________________________________________________________________

                          MEMORANDUM OPINION

      Cassandra Goffney sued Human Services of Southeast Texas, Inc. d/b/a

Spindletop Center (Spindletop) for age and gender discrimination. In this accelerated

appeal, Spindletop challenges the trial court’s orders denying its plea to the

jurisdiction and its traditional and no-evidence motion for summary judgment. See




                                         1
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017).1 In three

issues on appeal, Spindletop argues: (1) the trial court erred in denying Spindletop’s

plea to the jurisdiction because Goffney failed to show a waiver of governmental

immunity; (2) the trial court erred in denying Spindletop’s no-evidence motion for

summary judgment because Goffney failed to present evidence to raise a fact issue

regarding one or more of her claims; and (3) the trial court erred in denying

Spindletop’s motion for summary judgment as Goffney failed to present admissible

evidence to show the reasons articulated by Spindletop for her termination are mere

pretexts for discrimination.




      1
         Spindletop filed one motion combining its plea to the jurisdiction, no-
evidence motion for summary judgment, and traditional motion for summary
judgment. The trial court issued two separate orders, however. One order denied
Spindletop’s plea to the jurisdiction, and the other order denied its no-evidence and
traditional motions for summary judgment. The substance of the arguments
contained in Spindletop’s motion for summary judgment also implicate jurisdiction,
so we consider those as part of our review of Spindletop’s plea to the jurisdiction in
this interlocutory appeal. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006)
(instructing interlocutory appeal is available when the trial court denies
government’s challenge to subject matter jurisdiction, “irrespective of the procedural
vehicle used”); Coll. of the Mainland v. Glover, 436 S.W.3d 384, 390–91 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (noting because appellant moved for
summary judgment on jurisdictional grounds, the court would treat the motion as a
plea to the jurisdiction).

                                          2
                                      Background

         Spindletop is a community center providing services for people who have

mental illnesses, intellectual disabilities, developmental disabilities, and substance

abuse issues. It provides services for Jefferson, Hardin, Orange, and Chambers

Counties. It is a unit of local government pursuant to chapter 534 of the Texas Health

and Safety Code. See Tex. Health & Safety Code Ann. § 534.001(c) (West 2017).

         Goffney began working for Spindletop in 1989 as an aide. Over the years, she

was promoted several times. Her last promotion came in 2009, when she was

promoted to Staff Services Officer. In that position, Goffney testified she was

responsible for the food service unit, facility maintenance, state and federal

inspections, and acted as Assistant Safety Officer. As Staff Services Officer,

Goffney also oversaw the maintenance department, housekeeping, the motor pool,

and dealt with outside vendors. Goffney was promoted into that position by Gary

Hidalgo, who acted as her supervisor until early 2011, when he retired. Sometime in

2011, Chalonnes Hoover, the Chief Financial Officer, became Goffney’s supervisor.

         Hoover was responsible for evaluating Goffney’s performance. 2 In February

of 2011, Hoover completed the first evaluation of Goffney, which was largely



         2
             Employees at Spindletop were evaluated on their performance every three
years.
                                            3
positive. However, things began to deteriorate thereafter. In September of 2013,

Goffney’s son was the victim of a violent crime and required extensive medical care

at a facility in Houston, Texas. While her son was hospitalized, Goffney worked via

laptop and cellphone. Goffney testified she had accumulated a significant amount of

paid leave, and she wanted to use that time to care for her son. Goffney claimed

Hoover would not sign her timesheets during this period. Goffney further testified

Hoover advised her that she would not be allowed to use that time, but instead, would

have to take leave under the Family and Medical Leave Act (FMLA). Goffney went

to the human resources department to verify the leave policy, and they gave her a

number in Washington, D.C. to call. When Goffney called the number, she was

reportedly told she could use her paid leave and was not required to take leave under

the FMLA. According to Goffney, this upset Hoover, and things between them

further deteriorated.

