TEXAS DEPARTMENT OF PUBLIC SAFETY v. TURNER (2025)

OPINION

In this interlocutory appeal from the denial of its combined plea to the jurisdiction and summary-judgment motion, appellant Texas Department of Public Safety (“DPS”) asserts that the trial court trial court lacks subject-matter jurisdiction over Kellye Turner's discrimination (failure to promote) and retaliation claims because they fall outside the Labor Code's limited waiver of sovereign immunity.

We conclude that Turner did not raise a genuine issue of material fact on her claims, and that the trial court erred by denying DPS's plea to the jurisdiction and motion for summary judgment. Because Turner has not established a waiver of DPS's sovereign immunity, we reverse and render judgment dismissing Turner's claims.

Background

Turner, a Black female, worked twenty-six years for DPS. She served four years as a Sergeant, ten years as a Lieutenant, two years as a Captain in the Regulatory Services Division (“RSD”), and six years as a Captain in the Criminal Investigation Division (“CID”). Throughout her DPS career, Turner maintained an excellent record with no disciplinary history.

In August 2020, DPS announced an opening for Major in its Investigative Support Section (“ISS”). The responsibilities for this position included “management of division programs that support investigations, specifically the Technical Unit, CITEC (Computer Information Technology and Electronic Crimes) Unit, the Polygraph Program, and the Asset Forfeiture Program.” Four Captains applied for the position: (1) Turner; (2) Clifford Manning, a white male; (3) Michael Stanford, a white male; and (4) Charles Matthew Hicks, a white male. Thomas Ruocco, CID Chief, was solely responsible for selecting the individual for the position. In September 2020, DPS announced that it had selected Hicks.

Turner filed a discrimination complaint with the Texas Workforce Commission (“TWC”) and the EEOC. She alleged that she was denied promotion to ISS Major despite being the most qualified applicant.¹ She asserted that “interviews were conducted instead of making the decision solely on applicants’ resumés as is the normal procedure.” She alleged that DPS conducted interviews with the candidates “because it could not come up with any legitimate reason to not select Capt. Turner for the position based on the resumes.” According to her complaint, this “became clear when [ ]DPS told Capt. Turner it selected Hicks for the promotion instead of her because he ‘had a vision.’ ” She alleged that DPS denied her the ISS Major promotion “because of her sex and race and in retaliation for past engagement in protected activity.”²

DPS's Office of Inspector General (“OIG”) investigated Turner's denial-of-promotion complaint and found her charges unsubstantiated. As part of its investigation, the OIG reviewed DPS demographics and interviewed Turner, Ruocco, and one of the other candidates who was not selected, Stanford. OIG prepared a report detailing its investigation, which concluded as follows:

As an outcome of the administrative investigation the evidence was insufficient to prove by preponderance Captain Kellye Turner was subject to discriminatory business decisions based upon her gender or race. Chief Ruocco articulated verifiable, fact-based logic while determining who to appoint to the Headquarters CID major vacancies which Captain Turner believed she was entitled to due to her seniority.

In addition to there being insufficient proof of racial or gender-based discrimination during the promotional processes in question, the evidence also failed to prove Captain Turner was a victim of retaliatory conduct in response to her previous participation in protected activity by filing two (2) EEO complaints upon Major Brown. Based upon the evidence the decision to promote Major[ ] ․ Hicks appear[s] to be in the best interest of the Department and Division, and not based upon race or gender. Major Sharon Jones, also a black female, was promoted in April 2020, in one of the processes Captain Turner claims to have been subject to racial and gender-based discrimination. As for the promotion and appointment of Major Hicks in September 2020, Captain Turner may have been the senior candidate, but Major Hicks’[s] training, prior work experience, and expertise in specific technology fields appeared to place him at an advantage over the other three (3) candidates. Likewise, no evidence was uncovered to demonstrate the Texas Department of Public Safety has a pattern and practice of gender and racial discrimination.

Turner received a right to sue notice and filed the instant lawsuit. In her live pleading, she asserted two causes of action: (1) she was denied promotion to ISS Major because of her race and sex in violation of the Texas Labor Code; and (2) she was denied promotion to ISS Major in retaliation for having filed the 2016 and 2019 complaints against Brown.

DPS filed a combined plea to the jurisdiction and summary-judgment motion (the “Motion”). DPS acknowledged that Turner established a prima facie case of discrimination in the failure-to-promote context. However, DPS asserted that it had a legitimate, non-discriminatory reason for selecting Hicks over Turner: that Hicks was the best candidate for the job based on his particular experience. DPS argued that the burden shifted to Turner to show that she was clearly better qualified for the position or that DPS's proffered reason for selecting Hicks was false or unworthy of credence. DPS asserted that Turner could not show either of these elements. As to Turner's retaliation claim, DPS asserted that Turner could not establish either a prima facie case of retaliation or that, but for her complaints against Brown, she would have been chosen for the ISS Major promotion. To its Motion, DPS attached, inter alia, copies of Turner's discrimination complaint, the DPS OIG investigation, and excerpts from Turner's and Ruocco's depositions.

In her response, Turner asserted she was shocked that she did not receive the promotion. She believed she was more highly qualified than Hicks, having twenty-six years of DPS experience compared to Hicks's twenty-three years. She also had twenty-two years of supervisory experience, compared with Hicks's eight years of supervisory experience. According to Turner, DPS always prioritized seniority and tenure in supervisory positions when promoting individuals, and it typically relied on written materials submitted by applicants to make its selection. However, during this cycle, Ruocco, the decision-maker, “strayed from the norm” and conducted informal interviews with each applicant after he reviewed their resumés, interviews which Ruocco did not record.

Turner stated that Ruocco informed her that his selection of Hicks was based on Hicks's “vision” as it related to the specific position, rather than any seniority, experience, or tenure. But, Turner asserted, Ruocco later changed his rationale for choosing Hicks over her, suggesting that he chose Hicks based on Hicks's specialized experience and knowledge. These facts, according to Turner, demonstrated that DPS's failure to promote her resulted from discriminatory, rather than legitimate, reasons. Further, that Ruocco was aware of Turner's previous race and sex discrimination complaints against Brown showed that DPS's failure to promote Turner was retaliatory. To her response, Turner attached her deposition, her 2016 and 2019 discrimination complaints, DPS's reports regarding these complaints, Ruocco's deposition, and a transcript of Ruocco's EEO interview.

The trial court denied DPS's Motion. DPS appeals.³

Analysis

A. Governing Law and Standard of Review

Governmental agencies, including DPS, are immune from suit unless the State consents. See Tex. Dep't of Pub. Safety v. Sanders, No. 08-25-00021-CV, 2025 WL 2845636, at *2 (Tex. App.—El Paso Oct. 7, 2025, no pet. h.) (mem. op.) (citing Tex. Gov't Code § 411.002(a); Tex. Civ. Prac. & Rem. Code § 101.001(3)(A)); see also Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The Commission on Human Rights Act (“TCHRA”) waives governmental immunity from suit only when the plaintiff states a claim for conduct that violates the statute. Tex. Dep't of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021). The act provides a limited waiver of immunity from suit when a governmental unit has discriminated in any manner against any employee on the basis of age, sex, or other protected classification, or has retaliated against the employee for opposing or complaining of such discrimination. See Tex. Lab. Code §§ 21.002(8)(d) (defining “employer” to include “a county, municipality, state agency, or state instrumentality”), 21.051 (prohibiting discrimination by employer), 21.055 (prohibiting retaliation by employer), 21.254 (allowing civil action); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008).

Governmental agencies may assert immunity from suit in a plea to the jurisdiction or other procedural vehicle, such as a summary-judgment motion. Alamo Heights, 544 S.W.3d at 770. A governmental defendant may challenge whether the plaintiff has alleged facts that demonstrate the court's jurisdiction to hear the case, the existence of those very jurisdictional facts, or both. Id. When, as here, a defendant challenges the existence of jurisdictional facts with supporting evidence, the court must move beyond the pleadings and consider the evidence. Id. When the defendant challenges the plaintiff's factual allegations with supporting evidence necessary to the consideration of the jurisdictional issue, to avoid dismissal, the plaintiff must raise a genuine issue of material fact to overcome the challenge to the trial court's subject-matter jurisdiction. Id. In determining whether a material fact issue exists, we take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id. However, we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Id.

