                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               __________________

                               NO. 09-17-00491-CV
                               __________________

                       LA JUANA WILLIAMS, Appellant

                                          V.

             OFFICE OF THE ATTORNEY GENERAL, Appellee


                    On Appeal from the 136th District Court
                          Jefferson County, Texas
                         Trial Cause No. D-195,693


                           MEMORANDUM OPINION

      In this Texas Commission on Human Rights Act (TCHRA) claim, Appellant

La Juana Williams, appeals the trial court’s order granting a plea to the jurisdiction

filed by her employer, the Office of the Attorney General (OAG) (Defendant or

Appellee). See generally Tex. Lab. Code Ann. §§ 21.051-.556 (West 2015 & Supp.

2018). In Appellant’s Brief, Williams presents two stated issues: (1) whether the trial

court erred in concluding that pretext is a prima facie element of her TCHRA claim,

and (2) whether the trial court erred in concluding that Williams failed to establish a
                                          1
prima facie claim of retaliation. In her Reply Brief, Williams subdivides her issues

into three parts as follows:

      1. Whether the trial court erred by concluding that Williams did not
      meet a prima facie case of retaliation for the termination of her
      employment.

      2. Whether the OAG met its burden of production for its legitimate[]
      reasons for terminating her employment.

      3. Whether Williams presented evidence of pretext.

We consider the subparts as phrased in both her original appellate brief and in her

reply to be part of the same issue—whether the trial court erred in granting the plea

to the jurisdiction. We affirm.

                                    Background

      Williams alleged in her Original Petition that she is an African American

female who began working for the OAG Child Support Division in 1990. In her

deposition, she testified that she started her work with the child support division at

the Nederland office, transferred to an office in Austin, then transferred to the

Beaumont Office where she worked until 2005. In 2005, she transferred to the

Houston office, and she worked in the Houston office until January 2008, when she

requested a transfer back to the Nederland or Beaumont office. Shortly before she

asked for the transfer back to the Nederland or Beaumont office, her husband had


                                          2
died, and another family member was ill. The OAG transferred her back to the

Nederland office in 2008.

      Williams alleged in her Petition that she began reporting to Winton “Jay”

Webster, a Caucasian male, in March 2008. Williams alleged that she personally

observed Webster “mistreat minority employees and treat Caucasian employees

more favorably regarding the terms of their employment.” Williams claimed that

Webster would at times refuse to speak to her and would “cut her off, yell at [her],

roll his eyes at [her], or hum out loud to drown [her] out when [she] would speak in

meetings.” Williams’s Petition also alleges that Webster ignored for months without

reason her request to relocate her office space to a more private location. According

to Williams’s Petition, when Williams asked Webster if he was making employment

decisions based on her race, he would not deny the accusation but respond that he

was the manager and if she did not like the decisions he made she could find another

job. The Petition alleges that Williams made a report to Regional Administrator

Charles “Chip” Arnold “around Thanksgiving 2011” that Webster had issues with

her based on race and had taken away her job duties, taken away her job title as a

Review Officer, and had made her a Customer Inquiry Representative (“CIR”).

According to the Petition, Webster retaliated against Williams after she made the



                                         3
report to Arnold, and Webster assigned her to the duties and title of Child Support

Officer IV-Established Caseload without providing her training for the position.

      Williams alleged that her employment was terminated on August 1, 2012, and

that her employer subjected her to “unfavorable, disparate treatment, a hostile

environment and harassment based on her race (African American) and her gender

(female).” Williams also alleged that her employer “discriminate[d] and retaliated

against Plaintiff in violation of the [TCHRA], . . . based on her race (African

American) and her gender (female) and for engaging in protected activity.” Williams

sought an unspecified amount in damages, interest, and attorney’s fees.

      The OAG filed an Answer, Affirmative Defenses, and Requests for

Disclosure. The OAG generally denied the allegations and asserted several

affirmative defenses, including governmental immunity, 1 and the OAG alleged that

the decisions challenged by Plaintiff were made for legitimate, non-discriminatory

and non-retaliatory reasons.

      After engaging in written discovery and obtaining Williams’s deposition, the

OAG filed Defendant’s Plea to the Jurisdiction and Traditional Motion for Summary

Judgment (the “Plea”). The OAG alleged in its Plea that Williams failed to meet the



      1
        We do not address the OAG’s other affirmative defenses herein as they are
not pertinent to the issues on appeal.
                                       4
prima facie requirements of her TCHRA retaliation claim, and that Williams failed

to establish a causal connection. The OAG alleged that it terminated Williams

because she (1) failed to report alleged child abuse to Child Protective Services; (2)

invoked the authority of the OAG when instructing a parent to return his child to a

potentially dangerous situation; and (3) scheduled an in-person, in-the-office

conference on a child support case that had been flagged for family violence contrary

to established policy.

      Williams filed a response arguing that the OAG’s stated reasons for her

dismissal were “false, fabricated, and pretextual.” The trial court held a hearing and

heard arguments from the parties. 2 According to the Appellee’s brief, quoting the

trial court’s letter ruling, “[a]t the beginning of the hearing [on the OAG’s dispositive

motions], [Williams] voluntarily abandoned her other discrimination claims and

elected to proceed only on her retaliation claim under the TCHRA.” Williams’s

briefing on appeal complains solely about her retaliation claim.

