Labor & Employment Law Daily Wrap Up, DISCRIMINATION—Tex. App.: Lead custodian with diabetes, anxiety, fired at 52, failed to establish case, (Jan 20, 2026)

By Jason Albright, J.D.

He acknowledged that his supervisor admonished him on “several” occasions for “missing” inventory.

A lead custodian with diabetes and anxiety, hired by South Texas College in 1987 and fired at age 52 after repeated and admitted janitorial inventory control issues, failed to establish state-law claims of age or disability discrimination, retaliation, or a hostile work environment, a Texas appellate court held. Replaced by a woman one or two years younger, the longtime custodian did not produce evidence that he was replaced by someone “significantly younger” or treated less favorably than others who were similarly situated but outside his protected class. Having admitted that he made inventory mistakes on “five” or “six” occasions, he also failed to raise a genuine issue of material fact as to whether his termination for poor job performance was false. Finally, he failed to produce any evidence that he made a qualifying complaint or that the harassment he alleged was sufficiently pervasive or severe (South Texas College v. Fuentes, No. 13-24-00049-CV (Tex. App. Jan. 15, 2026)).

Lead custodian. South Texas College (STC) hired the employee as a custodian in 1987 and eventually promoted him to the position of lead custodian. He reported to a manager who initially recommended his termination in August 2020.

Discharge. After several layers of administrative review, STC’s president approved the recommendation, and the employee was terminated on October 9, 2020, at the age of 52.

Lawsuit. He then filed suit claiming that, prior to his termination, STC “subjected [him] to discriminatory animus, disparate treatment and/or a hostile work environment on account of his age[,]... on account of his disability (diabetes and anxiety) and/or for engaging in protected activity.”

Janitorial supplies. One of the employee’s “essential duties and responsibilities” as lead custodian was to secure and maintain an inventory of “all janitorial supplies and equipment.” This included documenting the distribution of supplies and submitting a weekly report to the manager that would then be forwarded to the procurement department so that additional supplies could be purchased when necessary. The head of the procurement department or an auditor would then conduct a physical count of the inventory and compare it to the report.

Admitted inventory control issues. It was undisputed that some of the custodian’s inventory reports were inconsistent with the physical counts. He estimated during his deposition that he made “five” or “six” “mistakes with inventory control,” which he attributed to “human error.” And he acknowledged that the manager admonished him on “several” occasions for “missing” inventory.

Unwarranted? Although the employee acknowledged that he was blameworthy for some of the inventory issues, he claimed that the written reprimands were unwarranted because the manager failed to “make an effort of investigating the reason why” the discrepancies arose. He believed that at least some of the inventory mistakes were attributable to other employees who also had access to the supply warehouse. Despite the custodian expressing these concerns, the manager allegedly continued to maintain that the custodian was solely to blame.

Grudge? According to the custodian, the manager began unfairly scrutinizing his work performance because the manager held “a grudge against [him].” When asked to explain the source of this “grudge,” the custodian claimed during his deposition that the manager became upset with him because the manager had to mediate a dispute between the custodian and another employee in December 2019. After meeting with the custodian and the other employee, the manager told the custodian he was being transferred to another STC campus “to cool things off.” The custodian thought this was unfair because he was “not the one that caused the problem,” but the manager insisted that he should be the one to transfer.

Stressed. At some point, the custodian told the manager that he was “feel[ing] stressed and stuff like that,” and the manager encouraged him to see a doctor.

Harassed? Sometime after that, the custodian called STC’s HR department and reported that he “was feeling harassed” and that the manager “was causing [a] hostile environment[].” He asked for medical leave because he was feeling “pressured by [[the manager]],” and said this “pressure” was negatively affecting his health, including his diabetes. He said that the manager knew that he was diabetic but denied that he was harassing him “because of” his condition, acknowledging instead that it was “because of the inventory problems.”

Medical leave granted. STC granted the employee medical leave after his doctor provided a medical certification.

