City of Brownsville, Texas v. Valerie Garcia

NUMBER 13-24-00159-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF BROWNSVILLE, TEXAS, Appellant,

v.

VALERIE GARCIA, Appellee.

ON APPEAL FROM THE 445TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS

MEMORANDUM OPINION

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

Appellant the City of Brownsville (the City) appeals the trial court’s denial of its plea

to the jurisdiction. By its sole issue, the City argues that the appellee Valeria Garcia failed

to establish a prima facie case under the Texas Labor Code. We reverse and render.

I. BACKGROUND

Garcia was a full-time municipal court judge for the City from 2014 to 2018. In
August 2021, Garcia learned that Rene De Coss was selected as the City’s presiding

municipal court judge.

On February 11, 2022, Garcia filed a charge of discrimination with the Texas

Workforce Commission Division of Civil Rights. Her complaint was dismissed when

Garcia instead filed a civil action.

On January 27, 2023, Garcia filed suit against the City alleging violations of the

Texas Commission on Human Rights Act (TCHRA) and discrimination by an employer

under § 21.051 of the Texas Labor Code. According to Garcia’s petition, the City did not

post or publish a job opening for the position of presiding municipal court judge, so the

City did not provide her an opportunity to apply, interview, or be considered. She alleged

that De Coss was acting as the City’s City Attorney when he was selected for the presiding

municipal judge position. Thus, the City discriminated against her based on her sex when

it hired a male for that position. Garcia alleged that the City had a history of discriminatory

behavior and animus against females being considered for municipal judges. She sought

lost earnings, special damages, past and future mental anguish, and attorney’s fees and

costs.

The City filed a plea to the jurisdiction, arguing that Garcia did not apply for the

position, so the City is not an employer in this context, and Garcia does not meet the

definition of employee. The City further argued that there is no employment relationship

between Garcia and the City because municipal court judges are members of the

judiciary, are public officials, and are not employees. The City attached § 66-6 of its city

ordinances stating that the city manager “shall appoint the presiding judge.” Therefore,

the City could not have discriminated against her when it did not afford Garcia the

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opportunity to apply for the position. Lastly, the City argued that Garcia failed to establish

a prima facie case because De Coss had eighteen years of experience as a municipal

judge, and Garcia only had eight years of experience of the same. Therefore, according

to the City, Garcia did not have the same history and tenure as De Coss. The City further

attached its discovery responses, Garcia’s deposition, De Coss’s deposition, and

depositions of the City Manager Noel Bernal and Human Resource Director Perla

Cepeda.

The trial court held a hearing on the City’s plea. Following a hearing, the trial court

denied the City’s plea to the jurisdiction. This appeal followed. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(8).

II. STANDARD OF REVIEW

The city, as a governmental unit, is immune from suit unless the state consents.

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

plaintiff states a claim for conduct that actually violates the TCHRA, the statute waives

immunity. Id. Immunity from suit may be asserted in a plea to the jurisdiction Id. If the plea

challenges the existence of jurisdictional facts, as is the case here, we must move beyond

the pleadings and consider evidence when necessary to resolve the jurisdictional issues,

even if the evidence implicates both subject-matter jurisdiction and the merits of a claim.

Id. at 170‒71. “In such cases, the standard of review mirrors that of a traditional summary

judgment: [I]f the plaintiffs’ factual allegations are challenged with supporting evidence

necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must

raise at least a genuine issue of material fact to overcome the challenge to the trial court’s

subject matter jurisdiction.” Id. at 171 (internal quotations omitted). “In determining

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whether a material fact issue exists, we must take as true all evidence favorable to the

plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff’s

favor.” Id. 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.

Under the McDonnell Douglas framework, the plaintiff is entitled to a presumption

of discrimination if she can present a prima facie case of discrimination. See Mission

Consol. I.S.D. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). “Once a plaintiff establishes

a prima facie case, the burden shifts to the defendant to provide a legitimate,

nondiscriminatory reason for the employment action.” Metro. Transit Auth. of Harris Cnty.

v. Douglas, 651 S.W.3d 122, 128 (Tex. App.—Houston [14th Dist.] 2021, no pet.). “If the

defendant articulates a legitimate, nondiscriminatory reason for its decision, the burden

then shifts back to the plaintiff to show either that the stated reason was a pretext for

discrimination or that . . . discrimination was also a motivating factor for the adverse

employment action.” Id.

