                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS


    JACKLYN WORFEL MAYFIELD AND                           §
    LORI BETH MAYFIELD,                                                       No. 08-13-00100-CV
                                                          §
                      Appellants,                                                Appeal from the
                                                          §
    v.                                                                         67th District Court
                                                          §
    TARRANT REGIONAL WATER                                                 of Tarrant County, Texas
    DISTRICT,                                             §
                                                                              (TC#067-260763-12)
                      Appellee.                            §

                                                  OPINION

          Appellants/plaintiffs Jacklyn Worfel Mayfield and Lori Beth Mayfield1 appeal the

granting of Appellee/defendant Tarrant Regional Water District’s plea to the jurisdiction. We

affirm.

                                                      FACTS

          Plaintiffs filed a suit under the Texas Commission on Human Rights Act for gender

discrimination and retaliation against their former employer, Tarrant Regional Water District.

The water district filed a plea to the jurisdiction, urging that the plaintiffs’ petition did not make

claims sufficient to overcome the district’s sovereign immunity. The trial court granted the plea


1
  Jacklyn is referred to throughout plaintiffs’ brief as Nikki. Because plaintiffs have the same surname, we will refer
to them as Jacklyn and Lori.
and dismissed the entire lawsuit with prejudice on December 18, 2012. This interlocutory appeal

follows.

       Jacklyn Worfel Mayfield was employed by Tarrant Regional Water District as an

administrative assistant for less than a year. She was initially hired as an administrative assistant

in the engineering department, and two months later she was moved to the risk management

department. She had an office in both the engineering department and IT department so she

could work on projects in both. She was supervised by Madeline Robson, IT director, Norman

Ashton, risk manager, and Jennifer Poulson, her direct supervisor. Her mother-in-law, Lori Beth

Mayfield, was employed by the water district for twenty years, and at the time of her termination

was an engineering coordinator.         Lori supervised Jacklyn’s project in the engineering

department. They were both terminated on March 21, 2012.

       During the week of December 19, 2011, Jacklyn was called into an office where several

people were laughing and talking, including her supervisors Norman Ashton, Madeline Robson,

and Jennifer Poulson. They told her “you have to see this, come look now.” Jacklyn did so, and

was shown a photograph on Ashton’s phone of “an extremely hairy and huge penis.” Jacklyn

was shocked and horrified, reacted negatively, and was told to leave the room. Jacklyn wanted

to report this incident, but as all her supervisors had been participants, she reported it to her

engineering department supervisor (and mother-in-law) Lori, who recommended that she not

report the incident further and hope it would blow over with time. Lori advised Jacklyn it would

“go badly” for her if she reported the incident further. Following the penis picture incident,

Jacklyn “experience[d] increased tension in the office.” Her petition and supporting affidavit

detail a number of interactions between her supervisors and herself, mainly consisting of

challenges to her truthfulness about medical appointments and treatment. She felt that Ashton




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watched her constantly. She was told to get verification of tests her doctor performed to show

she was not lying about treatment. She was told to give her supervisor Poulson detailed reports

about her whereabouts when she was away from her desk.            Supervisor Ashton apparently

thought this reporting was disrespectful to Poulson (why he felt this way was unexplained). No

other employee was required to give these detailed reports. Jacklyn again consulted with Lori,

who again advised her to comply with the requests and see if the problem would resolve on its

own.

       Jacklyn asserts that this poor treatment caused stress, which in turn caused her health to

worsen, with headaches, “pressure in [her] head,” and fatigue. Eventually, she was moved back

to the engineering department under the supervision of Aisha Hakimi. During this time, she had

a spinal tap performed in an emergency room, after which she had to lay flat for three days. She

returned to the hospital from February 27 to March 2, 2012, and asserts that she kept her

engineering supervisor, Hakimi, informed about her whereabouts. She elected to take leave

without pay for this time. Nevertheless, Jacklyn was required to bring in paperwork proving her

dates of hospitalization, which was not immediately available. The gist of Jacklyn’s interactions

regarding her medical treatment was that her employers thought she was “a cheater” and was just

going for medical tests because she wanted to. She returned to work on March 8, 2012 with

copies of the requested paperwork, including all her prescribed medication. She was told to

report to Poulson each day she was out ill, and report her arrival and departure times from work

as well. She returned to the hospital on March 13 with a diagnosis of a strep infection, which she

reported to Poulson. Ashton called her in her hospital room on March 14 regarding a medical

power of attorney. Jacklyn declined to make any decisions about a power of attorney at that

time. She sought assistance from the hospital’s patient advocate, who requested the water




                                                3
district’s leave policy. The leave policy supplied by the district to Jacklyn was different than that

posted on its employee intranet.

