The University of Texas at El Paso v. Sergio Aranda

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-25-00083-CV
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The University of Texas at El Paso, Appellant

v.

Sergio Aranda, Appellee

On Appeal from the County Court at Law No 3
El Paso County, Texas
Trial Court No. 2023DCV2363

O PI NI O N

The Texas Commission on Human Rights Act (TCHRA) provides a limited waiver of

governmental immunity, creating an avenue for claimants to pursue discrimination claims against

employers that would otherwise be immune. This is an accelerated interlocutory appeal from the

denial of a combined plea to the jurisdiction and summary judgment motion filed by Appellant

University of Texas at El Paso (UTEP). Appellee Sergio Aranda suffers from amaxophobia, a fear

of driving, and claims UTEP disqualified him from the application process during a phone call
because it regarded him as disabled. On appeal, UTEP challenges the evidence supporting

Aranda’s discrimination claim as insufficient to establish a waiver of sovereign immunity. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Aranda applied for a Police Communications Operator (PCO) position with the UTEP

Police Department (UTPEP PD) on January 1, 2022. As an institution of the University of Texas

System (the UT System), UTEP follows the policies of the UT System Office of Department of

Police (ODOP). The required documents for the PCO position appear in two places—ODOP policy

401B and form DP52TC. Policy 401B is ODOP’s policy and procedure manual titled, “Application

Selection Process for Employment as a Telecommunicator.” Policy 401B outlines the selection

process, the qualification standards and disqualifiers, and the required documentation for the

position. As for ODOP form DP52TC, it is an index of the documentation applicants are required

to submit. As part of the application process, UTEP’s HR office conducts an initial assessment of

applicants, and those who meet the initial assessment go on to the next stage for a background

investigation conducted by a UTEP PD investigator. The PCO job was posted by both the UT

System and UTEP, and each posting included the position’s required qualifications, duties, and

essential functions.

Mark Shouse was the background investigator for UTEP PD, and his duties included

performing background investigations and collecting employment documents from applicants.

About a month after Aranda submitted his application, Shouse emailed him to request required

documents. Aranda responded the next day, explaining that he could not open one of the forms

due to Adobe Acrobat issues and requested assistance. Aranda added: “Also, since I do not drive,

2
do I still need to request a driving record with Municipal Court? please advise, thank you kindly.”

Shouse then called Aranda, and the two spoke for about four minutes.

The parties offer conflicting accounts of the phone call. According to Aranda, Shouse asked

why he did not have a driver’s license. Aranda says he explained that he suffered from a mental

issue that caused him to fear driving, and that after hearing this, Shouse told him that driving was

required and he could not continue with the application process. UTEP maintains that Aranda did

not disclose a disability, and that Shouse did not disqualify Aranda from the application process.

It is undisputed, however, that following the call, Shouse did not continue with the application

process and was not hired by UTEP. Shouse later notified two of his superiors that Aranda had

complained of discrimination; UTEP did not investigate. About six months after the call took

place, a UT System ODOP inspector emailed officials at different UT System universities. In it,

the ODOP inspector reported that a campus had disqualified an applicant for lacking a driver’s

license, acknowledged that the UT System job description did not include that requirement, noted

that campuses had discretion to impose such a requirement in certain conditions, and updated the

index for the PCO position to clarify that a driver’s license was not required.

Aranda filed a discrimination charge with the Equal Employment Opportunity Commission

in May, alleging disability discrimination based on his amaxophobia. In its response to the EEOC,

UTEP denied discrimination. It asserted that Aranda merely disclosed he “did not like to drive on

the highway,” that it “requires PCO applicants to obtain and provide a copy of their driving history

record from the El Paso Municipal Court,” and alluded that driving might be required. After

receiving a right-to-sue letter, Aranda sued UTEP for disability discrimination and failure to

accommodate. UTEP responded with a plea to the jurisdiction, arguing that Aranda could not

assert his claims because fear of driving was not a qualifying disability. Aranda then amended his

3
petition to assert only a “regarded as” discrimination claim under the TCHRA. The parties

proceeded with discovery, including witness depositions.

UTEP later filed its “Plea to the Jurisdiction, Traditional Motion for Summary Judgment,

and No-Evidence Motion for Summary Judgment” (combined plea and motion), arguing that

Aranda failed to show a genuine issue of material fact on his prima facie claim or to rebut UTEP’s

legitimate, nondiscriminatory reasons. The trial court denied the combined plea and motion. This

interlocutory appeal followed. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (allowing for an

interlocutory appeal of a ruling on a plea to the jurisdiction by a governmental unit).

II. APPLICABLE LAW AND STANDARD OF REVIEW

A. Plea to the jurisdiction and sovereign immunity

A plea to the jurisdiction challenges a trial court’s subject matter jurisdiction. Tex. Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004). It is a dilatory plea that can defeat

a cause of action without regard to the merits of the asserted claims. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject-mater jurisdiction cannot be conferred or taken

away by consent or waiver unless the Legislature has expressly waived immunity. Carroll v.

Carroll, 304 S.W.3d 366, 367 (Tex. 2010).

A plea to the jurisdiction based on sovereign immunity properly challenges a trial court’s

subject matter jurisdiction. Miranda, 133 S.W.3d at 225−26. Through the enactment of the

TCHRA, the Texas Legislature waives immunity for certain governmental employers. Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). As a state university, UTEP

is a governmental employer protected by sovereign immunity. See Tex. Educ. Code. Ann.

§§65.02(a)(4); 69.02; Tex. Gov’t Code Ann. § 311.034; San Antonio Water Sys. v. Nicholas, 461

S.W.3d 131, 135 (Tex .2015). In a suit against a governmental employer, like UTEP, the prima

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facie case implicates both the merits of the claim and the court’s jurisdiction because of the

doctrine of sovereign immunity. Mission Consol., 372 S.W.3d at 636. Sovereign immunity

deprives a trial court of jurisdiction over suits in which the governmental employer has been sued,

absent consent. Id. at 636.

The Texas Legislature, by its enactment of the TCHRA, “clearly and unambiguously

waives immunity” for governmental employers like UTEP, but the waiver applies “only for those

suits where the plaintiff actually alleges a violation of the TCHRA by pleading facts that state a

claim thereunder.” Mission Consol., 372 S.W.3d at 636, 660. Absent pleadings establishing a

prima facie case, the governmental employer’s immunity from suit has not been waived. Id. at 636.

“A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or

both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We must accept

the allegations in the pleadings as true and construe them liberally in the plaintiff’s favor. Miranda,

133 S.W.3d at 226. The plaintiff has the burden of establishing facts that affirmatively show the

trial court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). If the plea challenges the existence of jurisdictional facts, such as here, we must move

beyond the pleadings and consider the evidence. Miranda, 133 S.W.3d. at 227. This standard

mirrors that of summary judgment, which requires that a plaintiff raise a genuine issue of material

fact to avoid dismissal when his factual allegations are challenged with supporting evidence.

Alamo Heights, 544 S.W.3d at 771. “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.” Id. We review a trial court’s jurisdictional ruling de

novo. Id. at 226.

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B. McDonnel Douglas framework

Under the TCHRA, an employer commits an unlawful employment practice if because of

race, color, disability, religion, sex, national origin, or age, the employer:

(1) fails or refuses to hire an individual . . . or discriminates in any other manner
against an individual in connection with compensation or the terms, conditions,
or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a
manner that would deprive an individual of any employment opportunity[.]

Tex. Lab. Code. Ann. § 21.051. In interpreting the TCHRA’s disability discrimination provisions,

Texas courts look to the Americans with Disabilities Act (ADA). Austin State Hosp. v. Kitchen,

903 S.W.2d 83, 88 (Tex. App.—Austin 1995, no writ). The ADA provides protection to qualified

individuals “in regard to job application procedures, hiring,” and “other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a).

A plaintiff may rely on either direct or circumstantial evidence to establish a prima facie

case of unlawful discrimination; however, “direct evidence of discriminatory intent is typically

‘hard to come by[.]’” Tex. Tech Univ. Health Scis. Ctr. El Paso v. Flores, 612 S.W.3d 299, 305

(Tex. 2020) (quoting Mission Consol., 372 S.W.3d at 634). If a plaintiff relies on circumstantial

evidence, as is the case here, to establish his prima facie discrimination claim, we follow the

burden-shifting framework established by the United States Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Id. Under the McDonnel Douglas framework, (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, non-discriminatory reason

for the adverse employment action; and (3) the plaintiff must then overcome the rebuttal evidence

by establishing that the defendant’s stated reason is a pretext. Id. We consider the trial court’s

jurisdiction by first inquiring whether Aranda met his burden of establishing a prima facie case.

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San Antonio, 461 S.W.3d at 135–36. Then, if he has, the burden shifts to UTEP to articulate a

legitimate, non-discriminatory reason for its differential treatment. McDonnel, 411 U.S. at 802. If

UTEP articulates a legitimate, non-discriminatory business reason for the differential treatment,

the burden shifts back to Aranda to show that reason is a pretext for discrimination. Id.

III. ANALYSIS

In its sole issue on appeal, UTEP contends the trial court erred in denying its combined

plea to the jurisdiction and summary judgment motion as to Aranda’s “regarded as” claim. UTEP

advances three arguments in support: (1) Aranda failed to establish a prima facie case of disability

discrimination and did not suffer an ultimate employment decision; (2) UTEP produced evidence

of a legitimate, nondiscriminatory business reason; and (3) Aranda failed to produce evidence that

UTEP’s stated reason was a pretext for discrimination. 1 We address each argument in turn.

A. Aranda met his burden to establish a prima facie case of discrimination.

A plaintiff must first establish a prima facie case of disability discrimination to invoke

waiver of a governmental employer’s sovereign immunity. El Paso Cnty. v. Vasquez, 508 S.W.3d

626, 638 (Tex. App.—El Paso 2016, pet. denied) (citing San Antonio, 461 S.W.3d at 136). A

“disability” is defined as (1) “a mental or physical impairment that substantially limits at least one

major life activity”; (2) “a record of such an impairment”; or (3) “being regarded as having such

an impairment.” Tex. Lab. Code. Ann. § 21.002(6). To bring a “regarded as” claim under the

TCHRA, a plaintiff must assert that he (1) was perceived as having an impairment; and (2) was

discriminated against based on that perceived impairment, regardless of whether he truly is

impaired. Texas Tech Univ. Health Scis. Ctr.−El Paso v. Niehay, 671 S.W.3d 929, 935−36

1
UTEP presents these points as four separate issues; we consolidate them into a single issue with three supporting
arguments.

