Michael Massengale Justice

On Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2015-44178

MEMORANDUM OPINION

Appellant UT Health Science Center-Houston (UTHealth) has filed an interlocutory appeal from the trial court's denial of its plea to the jurisdiction. The underlying case is a suit by appellee Christie Carver, a former employee of UTHealth, alleging employment discrimination and retaliation. UTHealth raises three issues arguing that the trial court erred by denying its plea to the jurisdiction as to Carver's claims for disparate treatment based on race and gender, hostile work environment, and retaliation. In addition, UTHealth challenges Carver's affidavit evidence for the first time on appeal.

Because we conclude that the trial court should have dismissed Carver's claim for gender-based disparate-treatment discrimination, we reverse the trial court's order in part, and we otherwise affirm the order.

Background

This is an employment-discrimination case. The plaintiff, Christi Carver, who is Caucasian, worked as a telephone-triage nurse for UTHealth for approximately 18 weeks in 2014. She contends that her supervisor, David Riley, who is African-American, harassed her, threatened her with physical violence, and treated her in an abusive manner due to her gender and race. She further contends that he treated other non-African-American female nurses the same way, but he behaved much differently toward Lela Sanders, the only African-American female nurse in the telephone-triage department. Carver contends that she complained to Sandra Kelley, the human-resources representative, and Dr. Sandra Tyson, the department manager, but her complaints were not addressed. She further contends that the mistreatment continued and worsened after she filed a grievance with Dr. Tyson and later appealed its disposition.

In the grievance, Carver asserted that hostile working conditions persisted in the department where she worked. She alleged that the nurses had been targets for Riley's volatile temper, bullying, and inappropriate reprimands. She stated that Riley's behavior resulted in "a stressful and unhealthy working environment," that she constantly worried about herself and her team members, and that the threat of Riley's "explosive temper" kept her "on edge." She also noted several specific instances when Riley's temper flared at individual nurses when they asked a question or commented during a departmental meeting. On one occasion, Riley "wildly kicked a chair and raised his arms as he loudly yelled at" another nurse.

In her response to the grievance, Dr. Tyson conducted an investigation, which included interviewing the other nurses. Dr. Tyson concluded that Riley presented no threat to Carver or anyone else and that the supervisors had acted appropriately. Among other things, Dr. Tyson found that Riley had "apologized to the person to whom the anger and raised voice was directed," and that those interviewed "do not feel scared" of him, "nor do they feel unsafe in any way." She also explained that in her interviews she had asked each nurse if Riley had "discussed sexual activities; told off-color jokes concerning race, sex, disability, or other protected classes; engaged in unnecessary touching; commented on physical attributes; displayed sexually suggestive, or racially insensitive pictures; used demeaning or inappropriate terms, or epithets; used indecent gestures; used crude language; sabotaged anyone's work; or engaged in hostile physical conduct." Dr. Tyson found that each person interviewed "gave a resounding 'No' to each one."

Two days later, Dr. Tyson became aware that Carver intended to appeal the response to the grievance and that she had sent an email to four of the nurses seeking support. Dr. Tyson told the telephone-triage nurses about Carver's grievance, warned them not to discuss or work on it during the work day, and said they were not obligated to assist.

Carver appealed Dr. Tyson's response to her grievance by submitting a letter to Andrew Casas, Vice President and Chief Operating Officer of UTHealth. Carver refuted the findings in the response, and she added information pertaining to Dr. Tyson's warning to the nurses. Carver asserted that Dr. Tyson's findings misrepresented the facts that had been shared by the people who were interviewed. For example, Carver wrote: "Despite Dr. Tyson's findings that no one worried or worries about David Riley's temper, I believe 3 interviewees told her they did and they still do. Each one told me that their answers were very different than Dr. Tyson wrote in her response to me." She also wrote: "I did not complain about protected class discrimination. I do not know why Dr. Tyson addressed those things in her response." And Carver stated that Nancy Perkins, the nurse who had been the subject of the chair-throwing incident, told her "that David Riley never apologized to her for his temper outbursts." The next day, Perkins was fired "for not being a team player," and she was escorted from the premises by UT police.

