Opinion issued August 26, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00830-CV ——————————— DAVID DEVILLE, Appellant V. THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellee
On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2017-46576
OPINION
Appellant David Deville sued his former employer—The University of Texas
M.D. Anderson Cancer Center (“M.D. Anderson”)—for disability discrimination
under the Texas Commission on Human Rights Act (“TCHRA”) on the theory that he was terminated less than three months after returning from disability leave
following a stroke. M.D. Anderson filed a plea to the jurisdiction, asserting that it
retained sovereign immunity from suit because Deville did not plead a prima facie
case of disability discrimination despite having an adequate opportunity to do so.
The trial court granted M.D. Anderson’s plea and dismissed Deville’s suit.
Deville appeals on the grounds that (1) he was not required to plead a prima
facie case at the pleadings stage in order to trigger the waiver of sovereign immunity
under the TCHRA; and (2) in the alternative, he satisfied his burden to plead a prima
facie case of disability discrimination. We hold that Deville was required to plead a
prima facie case of disability discrimination to trigger a waiver of M.D. Anderson’s
sovereign immunity, and Deville carried his pleading burden in this case. We reverse
and remand for further proceedings.
Background
Unless the party filing a plea to the jurisdiction has challenged and
conclusively negated a jurisdictional fact pled by the plaintiff, we must assume the
fact to be true for purposes of our jurisdictional analysis. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Jones v. City of Dallas, 310
S.W.3d 523, 529 (Tex. App.—Dallas 2010, pet. denied). Because M.D. Anderson
has not attempted to conclusively negate the facts that Deville pleaded at this
juncture, we recount the facts as Deville pleaded them.
2 M.D. Anderson hired Deville as the Director of the Financial Clearance
Center on December 7, 2015. He reported to Angela Bailey, the Executive Director.
Two weeks later, on December 21, Deville was admitted to the hospital. He suffered
a hemorrhagic stroke the following day, which required him to take disability leave
for the next three months. On March 21, 2016, Deville returned to work with
minimal restrictions on his ability to perform his job duties.
When Deville returned to work, he could perform the essential functions of
his job, but M.D. Anderson subjected him to less favorable terms and conditions of
employment. For example, Bailey did not notify Deville of changes to his
department and direct reports, went out of her way to criticize his work performance,
and excluded him from meetings with the other director and a consulting group.
On May 10, 2016, Bailey issued Deville a verbal warning regarding his work
performance, but she was vague and failed to give specific examples of problematic
performance. On May 18, Bailey issued Deville a written “probationary warning”
letter, stating that continued performance issues could result in termination of his
employment. The written warning contained no specific examples of problematic
performance. Instead, it identified duties contained in Deville’s job description and
alleged that he had not “demonstrated the ability to perform” these duties during the
eight days since Bailey’s verbal warning.
3 Deville did not have an opportunity to address Bailey’s concerns. The next
day, on May 19, Deville experienced symptoms similar to those that he experienced
during his stroke, causing him to take a second medical leave until May 31, 2016.
He returned to work on June 1. M.D. Anderson terminated Deville’s employment on
June 3, 2016.
Deville sued M.D. Anderson for disability discrimination in violation of the
TCHRA.1 See TEX. LAB. CODE § 21.051. M.D. Anderson filed an answer and a plea
to the jurisdiction. M.D. Anderson asserted that it was entitled to sovereign
immunity because Deville had not alleged facts supporting the final element of a
prima facie disability discrimination claim—i.e., that he was treated less favorably
than non-disabled employees or that he was replaced by a non-disabled employee.
M.D. Anderson did not challenge the allegations that Deville was disabled or
regarded as disabled. Nor did M.D. Anderson contest any of the jurisdictional
allegations in Deville’s petition.2 Deville responded to M.D. Anderson’s plea by
1 Deville also asserted claims for retaliation and discrimination for failure to provide reasonable accommodations under the TCHRA, see TEX. LAB. CODE §§ 21.055, 21.128(a), but he “argues only his disability discrimination claim in this appeal.” 2 M.D. Anderson attached an affidavit from Bailey to its plea but did not rely on the affidavit or other evidence in challenging Deville’s discrimination claim. Bailey’s affidavit summarized the sequence of events of Deville’s hiring through his termination, stated that Deville “was not meeting [Bailey’s] expectations” for his position despite her “feedback, coaching, and reminders regarding his performance and [her] expectations,” and stated that it was Bailey’s decision to terminate Deville’s employment.
