### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00088- CV

Barbara J. Booker, Appellant

v. City of Austin , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0175 7, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

After she was termi n at ed midway throug h the probationar y period that aspirants
must succ essfully complete befor e they can become full-fledg ed City of Austin ( City ) firef ighte rs, Ba rbar a J onell Booke r sued the City under the Texas Commi ssion on Human Rights Act (TCHRA),

asser ting theories of rac ial and g ender discrimination and reta liation. The City moved for summary judgme nt, seeking dismiss al of all of Booke r’s claims

. The district court g rante d the motion in full and rende red judgme nt dismiss ing all of Booke r’s claims. Booke r appea ls, contending that the district court err ed in g ranting summary judgme nt as to liability theories not addre ssed in the City ’s motion and t h at s he prese nted summary -judg ment evidenc e raising fac t issues as to all theories that the City ’s motion did addre ss. I n addition to responding to Booke r’s issues, the City asser ts that Booke r fa iled to exhaust administ rative r emedies w ith respec t to many of her claims and theor ies. We will affirm the district cour t’s judgme nt.BACK GR OUND

AF D’s hiring & training p roce sses

By all acc ounts, the job of a firef ighte r with the City of Aus t i n’s Fire Depa rtment (AF D) can require perf

ormanc e of phy sically , mentally , and intellectually demanding tasks with competenc e, eff

iciency , and levelhea dedness amid pressure -pac ked and perilous situations. Citi ng the nee d to ensure its per sonnel are capa ble of mee ting suc h demands, AF D has imposed rig orous proce sses for se lecting and tra ining pr ospective f irefig hters. At all rele vant times, the fi rst step in becoming an AFD firef ighte r was to g ain admission to the AFD Fire Aca demy

. This entailed a competitive application proce ss that included taking a written test, passing a phy sical skills test called the CPAT (Candidate Phy sical Ability Test), underg oing a psy cholog ical examinatio n , an d co mpleting an interview befor e a revie w board

or panel. Fr om the pool of applicants who succe ssfully completed this testing and interview proce ss, the top-ranking official wi t h i n AF D, known as the “F ire Chief,” would selec t candida tes for hire for admission to the Fi re Acade my . I f selected, a new hire, known as a “fire cadet,” would spend approximately six months at the aca demy rec eiving instruction and evalua tion, throug h both

aca demic and phy sical exercises, reg arding numerous firef ighting and medical tasks and skills. To
g radua te from the Fire Aca demy , a cade t was ordinarily require d to achie ve ce rt i fi ca tion as a firef ighte r from the Texas C o m m i s sion on Fire Protection, become cer tified as an emer g ency medical technicia

n (EMT), and pass ad ditional skills testing that AFD require d bey ond the minimum state standar ds.

Ass uming that a fire cade t made it throug h the aca demy —and not all cade ts did—there would follow a probationar y period that, like the Fire Aca demy , was roug hly six months

2in du ra t i o n . During this period, the “proba tionary firef ighte r” (“PF F” ) would obtain hands-on experience working in A FD “oper ations”—basica lly the division that responds to f ire, resc ue, and medical emer g encie s from fire stations located around the city , in the manner commonly associate d with the job of a firef

ighte r—and would be evalua ted on his or her perf ormanc e. When not busy on such “ca lls,” PFFs wer e also require d to underg o further t raining and evalua tion on both written examinations and prac tical skills that overla pped or reinfor ced to some ext en t t h ei r prior Fire Aca demy instruction. This course of instruction and evalua tion was structure d into a succe ssion of monthly “modules.” At the conclusion of the modules, the PFF would underg o a final round of skills t esting

. PFFs who succe ssfully completed this proce ss could then be hired as full-time, fullfledg ed AF D fire fig hters who e njoy ed, among other benef its, the protec tions of civil se rvice laws. Whil e still P FFs o r ca dets, howeve r, they rema ined at-will employ ees. The Fire Chief had the sole and ultimate authority to fire or reta in a cade t or PFF. The Fire Chief who hired Booke r—and, likewise, ultimately

fired he r—wa s Gary

Warren, a

n AFD veter an of ove r thirty y ear s who serve d
roug hly seven y ear s as chief

befor e re signing eff

ective January

2005. During Warren’ s tenure as Fire Chief, he endea vored to reme dy a histori ca l underr epre sentation of women and rac ial minorities in the AFD ranks throug h means that included

a recruiting initiative known as “Pass the Torch,” a series of promotional and informational
events that encour ag ed women and rac ial minorities to pursue car eer s as AFD firef ighte rs. Warren
persona lly attended many of these events and encour ag ed participa nts to ap p l y for admission to the AFD Fire Aca demy

. I t was as a result of Warren’ s eff orts to incre ase rac ial and g ender diversity within AFD that a

ppellant B ooker c ame to see k employ ment there

.

3AF D re cruits Booker Bo o ker, who is an Afric an-A merica n woman, was persua ded to attend o n e o f Chief Warren’ s “Pass the Torch” events by an AFD rec ruiter who exercised at the same g y m that she did. Although Booke r’s previous jobs had consisted of office work (she had been employ ed at Dell befor e getting laid off in 2001, then at a mortgag e company , and thereaf ter at a homebuilder), s he

was encour ag ed by various AFD personne l to apply for employ ment—includin g, ac co rdi ng to Booke r, Chief Warr en himself. She ultimately did so. Booke r passed the written test for admission to the Fire Aca demy as well as the CPAT, underw ent the psy cholog ical evalua tion, and went befor e an interview panel. Following her interview, the panel rec ommended to Chief Warren that Booke r be hired for admission to the

aca demy

. As a final step in the hiring proce ss, Warren ran a criminal backg round chec k on Booke r. The bac k gro u n d chec k reve aled a criminal conviction that Booke r had failed to disclose on her application despite being asked. Whil e Warren indicated t h at such an omission would have ordinarily led him not to hire Booke r, he investiga ted the matter further , deter mined that Booke r had not been “ intentionally

dishonest” in failing to disclose her c onviction, and hire d her a ny way . 1
Warren was awa

re at the time he hired Booke r that she was both Afric an-A merica n and fema le. By this point in AFD ’s history , there wer e a few dozen A frica n-Amer ican firef

ighte rs in the depar

tment’s ranks, as well as a few dozen women firef ighte rs, numbers sufficie ntly larg e that

eac h g roup had f

ormed its own org anization to provide support or f ellowship for its members, the Austin Afric an-A merica

n Fire fig hters Association (AAA FF A) and the Austin Women Fire fig hters

I n his aff idavit, Warren explained that “af ter I made some inquiries, I lear ned that Booke r 1 had attempted to g et the criminal conviction expunged and that it would have been expunged but for her f ailure to file a

document.” 4(AWF), respe ctively

. Howeve r, there had been scant few AFD firef ighte rs who wer e both Afric anAmeric an and f

emale. I n fac t, othe r than Booke r, there was only one such f

irefig hter then se rving in the AFD , a vete ran of

over twe nty -five y ear s.

