Mark Holloway v. Dallas County Hospital District D/B/A Parkland Health and Hospital System

Affirmed and Opinion Filed December 23, 2022




                                                 In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-20-01114-CV

               MARK HOLLOWAY, Appellant
                           V.
 DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH
             AND HOSPITAL SYSTEM, Appellee

                    On Appeal from the 44th Judicial District Court
                                Dallas County, Texas
                         Trial Court Cause No. DC-14-00792

                               MEMORANDUM OPINION
                               Before Justices Myers and Nowell1
                                   Opinion by Justice Myers
        Appellant/plaintiff Mark Holloway filed this Texas Labor Code Chapter 21

Texas Commission on Human Rights Act (TCRHA) suit for damages against

appellee/defendant Dallas County Hospital District d/b/a Parkland Health and

Hospital System (Parkland), alleging discrimination because of race and retaliation

against him for opposing discriminatory practices. Parkland filed a combined plea

to the jurisdiction and traditional and no-evidence summary judgment motion. This


    1
      Justice Leslie Osborne was a member of the panel and participated in the oral argument of this appeal.
After argument, she resigned from this Court. Justice Osborne did not participate in the decision of this
case. TEX. R. APP. P. 41.1(b).
is an appeal from the trial court’s order granting appellee’s combined plea to the

jurisdiction and summary judgment motion and dismissing plaintiff’s claims with

prejudice. In one issue, Holloway argues the trial court erred in granting the plea to

the jurisdiction and summary judgment motion because Holloway’s evidence raised

a fact issue on all elements of his race discrimination and retaliation claims, and he

exhausted his administrative remedies. We affirm.

                    BACKGROUND AND PROCEDURAL HISTORY

                                  I. Introduction

      Parkland operates the Dallas County public hospital, often referred to as

Parkland Memorial Hospital. Holloway worked for Parkland in various positions

from March 1988 to October 1, 2003, the last one being Network Engineer II.

Holloway’s Parkland employment ended in October 2003 when Holloway and other

IT personnel were outsourced to contractor Perot Systems. Holloway was employed

by Perot Systems from 2003 to 2008, and he became employed by ACS when it won

the Parkland contract.    ACS was subsequently purchased by Xerox Business

Services, LLC, or “Xerox.” At all times relevant to this lawsuit, Holloway was

employed by Xerox and assigned to the Parkland account as a contract Network

Engineer.

                 II. Parkland’s Hiring and Recruiting Practices

      According to Gilliam Williams, a female African American job recruiter with

Parkland’s IT division for four years, Parkland used PeopleSoft recruiting software

                                         –2–
in 2012 and 2013. Job applicants at Parkland, including former Parkland employees

like Holloway, were required to submit an online employment application to be

considered for a position. According to Parkland’s Human Resources Procedure

Manual, “[n]either Parkland . . . nor any of its supervisors have any obligation to

notify employees when jobs for which they might qualify are posted.” Parkland’s

job recruiters reviewed applications in PeopleSoft and evaluated each applicant

based on (a) whether they had the minimum education or credential requirements of

the job description for the position, and (b) any additional criteria the hiring manager

requested (such as experience with certain software) that were not in the minimum

requirements for the job description. According to Williams’ declaration, hiring

managers at Parkland had no access to applications submitted in PeopleSoft or

knowledge of the identity of applicants, “other than those applicants whom I chose

to route to the hiring manager for consideration.” Parkland encouraged recruiters to

fill open positions quickly, within the parameters of Parkland’s posting and hiring

policies. After the recruiter routed an applicant through PeopleSoft, the hiring

manager responded whether they wanted to interview the routed applicant. If the

hiring manager decided to select the applicant for hire, the recruiter would verify

that the position had been posted internally on the PeopleSoft job opening page for

a minimum of seven (7) calendar days, in compliance with Parkland’s policy on job

postings, prior to moving forward with a conditional offer.

      Williams stated in her declaration that when evaluating candidates for IT

                                          –3–
positions, she found that on-the-job experience and technical certifications held by

an applicant were a better predicter of an applicant’s skill set than a college degree.

She added that college degrees indicated an applicant had “broad-based” but not

necessarily specialized knowledge in the IT field. She stated that where a job

description allowed for equivalent combination of education and/or experience, she

would consider routing applicants who had (1) years of specific experience relevant

to the position in question, and (2) technical certifications that were a minimum

requirement for the position, but who did not hold a college degree—even where a

degree was a minimum requirement for the position. If a job description included a

technical certification as a minimum requirement, Williams did not consider routing

the resume of an applicant who did not hold the certification in question because she

found it “difficult or impossible to tell from the experience or education listed on a

resume” whether the applicant had skills that were “truly equivalent to a technical

certification, which measures an applicant’s level of technical proficiency in specific

IT disciplines.”

            III. Jobs 133462 and 133607: Senior Network Engineer

      Williams was the Parkland recruiter who conveyed Bobby Black’s application

for the Senior Network Engineer position in Job 133462, and the application from

Lee Newman for the Senior Network Engineer position in Job 133607—the two

positions on which Holloway bases his discriminatory failure to hire claim. Job

133462, Senior Network Engineer, opened on October 22, 2012, and was filled on

                                         –4–
December 5, 2012. Bobby Black, according to his declaration, applied for it after

learning of the position through PeopleSoft. Holloway did not apply for the position.

He said he was going to apply for the position “the next day,” but the job posting

was “off the board.” Black stated in his declaration that Parkland hiring manager

Robert Saine “did not personally telephone me or otherwise reach out to inform me

that the Senior Network Engineer position was posted in PeopleSoft.”

         According to her declaration, Williams routed Bobby Black’s application to

Saine for consideration because (1) Black held not only a CCNA (“Cisco Certified

Network Associate),” the minimum requirement for the Senior Network Engineer

position, but a CCNP (or “Cisco Certified Network Professional”), which was a

“more advanced” certification than a CCNA;2 and (2) Black was already working

onsite at Parkland as a contract Network Engineer, which indicated to Williams he

had the necessary knowledge and experience for the position. “To the best of [her]

recollection,” Saine did not ask Williams to prioritize routing any applicant for job

133462 to him for consideration. Saine, who interviewed Black, testified that he and

Newman were identified to him as people “we’d like to interview.”

         Before issuing a conditional offer to Black, Williams verified (according to

her declaration) that as of November 9, 2012, the job had been posted for eighteen

days, more than the minimum of seven calendar days required by Parkland’s policy



   2
       In the job description, a CCNP certification was listed as a preferred certification.

                                                     –5–
on the posting of job openings. Williams also stated that once an applicant accepted

a conditional offer of employment through PeopleSoft, all other applicants were

placed in a “hold” status, but the position remained open in PeopleSoft—and

additional applicants could apply—until the position was filled and removed from

PeopleSoft. Black accepted a conditional offer of employment from Parkland on

November 20, 2012, and a formal job offer was made to him on December 4, 2012,

after he completed the drug test and background screening requirements. The

position was filled the following day, December 5, 2012. Altogether, job 133462

was open for a total of 44 days from the initial posting on October 22 until December

5, 2012, during which time Holloway could have applied for it, and did not.

      Job 133607, Senior Network Engineer, opened on November 1, 2012, and was

filled on December 5, 2012. Lee Newman stated in his declaration that he applied

for the position through PeopleSoft; Parkland recruiter Williams contacted him to

set up an interview; and Saine interviewed him for the position. Holloway, again,

did not apply for the position. As noted before, however, he stated in his deposition

that he was going to apply for it “the next day,” but the job posting had been taken

“off the board.”

      Williams stated that she routed Newman’s application to Saine for

consideration because Newman had a CCNA certification, and he was already

working onsite at Parkland as a contract Network Engineer, which indicated to her

he had the necessary knowledge and experience for the position. Saine, who

                                        –6–
interviewed Newman, testified that Newman was identified as someone “we’d like

to interview.” According to Williams, she verified, before issuing a conditional offer

to Newman, that as of November 9, 2012, the job had been posted for nine days,

more than the minimum seven calendar days required by Parkland’s job openings

policy.   Newman accepted Parkland’s conditional offer of employment on

November 19, 2012, and Williams made a formal offer to him (according again to

her declaration) on December 4, 2012, after Newman completed the drug test and

background screening requirements. The position was filled the following day, on

December 5, 2012. The position remained open for a total of 34 days from the initial

posting on November 1 until December 5, 2012, during which time Holloway could

have applied for it, and, again, did not.

      Williams stated that she did not know Holloway and had not heard of him in

2012 and 2013, apart from reviewing resumes he submitted. She also said that prior

to January 2014, when she was asked to provide documents to Parkland’s

investigators, she was not aware Holloway had made complaints of discrimination

against Parkland; she had no knowledge of an investigation by the Dallas County

Hospital District Police Department in December 2012 (see part IV, infra), or

whether Holloway participated in it; and she had no knowledge of Holloway’s filing

of a charge of discrimination with the EEOC. Williams additionally stated that, “[t]o

the best of my knowledge,” she “complied with Parkland policy and my regular

recruiting practices” with respect to the positions for which Holloway applied. And

                                            –7–
Williams stated that even if Holloway had applied for jobs 133462 and/or 133607,

she would have routed his application to Saine only if Holloway had a CCNA

certification—a requirement for the position of Senior Network Engineer—listed on

his resume. Saine testified that he formed the belief Holloway would not be a “good

fit” for the position of Senior Network Engineer because he lacked the technical

skills required for the position (e.g., his inability to configure switches, or even some

of the simpler switch configurations, much less the complex designs being installed

at the new Parkland Hospital).

