City of Houston v. Leslie G. Wills

Reversed and Rendered and Memorandum Opinion filed July 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00178-CV

CITY OF HOUSTON, Appellant
V.
LESLIE G. WILLS, Appellee

On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2020-45680

MEMORANDUM OPINION

Appellee Leslie Wills filed suit against appellant the City of Houston,
alleging her supervising lieutenant discriminated against her based on her sex and
she was subjected to adverse employment actions in retaliation for having
complained about the alleged discrimination. See Tex. Lab. Code Ann. §§ 21.001–
.556. The City filed a plea to the jurisdiction, which the trial court denied.

In three issues in this interlocutory appeal, the City argues the trial court
erred by striking two of the City’s exhibits (issue 1) and denying the City’s plea to
the jurisdiction on Wills’s discrimination and retaliation claims, respectively
(issues 2 and 3). Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Concluding
that (1) Wills has not provided prima facie evidence that she suffered an adverse
employment action for both her discrimination and her retaliation claims and
(2) Wills did not overcome the City’s nondiscriminatory reasons for any allegedly
unequal treatment she received, we reverse and render judgment dismissing the
case for want of subject-matter jurisdiction.

I. BACKGROUND

As of 2017, Wills had been the mounted patrol administrative sergeant in the
Houston Police Department (HPD) for 10 years. Wills was responsible for the
acquisition, retirement, health, and assignment of horses, in addition to general
control over barn operations and officer training. In late 2017, Lieutenant Dean
Thomas was appointed as the new mounted patrol commander. Thomas began
implementing changes with respect to officer training, retirement of horses, and the
policy on use of spurs. Wills perceived that Thomas was disregarding her expertise
and experience at mounted patrol; Thomas was concerned that Wills was
undermining his authority and disobeying direct orders. As a result, Thomas
instructed Wills that she was no longer to have any decision-making authority
regarding the assignment, retirement, or acquisition of horses. Two days later,
Wills prepared a letter to the chief of police alleging that Thomas had subjected her
to a hostile work environment and gender bias.

Despite HPD sending Thomas and Wills to mediation, the two continued to
disagree on how to manage the barn. Because of continued tension between the
two, Captain Ernest Garcia—the HPD captain with oversight of the mounted
patrol—met with Thomas and Wills. Wills indicated that she and Thomas
continued to have “adversity in their relationship” because she wanted to do things

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one way and Thomas wanted to do things another way. While acknowledging
Wills’s experience, Garcia reminded Wills of the chain of command, meaning that
Thomas was in charge. Garcia advised Wills that if conflicts and pushbacks
continued, changes would be made in the mounted patrol. However, according to
officers in the mounted patrol that spoke with Garcia, Wills continued to act “like
the de facto commander, which was negatively impacting the unit as the officers
did not know whose orders to follow.” Because Thomas could not trust Wills to
accept and follow his authority, Thomas reassigned Wills—with Garcia’s
approval—from administrative sergeant to patrol sergeant, but she remained in
mounted patrol.

After the reassignment, Wills complained about on-going harassment and
retaliation by Thomas. HPD immediately put a shielding plan into effect,
temporarily relocating Thomas to a different unit and ordering him to have no
contact with Wills. HPD’s internal affairs division investigated Wills’s complaints,
ultimately finding insufficient evidence to prove or disprove that Thomas’s actions
rose to the level of creating a hostile work environment, workplace harassment,
discrimination, or gender bias. Regardless, Thomas was permanently reassigned to
another division, and Wills has had no contact with Thoms since the shielding plan
was put into effect in 2018.

The new administrative sergeant of mounted patrol, Jeff Dobrucki, claimed
that Wills was causing tension in response to a scheduling change Thomas had
implemented. Dobrucki also claimed that several officers in mounted patrol told
him that they felt threatened and personally targeted because of two posters Wills
had recently hung in her cubicle.1 HPD decided that it was “in the best interest of

1
One poster read, “If you betray me at my weakest, don’t expect mercy when I’m at my
strongest”; the other stated, “It’s mercy, compassion and forgiveness I lack[,] not rationality.”

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the Department” to involuntarily transfer Wills, and two other male sergeants, from
mounted patrol to other divisions. Wills was given the option to transfer to any
division with an existing vacancy. After initially transferring to downtown patrol,
Wills initiated a voluntary transfer to the downtown security detail just a few
weeks later—all while retaining her same rank and pay scale.

