Edcouch-Elsa Independent School District v. Domingo Rodriguez

NUMBER 13-23-00405-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EDCOUCH-ELSA
INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

DOMINGO RODRIGUEZ, Appellee.

ON APPEAL FROM THE 92ND DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron
Memorandum Opinion by Justice Cron

Framed as one issue with two subparts, appellant Edcouch-Elsa Independent

School District (EEISD) appeals the denial of its plea to the jurisdiction in this age
discrimination suit brought by appellee Domingo Rodriguez. 1 Because EEISD provided

a legitimate, nondiscriminatory reason for Domingo’s termination and because Domingo

failed to raise a genuine issue of material fact that EEISD’s reason was pretextual, we

reverse the trial court’s denial of EEISD’s plea to the jurisdiction and dismiss Domingo’s

claim for lack of subject-matter jurisdiction.

I. BACKGROUND 2

A. Procedural History

Prior to his termination, Domingo was an assistant transportation director at

EEISD. EEISD hired Dr. Gregory Rodriguez as its superintendent in September of 2020,

who made some personnel changes at the school district to include terminating Domingo.

Domingo was sixty-three years old at the time of his termination.

After Domingo was terminated, he filed a charge of discrimination, which he later

amended, with the Texas Workforce Commission (TWC) alleging age discrimination. After

he obtained a “Notice of Dismissal and Right to File Civil Action” from the TWC, he filed

suit on July 5, 2022.

In his original petition, he alleged EEISD violated the Texas Commission on Human

Rights Act (TCHRA or Chapter 21). In relevant part, Domingo alleged that EEISD

terminated him and replaced him with two people (“Alberto” Barco and David Gallardo)

1 Because there is more than one individual with the last name Rodriguez in this case, we refer to

appellee by his given name.

2 With the exception of Dr. Gregory Rodriguez’s affidavit for reasons explained later in this
memorandum opinion, the background is a summary of pertinent information derived from the parties’ filings
in the clerk’s record. We further observe there is not a reporter’s record in this case because Edcouch-Elsa
Independent School District revoked its request for a reporter’s record after this Court abated the appeal
given the reporter’s record was past due. Subsequently, the appeal was reinstated.
2
who were significantly younger and less qualified than him. And prior to his termination,

his former supervisor, Martin Rodriguez, had evaluated him positively.

He alleged that EEISD gave conflicting reasons for his termination. His termination

letter dated June 15, 2021, from Dr. Rodriguez simply stated that Domingo’s separation

was “[i]n the best interest of the district” (the “Termination Letter”). Yet, in a “Determination

on Payment of Unemployment Benefits” letter dated July 19, 2021, from the TWC, it

stated in relevant part, that “Our investigation found your employer laid you off because

of a reduction in force[]” (the “TWC Letter”). And, in an investigative report, issued on

October 1, 2021 (“Investigator’s Report”) by EEISD’s attorney, Mr. Eden Ramirez,

Ramirez did not mention a reduction in force as the reason for Domingo’s termination.

Instead, Ramirez concluded that Domingo was terminated because “the position had

been closed due to declining student enrollment and changes to maximize resources at

the Transportation Department.”

Domingo also alleged that although he received his Termination Letter on June 15,

2021, Dr. Rodriguez informed him that his termination was not effective till June 17, 2021,

and the school board did not meet until June 16, 2021. Additionally, according to Domingo,

since the hiring of Dr. Rodriguez, EEISD has engaged in a “pattern and practice of age

discrimination.” He cited Dr. Rodriguez, in his “40s,” replacing the former superintendent,

who was in his “mid-70s”; “forc[ing] out” the former transportation director; and replacing

five 3 other employees with younger employees. Lastly, he claimed, EEISD has no written

3 We note the five employees listed are: Sylvia Garza, business manager-federal programs
director, Pete Riojas, federal programs director, Tico Segura, warehouse management, Nelly Silva,
superintendent secretary, and Mari Olivarez, principal.

3
proof that existed at the time he was terminated that would provide for a legitimate,

nondiscriminatory reason to explain why he was terminated without any prior notice. He

alleged that any of EEISD’s reasons are false, pre-textual, and conclusionary.

