In the
Court of Appeals
Second Appellate District of Texas at Fort Worth
___________________________
No. 02-26-00298-CV
___________________________
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant V.
DIANILEY DESLANDES, Appellee
On Appeal from the 141st District Court Tarrant County, Texas
Trial Court No. 141-359016-24
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
In this accelerated interlocutory appeal,1 Appellant Texas Department of Criminal Justice (TDCJ) appeals the trial court’s denial of its combined plea to the jurisdiction and traditional summary-judgment motion seeking the dismissal of Appellee Dianiley 2 Deslandes’s lawsuit. In two issues, TDCJ argues that the trial court erred by signing an order denying its combined jurisdictional plea and summary- judgment motion because Deslandes failed to establish a prima facie case of either sexual harassment or retaliation so as to overcome TDCJ’s sovereign immunity. Because we conclude that Deslandes established a prima facie case of sexual harassment but not of retaliation, we reverse the trial court’s order as to Deslandes’s retaliation claim and render judgment dismissing that claim, and we affirm it as to her sexual-harassment claim.
I. BACKGROUND
In December 2022, Deslandes began working for TDCJ as a parole officer in Fort Worth. Her direct supervisor was Chinedu P. Nwanegbo.
Deslandes alleged that in February 2023 Nwanegbo began sexually harassing her by telling her that she was beautiful; that he loved her; that if he were alone with her, “he would do things to her”; and that if he were not married, “he would be all
1 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Tex. R. App. P. 28.1(a).
2 At some places in the record, the appellee’s name is spelled “Dainiley.” Based on our review of the entire record and appellee’s briefing in this court, we believe that her name is correctly spelled “Dianiley.”
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over her.” According to Deslandes, Nwanegbo continued to sexually harass her by engaging in “sex talk,” including references to sexual experiences, innuendos, and suggestive remarks. She recalled that on one occasion, Nwanegbo said, “I wonder what your voice would sound like when you come.” Deslandes has asserted that Nwanegbo constantly talked about how sexy her body was and how sexy her voice was and that he expressed that he wished his wife had a voice like Deslandes’s, that he did not find his wife sexy, and that he wished that he could divorce his wife and be with Deslandes. She claimed that Nwanegbo “would tell [her] that [her] partner did not deserve [her]” but that Nwanegbo did deserve her. Deslandes stated that these comments were an almost daily occurrence.
According to Deslandes, Nwanegbo eventually “raised the level of harassment to a physical nature by engaging in unwanted physical contact.” She claimed that “he would frequently attempt to hug [her] despite [her] clear discomfort and efforts to maintain personal space” and that “he would touch [her] back or arms in ways that felt inappropriate and unwelcome.” She characterized this physical touching as “persistent” and beyond “professional boundaries.”
Deslandes alleged that Nwanegbo continued to engage in inappropriate, harassing behavior despite her repeated requests that he stop.3 According to
3 Deslandes claimed that Nwanegbo acknowledged in recorded conversations both his inappropriate behavior and Deslandes’s repeated requests for him to stop. However, the recordings of these conversations are not part of the summary- judgment record.
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Deslandes, Nwanegbo’s “sexual harassment . . . followed a recurring pattern where the [inappropriate] behavior would temporarily stop after [she] showed discomfort or attempted to distance [her]self, only to resume again shortly afterward.”
Eventually, Deslandes wrote Nwanegbo an email referencing the many previous instances in which she had “brought to [his] attention” that “some of [his] comments and physical touches” had made her uncomfortable. In her email she mentioned a specific incident in which Nwanegbo had begun touching her left hand inappropriately while looking over her shoulder as she was attempting to work. She asked Nwanegbo to respect the boundaries that they had discussed—i.e., to stop making comments about her voice, her appearance, and his feelings towards her and to keep his hands to himself.
The email did not resolve the situation, and one of Deslandes’s colleagues told her that she had overheard Nwanegbo yelling after receiving it.4 Nwanegbo had reportedly exclaimed, “I can’t believe she wrote that.”
