Texas Health & Human Services and El Paso State Supported Living Center v. David Sepulveda

• Court: Court of Appeals of Texas
• Decided: March 15, 2023
• Docket: 08-22-00043-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TEXAS HEALTH & HUMAN SERVICES § No. 08-22-00043-CV and EL PASO STATE SUPPORTED LIVING CENTER, § Appeal from the

Appellants, § 129th Judicial District Court

v. § of El Paso County, Texas

DAVID SEPULVEDA, § (TC# 2018-DCV-0349)

Appellee. §

OPINION

Appellee David Sepulveda filed a lawsuit alleging that he was not promoted while working

at the El Paso State Supported Living Center (the Center) as a result of age and gender

discrimination and that he was retaliated against after he filed complaints with the Texas

Workforce Commission Civil Right Division (TWC), the Equal Employment Opportunity

Commission (EEOC), and the civil rights division of Texas Health and Human Services (THHS)—

the umbrella state agency responsible for overseeing the Center. Sepulveda named both the Center

and THHS (collectively, the State) as defendants and listed thirteen instances in which he believed

he was wrongfully denied promotion. The State filed a plea to the jurisdiction, which the trial court

granted in part and denied in part, dismissing ten of Sepulveda’s claims and leaving one claim of

age discrimination and two claims of retaliation. The State now appeals the partial denial of its

plea, arguing that Sepulveda failed to allege sufficient jurisdictional facts to support violations of the Texas Commission on Human Rights Act (TCHRA) on the three remaining claims. We affirm

the trial court’s denial of the plea on Sepulveda’s age discrimination claim but reverse on his two

retaliation claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Sepulveda’s work and educational background

The Center is home to over one hundred residents with intellectual and physical disabilities

and provides health care and behavioral treatment services. Sepulveda, who was born in March of

1969, began working at the Center in March 2001 as an entry-level Direct Support Professional I

(DSP-I). He provided the residents routine personal and emergency care, including grooming,

bathing, feeding, changing, and dressing them; repositioning them in bed; and transferring them

to wheelchairs. He was also responsible for executing individualized treatment plans prepared by

the Center’s Qualified Intellectual Development Professionals (QIDPs), which included teaching

life skills and independence while documenting progress and activities on a daily basis.

During his employment, Sepulveda continued his education, obtaining a Bachelor of Arts

in Psychology from The University of Texas at El Paso (UTEP) in 2005. In 2011 and 2012,

Sepulveda obtained four associate degrees from El Paso Community College in engineering-

electrical/electronic engineering, geological sciences, mathematics, and a general associate of arts

degree. And on an undisclosed date, Sepulveda began taking graduate courses at the University of

Permian Basin to obtain a master’s degree in special education, including a graduate certificate in

autism. He also started working toward a second bachelor’s degree in mathematics then changed

his focus to computer science from UTEP.

Sepulveda separated from the Center in December of 2018 once he ran out of leave after

suffering an injury unrelated to any of his current claims, which left him physically unable to

perform his DSP-I duties.

2 B. Sepulveda’s complaints of discrimination and retaliation

While working at the Center as a DSP-I, Sepulveda applied for at least thirteen different

higher-level positions but was not selected for any. On July 30, 2017, Sepulveda filed a formal

charge of discrimination with both the EEOC and the TWC, alleging the Center failed to promote

him due to age and gender discrimination and instead hired less qualified younger candidates, and

in many instances, females. 1 The TWC was unable to substantiate Sepulveda’s claims and

provided a Notice of Dismissal and Right to File a Civil Action dated November 30, 2017. On

December 22, 2017, the EEOC also issued Sepulveda a Notice of Right to Sue.

Relevant to the current appeal, Sepulveda then applied for two higher-level positions at the

Center in February and March 2018, respectively. After not being hired into those positions,

Sepulveda filed four internal complaints with THHS’s civil rights office, beginning on February 3,

2018, claiming, among other things, that the Center failed to hire him for the February position

due to either continuing age and sex discrimination and/or in retaliation for filing his 2017 EEOC

complaint.

On July 4, 2018, Sepulveda filed a second charge with the TWC and EEOC alleging the

Center retaliated against him by failing to promote him after July 4, 2017. Sepulveda amended his

complaint on April 22, 2019, to add additional charges; the TWC and EEOC again notified

Sepulveda they were unable to substantiate any of his charges, and on August 30, 2019, the TWC

provided Sepulveda with another Notice of Dismissal and Right to File a Civil Action.

C. Sepulveda’s lawsuit

In January 2018, Sepulveda filed his lawsuit (and amended it in October 2019 after

receiving his second EEOC response) bringing various claims of age and sex discrimination and

retaliation. In September 2021, after conducting extensive discovery, the State filed its Plea to the

1 The TWC received the filing on August 21, 2017.

3 Jurisdiction contending it had immunity from suit because Sepulveda had not established a prima

facie case of either discrimination or retaliation. 2

Following a hearing on the State’s motion, the trial court dismissed all but one age-

discrimination claim and two retaliation claims. The State appealed the trial court’s order denying

its plea to the jurisdiction with respect to the three claims.

II. ISSUES ON APPEAL

The State raises three issues on appeal. In Issue One, the State argues that the trial court

erred in denying its plea because Sepulveda failed to present sufficient jurisdictional facts to

support a waiver of the State’s immunity on his age-discrimination claim. In Issues Two and Three,

the State similarly contends that Sepulveda failed to present sufficient jurisdictional evidence to

support a waiver of immunity on his retaliation claims.

III. STANDARD OF REVIEW AND APPLICABLE LAW

A. Plea to the jurisdiction

We review a trial court’s denial of a plea to the jurisdiction de novo. Texas Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Governmental units, like the State, enjoy

sovereign immunity from lawsuits except where the Legislature waives immunity. Flores v. Texas

Dep’t of Criminal Justice, 634 S.W.3d 440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Texas

Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity

deprives a trial court of subject-matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia,

372 S.W.3d 629, 636 (Tex. 2012). The legislature has provided a limited waiver of immunity for

claims brought against governmental units alleging violations of the TCHRA as found in Texas

2 In conjunction with its Plea to the Jurisdiction, the State also brought no-evidence and traditional motions for summary judgment in which it argued that Sepulveda did not exhaust his administrative remedies for many of his claims and that many of his claims were time-barred. On appeal, the State’s sole focus is whether Sepulveda came forward with sufficient jurisdictional evidence to support a waiver of its immunity with respect to Sepulveda’s three remaining claims. We therefore do not address the issues raised in the State’s summary judgment motion.