4 arguing that he had sufficiently “alleged that he was treated less favorably and
subjected to different terms and conditions than non-disabled employees.” Deville
also amended his petition to add new factual allegations.
In its reply, M.D. Anderson argued for the first time that “Deville must
identify a comparator” by name to whom he could compare his treatment and that
the comparator could not be himself. M.D. Anderson contended that Deville’s
pleadings relied solely on himself as a comparator and that his “[f]ailure to allege
that he was treated less favorably than non-disabled employees or that he was
replaced by non-disabled employees is fatal to his prima facie case.”
On December 7, 2017, the trial court heard oral argument on M.D. Anderson’s
plea. M.D. Anderson maintained that Deville had the burden to identify a comparator
who was treated more favorably than he was treated, but he had only identified
himself as a comparator, which was insufficient as a matter of law. Deville
acknowledged that he pleaded “that there’s a comparator” and that he “was treated
less favorably than non-disabled employees,” but he contended that, prior to
conducting discovery, “there’s no way to know the specific people that would
qualify as comparators.” He further contended that he could plead himself as his own
comparator by alleging that “he was treated less favorably after he was perceived or
actually had a disability than he was before” the disability.
5 After waiting more than a year for a ruling on its plea, M.D. Anderson filed a
petition for writ of mandamus in this Court seeking to compel the trial court to rule
on its plea to the jurisdiction, and the Court conditionally granted the writ. See
generally In re Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00201-CV, 2019
WL 3418567 (Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding). The
trial court then signed an order granting M.D. Anderson’s plea to the jurisdiction and
dismissing Deville’s claims with prejudice. This appeal followed.
Plea to the Jurisdiction
In his sole issue with multiple subparts, Deville contends that the trial court
erroneously dismissed his TCHRA disability discrimination claim. He argues that
he had no obligation to plead a prima facie case of discrimination because the prima
facie requirement is an evidentiary standard, not a pleading standard. Nonetheless,
Deville argues that he did plead a prima facie case of discrimination by alleging facts
demonstrating that M.D. Anderson treated him less favorably shortly after he
became disabled (or regarded as disabled).
M.D. Anderson argues that Deville could not plead a prima facie case of
discrimination without naming a comparator employee who was treated less
favorably than Deville was treated. According to M.D. Anderson, Deville cannot
satisfy the prima facie case requirement by contrasting M.D. Anderson’s treatment
6 of Deville before his hemorrhagic stroke with M.D. Anderson’s treatment of him
after his stroke.
A. Standard of Review
It is undisputed that M.D. Anderson, as a governmental entity, enjoys
sovereign or governmental immunity from suit unless the Legislature has waived its
immunity. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018); see also Bansal v. Univ. of Tex. M.D. Anderson Cancer Ctr., 502 S.W.3d 347,
353 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). When the Legislature has
not waived a governmental entity’s immunity, trial courts lack subject matter-
jurisdiction over claims against the entity. Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 636 (Tex. 2012).
A governmental entity can raise its immunity from suit in a plea to the
jurisdiction, and we review de novo the trial court’s ruling on the plea. Alamo
Heights, 544 S.W.3d at 770; Miranda, 133 S.W.3d at 228. A plea to the jurisdiction
may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo
Heights, 544 S.W.3d at 770. When, as here, a plea challenges only the pleadings,
“we determine if the plaintiff has alleged facts affirmatively demonstrating subject-
matter jurisdiction.” Id. We “construe the pleadings in favor of the plaintiff and look
to the pleader’s intent.” Harris Cty. v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018)
7 (quoting Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993)).
B. The TCHRA and Its Impact on Sovereign Immunity
The TCHRA prohibits employers from discriminating against individuals
“because of” disability. TEX. LAB. CODE § 21.051. Specifically, the TCHRA
prohibits an employer, because of disability, from “discharg[ing] an individual” or
“discriminat[ing] in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment.” Id.
§ 21.051(1). This prohibition “applies only to discrimination because of or on the
basis of a physical or mental condition that does not impair an individual’s ability to
reasonably perform a job.” Id. § 21.105. The TCHRA waives a governmental
employer’s immunity for TCHRA claims asserted against the employer, “but only
when the plaintiff states a claim for conduct that actually violates the statute.” Alamo
Heights, 544 S.W.3d at 770.
