Full opinion text
As part of the summative appraisal conference, Principal Kershner addressed two particular matters of concern with Clark: (1) co-worker reports that Clark was bringing her young children to school during instructional hours, which she acknowledged, and (2) a student's report that Clark and Ann Monterrubio, another newly hired female coach in the girls athletic department, were not "getting along." Kershner directed Clark not to bring her children to work in the future, noting constant supervision was required due to their age. Kershner further recommended the two coaches meet with the school counselor, to which Clark assented, and advised Clark to report any problems. In Clark's written summative appraisal, Kershner identified "communicat[ion] with the girls athletic coordinator and administrators" as a professional skill that Clark needed to improve. Two months later, around mid-May, an emotionally distraught Clark visited Principal Kershner's office to complain about Monterrubio's behavior. Clark was unable to communicate effectively due to her highly charged emotional state, so Kershner secured a substitute teacher to cover Clark's afternoon classes and allowed her to leave work to collect herself and prepare a written report. Without explanation, Clark missed the next two days of school, and on her return, she submitted a thirteen-page typed letter detailing a litany of complaints against Monterrubio, extending as far back as the start of the school year (the May 14 letter). She reported that Monterrubio bullied and harassed her on a daily basis; she had reported the objectionable conduct to the girls athletic department coordinator, Michelle Boyer; and Boyer personally observed many bullying and harassing incidents but did nothing to stop Monterrubio. Clark explained that she decided to file a formal complaint following a conversation among Clark, Monterrubio, and Boyer during which Clark complained to Boyer about Monterrubio's behavior, such as interrupting her, criticizing her parenting, being disrespectful to students, not doing what she is supposed to be doing, and talking to other people about topics that bothered Clark. Clark "had finally had enough" when Monterrubio stated that Monterrubio goes to the bathroom to talk on the phone to friends and that Boyer "probably thinks she's just taking a great big sh--." Clark further explained she was "just now reporting this" because she feared retaliation and had expected Boyer and the school counselor to stop Monterrubio's bullying. Among the more than four dozen incidents Clark catalogued, a handful that occurred months apart during the school year involved comments Monterrubio allegedly made about female body parts, including Clark's breasts and buttocks. Clark also complained that Monterrubio frequently used vulgar language, often with sexual connotations, that was sometimes directed at her. According to Clark: • Early in the school year, Monterrubio said, "Wow, Coach Clark, I think your boobs are going to pop out of your shirt!", told Clark that her thong underwear and the "dimples" on her buttocks were visible when she wore certain pants, and "talk[ed] about" her bottom and breasts throughout that week. • Several weeks later, Monterrubio told Clark the male coaches were betting that her breasts were fake and that Monterrubio had agreed with that assessment. • After Monterrubio received a candle Clark brought to the coaches' holiday gift exchange, Monterrubio stated "she was going to make love next to the candle when it was lit up in her apartment." • At the end of January, Monterrubio warned Clark to step back from a pizza box to avoid getting pizza sauce on her "enormous" breasts. • Near the end of the school year, Monterrubio reportedly made a remark about Clark needing to close her legs when a student mentioned smelling the shrimp Clark was eating for lunch. In a different version of the letter she submitted to the Equal Employment Opportunity Commission (EEOC) five months later, she added: • At the new-teacher orientation in August, Monterrubio repeatedly questioned whether an assistant principal's breasts were real to the point that Clark thought it might be dangerous to have such a person in the girls locker room. • Regarding the above-mentioned candle incident, Monterrubio reportedly also said, "I will think of you next time I am f---ing." • After returning from spring break, Monterrubio once commented on "how tan [Clark's] chest was." • Though Monterrubio knew Clark was married, she suggested Clark and a male coach would make a good couple and should "hook up." And "knowing it would upset" Clark, Monterrubio made similar statements twice more the same week. Clark was also offended by Monterrubio discussing her own sex life, such as telling all the coaches about a sexual escapade involving three men in three nights, displaying a photo of her boyfriend's genitals, and looking at a picture of a naked man on the beach. Starting around Christmas and extending through February, Monterrubio had also forwarded a series of ten emails to various groups of people, including Clark, and some of the messages contained mildly profane or vulgar holiday-inspired cartoons or jokes, among others. Clark recounted she was particularly upset by Monterrubio's and Boyer's conduct at the faculty Christmas party. According to Clark, Monterrubio and Boyer purchased "indecent ornament[s]" for themselves and Clark to take to the holiday gift exchange, but Clark refused to take one of the ornaments to the party because she feared getting into trouble. Clark also complained that, at the party, Monterrubio and Boyer became intoxicated and engaged in inappropriate activities, such as clanging beer bottles during the prayer, "extremely dirty dancing," and "grabbing their private areas of their bodies for photographs next to the Christmas tree." Though not mentioned in either version of the May 14 letter, Clark later testified in her deposition that Monterrubio and Boyer similarly grabbed Clark's behind once during a group photo. The multitude of other incidents Clark described in the letter are not remotely sexual in nature. Clark complained Monterrubio brushed shoulders with her a couple of times while they were passing in a doorway and bumped her once with a box. Clark's concerns mostly involved Monterrubio doing things like swearing, snapping at her, making rude comments to Clark's daughter when she brought the child to work, reading her papers, instructing her to use a different printer, teasing her for getting a spray tan, criticizing her teaching and parenting skills, and discussing atheism and abortion with a roomful of coaches. Clark detailed not only personal mistreatment but also many instances of inappropriate behavior toward students and parents. Clark said the other coaches, both male and female, heard Monterrubio's dirty jokes and sexual comments, and Monterrubio mistreated them as well, talking about them behind their backs, making fun of them, and insulting them "on