      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00088-CV



                                  Barbara J. Booker, Appellant

                                                  v.

                                      City of Austin, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-06-001757, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               After she was terminated midway through the probationary period that aspirants

must successfully complete before they can become full-fledged City of Austin (City) firefighters,

Barbara Jonell Booker sued the City under the Texas Commission on Human Rights Act (TCHRA),

asserting theories of racial and gender discrimination and retaliation. The City moved for summary

judgment, seeking dismissal of all of Booker’s claims. The district court granted the motion in

full and rendered judgment dismissing all of Booker’s claims. Booker appeals, contending that the

district court erred in granting summary judgment as to liability theories not addressed in the City’s

motion and that she presented summary-judgment evidence raising fact issues as to all theories

that the City’s motion did address. In addition to responding to Booker’s issues, the City asserts that

Booker failed to exhaust administrative remedies with respect to many of her claims and theories.

We will affirm the district court’s judgment.
                                          BACKGROUND

AFD’s hiring & training processes

                By all accounts, the job of a firefighter with the City of Austin’s Fire Department

(AFD) can require performance of physically, mentally, and intellectually demanding tasks with

competence, efficiency, and levelheadedness amid pressure-packed and perilous situations. Citing

the need to ensure its personnel are capable of meeting such demands, AFD has imposed rigorous

processes for selecting and training prospective firefighters.

                At all relevant times, the first step in becoming an AFD firefighter was to gain

admission to the AFD Fire Academy. This entailed a competitive application process that included

taking a written test, passing a physical skills test called the CPAT (Candidate Physical Ability Test),

undergoing a psychological examination, and completing an interview before a review board

or panel. From the pool of applicants who successfully completed this testing and interview process,

the top-ranking official within AFD, known as the “Fire Chief,” would select candidates for hire

for admission to the Fire Academy. If selected, a new hire, known as a “fire cadet,” would spend

approximately six months at the academy receiving instruction and evaluation, through both

academic and physical exercises, regarding numerous firefighting and medical tasks and skills. To

graduate from the Fire Academy, a cadet was ordinarily required to achieve certification as a

firefighter from the Texas Commission on Fire Protection, become certified as an emergency

medical technician (EMT), and pass additional skills testing that AFD required beyond the minimum

state standards.

                Assuming that a fire cadet made it through the academy—and not all cadets

did—there would follow a probationary period that, like the Fire Academy, was roughly six months


                                                   2
in duration. During this period, the “probationary firefighter” (“PFF”) would obtain hands-on

experience working in AFD “operations”—basically the division that responds to fire, rescue, and

medical emergencies from fire stations located around the city, in the manner commonly associated

with the job of a firefighter—and would be evaluated on his or her performance. When not busy on

such “calls,” PFFs were also required to undergo further training and evaluation on both written

examinations and practical skills that overlapped or reinforced to some extent their prior

Fire Academy instruction. This course of instruction and evaluation was structured into a succession

of monthly “modules.” At the conclusion of the modules, the PFF would undergo a final round of

skills testing.

                  PFFs who successfully completed this process could then be hired as full-time, full-

fledged AFD firefighters who enjoyed, among other benefits, the protections of civil service laws.

While still PFFs or cadets, however, they remained at-will employees. The Fire Chief had the

sole and ultimate authority to fire or retain a cadet or PFF. The Fire Chief who hired Booker—and,

likewise, ultimately fired her—was Gary Warren, an AFD veteran of over thirty years who served

roughly seven years as chief before resigning effective January 2005.

                  During Warren’s tenure as Fire Chief, he endeavored to remedy a historical

underrepresentation of women and racial minorities in the AFD ranks through means that included

a recruiting initiative known as “Pass the Torch,” a series of promotional and informational

events that encouraged women and racial minorities to pursue careers as AFD firefighters. Warren

personally attended many of these events and encouraged participants to apply for admission to

the AFD Fire Academy. It was as a result of Warren’s efforts to increase racial and gender diversity

within AFD that appellant Booker came to seek employment there.


                                                   3
AFD recruits Booker

               Booker, who is an African-American woman, was persuaded to attend one of

Chief Warren’s “Pass the Torch” events by an AFD recruiter who exercised at the same gym that she

did. Although Booker’s previous jobs had consisted of office work (she had been employed at Dell

before getting laid off in 2001, then at a mortgage company, and thereafter at a homebuilder), she

was encouraged by various AFD personnel to apply for employment—including, according to

Booker, Chief Warren himself. She ultimately did so.

               Booker passed the written test for admission to the Fire Academy as well as the

CPAT, underwent the psychological evaluation, and went before an interview panel. Following her

interview, the panel recommended to Chief Warren that Booker be hired for admission to the

academy. As a final step in the hiring process, Warren ran a criminal background check on Booker.

The background check revealed a criminal conviction that Booker had failed to disclose on

her application despite being asked. While Warren indicated that such an omission would have

ordinarily led him not to hire Booker, he investigated the matter further, determined that Booker had

not been “intentionally dishonest” in failing to disclose her conviction,1 and hired her anyway.

               Warren was aware at the time he hired Booker that she was both African-American

and female. By this point in AFD’s history, there were a few dozen African-American firefighters

in the department’s ranks, as well as a few dozen women firefighters, numbers sufficiently large that

each group had formed its own organization to provide support or fellowship for its members, the

Austin African-American Firefighters Association (AAAFFA) and the Austin Women Firefighters


       1
          In his affidavit, Warren explained that “after I made some inquiries, I learned that Booker
had attempted to get the criminal conviction expunged and that it would have been expunged but for
her failure to file a document.”