Booker enter s the F ire Ac adem y

Booke r enter ed the AFD Fire Ac ad em y as part of Class 108, which beg an in Marc h 2004. Class 108 was initially comprised o f approximately twenty cade ts, roug hly split betwee n a “blue” team and a “re d” team, with Booke r assig ned to th e l att er. To summarize the
events that followed, Booker’s perf ormanc e on both aca demic and phy sical skills exercises and evalua tions cause d her to be broug ht up for revie w at least three times by the Fire Aca demy ’s “Cade t Over sight C o m m i t tee,” a g roup comprised of the team leade rs and office rs in char g e of the

aca demy that would meet ever y two wee ks to discuss the cade ts’ prog ress. This committee included

a fema le firef

ighte r who had been on the interview panel that had rec ommended Booke r favor ably for hire , L isa Watts, the “tea m leader ” for

Booke r’s re d team. 2
On the first episode when Booke r’s p e r f o r ma n c e w a s b r o u g h t up for revie w, the Cadet Over sight Commi ttee, including Watts, voted to reta in Booke r even while rec ommending the termination of another fire cade t who was Ang lo and fe m al e. Ho weve r, on its second revie w of Booke r’s perf

ormanc e, which o cc u rr ed in late J uly 2004, the committee rec ommended to AFD h i gh er m anage ment that Booke r be terminated, citing “continuous difficulties with the aca demi c portions of the aca demy ,” her failure to pass eig ht of 24 prac tical s k i l l s t es t s , and her inability to

By the time of Booke r’s suit, Watt s h ad m ar ried and chang ed her surname to “Watts- 2 Madolora.” Be cause she was known by Watts at the time of the underly ing events, we ref

er to he r by that name f

or cla rity

. 5pass one of the skills tests—the “throw- bag ” test, which evalua ted a swift-wa ter resc ue skill—even

on rete sting. This rec ommendation was forwa rded t o a “De partment Review Boa rd” comprised of repr esenta tives of AFD upper manag ement that included Chi ef W arren’s chief of staff, Assistant Chief J im Evans. Some members of the Depa rt m en t R eview Boa

rd voted to terminate Booke r, althoug h Evans did not. After considering the views of the Depa rtment Review Bo ard members and the written rec ommendation from the Cadet Over sight Commi tte e, C h i ef Warren decide d that Booke r should be reta ined at the Fire Aca demy , g iven another chanc e to complete the throw-ba g skill, and counseled a bout her pe rfor

mance . Subsequently , in September 2004, as Class 108 was concluding its training at the Fire Aca demy , th e C ad et Over sight Commi ttee made a second rec ommendation—unanimously —that Booke r be terminated. The written rec ommendation emphasized the committee’s belief that “Cade t Booke r is not competent to be place d at a fire station,” and cited (1) Booke r’s failure to pass a third and fourth rete st of the throw-ba g test, despite having been g iven a “re mediation plan

. . . that allowed further prac tice time, both supervised by Swift Water ins t ru ctors and Tea m L eade rs and unsupervised by

taking a throw ba g home”; (2) Booke r’s failure of a second aca demic test despite having been “counse led sever al times f or aca demic perf

ormanc e”; (3) Booke r’s failure of an A FD Final P erformanc e Skill Test that consisted of six randomly selec ted skills on which Booke r had been previously tested and had passed, which the committee found “notewor thy due to the fac t that Cadet Booke r, afte r approximately four months of fire training had signific ant difficulty with the essential function of connec ting an eng ine to a hy drant” ; and (4) Booke r’s failure to score above 70 in three of four emer g ency medical technicia n (EMT) written assessments. The committee further observe d:

6Cadet Booke r appea rs to have difficu l t y reta ining the information lear ned during the Aca demy

. Th i s i s evident throug h the prac tical examples cited and aca demic perf ormanc e on written tests. Tea m L eade rs have spent many hours with Cadet Booke r prac ticing multipl e skills, as evid ence d throug h the Tea m L eade r notes, but this cade t had not been able to demonstrate rete ntion of knowledg e and skills nor the ability to competently perf orm jo b -r elated tasks require d of a firef ighte r rea dy for Ope rations. The Austin Fire Depa

rtment Training Aca demy has a fix ed amount of time to prepa re an individual to become an Austin Fire fig hter. The requis i t e s kills, knowledg e, and abilities are substantial, but most t h at b egi n the aca demy are able to lear n and develop into a competent, and capa ble Fire fig hter in the time a llotted. The amount of additional assistance Cadet Booke r has rec eived from all are as h as not been sufficient to produce the product we desire, a competent Austin Fire fig hter. Aca demy personne l have doc umented numer ous perf ormanc e counse ling se ssions, from the Tea

m L eade r up throug h the Prog ram Manag er. Whil e her at t i t u d e an d effo rt [are] g ood, there has been no corr esponding positive incre ase in ability , application, or understanding

. Wit h skills, Cadet Booke r has been descr ibed as able to ‘mimic’ s omeone else in order to pass, but when asked t o apply the i nformation by descr ibing why something is done, chang e the testing situation, or incorporate multipl e skills that a fireg round demands, the cade t is often at a loss. The ability of Cadet Booke r to simply pass a skill is often depend[e]nt upon many additional hours of pra ctice, r epetition, and instruction. The Cadet Ov er s i g ht Commi ttee members have consulted numerous times with the Tea m L eade rs an d concur with the belief that Cadet Booke r has had ample opportunity to chang e and improve, but has not, and is not rea dy for Oper ations and should not be relea sed.

This time, the Depa

rtment Review Boa

rd unanimously ag ree d with the committee’s rec ommendation that Booke r be te rminated.

Chief Warren, howeve r, reje cted the unanimous rec ommendations that Booke r be terminated. I nstead, Warren decide d to permit Booke r to g radua te the Fire Aca demy with the other

rema ining membe rs of Class 108 and be assig ned to Oper ations as a PFF . Warren la ter e x plained his rea soning in an aff

idavit he provi d ed in support of the City ’s summary -judg ment motion, “Althou gh I believed that Booke r should have been able to competently perf orm these skills [t he

7throw-ba g skill and “the basic ta sk of hooking a hose to a hy drant” ] and pass her a cade mic tests, I believed at the time that she should be g iven an opportunity to g raduat e fr o m t h e Aca demy and

succe ed or fail as a PFF.” He added, “I felt if Booke r continued to train, she could lear n those skills and bec ome a suc cessf

ul firef ighte r.”

