Opinion issued December 30, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-01005-CV

———————————

HARRIS COUNTY, TEXAS, Appellant

V.

KENNETH BANKHEAD, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2012-69289

MEMORANDUM OPINION

Harris County brings this interlocutory appeal challenging the trial court’s 

denial of its plea to the jurisdiction on the employment discrimination claim 
2

brought by Kenneth Bankhead under Chapter 21 of the Labor Code.1 The County 

contends that the court lacked subject matter jurisdiction over Bankhead’s race 

discrimination claim. In a cross-appeal, Bankhead argues that the portion of the 

trial court’s order ruling that he is collaterally estopped from litigating at trial the 

issue of whether he used excessive or unjustified force is in error. We reverse the 

trial court’s order denying the County’s plea to the jurisdiction, render judgment 

granting the plea to the jurisdiction, and dismiss the case for lack of subject matter 

jurisdiction with prejudice.

Background

Bankhead was hired as a detention officer with the Harris County Sheriff’s 

Office (HCSO) in 1991, became a deputy in 1994, and was later promoted to 

sergeant in 2005. In December 2007, Bankhead was assigned to the County’s 

Mental Health Unit and, in 2010, he was transferred to the unit’s housing floor. 

The record reflects that Bankhead consistently received good performance 

evaluations throughout his employment.

On January 26, 2011, Bankhead was instructed to check on inmate Vincent 

Mastroianni after Mastroianni’s mother contacted the HCSO regarding her son’s 

 

1

TEX. LAB. CODE ANN. § 21.051 (West 2006).
3

request for medical attention.2 When Bankhead arrived at Mastroianni’s cellblock, 

a verbal altercation between the men ensued. Bankhead struck Mastroianni in the 

face with his forearm resulting in a laceration above the inmate’s eye that required 

fourteen sutures.3 

In compliance with HCSO policy, Internal Affairs Division (IAD) 

investigator Donald Althouse initiated an investigation of the incident4and 

submitted his report to the Administrative Disciplinary Committee (ADC) for 

review and recommendation.5 Citing “policy violations, unjustified use of force,” 

the ADC recommended termination of Bankhead’s employment and the HCSO 

 

2 Mastroianni’s mother called the sheriff’s office after her son asked to see a dentist 

due to mouth pain but received no response from jail personnel.

3

There is conflicting evidence as to whether the laceration was caused by 

Bankhead’s forearm or whether Matroianni lost his balance and, in doing so, 

struck his face against the wall. 

4 HCSO policy requires that every incident involving use of force against an inmate 

in the jail be documented and reported to the division commander who determines 

whether to initiate an internal investigation. If an investigation is initiated, an IAD

investigator conducts an investigation and presents his report to the Administrative 

Disciplinary Committee (ADC) for review and recommendation. If the ADC finds 

sustained misconduct and/or a violation of policy, it recommends appropriate 

disciplinary action against the employee. The employee may file a written notice 

of appeal to the Sheriff and, if the Sheriff or the Sheriff’s designee upholds the 

disciplinary action, the employee may then file a written notice of appeal with the 

Civil Service Commission. If the Commission upholds the disciplinary action 

against the employee, the employee may proceed with litigation.

5

The Committee at that time consisted of four members: Major Edwin Davis, thenMajor Fred Brown (he subsequently became Chief Deputy), Captain Joe Hughes, 

and Major Ronnie Silvio (now retired). Davis and Brown are African-American 

and Hughes and Silvio are Caucasian. 
4

sent a letter to Bankhead outlining the violations resulting in his termination on 

July 29, 2011. Specifically, the HCSO found that Bankhead had violated Section 

300, Policy #302 (“Professional Conduct Required”), II., subsection E.2; Policy 

#303 (Conduct Prohibited”), I., subsections B, C.7 & 13 and D.14 & 17; Policy 

#305 (“Performance of Duty”), I., subsections C & E; Policy #307 (“Supervisory 

Responsibility”), I., subsection J; and Policy #501 (“Force, Arrest, and 

Detention”), I., subsection A.11 of the HCSO’s policies and regulations. The letter 

also stated that a review of Bankhead’s personnel history revealed that he was 

involved “in an extraordinary amount of use of force incidents within the last three 

(3) years.”6 

The HCSO designee upheld the termination decision, and Bankhead 

appealed his termination to the Civil Service Commission. Following a hearing on 

March 22, 2012, the Commission upheld the HSCO’s decision based on the 

specific policy violations enumerated in the termination letter.7 

On November 21 2012, Bankhead filed suit against the County, alleging race 

discrimination and retaliation under Chapter 21 of the Labor Code. See TEX. LAB.