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(Tex. 2023). A plaintiff does not have to “present evidence that the [perceived] impairment

‘substantially limits at least one major life activity.’” Dallas Cnty. Hosp. Sys. v. Kowalski, 704

S.W.3d 550, 554 (Tex. 2024). “For regarded-as claims, the Labor Code defines ‘[d]isability’ as ‘a

mental or physical impairment.’” Niehay, 671 S.W.3d at 936. We are tasked with determining

whether Aranda satisfied his burden to establish a genuine issue of material fact as to whether

UTEP perceived him as impaired—regardless of whether he truly was and regardless of whether

that impairment substantially limited a major life activity—and whether UTEP disqualified him

from the application process based on that perception. Kowalski, 704 S.W.3d at 544.

UTEP argues that Aranda cannot establish a prima facie case because he cannot show that

UTEP regarded him as impaired or that Shouse took any adverse employment action against him.

In support of its combined plea and motion, UTEP submitted Shouse’s affidavit, selected

deposition excerpts of Aranda, Shouse, and UTEP PD Chief of Police Clifton Walsh, Aranda’s

application materials, and Aranda’s EEOC charge.

Aranda counters that the evidence raises genuine issues of material fact to preclude

dismissal of his claim. To resist dismissal, Aranda submitted a wide range of documents, including

deposition transcripts from himself, Shouse, Walsh, and UTEP HR Director Arizve-Ochoa Retana;

UTEP and UT System training materials, policies, and job descriptions for the PCO position; job

postings and application-related documents for the PCO position; emails, calls logs, and

submission records; an email from an ODOP inspector; correspondence and filings connected to

Aranda’s EEOC charge; and UTEP’s EEOC position statement.

(1) UTEP perceived Aranda as impaired.

We first determine whether UTEP perceived Aranda as impaired. Aranda asserts that

UTEP discriminated against him because it perceived him as having a mental impairment—

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amaxophobia. UTEP counters that the record does not show this. UTEP relies heavily on the

testimony of Shouse, who stated that he could not have formed a perception that Aranda was

impaired based on their limited interaction over a short phone call. According to UTEP, Shouse

“never met Aranda in-person. He never observed Aranda refusing to drive out of fear or anxiety.

He never observed Aranda in an anxious or fearful state because of his alleged amaxophobia.”

However, the standard is not whether the employer actually witnessed the impairment or its

symptoms. Rather, the proper inquiry is whether UTEP believed Aranda was impaired. See

Kowalski, 704 S.W.3d at 544 (reversing plea to the jurisdiction on plaintiff’s regarded-as claim

because “[n]umerous internal communications were produced below, but none of them provide

any evidence that Parkland [the employer] believed—contrary to what both Kowalski herself and

her chiropractor said—that she was disabled”).

Shouse confirmed that before calling Aranda, he had Aranda’s application, resume, and

cover letter. Earlier that day, Aranda emailed Shouse reporting difficulty opening a form and

further stating that he did not drive. 2 That same afternoon, Shouse called Aranda. The call lasted

4 minutes and 23 seconds.

UTEP relies on the testimony of Shouse to show that it did not, and could not have,

perceived Aranda as impaired. Shouse testified that when he first learned via email that Aranda

did not drive and was having trouble opening a form, his intent in contacting Aranda was to assist

him with opening the form. According to Shouse, he introduced himself to Aranda, asked about

the form, and claimed Aranda “brought up the driver’s license. I believe. I don’t recall exactly.”

2
In its EEOC position statement, UTEP claimed that “Mr. Shouse sent Mr. Aranda an email on February 10, 2022,
with instructions for completion of the DP1 [the ‘Personal History Statement’ required form], and informed him of
additional documents which needed to be submitted by Mr. Aranda at his scheduled 9:00 a.m. appointment on February
25, 2022.” However, Shouse’s email only stated: “Please open and read the attachments carefully. If no longer
interested please notify me by e mail.”

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Shouse testified he asked Aranda, “You don’t have to answer this, but is there a reason you don’t

have a driver’s license?” When asked why he told Aranda that he did not have to answer, Shouse

responded, “It’s not a policy. It’s more of a courtesy.” Though Shouse characterized this as a

“courtesy,” UTEP’s “best practices” policy requires employees to ensure “a fair and equitable

selection process” that specifically instructs “[n]ot asking questions about . . . disability . . . or any

other potentially discriminatory topics.” According to Shouse, Aranda responded with “something

to the effect that it causes him anxiety,” and did not use the terms “disability,” “mental condition,”

or “phobia.” Shouse testified he could not recall what was said next.

Aranda offered a contradicting account and maintains that the following testimony from

his deposition raises a material fact issue as to whether UTEP perceived him as impaired.

According to Aranda, Shouse is the one who raised the topic of a driver’s license, and the

conversation went as follows:

So, like, you don’t have a driver’s license? And I’m, like, no, sir. I don’t. And he
asked, can I ask the reason why? And . . . I’m, like, well, you know what, sir, I have
a mental issue. I really feel uncomfortable driving. I never drove in a vehicle,
because I have a fear of driving every time I’m in front of the wheel. I experience
a lot of anxiety, mental anguish, shortness of breath. Basically, yeah. I told him that
because I just can’t drive. I couldn’t obtain my driver’s license. And he’s, like, well,
Mr. Aranda, I understand that. But you have to have a license to move forward with
the process.

