burden-shifting analysis in Texas

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))).

2026“But when a discrimination case has been fully tried on its merits, as in this case, a reviewing court does not engage in a burden-shifting analysis.” Canchola, 121 S.W.3d at 739.

2026“We follow the burden-shifting framework the United States Supreme Court established in McDonnell Douglas Corp. v. Green, [ 411 U.S. 792 (1973)].” Tex. Tech.

2026If an employee relies on circumstantial evidence, as is the case here, we follow the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2024CODE ANN. §§ 21.051(1); 21.002(8)(D) (defining “[e]mployer” as including a “municipality”).7 When a plaintiff’s employment discrimination lawsuit has not been fully tried on the merits, we evaluate her employment discrimination claims using the three-step burden-shifting analysis developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972), and refined in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); see Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).

2015“Reeves considered the plaintiff’s burden of production within the context of the burden shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S. Ct. 1817 , 36 L.Ed.2d 668 (1973).” Id. at 575 (citing Reeves, 530 U.S. at 142-47 ).

2024But “[b]ecause smoking guns are hard to come by, the three-part McDonnell Douglas burden-shifting framework enables an employee to establish discrimination” or retaliation “with circumstantial evidence.” See Alamo Heights ISD, 544 S.W.3d at 782 & n.84 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802–05 (1973)). 7 Under the burden-shifting framework, “[i]f the employee can establish a prima facie case of discrimination, a rebuttable presumption of discrimination arises, which can alone sustain a discrimination claim.” Id. at 782.

2022When a plaintiff relies on circumstantial evidence to establish a discrimination claim, we follow the burden-shifting framework the United States Supreme Court established in McDonnell Douglas Corp. Id. at 305 (citing Alamo Heights Indep.

2007Stanley Stores Inc. v. Chavana, 909 S.W.2d 554, 559 (Tex.App.-Corpus Christi 1995, writ denied). 2 Discrimination can by proven by direct or circumstantial evi- *650 denee.

2006Stanley Stores Inc. v. Chavana , 909 S.W.2d 554, 559 (Tex. App.-Corpus Christi 1995, writ denied). (2) Discrimination can by proven by direct or circumstantial evidence.

2023Under the burden-shifting framework of McDonnell Douglas, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

2021This burden-shifting framework was propounded in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and was later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

2025“The mechanics of the prima facie case—and its significance in discrimination cases—are products of caselaw, specifically the burden-shifting framework created by the U.S. Supreme Court in McDonnell Douglas and consistently applied to TCHRA cases by this Court.” Garcia, 372 S.W.3d at 638 .

2021See Garcia, 372 S.W.3d at 634 . –19– When, as in this case, a plaintiff relies upon circumstantial evidence, we follow the three-part burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2020“Thus, this burden- shifting framework, based on the presumption that the nonsettling defendant is entitled to a settlement credit after it introduces evidence of the plaintiff’s settlement, is appropriate because the plaintiff is ‘in the best position’ to demonstrate why rendering judgment based on the jury’s damages award would not amount to the plaintiff’s double recovery.” Id.

2020“Thus, this burden- shifting framework, based on the presumption that the nonsettling defendant is entitled to a settlement credit after it introduces evidence of the plaintiff’s settlement, is appropriate because the plaintiff is ‘in the best position’ to demonstrate why rendering judgment based on the jury’s damages award would not amount to the plaintiff’s double recovery.” Id.

2010See Graves v. Komet, 982 S.W.2d 551, 554 (Tex. App.—San Antonio 1998, no pet.) (citing Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995)).

2006See Graves v. Komet, 982 S.W.2d 551, 554 (Tex.App.-San Antonio 1998, no pet.).

2004See id.

2004See id.

1999See id. at 639 n. 6.

1999See id. at 639 n.6.

2025See id. at 476 . 10 Domingo concedes his case is based on circumstantial evidence, and we thus follow the burden shifting framework the United States Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2010Thus, his case falls into the pretext category and we apply the burden-shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 36 S.Ct. 668 , 93 L.Ed.2d 1817 (1973).7 See Toennies, 47 S.W.3d at 477 .

2020See, e.g., Elite Auto Body, 520 S.W.3d at 201 (“The primary means by which the TCPA advances its purpose is . . . an expedited dismissal mechanism tied to a burden-shifting analysis through which a litigant may require, by motion, a threshold testing of the merits of legal actions that are deemed to implicate the expressive interests protected by the statute.”) (emphasis added, internal quotation omitted).

2019“The primary means by which the TCPA advances its purpose is . . . an expedited dismissal mechanism tied to a burden-shifting analysis ‘through which a litigant may require, by motion, a threshold testing of the merits of legal [actions] that are deemed to implicate the express interests protected by the statute.’” Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 201 (Tex. App.—Austin 2017, pet. dism’d) 20 (quoting Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring)).

2018See id.

2015The Supreme Court of Texas established this burden-shifting framework in part because the plaintiff, as one of the settling parties, is “in a better position than nonsettling defendants to ensure that the settlement awards are properly allocated.” Utts v. Short, 81 S.W.3d 822, 828 (Tex. 2002) (citing Ellender, 968 S.W. 2d at 928 ).5 “[T]he plaintiff cannot rely on evidence that is extrinsic to the settlement agreement” in meeting his burden to prove allocation of settlement proceeds.

2008Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)).

2008Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506-07 (1993); Texas Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973)).

