South Texas College v. Daniel Fuentes

NUMBER 13-24-00049-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SOUTH TEXAS COLLEGE, Appellant,

v.

DANIEL FUENTES, Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 9
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Cron, and Fonseca
Memorandum Opinion by Justice Cron

Following his termination, appellee Daniel Fuentes sued his former employer

South Texas College (STC) based on claims of hostile work environment, retaliation, and

age and disability discrimination. STC challenged the trial court’s subject matter

jurisdiction through a no-evidence and traditional motion for summary judgment, which
the trial court denied. By five issues, which we construe as four, STC maintains that

Fuentes failed to establish a prima facie case for each of his claims; that Fuentes was

terminated for a legitimate, nondiscriminatory, non-retaliatory reason; and that Fuentes

failed to raise a genuine issue of material fact on whether that reason was pretextual. We

reverse and render.

I. BACKGROUND

STC hired Fuentes as a custodian in 1987 and eventually promoted him to the

position of lead custodian. Fuentes reported to Roel Moroles, and it was Moroles who

initially recommended Fuentes’s termination in August 2020. After several layers of

administrative review, STC’s president approved the recommendation, and Fuentes was

terminated on October 9, 2020, at the age of fifty-two. Fuentes then filed suit claiming

that, prior to his termination, STC “subjected [him] to discriminatory animus, disparate

treatment and/or a hostile work environment on account of his age[,] . . . on account of

his disability (diabetes and anxiety) and/or for engaging in protected activity.”

After the parties conducted discovery, STC filed a motion for summary judgment

raising numerous jurisdictional arguments on each of Fuentes’s claims (the “plea to the

jurisdiction”). STC first argued that this is a circumstantial evidence case because

Fuentes has no direct evidence to support any of his claims. STC then alleged that

Fuentes could not establish a prima facie case for any of his claims because there was

no evidence of the following:

• That Fuentes was qualified for his position.

• That Fuentes was replaced by someone significantly younger.

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• That Fuentes was treated less favorably than a similarly situated employee.

• That Fuentes suffered an adverse employment decision because of a disability.

• That Fuentes engaged in a protected activity.

• A causal link between a protected activity and an adverse employment action.

• Harassment so severe or pervasive that it altered the conditions of employment.

• That any alleged harassment was based on Fuentes’s age or disabilities.

• That STC was aware of harassment but failed to take corrective action.

STC also argued that Fuentes was terminated for a legitimate, nondiscriminatory,

non-retaliatory reason, namely, because Fuentes had been reprimanded numerous times

for failing to adequately perform one of his essential job duties. STC further argued that

it conclusively negated certain elements of Fuentes’s claim. STC supported these latter

two arguments with evidence, including the transcript from Fuentes’s deposition, STC’s

job description for Fuentes’s position, written reprimands issued by Moroles to Fuentes,

an internal email from Moroles recommending Fuentes’s termination, an internal

memorandum from several administrators recommending Fuentes’s termination, the

president’s approval of the termination, and a letter of termination. Finally, STC suggested

that Fuentes could not produce any evidence that its stated reason for terminating

Fuentes was pretextual.

A. STC’s Jurisdictional Evidence

One of Fuentes’s “essential duties and responsibilities” as lead custodian was to

secure and maintain an inventory of “all janitorial supplies and equipment.” This included

documenting the distribution of supplies and submitting a weekly report to Moroles that

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would then be forwarded to the procurement department so that additional supplies could

be purchased when necessary. The head of the procurement department or an auditor

would then conduct a physical count of the inventory and compare it to the report. It is

undisputed that some of Fuentes’s inventory reports were inconsistent with the physical

counts. Fuentes estimated during his deposition that he made “five” or “six” “mistakes

with inventory control,” which he chalked up to “human error.” Fuentes acknowledged that

Moroles admonished him on “several” occasions for “missing” inventory.

According to STC’s employment records, on April 11, 2019, Moroles notified

Fuentes in writing that a “physical count” of the janitorial supplies and equipment did “not

match” Fuentes’s inventory report because items “were missing.” The notice also stated

that Fuentes could not explain the “discrepancies” and warned that “if this should

continue, further disciplinary action and or termination will be taken.” Fuentes received a

“final written reprimand” on December 3, 2019, concerning “a shortage of seven (7) cases

of paper towels.” STC’s records also show that Moroles verbally counseled Fuentes on

at least seven separate occasions before issuing the final written warning.

It is undisputed that after these problems arose, STC provided Fuentes with

additional inventory training in April 2019. Fuentes stated in his deposition, however, that

these “one-hour training” sessions were “not enough” because he was having “a little bit

of difficulty” with “the numbers” and “needed to learn a little bit more.”