a daily basis." Though Clark stated Monterrubio regularly bullied, harassed, embarrassed, and offended her, she never alleged Monterrubio did so because she is a woman. To the contrary, Clark discussed other motives for this behavior unrelated to gender. Monterrubio told Clark several times that Clark "should just be a stay-at-home Alamo Heights Mom," while "constantly" insulting those mothers as being "smug, wealthy and snotty." Clark complained that the presence of other employees' children at school did not seem to be a problem, but Monterrubio did not like children in general and Clark's in particular because they annoyed her when she brought them into work. And, Monterrubio frequently criticized Clark's parenting style. Clark later elaborated that Monterrubio did not like her, calling Clark a "snob" who acted "high and mighty" and whose children were "Trust-Fund babies." Clark believed Monterrubio was "jealous" of her and intentionally did things "to upset her" because she "enjoy[ed] getting a rise" from her. Principal Kershner did not report Clark's complaint to district officials. Rather, Kershner investigated Clark's complaint on her own and issued a written response on May 23. "I currently have no evidence supporting the details of your experiences and or perceptions," Kershner wrote. She urged Clark to be proactive in communicating complaints in a timely manner and, once again, counseled her about bringing her children to work during instructional hours. B. The 2008-09 school year As the new school year began, Kershner kept a close eye on the girls athletic department. In an effort to facilitate communication and resolve lingering tensions within the department, Kershner implemented weekly meetings with herself, Clark, Monterrubio, Boyer, and the athletic director. On occasion, Clark would make vague reference to additional upsetting incidents but did not discuss the particulars because her May complaint had been "swept under the rug." In addition to the departmental meetings, Kershner and the athletic director had separate meetings with Clark about her job performance, reports that she secretly recorded conversations with her co-workers, and her continuing to bring her children to work. Despite these ongoing meetings, concerns persisted. Principal Kershner consulted with Dr. Dana Bashara, the school district's human resources director, about a path forward. Bashara and Kershner decided both Monterrubio and Clark should be placed on an employee growth plan. Kershner and Bashara met on October 9, 2008, for the express purpose of preparing Clark's growth plan. The plan, which was presented to Clark on October 29, required weekly meetings with Boyer, "in an effort to promote professional communication" and stated Boyer would submit meeting notes to Kershner to demonstrate Clark's improved communication. At the same time, Kershner placed Monterrubio on a similar growth plan. Meanwhile, in mid-October, after the growth-plan decision was made but before its implementation, Clark filed a charge of discrimination with the EEOC, alleging Monterrubio and Boyer sexually harassed her and, after she complained, the school district and her supervisors retaliated against her by (1) singling her out for workplace restrictions, (2) ostracizing her, and (3) being unjustly critical of her work performance. Clark also claimed Boyer was aware of Monterrubio's comments about her body, took no action to stop Monterrubio, and instead "began to make sexual comments" herself. The record contains no additional details regarding any "sexual comments" to her by Boyer, but Clark alleges Monterrubio made several sex-related comments at some unspecified point during the 2008-09 school year: • Monterrubio continued to make unspecified comments about Clark's breasts and buttocks and told Clark that she used Clark's razor to shave her genitals. • Monterrubio and Boyer discussed fellatio while eating eggrolls. • Monterrubio called across the room to Boyer, in Clark's presence, "I wonder if Coach Clark swallows." • Monterrubio told a story about having sex after barhopping and made jokes about Viagra. In January and February 2009, Clark submitted three letters to Kershner detailing more than forty additional complaints against Monterrubio, Boyer, other coaches, and Kershner herself. With the exception of saying that Monterrubio had once stared at her bottom, none of those complaints related to sex in any way but instead were claimed acts of retaliation for asserting a sexual-harassment complaint. Clark was upset about various perceived slights by the other coaches, such as hidden keys, thrown-away printouts, being excluded from breakfast tacos, loud music in the office, cold shoulders, dirty looks, and being snapped at and locked out of the gym. According to Clark, Kershner was rude to her in meetings and unfairly reprimanded her for continuing to bring her children to work. Shortly after submitting the last of these three complaints, Clark requested and was granted leave under the Family and Medical Leave Act (FMLA). Meanwhile, Kershner investigated Clark's complaints and, when Clark returned, issued a written response concluding (1) no evidence of retaliation existed and (2) Clark was responsible for any difficulties with her co-workers. Kershner reminded Clark, as per her growth plan, she must make efforts to improve working relationships with her colleagues or she risked termination. By all accounts, the department ran smoothly during Clark's leave, but almost immediately upon her return, discord again broke out. Within a week, Clark filed a formal grievance, accusing Monterrubio of pushing Clark from behind during class. She requested, as her grievance remedy, that either she or Monterrubio be transferred. In addition to the pushing complaint, Clark stated in her grievance that she was afraid of Monterrubio because of her daily bullying. When Kershner inquired about this comment, Clark responded with nearly thirty more allegations against Monterrubio and to some extent Boyer, similar to those reported in January and February, such as snapping, profanity, teasing, door slamming, shoulder bumping, and her car antennae being removed. Clark also accused Monterrubio of chasing her in her car. She made sweeping allegations about Monterrubio's daily mistreatment of practically everyone, including "students, parents, and teachers," and that she "enjoys teasing students and staff and causing trouble." After investigating Clark's pushing grievance and related new allegations, Kershner determined the grievance had no merit but nevertheless transferred Monterrubio in hopes of restoring order to the department. This effort failed. Even with Monterrubio gone, Clark's performance continued to suffer, her conflicts with co-workers intensified, and she continued to complain of perceived slights. Clark also admitted to lying about an incident involving a violation of state standardized-testing protocols. Because of these issues, Principal Kershner recommended to the