Deslandes claims that after she tried to address Nwanegbo’s sexual harassment by, among other things, sending the above-referenced email,5 he retaliated against her
4 Deslandes’s colleague’s statements about Nwanegbo’s reaction to receiving Deslandes’s email are hearsay, but because TDCJ did not raise a hearsay objection, the statements are part of the record that we may consider on appeal. See 2014 Honda v. State, No. 02-23-00289-CV, 2024 WL 1100869, at *3 n.3 (Tex. App.—Fort Worth Mar. 14, 2024, no pet.); see also Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”).
5 Deslandes admits that she never reported Nwanegbo’s alleged sexual
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by “micromanag[ing]” and “disproportionate[ly] critici[zing]” her. According to Deslandes, Nwanegbo also engaged in “[p]hysical [i]ntimidation” by bumping into her while walking past her in the hallway “with enough force to knock [her] off balance.”6 In January 2024, Deslandes was assigned to a new supervisor. However, there was no change to her position, responsibilities, pay, promotion potential, or benefits, nor has she alleged that any such change occurred.
In February 2024, Deslandes resigned her position with TDCJ and accepted a new, better-paying position as a case manager for Family Endeavors, Inc.
In October 2024, Deslandes filed suit against TDCJ and Nwanegbo, asserting claims for sexual harassment and retaliation. TDCJ filed a combined plea to the jurisdiction and traditional summary-judgment motion in which it argued that Deslandes’s lawsuit should be dismissed because she had failed to establish a prima facie case of either sexual harassment or retaliation. Deslandes filed a response to which she attached summary-judgment evidence, including her own declaration7 and a
harassment to human resources because she could not do so anonymously and she “didn’t want [her] name associated with” any such complaint.
6 Although Deslandes’s affidavit is unclear as to how often this alleged “bumping” had occurred, her deposition testimony indicates that it was a one-time event: “At one point[,] I was in the office[,] and he did bump into me.” She testified that she did not know whether it was done “in a joking way” or was an accident, and she stated that she “was just like, oh, okay, and then [she] went about [her] day.”
7 TDCJ filed a reply in which it argued, among other things, that Deslandes’s declaration was a “sham affidavit” and should be excluded from the record because it purportedly contradicted Deslandes’s prior sworn deposition testimony. See Primary
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copy of her email to Nwanegbo asking him to stop speaking inappropriately to her and to keep his hands to himself. Following a hearing, the trial court signed an order denying TDCJ’s jurisdictional plea and its summary-judgment motion. This interlocutory appeal followed.
II. DISCUSSION
A. Standard of Review and Applicable Law “Unless the state consents to suit, sovereign immunity deprives a trial court of subject[-]matter jurisdiction over lawsuits against . . . certain governmental units,” including TDCJ. Area Metro. Ambulance Auth. v. Reed, No. 02-22-00406-CV, 2023 WL 3017936, at *2 (Tex. App.—Fort Worth Apr. 20, 2023, no pet.) (mem. op. on reh’g) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)); see Tex. Dep’t of Crim. Just. v. Tidwell, 677 S.W.3d 98, 106 (Tex. App.—El Paso 2023, no
Media Grp., Inc. v. LT Ranch Props., LLC, No. 02-25-00391-CV, 2026 WL 1838885, at *11 (Tex. App.—Fort Worth June 25, 2026, no pet. h.) (“A sham affidavit is one in which the affiant attempts to create a fact issue with a statement that is contrary to the affiant’s prior sworn statement and made for the purpose of preventing a summary judgment.” (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018))). The trial court declined to exclude Deslandes’s declaration, and TDCJ now raises the same sham-affidavit argument on appeal. But because the differences between Deslandes’s declaration and her prior deposition testimony fall into the category of variations on a theme, not material contradictions, we cannot conclude that the trial court abused its discretion by declining to exclude the declaration. See Lujan, 555 S.W.3d at 88; see also Williams v. EMOB Decatur, L.P., No. 02-25-00342-CV, 2026 WL 1992944, at *5 (Tex. App.—Fort Worth July 9, 2026, no pet. h.) (“Even in the plea-to-the-jurisdiction context, we review a trial court’s rulings to admit or exclude evidence under an abuse[-]of[-]discretion standard.” (first citing Gonzalez ex rel. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017); and then citing DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814, 827 (Tex. App.—Fort Worth 2006, no pet.) (op. on reh’g))).
