Texas Tech University Health Sciences Center El Paso v. Loretta K. Flores

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEXAS TECH UNIVERSITY HEALTH § No. 08-20-00202-CV

SCIENCES CENTER-EL PASO,

§ Appeal from the

Appellant,

v. § 210th Judicial District Court

LORETTA K. FLORES, § of El Paso County, Texas

Appellee. § (TC# 2017DCV3974)

OPINION

Texas Tech University Health Sciences Center-El Paso (Texas Tech) appeals the trial

court’s denial of a plea to the jurisdiction seeking dismissal of age discrimination and retaliation

claim brought by employee Loretta K. Flores. We affirm the trial court’s decision as to the age

discrimination claim and reverse and render as to the retaliation claim.

BACKGROUND

Flores was born in 1956 and began working at Texas Tech in 1993 as a temporary medical

secretary when Texas Tech was still a regional campus of the Texas Tech University Health

Sciences Center School of Medicine in Lubbock. Flores held several subsequent positions—

assistant to the family medicine department chair, coordinator in the pediatrics department for the

department chair, executive associate in the dean’s office—before becoming a director in the

dean’s office in 2007 under Dr. Manuel De La Rosa when Texas Tech became a four-year medical

school. In that position, Flores took on a considerable amount of responsibility, worked long hours,

and performed well in her job. In 2013, Texas Tech became a stand-alone university within the

larger Tech system. Flores’ best job evaluations as a director were issued after Dr. Lange became

the Texas Tech president in July 2014. From July 2014 until May 2015, Flores retained her director

position under Lange, assisting both him and De La Rosa, including supporting De La Rosa in his

new capacity as provost effective November 2014.

In May 2015, Lange informed Flores her job title was going to change, her salary was

going to be reduced, and she was going to be working exclusively with De La Rosa. Flores returned

to an executive associate position created by Lange, which was a position she held almost two

decades before. Flores was placed at the top of the executive associate pay scale at $64,000,

substantially less than her director pay. Being a more “hands-on” leader, Lange decided he required

an assistant position rather than a director position for his office. Lange placed a much younger

employee than Flores in his office as his assistant and then began requiring Flores to report to her.

Flores had previously hired this employee into an executive associate position in the dean’s office.

After Flores asked, Lange did not provide any reason for the change in jobs or decrease in

pay except to say that it was a reclassification, and the pay was based on her new job

responsibilities. Flores complained of age discrimination, perceiving that younger employees were

being treated more favorably and believing Lange had replaced her with a younger employee.

Flores complained first through the internal Texas Tech grievance process. Dawn Payne, Associate

Managing Director of the Texas Tech equal employment opportunity office (EEOC) whose

responsibilities include investigating employee complaints, received Flores’ internal complaint but

did not question Lange, investigate the complaint, or communicate about it with anyone except

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Flores. Flores then filed an age discrimination charge with the EEOC in August 2015, which Payne

investigated. Flores ultimately filed a lawsuit against Texas Tech for age discrimination, which the

Texas Supreme Court dismissed for want of jurisdiction.1

In July 2016, Lange created a new chief of staff position in his office to help oversee special

projects, including budget administration; to be a liaison between the president and internal and

external constituencies; and to handle other matters in his office. The job description for his chief

of staff position was very similar to Flores’ former director position under De La Rosa, but the

chief of staff would also oversee the president’s office scholarships, administer their budgets, and

collaborate with institutional advancement to develop sustainability plans for scholarship funds.

Even though the scholarships functions were not listed in Flores’ former director position, Lange

testified that he knew Flores had handled scholarships when she was a director. The president’s

chief of staff position and Flores’ former director position both required education beyond an

undergraduate degree and at least ten years of experience in increasing management responsibility

in complex organizations. Lange testified he did not recall how he arrived at the chief of staff job

description, but he stated he created it from scratch.

Before the new chief of staff position was established, Lange told thirty-seven-year-old

Texas Tech office of auditing services director, Amy Sanchez, the position was upcoming. Lange

told Sanchez he wanted her to apply for it after Sanchez informed Lange she was leaving Texas

Tech to pursue other opportunities. Lange did not encourage anyone else to apply. While Sanchez

is over 20 years younger than Flores, Lange testified he could not tell who was older or younger.