Although Fuentes acknowledged that he was blameworthy for some of the

inventory issues, he claimed that the written reprimands were unwarranted because

Moroles failed to “make an effort of investigating the reason why” the discrepancies arose.

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Fuentes believed that at least some of the inventory mistakes were attributable to other

employees who also had access to the supply warehouse, but despite Fuentes

expressing his concerns, Moroles continued to maintain that Fuentes was solely to blame.

According to Fuentes, Moroles began unfairly scrutinizing his work performance

because Moroles held “a grudge against [him].” When asked to explain the source of this

“grudge,” Fuentes claimed during his deposition that Moroles became upset with him

because Moroles had to mediate a dispute between Fuentes and another employee in

December 2019:

Q. And you think that—that you’re saying that Roy Moroles had a
grudge against you because another employee complained about
you?

A. Yes.

Q. And that Roy Moroles, this grudge he had against you was because
he had to deal with the conflict between you and this other employee
who you did not let go home early on a certain day?

A. Exactly.

When asked if there was “any other reason” for the “grudge,” Fuentes acknowledged that

he would openly criticize his supervisor during work meetings for violating STC policies:

“[E]very time we had meetings, I would throw something [out] that [Moroles] had done in

the past.”

After meeting with Fuentes and the other employee, Moroles told Fuentes he was

being transferred to another STC campus “to cool things off.” Fuentes thought this was

unfair because he was “not the one that caused the problem,” but Moroles insisted that

Fuentes should be the one to transfer. Fuentes believed that Moroles was showing

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favoritism towards the other employee because Moroles “knew some kind of family

member” of the employee.

At some point, Fuentes told Moroles that he was “feel[ing] stressed and stuff like

that,” and Moroles encouraged him to see a doctor. Sometime after, Fuentes called STC’s

human resources department and reported that he “was feeling harassed” and that

Moroles “was causing [a] hostile environment[].” He asked for medical leave because he

was feeling “pressured by [Moroles],” and said this “pressure” was negatively affecting

his health, including his diabetes. He said that Moroles knew that he was diabetic but

denied that Moroles was harassing him “because of” his condition, acknowledging instead

that it was “because of the inventory problems.” 1

STC granted Fuentes medical leave after his doctor provided a medical

certification. According to Fuentes, the “week” he returned to work, Moroles asked him

“several times,” “Why don’t you retire?” and “When are you going to retire?” Fuentes

testified that he had “no idea” why Moroles said that to him, but he suspected that Moroles

“had something coming up” because another employee had previously warned Fuentes

that Moroles was “trying to fire [him].”

Another inventory discrepancy arose on August 3, 2020. According to an internal

email authored by Moroles, instead of taking responsibility, Fuentes blamed others, as he

had done in the past. Moroles provided Fuentes with the opportunity to provide a written

1 Fuentes testified as follows:

Q. Okay. So do you believe that Roel Moroles was harassing you because of
the inventory problems or because you had diabetes?

A. No, because of the inventory problems.

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response, and Fuentes wrote the following:

German Reyes and myself were in the Supply Room discussing about
inventory issues, when suddenly Mr. Roy Moroles approached us and
interfered with our conversation. Mr. Roy Moroles question was “Why is my
inventory most of the time wrong, and that I don’t count the inventory”. He
talked to me in a raised tone of voice, and in the moment I[,] Daniel
Fuentes[,] felt that I was being harassed by Mr. Roy Moroles. I feel that he
wants to fire me, the reason I say this is because there have been other
bigger issues with our custodial staff for many years. Mr. Moroles has not
been able to fix the problems, and when things like this happen our staff
moral[e] goes down. There have been several staff members that have said
that a manager’s job description is not only managing the department and
staff but it is also solving problems that arise. We have noticed that there is
no solution for these types of issues.

After this incident, Moroles recommended Fuentes’s termination. His recommendation

was reviewed and approved by several senior administrators over the next couple of

months. STC’s then-president, Dr. Shirley Reed, made the final decision to terminate

Fuentes on October 9, 2020.

During his deposition, Fuentes acknowledged that Moroles never made any

derogatory comments about his age, but Fuentes claimed that his age “might” have been

a motivating factor in his termination because Moroles “knew” that he “had diabetes.”

Fuentes also testified that he was replaced by Lydia Mora, whom he described as being

one or two years younger than himself. He agreed that Mora, who was a long-time

custodian at STC, was qualified for the position of lead custodian.

Fuentes provided an additional example of alleged discrimination in his deposition

errata sheets: Moroles insisted on performing Fuentes’s annual evaluation, even though

that task was normally performed by another supervisor, and unlike previous years,

Fuentes received a poor evaluation, which Fuentes described as “unfair.” He also alleged

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that during the evaluation, Moroles used a “hostile” tone of voice “and continue[d] to

harass [him] in regards to the shortage in inventory.”

