Opinion
13-21-00082-CV
03-09-2023
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellant, v. DAVID DE LA CRUZ, Appellee.
On appeal from the County Court at Law No. 10 of Hidalgo County, Texas.
Before Justices Benavides, Tijerina, and Peña
MEMORANDUM OPINION
L. ARON PEÑA JUSTICE
Appellant Texas Health and Human Services Commission (HHSC) appeals the denial of its plea to the jurisdiction, contending that appellee David De La Cruz did not establish a waiver of HHSC's sovereign immunity because he failed to present evidence of pretext to support his claim of gender discrimination. We affirm.
I. Background
A. Administrative Complaint & Petition
After HHSC terminated De La Cruz's employment as a Texas Works Supervisor II, he filed a gender discrimination complaint with the Texas Workforce Commission (TWC). TWC issued a dismissal and notice of right to sue letter. Thereafter, De La Cruz initiated the present suit. He alleges he was terminated for violating HHSC's conflict-of-interest policies, but similarly situated females who were known to violate the same policies were not disciplined.
B. Pleas to the Jurisdiction
HHSC filed its first plea to the jurisdiction, arguing that De La Cruz did not timely file his discrimination complaint. The trial court denied the plea, and HHSC filed an interlocutory appeal. We affirmed the denial, and the case returned to the trial court. Tex. Health & Hum. Servs. Comm'n v. De La Cruz, No. 13-17-00292-CV, 2018 WL 2371702 (Tex. App.-Corpus Christi-Edinburg May 24, 2018, pet. denied) (mem. op.).
HHSC then filed a subsequent plea to the jurisdiction, arguing that De La Cruz could not demonstrate a statutory waiver of its sovereign immunity for unlawful discrimination. HHSC attached the following evidence: (1) the affidavit of Cynthia Pena, De La Cruz's supervisor; (2) De La Cruz's job description; (3) notice of possible disciplinary action; (4) notice of termination; (5) internal investigation report and related records; (6) HHSC employment policy; (7) De La Cruz's deposition; (8) De La Cruz's personnel records; (9) employee grievance records; and (10) the affidavit of an HHSC investigator.
De La Cruz filed a response, arguing HHSC's reason for terminating him was pretextual and its decision was instead motivated by gender discrimination. He maintained that similarly situated female employees were treated more favorably. He also claimed he did not violate HHSC's conflict-of-interest policies. De La Cruz attached his affidavit and Pena's deposition testimony and deposition exhibits.
C. Jurisdictional Record
HHSC employed De La Cruz from 1990 through his termination in 2014. In 2009, HHSC hired De La Cruz for the position of Texas Works Supervisor II in HHSC's Edinburg office. The office is located within HHSC's Region 11, which is overseen by regional director Pena. De La Cruz supervised a team of employees responsible for processing applications for government assistance such as food stamps, Medicaid, and Temporary Assistance for Needy Families.
In 2013, the Health and Human Services' Office of the Inspector General (OIG) assigned George Elizondo Jr. to investigate one of De La Cruz's subordinates for fraud. The investigation revealed that HHSC employee Joleen Garcia accepted bribes in exchange for approving falsified benefit applications. Elizondo also found that Garcia submitted her own benefit application, but she was properly determined to be eligible. Pena authorized Elizondo to investigate De La Cruz's involvement in handling Garcia's personal application. Upon doing so, Elizondo discovered that Garcia's application was processed by an employee in the same unit and that De La Cruz performed reviews of Garcia's disbursements, which Elizondo believed to be a violation of HHSC's conflict-of- interest policies. In a sworn statement, De La Cruz admitted to the conduct. He also explained he performed second level reviews of supplementary benefit disbursements to Garcia.
When supplemental monthly benefits are more than fifty dollars, a supervisor must approve the disbursement through a second-level review.
