Court of Appeals of Texas, Eighth District, El Paso
from the 120th District Court of El Paso County, Texas (TC#
Rodriguez, J., Palafox, J., and Larsen, Senior Judge Larsen,
Senior Judge (Sitting by Assignment)
T. RODRIGUEZ, Justice
Texas Tech University Health Sciences Center-El Paso
(TTUHSC-EP) appeals the trial court's denial of a plea to
the jurisdiction seeking dismissal of an age discrimination
suit brought by Texas Tech employee Loretta K. Flores. We
was born in 1956. She first started her employment with Texas
Tech in 1993, when the El Paso Health Sciences Center served
as a regional campus for Texas Tech's medical school in
Lubbock. Beginning as a medical secretary, Flores held
multiple positions within the Health Sciences Center and was
eventually assigned in 1997 to be the Executive Associate for
Dr. Jose Manuel De La Rosa, regional dean of the El Paso
campus. While working at Texas Tech, Flores received her
bachelor's degree from the University of Phoenix, and in
2013, she received her master's degree in business
administration from the University of Texas at El Paso.
2007, Flores was reclassified to the position of Director,
with Dr. De La Rosa remaining as her direct supervisor. At
deposition, Flores testified that she and Dr. De La Rosa
worked well together, that they got things accomplished, and
that she was loyal to Texas Tech and respected the
institution. Dr. De La Rosa praised her work in the position.
2013, TTUHSC-EP opened up the Paul L. Foster School of
Medicine and became a separate, standalone university within
the greater Texas Tech University System. The Texas Tech
Board of Regents selected Dr. Richard Lange to be founding
president of the new university and medical school. Dr. Lange
began working as university president on July 1, 2014. As
part of the transition from Dr. De La Rosa's
administration to Dr. Lange, Dr. De La Rosa's title
remained in flux until he was eventually named as the
university's provost on November 1, 2014. During the
transition period, Flores continued serving as director and
supported both Dr. Lange and Dr. De La Rosa. She received a
merit-based pay raise in September 2014.
respect to specific tasks, Flores testified at deposition
that she assisted Dr. Lange with hiring the head of the
Department of Institutional Advancement, and she assisted Dr.
De La Rosa with other tasks. Flores testified that she
entrusted Vanessa Solis with Dr. De La Rosa's calendar
and his day-to-day activities. Flores took care of Dr.
Lange's calendaring duty. However, at some point, Dr.
Lange took calendaring duty away from Flores. She testified
she did not recall the specific date that duty was taken away
and that this occurred without any explanation. Flores also
used to send out thirty-day notices for agenda items from the
dean before a board of regents meeting. That duty was
ultimately reassigned to Solis.
January 13, 2015, the human resources department prepared a
job description for the newly-created assistant to the
president position; Dr. Lange testified at deposition that it
was possible this was done at his direction. A job
description for the newly-created position of assistant to
the president was posted publicly March 1, 2015. Dr. Lange
decided to hire Vanessa Solis for the assistant position. Dr.
Lange hired Solis without interviewing any other applicants,
and he testified that he may have made the decision to hire
Solis in either January or February, but could not remember
specifics. Solis accepted the position on March 27, 2015.
Solis, who was born in 1978, had been previously employed as
an executive associate in the dean's office being
supervised first by Flores and Dr. De La Rosa and then by
Flores and Dr. Lange. Flores had originally hired Solis for
the executive associate position several years prior. As a
result of the reclassification, Solis received a raise in
2015, Dr. Lange called Flores into his office and informed
her that she would no longer be classified as a director,
that her job title and salary would change, and that she
would no longer be working with him but instead solely with
Dr. De La Rosa. According to Flores, when Dr. Lange informed
Flores about her reclassification, Dr. Lange told her that he
did not want her to retire.
date of Flores' reclassification was August 1, 2015. Dr.
Lange testified that he made the decision to have her work
exclusively for Dr. De La Rosa, but that it was the HR
department that decided her job description and
classification level. Following her reclassification, Flores
worked exclusively for Dr. De La Rosa in the Provost's
Office under the title of Executive Associate. Her salary,
which exceeded $85, 000 when she held the position of
director, was lowered to $64, 000 when she was reclassified
as Dr. De La Rosa's Executive Associate, although Dr.