Carver developed physical symptoms including dizzy spells, chest pain, shortness of breath, and difficulty breathing, which she contends was a result of her hostile work environment. She also had been seen in the emergency room due to chest pain, sleeplessness, and dizziness. Carver resigned, and about a month later she filed a discrimination charge with the Equal Employment Opportunity Commission and the Texas Workforce Commission.

About a year later, Carver sued UTHealth for violations of the Texas Commission on Human Rights Act (TCHRA). See TEX. LAB. CODE §§ 21.001-.556. Her petition alleged the following facts:

• "Christie Carver was a good employee who did her job well."

• "She was discriminated against because of her race and gender and was retaliated against for opposing discriminatory practices in the workplace."

• "Christie Carver was a nurse in the DSRIP [Delivery System Reform Incentive Payment] Telephone Triage office."

• "David Riley did not like Christie Carver because she is female and is not African American."

• "Riley is male and African American."

• "He managed Christie Carver and the other female, non-African-American nurses in the office by bullying them, throwing temper tantrums, and routinely trying to intimidate them."

• "There were incidents where Christie Carver feared that David Riley would physically assault her and other nurses."

• "Between February and July of 2014, at least twelve good nurses were either fired or quit because of the hostile work environment created by David Riley, and his supervisors' failure to correct the situation."

• "Christie Carver reported this discrimination to David Riley's supervisor, Monica Smith, her supervisor, Dr. Sandra Tyson, and to Sandy Kelley in human resources."

• "When nothing was done, Christie Carver filed a grievance.

• "She was severely retaliated against when she reported and later grieved about the discrimination."

• "Dr. Tyson conducted an 'investigation,' during which she took witness statements and lied about what was said."

• "Witnesses that supported Christie Carver's claims of discrimination were fired."

• "Christie Carver filed an appeal of Dr. Tyson's finding that David Riley had done nothing wrong."

• "Dr. Tyson flew into a rage in front of the whole office, telling everyone about Christie Carver's grievance, and warning others not to support it or to respond to an email that was authorized by human resources for Christie Carver to send."

• "Christie Carver's work environment was so hostile that it was literally making her sick. She was dizzy, had many sleepless

nights, had chest pains, and had to be taken to the emergency room."

• "She was subjected to such a hostile work environment that a reasonable person would have felt compelled to resign, and she was therefore constructively discharged from her position in July of 2014."

UTHealth identified three TCHRA causes of action reasonably alleged by Carver's petition: disparate-treatment discrimination based on gender and race; hostile work environment; and retaliation. UTHealth filed a plea to the jurisdiction, asserting governmental immunity. In it, UTHealth acknowledged that governmental immunity is waived in suits in which the plaintiff pleads facts sufficient to state a claim under the TCHRA. But it also asserted that Carver did not allege facts sufficient to state TCHRA claims.

As to the disparate-treatment claim, UTHealth argued that Carver had "no evidence that male or non-Caucasian nurses were treated better than she was." It relied on excerpts from Carver's deposition in which she said that there were no male nurses in the telephone-triage department and that she never saw Riley bullying Sanders, the only African-American nurse. Carver also alleged in an interrogatory response that Sanders "was often in closed meetings" with Riley under circumstances that "looked like racial preference" to her. UTHealth contended that Carver did not know if Sanders was paid more for her participation in these meetings, and she had "no evidence that Sanders was not performing other job duties when she was away from the unit." UTHealth argued that Carver had "no evidence to show that Sanders was not performing other job duties when she was in closed-door meetings, or that this was somehow a privilege that only Sanders received." Finally UTHealth argued that the "sole basis" for Carver's disparate treatment claims was "her unsupported belief that Riley did not like her because she is female and is not African American."

Carver responded with her own affidavit, along with affidavits from two former colleagues from the telephone-triage department who also were Caucasian women, Perkins and Jeanne Hartranft. All three women began working in the telephone-triage department in March 2014, and all averred that from the beginning Riley bullied non-African-American female nurses in the department. They all averred that Riley "yelled at" several of them, including Carver, "often interrupting" their phone calls. They all described an angry outburst when Riley nearly struck a nurse with his hand, and a second angry outburst when he kicked a chair in front of one of his supervisors. They all described ongoing intimidating and verbally abusive treatment by Riley directed toward the nurses with one exception—Sanders, the sole African-American nurse, whom they averred was treated respectfully. They all averred that the pattern of ongoing harassment of the non-African-American nurses continued through June or July 2014, i.e., the date of each nurse's separation based on firing or resignation.