Booker as a P F F

Following g radua ti o n fr om the Fire Aca demy , newly minted PFFs wer e ordinarily assig ned randomly to a fire station that had staffing room to acc ommodate them, wher e they would complete their probationar y periods. Howeve r, the top cade t g radua tes wer e g iven the privileg e of choosing the fire station to which t h ey would be assig ned. I n the case of Booke r, howeve r, Chief Warren, in consul tation with Assistant Chief Evans, depar ted from the normal prac tice and assig ned Booke r to a station spe cifica lly selec ted for her—station 23, on the “A” shift. I n his 3 aff idavit, Warren e x plained his rea soning a s follows:

I n rea ching my decision to reta in Booke r and allow her to gra d u ate from the Aca demy , I also wanted t o en sure that she had the best opportunity to succe ed as a PFF.

. . . I wanted Booke r to g o to a s t at i o n wher e I knew she would rec eive excellent training and have the best chanc e to succe ed. After discussing the options with Assistant Chief Evans, I concluded that Station 23, A shift, would be the best opportunity for Booke r of the stations with opening s for P FFs

. I rea ched this decision beca

use I believed that L t. Bic knell, the o ff i ce r at Station 23, would trea t Booke r fai rl y . Station 23 had another fema le fire fig hter, L iz For sy th Donelson who could help mentor Booke r, an d C aptain [C hris] Watson, the Captain for the station, had a re putation in AFD f or being an excellent trainer

. Station 23 also had a moderate volum e of calls wit h a good mi x of fire an d m ed i ca l calls. This meant that Booke r would have the opportunity to train and practice her skill s in the field. I also knew that the Ba ttalion Chief, Hank L aCail l e, wa s an experience d and

Evidently AFD opera tions we re staffe d by rotating shifts of firef ighte rs working 24-hour 3 periods on-duty , followed by 48 hours off- duty

. The “A” desig nation signifie d the shift’s place in the rotation. 8profe ssional firef ighte r who would g ive Booke r the opportunity to succe ed as a PFF. Finally , I considere d the fac t tha t Station 23 had an EMS unit in the same building

. I believed that if Booke r strug g led with her medical skills, she would be able to work [wit h] EMS to improve those skills.
During the ensuing months, Chief Warren rec eived “per iodic updates” on Booke r’s perf ormanc e from Assistant Chief Evans and fro m R an dy Templeton, Booke r’s Division Chief. Meanw hile, Captain Watson, who assumed primary responsibility for Booke r’s training , g ener ated extensive documentation ref lecting persistent and sever e perf ormanc e defic ien ci es. Watson also

v i deotape d some of Booke r’s training exercises. To summarize, Watson’s acc ounts continued t o echo themes that had appea red in the Cadet Over sight Commi ttee’s termination rec ommendations, inclu d i n g continued difficulty of Booker in perf orming and remembering how t o perf orm various firef ighte r tasks, as well as err ors in judg ment (e.g ., endang ering a patient by improperly opera ting

a stretche r, improperly using alcohol wipes when trea ting a patient with cuts). Warren also repor ted that Booke r m anife sted signs of mental or emotional difficulties, i ncluding at l east one episode at a station when she was he ard e x claiming about her training exercises in her

sleep. 4
Acc ording to Chief Warren, “I lear n ed that Booke r continued to strug g le with basic fire and medical skills,” had rec eived “unsatisfa ctory perf ormanc e rating s at the conclusion of her first and second modu l es ,” and “did not exhibi t signs of improving betwee n her first and second module.” I n Dec ember , Warren was advised that L aCaille, Booke r’s Ba ttalion Chief, had rec ommended h e r te r mi n a ti o n . A fter revie wing Booke r’s perf ormanc e, Warren convene d a Probationar

y Fire fig hter re view boar d to consider the termination re commendation. The revie w

Be cause firef

ighte rs assig ned to Oper ations worke d 24-hour shifts, it was not unusual for 4 them to catch oc casiona l sleep whe n not otherwise oc cupied. 9board met on J anuar y 6, 2005, afte r whi ch Warren rec eived written rec ommendations from Assistant Chief Evans, Division Chief Templeton, and Battalion Chief L aCaille. Both Evans and
L aCaille rec ommended termination. Although Templeton ag ree d that Booke r had failed to master basic firef ighting skills, he favor ed g iving her further opportunity to improve and be revie wed ag ain
two wee ks befor e the e nd of her probationar

y period. Booke r met with Chief Warren the next day , J anuar y 7, 2005. Booke r agreed that she had exh i b i t ed perf

ormanc e problems but complained that Station 23 was not a “g ood fit” for her, that she rec eived littl e support from her other team m em b er s , an d that Captain Watson had

seeme d to w ant her

to f ail. After the meeting , Chief Warren informed Booke r that he had decide d
to te rminate her employ

ment, eff ective immediately

. Acc ording to Warren, he terminated Booke r beca use “despite completing the Fire Aca demy and three months of the PFF prog ram, she could not competently p er fo rm sever al basic fire and medical skills,” “she had not met AFD standards in the P FF prog ram,” and “she had not exhibi ted s ufficie nt signs of im p ro v em en t over the course of her tenure in A FD.” Warren conclude d that “if B ooker r emained in the PFF prog ram, she posed a potential safe ty

risk to herself

and other s—including me mbers of the public.”

Booker sues On May 11, 2005, Booke r filed a char g e of discrimination ag ainst AFD with t h e Civil Rights Division of the Texas Workforce Commi ssion and the Equal Employ ment Opportunity Commi ssion. See Tex. L ab. Code Ann. §§ 21.201-. 2 0 2 (W est 2006). She asser ted that she had 5

I n the absenc e of materia l intervening substantive chang es, we will cite the curr ent versions 5 of statutes for

convenie nce. 10been discriminated ag ainst beca use of her rac e and g ender , in violation of the TCHRA. See id

. § 21.051(a) (West 2006). Booke r amende d her charge o n November 22, 2005. I n her amende d char g e, Booke r added a new t h eo ry t h at she had been discriminated ag ainst as reta liation “for opposing and repor

ting discriminatory actions towards me.” See id

. § 21.055 (West 2006). On both her orig inal and amende d char g e, Booke r indicated, in the box marke d “Da te Discrimination Took Pla ce,” that both the ear liest and latest date on which the complained of conduct took place was J anuar y 7, 2005, the date of

her te rmination. Subsequently , afte r Booke r rec eived a rig ht-to-sue notice, see id

. § 2 1.252 (West 2006), she timely filed suit ag ainst the City in district court, asserting claims that would be authorized under the TCHRA. See id

. § 21.254 (West 2006); see also Prairie View A& M Univ. v. C hatha , 381 S.W .3d 500, 513 (Tex. 2012) (obser ving tha t the TC HRA eff ects a limit ed waiver of sovere ign immunit y as to the claims it authorizes); Mission Consol. Inde p. Sch. Dist. v

. Garcia , 372 S.W .3d 629, 636 (Tex. 2012) (re cog nizi ng that TCHRA simil arly waives g overnme n tal immunit y ). Booke r alleg ed that the City had violated the TCHRA throug h rac e- and g ender -base d job discrimination, rac e- and g ender -base d “hostile work environment,” and reta liation. See Tex. L ab. Code Ann. § 21.051( a), .055. The City moved for summary judgme nt dismi ssing a ll of Booke r’s c laims, asserting both “traditional” a nd no-evide nce gr ounds. The dist rict court gr anted the City ’s motion in full wit hout specify ing the g rounds on which it re lied. This appea l followed.