In August 2018, Wills received a “Report of Employee Efficiency Rating,”
which provided additional details regarding her involuntary transfer from mounted
patrol. The report mentioned that conflicts with authority and difficulty following
the chain of command appear to be “a pattern of behavior with Sergeant Wills,
who also struggled to comply with changes implemented by the previous
lieutenant, Diana Poor.” The report concluded: “While Sergeant Wills clearly has a
lot of experience with horses, any such strengths are eclipsed by the disruption she
caused in the unit by causing dissention [sic], refusing to change, adapt, or follow
the directives of her supervisors.”

Wills initiated a grievance because of the involuntary transfer, asking to be
reinstated as the administrative sergeant for the mounted patrol; her grievance was
denied. Several months later, in early 2019, Wills resigned from HPD.

In 2020, Wills filed suit against the City alleging discrimination and
retaliation in violation of Labor Code chapter 21. See Tex. Lab. Code Ann.
§ 21.051. The City filed a plea to the jurisdiction and no-evidence motion for
summary judgment. On February 23, 2023, the trial court signed an order denying
the City’s plea to the jurisdiction. The City filed this interlocutory appeal.

II. ANALYSIS

A. Standard of review and applicable law

We review a trial court’s ruling on a plea to the jurisdiction de novo. See

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Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear the case. Id. We construe the pleadings liberally in favor of the plaintiff and
look to the pleader’s intent. Id. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at
226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a
plea to the jurisdiction may be granted without allowing the plaintiff an
opportunity to amend. Id. at 227.

When a plea to the jurisdiction challenges jurisdictional facts, we consider
the facts alleged by the plaintiff and, “to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties” to determine whether
the plaintiff has affirmatively demonstrated the court’s jurisdiction to hear the case.
See Texas Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.
2001). The process of deciding whether jurisdictional facts have been affirmatively
pleaded is similar to a summary judgment: if the evidence does not raise a genuine
issue of fact regarding the jurisdictional issue, then the plea to the jurisdiction
should be granted. See Miranda, 133 S.W.3d at 228.

The City is a governmental entity and therefore has immunity from suit
unless the legislature waives that immunity. See City of Houston v. Williams, 353
S.W.3d 128, 134 n.5 (Tex. 2011). One such waiver is found under the employment
discrimination provisions of Labor Code chapter 21, which state that an employer
commits an unlawful employment practice if, because of an employee’s gender,
the employer “fails or refuses to hire an individual, discharges an individual, or

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discriminates in any other manner against an individual in connection with
compensation or the terms, conditions, or privileges of employment.”2 Tex. Lab.
Code Ann. § 21.051(1); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 660 (Tex. 2008) (holding that Labor Code chapter 21 clearly and
unambiguously waives immunity from suit) (“Garcia I”).

Labor Code chapter 21’s waiver of immunity only applies in those suits in
which the plaintiff alleges a violation within the scope of the statute. See Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012) (“Garcia
II”). If the plaintiff does not sufficiently plead facts that state a claim under Labor
Code chapter 21, the governmental unit may challenge the pleadings with a plea to
the jurisdiction. Id. at 635. Using the same procedural device, the governmental
unit may also challenge the very existence of those jurisdictional facts. Id.

“In a suit against a governmental employer, the prima facie case implicates
both the merits of the claim and the court’s jurisdiction because of the doctrine of
sovereign immunity.” Garcia II, 372 S.W.3d at 635–36. If the suit involves claims
of disparate treatment, the prima facie case requires proof that the discrimination
claimant was treated less favorably than a similarly situated comparator from the
opposing class. See University of Tex. Med. Branch at Galveston v. Petteway, 373
S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

There are two alternative methods by which a plaintiff can establish
discrimination or retaliation under Labor Code chapter 21. See Garcia II, 372
S.W.3d at 634. First, a plaintiff can offer direct evidence of the employer’s
2
The Texas Legislature patterned Labor Code chapter 21 after federal law for the express
purpose of carrying out the policies of Title VII of the Civil Rights Act of 1964, Pub. L. No.
88-352, 78 Stat. 241, 253 and its subsequent amendments. Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 474 (Tex. 2001); see 42 U.S.C. §§ 2000e–2000e-17. When analyzing a claim
brought under Labor Code chapter 21, we therefore look to state cases as well as to the
analogous federal statutes and the cases interpreting those statutes. Id. at 476.