The following exhibits were attached to Carver's affidavit: (1) her May 28, 2014 grievance, with additional notes from the same date regarding the grievance, (2) Dr. Tyson's response to the grievance, (3) Carver's letter internally appealing the response to the grievance, (4) August 2014 emails from Anna George, another non-African-American nurse in the telephone-triage department. George's emails indicated that she was "really frightened" to work for Riley, and they detailed behavior by Riley that was consistent with the affidavits by Carver, Perkins, and Hartranft. In addition, George suggested that she experienced health problems due to the stress of working in that department.

In addition to the affidavits, Carver attached transcripts of Dr. Tyson's and Kelley's depositions. Dr. Tyson testified she largely did not recall the specific instances alleged, or she refuted the allegations against her and Riley. She said that Riley's angry outbursts toward the nurses were part of a larger context in which each of the nurses in question was difficult or lacked communication skills. In her deposition, Kelley recalled being contacted by Perkins, Hartranft, Carver, and George. Most of the complaints she received from those nurses pertained to Riley. Kelley testified that she spoke with Carver more than once about "management issues, the way a manager treats their employees." She testified that managers are not supposed to yell at, intimidate, or physically threaten their employees. Carver related to Kelley that she felt physically threatened by Riley on two occasions. Kelley said that the nurses never told her that they thought Riley's conduct toward them was motivated by racial or gender bias.

As to the hostile-work-environment claim, UTHealth argued that the conduct that Carver challenged "was not based on any protected characteristic" and "it was not severe or pervasive enough to meet the high standard for showing a hostile work environment." In particular, UTHealth argued that Riley's actions did not materially alter Carver's conditions of employment and were not tied to race or gender. In addition, UTHealth argued that Carver had not established that her resignation was a constructive discharge. Carver responded that the hostile work environment was shown by evidence that she was subjected to unwelcome harassment, constant yelling, threats of physical violence, and false accusations of misconduct and lack of integrity. She argued that Dr. Tyson "screamed at her" and "humiliated" her because she filed a grievance. She maintained and that this supported both her hostile-work-environment and retaliation claims.

As to the retaliation claim, UTHealth argued that Carver failed to show that she opposed a race-based or gender-based discriminatory practice or that she filed a charge of discrimination before she resigned. In particular, UTHealth argues that Carver provided no evidence of retaliation and that, at her deposition, she conceded that her grievance did not allege that Riley was retaliating against her for complaining. In addition, UTHealth relied on Carver's statement in her letter appealing Dr. Tyson's response to her grievance, which stated: "I did not complain about protected class discrimination." UTHealth thus argued that the "retaliation claim is barred by immunity" because Carver "does not and cannot allege facts establishing the necessary prima facie elements of her claims." In response, Carver argued that she had reported race-based and gender-based discrimination to human resources and those reports support her retaliation claim.

The trial court denied the plea to the jurisdiction, and UTHealth appealed.

Analysis

On appeal, UTHealth raises three issues arguing that the trial court erred by denying its plea to the jurisdiction. We review a trial court's ruling on subject-matter jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

I. Evidentiary objections

As a preliminary matter, we must address objections raised by UTHealth about Carver's supporting evidence. In its reply brief, UTHealth complains about Carver's statement of facts, raising for the first time on appeal an objection about her "supporting evidence." In particular, UTHealth challenges the affidavits relied upon by Carver as "conclusory and unsupported." Rather than challenging specific statements in each affidavit, UTHealth has challenged specific passages from Carver's appellate statement of facts "and the evidence she cites in support."

The challenges asserted that the identified statements were (1) inadmissible, (2) irrelevant, (3) hearsay, (4) lacking in a proper foundation or personal knowledge, (5) speculative, conclusory, or otherwise without factual support, (6) false, (7) contrary to the affiant's deposition testimony, (8) contrary to other documentary evidence or deposition statements by other witnesses, (9) subjective opinion, (10) self-serving, and (11) not the best evidence.