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pet.). The Texas Legislature has provided a limited waiver of sovereign immunity for employment-discrimination and retaliation claims falling within Chapter 21 of the Texas Labor Code. See Tex. Lab. Code §§ 21.051(1) (prohibiting discrimination by an “employer”), 21.055 (prohibiting retaliation by an “employer”); see also id. § 21.002(8)(D) (defining “employer” to include “a county, municipality, state agency, or state instrumentality”).
Whether a governmental unit has immunity—an inquiry that bears on the trial court’s subject-matter jurisdiction—is a legal question that we review de novo. See Reed, 2023 WL 3017936, at *2 (citing Miranda, 133 S.W.3d at 226). Here, TDCJ asserted immunity from suit through a combined plea to the jurisdiction and motion for summary judgment. See Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 325–26 (Tex. App.—El Paso 2021, no pet.) (recognizing that a governmental unit may properly assert immunity through a plea to the jurisdiction or a summary- judgment motion (first citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999); and then citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999))). In a jurisdictional plea or summary-judgment motion asserting immunity, a governmental unit may challenge either the pleadings, the existence of jurisdictional facts, or both. Bustillos, 630 S.W.3d at 326–27. When, as here, a governmental unit challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties to determine if a fact issue exists regarding the plaintiff’s establishment of a prima facie case. Tidwell, 677 S.W.3d at 106; see Tex. Dep’t of Transp.
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v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (explaining that when a defendant challenges the existence of jurisdictional facts with supporting evidence, the court must move beyond the pleadings and consider the proffered evidence (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018))).
In such cases, the standard of review “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Bustillos, 630 S.W.3d at 326 (quoting Miranda, 133 S.W.3d at 228). “Under this standard, if the governmental unit asserts and supports with evidence its contention that the trial court lacks subject- matter jurisdiction, we simply require the plaintiff[] . . . to show that there is a disputed material fact regarding the jurisdictional issue.” Tidwell, 677 S.W.3d at 107 (citing Bustillos, 630 S.W.3d at 326). In our review, we examine the evidence presented by both parties; we take as true all evidence favorable to the plaintiff; and we indulge every reasonable inference and resolve any doubts in the plaintiff’s favor. See id.; Reed, 2023 WL 3017936, at *2 (citing Miranda, 133 S.W.3d at 228). “[H]owever, we cannot disregard evidence necessary to show context,” nor can we “disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.” Tidwell, 677 S.W.3d at 107 (citing Alamo Heights, 544 S.W.3d at 771). B. Sexual Harassment In its first issue, TDCJ contends that Deslandes failed to establish a prima facie case of sexual harassment and that the trial court therefore erred by declining to dismiss this claim for lack of subject-matter jurisdiction. We disagree.
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There are two general types of sexual harassment: quid pro quo and hostile work environment. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). Deslandes alleged the latter.8 To establish a prima facie case of hostile-work-environment sexual harassment, a plaintiff must show that (1) she was subjected to unwelcome sexual harassment by a supervisory employee, (2) the harassment occurred because of her sex, (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile work environment, and (4) there is some basis for holding the employer liable for the conduct of the supervisory employee. Alamo Heights, 544 S.W.3d at 771. When, as here, an employee complains of sexual harassment by a supervisor, she does not need to establish the fourth element. City of Houston v. Carter, No. 01-22-00453-CV, 2023 WL 3632788, at *10 (Tex. App.—Houston [1st Dist.] May 25, 2023, no pet.) (citing Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 445 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)).