B. Fuentes’s Response & Jurisdictional Evidence

Fuentes acknowledged in his response that he has no direct evidence of

discrimination or retaliation and that STC articulated a lawful reason for his termination.

He insisted, though, that the jurisdictional evidence established a prima facie case for

each of his claims, as well as a genuine issue of material fact about whether STC’s stated

reason for his termination was pretextual. In addition to relying on the evidence already

submitted by STC, Fuentes proffered an affidavit, which included the following testimony:

4. For the 33 1/2 years that I was employed with [STC], I performed my
duties with hard work, dedication and undivided loyalty. During the
last six months, I was denied equal employment opportunity and was
further subjected to discriminatory animus, disparate treatment
and/or a hostile work environment in the form of age, and/or disability
discrimination as well as retaliation.

5. [STC] failed to follow its own equal employment opportunity policies
with regard to enforcement of the age and disability discrimination
statutes. As a younger worker, I was treated with respect, however,
as I got older [STC] treated me as damaged goods. Shortly after my
relocation, I was replaced by a younger worker who took over my
responsibilities. Additionally, younger healthier employees were not
subjected to relocation in a discriminatory manner.

6. The stated reason for my termination—poor performance[—]is false,
discriminatory and is a pretextual reason. I could perform any
position within [STC]’s custodial department and rather than offer me
a position transfer, I was illegally terminated and forced to retire. The
alleged poor performance on my part was merely a rouse designed
to mask discriminatory actions by [STC].

7. With regard to age discrimination I would show unto the court that I
am over the age of 40; that l am qualified for the job, Lead
Cust[o]dian[,] or any job that is consistent with my disabilities due to
diabetes and that persons younger than me have been treated more

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favorably by [STC]. Additionally, after I came back from leave, I was
asked by Mr. Moroles, “Why don’t you retire?” and “When are you
going to retire?” I was concerned by this statement because I was
significantly over the age of forty and I was being told to retire without
any reasonable explanation other than blatant age discrimination.

8. With regard to disability discrimination, I would show unto the court
that I have a disability (namely, diabetes and anxiety); that with or
without a reasonable accommodation I am qualified for the job; I am
a qualified individual with a disability, who either with or without a
reasonable accommodation can perform the essential functions of
my job. Additionally, persons without a disability were treated more
favorably in the workplace than I was. I was replaced by a younger
person that did not have any disabilities that I was aware of and this
is further evidence of discrimination.

9. With regard to retaliation, I opposed a discriminatory practice when I
went to visit Hilda in Human Resources to complain about the
discriminatory treatment that I was recieving [sic] from Mr. Moroles.
Shortly after reporting this information to Human Resources, I was
terminated for alleged poor performance which is false and/or
pretextual.

C. STC’s Response

STC filed a response objecting to Fuentes’s affidavit as conclusory and self-

serving. STC also suggested that Fuentes made several fatal admissions in his

deposition. Although it did not use the term “sham affidavit,” STC argued that the

conclusory statements in Fuentes’s affidavit directly contradicted his prior sworn

testimony. Finally, STC concluded that the admissible evidence in the record was

insufficient to establish a prima facie case for any of Fuentes’s claims.

D. Trial Court’s Ruling

The trial court held a hearing and took the matter under advisement. The trial court

subsequently denied STC’s plea but did not rule on STC’s objections to Fuentes’s

affidavit. This interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE

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§ 51.014(a)(8).

II. STANDARD OF REVIEW & APPLICABLE LAW

Subject matter jurisdiction is essential to a court’s authority to decide a case. In re

Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (orig. proceeding) (per curiam) (citing Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial

court has subject matter jurisdiction over a plaintiff’s claim is generally a question of law

we review de novo. Sampson v. Univ. of Tex. at Aus., 500 S.W.3d 380, 384 (Tex. 2016).

Governmental entities are generally immune from suits for money damages unless

the Legislature has expressly waived immunity for the type of claim asserted. Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008) (Garcia I).

This immunity from suit deprives the trial court of subject matter jurisdiction over the

plaintiff’s claims and may be properly raised in a plea to the jurisdiction or a motion for

summary judgment. City of Houston v. Williams, 353 S.W.3d 128, 133 (Tex. 2011). “A

plaintiff has the burden to affirmatively demonstrate the trial court’s jurisdiction.” Town of

Shady Shore v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). Thus, when a plaintiff sues

a governmental entity, they must allege facts that fall within a legislative waiver of

immunity. Id. A governmental defendant may challenge the trial court’s jurisdiction by

attacking the plaintiff’s pleadings, the existence of jurisdictional facts, or both. Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

When a governmental defendant challenges the existence of jurisdictional facts

and supports its argument with evidence, “the standard of review mirrors that of a

traditional summary judgment.” Town of Shady Shores, 590 S.W.3d at 550. If the

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governmental entity’s evidence establishes the absence of a jurisdictional fact, the burden

shifts to the plaintiff to raise a genuine issue of material fact for the jury to resolve, and if

the plaintiff fails to do so, the trial court should rule on the jurisdictional question as a

matter of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

“[I]n evaluating the parties’ evidence, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528–29 (Tex.