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discriminatory actions or words. Id. “Direct evidence of discrimination is evidence
that, if believed, proves the fact of discriminatory animus without inference or
presumption.” College of the Mainland v. Glover, 436 S.W.3d 384, 392 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (quoting Jespersen v. Sweetwater
Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.)).
“Courts have tended to find that insults or slurs against a protected group constitute
direct evidence of discrimination.” Anderson v. Houston Cmty. Coll. Sys., 458
S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet.). For workplace
comments to provide sufficient evidence of direct discrimination, the comments
must be: (1) related to the employee’s protected class; (2) proximate in time to an
adverse employment decision; (3) made by an individual with authority over the
employment decision at issue; and (4) related to the employment decision at issue.
Id. at 644. “If an inference is required for the evidence to be probative as to the
employer’s discriminatory animus, the evidence is circumstantial, not direct.” Id. at
643. As our supreme court has observed, direct evidence of discrimination is a
rarity in employment cases. See Garcia II, 372 S.W.3d at 634.

In the alternative to presenting direct evidence, a plaintiff can proceed with
indirect or circumstantial evidence of discrimination or retaliation. See Russo v.
Smith Int’l, Inc., 93 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied). Under this second method, the employee must make a prima facie case of
discrimination under the McDonnell–Douglas burden-shifting analysis. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).

To establish a prima facie case of discrimination with indirect evidence, the
plaintiff must show that: (1) she was a member of a protected class, (2) she was
qualified for the position she applied for; (3) she suffered an adverse employment
action, such as termination or rejection; and (4) nonprotected class employees were

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not treated similarly. See generally id. at 802. Once the plaintiff establishes a
prima facie case, the burden of production shifts to the defendant-employer to
articulate legitimate nondiscriminatory reasons for any allegedly unequal
treatment. Id. After the employer articulates a nondiscriminatory reason, the
burden shifts back to the employee to prove that the articulated reason is a mere
pretext for unlawful discrimination. Id. at 804. Although the burden of production
shifts between the parties, the burden of persuasion “remains continuously with the
plaintiff.” Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—
Houston [1st Dist.] 2000, no pet.) (citing McDonnell, 411 U.S. at 803).

“To establish a prima facie case of retaliation, a person must show: (1) she
engaged in an activity protected by [Labor Code chapter 21], (2) she experienced a
material adverse employment action, and (3) a causal link exists between the
protected activity and the adverse action.” Alamo Heights Indep. Sch. Dist. v.
Clark, 544 S.W.3d 755, 782 (Tex. 2018). The causal link must be established
through but-for causation. See Apache Corp. v. Davis, 627 S.W.3d 324, 335 (Tex.
2021). Thus, claims of retaliation and discrimination both require the plaintiff to
demonstrate that they experienced an adverse employment action. See Green, 411
U.S. at 802; Clark, 544 S.W.3d at 782.

Constructive discharge is an alternative method available to plaintiffs in
employment cases to satisfy the adverse-employment-action element of their case.
City of Houston v. Carter, No. 01-22-00453-CV, 2023 WL 3632788, at *8 (Tex.
App.—Houston [1st Dist.] May 25, 2023, no pet.). In essence, constructive
discharge converts the plaintiff’s voluntary act of resigning into an adverse
employment action. See Green v. Brennan, 578 U.S. 547, 555 (2016). This Court
has articulated the standard for constructive discharge as follows:

whether a reasonable employee would feel compelled to resign

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depends on the facts of each case, but several factors have been
identified as bearing on this inquiry. These include the following: (1)
demotion; (2) reduction in salary; (3) reduction in job responsibilities;
(4) reassignment to menial or degrading work; (5) badgering,
harassment, or humiliation by the employer calculated to encourage
the employee’s resignation; and (6) offers of early retirement that
would make the employee worse off whether the offers were accepted
or not.
Microsoft Corp. v. Mercieca, 502 S.W.3d 291, 312 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied).