Lange stated in an affidavit that $64, 000 was the maximum
salary allowed for that position's salary range. As an
Executive Associate, Flores made a higher salary than Solis,
who was paid $58, 291.44. Dr. Lange testified at deposition
that some of the duties that Flores performed for him were
taken over by Solis. Dr. Lange testified that he told Dr. De
La Rosa that Flores should continue to work for Dr. De La
Rosa because she and him worked well as a team and because
Dr. Lange wanted Solis for his position because he thought
that she had a better skillset.
La Rosa testified that at the Provost's Office, he
delegated multiple assignments to Flores, ranging from simple
assignments like coordinating his calendar to complex
assignments like looking into initiating the accreditation
process and hiring decisions. He further testified that his
"style" was "to delegate to Loretta, and she
basically runs the - runs the hoop to get things
the period for which she worked in the Director position,
Flores received performance evaluations that rated her in
different categories using a scale from 1 to 7. A score of 4
meant the worker "meets expectations," a score of 5
meant the worker was "occasionally above
expectation," a score of 6 meant the worker was
"frequently above expectation," and a score of 7
meant the worker was "always above expectations."
In March 2014, Flores received an overall evaluation score of
5.74. In March 2015, Flores scored 6.10 overall. In February
2016, her overall evaluation score was 6.16. At deposition,
Dr. De La Rosa admitted that he had input into the decision
of Dr. Lange, and that he had told Dr. Lange that he did not
think Dr. Lange and Flores "would make a good fit."
issue, Texas Tech maintains that the trial court improperly
denied the university's plea to the jurisdiction. We
and Scope of Review
to the jurisdiction may challenge the jurisdictional
sufficiency of the pleadings, the facts, or both. Alamo
Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770
(Tex. 2018). Where a plea to the jurisdiction challenges only
the substance of the pleadings, we look to see if the
plaintiff has "alleged facts affirmatively demonstrating
subject-matter jurisdiction." Id. But if the
plea to the jurisdiction is aimed at 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."
Id. at 770-71.
Texas Tech's plea to the jurisdiction challenged the
existence of jurisdictional facts sufficient to demonstrate a
colorable age discrimination claim and, by extension, waiver
of sovereign or governmental immunity. Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex.
2012)(TCHRA waives sovereign immunity). When the merits of a
claim and the existence of subject-matter jurisdiction by
virtue of an immunity waiver are intertwined and an agency
brings forth its own jurisdictional evidence purportedly
defeating subject-matter jurisdiction, we review a plea to
the jurisdiction decision under the same standard of review
used for summary judgments. Alamo Heights, 544
S.W.3d at 771. To avoid dismissal under this standard, a
plaintiff must raise at least a genuine issue of material
fact to overcome the challenge to subject-matter
jurisdiction. Id. "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[, ]" though "we cannot disregard evidence
necessary to show context, and we cannot disregard evidence
and inferences unfavorable to the plaintiff if reasonable
jurors could not." Id.
employment cases, the McDonnell
Douglas burden-shifting framework guides our
analysis. Under McDonnell Douglas, an employee must
show a prima facie case of discrimination.
Id. at 782. Once the employee makes a prima
facie case, the burden shifts to the employer to provide
a non-discriminatory reason for the employment action.
Id. If the employer can offer a non-discriminatory
reason, the burden shifts back to the employee to show that
the ostensibly non-discriminatory reason for the employment
action was pretextual. Id. The employee must also
show that discrimination was a motivating factor for the
employment action, though not necessarily the sole factor.
See Michael v. City of Dallas, 314 S.W.3d 687, 691
(Tex.App.-Dallas 2010, no pet.)(plaintiff must show either
that (1) stated reason was pretextual or (2) defendant's
reasons, while true, was only one reason for its conduct and
discrimination was another, also known as a mixed motive
level of evidence necessary for a plaintiff to survive a plea
to the jurisdiction hinges on which stage of the
McDonnell Douglas framework the defendant challenges
as being insufficiently proven. "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." Alamo
Heights, 544 S.W.3d at 783. But if "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." Id. Notably,
a plaintiff suing a governmental entity for age
discrimination is not required to prove her case in its
entirety in order to survive a plea to the jurisdiction;
rather, the plaintiff must simply show there are fact issues
ripe for jury resolution at each challenged McDonnell
Douglas stage, be it the prima facie case or
causation. See id.
TCHRA prohibits age discrimination:
An employer commits an unlawful employment practice if
because of . . . age 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 ...