ANALYSIS Booke r bring s seven issues on ap p ea l ch alleng ing the g rounds on which the district court could have relied in g ranting summary judgme nt. Her first three issues challeng e the
summary -judg ment g rounds addre ssed to her theories of rac e- and g ender -base d job discrimination,
11her fourth and fifth issues challeng e the g rounds rela ting to her reta liation theory , and her six th issue

challeng es t he sum mary judgme nt as t o her hostil e-w ork -e n v i ro nment theory

. I n her seventh and final i s s u e, Booke r asserts that the di strict court erre d in g ranting summary judgme nt as t o claims predic ated on discriminatory or reta liatory conduct oth er t han her termination beca use, Booke r insists , the City

did not address those theor ies of liability in its m otion.
I n addition to responding to Booke r’s issues, the City bring s a cross-point urg ing that Booke r did not timely

exhaust the administrative remedie s that were prer equisites to her a ssertion of her r e ta li a

ti o n claim. The City simil arly arg ues that Booke r exhausted her administrative reme dies solely as to a char g e of

job discrimination in her ultimate termination, as opposed to any actions that
prec eded it. Be cause the City ’s contentions lo gi ca l l y p recede Booke r’s appellate issues, we will addre ss them first.

Exhau stion of

rem edies T o bring a suit for unlawful employ ment prac tices under the TCHRA, a plaint i ff

m u st have first filed an administrative complaint “not later than the 180th day afte r the date t h e alleg ed unlawful employ

ment prac tice occur

red.” Id

. § 21.202(a)

. When filing suit, the plaintiff

m ay ra i se only the specific issue made in the employ ee’ s administrative complaint and any kind of discrimination like or re lated to the cha rg e’s a lleg ations. University of Tex. v. Poindexte r , 306 S.W .3d 798, 807 (Tex. App.—Austin 2009, no pet.). As t h e Texas Supreme Court rec ently confirme d, compliance with the TCHRA’s exhaustion-of-re medies require ment is a mandatory and jurisdictional prer equisite to the act’ s waiver of immunit y . See Chatha , 381 S.W .3d at 510-14; accord Poindexte r , 306 S

. W

. 3d at 808-13 (re versing and dismiss ing, for want of subject-matter jurisdiction, TCHRA job-discrimination and reta liation suit ag ainst g overnme ntal entity for failure
12to exha u s t reme dies); see also Rusk State Hosp. v. Black , 55 Tex. Sup. J

. 1320, 1323-26,

2012 WL 3800218, at *4-6 (Tex. Aug

. 31, 2012) (sover eign o r g overnme ntal immunit y is jurisdictional barrie r to suit and thus may be ra ised for the first time on appea l). Booke r filed her initial char g e of discrimination on May 11, 2005. I n th e section of the char g e form titled “Cause of Discrimination Ba sed on . . . ,” Booke r chec ked the box ed titled “ra ce,” “sex,” and “other ,” specify ing as to th e l at t er , “T chr Act.” Booke r did not chec k the box titled “Retaliation.” I n the narr ative section of the char g e form titled “P articulars,” Booke r stated that she was discharg ed on or about J anuar y 7, 2005 and that “I believe that I was discriminated ag ainst beca use of my Race (B lack) and Sex (F emale) in violation of the [TC HRA].” She elabor ated that she “believe [d] that I was single d out and trea ted differ ently than three (3) Whit e Male F irefig hter[s] ” in re g ard to the conseque nces of defic ient perf ormanc e and in be ing r equire d
to “per form m o n t h l y m o dule testing on skill perf ormanc es.” I n other words, Booke r complained of disparate -treatment job discrimination based on rac e and gen der. See, e.g. , Poindexte r , 306 S.W .3d at 804 n.1. She g ave no indication in her char g e that she was complaining of reta liation. To the contra

ry , she conspicuously omit t ed s u ch an alleg ation even wher e the form prompted her to provide it.

As Boo k e r a c k

n o w le d g e s , th e ti mi n g o f h e r initial char g e of discrimination means that only unlawful employ

ment prac tices by the City alleg edly o cc u rr i n g on or afte r November 12, 2004—the 180t h day befor e she filed her char g e—could be actionable. See Tex. L ab. C ode Ann. § 21.202(a)

. This outer window corr esponds to a point in time afte r Booke r had completed the Fire Aca demy and beg un her PFF training , roug hly around the time when she beg an receivi ng neg ative evalua tions on her first module. Howeve r, in the box on the char ge fo rm titled “Da te

13Discri mination Took Place,” Booke r indicated that both the ear liest and last date on which the

complained- of discrimination occur red was J anuar

y 7, 2005, the date of her termination. L ikewise, she did not chec k the box i ndicating “Continuing Ac tion.”

I n her subsequent amende d char g e, filed on November 23, 2005—long afte r the 180th day afte r she was terminated fr om AFD —Booke r, for the first time, chec ked “Retaliation” under “Cause of Discrimination” and added narr ative alleg ations reg arding such a theory

. She also revised her alleg ations conce rning job discrimination to the eff ect that her ability to s u cc ee d as

a firef ighte r had been impe d ed , co m p ar ed to the three white male firef ighte rs, by being “for ced
to chang e st ations” m ore freque ntly , being g iven “mult iple ‘mentors’ who wo u l d gi ve conflicting instructions,” being “hel d acc ountable for [her] perf ormanc e” on monthly module tests “whe rea s, the wh i t e m al es we re g iven all six months [of probation] to prac tice

. . . befor e being held

acc ountable,” and i n not being “g iven t he benefit of constructive corr ective action.” However, as with her initial charg e, Booke r indicated that J anuar y 7, 2005—the date of her termination—was both the ear liest and latest date on w hich the complaine d-of discr imination had occur red.
I n its cross-poi n t, the City arg ues that Booke r failed to exhaust her administrative

reme dies with respe ct to her r etaliation theory beca use she failed to raise it in her init ial char g e of discrimination and beca

use the amende d char g e in which she finally raised it was untimely

. Booke r responds that her reta liation char g e “re lates back” to the date of her initial char g e. Under the “r el at i o n back” doctrine, an “ame ndment to a complaint alleg ing additional fac ts that constitut e unlawful emp l o y

ment prac tices rela ting to or arising from the subject matter of the orig inal complaint rela tes back to the date the complaint was first rec eived

