Opinion issued March 6, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00469-CV ——————————— TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES, Appellant V. ESTHER IREDIA, Appellee
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 11-DCV-189589
MEMORANDUM OPINION
The Texas Department of Aging and Disability Services (“DADS”) brings
this interlocutory appeal to challenge the trial court’s denial of its plea to the
jurisdiction on the employment discrimination claims brought by appellee Esther Iredia under Chapter 21 of the Labor Code. 1 In two issues, DADS contends that
the trial court’s denial of the plea was error because Iredia failed to present a prima
facie case of (1) gender discrimination and (2) race/national origin discrimination.
We affirm in part and reverse in part.
Background
Iredia was hired by DADS in 2000 as a member of the direct care staff at the
Richmond State Supported Living Care Center.2 Several months after she began
work, she was promoted to the position of Qualified Mental Retardation
Professional (“QMRP”). Among her responsibilities was the development of
progress plans for the individuals served by the center. In 2007, Kenny Sowemimo
became Iredia’s supervisor and, in 2010, he terminated Iredia’s employment for
allegedly falsifying reports.
On May 2, 2011, Iredia filed suit against DADS alleging sexual harassment
and both racial discrimination and discrimination based upon her national origin.
In her deposition testimony, Iredia addressed the following incidents involving
Sowemimo:
1 TEX. LAB. CODE ANN. § 21.051 (West 2006). 2 The Center provides twenty-four hour campus-based direct services and support to individuals with intellectual and developmental disabilities in a thirteen-county area. See http://www.dads.state.tx.us/services/SSLC/richmond.html. 2 • 2008—Iredia approached Sowemimo to speak to him about a patient transfer, and he said, “[y]ou skinny skeleton. You don’t eat. You know, don’t want you to die here,” and told her to get out of his face;
• Sowemimo told another employee, in Iredia’s presence, that he hated Nigerian women; when Iredia asked how he could hate Nigerian women when he had been born and raised in Nigeria and his mother and sister are Nigerian, he responded that his mother was dead and that he did not speak to his sister;
• 2009—Iredia introduced her son to Sowemimo, who asked Iredia “[d]id you eat today? You so skinny. How can this be your son?”, and asked Iredia’s son, “[i]s this your mom? Is this your mother?”
• When Iredia told Sowemimo that she needed to leave early to pick up a male friend from the airport, Sowemimo responded that no man would want a “skinny bone” like her, except for white people who eat leaves because they do not want to gain weight, and “that’s why her husband left her”;
• Whenever Sowemimo visited Iredia’s office, he typically kicked the door open;
• When Sowemimo saw Iredia taking pizza to her office, he said she was taking it to her children because “they don’t have food to eat”;
• “There is no day . . . that I go to work or Kenny is there that Kenny will not call me names.”
• In the presence of Iredia and her co-workers, Sowemimo said he did not like skinny women but that he liked “fat women,”; he described “when he’s on top of a skinny wom[a]n to the extent he use[] his hand like this (indicating) on his, you know, groin area, that that hurts him when he’s . . . lying on top of a skinny woman”; and
• Sowemimo constantly told Iredia that he was going to fire her before she was terminated.
3 In addition to these incidents, Iredia claimed that on another occasion, one of
the nurses pulled Iredia’s pants leg up to show visiting nursing students how
skinny she was. She also testified that Sowemimo’s treatment of other QMRPs
was more favorable than his treatment of her, noting that they were allowed to
represent the unit in his absence despite Iredia’s seniority.
On April 26, 2013, DADS filed an answer and a plea to the jurisdiction.
Following a hearing on May 20, 2013, the trial court signed an order denying the
plea 3 and DADS timely prosecuted this interlocutory appeal. 4
Discussion
In its first and second issues, DADS contends that the trial court erred in
denying its plea to the jurisdiction because Iredia failed to present a prima facie
case to support her sexual harassment and racial/national origin discrimination
claims. Iredia contends that the trial court properly denied DADS’s plea because
she presented sufficient evidence to create a fact issue regarding jurisdiction.
3 The record before us contains no reporter’s record of the May 20, 2013 hearing. 4 DADS brings this interlocutory appeal pursuant to Texas Practice and Remedies Code section 51.014(a)(8), which permits a governmental unit to appeal a district court’s order denying its plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2012).
4 A. Plea to the Jurisdiction
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). The plaintiff has the burden to allege facts that affirmatively
demonstrate that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the
jurisdiction can be utilized to challenge whether the plaintiff has met his burden of
alleging jurisdictional facts, but it can also raise a challenge to the existence of
jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226–27 (Tex. 2004). Pleadings are construed liberally in favor of the pleader,
and all factual allegations are accepted as true. See id. at 228.