      In 2014, Hoover received numerous complaints about Goffney’s behavior on

the job. The complaints came from Spindletop staff as well as outside vendors. These

complaints included Spindletop staff allegations that Goffney was belittling,

demeaning, condescending, and rude. One specific complaint regarding Goffney

was that she violated Spindletop’s anti-nepotism policy by showing favoritism to her

brother-in-law, who worked in the housekeeping department. Goffney gave him

                                         4
favorable job assignments to the detriment of others within the housekeeping

department. As a result of these complaints from staff, Hoover had housekeeping

report to her directly and removed that department from Goffney’s supervision.

There were also complaints about Goffney’s behavior from third-party vendors that

required intervention by Hoover. In response to those complaints, Hoover no longer

allowed Goffney to interact with outside vendors. On July 21, 2014, Hoover verbally

reprimanded Goffney and recommended Goffney receive training or counseling to

improve her interpersonal skills and management style. Hoover also indicated

Goffney’s behavior toward staff and vendors undermined her effectiveness as a

supervisor.

      In June or July of 2014, Hoover recommended the position of Staff Services

Officer be eliminated as a reduction in force and consistent with Spindletop’s policy.

This was done as part of a reorganization of the maintenance department.

Specifically, after the decision to move housekeeping under Hoover’s supervision,

she recommended they do a reorganization of the maintenance department and

eliminate the Staff Services Officer position. They eliminated Goffney’s position

and one Maintenance Technician position, reducing the staff by one full-time

equivalent. Under the reorganization, they would have two full-time Maintenance

Technicians and a new position of Maintenance Supervisor, who would work half

                                          5
their time in the field and half performing supervisory duties. Hoover made the

recommendation and did a cost analysis to show what the financial savings would

be. Three Maintenance Technicians were affected by the reduction in force. In her

deposition, Hoover explained not all Maintenance Technician positions were

eliminated, but because there would only be two positions left, all three technicians

received reduction in force letters and had to reapply per human resource policy.

Goffney indicated that on the same day she was reprimanded, she received a

reduction in force letter stating the position of Staff Services Officer was being

eliminated effective August 22, 2014.

      Spindletop hired an African-American male who was thirty-nine years of age

at the time to fill the job of Maintenance Supervisor. Goffney applied for the position

and interviewed, but she was not offered the job. Hoover explained that Goffney had

the least amount of hands-on maintenance experience of all the candidates.

Additionally, Goffney had been disciplined for being rude to the staff and outside

vendors. Hoover indicated the individual they hired had advanced mechanical skills

including the ability to work on electrical, plumbing, and mechanical units. Hoover

asserted the most qualified candidate for the job was hired.

      In 2015, Goffney filed a complaint with the Equal Employment Opportunity

Commission and the Texas Workforce Commission for discrimination based on

                                          6
race, gender, and age. Ultimately, Goffney sued Spindletop, alleging age

discrimination and gender discrimination in violation of the Texas Commission on

Human Rights Act (TCHRA). See Tex. Labor Code Ann. §§ 21.001, 21.051 (West

2015). Spindletop filed a combined plea to the jurisdiction, no-evidence motion for

summary judgment, and traditional motion for summary judgment. The trial court

denied all relief sought by Spindletop.

                                Standard of Review

      We review a trial court’s ruling on a plea to the jurisdiction based on immunity

from suit under a de novo standard. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). A court may not decide a case unless it has subject-

matter jurisdiction. Id. at 226. A plea to the jurisdiction challenges the trial court’s

power to exercise subject matter jurisdiction. Id.; see also City of Waco v. Kirwan,

298 S.W.3d 618, 621 (Tex. 2009). A plea to the jurisdiction is a dilatory plea

typically used to defeat a plaintiff’s cause of action without regard to whether the

claims have any merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000).

      “Sovereign immunity from suit defeats a trial court’s subject matter

jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Miranda, 133

S.W.3d at 225–26 (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.