4 Labor Code Chapter 21. Id. at 636-37. The waiver extends only to suits in which the pleadings

state a prima facie claim for a TCHRA violation, otherwise the governmental unit retains immunity

from suit. Texas Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso

2018, no pet.) (citing Mission Consol., 372 S.W.3d at 636).

The governmental entity may challenge subject-matter jurisdiction through a plea to the

jurisdiction. Flores, 634 S.W.3d at 450 (citing Miranda, 133 S.W.3d at 225–26). The plea can

attack both the pleaded facts as well as the existence of jurisdictional facts by attaching evidence

to the plea. Id. (citing Miranda, 133 S.W.3d at 226–27). When, as here, a defendant challenges the

existence of jurisdictional facts with supporting evidence, the court must move beyond the

pleadings and consider the evidence. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52

(Tex. 2021) (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018)).

In such cases, the standard of review mirrors that of summary judgments. Alamo Heights, 544

S.W.3d at 771. Thus, if the defendant challenges the plaintiff’s factual allegations “with supporting

evidence necessary to the consideration of the plea to the jurisdiction, to avoid dismissal, the

plaintiff[] must raise at least a genuine issue of material fact to overcome the challenge to the trial

court’s subject matter jurisdiction.” Id. In determining whether a material fact issue exists, we take

as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving

any doubts in the plaintiff’s favor. Id. (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 378

(Tex. 2009). At the same time, we cannot disregard evidence and inferences unfavorable to the

plaintiff if reasonable jurors could not. Id.

B. TCHRA

The TCHRA prohibits an employer from discriminating against employees on the basis of

“race, color, disability, religion, sex, national origin, or age[.]” TEX. LAB. CODE ANN. § 21.051.

Relevant here, it is an “unlawful employment practice” under the TCHRA if, because an individual

is forty years old or older, an employer “fails or refuses to hire an individual, discharges an

5 individual, or discriminates 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); see also id. § 21.101. Similarly, the TCHRA protects employees from retaliation by

their employer for, among other things, reporting discrimination, including filing a TCHRA

complaint. TEX. LAB. CODE ANN. § 21.051; see also id. § 21.055(1)–(3). In adopting the TCHRA,

the Legislature “intended to correlate state law with federal law in employment discrimination

cases”; 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).

In determining whether a plaintiff has a valid TCHRA claim, Texas courts recognize two

alternative methods of proof. See Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 477-79

(Tex. App.—El Paso 2013, pet. denied), citing Mission Consol., 372 S.W.3d at 634. First, a

plaintiff may prove unlawful discriminatory or retaliatory intent via direct evidence. Id. at 478.

“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without

inference or presumption.” Id. at 478.

Because it is difficult to prove discriminatory animus through direct evidence, courts

recognize a second method to establish a claim of either discrimination or retaliation, known as

the McDonnell-Douglas burden-shifting framework, which allows a plaintiff to rely on

circumstantial evidence to establish his claims. Id.; Texas Tech Univ. Health Scis. Ctr.-El Paso v.

Flores, 612 S.W.3d 299, 305 (Tex. 2020) (recognizing that direct evidence of discriminatory intent

is typically hard to come by); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under

the McDonnell-Douglas framework, the plaintiff must first establish a prima facie case of

discrimination or retaliation, which creates a presumption of a TCHRA violation. 3 Alamo Heights,

3 A failure to promote is generally considered an adverse employment action for purposes of the TCHRA. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 70 (Tex. 2000) (treating failure to promote as an adverse employment action); Esparza v. Univ. of Texas at El Paso, 471 S.W.3d 903, 909 (Tex. App.—El Paso 2015, no pet.) (“Employment decisions actionable as adverse employment actions include decisions to hire, discharge, promote, and compensate.”).

6 544 S.W.3d at 782. The burden then shifts to the defendant to rebut that presumption by producing

a legitimate, nondiscriminatory reason for the adverse employment action. Id. In a discrimination

case, the burden then shifts back to the plaintiff to come forward with sufficient evidence to raise

a genuine issue of material fact on the question of whether the defendant’s stated reason is

pretextual, i.e., that the stated reasons were either false or unworthy of credence. 4 Id.; see also

Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir. 2007) (discussing

methods of establishing that an employer’s reasons were pretextual). And in a retaliation case, the

burden shifts to the plaintiff to raise a genuine issue of material fact as to whether his protected

activity was the but-for cause of the adverse employment action. Alamo Heights, 544 S.W.3d at

782.

IV. AGE-DISCRIMINATION CLAIM

In Issue One, the State alleges that Sepulveda failed to come forward with sufficient

jurisdictional facts to support his claim of age discrimination. We disagree.

A. Sepulveda’s July 2017 application

Sepulveda’s age-discrimination claim regards his June 28, 2017 DSP-II application (Job

Posting 354290). Devon Perry, the hiring manager, did not select Sepulveda for an interview,

4 The State contends that even if Sepulveda is able to come forward with evidence that the State’s failure to promote him was pretextual, Sepulveda was still required to come forward with direct evidence that the “real reason” for the State’s failure to promote him was “intentional age discrimination.” In making this argument, the State appears to be relying on the former “pretext plus” standard that required a plaintiff to not only come forward with circumstantial evidence of a pretext but direct evidence of a discriminatory intent as well; however, this standard has been expressly rejected by both the United States Supreme Court and Texas courts, and it is therefore sufficient for a plaintiff to come forward with circumstantial evidence casting doubt on the employer’s reasons for taking an adverse employment action, leaving the trier of fact to resolve the ultimate question of the employer’s intent. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”); Gee v. Principi, 289 F.3d 342, 348 (5th Cir. 2002) (recognizing that after the Supreme Court’s decision in Reeves, a plaintiff need only provide “sufficient evidence to cast doubt” on the employer’s explanation for an adverse employment action, and that it is up to the trier of fact to determine whether the explanation was in fact a pretext for discrimination); Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 909–10 (Tex. App.—El Paso 2001, pet. denied) (recognizing that in light of the Reeves decision, “pretext plus is not the law” and a plaintiff therefore need not come forward with direct evidence of a discriminatory intent to sustain his case under a McDonnell-Douglas analysis).