B. The trial court lacked jurisdiction

In the City’s first issue, it argues the trial court erred in striking two of its
exhibits. We do not address the City’s evidentiary issue because without
considering the excluded evidence, we conclude that Wills has not affirmatively
demonstrated a waiver of immunity from suit for her discrimination and
retaliations claims. Tex. R. App. P. 47.1.

1. Prima facie evidence of discrimination and retaliation

Under the first prong of the burden-shifting analysis, to establish a prima
facie case for both retaliation and discrimination, Wills needed to prove that she
suffered an adverse employment action. See McDonnell, 411 U.S. at 802; Clark,
544 S.W.3d at 782. Wills identifies four alleged adverse actions she suffered: (1)
she was stripped of her role acquiring, retiring, and assigning horses; (2) she was
removed as barn sergeant/training sergeant; (3) she was involuntarily transferred
out of mounted patrol entirely; and (4) she resigned from the police department,
which she alleges constituted a constructive discharge. But Wills has not provided
sufficient evidence to create a genuine fact issue as to whether any of these events
constituted an adverse employment action.

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a. Adverse employment action

“To adequately plead an adverse employment action, plaintiffs need not
allege discrimination with respect to an ‘ultimate employment decision.’ Instead, a
plaintiff need only show that she was discriminated against, because of a protected
characteristic, with respect to hiring, firing, compensation, or the ‘terms,
conditions, or privileges of employment.’” 3 Hamilton v. Dallas Cnty., 79 F.4th
494, 506 (5th Cir. 2023). Thus, based on the specific facts of each case, a wide
range of employment actions may constitute an “adverse employment action.” See,
e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (observing that “a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits” may all constitute an adverse employment action);
Hamilton, 79 F.4th at 503–05 (concluding that changing employee’s shift to less
favorable one is action that affects “terms, conditions, or privileges of
employment”); Serna v. City of San Antonio, 244 F.3d 479, 483 (5th Cir. 2001)
(“A transfer, even without an accompanying cut in pay or other tangible benefits,
may constitute an adverse employment action[.]”); Forsyth v. City of Dallas, Tex.,
91 F.3d 769, 774 (5th Cir. 1996) (demotion may constitute adverse employment
action).

However, a plaintiff must provide more evidence than their mere subjective
belief that they have experienced an adverse employment action. See Serna, 244

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“[T]he Texas Commission on Human Rights Act (TCHRA) . . . ‘is a comprehensive fair
employment practices act and remedial scheme, modeled after Title VII of the federal Civil
Rights Act of 1964 (Title VII), that provides the framework for employment discrimination
claims in Texas.’” Jespersen, 390 S.W.3d at 653 (quoting Prairie View A & M Univ. v. Chatha,
381 S.W.3d 500, 502–03 (Tex. 2012)); see Tex. Lab. Code Ann. §§ 21.001–.556. “In
discrimination and retaliation cases under the TCHRA, Texas jurisprudence parallels federal
cases construing and applying equivalent federal statutes, like Title VII.” Clark, 544 S.W.3d at
781.

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F.3d at 483 (noting in context of deciding whether job transfer was adverse
employment action, “it is insufficient for a plaintiff to show merely that he has
been transferred from a job he likes to one that he considers less desirable. Rather,
a plaintiff must produce enough evidence to allow a reasonable trier of fact to
conclude that, when viewed objectively, the transfer caused harm to the plaintiff,
‘sufficiently serious to constitute a constitutional injury’”) (quoting Breaux v. City
of Garland, 205 F.3d 150, 152 (5th Cir. 2000); Forsyth, 91 F.3d at 774 (“a
plaintiff’s subjective perception that a demotion has occurred is not enough” to
demonstrate an adverse employment action).

The present case is like Serna, in which the Fifth Circuit ultimately
concluded that the evidence produced by the plaintiff amounted to nothing more
than a subjective belief that “he felt stigmatized and injured,” which was
insufficient to prove that he had suffered an adverse employment action. See
Serna, 244 F.3d at 484. In Serna, the plaintiff, Serna, complained about his transfer
from the HPD downtown foot and bike patrol unit to a regular patrol unit. See id.
Even though several officers testified that the downtown foot and bike patrol unit
was a “prestigious assignment” and that officers in that unit were given more
freedom to stop criminal activity, “[t]here was no evidence to suggest that a
transfer to a regular patrol unit was generally considered to be a demotion or any
kind of punishment.” Id. at 483–84. Based on the record, the court noted that being
in the downtown foot and bike patrol unit seemed to simply be a matter of
“personal preference.” Id. at 485. Although Serna’s shift hours changed after the
transfer, “nothing in the record shows that Serna was bothered by his new hours or
that he attempted to get them changed, as he had with his days off.” Id. Serna also
never received a reduction in pay or benefits, “and he produced no objective
evidence that his chances for promotion were reduced by his transfer.” Id. Thus,