Because the Texas Commission on Human Rights Act (TCHRA)
“contemplates discrimination affecting the ‘terms, conditions, or privileges of employment,’” Waffle House, 313 S.W.3d at 805 (quoting Tex. Lab. Code § 21.051(1)), “sexual harassment is actionable ‘only if it is so severe or pervasive as to alter the
8 As TDCJ points out, Deslandes stated in her live pleading that she “is suing the [d]efendants . . . for hostile [work] environment and quid pro quo sexual harassment.” However, as Deslandes acknowledges in her appellate briefing, she actually alleged only a hostile-work-environment claim, not a quid pro quo claim.
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conditions of [the victim’s] employment and create an abusive working environment,’” San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 138 (Tex. 2015) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S. Ct. 1508, 1509 (2001)). To determine whether a hostile work environment exists, we must consider all the circumstances, “including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787–88, 118 S. Ct. 2275, 2283 (1998)).
Regarding the first element, Deslandes presented ample evidence that she was subjected to unwelcome sexual harassment by Nwanegbo. Indeed, TDCJ effectively concedes that Deslandes established this element of her sexual-harassment claim and focuses its argument on the claim’s second and third elements.
Regarding the second element, TDCJ argues that Deslandes failed to establish that she was harassed because of her sex. But as both the United States and Texas Supreme Courts have recognized, “the inference of discrimination is ‘easy to draw’ in most opposite-sex cases ‘because the challenged conduct typically involves explicit or implicit proposals of sexual activity’ and thus ‘it is reasonable to assume those proposals would not have been made to someone of the same sex.’” Alamo Heights, 544 S.W.3d at 772 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002 (1998)). As detailed above, Deslandes presented evidence that
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Nwanegbo had repeatedly engaged in “sex talk” with her; had told her that he loved her and that he wished he could leave his wife for her; had told her how sexy her body and her voice were; and had expressed that if he were alone with her, “he would do things to her.” Given the overtly sexual nature of Nwanegbo’s comments and his clear implication that he wanted to engage in sexual activities with Deslandes, one can reasonably infer that Nwanegbo’s harassment occurred because of Deslandes’s sex. See id. Thus, at a minimum, Deslandes has satisfied her burden to show the existence of a disputed issue of material fact as to whether she was harassed because of her sex. See Tidwell, 677 S.W.3d at 107.
Regarding the third element, TDCJ asserts that “Nwanegbo’s alleged statements to Deslandes were not so severe or pervasive as to alter the conditions of employment and create a hostile work environment.” But the record belies this assertion. In her declaration, Deslandes averred that Nwanegbo’s harassing comments—which, as detailed above, were extremely inappropriate—“were an almost daily (if not daily) occurrence.” She also stated that Nwanegbo’s “repeated attempts to hug [her], touch [her] arms or back, and invad[e her] personal space created a constant sense of fear and discomfort in the workplace.” She indicated that she “began to dread going to work each day” because she would likely have to deal with Nwanegbo’s harassing behavior, which “made [her] feel unsafe and disrespected.” She averred that Nwanegbo’s behavior “directly affected [her] work performance” because she had to spend so much energy “managing [her] anxiety,
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avoiding interactions, and bracing [her]self for the next incident.” Given the frequency and the extremely inappropriate nature of Nwanegbo’s statements, including his openly “wonder[ing] what [Deslandes’s] voice would sound like when [she] c[a]me”; the fact that the harassment was not only verbal but physical; and the harassment’s negative effect on Deslandes’s work performance, we conclude that Deslandes established her sexual-harassment claim’s third element. See San Antonio Water Sys., 461 S.W.3d at 138.
Because Deslandes established all the required elements of her hostile-work-
environment sexual-harassment claim, the trial court did not err by denying TDCJ’s combined jurisdictional plea and summary-judgment motion as to that claim. Accordingly, we overrule TDCJ’s first issue. C. Retaliation In its second issue, TDCJ contends that Deslandes failed to establish a prima facie case of retaliation and that the trial court therefore erred by declining to dismiss this claim for lack of subject-matter jurisdiction. We agree.