                      IV. Parkland’s Internal Investigations

      After Black and Newman were hired, Holloway visited Parkland’s

“Employment Experience” office on November 26, 2012. Holloway explained that

he was a former Parkland employee whom Parkland had previously outsourced. The

investigative notes indicate Holloway complained that Bob Black and Lee Newman,

neither of whom, according to Holloway, had ever worked for Parkland, had been

hired from Xerox instead of him. Holloway added that he “wasn’t treated the same.”

      In an unrelated matter, in December 2012 Sergeant Robert Johnson, Sr., of

Parkland’s police department was asked to investigate a complaint brought by

another Parkland IT employee (Israel Benitez) that concerned (according to

Johnson’s report) “an alleged culture of intimidation, harassment, and racial

bias/favoritism exhibited by employees and leadership” in Parkland’s IT department.

The investigation also looked into “any alleged criminal behavior.”

                                          –8–
        Johnson interviewed multiple employees in the Parkland IT department as

part of his investigation, including Holloway. Holloway reported his concerns that

Alan Greenslade, Parkland’s Chief Technology Officer, and Saine had

“demonstrated discriminatory hiring practices;” Greenslade and Saine had sought to

include only Caucasian or non-African American individuals to fill positions; and

Parkland (through Greenslade and Saine) had not hired Holloway because he was

African American. Johnson’s report, dated December 20, 2012, identified Holloway

as a witness in his investigation and stated that “[s]ome employees complained of

racial bias[ ] when it came to hiring, promoting, or assignments,” including “current

Parkland [e]mploy[ees] seeking promotion and current contract employ[ees] seeking

full[-]time employment with Parkland.” Sergeant Johnson’s report concluded in

part:

        In looking at the command structure of the IT Department, I too noticed
        a disparity in minority and women representation. I saw no evidence
        of this being a discriminatory hiring practice, however, the perception
        [of] most of the IT team is that it is. I was advised by several team
        members of the “good ole boy” mentality. This is referring to a group
        of white males at the top who have often personal relationships with
        each other and will not allow people of color or women to be promoted.
        Again, I saw no evidence of this, but the perception some employees
        have is real.
        A January 2, 2013 memorandum from Parkland’s Director of Employment

Experience & Leadership & Organizational Development, Kurt Delabar, referred to

Johnson’s investigation and various information provided to him—an indication

Delabar was aware of the report’s contents. During that same month, Delabar shared

                                         –9–
portions of the Parkland police department’s investigation with Alan Greenslade, the

individual responsible for managing Xerox’s performance on the contract, and

Xerox’s Strategic Business Unit Manager Brian McDonald, who oversaw the

contractual and business relationship between Xerox and Parkland. Both attested in

their declarations, however, that they were unaware of Holloway’s participation in

the police investigation.

                                V. Other Positions

      Holloway applied for other jobs with Parkland. In January 2013, he was

rejected by Parkland for a Senior Systems Engineer position (Job 133822).

According to the job description, a CCNA certification was not required for this

position. Holloway also applied for an Application System Analyst/Programmer-

Senior position (Job 135301) in April 2013, but in May Parkland canceled the

position without hiring anyone because, according to the declaration of Leah Partier,

a Parkland job recruiter, Parkland determined that filling an office manager position

was a more urgent hiring need. In addition, Holloway applied—and was rejected—

for positions with Parkland for Materials Information Systems Electronic Data

Interchange Coordinator (Job 134799), Systems Engineer (Job 135849), Senior

System Engineer (Job 135544), and Applications System Analyst/Programmer-

Senior (Job 135087), none of which required CCNA certification. However, the

postings for jobs 134799 and 135849 were canceled and none of the applicants were

hired. Holloway’s applications for jobs 135544 and 135087 were pending at the

                                       –10–
time of his dismissal from Xerox in August 2013 (see part VII, infra), and other

applicants were subsequently hired.

                VI. Holloway’s Work on the Parkland Account

      Brian McDonald was responsible for discussing with Parkland any problems

regarding the performance of Xerox’s network engineers, including Holloway. He

testified that in 2010 Alan Greenslade threatened to terminate the data network

services portion of the contract because he didn’t think he was getting value for the

money he was paying for the network engineering services. Xerox and Parkland

subsequently executed an amendment to their contract (amendment 18) specifying

that as of October 1, 2010, Xerox would be required to provide Parkland with two

Network Engineers with “CCNA resources (or equivalent experience).”

      Starting in 2011, however, Parkland began to complain to Xerox about the

performance of certain Xerox Network Engineers, including Holloway, and about

certain network incidents or outages in which Holloway was involved. At some

point after the Parkland contract was executed, Greenslade informed McDonald that

Xerox’s network engineers were not providing a level of service that justified the

fees Parkland was paying under the contract or that was required by the complexity

of Parkland’s network. Greenslade notified McDonald that, going forward, Parkland

expected the Network Engineers assigned to the Parkland account to be, at a

minimum, CCNA-certified. Xerox Network Engineer Team Leader Bobby Black,

who was later hired by Parkland, recalled informing (between 2009 and 2010) the

                                       –11–
other Xerox Network Engineers including Holloway, Jamie Fletcher, and Lee

Newman, that obtaining their CCNA certification was required by Xerox to remain

on the Parkland account. In response to this communication, Fletcher and Newman

took and passed the CCNA exam, and Black renewed his CCNP certification. By

December 2012, when Black left Xerox to work for Parkland, Holloway was the

only Xerox Network Engineer who did not have a CCNA.

      Holloway told Black he did not believe a CCNA certification was necessary

for him because he was working on his bachelor’s degree. Prior to the 2010

amendment to the Parkland contract, McDonald and Greenslade had determined that

Holloway had CCNA or equivalent experience. But they later concluded Holloway

was not performing at a level that was “consistent with what we wanted to have at a

CCNA or equivalent.”

      McDonald, however, continued to receive complaints from Greenslade about

Holloway. In February 2013, Holloway’s Xerox co-worker, Fletcher, complained

to John Clark, Holloway’s supervisor, in an email about Holloway’s attitude toward

his Xerox co-workers, and a January 4, 2013 incident at the DeHario Clinic where a

circuit was down for four days because Holloway failed to properly troubleshoot the

problem. Fletcher’s email also referenced a prior outage at the Dallas County Youth

Jail Facilities that occurred in November 2011.      Although Holloway was not

personally responsible for that outage, he was criticized, according to the post-

mortem incident report, for not ensuring everyone was “on the same page” before

                                       –12–
leaving the job site and returning to the hospital for additional equipment. Xerox

Network Engineer Robert Mercer, who worked with Holloway on that project, was

faulted for disregarding Holloway’s specific instructions. Mercer, a white male, was

later removed from the Parkland account at Greenslade’s request because of this

incident (according to McDonald’s declaration), and his Xerox employment

terminated.

      Clark subsequently placed Holloway on a performance review plan.

Holloway’s February 27, 2013 “performance improvement review” (PIR) form, his

first disciplinary action, listed three deficiencies: (1) “CCNA certification has not

been achieved”; (2) “Poor planning and lack of follow through on projects”; and (3)

“You have shown disrespect and an attitude of irritation to your colleagues.” Clark

sent a draft copy of the PIR to McDonald. According to his deposition, McDonald

did not recall ever showing Greenslade the performance review plan, but he “very

likely would have captured the highlights of it” with him.

      Holloway was given until March 29, 2013 (approximately six weeks), to

complete the CCNA certification exam and remedy his performance and attitude

issues, but the PIR form stated that the expectations set forth would remain in effect

for the duration of Holloway’s Xerox employment. If he did not complete the CCNA

and improve on his performance issues by March 29, or if any of those issues

recurred after that date, Holloway’s Xerox employment could be terminated. Clark

testified that his goal in putting Holloway on a performance plan was to improve his

                                        –13–
performance because Clark wanted him to remain employed by Xerox. McDonald

reviewed the substance of the plan with Greenslade prior to discussing it with

Holloway because, according to McDonald, complaints regarding Holloway’s

performance had by then reached Greenslade’s attention. As McDonald testified, he

was trying to reassure Greenslade that Xerox was addressing its concerns regarding

Holloway. According to Clark, no one at Parkland asked him to implement the PIR

plan for Holloway.

