City of San Antonio v. Patricia Diaz

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00275-CV

CITY OF SAN ANTONIO, APPELLANT

V.

PATRICIA DIAZ, APPELLEE

On Appeal from the 150th Judicial District Court
Bexar County, Texas
Trial Court No. 2022CI01368, Honorable Lisa K. Jarrett, Presiding

May 15, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, the City of San Antonio, brings this interlocutory appeal challenging the

trial court’s denial of its jurisdictional challenge to an employment discrimination lawsuit

brought by Appellee, Patricia Diaz.1 We agree with the City, reverse the order of the trial

court, and render judgment granting the City’s plea to the jurisdiction.

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
Background

Diaz began employment with the City’s public works department-solid waste

division in 1995. On September 1, 2020, two months before her 25-year work

anniversary, Diaz received a letter from David Newman, the City’s director of solid waste

management. The letter stated that Diaz’s “services are no longer needed as an Assistant

Solid Waste Manager for the City of San Antonio effective immediately. We wish you the

best in your future endeavors.”

This adverse employment action by the City was predicated on events occurring a

month earlier, on July 31, while Diaz was off work and at her mother’s house. Although

the parties present differing accounts of what happened, the undisputed facts are as

follows: Eliuth Carreno, a trash collector and subordinate of Diaz’s, left his work post and

drove to Diaz’s mother’s house to assist Diaz in working on a furniture project. Carreno,

who remained on the clock, was gone from work for ninety minutes to two hours while he

moved material and painted a drawer. Diaz accepted Carreno’s help without pay. Upon

his return to work, Carreno encountered an angry Tarik Esquerra, the assistant solid

waste manager on duty. Carreno told Esquerra where he had been; an investigation

ensued.2

As an employee with supervisory responsibility, Diaz was subject to the City’s

administrative directives, including Directive 1.75, which addresses fraud, waste, and

abuse. The directive defines abuse as “the exploitation of one’s position with the City for

2 The City issued a report of its investigation in late January 2021, finding that “The facts of the

investigation support the original allegation; the complaint is founded.” By this time, Diaz had already been
terminated from employment for more than four months.

2
personal advantage,” and defines fraud as “utilization of [one’s] position for personal

reasons or to secure an otherwise unavailable opportunity.” Breaches of this policy may

lead to disciplinary action, including termination.

On August 27, 2020, Diaz submitted a written statement claiming that Carreno

volunteered to assist her, and that she informed him that while she appreciated the offer,

he was not obliged to assist.”3 Diaz contends she was unaware Carreno was still on the

clock during his visit. Carreno submitted two accounts of what occurred, only one of

which was translated from Spanish.4 In that English language translation, Carreno

asserts that Diaz requested his assistance because she knew of his repair skills and

recent home purchase. He said he “did not feel threatened by [Diaz] to help her, but she

is my boss, so I needed to help her.”

Following her termination, Diaz was succeeded by a man in his late 30s. After

Diaz filed suit, the City filed a combined plea to the jurisdiction and traditional motion for

summary judgment. After an opportunity for several rounds of briefing by the parties, the

trial court denied the City’s motion without explaining its reasons. This appeal followed.5

3 The parties do not dispute that before Carreno’s arrival at her mother’s house, Diaz told Carreno’s

supervisor that Carreno would be involved in a “special project” that day.

4 Diaz does not show that the City changed the content of Carreno’s statements or had any role in

pressuring Carreno to do so.
5 This appeal was originally filed in the Fourth Court of Appeals and was transferred to this Court

by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In
the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.

3
Standard

In Texas, governmental immunity shields political subdivisions, including the City,

from lawsuits unless there is express consent to be sued. Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Waiver of governmental immunity generally

requires action by our State’s Legislature. Id.

The Texas Commission on Human Rights Act (TCHRA), found in chapter 21 of the

Texas Labor Code, expressly waives immunity in certain instances, “but only when the

plaintiff states a claim for conduct that actually violates the statute.” Alamo Heights Indep.

Sch. Dist. v. Clark, 544 S.W.3d 755, 770 & n.16 (Tex. 2018) (citing Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012)). When a governmental entity

claims it is entitled to immunity, as the City does here, its challenge may be brought via a

plea to the jurisdiction or another procedural vehicle, such as a motion for summary

judgment. Alamo Heights, 544 S.W.3d at 770. In this case, the City’s plea challenges

the existence of facts necessary to the trial court’s jurisdiction, so we move beyond the

allegations in Diaz’s pleadings and review the evidence in the same way that we would

assess a traditional motion for summary judgment. City of San Antonio v. Riojas, 640

S.W.3d 534, 536 (Tex. 2022); Alamo Heights, 544 S.W.3d at 771.6

6 In other words, “[T]o avoid dismissal plaintiffs must raise at least a genuine issue of material fact

to overcome the challenge to the trial court’s subject matter jurisdiction. In determining whether a material
fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor. In doing so, however, we cannot disregard
evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the
plaintiff if reasonable jurors could not.” Alamo Heights, 544 S.W.3d at 771 (cleaned up).