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the court concluded that “[a]ll the evidence established was that Serna was
transferred from a unit considered prestigious and desirable to another unit on the
force, one to which most of his fellow officers were assigned. That is insufficient
to establish that Serna suffered an adverse employment action.” Id.

Wills argues “it is beyond any dispute that taking an expert horsewoman
who is running one of the largest and most prestigious Mounted Patrol barns in the
country, and reassigning her to be an ordinary beat cop, or to working the security
desk downtown, is an objectively worse job.” But Wills’s evidence did nothing
more than assert that being in the mounted patrol was a “personal preference.” Id.
She offered no additional affidavits from third parties or other evidence suggesting
that being in the mounted patrol was considered prestigious or a promotion. Like in
Serna, Wills also offered no evidence that being transferred to the downtown patrol
was generally considered to be a demotion or a form of punishment. Wills does not
appear to ever complain about any change in her shift hours, and she does not
allege that she received a reduction in pay or benefits.

Wills additionally claims that while she “could have sought out certain other
assignments within the department, she had been permanently barred from
Mounted Patrol, the department she had dedicated her professional life to, and had
the black mark of an involuntary transfer and a bad performance review.” But once
again, this assertion is unaccompanied by any evidence suggesting that an
involuntary transfer or a bad performance review would serve as “black mark”
preventing her obtaining other positions or ranks. She does not plead any facts
suggesting that she was denied a promotion or job transfer because of the “black
mark” she received.

Concerning her allegation of constructive discharge, Wills has not
demonstrated “intolerable circumstances” that essentially forced her to retire. After

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Wills made her original complaints against Thomas, HPD immediately shielded
Wills from Thomas, by removing him from mounted patrol and reassigning him to
temporary duty at an airport. It is undisputed that Thomas never returned to
mounted patrol, and never again supervised or even had face-to-face contact with
Wills. When Wills was involuntarily transferred from mounted patrol more than
three months later, she was afforded the opportunity to arrange a transfer to any
division holding an existing vacancy. And then she requested a voluntary transfer
to downtown security several weeks later. Throughout that time, Wills does not
allege that she received a reduction in pay, or that she was badgered, or humiliated,
or that she was reassigned to menial or degrading work. Beyond her subjective
beliefs, Wills has not presented evidence to suggest that a reasonable employee
would feel compelled to resign. Mercieca, 502 S.W.3d at 312.

On all four of her claims of adverse employment action, including her claim
of constructive discharge, Wills ultimately offers only her subjective belief, which
is insufficient. See Serna, 244 F.3d at 483. The subjective evidence presented by
Wills stands in contrast to other cases in which the plaintiffs provided at least some
“objective” evidence that an adverse employment action had occurred. See, e.g.,
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (finding
plaintiff provided sufficient evidence to create fact issue as to whether
reassignment was adverse employment action because there was “considerable
evidence that the track laborer duties were ‘by all accounts more arduous and
dirtier’; that the ‘forklift operator position required more qualifications, which is an
indication of prestige’; and that ‘the forklift operator position was objectively
considered a better job and the male employees resented White for occupying it’”);
Kessler v. Westchester Cnty. Dep’t of Soc. Services, 461 F.3d 199, 208–09 (2d Cir.
2006) (concluding evidence was sufficient to satisfy step-one burden in which