7 instead interviewing only Jesus Bravo—the ultimately successful candidate who was twenty-four

years old at the time. Sepulveda relies on circumstantial evidence to show his prima facie case.

B. Applicable law: elements of an age discrimination claim

In order to establish a prima face case of age discrimination, Sepulveda must come forward

with sufficient jurisdictional evidence establishing: (1) he was not hired for the DSP-II position;

(2) he was qualified for that position; (3) he was forty years old or older; and (4) someone

significantly younger than him outside his protected class was hired for the position. See Texas

Dep’t of Aging & Disability Services v. Lagunas, 618 S.W.3d 845, 853 (Tex. App.—El Paso 2020,

no pet.); see generally Mission Consol., 372 S.W.3d at 641 (recognizing that an inference of age

discrimination “cannot be drawn from the replacement of one worker with another worker

insignificantly younger”). Here, only the second element is challenged. The State argues that

Sepulveda did not establish that he was qualified for the position. We disagree.

The question of whether an employee was qualified for a position turns on whether the

employee met the objective qualifications for the job. See Johnson v. Louisiana, 351 F.3d 616, 622

(5th Cir. 2003); Texas Health & Human Services Comm’n v. Baldonado, No. 13-14-00113-CV,

2015 WL 1957588, at *4 (Tex. App.—Corpus Christi Apr. 30, 2015, no pet.) (mem. op.) (an

employee can establish his prima facie case of discrimination in a failure to promote case by

demonstrating that he meets the objective hiring criteria for the job) (citing Medina v. Ramsey Steel

Co., Inc., 238 F.3d 674, 681 (5th Cir. 2001)).

C. Sepulveda met his prima facie case of discrimination

The relevant job posting for the position for which Sepulveda applied (354290) stated the

following “Initial Screening Criteria”:

Prefer High School diploma or GED. Prefer experience in a supervisory role. Experience in direct care role. Prefer experience in writing reports. Experience in working with people who have mental health/developmental disabilities. Prefer experience in behavior programs for persons with developmental disabilities.

8 It then listed the following “Knowledge, Skills [and] Abilities”:

Ability to make decisions and uses good judgment when dealing with critical incidents. Ability to react quickly and calmly in an emergency situation. Ability to demonstrate proper body mechanics, good posture, and proper lifting techniques. Knowledge of individual care techniques and of treatment, therapy, and developmental programs. Ability to provide individual care, to administer first aid and/or cardiopulmonary resuscitation, to conduct Prevention and Management of Aggressive Behavior (PMAB), to communicate effectively, to train others, and to supervise the work of others. Ability to work effectively with others and as a member of a team. 5

The State appears to concede that Sepulveda met (or exceeded) the educational

requirements for the position as listed in the initial screening criteria and that he had the required

and preferred work experience both working in a direct care role with persons with mental

health/development disabilities and in writing reports. However, the State contends Sepulveda

lacked the posting’s stated preference for experience in a supervisory role. The State’s argument

on this point is belied by the record.

First, Sepulveda’s application expressly stated that he held a supervisory position as a

junior manager at an El Paso store from 1996 to 1999 and supervised up to four employees during

that time. The State argues this experience was not relevant and Sepulveda failed to meet the job

posting’s requirement because he had no supervisory experience at the Center. However, the job

posting stated only that it preferred supervisory experience in general; it did not specify

supervisory experience at the Center or even in a similar field. Moreover, it was only a preferred

criterion, not a required one. See generally Texas Dep’t of Criminal Justice v. Cooke, 149 S.W.3d

700, 706 (Tex. App.—Austin 2004, no pet.) (recognizing that an individual could still be

considered qualified for a job where he lacked a certification that was listed only as preferred at

5 We note that the State refers in its briefing to a different job posting (00073187), which is an undated “perpetual” posting for a DSP-II position at the Center. To the extent that it lists different qualifications or screening criteria, we do not consider that posting in our analysis.

9 the time he made his application). Accordingly, the record establishes that Sepulveda met all of

the initial screening criteria to at least receive an interview for this position.

The State also contends Sepulveda did not demonstrate that he met the “knowledge, skills

and abilities” listed on the job posting because various individuals at the Center testified that they

“had doubts” about Sepulveda’s ability to perform his DSP-I functions, let alone be promoted to a

higher-level position. As explained below, however, their testimony was primarily based on their

subjective opinions about Sepulveda’s job performance, which we do not consider at this stage of

the analysis. Moreover, Perry—who was responsible for the decision—did not indicate that he was

even aware of the other employees’ opinions at the time he decided not to promote Sepulveda.

And the State provides no other evidence that Sepulveda did not meet the qualifications listed in

the job posting.

Accordingly, Sepulveda met his prima facie case burden and next burden lies with the

State.

D. The State proffered a nondiscriminatory reason for failing to promote Sepulveda

We next determine whether the State produced sufficiently specific evidence of a

legitimate, nondiscriminatory business reason for its failure to promote Sepulveda. See Lagunas,

618 S.W.3d at 853 (recognizing that an employer must “articulate some legitimate,

nondiscriminatory reason” for its failure to promote an employee); Texas Dep’t of State Health

Services v. Resendiz, 642 S.W.3d 163, 175 (Tex. App.—El Paso 2021, no pet.) (“[A]n employer’s

articulated reasons for the adverse termination decision must be sufficiently specific to give the

employee the opportunity to present evidence establishing that the reasons were pretextual.”). 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. See Bowen,

49 S.W.3d at 909 (citing Reeves, 530 U.S. at 142.

10 Here, Perry stated in his affidavit that he selected Bravo over Sepulveda based on his

opinion that Bravo was better qualified for the position than Sepulveda. According to Perry: (1)

he “knew [Bravo] to be a person who responded well at times of crisis in the homes” but that he

“was not aware of Mr. Sepulveda’s performance to the extent he was able to respond to crises in

the homes; and (2) “Bravo wrote [in his application] that he steps into the role of his supervisor

‘when the supervisor is not present’ and that he performed duties as a home team leader,” while

“Sepulveda’s application did not include this experience.” 6 Perry stated in his affidavit that he was

not aware of Sepulveda’s age at the time he applied for the position at issue and that Sepulveda’s

age was not a factor in his decision.