III. GENDER DISCRIMINATION

The City claims the trial court erred in denying its plea to the jurisdiction as to

Garcia’s gender discrimination claim.

A. Applicable Law

The TCHRA provides that an employer commits an unlawful employment practice

if because of sex the employer fails or refuses to hire an individual or limits, segregates,

or classifies an employee or applicant for employment in a manner that would deprive

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that individual for any employment opportunity. See TEX. LAB. CODE ANN. § 21.051.

To establish a prima facie case of gender based employment discrimination,

Garcia was required to plead and produce evidence (1) that she was a member of a class

protected by the TCHRA, (2) that she was qualified for the employment position, (3) that

she was subject to adverse action, and (4) that she was treated less favorably than

similarly situated members of the opposing class. AutoZone, Inc. v. Reyes, 272 S.W.3d

588, 592 (Tex. 2008) (per curiam); Coll. of the Mainland v. Glover, 436 S.W.3d 384, 393

(Tex. App.—Houston [14th Dist.] 2014, pet. denied (finding the same elements are

required for claims of disparate treatment). The City challenges the second and fourth

elements.

“Employees are similarly situated if their circumstances are comparable in all

material respects, including similar standards, supervisors, and conduct.” Exxon Mobil

Corp. v. Rincones, 520 S.W.3d 572, 584 (Tex. 2017). “[T]heir situations and conduct must

be nearly identical.” Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 84 (Tex. App.—El Paso

2020, no pet.) (internal quotation omitted). “Employees with different responsibilities,

supervisors, and capabilities are not ‘similarly situated[.]’” Id. (quoting Exxon, 520 S.W.3d

at 584); see also Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex. App.—Fort

Worth 2006, no pet.) (“More favorable treatment of a person outside a protected class

can be used to show discrimination only if the circumstances are nearly identical.”).

B. Discussion

At the plea hearing, Garcia alleged that the City discriminated against her based

on her sex when it hired De Coss as its presiding municipal judge without affording her

the opportunity to apply for the position. In her appellate brief, Garcia claims she raised

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claims of “disparate impact” and “disparate treatment.” Garcia claims that she need not

show she was similarly situated to De Coss to raise a prima facie case of discrimination

because such a requirement only applies in “employee discipline cases.” We disagree.

Elements of gender discrimination, including claims of disparate treatment—as Garcia

alleges here—require that Garcia show she was treated less favorably than a similarly

situated male. See Aguilar, 600 S.W.3d at 83‒84 (holding that claims of “disparate

treatment” require the plaintiff to establish she was “treated less favorably than similarly

situated members of the opposing class”); Glover, 436 S.W.3d at 393 (“For claims of

disparate treatment, a prima facie case is made by showing that the plaintiff . . . was

treated less favorably than similarly situated persons not in the protected class.”); see

also Tex. State Off. of Admin. Hearings v. Birch, No. 04-12-00681-CV, 2013 WL 3874473,

at *15 (Tex. App.—San Antonio July 24, 2013, pet. denied) (mem. op.) (“[A]n employee

who proffers a fellow employee as a comparator must demonstrate the employment

actions were taken under nearly identical circumstances.”).

Garcia alleges that she need only prove that she and De Coss are “similar enough

to enable a meaningful comparison,” and here she and De Coss are both licensed

attorneys bound by the same ethics rules. However, the Texas Supreme Court has held

that “[e]mployees are similarly situated if their circumstances are comparable in all

material respects,” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)

(per curiam), not just “similar enough” as Garcia suggests. See Remaley v. TA Operating

LLC, 561 S.W.3d 675, 681–82 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)

(following “binding Texas Supreme Court case law” and holding that claims of gender

discrimination “in employment predicated on alleged disparate treatment” required the

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male plaintiff “to proffer evidence tending to show he was treated less favorably than a

similarly situated person who was female”); Univ. of Tex. Med. Branch at Galveston v.