On August 15, 2022, EEISD answered with a general denial and asserted

governmental immunity. Approximately four months later, EEISD filed a plea to the

jurisdiction supported by an affidavit from Dr. Rodriguez, along with nine other exhibits. 4

In its plea, EEISD contended that Domingo cannot establish a prima facie case because:

(1) his position was eliminated, and his job duties were distributed among other

employees; (2) neither Barco nor Gallardo are significantly younger than Domingo

because Barco is five years younger than Domingo and Gallardo is four years younger;

(3) Domingo has not alleged he was treated less favorably than any specific similarly-

situated employee outside of the protected class; and (4) an alleged pattern and practice

cannot form the basis of a prima facie case under the TCHRA. Alternatively, EEISD

argued that Domingo cannot show that EEISD’s legitimate, nondiscriminatory reason for

eliminating his position was pretextual.

On April 28, 2023, EEISD filed a supplement to its plea to the jurisdiction in which

it references deposition testimony taken from Dr. Rodriguez, Barco, and Gallardo, but the

depositions were not attached.

4 The nine exhibits are: (1) Domingo’s charge of discrimination; (2) his first amended charge of

discrimination; (3) an affidavit of Dr. Antonio Layton, Jr., the human resources director; (4) an unsigned
written job description for the director of transportation; (5) an unsigned written job description for a bus
mechanic; (6) an unsigned written job description for a bus driver; (7) an unsigned letter to Edelberto Barco
notifying him that he is being “temporarily reassigned to Interim Transportation Lead”; (8)(a) an unsigned
letter to David Gallardo notifying him that he is being “temporarily reassigned to Interim Transportation
Lead”, (8)(b) a letter from Dr. Rodriguez to David Gallardo, signed by both men, notifying David that he is
being “temporarily reassigned to Interim Transportation Lead”; (8)(c) a letter from Dr. Rodriguez to David
Gallardo, signed by Dr. Rodriguez, notifying David that he is being “temporarily reassigned to Interim
Transportation Lead”; and (9) Domingo’s original petition and request for disclosures.
4
On May 1, 2023, Domingo filed a response to EEISD’s plea asserting there are

various genuine issues of material fact. 5 He argued this is a “pretext case,” and he would

provide circumstantial evidence in support of his claim. Additionally, he argued that the

fourth element of his prima facie case is satisfied because Barco, five years his junior,

was his true replacement.

Domingo relied upon eleven exhibits in response to EEISD’s plea, as well as “[a]ll

exhibits attached to . . . [EEISD’s] plea” and “[a]ll documents on file with the court in this

matter.” The eleven exhibits included parts of deposition testimony taken from (1) Barco,

(2) Gallardo, and (3) Dr. Rodriguez, (4) the Investigator’s Report, (5) the Termination

Letter, (6) the TWC Letter, (7) an unsigned letter from Dr. Rodriguez to Barco dated

September 30, 2021, stating, among other things, that Barco is “being temporarily

reassigned to Interim Transportation Lead effective . . . September 16, 2021” and a

signed letter from Dr. Rodriguez to Gallardo dated September 30, 2021 stating, among

other things, that Gallardo is “being temporarily reassigned to Interim Transportation Lead

effective . . . September 16, 2021”, (8) a position statement from EEISD to TWC dated

September 13, 2021 (the “Position Statement”), (9) unsigned EEISD job descriptions for

a business mechanic and a bus driver; (10) EEISD’s 2020–2021 school year clerical

evaluation report of Domingo, and (11) EEISD’s responses to Domingo’s first request for

admissions. Of note, request for admission number 12 states as follows:

5 Within section four of Domingo’s response, he appears to reference a different individual, Antonio

Sanchez, as the non-movant.
5
REQUEST FOR ADMISSION NO. 12:
Admit or Deny Defendant provided information to the Texas Workforce
Commission; Unemployment Division regarding Plaintiff’s application for filing of
unemployment benefits after his termination from Defendant, that Plaintiff was
separated from his job due to a reduction in force.

ANSWER: Admit.

