COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
TEXAS DEPARTMENT OF AGING and § No. 08-23-00177-CV DISABILITY SERVICES, § Appeal from the Appellant, § County Court at Law Number Three v. § of El Paso County, Texas CLAUDIA GOMEZ, § (TC# 2016DCV4116) Appellee. §
MEMORANDUM OPINION
The El Paso State Supported Living Center (the Center) terminated the employment of
Claudia Gomez because it concluded she physically assaulted a coworker. Alleging that the real
reason was age, gender, and disability discrimination, Gomez sued the state entity that runs the
Center, the Texas Department of Aging and Disability Services (DADS). 1
DADS filed a plea to the jurisdiction, which the trial court denied as to Gomez’s
discrimination claims. For the below reasons, we agree with DADS that Gomez failed to establish
a prima facie case in support of these claims. And even assuming otherwise, Gomez failed to
present sufficient evidence that the nondiscriminatory reason given by DADS for her
1 The Texas Health and Human Services Commission took over DADS’s operations in 2017. See Tex. Gov’t Code Ann. §§ 531.0202(b) and 531.02001(2)(B) (abolishing DADS and transferring its functions to the Texas Health and Human Services Commission). The pleadings and orders below still refer to DADS, so we do the same in this opinion. termination—that she physically assaulted a coworker—was a pretext. We therefore reverse the
trial court’s ruling on Gomez’s age, gender, and disability discrimination claims and render
judgment dismissing these claims for lack of jurisdiction.
I. BACKGROUND A. Factual background
The Center is home to around 100 residents with mental and developmental disabilities and
provides them with direct care and services, including prepared meals. Gomez began working
there as a Cook II in 2007.
(1) The incident
The incident at issue occurred in the Center’s kitchen on the morning of July 30, 2014.
Gomez describes the incident as a verbal altercation between her and a coworker, Robert Campos.
Gomez’s same-day, handwritten statement tells her side of the story:
I arrived at 11:25 am and I asked Roberto [Campos] why did he leave the day before without waiting for me because I was in Systems and I finished serving dinner at 7:12 p.m. and that is why I was running late; and when I arrived it was 8:38 pm and there was no one in the kitchen. That is why he was upset and he started to complain that the prep for today’s dinner was not ready. I told him, Robert, it’s that you could have done it yesterday because all you did all day was mash the beans and prepared the fiesta corn for the Regular/Chopped textures. That is when he got angrier and told me that I better get prepared to get my salary reduced.
Mary Gallegos heard him and I told her, look at him, he is yelling at me. Maria said I don’t know anything and left. Then I told him, maybe the one that needs reduced pay is someone else because you say you make a lot but if you are so secure in the cottages why do you go to the ones that are being served? That is when he got angrier and he got closer to me and pointed his finger at me and told me that I was a dried up rattlesnake and that is why I didn’t have any children; and that it would give him great pleasure that my generation would end with me. I then did not respond to him.
In her deposition, Gomez denied making physical contact with Campos at any point during the
incident.
2 Campos describes the incident differently, claiming that at one point Gomez “grabbed
[him] by [his] two arms.” His same-day, handwritten statement tells his side of the story:
I came to work at 11:30 a.m. on 07/30/14. Claudia Gomez confronted me mad telling me why didn’t I waited for her yesterday. The impres[s]ion on her face was like bitter and angry. I told her it was eight-thirty already. And no need to put overtime. She started telling me with loud voice. Unappropriate things. Like I’m lazy, that I look like a homosexual, that I look like a woman. And that everybody [k]nows that the State serves food for me. I told her to stop talking and get to work that’s why your getting paid for[,] not to be gossiping all over the State Center like your use too. Then she got mad and grabbed me by my two arms and wanted to slap me or hit me on my face, but I released my arms and run. Claudia was following me around the kitchen. And told me that I was goin[g] to get it. Telling me that she was goin[g] to get me fired. That she has a lot of influences. This happened in the kitchen near the steamers. Maria Gallegos was witness to just the argument. Because Maria left to serve 507.
Although this statement does not mention Campos calling Gomez a dried-up rattlesnake, he later
admitted in his deposition that he did so.
(2) The investigation
The incident was investigated by the Office of Inspector General (OIG), which concluded
that “[t]he allegation that [Gomez] assaulted [Campos] by grabbing him by the arms causing a
thumb size bruise on each arm is substantiated.”
