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Texas Tech University Health Sciences-El Paso v. Flores

Court of Appeals of Texas, Eighth District, El Paso

July 26, 2019


          Appeal from the 120th District Court of El Paso County, Texas (TC# 2016-DCV3024)

          Before Rodriguez, J., Palafox, J., and Larsen, Senior Judge Larsen, Senior Judge (Sitting by Assignment)


          YVONNE T. RODRIGUEZ, Justice

         The 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 will affirm.


         Flores 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.

         In 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.

         In May 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.

         With 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.

         On 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 pay.

         In May 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.

         The 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.

         Dr. De 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 accomplished."

         During 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."


         In one issue, Texas Tech maintains that the trial court improperly denied the university's plea to the jurisdiction. We disagree.

         Standard and Scope of Review

         A plea 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.

         Here, 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.

         In employment cases, the McDonnell Douglas[1] 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 case).

         The 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.[2] See id.

         Applicable Law

         The 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 ...

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