Tarrant County College District v. Didier Chavez

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00176-CV
___________________________

TARRANT COUNTY COLLEGE DISTRICT, Appellant

V.

DIDIER CHAVEZ, Appellee

On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-360359-24

Before Sudderth, C.J.; Wallach, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

I. INTRODUCTION

Following Appellant Tarrant County College District (TCCD)’s termination of

his employment, Appellee Didier Chavez sued TCCD under the Texas Commission

on Human Rights Act (TCHRA) for (1) sex discrimination and (2) retaliation. See

Tex. Lab. Code Ann. § 21.001. Contending that its governmental immunity had not

been waived because Chavez could not raise a genuine issue of material fact that it

had violated the TCHRA, TCCD moved to dismiss the suit.1 The trial court denied

the motion, and TCCD filed this appeal.

In a sole issue, TCCD argues—in two subparts—that the trial court erred by

denying its motion to dismiss because Chavez failed to (1) establish a prima facie case

of sex discrimination and (2) overcome TCCD’s rebuttal evidence by showing that its

stated reason for the termination of his employment was a mere pretext.

Because Chavez established his prima facie case for sex discrimination and

because he raised a fact issue whether TCCD’s stated reason for the termination of his

employment was a mere pretext for discrimination, the trial court did not err by

denying TCCD’s motion to dismiss. We will affirm.

1
TCCD’s motion to dismiss was a plea to the jurisdiction.

2
II. FACTUAL AND PROCEDURAL BACKGROUND

Chavez was employed by TCCD as a library specialist from October 2021

through July 2023. During his employment with TCCD, Chavez had several negative

encounters with two female coworkers: Amy Vo and Kristen Smith. Vo and Smith

made various discrimination-related comments—both in Chavez’s presence and

directed at him. Their comments included Chavez allegedly receiving special

treatment because he is a man, how easy men have it, and how men have everything

handed to them.

In March 2023, a conversation regarding misogyny between Chavez, Vo, and

Smith became contentious when Vo said that “men are all rapists, murderers, and

monsters.” Chavez construed this statement as discrimination and harassment, and

he reported Vo to TCCD’s Director of Library Services, Alex Potemkin, who

escalated the complaint to TCCD’s Human Resources Department. Chavez also

made a formal Incident Report to TCCD, reporting that Vo had been spreading

misandry towards him and his other male coworkers. In that complaint, Chavez

reported Smith’s involvement and alleged that she and Vo were “openly rude and

mean to all of the male coworkers.” Chavez complained that the pattern of

discrimination and harassment towards him and his male coworkers had escalated

despite his speaking to Vo and Smith about their statements.

Following Chavez’s complaint, TCCD reduced Smith’s work hours until a

meeting could take place to discuss the reported conflicts. Later that day, another

3
female coworker, Dayna Gerard, confronted Chavez—in front of other coworkers—

about his discrimination complaint and accused him of being responsible for the

reduction of Smith’s work hours. The next day, Gerard sent Chavez a text message

and asked if they could talk after work. Gerard and Chavez met later that evening,

and Gerard explained that she was upset that he had complained of discrimination

and told him that he should have personally handled it with Vo and Smith instead of

putting their jobs at risk. Both Chavez and Gerard recorded the conversation without

the other’s knowledge or consent. TCCD’s Employee Standards of Conduct prohibit

its employees from recording other employees without their consent.

Chavez sent the recorded conversation to Potemkin, who responded that he

“cannot advise [Chavez] in any capacity as to what to do with the recordings, other

than to add them to the complaint.” Chavez provided the recording to Human

Resources and made a second complaint to TCCD, alleging that Gerard had retaliated

against him. Chavez reported that Gerard had publicly questioned him at work about

his complaint to Potemkin.

On April 28, 2023, during an investigation into Chavez’s discrimination and

retaliation complaints, Gerard spoke with a Title IX investigator and admitted that she

had recorded a conversation between her and Chavez.2

2
TCCD’s Title IX Office investigated Chavez’s sex discrimination and
retaliation complaints.

4
On June 7, 2023, following an investigation into the claims submitted by

Chavez, a confidential report was completed, indicating that no Title IX violations

had been found and that the matter would be transferred to Human Resources to

determine whether any non-Title IX violations had occurred. A few days later,

Chavez was placed on administrative leave, pending Human Resource’s investigation

into his complaints. Gerard was placed on administrative leave on June 13, 2023.