A trial court’s review of a plea to the jurisdiction challenging the existence
of jurisdictional facts mirrors that of a traditional motion for summary judgment.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);
Miranda, 133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The government
defendant is required to meet the summary judgment standard of proof for its
assertion that the trial court lacks jurisdiction; once the defendant meets its burden,
the plaintiff is then required to show that there is a disputed material fact regarding
the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact
question regarding jurisdiction, the trial court must deny the plea to the jurisdiction
5 and leave its resolution to the fact finder. Id. at 227–28. On the other hand, if the
evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a matter of law. Garcia, 372
S.W.3d at 635. An appellate court reviewing a challenge to a trial court’s subject
matter jurisdiction reviews the trial court’s ruling de novo. Miranda, 133 S.W.3d
at 228.
B. Sovereign Immunity and Chapter 21 of the Labor Code
Sovereign immunity deprives a trial court of jurisdiction over suits in which
the state or certain governmental units have been sued unless the state consents to
suit. Garcia, 372 S.W.3d at 636. The Legislature has provided a limited waiver of
sovereign immunity for those employment discrimination and retaliation claims
falling within Chapter 21 of the Texas Labor Code. See TEX. LAB. CODE ANN.
§§ 21.051(1), 21.055 (West 2006) (prohibiting unlawful employment practices by
“employer”); § 21.002(8)(D) (defining “employer” to include a county,
municipality, state agency, or state instrumentality). While a plaintiff must plead
the elements of her statutory cause of action—in this case, the basic facts that make
up the prima facie case—so that the court can determine whether she has
sufficiently alleged a violation under Chapter 21, the plaintiff will only be required
to submit evidence if the defendant presents evidence negating one of those basic
facts. Garcia, 372 S.W.3d at 637 (citing Miranda, 133 S.W.3d at 228).
6 Texas courts look to federal interpretation of analogous federal statutes for
guidance because an express purpose of Chapter 21 is to “provide for the
execution of the policies of Title VII of the Civil Rights Act of 1964 and its
subsequent amendments.” TEX. LAB. CODE ANN. § 21.001(1) (West 2006); see
also NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Under the
burden-shifting framework established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–
26 (1973), the plaintiff must first establish a prima facie case of discrimination or
retaliation. Id. at 802, 93 S. Ct. at 1824. Establishment of the prima facie case in
effect creates a presumption that the employer unlawfully discriminated against
the employee. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.
Ct. 1089, 1094 (1981). If the plaintiff is successful, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477
(Tex. 2001). “The offer of a legitimate reason eliminates the presumption of
discrimination created by the plaintiff’s prima facie showing.” Id. The burden
then shifts back to the plaintiff to show that the employer’s reason was a pretext
for discrimination. McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1826–27.
Although intermediate evidentiary burdens shift back and forth under this
framework, the ultimate burden of persuading the trier-of-fact that the defendant
7 intentionally discriminated against the plaintiff remains at all times with the
plaintiff. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120
S. Ct. 2097, 2106 (2000).
C. Hostile Environment Sexual Harassment
1. Applicable Law
Chapter 21 of the Labor Code provides that it is unlawful for an employer
to discriminate against an employee with respect to compensation or the terms,
conditions, or privileges of employment because of race, color, disability, religion,
sex, national origin, or age. TEX. LAB. CODE ANN. § 21.051 (West 2006). Sexual
harassment is a form of prohibited sex discrimination. Green v. Indus. Specialty
Contractors, Inc., 1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no
pet.); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.—El Paso
1997, pet. denied). Courts have generally categorized sexual harassment claims as
either “quid pro quo” or “hostile work environment.” Soto, 942 S.W.2d at 677–
78.
Here, it is undisputed that this case presents allegations of sexual
harassment based on a hostile work environment. To prevail on a claim involving
a hostile work environment, a plaintiff must show that (1) she was an employee
who belongs to a protected class; (2) she was subjected to unwelcome harassment;
(3) the harassment was based on sex; (4) the harassment affected a term,
8 condition, or privilege of employment; and (5) the employer knew or should have
known of the harassment and failed to take adequate remedial action. Gulf States
Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770 (Tex. App.—Houston [1st Dist.]
2002, no pet.); McMillon v. Tex. Dep’t of Ins., 963 S.W.2d 935, 939 (Tex. App.—
Austin 1998, no pet.). However, if the alleged harassment was perpetrated by a
supervisor with immediate or successively higher authority over the harassed
employee—as is the case here—the employee need only satisfy the first four
elements of the test outlined above. Watts v. Kroger Co., 170 F.3d 505, 509 (5th
Cir. 1999).