 

6

The record reflects that Bankhead was involved in eight use-of-force incidents in 

his positon as sergeant, including the incident involving Mastroianni, between 

February 2008 and July 2011, when his employment was terminated.

 

7 We note that on Bankhead’s performance evaluation dated June 19, 2011—six 

months after the January 2011 incident and a little more than a month before the 

July 29, 2011 termination letter—he was evaluated as “above average” in nine of 

the fifteen categories and as “average” in the remaining six categories. 
5

CODE ANN. § 21.051 (West 2006). The County moved for summary judgment and 

the trial court granted the motion on Bankhead’s retaliation claim but denied it as 

to his race discrimination claim. The County subsequently filed a plea to the 

jurisdiction, Bankhead filed a response, and the County supplemented its plea. The 

trial court’s denial of the plea to the jurisdiction precipitated the County perfecting 

this interlocutory appeal. 

Discussion

In its first and second issues, the County contends that the trial court erred in 

denying its plea to the jurisdiction. Specifically, it argues that Bankhead failed to 

present a prima facie case to support his race discrimination claim and, thus, the

trial court lacks subject matter jurisdiction over that claim.

A. Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for 

lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 

(Tex. 2004). The plaintiff has the burden to allege facts that affirmatively 

demonstrate that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus. 

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the 

jurisdiction can be utilized to challenge whether the plaintiff has met his burden of 

alleging jurisdictional facts, but it can also raise a challenge to the existence of 

jurisdictional facts. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 
6

217, 226–27 (Tex. 2004). Pleadings are construed liberally in favor of the pleader, 

and all factual allegations are accepted as true. See id. at 226.

A trial court’s review of a plea to the jurisdiction challenging the existence 

of jurisdictional facts mirrors that of a traditional motion for summary judgment. 

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); 

Miranda, 133 S.W.3d at 228; see TEX. R. CIV. P. 166a(c). The government 

defendant is required to meet the summary judgment standard of proof for its 

assertion that the trial court lacks jurisdiction; once the defendant meets its burden, 

the plaintiff is then required to show that there is a disputed material fact regarding 

the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the evidence creates a fact 

question regarding jurisdiction, the trial court must deny the plea to the jurisdiction 

and leave its resolution to the fact finder. Id. at 227–28. On the other hand, if the 

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, 

the trial court rules on the plea to the jurisdiction as a matter of law. Garcia, 372 

S.W.3d at 635. An appellate court reviewing a challenge to a trial court’s subject 

matter jurisdiction reviews the trial court’s ruling de novo. Miranda, 133 S.W.3d 

at 228.

B. Sovereign Immunity and Chapter 21 of the Labor Code

Sovereign immunity deprives a trial court of jurisdiction over lawsuits in 

which the state or certain governmental units have been sued unless the state 
7

consents to suit. Sykes, 136 S.W.3d at 638. Chapter 21 of the Labor Code

delineates Texas’ limited waiver of sovereign immunity for employment 

discrimination and retaliation claims. See TEX. LAB. CODE ANN. §§ 21.051(1),

21.055 (West 2006) (prohibiting unlawful employment practices by “employer”); 

§ 21.002(8)(D) (defining “employer” to include a county, municipality, state 

agency, or state instrumentality). A plaintiff must plead the elements of his

statutory cause of action, that is, the basic facts comprising a prima facie case, for 

the court to determine if a Chapter 21 violation has been sufficiently alleged. Once 

having done so, the plaintiff is required to submit evidence only if the defendant 

presents evidence negating one of those basic facts. Garcia, 372 S.W.3d at 637

(citing Miranda, 133 S.W.3d at 228).