Human Resources completed its investigation into Chavez’s complaints on July 10,

2023. TCCD’s investigation revealed that Chavez had “made an audio recording of a

co-worker without her consent”—in violation of TCCD’s Employee Standards of

Conduct. Seventeen days later, Chavez’s employment was terminated. Gerard’s

employment, however, was not terminated at that time.

On August 28, 2023, Chavez made a complaint to the Equal Employment

Opportunity Commission (EEOC), asserting that he was “discriminated against and

harassed because of [his] sex (male)” and that he “was also retaliated against for

engaging in protected activity.” On September 29, 2023, TCCD amended its

investigative report to confirm that Gerard had also recorded a conversation with

Chavez without his consent, stating that “[t]his fact was inadvertently omitted from

the initial investigative summary completed on July 10, 2023.” On October 2, 2023,

TCCD responded to Chavez’s EEOC complaint, maintaining that his complaints of

discrimination and retaliation should fail. On October 17, 2023, TCCD placed

5
Gerard on administrative leave and subsequently terminated her employment on

December 11, 2023.

On December 16, 2023, Chavez sued TCCD, asserting claims under the

TCHRA for sex discrimination and retaliation. TCCD filed a motion to dismiss,

contending that the trial court lacked jurisdiction over Chavez’s claims because he

could not raise a genuine issue of material fact that TCCD had violated the TCHRA.

Chavez responded and argued that his petition and the evidence presented by both

parties were sufficient to establish his prima facie case for each claim asserted and to

rebut TCCD’s nondiscriminatory reason for the termination of his employment.

Following a non-evidentiary hearing, the trial court denied the motion to dismiss, and

TCCD filed this appeal.

III. PLEA TO THE JURISDICTION

A. STANDARD OF REVIEW

A trial court’s ability to hear a case lies in its subject-matter jurisdiction. Bland

ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “A plea to the jurisdiction is a dilatory

plea that seeks dismissal of a case for lack of subject-matter jurisdiction.” Harris Cnty.

v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A plea to the jurisdiction may be used to

assert governmental immunity3 and defeat a court’s subject-matter jurisdiction. Id. A

3
Public junior colleges, such as TCCD, are political subdivisions of the state
and enjoy governmental immunity. See Tex. Educ. Code Ann. § 130.201; Tex. Civ.
Prac. & Rem. Code Ann. § 101.001(3)(B).

6
trial court’s ruling on a plea to the jurisdiction is reviewed de novo. Suarez v. City of

Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we

consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised, just as the trial court must do. Tex. Depot of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at 555. If the

evidence creates a fact question on the jurisdictional issue, then the trial court cannot

grant the plea to the jurisdiction, and the factfinder will resolve the question. Miranda,

133 S.W.3d at 227–28. But if the relevant evidence is undisputed or fails to raise a

fact question on the jurisdictional issue, the trial court rules on the plea as a matter of

law. Id. at 228. This standard follows our summary judgment standard of review,

where we take as true all evidence favorable to the non-movant, indulging every

reasonable inference and resolving any doubts in the non-movant’s favor. City of El

Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

B. APPLICABLE LAW

The TCHRA prohibits an employer from discharging an individual “because of

race, color, disability, religion, sex, national origin, or age.” Tex. Lab. Code Ann.

§ 21.051(1). An employer commits an unlawful employment practice under the

statute if the employee’s sex was “a motivating factor” for the practice, “even if other

factors also motivated the practice.” Id. § 21.125(a). The TCHRA waives

governmental immunity from suit, but only if the plaintiff alleges facts that would

7
establish a violation of the TCHRA “and, when challenged with contrary evidence,

provides evidence that is at least sufficient to create a genuine fact issue material to

that allegation.” Tex. Tech Univ. Health Scis. Ctr.–El Paso v. Flores, 612 S.W.3d 299, 305

(Tex. 2020).

A plaintiff can establish discrimination under the TCHRA in two ways. See

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476–77 (Tex. 2001). First, an

employee can offer direct evidence of the employer’s discriminatory actions or words.

