                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 TEXAS DEPARTMENT OF AGING                     §
 AND DISABILITY SERVICES,                                     No. 08-15-00256-CV
                                               §
                            Appellant,                           Appeal from the
                                               §
 v.                                                            346th District Court
                                               §
 LORI LOYA,                                                 of El Paso County, Texas
                                               §
                            Appellee.                         (TC# 2013DCV1845)
                                               §

                                         OPINION

        Lori Loya sued her former employer, the Texas Department of Aging and Disability

Services (DADS), for sex discrimination, hostile work environment, and retaliation under the

Texas Commission on Human Rights Act (TCHRA). DADS filed a plea to the jurisdiction based

on sovereign immunity, which the trial court denied. We reverse and dismiss all of Loya’s claims

for lack of jurisdiction.

                                        BACKGROUND

        DADS hired Loya to work at the El Paso State Supported Living Center as an

administrative assistant. She reported to Jaime Monardes, the director of the Center. Monardes

fired Loya less than two months’ later, during her probationary period. Loya filed charges of

discrimination and retaliation with the Civil Rights Division of the Texas Workforce Commission.
The Commission later issued a right to sue letter without making any findings.

        Loya then sued DADS for wrongful termination, alleging discrimination, retaliation, and

hostile work environment.1 In her Second Amended Petition, Loya alleged she reported several

harmful and unsafe incidents and practices to Monardes and other managers that included sexual

attacks by residents on staff of the Center. In response, Monardes began to treat Loya “in a

negative and hostile manner.” In particular, she alleged Monardes responded “that everyone had

sexual needs and he proceeded to place his hands in the crotch area of his pants[,] . . . [and]

exposed his abdomen . . . in the course of his making fun of her for her concerns and explaining to

her that the residents had sexual needs.” Loya also alleged that she complained to the benefits

coordinator Irene Huerta “about Monardes’ sexual misconduct and overall demeaning behavior

and hostile work environment.” Loya additionally claimed that after her termination, Monardes

accused her “of stealing flash drives or some other property at her workplace” and that “upon

information and belief, believes such allegations of theft are in retaliation for her complaints

and/or pretext for her termination.”

        In response, DADS filed a plea to the jurisdiction, asserting Loya could not demonstrate a

prima facie case under TCHRA and therefore could not bring her claims within the limited waiver

of sovereign immunity TCHRA provides. In particular, DADS argued in part that: (1) Loya’s

sex discrimination claim failed because she failed to plead and prove she was replaced by a

similarly qualified male or otherwise terminated due to her gender; (2) Loya’s hostile work

environment claim failed because she could not show she had suffered severe and pervasive sexual

harassment; and (3) Loya’s retaliation claim failed because she could not show an adverse


1
 Loya also sued for slander. The trial court dismissed Loya’s slander claim for lack of jurisdiction in response to
DADS’ first plea to the jurisdiction.
                                                        2
employment action or a causal connection between any alleged protected activity and her

termination. Loya responded with jurisdictional evidence of her own. After hearing, the trial

court denied DADS’ plea without specifying the basis for its ruling.

                                           DISCUSSION

       In three issues, DADS argues the trial court erred in denying its plea to the jurisdiction.

We conclude the trial court erred in refusing to dismiss Loya’s claims for lack of jurisdiction.

                                       Standard of Review

       A plea to the jurisdiction based on sovereign immunity challenges a trial court’s subject

matter jurisdiction. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.

2004); Esparza v. Univ. of Texas at El Paso, 471 S.W.3d 903, 908 (Tex.App. – El Paso 2015, no

pet.). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo

review. Miranda, 133 S.W.3d at 226, 228; Esparza, 471 S.W.3d at 908. In a plea to the

jurisdiction, a defendant may challenge either the adequacy of the plaintiff’s pleadings or the

existence of “jurisdictional facts” on the ground that they do not support a finding of subject matter

jurisdiction. Miranda, 133 S.W.3d at 226; City of El Paso v. Collins, __S.W.3d__, 2016 WL

240882, at *4 (Tex.App. – El Paso Jan. 20, 2016, no pet.). The questions whether the plaintiff has

alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction, as well as

whether undisputed evidence of jurisdictional facts establishes a trial court’s lack of jurisdiction,

are both questions of law that an appellate court reviews de novo. Miranda, 133 S.W.3d at 226;

Collins, 2016 WL 240882, at *4.