. . . .” Id. § 21.201(f) ; Poindexte r , 306 S.W .3d at 809. But in Poindexte r , as the City emphasizes, we held that an amende d char g e that

14added a complaint of reta liation om i t ted from an initial char g e that alleg ed only rac e-ba sed

job discrimination did not “re late back” to the orig inal char g e beca use reta liation i s a differ ent leg al theory

. See Poindexte r , 306 S.W .3d at 809 (citing Manning v. Chevron Chem. Co. , 332 F.3d 874, 878 (5t h Cir. 2003); Simms v. Oklahoma , 165 F.3d 1321, 1327 (10th Cir. 1999); Davis

v. Education Serv. Ctr. , 62 S.W .3d 890, 894 (Tex. App.—Texarkana 2001, no pet.)). The fac ts here 6

are materia lly identical to those in Poindexte r

— Bo o k er fi led a timely initial char g e alleg ing only

rac e- and g ender -ba s ed disparate -treatment discrimination, then tried to add a reta liation theory throug h an amende d char g e filed bey ond the 180-day deadline. As in Poindexte r , the “re lation back” doctrine cannot save Booke r’s untimely administrative char g e of reta liation. See id

. Consequently , Booke r has failed to exh aust her administrative reme dies with respe ct to her reta liation theory and that theory is, thus, jurisdictionally barr ed. Ac co rd i n gly , we sustain the City ’s cross-point and overr ule Booke r’s fourth and fi ft h i s s u es, as well as her seventh issue as it perta ins to her
reta liation theory

.

T h e City further asser

ts that Booke r simil arly failed to exhaust her administrative

reme dies as to any alleg ed adver se employ ment action other than those o cc u rring on J anuar y 7, 2005—i.e

. , Booke r’s termination—the date Booke r identified in both her initial and amende d char g e

Be cause the TCHRA is intended in part to “execut[e] the policies of Title VI I of the 6 Civil Rights Act of 1964 and its subsequent amend m en t s,” Tex. L ab. Code Ann. § 21.001(1) (West 2006); see Cooper v. W al-Mart Transp., LLC , 662 F. Supp. 2d 757, 772 (S .D. Tex. 2009); see also 42 U.S.C.A. § 2000e-2( a)( 1) (West 2012), and “to corr elate state l aw with fede ral law in em p l o y

ment discrimination case s,” Y sleta Indep. Sch. Dist. v. Monarrez , 177 S.W .3d 915, 917 (Tex. 2005) (per curia m) (quoting W al-Mart Stores, Inc

. v. Canchola , 121 S.W .3d 735, 739 (Tex. 2003)), Tex as courts consider fede ral law when construing and apply ing para llel provisions of the Act. Id. ; Canchola , 121 S.W .3d at 739; Quantum Chem. Corp. v. Toennies , 47 S.W .3d 473, 476 (Tex. 2001); M.D. Anderson Hosp. & Tumor Ins t

. v. W i llrich , 28 S.W .3d 22, 24 (Tex. 2000) (per curia m); but cf. Prairie V i ew A & M Un iv. v. Chatha , 381 S.W .3d 500, 507-09 (Tex. 2012) (re cog nizi ng that TCHRA does not trac k fede ral lawin ever y respe ct). 15as both the beg inning and end date of the discrimination of which she was complaining

. We ag ree .

I f Booke r intended to complain of other actions or ser i es of actions prior to that time, “then she was s t at u torily require d to specify the date (and meet the separ ate 180-day filing deadline) of

eac h discrete event.” Id. at 808 (citing Tex. L ab. Code Ann. § 21.201(c) (2); National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 1 1 3 (2 0 0 2 )). She failed to do so in either her initial or amende d char g e. Consequently , Booke r’s c laims pr edica ted on alleg ed actions prior to he r January 7, 2005 termination are jurisdictionally barr ed. These holdings eff

ectively narr ow the rang e of Booke r’s appellate issues that rema in live or viable solely to her first three issues, which challeng e the district court’s summary judgme nt

on her theories of rac e- and g ender -base d job discrimination, and only to the extent these theories complain of disparate -trea tment discrimination in her ultimate termination. We turn to those issues now, and ove rrule he r other r emaining issues.

Job-discrim ination theorie s Stan dard of rev iew We revie w the district court’s summary judgme nt de novo. Valence Operating Co.

v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Kn ott , 128 S.W .3d 211, 215 (Tex. 2003). Summary judgme nt is proper when there are no disputed issues of materia l fac t and the movant is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a (c) ; Knott , 128 S.W .3d at 215-16. When review ing a summary judgme nt, we take as true a ll evidence favor able to the non-movant, and we indulge ever y rea sonable inferenc e and resolve any doubt in the non-movant’s f

avor. Valence Operating Co. , 164 S.W .3d at 661; Knott , 128 S.W .3d at 215.

16T h e Ci ty ’ s summary -judg ment motion invo k e d b o th th e “ tr a d it io n a l” a n d n o - e v id e n c e standards. Under the no-evide nce summary -judg ment standard, the movant may challeng e whether there i s ev i d en ce o f o ne or more essential elements of a claim or defe nse on which the adver se party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Fort W orth Osteopathic Hosp., Inc. v. Ree

se , 148 S.W .3d 94, 99 (Tex. 2004). To overc ome a no-e v i d ence summary judgme nt g round, the non-movant has the burden of prese nting summary -judg ment evidenc e raising

a g enuine issue of materia l fac t on the challeng ed elements. Tex. R. Civ. P. 166a(i); Ford Motor Co.

v. Ridgway , 135 S.W .3d 598, 600 (Tex. 2004). A no-evide nce summary judgme nt will be sustained when: (1) there is a complete absenc e of evidenc e of a vital fac t; (2) the court is ba rre d by rules of law or of evidenc e from g iving weig ht to the on ly evidenc e offe red to prove a vital fac t; (3) the evidenc e offe red to prove a vital fac t is no more than a scintilla; or (4) t h e ev i d en ce conclusively establishes the opposite of a vital fac t. City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005); King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 751 (Tex. 2003). More than a scintilla of supporting evidenc e exis ts if the evidenc e would allow rea sonable and fair- min d ed p eople to differ in their conclusions. K

i n g R a n ch , 118 S.W .3d at 751. “L ess than a scintilla of evidenc e exis ts when the evidenc e is ‘so we ak as t o do no more than cre ate a mere surmise or suspicion’ of a fac t.” Id

. (quoting Kindred v. Con/Chem, Inc ., 650 S.W .2d 61, 63 (Tex. 1983)).

