South Texas College v. Rolando Villagran

NUMBER 13-24-00224-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SOUTH TEXAS COLLEGE, Appellant,

v.

ROLANDO VILLAGRAN, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 4
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva

In seven issues, appellant South Texas College (STC) appeals the denial of its

combined traditional and no-evidence motion for summary judgment in this employment

discrimination suit brought by appellee Rolando Villagran, a former STC employee. See

TEX. LAB. CODE ANN. §§ 21.001–.556. We reverse and render.
I. BACKGROUND 1

Villagran describes himself as a “Hispanic, gay male whose family originated [from]

Mexico.” He began his employment with STC in September of 2018 as a Librarian I. The

duties and responsibilities of a Librarian I include serving as a library liaison to academic

departments and developing and implementing library instruction sessions in accordance

with the Association of College and Research Libraries guidelines. In February of 2019,

STC instructor Patricia Ballenger developed some concerns regarding one of Villagran’s

library instruction sessions. Ballenger informed the Instruction Librarian Elizabeth

Hollenbeck and Reference Librarian Minerva Alvarez that the library “instruction session

should have been more tailored to the students’ needs . . . and that [Villagran] had

difficulty demonstrating” the session. Hollenbeck and Alvarez met with Villagran to

discuss Ballenger’s concerns and review a copy of the assignment used during the library

instruction session. Additionally, they reviewed an email drafted by Villagran as liaison

and determined “that attention also needed to be directed to his written communication

skills.” Hollenbeck and Alvarez offered Villagran an opportunity to improve his library

instruction sessions by observing colleagues and having them observe him and provide

their feedback. Villagran conducted sessions in February, March, and April of 2019. His

colleagues provided feedback, including the following: “narrow down your search results,”

“be more concise in explaining [r]esearch [s]tarters,” “multiple times . . . you were

repetitive [which] . . . can be confusing [to] the students,” and “creating a guide or outline

will help alleviate going back and forth.”

1 The background facts are derived from the undisputed evidence in the summary judgment record.

2
In April of 2019, Associate Dean of Library Services Lisa Walters, Hollenbeck, and

Alvarez initiated a “Conduct and Performance Improvement Plan” (CPIP) with Villagran,

a seven-week plan to improve his liaison skills, writing skills, and library instruction skills.

Hollenbeck and Alvarez met with Villagran bi-weekly to review his progress. Some of his

library instruction sessions were recorded as part of his improvement plan. After his May

recorded session, Walters and Hollenbeck discussed feedback with Villagran and

determined “he did not have an understanding of the contents of the databases available

to students and faculty and could not determine which databases should be shown during

instruction sessions.” Thereafter, Villagran conducted a second recorded session in June

of 2019. Walters and Hollenbeck informed him that he made some improvement;

however, “[h]e did not fully address the instruction request leaving out newspapers until

a [student] asked,” “he was not able to effectively demonstrate a search,” and it appeared

he “d[id] not have a basic understanding of how database researching works.” In addition

to the library instruction sessions, Villagran was asked to write a short essay on “several

web articles covering art movements to address his knowledge in his assigned liaison

subject.” Upon reviewing his essay, it appeared to Hollenbeck, Alvarez, and Walters that

the writing was “not his own based on the construction of sentences.” When this was

discussed with Villagran, he stated that it was his work and not plagiarism. Villagran

subsequently submitted two short answer essays upon request. According to Walters,

each essay “contained at least one act of plagiarism,” and the longest essay in particular

“contained six acts of plagiarism.” When asked about these subsequent allegations of

plagiarism, “[Villagran] responded in writing that ‘It was not intended for the assignment

to come out the way it did due to time constraints with other working duties.’”

3
On June 19, 2019, Walters sent a five-page letter addressed to Jim Navarro of

STC’s Employment Relations Office and Brenda Balderaz, the Director of Human

Resources. The letter was carbon-copied to Dr. Jesus Campos, Dean of Library and

Learning Support Services. In this letter, Walters referenced Ballenger’s complaint about

Villagran’s instruction session, the CPIP, the support and feedback Villagran received, as

well as his acts of plagiarism. In particular, Walters wrote:

[Villagran] has been in the Librarian I position for seven months receiving
the training provided to all new staff members. He was given several
opportunities, with specific feedback, to improve library instruction. While
there was minor improvement in his presentations, he is not able to
successfully provide instruction to meet the job responsibilities listed in the
Librarian I job description[:]

• Provides library instruction in accordance with Association of
College and Research Libraries (ACRL) guidelines for
academic libraries and Library Services guidelines[;]

• Serves as library liaison to assigned academic departments[;]

• Assists in developing, implementing, and assessing library
instruction services.

The structure and content of [Villagran]’s writing is below the
expected level of a professional librarian. During the hiring process his
credentials were reviewed. The review revealed [Villagran] has two
Master’s Degree[s], one of which is in English, which the committee felt
ensured he is able to create professional writings.

Plagiarism is a violation [of] Policy 4901: Standards of Conduct:

13. Failure to meet a reasonable an[d] objective measure of
efficiency and productivity;

28. Making misrepresentations or providing misleading work-
related information to supervisors.

In her letter, Walters ultimately recommended termination of Villagran’s employment.

4
On July 10, 2019, a memorandum addressed to Dr. Shirley A. Reed, President of

STC, was sent and signed by Campos, Walters, Alvarez, and Dr. David Plummer, Vice

Present of Information Services, Planning, Performance, and Strategic Initiatives. This

memorandum also recommended the termination of Villagran’s employment from STC

based on Villagran’s “failure to successfully complete his . . . CPIP[], which in part

included misrepresenting work products (plagiarism) and other policy violations[,]”

including “Policy #4001” of the “Code of Professional Ethics for the Administration, Faculty

and Staff,” as well as “Policy #4901” of the “Standards of Conduct.” On the same day,

Reed signed and authored a letter addressed to Villagran, informing him that his

employment was terminated with STC effective July 10, 2019. Reed indicated in the letter

that she decided to terminate Villagran’s employment after she considered “documentary

evidence” and the recommendation of termination by Campos, Walters, Alvarez, and

Plummer.