On May 2, 2023, Domingo filed his first amended petition that included the same

allegations apart from the following: Domingo no longer alleged Gallardo replaced him;

without applying “Edelberto” Barco, five years his junior and less qualified than him,

replaced him or he was treated differently than Barco; Barco was “inserted” as a

supervisor by Dr. Rodriguez with the title “Lead Supervisor”; Barco was given a pay raise;

Barco assumed the same or close to the same duties he previously had as Assistant

Transportation Director; Barco was allowed to violate EEISD’s policy by obtaining a

medical certification for his vision test from a doctor not approved by EEISD; and Barco

is making the “same salary” as Domingo was prior to his termination. And EEISD created

a fictional reason for his termination of a reduction in force.

One day later, EEISD filed a reply to Domingo’s response to its plea to the

jurisdiction and attached the depositions of Dr. Rodriguez, Barco, and Gallardo. EEISD

argued that Domingo failed to meet his burden to create a fact issue regarding the fourth

element of a prima facie case of age discrimination. In it, EEISD argued that Domingo

was not replaced, Barco was not significantly younger, and he and Barco are not similarly

situated. Additionally, EEISD argued Domingo could not show its legitimate, non-

discriminatory reason for terminating Domingo was pretext. That allegedly being,

[P]laintiff’s position was eliminated and his employment was terminated.
While the phrase “reduction in force” may not be used in each document
alluded to by Plaintiff, the reasoning is the same throughout. The DIA Report
that is attached to Plaintiff’s Response as Plaintiff’s Exhibit 4 notes that
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Plaintiff’s position was closed due to declining student enrollment and
changes to the maximum resources available to the District. Moreover, the
Position Statement that is attached to Plaintiff’s Response as Plaintiff’s
Exhibit 8 noted that the District eliminated Plaintiff’s position “due to
changing operational needs” of the District. Clearly, the District’s reasoning
for terminating Plaintiff, that the position was closed due to the decline in
available resources, never changed.

On May 4, 2023, Domingo filed a supplement to its response to EEISD’s plea in

which he included excerpts from Dr. Rodriguez’s deposition testimony.

B. Dr. Rodriguez’s Pertinent Deposition Testimony

Dr. Rodriguez testified that EEISD employed him from September 10, 2020, to

January 31, 2023. He explained that Domingo’s termination was not based on

performance. Instead, his position was eliminated. As for the reasons he decided to

terminate Domingo, he stated, “As I told Mr. Rodriguez, it was in the best interest of the

district.” When asked to expound, he explained that, in his experience, a “district of

approximately 4,000 students” with “declining enrollment” did not need two transportation

directors. He also said the declining enrollment would create a “fiscal cliff” where financial

resources would be needed. He summarized, “So in the best interest of the district, I also

made reorganization of several positions in consolidation and elimination of those

positions to save money for the school district.” However, he agreed that he did not put

this full explanation in writing to Domingo.

He admitted he made the decision to terminate Domingo before board approval,

but provided the following explanation: “[B]ecause the school board has one employee,

the superintendent, that they hire and fire. I’m the administrator for all employees in the

district. So I make recommendations on termination and hiring, and the school board

ratifies it.” He agreed that the Termination Letter did not say “recommendation.”

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Additionally, Dr. Rodriguez testified that the Investigator’s Report, Termination

Letter, and Position Statement do not include the words “reduction in force” like the TWC

Letter does. However, he also testified that while the Termination Letter does not

reference “reduction in force” like the TWC Letter, “I don’t think they’re mutually exclusive.

I think they can both be true.” Additionally, he pointed out the Position Statement “uses a

term that it was in the best interest of the district,” and he “would say that reduction in

force is in the best interest of the district.” When questioned about whether EEISD

maintained a reduction in force policy, he explained “there’s a policy that has procedures

for reduction in force for the school district” but clarified that he “was not making a

reduction in force.”

According to Dr. Rodriguez, there were no written job descriptions in existence

when he joined EEISD so Abraham Gallegos, the director of human resources, was

assigned to write them. Prior to Gallegos’s voluntary departure, he was working on writing

job descriptions for multiple positions so “if some positions didn’t get completed, they

didn’t get completed.” Dr. Rodriguez agreed that the interim lead supervisor position

Barco assumed after Domingo was terminated did not have a written job description.

C. Order Denying Plea

On August 31, 2023, the trial court denied EEISD’s plea by written order, and this

interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

II. STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea generally used to defeat a cause of action

“without regard to whether the claims asserted have merit.” Mission Consol. Indep. Sch.

Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (quoting Bland Indep. Sch. Dist. v. Blue,

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34 S.W.3d 547, 554 (Tex. 2000)). A plea to the jurisdiction may challenge the pleadings,

the existence of jurisdictional facts, or both. Jones v. Turner, 646 S.W.3d 319, 325 (Tex.

2022). In response to a plea, a plaintiff must allege “facts that would establish that the

state agency violated . . . [Chapter 21] and, when challenged with contrary evidence,

provide evidence that is at least sufficient to create a genuine fact issue material to that

allegation.” Tex. Tech. Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex.

2020) (Flores I) (citation omitted). When, as here, jurisdictional facts are challenged, our

standard of review mirrors that of a traditional summary judgment. Alamo Heights Indep.

Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).

We indulge every reasonable inference and resolve any doubts in the plaintiff’s

favor. Texas Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 709 S.W.3d 500, 505 (Tex.

2024) (Flores II). “However, ‘we cannot disregard evidence necessary to show context,

and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable

jurors could not.’” Id. (quoting Clark, 544 S.W.3d at 771).

III. APPLICABLE LAW

A. Immunity & Waiver

Governmental units, including school districts, are generally immune from suit,

unless the state consents through a legislative waiver. Clark, 544 S.W.3d at 770.

Governmental immunity from suit implicates a trial court’s subject-matter jurisdiction and

is properly asserted in a plea to the jurisdiction. Id.; Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Chapter 21 of the Labor Code “waives

immunity from suit only for statutory violations, which means the trial court lacks subject-

matter jurisdiction over the dispute absent some evidence the school district

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violated . . . [Chapter 21].” Clark, 544 S.W.3d at 763; Garcia, 372 S.W.3d at 637.

As relevant here, Chapter 21 prohibits age discrimination by employers and

protects employees who are “40 years of age or older.” See TEX. LAB. CODE ANN.

§§ 21.001, 21.051, 21.055, 21.101; Flores I, 612 S.W.3d at 304–05. An “employer”

includes a county, municipality, state agency, or state instrumentality, regardless of the

number of individuals employed. TEX. LAB. CODE ANN. § 21.002(8)(D). An employer

generally commits an unlawful employment practice “because of” an employee’s age if

the employee’s age was “a motivating factor” for the practice, “even if other factors also

motivated the practice.” Id. § 21.125(a); Flores I, 612 S.W.3d at 305. “An employer

commits an unlawful employment practice if because of . . . age the

employer . . . discriminates in any . . . manner against an individual in connection with

compensation or the terms, conditions, or privileges of employment.” See TEX. LAB. CODE

ANN. § 21.051(1).

We may look to analogous federal statutes and cases interpreting them to guide

our reading of Chapter 21. See Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex.

2021).

B. Evidentiary Framework

A plaintiff may rely on either direct or circumstantial evidence to establish unlawful

discrimination. Flores I, 612 S.W.3d at 305. A case based on circumstantial evidence is

referred to as a “pretext” case. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,

477 (Tex. 2001). In a pretext case, the plaintiff’s ultimate goal is to show that the

employer’s stated reason for the adverse action was a pretext for discrimination. See id.

at 476.

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Domingo concedes his case is based on circumstantial evidence, and we thus

follow the burden shifting framework the United States Supreme Court established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Flores II, 709 S.W.3d at 505

(“Before a case is tried on the merits, and in the absence of direct evidence of

discrimination, we use the McDonnell Douglas burden-shifting framework to evaluate

whether a plaintiff has created a fact issue on her statutory claim.” (citation omitted)).

Under that burden-shifting framework:

the plaintiff must create a presumption of illegal discrimination by
establishing a prima facie case; (2) the defendant must then rebut that
presumption by establishing a legitimate, nondiscriminatory reason for the
employment action; and (3) the plaintiff must then overcome the rebuttal
evidence by establishing that the defendant’s stated reason is a mere
pretext.

Id. (citing Flores I, 612 S.W.3d at 305). “[A]ll three steps of the framework, ‘are relevant

to the jurisdictional inquiry.’” Id. (quoting Clark, 544 S.W.3d at 783–84).

