Opinion
02-23-00036-CV
12-07-2023
Texas Workforce Commission, Appellant v. Twana Seymore, Appellee
On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-323502-21
Before Sudderth, C.J.; Birdwell and Walker, JJ.
MEMORANDUM OPINION
BONNIE SUDDERTH, CHIEF JUSTICE
Appellant Texas Workforce Commission (TWC) challenges the trial court's denial of its plea to the jurisdiction. TWC contends that Appellee Twana Seymore's discrimination and retaliation claims should have been dismissed because, according to TWC, there is no evidence that it failed to provide a reasonable accommodation for Seymore's disability, no evidence that it constructively terminated her employment, and no evidence that it paid her less than similarly situated white employees. We agree and reverse.
I. Background
Seymore worked in the tax division of TWC's Grand Prairie office, and in May 2018, TWC moved that division to its Fort Worth location.
A. Pre-Move Air-Quality Complaint
Prior to the move, a group of Grand Prairie employees (including Seymore) filed a complaint with TWC regarding the air quality at the Fort Worth office due in part to the employees' concerns about asbestos. In response, TWC commissioned two air-quality studies of the Fort Worth building-one performed in May 2018 and the other in July 2018-and the studies determined that the air quality was within the typical range and did not present a concern.
B. Request for Allergy Accommodations
After the move, Seymore indicated that the Fort Worth building aggravated her allergies. On January 16, 2019, Seymore requested accommodations for her allergies. Specifically, she asked to shift from working remotely three days per week to working remotely fulltime. Seymore supported her request with a note from her doctor stating that she suffered from "perennial allergic rhinitis that [wa]s exacerbated when she [wa]s working at an old office building in Fort Worth" and that the doctor "recommended a 3-month period of time . . . [in which Seymore would] work full-time from home" before being reassessed. The doctor's note did not identify the specific substances to which Seymore was allergic.
Seymore's employment with TWC occurred prior to the COVID-19 pandemic, as did all relevant accommodation discussions. See Abbott v. Harris Cnty., 672 S.W.3d 1, 4 (Tex. 2023) (recalling that "[o]n January 20, 2020, the United States reported its first confirmed case of a new coronavirus that soon came to be known as 'Covid-19,'" and "[l]ess than two months later, . . . the Governor issued his first coronavirus-related executive order").
C. TWC Response
Because TWC considered Seymore's position to include some in-person responsibilities, it informed her that her position was incompatible with fulltime remote work. TWC asked Seymore if she was interested in exploring alternatives such as "working from another tax office" for her two in-office days each week. It also expressed a willingness to take "steps to allow [Seymore] to work from the current [Fort Worth] office," but it noted that her "medical provider [wa]s in the best position to present alternatives."
After Seymore requested more information about TWC's proposed alternatives, in mid-February 2019, TWC sent her a letter that offered to relocate her to one of the two other TWC tax offices within commuting distance. TWC also sent Seymore copies of the 2018 air-quality studies that had been performed on the Fort Worth building, and it urged her to provide the studies "to [her] doctor so [she] and he c[ould] propose alternative accommodations." TWC further requested that Seymore "provide additional detail regarding how the building impacted her] condition" so that TWC could explore "mitigating measures . . . within the building."
TWC followed up with an email to Seymore ten days later. In it, TWC reiterated its request for "additional information from [her] doctor" and explained why Seymore's job was incompatible with fulltime remote work, what some of her in-person responsibilities were, and how allowing fulltime remote work would shift those responsibilities to her coworkers.
Seymore responded by disputing that her position was incompatible with fulltime remote work. She declined TWC's offer for her to commute to one of the two closest tax offices, and she sought a "final decision as soon as possible." Although Seymore questioned TWC's request for additional medical information, she indicated that she had "forwarded [TWC's] information to [her] doctor" and that if he responded she would notify TWC.
Seymore's response referenced her offer to work from certain other TWC locations, but she acknowledged that, according to TWC, the tax division had no "presence" at those locations.