Under the traditional summary -judg ment standard, in contra st, the movant has the initial burden of conclusively neg ating at least one essential element of a claim or defe nse on which the non-movant has the burden of proof or conclusively establishing eac h ele m en t o f a claim

o r defe nse on which the movant had the burden of proof. See Tex. R. Civ. P. 166a(c ); Scien ce Spectrum, I

nc. v. M artinez , 941 S.W .2d 910, 911 (Tex. 1997). Once the m ovant has done so, and

17only if it does, the burden shifts to the non-movant to produce evidenc e cre ating a g enuine issue of

materia l fac t as to the challeng ed element or elements in order to defe at the summary judgme nt. See W alker v . Harris , 924 S.W .2d 375, 377 (Tex. 1996).

Where, as here , the trial court does not specify its basis for g rantin g summary judgme nt, the judgme nt must be aff irmed if any of the g rounds asser ted in the motion has merit. See Star-Telegram, Inc . v. Doe , 915 S.W .2d 471, 473 (Tex. 1995).
Procedural fram ework As noted, Booke r exhau s t ed her administrative reme dies only as to her theories of

rac e- or g ender -base d disparate -treatment discrimination in her termination. To obtai n relief for such “disparate-tre atment” discrimination, proof and finding of a discriminatory motive is require d. See, e.g. , Poindexte r , 3 0 6 S.W .3d at 804 n.1 (quoting Pache co v. Mineta , 448 F.3d 783, 787 (5th Cir. 2006) (citing International Bhd. of Teams t er s v. United States , 431 U.S. 324, 335 n. 15 (1 977)))

. I n the absenc e of direc t evidenc e of discriminatory motive, Booke r had the b u rd en o f establishing discriminatory motive circ umstantially

. To do so “[i] n discrimination c ases that have
not been fully tried on the merits,” as here , “we apply the burden- shifting analy s i s es t ab l i s h ed by
t he United States Supreme Court.” W al-Mart Stores, Inc. v. Canchola , 121 S.W .3d 735, 7 3 9 (Tex. 2003) (per curia m); see Ree ves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142-43 (2000); McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 802-03 (1973). As this analy sis is applied to the circ umstances here , Booke r had the init i al burden to prese nt a prima fac ie case of discrimination throug h evidenc e that: (1) she is a member of a class protec ted by the Act; (2) she

was qualified for the position she held; (3) she suffe red an “adve rse employ ment action” (her e, being terminated) ; and (4) she was trea ted less favor ably that “similarly s i t uated” persons outside

18the protec ted class. See Auto Zone v. Rey es , 272 S.W .3d 588, 592 (Tex. 2008) (per curia m) (citing 7
Y sleta Indep. S

ch

. Di s t

. v. Monarrez , 177 S.W .3d 915, 917 (Tex. 2005) (per curia m); Ree ves , 530 U.S. at 142). I f she succe eded, a leg al presumption of unlawful discriminatio n ar o s e. See Mission Consol. Indep. Sch. Dist. , 372 S.W .3d at 634. The conce pt underly ing the prima fac ie

case require ment is that evidenc e of the fac tual elements in themselves “ra ise[] an infere nce of discrimination

. . . beca

use we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible fac tors.” Furnco Constr. Corp. v. W aters , 438 U.S. 567, 577 (1978).

I f Booke r met her prima fac ie burden, the burden shifted to the Ci t y t o “a rt i culate

some leg itimate, nondiscriminatory rea son” for t rea ting her differ ently than “similarly situated”
persons outside t h e p ro t ec t ed class. See McD onnell Douglas , 411 U.S. at 802; Furnco , 438 U.S.
at 577-78. The “employ er’ s burden is satisfied if he simply explains what he has done” or produce s “evide nce of leg itimate nondiscriminatory rea sons.” Board of Trs. of Keene State Coll. v. Sweene y , 439 U.S. 24, 25 n.2 (1978) (interna l quotations omitted). I f the C i t y ar ticulated a leg itimate, nondiscriminatory rea son, the presumption of discrimination is rebutted, and the focus would shift
to the ultimate issue of whether the City acte d with impermissible discriminatory motives in trea ting Booke r differ ently than “similarly situated” persons outside the protec ted class. See M.D. Anderson Hosp. & Tumor I

nst. v. W illri ch , 28 S.W .3d 22, 24 (Tex. 2000) (per curia m). The ultimate bur den

Booke r does not asse rt that she wa s replac ed by a per son outside her prote cted class; the 7 conseque nce of her termination was simply that one few er member of Class 108 was ultimately hired as a full-time AFD firef

ighte r. Compare Mission Consol. Indep. Sch. Dist. v

. Garcia , 372 S.W .3d 6 2 9 , 6 4 2 (T ex. 2012) (discussing prima fac ie case elements in suit alleg ing ag e discrimination i n terminating and repla cing employ ee) with Y sleta Indep. Sch. Dist. , 177 S.W .3d at 917 (suit alleg ing disparate trea tment in termination for disciplinary rea sons). 19of proof on this issue rema ins with Booke r, and she could overc ome summary judgme nt in two way s.

First, she could raise a fac t issue as to whether the City ’s proff ere d rea son for trea ting her differ ently

was untrue and a mere prete x t for discrimination. See Rachid v. Jack in the Box , 376 F.3d 305, 312 (5t h Cir. 2004). Alterna tively , even if Booke r could not raise a fac t issue as to prete x t, she could raise a fac t i s s u e t h at h er protec ted char acte ristic was still “a motivating fac tor” for her disparate
trea tment. See id

. I n that event, the City could preva il on summary judgme nt by proving as a matter of law that it would have taken the adver se employ ment action ag ainst Boo k er even without
any impermissible motive. Id .; Quantum Chem. Corp. v. Toennies , 47 S.W .3d 473, 476 (Tex. 2001) (citing Price W

aterhouse v. H

opkins , 490 U.S. 228, 244-45 (1989))

.

Sum m ary-judgm ent groun ds The City asser

ted traditional summary -judg ment g rounds that, as a matter of law, it “did not take any adver se employ ment action ag ainst [Booker] beca use of her rac e or sex.” The City als o asser

ted that its summary -judg ment evidenc e conclusively established that (1) i t h ad a leg itimate, non-discriminatory rea son for termi n at ing Booke r—Chief Warren’ s conclusion that Booke r’s job per formanc e had be en unsatisfa ctory , that she had not shown signs of improvement, and that her inability to consi stently perf orm even basic firef

ighting and medical skills posed a signific ant risk of harm to herse lf and others—(2) this rea son was not prete x tual, (3) it did not have

a “mix ed motive,” and (4) it “would have terminated [Booker] reg ardle ss of any improper motive.” The City asser

ted a no-evide nce g round challeng ing whether Booke r could prese nt any evidenc e “to establish a prima fac ie case of rac e or g ender discrimination , ” t h at the City ’s leg itimate, nondiscriminatory rea son for terminating Booke r was prete x tual, or that Booke r’s rac e or g ender wer e “motivating f

actor s” in her te rmination.
20I n connec tion with the ul timate issues of pre text and motive, the City relied in pa

rt

on the principle that wher e, as here , the same decisionmake r makes the decision both to hire and fire

an empl o y ee who is a member of a protec ted class, “an infere nce arises that

. . . discrimination is
not the motive behind [t he employ ee’ s] termination.” Brown v. C.S.C. Logic, Inc. , 82 F.3d 651, 658 (5th Cir. 1996).

