ACCEPTED
15-25-00038-CV
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
7/11/2025 12:16 PM
No. 15-25-00038-CV CHRISTOPHER A. PRINE CLERK
FILED IN
15th COURT OF APPEALS
In The Court of Appeals AUSTIN, TEXAS Fifteenth District of Texas 7/11/2025 12:16:09 PM Austin, Texas CHRISTOPHER A. PRINE Clerk
UNIVERSITY OF TEXAS AT ARLINGTON Appellant,
v.
JAMES MCMERCHANT
Appellee.
ON APPEAL FROM THE 236th JUDICIAL DISTRICT COURT, TARRANT COUNTY, TEXAS
TRIAL COURT CAUSE NO. 236-337930-22
APPELLEE’S BRIEF
Ali Crocker
Crocker Russell & Associates 200 W. Oak Street
Mansfield, Texas 76063
817-482-6570 – Phone
682-232-1850 – Fax
ali@cralawfirm.com
Attorney for James McMerchant (Appellee)
2
Identity of Parties and Counsel
Appellant (Defendant in Trial Court): University of Texas at Arlington
Counsel for Appellant: Brianna M. Krominga Lead Attorney
Texas Bar No. 24103252
Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548
Austin, Texas 78711
214-290-8884 – Phone
512-320-0667 – Fax
Appellee (Plaintiff in Trial Court): James McMerchant
Counsel for Appellee: Ali Crocker Crocker Russell & Associates 200 W. Oak Street
Mansfield, Texas 76063
817-482-6570 – Phone
682-232-1850 – Fax
3
Table of Contents
Identity of Parties and Counsel…..…………………………………………………2 Table of Contents………………………………………………………………...…3 Index of Authorities……………………………………………………………...…4 Relevant Procedural History……………………………………………………..…8 Factual Background………………………………………………………………...8 Argument & Authority……………………………………………………………...9 A. Plea to the Jurisdiction……………………………………………………9 a. Standard of Review………………………………………………..9 b. Response to Appellant’s Brief……………………………………10 B. Summary Judgment……………………………………………………..14 a. Standard of Review: No-Evidence Summary Judgment………...15 b. Standard of Review: Traditional Summary Judgment…………...16 c. Responsive Argument……………………………………………18 i. Plaintiff Can Establish a Prima Facie Case of Racial Discrimination…………………………………………….18 ii. Plaintiff is a Member of a Protected Group……………….21 iii. Plaintiff Was Qualified for the Position at Issue…………..21 iv. Plaintiff Suffered Adverse Action…………………………21 v. Plaintiff was Replaced by Someone Outside His Protected Group……………………………….…………………......25 vi. Defendant does not have a legitimate, non-discriminatory reason for its actions………………………………………28
Conclusion & Prayer………………………………………………………………30 Certificate of Service………………………………………………………………31 Certificate of Compliance…………………………………………………………31
4
Index of Authorities
Cases
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)………………………………………………….9
Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)………………………………………………...9
Board of Water Engineers v. City of San Antonio, 283 S.W.2d 722 (Tex. 1955)……………………………………………….10
Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012)……………………………………………….10
Williams v. Lara, 52 S.W.3d 171 (Tex. 2001)………………………………………………...10
Soto v. El Paso Natural Gas Co., 942 S.W.2d 671 (Tex.App.—El Paso 1997, pet. denied)………………….11
Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 (Tex. 2003)……………………………………………….11
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012)……………………………………………….11
Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010)……………………………………………….11
Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467 (Tex.App.—El Paso 2013, pet. denied)………………….12
Davis v. Fort Bend County, 893 F.3d 300 (5th Cir. 2018)……………………………………………….12
University of Tex. v. Poindexter, 306 S.W.3d 798 (Tex.App.—Austin 2009, no pet.)……………………12, 13
5
Santi v. Univ. of Tex. Health Sci. Ctr. at Houston, 312 S.W.3d 800 (Tex.App.—Houston [1st Dist.] 2009, no pet.)…………..12
Lopez v. Texas State Univ., 368 S.W.3d 695 (Tex.App.—Austin 2012, pet. ref’d)……………………..13
Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734 (Tex.App.—Houston [14th Dist.] 1999, no pet.)……...……13
Wal–Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex.App.—Austin 1998, pet. denied)…………………….13
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002)………………………………………………...15
S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002)…………………………………………….15, 18
Morgan v. Anthony, 27 S.W.3d 928 (Tex. 2000)………………………………………………...15
Moore v. K Mart Corp., 981 S.W.2d 266 (Tex.App.—San Antonio 1998, pet. denied)…………….15
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)………………………………………………………..16
Elliott-Williams Co. v. Diaz, 9 S.W.3d 801 (Tex. 1999)………………………………………………….16
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995)…………………………………...………16, 17
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985)……………………………………………….17
Park Place Hosp. v. Estate of Milo, 990 S.W.2d 508 (Tex. 1999)……………………………………………….17
Lear Sieglar, Inc. v. Perez,
6