1

The Court dismissed the claim for Flores’ failure to establish the last element of a prima facie case: namely that she

was either replaced by someone much younger or treated less favorably than younger, similarly-situated employees.

Texas Tech. Univ. Health Scis.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020). The Court found Flores’ previous

director position was sufficiently different from the new president’s assistant position and concluded she was not

replaced by someone significantly younger. Id. at 308. The Court further concluded that Flores and the younger

employee were not similarly situated thus Flores was not treated less favorably. Id. at 312.

3

Lange disseminated the new position listing as a “confidential posting” stating he had no idea what

that meant. Lange instructed Texas Tech human resources to post the position for internal and

external applicants. When the chief of staff position opened, several external candidates applied.

Internally, Sanchez applied for it by submitting an application and curriculum vitae (C.V.). Flores

applied for the position as well, submitting along with her application and C.V., five letters of

recommendation for the position. The recommendations from Texas Tech leaders were as follows:

1. Manuel De La Rosa, Provost: In De La Rosa’s recommendation letter, he

praised Flores for excelling at the duties listed in the chief of staff position,

noting she was “particularly adept at investigating, analyzing, and studying

information affecting inter-departmental operations” and that she was “an

excellent communicator and a font of knowledge of operating policies for

TTUHSC and the TTU system.” He said the chief of staff position and her

previous director position showed a “perfect alignment between her prior

experience and this position.” De La Rosa provided Flores with his “unreserved

and highest recommendation.”

2. Bryce McGregor, Executive Associate Dean for Administration and Chief of

Staff, Dean’s Office, Texas Tech University Health Sciences Center: In

McGregor’s recommendation letter, he stated Flores “exemplifies the

characteristic and has the experience an executive can count on to get the job

done and done right,” “epitomize[s] true, highly moral and ethical values,” and

he could “think of no one better to recommend” for the chief of staff position,

praising her as hardworking, diplomatic, tactful, intelligent, and possessing a

wide range of abilities, skills, and knowledge of the university.

3. Maureen Francis, Assistant Dean for Medical Education: In Francis’s

recommendation letter, she attested to Flores’ work on special projects, praising

Flores’ communication and interpersonal skills, professional demeanor, strong

work ethic, ability to take a project from idea to completion, and organizational

skills. Francis further stated Flores “is meticulous with budgeting and tracking

expenses,” having helped Francis manage a complicated grant budget promptly

and with precision. Francis could “think of no one more qualified to serve as

Chief of Staff.”

4. Didit Martinez, Chief of Staff, Office of the President of Texas Tech University

Health Sciences Center: In Martinez’s recommendation letter, she discussed

working with Flores on innumerable projects since 2008 and noted Flores’

dedication to detail, determination to see tasks through to the end, strong work

ethic, high moral fiber, positive attitude and ability to work with others.

Martinez described Flores as fully committed to Texas Tech and El Paso and

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Flores is one to put in long hours to get assignments entrusted to her completed

on time.

5. David Porras, Business Manager, UTEP Student Health Center: In Porras’s

recommendation letter, he explained he had worked closely with Flores on

complicated projects when she was a director. Porras stated he witnessed her

meet “every challenge, deadline, and goal presented,” she “tackled every

problem with grace and ease,” her actions “consistently inspired and motivated

employees,” she was hardworking and responsible, and had remarkable talents

for business, management, and communication.

Lange interviewed Sanchez and Flores for the chief of staff position. At the time of his

interview with Flores, Lange was aware that she had filed an age discrimination complaint

internally and with the EEOC and considered it to be the “elephant in the room” during the

interview. Although Lange testified he knew Flores’ age, he asked her how old she was during the

chief of staff job interview. Lange testified he told Flores it was “important to talk about it” but

her age did not matter and had no bearing on the interview. Flores testified Lange did not tell her

age did not matter. The only other comment Lange made to Flores regarding age was a year earlier

when Lange asked about her age and mentioned he did not want her to retire. When Lange

interviewed Sanchez, he did not ask her how old she was or how long she expected to work.