                                           7
1999)). In our review, we examine the factual allegations contained in the pleadings

and evidence presented relevant to jurisdiction. See City of Elsa v. Gonzalez, 325

S.W.3d 622, 625–26 (Tex. 2010); Bland, 34 S.W.3d at 555. When pleadings are

challenged by a plea to the jurisdiction, a court must determine if the pleader has

alleged facts affirmatively demonstrating the court’s jurisdiction, and the court must

liberally construe the pleadings. Miranda, 133 S.W.3d at 226 (citing Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). “However, if a plea

to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, as the trial court is required to do.” Id. (citing Bland, 34

S.W.3d at 555). In that situation, our review of a plea to the jurisdiction is similar to

a traditional motion for summary judgment. See id. at 228; Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (“Garcia II”).

                                        Analysis

      Governmental units are typically immune from suit. See Garcia II, 372

S.W.3d at 636; Jones, 8 S.W.3d at 638. This court has noted before that Spindletop

Center is a governmental unit generally immune from suit and considered that

immunity in the context of a plea to the jurisdiction. Cf. Spindletop MHMR Ctr. v.

Beauchamp, 130 S.W.3d 368, 369 (Tex. App.—Beaumont 2004, pet. denied)

                                            8
(examining Spindletop’s sovereign immunity in the context of the Texas Tort Claims

Act). “Sovereign immunity deprives a trial court of jurisdiction over lawsuits in

which the state or certain governmental units have been sued, unless the state

consents to suit.” Garcia II, 372 S.W.3d at 636.

      Only when immunity has been waived by statute can a governmental

instrumentality be sued. See id. One such explicit waiver of immunity is contained

in the TCHRA. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

660 (Tex. 2008) (“Garcia I”) (holding “the TCHRA clearly and unambiguously

waives immunity”). The TCHRA prohibits discrimination based upon “race, color,

disability, religion, sex, national origin, or age[.]” Tex. Labor Code Ann. § 21.051;

Garcia II, 372 S.W.3d at 633; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915,

917 (Tex. 2005). The TCHRA’s immunity waiver applies only in suits where the

plaintiff alleges a violation within the scope of the statute. Garcia II, 372 S.W.3d at

636; Coll. of the Mainland v. Glover, 436 S.W.3d 384, 391 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied). “In a suit against a governmental employer, the prima

facie case implicates both the merits of the claim and the court’s jurisdiction because

of the doctrine of sovereign immunity.” Garcia II, 372 S.W.3d at 635–36 (citing

Miranda, 133 S.W.3d at 228). To invoke the trial court’s jurisdiction and overcome



                                          9
the typical rule of immunity from suit, a plaintiff is required to make out a prima

facie case of discrimination. See id.

      The prima facie case requirement and its accompanying burden-shifting

mechanism is not explicitly stated in the TCHRA; rather, it was outlined by the

United States Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792

(1973). The burden-shifting framework outlined in McDonnell Douglas has been

consistently applied to the TCHRA by Texas courts. See Garcia II, 372 S.W.3d at

638. Because section 21.051 is similar to Title VII, we may look to federal law and

its application for guidance on issues of discrimination. See Quantum Chem. Corp.

v. Toennies, 47 S.W.3d 473, 475–76 (Tex. 2001). If a plaintiff makes out a prima

facie case of discrimination, the burden then shifts to the defendant to provide

evidence of a legitimate, non-discriminatory reason for the adverse employment

action. Id. at 477. Once a defendant provides a legitimate non-discriminatory reason

for its actions, the burden then shifts back to the plaintiff to show the employer’s

proffered reasons were pretextual. Id.

      In the case before us, Goffney alleged Spindletop discriminated against her

based on age and gender. 3 Following her termination due to a reduction in force,


      3
        In addition to other purported misconduct, Goffney specifically complains
about alleged comments made by Hoover in late 2010 or early 2011, including the
statement that “typically males do this type of work” and asking Goffney why she
                                         10
Goffney complains Spindletop’s refusal to hire her as the Maintenance Supervisor

amounts to discrimination based on her age and gender, and she asserts that she was

qualified for the position.4 Accordingly, we will look to each one of these to

determine if the trial court’s subject matter jurisdiction has been invoked.