“Why don’t you retire?” According to the custodian, the “week” he returned to work, the manager then asked him “several times,” “Why don’t you retire?” and “When are you going to retire?” The custodian testified that he had “no idea” why the manager said that to him, but he suspected that the manager “had something coming up” because another employee had previously warned him that the manager was “trying to fire [him].”

Termination. Another inventory discrepancy arose on August 3, 2020. According to an internal email written by the manager, the custodian blamed others instead of taking responsibility, as he had done in the past. The manager provided him the opportunity to provide a written response, which he did, and thereafter recommended his termination.

The recommendation was reviewed and approved by several senior administrators over the next couple of months. STC’s then-president made the final decision to terminate him on October 9, 2020.

Replacement. The custodian was replaced by a woman he described as being one or two years younger than he was. He agreed that she, who was also a long-time custodian at STC, was qualified for the position of lead custodian.

Decision below and appeal. Below, STC challenged the trial court’s subject matter jurisdiction through a no-evidence and traditional motion for summary judgment, which the trial court denied, and STC appealed, arguing that the custodian failed to establish a prima facie case for each of his claims, that he was terminated for a legitimate, nondiscriminatory, non-retaliatory reason, and that he failed to raise a genuine issue of material fact as to whether that reason was pretextual.

Age discrimination. The appeals court first found that the trial court erred by failing to dismiss the former custodian’s age discrimination claim. He failed to produce any evidence that he was replaced by someone “significantly younger,” having testified that he is one or two years older than his replacement. And there was also no evidence in the record that he was treated less favorably than others who were similarly situated but outside of his protected class. By his own admission, he made “five” or “six” “mistakes with inventory control” as lead custodian, but he did not identify any other lead custodian with a similar disciplinary record who was treated more favorably.

Disability discrimination. Having so admitted the series of inventory mistakes, the employee also failed to raise a genuine issue of material fact as to whether his termination for poor job performance was false. STC consistently maintained that he was terminated for poor job performance, it was undisputed that he received written warnings, including a “final warning,” about his inventory control issues, and he failed to offer any evidence that STC violated its disciplinary system. Finally, he expressly disclaimed in his deposition that his manager’s scrutiny of his job performance was “because of” his diabetes, which would be necessary to show causation.

Retaliation. Next, the trial court erred in failing to dismiss his retaliation claim.

The employee generally alleged in his affidavit that he made a complaint to the HR department “about the discriminatory treatment that [he] was recieving [sic] from Mr. [manager],” but he did not go into any detail about what he reported. Similarly, the custodian generally testified in his deposition that he reported to HR about “feeling harassed” and that the manager “was causing [a] hostile environment[].” He also asked for medical leave because he was feeling “pressured by [[the manager]],” and this “pressure” was negatively affecting his health. This evidence, concluded the appeals court, was insufficient to establish that he put the employer on notice that he reasonably believed the manager was mistreating him because of his age or alleged disabilities.

HWE claim. Finally, his hostile work environment (HWE) claims were also insufficient. Most of his allegations concerned the manager criticizing the quality of his work, but criticism of an employee’s work performance and careful monitoring of job performance typically do not amount to a HWE, observed the court. Similarly, “heightened scrutiny of an employee by a supervisor” generally cannot “support a hostile work environment claim.” The custodian acknowledged responsibility for “five” or “six” “mistakes with inventory control,” which meant the manager’s criticism of his job performance in those instances was warranted.

The appeals court accordingly reversed and rendered a judgment of dismissal for want of jurisdiction.

The case is No. 13-24-00049-CV.

Judge: Cron, J.

Attorneys: Eduardo C. Robreno (Garza LLP) for South Texas College. Adam Poncio (Law Offices of Adam Poncio) for Daniel Fuentes.

Companies: South Texas College

Cases: AgeDiscrimination DisabilityDiscrimination Discrimination Discharge TexasNews