To satisfy the fourth element of a hostile environment sexual harassment
claim, a plaintiff must show that the workplace was permeated with discriminatory
intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile
or abusive working environment. See Lauderdale v. Texas Dep’t of Crim. Justice,
512 F.3d 157, 163 (5th Cir. 2007); Waffle House, Inc. v. Williams, 313 S.W.3d
796, 806 (Tex. 2010) (noting abusive environment is created “[w]hen the
workplace is permeated with ‘discriminatory intimidation, ridicule, and insult.’”)
(citation omitted); Garcia v. Schwab, 967 S.W.2d 883, 885 (Tex. App.—Corpus
Christi 1998, no pet.). The work environment must be both objectively and
subjectively offensive—one that a reasonable person would find hostile or abusive
and one that the victim in fact did perceive to be so. City of Houston v. Fletcher,
9 166 S.W.3d 479, 489 (Tex. App.—Eastland 2005, pet. denied). In reviewing a
hostile work environment claim, we consider the totality of the circumstances,
including the frequency of the discriminatory conduct; its severity; whether the
conduct was physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interfered with the employee’s work performance.
Id.; Dillard Dep’t Stores, Inc. v. Gonzales, 72 S.W.3d 398, 407 (Tex. App.—El
Paso 2002, pet. denied).
The focus of our inquiry is whether the cumulative effect of the offensive
behavior is so severe or pervasive that it destroys an employee’s opportunity to
succeed in the workplace. See Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 473
(Tex. App.—Austin 2000, pet. denied) (citing Faragher v. City of Boca Raton, 524
U.S. 775, 787, 118 S. Ct. 2275, 2283 (1998); Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 118 S. Ct. 2257 (1998); Oncale v. Sundower Offshore Servs., Inc., 523
U.S. 75, 118 S. Ct. 998; Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 114 S. Ct.
367, 370–71 (1993); and Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 64 106 S.
Ct. 2399, 2405–06 (1986)). In other words, the sexual harassment is sufficiently
“severe” or “pervasive” as to alter the terms, conditions, or privileges of the
victim’s employment when it can be said to create an “abusive working
environment.” See Harris, 510 U.S. at 24, 114 S. Ct. at 371–72 (Scalia, J.,
concurring) (“‘[A]busiveness’ is . . . the test of whether legal harm has been
10 suffered . . . .”). The critical inquiry is environment: evidence of general work
atmosphere as well as specific instances of hostility or abuse are important. See
Soto, 942 S.W.2d at 678. In making this determination, “single incidents should
not be viewed in isolation because it is the cumulative effect of all offensive
behavior that creates the work environment.” Williams, 313 S.W.3d at 806; see Itz,
21 S.W.3d at 473 (“The critical inquiry is the environment . . . .”) (quotations
omitted).
2. Analysis
DADS challenges the sufficiency of the evidence supporting the fourth
element of Iredia’s hostile environment claim—that is, whether the alleged
harassment by Sowemimo affected a “term, condition, or privilege” of Iredia’s
employment. Specifically, DADS argues that Iredia has failed to present a prima
facie case of sexual harassment because she has not shown that the alleged conduct
was severe or pervasive or that the harassment interfered with her work
performance. Iredia contends that she has presented sufficient evidence to create a
fact issue regarding the fourth element of her hostile environment claim, and, thus,
the trial court has subject matter jurisdiction over her claim.
In her deposition and interrogatory responses, Iredia testified that from 2007
until her termination in 2010, Sowemimo repeatedly called her “skinny,”
“skeleton,” and “skinny bone” in front of her co-workers, and once in front of her
11 son; accused her of not eating and of taking food from an office lunch to her
children at home because they did not have food to eat; after calling her a “skinny
skeleton,” he told her he did not want her to die in his office; told her that no man
would want a “skinny bone” like her and that was the reason her husband had left
her; stated in Iredia’s and her co-workers’ presence that he did not like to have sex
with skinny women because when he lay on top of skinny women his bones rubbed
against their bones and hurt him, but that he liked how it felt to lay on top of fat
women; entered Iredia’s office by kicking the door open; and constantly told Iredia
that he was going to fire her before she was terminated. Iredia also testified that
the only days that Sowemimo did not insult her in front of her co-workers was
when he was not at work, and that she felt scared working in that environment.