      To establish a prima facie age or gender discrimination case under the

TCHRA, Goffney was required to prove the following: that she was (1) a member


wanted a particular job. Hoover did not recall making these remarks, but she did
admit to telling Goffney she was in a man’s world. Hoover explained the comment
was made in the context of counseling Goffney regarding her need to be less
demeaning after overhearing Goffney berate a male employee. We note these
remarks were remote in time (made over three years prior to Goffney’s termination),
unrelated to the employee’s protected class, and unrelated to the employment
decision at issue. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 593 (Tex. 2008). If
true, these statements are nothing more than stray remarks, and as such, are
insufficient to establish discrimination. See id. at 592. Direct evidence of
discrimination is evidence that, if believed, proves discriminatory animus without
inference. Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex.
App.—Dallas 2012, no pet.). There is no evidence Goffney was told she was not
hired because she was a woman. See id. at 654; M.D. Anderson Hosp. & Tumor Inst.
v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000). Absent direct evidence of discrimination,
Goffney was required to proceed under the burden-shifting framework of McDonnell
Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) (“Garcia II”).
       4
         Goffney includes allegations that she applied for and was not hired for a
Custodial Manager position in the factual background of her petition, but this
complaint is not included in her causes of action for age and gender discrimination,
in which she only raises allegations about the Maintenance Supervisor position.
Moreover, the individual hired for the Custodial Manager was an African-American
female over forty and would be a member of the same protected classes as Goffney.
Accordingly, we do not address these allegations relating to the Custodial Manager
in our analysis.
                                          11
of the protected class; (2) qualified for her employment position; (3) terminated by

the employer or suffered some adverse employment action; and (4) replaced by

someone outside the protected class or others similarly situated were treated more

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

(2000); Garcia II, 372 S.W.3d at 632; AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592

(Tex. 2008); Monarrez, 177 S.W.3d at 917.

      In the present case, Goffney fails to make out a prima facie case of age or

gender discrimination. It is clear that Goffney meets the first three requisite elements

for purposes of demonstrating a prima facie case of age and gender discrimination.

See Garcia II, 372 S.W.3d at 632; Reyes, 272 S.W.3d at 592; Monarrez, 177 S.W.3d

at 917. She is a female over the age of forty, and for purposes of each claim falls into

a protected class. See Tex. Labor Code Ann. § 21.051. She was qualified for the

position of Staff Services Officer, although she had experienced difficulties

complying with company policies and procedures. There was evidence she violated

Spindletop’s anti-nepotism policy by assigning favorable work assignments to a

relative to the detriment of other staff and was disciplined as a result. There was also

evidence Goffney was disciplined for unprofessional interactions with staff and

outside vendors which required the intervention of her supervisor, Hoover. These

issues with her performance led to Hoover removing housekeeping and outside

                                          12
vendors from Goffney’s purview. Goffney was ultimately terminated as part of a

reduction in force. Of the individuals subject to the reduction in force, Goffney was

the only one who was not re-hired to another position with Spindletop.

      Goffney is unable to establish the fourth element of her prima facie case,

however, which requires that she be replaced by someone outside the protected class

or that others similarly situated were treated more favorably. See Garcia II, 372

S.W.3d at 632, 638; Monarrez, 177 S.W.3d at 917. It is unclear from Goffney’s

pleading and briefing whether she is arguing she was replaced by someone outside

the protected class or that someone similarly situated, but outside the protected class,

was treated more favorably. We will go through an analysis of each. “[A] terminated

employee is replaced by another person when the terminated employee’s position is

filled by that person and said person is assigned to the terminated employee’s former

job duties.” Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 436 (Tex. App.—Houston

[14th Dist.] 2002, pet. denied) (citing Baker v. Gregg Cty., 33 S.W.3d 72, 81 (Tex.

App.—Texarkana 2000, pet. dism’d)). In Baker, the Texarkana Court of Appeals

explained:

      [A] terminated employee is not replaced by a person who temporarily
      assumes the terminated employee’s job duties or a person who only
      takes over a part of those duties. When a terminated employee’s job
      duties are distributed among other employees after termination, those
      employees do not replace the terminated employee.