Id. at 476. “Direct evidence of discrimination is evidence that, if believed, proves the

fact of discriminatory animus without inference or presumption.”4 Coll. of the Mainland

v. Glover, 436 S.W.3d 384, 392 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(quoting Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—

Dallas 2012, no pet.)). Alternatively, because direct evidence of discrimination or

retaliation is a “rarity” in employment cases, courts allow claims to proceed with

indirect or circumstantial evidence of discrimination or retaliation. Russo v. Smith Int’l,

Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Under

this second method, Texas courts follow the burden-shifting mechanism set forth by

4
“If an inference is required for the evidence to be probative as to the
employer’s discriminatory animus in making the [adverse] employment decision, the
evidence is circumstantial, not direct.” Donaldson v. Tex. Dep’t of Aging & Disability
Servs., 495 S.W.3d 421, 433 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
(quoting Jespersen, 390 S.W.3d at 653–54.

8
the United States Supreme Court in McDonnell Douglas.5 McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–26 (1973); Glover, 436 S.W.3d

at 392.

Under the McDonnell Douglas framework, as applied to the TCHRA,6

(1) the plaintiff must first create a presumption of illegal discrimination
by establishing a prima facie case, (2) the defendant must then rebut that
presumption by establishing a legitimate, nondiscriminatory reason for
the employment action, and (3) the plaintiff must then overcome the
rebuttal evidence by establishing that the defendant's stated reason is a
mere pretext.

Flores, 612 S.W.3d at 305; see Ames, 605 U.S. at 308, 145 S. Ct. at 1545 (setting out the

traditional McDonnel Douglas framework).

IV. DISCUSSION

A. PRIMA FACIE CASE

TCCD contends that Chavez cannot establish a prima facie case of sex

discrimination. To establish a prima facie case of sex discrimination under the

5
Based on the concurrence in Ames v. Ohio Department of Youth Services, Chavez
asserts that McDonnell Douglas is outdated and should be discarded in favor of the
simple Texas summary judgment standard. See 605 U.S. 303, 326, 145 S. Ct. 1540,
1555 (2025) (Thomas, J. concurring). We decline the invitation to do so because
when a plaintiff’s claims rely on circumstantial evidence, the established method for
adjudicating these claims in Texas courts is the McDonnell Douglas framework. See
Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012); Tex. Tech Univ. Health
Scis. Ctr.-El Paso, 612 S.W.3d at 305 (“[W]e follow the burden-shifting framework the
United States Supreme Court established in McDonnell Douglas Corp. v. Green.”).
6
Analogous federal statutes and the cases interpreting them can guide our
reading of the TCHRA. Mission Consol., 372 S.W.3d at 634

9
TCHRA, Chavez must provide evidence showing that he (1) was a member of the

protected class (male); (2) was qualified for the position; (3) suffered a final, adverse

employment action; and (4) was either (a) replaced by a female or (b) otherwise

treated less favorably than others similarly situated but outside the protected class.

Flores, 612 S.W.3d at 305. Under the McDonnell Douglas framework,7 as applied to the

TCHRA, Chavez is entitled to a presumption of discrimination if he meets the

“minimal” initial burden of establishing a prima facie case of discrimination. Mission

Consol., 372 S.W.3d at 634.

The first three elements are undisputed. The controversy in this case arises

from the fourth element—that Chavez was treated less favorably than similarly

situated female employees. The Supreme Court of Texas has concluded that

“[e]mployees are similarly situated if their circumstances are comparable in all material

respects.” Ysleta ISD v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam).

7
Chavez contends that he produced direct evidence of sex discrimination, thus
dispensing with the need for this court to perform a McDonnell Douglas burden-shifting
analysis. Direct evidence includes “a statement or written document showing
discriminatory motive on its face.” Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).
Chavez has not provided any statement, written document, or similar piece of
evidence that shows such clear intent of sex discrimination. Although he argues that
Gerard’s treatment as compared to his treatment is direct evidence of sex
discrimination, that evidence is circumstantial—not direct—as it would require us to
make inferences. Donaldson, 495 S.W.3d at 433. Because he did not proffer direct
evidence to support a prima facie case of sex discrimination, we must apply the
circumstantial-evidence burden-shifting analysis from McDonnell Douglas.

10
Chavez identified Gerard8—a female employee who he alleged was situated

similarly to him. Gerard was a female TCCD employee who “worked in the same

position, for the same supervisors, and engaged in the same conduct at the same

time.” Yet despite both having violated the same policy on the same day, Chavez’s

employment was terminated on July 10, 2023, while Gerard’s employment was not

terminated until December 11, 2023.

