Reversed and Rendered and Opinion filed August 7, 2018.




                                            In The

                         Fourteenth Court of Appeals

                                   NO. 14-17-00563-CV

           ALIEF INDEPENDENT SCHOOL DISTRICT (AISD), Appellant
                                               V.
                           RAYMOND BRANTLEY, Appellee

                        On Appeal from the 334th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2015-32769


                                      OPINION

       This is an employment discrimination case. Alief Independent School District
(AISD) brings this interlocutory appeal challenging the trial court’s denial of AISD’s
plea to the jurisdiction1 as to Raymond Brantley’s hostile work environment and
discrimination claims under the Texas Commission on Human Rights Act (the Act).2

       1
         See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing interlocutory appeal from trial
court’s grant or denial of a plea to the jurisdiction by a governmental unit).
       2
           Tex. Lab. Code §§ 21.001–.556. Under the Act, “[a]n employer commits an unlawful
Concluding that AISD is entitled to governmental immunity because Brantley did not
establish a prima facie case of hostile work environment and AISD established a
legitimate, nondiscriminatory reason for terminating Brantley’s employment that
Brantley did not refute, we reverse and render judgment that Brantley take nothing by
way of his claims against AISD under the Act.

                                           Background

       Brantley, an African American male, was hired as AISD’s Director of Risk
Management upon the recommendation of Dr. Rose Benitez. Benitez was Brantley’s
direct supervisor, and Charles Woods was Brantley’s “second-line supervisor up the
chain of command.” Approximately three years after Brantley was hired, Benitez
issued a memorandum addressing some concerns about Brantley’s conduct. Brantley
denied the allegations in a memorandum in response to Benitez.

       Approximately two years later, Woods issued a memorandum to Brantley
regarding a phone conversation between the two of them. Woods informed Brantley,
“[Y]ou are directed to keep your interactions to a calm and professional manner in the
future. The type of verbal outburst you exhibited to me will not be tolerated in the
future.”

       Later that year, Benitez sent a memorandum to AISD’s superintendent asking
AISD not to renew Brantley’s employment contract for the 2014-2015 school year for
“[f]ailure to follow district policy and procedures,” insubordination, and unprofessional
conduct. The superintendent approved the recommendation, and Brantley’s



employment practice if because of race, color, disability, religion, sex, national origin, or age 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.” Id. § 21.051.
The Texas Supreme Court also has recognized a claim for hostile work environment under the Act.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).

                                                 2
employment was terminated as of the end of the 2013-2014 school year.

      Brantley filed a discrimination charge with the Texas Workforce Commission
(TWC) on August 22, 2014, contending that he was subjected to a hostile work
environment and race and gender discrimination, beginning in August 2011 and
culminating in the nonrenewal of his employment contract in April 2014. Brantley
made the following allegations:

           Benitez used a racial slur to refer to him in August 2011 and “continuously
            degraded [Brantley] in public and private.”

           Benitez removed Brantley from the position of Director of the Wellness
            Program and gave the position to a white female in January 2012.

           Benitez and three other females falsely accused Brantley of yelling at
            Benitez and being disrespectful in the Human Resources Department
            meeting in November 2013. A coworker told Brantley after the death of
            Treyvon Martin, “Make sure you don’t wear a hoodie, those White
            Mexicans will stand their ground and shoot you dead.”3

           Brantley was placed on administrative leave in April 2014, and his
            employment was terminated two days later. He was replaced with a
            Hispanic female, leaving no African American directors or any males in
            the Human Resources Department. Thereafter, Benitez “made false and
            derogatory statements about [Brantley] to others.”
      After receiving a “right to sue” letter from the TWC, Brantley filed the
underlying suit. He brought causes of action for violations of the Texas Constitution
and under the Act. AISD filed a combined plea to the jurisdiction and traditional and
no-evidence motion for summary judgment on the basis that the trial court lacked
jurisdiction over Brantley’s claims because Brantley (1) failed to exhaust his
administrative remedies in a timely manner with regard to his hostile work environment


      3
         Treyvon Martin was a 17-year-old African American who was fatally shot by a
neighborhood watch volunteer.

                                           3
claims; (2) cannot establish the elements of his hostile work environment claims or
show his race or gender was a motivating factor in the nonrenewal of his employment
contract; (3) failed to exhaust his administrative remedies as to his constitutional claims
and cannot establish essential elements of these claims; and (4) can present no evidence
to support essential elements of each of his claims. The trial court granted relief in favor
of AISD as to Brantley’s constitutional claims but denied it as to his claims under the
Act.