The final OIG report found that De La Cruz was unaware of Garcia's fraudulent acts but that he nevertheless violated HHSC employment policy A-114, titled "Applications Causing Conflicts of Interest," which provides in part as follows:
The advisor must avoid the appearance of impropriety or conflict of interest when determining eligibility. The advisor is not allowed to work on a case if the individual is a relative (by blood or marriage), roommate, dating companion, supervisor or someone under the advisor's supervision. The advisor may never work on a case in which the advisor is a case participant or AR.
The advisor must consult with the supervisor if the individual is a friend, acquaintance or coworker. Generally, the advisor should not work on cases involving these individuals, but the degree and nature of the relationship should be taken into account. In remote areas where it is impractical for another person to process the application, the unit supervisor should be contacted to determine the best method to process the application.
Although not cited in the OIG report, provision A-114.1, titled "Applications Submitted by Texas Works Employees," provides in pertinent part:
This was the policy in place during the relevant time periods. HHSC amended the policy on July 1, 2013, but not in any material way.
Special handling must be given to applications and redeterminations submitted by a Texas Works employee.
The employee's immediate supervisor or someone in the direct line of supervision may not process the employee's application except in remote areas where it is impractical for another person to process the application.
HHSC sent De La Cruz a notice of possible disciplinary action, stating he violated provision A-114.1 by assigning Garcia's application to Worker IIIs in his unit who had "quasi-supervisory authority" over Garcia. The notice also claimed De La Cruz violated A-114.1 by completing second-level reviews of disbursements to Garcia. The notice states that De La Cruz previously assigned another employee's benefit application to a worker with "quasi-supervisory authority" over the applicant. These infractions were alleged to have occurred over two years prior to the OIG investigation. According to the notice, a Worker III in De La Cruz's unit informed him that agency policy required the assignment of a subordinate's benefit application to an advisor in another unit and that afterwards "all interviews involving unit employees were conducted by [W]orker IIIs in other units." The notice also asserted that De La Cruz accessed and viewed case comments in the aforementioned subordinates' files.
De La Cruz submitted a written rebuttal, stating he should not be disciplined because HHSC does not enforce its policies and does not provide adequate training. He also denied that his actions violated policy. Alternatively, he claimed his conduct did not constitute a major or repeated offense justifying dismissal for cause. De La Cruz asserted another HHSC supervisor engaged in the same conduct but was not disciplined.
Thereafter, Pena, the Region 11 director, sent De La Cruz a notice of termination. The notice explains that supervisors, including De La Cruz, were directed to review the conflict-of-interest policies with HHSC staff. The notice states, "By assigning staff in your unit to process applications for benefits from employees in their direct line of supervision, and by conducting second-level reviews in cases involving employees you supervise, you failed to avoid the appearance of impropriety or a conflict of interest . . . in violation of policy and procedures[.]" The notice claimed this conduct violated employment policies A-114 and A-114.1 and constituted a major offense pursuant to the human resources manual. Pena clarified in her deposition that the violations were not expressly listed as major offenses but that they constituted gross misconduct, a type of major offense which justifies termination. Pena testified she did not review De La Cruz's personnel file before deciding on his termination.
De La Cruz later filed an employee grievance contesting the employment decision. Following an administrative hearing, an administrative law judge upheld his termination. HHSC hired a female to replace De La Cruz.
In his affidavit, De La Cruz asserts that three female HHSC supervisors violated HHSC policy A-114.1 but were not disciplined-Dalia Ochoa, Janie Diaz, and Alma Mendez. He stated that another supervisor, Sylvia Barron, assigned a subordinate's benefit application to someone in her direct line of supervision, and while she was disciplined, she was not terminated. At his grievance hearing, De La Cruz testified that Ochoa told him she violated the same policy, but a supervisor merely informed her that she misapplied the policy and did not discipline her. De La Cruz elaborated in his deposition that Ochoa informed him that she, Diaz, and Mendez violated the conflict-of-interest policy by assigning a subordinate's benefit application to an employee in their unit.