superintendent that Clark be placed on paid administrative leave while the district investigated and evaluated the situation. Kershner brought in Bashara to run the investigation, and Bashara discovered and verified many additional performance issues. For example, the substitute teacher covering Clark's classes during her FMLA leave reported that Clark had not been following lesson plans or maintaining daily grades, as required by campus policy. The other coaches reported Clark had been neglecting her coaching duties, such as by being on her office computer during practice, and had twice again brought her daughter to school during instructional time. Citing these new issues, along with Clark's role in disrupting the department, the standardized-testing incident, and failure to comply with her growth plan, Principal Kershner gave Clark a markedly poorer summative evaluation and recommended to the superintendent that Clark be terminated for cause. In July 2009, the Alamo Heights School Board issued a Notice of Proposed termination that included nineteen specific instances of conduct supporting good cause for termination. Although Clark was entitled to an evidentiary due process hearing before an independent hearing examiner, she never contested the grounds for termination or requested a hearing, and she was fired in August 2009. C. Lawsuit Clark sued Alamo Heights, asserting sexual-harassment and retaliation claims under the TCHRA. After discovery, Alamo Heights filed a plea to the jurisdiction, arguing the TCHRA's governmental-immunity waiver does not apply because Clark has no evidence of a statutory violation. Alamo Heights attached proof of Clark's unsatisfactory job performance, noncompliance with the growth plan, and policy violations as legitimate nondiscriminatory reasons for her dismissal. In addition to other alleged evidentiary deficiencies, the school district argued in relevant part that Clark had (1) no evidence the objectionable behavior was gender-based, which is required to state a prima facie case of sexual harassment, and (2) no evidence of a causal link between statutorily protected anti-discrimination activities and a materially adverse employment action. The trial court denied the plea, and on interlocutory appeal, the court of appeals affirmed, holding Clark had established a prima facie case of sexual harassment and retaliation sufficient to invoke the TCHRA's immunity waiver and establish subject-matter jurisdiction over Clark's claims. With respect to Clark's sexual-harassment claim, the appellate court held, in pertinent part, that the record contains some evidence the alleged harassment was gender motivated. The court stated that "the bulk of Monterrubio's comments relate to the fact that Clark is female," for example "a significant number of comments to Clark about Clark's female anatomy, i.e., her breasts, as well as her buttocks." With respect to the retaliation claim, the court declined to consider whether Clark produced any evidence that the stated reasons for her termination were merely pretextual, holding that, in circumstantial-evidence cases, the jurisdictional inquiry is limited to the prima-facie-case element of the McDonnell Douglas framework and does not include an evaluation of pretext evidence. The issue on appeal is whether the evidence raises a fact issue sufficient to invoke the TCHRA's immunity waiver as to either of Clark's claims. Subsumed within that overarching inquiry is (1) whether there is more than a scintilla of evidence that Clark was harassed "because of" her gender and (2) whether the jurisdictional facts in a TCHRA circumstantial-evidence case are limited to the prima-facie-case element even if the presumption it raises has been rebutted by evidence attached to the jurisdictional plea. We granted review to resolve a jurisprudential inconsistency regarding which elements of a circumstantial-evidence TCHRA case constitute the jurisdictional facts. II. Discussion A. Standard of Review Governmental units, including school districts, are immune from suit unless the state consents. The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute. Immunity from suit may be asserted through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. When a jurisdictional plea challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction. If, however, the plea challenges the existence of jurisdictional facts, we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim. Here, the school district's jurisdictional plea challenged the existence of jurisdictional facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional summary judgment: "[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." In determining whether a material fact issue exists, 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. B. Same-Sex Sexual Harassment Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating in the terms, conditions, and privileges of employment "because of ... sex." In Meritor Savings Bank, FSB v. Vinson , the United States Supreme Court held that Title VII's prohibition of sex discrimination in employment encompasses "the entire spectrum of disparate treatment of men and women in employment," including sexual harassment. The Texas Legislature modeled the TCHRA on Title VII, and we have expressly recognized that the TCHRA prohibits sexual harassment. To prove sexual harassment based on a hostile work environment, the plaintiff must show (1) she was subjected to unwelcome sexual harassment, (2) she was harassed because of her sex, (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile work environment, and (4) some basis for holding the employer liable. The dispositive issue on appeal is whether Clark raised a fact issue on the second element, that the offending conduct was based on her gender. Viewing the record in the light most favorable to Clark, her working environment was undoubtedly harassing. But based on Clark's own version of events, which provides vital context that cannot be ignored in a legal-sufficiency review, a jury could not reasonably conclude the alleged harassment was motivated by her gender. 