                                           Discussion

       AISD challenges the trial court’s denial of the plea regarding Brantley’s hostile
work environment and discrimination claims.4 As a governmental unit, AISD is
immune from suit absent an express waiver of governmental immunity. See Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018) (“Governmental
units, including school districts, are immune from suit unless the state consents.”); see
also Tooker v. Alief ISD, 522 S.W.3d 545, 551 (Tex. App.—Houston [14th Dist.] 2017,
no pet.). The Act provides a limited waiver of that immunity when a governmental unit
has discriminated in any manner against any employee on the basis of race, gender, or
other protected classification, or has retaliated against the employee for opposing or
complaining of such discrimination. Harris Cty. Hosp. Dist. v. Parker, 484 S.W.3d
182, 191 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Tex. Lab. Code §§
21.051 and 21.055 and Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
660 (Tex. 2008) (holding that “the [Act] clearly and unambiguously waives
immunity”)).

       The Act’s immunity waiver applies only if the plaintiff alleges a violation within


       4
         In Brantley’s live petition, he asserted only a general claim for violation of the Act. On
appeal, he acknowledges claims for hostile work environment and race and gender discrimination.
We limit our discussion accordingly.

                                                4
the scope of the statute. Clark, 544 S.W.3d at 770; Parker, 484 S.W.3d at 191. If the
plaintiff does not sufficiently plead facts that state a claim under the Act, the
governmental unit may challenge the pleadings with a plea to the jurisdiction. Parker,
484 S.W.3d at 191. The governmental unit may also use a plea to the jurisdiction to
challenge the existence of jurisdictional facts. Id.

      Immunity from suit may be asserted through a plea to the jurisdiction or other
procedural vehicle, such as a motion for summary judgment. Clark, 544 S.W.3d at 770.
When a jurisdictional plea challenges the plaintiff’s pleadings, we determine whether
the pleadings, construed in the plaintiff’s favor, allege facts sufficient to affirmatively
demonstrate the trial court’s jurisdiction to hear the case. Clark, 544 S.W.3d at 770;
Parker, 484 S.W.3d at 191 (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004)). Whether a pleader has alleged facts that affirmatively
demonstrate a trial court’s subject matter jurisdiction is a question of law we review de
novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

      If the plaintiff pleaded facts making out a prima facie case and the governmental
unit instead challenges the existence of jurisdictional facts, we consider the relevant
evidence submitted. Parker, 484 S.W.3d at 191. Generally, the standard mirrors that of
a summary judgment under Texas Rule of Civil Procedure 166a(c). Sampson, 500
S.W.3d at 384. If the plaintiff’s factual allegations are challenged with supporting
evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal,
the plaintiff must raise at least a genuine issue of material fact to overcome the
challenge to the trial court’s subject matter jurisdiction. Id. When the evidence
submitted to support the plea implicates the merits of the case, we take as true all
evidence favorable to the plaintiff, indulging every reasonable inference and resolving




                                             5
any doubts in the plaintiff’s favor.5 Id.

       Because the legislature intended for state law to correlate with federal law in
employment discrimination cases, we may look to analogous federal cases when
applying the Act. Parker, 484 S.W.3d at 191 (citing Tex. Lab. Code § 21.001 and Wal–
Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)). The legislature has
mandated that all statutory prerequisites to suit are jurisdictional requirements in suits
against governmental entities. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500,
510 (Tex. 2012) (citing Tex. Gov’t Code § 311.034); Metro. Transit Auth. of Harris
Cty. v. Douglas, 544 S.W.3d 486, 492 (Tex. App.—Houston [14th Dist.] 2018, pet.
filed). The Act requires a person claiming to be aggrieved by an unlawful employment
practice to file a charge with the TWC within 180 days of the alleged unlawful
employment practice. Tex. Lab. Code § 21.201(a), (g). Accordingly, filing a timely
charge with the TWC is a jurisdictional prerequisite to filing suit for unlawful
employment practices against a governmental entity. Chatha, 381 S.W.3d at 511–12,
514; see also Douglas, 544 S.W.3d at 492.6