       Jacklyn was eventually diagnosed with, and received treatment for, a cortisol deficiency.

She was released from the hospital and was informed on March 21, 2012 that she had been

terminated as she had exhausted her paid time off. She claims that this was pursuant to a “new”

policy that “[i]f any employee has depleted all eligible leave and does not return to work, his/her

employment will be terminated unless prior arrangement has been made with their Supervisor

and has been approved by the Human Resources department.” The letter also stated that Jacklyn

was dismissed for failing to make prior arrangements with her supervisor. Jacklyn and Lori were

told that Robson and Ashton had obtained permission from the water district’s general manager

to fire Jacklyn, telling him that she had failed to notify her supervisor of every day of her

hospitalization.

       Upon learning of Jacklyn’s termination, Lori told her own supervisor that she had

personally supervised Jacklyn’s notification regarding her hospitalization, and Jacklyn had proof

she had contacted a supervisor daily. She told him that the water district “had broken her heart

and that her heart would never be with this company again.” Lori was also terminated from the

water district, and was never given a reason as to why, even when inquiry was made for purposes

of obtaining unemployment insurance.

       Both plaintiffs filed charges of discrimination and retaliation, for which they eventually

received right-to-sue letters. They sued the water district, which raised sovereign immunity in its

plea to the jurisdiction. The trial court granted the water district’s plea to the jurisdiction. This

appeal follows.

                                   STANDARD OF REVIEW




                                                 4
       A plea to the jurisdiction based on governmental 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). Whether a trial court has subject matter jurisdiction is a question of law subject to

de novo review on appeal. Id. at 226, 228. In determining whether the plaintiffs have carried

their burden to allege facts sufficient to establish subject matter jurisdiction, we review the

allegations in the pleadings—accepting them as true and construing them in the plaintiff’s

favor—and any evidence relevant to the inquiry. Id. at 226-27. If the evidence raises a fact

question on jurisdiction, the plea must be denied. Id. at 227-28.

                                          DISCUSSION

       In two issues for review, plaintiffs urge that (1) their pleadings were sufficient to defeat a

plea to the jurisdiction for employment discrimination and retaliation; and (2) they were denied

the right to replead their claims before dismissal of their case. We address these claims in turn.

                        Jurisdiction over Discrimination Cause of Action

       Under the Texas Commission on Human Rights Act (TCHRA) “[a]n employer commits

an unlawful employment practice if because of … sex … the employer … discharges an

individual or discriminates in any other manner against an individual in connection with

compensation or the terms, conditions, or privileges of employment ….” TEX.LAB.CODE ANN. §

21.051 (West 2015); Mission Consolidated I.S.D. v. Garcia, 253 S.W.3d 653 (Tex. 2008). The

legislature has waived governmental immunity for claims brought under the TCHRA provided

the plaintiffs plead the prima facie elements of their claims. Therefore, to defeat this plea to the

jurisdiction, plaintiffs must show that a fact question exists as to the merits of their case.

University of Texas at Arlington v. Williams, 455 S.W.3d 640, 644 (Tex.App.—Fort Worth

2013), aff’d, 2015 WL 1285317 (Tex. March 20, 2015). When a jurisdictional challenge




                                                 5
implicates the merits of the plaintiffs’ claims, the trial court considers the evidence submitted by

the parties to determine if a fact question exists. If the submitted evidence creates a fact

question, then a trial court cannot grant the plea to the jurisdiction. If the evidence is undisputed,

or if the evidence does not raise a fact question on the jurisdictional issue, the trial court rules on

the plea to the jurisdiction as a matter of law. Id. at 644.

       Sexual harassment is a recognized category of sex discrimination under the TCHRA.

Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App.—El Paso 1997, writ denied).

Initially, we point out that only Jacklyn relies upon sex discrimination in employment as a cause

of action; Lori’s lawsuit is based solely upon a retaliation theory.           Generally, the courts

recognize two alternative ways of establishing discriminatory treatment: (1) bringing forth direct

evidence of discriminatory intent via what defendant or its agents did and said; or (2) the burden-

shifting mechanism of McDonnell Douglas v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973).        Plaintiff Jacklyn here relies upon the direct method of proving

discriminatory animus. Specifically, she argues that she established a case of sex discrimination

through sexual harassment through both hostile work environment and quid pro quo theories.

