Texas Department of State Health Services v. Lonzo Kerr, Jr. ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00240-CV
________________________
TEXAS DEPARTMENT OF STATE HEALTH SERVICES, APPELLANT
V.
LONZO KERR, JR., APPELLEE
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court No. D-A-GN-18-001738; Honorable Maria Cantu Hexsel, Presiding
February 16, 2022
OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, the Texas Department of State Health Services (“TDSHS”) filed this
interlocutory appeal, pursuant to section 51.014(a)(8) of the Texas Civil Practice and
Remedies Code, from the trial court’s denial of its plea to the jurisdiction.1 Through two
1 TDSHS filed a plea to the jurisdiction and a motion for summary judgment, in the alternative. The
trial court denied both motions. Although the grounds underlying each are the same, in this interlocutory
appeal, we do not reach the merits of the summary judgment.
issues, TDSHS contends the trial court erred because Lonzo Kerr, Jr., Appellee, failed to
establish a prima facie case of race and/or age discrimination under the requisite law and,
even if he did so, he failed to show TDSHS’s reasons for terminating his employment
were both false and a pretext for what was in fact race and/or age discrimination. We
agree with TDSHS’s position. Consequently, we reverse the order of the trial court and
render judgment granting TDSHS’s plea to the jurisdiction.2
BACKGROUND
Kerr has a long history of working for the State of Texas beginning in the late
1970s.3 Over the ensuing years, he worked for the Texas Department of Human Services
and for the Texas Department of Health. He served in many roles, including senior
investigator and Director of Criminal Investigations. In that role, he conducted complex
investigations into fraud, waste, abuse, regulatory non-compliance, security breaches,
and loss of confidential data. In 2004, Kerr began working for the Office of Inspector
General (“OIG”) as a Manager IV/Supervising Investigator, performing duties similar to
those he performed while working at the Department of Health. Kerr also supervised the
Vital Records Fraud Unit at OIG.
In November 2004, Kerr began working in the Vital Statistics Unit (“VSU”) at
TDSHS as a Director I/Deputy State Registrar. He remained in that position until his
retirement in 2008. In 2010, Kerr returned to work at VSU as a Manager IV/ Deputy State
2 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to
this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. §
73.001. Should a conflict exist between precedent of the Third Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
3The record indicates there was a short gap in employment with the State during which Kerr
pursued other opportunities.
2
Registrar, performing the same job duties he had in 2008. Prior to Kerr’s returning to
work in 2010, the Chief Operating Officer, Ed House, submitted a justification for offering
the position to executive leadership. In the request, House recommended Kerr for the
management position because Kerr had previously held that position in addition to many
other management positions in state government. House also stated that Kerr had a
“documented background as being innovative and having the experience and ability to
develop and implement modern solutions for automated systems; program policies and
procedures for meeting Vital Records program goals and objectives.” House
recommended that executive management approve Kerr for the position and explained
that Kerr’s “previous management experience and accomplishments afford him the skills,
knowledge and abilities that are vitally needed to quickly move the Vital Statistics Unit
forward in the areas of Information Technology; personnel matters; facility and system
operations and security; including our federal, state, local and public partners and
stakeholders.” Based on House’s recommendation, Kerr was re-hired to the
management position and held that position until his termination.
Kerr’s termination stemmed from a missing vital statistics book.4 During a shelving
project in 2012-2013, a VSU employee, Chris Guerrero, discovered a VSU records book
containing approximately 500 birth certificates was missing.5 Guerrero and a supervisor,
4 The missing book, Volume 45, 022001-022500, Birth 1993, contained 500 Texas birth records.
Each birth record contains the name, social security number, and dates of birth of the record holder and
each parent. Because the book has not been located, “1500 Personal Identifying Information may be
compromised.”
5 Subsequent investigation revealed that the book had been missing since November 2012 when
a request for a court-ordered name change apparently necessitated the physical removal of the book from
its designated shelf. The record also shows that the records contained within the missing book were
“imaged and saved in 2009.”
3
Geraldine Harris, conducted a search for the book; however, it was not located. At that
time, another TDSHS employee, James Abshier, informed Kerr the book was missing.
Kerr did not, however, follow up to determine whether the book was found, and he did not
report the missing book to TDSHS leadership, OIG, or the TDSHS Privacy Officer. In
May 2016, Jamie Ross, another TDSHS employee, realized the book was missing and
conducted another unsuccessful search for it. Ross also reported to Kerr that the book
was missing.
In early June 2016, Guerrero met with House and Barbara Klein, General Counsel
for TDSHS, to discuss concerns about Guerrero’s stress levels. During that meeting,
Guerrero discussed the missing book with them. House and Klein then referred the issue
of the missing book to OIG6 to investigate whether senior management at VSU was aware
of the missing book and whether they failed to report it.