“Under this framework, the plaintiff is entitled to a presumption of discrimination if

[the plaintiff] meets the ‘minimal’ initial burden of establishing a prima facie case of

discrimination.” Garcia, 372 S.W.3d at 634. Although the precise elements of this showing

will vary depending on the circumstances, the plaintiff’s burden at this stage of the case

“is not onerous.” Id. The burden of persuasion remains at all times with the employee in

both direct-and-circumstantial evidence cases. Tex. Health & Human Servs. Comm’n v.

Kadia, 704 S.W.3d 84, 100 (Tex. App.—Austin 2024, no pet) (citation omitted).

To establish a prima facie case of age discrimination, an employee must show that

he: (1) was a member of the protected class (that is, 40 years of age or older), (2) was

qualified for the position at issue, (3) suffered a final, adverse employment action, and

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(4) was either (a) replaced by someone significantly younger or (b) otherwise treated less

favorably than others who were similarly situated but outside the protected class. Flores

II, 709 S.W.3d at 505 (citing Flores I, 612 S.W.3d at 305). “The mechanics of the prima

facie case—and its significance in discrimination cases—are products of caselaw,

specifically the burden-shifting framework created by the U.S. Supreme Court in

McDonnell Douglas and consistently applied to TCHRA cases by this Court.” Garcia, 372

S.W.3d at 638.

An employer’s burden to provide a legitimate, non-discriminatory reason for

termination is one of production, not persuasion. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000).

IV. ANALYSIS

EEISD first argues that Domingo failed to establish a prima facie case. Because

we are reversing on other grounds, we will assume that Domingo established a prima

facie case, see Ptomey v. Tex. Tech. Univ., 277 S.W.3d 487, 493 (Tex. App.—Amarillo

2009, pet. denied); see also City of Brownsville v. Gamez, No. 13-23-00159-CV, 2024 WL

48185, at *5 (Tex. App.—Corpus Christi–Edinburg Jan. 4, 2024, no pet.) (mem. op.), and

turn to whether EEISD provided a legitimate, nondiscriminatory reason for terminating

Domingo.

A. Dr. Rodriguez’s Affidavit

In its plea and on appeal, EEISD argues that it provided a legitimate,

nondiscriminatory reason for Domingo’s termination, which is supported by, among other

evidence, Dr. Rodriguez’s affidavit. Domingo argues that there is no evidence support’s

EEISD’s plea because Dr. Rodriguez’s affidavit is incompetent evidence given that its

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concluding paragraph states, “[T]he information in my sworn statement above is a

complete representation of the facts to the best of my knowledge.” This attack, EEISD

replies, ignores the other evidence in the record, such as Dr. Rodriguez’s deposition

testimony.

Even if Dr. Rodriguez’s affidavit was rendered inadmissible by his concluding

paragraph, see Humphreys v. Caldwell, 888 S.W.2d 469, 470–71 (Tex. 1994); see also

Flores v. Villarreal, No. 13-20-00309-CV, 2020 WL 5050638, at *7 (Tex. App.—Corpus

Christi–Edinburg Aug. 17, 2020, no pet.) (mem. op.) (citation omitted), it would not change

the disposition of this appeal because Dr. Rodriguez also testified in his deposition about

EEISD’s legitimate, nondiscriminatory reason for Domingo’s termination, and Domingo

does not contend that such evidence was inadmissible. See TEX. R. APP. P. 44.1(a), 47.1;

Miranda, 133 S.W.3d at 227 (“In a case in which the jurisdictional challenge implicates

the merits of the plaintiffs’ cause of action and the plea to the jurisdiction includes

evidence, the trial court reviews the relevant evidence to determine if a fact issue exists.”);

see also City of Edinburg v. GNJ Realty Invs. LLC, No. 13-17-00290-CV, 2018 WL

2731907, at *4 n.2 (Tex. App.—Corpus Christi–Edinburg, June 7, 2018, pet. denied)

(mem. op.) (noting that in appellant’s reply, it attached excerpts of deposition testimony

that the deponent provided after its plea to the jurisdiction was filed).