       5
          We have expressly held that a trial court’s subject matter jurisdiction cannot be challenged
in a no-evidence motion for summary judgment, because “[p]ermitting [such a] challenge [would]
improperly shift[] the jurisdictional evidentiary burdens—effectively requiring the [plaintiff] to fully
marshal [his] evidence simply to establish jurisdiction and eliminating any burden on [the movant] to
disprove jurisdiction through summary judgment evidence.” Lorence v. Morequity, Inc., No. 14-15-
00177-CV, 2016 WL 3213314, at *2 (Tex. App.—Houston [14th Dist.] June 9, 2016, no pet.) (mem.
op.); Thornton v. Ne. Harris County MUD 1, 447 S.W.3d 23, 40 (Tex. App.—Houston [14th Dist.]
2014, pet. denied). When the movant does not present evidence disproving jurisdiction, a
jurisdictional plea may not be granted unless the pleadings affirmatively negate jurisdiction. Lorence,
2016 WL 3213314, at *2.
       6
          Alternatively, the charge may be filed with the EEOC. Chatha, 381 S.W.3d at 504 n.4. Other
requirements under the Act to exhaust administrative remedies are to (1) allow the TWC 180 days to
dismiss or resolve the complaint, and (2) file suit in district court within 60 days of receiving a right-
to-sue letter from the TWC and no later than two years after the complaint. Tex. Lab. Code §§ 21.208,
.254, .256; see also Douglas, 544 S.W.3d at 492 n.6.

                                                    6
       I.     Did Brantley Exhaust His Administrative Remedies as to Certain
              Claims before Filing Suit?
       AISD argues that Brantley waived his hostile work environment claims by
failing to exhaust his administrative remedies as to those claims. Before a plaintiff can
maintain a suit for employment discrimination under the Act, the plaintiff first must
file a charge of employment discrimination with the TWC or EEOC. Parker, 484
S.W.3d at 192 (citing Tex. Lab. Code § 21.201, and Chatha, 381 S.W.3d at 503).

              A. Are Brantley’s Claims Time-Barred?

       AISD initially challenges whether Brantley timely filed his discrimination
charge.7 The charge “must be filed not later than the 180th day after the date the alleged
unlawful employment practice occurred.” Tex. Lab. Code § 21.202(a). Section
21.202’s administrative filing requirement is “a mandatory statutory requirement that
must be complied with before filing suit,” and claims against governmental entities that
are not timely filed are jurisdictionally barred. Parker, 484 S.W.3d at 193 (quoting
Chatha, 381 S.W.3d at 514). Each discrete incident of discrimination constitutes a
separate actionable unlawful employment practice. Id. Discrete discriminatory acts are
not actionable if time-barred, and each discrete discriminatory act starts a new clock
for filing charges alleging that act. Id. Discrete acts that fall within the statutory time
period do not make acts that fall outside the time period timely. Id. However, because
a hostile work environment generally consists of multiple discriminatory acts over a
period of time, the charge alleging a hostile work environment must be filed only within
the statutory window of at least one of the acts that contributed to the hostile work
environment. Id. at 195. If the charge is timely filed as to at least one of the acts that
contributed to the hostile work environment, then the court may consider all of the acts


       7
         AISD challenges the timeliness of the charge as to Brantley’s hostile work environment
claims only, not as to his race and gender discrimination claims.

                                              7
that are alleged to have contributed to the hostile environment, even though some of
them may have taken place outside of the statutory window. Id.

       AISD contends Brantley’s hostile work environment claim is time-barred
because all of the alleged acts of discrimination detailed in the charge supporting a
hostile work environment claim occurred more than 180 days before Brantley filed his
claim. Brantley filed his charge on August 22, 2014. Brantley alleged in his charge that
discrimination took place between August 2011 and April 2014, and he listed several
specific acts within the 180-day statutory window: (1) his placement on administrative
leave and termination of his employment in April 2014, (2) his thereafter being
replaced with a Hispanic female, leaving no African American directors or any males
in the Human Resources Department, and (3) Benitez afterwards making “false and
derogatory statements about [Brantley] to others.”

       Brantley did not specifically state in his charge that these actions contributed to
a hostile work environment. Liberally construing his charge, however, his hostile work
environment claims can be read to encompass these actions.8 See id. Because Brantley
alleged in his charge acts of discrimination that purportedly contributed to a hostile
work environment within the 180-day window, his discrimination charge was timely
as to the hostile work environment claims. See id.