4
Analysis

Sex and Age Discrimination (Issues 2 and 3)

The City asserts five issues on appeal. We begin with the second and third issues,

wherein the City challenges the trial court’s denial of its motion for summary judgment on

Diaz’s claims of sex discrimination (second issue) and age discrimination (third issue).

The Texas Labor Code prohibits employers, including municipalities from terminating the

employment of employees because of their sex or age. TEX. LAB. CODE ANN.

§§ 21.051(1); 21.002(8)(D) (defining “[e]mployer” as including a “municipality”).7 When a

plaintiff’s employment discrimination lawsuit has not been fully tried on the merits, we

evaluate her employment discrimination claims using the three-step burden-shifting

analysis developed by the United States Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1972), and refined in Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 142 (2000); see Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735,

739 (Tex. 2003).

The first two McDonnell Douglas steps require cursory discussion because they

are not at issue in this appeal. Under the first step, “the plaintiff is entitled to a presumption

of discrimination if she meets the ‘minimal’ initial burden of establishing a prima facie case

of discrimination.” Garcia, 372 S.W.3d at 634. If the plaintiff meets its initial burden, the

analysis moves to the second step, requiring the employer to present evidence of a

7 Texas law similarly prohibits employers from discriminating against an individual in retaliation for

certain acts, including opposing a discriminatory practice and making a charge of discrimination. TEX. LAB.
CODE ANN. § 21.055.

5
legitimate, nondiscriminatory reason for its employment decision. Romo v. Tex. Dept.

Transp., 48 S.W.3d 265, 270 (Tex. App.—San Antonio 2001, no pet.).8

If the defendant produces its evidence, a presumption of discrimination “drops out

of the picture,” and the analysis moves to the third step, where the plaintiff must “rebut”

the employer’s evidence by showing that the proffered reason was not credible and

merely a pretext for discrimination. TEX. LAB. CODE ANN. § 21.125(a); AutoZone, Inc. v.

Reyes, 272 S.W.3d 588, 592 (Tex. 2008). Pertinent to the current case is the City’s stated

reason for Diaz’s termination, specifically, her breach of Administrative Directive 1.75

prohibiting exploitation of her supervisory role to enlist a subordinate’s help with personal

tasks. In her brief and during oral argument, Diaz clarified she is not arguing that the City

conducted a flawed investigation. Indeed, for more than two decades, our Supreme Court

has emphasized that employment at will “does not require an employer to be reasonable,

or even careful, in making its termination decisions.” Tex. Farm Bureau Mut. Ins. Cos. v.

8 The defendant employer may satisfy its burden by “introducing evidence, which, taken as true,

would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). We do not perform an assessment of
the reason’s believability at this stage, as the burden of persuasion remains with the plaintiff at all times.
Id., see also Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995); Cox & Smith Inc. v.
Cook, 974 S.W.2d 217, 222 (Tex. App.—San Antonio 1998, pet. denied). But see Grice v. Alamo Cmty.
Coll. Dist., No. 04-12-00524-CV, 2013 Tex. App. LEXIS 4999, at *11–12 (Tex. App.—San Antonio Apr. 24,
2013, no pet.) (mem. op.) (holding that within the context of a summary judgment motion, the employer
defendant “must conclusively establish its legitimate, non-discriminatory reason for the employment action.”
(emphasis added) (citing M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000)
(per curiam)).
Our examination of the per curiam decision in Willrich, upon which Grice relies, reveals no indication
that our state Supreme Court intended to announce a rule of law that deviates from federal courts’ handling
of the employer’s burden in employment discrimination summary judgments. See Mitschke v. Borromeo,
645 S.W.3d 251, 263 (Tex. 2022) (“Adherence to precedent remains the touchstone of a neutral legal
system that provides stability and reliability. Departures from precedent must be carefully considered and
should be rare.”). Moreover, to the extent that one panel of the Fourth Court intended to announce a
substantive change in summary judgment practice, we note that principles of horizontal stare decisis require
that we employ the court’s earliest non-superseded decision on this question. Id. at 258; see Shadow v.
Cont’l Airlines, Inc., No. 04-02-00930-CV, 2003 Tex. App. LEXIS 8208, at *7 (Tex. App.—San Antonio Sep.
24, 2003, no pet.) (mem. op.) (affirming summary judgment in favor of employer post-Willrich, and holding
that burden of proof remains with plaintiff).