       On March 9, 2013, Holloway filed his first Equal Employment Opportunity

Commission (EEOC) charge with the Texas Workforce Commission, which alleged

in part:

       I, a black male employee of respondent between 1988 and 2008, and
       then since 2008, a contract employee of respondent jointly employed
       by respondent and Xerox Corporation, performing the duties of the
       position of network engineer within respondent’s IT division, have
       been denied reemployment by respondent, unlike other three white
       male contract employees of respondent jointly employed by respondent
       and Xerox Corporation and then employed by respondent in 2013, in
       addition to other similarly situated white male contract employees
       likewise jointly employed by respondent and Xerox Corporation and
       then employed by respondent prior to 2013.
Parkland hired outside counsel to investigate, and to respond to the EEOC. In that

spring of 2013, Greenslade told an investigator for Parkland (conducting an

independent investigation into Holloway’s allegation, at Parkland’s request) that:

       Mr. Holloway is in the Xerox network team. In 2003 he was an
       employee of Parkland on the networking team. He and his team were
       outsourced to Perot. In 2007, they began to bring pieces of IT back to
       Parkland. The application team, Epic team, and Cerner (lab and
       pharmacy), imaging, and financials were brought back.
                                       –14–
      ACS won the contract and was purchased by Xerox. They hired Mr.
      Holloway. The network team has stayed outsourced. We did hire two
      engineers to work on the new hospital. We posted the positions. Two
      individuals working for Xerox (Bob Black and Lee Newman) applied
      for and obtained the positions. Mr. Holloway was not qualified, nor did
      he apply, for the positions. Xerox has been working with Mr. Holloway
      to get him a certification, CCNA (Cisco Certified Network Associate).
      He has not gotten it. Recently, Xerox has been having difficulty with
      him because he has developed a bad attitude.

During this same time, Holloway continued working for Xerox and was assigned to

Parkland, and he received some emails from various individuals thanking him for

his work at Parkland—either individually or as part of a team. On April 1, 2013,

Fletcher emailed Clark that “Mark is maintaining a better attitude. His overall

performance is much improved,” to which Clark replied: “Thanks, we are now at

the end of the PIR time frame. I will be meeting with Mark tomorrow. I will let him

know that the PIR is over but any repeat of past performance will not be tolerated.”

Fletcher responded, “Sounds good. Hopefully this is all that was needed to get him

back on track.”

      Greenslade, however, who oversaw the Xerox contract, had weekly meetings

with Xerox during this time, and he continued to complain to McDonald during the

spring and summer of 2013 about network incidents or outages in which Holloway

was involved. He did not make any written complaints to McDonald regarding

Holloway. McDonald, the “point person” on the account for Parkland staff, likewise

did not recall receiving any written complaints from Parkland regarding Holloway

in between Holloway’s first PIR in February 2013, and his eventual removal from

                                       –15–
the Parkland account in August of that same year. Clark testified that he did not

communicate with Parkland staff directly; he went through McDonald.

      Xerox, additionally, continued to inquire about whether Holloway had

obtained his CCNA. On May 9, 2013, McDonald emailed Clark noting that he had

met   with   Parkland’s    Lee    McChesney (the        manager of network          and

telecommunication) the day before “and he had no new issues[,] nor did I have

anything new to report to him regarding . . . Holloway’s attitude or performance,”

but “Lee did ask about [Holloway’s] progress on his CCNA certification.”

McDonald asked “[h]ow is that going[,] and do we have a date for the exam or

anything else that’s pertinent to attaining that certification?” Four days later, on May

13, Clark emailed Holloway that he needed “a firm commitment on a real date” by

which Holloway would obtain the certification. Clark reminded Holloway that the

contract with Parkland required two CCNA and two CCNP engineers, and that “[w]e

needed to show the client we are making true efforts in meeting this goal.”

      On June 18, 2013, Holloway filed an amended EEOC charge alleging the

following retaliatory conduct by Parkland: (1) “In April 2013, a disciplinary action

against me”; (2) “In late March and early April 2013, false criticism of my projects

and tasks.” The following day, on June 19, Holloway was interviewed by Parkland’s

investigators. During that interview, which was transcribed, Holloway told his side

of the story, stating (among other things) that he had applied for over twenty jobs at

Parkland (including network engineer) and never received an interview; Greenslade

                                         –16–
hired only white males; there was no “level field” at Parkland because the

certification requirement did not apply to everyone. Two days later, on June 21,

2013, Clark emailed Holloway that he would be removed from the Parkland account

unless he got the CCNA by the end of August: “I just want to be crystal clear here.

If you do not get the CCNA by the end of August we will need to remove you from

the site. We (Xerox) must comply with the contract.”

      On July 10, 2013, approximately five months after the original deadline,

Xerox issued a second PIR stating that the CCNA certification had not been

obtained, and giving Holloway until August 31, 2013, to do so. That same day,

Clark met with Holloway to “review the addendum to the PIR original[ly] presented

to [Holloway] on February 27, 2013. The addendum was added to formalize the due

date for completing the CCNA. Mark continues to deny he was told the CCNA was

a requirement even after being told it was a requirement in the February PIR.” The

meeting notes included the following notation: “I let Mark know that the CCNA

was still in effect and the date of completion was now August 31st 2013.”

      On the same day the July 10 PIR issued, Fletcher emailed Clark and

McDonald regarding a new performance issue involving Holloway where he was

unable to configure a switch on a “simple” connection at the Medlock facility.

According to Fletcher, it was “an example of [Holloway’s] lack of technical ability.”

A couple of weeks later, on July 25, 2013, Fletcher reported to Clark and McDonald

regarding an incident during a network outage at the Amelia Court location. Fletcher

                                        –17–
and Holloway were troubleshooting the problem with Lee McChesney, and Fletcher

asked Holloway to open a service request to Cisco (called a TAC). Holloway was

unable to open the service request, and he left the room for approximately thirty

minutes—Fletcher assumed he had gone outside to smoke a cigarette. When he

returned, McChesney and Fletcher asked him where he had gone and why he did not

open the service request. Holloway replied that he was unable to open the service

request. According to Fletcher’s email, McChesney said this was unacceptable and

he should not stop working simply because he could not open the service request; he

should have called Cisco directly. In his deposition, Holloway acknowledged that

he could have opened the service request by calling Cisco, which is how Fletcher

ultimately solved the problem.

      On August 15, 2013, McDonald emailed Clark as follows:

      Last week when the three of us met, Jamie and I left the meeting with
      the impression that Mark Holloway would cease supporting Parkland
      by the end of this week. As the customer has escalated 2 incidents to
      my attention in as many weeks (another one this week), I’ve
      communicated expectations that this was going to be addressed by
      Friday. Can you please let us know what’s going on so that we can
      address the client’s concerns and also ensure that Jamie can plan for
      site coverage if it’s just him and Brian this weekend?

The following day, August 16, Clark emailed McDonald that he had “been going

back and forth with HR,” that he believed he had “the correct contact now and will

be talking to them today,” and he would let McDonald know the result. Three days

later, on August 19, 2013, McDonald emailed Clark: “Based on recent performance

and feedback from customer, the SBU [Strategic Business Unit] would like to
                                  –18–
remove Mark Holloway from supporting Parkland.”3

       On August 21, 2013, ten days before the deadline for Holloway to obtain his

CCNA certification, Clark told him he had to leave the Parkland campus. According

to Holloway, Clark told him during a conference call that Parkland wanted him “off

the account.” Clark testified that he made the decision to remove Holloway from

the site (at the recommendation of McDonald) based on the Medlock and Amelia

Court incidents, which had been reported to him by Fletcher. Clark said he did not

know what the feedback was from the customer at that point; however, he knew that

Fletcher, a Xerox employee, had told him after Holloway’s last performance review

on July 10 that he could not configure a switch and that he had failed to open a

service request.

       McDonald said in his declaration that he did “not recall” Greenslade,

McChesney, or Fernando Martinez, a Parkland chief technology officer, “directing,

requiring, or requesting” that he put Holloway on a PIR plan, remove him from the

Parkland account, or terminate his Xerox employment. And Clark testified that the

information technology executives at Parkland would not have gone through him—

they would have contacted McDonald. However, Clark testified that regardless of



   3
      In his affidavit, McDonald stated he did “not recall having personal knowledge of an [EEOC] charge
of discrimination brought by Mr. Holloway against Parkland at the time of my August 19, 2013 request to
Clark that Mr. Holloway be removed from the Parkland account.” Clark testified that he was unaware of
Holloway’s race prior to him filing an EEOC charge against Xerox. And Greenslade similarly stated in his
affidavit that when he expressed concerns to McDonald in the Spring and Summer of 2013 about network
incidents or outages in which Holloway was involved, he was not aware Holloway had filed a charge of
discrimination against Parkland with the EEOC.
                                                –19–
whether anyone at Parkland asked McDonald to remove Holloway from the

Parkland account, Clark already knew it needed to be done because Holloway was

not providing CCNA or equivalent service and because he was not complying with

the performance improvement process.