               B. Did Brantley Exhaust TWC Administrative Remedies As To
                  Certain Claims?
       AISD also alleges Brantley failed to exhaust administrative remedies as to some
of his hostile work environment claims because his lawsuit references certain acts that

       8
          AISD argues that the allegations of discrimination forming the basis of Brantley’s hostile
work environment claims are untimely discrete acts that fall outside the 180-day window and are
time-barred. In Parker, we recognized that “each discrete discriminatory act starts a new clock for
filing charges alleging that act.” 484 S.W.3d at 193. But a charge alleging a hostile work environment
must be filed only within the statutory window of one of the acts that purportedly contributed to the
hostile work environment. Id. at 195.

                                                  8
were not listed in his discrimination charge. A lawsuit under the Act is limited to claims
made in the charge or complaint filed with TWC and factually related claims that can
reasonably be expected to grow out of the TWC’s investigation. Santi v. Univ. of Tex.
Health Sci. Ctr. at Houston, 312 S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.]
2009, no pet.). In reviewing a claimant’s discrimination charge, we should construe it
with “utmost liberality,” although the charge must contain an adequate factual basis so
that it puts the employer on notice of the existence and nature of the charges. City of
Sugar Land v. Kaplan, 449 S.W.3d 577, 582 (Tex. App.—Houston [14th Dist.] 2014,
no pet.); Santi, 312 S.W.3d at 805. “The crucial element of a charge of discrimination
is the factual statement contained” in the administrative complaint. Santi, 312 S.W.3d
at 805 (quoting Preston v. Tex. Dep’t of Family & Prot. Servs., 222 Fed. App’x 353,
356 (5th Cir. 2007) (“[A] charge is sufficient when . . . sufficiently precise to identify
the parties, and to describe generally the action or practices complained of.”).

      In his first amended petition, Brantley alleged for the first time that Woods
contributed to a hostile work environment in several ways. Even though specific acts
by Woods are not mentioned in Brantley’s discrimination charge, the charge includes
an adequate factual basis to put AISD on notice that Brantley was complaining of
discrimination based upon his race and gender resulting in a hostile work environment.
In his charge, Brantley checked the boxes for “cause of discrimination based on” race,
gender, and “other,” noting “hostile environment.” Brantley complained that his
employment was terminated after he, the only African American human resources
director, was subjected at work to being called a racial slur and to other comments
about his race, being “degraded . . . in public and private,” losing a position to a white
female, and then losing his job to a Hispanic female.

      We conclude the trial court does not lack jurisdiction over the claim merely
because Brantley did not describe every instance that purportedly contributed to a

                                            9
hostile work environment—Brantley included allegations of discrimination in his
charge that generally described the actions or practices about which Brantley
complains. See id. at 806 (holding a discrimination charge that described “generally
the action or practices complained of” provided an adequate factual basis to put the
defendant on notice that the plaintiff was complaining of discrimination based on
gender). We overrule AISD’s first issue.

      II.    Did Brantley Demonstrate a Prima Facie Case of Hostile Work
             Environment?
      AISD contends that Brantley did not establish the prima facie elements of his
hostile work environment claims based on his race and gender. To establish a hostile
work environment claim, Brantley must show (1) he belongs to a protected group; (2)
he was subject to unwelcome harassment; (3) the harassment complained of was based
on race or gender; (4) the harassment complained of affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known of the
harassment and failed to take prompt remedial action. Clark, 544 S.W.3d at 771;
Parker, 484 S.W.3d at 197. When the alleged harassment is committed by the
plaintiff’s supervisor, the plaintiff need only satisfy the first four elements. Parker, 484
S.W.3d at 197.

      A workplace environment is hostile when it is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of
the victim’s employment. Id. Whether an environment is objectively hostile or abusive
is determined by considering the totality of the circumstances. Id. (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Although no single factor is required, courts
look to (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it
is physically threatening or humiliating as opposed to a mere offensive utterance; (4)
whether it unreasonably interferes with an employee’s work performance; and (5)


                                            10
whether the complained of conduct undermines the plaintiff’s workplace competence.
Id. Mere utterance of an epithet that engenders offensive feelings in an employee does
not sufficiently affect the conditions of employment to create a hostile work
environment. Id. Conduct must be extreme enough to amount to a change in the terms
and conditions of employment. Id. (citing Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)).