Generally, to preserve an objection for appellate review, the trial court must either make an express or implicit ruling. TEX. R. APP. P. 33.1. However, in the context of affidavits, some defects may be raised for the first time on appeal. See Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Defects in affidavits fall into two categories: defects of substance and defects of form. See Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

"A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible." Id. Objections to substantive defects are never waived, and they may be raised for the first time on appeal because incompetent evidence "cannot be considered under any circumstances." Id.

Objections to formal defects in affidavits are waived if the party contesting the affidavit has not objected and secured a ruling in the trial court. See Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Hung Tan Phan v. An Dinh Le, 426 S.W.3d 786, 792 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Formal defects include objections to hearsay, lack of foundation, lack of personal knowledge, sham affidavit, statement of an interested witness that is not clear, positive direct, or free from contradiction, best evidence, self-serving statements, and unsubstantiated opinions. See Lagou v. U.S. Bank Nat'l Ass'n, No. 01-13-00311-CV, 2013 WL 6415490, at *4 (Tex. App.—Houston [1st Dist.] Dec. 5, 2013, no pet.) (mem. op.) (best evidence); S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011, no pet.) (self-serving); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.) (sham affidavit); Broadnax v. Kroger Texas, L.P., No. 05-04-01306-CV, 2005 WL 2031783, at *5 (Tex. App.—Dallas August 24, 2005, no pet.) (mem. op.) (lack of personal knowledge and hearsay); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.) (interested witness, hearsay, and lack of personal knowledge); Montemayor v. Chapa, 61 S.W.3d 758, 763 (Tex. App.—Corpus Christi 2001, no pet.) (unsubstantiated opinion); Rizkallah v. Conner, 952 S.W.2d 580, 585-86 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (lack of personal knowledge and competence). Substantive defects include an objection that the statements in the affidavit are conclusory or irrelevant. See Green, 1 S.W.3d at 130 (conclusory); McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (relevance).

Some of the portions of the statement of facts that UTHealth challenges are not supported by the nurses' affidavits at all. Instead Carver relied upon deposition testimony from Dr. Tyson or Kelley or other documents in the appellate record. Because UTHealth did not object to this evidence in the trial court, its objections are waived. See TEX. R. APP. P. 33.1. Other challenged portions of the statement of facts refer to statements in the nurses' affidavits which UTHealth contends were false or contrary to documents or testimony from other witnesses. This does not demonstrate that the challenged statements are incompetent, only that they are controverted, raising a question of fact. See Mathis, 982 S.W.2d at 60. Thus, these arguments do not raise a non-waivable substantive defect in Carver's evidence. See id.

Other objections to the affidavits are waivable formal defects. These include UTHealth's contentions that statements in the affidavits were inadmissible, hearsay, lacking a proper foundation or personal knowledge, subjective opinion, self-serving, and not the best evidence. These challenges are waived because UTHealth did not raise them in the trial court. See Grand Prairie Indep. Sch. Dist., 792 S.W.2d at 945; Hung Tan Phan, 426 S.W.3d at 792. UTHealth's contention that Carver's affidavit contradicted her earlier deposition testimony is an objection to a sham affidavit, and it is waived as well. See Hogan, 197 S.W.3d at 882-83 (sham affidavit); see also Tejada v. Gernale, 363 S.W.3d 699, 707 (Tex. App.— Houston [1st Dist.] 2011, no pet.); Farroux v. Denny's Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.).

UTHealth's contentions that some statements in the affidavits were irrelevant, speculative, conclusory, or otherwise without factual support are objections to substantive defects. See Green, 1 S.W.3d at 130; McMahan, 108 S.W.3d at 498. UTHealth specifically challenged (1) the nurses' statements that Riley was bullying and targeting people (conclusory), (2) a reference to nurse Marsha Urbina as "an older nurse" (relevance), (3) allegations in the nurses' affidavits regarding Riley's and Smith's treatment of Sanders on April 15, 2014 (speculation and relevance to adverse employment action), (4) allegations in Perkins's and Hartranft's affidavits about Dr. Tyson's investigation conducted on May 30, 2014 (conclusory), and (5) allegations in the nurses' affidavits regarding the June 12, 2014 firing of Perkins and Hartranft's July 9, 2014 resignation (relevance to Carver's case).

