Affirm in part; Reverse in part and Remand; Opinion Filed June 3, 2013.




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-01479-CV

              MESQUITE INDEPENDENT SCHOOL DISTRICT, Appellant
                                   V.
                         TOMASA MENDOZA, Appellee

                      On Appeal from the 116th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 11-09131-F

                                          OPINION
                            Before Justices Lang, Myers, and Evans
                                   Opinion by Justice Myers
       Mesquite Independent School District brings this interlocutory appeal of the trial court’s

denial of its motion for summary judgment asserting the court lacked jurisdiction to hear Tomasa

Mendoza’s suit for sex and national-origin discrimination under the Texas Commission on

Human Rights Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012)

(authorizing interlocutory appeal from grant or denial of plea to jurisdiction by governmental

unit); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (interlocutory

appeal may be taken from refusal to dismiss for want of jurisdiction when jurisdictional

argument is presented in a plea to the jurisdiction or other procedural vehicle including a motion

for summary judgment); see also TEX. LAB. CODE ANN. § 21.051 (West 2006) (prohibiting

discrimination by employers). The District brings two issues on appeal asserting the trial court

erred by denying its motion for summary judgment. We reverse the trial court’s denial of the
District’s motion for summary judgment on Mendoza’s claim of sex discrimination, we affirm

the trial court’s denial of summary judgment on Mendoza’s claim of national-origin

discrimination, and we remand the cause for further proceedings.

                                        BACKGROUND

       During the 2010 spring semester, a custodian at one of the District’s schools started a fire

by placing a mop head in a school dryer. The District then set up a system for dirty mop heads to

be collected and taken to another location to be safely cleaned. The District sent a memo to the

schools informing them of the new policy and directing them to instruct their custodians

accordingly.

       Mendoza moved to the United States from Mexico. In 2010, Mendoza was an employee

of the District and worked as a custodian at McDonald Middle School. On November 9, 2010,

Mendoza noticed several dirty and smelly mop heads at the school. She washed the mop heads

and put them in a dryer. The mop heads caught fire in the dryer. When confronted about the

fire, Mendoza admitted she had put the mop heads in the dryer. The District then terminated her.

       The mop heads needed cleaning because Carlos Gudiel, the District employee responsible

for collecting them and delivering them to the cleaning facility, had not done so. Gudiel received

a written reprimand for failing to collect the mop heads, but he was not terminated.

       Mendoza filed suit against the District on July 25, 2011, alleging the District violated the

Texas Commission on Human Rights Act by discriminating against her on the basis of her sex

and national origin by terminating her. See TEX. LAB. CODE ANN. § 21.051(1) (West 2006). The

District moved for summary judgment, asserting governmental immunity from suit. The District

argued it had not waived its immunity from suit because Mendoza could not establish a

prima-facie case of sex and national-origin discrimination as she was replaced by a Hispanic




                                               –2–
woman.         The trial court denied the District’s motion for summary judgment on sex and

national-origin discrimination. 1

                                                  STANDARD OF REVIEW

           The District’s two issues assert the trial court erred by denying the District’s motion for

summary judgment. Our jurisdiction over this appeal, however, is limited to reviewing the

motion for summary judgment as a plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(8). Whether a court has subject-matter jurisdiction is a question of law. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res.

Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to the

jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at

226. 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. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue

must be resolved by the fact finder. Id. at 227–28. If the evidence is undisputed or fails to raise

a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction

as a matter of law. Id. at 228.

                                                   IMMUNITY FROM SUIT

           Governmental entities are immune from suit unless the government has clearly and

unambiguously waived its immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 311.034 (West

Supp. 2012); Miranda, 133 S.W.3d at 224. The government waives its immunity from suit under


     1
        Mendoza also contended the District retaliated against her for reporting claims of age and sex discrimination while an employee of the
District. The trial court granted the District’s motion for summary judgment on the retaliation claim. The order granting that part of the motion
for summary judgment is not before us in this interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice & Remedies Code.



                                                                     –3–
the Texas Commission on Human Rights Act when a plaintiff states a claim for conduct that

would violate the Act. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex.

2012).