I n Booke r’s first issue, she challeng es the summary judgme nt to the extent it was based on her inability to raise a fac t issue as to the prima fac ie case require ment. The City conce des that (1) Booke r was a member of two protec ted classes (she is both Afric an-A merica n and fema le); (2) Booke r was minimally qu al i fi ed to be a PFF (inasmuch as Chief Warren had allowed her to
g radua te from the Fi re Ac ad emy ); and (3) Booke r’s termination was an actionable “adve rse employ ment action.” Booke r also insists that additional “other discriminatory conduct” prior to her termination is either independe ntly actionable or was not challeng ed as a potential basis for liability in the City ’s summary -judg ment motion. This “other discriminatory conduct” consists primarily of alleg ed actions Booke r at tributes to Captain Watson or Assistant Chief Evans and repr esents

an understanda

ble attempt t o shift our analy tical focus awa

y from the actions and motives of Chief Warren and the implications of the same-a ctor infere nce. Booke r has not d i s p u ted that Chief Gar y Warren was the ultimate decisionmake r in reg ard to her employ ment—including making
t h e d ecision to terminate her—a nd that he also hired her with awa rene ss that she was a woman

an d an Afric an-A merica n. Consequently , an infere nce arises that Warren did not act wi t h a discriminatory motive in either hiring Booke r or in any subsequent actions. See id. , 82 F.3d at 658. Booke r has made no serious attempt to rebut this inferenc e with respe ct to Warren’ s individual,

21persona l motives for his own conduct. I nstead, she attempts on appea l to rec ast her suit as about 8 Watson’s and Evans’s alleg ed actions leading up to her termination by W arren. Howeve r, as we have explained, Booke r did not exhaust her admi n i s t ra t i ve reme dies with respe ct to such pretermination ac ts, and they are not actionable in a

ny event. 9

I f any thing, Booke r’s proof further confirms Warren’ s non-discriminatory motives. This 8 evidenc e includes, e.g ., an email from one of Booke r’s supporters in the women firef ighte r’s g roup conce rning criticism that he rec eived following his decision to permit Booke r to g rad u at e t he Fire Aca demy despite her perf ormanc e defic iencies and enter AFD Oper ations. She observe d that Chief Warren “has done more for diversity and safe ty than any other chief we ever had and beca use of that his job is on the line. His only mistake is being too nice !” No r d o es Booker dispute that Warren strove to incre ase diversity at AFD and repe atedly overr ode his staff’ s rec ommendations to terminate B ooker muc h ear lier than she ultimately was. Booke r complains of the following alleg ed conduct that she attributes primarily to Evans 9 or Watson:

• she was non-ra

ndomly “assig n[e d ] to a st ation that would neg atively [a] ffe ct her ability to lear n the re quired skills and pass the tests”;

• she was assig ned to Captain Watson, who, acc ording to Booke r, “ha[d] a reputa tion for and history of discrimination ag ainst female firef ighte rs”;

• she wa s “[p] rovided c onflicting instructions reg arding require d skills”;

• she wa s “[n] ot provided the same assistance as a w hite male PFF ”;

• she was “har assed about her psy cholog ical/emotional fitness for the position by being made to fee l unqualified/inadequa te ca using he r nig htmares” ;

• she was “held a ccounta ble for not passing modules even though there was no require ment that modules be passe d befor e moving on to the next m odule”;

• she was “[d] enied a transfe r to another office and otherwise her complaint of discrimination and har assment wer e ig nored” ;

• the depar

tment included “[f]alse neg ative wri t e u p s” in her probationar y file in order to justify terminating her;

22Consequently , t o o v er come the City ’s summary -judg ment motion as to the

prima facie case require ment for her j ob discrimination claim, Booker was require d to raise a fac t issue as to whether she was trea ted less favo ra b l y in reg ard to her termination than a “similarly situated” person outside her protec ted classes. I n rec ent y ear s, the Texas Supreme Court has strong ly emphasized that “similarly situated” in the context of a job-discrimination claim based on disparate discipline entails “situations and conduct of the employ ees in question” that are “‘ne arly identical.’” Auto Zone , 272 S.W .3d at 593-94 (quoting Y sleta Indep. Sch. Dist ., 177 S.W .3d at 917-18). “Ne arly identical” situations and conduct excludes “[e]mpl oy ees with differ ent responsibilities, supervisors,
capa biliti es, work rule violations, or disciplinary rec ords.” Id. at 594 (citing Y sleta Indep. Sch. Dist ., 177 S.W .3d at 9 1 7 ). S i m ilarly , “[t] he si tuations and conduct of employ ees is not near ly identical ‘whe n the differ ence betwee n the plaintiff’s conduct and that of those alleg ed to be simil arly situated acc ounts for the differ ence in trea tment rec eived from the employ er.’ ” Id. (quoting W allace

v. Methodist Hosp. Sys. , 271 F.3d 212, 221 (5th Cir. 2001)). Fur thermore , the question of whether

• she was the first PFF “eve r to be assig ned to an EMS unit during probation and the only one ever to be so assig ned for

four shifts in a row .” Howeve r, “adve rse employ ment actions” that are actionable in a job-discrimination claim “‘inc lude only ultimate employ

ment dec i s i o n s , such as hiring , g ranting leave , discharg ing, promoting, or compensating.’ ” Mc C oy v. City of Shreve port , 492 F.3d 551, 559 (5th Cir. 2007) (per curiam) (quoting Gree n v. Administrators of Tulane Educ. Fund , 284 F.3d 642, 657 (5th Cir. 2002)). None of B ooker’ s asserte d “other discriminatory

conduct” rise to this level. Fur thermore , contra

ry to Bo o k er’s arg uments, the City ’s summary -judg ment motion encompa ssed a challeng e to whether Booke r’s “other discriminatory conduct” amounted to “adve rse employ ment actions” that could be a basis for liability

. The City ’s motion asser ted that the evidenc e co n clusively establishes that it did not take any “adve rse employ ment action” ag ainst Bo o k er (other than terminating her) and that she h ad n o ev i d ence to raise a prima fac ie case of rac e or g ender d i s cr i mination. Thus, even leaving aside Booke r’s exhaustion-of-re medies problems, the district court proper ly g rante d summary judgme nt as t o Bo oker’ s job-discrimination theories predic ated on “ other discr iminatory conduct.” 23one or more employ ees are “similarly situated” should be considere d “fr om the perspe ctive of their

employ er at the time of the rele vant employ ment decisions.” Perez v. Texas Dep’ t of Crim. Justice , 395 F.3d 206, 210 ( 5th Cir. 2004).