Lange chose Sanchez for the position at the beginning of August 2016, and she started later

that month. Lange was the sole decision maker; he did not discuss his decision with anyone prior

to making it. Texas Tech produced no documentation reflecting how Lange chose Sanchez over

Flores besides Lange’s subsequent March 2019 affidavit produced in the litigation context. In

December 2016, Flores complained of age discrimination as well as retaliation for having filed her

2015 EEOC age discrimination charge.

In his March 2019 affidavit, Lange stated he “lacked confidence in certain of [Flores’]

competencies, such as grant management, auditing, budgeting, and her ability to follow

instructions and receive constructive feedback.” In the same affidavit, Lange stated “[n]either Ms.

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Flores’ 2015 Charge, nor her age, had anything to do with [his] decision to not select Ms. Flores

for the Chief of Staff position. Ms. Sanchez was simply the better qualified candidate—mostly

because of her auditing and accounting background and skillset, and broad range of experience.”

There is no evidence in the record Lange had ever criticized Flores’ performance or questioned

her abilities before Flores complained of age discrimination.

During his June 2019 deposition, Lange asserted Sanchez was better qualified because she

had more experience in “areas [he] was most interested in,” namely business, audits, grants, and

finances as “broad categories” that “ in the general things of assisting the president.” Yet those

areas were not identified within the essential job function parameters in the position Lange himself

created. Lange asserted during her interview, Flores “confirmed that she did not feel comfortable

or have experience in” the areas of business, accounting, and audits. He further claimed she had

“an experience poorly managing grants.” There is no other evidence or documentation in the record

to that end.

DISCUSSION

Issues

In four issues, Texas Tech maintains the trial court improperly denied its plea to the

jurisdiction as to Flores’ age discrimination and retaliation claim. We disagree as to Flores’ age

discrimination claim but agree regarding Flores’ retaliation claim.

Applicable Law

The Texas Commission on Human Rights Act (TCHRA) prohibits employers from

discriminating against employees and applicants on the basis of age. TEX.LAB.CODE ANN.

§ 21.051.

An employer commits an unlawful employment practice if because of . . . age the

employer:

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(1) fails or refuses to hire an individual, discharges an individual, or discriminates

in any other manner against an individual in connection with compensation or

the terms, conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a

manner that would deprive or tend to deprive an individual of any employment

opportunity or adversely affect in any other manner the status of an employee.

Id. § 21.051(1)-(2). The TCHRA also protects employees against retaliation for reporting or

opposing discrimination:

An employer, labor union, or employment agency commits an unlawful employment

practice if the employer, labor union, or employment agency retaliates or discriminates

against a person who, under this chapter:

(1) opposes a discriminatory practice;

(2) makes or files a charge;

(3) files a complaint; or

(4) testifies, assists, or participates in any manner in an investigation, proceeding,

or hearing.

Id. § 21.055. The underlying discrimination claim need not be substantiated to protect an employee

against retaliation for making the claim; the employee need only reasonably believe in good faith

that the conduct complained of was discriminatory. Byers v. Dallas Morning News, Inc., 209 F.3d

419, 428 (5th Cir. 2000); Vadie v. Mississippi State Univ., 218 F.3d 365, 374 n.24 (5th Cir. 2000).

We look to both federal and state precedent to guide our decision making and interpretation of the

TCHRA, which exists to “provide for the execution of the policies of Title VII of the Civil Rights

Act of 1964 and its subsequent amendments.” TEX.LAB.CODE ANN. § 21.001(1); Bowen v. El Paso

Elec. Co., 49 S.W.3d 902, 908 (Tex.App.—El Paso 2001, pet. denied); Caballero v. Cent. Power

& Light Co., 858 S.W.2d 359, 361 (Tex. 1993).

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Standard and Scope of Review

We review the trial court’s ruling on Texas Tech’s jurisdictional plea de novo. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In this instance, as a

governmental entity, Texas Tech has immunity against suit under the Texas Commission on

Human Rights Act (TCHRA) unless Flores can state a claim for conduct that violates the statute.

Univ. of Tex. Health Sci. Ctr. at Hous. v. Rios, 542 S.W.3d 530, 532 n.4 (Tex. 2017); Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). Here, Texas Tech challenges

the existence of jurisdictional facts sufficient to waive its sovereign immunity under the TCHRA.