1. Legal Standard for Same-Sex Harassment In Oncale v. Sundowner Offshore Services, Inc. , the U.S. Supreme Court held Title VII's protection against workplace discrimination "because of ... sex" applies to harassment between members of the same gender. Title VII is not "a general civility code" that protects against "all verbal or physical harassment in the workplace," even when "the words used have sexual content or connotations." The critical issue is whether the conduct at issue constitutes discrimination because of the victim's gender. Though same-sex and opposite-sex harassment cases are rooted in the same statutory prohibition, evidentiary issues naturally differ. How to prove the harasser's conduct is motivated by gender is more complicated in same-sex harassment cases because the inferences that arise from words and conduct are not necessarily the same when the harasser and victim are the same gender. As the Supreme Court made clear in Oncale , the inference of discrimination is "easy to draw" in most opposite-sex cases "because the challenged conduct typically involves explicit or implicit proposals of sexual activity" and thus "it is reasonable to assume those proposals would not have been made to someone of the same sex." That inference does not arise automatically in same-sex cases. However, "[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual." In addition to motivation by sexual desire, the Oncale Court identified two other methods of proving gender-based animus in same-sex cases-evidence of general hostility to a particular gender in the workplace and direct comparative evidence of the harasser's treatment of both sexes. The Court explained: [H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. This discussion of evidentiary methods does not purport to be exclusive, as courts have recognized. But, "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] ... because of ... sex.' " Clark has not raised a fact issue that the harassment she alleges was based on her gender, under these three methods or any other. 2. No Evidence of Sexual-Desire Motivation Clark asserts a factual dispute exists regarding motivation by sexual desire under Oncale 's first evidentiary route. As a predicate matter, the parties disagree about whether "credible evidence" that the harasser is homosexual is required. Some courts have treated Oncale 's"credible evidence" of homosexuality language as imposing a mandatory requirement of such evidence in every first-route evidentiary case. Other courts have determined this route requires only proof of motivation by sexual desire, which may be shown by any relevant evidence, including-but not limited to-sexual propositions combined with "credible evidence" that the harasser is homosexual. We need not determine which approach is correct because, under either, the evidence is lacking. To begin with, Clark has never alleged-in her written complaints, EEOC charge, or lawsuit-that either Monterrubio or Boyer are homosexual. Nevertheless, we have reviewed the record for such evidence. Oncale requires evidence of homosexuality to be "credible." The Fifth Circuit has discussed two types of such credible evidence: (1) "evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate [her] for reasons unrelated to sexual interest" and (2) "proof that the alleged harasser made same-sex sexual advances to others, especially to other employees." Clark has never claimed she was sexually propositioned, and there is no evidence from which an invitation to engage in sexual activity can be reasonably inferred. No evidence exists of same-sex sexual advances from either Monterrubio or Boyer towards anyone. The record references some rumors that one or both of them are possibly lesbians or bisexual, but such gossip and speculation does not constitute credible evidence. Neither is Clark's subjective belief that Monterrubio looked at her in a "creepy" manner and was "hitting on her." Thus, Clark cannot raise a fact issue under Oncale 's first route by showing sexual propositions from a homosexual harasser. The evidence does not otherwise show a fact issue regarding motivation based on sexual attraction or desire. Before we analyze any particular evidence, it is imperative to keep in mind the entire context. The Oncale Court admonished tribunals to always consider the context when assessing whether harassing conduct is severe and pervasive, and attention to context is equally important in determining whether conduct is gender motivated. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." A careful evaluation of Clark's complaints reveals no evidence of harassment motivated by sexual desire. In a series of mostly written complaints, Clark thoroughly detailed a list of accusations, mostly against Monterrubio, but also a few against Boyer and eventually many others in the department. The gist of Clark's complaints was that Monterrubio was rude, crude, and regularly unprofessional, not just to Clark, but in Monterrubio's interactions with colleagues, parents, and students. Male and female alike. Both in the workplace and at work-related events. But mostly, the complaints chronicle events depicting Monterrubio as a bully who simply did not like Clark, was vindictive, and exploited every opportunity to target her and make her feel uncomfortable. Among the more than one hundred incidents Clark cataloged in writing over two school years, only a handful involved specific comments Clark alleges Monterrubio made about female body parts, including Clark's buttocks, the size of her breasts, and whether they are real. Clark also complained that Monterrubio frequently used vulgar language with sexual connotations that was sometimes directed at Clark and periodically discussed Monterrubio's sexual encounters between herself and various men. Monterrubio shared a couple of nude photos of men and forwarded eight to ten emails, some of which contained mild profanity and off-color jokes, to Clark and several other people. Clark was particularly disturbed by Monterrubio's and Boyer's conduct at the faculty Christmas party, where they brought "indecent ornament[s]" for a faculty gift exchange, became intoxicated, and grabbed their own "private areas" while "[f]ooling around" and engaging in "horseplay," and then similarly grabbed Clark's behind briefly during a group photo. The multitude of other incidents Clark described are not remotely sexual in nature, involving things such as being brushed up against while passing in a doorway, swearing, rudeness, teasing, criticizing her teaching and parenting skills, loud music, dirty looks, hiding her phone and keys, reading her papers, throwing away her printouts, being locked out of the gym and excluded from breakfast tacos, and discussing topics such as atheism and abortion, among many others. Rather than sexual desire, the record is replete with evidence directly from Clark's complaints and deposition that Monterrubio and Boyer engaged in this behavior for other reasons. Monterrubio was jealous of Clark, viewed her as "snotty" and "high and mighty," thought she should quit her job to be a stay-at-home mom, did not like Clark's children or approve of her bringing them to school, was a bully who enjoyed getting a rise out of her, and along with her friend Boyer, simply did not like Clark. None of those motives are based on gender. Sexually tinged comments may be motivated by other reasons, such as personal animus, jealousy, or the desire to irritate or bully. We do not hold, as the dissent insinuates, that such motives justify a "steady stream of sexual harassment." That puts the cart before the horse by assuming the conduct at issue is sexual harassment without examining the motives necessary to establish sexual harassment. Motives like personal animus or bullying do not satisfy the because-of-sex requirement, even if the comments are profane, vulgar, or have sexual overtones. Myopic