Although Booke r’s administrative char g e of discrimination identified three white PFFs as rele vant “similarly situated” compar ators to her, on appea l she sug g ests that it was enoug h that she was “simil ar ly situated” to all other PFFs and that the other PFFs wer e not allowed
to complete the entirety of their six -month probationar y period and wer e not terminated. This is
contra ry to Auto Zone and Y

sleta , which require much more. Nor does Booke r seriously dispute on appea l that her perf

ormanc e issues, at least as convey ed to and v i ew ed from Chief Warren’ s perspe ctive, distinguished her quite neg atively among her fellow PFFs and fire cade ts and acc ounted for any differ ential trea tment. See Auto Zone , 272 S.W .3d at 594. Booke r essentially acknow ledg es

a s much, observing that “[i] f one wer e to revie w [C aptain Watson’s rec ords of Booke r’s perf o r ma n c e as a PF F] . . . Booke r’s pe rfor mance would appea

r dismal and per

haps worthy

of cr iticism.”
I nstead, Booke r ag ain attempts to shift the focus awa y from Chief Warren’ s actions and motives to those of Ass i s t an t C h i ef Evans and Captain Watson by urg ing that the evidenc e raises a fac t issue as to whether Watson or others “fa bricated” repor

ts of her poor perf

ormanc e. Booke r insists that the exis tence of these asser ted fac t issues reg arding whether she perf o r med poorly distinguishes her case from case s like Auto Zone and Y sleta , which, i n Bo o k er’ s view, involved undisputed alleg ations of employ ee misconduct, and rende r analy sis unde r the “similarly situated” rubric inapplicable and inappropria te. I n es sence , Booke r contends that the City ’s arg uments

co ncer ning her poor perf

ormanc e must instead be analy zed under the rubric of prete x t or mi x ed

24motive. I n that reg ard, Booke r arg ues in her second issue that she raised fac t issues as to whether 1 0 the City ’s proff

ere d rea sons for terminating her wer e prete x tual and as to whether discrimination was

a motivating fac tor in her termination. Relatedly , in her third issue, Booke r asser ts that the evidenc e raises a fac t issue as to whether Warren’ s termination decision was influence d by th e d is c r iminatorily motivated actions of Evans, Watson, or others to the extent that their motives must be imputed
to Warren’ s ultimate termination decision. See Roberson v. All tel Info. Servs. , 373 F.3d 647, 653 (5th Cir. 2004) (“I f the employ ee can demonstrat e that others had influence or lever ag e over the officia l decisionmake r, and thus wer e not ordinary co-w orker s, i t i s proper to impute their discriminatory attitudes to the formal decisionmake r.”) ; see also Staub v. Proctor Hosp. , 131 S. Ct. 1186, 1194 (2011).

Wh et her viewed under the rubric of whether Booke r was “similarly situated” to other PFFs or the issue of whether her termination was a prete x t for or otherwise motivated by discriminatory animus that can be char g ed to the City , we conclude that the evidenc e falls short of raising a fac t issue that would prec lude summary judgme nt on Booke r’s job-discrimination theories. Although Booke r attempts to dispute some of the details of the perf ormanc e defi ci en ci es and lapses in judgme nt that Watson repor ted, Bo o k er ’s poor-pe rfor mance issues wer e acknow ledg ed widely by others in AFD , including L isa Watts, fellow female fi ref ighte rs, and Afric an-A merica n fi re fi gh t ers who wer e among her supporters, and were deposed in this case —and even by Booker herse lf. During her deposition, Booke r acknow ledg ed that, despite extensive prac tice and retra ining by AFD perso n n el , s h e h ad continued difficulties both at the Fire Aca demy and during her PFF

Booke r does not dispute that the City ’s summary -judg ment proof that she was terminated 1 0 for poor perf

ormance m et i t s b urden of articula ting a leg itimate nondiscriminatory rea son for her termination, shifting the burden ba ck to her to establish pretext or mix ed motive. 25training in attaching fire hoses to hy drants and fire trucks, and in rec og nizi ng and utiliz ing hand tools

proper ly

. She likewise acknow ledg ed that she had endang ere d a patient by improperly opera ting a stretche r, had improperly used alcohol wipes when trea ting a patient with cuts, and had failed numerous acade mic and practica l skills tests at bot h the Aca demy and in her PFF training. When confr onted with her neg ative evalua tions during her final revie w board meeting on J anuar y 6, 2005, Booke r admitted conc eding that “I have ha d my

strug g les.” To survive summary judgme nt, Booke r was require d to presen t some evidenc e that she did not perf

orm poorly

. See Ajao v. Bed Bath & Bey ond In c. , 2 6 5 F. App’x 258, 263 (5th Cir. 2008); Machinc hick v. PB Power, Inc. , 3 9 8 F. 3d 345, 354-55 (5th Cir. 2005). Booke r instead admits that she wa s not perf orming up to AFD ’s standards. Mere subjective beliefs that she had been a victim of discrimination are not sufficie nt to defe at summary judgme nt. See W illri ch , 28 S.W .3d at 2 5 ; Mi r e v. Texas Plumbing Supply C o. , 286 F. App’x 138, 143-44 (5th Cir. 2008); Douglass v. United Servs. Auto. Ass’n , 79 F.3d 1415, 1430 (5th Cir. 1996). Nor is it enoug h to offe r specula tion as to whether AFD ’s motives in terminating her wer e solely her poor perf ormanc e. See W alton v. Bisco Indus. , 119 F.3d 368, 370 ( 5th Cir. 1997).

Booke r has not prese nted evidenc e sufficie n t to support a rea sonable infere nce that she was “similarly situated” to other PFFs not of her protec ted classes in any respe ct relevant
to her job-discrimination claims. See Auto Zone , 272 S.W .3d at 593-94 (quoting Y sleta Indep. Sch. Dist ., 177 S.W .3d at 917-18). Nor did she raise a fac t issue as to prete x t o r d i s criminatory motive in terminating her, to the extent that we would rea ch that issue. See W i l l r i ch , 2 8 S

. W.3d
at 24-25. Thus, the district court proper ly g rante d summary judgme nt on Booke r’s claims for rac e26or g ender -base d job discrimin at i o n . Acc ording ly , we overr ule Booke r’s first issue as it rela tes to her te rmination, as well as he r sec ond and third issues.

CONCLUSION Having overr

uled ea ch of B ooker’ s issues, we af firm the district cour

t’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Mar ch 13, 2013

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