6
Sears, 84 S.W.3d 604, 609 (Tex. 2002). “Management does not have to make proper

decisions, only non-discriminatory ones.” Bryant v. Compass Grp. USA, Inc., 413 F.3d

471, 478 (5th Cir. 2005). Accordingly, when an employer makes a disciplinary decision

based on the statements of witnesses, we do not concern ourselves whether such

statements are truthful, but whether the employer reasonably believed them and acted

on the information in good faith. See Rodriguez v. City of Poteet, No. 04-13-00274-CV,

2014 Tex. App. LEXIS 2136, at *13–14 (Tex. App.—San Antonio Feb. 26, 2014, no pet.)

(mem. op.) (citations omitted) (rejecting argument that credibility of witnesses interviewed

by employer precluded summary judgment).9

Diaz argues that Newman’s decision to terminate her employment for violating

Directive 1.75 is an instance of disparate discipline. In other words, Diaz argues that

Newman consistently treated her more harshly and less favorably than other differently-

situated employees. To prove discrimination under this theory, “the disciplined and

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

Inc., 272 S.W.3d at 594 (cleaned up). Although precise equivalence in culpability between

employees is not the ultimate question, our Supreme Court, following our federal

counterparts, have held that a disparate discipline plaintiff must show “that the misconduct

for which she was discharged was nearly identical to that engaged in by a male employee

whom [the company] retained.” Smith v. Wal–Mart Stores, Inc., 891 F.2d 1177, 1180 (5th

Cir.1990) (bracket in original) (quoted by Ysleta Independent School Dist. v. Monarrez,

9 To show that the City lacked good faith, Diaz was required to “present evidence that those in

charge of making the termination decision did not believe [Carreno’s] allegations, but instead used the
allegations as a bad faith pretext to discriminate against” her. City of Poteet, 2014 Tex. App. LEXIS 2136,
at *14–15 (cleaned up). The record contains no evidence that the City believed Carreno’s statements to
be false.

7
177 S.W.3d 915, 917–18 (Tex. 2005)). Employees who possess different work

responsibilities, including those with different “supervisors, capabilities, work rule

violations, or disciplinary records are not considered to be ‘nearly identical’” under this

test. AutoZone, Inc., 272 S.W.3d at 594 (cleaned up).

In support of her claim of disparate discipline, Diaz relies upon a comparison with

six employees who were disciplined10 for violations of various City policies. However,

zero of these individuals were accused of violating Directive 1.75, or of using their position

to obtain free labor from a subordinate employee. When viewed in a light most favorable

to Diaz, the evidence does not permit any reasonable factfinder to conclude that the

complained-of conduct or surrounding circumstances were of comparable seriousness

for purposes of establishing discrimination based on disparate discipline. See AutoZone,

Inc., 272 S.W.3d at 594; Monarrez, 177 S.W.3d at 918; Baker Hughes Oilfield Operations,

Inc. v. Williams, 360 S.W.3d 15, 27–29 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

Because Diaz failed to carry her burden of raising a genuine issue of material fact

regarding the falsity/pretext element, the trial court erred in refusing to grant the City’s

plea to the jurisdiction on Diaz’s claims for age and sex discrimination. We sustain the

City’s second and third issues.

10 One employee, who was suspended for sleeping in his vehicle during business hours, had a

different supervisor, as did an employee who was demoted for patronizing a bar on City time. One
supervisory-level employee was demoted for providing false information related to his employment
application. Another employee was demoted for poor relations with co-workers. The violations of the other
two employees are not supported in the record, though both were terminated from employment.

8
Illegal Retaliation (Issue Four)

In its fourth issue, the City argues that the trial court erred in refusing to grant the

plea to the jurisdiction on Diaz’s claims for employment retaliation. Chapter 21 of the

Texas Labor Code prohibits employers from taking adverse action against an employee

for engaging in certain protected activities. TEX. LAB. CODE ANN. § 21.055. “An employee

engages in a protected activity by, among other things, filing an internal complaint,

opposing a discriminatory practice, or making a charge of discrimination with the EEOC.”

Alamo Heights, 544 S.W.3d at 786. Relevant here, section 21.055 lists four protected

activities by the employee: (1) opposing a discriminatory practice; (2) making or filing a

charge of discrimination; (3) filing a complaint; or (4) testifying, assisting, or participating

in any manner in an investigation, proceeding, or hearing. TEX. LAB. CODE ANN. § 21.055.