                                          13
See 33 S.W.3d at 81–82. The evidence showed there would no longer be a Staff

Services Officer position over maintenance and housekeeping. There would be two

new positions, one of Maintenance Supervisor and one of Custodial Manager that

would split those duties. Moreover, the Maintenance Supervisor position differed

from the job Goffney previously held. The new position required the Maintenance

Supervisor to spend half of their time out in the field working and performing repairs

and the other half performing supervisory duties. Indeed, the man they hired testified

he did not do what Goffney did. He testified he supervises, but he is also constantly

working in the field, and it is not an office position. While the position of

Maintenance Supervisor was given to a male who was thirty-nine at the time of

hiring, the position was distinct from the one that Goffney held. Accordingly, she

cannot establish she was replaced by someone outside the protected class. See Russo,

93 S.W.3d at 436; Baker, 33 S.W.3d at 81–82.

      Alternatively, Goffney cannot show Spindletop treated others similarly

situated but outside of the protected class more favorably by refusing to hire her for

the Maintenance Supervisor position. See Monarrez, 177 S.W.3d at 917–18.

“Employees are similarly situated if their circumstances are comparable in all

material respects, including similar standards, supervisors, and conduct.” Id. at 917.

The Fifth Circuit has stated that employees are similarly situated if their

                                         14
circumstances are “nearly identical.” Okoye v. Univ. of Tex. Hous. Health Sci. Ctr.,

245 F.3d 507, 514 (5th Cir. 2001). Some factors courts have looked to in determining

whether individuals are similarly situated include whether the claimant and

comparator have similar levels of experience or education, similar levels of

seniority, and similar disciplinary records. Glover, 436 S.W.3d at 393 (considering

“similarly situated” in the context of a disparate treatment case involving pay).

Although the individual hired for the Maintenance Supervisor position was outside

the protected class, he was not similarly situated. See id.; see also Monarrez, 177

S.W.3d at 917. Hoover testified in her affidavit that all other applicants were

previously Maintenance Technicians, and Goffney had the least amount of

maintenance experience of any of the applicants for the job. Further, Hoover testified

the individual Spindletop hired had advanced maintenance and repair skills, which

made him qualified for a position requiring half of his time be spent in the field.

Finally, the evidence is clear Goffney had difficulty interacting with other staff and

outside vendors and was disciplined for those issues. There is no evidence the

individual Spindletop hired had any disciplinary record at all. Accordingly, Goffney

cannot show her comparator outside of the protected class was “similarly situated.”

See Monarrez, 177 S.W.3d at 917.



                                         15
      Goffney’s failure to establish the fourth required element of her age and

gender discrimination claims necessarily means that she cannot make a prima facie

case. See id.; Garcia II, 372 S.W.3d at 632. “[T]he prima facie case is the necessary

first step to bringing a discrimination claim under the TCHRA.” Garcia II, 372

S.W.3d at 637. In a suit against a governmental employer, the prima facie case

implicates the merits and the court’s jurisdiction due to sovereign immunity. Id. at

635–36. Goffney’s failure to establish a prima facie case of age or gender

discrimination means the trial court lacks jurisdiction and improperly denied

Spindletop’s plea to the jurisdiction.

      Because of our disposition of this issue, we only reach the jurisdictional

arguments in this case, whether couched as a plea to the jurisdiction or summary

judgment.

                                     Conclusion

      We conclude Goffney has not presented a prima facie case of age or gender

discrimination that would trigger the trial court’s jurisdiction under the TCHRA.

Having sustained Spindletop’s issues, we reverse the trial court’s order denying

Spindletop’s plea to the jurisdiction, render judgment in favor of Spindletop, and

dismiss Goffney’s claims with prejudice.



                                         16
      REVERSED and RENDERED.



                                            ________________________________
                                                    CHARLES KREGER
                                                          Justice

Submitted on June 27, 2018
Opinion Delivered September 27, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                       17