Although the State came forward with other reasons for its decision not to promote

Sepulveda, Perry’s stated reasons are sufficient to state a legitimate, nondiscriminatory reason for

its decision. See Vanzante v. Texas A & M Univ.-Kingsville, No. 13-15-00313-CV, 2016 WL

3366055, at *3 (Tex. App.—Corpus Christi June 16, 2016, pet. denied) (mem. op.) (in a failure-

to-promote case, the employer’s decision to select a more qualified applicant for a position

generally constitutes a legitimate, nondiscriminatory justification for a failure to hire the plaintiff)

(citing Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004). Accordingly, the burden shifts back to

Sepulveda.

E. Sepulveda came forward with evidence of pretext

In the final prong of the analysis, a plaintiff can demonstrate evidence of pretext by

showing either that he was clearly better qualified than the employee who was selected or that the

employer’s proffered explanation for its decision was false or unworthy of credence. See Sw. Bell

Tel., L.P. v. Edwards, No. 05-09-00606-CV, 2011 WL 3672288, at *3 (Tex. App.—Dallas

6 A home team leader is the DSP who is trained to be in charge of other staff members in a particular division at the Center when the regular supervisor is not there. However, as Sepulveda points out, it does not appear to be an official position at the Center.

11 Aug. 23, 2011, no pet.) (mem. op.) (plaintiff could show evidence of pretext in a failure-to-promote

case using either method) (citing Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d

408, 412 (5th Cir. 2007)); see also Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010)

(discussing alternative methods of showing evidence of pretext).

While the State primarily focuses on the question of whether Sepulveda had sufficient

evidence to establish that he was clearly better qualified than Bravo, Sepulveda focuses on

asserting that the State’s proffered reasons for not promoting him were false and/or unworthy of

credence. Sepulveda was not required to demonstrate that he was clearly better qualified for the

position as well. See Little v. Texas Dep’t of Criminal Justice, 177 S.W.3d 624, 633 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (“although pointing to clearly superior qualifications is one

permissible way to demonstrate intentional discrimination, a plaintiff is not required to make this

showing”) (emphasis original) (citing Julian v. City of Houston, Texas, 314 F.3d 721, 728 (5th Cir.

2002)); see also Jaso v. Travis Cnty. Juvenile Bd., 6 S.W.3d 324, 330 (Tex. App.—Austin 1999,

no pet.) (stating that “[t]o prove pretext the plaintiff may show that he is clearly better qualified . .

. but he may also prove pretext by other evidence”) (citing EEOC v. Manville Sales Corp., 27 F.3d

1089, 1096 n.5 (5th Cir. 1994) (showing that discharged employee was clearly better qualified

than younger retained employee is merely one of many ways to prove pretext for age

discrimination)); see generally Reeves, 530 U.S. at 147 (noting that “[p]roof that the defendant’s

explanation is unworthy of credence is simply one form of circumstantial evidence that is probative

of intentional discrimination, and it may be quite persuasive”).

Pretext in this context can be shown by “revealing weaknesses, implausibilities,

inconsistencies, or contradictions” in the employer’s stated reasons “that a fact finder could find

unworthy of credence.” Texas Dep’t of Transp. v. Flores, 576 S.W.3d 782, 794 (Tex. App.—

El Paso 2019, pet. denied) (citing EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1198

12 (10th Cir. 2000)). Sepulveda points to several inconsistencies and contradictions in the State’s

proffered reasons.

1. The State provided shifting reasons for not promoting Sepulveda

As Sepulveda points out, providing inconsistent and shifting explanations for an adverse

employment decision can give rise to an inference of pretext. See Burrell, 482 F.3d at 415

(employer’s inconsistencies in providing differing reasons for not selecting an employee for

promotion was evidence from which a jury could infer that the employer’s proffered reasons for

the nonselection were pretextual); Univ. of Texas Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV,

2020 WL 5757393, at *21 (Tex. App.—Dallas Sept. 28, 2020, no pet.) (mem. op.) ( “Doubt in the

employer’s asserted reason can be established in a number of ways, including by proof that the

employer provided shifting or different reasons for its action at different times.”) (citing Caldwell

v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (“employer’s inconsistent explanations for an

employment decision ‘cast doubt’ on the truthfulness of those explanations”). And we can consider

the inconsistent nature of the State’s reasons beginning with the reasons for an adverse

employment action given to the TWC and the reasons given throughout litigation. See Orion Mktg.

Group, Inc. v. Morris, No. 04-07-00151-CV, 2008 WL 441759, at *4 (Tex. App.—San Antonio

Feb. 20, 2008, no pet.) (mem. op.) (jury could find pretext when employer gave multiple

inconsistent reasons for terminating employee, including to the TWC); Palasota v. Haggar

Clothing Co., 342 F.3d 569, 575 (5th Cir. 2003) (jury could infer discriminatory animus from

employer’s shifting reasons from time of the adverse employment action to time case was

litigated)).

The State has provided a number of different reasons for its failure to promote Sepulveda,

beginning with its responses to TWC and ending with its arguments on appeal. As Sepulveda

points out, during TWC’s investigation, the THHC civil rights director filed a sworn position

statement contending that all of the job postings for which Sepulveda applied—including the job

13 posting under consideration (Number 354290)—had been cancelled due to budget constraints, and

therefore no adverse employment action was taken against him. The State acknowledges that her

statement was not true and is now relying on different reasons for failing to promote him. The

State contends we should not consider its erroneous response to the TWC because it was

inadvertent and the director had no personal knowledge of what occurred.

Perry, the hiring manager for the DSP-II position, focused on Bravo’s qualifications as the

reason for not hiring Sepulveda despite not being aware of whether Sepulveda had any similar

experience and ability to respond well in times of crises. 7 Although Perry made no mention of any

additional factors in his affidavit that he relied on to support his hiring decision, as discussed

below, the State relied on several other explanations to justify Perry’s hiring decision, many of

which are belied by the record or were based on incidents that occurred after Perry made his hiring

decision.