focus on select details of offending behavior ignores the reason for it, and the reason is what matters under the TCHRA. Clark complained that Monterrubio harassed and bullied not only her but seemingly everyone else she encountered, including students, parents, and the other coaches. As Clark herself alleged, Monterrubio enjoyed being crass and profane and telling dirty jokes and stories to all the coaches, male and female, not just Clark. This treatment of co-workers of both genders provides crucial context that Monterrubio's motives were based on factors other than gender. In other words, Monterrubio offended everyone indiscriminately. "It would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct." Monterrubio may have directed more of her attention to Clark than other men and women at work, but there is no evidence she did so because Clark is a woman. Clark claims that acts of "unwanted sexual touching" indicate sexual desire. The record does not support this allegation. The only touching allegation that could conceivably be interpreted as sexual is Monterrubio and Boyer grabbing her behind during a group photo. Again, context is critical. This is why, as Justice Scalia explained in Oncale , a coach smacking a football player's buttocks as he heads onto the field is not harassment whereas the same action towards the coach's secretary might be. Other courts analyzing same-sex harassment claims have similarly distinguished sexual horseplay from sexual discrimination or concluded, based on the surrounding circumstances, that much more egregious instances of physical contact than Clark alleges did not show gender motivation, including grabbing the plaintiff's genitals, poking the plaintiff's rectum, the harasser running her hands and body over the plaintiff's body, and the harasser grinding his genitals on the plaintiff. Here too, context informs the nature of the contact. Clark acknowledged Monterrubio and Boyer had been "[f]ooling around" and similarly touching each other as "horseplay" shortly before grabbing her behind during the photo. She confirmed she did not know their motivation in grabbing her, though she did not consider it "playing around because that's not the way I play." By her own account, the incident occurred only once, was in public, lasted only a few seconds, and was not accompanied by a sexual proposition. In most circumstances, unwelcome touching of a co-worker's buttocks is inappropriate and may well violate the employer's internal policies and lead to disciplinary action. Considered in the context of this event and Monterrubio's prior interactions with Clark, however, this isolated instance of intentional physical contact, though understandably upsetting, could not be reasonably interpreted as a sexually motivated touching. The handful of other incidents of physical contact Clark alleges, such as bumping in a doorway, also cannot be reasonably interpreted as indicating sexual desire, individually or collectively. In fact, Clark characterized those incidents as bullying and retaliatory because Monterrubio was upset about Clark's complaints, which is distinct from gender motivation. Aside from physical contact, Clark claims that Monterrubio "commenting about [her] body ... would be evidence ... that she liked [her] body" and therefore was sexually attracted to her. We disagree. It takes more than a woman noticing and commenting on a feature of another woman's body-even in a complimentary way-to demonstrate sexual attraction. And none of Monterrubio's body-related comments are, on their face, complimentary. Clark emphasizes Monterrubio's purported statement that she would "think about" Clark during intercourse with her boyfriend while burning a candle Clark brought to the coaches' holiday gift exchange. But even then, Monterrubio did not say she wanted to have sex with Clark but with someone else. Though Clark does not mention it in her briefing, the dissent points to an incident Clark discusses in her deposition involving a cupcake. During a meeting in which Clark was complaining to Boyer about Monterrubio's profanity, Monterrubio repeatedly interrupted the meeting by coming in and out of the office. One of these interruptions involved Monterrubio "using her tongue to lick seductively the cupcake icing off of a cupcake." Considering these circumstances, which the dissent acknowledges but does not account for, and notwithstanding Clark's subjective view of its "seductive[ness]," Monterrubio's licking a cupcake cannot reasonably be equated with a genuine sexual proposition. Considered in isolation or in the context of Clark's other complaints, these comments do not indicate sexual attraction to Clark but, consistent with her other behavior, a desire to tease Clark and make her feel uncomfortable. Viewing all the evidence in context and as favorably to Clark as the reasonable inferences allow, no reasonable juror could find the behavior Clark complains of was motivated by sexual desire. 3. No Evidence of General Hostility to Women Evidence that "a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace" can establish harassment because of gender under Oncale 's second evidentiary route. This evidence focuses on hostility towards the harasser's own gender in the workplace. Though presumably uncommon, discriminatory animus might arise, for example, in a situation where a male doctor believes men should not be nurses or a female airline executive thinks piloting is a man's job. Clark makes no argument under this evidentiary method-and for good reason given her allegations of Monterrubio's across-the-board mistreatment of male and female coaches. None of the record evidence even hints that Monterrubio's behavior, with her mistreatment of men and women alike, evinces hostility to her own gender in the workplace. Thus, Clark has not raised a fact issue under Oncale 's second evidentiary route. 4. No Direct Comparative Evidence of Discrimination Oncale 's third method of proving sex-based discrimination in same-sex harassment cases is offering "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." This method allows a same-sex harassment plaintiff to demonstrate gender motivation based on either sex-neutral conduct or conduct with sexual connotations. Following oral argument, Clark asserted, for the first time in this case, that a fact issue exists under this theory. Thus, we must examine the record for evidence of how Monterrubio treated her co-workers. We find the record is sparse and inadequate to raise a fact issue. Generally, Clark alleges the following about Monterrubio: • "Not only did [Monterrubio] talk trash about me, but she did it about everyone behind their backs. She constantly complained about Coach Moore, Coach Gonzales, Coach McCallister, and all the male coaches. She made fun of their professional and private lives. She griped about the way they worked and made digs about their character on a daily basis." • Monterrubio "is extremely hostile toward her co-workers on a daily basis." • "She makes fun of