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012).

At this stage, Flores need not prove her entire case on the merits. 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. Alamo Heights, 544 S.W.3d at 785-86. “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.”

Id. at 771. At the same time, we cannot disregard unfavorable inferences to her where a rational

fact finder could not do so. Id.

Waiving governmental immunity in a TCHRA claim necessarily implicates the facts of the

case and does so at a stage in the case where the parties have not yet fully engaged in the discovery

process. To avoid dismissal of her claim for lack of jurisdiction, a plaintiff must raise a genuine

issue of material fact in the context of the three-part McDonnell Douglas burden-shifting

framework. Alamo Heights, 544 S.W.3d at 770-71 and 782; see underlying framework at

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If Flores can show a prima

facie case, the burden shifts to Texas Tech to articulate a nondiscriminatory/nonretaliatory reason

8

for its action. Alamo Heights, 544 S.W.3d at 782. If Texas Tech can articulate such a reason, the

burden shifts back to Flores. Id. at 770-71 and 782; Apache Corp. v. Davis, 627 S.W.3d 324, 325-

26 (Tex. 2021). For her age discrimination claim, she must raise a genuine issue of material fact

that Texas Tech’s proffered reason for the action was pretextual. Alamo Heights, 544 S.W.3d at

770-71 and 782; Apache Corp. v. Davis, 627 S.W.3d at 325-26. For her retaliation claim, Flores

must raise a genuine issue of material fact that the protected activity was the but-for cause of the

adverse action. Alamo Heights, 544 S.W.3d at 770-71 and 782; Apache Corp. v. Davis, 627 S.W.3d

at 325-26.

AGE DISCRIMINATION CLAIM

Prima Facie Case

To establish a prima facie case of age discrimination, Flores must show that: (1) she was

not hired for the position she applied for; (2) she was qualified for the position; (3) she was a

member of a protected class; and (4) someone younger was hired for the position. Tex. Dep’t of

Aging & Disability Services v. Lagunas, 546 S.W.3d 239, 251 (Tex.App.—El Paso, 2017, no pet.).

We find Flores meets her prima facie case. She was not hired for the chief of staff position,

but was qualified for the position, and she was over 40 years of age at the time. Further, Sanchez,

who was hired as chief of staff, was under 40 years old and more than 20 years younger than

Flores.

Proffered Nondiscriminatory Reason for Nonselection

Once the employee establishes a prima facie case of age discrimination, the burden shifts

to the employer to articulate a nondiscriminatory reason for the adverse action. Moreno v. Texas

Dep’t of Transp., 440 S.W.3d 889, 895 (Tex.App.—El Paso 2013, pet. denied). In the present case,

Texas Tech meets this burden of production through Lange’s testimony that Ms. Flores’ age had

9

nothing to do with her nonselection, but “Ms. Sanchez was simply the better qualified candidate—

mostly because of her auditing and accounting background and skillset, and broad range of

experience.”

Showing of Pretext or Discrimination as a Motivating Factor

Once the employer proffers a nondiscriminatory reason for its action, the employee must

show the stated reason was a mere pretext for age discrimination. Id. In Reeves, the U.S. Supreme

Court determined that Reeves’s indirect evidence of pretext, consisting solely of discrediting his

employer’s proffered nondiscriminatory reason for the adverse action, was sufficient to sustain the

jury’s finding of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 146-47 (2000). The Supreme Court explained that the court of appeals had misconceived

the plaintiff’s burden of proving discrimination by “proceed[ing] from the assumption that a prima

facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve

the defendant’s legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of

law to sustain a jury’s finding of intentional discrimination.” Id. at 146. Referencing its earlier

decision in St. Mary’s Honor Center, the Court explained that a jury may infer intentional

discrimination from the employer’s discredited reason for the adverse action. Id. at 147 (stating

“[p]roof that the defendant’s explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination, and it may be quite

persuasive.”); see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993).

In the present case, Flores can show pretext for age discrimination in one of three ways:

(1) by direct evidence showing that her age was a motivating factor in Lange’s decision not to

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select Flores for the chief of staff position;2 (2) that Flores was clearly better qualified for the chief

of staff position;3 or (3) that Lange’s proffered reason for the nonselection is “false or ‘unworthy

of credence,’”4 in which case a fact finder may conclude the employer unlawfully discriminated.