OIG completed its investigation in July 2016. It substantiated allegations that there
were significant delays in initiating the process of proper reporting to OIG for the potential
unauthorized disclosure of personal identifying information and that approximately 1,500
individuals’ personal identifying information may have been compromised due to the
inaction of VSU employees. This event was characterized as a “privacy incident” for
TDSHS policy purposes.7 OIG’s investigation also found that VSU members reported the
6 According to the record, OIG has the legal responsibility to investigate fraud at TDSHS.
7 It was the policy of the TDSHS Privacy Office to notify all individuals potentially at risk of identity
theft as the result of a “privacy incident” and to provide credit monitoring and identity theft protection for
those persons.
4
book as missing to supervisors as early as 2012 and that the book was still missing as of
June 2016.
After TDSHS received OIG’s investigation report, it consulted with human
resources and legal services and decided to terminate the employment of Harris and Kerr
for failing to make proper notifications about the missing book. Kerr received a Notice of
Possible Disciplinary Action (“NOPDA”) on July 29, 2016. In the NOPDA, House
explained that Kerr admitted he was responsible for the management and oversight of
the security of vital records8 and that Kerr understood the process to report potential fraud,
waste, and abuse allegations. The NOPDA also included statements alleging that Kerr
had the duty as Deputy State Registrar to ensure that the missing book was timely
reported to OIG, TDSHS leadership, or the TDSHS Privacy Office because information
contained in the missing book could be used to commit fraud. Furthermore, TDSHS
alleged Kerr was aware of the missing book for more than three years yet did nothing to
ensure proper notifications were made. According to TDSHS, Kerr’s failure to report the
missing book violated TDSHS Policy AA-5003, Section 5.1.4, which requires the prompt
reporting of privacy incidents to a supervisor of the TDSHS Privacy Office.9 TDSHS also
8 Kirk Cole testified that Kerr was sometimes referenced as a security officer but stated he did not
believe any official duties prescribed him as being in charge of security of the books in the “stacks,” the
area in which the books are stored. Cole testified that “inherent in the preservation and the security of—of
these vital records is to keep them secure.” Cole said this was the kind of duty anyone working in the area
would have. In his deposition, Kerr testified he did not agree with the statement in the NOPDA and said
that his “security responsibilities related only to the facility. My security responsibilities did not have any
authority or responsibility over the records or tracking the records.”
9 The NOPDA includes the statement that Kerr simply “assumed the book had been found.”
5
stated Kerr violated several work rules found in the Health and Human Services Human
Resources Policy Manual.10
Kerr was given the opportunity to provide a rebuttal to the NOPDA by August 1,
2016. He did so on that date. The rebuttal focused mainly on the efforts made to locate
the book but, according to TDSHS, did not fully address the ultimate concern caused by
the missing book and the failure by senior management, including Kerr, to make the
proper reports that the book was missing. Kerr stated, however, that it was “not clear
when missing records should be reported according to agency policies and procedures.”11
He argued that the statement that he did not report the missing book to a supervisor was
inaccurate. He stated that the subject of the missing book was discussed during a weekly
manager’s meeting of all VSU managers and supervisors and that a search for the book
was conducted in 2013. That search was conducted by Guerrero, a person Kerr said was
“a higher level (classification)” than he and that “she too could have reported a missing
book and she had no duty or responsibility to report her actions to me.” After reviewing
10 These included Work Rules 1, 2, 11, and 28 which provided as follows:
1. be familiar with and follow all HHS policies and procedures relating to job performance
and work rules;
2. perform their job duties, meet HHS standards for job performance, and follow job-
related instructions from HHS supervisors;
11. protect state information and property;
28. not act in a manner that interferes with the proper performance of duties, office
operations, or HHS agency and program goals and objectives, or act in a manner that
violates HHS agency or program rules, regulations, or policies.
11 The record shows that Department of State Health Services Policy AA-5042 5.0 states, “All
employees shall report violations of this policy to the OIG.” Section 6.0 states, “DSHS employees shall
immediately report all allegations of fraud and other unlawful activities to the OIG as directed by OIG
procedures.” Kerr appears to argue that it was not his understanding that a missing book fell into a violation
of the policy, fraud, or other unlawful activities for which reporting to the OIG was required. He contends
that because there was no privacy breach, these policies were not violated.
6
the rebuttal, House issued the decision to terminate Kerr with a Notice of Disciplinary
Action (“NODA”).
On September 8, 2016, Kerr filed a Charge of Discrimination with the Equal
Employment Opportunity Commission. Kerr is a Black man, aged seventy-three at the
time of his termination from employment. House, the person who hired Kerr and who
ultimately made the decision to terminate his employment while choosing to suspend
rather than dismiss Guerrero, is also a Black man, aged sixty-four at the time Kerr was
terminated from employment.12 Kerr alleged that in making the decision to terminate him,
the TDSHS discriminated against him on the basis of his race and age because he and
Guerrero were treated differently for the same misconduct. On February 8, 2018, the
Texas Workforce Commission issued a “right to sue” letter to Kerr.