                                                 4
(AWF), respectively. However, there had been scant few AFD firefighters who were both African-

American and female. In fact, other than Booker, there was only one such firefighter then serving

in the AFD, a veteran of over twenty-five years.


Booker enters the Fire Academy

               Booker entered the AFD Fire Academy as part of Class 108, which began in

March 2004. Class 108 was initially comprised of approximately twenty cadets, roughly split

between a “blue” team and a “red” team, with Booker assigned to the latter. To summarize the

events that followed, Booker’s performance on both academic and physical skills exercises and

evaluations caused her to be brought up for review at least three times by the Fire Academy’s “Cadet

Oversight Committee,” a group comprised of the team leaders and officers in charge of the

academy that would meet every two weeks to discuss the cadets’ progress. This committee included

a female firefighter who had been on the interview panel that had recommended Booker favorably

for hire, Lisa Watts,2 the “team leader” for Booker’s red team.

               On the first episode when Booker’s performance was brought up for review, the Cadet

Oversight Committee, including Watts, voted to retain Booker even while recommending the

termination of another fire cadet who was Anglo and female. However, on its second review of

Booker’s performance, which occurred in late July 2004, the committee recommended to AFD

higher management that Booker be terminated, citing “continuous difficulties with the academic

portions of the academy,” her failure to pass eight of 24 practical skills tests, and her inability to



       2
          By the time of Booker’s suit, Watts had married and changed her surname to “Watts-
Madolora.” Because she was known by Watts at the time of the underlying events, we refer to her
by that name for clarity.

                                                   5
pass one of the skills tests—the “throw-bag” test, which evaluated a swift-water rescue skill—even

on retesting. This recommendation was forwarded to a “Department Review Board” comprised

of representatives of AFD upper management that included Chief Warren’s chief of staff,

Assistant Chief Jim Evans. Some members of the Department Review Board voted to terminate

Booker, although Evans did not. After considering the views of the Department Review Board

members and the written recommendation from the Cadet Oversight Committee, Chief Warren

decided that Booker should be retained at the Fire Academy, given another chance to complete the

throw-bag skill, and counseled about her performance.

               Subsequently, in September 2004, as Class 108 was concluding its training at the Fire

Academy, the Cadet Oversight Committee made a second recommendation—unanimously—that

Booker be terminated. The written recommendation emphasized the committee’s belief that “Cadet

Booker is not competent to be placed at a fire station,” and cited (1) Booker’s failure to pass a

third and fourth retest of the throw-bag test, despite having been given a “remediation plan . . . that

allowed further practice time, both supervised by Swift Water instructors and Team Leaders and

unsupervised by taking a throw bag home”; (2) Booker’s failure of a second academic test despite

having been “counseled several times for academic performance”; (3) Booker’s failure of an AFD

Final Performance Skill Test that consisted of six randomly selected skills on which Booker

had been previously tested and had passed, which the committee found “noteworthy due to the

fact that Cadet Booker, after approximately four months of fire training had significant difficulty

with the essential function of connecting an engine to a hydrant”; and (4) Booker’s failure to score

above 70 in three of four emergency medical technician (EMT) written assessments. The committee

further observed:


                                                  6
         Cadet Booker appears to have difficulty retaining the information learned during
         the Academy. This is evident through the practical examples cited and academic
         performance on written tests. Team Leaders have spent many hours with Cadet
         Booker practicing multiple skills, as evidenced through the Team Leader notes,
         but this cadet had not been able to demonstrate retention of knowledge and skills nor
         the ability to competently perform job-related tasks required of a firefighter ready
         for Operations.

         The Austin Fire Department Training Academy has a fixed amount of time to prepare
         an individual to become an Austin Firefighter. The requisite skills, knowledge,
         and abilities are substantial, but most that begin the academy are able to learn and
         develop into a competent, and capable Firefighter in the time allotted. The amount
         of additional assistance Cadet Booker has received from all areas has not
         been sufficient to produce the product we desire, a competent Austin Firefighter.
         Academy personnel have documented numerous performance counseling sessions,
         from the Team Leader up through the Program Manager. While her attitude and
         effort [are] good, there has been no corresponding positive increase in ability,
         application, or understanding. With skills, Cadet Booker has been described as able
         to ‘mimic’ someone else in order to pass, but when asked to apply the information
         by describing why something is done, change the testing situation, or incorporate
         multiple skills that a fireground demands, the cadet is often at a loss. The ability of
         Cadet Booker to simply pass a skill is often depend[e]nt upon many additional hours
         of practice, repetition, and instruction.

         The Cadet Oversight Committee members have consulted numerous times with
         the Team Leaders and concur with the belief that Cadet Booker has had ample
         opportunity to change and improve, but has not, and is not ready for Operations and
         should not be released.


This time, the Department Review Board unanimously agreed with the committee’s recommendation

that Booker be terminated.