On September 30, 2019, Villagran submitted a discrimination charge with the

Texas Workforce Commission (TWC) and the federal Equal Employment Opportunity

Commission. Villagran checked off the boxes for sex, national origin, and retaliation in the

“CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es))” section of the

charge form. In addition, Villagran wrote in the charge form that he was “a homosexual,

36-y[ea]r-old Hispanic male of Mexican descent,” contended that he had been

discriminated by STC “on account of [his] race/national origin and/or sexual orientation,”

and further asserted that he was “discriminated against, harassed[,] and subject to a

hostile work environment because of [his] national origin (Mexican descent) and sexual

orientation.”

5
On October 21, 2020, Villagran filed the underlying suit under the Texas

Commission of Human Rights Act (TCHRA), alleging that he “became the target of

increased discriminatory and retaliatory treatment because of his national origin and/or

sexual orientation, as well as subject to a hostile work environment” while employed as a

librarian at STC. Specifically, Villagran alleged that “within the first weeks of his

employment, his supervisors attempted to transfer him to another campus,” but he

refused. He also stated that after his refusal, his supervisors gave him “excess

assignments compared to his co-workers with the same job description,” and that his

supervisors were “overly and unnecessarily critical of his work and were generally rude

and dismissive towards him.” Villagran further alleges he was placed on a CPIP for three

months, and “[d]espite doing everything that was asked of him to do under the CPIP, he

received increased pressure, stress and inordinate and unnecessary scrutiny by his

supervisors.” Villagran asserts that other similarly-situated employees “outside of [his]

protected class who also underwent a [C]PIP” were treated differently. He further states

that the reasons for his termination from STC included “failure to improve, which was

false”; that he “improved in all aspects of the [C]PIP, but [was] still given poor marks by

supervisors compared to similarly-situated employee[s] under [C]PIP”; and that STC did

not follow its own policies “in regards to employee discipline.”

On December 1, 2020, STC filed its original answer asserting “it had [a] legitimate,

nondiscriminatory and non-retaliatory reason[] for the employment actions complained of

by [Villagran].” On January 19, 2023, STC filed a combined traditional and no-evidence

motion for summary judgment, wherein STC asserted that the trial court lacked

jurisdiction over Villagran’s claims because its immunity was not waived under the

6
TCHRA. In support of its motions, STC attached Villagran’s original petition, Villagran’s

oral deposition, emails sent by Hollenbeck to Villagran, a copy of the written CPIP signed

by Villagran and Alvarez, writing samples purporting to show Villagran’s acts of

plagiarism, a copy of Walter’s letter to Navarro and Balderaz recommending Villagran’s

termination, a copy of the memorandum recommending termination sent to Reed, Reed’s

letter to Villagran notifying Villagran that his employment was terminated, an affidavit by

Navarro, and Navarro’s “Investigation Report Memorandum.”

On February 14, 2024, the trial court conducted a hearing on STC’s motion for

summary judgment. At the hearing, Villagran’s counsel requested ten days to file a

responsive pleading to STC’s motion. 2 The trial court then heard brief arguments

regarding STC’s motions. Villagran announced that he was “dropping” his retaliation claim

as well as “removing” his claim for exemplary damages. The trial court announced that it

was going to rule on STC’s motion “by submission” on March 14, 2024, and allow the

parties to file responses and replies. Villagran did not file any responsive pleading to

STC’s motion prior to the trial court’s ruling on said motion. 3

On April 16, 2024, the trial court entered its order denying STC’s combined

traditional and no-evidence motion for summary judgment. The order did not state the

basis of the trial court’s ruling. This interlocutory appeal followed. See TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014(a)(8); Town of Shady Shores v. Swanson, 590 S.W.3d 544,

2 When Villagran’s trial counsel asked STC’s trial counsel if he was opposed to Villagran’s counsel

filing a response with evidence, STC’s trial counsel responded, “No.”

Villagran also did not file any other pleading or motion before the trial court ruled on STC’s
3

combined motion for summary judgment.

7
549 (Tex. 2019) (noting that § 51.041(a)(8) “allows an interlocutory appeal to be taken

when ‘the trial court denies the governmental entity’s claim of no jurisdiction, whether it

has been asserted by a plea to the jurisdiction, a motion for summary judgment, or

otherwise’” (quoting Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).

II. STANDARD OF REVIEW AND APPLICABLE LAW

A trial court’s ruling on a summary judgment motion is reviewed de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Our de novo standard of

review extends to both “traditional” and “no evidence” summary judgments. Shaun T.

Mian Corp. v. Hewlett–Packard Co., 237 S.W.3d 851, 855 (Tex. App.—Dallas 2007, no

pet.).

For a “traditional” summary judgment, the movant bears the burden of establishing

that no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.

2000) (per curiam). To meet this burden as a defendant, the summary judgment movant

must either disprove at least one essential element of a claim as a matter of law or

conclusively establish all elements of an affirmative defense to the claim. Sorrow v. Harris

Cnty. Sheriff, 622 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2021, pet. denied)

(citing Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996) (per

curiam)). Once the movant establishes its right to judgment as a matter of law, the burden

shifts to the nonmovant to produce controverting evidence raising a fact issue on the

elements or claims negated. See Tawil v. Cook Child.’s Healthcare Sys., 582 S.W.3d 669,

681 (Tex. App.—Fort Worth 2019, no pet.) (citing Van v. Peña, 990 S.W.2d 751, 753

(Tex. 1999)).