In her deposition testimony, Pena testified that Barron, who held the same position as De La Cruz in HHSC's Corpus Christi office, violated policy A-114.1. HHSC gave the employee a third level notice, which is the highest disciplinary action preceding termination. According to Pena, Barron assigned a subordinate's benefit application to someone in her direct chain of command. Pena explained that unlike De La Cruz, Barron did not personally work on the employee's file, and she did not violate the policy for multiple subordinate applications. Pena acknowledged there were allegations that three other female supervisors-Ochoa, Diaz, and Mendez-violated the conflict-of-interest policy, but after an investigation, the allegations were unsubstantiated. Pena testified she authorized Elizondo to review De La Cruz's actions in relation to the Garcia investigation. Pena described OIG as the law enforcement arm of the agency, and she stated that Elizondo was a law enforcement officer. Pena explained OIG did not investigate Diaz, Mendez, Barron, or Ochoa concerning their alleged violations.
In an affidavit, Elizondo attested, "The investigations into Dalia Ochoa and David De La Cruz differ in many respects." Elizondo explained that the two "engaged in different types of misconduct that allegedly violated different HHSC policies." He stated, "an Internal Affairs investigation found that no corroborating evidence supported the misconduct allegation" concerning Ochoa. However, he never explicitly attested that he performed the investigation of Ochoa. To the extent his affidavit raises an inference that OIG investigated Ochoa, we must take as true Pena's contrary testimony that no OIG investigation occurred. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
An HHSC third-level-reminder memorandum to Barron confirmed she was being disciplined for assigning a subordinate's benefit application to someone in her direct line of supervision. HHSC placed Barron on the "[t]hird level of the formal corrective action process which . . . remain[ed] in place for 12 calendar months." HHSC copied Pena on the memorandum as the applicable regional director for Barron.
D. Trial Court's Ruling
After a hearing, the trial court denied HHSC's plea to the jurisdiction. This appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
II. Standard of Review
"A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's subject matter jurisdiction over a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is a question of law; therefore, when the determinative facts are undisputed, we review the trial court's ruling on a plea to the jurisdiction de novo. Id.
A plaintiff has the burden to affirmatively demonstrate the trial court's jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). "When a defendant challenges jurisdiction, a court 'is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.'" Id. (quoting Bland Indep. Sch. Dist., 34 S.W.3d at 555); see Jones v. Turner, 646 S.W.3d 319, 325 (Tex. 2022) (explaining that a plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both). This is true even when the jurisdictional issue intertwines with the merits of the case. Town of Shady Shores, 590 S.W.3d at 550.
When jurisdictional facts are challenged, our standard of review mirrors that of a summary judgment. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 805 (Tex. 2018). We must take as true all evidence favorable to the nonmovant, indulge every reasonable inference and resolve any doubts in the nonmovant's favor, and disregard contrary evidence unless a reasonable factfinder could not. See id. at 771; Miranda, 133 S.W.3d at 228. If the evidence raises a fact issue regarding jurisdiction, the plea cannot be granted, and a factfinder must resolve the issue. Miranda, 133 S.W.3d at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact issue, the plea must be determined as a matter of law. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); Miranda, 133 S.W.3d at 228.
"A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Stated otherwise, the evidence must rise to a level that would enable reasonable and fair-minded people to differ in their conclusions. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). However, a factfinder may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another. Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 313 (Tex. 2015) (quoting Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013)). Furthermore, evidence does not create a fact issue if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists. Parker, 514 S.W.3d at 220.
