Affirm in part; Reverse in part and Remand; Opinion Filed June 3, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-01479-CV

MESQUITE INDEPENDENT SCHOOL DISTRICT, Appellant

V.

TOMASA MENDOZA, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. 11-09131-F

OPINION

Before Justices Lang, Myers, and Evans 

Opinion by Justice Myers

Mesquite Independent School District brings this interlocutory appeal of the trial court’s 

denial of its motion for summary judgment asserting the court lacked jurisdiction to hear Tomasa 

Mendoza’s suit for sex and national-origin discrimination under the Texas Commission on 

Human Rights Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012)

(authorizing interlocutory appeal from grant or denial of plea to jurisdiction by governmental 

unit); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (interlocutory 

appeal may be taken from refusal to dismiss for want of jurisdiction when jurisdictional 

argument is presented in a plea to the jurisdiction or other procedural vehicle including a motion 

for summary judgment); see also TEX. LAB. CODE ANN. § 21.051 (West 2006) (prohibiting 

discrimination by employers). The District brings two issues on appeal asserting the trial court 

erred by denying its motion for summary judgment. We reverse the trial court’s denial of the 
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District’s motion for summary judgment on Mendoza’s claim of sex discrimination, we affirm

the trial court’s denial of summary judgment on Mendoza’s claim of national-origin 

discrimination, and we remand the cause for further proceedings.

BACKGROUND

During the 2010 spring semester, a custodian at one of the District’s schools started a fire 

by placing a mop head in a school dryer. The District then set up a system for dirty mop heads to 

be collected and taken to another location to be safely cleaned. The District sent a memo to the 

schools informing them of the new policy and directing them to instruct their custodians 

accordingly.

Mendoza moved to the United States from Mexico. In 2010, Mendoza was an employee 

of the District and worked as a custodian at McDonald Middle School. On November 9, 2010, 

Mendoza noticed several dirty and smelly mop heads at the school. She washed the mop heads 

and put them in a dryer. The mop heads caught fire in the dryer. When confronted about the 

fire, Mendoza admitted she had put the mop heads in the dryer. The District then terminated her.

The mop heads needed cleaning because Carlos Gudiel, the District employee responsible 

for collecting them and delivering them to the cleaning facility, had not done so. Gudiel received 

a written reprimand for failing to collect the mop heads, but he was not terminated.

Mendoza filed suit against the District on July 25, 2011, alleging the District violated the 

Texas Commission on Human Rights Act by discriminating against her on the basis of her sex 

and national origin by terminating her. See TEX. LAB. CODE ANN. § 21.051(1) (West 2006). The

District moved for summary judgment, asserting governmental immunity from suit. The District 

argued it had not waived its immunity from suit because Mendoza could not establish a 

prima-facie case of sex and national-origin discrimination as she was replaced by a Hispanic 
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woman. The trial court denied the District’s motion for summary judgment on sex and

national-origin discrimination.1

STANDARD OF REVIEW

The District’s two issues assert the trial court erred by denying the District’s motion for 

summary judgment. Our jurisdiction over this appeal, however, is limited to reviewing the 

motion for summary judgment as a plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.014(a)(8). Whether a court has subject-matter jurisdiction is a question of law. Tex. 

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. 

Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to the 

jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 

226. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider 

relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues 

raised. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the 

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue 

must be resolved by the fact finder. Id. at 227–28. If the evidence is undisputed or fails to raise 

a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction 

as a matter of law. Id. at 228.

IMMUNITY FROM SUIT

Governmental entities are immune from suit unless the government has clearly and 

unambiguously waived its immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 311.034 (West 

Supp. 2012); Miranda, 133 S.W.3d at 224. The government waives its immunity from suit under 

 1 Mendoza also contended the District retaliated against her for reporting claims of age and sex discrimination while an employee of the 

District. The trial court granted the District’s motion for summary judgment on the retaliation claim. The order granting that part of the motion 

for summary judgment is not before us in this interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice & Remedies Code.
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the Texas Commission on Human Rights Act when a plaintiff states a claim for conduct that

would violate the Act. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 

2012). 