8
A “no evidence” summary judgment is properly granted if, after adequate time for

discovery, the movant asserts there is no evidence supporting one or more specified

elements of a claim or defense on which the nonmovant bears the burden of proof at trial,

and the nonmovant then produces no summary judgment evidence raising a genuine

issue of material fact on those elements. TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201

S.W.3d 686, 688 (Tex. 2006) (per curiam).

While the burdens vary for the different types of motions, summary judgment

evidence was presented to the trial court; therefore, the “differing burdens are immaterial

and the ultimate issue is whether a fact issue exists.” Scripps NP Operating, LLC v.

Carter, 573 S.W.3d 781, 790 (Tex. 2019); see Fossil Grp., Inc. v. Harris, 691 S.W.3d 874,

882 (Tex. 2024); In re Cobb, 714 S.W.3d 656, 666 (Tex. App.—Corpus Christi–Edinburg

2024, orig. proceeding).

In reviewing summary judgments, we review the evidence in the light most

favorable to the nonmovant. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). We indulge every reasonable inference and resolve any doubts against the motion.

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (citing City of Keller v.

Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). We credit evidence favorable to the

nonmovant if reasonable jurors could, and disregard contrary evidence to the nonmovant

unless reasonable jurors could not. Mack Trucks, 206 S.W.3d at 582 (citing City of Keller,

168 S.W.3d at 827). Circumstantial evidence may be offered to raise an issue of material

fact so long as the evidence transcends mere suspicion. Harrell v. Hochderffer, 345

S.W.3d 652, 661 (Tex. App.—Austin 2011, no pet.) (citing Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 601 (Tex. 2004)).

9
The TCHRA prohibits an employer from committing an “unlawful employment

practice” against an employee “because of” the employee’s “race, color, disability,

religion, sex, national origin, or age.” TEX. LAB. CODE ANN. §§ 21.002(8)(D), 21.051. It also

prohibits employers from retaliating against employees for engaging in certain protected

activities. See id. § 21.055.

The TCHRA waives governmental immunity to suit, “but only when the plaintiff

states a claim for conduct that actually violates the statute.” Tex. 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)). If a plaintiff fails to allege a violation of the TCHRA, then

the trial court does not have jurisdiction, and the claim should be dismissed. Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012).

Recognizing that an employer’s “motives are often more covert than overt, making

direct evidence of forbidden animus hard to come by,” the United States Supreme Court

created the McDonnell Douglas burden-shifting framework, which the Texas Supreme

Court has since adopted for its analysis of TCHRA claims based on circumstantial

evidence. 4 Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex.

2020) ; Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017) (quoting Mission

Consol., 372 S.W.3d at 634); see McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973); see also City of Richland Hills v. Childress, No. 02-20-00334-CV, 2021 WL

4205013, at *4 (Tex. App.—Fort Worth Sept. 16, 2021, pet. denied) (mem. op.) (noting

4 “Because one of the purposes of the TCHRA is to ‘provide for the execution of the policies of Title

VII of the Civil Rights Act of 1964,’” we consider analogous federal cases interpreting Title VII. Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012) (quoting TEX. LAB. CODE ANN.
§ 21.001(1)).

10
the “rarity” of the existence of direct evidence of discrimination in employment cases).

“Under this framework, the plaintiff is entitled to a presumption of discrimination if she

meets the ‘minimal’ initial burden of establishing a prima facie case of discrimination”—

that is, the plaintiff must provide evidence of each element of his claim. Mission Consol.,

372 S.W.3d at 634. “Although the precise elements of this showing will vary depending

on the allegations, . . . the plaintiff’s burden at this stage of the case ‘is not onerous.’”

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001) (quoting Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see Rincones, 520 S.W.3d at 584.

A plaintiff’s failure to make a prima facie case, however, “means the plaintiff never

gets the presumption of discrimination.” Mission Consol., 372 S.W.3d at 637. “[T]hat

failure also means the court has no jurisdiction and the claim should be dismissed.” Id.

Only if the plaintiff establishes a prima facie case of discrimination will the burden then

shift to the defendant to negate or rebut the plaintiff’s prima facie case; this generally

requires that the defendant produce evidence of “a legitimate, nondiscriminatory reason”

for the defendant’s actions. 5 Flores, 612 S.W.3d at 305; see Alamo Heights, 544 S.W.3d

at 782. Thereafter, the burden returns to the plaintiff, who must “overcome the rebuttal

evidence by establishing that the defendant’s stated reason is a mere pretext.” Flores,

612 S.W.3d at 305.

5 We note that the McDonnell Douglas burden shifting analysis is not applicable to claims of
harassment based on hostile work environment once a court concludes that a plaintiff has met her burden
to establish a prima facie case. See Tex. Dep’t of State Health Servs. v. Resendiz, 642 S.W.3d 163, 173
(Tex. App.—El Paso 2021, no pet.) (collecting cases).

11
III. ANALYSIS

In its first issue, STC argues that the trial court erred in denying its no-evidence

motion for summary judgment as to all of Villagran’s claims because he produced no

evidence to support them, and thus, did not trigger a waiver of its sovereign immunity. In

its second through fifth issues, STC argues that traditional summary judgment was

warranted because there was evidence “disproving” some elements of Villagran’s claims

of national origin discrimination, sexual orientation discrimination, hostile work

environment, and retaliation. In its sixth issue, STC argues there was no evidence to

establish that its “legitimate, non[]discriminatory reason for Villagran’s termination was

pretextual or that national origin and/or sexual orientation was a motivating factor in the

termination.” We address these issues together, claim by claim. See Scripps, 573 S.W.3d

at 790; In re Cobb, 714 S.W.3d at 666.

