CROSSOVER: The ‘Pretext’ Playbook: Using the HHSC Retaliation Standard to Attack False Excuses in Custody and Agency Litigation
Memorandum Opinion by Chief Justice Salas Mendoza, 08-25-00095-CV, February 02, 2026.
On appeal from the 205th District Court of El Paso County, Texas.
Synopsis
The Court of Appeals reversed the trial court’s denial of a plea to the jurisdiction in a retaliation suit, holding that the Texas Health and Human Services Commission (HHSC) established legitimate, non-retaliatory reasons for an employee’s termination. Because the plaintiff failed to produce evidence creating a genuine issue of material fact that the agency’s reasons—specifically training delinquency and unauthorized cell phone use—were pretextual, the agency’s sovereign immunity remained intact, requiring dismissal of the suit.
Relevance to Family Law
While Lopez is an employment retaliation case, its rigorous application of the “pretext” standard is a strategic blueprint for family law litigators dealing with state agencies (such as DFPS) or private parties who mask retaliatory conduct behind “neutral” policies. In custody disputes or enforcement actions where a party justifies a denial of access or a change in status based on “non-compliance” with a rule or service plan, Lopez clarifies that a practitioner must provide specific, objective evidence of falsity or disparate treatment to pierce that defense.
Case Summary
Fact Summary
Susana Lopez, a Direct Support Professional III at an HHSC-operated facility, was terminated for two primary reasons: (1) chronic failure to maintain mandatory training compliance, including CPR certification, and (2) unauthorized use of a personal cell phone to photograph facility documents. Lopez, who had been diagnosed with anxiety and depression, alleged that these reasons were a pretext for retaliation after she filed internal complaints and requested FMLA leave. The record reflected a long history of training delinquencies dating back to 2017. HHSC produced evidence that facility-wide compliance goals were strictly monitored and that Lopez had been repeatedly warned, counseled, and provided with schedules to remedy her status. Lopez admitted to the cell phone use and acknowledged her responsibility for training but argued she relied on supervisors for reminders and was too exhausted to check her own compliance status.
Issues Decided
The court focused on whether Lopez provided sufficient evidence of “pretext” to overcome HHSC’s plea to the jurisdiction. Specifically, the court addressed whether a plaintiff can survive a jurisdictional challenge by merely “agreeing and disagreeing” with the employer’s stated reasons without offering evidence that those reasons were false or that the prohibited motive was the “but-for” cause of the adverse action.
Rules Applied
The court applied the McDonnell Douglas burden-shifting framework. Under this standard, once a defendant articulates a legitimate, non-retaliatory reason for an action, the burden shifts back to the plaintiff to show that the reason was a pretext for retaliation. The court emphasized that in the context of a plea to the jurisdiction involving a state agency, the plaintiff must raise a genuine issue of material fact regarding pretext to maintain a waiver of sovereign immunity. The court also relied on the “but-for” causation standard, which requires evidence that the adverse action would not have occurred in the absence of the protected activity.
Application
The legal narrative in Lopez centers on the failure of the plaintiff to bridge the gap between “subjective belief” and “probative evidence.” HHSC provided an exhaustive administrative record showing that Lopez was delinquent in core safety trainings, like CPR, which rendered her unable to perform her duties safely. The court found that because Lopez admitted she was delinquent and admitted to the cell phone policy violation, she could not prove the agency’s stated reasons were “false.”
Furthermore, the court rejected Lopez’s attempt to show disparate treatment. She failed to identify “similarly situated” employees who committed the same violations but were not terminated. The court noted that the agency’s enforcement of its 95% compliance policy was a legitimate business necessity. Even though the timing of the termination followed her complaints, the court held that temporal proximity alone is insufficient to establish pretext when the employer provides undisputed evidence of policy violations that predated the protected activity.
Holding
The Court of Appeals held that Lopez failed to meet her burden to produce evidence of pretext. The court reasoned that an employer’s decision to terminate an employee for violating written policies—especially those involving safety and documentation—cannot be set aside as pretextual without evidence that the policy was applied in a discriminatory or inconsistent manner.
The court further held that because no fact issue existed regarding the retaliatory motive, HHSC retained its sovereign immunity under the Texas Labor Code. Consequently, the trial court lacked subject matter jurisdiction over the dispute. The court reversed the trial court’s order and rendered judgment dismissing the case.
Practical Application
For the family law practitioner, Lopez provides the evidentiary standard for attacking “policy-based” excuses in litigation:
- Challenging Agency Action: When DFPS or a Guardian ad Litem asserts a parent is “non-compliant” with a service plan, use the Lopez standard to demand evidence of whether the “compliance goal” is being applied consistently to all parties in the case.
- Custody and Possession: If an opposing party denies possession based on a “standing house rule” or a child’s “health protocol,” Lopez suggests that unless you can prove the rule is being applied disparately (e.g., they don’t follow the rule for their own family) or is factually false, the “pretext” argument will likely fail.
- Fiduciary Litigation: In property disputes involving closely held businesses, Lopez reinforces that a “legitimate business judgment” (like withholding a distribution for “reinvestment”) is difficult to overturn as “retaliation” for a divorce filing unless the movant can show the reason is a sham.
Checklists
Attacking a “Pretextual” Defense
- Audit the Timeline: Determine if the alleged “violation” or “non-compliance” was documented prior to the filing of the lawsuit or the specific conflict.
- Verify Falsity: Can you prove the underlying event (e.g., the missed class or the policy breach) never actually happened?
- Identify Comparators: Find evidence of other parties who committed the same “infraction” but faced no adverse consequences.
- Policy Review: Analyze the written policy to see if the “punishment” (e.g., termination or denial of access) is mandatory or discretionary.
Defending a “Legitimate Reason” (For Agencies or Fiduciaries)
- Standardize Notices: Ensure all warnings and reminders of non-compliance are sent via a verifiable medium (email/written notice).
- Link to Safety/Mandates: Tie the “legitimate reason” to a broader safety goal or a regulatory requirement (like the 95% compliance goal in Lopez).
- Neutralize the Decision-Maker: Show that the decision to take the adverse action involved multiple people who were unaware of the alleged retaliatory motive.
Citation
Texas Health and Human Services Commission v. Susana Lopez, No. 08-25-00095-CV (Tex. App.—El Paso Feb. 2, 2026, no pet. h.).
Full Opinion
Family Law Crossover
The “Pretext Playbook” outlined in Lopez is a lethal tool in Texas Family Law when dealing with the “Affirmative Defense of Justification.” If a parent violates a court order but claims they did so to “protect the child” (a neutral, legitimate reason), Lopez teaches us how to dismantle that excuse. By showing the parent has ignored that same “safety concern” in other contexts, or by showing the safety concern is factually unsupported by the record, you move the case from a “subjective best interest” debate into a “pretext” analysis where the court can find the violation was actually retaliatory. In the El Paso Court’s view, if the “legitimate reason” holds water—even if it seems harsh—it will likely shield the actor from liability.
~~8539c87f-fffe-418f-a954-c0d0c8d41c0e~~
Share this content:
