CourtListener 10772854•South Texas College v. Rolando Villagran
Texto completo
NUMBER 13-24-00224-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SOUTH TEXAS COLLEGE, Appellant,
v.
ROLANDO VILLAGRAN, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 4
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva
In seven issues, appellant South Texas College (STC) appeals the denial of its
combined traditional and no-evidence motion for summary judgment in this employment
discrimination suit brought by appellee Rolando Villagran, a former STC employee. See
TEX. LAB. CODE ANN. §§ 21.001–.556. We reverse and render.
I. BACKGROUND 1
Villagran describes himself as a “Hispanic, gay male whose family originated [from]
Mexico.” He began his employment with STC in September of 2018 as a Librarian I. The
duties and responsibilities of a Librarian I include serving as a library liaison to academic
departments and developing and implementing library instruction sessions in accordance
with the Association of College and Research Libraries guidelines. In February of 2019,
STC instructor Patricia Ballenger developed some concerns regarding one of Villagran’s
library instruction sessions. Ballenger informed the Instruction Librarian Elizabeth
Hollenbeck and Reference Librarian Minerva Alvarez that the library “instruction session
should have been more tailored to the students’ needs . . . and that [Villagran] had
difficulty demonstrating” the session. Hollenbeck and Alvarez met with Villagran to
discuss Ballenger’s concerns and review a copy of the assignment used during the library
instruction session. Additionally, they reviewed an email drafted by Villagran as liaison
and determined “that attention also needed to be directed to his written communication
skills.” Hollenbeck and Alvarez offered Villagran an opportunity to improve his library
instruction sessions by observing colleagues and having them observe him and provide
their feedback. Villagran conducted sessions in February, March, and April of 2019. His
colleagues provided feedback, including the following: “narrow down your search results,”
“be more concise in explaining [r]esearch [s]tarters,” “multiple times . . . you were
repetitive [which] . . . can be confusing [to] the students,” and “creating a guide or outline
will help alleviate going back and forth.”
1 The background facts are derived from the undisputed evidence in the summary judgment record.
2
In April of 2019, Associate Dean of Library Services Lisa Walters, Hollenbeck, and
Alvarez initiated a “Conduct and Performance Improvement Plan” (CPIP) with Villagran,
a seven-week plan to improve his liaison skills, writing skills, and library instruction skills.
Hollenbeck and Alvarez met with Villagran bi-weekly to review his progress. Some of his
library instruction sessions were recorded as part of his improvement plan. After his May
recorded session, Walters and Hollenbeck discussed feedback with Villagran and
determined “he did not have an understanding of the contents of the databases available
to students and faculty and could not determine which databases should be shown during
instruction sessions.” Thereafter, Villagran conducted a second recorded session in June
of 2019. Walters and Hollenbeck informed him that he made some improvement;
however, “[h]e did not fully address the instruction request leaving out newspapers until
a [student] asked,” “he was not able to effectively demonstrate a search,” and it appeared
he “d[id] not have a basic understanding of how database researching works.” In addition
to the library instruction sessions, Villagran was asked to write a short essay on “several
web articles covering art movements to address his knowledge in his assigned liaison
subject.” Upon reviewing his essay, it appeared to Hollenbeck, Alvarez, and Walters that
the writing was “not his own based on the construction of sentences.” When this was
discussed with Villagran, he stated that it was his work and not plagiarism. Villagran
subsequently submitted two short answer essays upon request. According to Walters,
each essay “contained at least one act of plagiarism,” and the longest essay in particular
“contained six acts of plagiarism.” When asked about these subsequent allegations of
plagiarism, “[Villagran] responded in writing that ‘It was not intended for the assignment
to come out the way it did due to time constraints with other working duties.’”
3
On June 19, 2019, Walters sent a five-page letter addressed to Jim Navarro of
STC’s Employment Relations Office and Brenda Balderaz, the Director of Human
Resources. The letter was carbon-copied to Dr. Jesus Campos, Dean of Library and
Learning Support Services. In this letter, Walters referenced Ballenger’s complaint about
Villagran’s instruction session, the CPIP, the support and feedback Villagran received, as
well as his acts of plagiarism. In particular, Walters wrote:
[Villagran] has been in the Librarian I position for seven months receiving
the training provided to all new staff members. He was given several
opportunities, with specific feedback, to improve library instruction. While
there was minor improvement in his presentations, he is not able to
successfully provide instruction to meet the job responsibilities listed in the
Librarian I job description[:]
• Provides library instruction in accordance with Association of
College and Research Libraries (ACRL) guidelines for
academic libraries and Library Services guidelines[;]
• Serves as library liaison to assigned academic departments[;]
• Assists in developing, implementing, and assessing library
instruction services.
The structure and content of [Villagran]’s writing is below the
expected level of a professional librarian. During the hiring process his
credentials were reviewed. The review revealed [Villagran] has two
Master’s Degree[s], one of which is in English, which the committee felt
ensured he is able to create professional writings.
Plagiarism is a violation [of] Policy 4901: Standards of Conduct:
13. Failure to meet a reasonable an[d] objective measure of
efficiency and productivity;
28. Making misrepresentations or providing misleading work-
related information to supervisors.
In her letter, Walters ultimately recommended termination of Villagran’s employment.
4
On July 10, 2019, a memorandum addressed to Dr. Shirley A. Reed, President of
STC, was sent and signed by Campos, Walters, Alvarez, and Dr. David Plummer, Vice
Present of Information Services, Planning, Performance, and Strategic Initiatives. This
memorandum also recommended the termination of Villagran’s employment from STC
based on Villagran’s “failure to successfully complete his . . . CPIP[], which in part
included misrepresenting work products (plagiarism) and other policy violations[,]”
including “Policy #4001” of the “Code of Professional Ethics for the Administration, Faculty
and Staff,” as well as “Policy #4901” of the “Standards of Conduct.” On the same day,
Reed signed and authored a letter addressed to Villagran, informing him that his
employment was terminated with STC effective July 10, 2019. Reed indicated in the letter
that she decided to terminate Villagran’s employment after she considered “documentary
evidence” and the recommendation of termination by Campos, Walters, Alvarez, and
Plummer.