A. National Origin Discrimination

To establish a prima facie case of employment discrimination for his national origin

claim, Villagran was required to plead and produce evidence (1) that he was a member

of a class protected by the TCHRA, (2) that he was qualified for his employment position,

(3) that he was terminated from his employment, and (4) that he was replaced by

someone outside his protected class after his termination (or was treated differently than

similarly situated employees). See Tex. Dep’t of State Health Servs. v. Resendiz, 642

S.W.3d 163, 173 (Tex. App.—El Paso 2021, no pet.) (citing AutoZone, Inc. v. Reyes, 272

S.W.3d 588, 592 (Tex. 2008) (per curiam)).

With respect to Villagran’s national origin claim, STC argues, among other things,

that Villagran presented no evidence establishing that he was replaced by someone

12
outside his protected class or otherwise treated less favorably than similarly situated

employees. During Villagran’s deposition testimony, the following exchange occurred:

[STC’s counsel]: Okay. Did you ever discuss with anybody at
STC what your national origin was?

[Villagran]: Just that I’m Hispanic, Mexican-American.

[STC’s counsel]: Who did you discuss that with?

[Villagran]: To my . . . other librarian colleagues . . . Ms.
Maureen Mitchell and Ms. Sabrina Deanda. And
sometimes just like also my background where
my parents worked.

....

[STC’s counsel]: Did you tell them where you were born?

[Villagran]: Yes.

[STC’s counsel]: Okay. So you told them you were born in?

[Villagran]: I was born here in the—in Mission.

....

Yes. Then my . . . mother was born here in
. . . Edcouch, and my dad was [b]orn in Mexico,
and that they had very little education.

....

[STC’s counsel]: Did you tell anybody else?

[Villagran]: No.

....

[STC’s counsel]: Did . . . they tell anyone about your national
origin that you know of?

[Villagran]: Not that I’m aware of.

13
[STC’s counsel]: Was anyone else aware of your national origin
or where your parents were born or anything like
that that you know of?

[Villagran]: No.

[STC’s counsel]: Okay. What’s your claim regarding national
origin discrimination?

[Villagran]: I felt . . . because the way I would probably
write, because it was mentioned in my conduct
and improvement plan.

....

That sometimes my . . . E-mails . . . didn’t
sound as if it was good writing. And that was
mentioned and brought up to—by [Alvarez].

[STC’s counsel]: So [Alvarez] mentioned to you that she thought
your E-mails didn’t have good writing?

[Villagran]: Yes.

[STC’s counsel]: And you perceived that as national origin
discrimination?

[Villagran]: Yes. I felt somebody may have said something,
but I don’t know who . . ., but I perceived it to be
as if—that the way my writing was, because
she . . . did make a comment, that, Oh, we’re
like—that as—in a closed office, she did
mention to me that as of Hispanic, since
we’re . . . Mexican-American, we’re supposed
to be better writers.

[STC’s counsel]: [Alvarez is] Mexican-American?

[Villagran]: Yes.

....

[STC’s counsel]: So she was talking about you both?

[Villagran]: Yes.

14
....

Like we’re supposed to step it up.

[STC’s counsel]: Did you respond to her?

[Villagran]: I—since she’s my superior, I didn’t. . . .

[STC’s counsel]: Did you . . . speak to anyone at STC about that
comment?

[Villagran]: No.

....

[STC’s counsel]: . . . . Was your position of employment
replaced?

[Villagran]: Yes.

[STC’s counsel]: Do you know who it was replaced by?

[Villagran]: Sara Martinez.

[STC’s counsel]: Do you know what her national origin is?

[Villagran]: She’s Hispanic as well. And I know . . . that after
my termination in . . . July of 2019, I would go
and check on the . . . STC website, position was
posted right away in September 2019. And in
January of 2020, I saw that she had already
started working.

[STC’s counsel]: Do you know what her sexual orientation is?

[Villagran]: I know she told me that she was married, she
had her husband.

STC contends that the record reflects that Villagran was replaced by someone

within his protected class. We agree. As demonstrated above, Villagran indicated in his

deposition testimony that his national origin was “Hispanic, Mexican-American,” and that

15
his employment position was replaced by Martinez, whom Villagran stated was “Hispanic

as well.” 6 In his brief, Villagran identifies no other evidence in the record demonstrating

that Martinez was outside his protected class in regards to his national origin

discrimination claim, and we have found none. Thus, none of the summary judgment

evidence before us raises a genuine issue of material fact as to whether Villagran was

replaced by someone outside of his protected class. See Resendiz, 642 S.W.3d at 173;

cf. Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 344 (Tex. App.—Dallas 2013,

no pet.) (rejecting school district’s assertion that appellee, a Hispanic woman, could not

present a prima-facie case of national origin discrimination when evidence raised issue

of material fact as to whether the appellee was replaced by a non-Hispanic).

STC also contends that “the record clearly establishes that there were no others

similarly situated to Villagran that were treated more favorably than him.” Villagran argues

in response that his “[c]oworker Angelica [Garcia] confirmed that Villagran was treated

different and unfairly regarding the CPIP as opposed to other[,] female employees,”

referencing Navarro’s “Investigation Report Memorandum.” In his report, Navarro

explained that he interviewed Garcia on October 2, 2019, as part of his investigation into

Villagran’s allegations. Navarro’s report noted the following:

[Garcia] stated that [she] would go to lunch with [Villagran] and had texted
him when learning he separated with [STC]. [Garcia] stated that the
recording of the presentations was unfair, and that in all the time they have

6 “[T]he term ‘Hispanic’ does not literally designate either race or national origin and is instead

commonly understood as implying both.” Lopez v. Tex. State Univ., 368 S.W.3d 695, 703 (Tex. App.—
Austin 2012, pet. denied) (discussing the overlapping nature of national-origin and racial discrimination
claims when employee asserts discrimination because he is Hispanic). Villagran did not expressly assert a
claim of race discrimination in his petition and STC does not raise any appellate issue regarding such a
claim. To the extent that Villagran’s petition can be construed as asserting a claim of race discrimination,
we note that Villagran states in his brief that he “is not proceeding on his race . . . claim[], and agrees th[is]
claim[] should not proceed.”