       In determining whether a plaintiff has carried her burden to allege facts sufficient to

establish subject matter jurisdiction, we review the allegations in the pleadings – accepting them as


                                                  3
true and construing them in the plaintiff’s favor – and any evidence relevant to the inquiry.

Miranda, 133 S.W.3d at 226-27; Esparza, 471 S.W.3d at 908; Mayfield v. Tarrant Regional Water

Dist., 467 S.W.3d 706, 711 (Tex.App. – El Paso 2015, no pet.). If the evidence raises a fact

question on jurisdiction, the plea must be denied. Miranda, 133 S.W.3d at 227-28; Esparza, 471

S.W.3d at 908; Mayfield, 467 S.W.3d at 711. If the defendant’s evidence is undisputed and

demonstrates a lack of jurisdiction, and if the plaintiff’s responsive evidence does not raise a fact

question on the jurisdictional issue, the trial court must grant the plea to the jurisdiction as a matter

of law. Mayfield, 467 S.W.3d at 711-12.

                                        Sovereign Immunity

        As a governmental entity, DADS is generally immune from suit. See San Antonio Water

Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015); Esparza, 471 S.W.3d at 908; see also Texas

Dep’t of Aging & Disability Servs. v. Sierra Home Care, L.L.C., 235 S.W.3d 835, 838 (Tex.App. –

El Paso 2007, no pet.) (recognizing DADS as a governmental entity subject to sovereign

immunity). However, the Legislature has waived immunity for claims properly brought under

TCHRA. San Antonio Water Sys., 461 S.W.3d at 135; Mission Consol. Indep. Sch. Dist. v.

Garcia, 253 S.W.3d 653, 660 (Tex. 2008); Esparza, 471 S.W.3d at 908. But, that waiver extends

only “to those suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts

that state a claim thereunder.” San Antonio Water Sys., 461 S.W.3d at 135 (quoting Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012)); Esparza, 471 S.W.3d at

908. To establish a trial court’s jurisdiction over her TCHRA claim, a plaintiff must plead the

elements of her statutory cause of action—the basic facts that make up her prima facie case. See

San Antonio Water Sys., 461 S.W.3d at 135; Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 636;


                                                   4
Esparza, 471 S.W.3d at 908.

                                    Sex Discrimination Claim

       Under TCHRA, an employer commits an unlawful employment practice if employer

discharges an individual because of her sex. TEX. LAB. CODE ANN. § 21.051(1) (West 2015). In

a discrimination case based on circumstantial evidence, as here, the plaintiff must first establish a

prima facie case. Esparza, 471 S.W.3d at 908; El Paso Community College v. Lawler, 349

S.W.3d 81, 86 (Tex.App. – El Paso 2010, pet. denied). To establish a prima facie case of gender

discrimination, a plaintiff is required to prove: (1) she is a member of a protected class; (2) she

was qualified for her position; (3) her employment was terminated; and (4) she was treated less

favorably than similarly situated members of the opposing class. Ysleta Indep. Sch. Dist. v.

Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). DADS contends in part that Loya

failed to plead facts and produce evidence on the fourth element, i.e., that she was (i) replaced with

a similarly qualified male, (ii) was treated less favorably than males who were similarly situated,

or (iii) was otherwise discharged due to her gender. See Rachid v. Jack in the Box, Inc., 376 F.3d

305, 309 (5th Cir. 2004) (noting that a plaintiff can meet the fourth element by showing she was

replaced with a similarly qualified person who was not a member of the protected class, that

similarly situated employees were treated more favorably, or that she was otherwise discharged

due to her sex).