On September 30, 2019, Villagran submitted a discrimination charge with the
Texas Workforce Commission (TWC) and the federal Equal Employment Opportunity
Commission. Villagran checked off the boxes for sex, national origin, and retaliation in the
“CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es))” section of the
charge form. In addition, Villagran wrote in the charge form that he was “a homosexual,
36-y[ea]r-old Hispanic male of Mexican descent,” contended that he had been
discriminated by STC “on account of [his] race/national origin and/or sexual orientation,”
and further asserted that he was “discriminated against, harassed[,] and subject to a
hostile work environment because of [his] national origin (Mexican descent) and sexual
orientation.”
5
On October 21, 2020, Villagran filed the underlying suit under the Texas
Commission of Human Rights Act (TCHRA), alleging that he “became the target of
increased discriminatory and retaliatory treatment because of his national origin and/or
sexual orientation, as well as subject to a hostile work environment” while employed as a
librarian at STC. Specifically, Villagran alleged that “within the first weeks of his
employment, his supervisors attempted to transfer him to another campus,” but he
refused. He also stated that after his refusal, his supervisors gave him “excess
assignments compared to his co-workers with the same job description,” and that his
supervisors were “overly and unnecessarily critical of his work and were generally rude
and dismissive towards him.” Villagran further alleges he was placed on a CPIP for three
months, and “[d]espite doing everything that was asked of him to do under the CPIP, he
received increased pressure, stress and inordinate and unnecessary scrutiny by his
supervisors.” Villagran asserts that other similarly-situated employees “outside of [his]
protected class who also underwent a [C]PIP” were treated differently. He further states
that the reasons for his termination from STC included “failure to improve, which was
false”; that he “improved in all aspects of the [C]PIP, but [was] still given poor marks by
supervisors compared to similarly-situated employee[s] under [C]PIP”; and that STC did
not follow its own policies “in regards to employee discipline.”
On December 1, 2020, STC filed its original answer asserting “it had [a] legitimate,
nondiscriminatory and non-retaliatory reason[] for the employment actions complained of
by [Villagran].” On January 19, 2023, STC filed a combined traditional and no-evidence
motion for summary judgment, wherein STC asserted that the trial court lacked
jurisdiction over Villagran’s claims because its immunity was not waived under the
6
TCHRA. In support of its motions, STC attached Villagran’s original petition, Villagran’s
oral deposition, emails sent by Hollenbeck to Villagran, a copy of the written CPIP signed
by Villagran and Alvarez, writing samples purporting to show Villagran’s acts of
plagiarism, a copy of Walter’s letter to Navarro and Balderaz recommending Villagran’s
termination, a copy of the memorandum recommending termination sent to Reed, Reed’s
letter to Villagran notifying Villagran that his employment was terminated, an affidavit by
Navarro, and Navarro’s “Investigation Report Memorandum.”
On February 14, 2024, the trial court conducted a hearing on STC’s motion for
summary judgment. At the hearing, Villagran’s counsel requested ten days to file a
responsive pleading to STC’s motion. 2 The trial court then heard brief arguments
regarding STC’s motions. Villagran announced that he was “dropping” his retaliation claim
as well as “removing” his claim for exemplary damages. The trial court announced that it
was going to rule on STC’s motion “by submission” on March 14, 2024, and allow the
parties to file responses and replies. Villagran did not file any responsive pleading to
STC’s motion prior to the trial court’s ruling on said motion. 3
On April 16, 2024, the trial court entered its order denying STC’s combined
traditional and no-evidence motion for summary judgment. The order did not state the
basis of the trial court’s ruling. This interlocutory appeal followed. See TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(a)(8); Town of Shady Shores v. Swanson, 590 S.W.3d 544,
2 When Villagran’s trial counsel asked STC’s trial counsel if he was opposed to Villagran’s counsel
filing a response with evidence, STC’s trial counsel responded, “No.”
Villagran also did not file any other pleading or motion before the trial court ruled on STC’s
3
combined motion for summary judgment.
7
549 (Tex. 2019) (noting that § 51.041(a)(8) “allows an interlocutory appeal to be taken
when ‘the trial court denies the governmental entity’s claim of no jurisdiction, whether it
has been asserted by a plea to the jurisdiction, a motion for summary judgment, or
otherwise’” (quoting Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
II. STANDARD OF REVIEW AND APPLICABLE LAW
A trial court’s ruling on a summary judgment motion is reviewed de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Our de novo standard of
review extends to both “traditional” and “no evidence” summary judgments. Shaun T.
Mian Corp. v. Hewlett–Packard Co., 237 S.W.3d 851, 855 (Tex. App.—Dallas 2007, no
pet.).
For a “traditional” summary judgment, the movant bears the burden of establishing
that no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.
R. CIV. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000) (per curiam). To meet this burden as a defendant, the summary judgment movant
must either disprove at least one essential element of a claim as a matter of law or
conclusively establish all elements of an affirmative defense to the claim. Sorrow v. Harris
Cnty. Sheriff, 622 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2021, pet. denied)
(citing Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996) (per
curiam)). Once the movant establishes its right to judgment as a matter of law, the burden
shifts to the nonmovant to produce controverting evidence raising a fact issue on the
elements or claims negated. See Tawil v. Cook Child.’s Healthcare Sys., 582 S.W.3d 669,
681 (Tex. App.—Fort Worth 2019, no pet.) (citing Van v. Peña, 990 S.W.2d 751, 753
(Tex. 1999)).
8
A “no evidence” summary judgment is properly granted if, after adequate time for
discovery, the movant asserts there is no evidence supporting one or more specified
elements of a claim or defense on which the nonmovant bears the burden of proof at trial,
and the nonmovant then produces no summary judgment evidence raising a genuine
issue of material fact on those elements. TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201
S.W.3d 686, 688 (Tex. 2006) (per curiam).
While the burdens vary for the different types of motions, summary judgment
evidence was presented to the trial court; therefore, the “differing burdens are immaterial
and the ultimate issue is whether a fact issue exists.” Scripps NP Operating, LLC v.
Carter, 573 S.W.3d 781, 790 (Tex. 2019); see Fossil Grp., Inc. v. Harris, 691 S.W.3d 874,
882 (Tex. 2024); In re Cobb, 714 S.W.3d 656, 666 (Tex. App.—Corpus Christi–Edinburg
2024, orig. proceeding).
In reviewing summary judgments, we review the evidence in the light most
favorable to the nonmovant. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). We indulge every reasonable inference and resolve any doubts against the motion.
Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). We credit evidence favorable to the
nonmovant if reasonable jurors could, and disregard contrary evidence to the nonmovant
unless reasonable jurors could not. Mack Trucks, 206 S.W.3d at 582 (citing City of Keller,
168 S.W.3d at 827). Circumstantial evidence may be offered to raise an issue of material
fact so long as the evidence transcends mere suspicion. Harrell v. Hochderffer, 345
S.W.3d 652, 661 (Tex. App.—Austin 2011, no pet.) (citing Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 601 (Tex. 2004)).
9
The TCHRA prohibits an employer from committing an “unlawful employment
practice” against an employee “because of” the employee’s “race, color, disability,
religion, sex, national origin, or age.” TEX. LAB. CODE ANN. §§ 21.002(8)(D), 21.051. It also
prohibits employers from retaliating against employees for engaging in certain protected
activities. See id. § 21.055.
The TCHRA waives governmental immunity to suit, “but only when the plaintiff
states a claim for conduct that actually violates the statute.” Tex. Dep’t of Transp. v. Lara,
625 S.W.3d 46, 52 (Tex. 2021) (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 770 (Tex. 2018)). If a plaintiff fails to allege a violation of the TCHRA, then
the trial court does not have jurisdiction, and the claim should be dismissed. Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012).
Recognizing that an employer’s “motives are often more covert than overt, making
direct evidence of forbidden animus hard to come by,” the United States Supreme Court
created the McDonnell Douglas burden-shifting framework, which the Texas Supreme
Court has since adopted for its analysis of TCHRA claims based on circumstantial
evidence. 4 Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex.
2020) ; Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017) (quoting Mission
Consol., 372 S.W.3d at 634); see McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); see also City of Richland Hills v. Childress, No. 02-20-00334-CV, 2021 WL
4205013, at *4 (Tex. App.—Fort Worth Sept. 16, 2021, pet. denied) (mem. op.) (noting
4 “Because one of the purposes of the TCHRA is to ‘provide for the execution of the policies of Title
VII of the Civil Rights Act of 1964,’” we consider analogous federal cases interpreting Title VII. Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012) (quoting TEX. LAB. CODE ANN.
§ 21.001(1)).
10
the “rarity” of the existence of direct evidence of discrimination in employment cases).
“Under this framework, the plaintiff is entitled to a presumption of discrimination if she
meets the ‘minimal’ initial burden of establishing a prima facie case of discrimination”—
that is, the plaintiff must provide evidence of each element of his claim. Mission Consol.,
372 S.W.3d at 634. “Although the precise elements of this showing will vary depending
on the allegations, . . . the plaintiff’s burden at this stage of the case ‘is not onerous.’”
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001) (quoting Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see Rincones, 520 S.W.3d at 584.
A plaintiff’s failure to make a prima facie case, however, “means the plaintiff never
gets the presumption of discrimination.” Mission Consol., 372 S.W.3d at 637. “[T]hat
failure also means the court has no jurisdiction and the claim should be dismissed.” Id.
Only if the plaintiff establishes a prima facie case of discrimination will the burden then
shift to the defendant to negate or rebut the plaintiff’s prima facie case; this generally
requires that the defendant produce evidence of “a legitimate, nondiscriminatory reason”
for the defendant’s actions. 5 Flores, 612 S.W.3d at 305; see Alamo Heights, 544 S.W.3d
at 782. Thereafter, the burden returns to the plaintiff, who must “overcome the rebuttal
evidence by establishing that the defendant’s stated reason is a mere pretext.” Flores,
612 S.W.3d at 305.
5 We note that the McDonnell Douglas burden shifting analysis is not applicable to claims of
harassment based on hostile work environment once a court concludes that a plaintiff has met her burden
to establish a prima facie case. See Tex. Dep’t of State Health Servs. v. Resendiz, 642 S.W.3d 163, 173
(Tex. App.—El Paso 2021, no pet.) (collecting cases).
11
III. ANALYSIS
In its first issue, STC argues that the trial court erred in denying its no-evidence
motion for summary judgment as to all of Villagran’s claims because he produced no
evidence to support them, and thus, did not trigger a waiver of its sovereign immunity. In
its second through fifth issues, STC argues that traditional summary judgment was
warranted because there was evidence “disproving” some elements of Villagran’s claims
of national origin discrimination, sexual orientation discrimination, hostile work
environment, and retaliation. In its sixth issue, STC argues there was no evidence to
establish that its “legitimate, non[]discriminatory reason for Villagran’s termination was
pretextual or that national origin and/or sexual orientation was a motivating factor in the
termination.” We address these issues together, claim by claim. See Scripps, 573 S.W.3d
at 790; In re Cobb, 714 S.W.3d at 666.