      In an October 24, 2017 letter ruling, the trial court explained it was going to

enter an order granting the plea to the jurisdiction because the plaintiff had failed to

establish “a causal link between the protected activity and the adverse employment




      2
          The appellate record does not include a Reporter’s Record of the hearing.
                                           5
action.”3 The trial court entered an order granting the Plea and Motion for Summary

Judgment and it dismissed the case. Williams timely filed a notice of appeal.

                          OAG’s Plea to the Jurisdiction

      The OAG alleged in its Plea that Williams’s termination stemmed from three

instances:

             [i]n July 2012, the OAG determined that Williams had (1) failed
      to report alleged child abuse to Child Protective Services; (2) invoked
      the authority of the OAG when instructing a parent to return their child
      to a potentially dangerous situation; and (3) scheduled an in-person, in-
      the-office conference on a child support case that had been flagged for
      family violence. Because this conduct violated OAG policy and put
      people at risk, the OAG terminated her employment.

In support of its Plea, the OAG produced affidavits from William Boyd, Webster,

Arnold, and Myra Sines; emails; the termination letter; a request for termination

memo; a transcript of the oral deposition of Williams; documents from the OAG’s

office including the Family Violence Policy (signed by Williams); Williams’s

receipt of the OAG policy for Reporting Child Abuse; and excerpts from Williams’s

responses to Interrogatories. Certain documents were also attached to and described

in the affidavits, including a transcription of the recorded telephone call wherein




      3
       Letter rulings do not constitute formal findings. Cherokee Water Co. v.
Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990).
                                       6
Williams took a call from a custodial parent about alleged abuse, and a complaint

from a parent.

      In Williams’s deposition, a transcript of which was attached to the Plea, she

testified that, from the first day she started work in the Nederland office, Webster

was hostile to her. Williams described one instance when she went into Webster’s

office to ask about a medical leave issue, he referred her to Boyd (her direct

manager), and Webster walked out. On another occasion, she testified in her

deposition that Webster called Williams into a conference room and began writing

her up for failing to work on a case. According to Williams, when she showed him

documents that showed she had worked on the case, Webster “snatched the paper”

out of her hands and said, “Well, then I guess I need to talk to my attorney.”

      Williams also testified in her deposition that Webster was initially

unresponsive to her request for a quiet office. According to Williams, in a staff

meeting, Webster said there was “too much visiting going on in another coworker’s

office and he wanted it stopped[.]” Then he said, “So, no, . . . you can’t move.”

Williams testified she sent him an email voicing her unhappiness about the way he

handled the situation. Webster responded by saying, “No, your request [to move

offices] is not wrong; and I apologize if you feel slighted about me bringing it up in

a staff meeting.” He also indicated that the request to move offices was “denied at

                                          7
this time, but it may happen in the near future.” Later, Williams was allowed to move

to another office.

      Williams testified that on other occasions Webster would not acknowledge

her “good morning” greetings, cut her off while she was speaking and roll his eyes

or hum or whistle when she asked questions during monthly staff meetings, that he

was unresponsive to her request for more training once she was moved to a new

position, and that he would yell at her.

      Williams testified that she eventually confronted Webster and asked him why

he treated her the way he did and whether it had anything to do with her race.

According to Williams, Webster responded by saying, “I am the manager here, I

make all decisions in this office, whether you feel they are good or bad. If you don’t

like it, you can find you another job.”

      Williams claims that in 2011 she told Regional Administrator Chip Arnold

when he was visiting the Nederland office that she was about to file a racial

discrimination suit against Webster, that she was dissatisfied with her CIR work, and

that she could be better utilized in another section. Although Williams testified that

she felt the CIR responsibilities she had been given were “another personal attack”

by Webster, she also admitted that she volunteered to take the CIR responsibilities



                                           8
when a co-worker was out on medical leave. Williams testified that Arnold

apologized and that she was moved to work in establishment as she had requested.

       According to Williams, after her complaint to Arnold, Webster gave her more

“cold shoulder” treatment, exhibited hostile body language, and used a forceful tone

when speaking to her. Williams testified in her deposition that Webster never

physically touched her, never called her any names, and never physically threatened

her.

       In the affidavit of William Boyd attached to the OAG’s Plea, Boyd averred,

in relevant part:

       [] In July 2004, I began working for the Child Support Division of the
       [OAG]. I worked in the Nederland [] Office from September 2004 to
       December 2015. Within that time, from May 2005 to December 2015,
       I was the Office Supervisor. During 2011 and 2012, I also periodically
       assumed some responsibilities that were normally assigned to the
       Office Manager, Veronica Burns, after she got into a terrible car
       accident. During these time periods, I acted as both office supervisor
       and office manager. During my time as Office Supervisor, our
       Nederland [] Office staff meetings were held on a monthly basis.

       [] At some point during Lajuana Williams’s employment, another
       employee, Lori Williams had a medical situation. At the time of this
       medical situation, Lori Williams had been working as the customer
       service inquiry representative. When Lori Williams went out on
       medical leave, Lajuana Williams became our customer service inquiry
       representative.

       [] In late 2011, a long-time establishment worker was preparing to
       retire. The decision was made for Lajuana Williams to become an
       establishment worker. To give her an opportunity to learn the
                                         9
responsibilities for the new position, she was assigned to shadow an
existing establishment worker.