We review a trial court's ruling on a plea to the jurisdiction and motion for summary judgment de novo. Metro. Transit Auth. of Harris Cnty. v. Douglas, 651 S.W.3d 122, 127 (Tex. App.—Houston [14th Dist.] 2021, pet. denied). Because the Texas Legislature patterned the TCHRA after federal law, see Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 474 (Tex. 2001), we look to state cases and relevant federal law when analyzing a claim brought under the act. Mission Consol., 372 S.W.3d at 633-34; Hudgens v. Univ. of Tex. MD Anderson Cancer Ctr., 615 S.W.3d 634, 640 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

A plaintiff can establish discrimination under the TCHRA either by direct evidence or by circumstantial evidence that permits an inference of discrimination. See Garcia, 372 S.W.3d at 634. The second alternative is involved here. When the claimant's case is based on circumstantial evidence, we apply the familiar McDonnell Douglas burden-shifting framework. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). Initially, the plaintiff-employee must meet the minimal burden of establishing a prima facie case, which entitles the employee to a presumption of discrimination. Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)). The initial presumption of discrimination is “merely an evidence-producing mechanism that can aid the plaintiff in [her] ultimate task of proving illegal discrimination by a preponderance of the evidence.” Id.; see also Hudgens, 615 S.W.3d at 641.

If the employee meets her prima facie burden, the defendant-employer must produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (per curiam); Hudgens, 615 S.W.3d at 641; Okpere v. Nat'l Oilwell Varco, L.P., 524 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). If the employer provides a non-discriminatory explanation, the presumption arising from the prima facie case vanishes and the employee cannot prove a statutory violation without producing evidence that the employer's stated reason is false and a pretext for intentional discrimination. See Alamo Heights, 544 S.W.3d at 782; Toennies, 47 S.W.3d at 477; Willrich, 28 S.W.3d at 24.

Although the burden of production shifts as described, the ultimate burden of persuasion always remains with the employee. Clark, 544 S.W.3d at 782 (citing Burdine, 450 U.S. at 253). This framework applies to jurisdictional issues such as those raised in this appeal, both in the discrimination and the retaliation contexts. Douglas, 651 S.W.3d at 127.

B. Failure-to-Promote Discrimination Claim

In its first issue, DPS contends that the trial court erred by denying its Motion because DPS selected a candidate with more relevant qualifications pertinent to the job, and Turner did not present evidence that its reason was pretext for race or sex discrimination such as by demonstrating that no reasonable employer could have chosen Hicks over her.

1. Turner established a prima facie case.

Under the TCHRA, an employer commits an unlawful employment practice if, because of an employee's race or sex, the employer “fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” Tex. Lab. Code § 21.051(1).

To establish a prima facie case of discrimination in the failure-to-promote context, the employee must show that: (1) she was a member of a protected class; (2) she sought and was qualified for an available position; (3) despite her qualifications, she was not selected; and (4) the employer selected someone outside of the employee's protected class. Douglas, 651 S.W.3d at 133; Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 139 (Tex. App.—Fort Worth 2000, pet. denied) (citing Scales v. Slater, 181 F.3d 703, 709 (5th Cir. 1999)). There is no dispute that Taylor, a member of a protected class, established a prima facie case here. Hicks, a white male, was selected for the ISS Major position over her, and there is no dispute that she was qualified.

2. DPS articulated a non-discriminatory explanation.

Once Turner established her prima facie case, the burden shifted to DPS to articulate a legitimate non-discriminatory reason for its challenged action. See Douglas, 651 S.W.3d at 133; Elgaghil, 45 S.W.3d at 139. DPS's burden at this stage is one of production, not persuasion, and involves no credibility assessment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). DPS asserted that it chose Hicks over Turner because he was the best candidate for the job. DPS supported its assertion with evidence. For example, Ruocco stated that Hicks had more relevant experience and was selected for the position because he had a “vision” for the department, two factors Ruocco explained that Turner lacked. This showing was sufficient to meet DPS's burden. See, e.g., Douglas, 651 S.W.3d at 133; Robertson-King v. La. Workforce Comm'n, Ofc. of Workforce Dev., 904 F.3d 377, 381 (5th Cir. 2018) (explaining that commission's evidence that it promoted employee because of credentials the selected employee had, and that plaintiff did not have, satisfied its burden to provide legitimate non-discriminatory reason for its decision); Manning v. Chevron Chem. Co., 332 F.3d 874, 881-82 (5th Cir. 2003) (stating that employer's assertion it promoted the “best qualified” candidates constituted a legitimate, non-discriminatory justification for not promoting plaintiff). The burden therefore shifted back to Turner to present evidence that the stated reason was a pretext for discrimination. See Douglas, 651 S.W.3d at 133; Navy v. Coll. of the Mainland, 407 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