TCCD contends that—although Gerard was a similarly situated female

employee—she was not treated more favorably because her employment was also

terminated. Consequently, TCCD asserts that Chavez failed to identify a comparator

who was treated more favorably in support of his prima facie case. We disagree.

Although Gerard’s employment was ultimately terminated, five months elapsed

between TCCD’s termination of Chavez’s employment and its termination of

Gerard’s employment. In other words, despite having violated the same policy on the

same day, Gerard retained her employment for several months while Chavez lost his

employment. The timing of Chavez’s termination compared to Gerard’s is evidence

that Chavez—the male employee—was treated less favorably than an identically

situated female employee.

8
Chavez also identified two other females—a TCCD student and another
TCCD employee—who he claimed were similarly situated. However, we do not
consider either as similarly situated employees because the first was not a TCCD
employee, and thus not subject to the TCCD policy at issue, and the second did not
make a recording in violation of the policy.

11
Therefore, because Chavez has produced some evidence that he was treated

less favorably than a similarly situated female employee and because TCCD does not

challenge any of the other elements, we conclude that Chavez has met his minimal

initial burden to create a presumption of discrimination by establishing a prima facie

case of sex discrimination. Flores, 612 S.W.3d at 305; Mission Consol., 372 S.W.3d

at 634.

B. LEGITIMATE, NONDISCRIMINATORY REASON

With Chavez’s establishment of a prima facie case, the burden then shifted to

TCCD to rebut that presumption by providing a legitimate, nondiscriminatory reason

for terminating Chavez’s employment. See Flores, 612 S.W.3d at 305; see also St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 2748 (1993) (stating that the

defendant has the burden of production to introduce evidence that, taken as true,

would permit the conclusion that there was a nondiscriminatory reason for the

adverse action).

TCCD provided one reason: Chavez made “an audio recording of his co-

worker, Dayna Gerard, without her consent in violation of DH (Local) – Employee

Standards of Conduct.”

Accordingly, we conclude that TCCD has carried its burden of production to

rebut the presumption of discrimination established by the prima facie case by setting

forth a legitimate, nondiscriminatory reason for terminating Chavez’s employment.

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C. EVIDENCE OF PRETEXT

Because TCCD produced a legitimate, nondiscriminatory reason for

terminating Chavez’s employment, the burden shifted back to Chavez to point to

evidence demonstrating that TCCD’s stated reason is a mere pretext. See Flores,

612 S.W.3d at 305.

Chavez bore the burden of raising a fact question on the issue of whether

TCCD’s stated reason for terminating his employment was a mere pretext for

discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct.

2097, 2106 (2000); see Miranda, 133 S.W.3d at 227–28. To raise a fact issue as to

whether the employer’s stated reason is a pretext—false or not credible—the plaintiff

may present evidence that the reason is not the true reason or is “unworthy of

credence.” City of Richland Hills v. Childress, No. 02-20-00334-CV, 2021 WL 4205013,

at *6 (Tex. App.—Fort Worth Sept. 16, 2021, pet. denied) (mem. op.) (quoting Reeves,

530 U.S. at 143, 120 S. Ct. at 2106). “An employee may show that the employer’s

reason is a mere pretext ‘by revealing weaknesses, implausibilities, inconsistencies, or

contradictions’ in the evidence.” Id. (quoting Tex. Dep’t of Transp. v. Flores, 576 S.W.3d

782, 794 (Tex. App.—El Paso 2019, pet. denied)). “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 the employer acted with the intent to discriminate

13
or retaliate. Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied).

As evidence of TCCD’s stated reason being a mere pretext, Chavez points to

the fact that he and Gerard—although having violated the same policy—were treated

differently in terms of the length of their employment. The timeline of when TCCD

became aware of Gerard’s violation and the delay in the termination of her

employment gives rise to a genuine issue of material fact.

We will first discuss the undisputed facts. Chavez and Gerard each recorded

their conversation without the other’s knowledge or consent. TCCD has a policy that

prohibits its employees from recording conversations of other coworkers without

their consent.9 Chavez’s employment was terminated in July 2023, and Gerard’s

employment was terminated in December 2023.