III. TCHRA Waiver
Sovereign immunity deprives a trial court of jurisdiction over lawsuits in which a state agency, such as HHSC, has been sued unless immunity is waived by the Legislature. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011). The Texas Commission on Human Rights Act (TCHRA) waives sovereign immunity when the plaintiff states a claim for conduct that would violate the Act. Garcia, 372 S.W.3d at 637. The TCHRA prohibits discrimination in employment based on "race, color, disability, religion, sex, national origin, or age." Tex. Lab. Code Ann. § 21.051. "By adopting the [TCHRA,] the Legislature intended to correlate state law with federal law in employment discrimination cases." AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (per curiam) (internal quotations omitted). Accordingly, Texas courts look to federal law to interpret the TCHRA's provisions. Id.
Texas courts "recogniz[e] two alternative methods of proof in discriminatory treatment cases." Garcia, 372 S.W.3d at 634. "The first method, rather straightforward, involves proving discriminatory intent via direct evidence of what the defendant did and said." Id. Where only circumstantial evidence is available, courts examine a discrimination claim by utilizing the burden-shifting paradigm established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Donaldson v. Tex. Dep't of Aging & Disability Servs., 495 S.W.3d 421, 433 (Tex. App.- Houston [1st Dist.] 2016, pet. denied).
Under this framework, the employee must first establish a prima facie case, which gives rise to a rebuttable presumption that a statutory violation occurred. Alamo Heights, 544 S.W.3d at 782 (citing Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-54 (1981)). The employer may then rebut this presumption by offering a legitimate, nondiscriminatory reason for the disputed employment action. Id. (citing Burdine, 450 U.S. at 254-55). "Once rebutted, the presumption disappears, and an employee lacking direct evidence cannot prove a statutory violation without evidence that the employer's stated reason is false and a pretext for discrimination." Id. (citing Burdine, 450 U.S. at 255-56). An employee satisfies its burden at this stage by showing either (1) the stated reason was false or not credible, or (2) the defendant's reason, while true, is only one reason, and discrimination was another motivating factor. Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 466 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (first citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); and then citing McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 555 (Tex. App.-Dallas 2006, no pet.)); see Tex. Dep't of Aging & Disability Servs. v. Lagunas, 618 S.W.3d 845, 853 (Tex. App.-El Paso 2020, no pet.). The employee may establish pretext through evidence of disparate treatment. Watkins v. Tregre, 997 F.3d 275, 283 (5th Cir. 2021) (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). When suing a governmental entity, "[a]ll elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional." Alamo Heights, 544 S.W.3d at 783.
"[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. "[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." Id. at 148.
The United States Supreme Court has held that the "mixed motive" analysis is proper in cases based wholly on circumstantial evidence as well as those based on direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003).
IV. Pretext
The parties agree that this is a circumstantial-evidence case that involves step three of the McDonnell Douglass burden-shifting framework because De La Cruz presented a prima facie case of gender discrimination and HHSC articulated a legitimate, non-discriminatory reason for its employment decision. HHSC challenges whether De La Cruz produced evidence that its stated reason for terminating his employment was pretext for discrimination. De La Cruz responds that his actions did not violate the policies at issue, thus showing that HHSC's stated reason was false. De La Cruz further argues that even if he violated policy, he demonstrated a discriminatory motive by showing that similarly situated female employees were treated more favorably. We address each category of evidence in turn.
A. Violation of Policy
HHSC argues, "there is no dispute that De La Cruz violated the policies that resulted in his termination," relying on De La Cruz's admission in the record to that effect. However, on appeal De La Cruz interprets the policies such that no violation occurred. De La Cruz states that A-114 permits an "advisor to work on a non-subordinate coworker's application so long as a supervisor is first consulted." He also argues that policy A-114.1 only prohibits supervisors from processing a subordinate's application, but it does not prohibit a supervisor from conducting second level reviews once the employee's initial eligibility has been determined.
De La Cruz contends that the pertinent advisors did not have supervisory authority, despite being labeled at times as having "quasi-supervisory authority," and thus were not strictly prohibited from processing a coworker's application. His interpretation finds some support in the language of A-114, which provides, "The advisor must consult with the supervisor if the individual is a friend, acquaintance[,] or coworker. Generally, the advisor should not work on cases involving these individuals, but the degree and nature of the relationship should be taken into account."