        AISD contends that Brantley failed to establish a prima facie case of hostile work
environment discrimination because the evidence shows Brantley was not subjected to
unwelcome harassment based on race or gender that affected a term, condition, or
privilege of his employment. See id. at 198. AISD asserts specifically that the alleged
conduct was infrequent, not severe, and not threatening, so it did not affect a term,
condition, or privilege of Brantley’s employment.

        Brantley contends that there is direct evidence “that he was systematically
harassed because of his race and gender” by being (1) falsely accused of disrespectful
behavior and mistakes, (2) called a racial epithet, (3) told that the female employees
were afraid of him because he was “tall, Black and bald,” (4) told by a coworker that
he might be shot if he wore a hoodie, (5) paid less than white, female employees, and
(6) “stripped of his duties.”9 Brantley did not cite the record to this evidence in his
argument.10 But even if he had, Brantley has not shown how these actions—even those
comments directed toward his race and gender—were objectively severe or pervasive



        9
          Brantley does not elaborate on what he means by being stripped of his duties. Presumably,
he refers to duties that he referenced in his statement of facts in his appellate brief related to a wellness
program that he created and related to open enrollment. He presented evidence that these duties were
taken away and given to white female coworkers.
        10
          Brantley cited the record in his statement of facts but not in support of his argument. See
Tex. R. App. P. 38.1 (requiring brief to contain clear and concise argument with appropriate citations
to authorities and the record).

                                                     11
enough to affect a term, condition, or privilege of employment. See id.11 Moreover, as
to Brantley’s allegations that he was falsely accused of disrespectful behavior and
mistakes and stripped of his duties, Brantley has not pointed to any evidence that these
actions were racially motivated, based on his gender, or part of a pattern of race or
gender-based harassment. See Barnes v. Prairie View A & M Univ., No. 14-15-01094-
CV, 2017 WL 2602723, at *3 (Tex. App.—Houston [14th Dist.] June 15, 2017, pet.
denied) (mem. op.). We have found no precedent to support such an inference. See id.

       Because the record includes evidence negating an essential element of a hostile
work environment—that Brantley was subjected to race or gender based harassment
that affected a term, condition, or privilege of his employment—and Brantley did not
raise a genuine issue of material fact regarding that element, the trial court erred in
denying AISD’s plea to the jurisdiction on this claim. See Barnes, 2017 WL 2602723,

       11
            In Parker, we held the plaintiff failed to establish a prima facie case of race-based hostile
work environment despite the defendant’s derogatory comments regarding the plaintiff’s race,
blaming the plaintiff for problems unrelated to performance, screaming and yelling at him, writing
him up for poor performance, lowering his performance evaluation, and scrutinizing, micromanaging,
and criticizing him. 484 S.W.3d at 198 (citing Kang v. Bd. of Supervisors of La. State Univ., 75 Fed.
App’x 974, 975–77 (5th Cir. 2003) (holding allegations including poor performance evaluation; being
“written up” for “unacceptable conditions” in one of plaintiff’s research areas; receiving a less-than-
average pay raise resulting in plaintiff being the lowest paid professor in department; and being
criticized at a faculty meeting in front of plaintiff’s peers were not sufficiently severe or pervasive to
alter the conditions of employment and create a hostile work environment), and Cole v. Pearland
Indep. Sch. Dist., No. 4:11–CV–00211, 2013 WL 4494423, at *8 (S.D. Tex. Mar. 21, 2013) (holding
plaintiff’s allegations that she was repeatedly harassed and abused; falsely reprimanded and given
bad and unfair evaluations; verbally intimidated, threatened, and spoken to in a derogatory manner
by one supervisor; belittled; and had her work scrutinized “carefully” did not establish that the
harassment affected a term, condition, or privilege of employment)); see also In re Parkland Health
& Hosp. Sys. Litig., No. 05-17-00670-CV, 2018 WL 2473852, at *9 (Tex. App.—Dallas June 4, 2018,
no pet. h.) (mem. op) (holding plaintiff’s allegations supporting his hostile work environment claim
were not so severe or pervasive that they affected a term, condition or privilege of employment when
claim was based on allegations of anonymous threats and phone calls, two racial slurs directed at the
plaintiff, a confrontation with the plaintiff without evidence it was based on his race or in response to
a protected activity, and a single episode of discipline); Barnes v. Prairie View A & M Univ., No. 14-
15-01094-CV, 2017 WL 2602723, at *3 (Tex. App.—Houston [14th Dist.] June 15, 2017, pet. denied)
(mem. op.) (holding comments purportedly based on race were not “objectively severe or pervasive
enough to affect a term, condition, or privilege of employment”).