2022).

After adequate time for discovery, a governmental entity may also challenge the

existence of jurisdictional facts through a no-evidence motion for summary judgment.

Town of Shady Shores, 590 S.W.3d at 551. The governmental entity must first identify an

element of a claim for which there is no evidence. Id. (citing TEX. R. CIV. P. 166a(i)). It is

then incumbent upon the plaintiff to create a genuine issue of material fact by producing

“more than a scintilla of evidence establishing the existence of the challenged element.”

Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). Less than a

scintilla of evidence exists when the evidence is “so weak as to do no more than create

a mere surmise or suspicion” of a fact. Ridgway, 135 S.W.3d at 601. “Conclusory

affidavits are not enough to raise fact issues.” Ryland Grp., Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996); Doherty v. Old Place, Inc., 316 S.W.3d 840, 845 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (“Conclusory statements without factual support are not

credible, and are not susceptible to being readily controverted.”). As with a jurisdictional

challenge on traditional summary judgment grounds, we view the evidence in the light

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most favorable to the plaintiff. Ridgway, 135 S.W.3d at 601.

Chapter 21 of the Texas Labor Code prohibits employers from discriminating

against employees “because of race, color, disability, religion, sex, national origin, or

age.” TEX. LAB. CODE § 21.051. Chapter 21 also prohibits employers from retaliating

against employees for engaging in certain protected activities, such as reporting

discrimination internally. Id. § 21.055.

Chapter 21 “waives immunity, but only when the plaintiff states a claim for conduct

that actually violates the statute.” Alamo Heights, 544 S.W.3d at 770; see TEX. LAB. CODE

§ 21.254 (permitting an employee to “bring a civil action against” their employer). A

plaintiff who fails to allege a viable claim under Chapter 21 is subject to dismissal for want

of jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex.

2012) (Garcia II). Likewise, once a claim under Chapter 21 fails on evidentiary grounds,

the alleged waiver evaporates, and the trial court should dismiss the claim for want of

jurisdiction. Alamo Heights, 544 S.W.3d at 763 (“By intertwining [Chapter 21’s] immunity

waiver with the merits of a statutory claim, the Legislature ensures public funds are not

expended defending claims lacking sufficient evidence to allow reasonable jurors to find

the governmental entity liable.”). Because Chapter 21 was modeled after Title VII of the

Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act of 1990, see TEX.

LAB. CODE § 21.001(1), (3), Texas courts are guided by federal precedent to the extent

that Chapter 21 and those federal statutes are analogous. Tex. Dep’t of Transp. v. Lara,

625 S.W.3d 46, 52 (Tex. 2021) (citing Garcia II, 372 S.W.3d at 634).

Violations of Chapter 21 can be established with either direct or circumstantial

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evidence, and for cases based on circumstantial evidence—like this one—Texas courts

employ the three-part McDonnell Douglas burden-shifting framework. Alamo Heights, 544

S.W.3d at 781–82 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05

(1973)). First, the employee must establish a prima facie case, which gives rise to a

rebuttable presumption that a statutory violation occurred. Id. at 782 (citing Tex. Dep’t of

Cmty. Affs. v. Burdine, 450 U.S. 248, 252–54 (1981)). “Although the precise elements of

this showing will vary depending on the allegations, . . . the plaintiff’s burden at this stage

of the case ‘is not onerous.’” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477

(Tex. 2001) (quoting Burdine, 450 U.S. at 253). The employer may then rebut this

presumption by offering a legitimate, nondiscriminatory, non-retaliatory reason for the

disputed employment action. Alamo Heights, 544 S.W.3d at 781–82 (citing Burdine, 450

U.S. at 254–55). This is a burden of production, not persuasion, and involves no credibility

assessment. Reeves v. Anderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (citing

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). “Once rebutted, the

presumption disappears, and an employee lacking direct evidence cannot prove a

statutory violation without evidence that the employer’s stated reason is false and a

pretext for discrimination.” Alamo Heights, 544 S.W.3d at 782 (citing Burdine, 450 U.S. at

255–56). Whether summary judgment is appropriate at this stage will depend on a

“number of factors,” including “the strength of the plaintiff’s prima facie case, the probative

value of the proof that the employer’s explanation is false, and any other evidence that

supports the employer’s case and that properly may be considered on a motion for

judgment as a matter of law.” Reeves, 530 U.S. at 148-49.