[] At some point after Lajuana Williams became an establishment
worker, she came to me and requested formal training. I told her that I
would reach out to the regional trainer for Region 5, which includes the
Nederland office. I contacted the regional trainer for Region 5 and
learned that Region 5 did not have any establishment trainings
scheduled, but that they would coordinate with the Houston region to
see if the Houston region had any establishment training available. I
also know that Mona Gabriel, the office manager at the time, printed
the establishment training manual, hole-punched it, and gave it to
Lajuana Williams to help her learn the job.

[] In July 2012, an incident arose related to Lajuana Williams’s failure
to report a child abuse call to Child Protective Services. The Regional
Customer Service Center (“RCSC”) practice at that time was for RCSC
staff to forward calls reporting child abuse from the RCSC to the local
field office. After the RCSC staffer forwarded the call to the field
office, the staffer would send an email notification to their manager.
The next day, the manager would check the case file in the Texas Child
Support Enforcement System (“TXCSES”) to ensure that the
appropriate documentation had been completed by the field office. If
the field office followed policy, there would be a note in the TXCSES
case file indicating that the alleged child abuse had been reported to
Child Protective Services. If that documentation was missing from the
case file, the call center would follow-up with the field office to ensure
that the report to DFPS had been completed and documented.

[] On July 19, 2012, pursuant to the practice described above, the
management email account for the Nederland [] Office received the
email from Heather Murphy, RCSC Supervisor for Region 5. Heather
Murphy’s email included an email from Amanda Head, describing a
report of child abuse the RCSC office for Region 5 had received. A true
and accurate copy of the email from Heather Murphy is attached to this
affidavit as Exhibit A.


                                   10
[] Pursuant to my responsibilities as Office Supervisor, I looked up the
case in TXCSES and determined that Lajuana Williams had received
the phone call from the RCSC. However, I did not see the required
report documenting the child abuse call and report to Child Protective
Services. On July 20, 2012, I emailed Lajuana Williams to ask her about
the call. A true and accurate copy of my email to Lajuana Williams is
attached to this affidavit as Exhibit B.

[] In my subsequent conversation with Lajuana Williams, she told me
that she had not received a call involving a report of child abuse and
that the call center had not told her that the call involved child abuse.
Because Williams had denied receiving a child abuse report, I followed
up with the RCSC and requested the audio recording of the phone call.

[] The RCSC’s audio recording only had the portion of the audio
recording before the call was transferred to Lajuana Williams, at which
point the RCSC was no longer involved in the call. However, it was
clear from the recording that the caller described conduct that
constitutes child abuse under the Office of the Attorney General’s
policies. Moreover, when the RCSC employee transferred the call to
Lajuana Williams, that RCSC employee specifically described the call
as “an alleged abuse call” and the caller as “claiming alleged abuse
against the youngest child.” From this audio recording, I concluded that
Lajuana Williams had failed to report child abuse in violation of agency
policy and that, when she denied having received a call about child
abuse, that denial was a lie. I have reviewed the audio transcription
attached to this affidavit as Exhibit C. The phone conversations it
transcribes are the same conversations that I listened to on the audio
recording that I received from the RCSC.

[] On Friday, June 29, 2012, the Nederland [] Office received a phone
call from a non-custodial parent (”NCP”). The NCP had an active child
support case with our office. He was angry about a phone call he had
received from the Nederland office earlier that day. According to the
NCP’s account, as it was relayed to me, the NCP had gone to pick up
his child and had become concerned about whether the child had been
in a safe environment. The NCP called the police and CPS, who told
him to keep the child in his possession while they investigated his
                                   11
claims. The NCP alleged that the custodial parent (“CP”) had called a
member of the staff at the Nederland office [] for assistance getting her
child back. Shortly thereafter, the NCP received a call from the
Nederland office. The woman on the phone, who represented herself as
someone with authority in the Office of the Attorney General,
instructed the NCP to return his child to the CP. Although the angry
NCP could not identify the person who had spoken to him, he said that
he thought the voice on the telephone belonged to the same person that
he and the CP had met with when they had come into the office for their
negotiation conference. The angry NCP also said he would come in and
provide proof of the call by showing them his phone.

[] Using caller I.D. to identify the angry NCP’s cell phone number, I
decided to review the outgoing calls from the Nederland office
telephones. It was already near 5:00 PM when we received the NCP’s
phone call. After business hours, I went telephone by telephone and
reviewed the call history to determine if anyone had called the angry
NCP. From this review, I determined that a 13-minute call to NCP’s
cell phone had been placed from the telephone in Lajuana Williams’s
office at 12:22 PM earlier that day. I took a picture of her phone to
document what I had discovered. A true and accurate copy of that
picture (redacted to avoid disclosing NCP’s phone number) is attached
to this affidavit as Exhibit D.

[] The next business day, I met with the angry NCP in my office. He
relayed the same account of what had happened (described in paragraph
10 above) and showed me his cell phone. The time stamp on his cell
phone matched the time stamp on Lajuana Williams’s office phone. He
also filed a formal complaint about what had happened. A true and
accurate copy of that complaint (redacted to avoid disclosing NCP’s
personal information) is attached to this affidavit as Exhibit E.

[] After the meeting with the angry NCP, Jay Webster and I interviewed
the staff of the Nederland office. Every person denied making the phone
call. Shortly thereafter, I checked the caller I.D. on her phone again and
saw that the entry I had previously reviewed and photographed had
been deleted. Based on the evidence available to me at the time, I

                                   12
      concluded that Lajuana Williams had made the phone call described to
      me by the angry NCP.