Kerr filed his lawsuit on April 10, 2018. Through it, he alleged TDSHS
discriminated against him based on his race and age in violation of provisions of the Texas
Commission on Human Rights Act (“TCHRA”).13 The TCHRA waives immunity, but only
when the plaintiff states a claim for conduct that actually violates the statute. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012) (citing TEX. LABOR CODE
12 At the time of the suit, House was sixty-eight years old and retired. In his appellate brief, Kerr
states, “[t]o further complicate matters and unduly prejudice Kerr, DSHS has denied Kerr access to depose
the alleged decision maker of his termination, DSHS COO Ed House, since last March.” TDSHS “has
represented, without evidence, that House’s health has prevented his deposition during the entire time from
March up to the present.” However, Kerr notes that TDSHS was able to obtain a sworn statement from
House to use in its motion without any offer to Kerr to take House’s deposition.
13 The Texas Commission on Human Rights Act (TCHRA) is a comprehensive fair employment
practices act and remedial scheme, modeled after Title VII of the federal Civil Rights Act of 1964 (Title
VII), that provides the framework for employment discrimination claims in Texas. TEX. LABOR CODE ANN.
§§ 21.001-.556.
7
ANN. § 21.254). By his suit, Kerr sought damages, attorney’s fees, and costs. TDSHS
filed a plea to the jurisdiction and motion for summary judgment on June 21, 2021. In
that plea, it argued its sovereign immunity was not waived because Kerr failed to establish
a prima facie case of either race or age discrimination under the TCHRA and even if he
had done so, he failed to prove TDSHS’s reasons for termination of his employment were
false and a pretext for discrimination. The trial court heard TDSHS’s plea to the
jurisdiction on July 20, 2021. On September 1, 2021, the trial court issued an order
denying the plea. TDSHS challenges that denial through this interlocutory appeal.
ANALYSIS
STANDARD OF REVIEW AND APPLICABLE LAW
Governmental immunity generally protects state subdivisions from suit unless the
immunity has been waived by the constitution or state law. Univ. of Tex. M.D. Anderson
Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019). Immunity may be asserted
through a plea to the jurisdiction or other procedural vehicle, such as a motion for
summary judgment. Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 771. A plea to the
jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter
jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). We review a trial
court’s ruling on a plea to the jurisdiction de novo. See Hous. Belt & Terminal Ry. Co. v.
City of Hous., 487 S.W.3d 154, 160 (Tex. 2016); McLane Co., Inc. v. Texas Alcoh. Bev.
Comm’n, 514 S.W.3d 871, 874 (Tex. App.—Austin 2017, pet. denied).
Usually, the plea to the jurisdiction challenges whether the plaintiff has alleged
facts that affirmatively demonstrate the trial court’s jurisdiction to hear the case. Limas v.
City of Dallas, No. 05-19-01223-CV, 2021 Tex. App. LEXIS 6006, at *19 (Tex. App.—
8
Dallas July 28, 2021, no pet.) (mem. op.) (citation omitted). When, as in this case, the
plea to the jurisdiction challenges the existence of jurisdictional facts, then, like the trial
court, we “consider evidence as necessary to resolve any dispute over those facts, even
if that evidence ‘implicates both the subject-matter jurisdiction of the court and the merits
of the case.’” Limas, 2021 Tex. App. LEXIS 6006, at *19-20 (citations omitted).
When a plea challenges the existence of jurisdictional facts, the standard of review
mirrors that of a traditional motion for summary judgment. Id. (citation omitted). The party
asserting immunity (usually the defendant) initially carries the burden to meet the
summary judgment proof standard for its assertion that the trial court lacks jurisdiction.
Id. (citation omitted). “If it does, the plaintiff is then required to show that a disputed
material fact exists regarding the jurisdictional issue.” Id. at *20 (citation omitted). A
reviewing court must take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving all doubts in the plaintiff’s favor. Id. (citing City of El
Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). See City of Dallas v. Siaw-Afriyie,
No. 05-19-00244-CV, 2020 Tex. App. LEXIS 7908 (Tex. App.—Dallas Oct. 1, 2020, no
pet.) (mem. op.)).
If the pleadings and jurisdictional evidence create a fact question, then the trial
court cannot grant the plea, and the issue must be resolved by the fact finder. Limas,
2021 Tex. App. LEXIS 6006, at *20-21 (citation omitted). If, however, the relevant
evidence is undisputed or if the plaintiff fails to raise a fact question on the jurisdictional
issue, then the trial court rules on the plea as a matter of law. Id. (citations omitted).
9
As previously stated, the TCHRA waives immunity when the plaintiff states a claim
for conduct that actually violates the statute. Alamo Heights Indep. Sch. Dist., 544 S.W.3d
at 770; TEX. LABOR CODE ANN. § 21.254. The TCHRA prohibits an employer from
committing an “unlawful employment practice” against an employee “because of” the
employee’s “race, color, disability, religion, sex, national origin, or age.” Id. at § 21.051.
The TCHRA also protects employees who are “40 years of age or older.” Id. at § 21.101.