We begin by examining the frequency or pervasiveness of Sowemimo’s
alleged conduct. Sowemimo was Iredia’s supervisor from 2007 until he terminated
her employment in 2010. Accepting Iredia’s allegations as true, Sowemimo’s
alleged conduct occurred on a nearly daily basis during an approximately three-
year period. According to Iredia, her only harassment-free days were when
Sowemimo was absent from work. DADS argues that Iredia’s testimony that
Sowemimo’s conduct was ongoing was conclusory and that there is no other
evidence showing that the alleged conduct was pervasive. However, Iredia’s
testimony regarding the frequency of the alleged conduct is sufficient to
12 demonstrate pervasiveness and she was not required to present other evidence.
Further, DADS has not presented evidence to negate this factual allegation. See
Garcia, 372 S.W.3d at 637 (citing Miranda, 133 S.W.3d at 228) (noting that
plaintiff will only be required to submit evidence if defendant presents evidence
negating basic fact of plaintiff’s prima facie case).
DADS also contends that Iredia’s allegations, even if true, cannot be
considered “severe” under controlling standards. We agree. The conduct of which
Iredia complains cannot be considered the sort of objectively severe conduct that
would be deemed to alter the terms, conditions, or privileges of Iredia’s
employment. Other courts have found more egregious uninvited physical and
verbal conduct insufficiently severe to alter terms, conditions, or privileges of
employment. See, e.g., Hockman v. Westward Commc’ns, LLC, 407 F.3d 317,
321–22 (5th Cir. 2004) (plaintiff’s supervisor made sexually suggestive remarks to
her, repeatedly insisted that she be alone with him, remarked on another
employee’s body, brushed up against plaintiff’s breast and behind, once tried to
kiss her, once stood in bathroom doorway while plaintiff was present, and once
swatted plaintiff’s behind with newspaper over one-and-a-half year period);
Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999) (co-
worker touched plaintiff’s arm several times, rubbed arm down to her wrist,
simulated looking up her dress, tried to look down her clothing, and made sexually
13 suggestive comments that included referring to color of her nipples and size of her
thighs); Garcia, 967 S.W.2d at 885, 887 (supervisor stared at and commented on
plaintiff’s breasts, touched his genitals in front of plaintiff, discussed highly
personal and sexual matters with plaintiff, remarked on plaintiff’s appearance, and
repeatedly made sexual references in attempt to sexually arouse plaintiff); Green v.
Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 129, 132–34 (Tex. App.—
Houston [1st Dist.] 1999, no pet.) (supervisor made numerous sexual comments,
including expressing desire to hold “a wet T-shirt contest” with plaintiff as
contestant).
However, sexual harassment may give rise to an abusive work environment
through either its objective severity or its pervasiveness, or some combination of
the two. See Harris, 510 U.S. at 21, 114 S. Ct. 367. The level of objective
severity in harassment necessary to give rise to an objectively hostile work
environment may be said to vary inversely with its pervasiveness, and vice versa.
See Lauderdale, 512 F.3d at 163 (“[T]he test—whether the harassment is severe or
pervasive—is stated in the disjunctive. An egregious, yet isolated incident can alter
the terms, conditions, or privileges of employment . . . . The inverse is also true:
Frequent incidents of harassment, though not severe, can reach the level of
‘pervasive,’ thereby alerting the terms, conditions, or privileges of employment
such that a hostile work environment exists.”) (citations omitted).
14 Several Fifth Circuit decisions are particularly instructive on the issue of
pervasiveness. In a recent en banc decision, the Fifth Circuit found a supervisor’s
sex-based epithets aimed at a subordinate “two-to-three times a day, almost every
day, for months on end,” to constitute sufficient evidence of severe or pervasive
harassment. See E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 461 (5th
Cir. 2013) (en banc). In Farpella–Crosby v. Horizon Health Care, the Fifth
Circuit found that the plaintiff had presented sufficient evidence from which a jury
could have found severe or pervasive harassment where the plaintiff was subjected
to offensive, sex-based comments two to three times per week, some comments
were made in front of co-workers, and the harassing supervisor threatened the
plaintiff with her job on numerous occasions when she asked him to stop making
the comments. 97 F.3d 803, 806 (5th Cir. 1996); cf. E.E.O.C. v. WC&M Enters.,
Inc., 496 F.3d 393, 400 (5th Cir. 2007) (reversing summary judgment in favor of
defendant where plaintiff was subjected to verbal harassment—including
nicknames like “Taliban” and “Arab”— on “a regular basis for a period of
approximately one year”); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000)
(holding that African–American employees who were subjected to variety of racial
slurs over three-year period raised fact issue as to whether slurs were sufficiently
severe or pervasive), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). Here, because Iredia alleged
15 conduct that occurred on a nearly daily basis over a three-year period, the
pervasiveness suggests that a less heightened level of severity is required. See
Lauderdale, 512 F.3d at 163.