2. The State provided reasons that were belied by the record

First, as set forth above, the State argued that Sepulveda did not have the requisite

supervisory experience to meet the initial screening criteria for the DSP-II position and even stated

in the trial court that Sepulveda had “identified zero supervisory experience” in his application.

Yet, as explained above, Sepulveda’s application clearly stated that he had two years of

supervisory experience in a prior job.

Second, the State argued that Sepulveda was not promoted because of the Center’s

generally low opinion of his DSP-I performance. In particular, the State relied on the affidavits

7 Sepulveda also contends that the State was inconsistent in identifying the final decisionmaker responsible for hiring Bravo, contending that the record reflects that Joana Alferez, rather than Devon Perry, was the person who made the final decision and that we can infer pretext from this inconsistency. The State counters that there is no inconsistency in the record and that Perry was in fact the sole decisionmaker. We need not resolve this factual dispute, however, because in order to raise an issue on pretext in this context, the record must reflect that the State’s supervisory employees were refusing to accept responsibility for the hiring decision and were shifting blame to each other. See Texas Dep’t of State Health Services v. Resendiz, 642 S.W.3d 163, 177 (Tex. App.—El Paso 2021, no pet.). Here there was no such blame-shifting; instead, Perry expressly testified in his affidavit that he was the hiring manager responsible for failing to promote Sepulveda to the DSP-II position.

14 and deposition transcripts of two individuals who had interviewed Sepulveda for other positions

and expressed their opinion that Sepulveda was not qualified to perform his role as a DSP-I, that

he “was not a reliable worker,” that he “did only the minimal,” and that he had an “apathetic,

unambitious approach” to his work. .However, Sepulveda points to his DSP-I job evaluation from

August 1, 2016 to August 1, 2017, signed by his supervisor only a month after Sepulveda applied

for this job posting, in which she stated that Sepulveda met all DSP-I job performance

expectations, including his professionalism, his regular attendance at work, his initiative and

willingness to take on additional responsibilities and put in extra work, and his ability to assist

residents in both routine and emergency situations. And in his 2013 evaluation—the only other

evaluation in the record—the same supervisor rated him competent in all performance measures.

The Texas Supreme Court faced a similar situation in Quantum Chem. Corp., 47 S.W.3d

at 481, where an employer claimed that it terminated an employee due to poor job performance.

The employee, however, came forward with evidence that he had received satisfactory job

performance reviews, which contradicted the employer’s reasons for terminating him. Id. at 481.

The court noted the evidence supported the employee’s claim that the employer’s stated reason for

the termination was a pretext, which in turn was sufficient to “permit the trier of fact to find that

the employer was actually motivated by discrimination.” Id. at 481-82 (citing Reeves, 530 U.S.

133, 147–148)); see also Gee v. Principi, 289 F.3d 342, 348 (5th Cir. 2002) (where employer’s

statement that plaintiff was not selected due to problems in the workplace was contradicted by

reviews received shortly before the termination, casting doubt on the employer’s proffered reason

for nonselection and constituting evidence of pretext). Burrell, 482 F.3d at 415 (evidence of

performance reviews contradicting employer’s claim that plaintiff was not qualified for promotion

cast doubt on the employer’s reasons for its failure to promote her).

15 3. The State relied on events that occurred after Sepulveda’s nonselection

The State also seeks to justify its decision for selecting Bravo over Sepulveda by pointing

to at least three incidents or events that occurred after Perry made his decision. First, the State

contends that, unlike Bravo who stepped up and took on the role of home team leader, Sepulveda

had refused an offer by Joana Alferez to take on such a role, thereby painting him as being

unwilling to take on additional responsibility. However, Sepulveda was not offered a position as

team leader until June of 2018, well after he applied for the July 2017 DSP-II job posting. 8

Second, as set forth above, the State relies on an affidavit from an employee (Mirelle De

La Cruz), who interviewed Sepulveda for another DSP-II position in 2018, in which she asserted

that Sepulveda gave answers suggesting he was unfamiliar with proper lifting techniques, which

were required for the DSP-II position. 9 However, since those responses were given in 2018, they

could not have been a factor in the State’s decision to not promote Sepulveda in July 2017.

Similarly, the State relies on an affidavit from another hiring manager (Irma Nieto), who recalled

that she did not select Sepulveda for an interview for another DSP-II position in late 2017, based

in part on two incidents in which she observed Sepulveda almost drop a resident due to improper

body mechanics and saw him look away while walking with a resident. Nieto did not indicate

when those incidents occurred, nor did the record indicate that Perry was aware of those incidents

when he made the July 2017 decision not to promote Sepulveda.

Third, the State relied on a statement that Sepulveda made in his deposition to the effect

preferring to be in a position that was not physically demanding if the Center reinstated him due

8 Further, as Sepulveda points out, Alferez’s offer came with the requirement that Sepulveda be moved to a different unit at the Center with a more fragile population (thereby increasing the physical burden on him), which Sepulveda perceived to be a form of retaliation given his declining medical condition at that time. 9 In her affidavit, De La Cruz recalled that Sepulveda admitted in his interview that “he did not know how to utilize a gait belt, which is common to use on the floor” and for which Sepulveda had been trained. De La Cruz further criticized a response that Sepulveda gave during the interview regarding how he would react if an individual fell to the floor, stating that he would move the individual first rather than “notifying nursing for medical attention first.”

16 to the medical issues he was suffering from at that time. According to the State, this was evidence

that Sepulveda was unable to perform the physical demands of either a DSP-I or DSP-II position,

which it again relied on in justifying Perry’s hiring decision. However, as Sepulveda points out,

his physical limitations began in 2018, well after he was denied promotion to the DSP-II position.

The State has not pointed to any evidence that Sepulveda had any such physical limitations at the

time he was denied promotion; to the contrary, his August 2017 job review indicated he was able

to perform his job.

We therefore find that the State’s reliance on this after-the-fact documentation to justify

the hiring decision gives rise to an inference that its proffered reasons for failing to promote

Sepulveda were pretextual. See generally Burton v. Freescale Semiconductor, Inc., 798 F.3d 222,

237 (5th Cir. 2015) (where record reflected that employer gathered “documentation” that postdated

decision to terminate plaintiff, jury could infer that its reasons for her termination were pretextual).