Diaz’s brief contends she engaged in protected activity by “her record of

consistently and persistently objecting to the cussing, cursing, use of gender slurs and

racial slurs in her workplace, as well as gesticulations of a sexual nature.” To oppose

discriminatory practices, Diaz must minimally alert the employer of the employee’s

reasonable belief that unlawful discrimination is at issue. Tex. Dep’t of Transp. v. Lara,

625 S.W.3d 46, 59 (Tex. 2021); Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 586

(Tex. 2017) (“protected opposition must at least alert an employer to the employee’s

reasonable belief that unlawful discrimination is at issue.” (cleaned up)).

Our review of the record reveals that Diaz’s evidence of opposing discriminatory

practices at the City is threadbare. Diaz’s evidence certainly describes experiencing an

9
unwholesome, potentially hostile, working experience with co-workers.11 There is some

evidence that she occasionally spoke out about working conditions, including telling

workers that obscene language was not professional, complaining another employee had

been preselected for a promotion, opposing being stalked by a supervisor, and

complaining about pornographic magazines in her desk and obscene graffiti in the men’s

restroom. The record, however, never indicates when these complaints were made

during Diaz’s tenure with the City or that they alleged illegal conduct. See Brown v. UPS,

406 F. App’x 837, 840 (5th Cir. 2010) (per curiam) (noting “Title VII does not protect

opposition to all forms of unscrupulous conduct”; rather it “protects only opposition to

discrimination based on ‘race, color, religion, sex, or national origin’” and holding

complaints of unfair work distribution, unpaid overtime, and selective enforcement of a

lunch policy, without more, were not prohibited by Title VII and therefore opposition to

those practices was not protected by Title VII); Graves v. Komet, 982 S.W.2d 551, 556

(Tex. App.—San Antonio 1998, no pet.) (“In order to state a retaliatory discharge claim,

the opposition has to be to an unlawful employment practice.”).

Because Diaz did not present evidence of her opposition to an illegal practice, she

was unable to establish a prima facie case of retaliatory discrimination. We conclude the

trial court erred in denying the City’s motion as it pertained to Diaz’s claim of retaliatory

discrimination. We sustain the City’s fourth issue.

11 Diaz did not timely submit a charge of discrimination complaining of a hostile work environment.

10
Intentional Infliction of Emotional Distress and Defamation (Issue Five)

Via a fifth issue, the City argues that because it retains immunity, the court lacks

subject matter jurisdiction over Diaz’s causes of action for intentional infliction of

emotional distress and defamation.12 On appeal, Diaz candidly concedes that the City is

immune from suit for these intentional torts. We agree.

As indicated above, the City, as a political subdivision of the State, is protected

from suit due to governmental immunity except when it has been waived pursuant to the

constitution or state law. City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014).

The Texas Tort Claims Act, which provides a limited waiver of immunity, expressly

excludes from its reach intentional torts, including the ones asserted by Diaz. See TEX.

CIV. PRAC. & REM. CODE ANN. § 101.057(b) (governmental immunity not waived for a claim

arising out of any intentional tort); Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767,

777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (compiling cases, and holding

that defamation and intentional infliction of emotional distress are intentional torts).

Nevertheless, Diaz argues that she should receive a “name clearing hearing” given

her discharge under the cloud of allegations about “fraud” and “theft.” Although her

petition complains the City did not give her a hearing, Diaz did not include a court-ordered

name-clearing hearing among the relief she sought.13 As the trial court could not have

12 Although this issue was not raised in the trial court, it may be asserted for the first time on appeal

because it implicates the Court’s subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 91,
94 (Tex. 2012).

13 Diaz pleaded for the following relief: rehiring, reinstatement to the same position and pay grade,
reinstatement of benefits, damages for lost wages, damages for injury to her name and reputation, “[n]on-
compensatory damages, including mental anguish, and “[s]uch other relief as the Court may deem just and
equitable.”

11
ordered relief in the absence of pleadings, we decline to order such relief here. See TEX.

R. CIV. P. 301.14 We sustain the City’s fifth issue.

Conclusion

We reverse and render an order dismissing Diaz’s claims against the City of San

Antonio for want of subject matter jurisdiction. Diaz’s pending Motion to Supplement

Clerk’s Record, which we have carried with the case, is denied as moot.

Lawrence M. Doss
Justice

14 See also Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) (“a party may not be

granted relief in the absence of pleadings to support that relief.”); Rahmani v. Sadeghian, No. 05-22-00759-
CV, 2024 Tex. App. LEXIS 1763, at *9 (Tex. App.—Dallas Mar. 11, 2024, no pet.) (mem. op.) (“A trial court
has no authority to grant relief not requested by the parties.”).

12