       McDonald said that his August 19, 2013 request to Clark that Holloway be

removed from the Parkland account was based on “an accumulation of things,”

including (1) information provided by Fletcher regarding Holloway’s performance

deficiencies; (2) the report made to him by Parkland’s McChesney about Holloway’s

performance deficiencies during the Amelia Court network outage; (3) Holloway’s

Xerox disciplinary history; and (4) Holloway’s performance deficiencies dating

back to 2011. McDonald also stated that, based on his years of experience as a Xerox

manager and Holloway’s Xerox disciplinary history, he did not need any input from

Parkland to decide that removing Holloway from the Parkland account was

necessary because (1) his performance in late 2012 and 2013 showed he did not have

technical abilities equivalent to a CCNA-certified engineer, and (2) Holloway was

not providing the level of service expected by Xerox.4

             VII. Termination of Holloway’s Employment with Xerox

       Holloway was still employed by Xerox after his removal from the Parkland

account. Holloway acknowledged in his deposition that Parkland did not have the


   4
    Although Parkland was not aware of it at the time, Holloway took and failed the CCNA exam on
August 17, 2013, a few days before his removal from the Parkland account.
                                             –20–
authority to fire Xerox employees, only request their removal from the account.

They would no longer be assigned to the Parkland account but remained employed

by Xerox. Holloway also acknowledged that he never talked to anyone at Xerox

about being reassigned to a different account, nor did he know if they could have

done so.

      Xerox, however, was discussing terminating Holloway’s employment before

his removal from Parkland due to his alleged performance issues. On August 19,

2013, two days before Holloway was removed from the Parkland account, Clark

emailed his supervisor, Joseph Kimball, regarding an “Employee Issue.” The email

reads in part:

      I have an employee Mark Holloway, he is one of the onsite engineers
      at Parkland. Over the past months we have had issue with his
      performance. To make a long story short the SBU is now requesting
      we remove him from the site. I sent all of this to HR and they are
      waiting on a note from me requesting his termination. Before I did this,
      I wanted to make sure you were aware and were ok with the decision.
      I have lots of history on this and will send it to you if you would like.

      PS. Just want to make sure you know all the details. Mark was
      employed at Parkland before we (ACS) took over the site. I believe
      Mark is already suing Parkland because they didn’t hire him and I
      believe he will sue Xerox if we terminate him.

Clark stated that he was “looking for a place for [Holloway] to be” after his removal

from the Parkland account. Clark thought Holloway’s lack of a CCNA certification

would have limited the client accounts to which he could have been assigned. But

any interest Xerox might have had in identifying new assignments for Holloway—

or in continuing his employment—ended after he sent Fernando Martinez, the Chief
                                       –21–
Information Officer of Parkland, the following email on August 22, 2013

complaining about his removal from the Parkland account:




Clark believed this email—sent from Holloway’s personal email—was

inappropriate. But Clark admitted in his deposition that it merely sped up the

decision to terminate Holloway’s employment, which, as Clark acknowledged,

would have happened anyway because there were no other positions available for

him after his removal from the Parkland account. Clark forwarded the email to

Joseph Kimball, who sent it to Joan Brancheau, the director of human resources.

After conferring, they agreed Holloway’s employment should be terminated, and

this was done seven days later, on August 29, 2013.

                            VIII. Procedural History

      In January 2014, Holloway filed suit against Parkland under Chapter 21 of the

                                      –22–
Texas Labor Code, alleging retaliatory termination and a discriminatory failure to

hire claim against Parkland, pursuant to the Texas Labor Code. Parkland filed a plea

to the jurisdiction and traditional and no-evidence motions for summary judgment

in November 2019, to which Holloway replied with a combined response in

opposition. Parkland filed a reply in support of its plea and evidentiary objections

to plaintiff’s combined response. Holloway filed a response to Parkland’s

evidentiary objections, and Parkland filed a reply in support of them. On December

1, 2020, the trial court signed an order granting Parkland’s plea to the jurisdiction

and motions for summary judgment and entering “judgment against Plaintiff as a

matter of law,” dismissing his claims with prejudice. The court’s order states that it

relied on the briefing including Parkland’s evidentiary objections, evidence

submitted by the parties, and the arguments by counsel. This appeal followed.

                                    DISCUSSION

                                   I. Issue Raised

      Holloway brings the following issue:

      The trial court erred in granting Parkland’s plea to the jurisdiction and
      motions for summary judgment in their entirety and dismissing all of
      Holloway’s claims, because Holloway’s evidence raised a fact issue on
      all elements of his race discrimination and retaliation claims, and he
      exhausted his administrative remedies

                              II. Standard of Review

      “Sovereign immunity deprives a trial court of jurisdiction over lawsuits in

which the state or certain governmental units have been sued, unless the state

                                        –23–
consents to suit.” Mission Consol. Indep. Sch. Dist. v. Garcia, 

(Tex. 2012). “As a result, immunity is properly asserted in a plea to the jurisdiction.”

 The standard of review of an order denying a plea to the jurisdiction based on

governmental immunity is de novo. Tex. Nat. Res. Conservation Comm’n. v. IT

Davy, 

 (Tex. 2002).

      While a plea to the jurisdiction typically challenges “whether the plaintiff has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case,”

a plea to the jurisdiction “can also “properly challenge the existence of those very

jurisdictional facts.” Garcia, 

. “In those cases, the court can

consider evidence as necessary to resolve any dispute over those facts, even if that

evidence ‘implicates both the subject-matter jurisdiction of the court and the merits

of the case.’” 

 (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 

 (Tex. 2004)).

      Parkland’s Plea challenged the existence of jurisdictional facts with

supporting evidence. “In such cases, the standard of review mirrors that of a

traditional summary judgment.” Alamo Heights Indep. Sch. Dist. v. Clark, 

 (Tex. 2018). “‘[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.’” 

 (quoting

Miranda, 

). “In determining whether a material fact issue exists,

                                         –24–
we must take as true all evidence favorable to the plaintiff, indulging every

reasonable inference and resolving any doubts in the plaintiff’s favor.” 

 “In doing

so, 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.” 

       The TCHRA prohibits employers5 from discriminating against protected

employees or retaliating against employees who engage in protected activities. See

TEX. LAB. CODE §§ 21.051, 21.055. An employee engages in a protected activity

by, among other things, opposing a discriminatory practice, making or filing a

charge of discrimination with the EEOC or TWC, or participating in an investigation

by the EEOC or TWC. Id. § 21.055.                     The TCHRA waives a governmental

employer’s immunity from suit for violations under the act. Alamo Heights, 

. Because the TCHRA was modeled after federal statutes, Texas

courts look to relevant federal precedent for guidance. Tex. Dep’t of Transp. v. Lara,

, 52 (Tex. 2021) (citing Garcia, 

).

       In the context of a TCRHA claim brought pursuant to Chapter 21 of the Texas

Labor Code, the Supreme Court of Texas has stated that “[a]ll elements of a TCHRA

circumstantial-evidence claim are . . . jurisdictional.” Alamo, 

,


   5
      The TCHRA expressly defines “employer” to include “a county, municipality, state agency, or state
instrumentality. . .” TEX. LAB. CODE §21.002(8)(D). Public hospital districts like Parkland are state
instrumentalities and subject to claims under the Texas Labor Code. See Tarrant County Hosp. Dist. v.
Henry, 

 (Tex. App.—Fort Worth 2001, no pet.), abrogated on other grounds as
recognized by Harris Cty. Hosp. Dist. v. Tomball Regional Hosp., 

 (Tex. 2009).
                                                –25–
784. “[W]hen jurisdictional evidence negates the prima facie case or . . . rebuts the

presumption it affords, some evidence raising a fact issue . . . is required to survive

a jurisdictional plea.” Id. at 764. The Texas Supreme Court has “explained that

‘[l]ike a failure of proof at the prima facie stage, a failure to prove the elements of a

TCHRA claim [even] after a trial on the merits deprives the trial court of

jurisdiction.’” Id. at 784 (quoting San Antonio Water Sys. v. Nicholas, 

 (Tex. 2015)).

      The TCHRA prohibits an employer from failing or refusing to hire or

discharging an individual “because of race, color, disability, religion, sex, national

origin, or age.” TEX. LAB. CODE § 21.051(1).              The TCHRA also waives

governmental immunity from suit, but only if the plaintiff alleges facts that would

establish a violation of the TCHRA “and, when challenged with contrary evidence,

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

that allegation.” Tex. Tech Univ. Health Sciences Ctr.–El Paso v. Flores, 

, 305 (Tex. 2020).

      A plaintiff can establish discrimination under the TCHRA in two ways. See

Quantum Chem. Corp. v. Toennies, 

, 476–77 (Tex. 2001); City of

Richland Hills v. Childress, No. 02-20-00334-CV, 

, at *4 (Tex.

App.—Fort Worth Sept. 16, 2021, pet. denied) (mem. op.). First, the employee can

offer direct evidence of the employer’s discriminatory actions or words. Id. at 476.

“‘Direct evidence of discrimination is evidence that, if believed, proves the fact of

                                         –26–
discriminatory animus without inference or presumption.’” Coll. of the Mainland v.

Glover, 

 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(quoting Jespersen v. Sweetwater Ranch Apartments, 

 (Tex.