A. National Origin Discrimination
To establish a prima facie case of employment discrimination for his national origin
claim, Villagran was required to plead and produce evidence (1) that he was a member
of a class protected by the TCHRA, (2) that he was qualified for his employment position,
(3) that he was terminated from his employment, and (4) that he was replaced by
someone outside his protected class after his termination (or was treated differently than
similarly situated employees). See Tex. Dep’t of State Health Servs. v. Resendiz, 642
S.W.3d 163, 173 (Tex. App.—El Paso 2021, no pet.) (citing AutoZone, Inc. v. Reyes, 272
S.W.3d 588, 592 (Tex. 2008) (per curiam)).
With respect to Villagran’s national origin claim, STC argues, among other things,
that Villagran presented no evidence establishing that he was replaced by someone
12
outside his protected class or otherwise treated less favorably than similarly situated
employees. During Villagran’s deposition testimony, the following exchange occurred:
[STC’s counsel]: Okay. Did you ever discuss with anybody at
STC what your national origin was?
[Villagran]: Just that I’m Hispanic, Mexican-American.
[STC’s counsel]: Who did you discuss that with?
[Villagran]: To my . . . other librarian colleagues . . . Ms.
Maureen Mitchell and Ms. Sabrina Deanda. And
sometimes just like also my background where
my parents worked.
....
[STC’s counsel]: Did you tell them where you were born?
[Villagran]: Yes.
[STC’s counsel]: Okay. So you told them you were born in?
[Villagran]: I was born here in the—in Mission.
....
Yes. Then my . . . mother was born here in
. . . Edcouch, and my dad was [b]orn in Mexico,
and that they had very little education.
....
[STC’s counsel]: Did you tell anybody else?
[Villagran]: No.
....
[STC’s counsel]: Did . . . they tell anyone about your national
origin that you know of?
[Villagran]: Not that I’m aware of.
13
[STC’s counsel]: Was anyone else aware of your national origin
or where your parents were born or anything like
that that you know of?
[Villagran]: No.
[STC’s counsel]: Okay. What’s your claim regarding national
origin discrimination?
[Villagran]: I felt . . . because the way I would probably
write, because it was mentioned in my conduct
and improvement plan.
....
That sometimes my . . . E-mails . . . didn’t
sound as if it was good writing. And that was
mentioned and brought up to—by [Alvarez].
[STC’s counsel]: So [Alvarez] mentioned to you that she thought
your E-mails didn’t have good writing?
[Villagran]: Yes.
[STC’s counsel]: And you perceived that as national origin
discrimination?
[Villagran]: Yes. I felt somebody may have said something,
but I don’t know who . . ., but I perceived it to be
as if—that the way my writing was, because
she . . . did make a comment, that, Oh, we’re
like—that as—in a closed office, she did
mention to me that as of Hispanic, since
we’re . . . Mexican-American, we’re supposed
to be better writers.
[STC’s counsel]: [Alvarez is] Mexican-American?
[Villagran]: Yes.
....
[STC’s counsel]: So she was talking about you both?
[Villagran]: Yes.
14
....
Like we’re supposed to step it up.
[STC’s counsel]: Did you respond to her?
[Villagran]: I—since she’s my superior, I didn’t. . . .
[STC’s counsel]: Did you . . . speak to anyone at STC about that
comment?
[Villagran]: No.
....
[STC’s counsel]: . . . . Was your position of employment
replaced?
[Villagran]: Yes.
[STC’s counsel]: Do you know who it was replaced by?
[Villagran]: Sara Martinez.
[STC’s counsel]: Do you know what her national origin is?
[Villagran]: She’s Hispanic as well. And I know . . . that after
my termination in . . . July of 2019, I would go
and check on the . . . STC website, position was
posted right away in September 2019. And in
January of 2020, I saw that she had already
started working.
[STC’s counsel]: Do you know what her sexual orientation is?
[Villagran]: I know she told me that she was married, she
had her husband.
STC contends that the record reflects that Villagran was replaced by someone
within his protected class. We agree. As demonstrated above, Villagran indicated in his
deposition testimony that his national origin was “Hispanic, Mexican-American,” and that
15
his employment position was replaced by Martinez, whom Villagran stated was “Hispanic
as well.” 6 In his brief, Villagran identifies no other evidence in the record demonstrating
that Martinez was outside his protected class in regards to his national origin
discrimination claim, and we have found none. Thus, none of the summary judgment
evidence before us raises a genuine issue of material fact as to whether Villagran was
replaced by someone outside of his protected class. See Resendiz, 642 S.W.3d at 173;
cf. Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 344 (Tex. App.—Dallas 2013,
no pet.) (rejecting school district’s assertion that appellee, a Hispanic woman, could not
present a prima-facie case of national origin discrimination when evidence raised issue
of material fact as to whether the appellee was replaced by a non-Hispanic).
STC also contends that “the record clearly establishes that there were no others
similarly situated to Villagran that were treated more favorably than him.” Villagran argues
in response that his “[c]oworker Angelica [Garcia] confirmed that Villagran was treated
different and unfairly regarding the CPIP as opposed to other[,] female employees,”
referencing Navarro’s “Investigation Report Memorandum.” In his report, Navarro
explained that he interviewed Garcia on October 2, 2019, as part of his investigation into
Villagran’s allegations. Navarro’s report noted the following:
[Garcia] stated that [she] would go to lunch with [Villagran] and had texted
him when learning he separated with [STC]. [Garcia] stated that the
recording of the presentations was unfair, and that in all the time they have
6 “[T]he term ‘Hispanic’ does not literally designate either race or national origin and is instead
commonly understood as implying both.” Lopez v. Tex. State Univ., 368 S.W.3d 695, 703 (Tex. App.—
Austin 2012, pet. denied) (discussing the overlapping nature of national-origin and racial discrimination
claims when employee asserts discrimination because he is Hispanic). Villagran did not expressly assert a
claim of race discrimination in his petition and STC does not raise any appellate issue regarding such a
claim. To the extent that Villagran’s petition can be construed as asserting a claim of race discrimination,
we note that Villagran states in his brief that he “is not proceeding on his race . . . claim[], and agrees th[is]
claim[] should not proceed.”