Reeves, 530 U.S. at 148. A plaintiff need not produce separate evidence of discrimination per se.

Id. at 149. In Quantum Chemical, the Texas Supreme Court followed U.S. Supreme Court

precedent in Reeves, stating “[p]roving that the employer’s stated reason for the firing is pretext is

ordinarily sufficient to permit the trier of fact to find the employer was actually motivated by

discrimination.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481-82 (Tex. 2001). Several

of our sister courts have similarly opined.5

Flores did not provide direct evidence showing Lange was motivated by age discrimination

in his decision making. And while Texas Tech correctly asserts “employers are generally free to

weigh the qualifications of prospective employees, so long as they are not motivated by [age],”6

Flores did not endeavor to prove that she was clearly more qualified than Sanchez. Instead, she

called into question Lange’s proffered reasons for her nonselection.

2

TEX.LAB.CODE ANN. § 21.125(a); see Reeves, 530 U.S. at 146; see also Michael v. City of Dallas, 314 S.W.3d 687,

691 (Tex.App.—Dallas 2010, no pet.)(plaintiff failed to show a prima facie case on the City’s summary judgment

motion).

3

Roberson-King v. La. Workforce Comm’n, 904 F.3d 377, 381 (5th Cir. 2018)(explaining the plaintiff cannot just be

as qualified or merely better when proving pretext through this route).

4

Roberson-King, 904 F.3d at 381 (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)(quoting Wallace v.

Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001); Stennett v. Tupelo Pub. Sch. Dist., 619 Fed.Appx. 310, 316

(referencing Patterson v. McLean Credit Union, 491 U.S. 164, 187-89 (1989)) superseded on other grounds by

statutes, Civil Rights Act of 1991, 42 U.S.C. § 1983.

5

See, e.g., Jefferson County v. Davis, No. 14-13-00663-CV, 2014 WL 4262184, at *7 (Tex.App.—Houston [14th

Dist.] Aug. 28 2014, pet. denied)(mem. op.)(inferring age as a motivating factor when considering evidence of pretext

in the context of other references to age); Dell, Inc. v. Wise, 424 S.W.3d 100, 112 (Tex.App.—Eastland 2013, no

pet.)(stating evidence that an employer is pleased with an employee’s work performance supports a finding of pretext

when that evidence contradicts the reason given by the employer of poor performance); see also White v. Schlumberger

Ltd., No. 01-05-00685-CV, 2006 WL 948074, at *4 (Tex.App.—Houston [1st Dist.] Apr. 13, 2006, no pet.)(mem.

op.)(reinforcing that employer is entitled to summary judgment if plaintiff creates only a weak issue of fact but

employer proffers abundant uncontroverted independent evidence that no discrimination had occurred, citing Reeves,

530 U.S. at 148).

6

Martinez v. Tex. Workforce Comm’n, 775 F.3d 685, 688 (5th Cir. 2014).

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The Laxton court explained the parameters of this analysis: “Our concern is whether the

evidence supports an inference that [the employer] intentionally discriminated against [the

employee], an inference that can be drawn if its proffered reason was not the real reason for [the

adverse action]. Therefore, to survive [the employer’s] motion for judgment as a matter of law,

[the employee] must produce evidence permitting the jury to disbelieve that [the employer’s]

proffered reason was its true motivation.” Laxton v. Gap Inc., 333 F.3d 572, 579–80 (5th Cir.

2003).

If a rational jury could find Texas Tech’s explanation for not selecting Flores for the chief

of staff position was pretextual based on a genuine issue of material fact calling into question

Lange’s credibility and his proffered reasons, since he carried the exclusive, unquestioned

authority over Texas Tech’s decision not to select Flores for the chief of staff position, then Texas

Tech is not entitled to immunity. See, e.g., Reeves, 530 U.S. at 148.