We next discuss disputed facts. Chavez asserts that TCCD was aware of

Gerard’s violation when it terminated his employment. In support of this position, he

points to Gerard’s interview with the Title IX investigator. In that interview on

9
Chavez takes issue with the validity of TCCD’s “no recording” policy. He
notes that “[t]he policy provided by TCCD in support of its [m]otion is incomplete,
unsigned by Chavez, and purports to have been issued on May 17, 2024, and adopted
on June 27, 2024, long after Chavez’s termination.” He further asserts that it is
unclear if another version of this policy was in place at the time of Chavez’s
termination, if other sections of the standards of conduct indicate whether the codes
of conduct apply to conduct taking place during an employee’s personal time or off
premises, or if Chavez ever acknowledged receipt of such a policy.

14
April 28, 2023, she told the Title IX investigator—who was working for TCCD’s Title

IX Office—that she had recorded a conversation between her and Chavez.

TCCD, however, denies that it was aware of Gerard’s recording because her

statement to the Title IX investigator was inadvertently omitted from the initial

investigative summary. TCCD maintained in its motion to dismiss that it did not

learn of Gerard’s violation until September 29, 2023, and that upon discovering the

violation, it terminated her employment under the same policy that it used to

terminate Chavez’s employment.

Chavez argues that TCCD cannot deny its knowledge that Gerard had

recorded him without his consent when it had that information during its initial

investigation—the same investigation that resulted in the termination of his

employment for making the same recording. Because Chavez’s employment was

terminated following TCCD’s investigation, but Gerard’s employment was not

terminated until December 11, 2023, Chavez contends that TCCD inconsistently

enforced the policy because it did not terminate Gerard’s employment when it was

aware that she had violated the same policy. He maintains that although Gerard’s

employment was ultimately terminated, it was (1) only after he had initiated his EEOC

complaint, (2) many months after she had committed the policy violation, and

(3) merely an attempt by TCCD to make the termination of his employment appear

less discriminatory. Chavez argues that TCCD’s selective enforcement of its policy

“is not an honest explanation” for the termination of his employment and that there

15
are apparent inconsistencies that create credibility concerns. Thus, he contends that

he established TCCD’s stated reason for the termination of his employment was false

or unworthy of credence.

In response, TCCD claims that “timing alone is insufficient to create a fact

issue on pretext, especially where the record shows TCCD HR was unaware of

[Gerard’s] violation when it terminated [Chavez].” We are unpersuaded by this

argument. First, TCCD has cited no authority to support its contention that “timing

alone is insufficient to create a fact issue on pretext.” Cf. Evans v. City of Houston,

246 F.3d 344, 356 (5th Cir.2001) (“[T]he combination of suspicious timing with other

significant evidence of pretext[ ] can be sufficient to survive summary judgment.”).

Second, exactly when TCCD’s Human Resources became aware of Gerard’s violation

is in dispute. Chavez alleges that TCCD was aware of Gerard’s violation on April 28,

2023, and TCCD claims that it did not discover her violation until September 29,

2023. The question of when TCCD became aware of Gerard’s violation is the crux of

Chavez’s claim of disparate treatment, and it gives rise to a fact issue.

We conclude that the fact that Gerard was permitted to remain in her position

even after the stated terminable offense—while Chavez’s employment was promptly

terminated—raises some “weaknesses, implausibilities, inconsistencies, or

contradictions” in the evidence and, thus, is some evidence of pretext. See Flores,

576 S.W.3d at 794. We hold that this evidence is sufficient to raise a genuine issue of

material fact as to whether TCCD’s stated reason for terminating Chavez’s

16
employment was not true but instead was a mere pretext for discrimination or

retaliation.10

TCCD’s plea to the jurisdiction challenging the existence of jurisdictional facts

did not put Chavez to the ultimate burden of proving his claims at this stage in the

case; rather, he only needed to raise a fact issue on the existence of a TCHRA

violation. See Alamo Heights ISD v. Clark, 544 S.W.3d 755, 785 (Tex. 2018). Taking as

true all evidence favorable to Chavez and indulging every reasonable inference and

resolving any doubts in his favor, as we must, we hold that the trial court did not err

by denying TCCD’s motion to dismiss. See Miranda, 133 S.W.3d at 227–28. We

overrule TCCD’s sole issue.

V. CONCLUSION

Having overruled TCCD’s sole issue, we affirm the trial court’s order denying

the motion to dismiss.

/s/ Brian Walker

Brian Walker
Justice

Delivered: October 9, 2025

10
Based on our disposition, we need not consider TCCD’s argument that it
provided evidence of otherwise consistent enforcement of its unauthorized-recording
policy in other departments. See Tex. R .App. P. 47.1.

17