That purported legitimate, nondiscriminatory reason given by Dr. Rodriguez in his

deposition was that Domingo was terminated when his position was eliminated, along

with making other personnel changes because of declining student enrollment that he

knew would result in a “fiscal cliff” being reached, and Domingo’s position not being

needed at a school district the size of EEISD. Stated differently, EEISD, in a plain sense,

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reduced its force, by one. See Ptomey, 277 S.W.3d at 496 (“A reduction in force is a

legitimate, non-discriminatory reason for an employee’s termination.”); see also Gamez,

2024 WL 48185, at *5 (explaining that appellant’s evidence that accompanied its plea to

the jurisdiction included a letter notifying the appellee that his position was being

eliminated due to budgetary constraints, affidavits from two City employees who averred

the position was not budgeted for and responsibilities were transferred to another person

as well as appellee’s own deposition acknowledging the position had been eliminated

was sufficient to show that appellee’s position was eliminated, as part of a reduction in

force); see generally Hall v. RDSL Enters. LLC, 426 S.W.3d 294, 303 (Tex. App.—Fort

Worth 2014, pet. denied).

We recognize that Dr. Rodriguez testified he did not terminate Domingo based on

a reduction in force, but his testimony in this regard was made in the context of discussing

EEISD’s reduction-in-force policy, and Domingo has not argued that EEISD violated such

a policy. See Flores II, 709 S.W.3d at 505 (Tex. 2024) (“However, we cannot disregard

evidence necessary to show context[.]”) (internal citations omitted). Thus, EEISD has

shown a legitimate, nondiscriminatory reason for termination.

B. No Fact Issue on Pretext

To raise a fact issue on the pretext element of a discrimination claim, the employee

must present evidence providing the reasons stated by the employer were not its true

reasons, but were a pretext for discrimination, or the reasons were not credible. See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); see also San

Benito Consol. Indep. Sch. Dist. v. Cruz, No. 13-20-00310-CV, 2021 WL 921793, at *8

(Tex. App.—Corpus Christi–Edinburg Mar. 11, 2021, no pet.) (mem. op.) (“A reasonable

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inference that discrimination was a motivating factor may be made if the plaintiff provides

evidence that the reasons given were false or unworthy of credence.” (citation omitted)).

To the extent Domingo argued in his response and supplemental response that a

question of fact exists on whether EEISD’s reasons were pretextual because: (1) there

is a purported inconsistency in EEISD’s explanation, (2) EEISD failed to follow its policies

or procedures, and (3) there is a discriminatory “pattern and practice” at EEISD, we

address EEISD’s challenge to each in turn.

1. No Inconsistency

Pretext can be established by undermining the credibility of the employer’s

explanation by presenting weaknesses, implausibilities, inconsistencies, or

contradictions. See Tex. Health & Human Servs. v. Sepulveda, 668 S.W.3d 856, 868

(Tex. App.—El Paso 2023, no pet.) (citation omitted) (“[P]roviding inconsistent and

shifting explanations for an adverse employment decision can give rise to an inference

of pretext.”); see also Univ. of Tex. Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020

WL 5757393, at *21 (Tex. App.—Dallas Sept. 28, 2020, no pet.) (mem. op.) (“Doubt in

the employer’s asserted reason can be established in a number of ways, including by

proof that the employer provided shifting or different reasons for its action at different

times.” (citation omitted)).

As Dr. Rodriguez conceded in his deposition, EEISD did not use the exact words

“reduction in force” in the Termination Letter, the Investigator’s Report, or the Position

Statement, as was used in the TWC Letter. However, the purported inconsistency fails

to support an inference of discrimination because these four documents do not contradict

each other. Instead, they say the same thing albeit phrased differently.

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To explain, the “best interest of the district” reason provided in the Termination

Letter is undeniably broad, and thus, the Investigator’s Report and Position Statement

(both following the Termination Letter in time) simply provided more detail as to what

“best interest of the district” meant in response to discrimination allegations. See

generally Flores II, 709 S.W.3d at 505 (explaining that we cannot disregard evidence

and inferences unfavorable to the plaintiff if reasonable jurors could not). That detail

being, Domingo’s position was closed (or eliminated) based on the operational needs of

the school district, which, again, is another way of saying that EEISD reduced its

workforce in a plain sense. See generally Ptomey, 277 S.W.3d at 493, 496; see also

Gamez, 2024 WL 48185, at *5. Without detail, the TWC Letter characterized Domingo’s

termination the same, as a “reduction in force.” In sum, although these documents use

different words, they do not expose an inconsistency. See Flores II, 709 S.W.3d at 505;

see also Tex. Dep’t of Agric. v. Latting, No. 03-17-00603-CV, 2018 WL 1404501, at *4

(Tex. App.—Austin Mar. 21, 2018, no pet.) (mem. op.) (declining to find a fact issue

where employee disputed that there was a reduction in force as noted in the subject line

of her termination letter where the body of the letter indicated her position was eliminated

due to a reorganization).