Typically, an employer commits an unlawful practice “because of” an employee’s age if
the employee’s age was “a motivating factor” for the alleged wrongful act or practice,
“even if other factors also motivated the practice.” Id. at § 21.125(a). Under the TCHRA,
an employer commits an unlawful employment practice if, because of an employee’s race,
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. at § 21.051(1). The Texas Legislature modeled the TCHRA after
federal law “for the express purpose of carrying out the policies of Title VII of the Civil
Rights Act of 1964 and its subsequent amendments.” Elgaghil v. Tarrant Cnty. Junior
Coll., 45 S.W.3d 133, 139 (Tex. App.—Fort Worth 2000, pet. denied). See Quantum
Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001) (stating same). Therefore,
when analyzing a claim brought under the TCHRA, we look to state cases as well as
analogous federal statutes and the cases interpreting those statutes for guidance.
Quantum Chem. Corp., 47 S.W.3d at 476.
After the plaintiff establishes a prima facie case, the burden of production shifts
back to the defendant-employer to articulate legitimate non-discriminatory reasons for
any allegedly unequal treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
10
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d
419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Once the employer articulates
a non-discriminatory reason, the burden again shifts back to the plaintiff to prove that the
articulated reason is a mere pretext for unlawful discrimination. McDonnell Douglas
Corp., 411 U.S. at 804; Greathouse, 17 S.W.3d at 423. Although the burden of production
shifts between the parties, the burden of persuasion “remains continuously with the
plaintiff.” Greathouse, 17 S.W.3d at 423. See Chandler v. CSC Applied Techs., LLC,
376 S.W.3d 802, 813-14 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
TDSHS is a state entity and therefore, sovereign immunity bars any suit against it
unless the Legislature has expressly waived that immunity. Univ. of Tex. Health Sci. Ctr.
at Hous. v. Rios, 542 S.W.3d 530, 532 n.4 (Tex. 2017). The TCHRA waives sovereign
immunity from suit, but only if the plaintiff alleges facts that would establish that the state
agency violated the TCHRA and, when challenged with contrary evidence, provides
evidence that is at least sufficient to create a genuine fact issue material to that
allegation. Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 304-05
(Tex. 2020) (citing Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 770-71). When
determining whether a plaintiff has met this burden, we must assume that all evidence
supporting the plaintiff’s allegations is true, and we must resolve all doubts and make all
reasonable inferences in the plaintiff’s favor. Flores, 612 S.W.3d at 305.
In its jurisdictional plea and in this court, TDSHS argues it did not waive its
sovereign immunity against Kerr’s claim because (1) Kerr failed to establish a prima facie
case of either race or age discrimination and (2) TDSHS established that Kerr’s race and
11
age were not motivating factors behind his employment termination and that Kerr
submitted insufficient evidence to the contrary.
To establish unlawful discrimination, a plaintiff may rely on either direct or
circumstantial evidence. Flores, 612 S.W.3d at 305 (citing Alamo Heights Indep. Sch.
Dist., 544 S.W.3d at 782). When a plaintiff relies on circumstantial evidence to establish
a discrimination claim, we follow the burden-shifting framework the United States
Supreme Court established in McDonnell Douglas Corp. Id. at 305 (citing Alamo Heights
Indep. Sch. Dist., 544 S.W.3d at 764, 782). Under this framework, (1) the plaintiff must
first create a presumption of illegal discrimination by establishing a prima facie case, (2)
the defendant must then rebut that presumption by establishing a legitimate,
nondiscriminatory reason for the questioned employment action, and (3) the plaintiff must
then overcome the rebuttal evidence by establishing that the defendant’s stated reason
is a mere pretext. Flores, 612 S.W.3d at 305 (citations omitted).
TDSHS argues Kerr failed to establish a prima facie case regarding either race or
age discrimination. The requirements for establishing a prima facie case “vary depending
on the circumstances.” Flores, 612 S.W.3d at 305 (citing Exxon Mobil Corp. v. Rincones,
520 S.W.3d 572, 583 (Tex. 2017)). Subjective beliefs of discrimination alone are
insufficient to establish a prima facie case. McCoy v. Tex. Instruments, Inc., 183 S.W.3d
548, 554 (Tex. App.—Dallas 2006, no pet.) (citing Farrington v. Sysco Food Servs., Inc.,
865 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).
In a race-discrimination case, the plaintiff establishes a prima facie case with
evidence that he (1) was a member of a protected class, (2) suffered an adverse
12
employment action, and (3) was treated less favorably than similarly situated members
outside of the protected class. Limas, 2021 Tex. App. LEXIS 6006, at *23 (citation
omitted). See McDonnell Douglas Corp., 411 U.S. at 802; McCoy,183 S.W.3d at 554.
In an age-discrimination case, the plaintiff establishes a prima facie case with
evidence that he (1) was a member of the protected class (that is, 40 years of age or
older), (2) was qualified for the position at issue, (3) suffered a final, adverse employment
action, and (4) was either (a) replaced by someone significantly younger or (b) otherwise
treated less favorably than others who were similarly situated but outside the protected
class. Flores, 612 S.W.3d at 305 (citations omitted).
In cases where an employer claims to have fired the plaintiff for violating a work
rule, the plaintiff can prove the final element of his prima facie case by showing that he
did not violate the rule or that employees outside his protected group who engaged in
similar acts were not punished similarly. Hicks v. Geodis Logistics LLC, No. 3:20-CV-
1115-N, 2021 U.S. Dist. LEXIS 220820, at *4-5 (N.D. Tex. Nov. 16, 2021) (citing Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)).