Seymore listed the medical documentation that she had already provided, she noted that a month had passed "and no alternative accommodations ha[d] been made," and she asked, "When will it end?"
TWC complied with Seymore's request for a final decision. In March, it formally denied her request to telecommute fulltime. In its denial paperwork, TWC reiterated its various offers-including an offer to provide a list of its available positions-and it repeated its request for "additional input from [Seymore's] medical provider."
D. Seymore's Leave
Up until that point, Seymore had taken intermittent leave under the Family and Medical Leave Act (FMLA) to cover the two in-office days she would have otherwise worked each week. Then, in March-less than two weeks after TWC's formal denial of her request to work remotely fulltime-she began taking continuous FMLA leave. But by the end of May 2019, Seymore had exhausted her FMLA leave. The day before her leave was set to expire, Seymore filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination and retaliation. She also hired counsel.
At Seymore's request, TWC granted her extended paid leave, and it provided her counsel with additional information regarding some of the vacant positions that it had mentioned previously. Although the parties exchanged multiple emails about various vacant positions, many of the positions had already been filled by the time they were discussed, and Seymore was not qualified for several others. Throughout this time, Seymore repeated her desire to work remotely and took the position that "TWC c[ould] and should accommodate her with 100% remote work."
In mid-June 2019, Seymore's paid leave ran out again, and she began taking unpaid leave. But despite her unpaid status, TWC awarded her a one-time bonus equivalent to more than three-fourths of her monthly income. And in mid-July, Seymore requested additional extended leave and provided a new doctor's note to support her request.
Although the parties repeatedly reference Seymore's unpaid leave beginning in July 2019, the parties' emails during that time indicate that she began unpaid status in mid-June.
But while TWC indicated that the request for additional paid leave was "being processed," it noted that Seymore's doctor's note had expressly authorized Seymore to return to work at a different location, and it reiterated its offer for her to commute to one of its two closest tax offices. TWC also reminded Seymore that it still had not received "specific information responsive to [its] request regarding potential allergens in the Fort Worth building," and it threatened to terminate Seymore's employment if she failed to provide medical documentation to continue the discussion of potential accommodations.
E. Provision of Allergy Test
Seymore's counsel responded on July 23, 2019-more than six months after Seymore's initial accommodations request and more than a month into her unpaid leave-by providing TWC with a copy of Seymore's allergy test. The test showed that it had been completed back in December 2018, before Seymore even filed her accommodations request, and it indicated that Seymore was allergic to "Alternaria tenuis" mold.
The parties' emails indicate that Seymore's counsel had informally notified TWC of the Alternaria allergy as early as June. In early July, an attorney at TWC sent Seymore's counsel an email stating that, "[i]f [he] recall[ed] correctly, [Seymore's counsel had] mentioned Alternaria was the possible cause of her reactions, however [TWC] ha[d] not received any specific information from Ms. Seymore's medical provider about the cause of her reactions." Approximately three weeks later, in July, Seymore provided TWC with the allergy test that officially identified the specific substance to which she was allergic.
When Seymore's counsel provided TWC with the allergy test, he also pointed out that TWC's air-quality reports had indicated that Seymore's floor in the Fort Worth building contained relatively high levels of Alternaria mold. What he did not point out, though, was that the air-quality reports had shown other floors of the Fort Worth building to have lower levels of Alternaria mold. In light of this lower level of Alternaria, both parties now agree that working on a different floor of the Fort Worth building would have been a reasonable and agreeable accommodation.
F. Seymore's Departure
Regardless, the day after Seymore produced her allergy test, she proposed demoting to a fulltime remote position in the tax division "without prejudice" or "with prejudice [but] with comparable . . . salary" to her current position. TWC counteroffered with a 7% salary reduction. TWC's offer remained on the table for approximately two weeks, and when TWC followed up, Seymore notified it that she had "found other employment where she w[ould] be accommodated without having to take a reduction in pay," and she quit, effective immediately.