                Chief Warren, however, rejected the unanimous recommendations that Booker be

 terminated. Instead, Warren decided to permit Booker to graduate the Fire Academy with the other

 remaining members of Class 108 and be assigned to Operations as a PFF. Warren later explained

 his reasoning in an affidavit he provided in support of the City’s summary-judgment motion,

 “Although I believed that Booker should have been able to competently perform these skills [the


                                                   7
throw-bag skill and “the basic task of hooking a hose to a hydrant”] and pass her academic tests, I

believed at the time that she should be given an opportunity to graduate from the Academy and

succeed or fail as a PFF.” He added, “I felt if Booker continued to train, she could learn those skills

and become a successful firefighter.”


Booker as a PFF

               Following graduation from the Fire Academy, newly minted PFFs were ordinarily

assigned randomly to a fire station that had staffing room to accommodate them, where they would

complete their probationary periods. However, the top cadet graduates were given the privilege

of choosing the fire station to which they would be assigned. In the case of Booker, however,

Chief Warren, in consultation with Assistant Chief Evans, departed from the normal practice

and assigned Booker to a station specifically selected for her—station 23, on the “A” shift.3 In his

affidavit, Warren explained his reasoning as follows:


       In reaching my decision to retain Booker and allow her to graduate from the
       Academy, I also wanted to ensure that she had the best opportunity to succeed as
       a PFF. . . . I wanted Booker to go to a station where I knew she would receive
       excellent training and have the best chance to succeed. After discussing the options
       with Assistant Chief Evans, I concluded that Station 23, A shift, would be the
       best opportunity for Booker of the stations with openings for PFFs. I reached this
       decision because I believed that Lt. Bicknell, the officer at Station 23, would treat
       Booker fairly. Station 23 had another female fire fighter, Liz Forsyth Donelson
       who could help mentor Booker, and Captain [Chris] Watson, the Captain for the
       station, had a reputation in AFD for being an excellent trainer. Station 23 also had
       a moderate volume of calls with a good mix of fire and medical calls. This meant
       that Booker would have the opportunity to train and practice her skills in the field.
       I also knew that the Battalion Chief, Hank LaCaille, was an experienced and


       3
          Evidently AFD operations were staffed by rotating shifts of firefighters working 24-hour
periods on-duty, followed by 48 hours off-duty. The “A” designation signified the shift’s place in
the rotation.

                                                  8
       professional firefighter who would give Booker the opportunity to succeed as a PFF.
       Finally, I considered the fact that Station 23 had an EMS unit in the same building.
       I believed that if Booker struggled with her medical skills, she would be able to work
       [with] EMS to improve those skills.


               During the ensuing months, Chief Warren received “periodic updates” on Booker’s

performance from Assistant Chief Evans and from Randy Templeton, Booker’s Division Chief.

Meanwhile, Captain Watson, who assumed primary responsibility for Booker’s training, generated

extensive documentation reflecting persistent and severe performance deficiencies. Watson also

videotaped some of Booker’s training exercises. To summarize, Watson’s accounts continued to

echo themes that had appeared in the Cadet Oversight Committee’s termination recommendations,

including continued difficulty of Booker in performing and remembering how to perform various

firefighter tasks, as well as errors in judgment (e.g., endangering a patient by improperly operating

a stretcher, improperly using alcohol wipes when treating a patient with cuts). Warren also reported

that Booker manifested signs of mental or emotional difficulties, including at least one episode at

a station when she was heard exclaiming about her training exercises in her sleep.4

               According to Chief Warren, “I learned that Booker continued to struggle

with basic fire and medical skills,” had received “unsatisfactory performance ratings at the

conclusion of her first and second modules,” and “did not exhibit signs of improving between

her first and second module.” In December, Warren was advised that LaCaille, Booker’s Battalion

Chief, had recommended her termination. After reviewing Booker’s performance, Warren convened

a Probationary Firefighter review board to consider the termination recommendation. The review



       4
         Because firefighters assigned to Operations worked 24-hour shifts, it was not unusual for
them to catch occasional sleep when not otherwise occupied.

                                                 9
board met on January 6, 2005, after which Warren received written recommendations from

Assistant Chief Evans, Division Chief Templeton, and Battalion Chief LaCaille. Both Evans and

LaCaille recommended termination. Although Templeton agreed that Booker had failed to master

basic firefighting skills, he favored giving her further opportunity to improve and be reviewed again

two weeks before the end of her probationary period.

               Booker met with Chief Warren the next day, January 7, 2005. Booker agreed that

she had exhibited performance problems but complained that Station 23 was not a “good fit” for

her, that she received little support from her other team members, and that Captain Watson had

seemed to want her to fail. After the meeting, Chief Warren informed Booker that he had decided

to terminate her employment, effective immediately. According to Warren, he terminated Booker

because “despite completing the Fire Academy and three months of the PFF program, she could not

competently perform several basic fire and medical skills,” “she had not met AFD standards in

the PFF program,” and “she had not exhibited sufficient signs of improvement over the course of

her tenure in AFD.” Warren concluded that “if Booker remained in the PFF program, she posed a

potential safety risk to herself and others—including members of the public.”


Booker sues

               On May 11, 2005, Booker filed a charge of discrimination against AFD with the

Civil Rights Division of the Texas Workforce Commission and the Equal Employment Opportunity

Commission. See Tex. Lab. Code Ann. §§ 21.201-.202 (West 2006).5 She asserted that she had




       5
          In the absence of material intervening substantive changes, we will cite the current versions
of statutes for convenience.

                                                  10
been discriminated against because of her race and gender, in violation of the TCHRA. See id.