Section 21.051 of the Act provides that an employer commits an unlawful employment 

practice if the employer refuses to hire, discharges, or otherwise discriminates against an 

employee in connection with compensation or the terms, conditions, or privileges of employment 

because of the employee’s race, color, disability, religion, sex, national origin, or age. LAB. § 

21.051. There are two alternative methods by which a plaintiff may establish a discriminatory 

treatment case. The first is by proving discrimination through direct evidence of what the 

defendant did and said. Garcia, 372 S.W.3d at 634. However, because direct evidence of 

discriminatory motive is usually hard to come by, the courts created a second method, the 

burden-shifting mechanism of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

Garcia, 372 S.W.3d at 634. Under this approach, discrimination is presumed if the plaintiff 

meets an initial burden of establishing a prima-facie case of discrimination.2

 Id. A plaintiff 

proceeding under the McDonnell Douglas approach must meet the requirement of the 

prima-facie case for the trial court to have jurisdiction. Id. at 637. The failure to present the 

elements of a prima-facie case means the trial court has no jurisdiction and the claim must be 

dismissed. Id.

Although a plaintiff must plead facts making up a prima-facie case, the defendant may 

present evidence negating those facts. If the defendant does so, the plaintiff must then present 

evidence in support of the facts. Id. To establish a prima-facie case of employment 

 2 Under the McDonnell Douglas burden-shifting approach, once jurisdiction is established through the plaintiff presenting a prima-facie 

case, the burden shifts to the defendant, who may rebut the presumption of discrimination by presenting evidence of a legitimate, 

nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to prove 

the defendant’s reason was a pretext for a discriminatory decision. Id. at 804. Because our review in this interlocutory appeal is limited to a 

determination of the trial court’s subject-matter jurisdiction, we do not consider any matters beyond whether Mendoza presented a prima-facie 

case of discrimination.
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discrimination, the plaintiff must show (1) she was a member of a protected class, (2) she was 

qualified for her employment position, (3) she was subjected to an adverse employment decision, 

and (4) she was replaced by someone outside of the protected class, or she was treated less 

favorably than similarly situated members of the opposite class. Jespersen v. Sweetwater Ranch 

Apartments, 390 S.W.3d 644, 654 (Tex. App.—Dallas 2012, no pet.); Michael v. City of Dallas, 

314 S.W.3d 687, 690–91 (Tex. App.—Dallas 2010, no pet.).

In this case, Mendoza maintains she established jurisdiction by presenting a prima-facie 

case of employment discrimination. The District asserts Mendoza failed to meet the fourth 

requirement, that she was replaced by someone outside the protected class or that she was treated 

less favorably than similarly situated members of the opposite class.

SEX DISCRIMINATION

In its first issue, the District contends the trial court should have determined it lacked 

jurisdiction over Mendoza’s claim of sex discrimination and dismissed the claim. The District 

asserts Mendoza cannot meet the fourth element of a prima-facie case because she was replaced 

by a woman and Mendoza was not treated less favorably than similarly situated men.

It is undisputed that Mendoza was replaced by a woman, either Nora Castellanos or 

Tammy Burleson. However, Mendoza contends she received disparate treatment in that a 

similarly situated male employee, Gudiel, violated the policy regarding offsite cleaning of mop

heads—he failed to pick up the mop heads to deliver them to the cleaning location—but was not 

terminated. The Texas Supreme Court has discussed the circumstances necessary for employees 

to be similarly situated:

Employees are similarly situated if their circumstances are comparable in all 

material respects, including similar standards, supervisors, and conduct. To prove 

discrimination based on disparate discipline, the disciplined and undisciplined 

employees’ misconduct must be of “comparable seriousness.” Although “precise 

equivalence in culpability between employees is not the ultimate question,” the 

Fifth Circuit has held that to prove discrimination based on disparate discipline, 
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the plaintiff must usually show “that the misconduct for which [he] was 

discharged was nearly identical to that engaged in by a [female] employee whom 

[the company] retained.”

Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005) (citations and 

footnotes omitted) (quoting McDonnell Douglas, 411 U.S. at 804; McDonald v. Santa Fe Trail 

Transp. Co., 427 U.S. 273, 283 n.11 (1976); Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 

(5th Cir. 1990)).