"A conclusory statement is one that does not provide the underlying facts to support the conclusion." Frank's Int'l, Inc. v. Smith Int'l, Inc., 249 S.W.3d 557, 566 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Similarly, a statement is speculative if it is based on a guess and lacking in supporting facts. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 n.5 (Tex. 2012)).

UTHealth challenged the nurses' statements that Riley was bullying and targeting people in the department as conclusory. But the basis for the conclusion was provided in the affidavit. Carver averred, "David Riley bullied Penny (Caucasian), an older nurse, in front of me." Carver already had averred that the affidavit was made on her personal knowledge, and the underlying fact is the bullying of Penny. Similarly, Carver averred that Urbina was "targeted" by Riley. She explained that Riley became angry when Urbina asked him questions he could not answer. Carver averred that Urbina was soon fired for insubordination. These facts support Carver's statement that Urbina was targeted.

UTHealth's contention that the May 30, 2014 allegations in the Perkins and Hartranft affidavits were conclusory is similarly without merit. Both Perkins and Hartranft averred that their affidavits were made from personal knowledge. Perkins averred that Dr. Tyson lied on May 30, 2014 about what was said. However, Perkins also averred that she was interviewed as part of the investigation, that she complained about Riley's actions, and that she was shown Dr. Tyson's response to the grievance. Perkins averred that Dr. Tyson's response "completely changed or ignored everything that I had told Dr. Tyson about David Riley and his conduct." These underlying facts, though controvertible, support the conclusion that Dr. Tyson "lied."

UTHealth challenged the nurses' allegations about the events of April 15, 2014 as being speculative. Carver averred that Riley and Smith came into the office looking for Sanders, who was the most recent hire and had the least experience and knowledge about the job. Part of Carver's statement included a conclusion about Sanders's knowledge of the job. This was not speculative because it was based on the fact of Sanders's tenure in her position. The remaining statements detailed factual observations, such as Riley and Smith telling Sanders that they wanted her to go to a managerial meeting and that Sanders was often in closed-door meetings during periods of high customer demand. These were observations based on Carver's personal knowledge. As such, we conclude that the April 15, 2014 allegations were not speculative. See Nat. Gas Pipeline, 397 S.W.3d at 156.

"Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." TEX. R. EVID. 401. UTHealth challenges statements in the nurses' affidavits that Urbina was "older," that Perkins was fired and Hartranft resigned, and that Riley was more patient and amiable with Sanders than the other nurses. Urbina's age is not relevant to Carver's claim because she had not claimed age discrimination. However, the facts averred by Perkins and Hartranft are relevant to the constructive discharge inquiry because these facts have some tendency to influence a determination of whether a reasonable person would resign from a job. Facts averred about the different treatment of Sanders has some tendency to make it more probable that Riley would be found to have engaged in disparate treatment of the employees because he favored her. As such, we conclude that all of the challenged evidence, except for the allegation that Urbina was "older" was relevant. We will not consider Urbina's age in our disposition of this appeal.

II. Plea to the jurisdiction

"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). "Typically, the plea challenges whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case." Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia II), 372 S.W.3d 629, 635 (Tex. 2012). Pleadings are reviewed liberally in favor of the plaintiff, and a plaintiff's good-faith allegations are used to determine the trial court's jurisdiction. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 502-03 (Tex. 2010); Miranda, 133 S.W.3d at 226. "If there is a gap in jurisdictional facts, the trial court is required to afford the plaintiff an opportunity to amend its pleadings." Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 792 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

A plea to the jurisdiction also may be used to challenge the existence of the jurisdictional facts that have been alleged by the plaintiff. Garcia II, 372 S.W.3d at 635. When a defendant uses a plea to the jurisdiction to assert that the jurisdictional facts alleged by the plaintiff are false, the court may consider evidence, even if such evidence "implicates both the subject matter jurisdiction of the court and the merits of the case." Miranda, 133 S.W.3d at 226. In most cases, a plea to the jurisdiction "should be decided without delving into the merits of the case," because a plea to the jurisdiction "does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction." Bland Indep. Sch. Dist., 34 S.W.3d at 554. Furthermore, a trial court's subject-matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment or by an allegation in a plea to the jurisdiction that the plaintiff has no evidence of a jurisdictional fact. See Green Tree Servicing, 388 S.W.3d at 794.