§ 21.051(a) (West 2006). Booker amended her charge on November 22, 2005. In her amended

charge, Booker added a new theory that she had been discriminated against as retaliation “for

opposing and reporting discriminatory actions towards me.” See id. § 21.055 (West 2006). On both

her original and amended charge, Booker indicated, in the box marked “Date Discrimination Took

Place,” that both the earliest and latest date on which the complained of conduct took place was

January 7, 2005, the date of her termination.

               Subsequently, after Booker received a right-to-sue notice, see id. § 21.252

(West 2006), she timely filed suit against the City in district court, asserting claims that would

be authorized under the TCHRA. See id. § 21.254 (West 2006); see also Prairie View A&M Univ.

v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012) (observing that the TCHRA effects a limited waiver

of sovereign immunity as to the claims it authorizes); Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 636 (Tex. 2012) (recognizing that TCHRA similarly waives governmental

immunity). Booker alleged that the City had violated the TCHRA through race- and gender-based

job discrimination, race- and gender-based “hostile work environment,” and retaliation. See

Tex. Lab. Code Ann. § 21.051(a), .055. The City moved for summary judgment dismissing all of

Booker’s claims, asserting both “traditional” and no-evidence grounds. The district court granted

the City’s motion in full without specifying the grounds on which it relied. This appeal followed.


                                           ANALYSIS

               Booker brings seven issues on appeal challenging the grounds on which the

district court could have relied in granting summary judgment. Her first three issues challenge the

summary-judgment grounds addressed to her theories of race- and gender-based job discrimination,

                                                11
her fourth and fifth issues challenge the grounds relating to her retaliation theory, and her sixth issue

challenges the summary judgment as to her hostile-work-environment theory. In her seventh and

final issue, Booker asserts that the district court erred in granting summary judgment as to claims

predicated on discriminatory or retaliatory conduct other than her termination because, Booker

insists, the City did not address those theories of liability in its motion.

                In addition to responding to Booker’s issues, the City brings a cross-point urging that

Booker did not timely exhaust the administrative remedies that were prerequisites to her assertion

of her retaliation claim. The City similarly argues that Booker exhausted her administrative remedies

solely as to a charge of job discrimination in her ultimate termination, as opposed to any actions that

preceded it. Because the City’s contentions logically precede Booker’s appellate issues, we will

address them first.


Exhaustion of remedies

                To bring a suit for unlawful employment practices under the TCHRA, a plaintiff

must have first filed an administrative complaint “not later than the 180th day after the date the

alleged unlawful employment practice occurred.” Id. § 21.202(a). When filing suit, the plaintiff

may raise only the specific issue made in the employee’s administrative complaint and any

kind of discrimination like or related to the charge’s allegations. University of Tex. v. Poindexter,

306 S.W.3d 798, 807 (Tex. App.—Austin 2009, no pet.). As the Texas Supreme Court recently

confirmed, compliance with the TCHRA’s exhaustion-of-remedies requirement is a mandatory

and jurisdictional prerequisite to the act’s waiver of immunity. See Chatha, 381 S.W.3d at 510-14;

accord Poindexter, 306 S.W.3d at 808-13 (reversing and dismissing, for want of subject-matter

jurisdiction, TCHRA job-discrimination and retaliation suit against governmental entity for failure

                                                   12
to exhaust remedies); see also Rusk State Hosp. v. Black, 55 Tex. Sup. J. 1320, 1323-26,

2012 WL 3800218, at *4-6 (Tex. Aug. 31, 2012) (sovereign or governmental immunity is

jurisdictional barrier to suit and thus may be raised for the first time on appeal).

                Booker filed her initial charge of discrimination on May 11, 2005. In the section

of the charge form titled “Cause of Discrimination Based on . . . ,” Booker checked the boxed titled

“race,” “sex,” and “other,” specifying as to the latter, “Tchr Act.” Booker did not check the box

titled “Retaliation.” In the narrative section of the charge form titled “Particulars,” Booker

stated that she was discharged on or about January 7, 2005 and that “I believe that I was

discriminated against because of my Race (Black) and Sex (Female) in violation of the [TCHRA].”

She elaborated that she “believe[d] that I was singled out and treated differently than three (3) White

Male Firefighter[s]” in regard to the consequences of deficient performance and in being required

to “perform monthly module testing on skill performances.” In other words, Booker complained

of disparate-treatment job discrimination based on race and gender.            See, e.g., Poindexter,

306 S.W.3d at 804 n.1. She gave no indication in her charge that she was complaining of retaliation.

To the contrary, she conspicuously omitted such an allegation even where the form prompted

her to provide it.

                As Booker acknowledges, the timing of her initial charge of discrimination means that

only unlawful employment practices by the City allegedly occurring on or after November 12,

2004—the 180th day before she filed her charge—could be actionable. See Tex. Lab. Code Ann.

§ 21.202(a). This outer window corresponds to a point in time after Booker had completed the

Fire Academy and begun her PFF training, roughly around the time when she began receiving

negative evaluations on her first module. However, in the box on the charge form titled “Date


                                                  13
Discrimination Took Place,” Booker indicated that both the earliest and last date on which the

complained-of discrimination occurred was January 7, 2005, the date of her termination. Likewise,

she did not check the box indicating “Continuing Action.”