3. Turner failed to raise a genuine issue of material fact that DPS's reason for promoting Hicks was pretext for race or sex discrimination.

A failure-to-promote plaintiff can create a material fact question on the issue of pretext by showing that the employer's proffered explanation for its decision was false or unworthy of credence or that she was clearly better qualified than the selected employee. Tex. Health & Human Servs. v. Sepulveda, 668 S.W.3d 856, 868 (Tex. App.—El Paso 2023, no pet.); Sw. Bell Tel., L.P. v. Edwards, No. 05-09-00606-CV, 2011 WL 3672288, at *3 (Tex. App.—Dallas Aug. 23, 2011, no pet.) (mem. op.); see also Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007). An employer's explanation is false or unworthy of credence if it is not the real reason for the employment action. Burrell, 482 F.3d at 412. However, a plaintiff's subjective belief that the reason given by her employer for its employment decision is false will not suffice to overcome summary judgment. E.g., Hudgens, 615 S.W.3d at 647 & n.11.

In the trial court, Turner advanced three arguments that DPS's reason for promoting Hicks over her was pretext for race or sex discrimination. First, she asserted that Ruocco's “shifting” rationale for promoting Hicks is evidence of pretext. Second, she contended she was clearly better qualified than Hicks. And third, Turner argued that DPS's failure to follow its usual policies and procedures in selecting whom to promote shows that its rationale regarding Hicks “is unworthy of credence.” Turner proffers these arguments here in support of the order, and we address each of them.

a. Ruocco's rationale for selecting Hicks has remained consistent.

In her response to DPS's Motion, Turner first argued that Ruocco's “shifting” explanation for why he promoted Hicks over her constituted evidence of pretext. Ruocco told Turner that he chose Hicks because of his “vision,” but Turner asserts that Ruocco's later statements regarding Hicks's promotion due to experience and specialized skills was inconsistent with this stated reason.

An employer's inconsistent or conflicting explanations for employment decisions may provide evidence of pretext. See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 235-36 (5th Cir. 2015) (noting that discrepancies or conflicts in explanations behind termination decision “cast doubt” on them); Nasti v. CIBA Specialty Chem. Corp., 492 F.3d 589, 594 (5th Cir. 2007) (“A court may infer pretext where a defendant has provided inconsistent or conflicting explanations for its conduct.”); Burrell, 482 F.3d at 415 (noting that unexplained inconsistency for hiring decisions “was further evidence from which a jury could infer that Dr. Pepper's proffered rationale is pretextual”).

But here, Ruocco's explanation for promoting Hicks over Turner was not inconsistent or conflicting, even viewing the evidence in the light most favorable to Turner. Ruocco explained to Turner that he chose Hicks because Hicks had a “vision” for “where he wanted to take a tech program,” which aligned with where Ruocco though it needed to go. During his December 2020 OIG interview following Turner's discrimination complaint, Ruocco stated that he chose Hicks based on Hicks's experience that was directly related to the position, such as his knowledge and experience with polygraphs and other technical programs.

Later, during his March 2023 deposition in this lawsuit, Ruocco expounded on this theme:

I said [to the position candidates], “Okay. If you were there, what would you do?” And I let them answer that.

And like Matt [Hicks] went on to explain where he wanted to take it, what kind of investigations he'd like to see cyber do, what kind of equipment he'd like to have, different types of things he wanted to have. No one else spoke to that. And so his vision of where he wanted the program to go was really kind of key there for me․

The fact that he brought that vision of where he wanted to take this was — was impressive to me.