4. There were discrepancies in the interview process

Finally, we note that the State’s failure to select Sepulveda for an interview, despite the

fact that he met the initial screening criteria in the job posting, gives rise to an inference of pretext.

See generally Stennett v. Tupelo Pub. Sch. Dist., 619 Fed. App’x 310, 320 (5th Cir. 2015) (where

plaintiff meets the qualifications listed in job posting, “a reasonable juror could find it suspect that

she would not even be provided the opportunity to interview”) (citing Wheeler v. City of Columbus,

Miss., 686 F.2d 1144, 1153–54 (5th Cir.1982) (an employer’s failure to interview a candidate can

“help carry [plaintiff’s] burden” of proving pretext).

Sepulveda points to several irregularities in the interviewing process: (1) despite the State’s

heavy reliance on Bravo’s qualifications for selecting him, Bravo’s application for the position is

missing; (2) the record contains two separate interview matrix forms for Bravo’s interview, entered

on the same day with Perry’s signature, each with different answers to the same questions and

widely disparate scores; (3) Perry failed to record his reason for rejecting Sepulveda on the optional

17 matrix selection document, which instructs the hiring manager to provide his reasons for rejecting

each applicant; and (4) Bravo was offered the position on July 24, 2017, four days before the listed

date on the job posting. 10 Although we cannot say at this early stage in the proceedings that the

discrepancies were indicative of discrimination, an employer’s failure to follow its own internal

policies and practices when taking an adverse employment action can create an inference of

pretext. See, e.g., Univ. of Texas at Dallas v. Addante, 651 S.W.3d 271, 277 (Tex. App.—Dallas

2021, no pet.) (“Circumstantial evidence of pretext may include the employer’s failure to follow

its usual policies and procedures in carrying out the challenged employment actions.”); Dell, Inc.

v. Wise, 424 S.W.3d 100, 111 (Tex. App.—Eastland 2013, no pet.) (recognizing that in some

instances, an employer’s failure to follow its own policies in terminating an employee can be

evidence of pretext in an age discrimination case where employer treated younger similarly

situated employees differently).

We conclude that Sepulveda came forward with sufficient jurisdictional evidence to raise

a question of fact regarding whether the State’s proffered reasons for failing to promote him were

false or lacking in credibility and thus a pretext for age discrimination. 11 Accordingly, the trial

court did not err by denying the State’s plea to the jurisdiction with respect to Sepulveda’s age-

discrimination claim.

We overrule the State’s first issue.

10 The first matrix scored Bravo with a “1” in every category, which indicated that Bravo demonstrated “almost no knowledge or understanding” of the listed category. The second matrix scored Bravo with a “3” or “4” in every category, indicating that Bravo demonstrated either “acceptable knowledge and understanding” (3) or demonstrated “full knowledge and understanding” (4) of the listed categories. 11 Because of our conclusion that Sepulveda came forward with sufficient jurisdictional evidence to support his claim of age discrimination, we need not resolve the parties’ debate regarding whether Sepulveda was permitted to support his claim by relying on the affidavit of another employee at the Center who expressed his belief that the Center had also failed to promote him based on his age.

18 V. RETALIATION CLAIMS In Issues Two and Three, the State posits that Sepulveda failed to allege sufficient

jurisdictional facts to support his two remaining claims of retaliation and that the trial court erred

in denying its plea to the jurisdiction with respect to both claims. We agree.

A. Applicable law: the elements of a retaliation claim

An employer is prohibited from retaliating against an employee who files a charge or

complaint alleging discrimination in the workplace. TEX. LAB. CODE ANN. § 21.055. When, as

here, an employee has no direct evidence that its employer had a retaliatory motive for engaging

in an adverse employment action, we apply the McDonnell-Douglas burden-shifting framework

to determine if he has a valid claim of retaliation under the TCHRA that waives the State’s

immunity. To establish a prima facie case of unlawful retaliation sufficient to waive immunity, the

employee must show: (1) he engaged in an activity protected by the TCHRA; (2) he experienced

a material adverse employment action; and (3) a causal link exists between the protected activity

and the adverse action. See Texas Health & Human Services Comm’n v. Enriquez, 642 S.W.3d 21,

31–33 (Tex. App.—El Paso 2021, no pet.) (citing Alamo Heights, 544 S.W.3d at 782; see also

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006). The causation standard for the

prima-facie-case element in retaliation cases is not onerous and can be satisfied merely by proving

close timing between the protected activity and the adverse action. Enriquez, 642 S.W.3d at 32

(citing Alamo Heights, 544 S.W.3d at 782). If the employee satisfies its prima facie showing, a

rebuttable presumption of retaliation arises, which can alone sustain the employee’s claim. Id.

(citing Alamo Heights, 544 S.W.3d at 782).

Once a plaintiff establishes its prima facie case, an employer can then defeat the

presumption of retaliation by “producing evidence of a legitimate, nondiscriminatory reason for

the disputed employment action.” Id. The burden then shifts back to the employee to provide

19 evidence that the adverse action would not have occurred when it did but for the protected activity.

Id.

In Alamo Heights, the court identified a series of factors that are useful in analyzing the

causal link in a retaliation case:

In evaluating but-for causation evidence in retaliation cases, we examine all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer’s stated reason is false.

544 S.W.3d at 790; see also Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451–52

(Tex. 1996) (setting forth factors to be considered in determining whether a causal link exists

between the filing of a workers compensation claim and an adverse employment action).

The Texas Supreme Court recently emphasized that these factors may be relevant in some,

but not all situations, and should not be considered a replacement for the but-for-causation

standard. Apache Corp. v. Davis, 627 S.W.3d 324, 336 (Tex. 2021) (recognizing that these “factors

may be more helpful in some cases and less in others” and that “[s]ome of the factors may actually

be a distraction.”). Accordingly, it recognized that “determining but-for causation cannot be a

matter of weighing—or worse, counting—factors that may be helpful in analyzing circumstantial

evidence in some situations.” Id. at 337. Our ultimate focus must always remain on whether the

employee can show that but for the protected activity, the adverse employment action would not

have occurred when it did. See Enriquez, 642 S.W.3d at 32-33.