                In her subsequent amended charge, filed on November 23, 2005—long after the

180th day after she was terminated from AFD—Booker, for the first time, checked “Retaliation”

under “Cause of Discrimination” and added narrative allegations regarding such a theory. She also

revised her allegations concerning job discrimination to the effect that her ability to succeed as

a firefighter had been impeded, compared to the three white male firefighters, by being “forced

to change stations” more frequently, being given “multiple ‘mentors’ who would give conflicting

instructions,” being “held accountable for [her] performance” on monthly module tests “whereas,

the white males were given all six months [of probation] to practice . . . before being held

accountable,” and in not being “given the benefit of constructive corrective action.” However, as

with her initial charge, Booker indicated that January 7, 2005—the date of her termination—was

both the earliest and latest date on which the complained-of discrimination had occurred.

                In its cross-point, the City argues that Booker failed to exhaust her administrative

remedies with respect to her retaliation theory because she failed to raise it in her initial charge of

discrimination and because the amended charge in which she finally raised it was untimely. Booker

responds that her retaliation charge “relates back” to the date of her initial charge. Under the

“relation back” doctrine, an “amendment to a complaint alleging additional facts that constitute

unlawful employment practices relating to or arising from the subject matter of the original

complaint relates back to the date the complaint was first received . . . .” Id. § 21.201(f); Poindexter,

306 S.W.3d at 809. But in Poindexter, as the City emphasizes, we held that an amended charge that


                                                   14
added a complaint of retaliation omitted from an initial charge that alleged only race-based

job discrimination did not “relate back” to the original charge because retaliation is a different

legal theory. See Poindexter, 306 S.W.3d at 809 (citing Manning v. Chevron Chem. Co., 332 F.3d

874, 878 (5th Cir. 2003); Simms v. Oklahoma, 165 F.3d 1321, 1327 (10th Cir. 1999); Davis

v. Education Serv. Ctr., 62 S.W.3d 890, 894 (Tex. App.—Texarkana 2001, no pet.)).6 The facts here

are materially identical to those in Poindexter—Booker filed a timely initial charge alleging only

race- and gender-based disparate-treatment discrimination, then tried to add a retaliation theory

through an amended charge filed beyond the 180-day deadline. As in Poindexter, the “relation back”

doctrine cannot save Booker’s untimely administrative charge of retaliation. See id. Consequently,

Booker has failed to exhaust her administrative remedies with respect to her retaliation theory

and that theory is, thus, jurisdictionally barred. Accordingly, we sustain the City’s cross-point

and overrule Booker’s fourth and fifth issues, as well as her seventh issue as it pertains to her

retaliation theory.

                The City further asserts that Booker similarly failed to exhaust her administrative

remedies as to any alleged adverse employment action other than those occurring on January 7,

2005—i.e., Booker’s termination—the date Booker identified in both her initial and amended charge


        6
          Because the TCHRA is intended in part to “execut[e] the policies of Title VII of the
Civil Rights Act of 1964 and its subsequent amendments,” Tex. Lab. Code Ann. § 21.001(1)
(West 2006); see Cooper v. Wal-Mart Transp., LLC, 662 F. Supp. 2d 757, 772 (S.D. Tex. 2009);
see also 42 U.S.C.A. § 2000e-2(a)(1) (West 2012), and “to correlate state law with federal law
in employment discrimination cases,” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917
(Tex. 2005) (per curiam) (quoting Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739
(Tex. 2003)), Texas courts consider federal law when construing and applying parallel provisions
of the Act. Id.; Canchola, 121 S.W.3d at 739; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,
476 (Tex. 2001); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)
(per curiam); but cf. Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507-09 (Tex. 2012)
(recognizing that TCHRA does not track federal law in every respect).

                                                15
as both the beginning and end date of the discrimination of which she was complaining. We agree.

If Booker intended to complain of other actions or series of actions prior to that time, “then

she was statutorily required to specify the date (and meet the separate 180-day filing deadline) of

each discrete event.” Id. at 808 (citing Tex. Lab. Code Ann. § 21.201(c)(2); National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002)). She failed to do so in either her initial or amended

charge. Consequently, Booker’s claims predicated on alleged actions prior to her January 7, 2005

termination are jurisdictionally barred.

               These holdings effectively narrow the range of Booker’s appellate issues that remain

live or viable solely to her first three issues, which challenge the district court’s summary judgment

on her theories of race- and gender-based job discrimination, and only to the extent these theories

complain of disparate-treatment discrimination in her ultimate termination. We turn to those issues

now, and overrule her other remaining issues.


Job-discrimination theories

       Standard of review

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Knott, 128 S.W.3d at 215-16. When reviewing a summary judgment, we take as true all evidence

favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in

the non-movant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.




                                                 16
               The City’s summary-judgment motion invoked both the “traditional” and no-evidence

standards. Under the no-evidence summary-judgment standard, the movant may challenge whether

there is evidence of one or more essential elements of a claim or defense on which the adverse

party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Fort Worth Osteopathic

Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To overcome a no-evidence summary-

judgment ground, the non-movant has the burden of presenting summary-judgment evidence raising

a genuine issue of material fact on the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment will be sustained

when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively

establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of supporting

evidence exists if the evidence would allow reasonable and fair-minded people to differ in their

conclusions. King Ranch, 118 S.W.3d at 751. “Less than a scintilla of evidence exists when the

evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id.