16
worked at [STC] that has never been done. [Garcia] stated that [Villagran]
had informed [her] that [he] had been asked to transfer to Starr, and that it
occurred several months into employment, maybe “six months” after he
started. [Garcia] stated that she did not know of [Villagran’s] sexuality
because he did not tell [her]. [Garcia] stated that [she] had not seen or heard
anything discriminatory against anyone. [Garcia] stated that [Villagran] may
have been discriminated for “being too nice.”
Garcia’s statements, viewed in the light most favorable to Villagran, indicate at most that
he was treated differently. However, Villagran was required to prove he was treated
differently in comparison to similarly situated employees. See Resendiz, 642 S.W.3d at
173. “Employees are similarly situated if their circumstances are comparable in all
material respects, including similar standards, supervisors, and conduct.” Ysleta Indep.
Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (footnote omitted). “Though
their circumstances need not be ‘identical,’ they must be ‘nearly identical.’ . . . Employees
with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary
records are not considered to be ‘nearly identical.’” Flores, 612 S.W.3d at 312.
Furthermore, “[t]o prove discrimination based on disparate discipline, the disciplined and
undisciplined employees’ misconduct must be of ‘comparable seriousness.’” Monarrez,
177 S.W.3d at 917. (quoting McDonnell Douglas, 411 U.S. at 804). Precise equivalence
in culpability is not required, but a plaintiff must usually show that the misconduct for which
he was discharged was nearly identical to the conduct engaged in by an employee whom
the company retained. Id. at 917–18.
As mentioned above, the only evidence before us on appeal is that which STC
attached to its combined motion for summary judgment. Villagran produced no evidence
whatsoever—including any evidence of similarly situated employees. We have found no
evidence in the record to support a conclusion that Villagran was treated differently or
17
less favorably than employees similarly situated to him. Accordingly, we conclude that
Villagran failed to meet his burden to establish a prima facie case of national origin
discrimination. See Resendiz, 642 S.W.3d at 173. Therefore, the trial court erred by
denying summary judgment on Villagran’s national origin discrimination claim. See
Flores, 612 S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782; Rincones, 520 S.W.3d at
585 (concluding the plaintiff’s discrimination claim based on race or national origin claim
failed where plaintiff “offered no proof, not even circumstantial evidence, of even one
similarly situated person who was treated” preferentially). 7
B. Sexual Orientation Discrimination
A prima facie case of discrimination on the basis of sex under the TCHRA requires
Villagran to plead and prove that he: (1) was a member of the protected class; (2) was
qualified for his position; (3) suffered a final, adverse employment action; and (4) was
either (a) replaced by someone outside his protected class or (b) otherwise treated less
favorably than similarly situated employees. See Resendiz, 642 S.W.3d at 173.
The United States Supreme Court held that homosexuality may form the basis of
a sex discrimination claim. Bostock v. Clayton County, Ga., 590 U.S. 644, 660–61 (2020).
The Court reiterated Title VII’s “simple but momentous” message: “An individual
employee’s sex is ‘not relevant to the selection, evaluation, or compensation of
employees.’” Id. at 660 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989)
7 Because we have concluded that Villagran failed to establish a prima facie case for his national
origin discrimination claim, we decline to address STC’s arguments that Villagran was not qualified for his
position or that there was no evidence to establish that its “legitimate, non-discriminatory reason for
Villagran’s termination was pretextual or that national origin . . . was a motivating factor in the termination.”
See TEX. R. APP. P. 47.1 (requiring appellate court to hand down written opinion disposing of every issue
necessary to final disposition of appeal).
18
(plurality op.)). “If the employer intentionally relies in part on an individual employee’s sex
when deciding to discharge the employee—put differently, if changing the employee’s sex
would have yielded a different choice by the employer—a statutory violation has
occurred.” Id. at 659–60. The Court explicitly held that “[w]hen an employer fires an
employee for being homosexual . . . , it necessarily intentionally discriminates against that
individual [in part] because of sex.” Id. at 646. (emphasis added). In addition, the Court
held that “the plaintiff’s sex need not be the sole or primary cause of the employer’s
adverse action.” Id. Observing that firing an employee because he is homosexual
encompasses “two causal factors . . . —both the individual’s sex and something else (the
sex to which the individual is attracted or with which the individual identifies),” the Court
nonetheless resolved that employers may not be insulated from liability simply because
their employees reframe sex discrimination in different terms. Id. at 661; see also Olivarez
v. T-Mobile USA, Inc., 997 F.3d 595, 603 (5th Cir. 2021).
Regarding his sexual orientation discrimination claim, the summary judgment
evidence demonstrated that Villagran is a member of a protected class—a homosexual
man. See Bostock, 590 U.S. at 656–62; Resendiz, 642 S.W.3d at 173; see also Burns v.
Intermodal Cartage Co., No. 3:22-CV-00979-E, 2024 WL 1018526, at *12 (N.D. Tex. Mar.
8, 2024) (discussing that the parties did not dispute in their briefs that Burns “was a
member of a protected class—a homosexual man”). The evidence also demonstrated
that Villagran was terminated from his employment, and thus suffered a final, adverse
employment action. See Resendiz, 642 S.W.3d at 173. The evidence further established
that Villagran was replaced by Martinez, a heterosexual woman and therefore a person
outside of his protected class. See id.