819 S.W.2d 470 (Tex. 1991)……………………………………………….17
Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760 (Tex.App.—Dallas 2005, pet. denied)…………………...17
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009)……………………………………………….18
SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840 (Tex. 2005)……………………………………………….18
Rayon v. Energy Specialties, Inc., 121 S.W.3d 7 (Tex.App.—Fort Worth 2002, no pet.)……………………..18
Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428 (Tex.App.—Houston [14th Dist.] 1999, no pet.)…...……18
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)……………………………………………………18, 20
McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007)……………………………………………….19
Wheeler v. BL Dev. Corp., 415 F.3d 399 (5th Cir. 2005)……………………………………………….19
Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133 (Tex.App.—Fort Worth 2000, pet. denied)……..…19, 20, 21
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001)………………………………………………...19
Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419 (Tex.App.—Houston [1st Dist.] 2000, no pet.)……………20
Little v. Tex. Dep’t of Criminal Justice, 177 S.W.3d 624 (Tex.App.—Houston [1st Dist.] 2005, no pet.)…………..20
Tex. Health & Human Servs. v. Sepulveda, 668 S.W.3d 856 (Tex.App.—El Paso 2023)……………………………….22
7
Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003)……………………………………………….28
Wallace v. Methodist Hosp. Sys., 271 F.3d 212 (5th Cir. 2001)……………………………………………….28
Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476 (5th Cir. 2016)……………………………………………….28 Statutes
Texas Labor Code § 21.051……………………………………………….11, 19, 28 Texas Labor Code § 21.201 & § 21.202…………………………………………..12 Texas Government Code § 311.034………………………………………………11 Texas Rules of Civil Procedure 166a(i) & 166a(c)……………………….15, 16, 18 Texas Rules of Appellate Procedure 9.4(e), 9.4(i)………………………………..31 Title VII of the Civil Rights Act of 1964, as amended………………………..11, 19
8
RELEVANT PROCEDURAL HISTORY On October 20, 2022, Plaintiff filed its Original Petition.
On November 10, 2022, Defendant filed its Original Answer.
On January 26, 2023, Plaintiff filed its First Amended Petition.
On February 26, 2024, Defendant filed its Plea to the Jurisdiction and Motion for Summary Judgment.
On March 13, 2025, the Trial Court entered and Order on March 13, 2025, denying Defendant’s Plea to the Jurisdiction and Motion for Summary Judgment.
On April 2, 2025, Defendant timely its Notice of Appeal.
On April 14, 2025, the Clerks record was filed.
Appellant (Defendant) filed its brief on May 27, 2025.
FACTUAL BACKGROUND
Plaintiff is an African American male who was initially hired by Defendant in June of 2015 as a Warehouse Worker II in the Property Management Department within the Division of Business Affairs. See Exhibit A.
In 2016, Plaintiff was asked to assist in the Mail Services Department; to which he agreed. Between 2016 and 2017, Plaintiff continued to work as both a mail clerk and warehouse worker. In the spring of 2017, Plaintiff was solely doing mail clerk job duties.
9
Defendant instead hired Derek Gieralt, a younger, Caucasian male, under the job title of Mail Carrier II. Mr. Gieralt began working as a warehouse employee but with the Mail Carrier II title and pay, which was previously promised to Plaintiff.
In response, Plaintiff’s supervisor in the Mail Services Department promised him a raise. However, years go by, and Plaintiff never receives such raise, and his complaints and concerns are ignored.
Since the spring of 2017, Plaintiff repeatedly filed his concerns that he was not given the appropriate pay raise associated with the Mail Clerk II position. In October of 2020, Defendant finally “reclassified” to Mail Carrier II with a salary increase of over 5% to $30,000.00. See Exhibit B.
ARGUMEMT AND AUTHORITY
A. Plea to the Jurisdiction a. Standard of Review
When reviewing a plea to the jurisdiction, a court should limit itself to the jurisdictional issue and avoid considering the merits of the claims. Bland Indep. Sch. Dist. V. Blue, 34 S.W.3d 547, 552 (Tex. 2000). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction. Texas Ass’n of Bus. V. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Texas Courts will liberally construe the pleadings in favor of the plaintiffs and look to the pleaders’ intent. Id. If the issue of jurisdiction cannot be
10
definitively determined by the pleadings, the plaintiff will be afforded the opportunity, if possible, to amend and cure the defects in order to establish jurisdiction. Id. If the plea challenges jurisdictional facts, the Court may consider evidence in order to either establish that it has jurisdiction to hear the cause of action or that such jurisdiction does not exist. Id.
Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court’s power to decide a case. Id. at 443. The general test for standing in Texas requires that there “(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.” Id. at 446 (citing Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 114, 283 S.W.2d 722, 724 (1955)). A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer “live,” or if the parties lack a legally cognizable interest in the outcome. Heckman v. Williamson Cnty., 369 S.W.3d 137, 55 Tex. Sup. Ct. J. 803 (Tex. 2012) (citing Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)).
b. Response to Appellant’s Brief The Court should deny Defendants’ request to review the Trial Court’s judgment Plaintiff timely and sufficiently exhausted his administrative remedies. Plaintiff filed its charge stating that Defendant discriminated against him based on
11
race and in violation of Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 as amended. Likewise, in Plaintiff’s First Amended Complaint, Plaintiff filed suit against Defendant for Title VII Discrimination based on Race. See Exhibit B.
Chapter 21 of the Texas Labor Code addresses employment discrimination. TEX.LAB.CODE ANN. §§ 21.001-55. The Act makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. Id. at § 21.051. The Act is modeled on federal law and executes the purposes of Title VII of the Civil Rights Act of 1964. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App.—El Paso 1997, pet. denied). Because the legislature intended for state law to correlate with federal law in employment discrimination cases, the courts may look to analogous federal cases when applying the Act. Id. (citing Tex. Lab. Code § 21.001 and Wal– Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) ). The legislature has mandated that all statutory prerequisites to suit are jurisdictional requirements in suits against governmental entities. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (citing Tex. Gov't Code § 311.034).
A person claiming a violation of the Act must first exhaust her administrative remedies prior to bringing a civil action. Waffle House, Inc. v. Williams, 313 S.W.3d
12
796, 804 (Tex. 2010); Williams-Pyro, Inc. v. Barbour, 408 S.W.3d 467, 475 (Tex.App.—El Paso 2013, pet denied). Exhausting administrative remedies is a “mandatory prerequisite” in Texas. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991), overruled in part on other grounds by In re United Servs. Auto Ass'n, 307 S.W.3d 299, 310 (Tex. 2010). Recent Fifth Circuit precedent describes the analogous Title VII requirement as a “prudential prerequisite” that similarly can result in the dismissal of a suit. Davis v. Ft. Bend County, 893 F.3d 300, 308 (5th Cir. 2018)(“Title VII's administrative exhaustion requirement is not a jurisdictional bar to suit but rather a prudential prerequisite under our binding precedent, [which can be forfeited when not timely raised].”).
To bring a lawsuit for unlawful employment practices, a plaintiff must first have filed an administrative charge with the EEOC or the TWC. Williams, 313 S.W.3d at 804-05; University of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex.App.—Austin 2009, no pet.). A plaintiff must file her charge within 180 days of the alleged discriminatory practice with the TWC or 3400 days of the alleged discrimination practice with the EEOC and any late-filed charge will be dismissed as untimely. TEX.LAB.CODE ANN. §§ 21.201, 21.202.
The charge must contain an adequate factual basis to put the employer on notice of the existence and nature of the claims against it. See Santi v. Univ. of Tex.
13
Health Science Ctr. at Houston, 312 S.W.3d 800, 805 (Tex.App.—Houston [1st Dist.] 2009, no pet.).
Thus, this court does have jurisdiction over Plaintiff claims as Plaintiff timely filed his complaint, exhausted all his administrative remedies and the factually related claims could reasonably be expected to fall within the agency’s investigation of the claims stated in the charge. Fine, 995 F.2d at 578; Lopez v. Texas State Univ., 368 S.W.3d 695, 710 (Tex.App.—Austin 2012, pet ref'd); Poindexter, 306 S.W.3d at 810; Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex.App.— Houston [14th Dist.] 1999, no pet.).
Plaintiff meets his administrative remedies burden by the “continuing violation” doctrine. A “continuing action” is unlawful discrimination that “manifests itself over time, rather than a series of discrete acts.” Wal–Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41–42 (Tex.App.-Austin 1998, pet. denied). When such “continuing violation” discrimination occurs, the 180 and/or 300 day filing clock does not begin to run until one of the involved discriminatory events “should, in fairness and logic, have alerted the average layperson to act to protect his or her rights.” Id. at 42.
Plaintiff contends and Defendant’s also agree that Plaintiff was completing the job duties of a Mail Clerk II since 2017 but was never given the correct job title and/or pay raise between 2017-October of 2020. Plaintiff contends and Defendant’s
14
agree that Plaintiff did not receive a pay increase and promotion to Mail Clerk II until October of 2020. See Exhibit A and D.
Based on Plaintiff’s contention and Defendant’s agreement of those facts, the adverse employment actions and discrimination was continuous from 2017 until he was finally given the promotion and raise that was fitting to his job duties in October of 2020.
Plaintiff filed his charge of discrimination on one hundred and forty-eight (148) days after the last day of the continued adverse employment action (failing to promote and failure to remedy your pay discrepancy) on January 13, 2021. Id. Therefore, his charge was timely filed.