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For claims against government employers, each step of the McDonnell Douglas

analysis is jurisdictional in nature. Id. at 783. Thus, “[f]or a plaintiff who proceeds along

the McDonnell Douglas burden-shifting framework, the prima facie case is the necessary

first step to bringing a discrimination claim under [Chapter 21].” Garcia II, 372 S.W.3d at

637. A plaintiff’s failure to make a prima facie case “means the plaintiff never gets the

presumption of discrimination,” and the claim should be dismissed because the trial court

lacks jurisdiction. Id.

III. AGE DISCRIMINATION

By its first issue, STC contends the trial court erred by failing to dismiss Fuentes’s

age discrimination claim. To establish a prima facie case of age discrimination, an

employee must show that he: (1) was 40 years of age or older, (2) was qualified for the

position, (3) suffered a final, adverse employment action, and (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. Tex. Tech Univ. Health Scis. Ctr.-

El Paso v. Flores, 709 S.W.3d 500, 505 (Tex. 2024) (Flores II); see TEX. LAB. CODE

§ 21.101 (“The provisions of this chapter referring to discrimination because of age or on

the basis of age apply only to discrimination against an individual 40 years of age or

older.”); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (holding that

an inference of age discrimination “cannot be drawn from the replacement of one worker

with another worker insignificantly younger”). Fuentes pleaded that “he was replaced by

a younger worker, that his termination was on account of his age or that he was treated

differently than persons outside the protected class.” STC challenged Fuentes to produce

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more than a scintilla of evidence to satisfy the fourth element of his prima facie claim and

maintains on appeal that Fuentes failed to do so.

We conclude that Fuentes failed to produce any evidence that he was replaced by

someone “significantly younger.” See Flores II, 709 S.W.3d at 505. The minimum

threshold for when a replacement qualifies as “significantly younger” remains an open

question, but courts agree that an age difference of three years or less is insignificant as

a matter of law. See, e.g., Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 705 (Tex.

App.—Amarillo 1999, no pet.) (holding that three-year age difference was insufficient);

Acosta v. Gov’t Emps. Credit Union, 351 S.W.3d 637, 643 (Tex. App.—El Paso 2011, no

pet.) (“A four-year age difference is insignificant.”); Grosjean v. First Energy Corp., 349

F.3d 332, 336–40 (6th Cir. 2003) (surveying federal case law and holding that “in the

absence of direct evidence that the employer considered age to be significant, an age

difference of six years or less between an employee and a replacement is not significant”).

Fuentes testified that he is one or two years older than his replacement. Consequently,

Fuentes failed to establish a prima facie case of age discrimination based on the theory

that he was replaced by someone “significantly younger.” See Hartis, 7 S.W.3d at 705;

Acosta, 351 S.W.3d at 643.

There is also no evidence in the record that Fuentes was treated less favorably

than others who were similarly situated but outside of his protected class. “Employees are

similarly situated if their circumstances are comparable in all material respects, including

similar standards, supervisors, and conduct.” Tex. Tech Univ. Health Scis. Ctr.-El Paso

v. Flores, 612 S.W.3d 299, 312 (Tex. 2020) (Flores I) (quoting Ysleta Indep. Sch. Dist. v.

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Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). Their circumstances must be “nearly

identical.” Autozone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008) (per curiam).

“Employees with different responsibilities, supervisors, capabilities, work rule violations,

or disciplinary records are not considered to be ‘nearly identical.’” Id. A plaintiff proceeding

under this approach “cannot rely merely on evidence that” he was terminated because of

his age, “but instead must provide evidence that he was treated less favorably than those

who did not fit within the protected class.” Flores I, 612 S.W.3d at 312 (citation modified).

Fuentes alleges in his petition that he was “wrongfully terminated” because of his

age. 2 By his own admission, Fuentes made “five” or “six” “mistakes with inventory control”

as lead custodian, but he has not identified any other lead custodian with a similar

disciplinary record who was treated more favorably. See id. In fact, Fuentes has not

identified any specific comparators. Instead, he merely testified that he was treated with

more “respect” when he was younger. Consequently, Fuentes “cannot establish the fourth

element of a prima facie case under the disparate-treatment approach.” Id. We conclude

2 Fuentes does not identify his reassignment to another STC campus as an adverse employment

decision in his petition; his only claims are for hostile work environment and wrongful termination. And
although he discusses his reassignment in his affidavit, the record does not establish that his reassignment
was an adverse employment decision because he maintained the same job title, duties, and salary. See
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332–33 (5th Cir. 2009) (finding no adverse employment
action taken where plaintiff’s reassignment did not affect her job title, grade, hours, salary, or benefits, her
duties were unchanged, and there was no evidence that she suffered diminution in prestige or change in
standing among her co-workers).