2024See Flores, 612 S.W.3d at 305; Willrich, 28 S.W.3d at 24 (recognizing that a reduction in force is a legitimate nondiscriminatory reason for termination); Ptomey v. Tex. Tech Univ., 277 S.W.3d 487 , 493–94 (Tex. App.—Amarillo 2009, pet. denied) (concluding that an affidavit stating the plaintiff was terminated as part of a workforce reduction due to budgetary constraints was sufficient to meet the burden shifting standard at summary judgment); McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 556 (Tex. App.—Dallas 2006, no pet.) (recognizing reduction in force as a legitimate, nondiscriminatory

2019Co., L.P., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also McCoy, 183 S.W.3d at 555 (retaliation uses the same burden shifting analysis as race discrimination claims).

2022Once met, the burden shifts to “the party seeking arbitration [who] must come forward with contrary evidence.” Id.; see also In re Poly-Am., 262 S.W.3d at 348 (“The burden of proving such a ground—such as fraud, unconscionability or voidness under public policy—falls on the party opposing the contract.”).

2015Once met, the burden shifts to ″the party seeking arbitration [who] must [**28] come forward with contrary evidence.″ Id.; see also Poly-America, 262 S.W.3d at 348 (″The burden of proving such a ground--such as fraud, unconscionability or voidness under public policy--falls on the party opposing the contract.″); FirstMerit Bank, 52 S.W.3d at 756 (″Again, since the law favors arbitration, the burden of proving a defense to arbitration is on the party opposing arbitration.″).

2015See e.g., Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App. – Dallas 2004, no pet.).

2014Parker, 365 S.W.3d at 66 ; see, e.g., Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.–Dallas 2004, no pet.).

2023In re J.G.S., 574 S.W.3d 101 , 118–19 (Tex. App.— Houston [1st Dist.] 2019, pet. denied).

2022In re J.G.S., 574 S.W.3d 101, 118-19 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).

2016Nash did not deny that the reason for termination was a safety violation, but argued that he did not take the photographs while the truck was moving. 14 retaliation claim.” Id. (citing Jones, 15 S.W.3d at 210 ).

2016Nash did not deny that the reason for termination was a safety violation, but argued that he did not take the photographs while the truck was moving. 14 retaliation claim.” Id. (citing Jones, 15 S.W.3d at 210 ).

2019“The primary means by which the TCPA advances its purpose is . . . an expedited dismissal mechanism tied to a burden-shifting analysis ‘through which a litigant may require, by motion, a threshold testing of the merits of legal [actions] that are deemed to implicate the express interests protected by the statute.’” Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 201 (Tex. App.—Austin 2017, pet. dism’d) 20 (quoting Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring)).

2018"The primary means by which the TCPA advances its purpose is ... an expedited dismissal mechanism tied to a burden-shifting analysis 'through which a litigant may require, by motion, a threshold testing of the merits of legal [actions] that are deemed to implicate the express interests protected by the statute.' " Elite Auto Body LLC v. Autocraft Bodywerks, Inc. , 520 S.W.3d 191 , 201 (Tex. App.-Austin 2017, pet. dism'd) (quoting Serafine v. Blunt , 466 S.W.3d 352 , 369 (Tex. App.-Austin 2015, no pet.) (Pemberton, J., concurring) ).

2025When, as here, the plaintiff has no direct evidence of discrimination, see Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.) (“Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002))), we use a burden-shifting framework “to evaluate whether a plaintiff has created a fact issue on her statutory claim.” Flores, 709 S.W.3d at 505.

2021“The three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 3 “Direct evidence is evidence that, if believed, ‘proves the fact of discriminatory animus without inference or presumption.’” Anderson, 458 S.W.3d at 643 (quoting Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.).

2023See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (explaining the burden-shifting analysis of a motion for traditional summary judgment); see also Wal-Mart Stores, Inc., 52 S.W.3d at 726 .

2010See id. 3 However, in employment-discrimination cases that have not been fully tried on the merits, we also apply the burden-shifting analysis established by the United States Supreme Court.

2023See In re Lipsky, 460 S.W.3d at 586–87.

2019In re Lipsky, 460 S.W.3d 579, 586-87 (Tex. 2015).

2025Although the pleadings themselves may not be dispositive of jurisdiction when the defendant contests those pleadings with evidence, the “additional evidence merely supports or undermines the allegations in the pleadings.” Id. at 658 n.4.

2015During that conversation, according to Wade, Dickens assured her that high levels of moisture present in the concrete slab at the project site—a potential challenge to the functionality of flooring adhesives—“would not be a problem.” 8 Id. at 785 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). 9 Id. 10 Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 11 Id. (citing Burger King, 471 U.S. at 473 ; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002)). 12 See

2022Corp.-Ala. v. Randolph, 6 531 U.S. 79, 92 (2000) created a burden-shifting test in which the party seeking to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive bears the burden of showing the likelihood of incurring such costs.

2015Sufficiency of the Evidence HN20 Green Tree creates a burden-shifting test in which the ″party seek[ing] to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive . . . bears the burden of showing the likelihood of incurring such costs.″ Green Tree, 531 U.S. at 92 .

2018See Alamo Heights, 544 S.W.3d at 781–82 (explaining that McDonnell Douglas burden-shifting analysis applies to discrimination and retaliation claims); Donaldson v. Texas Dep’t of Aging & Disability Servs., 495 S.W.3d 421 , 437–39 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (applying burden-shifting analysis to discrimination claim); Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61 , 68–69 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (same as to retaliation claim); cf. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam) (explaining that when case ha

2014Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

2005Although Russo v. Smith Int = l, Inc. used a burden-shifting analysis in a summary judgment context, the motion granted in Russo was a hybrid traditional/no-evidence motion for summary judgment that did not clearly distinguish between the evidence, arguments and authorities supporting each. 93 S.W.3d 428 , 433 n.4 (Tex. App. C Houston [14th Dist.] 2002, pet. denied).

2004In analyzing cases brought under the TCHRA, we follow the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). 4 Russo, 93 S.W.3d at 434 .