UTEP’s main contention is that Shouse’s “undisputed testimony reveals that he did not

form a perception that Aranda was impaired.” We disagree. To begin, Shouse’s testimony is

disputed by Aranda. Although no magic words are required, Aranda testified that he told Shouse

he had a “mental issue,” a “fear of driving,” and further explained his condition to Shouse by

describing symptoms, including anxiety and shortness of breath. We find that the testimony of

Aranda and Shouse creates a fact issue as to whether Aranda sufficiently disclosed his mental

impairment to Shouse and whether UTEP believed Aranda was impaired.

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UTEP also maintains that even if more precise wording was used by Aranda, Shouse was

not the final decision maker, and “[t]he record evidence does not demonstrate that Officer Shouse

provided information to an actual hiring decisionmaker at UTEP from which they could form the

perception that Aranda was impaired.” We reject this argument, as the United States Supreme

Court has recognized agency principles in this context and held that employers can be liable for

the discriminatory acts of their agents. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762

(1998) (“[A] tangible employment action taken by the supervisor becomes for Title VII purposes

the act of the employer.”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 57 (1986) (recognizing

“Congress’ decision to define “employer” to include any “agent” of an employer”); Tex. Labor

Code Ann. § 21.002(8) (defining “employer” as including “an agent” of the employer). Moreover,

Aranda acknowledged at the hearing on the combined plea and motion that Shouse was “clearly”

an agent of UTEP.

We similarly reject UTEP’s argument that Aranda did not suffer an “ultimate employer

decision” because Shouse “lacked the authority to take such actions” and “Aranda never made it

to the applicant consideration process.” 3 The evidence shows that Aranda submitted an application

and was in the application process, and “[u]ltimate employment decisions that are actionable

3
The Fifth Circuit has abandoned the ultimate employment decision requirement for Title VII cases. See Hamilton v.
Dallas Cnty., 79 F.4th 494, 499–502 (5th Cir. 2023). However, as our sister court has stated, “Fifth Circuit precedent,
although persuasive authority, is not binding on this Court. In the absence of contrary authority from the Texas
Supreme Court or this Court sitting en banc, we continue to be bound by our prior precedent holding that the TCHRA’s
anti-discrimination provision only applies to ‘ultimate employment decisions.’” City of Pasadena v. Poulos, No. 01-
22-00676-CV, 2023 WL 7134974, at *10 n.1 (Tex. App.—Houston [1st Dist.] Oct. 31, 2023, no pet.) (mem. op); see
Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see also
Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (stating that under principles of horizontal stare decisis, panel
of appellate court must follow “materially indistinguishable decisions of earlier panels of the same court” unless prior
decision has been superseded by higher authority, such as decision by Texas Supreme Court or “an en banc decision
of the court of appeals itself”). We follow binding Texas Supreme Court precedent requiring an ultimate employment
decision.

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include decisions to hire.” Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 143

(Tex. App.—Fort Worth 2000, pet. denied). 4

We find that the evidence raises a fact issue as to whether UTEP believed Aranda was

impaired. We now turn to determine whether UTEP disqualified Aranda because it perceived him

as impaired.

(2) UTEP disqualified Aranda because it perceived him as impaired.

Aranda had to show that he was prohibited from proceeding with the application process

because UTEP perceived him as impaired. Niehay, 671 S.W.3d at 935−36. To establish this

element, Aranda must only prove that his perceived impairment was a motivating factor in the

differential treatment. Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).

Aranda argues that “Shouse’s conduct following Aranda’s mental impairment disclosure

strongly supports an inference that he perceived Aranda as disabled” and “only after Aranda

explained that he could not drive due to his mental impairment did Shouse abruptly declare that a

driver’s license was required and that Aranda could not proceed in the application process.”

Aranda maintains that when Shouse called him, he knew only that Aranda did not drive but did

not yet know why; at this point in the conversation, Shouse had not yet said that driving or a

driver’s license was required. Shouse confirmed that he first learned that Aranda did not drive via

email—before the call. Aranda testified that after he disclosed his “mental issue” to Shouse,

Shouse told him that although it may sound discriminatory, a driver’s license was required for the

position and that he would need to drive a vehicle owned by the university for training and

4
UTEP also argues that Aranda did not suffer an ultimate employment decision because he “decided to simply not
continue with his application.” This argument, however, is circular, as the very basis of Aranda’s claim is that UTEP
disqualified him and terminated the application process because it perceived him as disabled; Aranda maintains “[t]his
was not a choice, it was an adverse employment decision.” In any case, because the record contains evidence that
Aranda did not voluntarily end the application process, we find this to be an additional fact question that precludes
dismissal of Aranda’s claim.

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certification. In response, Aranda complained of discrimination: “[a]t that moment, I told Mr.

Shouse . . . that because having a driver’s license wasn’t required for that position, I was–I felt I

was being discriminated.” Aranda further explained:

after he said that I–I would need to get a driver’s license for me to go forward and
continue, I explained to him that I never saw that on the job description. And I
asked him, how is it relevant to this position if it doesn’t involve any driving? And
he mentions that because there was locations that I had to take state training or any
other certifications for the police, I would be required to drive, use their vehicle.