13
plaintiff provided affidavit and official job descriptions to demonstrate that transfer
stripped him of many responsibilities and that “he was no longer given any
managerial assignments and was not even allowed to attend meetings of lower-
level managers”); Forsyth, 91 F.3d at 774–75 (plaintiff provided evidence that
tended to show that positions in intelligence unit were more prestigious, had better
working hours, were more interesting than those in night uniformed patrol, and that
other members of department had been transferred to night uniformed patrol as
punishment); Click v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992) (plaintiff
provided evidence sufficient to create fact issue as to whether adverse employment
action occurred: (1) the assistant director of the jail unit stated that “everybody”
considered transfer from jail to law enforcement to be a promotion; (2) the civil
service director said that eight people appealed transfers from law enforcement to
jail, but only one appealed a transfer the other way; (3) Sheriff stated that all jail
guards would like to be transferred to law enforcement section if they could; and
(4) two deputies lost certain seniority rights after their transfer).

b. Nonprotected class employees were treated similarly

We also note that Wills has not demonstrated that she was treated differently
than male counterparts in a nearly identical situation; the record suggests the
opposite. Wills complains that Thomas acted unprofessionally and yelled at her
and belittled her in front of other male colleagues, but he apparently did the same
with her male sergeant colleagues. She complains that she had essentially perfect
performance reviews until Thomas became lieutenant and then he started reducing
her performance evaluation, which is true. But Thomas started reducing the
performance reviews of at least two other male sergeants at the same time as Wills.
And two other male officers were also transferred away from mounted patrol at the
same time as Wills.

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Wills has not provided prima facie evidence that she suffered an adverse
employment action for both her discrimination and her retaliation claims.
However, even if any of the complained-of actions constituted an adverse
employment action, she has not overcome the City’s nondiscriminatory reasons for
any allegedly unequal treatment she received.

2. The City provided nondiscriminatory reasons for its actions and
Wills did not prove that the City’s stated reasons were merely
pretext for discrimination

As outlined above, and as established by the pleadings and the relevant
nonstricken evidence, the tension created by Wills and Thomas negatively affected
the unit’s ability to function.

Garcia informed Wills that she needed to respect the chain of command and
indicated that if she could not do so, then “changes” would be made. When Garcia
met with officers in the mounted patrol, they stated that even after being previously
advised, Wills continued to act “like the de facto commander, which was
negatively impacting the unit as the officers did not know whose orders to follow.”
Thomas noted that Wills continued to directly disobey his directives. Her “Report
of Employee Efficiency Rating” suggested that disobeying superiors was “a pattern
of behavior with Sergeant Wills, who also struggled to comply with changes
implemented by the previous lieutenant.” Even when Wills remained in mounted
patrol and Thomas was removed, the new lieutenant, Dobrucki, noted that Wills
continued to create tension. In response, Wills did not show that the City’s
nondiscriminatory reasons for its actions were simply pretext.4

4
We offer no opinion as to whether Wills was treated fairly by the City and her
supervisors, but simply having a bad boss is not enough to prevail on her claims. Even if Wills’s
allegations were true, the evidence is still insufficient to demonstrate that Wills suffered statutory
discrimination or retaliation.

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We sustain the City’s second and third issues. And as addressed above,
because of our disposition on issues two and three, it is unnecessary for us to
address the City’s first issue. See Tex. R. App. P. 47.1.

C. Opportunity to amend petition

Because the jurisdictional evidence establishes that Wills’s claims are barred
by governmental immunity from suit, the trial court should have granted the City’s
plea to the jurisdiction. Having reached this conclusion, we must next decide
whether Wills is entitled to an opportunity to amend her petition. See Dohlen v.
City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022) (Texas courts allow parties
to replead unless their pleadings demonstrate incurable defects).

Wills cannot overcome the City’s legitimate, nondiscriminatory reasons for
its actions, as outlined above. Also, Wills has not suggested there is a jurisdictional
defect she can cure. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840
(Tex. 2007) (dismissing claim and concluding plaintiff was not entitled to amend
petition, noting that plaintiff’s “pleading defects cannot be cured, and he has made
no suggestion as to how to cure the jurisdictional defect”). Based on the extensive
facts already in the record or pleadings, remanding this case to allow Wills to
amend her petition would serve no legitimate purpose because she cannot
overcome the defects of her pleadings. Accordingly, Wills is not entitled to an
opportunity to amend in this case.

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III. CONCLUSION

We reverse the trial court’s order denying the City’s plea to the jurisdiction
and render the judgment the trial court should have rendered: a judgment
dismissing Wills’s suit against the City for want of subject-matter jurisdiction. Tex.
R. App. P. 43.2(c).

/s/ Charles A. Spain
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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