19
STC contends that Villagran presented no evidence establishing that he was
qualified for his position. See id. In Bienkowski v. Am. Airlines, the Fifth Circuit Court of
Appeals held that a plaintiff challenging termination or demotion can ordinarily establish
a prima facie case by showing that he continued to possess the necessary qualifications
for his job at the time of the adverse action. 851 F.2d 1503, 1506 (5th Cir. 1988). The
court noted that this meant that the plaintiff had not suffered physical disability or loss of
a necessary professional license or some other occurrence that rendered him unfit for the
position for which he was hired. Id. at n.3. Under this standard, “[t]he focus is ‘on the
employee’s bare ability to do the work, not the quality of the work done.’” Kaplan v. City
of Sugar Land, 525 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
The summary judgment evidence demonstrates that Villagran held his position for
over ten months, during which he was placed into and participated in a CPIP from April
1, 2019, to June 30, 2019. STC argues that the evidence “established a number of issues
had occurred that rendered Villagran unfit for the position for which he was hired,” and
that “[t]here was also a determination made that Villagran was not able to successfully
provide instruction to meet the job responsibility listed in the Librarian I job description.”
There is no evidence in the record that Villagran was physically incapable of performing
his tasks at the time of termination, and our focus is on Villagran’s “bare ability to do the
work” as opposed to the quality. See id.; Bienkowski, 851 F.2d at 1506. We therefore
conclude that the evidence establishes a prima facie case that Villagran was qualified for
his job at the time he was terminated on July 10, 2019. Accordingly, we conclude the
evidence established a prima facie case of sexual orientation discrimination. See
Resendiz, 642 S.W.3d at 173.
20
However, STC argues that it had a legitimate, nondiscriminatory reason for
terminating Villagran’s employment. See Flores, 612 S.W.3d at 305; Alamo Heights, 544
S.W.3d at 782. We agree. In this case, the evidence demonstrated that Reed received a
memorandum from Campos, Plummer, Walters, and Alvarez, which recommended
Villagran’s termination based on his “failure to successfully complete his . . . CPIP[],
which in part included misrepresenting work products (plagiarism) and other policy
violations,” including “Policy #4001” of the “Code of Professional Ethics for the
Administration, Faculty and Staff,” as well as “Policy #4901” of the “Standards of
Conduct.” On the same day, Reed signed and authored a letter addressed to Villagran,
informing him that his employment was terminated with STC effective July 10, 2019, after
she considered “documentary evidence” and the recommendation of termination by
Campos, Plummer, Walters, and Alvarez. We conclude that this evidence proves as a
matter of law that STC had a legitimate, nondiscriminatory reason for Villagran’s
termination. See Flores, 612 S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782.
STC further argues that Villagran presented no evidence to establish that its
legitimate, nondiscriminatory reason for terminating his employment was a pretext to
sexual orientation discrimination. See Flores, 612 S.W.3d at 305. To raise a fact issue on
the pretext element of a discrimination claim, the employee must present evidence
“indicating that the non[]discriminatory reason given by the employer is false or not
credible, and that the real reason for the employment action was unlawful discrimination.”
Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (internal quotation omitted). “A plaintiff can avoid summary
judgment if the evidence, taken as a whole, creates a fact issue ‘as to whether each of
21
the employer’s stated reasons was not what actually motivated the employer and creates
a reasonable inference’” that the employer acted with the intent to discriminate. Id.; see
also Little v. Tex. Dep’t of Crim. Just., 177 S.W.3d 624, 632 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied) (“[T]he United States Supreme Court has made it clear that it is
not sufficient merely to show that the employer’s reasons are false or not credible; the
plaintiff must prove that the employer discriminated intentionally.”). “An employee’s
subjective belief that his employer has given a false reason for the employment decision
is not competent summary judgment evidence.” Chandler, 376 S.W.3d at 814.
In his brief, Villagran states that the record “is replete with evidence of pretext,”
and argues that “STC’s allegations of plagiarism are patently false,” pointing to his own
deposition testimony. We note that in his deposition testimony, Villagran did not expressly
state that he did not commit acts of plagiarism. Rather, Villagran stated that he was
accused by Alvaraz, Hollenbeck, and Walters of committing plagiarism when he
submitted an essay that lacked parenthetical citations. Regarding that essay, Villagran
explained the following:
That essay, . . . I had two formats. The only thing is that—because my
computer saved two formats at home. I also felt—I was kind of dizzy, so I
submitted the wrong one without the—the—the citations when I had the
other one with the citations. So I had two different versions, and I submitted
the one with—with the one without the citations be—and the other one I did
submit it. And I did mention that to them.
The above testimony is not evidence that Villagran did not commit acts of plagiarism. At
most, the testimony merely constitutes Villagran’s explanation as to why he was accused
of plagiarism. Villagran’s conclusory contentions that “STC’s accusations of plagiarism
are patently false” are insufficient to create a fact issue as to pretext . See Raoger Corp.
22
v. Myers, 711 S.W.3d 206, 213 (Tex. 2025) (“Speculative and conclusory testimony, by
experts and lay witnesses alike, is incompetent and cannot support or defeat summary
judgment.”); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (“[T]estimony comprised
only of legal conclusions is insufficient to support summary judgment as a matter of law.”);
see also McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 760 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (“McNeel’s subjective interpretation of the rules, or her
disagreement over whether she violated them, is not sufficient to create a fact issue that
[the employer’s] stated reason was pretextual.”); Wawarosky v. Fast Grp. Hous. Inc., No.