      [] I never witnessed Jay Webster treat female employees differently
      than male employees. I never witnessed Jay Webster treat African
      American employees differently than white employees.

      [] The decision to terminate Lajuana Williams’s employment with the
      Office of the Attorney General of Texas had nothing to do with her race,
      gender, or any complaints she may have had. The decision to terminate
      her employment was based on the policy violations and misconduct
      described in the request to terminate, including her failure to report
      child abuse.

In Webster’s affidavit attached to the Plea, Webster stated, in relevant part:

      [] I am a licensed attorney in the State of Texas. After a year working
      for the Office of the Attorney General (“OAG”) between 1995 and
      1996, I went into private practice. I started working at the OAG again
      in 2006 as a Managing Assistant Attorney General (“MAAG”) in the
      Nederland [] Office. Effective November 7, 2016, I started working as
      the MAAG for an office in Beaumont.

      [] The Nederland office conducts the routine business of the Child
      Support Division for a five-county area. The office is involved in the
      establishment and enforcement of child support orders. The MAAG
      oversees the entire office, but works primarily with several Assistant
      Attorneys General (the lawyers). In addition to the lawyers, there are
      also over two dozen non-legal personnel who process and prosecute
      child support cases in administrative and judicial proceedings. These
      non-legal personnel include Child Support Officers (“CSO’s”) and
      Child Support Technicians (“CST’s”).

      [] The primary difference between a CSO and a CST is that CSOs,
      unlike CSTs, are trained to make (1) assessments based on the entirety
      of the case and (2) decisions about the appropriate next step in the case.
      CSOs perform a variety of functions, including “establishment”
      (initializing cases), “enforcement” (seeking to collect child support
                                         13
based on existing orders), “modification” (altering existing orders), and
“financial” (ensuring that funds are both received and distributed
properly).

[] When Lajuana Williams first started in the Nederland office, there
was no position available for her. To allow Ms. Williams to come to the
Nederland office, a vacancy was transferred from another office,
meaning Nederland received an additional, unrequested Full-Time-
Equivalent position. Both because of this vacancy transfer and as
consequence of the ever-changing needs of the office, Ms. Williams
performed various CSO functions during her employment in the
Nederland office. For example, at one point Ms. Williams worked as a
review and modification CSO because the office had a backlog of
applications that needed to be reviewed for potential modification.
Eventually, the Nederland office caught up on its application backlog
and it [was] determined by the management team that a specialized
review and modification position was no longer needed.

[] As MAAG, I am responsible for everything that happens in the
Nederland office. However, my primary focus as the MAAG was on
the legal aspects of the office. I worked primarily with my staff
attorneys (the Assistant Attorneys General), the CSTs who went to
court with us regularly, and the office manager and office supervisor.
The office manager or office supervisor were the people directly
responsible for overseeing the CSOs’s work, assignments, and
evaluations. I rarely interacted with the CSOs directly. I did not have
direct supervisory contact with Ms. Williams. Instead, Veronica Burns
(before her injury in a car accident) and Billy Boyd were primarily
responsible for managing her and the other CSOs. Other than
exchanging pleasantries in the hallway, I did not interact with Lajuana
Williams on a regular basis. I estimate that I usually had meaningful
interactions with her only once or twice a month.

[] OAG policy [] prohibits leaving secured doors open and talking to
customers through the open secured door because that practice leaves
the rest of the staff unsecured. It also prevents management from
monitoring the traffic to and from the office. The OAG’s policy also
prevents personal issues from being aired in the hallway.
                                  14
[] At some point during Lajuana Williams’s employment, an incident
occurred involving Ms. Williams talking to a customer through a
secured door and a subsequent shouting match between Ms. Williams
and another staff member. An investigation ensued into what happened,
but the investigation did not specifically target Ms. Williams. My
personal concern about the incident stemmed more from the shouting
match between employees in the office.

[] Prior to the misconduct and policy violations that occurred in July
2012, I had never written up Lajuana Williams. During my time in the
Nederland [] office prior to July 2012, Lajuana Williams was never
written up.

[] Throughout 2012, the Nederland [] office spent a considerable
amount of time at each staff meeting talking about family violence and
the seriousness with which staff needed to defer to that designation in
their files. We did not want people with a family violence issue or
history in the offices together because it posed a potential safety risk
for them and for office staff. As discussed more below, repeated
emphasis on the family violence policy during the months preceding
her termination, Williams violated OAG policy by setting cases with
family violence flags on them for the Child Support Review Process
(“CSRP”), including a negotiation conference in the Nederland []
office.

[] In July 2012 (and to-date), the OAG Child Support Division used
(and uses) a computer software system entitled the Texas Child Support
Enforcement System (“TXCSES”). TXCSES uses an auto-scheduler
for CSRP. CSRP refers to the administrative process that serves as an
alternative to legal action. The primary purpose of the CSRP is to give
the parties an opportunity to come into the Child Support Division
office and negotiate an agreed order without having to go to Court.

[] The TXCSES auto-scheduler sets CSRP cases for a negotiation
conference, but not if the case has been flagged with a Family Violence
Indicator. If a case has been flagged with a Family Violence Indicator,
TXCSES will not automatically set it for CSRP or a negotiation
conference. After a Family Violence Indicator has been added, a case
                                    15
can only have been set for CSRP (or a negotiation conference) manually
by a user (e.g. a CSO). After the case is manually set for CSRP by a
user (e.g. a CSO), TXCSES will automatically send out the notices to
the parties. When a Family Violence Indicator has been put on the case,
TXCSES will only distribute the notices after the case has been
manually set for CSRP. This description applies to all types of cases:
establishment cases, modification cases, and enforcement cases.

[] Information such as who placed a Family Violence Indicator on the
case, when the Family Violence Indicator was placed, who set the case
for CSRP, when the case was set for CSRP, and when the TXCSES
system sent out the notices to the parties is all available and verifiable
in the TXCSES system.

[] Part of my duties as the MAAG for the Nederland office included
identifying systemic areas for improvement for the Nederland office.
The Child Support Division has a search program called “IDEAS” that
uses data from TXCSES to, among other things, help management
identify and correct systemic problems. In July 2012, I determined that
the Nederland office had too many “dead cases”—cases in which the
NCP was not paying child support and there was no court order to pay
child support.

[] On July 23, 2012, as we approached the end of the 2012 fiscal year,
I was reviewing dead cases to figure out what our office needed to do
[to] move them forward. This review was not limited to Lajuana
Williams’s cases, but rather all dead cases resulting from CSRPs. While
conducting this review, I discovered that Ms. Williams had manually
set a case flagged with a Family Violence Indicator for CSRP. This
jumped out at me because we had been emphasizing the family violence
policy at our staff meetings. Setting a case with a Family Violence
Indicator for CSRP violated OAG policy and created a potential safety
hazard.

[] From my review of the TXCSES case file, I determined that on June
20, 2012, Williams manually set a case for a CSRP, setting the case for
an in-office negotiation conference on July 5, 2012, at 3:00 PM. After
Williams manually set the case for CSRP, letters for the negotiation
                                  16
conference were automatically sent to the addresses listed for the
parties on the computer system. While Williams eventually terminated
the negotiation conference, that termination did not occur until almost
two weeks after the scheduled in-office conference. Williams’s
decision to set the case for CSRP violated OAG policy and created a
potential safety hazard.

[] Even today I can log in to the TXCSES system and verify that
Lajuana Williams was responsible for manually setting the case for
CSRP and the negotiation conference. Exhibit A is a screen print of the
TXCSES system showing on line 16 that the case did not meet the auto-
scheduler criteria. TXCSES then created a system message to an
employee that this case must be reviewed for the next action. TXCSES
would not allow itself to set this case for CSRP referral, only an
employee can override these protections and manually set the case for
CSRP. Exhibit B is a screen print of the TXCSES system in which line
14 shows that this case was manually referred for CSRP by an
employee. Exhibit C is a screen print of the TXCSES system line 14
which shows the user ID of the employee who manually referred this
case for the CSRP process. The user ID shown to have initiated and
completed this manual referral is C55LRA which is the user ID for Ms.
Williams. Once Ms. Williams manually referred the case for CSRP, the
TXCSES system then directed her for the next action which is
scheduling the CSRP for the negotiation conference. Exhibit D is a
screen print of the TXCSES system line 12, asking the employee to
manually schedule this CSRP referral for a negotiation conference.
Exhibit E is a screen print of the TXCSES system line 12, showing that
the user ID of the employee who manually set the date of the
negotiation conference was C55LRA which is the user ID for Ms.
Williams. The date of the negotiation conference was set by Ms.
Williams for July 5, 2012 at 3:00 p.m. Exhibit F is a screen print of the
TXCSES system, line 14 showing the negotiation conference was
manually terminated but not until 12 days after the conference was to
be held. Exhibit G is a screen print of the TXCSES system, line 14,
showing the user ID of the employee that manually terminated the
CSRP. The user ID is C55LRA which is the user ID for Ms. Williams.


                                   17
       [] When I spoke to Lajuana Williams about setting the case for CSRP,
       she told me she caught it in time and cancelled it before the CSRP. I
       told her this was not accurate, as the CSRP conference had passed
       before she terminated the CSRP. She then told me that she made the
       same error in another case, but terminated it before the notices were
       sent out to the parties.

       [] To my knowledge, during the entirety of her employment with the
       OAG, Lajuana Williams never accused me of discriminating against
       her based on her race or gender. She certainly never made any such
       accusations to my face. During the entirety of her employment with the
       OAG, Chip Arnold never said anything about Ms. Williams accusing
       me of race discrimination or gender discrimination. Ms. Williams never
       asked me whether my decisions regarding her employment had
       something to do with her race or her gender. I have never treated Ms.
       Williams in a discriminatory fashion based on either her race or gender
       nor in retaliation for any complaint she may have made against me.

       [] As Billy Boyd and I discovered Lajuana Williams’s misconduct and
       policy violations in July 2012, I kept my direct report Chip Arnold
       aware of what we had found. We did not make a recommendation to
       the regional office about what disciplinary action was appropriate. In
       late July, Kristine Blackstone indicated that the state office had decided
       to terminate Lajuana Williams’s employment. As per that decision, I
       wrote a request for termination that was subsequently sent to the
       regional and the state offices for their approval. On August 1, 2012, the
       OAG terminated Lajuana Williams’s employment.