G. Litigation
Seymore sued TWC for five allegedly unlawful employment practices, four of which are at issue in this appeal: failing to accommodate her disability, constructively discharging her based on her disability, constructively discharging her in retaliation for her filing her EEOC complaint, and paying her less than her white coworkers. TWC responded with a combination plea to the jurisdiction and motion for traditional and no-evidence summary judgment challenging these four claims. It argued that it was immune from Seymore's suit because (1) her failure-to-accommodate claim was undermined by her quitting while accommodation discussions were ongoing; (2) her constructive-discharge claims failed because there was no evidence that TWC had constructively discharged her; and (3) her race-based discrimination claim failed because the employees to whom she compared herself were not similarly situated. After both parties submitted jurisdictional evidence, the trial court denied TWC's plea without specifying the basis for its order. TWC challenges that ruling in this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
Although the trial court held a hearing on TWC's plea, the appellate record does not contain a transcript from the hearing. The trial court's order implies that the hearing was not evidentiary.
II. Standard of Review and Governing Law
Because TWC is a state agency, sovereign immunity bars any suit against it unless the legislature has waived immunity. Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Niehay, 671 S.W.3d 929, 935 (Tex. 2023); Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). The statutory provisions under which Seymore sues-commonly referred to as the Texas Commission on Human Rights Act (TCHRA)-waive a state agency's sovereign immunity from suit, "but only when the plaintiff states a claim for conduct that actually violates the statute." Tex. Dep't of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021); see Niehay, 671 S.W.3d at 935.
The TCHRA was given its name when it was enacted in 1983, but it has since been recodified as part of the Labor Code. See Act of May 12, 1993, 73d Leg., R.S., ch. 269, §§ 1-8, 1993 Tex. Gen. Laws 987, 987-1273 (recodifying statutes as Labor Code); Commission on Human Rights Act, 68th Leg., 1st C.S., ch. 7, art. 1, sec. 1.01, 1983 Tex. Gen. Laws 37, 37 (enacting Article 5221k and providing that it "may be cited as the Commission on Human Rights Act").
An employer violates the TCHRA if it commits an "unlawful employment practice." Tex. Lab. Code Ann. § 21.051; Flores, 612 S.W.3d at 304-05. "[U]nlawful employment practice[s]" include, as relevant here, failing to accommodate an employee's disability, discharging or taking an adverse employment action against an employee based on her disability, discharging or taking an adverse employment action against an employee in retaliation for a protected activity (such as filing a complaint), and reducing an employee's compensation based on the person's race. Tex. Lab. Code Ann. § 21.051(1) (making it an unlawful employment practice to "discharge[] an individual" or to "discriminate[] in any other manner against an individual in connection with compensation" based on the person's disability or race), § 21.055 (making it an unlawful employment practice to "retaliate[] or discriminate[] against a person who . . . makes or files a charge . . . [or] files a complaint"), § 21.128(a) (making it an unlawful employment practice "to fail or refuse to make a reasonable workplace accommodation").
The TCHRA was modeled on its federal counterpart, so in determining whether a plaintiff has stated a claim under the TCHRA, we may consider the analogous federal statutes and the case law interpreting them. Niehay, 671 S.W.3d at 937; Flores, 612 S.W.3d at 304 n.1; Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000); see Tex. Lab. Code Ann. § 21.001 (listing purposes of TCHRA including "provid[ing] for the execution of the policies" in the parallel federal statutes); cf. 42 U.S.C. §§ 12101-213, 2000e-e17.
A state agency facing a lawsuit under the TCHRA may assert its immunity by challenging (1) whether the facts alleged in the plaintiff's petition affirmatively state a violation of the act and (2) whether the alleged jurisdictional facts actually exist. Lara, 625 S.W.3d at 52. TWC challenges the latter, and because it does so, the analysis resembles that of a traditional summary judgment. See id. Once TWC challenged Seymore's factual allegations with supporting evidence, she was required to raise a genuine issue of material fact on the challenged jurisdictional allegations. See id.; Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018). In determining whether Seymore met this burden, we take as true all evidence supporting her allegations, and we resolve all doubts and make all reasonable inferences in her favor. See Lara, 625 S.W.3d at 52; Flores, 612 S.W.3d at 305.
