McDonnell Douglas burden-shifting framework in Texas

2026See Clark, 544 S.W.3d at 782 (“Because smoking guns are hard to come by, the three-part McDonnell-Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence.”) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973)).

2025“Before a case is tried on the merits, and in the absence of direct evidence of discrimination, we use the McDonnell Douglas burden-shifting framework to evaluate whether a plaintiff has created a fact issue.” Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973)). -4- 04-24-00684-CV Under that framework, (1) the plaintiff must create a presumption of illegal discrimination by establishing a prima facie case; (2) the defendant must then rebut that presumption by establishing a legitimate, nondiscriminatory reason for the employment action; and (3) the plaintiff must then o

2026See Clark, 544 S.W.3d at 782 (“Because smoking guns are hard to come by, the three-part McDonnell-Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence.”) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973)).

2024See Clark, 544 S.W.3d at 782 (“Because smoking guns are hard to come by, the three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence.”); Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015) (stating that a plaintiff is not required to prove her claim through only direct evidence).

2026See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 , 739 (Tex. 2003) (“In discrimination cases that have not been fully tried on the merits, we apply the burden-shifting analysis established by the United States Supreme Court.” (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–03 (1973))).

2024Wal-Mart Stores, Inc. v. Canchola, 7 121 S.W.3d 735, 739 (Tex. 2003); McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973). 4 Under that framework, (1) the plaintiff must create a presumption of illegal discrimination by establishing a prima facie case; (2) the defendant must then rebut that presumption by establishing a legitimate, nondiscriminatory reason for the employment action; and (3) the plaintiff must then overcome the rebuttal evidence by establishing that the defendant’s stated reason is a mere pretext.

2014In the absence of direct evidence of retaliation, the employee must make out a prima facie case of retaliation under the McDonnell Douglas burden-shifting analysis. 4 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Crutcher, 410 S.W.3d at 493 .

2014In the absence of direct evidence of retaliation, the employee must make out a prima facie case of retaliation under the McDonnell Douglas burden-shifting analysis. 4 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Crutcher, 410 S.W.3d at 493 .

2009See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).           Ptomey’s prima facie retaliation case requires proof that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.

2009See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996).

2024Prima facie case of discrimination under TCHRA Violation of the TCHRA can be established with direct evidence of what the defendant did and said, Garcia, 372 S.W.3d at 634 , or with circumstantial evidence under the three-part McDonnell Douglas burden-shifting framework, Alamo Heights, 544 S.W.3d at 782 ; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) (addressing allocation of burdens and order of presentation of proof in Title VII case alleging discriminatory treatment).

2024See Alamo Heights, 544 S.W.3d at 764 (stating “when jurisdictional evidence negates the prima facie case or . . . rebuts the presumption it affords, some evidence raising a fact issue on retaliatory intent is required to survive a jurisdictional plea”) (citing Garcia, 372 S.W.3d at 642 (concluding that school district’s evidence that former employee was replaced by someone three years older negated one of essential elements of prima facie case and, thus, triggered employee’s duty to raise fact question on issue of discriminatory intent)).4 When a plaintiff proceeds along the McDonnell-Douglas

2026Unlike for disability-discrimination claims, “the McDonnell Douglas burden-shifting test does not apply to a claim that the employer has failed to make a reasonable accommodation.” Davis v. City of Grapevine, 188 S.W.3d 748, 759 (Tex. App.—Fort Worth 2006, pet. denied), abrogated on other grounds by Lujan v. Navistar, Inc., 555 S.W.3d 79 (Tex. 2018). 3.

2018Donaldson, 495 S.W.3d at 439 ; Davis v. City of Grapevine, 188 S.W.3d 748, 759 (Tex. App.—Fort Worth, 2006, pet. denied).

2011McDonnell Douglas, 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum, 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P., 214 S.W.3d 672, 676 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex.App.-Fort Worth 2006, no pet.) (holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2011McDonnell Douglas , 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum , 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P. , 214 S.W.3d 672, 676 (Tex.App.--Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill , 189 S.W.3d 369, 377 (Tex.App.--Fort Worth 2006, no pet.)(holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2018See Jespersen, 390 S.W.3d at 654 . –6– The City did not address Powell’s, Oglesby’s, and Verduzco’s affidavits in its opening brief.3 In a reply brief, the City responds only to the allegations in the Powell and Oglesby affidavits about the August 2014 staff meeting.

2016Where, as here, there is no direct evidence of retaliation, the employee must make out a prima facie case under the McDonnell Douglas burden-shifting analysis 8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973); Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 654 (Tex. App.—Dallas 2012, no pet.).

2026Horelica v. Fiserv Solutions, Inc., 123 S.W.3d 492, 495 (Tex. App.—San Antonio 2003, no pet.) (citing Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir. 2001); Sibley v. Kaiser Foundation Health Plan 10 of Texas, 998 S.W.2d 399, 402 (Tex. App.—Texarkana 1999, no pet.)).

2003Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir.2001); see Sibley v. Kaiser Foundation Health Plan of Texas, 998 S.W.2d 399, 402 (Tex.App.-Texarkana 1999, no pet.) To make a prima facie showing of retaliation under the FMLA, a plaintiff must show: (1) she was protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because she took FMLA leave.