       [] The decision to terminate Lajuana Williams’s employment with the
       Office of the Attorney General of Texas had nothing to do with her race,
       gender, or any complaints she may have made to me, Chip Arnold, or
       anyone else. The decision to terminate her employment was based on
       the policy violations and misconduct described in the request to
       terminate.

Arnold’s affidavit attached to the Plea was similar to Webster’s affidavit. Arnold

stated, in relevant part:
                                          18
[] I am employed by the Office of the Attorney General of Texas
(“OAG”) as the Regional Administrator for Region 5 of the OAG’S
Child Support Division (“CSD”) based in Tyler, Texas. I have been
employed in this capacity since January 7, 2002. I directly managed
Winston “Jay” Webster in the CSD office in Nederland, Texas,
beginning on July 17, 2006 and continuing through the end of Lajuana
Williams’s employment on August 1, 2012. As Regional Administrator,
I oversee multiple offices in the Region, including Nederland.

[] I personally visited and conducted management reviews in the CSD
offices in Woodville, Texas, in Beaumont, Texas, and Nederland, Texas
on November 21-23, 2011.

[] On or about November 22, 2011, Lajuana Williams worked as a Child
Support Officer IV assigned to the duties of a Customer Inquiry
Representative (“CIR”) in the CSD office in Nederland, Texas.

[] On or about November 22, 2011, at Ms. Williams’s request, I engaged
in a lengthy conversation with her in her office in the CSD office in
Nederland, Texas.

[] During the aforementioned conversation, Ms. Williams told me about
her background and OAG work experience, giving me a chronology of
her work history with the agency.

[] Ms. Williams further told me that Mr. Webster did not fully appreciate
her extensive knowledge and skill set and he was underutilizing her
abilities by having her serve as a CIR.

[] Ms. Williams further told me that her workload was very light with
the CIR assignment and that she could better serve the office in a
different role.

[] Ms. Williams further told me that she had many good ideas and
thoughts that she felt would improve the office’s performance, but that
Mr. Webster did not take advantage of her suggestions or implement any
of them.

                                  19
[] Ms. Williams further told me that she knew the office was struggling
without a full time Office Manager (out on extended leave due to serious
injuries from a car accident) and that she had noted that the office needed
to establish more paternities.

[] Ms. Williams further told me that, with her extensive experience and
knowledge, she would make an extremely good establishment Child
Support Officer (“CSO”) and she wanted to become such to assist the
office.

[] Ms. Williams further told me, several times, that if she could just be
given the opportunity to be an establishment CSO, she would make a
positive difference for the office’s goals based on her extensive
knowledge, skill set, and experience.

[] Ms. Williams further told me that she was giving me this information
because she did not feel that Mr. Webster recognized how beneficial she
could be to the office and what a positive difference she could make if
she were assigned to be an establishment CSO.

[] I told Ms. Williams that I appreciated her bringing this information to
my attention and that I would speak with the Nederland managers, in
particular, Mr. Webster, about her request and desire to better serve the
office in the role of an establishment CSO.

[] I further told Ms. Williams that while I would share her information
and desire with the Nederland office management, I left such task and
duty assignments up to the local office managers since the local
management team knows best how to allocate its limited resources based
on the office’s business needs at any given time.

[] At no time during this conversation with Ms. Williams [did she] ever
tell me that Mr. Webster had issue[s] with her based on her race.

[] I am certain that at no time during this conversation with Ms. Williams
did she ever say anything about any kind of discrimination, bias, or
prejudice on the part of Mr. Webster or any other manager in the CSO

                                   20
      office in Nederland, because such an allegation would have triggered an
      investigation by me into the matter.

      [] During July 2012, Mr. Webster and Mr. William (“Billy”) Boyd kept
      me apprised about what was going on with Ms. Williams, specifically
      the failure to report child abuse, the incident with the non-custodial
      parent being instructed to return a child, and setting a case flagged for
      Family Violence Indicator for a negotiation conference pursuant to the
      Child Support Review Process (“CSRP”). At some point, I determined
      that I needed guidance from my direct report at the time, Deputy
      Director for Field Operations Kristine Blackstone. I wanted to make sure
      that the disciplinary action we imposed for Ms. Williams’s misconduct
      and policy violations were both appropriate and consistent with agency-
      wide practices. Ms. Blackstone took it to Director Charles Smith, who
      indicated that the recommendation should be written up as a termination.
      I relayed this information to Mr. Webster and Mr. Boyd, who proceeded
      accordingly.

      [] The decision to terminate Lajuana Williams’s employment with the
      Office of the Attorney General of Texas had nothing to do with her race,
      gender, or any complaints she may have made (including the
      conversation she had with me on November 22, 2011). The decision to
      terminate her employment was based on the policy violations and
      misconduct described in the request to terminate.

In the Sine’s affidavit attached to the Plea, Sines stated, in relevant part:

      [] I am the Deputy Director of Field Operations for the Child Support
      Division of the Attorney General of Texas (“OAG”). I started my career
      with the OAG July 27, 1995 and was named Deputy Director of Field
      Operations May 1, 2016.