           Section 21.051 of the Act provides that an employer commits an unlawful employment

practice if the employer refuses to hire, discharges, or otherwise discriminates against an

employee in connection with compensation or the terms, conditions, or privileges of employment

because of the employee’s race, color, disability, religion, sex, national origin, or age. LAB. §

21.051. There are two alternative methods by which a plaintiff may establish a discriminatory

treatment case. The first is by proving discrimination through direct evidence of what the

defendant did and said. Garcia, 372 S.W.3d at 634. However, because direct evidence of

discriminatory motive is usually hard to come by, the courts created a second method, the

burden-shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Garcia, 372 S.W.3d at 634. Under this approach, discrimination is presumed if the plaintiff

meets an initial burden of establishing a prima-facie case of discrimination. 2 Id. A plaintiff

proceeding under the McDonnell Douglas approach must meet the requirement of the

prima-facie case for the trial court to have jurisdiction. Id. at 637. The failure to present the

elements of a prima-facie case means the trial court has no jurisdiction and the claim must be

dismissed. Id.

           Although a plaintiff must plead facts making up a prima-facie case, the defendant may

present evidence negating those facts. If the defendant does so, the plaintiff must then present

evidence in support of the facts.                        Id.      To establish a prima-facie case of employment

     2
        Under the McDonnell Douglas burden-shifting approach, once jurisdiction is established through the plaintiff presenting a prima-facie
case, the burden shifts to the defendant, who may rebut the presumption of discrimination by presenting evidence of a legitimate,
nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to prove
the defendant’s reason was a pretext for a discriminatory decision. Id. at 804. Because our review in this interlocutory appeal is limited to a
determination of the trial court’s subject-matter jurisdiction, we do not consider any matters beyond whether Mendoza presented a prima-facie
case of discrimination.



                                                                    –4–
discrimination, the plaintiff must show (1) she was a member of a protected class, (2) she was

qualified for her employment position, (3) she was subjected to an adverse employment decision,

and (4) she was replaced by someone outside of the protected class, or she was treated less

favorably than similarly situated members of the opposite class. Jespersen v. Sweetwater Ranch

Apartments, 390 S.W.3d 644, 654 (Tex. App.—Dallas 2012, no pet.); Michael v. City of Dallas,

314 S.W.3d 687, 690–91 (Tex. App.—Dallas 2010, no pet.).

       In this case, Mendoza maintains she established jurisdiction by presenting a prima-facie

case of employment discrimination. The District asserts Mendoza failed to meet the fourth

requirement, that she was replaced by someone outside the protected class or that she was treated

less favorably than similarly situated members of the opposite class.

                                   SEX DISCRIMINATION

       In its first issue, the District contends the trial court should have determined it lacked

jurisdiction over Mendoza’s claim of sex discrimination and dismissed the claim. The District

asserts Mendoza cannot meet the fourth element of a prima-facie case because she was replaced

by a woman and Mendoza was not treated less favorably than similarly situated men.

       It is undisputed that Mendoza was replaced by a woman, either Nora Castellanos or

Tammy Burleson.       However, Mendoza contends she received disparate treatment in that a

similarly situated male employee, Gudiel, violated the policy regarding offsite cleaning of mop

heads—he failed to pick up the mop heads to deliver them to the cleaning location—but was not

terminated. The Texas Supreme Court has discussed the circumstances necessary for employees

to be similarly situated:

       Employees are similarly situated if their circumstances are comparable in all
       material respects, including similar standards, supervisors, and conduct. To prove
       discrimination based on disparate discipline, the disciplined and undisciplined
       employees’ misconduct must be of “comparable seriousness.” Although “precise
       equivalence in culpability between employees is not the ultimate question,” the
       Fifth Circuit has held that to prove discrimination based on disparate discipline,
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         the plaintiff must usually show “that the misconduct for which [he] was
         discharged was nearly identical to that engaged in by a [female] employee whom
         [the company] retained.”

Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005) (citations and

footnotes omitted) (quoting McDonnell Douglas, 411 U.S. at 804; McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 283 n.11 (1976); Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1180

(5th Cir. 1990)).