Even if the evidence established that his reassignment constituted an adverse employment action,
the claim would be jurisdictionally barred because he failed to timely exhaust his administrative remedies
with respect to such a claim. See TEX. LAB. CODE § 21.202(a) (providing that an administrative complaint
“must be filed not later than the 180th day after the date the alleged unlawful employment practice
occurred”); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 514 (Tex. 2012) (explaining that failure to
file a complaint within the 180-day window constitutes a jurisdictional bar to suit). Although Fuentes’s charge
of discrimination was timely with respect to his termination, he filed the charge approximately sixteen
months after his reassignment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged
in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act.”).
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the trial court erred by failing to dismiss this claim. STC’s first issue is sustained.

IV. DISABILITY DISCRIMINATION

STC argues by its second issue that the trial court erred by denying its plea as to

Fuentes’s disability discrimination claim. To establish a prima facie case of disability

discrimination, a plaintiff must show: (1) he has a disability; (2) he was qualified for the

job; and (3) he suffered an adverse employment action because of his disability. Lara,

625 S.W.3d at 61; County of El Paso v. Flores, 677 S.W.3d 31, 44 (Tex. App.—El Paso

2023, pet. denied); see TEX. LAB. CODE § 21.051. Chapter 21 defines “disability” as “a

mental or physical impairment that substantially limits at least one major life activity of

that individual, a record of such an impairment, or being regarded as having such an

impairment.” TEX. LAB. CODE § 21.002(6). Fuentes’s alleged disabilities are diabetes and

anxiety. STC argues on appeal, as it did in the trial court, that Fuentes failed to produce

prima facie evidence that he was qualified for the position or that either of his alleged

disabilities was a motivating factor in his termination. STC also argues that it offered a

legitimate, nondiscriminatory reason for Fuentes’s termination and that Fuentes failed to

produce sufficient evidence of pretext.

For this particular claim, we will assume without deciding that Fuentes established

a prima facie case of disability discrimination. See Tex. Dep’t of State Health Servs. v.

Kerr, 643 S.W.3d 719, 735 (Tex. App.—Amarillo 2022, no pet.) (assuming prima facie

case where employee failed to rebut employer’s legitimate, nondiscriminatory reason for

termination). It was uncontested in the trial court that STC offered a legitimate,

nondiscriminatory reason for Fuentes’s termination—poor job performance. Accordingly,

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the burden shifted to Fuentes to raise a genuine issue of material fact about whether that

reason was both “false and a pretext for discrimination.” Alamo Heights, 544 S.W.3d at

782.

By admitting in his deposition that he made inventory mistakes on “five” or “six”

occasions, it is difficult for Fuentes to raise a genuine issue of material fact as to whether

his termination for poor job performance was false. See Turner v. Baylor Richardson Med.

Ctr., 476 F.3d 337, 346 (5th Cir. 2007) (finding employee “clearly failed” to show pretext

where employee was fired for poor job performance and admitted to making several

mistakes in her deposition). Even if some of Moroles’s criticisms about Fuentes’s job

performance were undeserved, as Fuentes claims, this fact is not sufficient to show

pretext. See Hudgens v. Univ. of Tex. MD Anderson Cancer Ctr., 615 S.W.3d 634, 644

(Tex. App.—Houston [14th Dist.] 2020, no pet.) (“The issue at the pretext stage is not

whether the employer made an erroneous decision; it is whether the decision, even if

incorrect, was the real reason for the employment determination.”); Kaplan v. City of

Sugar Land, 525 S.W.3d 297, 308 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(“Simply disputing the underlying facts of an employer’s decision is not sufficient to create

an issue of pretext.”). This is so because “even an incorrect belief that an employee’s

performance is inadequate constitutes a legitimate, non-discriminatory reason.” Little v.

Republic Refin. Co., 924 F.2d 93, 97 (5th Cir. 1991).

Moreover, this case contains none of the potential hallmarks of falsity. See

Reeves, 530 U.S. at 148–49. For example, STC has consistently maintained that Fuentes

was terminated for poor job performance. See Tex. Health & Hum. Servs. v. Sepulveda,

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668 S.W.3d 856, 868 (Tex. App.—El Paso 2023, no pet.) (“[P]roviding inconsistent and

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

pretext.”). Indeed, Fuentes admitted during his deposition that Moroles admonished him

“several” times about “missing” inventory and that he received additional inventory

training to correct the problem. Additionally, it is undisputed that Fuentes received written

warnings, including a “final warning,” about his inventory control issues, and Fuentes has

not offered any evidence that STC violated its disciplinary system. See Goudeau v. Nat’l

Oilwell Varco, L.P., 793 F.3d 470, 477 (5th Cir. 2015) (acknowledging “that when an

employer opts to have a disciplinary system that involves warnings, failure to follow that

system may give rise to inferences of pretext”). Further, Fuentes also testified that he

received a poor job review prior to his termination. See Gee v. Principi, 289 F.3d 342, 348

(5th Cir. 2002) (finding a fact issue on pretext because, among other evidence,

employer’s explanation for non-selection was contradicted by employee’s recent job

evaluation).