Plaintiff’s charge includes several examples of how he was passed over for promotions, title and equal pay beginning in 2017. It is uncontested that Plaintiff is still employed by Defendant and thus, Plaintiff contends that this continuing action of discriminatory practices by Defendant is still on-going. Plaintiff states in his charge that as of [January 13, 2021], Plaintiff job title does not reflect his current job duties and is being grossly underpaid; thus, making his charge timely filed.
Therefore, Plaintiff requests that this Court deny Defendant’s request to reverse the Trial Court’s judgment for lack or jurisdiction based on Plaintiff’s timely filing of his charge and exhaustion of his administrative remedies.
B. Summary Judgment
15
a. Standard of Review: No-Evidence Summary Judgment After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207, 45 Tex. Sup. Ct. J. 470 (Tex. 2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See TEX. R. CIV. P. 166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215, 45 Tex. Sup. Ct. J. 502 (Tex. 2002).
We review the evidence in the light most favorable to the party against whom the no- evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929, 43 Tex. Sup. Ct. J. 1172 (Tex. 2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied).
More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711, 40 Tex. Sup. Ct. J. 846 (Tex. 1997).
16
A genuine issue of material fact is raised by presenting evidence on which a reasonable jury could return a verdict in the nonmovant's favor. Moore, 981 S.W.2d at 266; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986) (interpreting FED. R. CIV. P. 56).
b. Standard of Review: Traditional Summary Judgment A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803, 43 Tex. Sup. Ct. J. 200 (Tex. 1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiff's claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197, 38 Tex. Sup. Ct. J. 658 (Tex. 1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.
In a traditional motion for summary judgment, summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. The standard of review for a traditional summary judgment is well established: (1)
17
the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is therefore entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
When a movant files a motion for summary judgment based on the summary judgment evidence, the court can grant the motion only when the movant’s evidence, as a matter of law, either proves all of the elements of the Movant’s claim or defense or disproves the facts of at least one element of the non-movant’s claims or defense. Park Place Hosp. v. Estate of Milo, 990 S.W.2d 508, 511 (Tex. 1995); Lear Sieglar, Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991).
Even if a movant can present evidence showing that it has proven its case, this Court may not grant summary judgment if the non-movant presents evidence that creates a question of fact on an essential element of the movant’s cause of action. Case Corporation v. Hi-Class Business Sys. Of America, Inc., 184 S.W.3d 760, 776 (Tex. App.—Dallas 2005 pet. Denied).
c. Responsive Argument Plaintiff, Respondent herein, files this Response to Defendant's request to rever
18
the Trial Court’s judgment and respectfully shows the Court as follows:
Defendant’s Motion for Summary Judgment should also be denied because there exists a genuine issue of material fact between the parties. Movants bear the burden of establishing there is no question of material fact and that [it] is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
A fact is material when it “affects the ultimate outcome of the suit under the governing law.” Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 11 (Tex. App.-- Fort Worth 2002, no pet.) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex. App.--Houston [14th Dist.] 1999, no pet.)). “A material fact issue is ‘genuine’ only if the evidence is such that a reasonable jury could find the fact in favor of the nonmoving party.” Id. at 11-12.
i. Plaintiff Can Establish a Prima Facie Case of Racial Discrimination
The four-point test to determine discrimination in the workplace is derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In a private, non- class-action complaint under Title VII charging employment discrimination, the complainant has the burden of establishing a prima facie case, which she can satisfy
19
by showing that she (i) is a member of a protected group; (ii) was qualified for the position at issue; (iii) was discharged or suffered some adverse employment action by the employer; and (iv) was replaced by someone outside her protected group or was treated less favorably than other similarly situated employees outside the protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)(citing Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)).
Under the TCHRA, an employer commits an unlawful employment practice if, because of an employee's race, the employer “discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” TEX. LABOR CODE ANN. § 21.051(1) (Vernon 2006). The Texas Legislature patterned the TCHRA after federal law “for the express purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 139 (Tex.App.-Fort Worth 2000, pet. denied); see also Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex.2001) (stating same). Thus, when analyzing a claim brought under the TCHRA, we look not only to state cases, but also to the analogous federal statutes and the cases interpreting those statutes. Toennies, 47 S.W.3d at 476.
Once the plaintiff establishes a prima facie case, the burden of production
20
shifts to the defendant-employer to articulate legitimate non-discriminatory reasons for any allegedly unequal treatment. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex.App.- Houston [1st Dist.] 2000, no pet.). After the employer articulates a non- discriminatory reason, the burden then shifts back to the plaintiff to prove that the articulated reason is a mere pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Greathouse, 17 S.W.3d at 423. Although the burden of production shifts between the parties, the burden of persuasion “remains continuously with the plaintiff.” Greathouse, 17 S.W.3d at 423.