       Loya did not allege that she was replaced by a male after her termination, and DADS

presented evidence that Loya was replaced by a female, who worked with Monardes until he

resigned. Thus, the evidence establishes as a matter of law that Loya was not replaced by a

similarly qualified male.


                                                  5
         That does not end our inquiry, however. To prevail on a claim of gender discrimination, a

plaintiff can also prove that she was “treated less favorably than similarly situated members of the

opposing class[.]” Monarrez, 177 S.W.3d at 917; see also Esparza, 471 S.W.3d at 911. The

Texas Supreme Court has held that “[e]mployees are similarly situated if their circumstances are

comparable in all material respects[.]” Monarrez, 177 S.W.3d at 917. The Fifth Circuit has

articulated a similar standard, stating 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); see also Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App. – Fort Worth

2006, no pet.) (“More favorable treatment of a person outside a protected class can be used to show

discrimination only if the circumstances are nearly identical.”). Loya admits there are no male

comparators that would meet this standard because the only other administrative assistants were

females.2 Consequently, Loya could have neither alleged nor produced any evidence that she was

treated less favorably than similarly situated males.

         Moreover, we are unpersuaded by Loya’s contention that a reasonable inference could be

made that she was otherwise terminated because of her gender. Loya contends she suffered

discrimination because Monardes once exposed a portion of his abdomen to her and placed his

hands in the crotch area of his pants. Loya fails to explain and we fail to see how these actions

could show Loya was otherwise discharged due to her gender.                               In any event, DADS’

jurisdictional evidence contained the statements of multiple female employees that Monardes was

a large man whose shirt would often come untucked, and that he had a “compulsive tick” where he


2
  In this regard, the two individuals Loya asserts were treated more favorably were female, not male. And, the sum of
the “more favorable treatment” Loya identifies is that one of the females “wasn’t held to the same policies that I was.”
                                                           6
routinely tucked in his shirt or adjusted his pants. None found this act offensive or sexually

suggestive. And, we do not find any responsive jurisdictional evidence suggesting that Loya was

otherwise terminated due to her gender.

         Accordingly, we conclude the trial court erred in denying DADS’ plea to the jurisdiction

on Loya’s sex discrimination claim. Issue One is sustained.

                               Hostile Work Environment Claim

         DADS attacked Loya’s hostile work environment claim based on the sufficiency of her

pleadings. DADS contended Loya had not alleged that she suffered the severe and pervasive

sexual harassment necessary to establish a prima facie case of hostile work environment. We

agree.

         A plaintiff has a heavy burden to establish a hostile work environment claim based on

sexual harassment. To make a prima facie showing of a hostile work environment involving

sexual harassment, a plaintiff must prove in part that the workplace was permeated with

discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create a hostile or abusive working environment.

Mayfield, 467 S.W.3d at 712-13; Esparza, 471 S.W.3d at 912; see also Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Abusiveness requires extreme

conduct and does not include conduct that is merely offensive. See Mayfield, 467 S.W.3d at 713;

Esparza, 471 S.W.3d at 913.

         Further, the conduct must be both objectively and subjectively hostile or abusive.

Mayfield, 467 S.W.3d at 713; Esparza, 471 S.W.3d at 913. That is, the work environment must

be both one that a reasonable person would find hostile or abusive and one that the victim in fact


                                                7
perceived to be so. Mayfield, 467 S.W.3d at 713; Esparza, 471 S.W.3d at 913; City of Houston v.

Fletcher, 166 S.W.3d 479, 489 (Tex.App. – Eastland 2005, pet. denied). Conduct that is not

severe or pervasive enough to create an objectively hostile or abusive work environment—an

environment that a reasonable person would find hostile or abusive—is not actionable. Harris,

510 U.S. at 21, 114 S.Ct. at 370; Mayfield, 467 S.W.3d at 713; Esparza, 471 S.W.3d at 913.

       In assessing objective hostility or abusiveness, the discriminatory conduct is viewed from

the perspective of a reasonable person in the plaintiff’s position in the same circumstances.

Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201

(1998); Mayfield, 467 S.W.3d at 713; Esparza, 471 S.W.3d at 913. We consider the totality of the

circumstances including the frequency and severity of the alleged conduct, whether there were

physical threats or humiliation, and whether the abusive conduct unreasonably interfered with the

employee’s work performance. Harris, 510 U.S. at 23, 114 S.Ct. at 371; Mayfield, 467 S.W.3d at

713; Esparza, 471 S.W.3d at 913.

       In pleading her hostile work environment claim, Loya specified only one instance of any

hostile or abuse conduct. Loya alleged in conclusory fashion that when she reported the incidents

of resident sexual assaults to Monardes, he “began to treat [her] in a negative and hostile manner.”

Loya’s only specific factual allegation asserted that:

       Monardes’ response to Plaintiff was that everyone had sexual needs and he
       proceeded to place his hands in the crotch area of his pants. Monardes exposed his
       abdomen to Plaintiff in the course of his making fun of her for her concerns and
       explaining to her that the residents had sexual needs. Monardes proceeded to
       make fun of Plaintiff for her complaints about the sexual incidents that occurred at
       the center.

       Loya alleged only one instance of abusive conduct. Loya thus failed to make any factual

allegations showing the “pervasive” harassment necessary to support a hostile work environment

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claim. Further, Loya made no allegations of any physical threats, and she made no assertions that

Monardes’ conduct interfered with her work performance. Moreover, Loya failed to allege that

Monardes’ behavior affected a term, condition, or privilege of employment, or that the harassment,

if any, was based on her gender. In addition, DADS presented evidence containing the statements

of multiple female employees explaining Monardes’ actions and establishing that none found his

actions offensive or sexually suggestive.

         In short, Loya failed to plead, and to prove in response to DADS’ jurisdictional evidence,

that the workplace was permeated with discriminatory intimidation, ridicule, and insult

sufficiently severe or pervasive to alter the conditions of her employment and create a hostile or

abusive working environment. Loya failed to allege facts necessary to support her hostile work

environment claim, and the evidence demonstrates that the necessary jurisdictional facts do not

exist. “Where the pleadings and evidence demonstrate that the necessary jurisdictional facts do

not exist . . . [a]llowing plaintiffs the chance to amend when they have already marshaled their

facts in this manner would simply serve no purpose.” See Mayfield, 467 S.W.3d at 715; Esparza,

471 S.W.3d at 914. Accordingly, we conclude the trial court erred in refusing to dismiss Loya’s

hostile work environment claim.3 Issue Two is sustained.

                                                Retaliation Claim

         We also conclude the trial court erred in refusing to dismiss Loya’s retaliation claim.

TCHRA prohibits employers from engaging in retaliatory action against an employee who

3
  To the extent Loya asserted a quid pro quo sexual harassment claim, it would fail as well. Quid pro quo sexual
harassment requires a showing that submission to the unwelcome advances was an express or implied condition for
receiving job benefits or that refusal to submit resulted in a tangible job detriment. Mayfield, 467 S.W.3d at 712; Soto
v. El Paso Natural Gas Co., 942 S.W.2d 671, 677-78 (Tex.App. – El Paso 1997, writ denied). Loya does not assert
that Monardes subjected her to requests for sexual favors, that submission to unwelcome advances was an express or
implied condition for receiving job benefits, or that a refusal to submit resulted in a tangible job detriment. Further,
Loya admits that Monardes never propositioned her for sexual favors, and that, although Monardes said he would
discuss her concerns about resident assaults on staff “over some beers,” he never suggested a time or place to do so.
                                                           9
opposes a discriminatory practice, makes or files a charge, files a complaint, or participates in an

investigation, proceeding, or hearing. TEX. LAB. CODE ANN. § 21.055 (West 2015). To establish

a violation, the employee must show that: (1) she engaged in an activity protected by TCHRA; (2)

an adverse employment action occurred; and (3) there exists a causal link between the protected

activity and the adverse action. San Antonio Water Sys., 461 S.W.3d at 137; Esparza, 471 S.W.3d