According to Aranda, Shouse responded that “the school or police department has the right to

make changes or requirement changes when they deem appropriate.” When asked whether Shouse

offered any other reasons as to why driving was required for the position, Aranda testified:

He also implied that because it’s a reliability issue, I will have to be able to drive a
car . . . I explained to him that it seems unfair for me not to be able to get a—a
chance to get the position because of my fear of driving. And he also said, well,
yeah. We understand that it may sound unfair or discriminatory. But – but those are
the rules that we have in place. And I—it doesn’t say that on the [job description].
And then he says, you know what, because we [] can amend policies as we want or
see fit. And I’m, like, well, can you provide me . . . the written rules and regulations
of . . . your job policy?

Aranda maintained that Shouse then told him he could not continue with the application process.

Aranda could not remember what exact language was used: “I don’t remember the—the word, but

he said I could not continue with the process. So it’s just like if I was disqualified.”

Shouse gave a contradicting account. He denied telling Aranda that a driver’s license was

required; but as for whether driving was required, Shouse admitted he “may have told him that it’s

a possibility” and that training might involve use of a “state vehicle.” He also denied that Aranda

told him that the job description said nothing about driving and testified “that was not discussed.”

When asked why he would have told Aranda about possibly using a state vehicle if he denied

telling him that a driver’s license was required, Shouse responded, “I don’t recall how that came

up. No, I do not.” Shouse further testified that, after Aranda told him the job description said

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nothing about driving, Aranda did not ask for a “policy” or “written document.” Shouse also denied

ever saying that UTEP or UTEP PD could change the job description at will, stating “I wouldn’t

say that.” He likewise denied referring Aranda to HR, though he “vaguely recall[ed] something

about him asking . . . for a legal department number because he felt he was being discriminated

against.” Shouse testified he gave Aranda the “main operator’s number” and told him to ask for

the legal department. When asked whether he told Aranda that even though it might sound

discriminatory, he would still need a driver’s license because of training obligations, Shouse

answered, “I never used the word discriminatory once in the conversation.” Later in his testimony,

Shouse reiterated that he never told Aranda a driver’s license was required but acknowledged that

they discussed the possibility of driving a state vehicle for training. He denied saying that Aranda

would be obligated to drive, but admitted telling Aranda “it was a possibility.”

Aranda also relies on the ODOP email to show that the evidence creates a fact issue on

whether UTEP disqualified him from the application process because it regarded him as impaired.

He emphasizes the ODOP inspector’s email, sent six months after the February 11 call, which

informed UT campuses that a campus had disqualified an applicant for lacking a driver’s license,

admitted the UT System job description did not include that requirement, noted that campuses

could impose one in certain circumstances, and clarified in the PCO index that the position did not

require a driver’s license. The email stated:

Recently we had a campus come across the issue of a telecommunicator not having
a driver’s license. The campus advised the applicant that they did not meet the
requirements to be hired and disqualified them from hire. The applicant made a
complaint alleging they were discriminated against because they have a ADA and
cannot drive. 5

After further investigation, the UT System job description for telecommunicator
does NOT require a driver’s license. However, your specific campus may require a
driver’s license if the telecommunicator will be driving a university owned vehicle

5
UTEP does not refute that “a campus” refers to UTEP and that “an applicant” refers to Aranda.

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or if they work overtime as a PSO and drive to the event. Each campus is different
so you have to be aware of your specific job descriptions if different from UT
System.

As such, we clarified on the index for telecommunicator that a DL is not required,
however they must have a state issued identification card (US Passport could also
replace state ID).

If you ever have a situation where someone does not have something and it is
required, please call me or Inspector Lemmonds so that we can look into the matter.
They may have an extenuating circumstance that exempts them.

The ODOP email records that UTEP “advised the applicant that they did not meet the requirements

to be hired,” “disqualified” Aranda for “not having a driver’s license,” and that Aranda “did not

drive” due to an “ADA.” This email supports the allegation that Aranda’s lack of a driver’s

license—which Shouse knew was because of his mental impairment—was the basis for

disqualifying him from further consideration. From this evidence, we agree that a reasonable

factfinder could infer that UTEP acted on the perception that Aranda was impaired.

Aranda’s “burden of establishing a prima facie case of disparate treatment is not onerous.”

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). So long as the

plaintiff meets his initial burden of establishing a prima facie case of discrimination, he is entitled

to a presumption of discrimination. See Mission Consol., 372 S.W.3d at 634. Viewing the evidence

in the light most favorable to Aranda, we find the record creates a fact issue on whether UTEP

prohibited him from continuing with the application process because it perceived him as impaired.

We conclude that Aranda has raised a genuine issue of material fact on his prima facie

case—whether UTEP perceived him as impaired and disqualified him from hire based on that

perceived impairment.

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B. UTEP produced evidence of a legitimate, nondiscriminatory business reason.

Because Aranda has met his initial burden to show a prima facie case, we next determine

whether UTEP produced evidence of a legitimate, nondiscriminatory business reason for

disqualifying him from the hiring process. See Alamo Heights, 544 S.W.3d at 782.