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

               Under the traditional summary-judgment standard, in contrast, the movant has the

initial burden of conclusively negating at least one essential element of a claim or defense on which

the non-movant has the burden of proof or conclusively establishing each element of a claim

or defense on which the movant had the burden of proof. See Tex. R. Civ. P. 166a(c); Science

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the movant has done so, and


                                                 17
only if it does, the burden shifts to the non-movant to produce evidence creating a genuine issue of

material fact as to the challenged element or elements in order to defeat the summary judgment. See

Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

               Where, as here, the trial court does not specify its basis for granting summary

judgment, the judgment must be affirmed if any of the grounds asserted in the motion has merit. See

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).


       Procedural framework

               As noted, Booker exhausted her administrative remedies only as to her theories of

race- or gender-based disparate-treatment discrimination in her termination. To obtain relief for

such “disparate-treatment” discrimination, proof and finding of a discriminatory motive is required.

See, e.g., Poindexter, 306 S.W.3d at 804 n.1 (quoting Pacheco v. Mineta, 448 F.3d 783, 787

(5th Cir. 2006) (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15

(1977))). In the absence of direct evidence of discriminatory motive, Booker had the burden of

establishing discriminatory motive circumstantially. To do so “[i]n discrimination cases that have

not been fully tried on the merits,” as here, “we apply the burden-shifting analysis established by

the United States Supreme Court.” Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739

(Tex. 2003) (per curiam); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43

(2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). As this analysis is

applied to the circumstances here, Booker had the initial burden to present a prima facie case of

discrimination through evidence that: (1) she is a member of a class protected by the Act; (2) she

was qualified for the position she held; (3) she suffered an “adverse employment action” (here, being

terminated); and (4) she was treated less favorably that “similarly situated” persons outside

                                                 18
the protected class.7 See Auto Zone v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam) (citing

Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam); Reeves,

530 U.S. at 142). If she succeeded, a legal presumption of unlawful discrimination arose. See

Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 634. The concept underlying the prima facie

case requirement is that evidence of the factual elements in themselves “raise[] an inference of

discrimination . . . because we presume these acts, if otherwise unexplained, are more likely than not

based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S.

567, 577 (1978).

               If Booker met her prima facie burden, the burden shifted to the City to “articulate

some legitimate, nondiscriminatory reason” for treating her differently than “similarly situated”

persons outside the protected class. See McDonnell Douglas, 411 U.S. at 802; Furnco, 438 U.S.

at 577-78. The “employer’s burden is satisfied if he simply explains what he has done” or produces

“evidence of legitimate nondiscriminatory reasons.” Board of Trs. of Keene State Coll. v. Sweeney,

439 U.S. 24, 25 n.2 (1978) (internal quotations omitted). If the City articulated a legitimate,

nondiscriminatory reason, the presumption of discrimination is rebutted, and the focus would shift

to the ultimate issue of whether the City acted with impermissible discriminatory motives in treating

Booker differently than “similarly situated” persons outside the protected class. See M.D. Anderson

Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam). The ultimate burden



       7
           Booker does not assert that she was replaced by a person outside her protected class; the
consequence of her termination was simply that one fewer member of Class 108 was ultimately hired
as a full-time AFD firefighter. Compare Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d
629, 642 (Tex. 2012) (discussing prima facie case elements in suit alleging age discrimination in
terminating and replacing employee) with Ysleta Indep. Sch. Dist., 177 S.W.3d at 917 (suit alleging
disparate treatment in termination for disciplinary reasons).

                                                 19
of proof on this issue remains with Booker, and she could overcome summary judgment in two ways.

First, she could raise a fact issue as to whether the City’s proffered reason for treating her differently

was untrue and a mere pretext for discrimination. See Rachid v. Jack in the Box, 376 F.3d 305, 312

(5th Cir. 2004). Alternatively, even if Booker could not raise a fact issue as to pretext, she could

raise a fact issue that her protected characteristic was still “a motivating factor” for her disparate

treatment. See id. In that event, the City could prevail on summary judgment by proving as a matter

of law that it would have taken the adverse employment action against Booker even without

any impermissible motive. Id.; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989)).


        Summary-judgment grounds

                The City asserted traditional summary-judgment grounds that, as a matter of law, it

“did not take any adverse employment action against [Booker] because of her race or sex.” The City

also asserted that its summary-judgment evidence conclusively established that (1) it had a

legitimate, non-discriminatory reason for terminating Booker—Chief Warren’s conclusion that

Booker’s job performance had been unsatisfactory, that she had not shown signs of improvement,

and that her inability to consistently perform even basic firefighting and medical skills posed a

significant risk of harm to herself and others—(2) this reason was not pretextual, (3) it did not have

a “mixed motive,” and (4) it “would have terminated [Booker] regardless of any improper motive.”

The City asserted a no-evidence ground challenging whether Booker could present any evidence “to

establish a prima facie case of race or gender discrimination,” that the City’s legitimate, non-

discriminatory reason for terminating Booker was pretextual, or that Booker’s race or gender were

“motivating factors” in her termination.

                                                   20
               In connection with the ultimate issues of pretext and motive, the City relied in part

on the principle that where, as here, the same decisionmaker makes the decision both to hire and fire

an employee who is a member of a protected class, “an inference arises that . . . discrimination is

not the motive behind [the employee’s] termination.” Brown v. C.S.C. Logic, Inc., 82 F.3d 651, 658

(5th Cir. 1996).

