Opinion issued November 15, 2012




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00386-CV
                           ———————————
  THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,
                        Appellant
                                       V.
                   MARIA VALDIZAN-GARCIA, Appellee



                   On Appeal from the 133rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1029251



                         MEMORANDUM OPINION

      This is an interlocutory appeal from the trial court’s denial of a motion to

dismiss filed by appellant The University of Texas M.D. Anderson Cancer Center.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008). We vacate the
trial court’s order denying M.D. Anderson’s plea to the jurisdiction and dismiss the

case.

                                 BACKGROUND

        Appellee Maria Valdizan-Garcia went to medical school in Peru and later

became licensed in Texas as a registered nurse and nurse practitioner. She worked

for M.D. Anderson off-and-on in various capacities from 1984 until she resigned

on December 29, 2009. This lawsuit involves only her time working in the Post-

Anesthesia-Care Unit (PACU).        She was hired by Marian Thomas, a nursing

supervisor, to work in the PACU in August 2005, and remained in that department

until she left M.D. Anderson.

        Valdizan-Garcia alleges that she suffered age discrimination and retaliation

in the PACU until she was constructively discharged. Specifically, she contends

that two supervisors—Marcela Romero and Marian Thomas—“[m]otivated by

considerations of age and retaliation . . . wanted Appellee out of their recovery

room.”     According to Valdizan-Garcia, they “terrorized her with false and

pretextual accusations of deficient patient care and threats of professional licensure

complaints.” After she was placed on probation following five write-ups in a

twelve-month period related to deficient patient care, Valdizan-Garcia was told

that one more “negative incident” would result in termination of her employment




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and action against her professional license. At that point, she opted for early

retirement on December 31, 2009.

      On March 19, 2010, following an investigation, M.D. Anderson’s Nursing

Peer Review Committee issued a one-page Formal Hearing Report finding that

Valdizan-Garcia “did not exhibit a pattern of poor practice and therefore will not

be reported to the Texas Board of Nursing.” Valdizan-Garcia relies primarily on

that report as evidence that the five complaints about her were groundless and a

pretext for age discrimination and retaliation.

      Valdizan-Garcia sued M.D. Anderson under the Health and Safety Code and

the Texas Labor Code. M.D. Anderson filed a plea to the jurisdiction based on

sovereign immunity. It argued that Valdizan-Garcia failed to make a prima facie

case that she was constructively discharged.      Alternatively, it argued that the

evidence shows that the conditions that allegedly motivated her resignation were

not discriminatory or retaliatory. The trial court granted M.D. Anderson’s motion

with regard to the Heath and Safety Code claim, but denied it as to the Labor Code

claims. M.D. Anderson then brought this interlocutory appeal.

                               APPLICABLE LAW

      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

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(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. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226–27 (Tex. 2004).

      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

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.

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      A. Sovereign Immunity and Chapter 21 of the Labor Code

      “In a suit against a governmental employer, the [plaintiff’s] prima facie case

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

doctrine of sovereign immunity.” Id. at 635–36. “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.” Id. 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 (Vernon

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—here the basic facts that make up the prima facie case—so that the court

can determine whether she has sufficiently alleged a [Chapter 21] violation, [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).

      In cases involving only circumstantial evidence of discrimination, Texas

courts look to federal interpretation of analogous federal statutes because one

express purpose of Chapter 21 is to “provide for the execution of the policies of

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Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” TEX.

LAB. CODE ANN. § 21.001(1) (Vernon 2006). In McDonnell Douglas Corporation

v. Green and subsequent decisions, the United States Supreme Court established an

allocation of the burden of production and an order for the presentation of proof in

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

S. Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

05, 93 S. Ct. 1817, 1824–26 (1973). Under this framework, the plaintiff must first

establish a prima facie case of discrimination or retaliation. McDonnell Douglas,

411 U.S. at 802, 93 S.Ct. at 1824; Quantum Chem. Corp. v. Toennies, 47 S.W.3d

473, 477 (Tex. 2001); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied). “The precise elements of this

showing will vary depending on the allegations.” Quantum, 47 S.W.3d at 477.