OIG Investigator Efrain Sianez interviewed Gomez, Campos, and other witnesses, several
of whom stated they saw marks on Campos’s arms on the day of the incident. Among these
witnesses was Pamela Richter, D.O., a doctor at the Center’s medical clinic, who examined
Campos on the day of the incident. Richter stated that Campos had “bilateral contusions to his
arms” that “looked like thumb prints consistent to what [he] was saying,” i.e., he had been “grabbed
by a co-worker.” Sianez also reviewed a photograph of Campos’s left forearm taken by Campos
with his cell phone after the alleged incident. According to Sianez, the photograph depicts “[an]
3 injury [that] appears to be circular in shape and resembles a thumb print.” 2 Because no
eyewitnesses (other than Gomez and Campos) were identified, and the Center’s kitchen had no
video cameras, Sianez’s conclusion relied in part on his assessment of Gomez’s and Campos’s
credibility.
(3) The termination
DADS sent Gomez a “Notice of Possible Disciplinary Action” on November 17, 2014,
notifying her that the OIG investigation had substantiated the allegations and offered her an
opportunity to submit a rebuttal letter.
Gomez submitted a rebuttal letter repeating her account of the incident and adding, among
other things, that “I couldn’t have administered those markings to Mr. Campos since I have no
strength to m[y] hands,” “I am on workers compensation because of a previous injury,” and
“Doctors have evaluated the strength of my hands and honestly I barely have enough strength to
open a pickle jar.”
DADS sent Gomez a “Notice of Final Disciplinary Action” on December 8, 2014,
terminating her employment with the Center effective the same day.
B. Procedural history
Gomez filed two charges of unlawful discrimination with the Texas Workforce
Commission Civil Rights Division. The first charge was based on age (she was born in 1962) and
disability (allegedly arising from her 2012 hand injury). Her second charge was based on
sex/gender. After receiving a right-to-sue letter, Gomez filed this lawsuit, pleading age, gender,
2 Neither Richter nor Sianez could rule out the possibility that the marks on Campos’s arms might have been self- inflicted. When asked about that scenario, Richter stated “[a]nything’s possible” and “I really can’t make a call on that. I’m sorry.” Sianez testified “I don’t know how they could have determined that.”
4 and disability discrimination. 3 After DADS filed an answer and the parties engaged in extensive
discovery, DADS filed a plea to the jurisdiction, arguing that the jurisdictional evidence did not
show Gomez was terminated for any unlawful reason, and instead showed she was terminated
because it was determined that she physically assaulted Campos. As a result, DADS claimed its
sovereign immunity remained intact and the trial court lacked jurisdiction. Gomez responded,
arguing that there was sufficient jurisdictional evidence to support her claims, thereby establishing
waiver of DADS’s immunity. Both parties submitted several exhibits in support of their positions.
The trial court denied DADS’s plea to the jurisdiction as to Gomez’s age, gender, and
disability discrimination claims, and DADS filed this interlocutory appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW A. Plea to the Jurisdiction
State agencies like DADS “are immune from suit and liability in Texas unless the
Legislature expressly waives sovereign immunity.” Tex. Health & Hum. Services Comm’n v. Pope,
674 S.W.3d 273, 280 (Tex. 2023). The Legislature has waived sovereign immunity for
discrimination claims under Chapter 21 of the Texas Labor Code, also known as the Texas
Commission on Human Rights Act (TCHRA). Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 636 (Tex. 2012). That waiver, however, extends “only for those suits where the
plaintiff actually alleges a violation of the TCHRA by pleading facts that state a claim thereunder.”
Id.
Sovereign immunity may be asserted in a plea to the jurisdiction. Pope, 674 S.W.3d at 280.
Such a plea may “‘challenge[] whether the plaintiff has alleged facts that affirmatively demonstrate
3 Gomez also pleaded hostile-work-environment and later a retaliation claim. The trial court dismissed these claims with prejudice which is not challenged on appeal.
5 the court’s jurisdiction to hear the case,’ ‘the existence of those very jurisdictional facts,’ or both.”
Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (citing Mission Consol., 372 S.W.3d
at 635) (emphasis in original). When the existence of jurisdictional facts is challenged, “we must
move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional
issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim.”
Pope, 674 S.W.3d at 281. This analysis involves a question of law we review de novo and mirrors
our evaluation of a traditional motion for summary judgment. Id. at 280–81.