The procedure for a plea to the jurisdiction when evidence has been submitted to the trial court mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; see also TEX. R. CIV. P. 166a(c). Thus, the burden is on the movant to present evidence establishing that the trial court lacks jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228. Thereafter, the burden shifts to the plaintiff to demonstrate that a disputed issue of material fact exists regarding the jurisdictional issue. Id. "If a fact issue exists, the trial court should deny the plea." Garcia II, 372 S.W.3d at 635. "But if the relevant evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law." Id.

Governmental immunity deprives a trial court of jurisdiction over suits against a governmental unit absent the Legislature's consent to suit. City of Hous. v. Hous. Firefighters' Relief & Ret. Fund, 196 S.W.3d 271, 277 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Governmental immunity may be asserted in a plea to the jurisdiction. Garcia II, 372 S.W.3d at 636; Miranda, 133 S.W.3d at 225-26. The Legislature has waived immunity from suit for employment discrimination and retaliation claims arising under the TCHRA. See TEX. LAB. CODE § 21.254; Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia I), 253 S.W.3d 653, 660 (Tex. 2008). To show a valid waiver of immunity under the TCHRA, a plaintiff must allege a violation of the statute by pleading facts that state a claim thereunder. See Garcia II, 372 S.W.3d at 637-38; see also TEX. LAB. CODE § 21.254; State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).

The purpose of the TCHRA is to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." TEX. LAB. CODE § 21.001(1). The TCHRA prohibits discrimination in employment based on "race, color, disability, religion, sex, national origin, or age." TEX. LAB. CODE § 21.051; see Navy v. Coll. of the Mainland, 407 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2013, no pet.). "The TCHRA also makes it an unlawful employment practice for an employer to retaliate against an employee who opposes a discriminatory practice or makes or files a complaint." McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 554 (Tex. App.—Dallas 2006, no pet.).

A. Disparate treatment

To establish a prima facie case of disparate-treatment discrimination, "a plaintiff must show that she was (1) a member of a protected class, (2) qualified for her position, (3) subject to an adverse employment action, and (4) treated less favorably than similarly situated members of the opposing class." Autozone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (citing Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). "Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct." Ysleta Indep. Sch. Dist., 177 S.W.3d at 917.

On appeal, UTHealth argues that the trial court erred by denying its plea to the jurisdiction because Carver failed to establish a prima facie case for the third and fourth elements for her disparate-treatment claim. UTHealth contends that Carver could not demonstrate that she was treated less favorably than similarly situated men because, according to her deposition testimony, there were no male nurses in the telephone-triage department. Carver did not respond with contradictory evidence. Because there is no fact issue, UTHealth conclusively negated Carver's allegation of gender-based disparate-treatment discrimination, and the trial court should have granted the plea to the jurisdiction as to that claim. See Garcia II, 372 S.W.3d at 635.

1. Less favorable treatment

As to the race-based disparate-treatment discrimination claim, UTHealth argues that Carver premised her claim solely on a subjective belief that Riley did not like her. UTHealth submitted excerpts from Carver's deposition in which she testified that Riley never bullied or intimidated Sanders, but it argued that Carver nevertheless could not prove how this affected the pay, terms, or conditions of her employment. UTHealth argued that Sanders's participation in management meetings was insufficient to show that Carver was treated less favorably because she was not African-American. UTHealth attached to its jurisdictional plea a copy of Dr. Tyson's response to Carver's grievance. In her response, Dr. Tyson detailed her findings and concluded that the nurses' allegations against Riley regarding his abusive and discriminatory conduct were unfounded.