      Establishment of the prima facie case in effect creates a presumption that the

employer unlawfully discriminated against the employee. Tex. Dept. 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. McDonnell Douglas,

411 U.S. at 802, 93 S. Ct. at 1824; Quantum, 47 S.W.3d at 477. “The offer of a

legitimate reason eliminates the presumption of discrimination created by the

plaintiff’s prima facie showing.” Quantum, 47 S.W.3d at 477. The burden then

                                          6
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

intentionally discriminated against the plaintiff remains at all times with the

plaintiff. Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Burdine, 450 U.S. at 253,

101 S. Ct. at 1093.

                               ISSUES ON APPEAL

         M.D. Anderson argues that the trial court erred in denying its plea to the

jurisdiction on Valdizan-Garcia’s discrimination and retaliation Labor Code

claims.

                             AGE DISCRIMINATION

         Valdizan-Garcia argues that M.D. Anderson “wanted [her] out of their

recovery room because of her age.”        According to Valdizan-Garcia, the trial

court’s denial of M.D. Anderson’s plea to the jurisdiction was appropriate because

“there are both allegations and evidence that age was a motivating factor in this

case.”     Specifically, she points to her own testimony about “Romero’s open

preference and favoritism for younger nurses.” She further argues:

               Appellee has testified to an age-oriented and cliquish
         atmosphere in the MDACC PACU. Essentially, the older nurses
         looked down on the younger nurses, viewing them as inexperienced
         and lazy. Members of one group would not help nurses in the other
                                          7
      group. Appellee was older, but a relatively new nurse. She did not fit
      with either group. As a result of the age-oriented factions in the
      PACU, Appellee frequently found herself without appropriate back-up
      when she needed help. These age-oriented behaviors left Appellee’s
      patients at risk of harm, and exposed Appellee to more of the false and
      pretextual accusations of job performance deficiencies that made her
      continued employment at MDACC intolerable.
              Additionally, Appellee testified specifically to supervisor
      Marcela [Romero] and supervisor Alieli Cabali treating her differently
      because of her age, primarily through calling her “slow.” She also
      testified to ridicule stemming from her slowness in becoming
      acclimated to the PYXIS medication dispensing software, ridicule she
      did not see meted out to the younger nurses. Slowness has long been
      recognized as one of the sentinel stereotypes of illegal age
      discrimination in employment decisions.          The prevention of
      discrimination based on inaccurate stereotyping of older workers is
      one of the decided purposes of our age discrimination statutes . . . .

             Appellant’s argument that Appellee has not identified similarly
      situated comparators does not, in any event, conclusively divest the
      court of jurisdiction. A dearth of direct comparator evidence is
      certainly no fatal blow to Appellee’s case. There is more than one
      way to prove illegal employment discrimination. The prima facie
      case method established in McDonnell Douglas was never intended to
      be rigid, mechanized, or ritualistic.
      M.D. Anderson responds that because Valdizan-Garcia has not proffered any

direct evidence of age discrimination, this case is governed by the burden-shifting

framework of McDonnell Douglas. Under this framework, M.D. Anderson asserts,

Valdizan-Garcia “had the initial burden to establish a prima facie case of

discrimination,” which she did not do. Specifically, M.D. Anderson contends that

Valdizan-Garcia (1) “failed to present any evidence (other than her own subjective

belief) that the reason for any of her allegedly negative treatment by M.D.

                                        8
Anderson was motivated by age discrimination or retaliation,” and (2) “did not

sustain her prima facie burden that others similarly situated were treated

differently.”

      A.        Applicable Law

      Under the Texas Commission on Human Rights Act, an employer may not

discriminate against or discharge an employee based on “race, color, disability,

religion, sex, national origin, or age.” TEX. LAB. CODE Ann. § 21.051 (Vernon

2006). “To establish a violation of the Act, a plaintiff must show that he or she

was (1) a member of the class protected by the Act, (2) qualified for his or her

employment position, (3) terminated by the employer, and (4) treated less

favorably than similarly situated members of the opposing class.” Autozone, Inc.

v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v.

Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)); see Reeves, 530 U.S. at 142, 120 S.

Ct. at 2106 (2000). The plaintiff bears the burden of proving that age was a

motivating factor in the defendant’s alleged discrimination. Wal–Mart Stores, Inc.

v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); Quantum, 47 S.W.3d at 479.