Texas courts look to federal interpretation of analogous federal statutes for 

guidance because an express purpose of Chapter 21 is to “provide for the execution 

of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent 

amendments.” TEX. LAB. CODE ANN. § 21.001(1) (West 2006); see also NME 

Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Where no direct 

evidence of discrimination is proffered and the plaintiff relies exclusively on 

circumstantial evidence to establish his claim, a burden-shifting framework 

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

Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–26 (1973) is employed 
8

whereby a plaintiff must first establish a prima facie case of discrimination or 

retaliation. Id. at 802, 93 S. Ct. at 1824. Establishment of the prima facie case in 

effect creates a presumption that the employer unlawfully discriminated against the 

employee. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 

1089, 1094 (1981). If the plaintiff is successful, the burden shifts to the employer 

to articulate a legitimate, nondiscriminatory reason for the adverse employment 

action. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001). “The 

offer of a legitimate reason eliminates the presumption of discrimination created by 

the plaintiff’s prima facie showing.” Id. The burden then shifts back to the 

plaintiff to show that the employer’s reason was a pretext for discrimination. 

McDonnell Douglas, 411 U.S. at 807, 93 S. Ct. at 1826–27. Although intermediate 

evidentiary burdens shift back and forth under this framework, the ultimate burden 

of persuading the trier-of-fact that the defendant intentionally discriminated against 

the plaintiff remains at all times with the plaintiff. See Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106 (2000).

C. Race Discrimination

Chapter 21 of the Labor Code provides that it is unlawful for an employer to 

discriminate against an employee with respect to compensation or the terms, 

conditions, or privileges of employment because of race, color, disability, religion, 

sex, national origin, or age. TEX. LAB. CODE ANN. § 21.051. To establish a prima 
9

facie case of race discrimination based on disparate treatment under Chapter 21, a 

plaintiff must show that he was (1) a member of a protected class, (2) qualified for 

the employment position at issue, (3) subject to an adverse employment action, 

which includes termination, and (4) treated less favorably than similarly situated 

members outside of the protected class. Reeves, 530 U.S. at 142, 120 S. Ct. at 

2106; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005).

With regard to the fourth element, “an employee who proffers a fellow 

employee as a comparator [must] demonstrate that the employment actions at issue 

were taken ‘under nearly identical circumstances.’” See Lee v. Kan. City S. Ry. 

Co., 574 F.3d 253, 259–60 (5th Cir. 2009). The Texas Supreme Court has held 

that employees are similarly situated “if their circumstances are comparable in all 

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

Monarrez, 177 S.W.3d at 917. Further, to establish that employees are 

“comparable in all material respects,” a plaintiff must also show “that there were 

no ‘differentiating or mitigating circumstances as would distinguish . . . the 

employer’s treatment of them.’” Ineichen v. Ameritech, 410 F.3d 956, 960–61 (7th 

Cir. 2005) (quoting Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th 

Cir. 2000)); see Edwards v. Grand Casinos of Miss., Inc., 145 F. App’x 946, 948 

n.2 (5th Cir. 2005) (noting that, as to similarly situated requirement, circumstances 

surrounding the compared employees must be “nearly identical”) (citing Wallace v. 
10

Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) and Wyvill v. United Cos. 

Life Ins. Co., 212 F.3d 296, 304–05 (5th Cir. 2000)).

In a disparate discipline case, “the disciplined and undisciplined employees’

misconduct must be of ‘comparable seriousness.’” Monarrez, 177 S.W.3d at 917. 

The Monarrez court noted that although the United States Supreme Court had 

previously held that “precise equivalence in culpability between employees is not 

the ultimate question,” the Fifth Circuit had held that “the plaintiff must usually 

show ‘that the misconduct for which [the employee] was discharged was nearly 

identical to that engaged in by a[n] employee whom [the company] retained.’” Id.

at 917–18 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 

n.11, 96 S. Ct. 2574, 2580 (1976) and Smith v. Wal–Mart Stores, Inc., 891 F.2d 

1177, 1180 (5th Cir. 1990)). “Employees with different responsibilities, 

supervisors, capabilities, work rule violations, or disciplinary records are not 

considered to be ‘nearly identical.’” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 

(Tex. 2008); see also Lee, 574 F.3d at 260 (noting employment actions being 

compared will be deemed to have been taken under nearly identical circumstances 

when employees being compared held same job or responsibilities, shared same 

supervisor or had employment status determined by same person, and have 

essentially comparable violation histories); Okoye v. Univ. of Tex. Hous. Health 

Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001) (holding that comparisons to other 
11

employees not terminated were inapplicable because other employees violated 

different workplace rules and thus were not “nearly identical”); Miller v. Auto. 