In discrimination cases under the TCHRA, “Texas jurisprudence parallels
federal cases construing and applying equivalent federal statutes, like Title VII” of
the Civil Rights Act of 1964. Id. at 781. Because the TCHRA was enacted to
“provide for the execution of the policies embodied in Title 1 of the Americans with
Disabilities Act of 1990 and its subsequent amendments” (“ADA”), we look to
federal case law construing provisions of the ADA for guidance in construing the
8 TCHRA. TEX. LAB. CODE § 21.001(3) (citing 42 U.S.C. §§ 12101–213); see 42
U.S.C. § 12112(a) (prohibiting discrimination “against a qualified individual on the
basis of disability in regard to” the “discharge of employees” and “other terms,
conditions, and privileges of employment”).
As in federal disability discrimination cases, a plaintiff may prove a TCHRA
violation by either direct or circumstantial evidence. Alamo Heights, 544 S.W.3d at
781–82. “Because smoking guns are hard to come by, the three-part McDonnell
Douglas burden shifting framework enables an employee to establish discrimination
with circumstantial evidence.” Id. at 782. This burden-shifting framework was
propounded in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and was
later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Under the framework, the employee bears the initial burden to establish a
prima facie case of discrimination by pleading the basic facts that make up the
elements of the claim. Mission Consol., 372 S.W.3d at 634, 637. If the employee
meets this “minimal” initial burden, he is entitled to a presumption of discrimination
that, if unrebutted, will suffice to support a finding of liability. Id. at 634. Once the
employee establishes a prima facie case of discrimination, the burden shifts to the
employer to negate or rebut the plaintiff’s prima facie case, which generally requires
evidence articulating “some legitimate, nondiscriminatory reason” for the
9 employment decision. Id. (quoting McDonnell Douglas, 411 U.S. at 802); see Alamo
Heights, 544 S.W.3d at 782.
C. Analysis
M.D. Anderson’s plea to the jurisdiction argued that Deville’s undisputed
factual allegations were legally insufficient to establish the trial court’s subject-
matter jurisdiction over his disability discrimination claim. See Alamo Heights, 544
S.W.3d at 770 (stating that plea may challenge jurisdiction on pleadings alone, on
existence of jurisdictional facts, or both). M.D. Anderson attached evidence to its
plea, but it did not rely on this evidence to challenge the existence of Deville’s
jurisdictional allegations regarding his discrimination claim. Nor does M.D.
Anderson argue on appeal that its evidence negated Deville’s allegations. Because
M.D. Anderson solely challenged Deville’s pleadings, we need only determine
whether Deville’s undisputed allegations affirmatively demonstrate subject-matter
jurisdiction. Id. at 770, 783.
1. Deville’s burden to plead facts affirmatively demonstrating subject-matter jurisdiction
Deville first argues that he was not required to plead a prima facie case of
discrimination to trigger the Legislature’s waiver of M.D. Anderson’s sovereign
immunity under the TCHRA. This argument is foreclosed many times over.
The Texas Supreme Court has held that the TCHRA waives a governmental
employer’s immunity for TCHRA claims asserted against the employer, “but only
10 when the plaintiff states a claim for conduct that actually violates the statute.” Id. at
770. It is well settled that “when the Legislature conditions an immunity waiver on
the existence of a statutory violation, the elements of the violation are jurisdictional
facts.” Id. at 784.
Consequently, “a plaintiff must plead the elements of her statutory cause of
action—here the basic facts that make up the prima facie case—so that the court can
determine whether she has sufficiently alleged a TCHRA violation” and, thus,
waived the governmental employer’s immunity. Mission Consol., 372 S.W.3d at
637. When a plaintiff proceeds along the McDonnell Douglas burden-shifting
framework, “the prima facie case is the necessary first step to bringing a
discrimination claim under the TCHRA” against a governmental employer. Id. The
Texas Supreme Court did not mince words about the consequences of a plaintiff’s
failure to demonstrate a prima facie case: the plaintiff “never gets the presumption
of discrimination and never proves his claim.” Id. That “failure also means the court
has no jurisdiction and the claim should be dismissed.”3 Id.
3 Notably, this jurisdictional showing does not require evidentiary support or implicate the last two steps of the McDonnell Douglas burden-shifting evidentiary framework unless the employer presents evidence negating one of those basic facts pleaded by the plaintiff. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770, 783 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637–38 (Tex. 2012).