Petteway, 373 S.W.3d 785, 789 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (finding

that in a gender discrimination claim, the “undisputed evidence” established the parties

were “not similarly situated”).

The Fifth Circuit has articulated a similar standard, stating that employees are

similarly situated if their circumstances are “nearly identical.” See Perez v. Tex. Dep’t of

Crim. Just., Institutional Div., 395 F.3d 206, 213 (5th Cir. 2004); Okoye v. Univ. of Tex.

Hous. Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). Therefore, we decline to adopt

the “similar enough” standard as Garcia suggests. Instead, we determine whether the

evidence demonstrated Garcia and De Coss were similarly situated.

“Courts have recognized that employees are not similarly situated when they lack

comparable years of service.” Glover, 436 S.W.3d at 394 (finding that female and male

employees were not similarly situated where the employees had higher levels of

education, seniority, and their professional experience varied widely). Here, there was

evidence that De Coss had at least eighteen years’ experience as a municipal judge for

the City while Garcia had only four years’ serving as a municipal judge for the City. See

id. De Coss testified that he had at least twenty-five years’ experience working for the City

in different capacities, as presiding judge, associate judge, and city attorney.

Furthermore, De Coss had experience as a district court judge, and he was currently the

City’s City Attorney. See Hobbs v. Ketera Techs., 865 F.Supp.2d 719, 730 (N.D. Tex.

2012) (finding a prima facie case was not shown where the claimant had been working

for the employer for over a year whereas the comparator had been working for

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approximately six months).

Additionally, De Coss testified that there was a concern with the City regarding

Garcia living in Harlingen and not signing warrants on time. According to De Coss, “he

knew” Garcia was not signing warrants on time when she was on call because at least

two other judges “had to fill in [for Garcia] when [they were] not on call or duty because

she was not available” to sign warrants. This occurred on the other judges’ “days off and

on days that [they] were not on call, [they] were asked to come in.”

Garcia attached the former City Manager Michael Lopez’s affidavit in her response

to the City’s plea. Lopez stated that although Garcia served two terms as associate

municipal judge for the City, “[a]pproximately 30 days prior to [her] second term ending, I

began interviewing other possible candidates for associate municipal court judge” “due to

the fact that I needed a judge who was more accessible” and because “Garcia lived in

Harlingen . . . which is approximately 30 miles away,” she “was not available to sign

warrants outside of court hours.” Because she was not available, “this then left the other

two judges to be available and sign warrants at various odd hours of the day and night.”

Based on the foregoing, we find that Garcia and De Coss are not similarly situated,

and the circumstances in this case are not nearly identical. See id. (“Glover’s tenure at

the College is shorter than C.J.’s by seven years. Their circumstances are not nearly

identical for comparison purposes.); Herbert, 189 S.W.3d at 376 (“More favorable

treatment of a person outside a protected class can be used to show discrimination only

if the circumstances are nearly identical.”); see also Tex. Dep’t of Aging & Disability Servs.

v. Gomez, No. 08-23-00177-CV, 2024 WL 4007820, at *6 (Tex. App.—El Paso Aug. 30,

2024, no pet.) (mem. op.) (“Without evidence of a valid comparator who was treated more

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favorably, we conclude that Gomez failed to present evidence in support of the fourth

element of a prima facie case for age or sex discrimination.”); Edwards v. Grand Casinos

of Miss., Inc., 145 Fed. App’x. 946, 948 n.2 (5th Cir. 2005) (per curiam) (noting that as to

the similarly situated requirement, circumstances surrounding the compared employees

must be “nearly identical”). Because the parties were not similarly situated, Garcia failed

to establish a prima facie case of gender discrimination under the TCHRA. See Garcia,

372 S.W.3d at 634. Accordingly, the trial court erred when it denied the City’s plea to the

jurisdiction. We sustain the City’s sole issue.

IV. CONCLUSION

We reverse the trial court’s judgment, and we render judgment dismissing Garcia’s

claims against the City.

JAIME TIJERINA
Chief Justice

Delivered and filed on the
18th day of December, 2025.

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