                                                   12
at *3. We sustain AISD’s second issue.

       III.      Has Brantley Raised a Pay Discrimination Claim?

       AISD argues that Brantley asserted for the first time in his response to AISD’s
plea to the jurisdiction that he was the victim of discrimination based on pay. AISD
contends that Brantley could not raise this claim for the first time in his response
because he did not raise it in his discrimination charge or his live petition. Brantley
agrees, as he has not raised a separate claim of disparate pay. Accordingly, we overrule
AISD’s third issue.

       IV.       Did AISD Establish a Legitimate, Nondiscriminatory Reason for
                 Terminating Brantley’s Employment, and Did Brantley Present
                 Evidence of Pretext?
       As to Brantley’s race and gender discrimination claims, AISD argues that it has
rebutted the presumption of discrimination in this case by producing evidence of a
legitimate nondiscriminatory reason for terminating Brantley’s employment and
Brantley did not meet his burden to present evidence that the reasons were pretextual.
Discrimination cases under the Act can be established with either direct or
circumstantial evidence. Clark, 544 S.W.3d at 782; Hartranft v. UT Health Sci. Ctr.-
Houston, No. 01-16-01014-CV, 2018 WL 3117830, at *11 (Tex. App.—Houston [1st
Dist.] June 26, 2018, no pet. h.) (mem. op.). The three-part burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), enables an
employee to establish discrimination with circumstantial evidence.12 Clark, 544
S.W.3d at 782; Hartranft, 2018 WL 3117830, at *11. If the employee can establish a
prima facie case of discrimination, a rebuttable presumption of discrimination arises,
which can alone sustain a discrimination claim.13 Clark, 544 S.W.3d at 782; Hartranft,

       12
            Brantley concedes that he does not have direct evidence of discrimination.
       13
          Brantley argues AISD waived any argument that Brantley failed to establish a prima facie
case of discrimination. But AISD does not raise such a challenge on appeal and in fact presumes for
                                                   13
2018 WL 3117830, at *11. But the employer can defeat this presumption merely by
producing evidence of a legitimate, nondiscriminatory reason for the disputed
employment action. Clark, 544 S.W.3d at 782; Hartranft, 2018 WL 3117830, at *11.
Once rebutted, the presumption disappears, and an employee lacking direct evidence
cannot prove a statutory violation without evidence that the employer’s stated reason
is false and a pretext for discrimination. Clark, 544 S.W.3d at 782; Hartranft, 2018 WL
3117830, at *11. In both direct and circumstantial evidence cases, the burden of
persuasion remains at all times with the employee. Clark, 544 S.W.3d at 782;
Hartranft, 2018 WL 3117830, at *11.

       To prevail on a claim of discrimination in the absence of direct evidence, the
plaintiff must establish that he (1) is a member of a protected class, (2) was qualified
for his position, (3) was subject to an adverse employment decision, and (4) was treated
less favorably than similarly situated persons not in the protected class. Tooker, 522
S.W.3d at 551. Presuming without deciding that Brantley has established a prima facie
case of discrimination with regard to his termination, AISD contends that it produced
evidence of legitimate, nondiscriminatory reasons for Brantley’s termination, rebutting
any presumption of discrimination. AISD further argues that Brantley did not present
evidence that AISD’s stated reason for his termination was pretextual; therefore,
Brantley has not stated a claim that waives AISD’s governmental immunity from suit.

       AISD points to the following evidence presented below and referenced in its plea
that it terminated Brantley’s employment based on legitimate, nondiscriminatory
reasons: (1) Brantley failed to follow AISD’s policies and procedures and engaged in
insubordination and unprofessional conduct over the course of several years; and (2)
Brantley failed to correct his negative behavior after being given directives and



purposes of its argument that Brantley established a prima facie case of discrimination.