11 Deville does not analyze any of these cases. Instead, he invokes the United
States Supreme Court’s statement in Swierkiewicz v. Sorema N.A. that the “prima
facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” See 534 U.S. 506, 510 (2002). In Mission Consolidated Independent
School District v. Garcia, the Texas Supreme Court explained why a plaintiff
nevertheless must plead a prima facie case when asserting a TCHRA claim against
an entity with sovereign or governmental immunity:
Chapter 21 of the Labor Code waives immunity from suit only when the plaintiff actually states a claim for conduct that would violate the TCHRA. The section waiving immunity from suit, Section 21.254, provides that after satisfying certain administrative requirements, “the complainant may bring a civil action.” A “complainant” is defined in the TCHRA as “an individual who brings an action or proceeding under this chapter.” Thus, . . . it necessarily follows that a plaintiff must actually “bring[] an action or proceeding under this chapter” in order to have the right to sue otherwise immune governmental employers.
372 S.W.3d at 637 (internal citations omitted).
To give effect to this statutory text, the plaintiff “must plead the elements of
her statutory cause of action—here the basic facts that make up the prima facie
case—so that the court can determine whether she has sufficiently alleged a TCHRA
violation . . . .” Id. This inquiry “is necessary because if TCHRA plaintiffs were
allowed to stand on talismanic allegations alone, the constraining power of pleas to
the jurisdiction would be practically eliminated.” Id. at 638.
12 Thus, we conclude that Deville was required to plead facts establishing a
prima facie case of disability discrimination in order to demonstrate the trial court’s
subject-matter jurisdiction over his discrimination claim against M.D. Anderson.
2. Deville’s prima facie discrimination claim
Deville argues in the alternative that he satisfied his burden to plead a prima
facie case of discrimination. M.D. Anderson responds that Deville could not carry
his burden of alleging a prima facie case of disability discrimination without
pleading that he was treated less favorably than non-disabled employees or that he
was replaced by non-disabled employees. According to M.D. Anderson, Deville
could not satisfy his pleading burden by alleging that his supervisor treated him less
favorably after he returned to work following his stroke than he was treated before
he became disabled. Rather, M.D. Anderson contends that Deville was required to
identify a specific employee comparator in his pleadings.
Initially, M.D. Anderson assumes that a prima facie discrimination showing
always has four elements: (1) the plaintiff is disabled or regarded as disabled; (2) he
is qualified for the job; (3) he was subjected to an adverse employment action on
account of his disability; and (4) he was replaced by or treated less favorably than
non-disabled employees. See Donaldson v. Tex. Dep’t of Aging & Disability Servs.,
495 S.W.3d 421, 434 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). But
“[c]ourts have recognized the flexibility inherent in the McDonnell Douglas formula
13 and that the precise elements of a prima facie case will vary depending on the
circumstances.” Id. at 436. The “precise requirements of a prima facie case can vary
depending on the context and were ‘never intended to be rigid, mechanized, or
ritualistic.’” Swierkiewicz, 534 U.S. at 512 (quoting Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978)).
The fourth element—that a plaintiff was treated less favorably than or
replaced by a non-disabled employee—is not universal. In E.E.O.C. v. LHC Group,
Inc., the Fifth Circuit declined to require such pleadings or proof in an ADA
disability termination case. 773 F.3d 688, 695–97 (5th Cir. 2014) (stating that
requiring employees to prove termination was because of disability and to prove
disfavored treatment requires employees to prove causation twice, which is
inconsistent with McDonnell Douglas and underlying purpose of anti-discrimination
legislation—“namely, to remove ‘artificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidiously to discriminate on the basis of
racial or other impermissible classification’”) (quoting McDonnell Douglas, 411
U.S. at 801). The court stated that the “requirement that a plaintiff prove she was
replaced by or treated less favorably than non-disabled employees was likely
imported from McDonnell Douglas—a case focused on discriminatory hiring, not
termination.” Id. at 695. The court explained:
In the McDonnell Douglas context, where the employer and the applicant have only a handful of interactions before the allegedly 14 discriminatory hiring decision is made, the subsequent history of the open position is highly relevant to a finding of discrimination. By contrast, where termination is at issue, plaintiffs may draw on their employment history to prove a nexus between their protected trait and their termination. Therefore, rather than articulating the standard for a prima facie discriminatory-discharge claim, the [requirement that a plaintiff prove she was replaced by or treated less favorably than non- disabled employees] is best understood as providing one possible way to prove nexus between the employee’s disability and her termination.