               In Booker’s first issue, she challenges the summary judgment to the extent it was

based on her inability to raise a fact issue as to the prima facie case requirement. The City concedes

that (1) Booker was a member of two protected classes (she is both African-American and female);

(2) Booker was minimally qualified to be a PFF (inasmuch as Chief Warren had allowed her to

graduate from the Fire Academy); and (3) Booker’s termination was an actionable “adverse

employment action.” Booker also insists that additional “other discriminatory conduct” prior to her

termination is either independently actionable or was not challenged as a potential basis for liability

in the City’s summary-judgment motion. This “other discriminatory conduct” consists primarily of

alleged actions Booker attributes to Captain Watson or Assistant Chief Evans and represents

an understandable attempt to shift our analytical focus away from the actions and motives of

Chief Warren and the implications of the same-actor inference. Booker has not disputed that

Chief Gary Warren was the ultimate decisionmaker in regard to her employment—including making

the decision to terminate her—and that he also hired her with awareness that she was a woman

and an African-American. Consequently, an inference arises that Warren did not act with a

discriminatory motive in either hiring Booker or in any subsequent actions. See id., 82 F.3d at 658.

Booker has made no serious attempt to rebut this inference with respect to Warren’s individual,




                                                  21
personal motives for his own conduct.8 Instead, she attempts on appeal to recast her suit as about

Watson’s and Evans’s alleged actions leading up to her termination by Warren. However, as we

have explained, Booker did not exhaust her administrative remedies with respect to such pre-

termination acts, and they are not actionable in any event.9


       8
          If anything, Booker’s proof further confirms Warren’s non-discriminatory motives. This
evidence includes, e.g., an email from one of Booker’s supporters in the women firefighter’s group
concerning criticism that he received following his decision to permit Booker to graduate the
Fire Academy despite her performance deficiencies and enter AFD Operations. She observed that
Chief Warren “has done more for diversity and safety than any other chief we ever had and because
of that his job is on the line. His only mistake is being too nice!” Nor does Booker dispute that
Warren strove to increase diversity at AFD and repeatedly overrode his staff’s recommendations to
terminate Booker much earlier than she ultimately was.
       9
        Booker complains of the following alleged conduct that she attributes primarily to Evans
or Watson:

•      she was non-randomly “assign[ed] to a station that would negatively [a]ffect her ability to
       learn the required skills and pass the tests”;

•      she was assigned to Captain Watson, who, according to Booker, “ha[d] a reputation for and
       history of discrimination against female firefighters”;

•      she was “[p]rovided conflicting instructions regarding required skills”;

•      she was “[n]ot provided the same assistance as a white male PFF”;

•      she was “harassed about her psychological/emotional fitness for the position by being made
       to feel unqualified/inadequate causing her nightmares”;

•      she was “held accountable for not passing modules even though there was no requirement
       that modules be passed before moving on to the next module”;

•      she was “[d]enied a transfer to another office and otherwise her complaint of discrimination
       and harassment were ignored”;

•      the department included “[f]alse negative write ups” in her probationary file in order to
       justify terminating her;



                                                22
                Consequently, to overcome the City’s summary-judgment motion as to the

prima facie case requirement for her job discrimination claim, Booker was required to raise a fact

issue as to whether she was treated less favorably in regard to her termination than a “similarly

situated” person outside her protected classes. In recent years, the Texas Supreme Court has strongly

emphasized that “similarly situated” in the context of a job-discrimination claim based on disparate

discipline entails “situations and conduct of the employees in question” that are “‘nearly identical.’”

Auto Zone, 272 S.W.3d at 593-94 (quoting Ysleta Indep. Sch. Dist., 177 S.W.3d at 917-18). “Nearly

identical” situations and conduct excludes “[e]mployees with different responsibilities, supervisors,

capabilities, work rule violations, or disciplinary records.” Id. at 594 (citing Ysleta Indep. Sch. Dist.,

177 S.W.3d at 917). Similarly, “[t]he situations and conduct of employees is not nearly identical

‘when the difference between the plaintiff’s conduct and that of those alleged to be similarly

situated accounts for the difference in treatment received from the employer.’” Id. (quoting Wallace

v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001)). Furthermore, the question of whether



•       she was the first PFF “ever to be assigned to an EMS unit during probation and the only one
        ever to be so assigned for four shifts in a row.”

However, “adverse employment actions” that are actionable in a job-discrimination claim “‘include
only ultimate employment decisions, such as hiring, granting leave, discharging, promoting,
or compensating.’” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007) (per curiam)
(quoting Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). None
of Booker’s asserted “other discriminatory conduct” rise to this level.

        Furthermore, contrary to Booker’s arguments, the City’s summary-judgment motion
encompassed a challenge to whether Booker’s “other discriminatory conduct” amounted to “adverse
employment actions” that could be a basis for liability. The City’s motion asserted that the evidence
conclusively establishes that it did not take any “adverse employment action” against Booker
(other than terminating her) and that she had no evidence to raise a prima facie case of race or
gender discrimination. Thus, even leaving aside Booker’s exhaustion-of-remedies problems, the
district court properly granted summary judgment as to Booker’s job-discrimination theories
predicated on “other discriminatory conduct.”