01-13-00466-CV, 2015 WL 730819, at *8 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015,
no pet.) (mem. op.) (employee’s assertion that his conduct did not violate company policy
“fail[ed] to raise a fact issue regarding [supervisor’s] belief that [employee] violated the
policy”); Nash v. Blood & Tissue Ctr. of Cent. Tex., No. 03-03-00763-CV, 2004 WL
2900483, at *6 (Tex. App.—Austin Dec. 16, 2004, no pet.) (mem. op.) (“Nash does not
deny that he conducted an unauthorized background check on Benites; he only asserts
that such conduct did not constitute a violation of [the employer’s] policy. His claim does
not provide a scintilla of evidence to overcome [the employer’s] legitimate reasons for
Nash’s termination.”).
Villagran next argues that the evidence showed that his performance improved
during his CPIP. An employee may show that the employer’s reason is a mere pretext “by
revealing weaknesses, implausibilities, inconsistencies, or contradictions” in the
evidence. Tex. Dep’t of Transp. v. Flores, 576 S.W.3d 782, 794 (Tex. App.—El Paso
2019, pet. denied). For example, when an employer points to an employee’s poor
performance as a reason for an adverse employment decision, contradictory evidence
23
that an employer is satisfied with an employee’s work performance can serve as evidence
of pretext. See Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 915 (Tex. App.—
Fort Worth 2018, pet. denied). Regarding his contention, Villagran suggests that he
“testified that he was improving after the additional training he received in the [CPIP].”
However, we have not found any such statements in Villagran’s deposition testimony.
Villagran also suggests that there was evidence by which STC “confirmed” his
improvement, citing Navarro’s report. Portions of said report contain summaries of
statements Alvarez made to Navarro during an interview for his investigation, including
that Villagran “showed minimal improvement, failed the [CPIP] plan, and was
recommended for termination.” Regarding the recommendation for his termination, the
report noted that “Villagran did not successfully meet the three areas of improvement that
were issued in his CPIP: presentation skills, developing liaison skills, and improving
writing skills.” The report also stated that “Campos informed [Villagran] that due to the
lack of performance and failure to improve during the CPIP, he was being recommended
for termination.” We do not conclude that Navarro’s report constitutes evidence that STC
was satisfied with Villagran’s work performance such that it serves as evidence of pretext.
See Burnett, 552 S.W.3d at 915. Villagran points to no other evidence demonstrating that
STC was satisfied with his work performance, and we have found none.
Villagran also contends that “[t]argeting an employee for extra work, scrutiny or
other harassment has also been found to be permissible pretext evidence,” and again
relies on his own deposition testimony for support. We first note that Villagran stated in
his deposition testimony that he discussed his sexual orientation with “[n]obody” at STC,
he knew of no one at STC that knew of his sexual orientation, and he was unaware of
24
anyone at STC that had a similar sexual orientation as himself. We also note that Villagran
did not expressly testify that STC’s legitimate, nondiscriminatory reason for his
termination was pretextual. Instead, Villagran testified to various acts by Alvarez and
Martinez which he failed to “link” to his protective class or his termination. 8 See Hudgens
v. Univ. of Tex. MD Anderson Cancer Ctr., 615 S.W.3d 634, 647 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (holding that the appellant’s deposition testimony did not link
his manager’s alleged discriminatory comment to the appellant’s protected age group or
his termination). At most, Villagran’s deposition testimony constitutes nothing more than
his own subjective beliefs or feelings of sexual orientation-related animus, which is
insufficient to defeat summary judgment in this context. See Alamo Heights, 544 S.W.3d
at 773 (speculation and subjective beliefs not probative of improper conduct or
discriminatory animus); Hudgens, 615 S.W.3d at 647; Chandler, 376 S.W.3d at 814; see
also Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 841–42 (7th Cir.
1996) (“[I]f the subjective beliefs of plaintiffs in employment discrimination cases could,
8 Villagran testified in his deposition that he “felt like [Alvarez] would attack” him, that she “wouldn’t
verbally say things, but . . . would kind of be[] dismissive.” He stated that she would make time for other
employees but not him. Villagran also testified that he felt Alvarez discriminated against him because when
he would discuss his library instruction ratings with her, she would only tell him “Oh, that’s good” and nothing
more about it. Villagran expressed that Alvarez “wouldn’t want to bother with [him],” and that she “wasn’t
that involved as a supervisor.” When asked if Alvarez had “said anything to [him] or to anyone that . . . [he]
felt was discriminatory,” Villagran responded, “I felt—I know that I felt with—not so much through words,
but I felt it through, like gestures, through eye contact.” Villagran also testified that Alvarez made him “feel
sometimes uncomfortable,” that he would “feel as if . . . she didn’t even want to get near [him] at times.”
Villagran further stated that he “felt [Alvarez] spen[t] more time with the wom[e]n,” that she “would spend a
great . . . amount of time talking to [Martinez] on the reference desk,” and that he “felt . . . [those
conversations] probably w[ere]n’t work related, or it could[ have] been work related, but then it could also
be a conversation[] as well about something else.” Villagran also testified that Martinez, who later replaced
him, discriminated against him with respect to his sexual orientation because she asked him about why he
combed his hair the way he did, that she touched his hair, head, and the back of his neck with her hand.
Villagran also stated that in another incident, Martinez was “rude” by “invading [his] space” when she stood
“very close” to him while he worked on a computer at a cubicle.
25
by themselves, create genuine issues of material fact, then virtually all defense motions
for summary judgment in such cases would be doomed.”). We conclude that the summary
judgment evidence does not offer more than a scintilla of probative evidence that STC’s
legitimate reasons for Villagran’s termination were pretextual. See Flores, 612 S.W.3d at
305; Chapman, 118 S.W.3d at 751. Accordingly, the trial court erred in denying summary
judgment on Villagran’s sexual orientation discrimination claim. See Flores, 612 S.W.3d
at 305.