Concluding they are the same also provides context to EEISD’s response to

requests for admission number 12 (noted above), in which EEISD admits that it provided

information to TWC that Domingo was “separated from his job due to a reduction in

force,” because it did. And Domingo has not set forth evidence sufficient to raise a fact

issue otherwise. Cf. Orion Mktg. Grp., Inc. v. Morris, No. 04-07-00151-CV, 2008 WL

441759, at *4 (Tex. App.—San Antonio Feb. 20, 2008, no pet.) (mem. op.) (“In the ‘Work

16
Separation Details’ form to the Texas Workforce Commission, [the employer’s human

resources director] wrote that [the employee] missed three days without obtaining

permission from his supervisor and she had previously warned [the employee] that he

needed to work his scheduled hours. Yet, other evidence suggested that the warnings

[the human resources director] gave to [the employee] were that if he failed to work at

least 35 hours a week he would not be able to maintain his health insurance benefits.”).

As such, the trial court erroneously determined that Domingo raised a fact issue on

pretext in this manner.

2. No Failure to Follow Policies

An employer’s failure to follow its own policies and practices when taking an

adverse employment action can create an inference of pretext. See Sepulveda, 668

S.W.3d at 868 (citation omitted); see also Johnson v. Capstone Logistics, LLC, No. 01-

23-00221-CV, 2024 WL 5249164, at *8 (Tex. App.—Houston [1st Dist.] Dec. 31, 2024, no

pet.) (mem. op.) (“But the ultimate question here is whether [the employer’s] failure to

follow its internal policies supports an inference that discrimination was a motivating factor

in [the employee’s] termination.” (citations omitted)). Although Dr. Rodriguez testified that

he did not have the school’s board written approval to eliminate Domingo’s position before

he gave Domingo the Termination Letter, he also provided unrebutted testimony of an

unwritten practice in which he “makes recommendations on termination and hiring, and

the school board ratifies it.” In other words, the evidence presented is that he was

following an unwritten practice, not failing to do so.

Additionally, although Dr. Rodriguez conceded that the interim transportation lead

position did not have a written job description, Dr. Rodriguez nonetheless provided

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unrebutted testimony that Gallagos was working on writing job descriptions before his

departure but “if some positions didn’t get completed, they didn’t get completed.” As can

be seen, this unrebutted testimony falls short of showing the existence of an internal policy

or practice. As such, the trial court also erroneously determined that Domingo raised a

fact issue on pretext in this manner.

3. No Pattern or Practice

Assuming without deciding that Domingo may demonstrate prextext by presenting

evidence that EEISD engaged in a “pattern and practice of age discrimination,” we hold

the original and amended charge of discrimination is insufficient to raise a fact issue

because the “pattern and practice” allegations are conclusory, unsubstituted opinions.

See TEX. R. EVID. 401; see also Dall. Cnty. Hosp. Dist. v. Ballew, No. 05-22-01358-CV,

2024 WL 1269075, at *10 (Tex. App.—Dallas Mar. 26, 2024, no pet.) (mem. op.) (“To the

extent [appellant] relies on . . . [his own conclusory statements from his

declarations] . . . of pattern or practice to show pretext, we conclude it does not raise a

fact issue as to pretext. [Appellant] submitted no evidence to support his allegations.

Rather, they are simply his unsubstantiated opinions. Such testimony is insufficient to

raise a fact question as to pretext.”). As such, the trial court again erroneously

determined that Domingo raised a fact issue on pretext in this manner.

Having found the evidence does not raise a fact issue on pretext, Domingo failed

to meet his burden to show pretext. Accordingly, we sustain EEISD’s sole issue.

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V. CONCLUSION

We reverse the trial court's order denying EEISD’s plea to the jurisdiction and

dismiss Domingo’s claims for lack of subject-matter jurisdiction.

JENNY CRON
Justice

Delivered and filed on the
11th day of December, 2025.

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