Finally, Fuentes’s prima facie evidence of causation in this case is weak. See

Reeves, 530 U.S. at 148–49. Notably, Fuentes expressly disclaimed in his deposition that

Moroles’s scrutiny of his job performance was “because of” his diabetes, which would be

necessary to show causation. See Alamo Heights, 544 S.W.3d at 782. Regardless, the

only prima facie evidence Fuentes directs the Court to is his affidavit, where he

conclusorily stated, “[P]ersons without a disability were treated more favorably in the

workplace than I was.” Having provided no factual basis to support his conclusion,

Fuentes’s bald allegation of disparate treatment is not competent summary judgment

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evidence. See Doherty, 316 S.W.3d at 845. He also alleged in his affidavit that his

replacement, Mora, “did not have any disabilities that [he] was aware of.” This is the extent

of his prima facie evidence of disability discrimination. This fact alone, however, is

insufficient to raise a fact issue on causation. See TEX. LAB. CODE § 21.061. (“In the

absence of other evidence of an unlawful employment practice, evidence of the

employment of one person in place of another is not sufficient to establish an unlawful

employment practice.”).

We conclude that there is no evidence in the record that would support a

reasonable inference that STC’s offered reason for Fuentes’s termination was pretextual.

Accordingly, the trial court erred in failing to dismiss this claim. We sustain STC’s second

issue.

V. RETALIATION

By its third issue, STC argues the trial court should have dismissed Fuentes’s

retaliation claim. “A retaliation claim is related to, but distinct from, a discrimination claim,

and one may be viable even when the other is not. Unlike a discrimination claim, a

retaliation claim focuses on the employer’s response to an employee’s protected activity,

such as making a discrimination complaint.” Alamo Heights, 544 S.W.3d at 763–64. To

establish a prima facie case of retaliation, the plaintiff must show: (1) he engaged in

protected activity; (2) he experienced an adverse employment action; and (3) there was

a causal link between the two. Id. at 782. To engage in a protected activity, such as

making an internal complaint, the employee is not required to use “magic words,” but the

complaint “must at least alert an employer to the employee’s reasonable belief that

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unlawful discrimination is at issue.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 586

(Tex. 2017) (quoting Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir.

2010) (per curiam)).

STC contends that Fuentes failed to produce any evidence that he made a

qualifying complaint. Fuentes generally alleged in his affidavit that he made a complaint

to the human resources department “about the discriminatory treatment that [he] was

recieving [sic] from Mr. Moroles,” but he did not go into any detail about what he reported.

Similarly, Fuentes generally testified in his deposition that he reported to human

resources about “feeling harassed” and that Moroles “was causing [a] hostile

environment[].” He also asked for medical leave because he was feeling “pressured by

[Moroles],” and this “pressure” was negatively affecting his health. This evidence is

insufficient to establish that Fuentes put his employer on notice that he reasonably

believed that Moroles was mistreating him because of his age or alleged disabilities. See

Alamo Heights, 544 S.W.3d at 786–87 (complaining generically of “harassment,” “hostile

environment,” “discrimination,” or “bullying” does not trigger the TCHRA’s anti-retaliation

protection). We conclude the trial court erred in failing to dismiss Fuentes’s retaliation

claim. STC’s third issue is sustained.

VI. HOSTILE WORK ENVIRONMENT

STC’s fourth issue concerns Fuentes’s hostile work environment claim. “A hostile

work environment claim ‘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.’” Donaldson v. Tex. Dep’t of

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Aging & Disability Servs., 495 S.W.3d 421, 445 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied) (quoting Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 324 (Tex. App.—

Texarkana 2008, pet. denied)). The elements of a prima facie case of hostile work

environment are: (1) the employee belongs to a protected group; (2) the employee was

subjected to unwelcome harassment; (3) the harassment complained of was based on

the protected characteristic; (4) the harassment complained of affected a term, condition,

or privilege of employment; and (5) the employer knew or should have known of the

harassment in question and failed to take prompt remedial action. Anderson v. Hous.