The District argues that Mendoza and Gudiel are not similarly situated because they 

worked at different locations, had different supervisors, different job duties, and different 

misconduct. Mendoza was a custodian at McDonald Middle School, her supervisor was Kelly 

Long, her job duties were to clean the school, and she was terminated for starting a fire by 

placing mop heads in the dryer. Gudiel was a driver at the District’s L.A. Berry Support 

Complex, his supervisor was Larry Brown, his job duties were to drive to the District’s campuses 

delivering cleaned cleaning tools and furniture and collecting dirty cleaning tools, and he was 

reprimanded for not collecting the dirty mop heads from McDonald Middle School. Because of 

the many differences in their positions and conduct, we conclude that Mendoza and Gudiel were 

not similarly situated employees.

Because the evidence conclusively established that Mendoza was replaced by a woman 

and she was not treated differently from any similarly situated male employee, we conclude 

Mendoza has not established a prima-facie case of sex discrimination. Accordingly, the District 

did not waive its immunity to suit, and the trial court erred by denying the District’s motion for 

summary judgment asserting lack of jurisdiction over this claim. We sustain the District’s first 

issue.
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NATIONAL-ORIGIN DISCRIMINATION

In its second issue, the District contends the trial court should have determined it lacked 

jurisdiction over Mendoza’s claim of national-origin discrimination and dismissed the claim. 

The District asserts Mendoza could not present a prima-facie case of discrimination because her 

duties were assumed by another Hispanic, Nora Castellanos.

3

The District attached as evidence to its motion for summary judgment Mendoza’s 

deposition, where she testified she was told that the District moved a night-shift custodian, 

Castellanos, to her day-shift position. The District then hired a new custodian, Tammy Burleson, 

who filled the night-shift custodian position. Mendoza’s response to the District’s motion for 

summary judgment attached as evidence an internal e-mail and other documents from the 

District stating Burleson replaced Mendoza and that Burleson’s ethnicity was “white.” The 

District’s documents raise a genuine issue of material fact as to whether Mendoza was replaced 

by someone outside of the protected class.

Because the District failed to conclusively prove the jurisdictional fact that Mendoza was 

replaced by a Hispanic employee, the District has not established the trial court lacked 

jurisdiction over Mendoza’s claim of national-origin discrimination. We conclude the trial court 

did not err by denying the District’s motion for summary judgment on that claim. We overrule 

the District’s second issue.

 3 The parties treat Mendoza’s claim of national-origin discrimination as one for racial discrimination. Neither side complains about the 

apparent misnomer of the claim. See Lopez v. Tex. State Univ., 368 S.W.3d 695, 702–03 (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). Mendoza’s 

claim of discrimination from being replaced by Burleson appears to be one of racial discrimination because Mendoza supported her assertion with 

evidence that Burleson was white but presented no evidence of Burleson’s national origin.
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CONCLUSION

We reverse the trial court’s order denying the motion for summary judgment as to 

Mendoza’s claim of sex discrimination, and we dismiss the claim for want of jurisdiction. We 

affirm the trial court’s order denying the motion for summary judgment as to Mendoza’s claim 

of national-origin discrimination. We remand the cause to the trial court for further proceedings.

121479F.P05

/Lana Myers/

LANA MYERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

Mesquite Independent School District, 

Appellant

No. 05-12-01479-CV V.

Tomasa Mendoza, Appellee

On Appeal from the 116th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. 11-09131-F.

Opinion delivered by Justice Myers. 

Justices Lang and Evans participating.

In accordance with this Court’s opinion of this date, the order of the trial court denying 

appellant Mesquite Independent School District’s motion for summary judgment is REVERSED

as to appellee Tomasa Mendoza’s claim of sex discrimination, and judgment is RENDERED

that appellee Tomasa Mendoza’s claim of sex discrimination is DISMISSED for want of 

jurisdiction; the trial court’s order is AFFIRMED as to appellee Tomasa Mendoza’s claim of 

national-origin discrimination. We REMAND the cause to the trial court for further 

proceedings. It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 3rd day of June, 2013.

/Lana Myers/

LANA MYERS

JUSTICE