         The District argues that Mendoza and Gudiel are not similarly situated because they

worked at different locations, had different supervisors, different job duties, and different

misconduct. Mendoza was a custodian at McDonald Middle School, her supervisor was Kelly

Long, her job duties were to clean the school, and she was terminated for starting a fire by

placing mop heads in the dryer. Gudiel was a driver at the District’s L.A. Berry Support

Complex, his supervisor was Larry Brown, his job duties were to drive to the District’s campuses

delivering cleaned cleaning tools and furniture and collecting dirty cleaning tools, and he was

reprimanded for not collecting the dirty mop heads from McDonald Middle School. Because of

the many differences in their positions and conduct, we conclude that Mendoza and Gudiel were

not similarly situated employees.

         Because the evidence conclusively established that Mendoza was replaced by a woman

and she was not treated differently from any similarly situated male employee, we conclude

Mendoza has not established a prima-facie case of sex discrimination. Accordingly, the District

did not waive its immunity to suit, and the trial court erred by denying the District’s motion for

summary judgment asserting lack of jurisdiction over this claim. We sustain the District’s first

issue.




                                               –6–
                                     NATIONAL-ORIGIN DISCRIMINATION

          In its second issue, the District contends the trial court should have determined it lacked

jurisdiction over Mendoza’s claim of national-origin discrimination and dismissed the claim.

The District asserts Mendoza could not present a prima-facie case of discrimination because her

duties were assumed by another Hispanic, Nora Castellanos. 3

          The District attached as evidence to its motion for summary judgment Mendoza’s

deposition, where she testified she was told that the District moved a night-shift custodian,

Castellanos, to her day-shift position. The District then hired a new custodian, Tammy Burleson,

who filled the night-shift custodian position. Mendoza’s response to the District’s motion for

summary judgment attached as evidence an internal e-mail and other documents from the

District stating Burleson replaced Mendoza and that Burleson’s ethnicity was “white.” The

District’s documents raise a genuine issue of material fact as to whether Mendoza was replaced

by someone outside of the protected class.

          Because the District failed to conclusively prove the jurisdictional fact that Mendoza was

replaced by a Hispanic employee, the District has not established the trial court lacked

jurisdiction over Mendoza’s claim of national-origin discrimination. We conclude the trial court

did not err by denying the District’s motion for summary judgment on that claim. We overrule

the District’s second issue.




     3
       The parties treat Mendoza’s claim of national-origin discrimination as one for racial discrimination. Neither side complains about the
apparent misnomer of the claim. See Lopez v. Tex. State Univ., 368 S.W.3d 695, 702–03 (Tex. App.—Austin 2012 pet. denied) (discussing the
overlapping nature of national-origin and racial discrimination claims when employee asserts discrimination because he is Hispanic). Mendoza’s
claim of discrimination from being replaced by Burleson appears to be one of racial discrimination because Mendoza supported her assertion with
evidence that Burleson was white but presented no evidence of Burleson’s national origin.



                                                                    –7–
                                        CONCLUSION

       We reverse the trial court’s order denying the motion for summary judgment as to

Mendoza’s claim of sex discrimination, and we dismiss the claim for want of jurisdiction. We

affirm the trial court’s order denying the motion for summary judgment as to Mendoza’s claim

of national-origin discrimination. We remand the cause to the trial court for further proceedings.




                                                     /Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE


121479F.P05




                                               –8–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

Mesquite Independent School District,                On Appeal from the 116th Judicial District
Appellant                                            Court, Dallas County, Texas
                                                     Trial Court Cause No. 11-09131-F.
No. 05-12-01479-CV         V.                        Opinion delivered by Justice Myers.
                                                     Justices Lang and Evans participating.
Tomasa Mendoza, Appellee

        In accordance with this Court’s opinion of this date, the order of the trial court denying
appellant Mesquite Independent School District’s motion for summary judgment is REVERSED
as to appellee Tomasa Mendoza’s claim of sex discrimination, and judgment is RENDERED
that appellee Tomasa Mendoza’s claim of sex discrimination is DISMISSED for want of
jurisdiction; the trial court’s order is AFFIRMED as to appellee Tomasa Mendoza’s claim of
national-origin discrimination. We REMAND the cause to the trial court for further
proceedings. It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 3rd day of June, 2013.




                                                     /Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE




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