C. Hostile Work Environment
A prima facie case of a hostile work environment requires Villagran to prove that:
(1) he belongs to a protected group; (2) he was subjected to “unwelcome harassment”;
(3) the harassment was based on the protected characteristic; (4) the harassment
affected a term, condition, or privilege of employment; and (5) STC knew or should have
known of the harassment in question and failed to take prompt remedial action. See
Anderson v. Hous. Cmty. Coll. Sys., 458 S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.]
2015, no pet.); Bartosh v. Sam Hous. State Univ., 259 S.W.3d 317, 325 n.14 (Tex. App.—
Texarkana 2008, pet. denied); see also Chau v. Harlingen Med. Ctr., No. 13-15-00115-
CV, 2016 WL 1072619, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 17, 2016, pet.
denied) (mem. op.).
STC argues that no evidence established the second, fourth, and fifth elements of
Villagran’s hostile work environment claim. In a footnote in his brief, Villagran states that
he “is not proceeding on his . . . hostile environment . . . claim[], and agrees th[is] claim[]
should not proceed. Therefore, [Villagran] does not intend to brief th[is] issue[] unless
directed by the Court of Appeals.” We construe Villagran’s statement to mean that he
26
concedes the arguments asserted by STC.
We agree with STC regarding the fifth element of Villagran’s hostile work
environment claim. Villagran testified in his deposition regarding various complained-of
acts and behaviors by Alvarez and Martinez. However, Villagran indicated in his
deposition that he did not report the complained-of conduct to anyone at STC. Thus, we
agree with STC that nothing in the record establishes that STC knew or should have
known of the alleged harassment in question and failed to take prompt remedial action.
See Anderson, 458 S.W.3d at 646; see also Fossil Grp., 691 S.W.3d at 881–86
(concluding that there was no evidence that any “appropriate persons” within Fossil knew
or should have known about harassing conduct before the appellee sent an email in
response to an in-store company survey by which the appellee stated she felt she was
being sexually harassed). Having reviewed the evidence in the light most favorable to
Villagran, we conclude that Villagran has not established a prima facie case with respect
to his hostile work environment claim. 9 See Tamez, 206 S.W.3d at 582; Anderson, 458
S.W.3d at 646; Bartosh, 259 S.W.3d at 324. Therefore, the trial court erred by denying
summary judgment on this claim. See Flores, 612 S.W.3d at 305; Alamo Heights, 544
S.W.3d at 782.
D. Retaliation
A prima facie case of retaliation requires Villagran to show (1) he engaged in an
activity protected by the TCHRA, (2) he experienced a material adverse employment
action, and (3) a causal link exists between the protected activity and the adverse action.
9 We decline to address STC’s other arguments regarding whether Villagran established a prima
facie case for his hostile work environment claim. See TEX. R. APP. P. 47.1.
27
See Lara, 625 S.W.3d at 58.
STC argues that no evidence established the first and third elements of Villagran’s
retaliation claim. See id. In a footnote in his brief, Villagran states that “[a]lthough [his]
petition makes . . . retaliation . . . . claims . . . , [he] is not proceeding on those claims and
does not intend to brief those issues unless directed by the Court of Appeals.” Thus,
Villagran has provided no responsive argument regarding this issue. Again, we construe
his statement to mean that he concedes the issue.
The activities protected by the statute under TCHRA are: (1) “oppos[ing] a
discriminatory practice”; (2) “mak[ing] or fil[ing] a charge”; (3) “fil[ing] a complaint”; or
(4) “testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding,
or hearing.” TEX. LAB. CODE ANN. § 21.055. “[T]o invoke the protections of [§] 21.055, the
conduct relied on by the employee ‘must, at a minimum, alert the employer to the
employee’s reasonable belief that unlawful discrimination is at issue.’” Lara, 625 S.W.3d
at 59 (quoting Alamo Heights, 544 S.W.3d at 786). “[A]lthough ‘[m]agic words’ are not
required to invoke the TCHRA’s anti-retaliation protection, complaining only of
‘harassment,’ ‘hostile environment,’ ‘discrimination,’ or ‘bullying’ is not enough.” Id.
(quoting Alamo Heights, 544 S.W.3d at 786–87).
Villagran alleged in his petition “he was wrongfully and illegally retaliated against
following his opposition and complaint of discrimination, and filing of a charge of
discrimination.” It is unclear what protected activity Villagran is claiming to have engaged
in to support his retaliation claim. To the extent that he engaged in a protected activity by
“fil[ing] a complaint” with TWC, there is nothing in the record indicating that STC was
made aware that Villagran was claiming “unlawful discrimination” on the basis of national
28
origin and sexual orientation. See Lara, 625 S.W.3d at 59 (noting that “complaining only
of ‘harassment’” or “discrimination” is “not enough” to show a protected activity). We have
found no evidence indicating that STC or any of its employees were ever alerted that
Villagran was alleging discrimination under the TCHRA prior to the time he was
terminated. Having reviewed the evidence in the light most favorable to Villagran, we
conclude he failed to meet his burden to show a prima facie case of retaliation under the
TCHRA. See Lara, 625 S.W.3d at 58; Tamez, 206 S.W.3d at 582. The trial court therefore
erred in denying STC’s summary judgment motion as to that claim. 10 See Flores, 612
S.W.3d at 305; Alamo Heights, 544 S.W.3d at 782.
IV. CONCLUSION
We reverse the trial court’s order denying STC’s combined traditional and no-
evidence motion for summary judgment and render judgment dismissing all of Villagran’s
claims for want of jurisdiction.
CLARISSA SILVA
Justice
Delivered and filed on the
8th day of January, 2026.
10 Because we have effectively concluded that the trial court erred in denying STC’s combined
traditional and no-evidence motion for summary judgment as to all of the claims raised by Villagran’s
petition, we decline to address STC’s seventh issue arguing that the trial court erred in denying its motion
on the issue of punitive damages. See TEX. R. APP. P. 47.1.
29
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