To raise a fact issue on the pretext element of a race-discrimination claim, the nonmovant must present evidence “indicating that the non-discriminatory reason given by the employer is false or not credible, and that the real reason for the employment action was unlawful discrimination. Elgaghil, 45 S.W.3d at 140. A plaintiff can avoid summary judgment if the evidence, taken as a whole, creates a fact issue “as to whether each of the employer's stated reasons was not what actually motivated the employer and creates a reasonable inference that [race] was a determinative factor in the actions the plaintiff is now complaining about.” Id. (emphasis in original); see also Little v. Tex. Dep't of Criminal Justice, 177 S.W.3d 624, 632 (Tex.App.-Houston [1st Dist.] 2005, no pet.)
21
ii. Plaintiff is a Member of a Protected Group The first two elements are not disputed by Defendants. However, in an abundance of caution, Plaintiff belongs to a protected class under Title VII because he is an African American male.
iii. Plaintiff Was Qualified for the Position at Issue
Plaintiff is/was qualified for the position of Mail Clerk by virtue of his experience, training, tenure at Defendant and his continued employment. Again, this is not disputed by the Defendant. Plaintiff received complimentary evaluations between 2016-present.
iv. Plaintiff Suffered Adverse Action Defendant’s arguments in their respective Motion give rise to several questions of fact that in and of itself allow Plaintiff to overcome summary judgment. Both Defendant and Plaintiff present the same question, but different explanations as to why was Plaintiff not given a pay raise and promotion to Mail Clerk II until the fall of 2020 when he was doing the job duties since 2017? Defendant fails to offer any conclusive evidence or case law that would establish their explanation is sufficient to deny Plaintiff’s claims as a matter of law.
22
Generally, adverse employment decisions involve hiring, granting leave, discharging, promoting, and compensating employees. Winters, 132 S.W.3d at 575; Elgaghil, 45 S.W.3d at 143 A failure to promote is generally considered an adverse employment action.
Tex. Health & Human Services, et. al. v. David Sepulveda, 668 S.W.3d 856, (Tex.App-El Paso 2023). Plaintiff continuously received an adverse action by Defendant by failing to properly pay and promote him throughout his continued employment with Defendant between 2017 – the October of 2020. See Exhibit A.
Defendant has a history of failing to promote and give merit pay raises to employees of color. Id. Toliver, an African-American retired employee of Defendant’s told Plaintiff that he quit due to the pay discrepancies between black and white employees.
Defendant acknowledges that Plaintiff was solely doing the job duties of a Mail Clerk II since 2017 and also that Defendant failed to promote him or give him the appropriate pay raise that reflected his job duties until October of 2020. See Exhibit A and D. While he was wrongly held back between 2017 and 2020, another Caucasian male, Derek Gireralt was given the Mail Clerk II title and pay raise but worked in the warehouse. See Exhibit A and D.
23
Derek Gireralt was significantly less qualified for this position and worked for Defendant’s less time. Derek Gireralt had only been there one year or less while Plaintiff had been there several and also trained other employees. Id.
After Derek was promoted to Mail Clerk II, he bragged to Plaintiff that he was promoted so quickly, after only being employed by Defendant for one year and received a $5,000.00 raise. See Exhibit A. Plaintiff specifically asked Derek Gireralt what his job title was and told Plaintiff that he was a Mail Clerk II. Id.
At that time, Plaintiff began repeatedly went to his supervisor, Jason Welch, who represented that he was working to correct his pay discrepancies with Human Respouses. Id. In the fall of 2019, Mr. Welch promised Plaintiff that he would receive the proper title and pay raise, but he never did. Id. Plaintiff received the run around and became distraught. Id. Plaintiff began investigating why he was not being promoted and not being paid fairly. Id. Several co-workers and even a supervisor informed Plaintiff that they “thought it was wrong,” and Derek Gireralt even went as far as to pull Plaintiff aside to express that he thought this was about “race.” Id.
The credibility of Defendant’s explanation is one for the determination of a jury and is improper for summary judgment. Defendant’s only explanation as to this inequity was that there was an error on Defendant’s website and public data in labeling Derek Gireralt’s job title as a Mail Clerk II; thus, creating a question of fact
24
as to Defendant’s motivation of their adverse action. See Exhibit A and D. However, Plaintiff has personal knowledge that Derek Gireralt’s was hired and promoted to Mail Clerk II and not a coordinator. Id. Plaintiff heard Derek Gieralt bragging on multiple occasions that he was getting additional pay for work that he did not do as he only worked in the warehouse but was being paid as a mail clerk. Id.
Defendant incorrectly represents that Plaintiff’s “reclassification” to Mail Clerk II is a lateral move with no promotion. Defendant’s own documents show that Plaintiff was given an increase in salary from $28,428.00 to $30,000.00 (a 5.53% raise) in October of 2020 when he was “reclassified.” See Exhibit D. Plaintiff asserts that a 5.53% salary increase is considered a promotion and not just a mere “reclassification” nor is it a lateral move.