                                                 14
opportunities to do so. We have held that failing to follow an employer’s policies and
procedures, failing to respond positively to disciplinary intervention, and behaving
insubordinately are all legitimate, nondiscriminatory reasons for terminating
employment. See Navy v. Coll. of the Mainland, 407 S.W.3d 893, 902–03 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); see also Parker, 484 S.W.3d at 199-200 (holding
that an employee’s violation of corporate policies was a legitimate, nonretaliatory
reason for employee’s termination). Because AISD presented legitimate, nonretaliatory
reasons for terminating Brantley’s employment, the burden shifted back to Brantley to
show either (1) the stated reasons were a pretext for discrimination, or (2) even though
the reasons were true, discrimination was another “motivating” factor. See Clark, 544
S.W.3d at 783; Parker, 484 S.W.3d at 200. When, as here, the jurisdictional evidence
rebuts the prima facie case, sufficient evidence of pretext must exist to survive the
jurisdictional plea. See Clark, 544 S.W.3d at 783.

      AISD contends that Brantley failed to point to evidence showing pretext in his
response to the plea. Brantley argues on appeal that he presented the following evidence
showing pretext: (1) the directives and memoranda issued to Brantley by Woods and
Benitez were unfounded and were temporally remote from Brantley’s termination; (2)
no employee ever filed a formal grievance against Brantley; (3) Brantley was never
given a reason for his termination; (4) Benitez falsely represented that Brantley
improperly obtained a donation from a vendor; and (5) Benitez falsely represented that
Brantley improperly recommended putting a teacher on medical restriction or leave.
But in his response to AISD’s plea, Brantley did not point to evidence showing pretext
as to his gender and race discrimination claims. His entire argument as to these claims
in his response follows:

      Plaintiff claims that he is a target of illegal Gender and or Race
      discrimination claim. There is no evidence that Benitez hired or prompted
      to be hired, any Black Male in AISD’s HR unit under her charge. Instead,

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      Benitez placed a lesser qualified Hispanic female to take Brantley’s
      position, and she herself indulged in the grossest and rudest of behavior
      according to Brantley’s testimony. Much of her obnoxious behavior was
      in the presence of her ex-sister-in-law and friend. . . . Brantley was called
      by Benitez a stupid [n-word], bilingually, an[d] Army nut, told to shut up,
      and the recipient of various other obnoxious statements. That the
      statements were not isolated, but streaming from Benitez, certainly makes
      her motive a matter of evidence and subject to proof.

      Brantley not only failed to refer the trial court to any evidence in support of this
argument, but also, he has not shown how such evidence establishes pretext or that
gender or race was a motivating factor in his termination. To carry his burden, Brantley
was required to rebut each nondiscriminatory reason articulated by AISD. See Navy,
407 S.W.3d at 900-01. Brantley did not point to evidence below that rebuts the
evidence presented by AISD that Brantley failed to follow AISD’s policies and
procedures and engaged in insubordination and unprofessional conduct over the course
of several years and that Brantley failed to correct his negative behavior after being
given directives and opportunities to do so. See id. Nor did he point to evidence that
discrimination was another motivating factor in his termination, despite his allegations
about Benitez. See Parker, 484 S.W.3d at 200. Moreover, he waived any argument that
the evidence referenced in his appellate brief establishes pretext by failing to raise it in
response to AISD’s plea. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 341 (Tex. 1993) (“[I]ssues a non-movant contends avoid the movant’s entitlement
to summary judgment must be expressly presented by written answer to the motion or
by other written response to the motion.”).

      We conclude that AISD presented evidence rebutting the presumption of
discrimination in this case by producing evidence of legitimate nondiscriminatory
reasons for terminating Brantley’s employment and Brantley failed to present evidence
of pretext. The trial court therefore erred in denying AISD’s plea to the jurisdiction as
to those claims. See Parker, 484 S.W.3d at 200-01. We sustain AISD’s fourth issue.
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                                     Conclusion

      We conclude that Brantley exhausted his administrative remedies as to his
hostile work environment claims but failed to establish a prima facie case that he was
subjected to a hostile work environment. We also conclude that AISD rebutted the
presumption of race and gender discrimination in this case by producing evidence of
legitimate nondiscriminatory reasons for terminating Brantley’s employment and
Brantley did not meet his burden to present evidence that the reason for his termination
was pretextual. Accordingly, the trial court erred in denying AISD’s plea to the
jurisdiction as to Brantley’s hostile work environment and race and gender
discrimination claims. We reverse the trial court’s ruling and render judgment that
Brantley take nothing by way of these claims.




                                       /s/        Martha Hill Jamison
                                                  Justice



Panel consists of Justices Boyce, Jamison, and Brown.




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