III. Discussion
TWC argues that it is immune from Seymore's suit because she failed to raise a genuine issue of material fact on her TCHRA claims. TWC contends that there is no evidence (1) that it failed to accommodate Seymore's disability; (2) that it constructively discharged her; and (3) that the white employees to whom she compares herself were similarly situated.
TWC does not list this in its issues presented, but the challenge is fully briefed.
A. No fact issue regarding TWC's alleged failure to accommodate.
TWC first asserts immunity from Seymore's claim for failure to accommodate. In TWC's plea to the jurisdiction, it argued that no reasonable jury could conclude that it failed to make reasonable accommodations because Seymore quit while the interactive negotiation of accommodations was ongoing.
The TCHRA makes it "an unlawful employment practice for [an employer] . . . to fail or refuse to make a reasonable workplace accommodation" for a known disability, subject to exceptions. Tex. Lab. Code Ann. § 21.128(a); cf. 42 U.S.C. § 12112(a), (b)(5)(A). When a disabled employee requests a reasonable accommodation, the employer and employee must engage in an "'interactive process,' or a 'flexible dialogue,' to determine an appropriate accommodation." Hoskins v. GE Aviation, 803 Fed.Appx. 740, 745 (5th Cir. 2020) (per curiam) (quoting Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 481 (5th Cir. 2016)). "[T]he responsibility for fashioning a reasonable accommodation is shared between the employee and the employer," in part because "each party holds information the other does not have or cannot easily obtain." Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) (emphasis removed and internal quotations omitted). "[A]n employer cannot be found to have violated the ADA [or its Texas counterpart, the TCHRA] when responsibility for the breakdown of the 'informal, interactive process' is traceable to the employee and not the employer." Id.
1. Breakdown was traceable to Seymore.
We agree with TWC that the breakdown of the interactive process was traceable to Seymore.
TWC also argues that Seymore's failure to provide her allergy test until July 23, 2019, demonstrates that she did not participate in the interactive process in good faith. Because we agree with TWC that the interactive process's breakdown was traceable to Seymore's resignation, though, we need not address TWC's good-faith argument. See Tex. R. App. P. 47.1.
The interactive process's breakdown is traceable to the employee if the employee voluntarily quits or retires while the process is ongoing. Equal Emp. Opportunity Comm'n v. Methodist Hosps. of Dall., 62 F.4th 938, 949-51 (5th Cir. 2023) (holding no evidence of failure to accommodate when employee "withdrew from the process before the ultimate accommodation could be offered"); Jackson v. Blue Mountain Prod. Co., 761 Fed.Appx. 356, 360-62 (5th Cir. 2019) (per curiam) (holding no evidence of failure to accommodate when employee retired before interactive process concluded); Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 220-21, 224-25 (5th Cir. 2011) (holding no evidence of failure to accommodate when employer initially declined to change schedule for diabetic employee and "[r]ather than providing additional information about his illness or requesting that [the employer] reconsider its decision, [the employee] retired on his own accord"). As the Fifth Circuit has held, "an employee's 'unilateral withdrawal from the interactive process is fatal to [her] claim,' so long as the employer 'engage[d] in a good-faith, interactive process with [the employee] regarding [her] request for a reasonable accommodation.'" Equal Emp. Opportunity Comm'n., 62 F.4th at 950-51 (internal citations omitted).