Furthermore, Defendant’s justification of the failure to promote and pay inequities is merely conjecture and pretext. Defendant states that Plaintiff was never promoted and given the appropriate pay raise because of a “hiring freeze” yet Defendant never provides any proof of the “hiring freeze” or proof of how long the “hiring freeze” was in place. Defendant also alleges that Plaintiff asked for an increase in pay and promotion that fit his job duties in “late 2019” but then blames the COVID-19 freeze as an explanation why this did not occur until October of 2020. Plaintiff is confused as to Defendant’s assertions because as we are all aware, COVID-19 pandemic did not start until mid-March of 2020… Plaintiff is doubtful,
25
and it is highly unlikely that the “hiring freeze” spanned over a course of three years (between 2017 – 2020).
Defendant’s own electronic communications represent that they only began to attempt to promote Plaintiff in September of 2020, well after the COVID-19 pandemic. See Exhibit E. In Defendant’s September 2020 electronic communications between Jason Welch and human resources, there is no mention of the “lifting of the hiring freeze’ or “COVID-19.” Id.
Defendant also asserts that Plaintiff’s raise increase was not a “function of [his] job title but rather a “reflection that [Plaintiff] had taken additional stops on his route…” See Exhibit D. However, Defendant offers zero proof of this assertion and instead offers conclusory statements in their respective motion.
Therefore, Plaintiff has provided sufficient proof and creates a question of fact as to whether there was an adverse action.
v. Plaintiff was Replaced by Someone Outside His Protected Group or was Treated Less Favorably Than Other Similarly Situated Outside His Protected Group or was Treated Less Favorably Than Other Similarly Situated Employees Outside the Protected Group.
26
Plaintiff was treated less favorably than a similar situation employee, Derek Gireralt and was passed over for a job promotion with higher pay than someone outside his protected group. Further, the mere basis of Defendant’s assertions creates a question of fact as to whether or not Plaintiff was treated less favorably than a similarly situation employee outside their protected class.
Derek Gireralt, a caucasian male was initially hired as a Warehouse Worker in 2016 and was then promoted as a Mail Clerk II and was given higher pay than Plaintiff in 2017. See Exhibit A and D. Derek Gireralt was given the title Mail Clerk II and bragged about how he received the Mail Clerk II promotion instead of Plaintiff. Id. When Derek Gireralt was promoted in 2017, he was given a salary increase of 24.04%, $25,788 to $32,000.00. Id. At this time, Plaintiff was only receiving approximately $26,000.00 in salary benefits and had a continuous pay discrepancy of over $6,000.00 for four years for conducting the same job duties.
Again, Derek Gireralt informed Plaintiff that he was promoted to Mail Clerk II position. See Exhibit A and Exhibit F; McMerchant Dep. 47:8-11. When Plaintiff began investigating why Derek Girealt was promoted instead of me, Derek Girealt pulled me aside and told me that he thought it was “because of race.” See Exhibit A. It was so obvious that on another occasion, Derek Girealt advised Plaintiff to report what was going on to human resources. Id.
27
The mere question of what Derek Gireralt’s job duties were, and what is “title”
was creates question of fact that is sufficient to overcome summary judgment. Defendant claims that he was given a different job title of “Coordinator I, Special Programs” but that is not what is listed in public records nor is that what Derek Gireralt claimed. See Exhibit G. Defendant’s website has his job titled listed as “Mail Clerk II.” Id.
Defendant’s only explanation as to this inequity was that there was an error on Defendant’s website and public data in labeling Derek Gireralt’s job title as a Mail Clerk II. See Exhibit A and H. During Plaintiff’s Deposition, Defendant showed Plaintiff Exhibit G a printout from their website which listed Derek Gireralt’s job title as “Mail Carrier II” See Exhibit F; McMerchant Dep. 34:11-25; 35:1-25. Thus, Defendant was holding Derek Gireralt out as a Mail Carrier II during the relevant time frame of 2019-2020, Id. Plaintiff has personal knowledge that Derek Gireralt’s hiring and promotion to Mail Clerk II was not a clerical mistake and seems like a convenient explanation given by Defendant. See Exhibit A.
Defendant also claims that Derek Gieralt’s job is not similarly situated but in fact, Defendant concedes that both Plaintiff and Mr. Gieralt are in the same department and supervisors conducting similar work; “duties associated with Warehouse Worker and Mail Carrier.” Plaintiff continuously asserts that Derek Gieralt actual job duties were very similar to his. See Exhibit A.
28
Defendant’s own evidence and published admissions create contradictory factual allegations that overcome summary judgment. Defendant insists that Plaintiff’s belief that Derek Gieralt was promoted to a mail clerk was mistaken but don’t acknowledge or explain Plaintiff’s belief is based on Defendant’s own admission through their labeling Derek Gieralt as a mail clerk on their website.