We review each retaliation claim separately to determine whether Sepulveda has come

forward with sufficient jurisdictional evidence.

B. Sepulveda’s February 2018 claim of retaliation

As set forth above, Sepulveda filed his first claim of age and gender discrimination with

the TWC in July 2017. Thereafter, Sepulveda applied for Job Posting 367257, with a hiring date

20 of February 1, 2018, which was posted to fill two QIDP-III positions. The hiring manager, Cynthia

Martinez, did not select Sepulveda for an interview for a QIDP-III position; instead, she

interviewed and hired two younger candidates: Jimmy Guillen-Chavez, a thirty-three-year-old

male, and Denise Rocha, a thirty-year-old female. And Sepulveda claims that he was not selected

for this position as the result of retaliation for filing his 2017 TWC complaint.

The State acknowledges that Sepulveda has sufficient jurisdictional facts to support the

first two prongs of his prima facie case of retaliation, i.e., that he engaged in the protected activity

and that he suffered a material adverse employment action by not being selected for the QIDP-III

position. And Sepulveda does not deny that the State had a legitimate, non-discriminatory reason

for not selecting him for that position. Thus, our focus is on the two related issues of whether

Sepulveda can establish a causal link between his filing a TWC complaint and Martinez’s failure

to select him for the position, and relatedly, whether he can establish that but for filing the

complaint, the adverse action would not have occurred when it did. We conclude that he is unable

to raise a fact issue as to either.

As a preliminary matter, we agree with Sepulveda that a jury could infer from the facts that

Martinez had knowledge of his 2017 TWC complaint when she failed to select Sepulveda for the

QIDP-III position. Martinez was named in his 2017 TWC discrimination complaint, and she

admittedly was contacted by the THHSC civil rights office asking her to supply her reasons for

not selecting Sepulveda for a position he had applied for in August of 2017. Nevertheless, as the

State points out, knowledge of an employee’s complaint is not enough, standing alone, to establish

a causal link between the filing of the complaint and an adverse employment action. See Houston

v. EBI Companies, 53 F.3d 1281 (5th Cir. 1995) (recognizing that an “employer’s knowledge of a

plaintiff’s participation in a protected activity, without more, is insufficient to show a causal

connection between the plaintiff’s participation in the activity and the adverse employment

action”); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658-60 (Tex. App.—El Paso 1989)

21 (because knowledge of a complaint alone is insufficient to establish causation in a retaliator

discharge case, a court must determine if other factors exist in the record to support a jury’s verdict

that retaliation occurred). Nothing else in the record suggests a causal link between Martinez’s

knowledge of the complaint and her decision not to promote Sepulveda.

The seven-month gap between the time Sepulveda filed his complaint and when the Center

failed to promote him to the position of QIDP-III is generally considered too long to support a

finding of temporal proximity. See Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 92–93

(Tex. App.—El Paso 2020, no pet.) (finding seven-month gap between protected activity and

constructive discharge, without more, insufficient to give rise to inference of causation);

Donaldson v. Texas Dep’t of Aging & Disability Services, 495 S.W.3d 421, 444 (Tex. App.—

Houston [1st Dist.] 2016, pet. denied) (six-month gap between filing complaint of discrimination

and adverse employment action was too long to create a presumption of retaliation). As the United

States Supreme court has recognized, the “cases that accept mere temporal proximity between an

employer’s knowledge of protected activity and an adverse employment action as sufficient

evidence of causality to establish a prima facie case uniformly hold that the temporal proximity

must be ‘very close.’” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

Sepulveda has not pointed to any other factors to support a finding that there was a causal

link between filing his complaint and Martinez’s failure to hire him for the QIDP-III position.

Similarly, Sepulveda has not come forward with any evidence or argument to support a finding

that the State’s proffered reasons for selecting the other two candidates instead of him were false

or unworthy of credence. As Martinez averred in her affidavit, the two selected candidates were

clearly better qualified for the position than Sepulveda both in terms of their educational

background and work experience. Both candidates had a master’s degree in relevant fields (Rocha

had a master’s in psychology and Chavez had a master’s in human services), and Sepulveda did

not. And both candidates had extensive experience in performing the very type of work required

22 of a DSP-III. Specifically, Rocha had already been working as a QIDP-II since January of 2017

developing individual treatment plans, and Chavez had been working at a behavioral health

developing individual service plans for its residents. Martinez asserted in her affidavit that

Sepulveda simply lacked any such experience.

Sepulveda argued in the trial court and on appeal that he was the better candidate, asserting

that he had equal education and that he had been working at the Center longer and therefore had a

“lot more experience” than the two successful candidates. But as Martinez correctly noted in her

affidavit, Sepulveda’s educational background was not equal to the selected candidates, as they

both had master’s degrees in relevant fields and Sepulveda did not. Moreover, the fact that

Sepulveda had been working longer at the Center, standing alone, did not make Sepulveda more

qualified for the position, as “years of experience do not equate with qualifications.” See Anderson

v. Taylor Pub. Co., 13 S.W.3d 56, 60 (Tex. App.—Dallas 2000, pet. denied) (citing Nichols v.

Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996)). We are left with Sepulveda’s subjective

belief that he was the better qualified candidate, which is not sufficient to establish pretext. See id.

(plaintiff’s general statement that he was better qualified than other, younger employee to perform

various jobs was “wholly conclusory and subjective and, therefore, insufficient to raise a fact

issue” on the question of whether employer discriminated in favor of the younger employee by

retaining him and not the plaintiff); see generally M.D. Anderson Hosp. & Tumor Inst. v. Willrich,

28 S.W.3d 22, 25 (Tex. 2000) (recognizing that an employee’s “subjective belief” that he was

terminated due to discrimination was insufficient to create a fact issue about whether employer’s

legitimate nondiscriminatory reason for terminating him was pretextual).

Accordingly, we agree with the State that Sepulveda did not come forward with sufficient

jurisdictional evidence to establish that he would have been hired for the QIDP-III position but for

filing his complaint. See generally Zimlich, 29 S.W.3d at 69–70 (reversing jury’s finding of

retaliation in failure-to-promote case where there was no evidence of any of the relevant factors to

23 support his claim that he was not promoted but for his protected activity). We therefore conclude

that the trial court erred in denying the State’s plea to the jurisdiction with respect to this claim.