UTEP maintains that the policy in place at the time required all applicants to submit a copy

of their driver’s license and that “Officer Shouse’s testimony shows he discussed driver’s licenses

with Aranda because of his understanding or awareness of the policy requiring applicants to submit

this documentation.” Aranda responds that UTEP has not produced the policy that was in effect

when he applied and that the record instead contains policies that were adopted after the fact.6

However, we agree with UTEP that at this stage, the “question properly stated is not whether the

policy existed, but whether Officer Shouse believed that a driver’s license was required according

to policy.” “The question is not whether an employer made an erroneous decision; it is whether

the decision was made with discriminatory motive.” Mayberry v. Vought Aircraft Co., 55 F.3d

1086, 1091 (5th Cir. 1995).

The record contains inconsistent testimony and evidence regarding the requirements for

the PCO position. In its combined plea and motion, UTEP argued that under policy 401B,

applicants for the PCO position were required to submit a driver’s license. UTEP also claimed that

6
On appeal, Aranda challenges the admission of these two policies—UTEP’s Exhibit A-2 and A-3—arguing they are
irrelevant because they were not in effect when he applied. Although Aranda objected to these exhibits in his response
to UTEP’s combined plea and summary-judgment motion, the record does not contain a ruling on his objection. See
Tex. R. App. P. 33.1 (requiring that after “the complaint was made to the trial court by a timely request, objection, or
motion” the record must show that the trial court ruled “either expressly or implicitly”). Even if were to find that the
trial court ruled implicitly, Aranda provides no supporting analysis, and the only authority he cites—Texas Rule of
Evidence 403—addresses the exclusion of evidence for prejudice, confusion, or other reasons. See Tex. R. Evid. 403.
Because Aranda has not provided adequate analysis or authority, he has waived this argument. See Tex. R. App. P.
38.1 (providing briefing requirements). In any case, we agree with UTEP that the two policies, though not in effect at
the time, are relevant because each contain sections titled “Changes/Additions Since Last Publication” that are specific
to the documentation required for PCO applicants.

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this policy is reflected in form DP52TC—a required form for all applicants—which similarly

included a driver’s license as a required document. On appeal, UTEP relies on policy 401B to

show that a driver’s license was a required. But UTEP cites to the version of 401B that was revised

in May 2022—after Aranda’s application. UTEP also relies on form DP52TC, but the version it

cites is dated “Dec 2021” and it is unclear whether it was in effect when Aranda applied. Aranda

argues that even the outdated versions produced by UTEP conflict, because DP52TC requires a

driver’s license while 401B does not. Shouse himself confirmed that 401B and DP52TC conflict

regarding whether a driver’s license is required for PCO applicants.

Other inconsistencies appear in Shouse’s testimony. When asked whether he believed a

driver’s license was required when Aranda applied, Shouse answered in the affirmative. But when

asked whether the job description listed a driver’s license, Aranda could not recall. He was also

asked whether it was fair for Aranda to believe he did not need to submit a driver’s license since

it was not included in the forms he sent to Aranda and Shouse responded: “That would be fair.”

And when asked whether, at the time of the phone call, it was his understanding that Aranda would

be disqualified for lacking a driver’s license, Shouse answered: “No.”

Although this evidence raises fact issues regarding whether the policy in effect at the

relevant time required a driver’s license and whether Shouse believed the requirement was in place,

Shouse’s stated belief nevertheless constitutes a legitimate, nondiscriminatory business reason.

We therefore find UTEP produced evidence of a legitimate, nondiscriminatory business reason. 7

7
UTEP further maintains that “[b]ecause Aranda did not complete his application, UTEP has a legitimate, non-
discriminatory reason for not hiring him.” We reject this argument. Aranda claimed in his petition that UTEP
discriminated against him “because it regarded him as a person with a disability, and refused to allow him to continue
with the application process[.]” The record reflects that the application process for the PCO position consists of several
phases. As UTEP’s HR director explained, applications are first screened by HR to confirm minimum qualifications
before they are forwarded to Shouse, UTEP PD’s background investigator. Aranda’s application passed this initial
screening phase of the application process, and it was then forwarded to Shouse. The record reflects that Aranda was
in the application process—Aranda submitted his application, evidenced by the “Application Summary,” his resume,
and his cover letter. In its EEOC position statement, UTEP itself maintained:

17
C. Aranda’s evidence raised a fact issue on whether UTEP’s stated reason was
pretext.

Because UTEP met its burden of production, the burden shifts to Aranda to produce

evidence showing that UTEP’s stated reason was a pretext for discrimination. See Quantum Chem.

Corp., 47 S.W.3d at 477. UTEP maintains that Aranda has “not produced substantial evidence

demonstrating that UTEP’s legitimate, non-discriminatory reasons or its employment actions were

both false and a pretext for illegal discriminatory animus.” But Aranda was not required to produce

substantial evidence; that is not the standard. Rather, “[a] plaintiff can avoid summary judgment

if the evidence taken as a whole creates a fact issue as to whether the employer’s stated reason was

not what actually motivated the employer and creates a reasonable inference that discriminatory

intent was a determinative factor in the adverse employment decision.” Madden v. El Paso Indep.