In other words, a state agency asserting sovereign immunity must satisfy the traditional
summary judgment burden of proof. Id. If it does so, the plaintiff must raise a disputed material
fact. Id. at 281. If a fact issue exists, the plea should be denied. Id. If the plaintiff fails to raise a
fact issue or the evidence supporting the agency’s challenge is undisputed, the plea must be
granted. Id. As in the summary judgment context, we “take as true all evidence favorable to the
plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor.”
Id. Yet we “cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable
jurors could not,” and “cannot disregard evidence necessary to show context.” Id.
B. TCHRA
The TCHRA prohibits employers from discriminating against employees on the basis of
“race, color, disability, religion, sex, national origin, or age[.]” Tex. Lab. Code Ann. § 21.051.
That is, an employer may not, on such a basis, “fail[] or refuse[] to hire an individual, discharge[]
an individual, or discriminate[] in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment[.]” Tex. Lab. Code Ann.
§ 21.051(1). The prohibition against age discrimination protects individuals 40 years of age or
older. Tex. Lab. Code Ann. § 21.101. The prohibition against disability discrimination protects
6 individuals with a physical or mental condition that does not impair the individual’s ability to
reasonably perform a job with or without reasonable accommodations. Tex. Lab. Code Ann.
§ 21.105. In adopting the TCHRA, the Legislature “intended to correlate state law with federal
law”; accordingly, we may look to federal law to interpret its provisions. AutoZone, Inc. v. Reyes,
272 S.W.3d 588, 592 (Tex. 2008) (per curiam).
C. Proving discrimination
Texas courts recognize two alternative methods of proof for TCHRA claims. Tex. Tech
Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). First, a plaintiff may
prove unlawful discrimination with direct evidence. Id. “Direct evidence is evidence that, if
believed, proves the fact of discriminatory animus without inference or presumption.” Tex. Dep’t
of Aging & Disability Services v. Lagunas, 618 S.W.3d 845, 852 (Tex. App.—El Paso 2020, no
pet.); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
Second, because direct evidence is often hard to come by, TCHRA plaintiffs are allowed
to rely on indirect or circumstantial evidence under the McDonnell-Douglas burden-shifting
framework. Tex. Tech, 612 S.W.3d at 305; McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, (1) the plaintiff must establish a prima facie case, which creates a
presumption of unlawful discrimination; (2) if such a presumption is created, the defendant must
show it had a legitimate, nondiscriminatory reason for its action; and (3) if such a reason is
established, the plaintiff must show it was a mere pretext. Tex. Tech, 612 S.W.3d at 305.
III. ISSUES ON APPEAL DADS raises a single global issue on appeal, arguing that the trial court erred in denying
its plea to the jurisdiction as to Gomez’s age, gender, and disability discrimination claims.
7 IV. DISCUSSION A. Age and gender discrimination
A prima facie case of age or sex discrimination is established by producing evidence that
the plaintiff (1) is a member of the protected class; (2) was qualified for the position; (3) suffered
an adverse employment action; and (4) was either (a) replaced by someone outside the protected
class, or (b) otherwise treated less favorably than others similarly situated but outside the protected
class, Tex. Tech, 612 S.W.3d at 305, sometimes referred to as “comparators.” 4 Tex. Dep’t of State
Health Services v. Resendiz, 642 S.W.3d 163, 173 (Tex. App.—El Paso 2021, no pet.).
Here, DADS challenges only the fourth element, conceding that Gomez is a member of
relevant protected classes (over 40 years old and female), was qualified for her position (Cook II),
and suffered an adverse employment action (termination). Gomez does not assert that she was
replaced by a person who was under 40 years old or male. Thus, the sole prima facie element at
issue is whether Gomez produced evidence that DADS otherwise treated Gomez less favorably
than one or more comparators—similarly situated coworkers who were under 40 years old or male.