APPLICATION
ISSUE ONE—PRIMA FACIE CASE OF RACE OR AGE DISCRIMINATION
TDSHS argues that Kerr has failed to establish a prima facie case of race or age
discrimination because he lacked direct evidence of discrimination and his reliance on
13
circumstantial evidence was insufficient.14 See Flores, 612 S.W.3d at 305 (citing
McDonnell Douglas Corp., 411 U.S. 792).
In his pleadings below, Kerr argued he put forth more than sufficient evidence to
carry his burden in this matter. He contended Guerrero allegedly discovered the missing
book before he knew about it and discussed the missing book with their supervisor,
Harris.15 Thus, Kerr asserted, he had no duty to report the missing book to Harris because
he was relying of the fact that Guerrero had already done so.16 Harris averred similarly.
Guerrero testified she “did not recognize [the missing book] to be a matter that needed to
be reported to anybody but my supervisor.” Guerrero also testified she did not believe
there was any reason that Kerr would have a different duty to report the missing book
than she did. Several witnesses, including Cole, noted that the duty to report falls to every
employee. As such, Kerr argued, he and Guerrero had the same duty to report yet were
treated differently for allegedly similar failures. This, he asserted, was sufficient to show
he had been treated differently than a similarly situated TDSHS employee.
14 Kerr also alleged that House, the person who both hired him and terminated his employment,
discriminated against him based on his race and age. However, TDSHS points out that House belongs to
the same protected classes as Kerr given that House is both a Black man and over the age of forty. As
such, TDSHS contends, it is entitled to a bolstered inference that it did not discriminate against Kerr based
on his race or age. We need not address TDSHS’s “bolstered inference” argument here.
15The record indicates that it is possible Guerrero did not actually report the missing book. Rather,
she simply answered questions about the missing book during a meeting she had with General Counsel
concerning work stress. She testified she did not report the book but that the subject was raised with her.
However, there is also evidence in the record that she met with Harris twice to discuss the missing book.
16 The Notice of Suspension Without Pay issued to Guerrero contains the statement that the “OIG
reporting obligation is not satisfied by an employee’s report of such allegations to the employee’s
supervisor, especially if an employee believes—as [Guerrero] apparently did in this situation—that the
supervisor to whom a report has been made has not subsequently reported these allegations to the OIG.”
14
Further, Kerr contended, TDSHS continued to search for the book and even hired
someone to attempt to locate it through a complete assessment and inventory of all of the
records. OIG also investigated the missing book and determined there was no evidence
of waste, fraud, or abuse in either the book being missing or in the time the book has
been missing. As such, Kerr argued, he had no duty to report the missing book because
there was no evidence of waste, fraud, or abuse or evidence of a privacy breach. Kerr
argued that the failure to report the book was a pretextual reason for TDSHS to terminate
him. He pointed to the fact that both he and Harris were terminated based on the failure
to report the missing book, but Guerrero was not. Instead, Guerrero was suspended
without pay for three consecutive workdays. Kerr (male) and Harris (female) are both
Black. Both are also older employees. Kerr was seventy-three at the time of his
termination and Harris was sixty-seven years old at the time of her termination. Kerr
points to the contrary facts with respect to Guerrero, an Asian woman in her forties at the
time at issue.17
To establish a violation of the TCHRA, a plaintiff must show that he or she was (1)
a member of the class protected by the TCHRA, (2) qualified for his or her employment
position, (3) terminated by the employer, and (4) treated less favorably than similarly
situated members of the opposing class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592
17 During her deposition in April 2021, Guerrero stated she is of Filipino descent and, at the time of
her deposition, was fifty-one years old. She testified she was still employed with VSU, however, in a
different role. The record shows that as of September 30, 2016, VSU had 138 employees. Of those, forty-
eight (34.78%) were White, forty-five (32.61%) were Hispanic, forty (28.99%) were Black, four (2.90%) were
Asian/Pacific Islander, and one (0.72%) was American-Indian/Alaskan Native.
15
(Tex. 2008). TDSHS contends Kerr failed to establish the fourth element regarding race
or age discrimination and thus, has not established a prima facie case of discrimination.
As stated above, in order to establish the fourth element, Kerr was required to
submit evidence that he was “treated less favorably than similarly situated members of
the opposing class.” Id. “Employees are similarly situated if their circumstances are
comparable in all material respects, including similar standards, supervisors, and
conduct.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). While
the circumstances do not have to be identical, they must be “nearly identical” and
“[e]mployees with different responsibilities, supervisors, capabilities, work rule violations,
or disciplinary records are not considered to be ‘nearly identical.’” Flores, 612 S.W.3d at
312 (citing Autozone, 272 S.W.3d at 594). See Ysleta Indep. Sch. Dist., 177 S.W.3d at
917 (citations omitted) (employees “are similarly situated if their circumstances are
comparable in all material respects, including similar standards, supervisors, and
conduct”). Additionally, “to establish that employees are ‘comparable in all material
respects,’ a plaintiff must also show ‘that there were no differentiating or mitigating
circumstances as would distinguish . . . the employer’s treatment of them.’” Donaldson
v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 435 (Tex. App.—Houston [1st
Dist.] 2016, pet. denied) (citations omitted). A plaintiff must submit “comparative evidence
that she was treated less favorably than those who did not fit within the protected class.”