Id. at 696.
The court went on to hold that a plaintiff could establish a prima facie case of
disability discrimination simply by proving that (1) she has a disability; (2) she is
qualified for the job she held; and (3) she was “subject to an adverse employment
decision on account of her disability.” Id. at 697 (quoting Zenor v. El Paso
Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)). In so holding, the court
noted that “the other circuits have overwhelmingly required plaintiffs to prove their
termination was because of their disability rather than provide evidence of disfavored
treatment or replacement.” Id. at 696 (citing Demyanovich v. Cadon Plating &
Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014), Smothers v. Solvay Chems., Inc.,
740 F.3d 530, 544 (10th Cir. 2014), Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055,
1060 (7th Cir. 2014), McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013),
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 (1st Cir. 2012), and Reynolds v.
Am. Nat’l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012)).
15 Applying these authorities, we conclude that Deville was not required to
identify a non-disabled employee who was treated more favorably than he was treated
in order to plead a prima facie case. Cf. Palasota v. Haggar Clothing Co., 342 F.3d
569, 575 (5th Cir. 2003) (holding that, under federal Age Discrimination in
Employment Act, “[t]reating younger workers more favorably is not the only way to
prove age discrimination”). Instead, Deville pleaded an amalgam of other facts—
particularly the suspicious timing of his disciplinary write-up and termination—that
can give rise to an inference of discrimination when taken together. See Cruz v.
R2Sonic, LLC, 405 F. Supp. 3d 676, 692 (W.D. Tex. 2019) (“Cruz has introduced
countervailing evidence that she was in fact fired on account of her disability. First,
there is the timing.”) (internal citations omitted).
Here, less than two months elapsed between the time that Deville returned to
work following his medical leave from a stroke and Bailey’s first verbal warning to
him. Deville was then given less than a week to course correct before Bailey issued
him a written warning threatening termination of his employment, in part based on
his failure to demonstrate an “ability to perform” duties contained in his job
description in the mere eight days since her verbal warning. Deville was then
terminated only two days after his second medical leave. All told, Deville was fired
less than three months after returning to work from his first leave. All the while, he
was no longer permitted to attend meetings with Bailey and the other director and
16 consultants when he was in the office, he was not notified of changes to his
department, and his work performance was criticized.
M.D. Anderson has not put forth evidence disputing Deville’s allegations, so
we must take them as true. His allegations raise a permissible inference of
discrimination. In cases where an employee becomes disabled or regarded as disabled
after hiring, courts have credited evidence that an employer suddenly started treating
the employee less favorably than before the disability came to light.4 See E.E.O.C. v.
Chevron Phillips Chem. Co., LP, 570 F.3d 606, 623–24 (5th Cir. 2009) (stating that
jury could reasonably find that management immediately reacted to announcement
of employee’s disability recurrence and need for medical leave by looking for reasons
to fire her because of her disability, accommodation request, or both); Cruz, 405 F.
Supp. 3d at 693 (“If her disability had nothing to do with her termination, why was
she fired two months after returning to work full-time despite never being formally
reprimanded in 18 months before her injury?”); Donaldson v. Trae-Fuels, LLC, No.
3:18CV00097, 2019 WL 6646735, at *9, 11 (W.D. Va. Dec. 5, 2019) (crediting proof
4 Courts have largely conducted this analysis without referring to the plaintiff as his own comparator. By describing Deville’s allegations as “alleging oneself as one’s comparator,” M.D. Anderson attempts to fit a square peg into a round doctrinal hole. For the reasons that the Fifth Circuit gave in E.E.O.C. v. LHC Group, Inc., Deville can make his prima facie case using proof of his disparate treatment before and after the discovery of his disability. See 773 F.3d 688, 695–97 (5th Cir. 2014). Using a comparator is just one option for proving a disability discrimination claim, and Deville need not utilize it. This conceptual mismatch likely explains the alleged “rarity” of the argument that a plaintiff can use himself as his own comparator.