Here, Seymore unilaterally withdrew from the interactive process by resigning from TWC while the negotiation of accommodations was ongoing. Just a few weeks before Seymore quit, she proposed demoting to a remote position in the tax division, and TWC offered demoting her with a 7% reduction in salary. This offer was still pending when Seymore quit; in fact, in the intervening weeks, TWC had followed up with her attorney multiple times to request a response to its offer. Seymore's resignation abruptly ended the interactive process, depriving the factfinder of "the opportunity to know exactly what accommodations would ultimately have been provided." Id. at 950 (quoting Loulseged, 178 F.3d at 737); see Jackson, 761 Fed.Appx. at 362 (explaining that, "[f]or the same reasons that retiring [during the interactive process] prevents a jury from determining that [the employer] would not provide a reasonable accommodation, [the employee's] decision to retire caused a breakdown in the interactive process").
Seymore's "unilateral withdrawal from the interactive process is fatal to [her] claim." Equal Emp. Opportunity Comm'n., 62 F.4th at 950-51 (internal citations omitted).
2. No evidence of TWC's bad faith.
But Seymore argues that the interactive process had broken down before she quit because TWC had not engaged in the interactive process in good faith. See id. (describing unilateral withdrawal as "fatal . . . so long as the employer engage[d] in a good-faith, interactive process" (internal citations and quotation marks omitted)). According to Seymore, TWC's bad faith is evidenced by its withholding of the option for her to work from another floor of the Fort Worth office, its declining to maintain her current salary if she demoted to a remote position, and its refusing to allow her to telecommute fulltime.
First, we disagree that TWC withheld the option of Seymore's working from a different floor; the record reflects that it had no way of knowing that this was a viable option until the eve of her resignation. For six of the seven months of the interactive process, TWC did not know the substance to which Seymore was allergic. Although TWC repeatedly requested more information about the nature of Seymore's allergies-noting that it needed the information "so that mitigating measures c[ould] be considered within the building"-no such information was provided until July 2019.
As previously noted, the parties' emails indicate that Seymore's counsel had informally notified TWC's counsel of the Alternaria allergy as early as June 27. But TWC's counsel had questioned his memory-"[i]f I recall correctly, it was Alternaria"-and requested medical documentation establishing the diagnosis. Regardless, even using the June date, TWC was not aware of the Alternaria allergy for five of the seven months of the interactive process.
But Seymore, on the other hand, months earlier, had all the information she needed to identify the option of working from another floor of the Fort Worth building. In February 2019, just one month into the interactive process, TWC provided Seymore with its air-quality studies and urged her to share the studies with her doctor "so he c[ould] provide additional information regarding how [her] condition [wa]s exacerbated by the air quality in the office" and so "he c[ould] propose alternative accommodations." At that point, two months had passed since her December 2018 allergy test had been administered, so Seymore had the information necessary to discover the feasibility of working from another floor of the Fort Worth Office. And just as was noted in Equal Emp. Opportunity Comm'n, nothing in this record leads to a reasonable inference that TWC, as the employer, "would not [have] consider[ed this or] other possible accommodations if [Seymore, the employee, had] brought them to its attention." Id. at 950 (emphasis removed) (quoting Loulseged, 178 F.3d at 739-40). Yet, Seymore did not propose working from another floor, and she waited another five months to provide TWC with the information necessary for it to realize that her working from another floor was an option. This does not equate to TWC's withholding the option in bad faith.
Nor does TWC's offer of a lower-paying position indicate bad faith. Seymore argues that TWC exhibited bad faith by refusing to maintain her current salary if she demoted to a remote position in the tax division. But we do not know whether TWC would have refused to maintain Seymore's salary-the possibility of a demotion was still being negotiated when Seymore resigned, and TWC's offer of a 7% salary reduction is not tantamount to a refusal of all other salary figures. Either way, in such situations, "[a] disabled employee has no right to a promotion, to choose what job to which [s]he will be assigned, or to receive the same compensation as [s]he received previously." Griffin, 661 F.3d at 224 (quoting Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007)). TWC's proposed salary reduction does not create a fact issue regarding TWC's exercise of good faith.