Club of New Mexico, Inc., 420 F.3d 1098, 1115 (10th Cir. 2005) (noting that 

employees who hold different job positions are not similarly situated).

D. Analysis 

The County does not dispute that Bankhead has alleged the four elements of 

a race discrimination claim. Rather, it challenges the existence of facts supporting 

the fourth element of his prima facie case—that is, whether there is evidence 

showing that he was treated less favorably than similarly situated members outside 

of the protected class. Specifically, the County asserts that the comparators 

identified by Bankhead are not similarly situated. Bankhead maintains that he has 

presented sufficient evidence to create a fact issue as to the fourth element of his 

race discrimination claim and, thus, the trial court correctly denied the County’s 

plea to the jurisdiction.

Bankhead’s response to the plea identified three Caucasian employees whom 

he contends are similarly situated and engaged in similar conduct but who were not 

terminated or, alternatively, only suspended: John Revelle, William Dickerson, and 

Kevin Gaeke.8

 

8

The County avers in its brief that Bankhead also sought to compare himself to 

three other terminated detention officers—Chris Pool, Chris Taylor, and Joseph 

Jameson. However, as Bankhead did not proffer these individuals as comparators 
12

1. John Revelle

Revelle is a sergeant in the HCSO’s Mental Health Unit whose employment 

history reflects six use of-force reports as sergeant from July 2007 to July 2011. 

The investigations of those incidents concluded that Revelle’s actions were 

consistent with HCSO policy. The one incident in which he was found to have 

used unjustified force and for which he received a letter of counseling occurred in 

2005 when he was a deputy and pertained to improper procedure/use of force when 

drawing his service weapon during a traffic stop. 

Here, Bankhead and Revelle, both sergeants in the mental health unit and 

employees in the detention bureau, were subject to the same “Use of Force Policy.” 

Bankhead’s supervisor at the time of his July 2011 termination was Major Mike 

Smith. The evidence establishes that all sergeants, including Revelle, reported to 

Major Smith through the chain of command for some period of time from 2009 to 

2011. Revelle’s employment history report reflects that his supervisor in 2012 was 

then-Major Fred Brown. Major Brown was one of the three ADC committee 

members who subsequently recommended termination of Bankhead’s 

employment. See Lee, 574 F.3d at 260-61 (finding evidence that ultimate 

decisionmaker as to employees’ continued employment is same individual, even if 

 

in either his response to the County’s plea to the jurisdiction or in his appellee’s 

brief, we do not consider whether these former employees were valid comparators 

for purposes of determining whether Bankhead has established a prima facie case.

 
13

employees do not share immediate supervisor, to be sufficient). The record 

reflects that Bankhead had eight documented use-of-force incidents and Revelle

had six use-of-force incidents in approximately the same three-year period. See 

Lee, 574 F.3d at 261 (noting each employee’s track record need not comprise 

identical number of identical infractions but must instead be comparable). 

However, the most critical factor in evaluating comparator evidence is that 

the plaintiff’s conduct that drew the adverse employment action be “nearly 

identical to that of the proffered comparator who allegedly drew” a dissimilar 

response. Lee, 574 F.3d at 260. The County argues that “Revelle, who committed 

no policy infractions in the jail, is not a valid comparator to Bankhead, who 

deliberately struck a defenseless inmate.” We agree. Revelle’s conduct, for which 

he received a documented letter of counseling, arose from drawing his service 

weapon during a traffic stop, an incident resulting in injury to no one. In contrast, 

the result of Bankhead’s use of force against Mastroianni required fourteen sutures 

above his eye. Moreover, the Revelle incident dates from 2005 when he was still a 

deputy, whereas Bankhead’s incident was during his tenure as sergeant. Because 

the misconduct of these two men are not of comparable seriousness, Revelle is not 

a valid comparator. See AutoZone, Inc., 272 S.W.3d at 594; Monarrez, 177 

S.W.3d at 917.
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2. Kevin Gaeke