      B. Analysis

      Because the parties disagree about their respective pleadings and evidentiary

burdens, we begin by addressing Valdizan-Garcia’s argument that she does not

need to identify “similarly situated comparators.” According to Valdizan-Garcia,

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“[t]here is more than one way to prove illegal employment discrimination” and the

“prima facie case method established in McDonnell Douglas was never intended to

be rigid, mechanized, or ritualistic.” Earlier this year, the Texas Supreme Court

addressed this very issue when faced with the question of how broadly to interpret

the requirement that a plaintiff show he or she was “treated less favorably than

similarly situated members of the opposing class” in making a prima facie case

under McDonnell Douglas. Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 634 (Tex. 2012). It began by clarifying that the two methods of

proving age discrimination are (1) with “direct evidence of what the defendant did

and said” or (2) “the burden-shifting mechanism of McDonnell Douglas.” Id. The

court acknowledged that “the precise elements of this [McDonnell Douglas prima

facie] showing will vary depending on the circumstances,” but further admonished

that “despite the flexible nature of the prima facie case, this Court has determined

it is important to give concrete guidelines on the basic facts necessary to establish a

presumption of discrimination.” Id. at 634, 640. The court explained that while

the precise elements of a plaintiff’s case would differ depending on whether the

case involves an employee who was replaced by another worker, the prima facie

case nonetheless requires “that each element . . . have a ‘logical connection’ to the

illegal discrimination for which it establishes a legally mandatory, rebuttable




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presumption.” Id. at 641 (citing O’Connor v. Consol. Coin Caterers Corp., 517

U.S. 308, 311–12, 116 S. Ct. 1307, 1310 (1996)).

      Valdizan-Garcia does not claim that she was replaced with a younger

worker, and it does not appear from the record evidence that the PACU nurse

staffing lends itself to such analysis.1 That does not mean, however, that Valdizan-

Garcia need not establish a logical connection between her age and M.D.

Anderson’s alleged discriminatory actions to demonstrate that she was “treated less

favorably than similarly situated members of the opposing class.” Autozone, Inc.,

272 S.W.3d at 592. While Valdizan-Garcia’s petition makes general references to

perceived differences between how she and “significantly younger” nurses were

treated, she does not claim that younger nurses engaged in similar patient treatment

without being cited for deficient treatment, nor does she claim that she was

disciplined more severely than younger nurses for similar infractions.       In fact, she

acknowledges in her brief that she is not relying on any comparators in claiming

that she was unfairly disciplined. That is significant, because it is that discipline

that she identifies as the illegal discriminatory actions leading to her alleged


1
      The record does reflect the following statistics about the ages of the PACU nurses
      as of June 4, 2010, about five months after Valdizan-Garcia retired.
             20–29         23.89%
             30–39         30.09%
             40–49         26.55%
             50–59         16.81%
             60+             2.65%
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constructive discharge. Under McDonnell Douglas, she cannot establish a prima

facie case of discrimination without evidence, or even an allegation, that younger

nurses were disciplined differently for deficient patient care.

      Valdizan-Garcia urges us to accept M.D. Anderson’s nursing Peer Review

Committee’s ultimate decision not to report her to the state’s licensing agency as

evidence that “false and pretextual accusations of patient care deficiencies” were

motivated by age discrimination. But the decision to not report her to the state

does not mean that the patient care leading to the complaints was not deficient, nor

does it mean that that she was written up for age-related reasons or that younger

nurses were disciplined differently. The fact that the peer review committee found

her write-ups did not warrant reporting to the licensing agency does not mean that

the write-ups were frivolous or pretexual.

      Valdizan-Garcia did not offer any direct evidence of age discrimination.

Because she also failed to make out a prima facie case under the framework of

McDonnell Douglas, the trial court erred in denying M.D. Anderson’s plea to the

jurisdiction on her age discrimination claim. Garcia, 372 S.W.3d at 635.

                                  RETALIATION

      Valdizan-Garcia argues that her defense of another older nurse in the face of

“Romero’s withering dismissal is entitled to status as protected conduct” supports

her retaliation claim. She also contends a fair inference of retaliation can be drawn

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from her attempting to discuss concerns with some of the younger nurses, only to

be told, “Don’t make yourself a victim.” She asserts that management was

unreceptive to her “reporting violations involving patient safety and nurse

staffing.” Finally, she contends that Romero retaliated by “threatening her with

false and prextual professional licensure complaints.”