Flores, 612 S.W.3d at 311 (citation omitted). Whether “two employees are ‘similarly
situated’ generally presents a question of fact for the jury.” Wallace v. Seton Family of
Hosps., 777 F. Appx. 83, 89 (5th Cir. 2019) (citing Perez v. Tex. Dep’t of Crim. Justice,
Institutional Div., 395 F.3d 206, 214-15 (5th Cir. 2004); George v. Leavitt, 407 F.3d 405,
16
414, 366 U.S. App. D.C. 11 (D.C. Cir. 2005) (quoting Graham v. Long Island R.R., 230
F.3d 34, 39 (2d Cir. 2000)).
As support for his position that he has met his burden, Kerr states in his pleadings
below that he is a Black man in his seventies. He alleged he was treated less favorably
than Guerrero, an Asian woman in her forties. He argued he was subjected to disparate
treatment due to his age and race as shown by the fact that his employment was
terminated while Guerrero was merely suspended for three workdays. He further
asserted that Guerrero had the same supervisor and reporting duties as he but did not
expressly argue the two had exactly the same job duties or same position or were required
to adhere to the same work standards. He essentially argued that because they each
had the same duty to report missing books and had similar manager titles and reported
to the same person, the two were “similarly situated” as set forth under the requisite law.18
While we agree that both employees had the same duty to report the missing
book19 and indeed both held manager titles and reported to the same supervisor, we
disagree that the two were sufficiently similarly situated as required by law. Guerrero had
worked with the State for twenty years and at the time, was a Project Manager IV, and
was the VSU’s business modernization director. She testified she “did not have formal
job duties” but that her duties were “simply conveyed” to her by House. According to the
record, Guerrero was responsible for the coordination and oversight of planning and
18 In Kerr’s response to the NOPDA, he stated he had “served in management or supervisory roles
since 1981 and have never, ever been subject to any disciplinary action what-so-ever, not even a reprimand
in all of those years.”
19
The record indicates that a number of employees with differing work responsibilities and titles
possessed the same duty to report missing books.
17
initiation of projects for VSU. She supervised four non-management staff who were
responsible for human resources, facilities management, IT, and budget related tasks.
She was also the “functional manager for the contract between TDSHS/VSU and the
Social Security Administration . . . [she was] or should have been aware that this contract
required VSU/TDSHS to notify the Social Security Administration (SSA) ‘immediately’
about any lost, or possibly lost, ‘personally identifiable information’ (PII).” During the
hearing, TDSHS stated that Guerrero had “a higher salary and a higher ranking than
[Kerr],” but Guerrero testified in her deposition that she did not know whether that was
true.
Kerr, on the other hand, had worked with the State for some thirty-five years, was
the Deputy State Registrar, and served as second-in-command to Harris. In that role, he
was responsible, along with Harris, for the control and oversight of VSU. He was
responsible for the management and oversight of the sales, supplemental changes, and
security of vital records and the facilities which housed them. Cole testified he believed
Kerr had a “significant responsibility in raising any security concerns [regarding the books]
that he had.” TDSHS also points out that Guerrero was an at-will employee with no
grievance rights; whereas, Kerr was not an at-will employee and had grievance rights,
which he exercised. See Flores, 612 S.W.3d at 312 (“[e]mployees who hold different jobs
are not similarly situated . . .”). We also note that the Position Statement concerning
Kerr’s EEOC charge contains the statement, “[t]he individual [Kerr] compares himself to
is not similarly situated.”
Furthermore, as to conduct, TDSHS argues Kerr’s conduct and Guerrero’s conduct
were different with regard to the reporting of the missing book. Markedly, when Guerrero
18
discovered the missing book, she discussed it with Harris on two occasions.20 She again
discussed it during her meeting with House and General Counsel for TDSHS. Kerr
admittedly did not mention the missing book to Harris because, according to him, Harris
was already aware of it and he believed there was no reason for him to report it. While
we acknowledge Guerrero’s testimony that she discussed the missing book when asked
about it in a meeting concerning her stress levels, she nevertheless discussed the book
with her supervisor, something Kerr did not do. The record indicates that at least two
employees reported to Kerr that the book was missing. Yet, Kerr admits he did not report
the missing book because he “would have assumed the book had been found.”
According to documentation in the record, because Guerrero reported the missing
book and House did not want to discourage employees from doing so in the future, he
determined suspension without pay was appropriate for Guerrero. Guerrero’s actions
were specifically cited as the reason for the differential treatment from that of Kerr. See
Hous. Cmty. Coll. v. Lewis, No. 01-19-00626-CV, 2021 Tex. App. LEXIS 5146, at *25
(Tex. App.—Houston [1st Dist.] June 29, 2021, no pet.) (mem. op.) (citing Haynes v.
Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“to establish that
employees are ‘comparable in all material respects,’ a plaintiff ‘must produce evidence
that the plaintiff and comparator . . . engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
20 The record shows that on July 31, 2013, Guerrero “personally met with Geraldine Harris and
notified her regarding the missing book.” Guerrero provided Harris with the volume number of the book
and her actions in attempting to locate it. Guerrero met with Harris a second time after the book remained
missing. Guerrero asked Harris for further direction and Harris said, “I suppose this is something we need
to report to OIG?” Guerrero responding by telling Harris that she was reporting the matter to her. Guerrero
stated she believed Harris’s question to be “odd” because she thought she was not the person to determine
whether to notify OIG. Rather, Harris, as State Registrar, should have known the protocol for reporting.
19
employer’s treatment of them for it’”)). See also McKenna v. Baylor Coll. of Med., No. 01-
15-00090-CV, 2016 Tex. App. LEXIS 4460, at *13 (Tex. App.—Houston [1st Dist.] Apr.
28, 2016, no pet.) (mem. op.) (“If the ‘difference between the plaintiff’s conduct and that
of those alleged to be similarly situated accounts for the difference in treatment received
from the employer,’ the employees are not similarly situated.”) (citing Lee v. Kan. City S.
Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Wallace v. Methodist Hosp. Sys., Inc.,
271 F.3d 212, 221-22 (5th Cir. 2001)); Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177,
1180 (5th Cir. 1990) (per curiam) (plaintiff’s burden was “to show that the misconduct for
which she was discharged was nearly identical to that engaged in by a male employee
whom [the company] retained”). We note also that courts have found that “[m]anagement
does not have to make proper decisions, only non-discriminatory ones.” Donaldson, 495
S.W.3d at 436 (citing Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 478 (5th Cir.
2005)).
Given these facts, we find that Kerr failed to establish Guerrero was “similarly
situated” to him under nearly identical conduct and circumstances. As such, he has failed
to establish that he was treated less favorably than similarly situated members of the
opposing class. Because Kerr has been unable to establish this fourth element of a cause
of action under the TCHRA, TDSHS’s immunity was not waived. AutoZone, Inc., 272
S.W.3d at 592; TEX. LABOR CODE ANN. § 21.254. Consequently, the trial court erred in
denying TDSHS’s plea to the jurisdiction. We sustain TDSHS’s first issue.
20
ISSUE TWO—STATED REASONS FOR TERMINATION WERE PRETEXT FOR RACE OR AGE
DISCRIMINATION
Furthermore, because Kerr failed to meet his burden to create a fact issue on his
prima facie case of race or age discrimination, the burden never shifted to TDSHS to
prove a legitimate, nondiscriminatory reason for suspending or terminating Kerr.
Consequently, we need not address the arguments regarding the remaining aspects of
the McDonnell Douglas framework. See Flores, 612 S.W.3d at 312 (citing Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207(1981) (noting burden shifts to defendant only “if the plaintiff succeeds in proving
the prima facie case”)). See also Dallas Indep. Sch. Dist. v. Allen, No. 05-16-00537-CV,
2016 Tex. App. LEXIS 13650, at *18-19 (Tex. App.—Dallas Dec. 22, 2016, pet. denied)
(mem. op.). However, in the event it were determined upon further appeal that a prima
facie case was established, we find it appropriate to address TDSHS’s second issue. Via
that issue, TDSHS contends that even if Kerr did establish a prima facie case of
discrimination based on race or age, he did not overcome rebuttal evidence by
establishing that TDSHS’s stated reasons for termination were mere pretext.
Kerr contended that TDSHS’s reason for terminating his employment was pretext
because Guerrero did not actually report the missing book but simply answered questions
about it when asked. Thus, Kerr argued, neither Guerrero nor he properly reported the
missing book, meaning they each engaged in the same misconduct but were treated
differently. Furthermore, he contends that TDSHS did not truly investigate the matter and
that it simply targeted Harris and then himself, showing the termination of his employment
was due to discrimination on the basis of race and/or age.
21
If an employee can establish a prima facie case of discrimination, “a rebuttable
presumption of discrimination arises, which can alone sustain a discrimination claim.”
Univ. of Tex. Health Sci. Ctr. at Hous. v. McNeely, No. 06-21-00041-CV, 2021 Tex. App.
LEXIS 8619, at *5 (Tex. App.—Texarkana Oct. 26, 2021) (mem. op.) (citations omitted).
But the employer can defeat this presumption merely by producing evidence of a
legitimate, nondiscriminatory reason for the disputed employment action. Id. (citations
omitted). “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. (citations omitted). See Democratic
Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 308 (Tex. App.—Houston [1st Dist.] 2020, no
pet.) (“if the employer rebuts the presumption of discrimination, the burden of production
shifts back to the employee to show that the employer’s stated reason was a pretext for
discrimination”). For that reason, “when jurisdictional evidence negates the prima facie
case or . . . rebuts the presumption it affords, some evidence raising a fact issue on
retaliatory intent is required to survive a jurisdictional plea.” McNeely, 2021 Tex. App.