In contrast to Hicks's responses to Ruocco's questions, Ruocco explained that Turner:

wasn't able to speak really to any technical experience in the background, wasn't really sure with polygraph, you know, how it operated. That was mainly it. I mean, she — you know, I asked — I remember — I kind of said, hey, what would you do down at — what would you do and really didn't have much — I mean, she just didn't have that — she didn't have the background. And when a candidate doesn't have a background in something, it's very difficult to say what you would do with it, and I didn't hold that against her. I just — it was — when you had somebody who had everything that Hicks brought to the table, it was going to be tough to overcome.

Ruocco's testimony regarding his reasons for choosing Hicks over Turner is entirely consistent with and, in fact, intertwined with, his initial statement to Turner. According to Ruocco, Hicks had specific plans for the department, including the type of investigations he wanted to pursue and the equipment necessary to do so. No other candidate, including Turner, responded in a similar way with specifics about the department's future. And Hicks's plan for the program was based on his relevant experience in oversight of several of DPS's technical programs—experience Turner lacked.

The record reflects that Ruocco's explanations for promoting Hicks were not “shifting” or inconsistent. We conclude that Turner did not create a fact issue concerning pretext on this basis. Cf., e.g., Filardo v. Baylor Scott & White Health, No. 05-21-01066-CV, 2023 WL 5317870, at *9 (Tex. App.—Dallas Aug. 18, 2023, no pet.) (mem. op.) (noting that, although apparent inconsistencies offered by employer “may be useful evidence on pretext,” employer's “explanation appears to have remained consistent over time”); Royall v. Enter. Prods. Co., No. 21-40119, 2022 WL 263404, at *3 (5th Cir. 2022) (per curiam) (“Enterprise's explanation for Royall's termination has remained the same throughout. Enterprise has consistently attributed Royall's discharge to his sustained unsatisfactory job performance.”); Nasti, 492 F.3d at 594 (rejecting pretext argument despite alleged inconsistencies because employer's reasons for termination were consistent).

b. Turner did not create a fact issue that she was “clearly better qualified” than Hicks.

A failure-to-promote plaintiff may demonstrate evidence of pretext by showing that she was clearly better qualified than the employee who was selected. E.g., Sepulveda, 668 S.W.3d at 868. To show that she was “clearly better qualified” than Hicks and raise a fact question on pretext, Turner must present evidence from which a jury could conclude that “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th Cir. 2010). Unless the qualifications are “so widely disparate that no reasonable employer would have made the same decision,” any differences in qualifications are generally not probative evidence of discrimination. Id.

Here, when Ruocco chose Hicks over Turner, Turner undisputedly had significantly more supervisory experience and three more years overall tenure with DPS than Hicks. Yet, “an employer may discount both years of service and general experience in favor of specific qualifications.” Martinez v. Tex. Workforce Comm'n—Civil Rights Div., 775 F.3d 685, 688 (5th Cir. 2014). For purposes of showing that one candidate is “clearly better qualified” than another, tenure and seniority alone do not make a candidate the best qualified, especially when the candidate with less tenure has more relevant experience. See id.; see also Price v. Fed Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (“While Price clearly met the qualifications for the Zone Manager position as posted, due to the specific needs of FedEx in combating the problems in Atlanta, Paone's skill set, including his significant military, security, and leadership experience, could have reasonably outweighed Price's better education and longer tenure with the company.”); Nichols v. Lewis Grocer., 138 F.3d 563, 567-69 (5th Cir. 1998) (employee was not clearly more qualified than another in part because employee selected had experience in the available position's department).

Hicks served as CID Captain for four years in areas that were particularly relevant to the ISS Major position: two as Captain over the ISS Polygraph program and the other two as Captain over the ISS TECH/CITECH program. Ruocco stated that he did not consider DPS tenure alone in making his decision: “If someone may have lacked time but they had more experience in a certain area that we needed, that kind of moved them over to a different pile. So [DPS tenure] was the beginning of a process, but it wasn't the whole process.” Ruocco explained that Hicks's directly relevant experience in programs that the ISS Major position would be overseeing elevated him over the candidates with more seniority.⁴ In short, Turner's qualifications are not so “widely disparate” from Hicks's that “no reasonable employer would have made the same decision.” Moss, 610 F.3d at 923.