4 Gomez argues she can alternatively satisfy the fourth element of a prima facie case of age or sex discrimination under the McDonnell-Douglas burden-shifting framework with circumstantial evidence she was “otherwise subjected to an adverse employment action because of her protected characteristic,” as opposed to evidence she was replaced by someone outside the protected class or otherwise treated less favorably than others similarly situated but outside the protected class. However, the Texas Supreme Court expressly rejected that alternative theory, see Tex. Tech Univ. HealthScis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 311 n. 12 (Tex. 2020); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 638–42 (Tex. 2012), while noting there is “something of a split” in the federal circuits concerning the alternative theory’s viability under federal law. Garcia, 372 S.W.3d at 638–39. To the extent we have suggested in past cases that such an alternative theory might be viable, see, e.g., Tex. Dep’t of Aging & Disability Services v. Loya, 491 S.W.3d 920, 924–25 (Tex. App.—El Paso 2016, no pet.) (holding that fourth element of prima facie case of sex discrimination can be met with circumstantial evidence plaintiff was “otherwise terminated because of her gender”); Tex. Tech Univ. Health Scis.-El Paso v. Flores, 587 S.W.3d 831, 839 (Tex. App.—El Paso 2019), rev’d sub nom. on other grounds, 612 S.W.3d 299 (Tex. 2020) (holding that fourth element of prima facie case of age discrimination can be met with circumstantial evidence plaintiff was “otherwise subjected to an adverse employment action because of her protected characteristic”), we disapprove that aspect of these cases. Direct evidence cases and disability discrimination cases are not affected by this footnote.
8 B. Disability discrimination
A prima facie case of disability discrimination is established by producing evidence that
the plaintiff (1) has a disability; (2) was qualified for the position; and (3) suffered an adverse
employment action because of the disability. El Paso Cnty. Water Imprvmt Dist. No. 1 v. Trevizo,
No. 08-21-00206-CV, 2023 WL 7109919, at *6 (Tex. App.—El Paso Oct. 27, 2023, no pet.).
Here, DADS concedes that Gomez was qualified, but argues that she failed to produce
evidence she was terminated because of a disability. 5 To satisfy the third element of a prima facie
case of disability discrimination, the plaintiff must produce evidence that he or she suffered an
adverse employment action “because of” a disability. Trevizo, 2023 WL 7109919, at *6. To meet
this element, Gomez argues that she “was treated less favorably than employees outside her
protected class, disability,” namely, “Campos was clearly treated better and more favorably.”
Assuming without deciding that comparators are an appropriate means to prove that adverse
actions were taken because of a disability, we turn to Gomez’s claim that Campos is a comparator
who was treated differently.
C. Gomez fails to raise any evidence of a similarly situated comparator
Employees are “similarly situated” if their circumstances are comparable “in all material
respects, including similar standards, supervisors, and conduct.” Tex. Tech, 612 S.W.3d at 312.
Although such circumstances need not be “identical,” they must be “nearly identical.” Id.
Employees with different work rule violations or disciplinary records, for example, are not
considered “nearly identical.” Id.
The sole comparator identified by Gomez is Campos, who she argues is “younger and
5 DADS also challenges whether Gomez has a disability. We need not reach that issue and assume without deciding that she does.
9 male,” and was “treated differently” by DADS. 6 Gomez elaborates: “Campos has a history of
hostile confrontations with employees in the workplace for which he received no discipline,” and
“[e]ven after he verbally assaults Gomez, Salas, and other employees in the workplace, the
discipline he receives . . . a supposed six-month probationary period, is not written up, monitored
by management, or even enforced in any way.” Further, Gomez argues, Campos has a “history of
dishonesty in the workplace,” as shown by a written “first level reminder” Campos received for
“misrepresentation of the truth (lying)” in relation to incidents in which “hot plates”—apparently
a substitute for regular meals—were served in violation of the Center’s rules.
In response, DADS argues that Campos is not a valid comparator, as “a mere verbal
altercation clearly does not rise to the same level of seriousness as a physical assault causing
injury.” We agree that the conduct Gomez attributes to Campos (verbal assault, lying) is not
“identical” or “nearly identical” to the conduct attributed to her (physical assault). See Kendrick v.
Penske Transp. Services, Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (holding that “physically
push[ing]” is more severe than “verbally abus[ing]”; thus, individuals engaging in these two types
of conduct are not “similarly situated”); Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 411
(E.D. Pa. 2000), aff’d, 29 Fed. Appx. 100 (3d Cir. 2002) (“[I]ntentionally making physical contact
with or pushing a co-employee is not the same conduct as verbally abusing a co-employee.
Therefore, Mr. Fry and plaintiff are not similarly situated.”). Gomez cites no authority to the
contrary.
Gomez also argues that Campos, beyond engaging in verbal altercations, also physically
assaulted a co-worker. This claim is based on Campos’s deposition where he recounts an event
6 We do not address whether Gomez and Campos were similarly situated in all material respects because both parties limit their argument to whether their conduct was comparable.