Sch. Dist., 473 S.W.3d 355, 360 (Tex. App.—El Paso 2015, no pet.) (quoting Bedgood v. Texas

Educ. Agency, No. 03-14-00030-CV, 2015 WL 739635, at *2 (Tex. App.—Austin Feb. 19, 2015,

pet. denied) (mem. op.). And “although the presumption of discrimination ‘drops out of the picture’

once the defendant meets its burden of production, the trier of fact may still consider the evidence

establishing the plaintiff’s prima facie case ‘and inferences properly drawn therefrom on the issue

Mr. Aranda submitted his employment application for the PCO position on January 1, 2022. In
accordance with University procedure, his application was reviewed by UTEP’s HR Office and
forwarded to the UTEP Police Department for further consideration. Mr. Mark Shouse (‘Mr.
Shouse’), Police Officer, is the individual in the UTEP Police Department responsible for
conducting background investigations and informing applicants of the next step of the application
process, which is the completion of the DP1 Personal History Statement (‘DP1’). Mr. Shouse sent
Mr. Aranda an email on February 10, 2022, with instructions for completion of the DP1, and
informed him of additional documents which needed to be submitted by Mr. Aranda at his scheduled
9:00 a.m. appointment on February 25, 2022 . . . Mr. Aranda was not further considered for the
PCO position because he did not participate in the next phase of the application and selection
process[.]” (Emphasis added).

As explained above, supra n. 4, the very basis of Aranda’s claim is that UTEP prohibited him from continuing with
the application process because it perceived him as disabled. We therefore cannot agree that “UTEP could not have
hired Aranda simply because he did not complete his application,” and reject that this constitutes a legitimate,
nondiscriminatory business reason.

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of whether the defendant’s explanation is pretext.’” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000) (internal citation omitted).

Aranda maintains that UTEP’s own policies and job descriptions do not require driving or

a driver’s license for the PCO position. When asked whether driving was listed as a duty for the

PCO position, Shouse confirmed, “It is not listed as one of the duties.” Shouse was also asked

whether driving was an essential function of the PCO position, to which he responded, “It is not.”

Additionally, the PCO job postings by both UTEP and the UT System listed the position’s required

qualifications, duties, and essential functions; neither posting listed driving or a driver’s license as

a required qualification, duty, or essential function. Moreover, the version of policy 401B that

UTEP relies on includes a section titled, “Disqualifiers,” which does not list the lack of a driver’s

license.

Aranda also points to the email from the UT System ODOP. The ODOP email was sent to

universities across the UT System and reported that a campus had disqualified an applicant who

complained of being discriminated against over the lack of a driver’s license, conceded that the

UT System job description did not include such a requirement, acknowledged that campuses could

impose the requirement in certain circumstances, and updated the PCO index to clarify that the

position did not require a driver’s license. The email specifically stated that a campus “advised the

applicant that they did not meet the requirements to be hired and disqualified them from hire,” but

later confirmed that “[a]fter further investigation, the UT System job description for

telecommunicator does NOT require a driver’s license.” A reasonable factfinder could view this

evidence, particularly the clarification in the email that a driver’s license was not required, as

undermining UTEP’s stated reason and supporting the reasonable inference that its reliance on a

driver’s license was pretextual.

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UTEP also relies on the testimony of UTEP’s HR director, who confirmed the same point

in her testimony: neither the UT System job posting, UTEP’s job posting, nor DP52TC list a

driver’s license as a requirement. The HR director further testified that if driving were an essential

function of the PCO position, it would have been listed in the job description, and that neither

driving nor a driver’s license was required. When asked whether it would be a policy violation for

Shouse to have changed the job description to impose a driver’s license requirement, the HR

director answered, “Yes,” explaining that Shouse would first have needed to inform his superiors

and HR before imposing such a requirement. Shouse himself answered in the affirmative when

asked, “So you agree with me if driving and driver’s license are not listed as a requirement on this

job description . . . then it’s not a requirement for the telecommunicator position; is that correct?”

Walsh, UTEP’s Chief of Police and the final decision-maker with authority to decide whether a

driver’s license is required, was asked whether Aranda’s lack of a driver’s license should have

disqualified him for the hiring process; Walsh answered: “I don’t know.” This testimony supports

a reasonable inference that UTEP’s stated reason was pretextual, further raising a fact issue.

The hiring process likewise gives rise to a reasonable inference of pretext. The HR director

testified that a recruiter first screens applications to confirm minimum qualifications before

forwarding them to Shouse. In Aranda’s case, the recruiter screened his application and determined

he met the minimum qualifications for the position. Shouse also confirmed that HR first screened

Aranda’s application and then forwarded it to him. If possession of a driver’s license were a

requirement of the position, a factfinder could reasonably question how Aranda’s application

survived the initial screening, which further supports a reasonable inference of pretext.

Other evidence relevant to a showing of pretext includes UTEP’s reaction to Aranda’s

claim of discrimination. According to Aranda’s testimony, he told Shouse during the February 11

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phone call that he felt he was being discriminated against because a driver’s license was not

required for the position. Shouse testified that after the call, he reported to UTEP PD Assistant

Chief, Ray Rodriguez, that he had just “spoken with an applicant who asked for a telephone

number for legal because he was being discriminated against.” Shouse also informed another

superior, Lieutenant Florencio Ramirez, about Aranda’s complaint. But Shouse did not notify HR.

Nor did Shouse contact Aranda again or clarify that he did not need a driver’s license to continue.