Turner's evidence does not raise a fact question on pretext on the ground that she was clearly better qualified for the ISS Major position than Hicks. See Martinez, 775 F.3d at 687-90; Price, 283 F.3d at 723; Nichols, 138 F.3d 567-69.

c. The selection process does not raise a fact question.

Finally, Turner contends that Ruocco strayed from his normal procedure by conducting interviews for the ISS Major position. An employer's failure to follow its internal policies and practices can serve as evidence of pretext. Sepulveda, 668 S.W.3d at 872.

According to Turner, DPS ordinarily selects employees based on their resumés and submitted written materials alone. Turner's record citations, however, do not support this assertion. In any event, Ruocco explained that he normally had an “open door” policy where he would have opportunities to talk with candidates about job openings. But because the job opening for the ISS Major position occurred during COVID-19, people were “not around” and were discouraged from coming into the office. But one of the candidates, Stanford, was in the office and came to talk Ruocco in person about the position. Because Ruocco actually spoke to Stanford about the position, he decided to conduct informal interviews by videoconference with the other candidates because they lacked the opportunity to “just walk in.” Although Turner contends these informal interviews were inconsistent with DPS hiring practice, Turner presented no evidence of a materially contrary DPS policy or procedure.⁵ And it is undisputed that Ruocco applied the same process to all four applicants, including Turner.

We conclude that Ruocco's reliance on these informal interviews does not, on this record, constitute evidence of pretext.

In sum, DPS produced evidence of a non-discriminatory selection rationale tied to Hicks's job-specific skills. Turner's evidence does not raise a fact issue that she was clearly better qualified or that DPS's reasons were false or unworthy of credence. Accordingly, we conclude that the trial court erred in denying DPS's Motion on Turner's discrimination claim, and we sustain DPS's first issue.

C. Retaliation Claim

In issue two, DPS contends that Turner failed to establish a prima facie claim for retaliation and, even if she did, she failed to rebut DPS's non-retaliatory reason for not promoting her. A plaintiff, such as Turner, who asserts a retaliation claim based only circumstantial evidence must first demonstrate a prima facie case. See Alamo Heights, 544 S.W.3d at 782-83. To establish a prima facie case, the employee must show: (1) she engaged in a protected activity; (2) she experienced an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. See id. at 782.

The protected activities forming the basis of Turner's retaliation claim are her 2016 and 2019 complaints against Major Brown. But Turner has not established a causal connection between those complaints and Ruocco's decision to promote Hicks over her. Ruocco stated that Brown provided no input on his hiring decision, and although he knew about Turner's complaints, that knowledge did not impact his choice. Turner provides nothing more than speculation that her complaints against Brown had any bearing on Ruocco's decision, and she admittedly did not know whether Brown was involved in the process. Her speculation alone is not sufficient to establish a causal connection. See Smith v. Harris County, No. 01-18-00247-CV, 2019 WL 1716418, at *5 (Tex. App.—Houston [1st Dist.] Apr. 18, 2019, no pet.) (mem. op.) (explaining that employee's “subjective beliefs of retaliation” are conclusions that do not “raise a fact issue precluding summary judgment”); cf. also Hudgens, 615 S.W.3d at 647 (explaining that employee's subjective belief or feeling of age-related animus was insufficient to defeat summary judgment).

Turner also attempts to rely on temporal proximity to establish a causal connection. Close timing between an employee's protected activity and an adverse action can provide a sufficient basis for a court to find a causal connection required to establish a prima facie case of retaliation. Alamo Heights, 544 S.W.3d at 789-90 (noting that several-week gap between protected activity and adverse action would “otherwise raise a fact issue on prima facie causation” but explaining that undisputed evidence showed adverse action was made before employer knew about protected activity).

Here, it is undisputed that Ruocco learned of Turner's complaint, at the latest, on February 28, 2020, when he received a memorandum regarding OIG's investigation into the complaint. The open ISS Major position was announced in August 2020, and DPS announced that Hicks was chosen for this position on September 14. The gap between Ruocco's knowledge of Turner's complaint ⁶ in late February 2020 and his decision to promote Hicks over Turner in early September that same year was a maximum of five months.