Cmty. Coll. Sys., 458 S.W.3d 633, 646 (Tex. App.—Houston [1st Dist.] 2015, no pet.). An

employee complaining of harassment by a supervisor, as occurred here, need only show

the first four elements. Id.

The complained-of conduct must be both objectively and subjectively hostile or

abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). That is, in addition to the

employee’s subjective belief, the work environment must be one “that a reasonable

person would find hostile or abusive.” Id. at 21. “Abusiveness requires extreme conduct

and takes a middle path between making actionable conduct that is merely offensive and

requiring the conduct to cause a tangible psychological injury.” Esparza v. Univ. of Tex.

at El Paso, 471 S.W.3d 903, 913 (Tex. App.—El Paso 2015, no pet.) (citing Harris, 510

U.S. at 21). We consider the totality of the circumstances, including “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” Harris, 510 U.S. at 23.

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We agree with STC that the conduct Fuentes complains of, taken as true, does not

support an inference of sufficiently pervasive or severe harassment to support his

disability- or retaliatory-based hostile work environment claim. Most of Fuentes’s

allegations concern Moroles criticizing the quality of his work. But criticism of an

employee’s work performance and careful monitoring of job performance typically do not

amount to a hostile work environment. See Gonzales v. Wells Fargo Bank, Nat’l Ass’n,

733 F. App’x 795, 798 (5th Cir. 2018) (“‘[C]areful monitoring of job performance’ . . . does

not rise to the level of hostile work environment harassment.”); Credeur v. La. ex rel. of

Att’y Gen., 860 F.3d 785, 796 (5th Cir. 2017) (“Criticism of an employee’s work

performance . . . and even threats of termination do not satisfy the standard for a

harassment claim.”). Similarly, “heightened scrutiny of an employee by a supervisor”

generally cannot “support a hostile work environment claim.” Robinson v. Paulson, No.

CIV.A. H-06-4083, 2008 WL 4692392, at *18 (S.D. Tex. Oct. 22, 2008) (collecting cases).

“Those general rules are not absolute—criticism or heightened scrutiny can be relevant

to a hostile environment claim where they rise to a very high level or are part of a more

broadly hostile environment.” Cobos v. Decypher Techs., Ltd., No. SA-24-CA-01470-XR,

2025 WL 3215364, at *10 (W.D. Tex. Nov. 10, 2025) (citing Flowers v. S. Reg’l Physician

Servs. Inc., 247 F.3d 229, 236–37 (5th Cir. 2001)).

No such evidence exists here. First, Fuentes acknowledged responsibility for “five”

or “six” “mistakes with inventory control,” which means Moroles’s criticism of Fuentes’s

job performance in those instances was warranted. See Combs–Burge v. Rumsfeld, 170

F. App’x 856, 862 (4th Cir. 2006) (unpublished) (stating that “counseling [an employee]

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about performance deficiencies and assigning her remedial tasks to correct those

deficiencies . . . is not the type of conduct that is objectively abusive because it was the

direct result of the documented shortcomings in [the employee’s] job performance”).

Fuentes’s remaining evidence does not rise to the level of a hostile work environment.

Fuentes identified two meetings where Moroles used “a raised tone of voice” that Fuentes

described as “hostile.” He also testified that during a single “week,” Moroles made

“several” comments to him suggesting that he should retire. Although he originally

testified that he had “no idea” why Moroles made those comments, he later testified by

affidavit that he interpreted the comments as being ageist. 3 Even if the comments were

ageist, “several” mildly offensive comments over the course of a single “week” and two

instances where Moroles “raised” his voice at Moroles do not amount to objectively severe

or pervasive conduct that affected the terms and conditions of Fuentes’s employment.

See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (explaining that “offhand

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of employment’”). Finally, Fuentes

testified that, after his dispute with another employee, Moroles unfairly transferred him to

another STC campus, but Fuentes himself attributed that decision to Moroles’s personal

relationship with the other employee rather than his alleged discriminatory or retaliatory

animus towards Fuentes. We conclude the trial court erred by failing to dismiss this claim,

3 STC has not carried forward its prior objection that Fuentes’s affidavit conflicted with his prior

testimony, so we express no opinion on the matter. See TEX. R. APP. P. 47.1; Lujan v. Navistar, Inc., 555
S.W.3d 79, 85 (Tex. 2018) (explaining that, under the sham affidavit doctrine, “a trial court may conclude
that a party does not raise a genuine fact issue by submitting sworn testimony that materially conflicts with
the same witness’s prior sworn testimony, unless there is a sufficient explanation for the conflict”).

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and we sustain STC’s fourth issue.

VII. CONCLUSION

We reverse and render a judgment of dismissal for want of jurisdiction.

JENNY CRON
Justice

Delivered and filed on the
15th day of January, 2026.

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