10 between he and another co-worker:
Q. And why did you fight Raul Valdez? A. Because we just wanted to know who was tougher back in those days. Q. You didn’t have an argument with him? A. No. Q. It was just, “Hey, let’s go fight”? A. Yes, like the UFC. Q. Okay. Was it during work hours, or after work hours? A. During work hours. Q. Where did you fight? A. At a break. Q. Where was that? Like, did you fight on the facility? A. No. It was over there at Ascarate. Q. Okay. Have you ever seen Fight Club? A. Yes. It was kind of like that, yes.
DADS argues that the consensual contact involved in this incident is not “identical” or
“nearly identical” to the nonconsensual contact between Gomez and Campos. We agree, and
further note that there is no indication DADS received a complaint or was otherwise even made
aware of this off-site incident, and while Campos testified Valdez hit him during the fight, Campos
was not asked whether he hit Valdez.
Finally, Gomez points to the following “comparator conduct” by Campos, quoting from her
rebuttal letter:
Before I start on what really occurred on the date of the altercation (July 30, 2014), let me give you a background on Mr. Robert Campos. . . . Mr. Campos is a person that lets the staff in cottages serve the individuals while he attends to matters at home. He has been involved in many altercations with former and current employees (mainly food service staff). He belittles and has in the past resorted to physical altercations with staff . . . . His behavior and actions are not a secret to food service staff or his supervisor. Prior to the date of the altercation, Mr. Campos was involved in an altercation with Mario Salas (Cook). He also had left the facility early as he normally does without notifying our supervisor (Elinora Montoya) or co-workers[.]
None of the conduct described is “identical” or “nearly identical” to the conduct for which
Gomez was terminated, other than “physical altercations with staff,” for which no details are
11 provided. Without details, such incidents cannot be considered. See Hardison v. Skinner, No. 20-
30643, 2022 WL 2668514, at *3 (5th Cir. July 11, 2022) (“[B]arebones statements, with nothing
more to support them, are insufficient to establish that . . . conduct that drew the adverse
employment decision was nearly identical to [that of a comparator].”) (quotation marks omitted);
Owens v. Circassia Pharm., Inc., 33 F.4th 814, 827 (5th Cir. 2022) (“We cannot compare Owens
to other [regional sales managers] when she fails to . . . explain why they are similarly situated.”).
Without evidence of a valid comparator who was treated more favorably, we conclude that
Gomez failed to present evidence in support of the fourth element of a prima facie case for age or
sex discrimination, and the third element of the disability claim.
D. Legitimate, non-discriminatory reason and pretext
Even had Gomez established a prima face case of discrimination, it falters under the next
phase of the McDonnell-Douglas burden-shifting framework. DADS showed that it had a
legitimate, nondiscriminatory reason for terminating Gomez. This in turn required Gomez to show
that the reason proffered was a mere pretext. Tex. Tech, 612 S.W.3d at 305.
As Gomez acknowledges, DADS claims it terminated her because she physically assaulted
Campos. Gomez does not argue that, if true, such a reason would be illegitimate or discriminatory.
Nor does she argue that DADS failed to present evidence that it terminated her for this reason (the
record contains deposition testimony by DADS Assistant Director of Administration Karen L.
McCluskey, so stating). DADS needed to produce nothing more. See Tex. Health & Hum. Services
v. Sepulveda, 668 S.W.3d 856, 867 (Tex. App.—El Paso 2023, no pet.) (“The employer’s burden
to provide a legitimate, nondiscriminatory reason for an adverse employment action is one of
production, not persuasion, and it involves no credibility assessment”). Thus, Gomez’s argument
that DADS “did not carry its burden of production at the second stage of the analysis” is misplaced.
12 In claiming pretext, Gomez argues that “[t]he action taken by [DADS] in this case was
based on false evidence and cannot be supported by reason,” and “the evidence provided by
[DADS] is insufficient to demonstrate that Gomez engaged in th[e] alleged act [of physically
assaulting Campos].” However, in making this argument, Gomez neither cites the evidence at issue
nor explains why it is false, unsupportable by reason, or insufficient. Instead, she merely states in
conclusory fashion that “[t]aken as a whole, the evidence raises fact questions regarding whether
Appellant’s stated reasons for its decision are pretextual, and whether discrimination was a true
reason for the employment action.” Such an argument is insufficient. See El Paso Indep. Sch. Dist.
v. Portillo, 661 S.W.3d 512, 546 (Tex. App.—El Paso 2023, pet. denied) (“To preserve error on
appeal, the Texas Rules of Appellate Procedure require adequate briefing, which includes making
a clear and concise argument for the contentions made, with appropriate citations to authorities
and to the record.”); see also Tex. R. App. P. 38.1(i), 38.2(a)(1).