Therefore, Plaintiff has provided sufficient proof and creates a question of fact as to whether there he was treated less favorably than similarly situated employees not in his protected class.
vi. Defendant does not have a legitimate, non-
discriminatory reason for its actions and their explanations are mere pretext for discrimination.
The phrase "because of race" is also used in the Texas Labor Code, which makes an employer liable for taking action adverse to an employee "because of race." See Tex. Lab. Code §21.051. Pretext is established “either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or ‘unworthy of credence.” See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)); Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 32 A.D. Cases 1405 (5th Cir. 2016). At summary judgment, “[e]vidence demonstrating that the employer's
29
explanation is false or unworthy of credence, taken together with the plaintiff's prima facie case, is likely to support an inference of discrimination even without further evidence of defendant's true motive.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.2003).
Defendant has alleged its legitimate, nondiscriminatory reasoning for failing to promote and pay Plaintiff was based on a “clerical mistake” and COVID-19 delays. The purported reasonings are pretext for Defendant’s discriminatory animus towards its African-American employees.
Defendant’s timeline of events in and of itself creates a question of fact as to the credibility of their “legitimate reason” for the delay in Plaintiff’s promotion and pay increase that matched his job duties. Again, Defendant blames COVID-19 but fails to remedy how COVID-19 can be blamed when it didn’t start until mid-March of 2020… three years after Plaintiff initially requested the pay increase.
Plaintiff, Derek Girealt and Plaintiff’s co-workers all long alleged that Defendant’s failure to promote and pay inequity was because of race. Defendants have provided no other credible alternative as to why a less experienced, Derek Girealt was promoted instead of Plaintiff or why it took Defendant nearly a year to promote him for the second promotion opportunity.
Again, because Defendant’s explanation of the adverse action of Plaintiff is unworthy of credence, a fact finder may make an inference of discrimination. Thus,
30
Plaintiff has provided sufficient evidence to overcome summary judgment and create a question of fact as to the true motivation behind Defendant’s actions.
CONCLUSION AND PRAYER
Defendant’s request should not be granted. Accepting as true all evidence presented by Plaintiff and indulging every inference and resolving all doubt in Plaintiff’s favor, Defendant has failed to show that as a matter of law Plaintiff’s claims should be dismissed.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court will deny Defendant’s request for reversal of the Trial Court’s Denial of Defendant’s Motion for Plea to the Jurisdiction and Traditional and No-Evidence Motion for Summary Judgment and order such other relief as may be appropriate.
Respectfully submitted,
Crocker Russell & Associates 200 W. Oak Street
Mansfield, Texas 76063
/s/ Ali Crocker Russell
Ali Crocker Russell
Bar no: 24098868
Phone: (817) 482-6570
Fax: (682) 232-1850
Email: ali@cralawfirm.com
31
Certificate of Service
I certify that a true copy of this document was served in accordance with Texas Rules of Civil Procedure and that all documents have been served via the Court’s electronic notification system on July 7, 2025.