Similarly, TWC's failure to allow Seymore to work remotely in her then-current position does not show bad faith. Although Seymore insisted that fulltime remote work was a reasonable accommodation, an employee is not entitled to her preferred accommodation. E.T. v. Paxton, 19 F.4th 760, 767 (5th Cir. 2021) ("[P]laintiffs are not entitled to their preferred accommodation, but only a reasonable accommodation."); Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021) (similar, holding employee failed to raise fact issue on failure to accommodate when employer rejected employee's preferred accommodation and offered unpaid leave); Hagood v. Cnty. of El Paso, 408 S.W.3d 515, 525-26 (Tex. App.-El Paso 2013, no pet.) (rejecting employee's insistence that his employer should have accommodated him by moving his cubicle and noting that the analogous federal law "provides a right to reasonable accommodation, not to the employee's preferred accommodation").
3. No waiver of immunity.
Furthermore, the reasonableness of TWC's ultimate accommodation will never be known because Seymore unilaterally withdrew from the interactive process before a final accommodation could be decided. See Equal Emp. Opportunity Comm'n, 62 F.4th at 950 (holding no evidence of failure to accommodate when employee withdrew by failing to respond to offer of unpaid leave and stating that unilateral withdrawal "deprives us of the opportunity to know exactly what accommodations would ultimately have been provided" (internal citations and quotation marks omitted)); Griffin, 661 F.3d at 224-25 (holding no evidence to support failure to accommodate claim when worker retired rather than engaging in interactive process and explaining that "it [wa]s difficult to discern what measures may have been taken had accommodation discussions continued"); Loulseged, 178 F.3d at 734-41 (holding no evidence of failure to accommodate and noting that "[i]n an ordinary case of this sort, the finality of an accommodation can usually be presumed-generally because the employer took some concrete adverse employment action such as terminating the employee . . . [-but i]n this case . . ., the employee quit"). Consequently, no reasonable jury could find that TWC failed to provide a reasonable accommodation. The TCHRA's waiver of immunity does not apply, and the trial court erred by denying TWC's jurisdictional challenge to Seymore's claim for failure to accommodate.
B. No fact issue regarding Seymore's alleged constructive discharge.
TWC also asserts that the TCHRA's waiver of immunity does not apply to Seymore's constructive-discharge claims because there was no evidence that TWC forced her to resign.
The TCHRA prohibits an employer from taking "a material adverse employment action" in retaliation for the employee's filing a complaint. Lara, 625 S.W.3d at 58; see Tex. Lab. Code Ann. § 21.055(3). It also prohibits an employer from discriminating based on an employee's disability by discharging the employee or taking a similar adverse employment action. Tex. Lab. Code Ann. § 21.051; Green v. Dall. Cnty. Schs., 537 S.W.3d 501, 503 (Tex. 2017) (listing elements). As the Texas Supreme Court has pointed out, "[a] constructive discharge qualifies as an adverse personnel action under the TCHRA, but [it] requires proof that the employer made the working conditions so intolerable that a reasonable person would feel compelled to resign." Waffle House, Inc. v. Williams, 313 S.W.3d 796, 805 (Tex. 2010).
Seymore pleaded both retaliation and discrimination; she alleged that, in retaliation for her EEOC complaint and as a result of her disability, TWC constructively discharged her by refusing to accommodate her and then forcing her to go several weeks without pay.
But as we have already held, there was no evidence that TWC refused to accommodate Seymore. The record reveals that TWC actively engaged in the interactive process for seven months, that Seymore unilaterally withdrew from the interactive process, and that she left a pending offer from TWC on the table when she quit.
Nor does Seymore's unpaid leave raise a fact issue on constructive discharge. "Time off, whether paid or unpaid, can be a reasonable accommodation." Jennings, 11 F.4th at 344 (quoting Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017)). And the jurisdictional evidence shows that most of Seymore's time off was, in fact, paid.
TWC allowed Seymore to take FMLA leave intermittently for two months, then it allowed her to take continuous FMLA leave for another two and a half months, and when she ran out of FMLA leave, TWC granted her two additional weeks of paid leave before giving her a one-time bonus equivalent to more than 80% of her monthly salary. Even when Seymore transitioned to unpaid status in mid-June 2019, it was not clear that that status would continue. After a month of unpaid leave, Seymore requested additional paid leave, and although TWC requested updated "responsive" medical documentation, it did not categorically reject the possibility of granting her additional paid leave.