17 that plaintiff “was terminated three months after he was diagnosed with pancreatic
cancer and one month after he began chemotherapy”); Meinelt v. P.F. Chang’s China
Bistro, Inc., 787 F. Supp. 2d 643, 653 (S.D. Tex. 2011) (denying summary judgment
in part based on “temporal coincidence” of firing employee three days after employee
disclosed his tumor to employer); Schrack v. R+L Carriers, Inc., No. 1:10cv603,
2012 WL 2309365, at *13 (S.D. Ohio June 18, 2012) (concluding that “close
temporal proximity” between employee’s initial termination immediately after
employer first learned of disability and second termination after attempting to return
from medical leave when symptoms were under control as well as evidence
suggesting that employee’s medical condition played role in termination decision
sufficed to establish prima facie case). Here, the brief window between Deville’s
return from medical leave and his termination makes this case similar to Cruz v.
R2Sonic, LLC and Donaldson v. Trae-Fuels, LLC.
M.D. Anderson cites no Texas precedent to the contrary.5 In a previous case to
which M.D. Anderson was also a party, this Court held that M.D. Anderson retained
sovereign immunity from a nurse’s age-discrimination suit. See Univ. of Tex. M.D.
Anderson Cancer Ctr. v. Valdizan-Garcia, No. 01-12-00386-CV, 2012 WL 5545783,
5 Both parties cite to Hart v. City of Austin, No. 03-99-00216-CV, 2000 WL 1228633 (Tex. App.—Austin Aug. 31, 2000, no pet.) (mem. op, not designated for publication). Hart is an unpublished opinion that predates January 1, 2003, and thus has no precedential value. See TEX. R. APP. P. 47.7(b).
18 at *5 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012, no pet.) (mem. op.). There, we
found that the plaintiff could not “establish a prima facie case of discrimination
without evidence, or even an allegation, that younger nurses were disciplined
differently for deficient patient care.” Id. But in that case, the nurse’s discrimination
claims were based solely on her own subjective beliefs. Id. at *4–5. The nurse did not
allege that her employer discovered her age only after she had been hired and
promptly terminated her thereafter.
M.D. Anderson also invokes Texas Department of Aging & Disability Services
v. Loya, which held that an employee had not produced any evidence that she was
treated less favorably than similarly situated males. 491 S.W.3d 920, 925 (Tex.
App.—El Paso 2016, no pet.). But that was not the end of the matter. The court went
on to consider whether other alleged facts could raise a “reasonable inference” of
gender-based discrimination, found the remaining allegations lacking in probative
value, and reversed the trial court’s order denying the Department’s plea to the
jurisdiction. Id. The court did not cut off every avenue to a prima facie case except a
comparator.
Jespersen v. Sweetwater Ranch Apartments is distinguishable as well. See 390
S.W.3d 644 (Tex. App.—Dallas 2012, no pet.). There, the court considered
Jespersen’s claim that her employer discriminated against her based on pregnancy by
replacing her with a non-pregnant woman. Id. at 648–51, 654–55. Jespersen did not
19 argue that she was treated differently after becoming pregnant than before becoming
pregnant, and the court did not mention the issue. See id. at 654–55. The court stated
only that she did not “produce any evidence that she was replaced by someone outside
of her protected class or others similarly situated were treated more favorably” than
she was treated. Id. at 655. The court also found that, even if Jespersen had
established a prima facie case, her employer had articulated legitimate, non-
discriminatory reasons for not reinstating her employment. Id.
Here, Deville alleged what Jespersen did not: that he was treated less favorably
after becoming disabled than he had been treated before becoming disabled.
Moreover, because M.D. Anderson did not rely on evidence supporting its
jurisdictional challenge and did not articulate a legitimate, non-discriminatory reason
for terminating Deville, the burden never switched to Deville to produce any evidence
proving his less favorable treatment. See Alamo Heights, 544 S.W.3d at 783.
In sum, we reaffirm that the elements of a prima facie discrimination claim are
flexible, not a body cast. Deville’s allegations of his less favorable treatment upon
his return to work and his termination shortly thereafter are sufficient to raise a
presumption of disability-based discrimination. Construing the pleadings in Deville’s
favor and looking to his intent in pleading, as we must, we conclude that Deville has
alleged basic facts allowing an inference that he was subjected to an adverse
20 employment decision because of his disability. See Annab, 547 S.W.3d at 612–13;
Alamo Heights, 544 S.W.3d at 770. We sustain Deville’s issue.
Conclusion
We reverse and remand for further proceedings consistent with this opinion.
April L. Farris Justice
Panel consists of Justices Kelly, Guerra, and Farris.