“A retaliation claim is related to, but distinct from, a discrimination claim, and one may be viable even when the other is not. Unlike a discrimination claim, a retaliation claim focuses on the employer’s response to an employee’s protected activity, such as making a discrimination complaint.” Alamo Heights, 544 S.W.3d at 763–64. To establish a prima facie case of retaliation under the TCHRA, an employee must show that (1) she engaged in a protected activity, (2) her employer took an
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adverse employment action against her, and (3) a causal connection exists between her protected activity and the adverse employment action. Id. at 782.
Although Deslandes established that she engaged in a protected activity by opposing Nwanegbo’s sexual harassment, see Tex. Lab. Code § 21.055; San Antonio Water Sys., 461 S.W.3d at 137, she failed to establish that TDCJ took an adverse employment action against her because of this protected activity. Deslandes asserts that she was constructively discharged as “a direct result” of her opposition to Nwanegbo’s harassing behavior. But the record does not support this assertion.
A constructive discharge occurs when an employer makes working conditions so intolerable that a reasonable employee would feel compelled to resign. See Baylor Univ. v. Coley, 221 S.W.3d 599, 604–05 (Tex. 2007) (citing Penn. State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351 (2004)). To determine whether an employer’s actions constitute a constructive discharge, courts consider a number of factors, including whether there has been any (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (6) offers of early retirement that would make the employee worse off whether they were accepted or not. Vanderhurst v. Statoil Gulf Servs., LLC, No. 01-16-00461-CV, 2018 WL 541912, at *5 (Tex. App.—Houston [1st Dist.] Jan. 25, 2018, pet. denied) (citing Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008)).
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Here, the only evidence to which Deslandes points to support her contention that she was constructively discharged as a result of her opposition to Nwanegbo’s harassing behavior is the following: (1) her vague assertion that Nwanegbo “disproportionate[ly] critici[zed] and micromanage[d]” her after she made “minor work mistake[s]” and (2) her averment that Nwanegbo “physical[ly] retaliat[ed]” against her by “bump[ing]” her as he walked past her in the hallway. But Deslandes’s deposition testimony indicates that the physical “bumping” was a one-time event, and we cannot conclude that such a one-time “bump”—even when combined with criticism and micromanagement for minor mistakes—would compel a reasonable employee to resign. See Baylor Univ., 221 S.W.3d at 604–05. Nothing in the record suggests that Deslandes was demoted, had her salary or job responsibilities reduced, was reassigned, was badgered or harassed into resigning, or was offered disadvantageous early retirement because of her opposition to Nwanegbo’s harassing behavior. See Vanderhurst, 2018 WL 541912, at *5. Indeed, the record reflects that Deslandes resigned her position with TDCJ so that she could accept a higher-paying job with better benefits and that Nwanegbo wrote her an undisputedly positive letter of recommendation to help her get the job. Cf. id. at *1, *5–6 (holding that appellant who had resigned “to take a higher-paying job with a competitor” had not been constructively discharged because, among other things, the summary-judgment evidence did not show that he had been demoted, had suffered a reduction in salary, had been assigned to menial or degrading work, or had received an offer of early
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retirement); Stelly v. San Antonio Aerospace, L.P., No. 04-11-00478-CV, 2012 WL 1940661, at *4 (Tex. App.—San Antonio May 30, 2012, no pet.) (holding that employee had not been constructively discharged as a matter of law because, inter alia, his “decision to resign was based on his desire for a higher[-]paying job, not on intolerable working conditions”).
Because Deslandes failed to show that she was constructively discharged, she likewise failed to establish the second and third elements of her prima facie case of retaliation. Thus, the trial court erred by denying TDCJ’s combined jurisdictional plea and summary-judgment motion as to Deslandes’s retaliation claim. Accordingly, we sustain TDCJ’s second issue.
III. CONCLUSION
Having overruled TDCJ’s first issue and having sustained its second issue, we reverse the trial court’s order denying TDCJ’s combined jurisdictional plea and summary-judgment motion as it pertains to Deslandes’s retaliation claim; we render judgment dismissing Deslandes’s retaliation claim for want of jurisdiction; and we affirm the trial court’s order in all other respects.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: August 27, 2026