No employer can be expected to provide paid leave indefinitely. See Lara, 625 S.W.3d at 57 (recognizing "that indefinite leave is not a reasonable accommodation" but holding that evidence raised fact issue regarding whether employee had requested indefinite leave). And no reasonable juror could conclude that TWC made Seymore's working conditions "intolerable" by providing approximately two months of intermittent paid leave followed by three months of continuous paid leave before allowing her to fall into unpaid status-buoyed by a substantial one-time bonus. See Waffle House, 313 S.W.3d at 805 (listing elements of constructive-charge TCHRA claim).
Because there was no evidence of constructive discharge, the TCHRA's waiver of immunity does not apply, and the trial court erred by denying TWC's jurisdictional challenge to these claims.
C. No fact issue regarding TWC's alleged racial discrimination.
In its final argument, TWC claims that it is immune from Seymore's race-based discrimination claim because she does not compare herself to employees who were similarly situated.
The TCHRA prohibits an employer from compensation-related discrimination based on an employee's race. Tex. Lab. Code Ann. § 21.051(1); cf. 42 U.S.C. § 2000e-2(a)(1). When, as here, the plaintiff relies on circumstantial evidence of discriminatory intent and the case has not been fully tried on the merits, the plaintiff must "establish a prima facie case of discrimination." Johnson v. TCB Constr. Co., 334 Fed.Appx. 666, 669-70 (5th Cir. 2009) (per curiam); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973); Flores, 612 S.W.3d at 305. Establishing a prima facie case of race-based disparate pay requires evidence that, among other things, the employee was treated less favorably than similarly situated employees of another race. See Ysleta Indep. Sch. Dist., 177 S.W.3d at 917 (listing elements and discussing the meaning of "similarly situated" in gender-discrimination context); Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 83-84 (Tex. App.-El Paso 2020, no pet.) (quoting and applying Ysleta Indep. Sch. Dist. in disparate-pay case). Seymore wholly failed to establish that the white employees to whom she compared herself were similarly situated.
Generally, "[e]mployees are similarly situated if their circumstances are comparable in all material respects." Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 584 (Tex. 2017) (quoting Ysleta Indep. Sch. Dist., 177 S.W.3d at 917); Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 56 (Tex. App.-Houston [1st Dist.] 2011, pet. denied) (same). These include the employees' job responsibilities and qualifications. See Foster v. Ferrellgas, Inc., 834 Fed.Appx. 88, 90 (5th Cir. 2020) (per curiam) (noting that, in determining similarity, courts consider the employees' job description, experience, education, and other qualifications); Aguilar, 600 S.W.3d at 84 (stating that "[e]mployees with different responsibilities, supervisors, and capabilities are not similarly situated" (internal quotation marks omitted)); Smith v. Harris Cnty., No. 01-18-00247-CV, 2019 WL 1716418, at *10 (Tex. App.-Houston [1st Dist.] Apr. 18, 2019, no pet.) (mem. op.) (similar).
Seymore attempted to establish a prima facie case in response to TWC's plea by providing a table of salaries received by unidentified employees who shared her job title. But Seymore herself acknowledged that even employees with the same job title had different job duties at different offices, and there was no information regarding the job duties, experience, or qualifications of the unidentified individuals included in Seymore's comparative table. In fact, Seymore's response to TWC's plea did not name any specific comparators at all; she simply argued that, on average, the white employees who shared her job title and worked in TWC's various regional offices were paid higher salaries than the black employees. She thus failed to present a prima facie case that she was similarly situated to the unidentified employees in her table. See Aguilar, 600 S.W.3d at 84 ("[I]n disparate pay cases, if a plaintiff cannot show her job responsibilities are substantially the same as the comparators, she cannot establish a prima facie case by comparing her compensation to that of the comparators." (italics removed)).
