In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-21-00240-CV 

 

TEXAS DEPARTMENT OF STATE HEALTH SERVICES, APPELLANT 

V. 

LONZO KERR, JR., APPELLEE 

On Appeal from the 53rd District Court 

 Travis County, Texas 

Trial Court No. D-1-GN-18-001738, Honorable Maria Cantú Hexsel, Presiding 

February 16, 2022 

CONCURRING OPINION 

Before QUINN, C.J., and PIRTLE and DOSS, JJ. 

I concur with the majority’s conclusion that Appellee, Kerr, failed to submit 

evidence he was “treated less favorably than similarly situated members of the opposing 

class.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (citing

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. 

Ed. 2d 105 (2000); Romo v. Texas Department of Transportation, 48 S.W.3d 265, 270 

(Tex. App.—San Antonio 2001, no pet.)). I therefore join with the majority in its holding 
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the trial court erred in denying Appellant’s, Texas Department of State Health Services 

(“TDSHS”), plea to the jurisdiction. 

However, I write separately because the second portion of the opinion is 

unnecessary to the Court’s final disposition of this appeal1 and risks misapplying the law 

in future cases. Specifically, I disagree with the opinion’s statement that if it had been 

necessary to examine additional evidence under the tripartite McDonnell Douglas burdenshifting framework,2 Kerr would be required to raise a fact question that TDSHS’s 

explanation for terminating him “was a pretext and that he would not have been 

terminated but for his race or age.” Op. at 23 (emphasis added) (citing Alamo Heights, 

544 S.W.3d at 782; Waggoner v. Garland, 987 F.2d 1160, 1166 (5th Cir. 1993)). 

Requiring a plaintiff to prove “pretext-plus”-discriminatory animus has not been the 

controlling law for more than 20 years.

In 2000, the United States Supreme Court unanimously wrote that evidence of 

falsity in an employer’s proffered reason for its adverse employment decision may permit 

the factfinder to infer the employer was actually motivated by an intent to discriminate 

unlawfully:

Proof that the defendant’s explanation is unworthy of credence is simply 

one form of circumstantial evidence that is probative of intentional 

1 TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as 

practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). It is 

unnecessary to assess Appellant’s reason for terminating Kerr because the burden of production only shifts 

after the plaintiff succeeds in proving its prima facie case. Tex. Tech Univ. Health Scis. Ctr.-El Paso v. 

Flores, 612 S.W.3d 299, 312 (Tex. 2020) (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). 

2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 

Texas courts “consistently look to federal law to inform our construction and application of the TCHRA 

because one of its purposes is to ‘provide for the execution of the policies of Title VII.’” Alamo Heights 

Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 764 n.5 (Tex. 2018); TEX. LAB. CODE ANN. § 21.001(1).
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discrimination, and it may be quite persuasive. In appropriate 

circumstances, the trier of fact can reasonably infer from the falsity of the 

explanation that the employer is dissembling to cover up a discriminatory 

purpose. Such an inference is consistent with the general principle of 

evidence law that the factfinder is entitled to consider a party’s dishonesty 

about a material fact as “affirmative evidence of guilt.” Moreover, once the 

employer’s justification has been eliminated, discrimination may well be the 

most likely alternative explanation, especially since the employer is in the 

best position to put forth the actual reason for its decision. Thus, a plaintiff’s 

prima facie case, combined with sufficient evidence to find that the 

employer’s asserted justification is false, may permit the trier of fact to 

conclude that the employer unlawfully discriminated.

Reeves, 530 U.S. at 147-48.3 Since Reeves, lower courts have rejected the “pretextplus” approach when assessing evidence of discrimination. See Russell v. McKinney 

Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000) (acknowledging Reeves’ repudiation of 

the “pretext-plus” approach); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 

(Tex. 2001) (citing Reeves and holding, “The plaintiff can usually provide sufficient 

evidence of discriminatory intent by showing that the employer’s proffered reason for the 

adverse action is false.”); Tex. Dep’t of Agric. v. Latting, No. 03-17-00603-CV, 2018 Tex. 

App. LEXIS 2002, at *10 (Tex. App.—Austin Mar. 21, 2018, no pet.) (mem. op.).

Had the Court needed to assess the evidence under the third prong of the 

McDonnell Douglass burden-shifting approach, I would note the numerous 

inconsistencies in the record that point to a genuine issue of material fact as to whether 

TDSHS’s proffered reasons for terminating Kerr were false. As noted above, however, 

that was not necessary for disposition of the present appeal because Kerr failed to meet 

3 The high court also observed there may be some instances where a showing of pretext is not

sufficient to permit an inference of discrimination, as when “the record conclusively revealed some other, 

nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as 

to whether the employer’s reason was untrue and there was abundant and uncontroverted independent 

evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148.
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his burden under the first prong, causing Appellant’s first issue to be sustained. I agree 

with and join in the majority opinion’s disposition of the first issue, alone.

Lawrence M. Doss

 Justice