Again, this interpretation finds some basis in A-114.1's language: "The employee's immediate supervisor or someone in the direct line of supervision may not process the employee's application." (emphasis added).
We need not decide whose interpretation of the applicable policies are correct. "In determining whether an employer's stated reasons for an adverse termination decision were pretextual, the focus is not on whether the decision itself was error-free, but on whether the employer relied on its stated reasons, in good faith, in making the employment decision." Tex. Dep't of State Health Servs. v. Resendiz, 642 S.W.3d 163, 179 (Tex. App.-El Paso 2021, no pet.); see Alamo Heights, 544 S.W.3d at 792 (recognizing that the issue is "whether the employer's perception of the [employee's] problems-accurate or not-was the real reason for termination."); McNeel v. Citation Oil & Gas Corp., 526 S.W.3d 750, 760 (Tex. App.-Houston [14th Dist.] 2017, no pet.) ("McNeel's subjective interpretation of the rules, or her disagreement over whether she violated them, is not sufficient to create a fact issue that Citation's stated reason was pretextual."). However, an employer's shifting or different reasons for the decision can establish doubt as to whether it is the true reason. See Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (explaining that an "employer's inconsistent explanations for an employment decision 'cast doubt' on the truthfulness of their explanations"). Although HHSC provided slightly different characterizations as to what conduct its policies proscribed, it has consistently maintained that its termination decision was based on De La Cruz's violation of those policies. See Braymiller v. Lowe's Home Ctrs. Inc., 325 Fed.Appx. 311, 314 (5th Cir. 2009) (concluding that varying explanations were not evidence of pretext because they focused on the same events). Accordingly, we conclude De La Cruz's belief that he did not violate policy and HHSC's varied descriptions of what the conflict-of-interest polices proscribed are not evidence of pretext. See Resendiz, 642 S.W.3d at 179.
It is not clear whether HHSC believed De La Cruz violated A-114 or A-114.1 when he accessed and conducted second level reviews of a subordinate's file. The OIG report merely references A-114, which provides in relevant part that "The advisor is not allowed to work on a case if the individual is . . . someone under the advisor's supervision." However, the notice of discipline specifically cites A-114.1 as the applicable policy. HHSC maintains that De La Cruz violated A-114.1 when he assigned employees in his unit to process a subordinate's application. Yet, HHSC's witnesses disagreed as to how he violated the policy. The OIG report states that the violation occurred because De La Cruz "assigned an application submitted by [an] employee . . . to be processed by workers under his supervision[.]" (emphasis added). However, the notice of disciplinary action states that De La Cruz violated policy by assigning an employee's application to a Worker III with "quasi-supervisory authority" over the applicant. Pena seemingly took both positions at different times. In her deposition, she stated that De La Cruz violated policy by "assigning cases to employees in his line of supervision." (emphasis added). In her grievance hearing testimony, Pena claimed that he violated policy because he "assigned a case to a person in the direct chain of command of an employee." (emphasis added).
B. Disparate Treatment
Next, we turn to De La Cruz's contention that he suffered disparate treatment. HHSC argues De La Cruz failed to show that similarly situated female supervisors engaged in the same conduct.