Plus, to the extent that Seymore had previously compared herself to specific individuals, TWC's jurisdictional evidence established that those individuals were not similarly situated. Even though Seymore did not name any specific comparators in her response to TWC's plea, in her prior deposition, she had identified five white employees "in our area" who she thought were paid more than her. And TWC addressed those five white employees in its plea to the jurisdiction, i.e., a TWC representative averred that, of the five employees Seymore had mentioned, one had the same salary as Seymore, three had a longer tenure at TWC, and one had supervisory and other higher-level TWC experience. Seymore did nothing to rebut this evidence.
When faced with a similar record, the Fifth Circuit held that a plaintiff had failed to present a prima facie case of race-based disparate pay because he compared himself to coworkers with different tenures and levels of experience. Jackson v. Honeywell Intern., Inc., 601 Fed.Appx. 280, 285 (5th Cir. 2015). In Jackson, the plaintiff identified two white employees who he alleged were paid more than he was, but the "record show[ed] that these two white employees were hired by [the employer] at different times, held different positions, and worked under different supervisors; there [wa]s no evidence that [the plaintiff] and these white employees had similar job duties, disciplinary histories, or levels of experience." Id.
In Foster v. Ferrellgas, Inc., the plaintiff compared herself to individuals who shared her job title and supervisor, but "she provided virtually no evidence concerning their relevant qualifications, nor did she establish that they performed comparable work." 834 Fed.Appx. at 91. The Fifth Circuit again held that the plaintiff had failed to present a prima facie case of disparate pay. Id. at 90-91.
Similarly here, Seymore did not establish a prima facie case of race-based disparate-pay discrimination. Absent evidence that the white coworkers to whom she compared herself shared her job duties and qualifications, the mere fact that their salaries differed from hers-or that the average salary for white employees differed from that for black employees-was insufficient to support her claim for racial discrimination under the TCHRA. See Johnson, 334 Fed.Appx. at 670 (holding employee established a prima facie case when comparing himself to fellow non-black workers but failed to establish a prima facie case when comparing himself to employees who may or may not have had similar job duties). Because Seymore failed to raise a fact issue on this claim, the TCHRA's waiver of immunity does not apply, and the trial court erred by denying TWC's jurisdictional challenge to the claim.
By the same token, even if Seymore had presented a prima facie case, TWC's jurisdictional evidence established a nondiscriminatory reason for the pay disparity. See Johnson, 334 Fed.Appx. at 670 (holding that employee failed to rebut nondiscriminatory explanation for difference in pay when employer described differing tenures and levels of experience). To survive TWC's plea to the jurisdiction, then, Seymore would have been required to respond "by presenting evidence raising a fact issue on pretext or by challenging [the defendant's] summary judgment [or jurisdictional] evidence as failing to prove, as a matter of law, that the [re] was a legitimate, nondiscriminatory reason for h[er] termination." M.D. Anderson, 28 S.W.3d at 24. Seymore did neither-she provided an abstract table of salaries filtered by race, but she did not challenge the validity or legitimacy of TWC's explanation for the pay disparities in the trial court.
IV. Conclusion
Seymore failed to raise a fact issue on her TCHRA claims for failure to accommodate, constructive discharge, and race-based discrimination. Therefore, the TCHRA's waiver of immunity does not apply to these claims. We reverse the trial court's order denying TWC's plea to the jurisdiction, and we render judgment dismissing with prejudice Seymore's claims for failure to accommodate, constructive discharge based on her disability, constructive discharge in retaliation for her EEOC complaint, and race-based discrimination. See Lara, 625 S.W.3d at 62 (affirming part of appellate court's judgment dismissing claims with prejudice); Aguilar, 600 S.W.3d at 94 (rendering judgment on TCHRA retaliation claims).
Seymore's live petition also included a broad TCHRA claim for disparate treatment based on her disability, but her petition did not specify the nature of the disparate treatment. TWC's plea to the jurisdiction did not address this claim.