16
worked at [STC] that has never been done. [Garcia] stated that [Villagran]
had informed [her] that [he] had been asked to transfer to Starr, and that it
occurred several months into employment, maybe “six months” after he
started. [Garcia] stated that she did not know of [Villagran’s] sexuality
because he did not tell [her]. [Garcia] stated that [she] had not seen or heard
anything discriminatory against anyone. [Garcia] stated that [Villagran] may
have been discriminated for “being too nice.”

Garcia’s statements, viewed in the light most favorable to Villagran, indicate at most that

he was treated differently. However, Villagran was required to prove he was treated

differently in comparison to similarly situated employees. See Resendiz, 642 S.W.3d at

173. “Employees are similarly situated if their circumstances are comparable in all

material respects, including similar standards, supervisors, and conduct.” Ysleta Indep.

Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (footnote omitted). “Though

their circumstances need not be ‘identical,’ they must be ‘nearly identical.’ . . . Employees

with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary

records are not considered to be ‘nearly identical.’” Flores, 612 S.W.3d at 312.

Furthermore, “[t]o prove discrimination based on disparate discipline, the disciplined and

undisciplined employees’ misconduct must be of ‘comparable seriousness.’” Monarrez,

177 S.W.3d at 917. (quoting McDonnell Douglas, 411 U.S. at 804). Precise equivalence

in culpability is not required, but a plaintiff must usually show that the misconduct for which

he was discharged was nearly identical to the conduct engaged in by an employee whom

the company retained. Id. at 917–18.

As mentioned above, the only evidence before us on appeal is that which STC

attached to its combined motion for summary judgment. Villagran produced no evidence

whatsoever—including any evidence of similarly situated employees. We have found no

evidence in the record to support a conclusion that Villagran was treated differently or

17
less favorably than employees similarly situated to him. Accordingly, we conclude that

Villagran failed to meet his burden to establish a prima facie case of national origin

discrimination. See Resendiz, 642 S.W.3d at 173. Therefore, the trial court erred by

denying summary judgment on Villagran’s national origin discrimination claim. See

Flores, 612 S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782; Rincones, 520 S.W.3d at

585 (concluding the plaintiff’s discrimination claim based on race or national origin claim

failed where plaintiff “offered no proof, not even circumstantial evidence, of even one

similarly situated person who was treated” preferentially). 7

B. Sexual Orientation Discrimination

A prima facie case of discrimination on the basis of sex under the TCHRA requires

Villagran to plead and prove that he: (1) was a member of the protected class; (2) was

qualified for his position; (3) suffered a final, adverse employment action; and (4) was

either (a) replaced by someone outside his protected class or (b) otherwise treated less

favorably than similarly situated employees. See Resendiz, 642 S.W.3d at 173.

The United States Supreme Court held that homosexuality may form the basis of

a sex discrimination claim. Bostock v. Clayton County, Ga., 590 U.S. 644, 660–61 (2020).

The Court reiterated Title VII’s “simple but momentous” message: “An individual

employee’s sex is ‘not relevant to the selection, evaluation, or compensation of

employees.’” Id. at 660 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989)

7 Because we have concluded that Villagran failed to establish a prima facie case for his national

origin discrimination claim, we decline to address STC’s arguments that Villagran was not qualified for his
position or that there was no evidence to establish that its “legitimate, non-discriminatory reason for
Villagran’s termination was pretextual or that national origin . . . was a motivating factor in the termination.”
See TEX. R. APP. P. 47.1 (requiring appellate court to hand down written opinion disposing of every issue
necessary to final disposition of appeal).

18
(plurality op.)). “If the employer intentionally relies in part on an individual employee’s sex

when deciding to discharge the employee—put differently, if changing the employee’s sex

would have yielded a different choice by the employer—a statutory violation has

occurred.” Id. at 659–60. The Court explicitly held that “[w]hen an employer fires an

employee for being homosexual . . . , it necessarily intentionally discriminates against that

individual [in part] because of sex.” Id. at 646. (emphasis added). In addition, the Court

held that “the plaintiff’s sex need not be the sole or primary cause of the employer’s

adverse action.” Id. Observing that firing an employee because he is homosexual

encompasses “two causal factors . . . —both the individual’s sex and something else (the

sex to which the individual is attracted or with which the individual identifies),” the Court

nonetheless resolved that employers may not be insulated from liability simply because

their employees reframe sex discrimination in different terms. Id. at 661; see also Olivarez

v. T-Mobile USA, Inc., 997 F.3d 595, 603 (5th Cir. 2021).

Regarding his sexual orientation discrimination claim, the summary judgment

evidence demonstrated that Villagran is a member of a protected class—a homosexual

man. See Bostock, 590 U.S. at 656–62; Resendiz, 642 S.W.3d at 173; see also Burns v.

Intermodal Cartage Co., No. 3:22-CV-00979-E, 2024 WL 1018526, at *12 (N.D. Tex. Mar.

8, 2024) (discussing that the parties did not dispute in their briefs that Burns “was a

member of a protected class—a homosexual man”). The evidence also demonstrated

that Villagran was terminated from his employment, and thus suffered a final, adverse

employment action. See Resendiz, 642 S.W.3d at 173. The evidence further established

that Villagran was replaced by Martinez, a heterosexual woman and therefore a person

outside of his protected class. See id.