/s/ Ali Crocker Russell
Ali Crocker Russell
Certificate of Compliance This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 2,923 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1)
/s/ Ali Crocker Russell
Ali Crocker Russell
No. 15-25-00038-CV
In The Court of Appeals
Fifteenth District of Texas Austin, Texas
UNIVERSITY OF TEXAS AT ARLINGTON Appellant,
v.
JAMES MCMERCHANT
Appellee.
ON APPEAL FROM THE 236th JUDICIAL DISTRICT COURT, TARRANT COUNTY, TEXAS
TRIAL COURT CAUSE NO. 236-337930-22
APPENDIX
1. Affidavit (Exhibit A) ……………………………………………………….33 2. Charge of Discrimination (Exhibit B)……………………………………....36 3. UTA Human Resources Performance Review (Exhibit C)………………….37 4. Salary for James McMerchant (Exhibit D)………………………………….44 5. E-Mails (Exhibit E)…………………………………………………………45 6. Transcript of Deposition (Exhibit F)………………………………….…….50 7. UTA Staff Property Management Chart (Exhibit G)………………….…….53 8. Declaration of Jason Welch (Exhibit H)…………………………………….55 &9)*#*5"
1A21464
x 31C-2021-00415
UTA-0001
(;+,%,7%
&9)*#*5$ ĸě0 hƿĉĎ24Ģ hƿćc ƿĕ0b2ƿĜʼnb ûĊ0Ġ4ƿģ ĄĚƿĈď ÷1ĺƿƿ1ľĐ2ƿ4c1ūŬĽ ƿ Ĥ7j7Ŏñƿ ÄØWYƿ ąŹƓƇƮŐőƿġŵƤƿ ĆƒťƪƦƿđĂƿ m¬Wº-+º
alRS 8IzVº
4#5³N¦x/® Pº ºY }r3ƿ ċƴ7ƿ aƈņƿĻ_ƺƳƿ ED£eºF:6º -rwº
ø;Ŧƿ
&.é)³ƿ
ĮŚƃƿ %Ĕƿ ĥƿ /ªàƿ ČŠƿ
]ŋzşƿ atňļyŴƿ Łŏ@ƙƿgƐƣ$ƿxƩƿ
ù<zƿ
./~ƿ
Éƥƿ
: Ų²ÅÞƿ ;¯«º´Zº(I{`º G°µc]ºH97º .wsº įUĶ:)âƿ ƕźæƿ þ ÐÑ U±Ê/ƿ B?U\º B}nTd¥º o~ §phº *©_¸ºº¹-º=Kº D, ¶ Pƿ á Ë JÂƿ ÙƲƿ ¼§T Ó*êƿ <Jª@¢X&bJ º 2Yf¢º ƬÆŗƭĿƋŇŭŮƿ ƖÏE5ƿ dŧ»H×ƿ -®%ƿ ¨ Xëƿ B{ƿlƿ!nƂƿ ğÌƿ Ā6žƍƿĒFƼƿ"Ǝ>ƿ d ì ƿ ķGRƿ Ieƿ ½M+W* ƿ iAƿĬòż#ƿýƄvƿ ĞƔ9ƿ gėƟ#ř@¥ƿŀƌqwƿč`ƿ Ɨ5Fƨ5ƿ ïƿ ©X ƿ Bươõnƅƿ ƽ ÿƆKÁƿ_ƿfsƿ"uſ>ƿ ' -(ÀEƿ CTÕJRƿ ZIí% ¾M+űƿ ƵAƿŷ#ƿĪĘƶƿ úŖiƚŕńƛŞƿ Ʒƻ^ŒŜƿ`ēƿ CÖ(µƿ 3.Złƿ LO Űrƿ BAƿlƿ!8;Ƣmƿ Ŕƿ ā6KƑƿÍƿfsƿ"u¢>ƿ ' -ã ƿ eƿ ħ: ů*ÒSƿ 0±«º1¡Zº)J|O^º 3tu'vQ¶Cº º ! º S Ýƿ ¹¦¯Î V·Vƿ > fjº)²º %[ ¨ q² "y¡§$§º ,L¡i¢kºAwM¢º D,Û(ä, Pƿ ¿ N«ƿ īŅƯƿĭ#ƿĨƀŌƜƿ ·g¤º İ ¤üı Gƿ 'åHƿ ´ƿ ° ƿ oƱƿƿ!8oƁƿ Ƨpƿ ĦŤ9k£ƏƿóŃxšƿ ĴĖĵðQƿ &çÃƿ ƿ Ç N+¬ƿ "ƸƫƿŸ$ƿĩ<ŘƝƿ ĝ=ŝvƿ]6ŨƹƘŻwŽƿ ÈƉ^ũôƠqƿ & ƿIJ\ )ƿ ij3Ŷƿ ßèƿ LO¸ƿ ={ƿƿ!8=ƊŊmƿ ęţ$yƿöōŢ@?ƞ$<ƿ ăś?9kpt;ƿĹœjŪų?ƿ Ü [\î[ Qƿ ¡ÚÔƿ
ƾƿ
|ƿ
|ƿ
&9)*#*5& &9)*#*5'
&9)*#*5( &9)*#*5)
Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Micala Munoz on behalf of Ali Crocker Bar No. 24098868 micala@cralawfirm.com Envelope ID: 86625121 Filing Code Description: No Fee Documents Filing Description: Plaintiff's Response to Defendant's Plea to the Jurisdiction and Traditional and No Evidence Summary Judgment Status as of 4/15/2024 8:44 AM CST
Associated Case Party: THEUNIVERSITY OF TEXAS AT ARLINGTON Name BarNumber Email TimestampSubmitted Status Laura Hendrix laura.hendrix@oag.texas.gov 4/12/2024 5:48:20 PM SENT Mary Quimby mary.quimby@oag.texas.gov 4/12/2024 5:48:20 PM SENT
Case Contacts Name BarNumber Email TimestampSubmitted Status Ali Crocker ali@cralawfirm.com 4/12/2024 5:48:20 PM SENT
Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Annelis Rico on behalf of Ali Crocker Bar No. 24098868 annelis@cralawfirm.com Envelope ID: 103027545 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellee's Brief Status as of 7/11/2025 12:30 PM CST
Associated Case Party: University of Texas at Arlington Name BarNumber Email TimestampSubmitted Status karel macias karel.macias@oag.texas.gov 7/11/2025 12:16:09 PM SENT Brianna Krominga brianna.krominga@oag.texas.gov 7/11/2025 12:16:09 PM SENT
Associated Case Party: JAMES MCMERCHANT Name BarNumber Email TimestampSubmitted Status Ali Crocker 24098868 ali@cralawfirm.com 7/11/2025 12:16:09 PM SENT Annelis Rico annelis@cralawfirm.com 7/11/2025 12:16:09 PM SENT