A months-long gap in time, as we have here, between an employee's protected activity and an employer's adverse employment action is too long, by itself, to establish the necessary causal connection to support a prima facie retaliation claim. See, e.g., Democratic Schs. Research, Inc. v. Rock, 608 S.W.3d 290, 314 (Tex. App.—Houston [1st Dist.] 2020, no pet.); Smith, 2019 WL 1716418, at 8. Turner's protected activity and the decision to promote Hicks over her for the ISS Major position are simply not temporally close enough to establish the requisite causal connection. See Tex. Dep't of Pub. Safety v. Sanders, No. 08-25-00021-CV, 2025 WL 2845636, at *7 (Tex. App.—El Paso Oct. 7, 2025, no pet.) (mem. op.) (“Temporal proximity between a protected activity and the adverse employment action may also suffice as evidence of a causal connection when they are separated by weeks, as opposed to months or years.” (internal quotation omitted)); Rock, 608 S.W.3d at 314 (four-month lapse between protected activity and adverse employment action not sufficient to raise a fact issue on causation); Finley v. Tex. Plumbing Supply Co., Inc., No. 14-19-00851-CV, 2021 WL 1881273, at *9-10 (Tex. App.—Houston [14th Dist.] May 11, 2021, no pet.) (mem. op.) (six-month gap between protected activity and adverse employment action insufficient to support causal connection); Smith, 2019 WL 1716418, at *13 (“Although there is ‘no hard-and-fast-rule’ that any specified amount of time is too removed to find an inference of causation, courts have routinely held that even a gap of several months between an employee's protected activity and an employer's adverse employment action is too long by itself to establish a prima facie case of a causal connection.”).

Because Turner failed to establish a prima facie case of retaliation, the trial court erred in denying DPS's Motion on this claim. We sustain DPS's second issue.⁷

Conclusion

We have sustained DPS's issues. We reverse the trial court's denial of DPS's Motion and render judgment dismissing Turner's discrimination and retaliation claims.

FOOTNOTES

1.   In April or May 2020, Turner applied for but did not receive a promotion to a separate CID Major position. Another Black female received that promotion, and although Turner referenced the event in her TWC/EEOC complaint, she does not complain of that decision.

2.   Turner's retaliation allegation was based on two prior instances when she engaged in protected activity. In May 2016, Turner filed a complaint against Major Adam Brown for sex and race discrimination. DPS found that Brown engaged in unprofessional but not discriminatory conduct, for which Brown received written discipline and training. Turner filed another sex and race discrimination complaint against Brown in November 2019. After an investigation, DPS dismissed that complaint on May 27, 2020. According to Turner, DPS denied her promotion to the ISS Major position in September 2020 because she filed the 2016 and 2019 complaints.

3.   See Tex. Civ. Prac. & Rem. Code § 51.014(a)(5), (8).

4.   Ruocco also passed over another white male candidate who had more overall seniority than Hicks because he, like Turner, lacked the technical experience that Hicks possessed.

5.   DPS's “Promotion and Selection Policies and Procedures” provides: “Appointment to the positions of Division Director of the [CID], Assistant Division Director of the [CID], and [CID] Majors will be made by the Director or designee.”

6.   Cf. Baldwin v. Holder, Civ. A. No. H-09-842, 2011 WL 2078614, at *8 (S.D. Tex. May 26, 2011) (“Because knowledge by the employer of the protected conduct is also required, the appropriate date to begin calculating temporal proximity in this case is September 2003, when Houston officials, including Haman, became aware of Plaintiff's federal discrimination complaint.”).

7.   Moreover, even if Turner had established a prima facie case of retaliation, her claim fails nonetheless because we have determined that she did not raise a fact issue sufficient to overcome DPS's legitimate reason for promoting Hicks over her. See Rock, 608 S.W.3d at 315 (where there was no evidence that employer's reason for terminating employee was false or pretextual, employee could not establish requisite but-for causal link); Smith, 2019 WL 1716418, at *14 (explaining that temporal proximity alone, particularly where evidence shows legitimate reasons for employer's adverse employment action, is not sufficient proof of but-for causation).

Kevin Jewell, Justice