                                                   23
one or more employees are “similarly situated” should be considered “from the perspective of their

employer at the time of the relevant employment decisions.” Perez v. Texas Dep’t of Crim. Justice,

395 F.3d 206, 210 (5th Cir. 2004).

               Although Booker’s administrative charge of discrimination identified three white

PFFs as relevant “similarly situated” comparators to her, on appeal she suggests that it was enough

that she was “similarly situated” to all other PFFs and that the other PFFs were not allowed

to complete the entirety of their six-month probationary period and were not terminated. This is

contrary to Auto Zone and Ysleta, which require much more. Nor does Booker seriously dispute on

appeal that her performance issues, at least as conveyed to and viewed from Chief Warren’s

perspective, distinguished her quite negatively among her fellow PFFs and fire cadets and accounted

for any differential treatment. See Auto Zone, 272 S.W.3d at 594. Booker essentially acknowledges

as much, observing that “[i]f one were to review [Captain Watson’s records of Booker’s performance

as a PFF] . . . Booker’s performance would appear dismal and perhaps worthy of criticism.”

               Instead, Booker again attempts to shift the focus away from Chief Warren’s actions

and motives to those of Assistant Chief Evans and Captain Watson by urging that the evidence

raises a fact issue as to whether Watson or others “fabricated” reports of her poor performance.

Booker insists that the existence of these asserted fact issues regarding whether she performed poorly

distinguishes her case from cases like Auto Zone and Ysleta, which, in Booker’s view, involved

undisputed allegations of employee misconduct, and render analysis under the “similarly situated”

rubric inapplicable and inappropriate. In essence, Booker contends that the City’s arguments

concerning her poor performance must instead be analyzed under the rubric of pretext or mixed




                                                 24
motive.10 In that regard, Booker argues in her second issue that she raised fact issues as to whether

the City’s proffered reasons for terminating her were pretextual and as to whether discrimination was

a motivating factor in her termination. Relatedly, in her third issue, Booker asserts that the evidence

raises a fact issue as to whether Warren’s termination decision was influenced by the discriminatorily

motivated actions of Evans, Watson, or others to the extent that their motives must be imputed

to Warren’s ultimate termination decision. See Roberson v. Alltel Info. Servs., 373 F.3d 647, 653

(5th Cir. 2004) (“If the employee can demonstrate that others had influence or leverage over the

official decisionmaker, and thus were not ordinary co-workers, it is proper to impute their

discriminatory attitudes to the formal decisionmaker.”); see also Staub v. Proctor Hosp., 131 S. Ct.

1186, 1194 (2011).

               Whether viewed under the rubric of whether Booker was “similarly situated” to

other PFFs or the issue of whether her termination was a pretext for or otherwise motivated by

discriminatory animus that can be charged to the City, we conclude that the evidence falls short of

raising a fact issue that would preclude summary judgment on Booker’s job-discrimination theories.

Although Booker attempts to dispute some of the details of the performance deficiencies and

lapses in judgment that Watson reported, Booker’s poor-performance issues were acknowledged

widely by others in AFD, including Lisa Watts, fellow female firefighters, and African-American

firefighters who were among her supporters, and were deposed in this case—and even by Booker

herself. During her deposition, Booker acknowledged that, despite extensive practice and retraining

by AFD personnel, she had continued difficulties both at the Fire Academy and during her PFF


       10
          Booker does not dispute that the City’s summary-judgment proof that she was terminated
for poor performance met its burden of articulating a legitimate nondiscriminatory reason for her
termination, shifting the burden back to her to establish pretext or mixed motive.

                                                  25
training in attaching fire hoses to hydrants and fire trucks, and in recognizing and utilizing hand tools

properly. She likewise acknowledged that she had endangered a patient by improperly operating a

stretcher, had improperly used alcohol wipes when treating a patient with cuts, and had failed

numerous academic and practical skills tests at both the Academy and in her PFF training. When

confronted with her negative evaluations during her final review board meeting on January 6, 2005,

Booker admitted conceding that “I have had my struggles.”

                To survive summary judgment, Booker was required to present some evidence

that she did not perform poorly. See Ajao v. Bed Bath & Beyond Inc., 265 F. App’x 258, 263

(5th Cir. 2008); Machinchick v. PB Power, Inc., 398 F.3d 345, 354-55 (5th Cir. 2005). Booker

instead admits that she was not performing up to AFD’s standards. Mere subjective beliefs that

she had been a victim of discrimination are not sufficient to defeat summary judgment. See Willrich,

28 S.W.3d at 25; Mire v. Texas Plumbing Supply Co., 286 F. App’x 138, 143-44 (5th Cir. 2008);

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996). Nor is it enough to offer

speculation as to whether AFD’s motives in terminating her were solely her poor performance. See

Walton v. Bisco Indus., 119 F.3d 368, 370 (5th Cir. 1997).

                Booker has not presented evidence sufficient to support a reasonable inference

that she was “similarly situated” to other PFFs not of her protected classes in any respect relevant

to her job-discrimination claims. See Auto Zone, 272 S.W.3d at 593-94 (quoting Ysleta Indep.

Sch. Dist., 177 S.W.3d at 917-18). Nor did she raise a fact issue as to pretext or discriminatory

motive in terminating her, to the extent that we would reach that issue. See Willrich, 28 S.W.3d

at 24-25. Thus, the district court properly granted summary judgment on Booker’s claims for race-




                                                   26
or gender-based job discrimination. Accordingly, we overrule Booker’s first issue as it relates to

her termination, as well as her second and third issues.


                                         CONCLUSION

               Having overruled each of Booker’s issues, we affirm the district court’s judgment.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: March 13, 2013




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