App.—Dallas 2012, no pet.)). Two, because direct evidence of discrimination or

retaliation is a “rarity” in employment cases, courts allow claims to proceed with

indirect or circumstantial evidence of discrimination or retaliation. Russo v. Smith

Int’l, Inc., 

 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

Under this second method, which applies here, Texas courts follow the burden-

shifting mechanism set forth by the United States Supreme Court in McDonnell

Douglas.6 McDonnell Douglas Corp. v. Green, 

, 802–05 (1973);

Glover, 

.

        The Texas Supreme Court describes the three-part McDonnell Douglas

burden-shifting framework as follows:

        If the employee can establish a prima facie case of discrimination, a
        rebuttable presumption of discrimination arises, which can alone
        sustain a discrimination claim. But the employer can defeat this
        presumption merely by producing evidence of a legitimate,
        nondiscriminatory reason for the disputed employment action. 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. In



    6
       The TCHRA was “modeled after federal civil rights law” and of its express purposes is to provide for
the execution of the policies of Title VII. NME Hosps., Inc. v. Rennels, 

 (Tex. 1999).
The TCHRA “purports to correlate ‘state law with federal law in the area of discrimination in employment,”
so Texas courts “look to analogous federal precedent for guidance when interpreting” the TCHRA. 

(citations and internal quotation marks omitted).
                                                  –27–
       both direct- and circumstantial-evidence cases, the burden of
       persuasion remains at all times with the employee.

Alamo, 

 (footnotes omitted); see also Flores, 612 S.W.3d at 305.

                  III. Exhaustion of Administrative Remedies

       Appellee first argues that Holloway failed to exhaust his administrative

remedies for all jobs except the two Senior Network Engineer positions. “A plaintiff

must comply with administrative prerequisites to sustain an employment

discrimination cause of action. This is mandatory and jurisdictional.” Bartosh v.

Sam Houston State Univ., 

 (Tex. App.—Texarkana 2008, pet.

denied). Indeed, the failure to timely file an administrative complaint under section

21.201 of the Texas Labor Code deprives a court of subject matter jurisdiction over

discrimination claims. Brownsville Indep. Sch. Dist. v. Alex, 

(Tex. App.—Corpus Christi 2013, no pet.); see also Tex. Dep’t of Transp. v. Esters,

 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Lueck

v. State, 

, 757–65 (Tex. App.—Austin 2010, pet. denied)); Bartosh,

 (“To attach jurisdiction, [plaintiff] must have filed a complaint

with the Texas Commission on Human Rights or the United States Equal

Employment Opportunity Commission (EEOC) within 180 days of the alleged

discriminatory employment practice.”) (footnote omitted). Section 21.201 provides

in part:

       (a) A person claiming to be aggrieved by an unlawful employment
       practice or the person’s agent may file a complaint with the
       commission.
                                     –28–
       (b) The complaint must be in writing and made under oath.
       (c) The complaint must state:

       (1) that an unlawful employment practice has been committed;

       (2) the facts on which the complaint is based, including the date, place,
       and circumstances of the alleged unlawful employment practice; and
       (3) facts sufficient to enable the commission to identify the respondent.

TEX. LAB. CODE § 21.201(a)-(c).

       In this case, Holloway filed three EEOC charges. The first was on March 9,

2013, alleging he was “denied reemployment by [Parkland], unlike other three white

male contract employees of [Parkland] jointly employed by [Parkland] and Xerox

Corporation and then employed by [Parkland] in 2013.” The second was filed on

June 18, 2013, alleging the following “retaliatory conduct” by Parkland:                   “a

disciplinary action against [him]” in April 2013; and, in late March and early April

2013, “false criticism of [his] projects and tasks.” The third was filed on September

12, 2013, alleging Holloway’s Xerox and Parkland joint employment was terminated

“after I filed charges of race discrimination and retaliation against both of them.”

The following chart summarizes the relevant positions:

 Job Opening; Title   Time          Individual   Race &       Holloway          Relevant
                      Frame         Hired?       Gender of    Exhausted         EEOC
                      When Job                   Individual   Administrative    Charge
                      Filled or                  Hired, If    Remedies for
                      Posting                    Any          Discriminatory
                      Canceled                                Failure to Hire
                                                              Claim?
 133462; Senior       December 5,   Yes, Bob     Caucasian    Yes               March 9,
 Network Engineer     2012          Black        male         (undisputed)      2013

 133607; Senior       December 5,   Yes, Lee     Caucasian    Yes               March 9,
 Network Engineer     2012          Newman       male         (undisputed)      2013

                                          –29–
 134578; Applications   May 13,       Yes,          African      No     —
 System                 2013          Christopher   American
 Analyst/Programmer—                  Harris        male
 Intermediate
 135301; Applications   May 28,       No, Posting   —            No     —
 System                 2013          Canceled
 Analyst/Programmer—
 Senior
 133822; Senior         June 12,      Yes, Faisal   Asian male   No     —
 Systems Engineer       2013          Mossedeque

 134799; Materials      September     No, Posting   —            No     —
 Information Systems    5, 2013       Canceled
 Electronic Data
 Interchange
 Coordinator
 135544; Senior         September     Yes, Kacey    White        No     —
 Systems Engineer       24, 2013      Harlan        female

 135849; Systems        November      No, Posting   —            —      —
 Engineer               25, 2013      Canceled

 135087; Applications   January 10,   Yes,          White male   No     —
 System                 2014          Alexander
 Analyst/Programmer-                  Townes
 Senior
 139028; Applications   April 2,      Yes, Brian    White male   No     —
 System                 2014          Carswell
 Analyst/Programmer-
 Intermediate

       Parkland does not dispute that the “white male contract employees of

[Parkland] . . . employed by [Parkland] . . . in 2013,” in Holloway’s March 9, 2013

EEOC charge can reasonably be interpreted to refer to the two Senior Network

Engineer positions filled by Bob Black and Lee Newman, respectively.           But

Parkland maintains that Holloway’s discriminatory failure to hire claims for the

other positions could not have been included in his March 9, 2013 charge because

they were filled or closed after that date, and we agree. Furthermore, Parkland

argues that Holloway’s second and third EEOC charges contain no factual

                                            –30–
allegations that could reasonably support a discriminatory failure to hire claim on

any position. Again, we agree.

      Holloway, however, cites Gupta v. E. Tex. State Univ., 

 (5th Cir.

1981) for the proposition that his discriminatory failure to hire claims occurring after

his March 9, 2013 EEOC charge are actionable as retaliation claims arising out of

an earlier charge.    

 (“[I]t is unnecessary for a plaintiff to exhaust

administrative remedies prior to urging a retaliation claim growing out of an earlier

charge; the district court has ancillary jurisdiction to hear such a claim when it grows

out of an administrative charge that is properly before the court.”). “The Gupta

exception allows a plaintiff to proceed in district court on an unexhausted retaliation

claim if that claim is alleging retaliation for properly bringing an exhausted claim

before the district court.” Sapp v. Potter, 413 F.App’x 750, 752 (5th Cir. 2011) (per

curiam).

      But Gupta waives the exhaustion requirement only for retaliation claims, not

discrimination claims that were not included in any charge, as is the case here. See

Gupta, 

. In Gupta, the court noted that “[i]t is the nature of retaliation

claims that they arise after the filing of the EEOC charge.” 

 The court added that

“[r]equiring prior resort to the EEOC would mean that two charges would have to

be filed in a retaliation case,” and this would constitute “a double filing that would

serve no purpose except to create additional procedural technicalities when a single

filing would comply with the intent of Title VII.” 

 Also, the Fifth Circuit has

                                         –31–
clarified in post-Gupta opinions that the Gupta exception does not apply when an

employer’s action is claimed to have resulted both from discrimination and

retaliation. E.g., Phillips v. Caris Life Sci. Inc., 715 F.App’x 365, 370 (5th Cir.

2017) (“[T]his court has repeatedly held that the Gupta exception only applies when

the new claim is one of retaliation; Gupta does not apply to cases in which both

retaliation and discrimination claims are alleged.”); Simmons-Myers v. Caesars

Entm’t Corp., 

, 273 (5th Cir. 2013) (Gupta created an “exception

for a claim involving only retaliation ‘growing out of an earlier charge,’ not a

retaliation and discrimination claim simultaneously alleged.”); Sapp, 413 F. App’x

at 752–53 (5th Cir. 2011) (per curiam) (“Because the Gupta exception is premised

on avoiding procedural technicalities, it has only been applied to retaliation claims

alone.”).

      In this case, Holloway pleaded only a discriminatory failure to hire claim. As

he alleged in his second amended petition, “Parkland discriminated against Plaintiff

based on his race by selecting non-African American males to fill job positions that

Plaintiff was more than qualified to fill, including but not limited to hiring two white

network engineers over Plaintiff in December 2012.” Thus, the rationale of Gupta—

avoiding the filing of a second EEOC charge for a retaliation claim growing out of

an earlier charge—does not apply to Holloway’s post-March 9, 2013 failure to hire

claims. See Gupta, 

; Simmons-Myers, F.App’x at 273–74; see also

Brownsville Indep. Sch. Dist. v. Alex, 

 (Tex. App.—Corpus

                                         –32–
Christi-Edinburg, no pet.) (rejecting plaintiff’s argument that his EEOC charge

alleging he was rejected for employment in “early October 2009” exhausted his

administrative remedies as to other, unnamed positions for which he later applied).