"An employee can indeed use evidence of disparate treatment to show that misconduct offered as a nondiscriminatory reason for termination is actually pretextual." Ng-A-Mann v. Sears, Roebuck & Co., 627 Fed.Appx. 339, 342 (5th Cir. 2015) (per curiam). "To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' misconduct must be of comparable seriousness." Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam) (internal quotations omitted). "[P]recise equivalence in culpability between employees is not the ultimate question" when considering whether employees are similarly situated. Id. at 917-18 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, (1976)). Rather, the employees' circumstances must be "comparable in all material respects, including similar standards, supervisors, and conduct." Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 584 (Tex. 2017) (quoting Monarrez, 177 S.W.3d at 917). The employees' respective situation and conduct must be "nearly identical." Id. (quoting AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008)). "Employees with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records are not considered to be nearly identical." Id. (quoting Reyes, 272 S.W.3d at 594). "Employees who hold different jobs are not similarly situated[.]" Id. (citing Burks v. Wis. Dep't of Transp., 464 F.3d 744, 751 (7th Cir. 2006)). Whether "two employees are 'similarly situated' generally presents a question of fact for the jury." Tex. Dep't of State Health Servs. v. Kerr, 643 S.W.3d 719, 732 (Tex. App.-Amarillo 2022, no pet.) (citing Wallace v. Seton Fam. of Hosps., 777 Fed.Appx. 83, 89 (5th Cir. 2019)). But "[w]hen the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer," they are not similarly situated as a matter of law. Rincones, 520 S.W.3d at 585.
De La Cruz testified by affidavit that three female coworkers "were known to have violated HHSC's conflict-of-interest policies" but were not disciplined-Ochoa, Diaz, and Mendez. He testified similarly in his deposition and at the grievance hearing. The record further reflects that none were investigated by the agency's law enforcement authority, OIG. De La Cruz testified that each held the same position and the same duties as he did. He stated that Pena was the final decision-maker regarding discipline as to each employee.
Barron, who worked in HHSC's Corpus Christi office, was a Supervisor II with identical job duties. Pena was the regional director overseeing both De La Cruz and Barron. As confirmed by a disciplinary memorandum, Barron assigned a subordinate's benefit application to a Worker III in her direct line of supervision, but she was not terminated or investigated by OIG.
Taking as true all evidence favorable to De La Cruz, indulging every reasonable inference and resolving any doubts in his favor, and disregarding contrary evidence unless a reasonable factfinder could not, the record demonstrates that the four comparators: (1) were female; (2) had the same job title and duties as De La Cruz; (3) were supervised by the same regional director, the ultimate decision-maker concerning termination; (4) violated the conflict-of-interest policy; and (5) were treated more favorably than De La Cruz. See id. at 584. Regarding their treatment, the record shows that the employees were not terminated and were not subject to an OIG investigation.
Despite this evidence, HHSC argues, for various reasons, that the four comparators offered by De La Cruz are not similarly situated as a matter of law. First, HHSC argues that we cannot consider De La Cruz's affidavit testimony because it is inadmissible hearsay. However, "[a]n objection that an affidavit contains hearsay is an objection to the form of the affidavit", which must be preserved for appellate review. Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.-Dallas 2011, no pet.). HHSC did not object to De La Cruz's affidavit testimony on this basis or any other, so its complaint is unpreserved. See Tex. R. App. P. 33.1(a); County of El Paso v. Baker, 579 S.W.3d 686, 694 (Tex. App.—El Paso 2019, no pet.) (concluding that appellant did not preserve hearsay objection to evidence attached to plea to the jurisdiction response); see also Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay."). Even if the alleged error had been preserved, HHSC attached to its own plea to the jurisdiction De La Cruz's similar testimony in his deposition and at the grievance hearing. See Merrill v. Sprint Waste Servs. LP, 527 S.W.3d 663, 668 (Tex. App.-Houston [14th Dist.] 2017, no pet.) ("It is a longstanding rule that a party may not complain on appeal that the opposing side's evidence was improperly admitted if the party introduced the same or similar evidence first." (citing Harris Cnty. Flood Control Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.- Houston [14th Dist.] 2016, pet. denied))).
HHSC discusses De La Cruz's unrelated disciplinary history in the background of its appellant brief. However, it does not argue that this history is relevant to the disparate treatment issue. HHSC has maintained throughout that De La Cruz was terminated solely for his violations of the conflict-of-interest policies. Pena, who was the ultimate decision-maker, stated she did not even review De La Cruz's personnel file before making her decision. See Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1119 (D.C. Cir. 2016) (explaining that when an employer does not rely on an employee's past performance as a basis for discipline, the employer is prohibited from using such evidence to distinguish the employee from the comparators).