      In response, M.D. Anderson points out that Valdizan-Garcia’s allegations in

her brief do not match the trial court evidence she cites. She did not argue in the

trial court that she “spoke out in opposition to” age discrimination against another

nurse. M.D. Anderson argues that in fact she did not engage in any protected

conduct, and that she has presented nothing other than “a conclusory denial of

M.D. Anderson’s legitimate and reasonable response to reports involving patient

safety.” Absent evidence of protected conduct or a causal connection between that

activity and M.D. Anderson’s writing her up for legitimate patient safety incidents,

M.D. Anderson argues that the trial court should have granted its plea to the

jurisdiction on Valdizan-Gacia’s retaliation claim.

      A. Applicable Law

      In a retaliation action brought under Section 21.055 of the Texas Labor

Code, the plaintiff is required to make a prima facie showing that: (1) he or she

engaged in a protected activity; (2) an adverse employment action occurred; and

(3) a causal link existed between the protected activity and the adverse action.

                                         13
Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied); Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 730–

31 (Tex. App.—Fort Worth 2006, no pet.). “Protected activities consist of (1)

opposing a discriminatory practice; (2) making or filing a charge; (3) filing a

complaint; or (4) testifying, assisting, or participating in any manner in an

investigation, proceeding, or hearing.” Dias, 214 S.W.3d at 676; see TEX. LAB.

CODE ANN. § 21.055 (Vernon 2006). “A plaintiff asserting a retaliation claim must

establish that, in the absence of his protected activity, the employer’s prohibited

conduct would not have occurred when it did.” Chandler v. CSC Applied Techs.,

L.L.C., No. 01-10-00667-CV, ___ S.W.3d ___, __, 2012 WL 2924396, at *17

(Tex. App.—Houston [1st Dist.] July 12, 2012, no pet. h.) (citing Herbert v. City of

Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort Worth 2006, no pet.)). “Thus,

the plaintiff must establish a ‘but for’ causal nexus between the protected activity

and the prohibited conduct.” Id. “The plaintiff is not required to establish that the

protected activity was the sole cause of the employer's prohibited conduct.” Id.

      B. Analysis

      We agree with M.D. Anderson that there is no evidence that Valdizan-

Garcia’s citations for deficient patient care were related to any retaliatory motive.

See, e.g., Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.—Fort

Worth 2006, no pet.) (plaintiff’s conclusory allegations of retaliatory

                                         14
discrimination were insufficient to support retaliation claim, especially in light of

defendant’s asserted legitimate reasons for employment actions). Here, Valdizan-

Garcia’s specific retaliation allegations are that she suffered unfounded complaints

about her care of patients resulting in referral to the peer-review committee (1)

“after [she] began reporting violations involving patient safety and nurse staffing,”

and (2) after she stood up for another nurse who was allegedly discriminated

against because of her age.

      M.D. Anderson provided detailed evidence and documentation about the

patient-care incidents that led up to Valdizan-Garcia’s being placed on “Final

Notice” and her referral to the peer-review committee. In other words, M.D.

Anderson met its burden to demonstrate a non-retaliatory reason for its disciplining

Valdizan-Garcia. In response, Valdizan-Garcia does not dispute the factual basis

of the hospital’s write-ups (i.e., that she provided deficient patient care), nor does

she provide any evidence that she would not have been cited on these occasions

but for her alleged complaints about patient care and staffing and the treatment of

another nurse in an age-protected class. Instead, she argues that there is a “relaxed

deterrence standard of causation in retaliation, as contrasted to the ‘but for’

causation test in disparate treatment discrimination claims.”

      The relaxed causation standard advocated by Valdizan-Garcia is not

supported by Texas law. Our precedent requires a plaintiff claiming retaliation to

                                         15
demonstrate he or she would not have suffered an adverse employment action but-

for the exercise of a protected activity. E.g., Chandler, __ S.W.3d at __, 2012 WL

2924396, at *17.     She has not done so.       A plaintiff’s subjective beliefs of

retaliation alone are not evidence of causation. Id. at *16. Even if Valdizan-

Garcia’s vague references to complaints made to PACU management about patient

safety or treatment of another nurse amounted to protected activity, the trial court

should have granted M.D. Anderson’s plea to the jurisdiction on Valdizan-Garcia’s

retaliation claim because Valdizan-Garcia has not alleged, or provided evidence,

that these complaints were the cause of her write-ups for deficient patient care.

                                  CONCLUSION

      We vacate the trial court’s judgment denying M.D. Anderson’s plea to the

jurisdiction and dismiss the case. See TEX. R. APP. P. 43.2(e).




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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