Furthermore, Texas courts have similarly rejected the application of the Gupta

exception to concurrent retaliation and discrimination claims. See Sw. Convenience

Stores, LLC v. Mora, 

 (Tex. App.—El Paso 2018, no pet.)

(“Once Mora’s petition claimed the termination resulted from both retaliation and

the sexual harassment, the Gupta exception no longer applies.”); Wernert v. City of

Dublin, 

 (Tex. App.—Eastland 2018, no pet.) (Gupta exception

does not apply when the plaintiff asserts claims for both retaliation and

discrimination.). Additionally, were we to construe Holloway’s allegations to

concurrently allege both a discriminatory and a retaliatory failure to hire claim, his

argument would still fail because, as we noted before, the Gupta exception does not

apply to concurrent claims of discrimination and retaliation.

      We conclude, therefore, that Holloway’s discriminatory failure to hire claims

occurring after his March 9, 2013 EEOC charge, for which he did not exhaust his

administrative remedies, were properly dismissed. This leaves the two Senior

Network Engineer positions (jobs 133462 and 133607), issues to which we now turn

our attention.

                       IV. Discriminatory Failure to Hire

      To establish a prima facie case of discrimination due to an employer’s failure

                                        –33–
to hire, the employee must show (1) he is a member of a protected class; (2) he

sought and was qualified for an available employment position (or, alternatively,

that his application would have been a futile gesture); (3) despite his qualifications,

he was not selected for the position; and (4) the employer selected someone not in

the employee’s protected class or continued to seek applicants with the employee’s

qualifications. Dallas Indep. Sch. Dist. v. Allen, No. 05-16-00537-CV, 

, at *9, n.11 (Tex. App.—Dallas Dec. 22, 2016, pet. denied) (mem. op.)

(reversing trial court’s order denying defendant’s plea to the jurisdiction on

plaintiff’s discrimination claim); see also Shackleford v. DeLoitte & Touche, LLP,

 (5th Cir. 1999) (analyzing both Title VII and Texas Labor Code

claims and noting in part that “Shackelford’s failure to apply for the position does

not bar her claim if she can show that such an application would have been a futile

gesture”). To demonstrate the futility of an application, Holloway must show he

“was deterred by a known and consistently enforced policy of discrimination.”

Shackleford, 

.

      Holloway did not apply for the either of the two Senior Network Engineer

positions. And although he may overcome this failure by showing “that such an

application would have been a futile gesture,” he fails to show he “was deterred by

a known and consistently enforced policy of discrimination.” Jenkins v. Louisiana

Workforce Comm’n, 

 (5th Cir. 2017) (citing Shackleford, 

).    Parkland’s evidence shows that recruiter Williams, an African

                                        –34–
American female who did not know Holloway, controlled which resumes were

forwarded to the hiring manager, Saine, for review. The two positions remained

posted for approximately 44 days and 34 days, respectively, more than the seven

days required by Parkland policy. The evidence further shows Parkland followed

its posting, interview, and hiring policies in the hiring of Newman and Black, and

that Holloway never contacted anyone at Parkland about applying for the positions,

which remained open for weeks after Black and Newman applied. Holloway

responds by citing his deposition testimony that Black, a former Xerox Network

Engineer who was ultimately hired for one of the two Senior Network Engineer

positions, told Holloway that Saine told Black about the posting of the Senior

Network Engineer positions. Yet even if we assume this testimony is admissible

(and we do not so conclude), it does not show Holloway’s application would have

been futile, which, in any event, is negated by Holloway’s admission that he did not

contact anyone at Parkland or attempt to apply for the positions, and which remained

open after Black and Newman applied.

      Holloway also cannot show he was qualified for the Senior Network Engineer

positions because they required a CCNA certification as a minimum requirement—

a certification held by Black and Newman, but not Holloway. Holloway argues that

his long tenure at Parkland shows he was as well qualified for the positions as Black

and Newman, but an applicant’s longer tenure does not demonstrate qualification.

See Nichols v. Lewis Grocer, 

, 568–69 (5th Cir. 1998).

                                       –35–
      Because Holloway did not apply either of the two Senior Network Engineer

positions and he fails to show his application would have been futile, he cannot

establish a prima facie case for discriminatory failure to hire.

      Furthermore, even if Holloway could establish a prima facie case, his lack of

a CCNA certification constituted a legitimate, non-discriminatory reason for not

routing his resume to the hiring managers for consideration. E.g., Little v. Tex. Dep’t

of Crim. Just., 

 (Tex. App.—Houston [1st Dist.] 2005, no pet.)

(“Selecting a more qualified applicant generally constitutes a legitimate,

nondiscriminatory justification for a failure to hire an applicant.”). Holloway had

two methods available to him to prove Parkland’s proffered reason for not hiring

him was a pretext for racial discrimination: (1) Parkland’s reason for not promoting

him was false or “unworthy of credence,” or (2) he was “clearly better qualified”

than the persons selected for the positions. Sw. Bell Tel., L.P. v. Edwards, No. 05-

09-00606-CV, 

 at *11–12 (Tex. App.—Dallas, Aug. 23, 2011, no

pet.) (mem. op.) (citing Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 

 (5th Cir. 2007)). Holloway pursues the first option. As this Court has

noted, “[a]n employer’s explanation is false or unworthy of credence if it is not the

real reason for the employment action.” Id. at *5.

      Holloway’s pretext argument is centered on alleged racial animus against him

by Greenslade and hiring manager Saine. But this argument overlooks the fact that

Saine, according to the evidence, could only select for hire those candidates

                                         –36–
forwarded to him for consideration by Gillian Williams (who is African American),

and Greenslade was not a hiring manager for any actionable position at issue in this

litigation. Holloway argues that even before the two senior network engineer

positions were publicly posted or Parkland received any applications or resumes,

“Greenslade and Saine had already decided Parkland would hire two white Xerox

employees—Bob Black and Lee Newman,” and that “Greenslade and Saine had also

already decided against hiring Holloway.”      In his deposition, however, Saine

insisted it was not a “foregone conclusion” that Black and Newman would be hired

to work with him at the new Parkland Hospital, but he and Greenslade identified

them as people “we’d like to interview.” And, furthermore, even if Saine showed

favoritism towards Black and Newman (which Parkland denies), Holloway fails to

demonstrate that the favoritism was because Black and Newman were white

candidates. Holloway believed Saine wanted to hire Newman because they were

friends, but this does not demonstrate that Saine had a policy of hiring white

candidates

      Holloway also cites the affidavit of Joe Juarez, who worked on Parkland’s IT

account for approximately 19 years—both in-house and outsourced. Juarez testified

that based on his experience as a network engineer, a CCNA certification was “a

good starting point, but it was not a substitute for real-world experience.” It was

“also not an indicator of the level of a network engineer’s technical knowledge or

skill.” Juarez had held a CCNA, and he stated that at the time he worked “with other

                                       –37–
network engineers, including Mark Holloway, who did not have CCNAs, but who

had more technical knowledge and skill within the network environment than I did.”

In March of 2013, Juarez requested Holloway “get involved in helping us” with a

technical problem involving “VPN tunnels.” Juarez stated that after he was rehired

by Parkland in 2009, he “continued to interact with [Holloway] at Parkland in the IT

department . . . until [Holloway] was terminated in 2013,” and during this time

Holloway “appeared to demonstrate a high level of technical knowledge about the

Cisco network environment he worked in.” Holloway argues this evidence raised a

fact issue as to whether the CCNA requirement was itself a pretext. Parkland,

however, argues that Juarez’s testimony is speculative regarding Holloway’s

qualifications in 2012 and 2013 because Juarez, who had not managed Holloway

since 2009, lacked sufficient contact with him during the relevant period to have

personal knowledge of Holloway’s technical skills or work performance during the

years at issue in this litigation.

       We need not resolve this issue because even if we assume Juarez’s testimony

was admissible, it demonstrated, at most, that Holloway had equivalent

qualifications to Newman, who was a CCNA certified engineer, yet still lesser

qualifications than Black, who also held a CCNP—a more advanced certification.

Based on this record, Juarez’s opinion about the usefulness of the CCNA

requirement as a minimum qualification is insufficient to defeat Parkland’s plea to

the jurisdiction. See Allen, 

, at *9, n.11.

                                       –38–
      We reach a similar conclusion regarding the use of non-actionable positions

such as the selection of Kasey Harlan for job number 135544, or Alexander Townes

for job 135087, to demonstrate pretext.          Parkland articulated legitimate, non-

discriminatory reasons for hiring other candidates for each position. For example,

Harlan, the successful applicant for job number 135544, had Sharepoint server

experience, which Holloway lacked (according to his resume). Also, the successful

applicant for job number 135087 could design applications, and Holloway’s resume

showed no such skill. Regarding job number 139028, the position ultimately filled

by Brian Carswell, the evidence showed Carswell had “correctional facility

experience” and was already working for Parkland at the jail—experience Holloway

lacked. Other positions referenced by Holloway, e.g., jobs 134799, 135301, and

135849, were canceled. Parkland’s explanation that these positions were not filled

constituted a legitimate, nondiscriminatory reason for its failure to hire Holloway.

