Affirmed and Majority and Concurring Opinions filed August 1, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00528-CV

                           ERNEST NAVY, Appellant
                                        V.
                  COLLEGE OF THE MAINLAND, Appellee

                    On Appeal from the 10th District Court
                          Galveston County, Texas
                     Trial Court Cause No. 09-CV-0176

                  CONCURRING                    OPINION


      I concur with the majority’s opinion but write separately to address a final
claim made by Navy that the majority did not address. In footnote 2, the majority
concludes that Navy raised claims of just two types of discrimination: disparate
treatment and retaliation. I believe that in Navy’s pleadings below and his brief in
this court, he has addressed the additional claim that Mainland committed
discrimination in his discharge. To present a prima facie case of discrimination as
to his discharge, however, Navy would have to show that he was (1) a member of a
protected class, (2) qualified for the position, (3) subjected to an adverse
employment action, and (4) replaced by someone outside his protected class. See
Gonzales v. Champion Techs., Inc., 384 S.W.3d 462, 466 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). He has not met that burden here.
      In its motion for summary judgment, Mainland asserted that Navy had no
evidence that he was replaced by someone outside his protected class. Mainland
repeated this argument in its brief. In his summary-judgment response, Navy
failed to present any evidence that he was replaced by someone outside his
protected class. Because Navy failed to raise a fact issue as to an element of that
claim, I would hold that Mainland is entitled to summary judgment as to that claim
as well. See id. at 471–72. Because the majority did not address this final claim, I
respectfully concur in the judgment.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Brown, Christopher, and McCally (Brown, J., majority).




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