not just me, but students, parents, and teachers on a daily basis. She badmouths others and has no concern for discretion.... She is known to habitually snap at me, other coaches, students, and parents. She enjoys teasing students and staff and causing trouble. Ann shouts at students and fellow coaches, including me." • She curses, tells dirty jokes, and discusses sex around the entire department. The record contains some evidence of specific examples of Monterrubio's alleged inappropriate behavior: • She made comments about three other co-workers' breasts, including whether they had breast implants. • Two male coaches complained that she made a sexual innuendo to them regarding a hurdler stretch. • She talked to a male coach about his body, weight loss, and use of diet pills. • She told specific dirty jokes and stories about her personal sexual adventures to a group of male and female coaches at least five times. • She showed nude photographs of men to other male and female coaches twice. • She told both Clark and another male coach that they would make a good couple and should "hook up." • She forwarded a series of mildly profane and off-color email jokes and cartoons to several people. This evidence shows significant, similar inappropriate conduct toward both male and female co-workers, which does not raise an inference of discrimination based on sex. Clark argues Monterrubio treated her worse than the male coaches, but at best, Clark documents many more particular instances of abuse against her personally than any other co-worker, male or female. Evidence that Clark was targeted as an individual does not raise an inference of gender-based discrimination under this comparative-based evidentiary route. 5. Comments About Gender-Specific Anatomy and Characteristics do not Alone Raise an Inference that Harassment is Because of Gender The court of appeals did not rely on an Oncale evidentiary route, summarily holding that Clark raised a fact issue concerning gender-based harassment because "the bulk of Monterrubio's comments relate to the fact that Clark is female" and "Monterrubio made a significant number of comments to Clark about Clark's female anatomy, i.e., her breasts, as well as her buttocks." The dissent adopts a similar approach, concluding that the because-of-sex requirement can be met simply-and solely-by showing that at least some of the harasser's comments referred to gender-specific anatomy and characteristics. Though we agree that gender motivation may be proven outside Oncale 's framework, we disagree with the dissent's and lower court's analysis. Factually, the record does not support a conclusion that "the bulk" of the relevant comments "relate to the fact that Clark is a female," as the court of appeals stated, or that the conduct "focused" on Clark's gender-specific anatomy, as the dissent concludes. Clark made over one hundred wide-ranging complaints, covering topics such as profanity, dirty jokes, rudeness, ostracism, petty slights, political views, atheism, pranks, and having her parenting and teaching skills criticized. None of these relate to Clark's female anatomy. To claim that Clark's female body was the main focus of Monterrubio's comments misstates the record. In addition to factual issues, focusing only on gender-specific anatomy and ignoring motivation is legally unsound and relies on a misreading of Oncale . Oncale does mention "sex-specific and derogatory" behavior, but it expressly tied that language to proving general hostility to one gender in the workplace under the second evidentiary route rather than as a stand-alone evidentiary path. Thus, the dissent is incorrect to position this theory as an established alternative evidentiary route supported by Oncale 's text. A line of opposite-gender harassment cases uses Oncale 's"sex-specific and derogatory terms" language to argue that such behavior creates an inference of discrimination without regard to the underlying motivation. Such conduct could support an inference of sex discrimination in an opposite-gender case where, for example, the men in a mostly male environment mistreat a woman in gender-specific ways making it clear they disapprove of women in their workplace. Though we need not pass on the validity of the analysis these cases employ, at a minimum, they illustrate the importance of context; a woman harassing another woman in an all-female environment naturally raises different inferences than a man harassing the only woman in an otherwise male workplace. The dissent cites many of these cases as if they necessarily apply with equal force in same-gender cases. The dissent's theatrical device of switching the gender of the harasser for illustrative purposes is an analytically inapt oversimplification that bypasses an inquiry into the reasonableness of the inferences that may be drawn. Only reasonable inferences can be credited in a legal-sufficiency review. Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases. The Supreme Court was abundantly clear that gender motivation is not established "merely because the words used have sexual content or connotations." The Court rejected pre- Oncale lower-court authority holding "workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations." Consistent with Oncale , many courts in same-sex cases have recognized that crude, gender-specific vulgarity alone is insufficient to show that harassing behavior is because of gender. Furthermore, that a comment relates to a woman's body says nothing about the speaker's motive. The TCHRA is not a strict liability statute that mandates a finding of sex discrimination for any mention of a gender-specific body part. Motivation, informed by context, is the essential inquiry. Why matters. In other words, the bare act of one woman speaking to another woman about her female anatomy does not establish the comments were gender motivated. Taking all of her evidence as true, Clark experienced misery at work that no employee should endure. But it is not an actionable TCHRA violation. No reasonable juror could find that Clark's gender motivated the conduct toward her, and thus immunity has not been waived as to her sexual-harassment claim. C. Retaliation As a companion to its anti-discrimination provision, the TCHRA prohibits retaliation against an employee for engaging in certain protected activities, such as reporting sexual harassment. Retaliation claims can be actionable under the TCHRA even if the underlying discrimination claim is not. The parties here dispute whether the evidence is sufficient to raise a fact issue as to the extent of Clark's protected activity and whether engaging in such activity caused a material adverse employment action. In discrimination and retaliation cases under the TCHRA, Texas jurisprudence parallels federal cases construing and applying equivalent federal statutes, like Title VII. Accordingly, we follow the well-settled proof principle that statutory violations can be established with either direct or circumstantial evidence. 