Aranda testified that he assumed HR would contact Aranda because “[t]ypically if an applicant . .

. doesn’t continue in the process, it’s my understanding HR sends an email to them.” However,

Aranda testified he did not speak to Shouse or anyone at UTEP after the phone call, a fact

confirmed by UTEP officials.

Despite UTEP’s Equal Opportunity Office having both informal and formal processes for

handling discrimination complaints, nothing in the record indicates UTEP initiated either process.

Rather, Walsh testified that after Ramirez told him about the incident, he “acknowledged it, and

that was it.” Walsh did not report it to anyone or investigate, even though UTEP’s policy requires

reporting “when they know of or suspect possible discrimination.” Walsh testified, “No. I didn’t

do any investigation or - or look into the matter to try to get information - investigate. I didn’t do

any investigation.” As an Equal Opportunity employer, UTEP’s own policy requires it to “take

affirmative steps to ensure that applicants . . . are treated in a non-discriminatory manner regarding

all aspects of employment.” Walsh further testified that PCO’s are not required to drive a university

vehicle and that, as UTEP PD’s Chief of Police, he did not recall ever telling anyone that a driver’s

license was required for the position.

We also consider Aranda’s argument that evidence of an employer’s shifting explanations

can evidence pretext. UTEP’s stated reasons for its actions varied over time. For example, UTEP

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submitted log of internal notes from the EEOC that states: “According to R [Respondent UTEP],

the interviewer [Shouse] was not aware that CP [Charging Party Aranda] had a disability, and the

job did not require that he drives.” However, in its formal position statement, UTEP neither

confirmed nor denied whether a driver’s license was required but alluded to the possibility through

the language “other duties as assigned” in the job description. In its position statement, UTEP

specifically stated: “the Position Announcement includes language for job duties which may fall

under the category of ‘Other duties as assigned’” and that this language “could reasonably and

foreseeably result in the need for a license.” UTEP also falsely claimed in its position statement

that “[t]he call was brief, lasting one to two minutes,” when the call was 4:23 long.

In its position statement, UTEP further claimed that “Mr. Shouse is not the individual who

confirms driving requirements, and therefore did not convey such information to Mr. Aranda”.

UTEP also claimed in its position statement that “Mr. Shouse did not state anything about state

training.” However, Shouse himself confirmed in his deposition that he did in fact discuss training

with Aranda and that he “may have” stated driving was required. Additionally, at his deposition

on June 13, 2024, Shouse testified multiple times that a driver’s license was not required and was

not listed as one of the required documents in the February 10 email he sent to Aranda. However,

in his affidavit signed five months later, Shouse claimed that a driver’s license was required during

the relevant time and that it was an oversight not to have requested one under ODOP 401B and

DP52TC.

We find that these inconsistencies cast doubt on UTEP’s stated reason and create issues of

material fact on whether its reason is pretextual. See Burton v. Freescale Semiconductor, Inc., 798

F.3d 222, 239–40 (5th Cir. 2015) (“A jury may view erroneous statements in [an] EEOC position

statement as circumstantial evidence of discrimination. We have also found an employer’s

22
rationale suspect where it had not remained the same between the time of the EEOC’s investigation

and the ultimate litigation.”) (cleaned up); Nasti v. CIBA Specialty Chem. Corp., 492 F.3d 589,

594 (5th Cir. 2007) (“A court may infer pretext where a defendant has provided inconsistent or

conflicting explanations for its conduct.”); Mclnnis v. Alamo Comm. College Dist., 207 F.3d 276,

283 (5th Cir. 2000) (reversing summary judgment entered for employer partially because the

employer’s report to the EEOC “contained false statements”). As the Supreme Court has stated,

“[p]roof that the defendant’s explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination, and it may be quite

persuasive.” Reeves, 530 U.S. at 147. Shifting defenses and untruthful accounts are relevant to the

analysis and can support a finding of pretext because “[i]f the trier of fact does not believe the

employer to have given a truthful account of its decision, it is reasonable to infer that the most

likely explanation is the one the employer cannot admit–that it acted for retaliatory or

discriminatory reasons.” Ameristar Airways, Inc. v. Admin. Review Board., 650 F.3d 562, 569–70

(5th Cir. 2011). A factfinder could reasonably infer pretext on this record, reinforcing that

resolution of the fact issues in this case lies with the factfinder. It is well established that

“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986).

Based on the above evidence, a reasonable jury could conclude that UTEP’s stated reason

was a pretext for discrimination based on Aranda’s perceived disability. See Miranda, 133 S.W.3d

at 228. The record also supports a reasonable inference that discriminatory intent was a

determinative factor. See Madden, 473 S.W.3d at 360. Taking as true all evidence favorable to

Aranda and indulging every reasonable inference in his favor, we conclude that the trial court did

23
not err by denying UTEP’s combined plea to the jurisdiction and summary-judgment motion.

Accordingly, UTEP’s sole issue is overruled.

IV. CONCLUSION

For these reasons, we affirm the trial court’s denial of the combined plea to the jurisdiction

and summary-judgment motion.

MARIA SALAS MENDOZA, Chief Justice

November 12, 2025

Before Salas Mendoza, C.J., Palafox, J., and Longoria, J. (Ret.)
Longoria, J. (Ret.) (sitting by assignment)
Palafox, J., dissents without opinion.

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