Carver responded with affidavits from herself, Perkins, and Hartranft. All three women averred that in March 2014, Riley began bullying non-African- American female nurses in the telephone-triage department. They all averred that throughout April, Riley "yelled at" several of them, including Perkins, "often interrupting" their phone calls. They all described an incident in April when Riley had an angry outburst and nearly struck a nurse with his hand, and a second incident when he had another angry outburst and kicked a chair in front of one of his supervisors. They all described ongoing intimidating and verbally abusive treatment by Riley directed toward the nurses with one exception—Sanders, the sole African-American nurse, whom they averred was treated respectfully. Sanders was a nurse, in the same department, working telephone triage, reporting to the same supervisors, and like Carver, she was female. Their circumstances were nearly identical except for the way that Riley treated them.

UTHealth's evidence, particularly Dr. Tyson's report, negated Carver's allegations of discrimination, specifically that Riley, an African-American man, treated her harshly because of her gender and race. The evidence that Carver presented in response created a question of fact as to whether she was treated less favorably than a similarly situated member of the opposing class. Thus, a fact issue exists as to the fourth element of Carver's race-based disparate-treatment discrimination claim, whether she was treated less favorably than a similarly situated member of the opposing class. See Autozone, 272 S.W.3d at 592.

2. Adverse employment action

UTHealth also asserts that Carver did not suffer an adverse employment action, and therefore, she failed to establish a prima facie case as to the third element of her race-based disparate-treatment discrimination claim. Carver responds that her resignation was a constructive discharge.

Constructive discharge is "an employee's reasonable decision to resign because of unendurable working conditions." Baylor Univ. v. Coley, 221 S.W.3d 599, 605 (Tex. 2007) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351 (2004)). "A constructive discharge qualifies as an adverse personnel action under the TCHRA, but 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); see Hammond v. Katy Indep. Sch. Dist., 821 S.W.2d 174, 177 (Tex. App.—Houston [14th Dist.] 1991, no writ). In determining whether an employee's resignation was reasonable, we may consider the following factors: (1) demotion, (2) reduction in salary, (3) reduction in job responsibilities, (4) reassignment to menial or degrading work, (5) reassignment to work under a supervisor who subjects the employee to discriminatory or harassing behavior, (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation, or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).

UTHealth argues that Carver has not shown this element of her prima facie case because she did not allege that she was demoted, had a reduction in salary, was assigned menial or degrading work, reassigned to a harassing supervisor, or given an offer of early retirement that would leave her worse off regardless of her decision whether to take it. UTHealth also argues Carver did not complain about race-based discrimination in her resignation letter, and that she was simply disheartened and discouraged by the failure to complete the investigation. Carver's short resignation email stated:

After carefully following the chain of command, UT policy and HR's close instructions, UTP has chosen to ignore the 2^nd extension I gave them to complete their investigation of my complaints. I cannot tell you how disheartening and discouraging it has been to work under such conditions and escalated DSRP [telephone triage] manager retaliation despite the promise of protection under UT policies.

Today I quit.

In addition, UTHealth's evidence included Dr. Tyson's response to Carver's grievance, in which she concluded that Riley's behavior was not a cause for concern, stating, "it is my belief that neither you, nor anyone else in the nurse triage room, are in any danger."

Carver responded to the plea to the jurisdiction with evidence showing that she was assigned to work under a harassing supervisor and subjected to his threats of violence, angry outbursts, and bullying. In her affidavit, she averred that she feared physical violence from Riley, and when she reported this to his supervisor, she was disciplined. Her evidence also showed that both Hartranft and George left the department due to the intolerable conditions created by Riley's behavior.

Because there is a question of fact regarding whether the working conditions in the telephone-triage department were so intolerable that a reasonable person would have felt compelled to resign, we conclude that the trial court did not err by denying the plea to the jurisdiction as to Carver's race-based disparate-treatment discrimination claim.

B. Hostile work environment

A claim that a plaintiff has been subjected to a hostile work environment "entails ongoing harassment, based on the plaintiff's protected characteristic, so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment." Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 324 (Tex. App.—Texarkana 2008, pet. denied) (citing Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).