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. 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 both direct- and circumstantial-evidence cases, the burden of persuasion remains at all times with the employee. These three burden-shifting steps apply to retaliation claims, but the precise evidentiary elements of the prima facie case differ from discrimination cases due to the nature of the claims. To establish a prima facie case of retaliation, an employee must show: (1) she engaged in an activity protected by the TCHRA, (2) she experienced a material adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. The 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. However, if the employer provides evidence of a legitimate reason for the adverse action, under the federal standard, the employee must prove the adverse action would not have occurred "but for" the protected activity. The but-for causation standard is significantly more difficult to prove than prima facie causation. The parties dispute which of these three steps are implicated in the jurisdictional analysis and whether the evidence raises a fact issue sufficient to invoke the TCHRA's merits-based immunity waiver. The dissent concludes that TCHRA retaliation claims should be evaluated not under a but-for causation standard but by assessing whether the protected activity was a motivating factor for the adverse action. We have yet to determine the appropriate causation standard for a TCHRA retaliation claim, but because the parties have advocated the but-for standard and have not asserted any other should apply, we apply it in this case. 1. Jurisdictional Facts To support the jurisdictional plea, Alamo Heights produced evidence (1) challenging most aspects of Clark's prima facie case of retaliation, (2) asserting nonretaliatory reasons for the adverse employment actions, namely Clark's performance issues, and (3) challenging but-for causation between the alleged protected activities and the adverse employment actions. Citing our decision in Mission Consolidated Independent School District v. Garcia , the court of appeals limited the jurisdictional analysis to the prima-facie-case element, meaning evidence regarding the other two stages was not considered in determining whether Clark raised a fact issue regarding the immunity waiver. This was error. All elements of a TCHRA circumstantial-evidence claim are, perforce, jurisdictional. If the jurisdictional evidence does not negate or rebut the prima facie case, the ensuing aspects of the burden-shifting analysis are not implicated in the jurisdictional inquiry. But if, as here, jurisdictional evidence rebuts the prima facie case, the entire McDonnell Douglas framework is fully implicated, and sufficient evidence of pretext and causation must exist to survive the jurisdictional plea. In holding otherwise, the court of appeals misinterpreted Garcia as conscribing the jurisdictional examination. Garcia involved a circumstantial-evidence TCHRA age-discrimination claim. The defendant filed a plea to the jurisdiction, presenting evidence challenging one element of Garcia's prima facie case. Observing that "the Labor Code waives immunity from suit only when the plaintiff actually states a claim for conduct that would violate the TCHRA," we held the elements of the McDonnell Douglas prima facie case constitute jurisdictional facts because a prima facie case is "the necessary first step" to bringing a TCHRA claim based on circumstantial evidence. The defendant's jurisdictional challenge negated an element of the prima facie case, which triggered the plaintiff's duty to raise a fact issue on the issue of discriminatory intent. Because the plaintiff failed to do so, we dismissed the suit for want of jurisdiction. As a factual matter, Garcia involved only the prima facie case, but its core analysis is not limited to that step of the framework. Because a statutory violation is necessary to establish an immunity waiver, jurisdiction and the merits intertwine. And because a circumstantial-evidence case depends on the McDonnell Douglas framework, the burden-shifting scheme in toto defines the jurisdictional facts. In Garcia , the defendant had negated an element of the prima facie case, meaning no presumption of discrimination existed. Here, the defendant rebutted the prima facie case by producing evidence of a legitimate reason for its employment actions, which means no presumption of retaliation exists. The absence of a presumption triggers the plaintiff's duty to create a fact question on the ultimate issue-whether retaliation caused the adverse employment action-to survive a jurisdictional challenge. The entire burden-shifting framework is a mechanism for proving discriminatory intent absent direct evidence, and all phases, not just the prima facie case, are relevant to the jurisdictional inquiry. We thus disapprove of those cases limiting the jurisdictional inquiry to the prima-facie-case element of a TCHRA circumstantial-evidence case. Our holding that all elements of a circumstantial-evidence TCHRA claim are jurisdictional facts aligns with our holdings in State v. Lueck , San Antonio Water System v. Nicholas , and our Texas Tort Claims Act jurisprudence. As we explained in those cases, some evidence of a viable claim must exist to invoke an immunity waiver tied to the merits of a claim. In Lueck , we analyzed the scope of jurisdictional facts under the Whistleblower Act. Like the TCHRA, the Whistleblower Act waives governmental immunity for "a violation" of the Act. Because immunity waiver is bound to a statutory violation, we held the elements of a Whistleblower Act claim "must be considered in order to ascertain what constitutes a violation" and thus "the elements [of a violation] can be considered as jurisdictional facts." We followed both Lueck and Garcia in Nicholas , which involved a post-verdict jurisdictional plea in a TCHRA circumstantial-evidence retaliation case. Analyzing the jurisdictional argument, we stated that "[t]he elements of a retaliation claim under the TCHRA are jurisdictional in nature." We determined immunity was not waived, and the trial court thus had no jurisdiction, because no legally sufficient evidence supported an essential element of the claim. We 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." As we have consistently held-in Lueck , Garcia , and Nicholas -when the Legislature conditions an immunity waiver on the existence of a statutory violation, the elements of the violation are jurisdictional facts. When analyzing immunity waiver under the Texas Tort Claims Act, which likewise waives immunity to the extent of liability, we have also framed our jurisdictional analysis in terms of a claim's elements. A plaintiff's failure of proof at the prima facie stage (as in Garcia ), post-verdict (as in Nicholas ), or anywhere in between produces the same result: no immunity waiver and no jurisdiction. Whenever the prima facie case's presumption drops out of a case, there must be other evidence to