2026Horelica v. Fiserv Solutions, Inc., 123 S.W.3d 492, 495 (Tex. App.—San Antonio 2003, no pet.) (citing Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir. 2001); Sibley v. Kaiser Foundation Health Plan 10 of Texas, 998 S.W.2d 399, 402 (Tex. App.—Texarkana 1999, no pet.)).

2003Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir.2001); see Sibley v. Kaiser Foundation Health Plan of Texas, 998 S.W.2d 399, 402 (Tex.App.-Texarkana 1999, no pet.) To make a prima facie showing of retaliation under the FMLA, a plaintiff must show: (1) she was protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because she took FMLA leave.

2025The Supreme Court of Texas has concluded that “[e]mployees are similarly situated if their circumstances are comparable in all material respects.” Ysleta ISD v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). 7 Chavez contends that he produced direct evidence of sex discrimination, thus dispensing with the need for this court to perform a McDonnell Douglas burden-shifting analysis.

2025Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). 15 “Before a case [has been] tried on the merits, and in the absence of direct evidence of discrimination, we use the McDonnell Douglas burden-shifting framework to evaluate whether a plaintiff has created a fact issue on h[is] statutory claim.” Tex. Tech Univ.

2011McDonnell Douglas, 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum, 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P., 214 S.W.3d 672, 676 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex.App.-Fort Worth 2006, no pet.) (holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2011McDonnell Douglas , 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum , 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P. , 214 S.W.3d 672, 676 (Tex.App.--Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill , 189 S.W.3d 369, 377 (Tex.App.--Fort Worth 2006, no pet.)(holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2010See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973); see also Mayberry v. Texas Dep't of Agric. , 948 S.W.2d 312 , 315 n.2 (Tex. App.--Austin 1997, writ denied) ("We may look to federal civil rights law in interpreting cases brought under the [TCHRA].").

2010See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); see also Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312 , 315 n.2 (Tex. App.—Austin 1997, writ denied) (“We may look to federal civil rights law in interpreting cases brought under the [TCHRA].”).

2011McDonnell Douglas, 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum, 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P., 214 S.W.3d 672, 676 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex.App.-Fort Worth 2006, no pet.) (holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2011McDonnell Douglas , 411 U.S. at 802 , 93 S.Ct. at 1824 ; Quantum , 47 S.W.3d at 477 ; Dias v. Goodman Manufacturing Company, L.P. , 214 S.W.3d 672, 676 (Tex.App.--Houston [14th Dist.] 2007, pet. denied); Herbert v. City of Forest Hill , 189 S.W.3d 369, 377 (Tex.App.--Fort Worth 2006, no pet.)(holding that the McDonnell Douglas burden-shifting framework applies to retaliation claims in the same manner as to discrimination claims).

2014See Davis v. City of Grapevine, 188 S.W.3d 748, 758-59 (Tex.App.-Fort Worth 2006, pet. denied) (discussing Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283-84 (7th Cir.1996) (“If it is true that [the employer] should have reasonably accommodated [the employee’s] disability and did not, [the employer] has discriminated against him.

2006Bultemeyer , 100 F.3d at 1283-84 .

2024“In the absence of direct evidence of discrimination, the employee must make a prima facie case of discrimination under the McDonnell-Douglas burden-shifting analysis.” Anderson, 458 S.W.3d at 643 .

2021Sys., 458 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2015, no pet).

2026Horelica v. Fiserv Solutions, Inc., 123 S.W.3d 492, 495 (Tex. App.—San Antonio 2003, no pet.) (citing Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th Cir. 2001); Sibley v. Kaiser Foundation Health Plan 10 of Texas, 998 S.W.2d 399, 402 (Tex. App.—Texarkana 1999, no pet.)).

2025Direct evidence includes “a statement or written document showing discriminatory motive on its face.” Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990).

2024Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). 3 When direct evidence of discrimination or retaliation exists, the McDonnell Douglas burden- shifting framework is not implicated.

2024See Clark, 544 S.W.3d at 782 (“Because smoking guns are hard to come by, the three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination with circumstantial evidence.”); Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015) (stating that a plaintiff is not required to prove her claim through only direct evidence).

2024See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (explaining that McDonnell-Douglas test is inapplicable when plaintiff presents direct evidence of discrimination); Clark, 544 S.W.3d at 784 (explaining that burden-shifting framework is “a mechanism for proving discriminatory intent absent direct evidence”).

2023See Celestine v. Petroleos de Venezuella SA, 266 F.3d 343 , 355–56 (5th Cir. 2001), abrogated on other grounds by Nat’l R.R.

2023Hagood v. Cnty. of El Paso, 408 S.W.3d 515, 523 (Tex. App.—El Paso 2013, no pet.).

2022Recognizing that an employer’s “motives are often more covert than overt, making direct evidence of forbidden animus hard to come by,” the United States Supreme Court created the McDonnell Douglas burden-shifting framework—which the Texas Supreme Court has since adopted for its analysis of TCHRA claims. 3 Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017) (quoting Mission Consol., 372 S.W.3d at 634 ); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also City of 3 “Because one of the purposes of the TCHRA is to ‘provide for the execution of the policies of Title VII o

2021Lewis v. Forest Pharm., Inc., 217 F.Supp. 2d 638, 653 (D.