      [] In 2012, the OAG had Regional Customer Service Centers (“RCSC”)
      for each of the nine regions. Under the OAG’s Reporting Child
      Abuse/Neglect & Sexual Misconduct Policy at the time, “[i]f a [RCSC]
      receives a call in which the caller wants to report an instance of
      abuse/neglect, the RCSC forwards the call to the appropriate field
      office. Field office staff are then responsible for making the report [to
                                           21
the Department of Family and Protective Services (DFPS)”]. DFPS is
a state agency that includes Child Protective Services (CPS). Abuse is
defined in the OAG’s Reporting Child Abuse policy to include not only
direct physical or sexual abuse but also mental or emotional injury to a
child. A true and accurate copy of this policy, as it existed in July 2012,
is attached to this affidavit as Exhibit A.

[] If the RCSC forwards an abuse call to a field office for the field office
to report the abuse to DFPS, the field office staffer who receives the
call is obliged to make the report to DFPS. The field office staff who
receives the call does not have discretion to refrain from making a
report to DFPS even if he or she second-guesses the RCSC
determination that the conduct described by the caller constitutes child
abuse.

[] Child abuse is different than family violence. Child abuse refers to
abuse directed at, or directly affecting, a child. Family violence could
include child abuse, but could also include violence directed only
between adults. Making a report of family violence in the Texas Child
Support Enforcement System (“TXCSES”) is different from making a
report to DFPS (or, more specifically, CPS). While both are important,
reporting family violence in TXCSES does not satisfy the obligation to
report child abuse to CPS.

[] The TXCSES auto-scheduler sets CSRP cases for a negotiation
conference, but not if the case has been flagged with a Family Violence
Indicator. If a case has been flagged with a Family Violence Indicator,
TXCSES will not automatically set it for CSRP or a negotiation
conference. After a Family Violence Indicator has been added, a case
can only been [sic] set for CSRP (or a negotiation conference) manually
by a user (e.g. a CSO). TXCSES will automatically send out the notices
to the parties. When a Family Violence Indicator has been put on the
case, TXCSES will only distribute the notices after the case has been
manually set for CSRP. This description applies to all types of cases:
establishment cases, modification cases, and enforcement cases.

[] Information such as who placed a Family Violence Indicator on the
case, when the Family Violence Indicator was placed, who set the case
                                 22
      for CSRP, when the case was set for CSRP, and when the TXCSES
      system sent out the notices to the parties is all available and verifiable
      in the TXCSES system.

                                 Standard of Review

      Governmental units are immune from suit unless the State consents. Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018) (citing Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). Immunity from

suit may be asserted by a plea to the jurisdiction or motion for summary judgment.

Id. The plea may challenge the pleadings, the existence of jurisdictional facts, or

both. Id. When a governmental entity files a plea to the jurisdiction that challenges

the existence of jurisdictional facts and the pleas are supported with evidence, the

standard of review used to review the ruling the trial court made on the plea mirrors

the standard used in reviewing rulings that trial courts make on traditional motions

for summary judgment. Id. at 771. “[I]f the [plaintiffs’] 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.” Miranda, 133 S.W.3d at 221. “A defendant who conclusively negates

at least one of the essential elements of a cause of action or conclusively establishes

                                          23
an affirmative defense is entitled to summary judgment.” Frost Nat'l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

      We review the trial court’s decision using the burden-shifting framework as

explained by the Texas Supreme Court in Clark. See 544 S.W.3d at 764 (“[W]e hold

that when jurisdictional evidence negates the prima facie case or, as in this case,

rebuts the presumption it affords, some evidence raising a fact issue on retaliatory

intent is required to survive a jurisdictional plea.”). In our de novo review of the trial

court’s ruling, we take as true all evidence favorable to the nonmovant, indulging in

every reasonable inference and doubt that favors the nonmovant. See Miranda, 133

S.W.3d at 228 (explaining the standard as it applies to a plea to the jurisdiction); see

also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)

(explaining the standard as it applies to a traditional motion for summary judgment).

In conducting our review, however, “we cannot disregard evidence necessary to

show context, and we cannot disregard evidence and inferences unfavorable to the

plaintiff if reasonable jurors could not.” Clark, 544 S.W.3d at 771.

                                   Retaliation Claim

      Chapter 21 of the Texas Labor Code, also known as the Texas Commission

on Human Rights Act (TCHRA), waives sovereign immunity, but only for those

suits that meet the prima facie elements of a claim. Mission Consol. Indep. Sch. Dist.

                                           24
v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012). The prima facie case is the first step

to bringing a claim under the TCHRA. Id; see also McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973).

      As stated by the Texas Supreme Court in Clark, “the TCHRA prohibits

retaliation against an employee for engaging in certain protected activities[.]” 544

S.W.3d at 781; see also Tex. Lab. Code Ann. § 21.055. “An employee engages in a

protected activity by, among other things, filing an internal complaint, opposing a

discriminatory practice, or making a charge of discrimination with the EEOC.”

Clark, 544 S.W.3d at 786. However, an employee is not protected from discipline,

or even termination, following a discrimination complaint. Id. at 764. “Rather, a

remedy exists only when the evidence establishes that a materially adverse

employment action resulted from the employee’s protected activities.” Id. (emphasis

added). A retaliation claim is related to but distinct from a discrimination claim, and

it focuses upon the employer’s response to the employee’s protected activity, such

as the employer’s response to the employee’s complaint about discrimination. Id. at

763-64.