HHSC raises the following arguments for the first time in its reply brief: (1) it was not required to object to the affidavit because it was not filed within seven days of the hearing as required by Texas Rule of Civil Procedure 166a(d); (2) the affidavit was merely attached to the pleadings and not made a part of the jurisdictional record; and (3) the affidavit was substantively defective for the lack of personal knowledge, an issue that can be raised for the first time on appeal. HHSC did not raise these issues in its initial brief. "An issue raised for the first time in a reply brief is ordinarily waived and need not be considered by this Court." City of Donna v. Ramirez, 548 S.W.3d 26, 34 (Tex. App.-Corpus Christi-Edinburg 2017, pet. denied) (quoting McAlester Fuel Co. v. Smith Int'l, Inc., 257 S.W.3d 732, 737 (Tex. App.-Houston [1st Dist.] 2007, pet. denied)). Even were we to consider these arguments, we would conclude they are without merit. HHSC cites no authority to support its contention that Rule 166a(d)'s requirement for responsive evidence to be filed at least seven days before the summary judgment hearing applies to pleas to the jurisdiction. See Tex. R. Civ. P. 166a(d); Schronk v. City of Burleson, 387 S.W.3d 692, 702 (Tex. App.-Waco 2009, pet. denied) ("There is no rule specifying the manner in which a party must present evidence in support of a plea to the jurisdiction."). Although we review evidentiary pleas using a summary judgment standard, we are unaware of any authority requiring responsive evidence to be filed at least seven days before a hearing on the plea to the jurisdiction. See Schronk, 387 S.W.3d at 702. At any rate, the trial court did not rule on the plea to the jurisdiction until over a year after conducting a hearing, providing HHSC with the needed time to file an objection. Second, although De La Cruz attached a personal affidavit to his pleadings, he also attached the affidavit separately to his response to HHSC's plea to the jurisdiction. As such, it was properly made a part of the jurisdictional record. See id. Finally, De La Cruz's affidavit provides that he has personal knowledge of the facts contained therein, he worked for HHSC for 23 years, and three of the four comparators were coworkers. See Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 429 (Tex. App.-Corpus Christi- Edinburg 2016, no pet.) ("The personal knowledge requirement may be satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit."). Regarding Barron, who was located in the Corpus Christi office, HHSC's own disciplinary memorandum confirms the facts stated in De La Cruz's affidavit.
Second, HHSC maintains the comparators were not found to have engaged in similar conduct. With respect to Ochoa, Diaz, and Mendez, HHSC argues that the alleged violations were unsubstantiated. With respect to all four comparators, HHSC maintains they did not violate policy on multiple occasions or in the same manner as De La Cruz. First, as previously discussed, De La Cruz testified that Ochoa, Diaz, and Mendez violated the conflict-of-interest policies. This testimony was before the trial court, without objection, and is properly a part of the jurisdictional record. Under our standard of review, we must disregard Pena's testimony to the contrary. See Miranda, 133 S.W.3d at 228.
HHSC complains De La Cruz's assertions that three of the comparators violated policy are unsubstantiated. However, HHSC's evidence fares no better, as it simply relies on Pena's contrary assertion. Pena concedes there were allegations that the comparators violated the same policy. Yet, beyond Pena's own assertion, HHSC did not present any evidence showing that the comparators' violations were merely allegations that were proven to be baseless, such as testimony from those who personally investigated the matter, personnel records of the comparators, or other documentary evidence. Similarly, Elizondo's testimony regarding the Ochoa investigation does not state that he performed the investigation. At any rate, as previously discussed, HHSC did not preserve any objection to the admissibility of De La Cruz's evidence.