These alleged examples of pretext fail to raise a genuine issue of material fact, either

when considered independently or cumulatively. See Perez v. Region 20 Educ. Serv.

Ctr., 

 (5th Cir. 2002) (upholding summary judgment on a failure

to hire claim because employer’s explanation that the position was not filled was a

legitimate, nondiscriminatory explanation for its failure to hire the plaintiff); see also

E.E.O.C. v. Tex. Instruments, 

, 1186–87 (5th Cir. 1996) (“‘Evidence’

that does not imply pretext taken alone does not do so when cumulated.”).



                                          –39–
      Accordingly, the trial court did not err in dismissing Holloway’s remaining

claims for discriminatory failure to hire.

                            V. Retaliatory Termination

      To make a prima facie case for race discrimination, Holloway must establish

he was (1) a member of a protected class, (2) qualified for his position, (3) subjected

to an adverse employment action, and (4) treated less favorably than similarly

situated individuals outside of his protected class. See McCoy v. Tex. Instruments,

Inc., 

 (Tex. App.—Dallas 2006, no pet.). The TCHRA

prohibits an employer from retaliating against an employee who opposes such

discrimination. TEX. LAB. CODE § 21.055. Retaliation claims can be actionable

under the TCHRA even if the underlying discrimination claim is not. Alamo

Heights, 

. To establish a prima facie retaliation case under the

TCHRA, a plaintiff must show (1) he engaged in a protected activity, (2) the

employer took an adverse employment action against him, and (3) a causal

connection between the protected activity and the adverse employment action.

Alamo Heights, 

; San Antonio Water Sys. v. Nicholas, 

 (Tex. 2015); see also Limas v. City of Dallas, No. 05-19-01223-CV, 

, at *13 (Tex. App.—Dallas July 28, 2021, no pet.) (mem. op.); City of

Dallas v. Siaw-Afriyie, No. 05-19-00244-CV, 

, at *6 (Tex. App.—

Dallas Oct. 1, 2020, no pet.) (mem. op). Circumstantial evidence of retaliation to

show a causal link may include: (1) the employer’s failure to follow its usual policy

                                         –40–
and procedures in carrying out the challenged employment actions; (2)

discriminatory treatment in comparison to similarly situated employees; (3)

knowledge of the discrimination charge or suit by those making the adverse

employment decision; (4) evidence the stated reason for the adverse employment

decision was false; and (5) the temporal proximity between the employee’s conduct

and discharge. Crutcher v. Dallas Indep. Sch. Dist., 

 (Tex.

App.—Dallas 2013, no pet.). “The employee need not establish the protected

activity was the sole cause of the employment action.” Siaw-Afriyie, 

, at *6. “All that is required is evidence from which a factfinder may infer

that retaliation motivated the adverse employment action in whole or in part.” 

      In Alamo Heights, the Texas Supreme Court declined to specify the causation

standard under which TCHRA retaliation claims are evaluated. 544 S.W.3d at 782–

83. Acknowledging it “[had] yet to determine the appropriate causation standard for

a TCHRA retaliation claim,” the supreme court applied the but-for standard rather

than the mixed-motives standard “because the parties have advocated the but-for

standard and have not asserted any other should apply.” 

 The Alamo Heights

court noted that “[t]he causation standard for the McDonnell Douglas prima-facie-

case element is not onerous and can be satisfied merely by proving close timing

between the protected activity and the adverse action.” Id. at 782. But the court

added that “[t]he but-for causation standard is significantly more difficult to prove

than prima facie causation.” Id. Prior to Alamo Heights, this Court required the

                                        –41–
plaintiff to establish a “but for” causal nexus between the protected activity and the

adverse employment action to satisfy the causation element of a retaliation claim.

Crutcher, 

. Thus, until the supreme court rules otherwise, we

follow our precedent and evaluate appellant’s TCHRA retaliation claim under a but-

for causation standard. See Siaw-Afriyie, 

, at *6.

      Holloway acknowledges he was an employee of Xerox and not Parkland.

Therefore, he can only impose liability on Parkland for the termination of his Xerox

employment under the Texas Labor Code based on an indirect employer theory.

NME Hosp. Inc. v. Rennels, 

, 146–47 (Tex. 1999) (adopting indirect

employment theory of liability announced in Sibley Mem. Hosp. v. Wilson, 

 (D.C. Cir. 1973)). In Rennels, the Texas Supreme Court held that a direct

employment relationship is not required if the plaintiff can show an employer used

its position of power and control, adversely and wrongfully, to interfere with the

plaintiff’s employment relationship with a third party. Rennels, 

;

see also Sibley Mem’l Hosp. v. Wilson, 

, 1341–43 (D.C. Cir. 1973).

To state such a claim, the plaintiff must show (1) the defendant is an employer within

the statutory definition; (2) an employment relationship exists between the plaintiff

and a third party; and (3) the defendant controlled access to the plaintiff’s

employment opportunities and denied or interfered with that access based on

unlawful criteria. Rennels, 

; see also Texas Tech Univ. Health



                                        –42–
Scis. Ctr. v. Martinez, No. 07-22-00055-CV, 

, at *1 (Tex. App.—

Amarillo Aug. 17, 2022, no pet.) (mem. op.).

      Holloway alleges the following discriminatory and retaliatory actions by

Parkland that allegedly affected his Xerox employment: (1) requesting that Xerox

discipline him; (2) requesting that Xerox remove him from the Parkland account; (3)

requesting that Xerox terminate his Xerox employment. Parkland, in turn, offered

evidence that (1) it had no control over Xerox’s promotion, compensation,

discipline, or termination of Holloway; (2) it did not control Holloway’s eligibility

to be assigned to another Xerox account; and (3) it did not request Holloway’s

discipline or removal from the Parkland account, or his termination from Xerox.

      Parkland argues its customer complaints to Xerox—in response to Holloway’s

alleged performance deficiencies—did not equate to interference with Holloway’s

employment. In response, Holloway offers evidence of Greenslade’s ability to

cancel the Parkland contract with Xerox and his request that Xerox network

engineers be removed from the Parkland account. Yet this only indicates control

over how Xerox performed its contract with Parkland, not operational control over

Xerox itself, as required by Rennels. Cf. Rennels, 994 S.W.3d at 147 (noting plaintiff

Rennels had shown the defendant hospital was in a position to interfere with her

employment relationship with third party, Sierra; contracts between hospital and

Sierra specifically gave hospital “control over certain employment issues”); Univ. of

Texas-Pan Am. v. Miller, No. 03-10-00710-CV, 

, at *5 (Tex.

                                        –43–
App.—Austin Aug. 28, 2013, no pet.) (mem. op.) (Rennels standing applied because

the defendant controlled the plaintiff’s ability to be commissioned as a peace officer,

a minimum qualification for his position with his direct employer). Moreover, the

evidence shows that complaints from Holloway’s Xerox co-worker, Jamie Fletcher,

about Holloway are what prompted Clark to remove Holloway from the site,

according to Clark’s deposition testimony. Clark also testified that the complaints

he received about Holloway’s attitude were not coming just from Fletcher; they were

coming from other Xerox employees. In addition, Holloway was still employed by

Xerox and eligible for reassignment after Parkland’s complaints about his work

performance to Xerox, and he did not seek reassignment to a different Xerox client.

See Mayes v. Kelly Servs., Inc., No. 4:03-CV-091-A, 

, at *3 (N.D.

Tex. Feb. 11, 2004), aff’d, 

 (5th Cir. 2004) (“When plaintiff’s

assignment with Onstar ended, he still had an opportunity to request Kelly to assign

him to a different workplace.       Thus, Onstar did not interfere with plaintiff’s

employment relationship with Kelly.”). Therefore, we conclude Holloway cannot

establish that Parkland asserted the type of control found in Rennels and its progeny

to be sufficient to invoke indirect employer liability.

      Furthermore, were we to conclude Parkland exercised sufficient control over

Holloway’s employment opportunities under Rennels, he has not established a prima

facie case of retaliatory termination. Holloway claims he engaged in protected

activity when he (1) participated in the December 2012 Parkland police investigation

                                         –44–
and complained of Parkland’s racially discriminatory hiring practices; (2) filed a

March 9, 2013 charge of discrimination against Parkland; (3) filed a second charge

of discrimination against Parkland on June 18, 2013; (4) participated in an interview

with an investigator hired by Parkland to investigate complaints of race

discrimination in the IT Division (the interview took place on June 18 to 19, 2013);

and (5) filed a third charge of discrimination against Parkland on September 12,

2013. Parkland does not dispute that these actions constitute protected activities.

      It argues, however, that Holloway conflates Parkland’s complaints to Xerox

about his performance (which, Parkland maintains, are not adverse employment

actions), with Xerox’s decision to remove Holloway from the Parkland account and,

subsequently, terminate his Xerox employment. Holloway cites University of Texas

Southwestern Medical Center v. Vitetta as support for his argument that he suffered

an adverse employment action, arguing that “[b]y [criticizing] Holloway’s

performance unjustly to Xerox, instigating his PIR, and imposing the CCNA

requirement, and removing Holloway from the campus and its account, Parkland

changed the terms, conditions and privileges of Holloway’s employment, and it

denied him and interfered with [his] employment opportunities at Xerox.” See No.