We sustain the State’s second issue.

C. The March 2018 job application

Two days after being denied the above-described QDIP-III position on February 1, 2018,

Sepulveda immediately filed an internal complaint with THHS’s civil rights office alleging the

State had retaliated against him for filing his 2017 TWC complaint by failing to hire him for the

position. Sepulveda thereafter applied for Job Posting 371994, a DSP-IV campus coordinator

position with a hiring date of March 16, 2018. The candidate selected was again Jesus Bravo, who

was twenty-six years old at the time. Sepulveda argues he was not selected for this position in

retaliation for filing both his 2017 TWC complaint and his internal February complaint.

Once again, the State acknowledges that Sepulveda met his jurisdictional burden on the

first two prongs of this retaliation claim, as he filed his complaints of discrimination and retaliation

prior to being denied the DSP-IV position. And once again, Sepulveda does not contend that the

State did not have a legitimate, nondiscriminatory reason for not selecting him for the position.

Therefore, our analysis here also turns on causation.

As Sepulveda filed his internal complaint with the civil rights office approximately six

weeks before the State’s failure to hire him for the DSP-IV position, we will assume for purposes

of our analysis that this temporal proximity is sufficient to raise a fact issue on the causal link in a

prima facie case. See, e.g., Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 529

(Tex. App.—Houston [1st Dist.] 2000, pet. denied) (upholding temporal proximity as evidence of

causation when the protected activity and adverse employment action were “separated by weeks,

as opposed to months”).

Beyond temporal proximity, which alone does not raise a fact as to but-for causation,

Sepulveda has not come forward with other evidence showing he would have been promoted to

24 the DSP-IV position but for filing his complaints. See generally Strong v. Univ. Healthcare Sys.,

L.L.C., 482 F.3d 802, 808 (5th Cir. 2007) (recognizing that “temporal proximity alone is

insufficient to prove but for causation”). Sepulveda has not pointed to any evidence in the record

to suggest that either of the hiring managers for this position knew that Sepulveda had filed his

internal complaint with the civil rights office. 12 EEOC v. Omni Hotels Mgmt. Corp., 516 F. Supp.

2d 678, 704–05 (N.D. Tex. 2007) (recognizing that a causal link is “established when evidence

demonstrates that ‘the employer’s decision to terminate was based in part on knowledge of the

employee’s protected activity.’”) (citing Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir.

2001).

Moreover, Sepulveda failed to come forward with any evidence to support a finding that

the State’s proffered nondiscriminatory reasons for failing to promote him to the DSP-IV position

were false. In the trial court, Joana Alferez, who was one of the hiring managers for the position,

provided an affidavit explaining that she hired Bravo rather than Sepulveda for the position

because she believed that Bravo was more qualified. In particular, she pointed out that Bravo had

already been serving as a DSP-II (behavioral coach) for several months and had “developed

behavioral plans for the individuals and educated the direct services professionals (DSPs) on those

behavior support plans,” thereby demonstrating that he had the type of experience and applied

knowledge needed to be a DSP-IV Campus Coordinator. She noted that Sepulveda lacked any

such experience. In addition, Alferez recalled that during the interview, Sepulveda provided only

short or incomplete answers to her questions and was unable to answer some questions, leading

her to conclude that he did not have the requisite knowledge or skills required for the position. See

Kennedy v. Texas Dep’t of Protective & Reg. Servs., No. 03-04-00608-CV, 2005 WL 3499442, at

12 At least one of the hiring managers, Joana Alferez, testified at her deposition that she was aware of Sepulveda’s earlier 2017 EEOC complaint, and that she had been asked to provide information to enable the State to respond. In addition, the other hiring manager, Rosa Renteria was named in the EEOC complaint, and we may therefore assume that she was aware of it. However, neither hiring manager was asked if she had been aware of Sepulveda’s more recently filed internal complaint at the time Sepulveda applied for the DSP-IV position.

25 *4 (Tex. App.—Austin Dec. 22, 2005, no pet.) (mem. op.) (holding evidence satisfied burden of

establishing a legitimate, nondiscriminatory reason for not hiring plaintiff where, among other

things, another candidate’s interview performance was deemed far superior); see also Metro.

Transit Auth. of Harris Cnty. v. Douglas, 651 S.W.3d 122, 133 (Tex. App.—Houston [14th Dist.]

2021, no pet.) (citing Alvarado v. Texas Rangers, 492 F.3d 605, 616 (5th Cir. 2007) (“An

employer’s subjective reason for not selecting a candidate, such as a subjective assessment of the

candidate’s performance in an interview, may serve as a legitimate, nondiscriminatory reason for

the candidate’s non-selection.”).

To contest the State’s reasons, Sepulveda only points to his own deposition testimony in 13 which he denied that he gave short or inadequate answers to Alferez’s interview questions.

However, Sepulveda’s subjective belief that he performed well in the interview is insufficient to

meet his burden. See Anderson, 13 S.W.3d at 60

Accordingly, we conclude that Sepulveda has failed to come forward with sufficient

jurisdictional facts to support a finding that he would have been promoted to the DSP-IV position

but for filing his discrimination complaints. See generally Zimlich, 29 S.W.3d at 69–70. The trial

court therefore erred by denying the State’s plea to the jurisdiction as to this retaliation claim.

We sustain the State’s third issue.

VI. CONCLUSION

We affirm the trial court’s order denying the State’s plea to the jurisdiction with respect to

Sepulveda’s age-discrimination claim and remand to the trial court for further proceedings. We

13 Sepulveda also claims that the circumstances surrounding Bravo’s selection for the DSP-IV position were suspicious, asserting that the education and work experience portions of Bravo’s application were blank. As the State points out, however, the educational portion of Bravo’s application was not blank, as he checked the box stating that he had a high school degree and provided a detailed account of his employment history at the Center, albeit in the section provided for the applicant’s special training and skills.

26 reverse the trial court’s order denying the State’s plea with respect to Sepulveda’s two remaining

retaliation claims and order those claims dismissed.

LISA J. SOTO, Justice

March 15, 2023

Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.) Marion, C.J. (Ret.) (sitting by assignment)