       We may dispose of the quid pro quo argument quickly. To establish a prima facie case

for quid pro quo sexual harassment, a plaintiff must show that: (1) she is a member of a

protected group; (2) she was subjected to unwelcome sexual advances or requests for sexual

favors by someone with actual or apparent authority; (3) the harassment was based on sex; and

(4) submission to the unwelcome advances was an express or implied condition for receiving job

benefits or refusal to submit resulted in a tangible job detriment. Soto, 942 S.W.2d at 677-78.

Jacklyn claims that the “penis picture” incident and detrimental treatment that followed are

sufficient to create a fact question on quid pro quo. We disagree. Although displaying pictures




                                                   6
of genitalia in the workplace is certainly not professional behavior, and we in no way condone it,

we simply cannot see that this constituted a sexual advance or request for sexual favors. It was

an isolated incident, took place in a room full of people both male and female, and when Jacklyn

reacted to it negatively she was excused.        Even coupled with the treatment that followed

(reporting her whereabouts, demanding doctor’s verification of absences, and ultimate

termination) we do not believe this makes out a cause of action for quid pro quo sexual

harassment. The trial court did not err in granting the plea to the jurisdiction on this theory.

       We next turn to the hostile environment theory of sex discrimination. To make a prima

facie showing of hostile environment sexual harassment, a plaintiff must meet the following

elements: (1) the employee belonged to a protected class; (2) the employee was subject to

unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected

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

of the harassment and failed to take adequate remedial action. Id. at 678. If the harassment was

by plaintiff’s supervisor, some courts do not require a showing as to the fifth element. Nairn v.

Killeen I.S.D., 366 S.W.3d 229, 245 (Tex.App.—El Paso 2012, no pet.); City of San Antonio v.

Cancel, 261 S.W.3d 778, 784 n.2 (Tex.App.—Amarillo 2008, pet. denied).

       “For conduct to be actionable, a plaintiff must show ‘the workplace was permeated with

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

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

Spring v. Walthall, No. 04-09-00474-CV, 2010 WL 2102988, at *5 (Tex.App.—San Antonio

May 26, 2010, no pet.) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370,

126 L.Ed.2d 295 (1993)). Sexual harassment is sufficiently severe or pervasive to alter the

terms, conditions, or privileges of the victim’s employment when it can be said to create an




                                                  7
abusive working environment. Abusiveness requires extreme conduct, and takes a middle path

between making actionable conduct that is merely offensive and requiring the conduct to cause a

tangible psychological injury. Harris, 510 U.S. at 21, 114 S.Ct. at 370; Walthall, 2010 WL

2102988, at *6. The conduct must be both objectively and subjectively hostile or abusive.

Walthall, 2010 WL 2102988, at *6. 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 perceived to be

so. 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. 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, 140 L.Ed.2d 201 (1998). We consider the totality of the

circumstances including frequency, severity, 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.

        In support of her hostile environment claim, Jacklyn points to the following: (1) the

penis picture incident; (2) following her negative reaction to the penis picture, the monitoring of

her whereabouts; (3) placing reporting requirements on her not placed on other employees; (4)

accusations of disrespect when she complied with the reporting requirements; (5) accusations of

lying   about   doctors   appointments    and   hospitalizations   and   requiring   unreasonable

documentation; (6) calling her at the hospital and demanding to talk with her doctor; and (7)




                                                8
Robson and Ashton getting permission to terminate her from the general manager, although they

were no longer supervising her.

       In assessing this evidence, we may review other cases in which rude and undesirable

behavior was deemed insufficient as a matter of law to meet the objective standard of

abusiveness set out above. In one case, the male president and general manager of a mortgage

company stared at and made comments on the female employee’s breasts, touched his genitals,

frankly discussed highly personal and sexual matters with her, remarked on her appearance,

stared at and commented on the photograph of a female client, commented on the appearance of

other women, made repeated sexual references which she felt were intended to arouse her, and

insulted and yelled at her. The employee was later fired for incompetence. The appellate court

found this was insufficient to create a hostile work environment. Garcia v. Schwab, 967 S.W.2d

883, 884, 887 (Tex.App.—Corpus Christi 1998, no pet.). In another case, one male supervisor

made sexually inappropriate remarks to female employee such as “I’ll bet you like it big”

whenever she used the work “big” in conversation, made comments about her breast size,

referred to other employees as her “lover,” stood over her desk and attempted to look down her

shirt, and came toward her in a menacing manner as if to grab her sexually. Another male

supervisor repeatedly stated he would like to go out and have a drink with the female employee

and forbade her from dating another employee. The employee never complained to a higher

level of management or called the company’s anonymous CareLine. This failed to create a fact

question as to hostile work environment. Staller v. Service Corp. Int’l, 2006 WL 3018039, at *5-

6 (Tex.App.—San Antonio Oct. 25, 2006, no pet.).