05-19-00105-CV, 

 (Tex. App—Dallas Sept. 28, 2020, no pet.)

(mem. op.).

      In Vitetta, this Court held that denying a university professor funding, cutting

her laboratory space, and firing her employees (because of her age and sex and in an

                                        –45–
attempt to force her to retire) was actionable discrimination. Id. at *16 (“At a

minimum, a fact issue exists on whether her lab constituted a term, condition, or

privilege of her employment and whether its removal was sufficiently adverse to

constitute an adverse employment action for McDonnell Douglas purposes.”).

Vitetta, however, involved a direct employment relationship in which the plaintiff

provided evidence that her employer’s action in cutting her funding and staffing her

research lab materially affected her employment. See id. at *1, 16-17.

      The situation here is different because Holloway was employed by Xerox, not

Parkland. Unlike the plaintiff in Vitetta, Holloway cannot show Parkland’s customer

complaints directly caused any change in his Xerox employment. Additionally,

Parkland made performance-related complaints to Xerox about Xerox network

engineer Mercer, a white male who did not engage in any protected activity. Mercer

was later removed from the Parkland account at Greenslade’s request (according to

McDonald’s declaration), and his Xerox employment terminated. Holloway also

argues that Xerox Network Engineer Fletcher, a white male, was not disciplined for

causing an outage in 2013. Greenslade testified, however, that he did not complain

to Xerox about Fletcher’s performance or request that Xerox discipline him over the

outage because he “took ownership of the mistake” and “worked diligently to resolve

the issue as quickly as possible.” Thus, Fletcher’s outage was not of “comparable

seriousness” to the Amelia Court outage discussed previously, where Holloway left

the room, leaving Xerox’s Fletcher and Parkland’s McChesney to fix the problem.

                                       –46–
See AutoZone, Inc. v. Reyes, 

 (Tex. 2008) (to prove

discrimination based on disparate discipline, misconduct of both disciplined and

undisciplined employees “must be of ‘comparable seriousness.’”) (internal citation

omitted).

      Holloway’s retaliation claim also fails because he cannot establish “but-for”

causation between Parkland’s customer complaints and the termination of his Xerox

employment. Holloway’s supervisor at Xerox, John Clark, had the authority to

decide to remove Holloway from the Parkland account, and ultimately did so. And

Clark testified that (1) Parkland did not request Holloway’s removal; (2) regardless

of whether anyone at Parkland asked Brian McDonald to remove Holloway from the

Parkland account, Clark already knew it needed to be done because he was not

providing CCNA or equivalent service to Parkland, and because Holloway was not

meeting performance improvement goals; (3) complaints from Holloway’s Xerox

co-worker, Jamie Fletcher, and from other Xerox employees, are what prompted

Clark to remove Holloway from the Parkland account.

      Holloway, however, testified that on the morning of August 31, 2013, the day

he was asked to leave the Parkland campus, he showed up for work at Parkland and,

over the telephone, Clark told him Parkland wanted him off their account and to

leave the site. Holloway also cites Clark’s deposition testimony where he was asked

about his prior testimony from 2016, during an arbitration proceeding. Clark was

asked what he told Holloway regarding why he had to leave, and Clark told him the

                                       –47–
client indicated he had to leave.

      Parkland argues that Clark’s arbitration testimony is not competent summary

judgment evidence. We need not resolve this issue, however, because Clark’s prior

testimony, even if admissible, does not controvert the other reasons he offered for

removing Holloway from the Parkland account. Moreover, it is undisputed that

Holloway was still employed by Xerox and eligible for reassignment at the time of

his removal from the Parkland account.

      Holloway also argues that Greenslade, the Parkland decision-maker, had

knowledge of Holloway’s protected activity. E.g., Univ. of Tex. Southwestern Med.

Ctr. v. Saunders, 

, at * 4–6 (Tex. App.—Dallas July 13, 2016, no

pet. denied) (mem. op.) (reversing trial court’s denial of plea to the jurisdiction

because there was no causal link between employee’s disability discrimination

lawsuit and termination of her employment where the decision maker had no

knowledge of lawsuit); Crutcher v. Dallas Indep. Sch. Dist., 

(Tex. App.—Dallas 2013, no pet.) (“On this record, the summary judgment evidence

concerning DISD’s knowledge of the 2004 Lawsuit does not establish the casual

connection required to prove a prima facie case of retaliation.”); Higgs v. Trammell

Crow Co., 05-04-00547-CV, 

, at *2–3 (Tex. App.—Dallas Feb.

10, 2005, no pet.) (mem. op.) (evidence established that Castor, the decision maker

in that case, had no knowledge at the time of his decision not to hire Higgs that Higgs

had filed a charge with the EEOC). But Parkland offered evidence that Greenslade

                                        –48–
was unaware of Holloway’s participation in the December 2012 Parkland Police

investigation and Holloway’s EEOC charges until after Holloway’s removal from

the Parkland account. Parkland also offered evidence that although Greenslade was

interviewed by Parkland’s independent investigator, Marie Watts, in May and July

of 2013, he did not understand that Holloway had taken legal action against

Parkland. Holloway maintains that Greenslade had knowledge of his protected

activity because Parkland’s Director of Employment Experience, Kurt Delabar,

allegedly shared “significant portions of the Parkland police department’s

investigation” with Greenslade. In fact, however, the information Delabar shared

with Greenslade was a complaint from Valerie O’Keeffe-Short—a female employee

of Parkland—against Greenslade. There is no evidence Delabar shared Holloway’s

complaints in the police investigation with Greenslade. Thus, Holloway’s evidence

does not controvert Greenslade’s testimony that he lacked knowledge of Holloway’s

protected activity.

      The temporal proximity in this case is likewise insufficient to defeat summary

judgment. There were performance deficiencies involving Holloway dating back to

2011, about which Parkland complained prior to the December 2012 Parkland police

investigation. Furthermore, Parkland already had insisted—and Xerox had informed

Holloway—that he must obtain a CCNA prior to December 2012. In addition,

Parkland’s conversations with Xerox about Holloway’s performance issues and his

lack of a CCNA continued throughout the period between December 2012, and after

                                       –49–
the June 18, 2013 EEOC charge. Following this protected activity, Holloway had

two more performance issues (the Medlock incident on July 11, 2013; the Amelia

Court incident on July 24), which motivated additional complaints by Parkland. But

the fact that Holloway’s June 18, 2013 EEOC charge was filed approximately two

months before his removal from Parkland in August 2013 is not evidence his June

18 protected activity—or any of his previous protected activity—caused Parkland’s

last complaints to Xerox because the grounds for those complaints by Parkland arose

after the protected activity. Thus, the temporal proximity in this case is insufficient

to defeat summary judgment. See Green v. Lowe’s Home Centers, Inc., 

 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (temporal proximity

between plaintiff’s protected activity and his termination did not raise a fact issue as

to a causal link when the stated grounds for termination occurred after the protected

activity). In addition, regardless of the duration between Holloway’s protected

activities and Parkland’s complaints to Xerox, temporal proximity alone cannot

support a causal connection because Parkland’s decision-maker, Greenslade, did not

have knowledge of Holloway’s protected activity. See Crutcher, 

(“Temporal proximity may be evidence of a causal connection only when a person

with input into the employment decision was aware of the protected activity.”).

      We therefore conclude the trial court did not err in dismissing Holloway’s

claim for retaliatory termination.



                                         –50–
                                  VI. Conclusion

      Holloway cannot meet the McDonnell Douglas burden on his retaliatory

termination claim, and Holloway’s discriminatory failure to hire claim likewise fails

for the above reasons. We therefore overrule Holloway’s issue and affirm the trial

court’s order granting Parkland’s plea to the jurisdiction and motions for summary

judgment.




                                           /Lana Myers//
201114f.p05                                LANA MYERS
                                           JUSTICE




                                       –51–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                  JUDGMENT

MARK HOLLOWAY, Appellant                      On Appeal from the 44th Judicial
                                              District Court, Dallas County, Texas
No. 05-20-01114-CV          V.                Trial Court Cause No. DC-14-00792.
                                              Opinion delivered by Justice Myers.
DALLAS COUNTY HOSPITAL                        Justice Nowell participating.
DISTRICT D/B/A PARKLAND
HEALTH AND HOSPITAL
SYSTEM, Appellee

      In accordance with this Court’s opinion of this date, the judgment of the trial

court is AFFIRMED.        It is ORDERED that appellee DALLAS COUNTY

HOSPITAL DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL

SYSTEM recover its costs of this appeal from appellant MARK HOLLOWAY.

Judgment entered this 23rd day of December, 2022.




                                       –52–