Gaeke, a detention officer at the County jail between July 2009 and 

November 2011, was involved in thirteen use-of-force incidents, the last of which 

was classified as a “major” one. An investigation concluded that Gaeke had used 

unjustified excessive force and been untruthful in violation of HCSO policy, for 

which he was suspended without pay for ten days and placed on probation for 180

days. 

Bankhead argues that Gaeke is a proper comparator because (1) both he and 

Gaeke reported to Major Smith, (2) both were found to have resorted to 

unjustifiable force, and (3) two of the majors on the disciplinary panel that 

suspended Gaeke were also on the panel that recommended terminating 

Bankhead’s employment. However, although he worked in detention, Gaeke was 

neither a law enforcement officer nor a sergeant or a supervisor. In contrast, 

Bankhead, a sergeant, was in a supervisory role and was responsible for, among 

other things, training new employees and setting an example in the jail. 

Employees who hold different job positions are not similarly situated. See Grimes 

v. Wal–Mart Stores Tex., L.L.C., 505 F. App’x 376, 379 (5th Cir. 2013)

(concluding plaintiff’s subordinate, who was also manager, not valid comparator); 

see also Crosby v. Computer Sci. Corp., 470 F. App’x 307, 309 (5th Cir. 2012)

(concluding plaintiff’s supervisor not valid comparator); AutoZone, Inc., 272 
15

S.W.3d at 594 (noting employees with different responsibilities are not considered 

to be ‘nearly identical”); see also Villareal v. Del Mar College, No. 13–07–00119–

CV, 2009 WL 781750, at *8 (Tex. App.—Corpus Christi Mar. 26, 2009, pet. 

denied) (mem. op.) (noting employees who hold different job positions are not 

similarly situated). Further, the ADC recommended that Bankhead be terminated 

for “policy violations, unjustified use of force,” and recommended that Gaeke be 

suspended and placed on probation for “excessive use of force, untruthfulness.” 

See Okoye, 245 F.3d at 514 (holding that comparisons to other employees not 

terminated were inapplicable because other employees violated different 

workplace rules and thus were not “nearly identical”). Thus, Gaeke, too, is not a 

valid comparator.

3. William Dickerson

Finally, Bankhead argues that he was treated less favorably than Dickerson, 

whom he alleges is a similarly situated member outside of the protected class. 

Bankhead contends that Dickerson was involved in fourteen use-of-force incidents 

in a three-year period yet was neither terminated nor disciplined.

Dickerson was a jail detention officer promoted to sergeant ten months after 

the January 2011 incident involving Bankhead. Although involved in a number of 

use-of-force incidents, Dickerson was never found to have used unjustified force or 

otherwise violated HCSO policy. Thus, Dickerson’s conduct cannot be considered 
16

“nearly identical” to Bankhead’s conduct in the January 2011 incident. See Lee, 

574 F.3d at 260 (noting most critical factor in evaluating comparator evidence is 

that plaintiff’s conduct that drew adverse employment action be “nearly identical

to that of the proffered comparator who allegedly drew” dissimilar response).

Because Bankhead failed to present sufficient evidence to create a fact issue 

as to whether similarly situated members outside of the protected class were 

treated more favorably than him, the trial court lacked subject matter jurisdiction to 

hear his claim. See Miranda, 133 S.W.3d at 226. We sustain the County’s first 

and second issues.9

Conclusion

We reverse the trial court’s order denying the County’s plea to the 

jurisdiction, render judgment granting the plea to the jurisdiction, and dismiss the 

case for lack of subject matter jurisdiction with prejudice.

Jim Sharp

Justice 

Panel consists of Justices Higley, Bland, and Sharp.

 

9

In light of our disposition of these issues, we do not consider Bankhead’s crossappeal.