       We conclude that the facts set out by Jacklyn fall far below the objective standard that

was unmet in Garcia and Staller. She describes a single incident of arguable sexual harassment,




                                               9
which took place in mixed company, and from which she was immediately excused when she

took offense. She then relates a series of work requirements that, seen in the light most favorable

to her, were contradictory and oppressive, but did not implicate sex, nor did they so permeate the

workplace with discriminatory intimidation, ridicule and insult sufficiently severe or pervasive

so as to alter the conditions of the victim’s employment and create a hostile or abusive working

environment.

       For these reasons, we find the trial court did not err in sustaining the plea to the

jurisdiction with regard to Jacklyn’s discrimination claims.

                           Jurisdiction over Retaliation Cause of Action

       Both Jacklyn and Lori Mayfield asserted claims for retaliation under the TCHRA, which

the trial court dismissed pursuant to the plea to the jurisdiction. To establish a prima facie case

for retaliation, plaintiffs must show: (1) they engaged in protected activity; (2) an adverse

employment action occurred; and (3) a causal connection between the protected activity and the

adverse employment action as to each of them. Herbert v. City of Forest Hill, 189 S.W.3d 369,

376 (Tex.App.—Fort Worth 2006, no pet.). The TCHRA lists protected activities as: (1)

opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; and (4)

testifying, assisting, or participating in any manner in an investigation, proceeding or hearing.

TEX.LAB.CODE ANN. § 21.055 (West 2015). Termination is an adverse employment action.

Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex.App.—Houston [14th Dist. 2004, no

pet.). We therefore examine whether there is any fact issue as to whether the plaintiffs engaged

in protected activity, and whether their respective terminations might be causally connected to

such protected activity.




                                                10
        We first examine Lori’s retaliation claim. Even viewed in the light most favorable to

plaintiff, we see no protected activity in which Lori engaged. When Jacklyn told her about the

penis picture incident, Lori counseled her not to report the incident further and hope it would

blow over with time. Lori advised Jacklyn it would “go badly” for her if she reported the

incident further. She did not report the incident, in fact quite the opposite. She did discuss what

she perceived as Jacklyn’s unfair treatment with her own supervisor, but there is no evidence that

she linked this up with any allegation of sexual harassment, sex discrimination or any other

status protected by the TCHRA. See County of Travis v. Manion, No. 03-11-00533-CV, 2012

WL 1839399, at *8 (Tex.App.—Austin May 17, 2012, no pet.). Thus, we cannot say that Lori

opposed a discriminatory practice or otherwise engaged in protected activity so as to state a

prima facie claim for retaliation.

        Similarly, Jacklyn’s actions regarding the penis picture incident cannot be said to

constitute opposing a discriminatory practice or the making or filing of a claim. Again, she

elected not to make a complaint upon the advice of her mother-in-law. We do not believe her

initial adverse reaction to the picture, without more, can constitute opposition to a discriminatory

act, nor the making of a complaint. For these reasons, we believe the trial court correctly granted

the plea to the jurisdiction with regard to the retaliation claims of both plaintiffs. Issue One is

overruled.

                                            Right to Amend

        Finally, plaintiffs argue that they should have been given the opportunity to amend their

petition prior to the dismissal of their claims. It is true that when a plaintiff fails to plead facts to

establish jurisdiction, the issue is one of pleading sufficiency and plaintiffs should be afforded

the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).




                                                   11
Where the pleadings and evidence demonstrate that the necessary jurisdictional facts do not

exist, and amended pleadings cannot cure the defect, the jurisdictional plea may be ruled upon as

a matter of law. Miranda, 133 S.W.3d at 227-28. Here, we have reviewed not just the petition

in the light most favorable to the plaintiffs’ causes of action, we have also taken into

consideration their lengthy affidavits setting out the facts of the case. Having done so, we

conclude that the facts here simply cannot support a waiver of immunity under the TCHRA.

Allowing plaintiffs the chance to amend when they have already marshaled their facts in this

manner would simply serve no purpose. The trial court did not err in reaching a similar

conclusion. Issue Two is overruled.

                                         CONCLUSION

       For the foregoing reasons, we affirm the trial court’s order granting defendant Tarrant

Regional Water District’s plea to the jurisdiction.


                                              SUSAN LARSEN, Justice (Senior Judge)
June 10, 2015

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment




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