UTHealth argued that Carver had no evidence that the alleged harassment was based on a protected characteristic. But a trial court's subject-matter jurisdiction cannot be challenged in a plea to the jurisdiction arguing that the plaintiff has no evidence of a jurisdictional fact. See Green Tree Servicing, 388 S.W.3d at 794; see also Garcia II, 372 S.W.3d at 637 (plaintiff only required to submit evidence on element of statutory cause of action in response to jurisdictional plea if defendant presents evidence negating a basic fact establishing prima facie case). Although the evidence submitted suggested that Carver is challenging only incidents of harassment that were not specifically based on a protected characteristic, she was not required to marshal all of her evidence in response to a plea to the jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d at 554. To the extent that UTHealth's argument suggested a gap in Carver's jurisdictional facts, she was entitled to an opportunity to amend her pleadings to allege such facts as would state a claim for hostile work environment discrimination under the TCHRA, if possible. See id.

UTHealth also argued that the challenged behavior was not sufficiently severe or pervasive to allege a cause of action. To support its argument, UTHealth relied on Carver's deposition testimony, in which she described a single incident when Riley had an angry outburst directed at her. This evidence, if true and complete, would negate a showing that the harassment was severe and pervasive. However, Carver's petition contains no allegation that the harassment was severe and pervasive. When there is a gap in jurisdictional facts alleged in the pleading, ordinarily, the plaintiff is afforded an opportunity to amend her pleadings. See Green Tree Servicing, 388 S.W.3d at 792.

Nevertheless, the parties proceeded as if Carver had alleged severe and pervasive harassment and discrimination. In response to the plea to the jurisdiction, Carver argued that "throughout her time" working at UTHealth, she was "constantly subjected to unwelcome harassment" by Riley, Dr. Tyson, and Smith. The affidavits attached to Carver's response alleged that there were two incidents of angry outbursts on the same day in April 2014, as well as ongoing episodes of harassing behavior by Riley from March through July 2014.

UTHealth's evidence included Dr. Tyson's response to Carver's grievance, which refuted the allegations about Riley's harassing behavior. Because the jurisdictional evidence created a question of fact as to whether Carver had experienced severe, pervasive harassment, the trial court properly denied the plea to the jurisdiction. See Garcia II, 372 S.W.3d at 635.

C. Retaliation

To establish a prima facie claim of retaliation, a plaintiff must establish that: (1) she participated in protected activity; (2) her employer took an adverse employment action against her; and (3) a causal connection existed between her protected activity and the adverse employment action. Brewer v. Coll. of the Mainland, 441 S.W.3d 723, 729 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Protected activities include: (1) opposing a discriminatory practice; (2) making or filing a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any manner in an investigation, proceeding or hearing. TEX. LAB. CODE § 21.055. "The employee must establish that absent [her] protected activity, the adverse employment action would not have occurred when it did." Brewer, 441 S.W.3d at 729.

In the plea to the jurisdiction, UTHealth argued that Carver did not engage in a protected activity or suffer an adverse employment action. We already have determined that Carver made a prima facie showing of an adverse employment action. Thus, we must determine if UTHealth's jurisdictional evidence conclusively shows that Carver did not engage in a protected activity. In her petition, Carver alleged that she reported discrimination by Riley to Kelley, Smith, and Dr. Tyson. UTHealth argues that Carver's letter to Casas stated, "I did not complain about protected class discrimination," contending that this conclusively negates the allegation that Carver engaged in protected activity. The trial court also had before it Kelley's deposition testimony in which she said that none of the nurses ever mentioned anything about gender- or race-based discrimination. Carver responded with her affidavit in which she averred that she told both Kelley and Dr. Tyson about Riley's harassing and allegedly discriminatory behavior.

As to retaliation, there are questions of fact about whether Carver participated in a protected activity by reporting and opposing discriminatory behavior, to whom she made such reports, and what she said. Because there is a question as to a jurisdictional fact, the trial court properly denied the plea to the jurisdiction. See Garcia II, 372 S.W.3d at 635.

Conclusion

We reverse the order of the trial court to the extent that it denied the plea to the jurisdiction as to Carver's claim of gender-based disparate-treatment discrimination, and we otherwise affirm the order of the trial court.

Michael Massengale

Justice Panel consists of Justices Jennings, Massengale, and Caughey.