LEXIS 8619 at *5 (citing Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 764). “In both
direct-and circumstantial-evidence cases, the burden of persuasion remains at all times
with the employee.” McNeely, 2021 Tex. App. LEXIS 8619, at *5-6 (citing Hartranft v. UT
Health Sci. Ctr.-Houston, No. 01-16-01014-CV, 2018 Tex. App. LEXIS 4679, at *31 (Tex.
App.—Houston [1st Dist.] June 26, 2018, no pet.) (mem. op.) (citing McDonnell Douglas
Corp., 411 U.S. at 802).21
21 Cases have held that a plaintiff is only required to raise a fact issue as to whether discrimination
was “a motivating factor” in the decision to terminate employment. McKenna, 2016 Tex. App. LEXIS 4460,
at *19 (citations omitted). See Hernandez v. Grey Wolf Drilling, L.P., 350 S.W.3d 281, 284 (Tex. App.—
San Antonio 2011, no pet.) (citing Quantum Chem., 47 S.W.3d at 480). However, a recent case stated
22
Assuming Kerr stated a prima facie case based on termination on the basis of race
or age, any presumption raised by that has been rebutted because TDSHS produced
evidence of misconduct establishing performance reasons for terminating Kerr’s
employment, i.e., failure to properly report the missing vital statistics book. See Alamo
Heights Ind. Sch. Dist., 544 S.W.3d at 792 (“The issue is whether the employer’s
perception of the problems—accurate or not—was the real reason for termination.”). It
was Kerr’s burden to raise a fact issue that this explanation was a pretext and that he
would not have been terminated but for his race or age. See Alamo Heights Ind. Sch.
Dist., 544 S.W.3d at 782; Waggoner v. Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (the
real issue is whether the employer reasonably believed the misconduct occurred and
acted on it in good faith or rather, whether the employer did not actually believe the
misconduct but instead used it as a pretext for an otherwise discriminatory dismissal).
In the matter before us, Kerr failed to raise a fact issue or produce any evidence
that TDSHS’s reasons for his termination were false or that the true reason for his
termination was based on his race and/or age. First, the record contains evidence that
Guerrero did report the missing book to Harris in 2013, meeting with her twice. This
occurred before the conversation with General Counsel and House, during which
Guerrero was asked about the missing book. Second, nothing in the record before us
shows that TDSHS terminated Kerr for any reason other than his failure to properly and
timely report the missing vital statistics book. Kerr points to TDSHS’s allegations that the
“evidence of age as a motivating factor is not an element of the prima facie case; rather, it is the result. In
other words, the plaintiff’s establishment of a prima facie case leads to the inference that age is a motivating
factor for the adverse employment decision because courts presume that the defendant’s acts, if otherwise
unexplained, are more likely than not motivated by impermissible factors such as age.” City of Richland
Hills v. Childress, No. 02-20-00334-CV, 2021 Tex. App. LEXIS 7684, at *12 (Tex. App.—Fort Worth Sep.
16, 2021, no pet.) (mem. op.) (citations omitted).
23
missing book was a privacy incident that could have led to the commission of fraud but
says there is no evidence the information was used in such a manner. Even if that were
true, as it appears to be, that fact does not create a factual dispute as to whether TDSHS
acted in good faith when it terminated Kerr on that basis. See Hicks, 2021 U.S. Dist.
LEXIS 220820, at *7-8 (no evidence of pretext because plaintiff’s evidence did not create
a dispute of fact as to employer’s belief that plaintiff had violated its workplace safety
policies). The Position Statement concerning Kerr’s EEOC charge states that “[o]ther
than [Kerr’s] beliefs and perceptions, he provides no evidence that actions taken were
based on extraneous factors such as race or age.” We believe the same is true here.
Kerr has not presented evidence sufficient to connect his dismissal to his race or age in
any way. As such, even if Kerr did establish a prima facie case of discrimination based
on race or age (which we have previously rejected as set forth above), he did not
overcome TDSHS’s rebuttal evidence by establishing that its stated reasons for
termination were mere pretext. Accordingly, if we were to reach the issue, we would
sustain TDSHS’s second issue.
APPELLEE’S MOTION FOR DAMAGES
Pending before this court is Kerr’s post-submission Motion for Damages for
Frivolous Appeal. By said motion, he requests that we award him damages in the form
of an award of costs and fees incurred in responding to and defending this appeal
because he feels TDSHS “crossed the line into bad faith” by appealing the trial court’s
denial of its plea to the jurisdiction. Without commenting further on the merits thereof, the
disposition of TDSHS’s issues adequately addresses those claims. Kerr’s motion is
denied.
24
CONCLUSION
Having sustained TDSHS’s appellate issues, we reverse the trial court’s order
denying TDSHS’s plea to the jurisdiction and render judgment granting that plea.
Patrick A. Pirtle
Justice
Quinn, C.J., joins the majority’s discussion and disposition of the first issue and concurs
in the result.
Doss, J., concurring.
25