      To establish a prima facie case of retaliation under the TCHRA, an employee

must show: (1) she engaged in an activity protected by the TCHRA, (2) she

experienced a material adverse employment action, and (3) a causal link exists

                                          25
between the protected activity and the adverse action and that the adverse action

would not have occurred “but for” the protected activity. Id. at 782. If the employee

can establish a prima facie case, a rebuttable presumption of illegal intent arises. Id.

The employer can defeat this presumption by producing evidence of a legitimate,

nondiscriminatory reason for the termination. Id. “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.” Id. “[T]he burden of persuasion remains at all times with the

employee.” Id.

      In evaluating but-for causation evidence in retaliation cases, we
      examine all of the circumstances, including temporal proximity
      between the protected activity and the adverse action, knowledge of the
      protected activity, expression of a negative attitude toward the
      employee’s protected activity, failure to adhere to relevant established
      company policies, discriminatory treatment in comparison to similarly
      situated employees, and evidence the employer’s stated reason is false.

Id. at 790. “The but-for causation standard is significantly more difficult to prove

than prima facie causation.” Id. at 782.

                                       Analysis

      Assuming without deciding that Williams stated a prima facie case of

retaliation based on her termination, any presumption raised was rebutted when the

OAG produced evidence of three legitimate, nondiscriminatory reasons for her

                                           26
termination. Id. at 790. Williams had the burden to establish a fact issue to show the

stated reasons were a pretext and that she would not have been terminated but for

her alleged protected activity. 4 Id.

       When, as here, the jurisdictional evidence submitted by the employer rebuts

the prima facie case, the entire McDonnell Douglas 5 framework is fully implicated,

and sufficient evidence of pretext and causation must exist to survive the

jurisdictional plea. Id. at 764, 782-83. Accordingly, Williams must prove the adverse

action would not have occurred “but for” the protected activity.

       In her response to the Plea, Williams argued that her alleged report to Arnold

of discriminatory conduct by Webster was a protected activity. She further argued


       4
        There is no evidence in the record that Williams filed an EEOC or other
formal complaint. Williams claims that she reported to Arnold that Webster had
discriminated against her based on her race, and that her “complaint” to Arnold was
a “protected activity.” Arnold denies that Williams ever told him she believed
Webster’s conduct was based on sex or race discrimination. As noted by the Texas
Supreme Court, not every workplace complaint constitutes a “protected activity.”
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 788 (Tex. 2018). An
employee engages in a “protected activity” when she files a complaint of
discrimination, and possibly when she files an internal complaint. See Tex. Lab.
Code Ann. § 21.055 (West 2015). At a minimum, the “complaint” must alert the
employer to the employee’s reasonable belief of unlawful discrimination. Clark, 544
S.W.3d at 786. For purposes of our review, we assume without deciding that
Williams’s alleged verbal complaint to Arnold constitutes a “protected activity.”
       5
       McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973) (establishing
the procedure for reviewing a disparate-treatment claim when direct evidence of
discrimination is lacking).
                                       27
that the OAG created a fact issue about whether she ever said anything to Arnold

about “a racist motive.” And, she argued that the only remaining element of her

prima facie claim would be whether she could show a causal nexus between her

report of the discrimination to Arnold and the termination. She argued that the prima

facie showing of causation did not require her to preview the merits of her claims,

and she argued that the trial court should not examine pretext. According to

Williams, she met her burden by showing that she was “blemish free” for twenty-

two years, she complained of Webster’s discriminatory conduct based on her race,

she alleged Webster’s hostile behavior escalated, she was never notified of her

alleged offenses, she denied she received a call about abuse, and Webster fabricated

the three reasons for her termination. She attached her own affidavit to her response

to the Plea.

      The record before us establishes that eight months passed between her alleged

verbal report to Arnold and her termination. Examining the temporal proximity

between the report and termination, we conclude that this “gap is so long as to be of

little, if any, probative value[]” and weighs against Williams. See id. at 790 (citing

Jackson v. Honeywell Int’l, Inc., 601 Fed. App’x 280, 286-87 (5th Cir. 2015)). With

respect to the other factors, even assuming Williams reported the alleged

discrimination to Arnold around Thanksgiving 2011, or that Webster had knowledge

                                         28
of her allegations of discrimination prior to her termination, we find there is no

evidence in the record that the OAG failed to follow any internal procedures or

relevant policies with respect to how it treated Williams. There is no evidence in the

record that the OAG treated Williams differently than any similarly situated

employees, and there is no evidence in the record that each of the alleged reasons

for her termination was false. Although Williams denies each of the alleged reasons,

her denials are insufficient to create a fact issue as to causation. See id. at 792 (“Clark

denies nearly all of these performance issues, but such denials are insufficient to

create a fact issue as to causation. The issue is whether the employer’s perception of

the problems—accurate or not—was the real reason for termination. The record

bears no evidence the stated reasons were mere pretext.” (footnotes omitted)). We

find that the record before us contains no evidence that the stated non-discriminatory

reasons were a pretext for a retaliatory intent. See id. We overrule Williams’s issues.

       We conclude that Williams failed to meet her burden to raise a fact issue

causally linking her termination to the reported discrimination, governmental

immunity has not been waived, and subject matter jurisdiction is lacking. We affirm

the trial court’s ruling.




                                            29
      AFFIRMED.

                                                  _________________________
                                                      LEANNE JOHNSON
                                                            Justice

Submitted on June 24, 2019
Opinion Delivered August 8, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.




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