Regarding the second contention, we note that De La Cruz is not required to show precise equivalence in culpability, only that the misconduct is of comparable seriousness. See Monarrez, 177 S.W.3d at 917-18. Each comparator violated the same policy concerning the handling of employee benefit applications by assigning a subordinate's benefits application to an employee within her unit. There is nothing in the record to suggest that De La Cruz's additional action in conducting second level reviews elevates this misconduct in any appreciable manner. In explaining why De La Cruz's violation was a major offense warranting termination, Pena testified:
I think that a violation of policy, of that policy in particular, it tarnishes the integrity of the supervisor, one, and it also tarnished the integrity of the . . . region and of the program-if there had been some fraud that had been turned up or that could possibly have come about because of it from his review.
This characterization of the misconduct would equally apply to the other employees' actions. Although the comparators' method of violating the policy might not have been precisely equivalent, their conduct in doing so is of comparable seriousness and nearly identical. See id.
HHSC also argues that De La Cruz violated the policy with more than one employee applicant and is thus a repeat offender. But HHSC terminated De La Cruz after the first discovery of a violation. There is no evidence that he knowingly violated the conflict-of-interest policy after being informed what the policy prohibited. Rather, the notice of possible disciplinary action states that when De La Cruz was told that he should not assign subordinate applications to workers in his unit, he ceased doing so. Thus, at the time the violations were discovered, De La Cruz was no longer engaging in the prohibited conduct. Further, HHSC presented no evidence that it looked back multiple years into each comparators' history to determine whether they previously violated policy. Given this context, we conclude that De La Cruz presented evidence that his situation and conduct was nearly identical to the identified comparators. See Rincones, 520 S.W.3d at 584.
Our standard of review requires De La Cruz only to raise a fact issue as to the challenged jurisdictional element to overcome HHSC's plea to the jurisdiction. See Miranda, 133 S.W.3d. at 227-28. That is, the evidence must rise to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Parker, 514 S.W.3d at 220. And with respect to this particular method of showing pretext, courts have observed that whether "two employees are 'similarly situated' generally presents a question of fact for the jury." Kerr, 643 S.W.3d at 732. On this record, we are unable to state as a matter of law that the four female comparators are not similarly situated. Rather, we hold that this issue must be resolved by the trier of fact. See Miranda, 133 S.W.3d. at 227-28.
C. Summary
De La Cruz met his burden to present evidence creating a fact issue regarding the challenged jurisdictional element-pretext. Therefore, the trial court did not err in denying the plea to the jurisdiction. See id. We overrule HHSC's sole issue.
HHSC also argues we should reverse the trial court's denial of its plea to the jurisdiction because it is entitled to the same-actor inference. It maintains that because Pena was responsible for hiring and terminating De La Cruz, it is entitled to a presumption that its stated reasons for termination are not pretextual. The same-actor inference is based on the theory that it is irrational for an employer to show animus in termination but not in hiring. Spears v. Patterson UTI Drilling Co., 337 Fed.Appx. 416, 421-22 (5th Cir. 2009); see also Fenley v. Tex. Plumbing Supply Co., Inc., No. 14-19-00851-CV, 2021 WL 1881273, at *5 (Tex. App.-Houston [14th Dist.] May 11, 2021, no pet.) (mem. op.). The presumption created by the same-actor inference "is not irrebuttable." Spears, 337 Fed.Appx. at 422. It's application here merely speaks to the weight of the evidence and does not establish the lack of discrimination as a matter of law. See Perez v. Thorntons, Inc., 731 F.3d 699, 709 (7th Cir. 2013) (explaining that the same-actor inference is a reasonable inference that may be argued to the jury, but it is not a conclusive presumption that applies as a matter of law); see also Kanen v. DeWolff, Boberg & Associates, Inc., No. 05-20-00126-CV, 2022 WL 152527, at *5 (Tex. App.-Dallas Jan. 18, 2022, pet. denied) (mem. op.) (same).
V. Conclusion
We affirm the trial court's judgment.