19
STC contends that Villagran presented no evidence establishing that he was

qualified for his position. See id. In Bienkowski v. Am. Airlines, the Fifth Circuit Court of

Appeals held that a plaintiff challenging termination or demotion can ordinarily establish

a prima facie case by showing that he continued to possess the necessary qualifications

for his job at the time of the adverse action. 851 F.2d 1503, 1506 (5th Cir. 1988). The

court noted that this meant that the plaintiff had not suffered physical disability or loss of

a necessary professional license or some other occurrence that rendered him unfit for the

position for which he was hired. Id. at n.3. Under this standard, “[t]he focus is ‘on the

employee’s bare ability to do the work, not the quality of the work done.’” Kaplan v. City

of Sugar Land, 525 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

The summary judgment evidence demonstrates that Villagran held his position for

over ten months, during which he was placed into and participated in a CPIP from April

1, 2019, to June 30, 2019. STC argues that the evidence “established a number of issues

had occurred that rendered Villagran unfit for the position for which he was hired,” and

that “[t]here was also a determination made that Villagran was not able to successfully

provide instruction to meet the job responsibility listed in the Librarian I job description.”

There is no evidence in the record that Villagran was physically incapable of performing

his tasks at the time of termination, and our focus is on Villagran’s “bare ability to do the

work” as opposed to the quality. See id.; Bienkowski, 851 F.2d at 1506. We therefore

conclude that the evidence establishes a prima facie case that Villagran was qualified for

his job at the time he was terminated on July 10, 2019. Accordingly, we conclude the

evidence established a prima facie case of sexual orientation discrimination. See

Resendiz, 642 S.W.3d at 173.

20
However, STC argues that it had a legitimate, nondiscriminatory reason for

terminating Villagran’s employment. See Flores, 612 S.W.3d at 305; Alamo Heights, 544

S.W.3d at 782. We agree. In this case, the evidence demonstrated that Reed received a

memorandum from Campos, Plummer, Walters, and Alvarez, which recommended

Villagran’s termination based on his “failure to successfully complete his . . . CPIP[],

which in part included misrepresenting work products (plagiarism) and other policy

violations,” including “Policy #4001” of the “Code of Professional Ethics for the

Administration, Faculty and Staff,” as well as “Policy #4901” of the “Standards of

Conduct.” On the same day, Reed signed and authored a letter addressed to Villagran,

informing him that his employment was terminated with STC effective July 10, 2019, after

she considered “documentary evidence” and the recommendation of termination by

Campos, Plummer, Walters, and Alvarez. We conclude that this evidence proves as a

matter of law that STC had a legitimate, nondiscriminatory reason for Villagran’s

termination. See Flores, 612 S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782.

STC further argues that Villagran presented no evidence to establish that its

legitimate, nondiscriminatory reason for terminating his employment was a pretext to

sexual orientation discrimination. See Flores, 612 S.W.3d at 305. To raise a fact issue on

the pretext element of a discrimination claim, the employee 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.”

Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied) (internal quotation omitted). “A plaintiff can avoid summary

judgment if the evidence, taken as a whole, creates a fact issue ‘as to whether each of

21
the employer’s stated reasons was not what actually motivated the employer and creates

a reasonable inference’” that the employer acted with the intent to discriminate. Id.; see

also Little v. Tex. Dep’t of Crim. Just., 177 S.W.3d 624, 632 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) (“[T]he United States Supreme Court has made it clear that it is

not sufficient merely to show that the employer’s reasons are false or not credible; the

plaintiff must prove that the employer discriminated intentionally.”). “An employee’s

subjective belief that his employer has given a false reason for the employment decision

is not competent summary judgment evidence.” Chandler, 376 S.W.3d at 814.

In his brief, Villagran states that the record “is replete with evidence of pretext,”

and argues that “STC’s allegations of plagiarism are patently false,” pointing to his own

deposition testimony. We note that in his deposition testimony, Villagran did not expressly

state that he did not commit acts of plagiarism. Rather, Villagran stated that he was

accused by Alvaraz, Hollenbeck, and Walters of committing plagiarism when he

submitted an essay that lacked parenthetical citations. Regarding that essay, Villagran

explained the following:

That essay, . . . I had two formats. The only thing is that—because my
computer saved two formats at home. I also felt—I was kind of dizzy, so I
submitted the wrong one without the—the—the citations when I had the
other one with the citations. So I had two different versions, and I submitted
the one with—with the one without the citations be—and the other one I did
submit it. And I did mention that to them.

The above testimony is not evidence that Villagran did not commit acts of plagiarism. At

most, the testimony merely constitutes Villagran’s explanation as to why he was accused

of plagiarism. Villagran’s conclusory contentions that “STC’s accusations of plagiarism

are patently false” are insufficient to create a fact issue as to pretext . See Raoger Corp.

22
v. Myers, 711 S.W.3d 206, 213 (Tex. 2025) (“Speculative and conclusory testimony, by

experts and lay witnesses alike, is incompetent and cannot support or defeat summary

judgment.”); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (“[T]estimony comprised

only of legal conclusions is insufficient to support summary judgment as a matter of law.”);

see also McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 760 (Tex. App.—Houston

[14th Dist.] 2017, no pet.) (“McNeel’s subjective interpretation of the rules, or her

disagreement over whether she violated them, is not sufficient to create a fact issue that

[the employer’s] stated reason was pretextual.”); Wawarosky v. Fast Grp. Hous. Inc., No.