914. DADS’ plea to the jurisdiction contended in part there was no adverse employment action or

causal connection, because Loya’s pleadings and the jurisdictional evidence demonstrated the

claimed retaliatory events occurred after her termination. Loya made two possible allegations of

retaliation. First, she alleged that she was terminated because she “complained to Irene Huerta

about Monardes’ sexual misconduct and overall demeaning behavior and hostile work

environment.” While Loya’s pleadings did not state when she complained to Huerta, Loya

admitted in her deposition that she did not make her complaint to Huerta until after she had

received notice of her termination.       In other words, DADS’ alleged retaliatory action in

terminating Loya occurred before Loya’s alleged protected activity, her complaint to Huerta. It is

axiomatic that Loya’s alleged protected activity could not have been the cause of Loya’s

termination because Loya was terminated before Loya made her complaint to Huerta. See

Esparza, 471 S.W.3d at 914 (employer’s alleged retaliatory acts that occurred before plaintiff filed

EEOC charge could not have been caused by the EEOC filing); Gumpert v. ABF Freight Sys., Inc.,

293 S.W.3d 256, 263 (Tex.App. – Dallas 2009, pet. denied) (plaintiff cannot show a causal link in

a retaliation claim when the employer’s alleged acts in retaliation occurred long before the plaintiff

engaged in any protected activity); see also Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653,

656 (Tex. 2013) (in Whistleblower Act claim, plaintiff failed to show his report to law


                                                 10
enforcement caused the adverse personnel action, because the personnel action occurred before

plaintiff’s report to law enforcement).

       For similar reasons, we conclude Loya’s retaliation claim based on Monardes’ accusation

of theft must fail. In her second allegation of retaliation, Loya alleged that after her termination,

Monardes accused her of stealing from the workplace, and then asserted that she “believes such

allegations of theft” were “in retaliation for her complaints and/or pretext for her termination.”

For the same reasons discussed above, the theft accusation could not have been a “pretext for her

termination” as alleged, since they occurred after Loya’s termination.

       And, even assuming the theft accusations were in retaliation for Loya’s complaints to

Huerta, they would not be actionable.           To constitute an adverse employment action,

post-termination conduct must have a “tangible adverse effect” on the terms and conditions of the

plaintiff’s current or prospective employment. Cantu v. Hidalgo County, 398 S.W.3d 824, 829

(Tex.App. – Corpus Christi 2012, pet. denied). It is an employee’s discharge that evidences

actionable retaliation, and not events subsequent to and unrelated to her employment. See

Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996). Loya’s pleadings show that

Monardes did not accuse Loya of theft until after she had been terminated. Further, Loya’s

pleadings do not show that the post-termination theft accusation had any tangible adverse effects

on any prospective employment. In fact, Loya stated in her deposition that she had no proof that

she had ever been denied employment because of the theft allegation. And, she admitted that she

had been hired by a school district in August 2012, shortly after her employment at the Center was

terminated.




                                                 11
       Accordingly, we conclude the trial court erred in refusing to dismiss Loya’s retaliation

claims. Issue Three is sustained.

                                         CONCLUSION

       Loya failed to plead the basic facts that make up her prima facie case for conduct that

would violate TCHRA, and she further failed to present evidence to raise a fact issue on her claims

in response to DADS’ jurisdictional evidence. Thus, Loya failed to carry her burden to establish a

waiver of sovereign immunity that would bestow subject-matter jurisdiction on the trial court over

her TCHRA claims. Miranda, 133 S.W.3d at 226-27; Esparza, 471 S.W.3d at 908; Mayfield, 467

S.W.3d at 711. Accordingly, we reverse the trial court’s order denying DADS’ plea to the

jurisdiction and dismiss with prejudice all of Loya’s claims for lack of jurisdiction.



                                              STEVEN L. HUGHES, Justice
April 27, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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