prove the claim. The second and third McDonnell Douglas steps are part of an integrated evidentiary framework, and exempting them from this analysis is thus erroneous. The nature of proof in retaliation cases illuminates the point. The causation burden in the prima-facie-case element is significantly lower than the ultimate burden to prove the protected activity caused retaliation. But when the prima facie case is rebutted, there is no presumption and thus no evidence of illegal intent. Permitting a McDonnell Douglas case to proceed to trial when the prima facie case has been rebutted and the plaintiff has not raised a fact issue on causation defies logic. More importantly, allowing a trial to proceed without evidence to sustain a claim is repugnant to the TCHRA's immunity waiver and contrary to the legitimate objectives of governmental immunity. Though Clark concedes she would be required to raise a material fact issue on pretext in a summary-judgment proceeding, she argues the plaintiff's burden to respond to a jurisdictional challenge should be minimal and not unnecessarily involve the merits. We reject this argument. When the merits and jurisdiction overlap, as they do in TCHRA cases, and the defendant challenges the evidence to sustain a violation, plea-to-the-jurisdiction proceedings "mirror[ ] that of a traditional summary judgment motion." Whether by jurisdictional plea or summary-judgment motion, the plaintiff is not put to the ultimate burden of proof but must only raise a fact issue on the existence of illegal intent. Clark asserts that if all the elements of the burden-shifting evidentiary mechanism are jurisdictional, a "plaintiff suing a governmental entity would be in the position of pleading[ ] facts to rebut the defendant's proffered excuse without full discovery, when the facts and details that show an excuse is false or a pretext are often solely in the control of the defendant." Clark's concerns about the impact on pleading practice are unwarranted. Once a defendant challenges the plaintiff's case with evidence , the jurisdictional inquiry focuses on the evidence and whether the plaintiff can create a fact issue. The pleadings are not implicated, and if discovery is necessary, trial courts have broad discretion to permit targeted discovery and alter hearing deadlines to allow parties the opportunity to respond with evidence. Clark does not argue she lacked evidence or preparation time and, indeed, has asserted that the case is ready for trial. Accordingly, we analyze whether the record contains evidence raising a fact issue. 2. Evidence of Retaliation Because Alamo Heights produced evidence on the prima facie case and the remainder of the burden-shifting framework, we evaluate the evidence regarding all elements of the retaliation claim. a. Protected Activity An employee engages in a protected activity by, among other things, filing an internal complaint, opposing a discriminatory practice, or making a charge of discrimination with the EEOC. The employee's complaint must, at a minimum, alert the employer to the employee's reasonable belief that unlawful discrimination is at issue. The parties agree Clark's EEOC charge is protected activity. Clark also contends three internal complaints constitute additional protected activities: the May 14, 2008 letter to Principal Kershner; a March 2008 meeting with Kershner; and an October 2007 meeting with Michelle Boyer, the girls athletic coordinator. We disagree and conclude only Clark's EEOC charge is protected activity. In May 2008, Clark lodged her first written complaint, a thirteen-page letter to Principal Kershner detailing an array of grievances about Monterrubio and, to a limited degree, Boyer's inaction. We conclude this letter was insufficient to put Kershner on notice that Clark was complaining that these two women were harassing her based on her gender. As previously discussed, a handful of Clark's allegations contain a sexual component, but an overwhelming number did not. Among the more than four dozen incidents of harassment Clark catalogued in the May 14 letter, her broad-ranging complaints included mistreatment directed not only toward her but to all the other coaches, both male and female, as well as parents and students. She never even hinted that she believed she was targeted because of her gender or any other protected trait. Indeed, she ascribed the behavior to motives such as thinking she is a "snotty" Alamo Heights mom and disliking her teaching and parenting style, and she said what ultimately impelled her to make a formal complaint was Monterrubio's crude comment about Monterrubio's use of the restroom. "Magic words" are not required to invoke the TCHRA's anti-retaliation protection. But complaining only of "harassment," "hostile environment," "discrimination," or "bullying" is not enough. There must be some indication of gender motivation, such as sexual propositioning or other behavior signifying Clark's belief that her gender motivated the behavior. That simply is not present in the letter. Though the letter characterized Monterrubio's behavior as "inappropriate," "offensive," "bullying," "harassment," "embarrassing," "rude," and "intimidating," a jury could not reasonably conclude Clark alerted Principal Kershner that she thought Monterrubio was acting out of sexual desire towards her or that her conduct otherwise constituted sex-based discrimination. The dissent argues the allegations it concludes show gender-based harassment also indicate Clark notified Kershner of her belief she was harassed because of her gender. We disagree. As previously mentioned, two versions of the May 14 2008 letter are in the record-one bearing Clark's signature that she gave Kershner and an unsigned version Clark attached to her EEOC charge. Neither version communicates any belief that Monterrubio or Boyer were sexually attracted to Clark. Clark did not write that either of them sexually propositioned her, sexually touched her, or engaged in any sexually suggestive conduct toward her. Indeed, the only discussions of sexual activity involved Monterrubio's relations with several men, jokes about sex with men, and nude photos of men. Neither version of the letter mentions (1) that Monterrubio and Boyer grabbed Clark's behind during the Christmas photos, (2) the cupcake-licking incident, (3) that Monterrubio said she used Clark's razor to shave her genitals, (4) Monterrubio's statement "I wonder if Coach Clark swallows," (5) gossip that Monterrubio and Boyer might be homosexual, or (6) that Monterrubio looked at her in a "creepy way" or was "hitting on" her. Moreover, the version Clark gave Principal Kershner (1) omits Monterrubio's comments at the new teacher orientation about a different woman's breasts, (2) leaves out Monterrubio's purported statement that she would think about Clark during sex while using the candle Clark gave her, and (3) uses the word "breasts" rather than "tits" to describe an incident. These details are all material to the dissent's analysis, but b