01-13-00466-CV, 2015 WL 730819, at *8 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015,

no pet.) (mem. op.) (employee’s assertion that his conduct did not violate company policy

“fail[ed] to raise a fact issue regarding [supervisor’s] belief that [employee] violated the

policy”); Nash v. Blood & Tissue Ctr. of Cent. Tex., No. 03-03-00763-CV, 2004 WL

2900483, at *6 (Tex. App.—Austin Dec. 16, 2004, no pet.) (mem. op.) (“Nash does not

deny that he conducted an unauthorized background check on Benites; he only asserts

that such conduct did not constitute a violation of [the employer’s] policy. His claim does

not provide a scintilla of evidence to overcome [the employer’s] legitimate reasons for

Nash’s termination.”).

Villagran next argues that the evidence showed that his performance improved

during his CPIP. An employee may show that the employer’s reason is a mere pretext “by

revealing weaknesses, implausibilities, inconsistencies, or contradictions” in the

evidence. Tex. Dep’t of Transp. v. Flores, 576 S.W.3d 782, 794 (Tex. App.—El Paso

2019, pet. denied). For example, when an employer points to an employee’s poor

performance as a reason for an adverse employment decision, contradictory evidence

23
that an employer is satisfied with an employee’s work performance can serve as evidence

of pretext. See Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 915 (Tex. App.—

Fort Worth 2018, pet. denied). Regarding his contention, Villagran suggests that he

“testified that he was improving after the additional training he received in the [CPIP].”

However, we have not found any such statements in Villagran’s deposition testimony.

Villagran also suggests that there was evidence by which STC “confirmed” his

improvement, citing Navarro’s report. Portions of said report contain summaries of

statements Alvarez made to Navarro during an interview for his investigation, including

that Villagran “showed minimal improvement, failed the [CPIP] plan, and was

recommended for termination.” Regarding the recommendation for his termination, the

report noted that “Villagran did not successfully meet the three areas of improvement that

were issued in his CPIP: presentation skills, developing liaison skills, and improving

writing skills.” The report also stated that “Campos informed [Villagran] that due to the

lack of performance and failure to improve during the CPIP, he was being recommended

for termination.” We do not conclude that Navarro’s report constitutes evidence that STC

was satisfied with Villagran’s work performance such that it serves as evidence of pretext.

See Burnett, 552 S.W.3d at 915. Villagran points to no other evidence demonstrating that

STC was satisfied with his work performance, and we have found none.

Villagran also contends that “[t]argeting an employee for extra work, scrutiny or

other harassment has also been found to be permissible pretext evidence,” and again

relies on his own deposition testimony for support. We first note that Villagran stated in

his deposition testimony that he discussed his sexual orientation with “[n]obody” at STC,

he knew of no one at STC that knew of his sexual orientation, and he was unaware of

24
anyone at STC that had a similar sexual orientation as himself. We also note that Villagran

did not expressly testify that STC’s legitimate, nondiscriminatory reason for his

termination was pretextual. Instead, Villagran testified to various acts by Alvarez and

Martinez which he failed to “link” to his protective class or his termination. 8 See Hudgens

v. Univ. of Tex. MD Anderson Cancer Ctr., 615 S.W.3d 634, 647 (Tex. App.—Houston

[14th Dist.] 2020, no pet.) (holding that the appellant’s deposition testimony did not link

his manager’s alleged discriminatory comment to the appellant’s protected age group or

his termination). At most, Villagran’s deposition testimony constitutes nothing more than

his own subjective beliefs or feelings of sexual orientation-related animus, which is

insufficient to defeat summary judgment in this context. See Alamo Heights, 544 S.W.3d

at 773 (speculation and subjective beliefs not probative of improper conduct or

discriminatory animus); Hudgens, 615 S.W.3d at 647; Chandler, 376 S.W.3d at 814; see

also Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 841–42 (7th Cir.

1996) (“[I]f the subjective beliefs of plaintiffs in employment discrimination cases could,

8 Villagran testified in his deposition that he “felt like [Alvarez] would attack” him, that she “wouldn’t

verbally say things, but . . . would kind of be[] dismissive.” He stated that she would make time for other
employees but not him. Villagran also testified that he felt Alvarez discriminated against him because when
he would discuss his library instruction ratings with her, she would only tell him “Oh, that’s good” and nothing
more about it. Villagran expressed that Alvarez “wouldn’t want to bother with [him],” and that she “wasn’t
that involved as a supervisor.” When asked if Alvarez had “said anything to [him] or to anyone that . . . [he]
felt was discriminatory,” Villagran responded, “I felt—I know that I felt with—not so much through words,
but I felt it through, like gestures, through eye contact.” Villagran also testified that Alvarez made him “feel
sometimes uncomfortable,” that he would “feel as if . . . she didn’t even want to get near [him] at times.”
Villagran further stated that he “felt [Alvarez] spen[t] more time with the wom[e]n,” that she “would spend a
great . . . amount of time talking to [Martinez] on the reference desk,” and that he “felt . . . [those
conversations] probably w[ere]n’t work related, or it could[ have] been work related, but then it could also
be a conversation[] as well about something else.” Villagran also testified that Martinez, who later replaced
him, discriminated against him with respect to his sexual orientation because she asked him about why he
combed his hair the way he did, that she touched his hair, head, and the back of his neck with her hand.
Villagran also stated that in another incident, Martinez was “rude” by “invading [his] space” when she stood
“very close” to him while he worked on a computer at a cubicle.

25
by themselves, create genuine issues of material fact, then virtually all defense motions

for summary judgment in such cases would be doomed.”). We conclude that the summary

judgment evidence does not offer more than a scintilla of probative evidence that STC’s

legitimate reasons for Villagran’s termination were pretextual. See Flores, 612 S.W.3d at

305; Chapman, 118 S.W.3d at 751. Accordingly, the trial court erred in denying summary

judgment on Villagran’s sexual orientation discrimination claim. See Flores, 612 S.W.3d

at 305.