At other points in her brief, however, Gomez touches on these same issues in more detail.
In particular, she argues that we can infer that the reason given for terminating her was pretextual
because: (1) OIG’s investigation was flawed and lacking in that Campos originally claimed Gomez
grabbed him by both arms, but six years later testified in his deposition she grabbed him by one
arm; (2) Gomez’s hands were too weak to leave marks on Campos’s arms by grabbing them; and
(3) Cynthia Lewis, a DADS human resources representative, advised that the incident at issue was
a “he said she said” matter warranting only minor disciplinary action against both parties involved.
But even viewing the evidence in the light most favorable to Gomez, none of these
arguments raises a fact issue as to whether the reason DADS gave for terminating Gomez was
pretextual. First, even if OIG’s investigation was to some degree flawed or lacking, that alone
would not be enough to raise a fact issue on pretext. See Tex. Dep’t of State Health Services v.
13 Resendiz, 642 S.W.3d 163, 179 (Tex. App.—El Paso 2021, no pet.) (neither errors nor lack of
thoroughness in employer’s investigation will, standing alone, raise fact issue that proffered
reasons for termination were pretextual); Tex. Health & Hum. Services Comm’n v. Enriquez, 642
S.W.3d 21, 41 (Tex. App.—El Paso 2021, no pet.) (“[T]he existence of conflicting evidence [in
an investigation underlying an adverse employment action] does not evidence that [an employer’s]
stated reason [for taking the action] was false or that [the employer] did not believe [the conclusion
drawn in the investigation].”); EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1322 n. 12 (10th Cir.
1992) (“[A] mistaken belief can be a legitimate reason for an employment decision and is not
necessarily pretextual.”). In analyzing whether the reason given for an adverse employment action
is a pretext, the focus is not on whether the action itself was error-free, but on whether the employer
relied on its stated reasons, in good faith, in taking the action. Resendiz, 642 S.W.3d at 179. Gomez
points to no evidence that DADS did not rely in good faith on its stated reason for terminating her.
Second, Gomez’s contention that her hands were too weak to leave marks on Campos’s
arms is based on her own self-serving statements. While she points to medical records
documenting that she was being treated for a prior hand injury, Gomez cites nothing in the records
which suggests she was incapable of grabbing a person’s arms with enough force to leave visible
marks, or that the injury affected her grip strength to any one degree. Gomez’s own statements do
not raise a fact issue as to pretext. See Forbis v. Exeter Fin., L.L.C., No. 22-10193, 2022 WL
17986689, at *5 (5th Cir. Dec. 29, 2022) (“[S]elf-serving statements are insufficient to create a
triable issue of fact as to whether [adverse action was taken] because of [unlawful conduct in
violation of civil rights law.]”); LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 391
(5th Cir. 2007) (appellate court will not second-guess employer’s decision to disbelieve employee
where conflicting evidence exists); cf. Haverda v. Hays Cnty., 723 F.3d 586, 596–97 (5th Cir.
14 2013) (fact issue existed as to pretext element because employee did not “merely disput[e] the
underlying facts,” but presented independent corroborating evidence).
Third, while Cynthia Lewis characterized the incident at issue as a “he said she said”
matter, this initial assessment was based solely on Gomez and Campos’s same-day handwritten
statements. In contrast, the subsequent OIG investigation was based on interviews with several
witnesses and review of various documents. Thus, Lewis’s assessment raises no fact issue as to
the veracity of DADS’s stated reason for terminating Gomez simply because it differs from the
assessment made by OIG.
Accordingly, even had Gomez established a prima facie case of discrimination, the trial
court would still have erred in denying DADS’s plea to the jurisdiction, as DADS proffered a
legitimate, nondiscriminatory reason for terminating her, and Gomez failed to raise a fact issue as
to whether it was pretextual.
V. CONCLUSION For the reasons stated above, we reverse the trial court’s denial of DADS’s plea to the
jurisdiction in relation to Gomez’s age, gender, and disability discrimination claims and render
JEFF ALLEY, Chief Justice
August 30, 2024
Before Alley, C.J., Palafox, and Soto, JJ.