We also consider whether the conduct was physically threatening or
humiliating, and whether it unreasonably interfered with the employee’s work
performance. Fletcher, 166 S.W.3d at 489; Gonzales, 72 S.W.3d at 407. In her
deposition, Iredia testified that Sowemimo typically kicked the door of her office
open upon entering. She also testified that his constant name-calling disgraced her
in front of her co-workers and, on one occasion, in front of her son, that he
repeatedly threatened to fire her, and that she felt scared working in that
environment.
In its reply brief, DADS urges us to disregard a number of Iredia’s
allegations because “they are not based on sex and/or gender.” However, even if
some of the alleged harassing conduct was not overtly sexual in nature, some of it
was. According to Iredia, Sowemimo stated that he disliked skinny women
because it hurt him when he lay on top of skinny women but that he liked the way
it felt to lay on top of fat women, and that no man would want a “skinny bone” like
Iredia and that is the reason her husband left her. Further, even the comments
which were not overtly sexual, such as calling Iredia “skinny skeleton” and
“skinny bone,” could be considered sexual under some circumstances, particularly
16 in light of Sowemimo’s statements equating Iredia’s size with her alleged sexual
undesirability. 5
The critical inquiry is environment—we do not consider single incidents
alone, but rather the cumulative effect that these incidents have on the overall
environment. See Itz, 21 S.W.3d at 473; Soto, 942 S.W.2d at 678. The evidence is
undisputed that Iredia personally perceived her work environment to be hostile
because of Sowemimo’s conduct. We also find that a reasonable person could
have found the work environment to be hostile or abusive. See Lauderdale, 512
F.3d at 163; Fletcher, 166 S.W.3d at 489. Because Iredia has alleged sufficient
facts to raise a fact issue regarding whether the complained-of conduct altered the
terms, conditions, or privileges of her employment and created an abusive working
environment, the trial court has subject matter jurisdiction to hear her claim. See
Miranda, 133 S.W.3d at 226. We overrule DADS’s first issue.
D. Race/National Origin Discrimination
To allege a claim of race or national origin discrimination based on disparate
treatment under Chapter 21, a plaintiff must first present a prima facie case.
5 “[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80–81, 118 S. Ct. 998 (1998). Further, the conduct underlying a sexual harassment claim need not be overtly sexual. See Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex. App.—El Paso 1997, pet. denied) (noting that “[h[arassment based on gender need not take the form of a sexual advance or contain otherwise carnal overtones to constitute prohibited sex discrimination.”). 17 Reeves, 530 U.S. at 142, 120 S. Ct. 2097. Specifically, a plaintiff must show that
she was (1) a member of a protected class, (2) qualified for the employment
position at issue, (3) subject to an adverse employment action, which includes
termination, and (4) treated less favorably than similarly situated members outside
of the protected class. Reeves, 530 U.S. at 142, 120 S. Ct. 2097; Ysleta Indep. Sch.
Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).
In its plea to the jurisdiction, DADS challenged the fourth element of
Iredia’s race and national origin discrimination claim. Specifically, it argued that
Iredia had failed to show that she was treated less favorably than other similarly
situated employees outside of the protected classes. In her petition, Iredia alleged
that Sowemimo treated her differently than similarly situated employees who also
made mistakes in the performance of their job. In her deposition, she testified that
Sowemimo treated other QMRPs more favorably than her by allowing them to
represent the unit in his absence even though Iredia had more seniority, and she
identified “Cassandra” as one of the QMRPs treated more favorably than her.
However, these allegations do not affirmatively demonstrate that Cassandra or the
other QMRPs to whom Iredia refers were outside of the protected class and that
they were similarly situated to Iredia. See Monarrez, 177 S.W.3d at 917 (noting
“[e]mployees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct”).
18 Iredia argues that DADS’s plea to the jurisdiction with respect to her race
and national origin discrimination claim is premature because she intends to
conduct additional discovery which will generate evidence to support her claim.
Notwithstanding her argument, Iredia has failed to meet her burden to allege facts
that affirmatively demonstrate the trial court’s jurisdiction to hear her race and
national origin discrimination claim. Accordingly, we sustain DADS’s second
issue.
Conclusion
We affirm the trial court’s order denying DADS’s plea to the jurisdiction
with respect to Iredia’s sex discrimination claim, and we reverse the trial court’s
order with respect to her race and national origin discrimination claim and dismiss
the claim for lack of subject matter jurisdiction.
Jim Sharp Justice
Panel consists of Justices Jennings, Sharp, and Brown.