C. Hostile Work Environment

A prima facie case of a hostile work environment requires Villagran to prove that:

(1) he belongs to a protected group; (2) he was subjected to “unwelcome harassment”;

(3) the harassment was based on the protected characteristic; (4) the harassment

affected a term, condition, or privilege of employment; and (5) STC knew or should have

known of the harassment in question and failed to take prompt remedial action. See

Anderson v. Hous. Cmty. Coll. Sys., 458 S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.]

2015, no pet.); Bartosh v. Sam Hous. State Univ., 259 S.W.3d 317, 325 n.14 (Tex. App.—

Texarkana 2008, pet. denied); see also Chau v. Harlingen Med. Ctr., No. 13-15-00115-

CV, 2016 WL 1072619, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 17, 2016, pet.

denied) (mem. op.).

STC argues that no evidence established the second, fourth, and fifth elements of

Villagran’s hostile work environment claim. In a footnote in his brief, Villagran states that

he “is not proceeding on his . . . hostile environment . . . claim[], and agrees th[is] claim[]

should not proceed. Therefore, [Villagran] does not intend to brief th[is] issue[] unless

directed by the Court of Appeals.” We construe Villagran’s statement to mean that he

26
concedes the arguments asserted by STC.

We agree with STC regarding the fifth element of Villagran’s hostile work

environment claim. Villagran testified in his deposition regarding various complained-of

acts and behaviors by Alvarez and Martinez. However, Villagran indicated in his

deposition that he did not report the complained-of conduct to anyone at STC. Thus, we

agree with STC that nothing in the record establishes that STC knew or should have

known of the alleged harassment in question and failed to take prompt remedial action.

See Anderson, 458 S.W.3d at 646; see also Fossil Grp., 691 S.W.3d at 881–86

(concluding that there was no evidence that any “appropriate persons” within Fossil knew

or should have known about harassing conduct before the appellee sent an email in

response to an in-store company survey by which the appellee stated she felt she was

being sexually harassed). Having reviewed the evidence in the light most favorable to

Villagran, we conclude that Villagran has not established a prima facie case with respect

to his hostile work environment claim. 9 See Tamez, 206 S.W.3d at 582; Anderson, 458

S.W.3d at 646; Bartosh, 259 S.W.3d at 324. Therefore, the trial court erred by denying

summary judgment on this claim. See Flores, 612 S.W.3d at 305; Alamo Heights, 544

S.W.3d at 782.

D. Retaliation

A prima facie case of retaliation requires Villagran to 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.

9 We decline to address STC’s other arguments regarding whether Villagran established a prima

facie case for his hostile work environment claim. See TEX. R. APP. P. 47.1.

27
See Lara, 625 S.W.3d at 58.

STC argues that no evidence established the first and third elements of Villagran’s

retaliation claim. See id. In a footnote in his brief, Villagran states that “[a]lthough [his]

petition makes . . . retaliation . . . . claims . . . , [he] is not proceeding on those claims and

does not intend to brief those issues unless directed by the Court of Appeals.” Thus,

Villagran has provided no responsive argument regarding this issue. Again, we construe

his statement to mean that he concedes the issue.

The activities protected by the statute under TCHRA are: (1) “oppos[ing] a

discriminatory practice”; (2) “mak[ing] or fil[ing] a charge”; (3) “fil[ing] a complaint”; or

(4) “testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding,

or hearing.” TEX. LAB. CODE ANN. § 21.055. “[T]o invoke the protections of [§] 21.055, the

conduct relied on by the employee ‘must, at a minimum, alert the employer to the

employee’s reasonable belief that unlawful discrimination is at issue.’” Lara, 625 S.W.3d

at 59 (quoting Alamo Heights, 544 S.W.3d at 786). “[A]lthough ‘[m]agic words’ are not

required to invoke the TCHRA’s anti-retaliation protection, complaining only of

‘harassment,’ ‘hostile environment,’ ‘discrimination,’ or ‘bullying’ is not enough.” Id.

(quoting Alamo Heights, 544 S.W.3d at 786–87).

Villagran alleged in his petition “he was wrongfully and illegally retaliated against

following his opposition and complaint of discrimination, and filing of a charge of

discrimination.” It is unclear what protected activity Villagran is claiming to have engaged

in to support his retaliation claim. To the extent that he engaged in a protected activity by

“fil[ing] a complaint” with TWC, there is nothing in the record indicating that STC was

made aware that Villagran was claiming “unlawful discrimination” on the basis of national

28
origin and sexual orientation. See Lara, 625 S.W.3d at 59 (noting that “complaining only

of ‘harassment’” or “discrimination” is “not enough” to show a protected activity). We have

found no evidence indicating that STC or any of its employees were ever alerted that

Villagran was alleging discrimination under the TCHRA prior to the time he was

terminated. Having reviewed the evidence in the light most favorable to Villagran, we

conclude he failed to meet his burden to show a prima facie case of retaliation under the

TCHRA. See Lara, 625 S.W.3d at 58; Tamez, 206 S.W.3d at 582. The trial court therefore

erred in denying STC’s summary judgment motion as to that claim. 10 See Flores, 612

S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782.

IV. CONCLUSION

We reverse the trial court’s order denying STC’s combined traditional and no-

evidence motion for summary judgment and render judgment dismissing all of Villagran’s

claims for want of jurisdiction.

CLARISSA SILVA
Justice

Delivered and filed on the
8th day of January, 2026.

10 Because we have effectively concluded that the trial court erred in denying STC’s combined

traditional and no-evidence motion for summary judgment as to all of the claims raised by Villagran’s
petition, we decline to address STC’s seventh issue arguing that the trial court erred in denying its motion
on the issue of punitive damages. See TEX. R. APP. P. 47.1.

29