When considering the record as a whole, Flores argues that a rational fact finder could

reasonably reject as pretextual Texas Tech’s position Lange “honestly believed Sanchez to be

better qualified.” First, Flores provided evidence showing she was eminently qualified for the chief

of staff position, she had vast experience performing the same functions, and she did so very well—

even while working under Lange. Second, after Flores complained of age discrimination, Lange

mentioned concerns over Flores’ competencies. Third, Lange’s reason for considering Sanchez

more qualified for the position was inconsistent with his proffered documentation to establish what

the position required. Fourth, Lange told Sanchez about the position before it was created and

encouraged her to apply. Lange testified he did not know Sanchez was younger than Flores. Flores

is more than 20 years older than Sanchez. Lange testified he knew Flores’ age—she was the same

age as Lange. Fifth, Lange testified age had nothing to do with his decision, but he admitted he

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had Flores’ age discrimination complaint on his mind when he asked what Flores’ age was during

the chief of staff interview despite knowing it and telling her it did not matter. Flores did not recall

that interview the same way; she testified Lange did not say age did not matter and she did not

answer when he asked about her age. The evidence is further articulated below.

• Flores provided evidence showing she had vast experience performing the chief of staff

functions when Dr. De La Rosa attested to the “perfect alignment” between Flores’

experience and the chief of staff position functions. Lange testified he created the job

description for his new chief of staff position; he did not recall how he created it, only that

he created it “from scratch.” Its description, major functions, and qualifications are almost

identical to those of Flores’ previous director position. The difference in job functions

listed between the director and chief of staff positions, i.e., those pertaining to scholarships,

was something Lange testified to being aware of Flores having done as a director despite

not being listed in the chief of staff job description.

• Flores had excellent reviews of her job performance when she was performing the director

functions. This is evidenced by her evaluations as well as the input of five recommenders

who worked with Flores in her capacity as a director and could attest to her skills and

abilities in terms of the director job duties. All five recommenders praised Ms. Flores’

ability to perform those functions.

• While Texas Tech claim Lange was not satisfied with Flores’ job performance as a director,

nowhere in the record are any such performance deficiencies or criticisms documented.

Flores was working for Lange during the time she received her most recent two evaluations

in her director position. And those two evaluations were her best in that position. The only

evidence to support Texas Tech’s claim is Lange’s own testimony, which is by its nature

self-interested. Lange never complained of concern over Flores’ “competencies” until after

she filed an age discrimination complaint, and he was defending against a lawsuit. There

is no contemporaneous documentation of any problems with or concerns over Flores’ work

or her competencies.7 Quite the opposite, the record shows she had an excellent work

record up to the point where she complained of age discrimination by Lange.

• Lange did not testify he based his decision on his purported concerns over Flores’

competencies, but instead, he stated Sanchez was more qualified than Flores because

Sanchez had more experience “in the areas [he] was most interested in”: namely “business,

audits, grants, and finances.” However, the areas of business, audits, grants, and finances

7

See, e.g., Laxton, 333 F.3d at 580-82; Evans v. City of Houston, 246 F.3d 344, 355-56 (5th Cir. 2001)(asserting that

Laxton’s showing of pretext by proffering evidence that employer’s allegations of her work deficiencies were not

accurate was sufficient to overcome summary judgment).

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were not listed to any degree on the job description for the chief of staff position—the job

description that Lange himself created from scratch.8

• Even before his chief of staff position was created, Lange told Sanchez about it and

encouraged her to apply. He testified he did not encourage anyone else to apply.

Texas Tech’s case rests on Lange’s position and his credibility, as he was the sole,

unquestioned decision maker on behalf of Texas Tech in this case. In Stennett, the court discussed

the opportunities subjective hiring criteria provide for discrimination “because the criteria itself

may be pretext for age discrimination.” Stennett v. Tupelo Pub. Sch. Dist., 619 Fed.Appx. 310, 322

(5th Cir. 2015) referencing Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001). Like

Flores, the employee in Stennett “illustrates how reliance upon subjective and previously

unmentioned or peripheral hiring criteria could help support a rational jury’s finding of pretext.”

Stennett, 619 Fed.Appx. at 322.

At this stage, Flores need not prove her entire case on the merits but must only raise a

genuine fact issue. See Alamo Heights, 544 S.W.3d at 785-86. “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.” Id. at 771. At the same

time, we cannot disregard unfavorable inferences to her where a rational fact finder could not do

so. Id.

Here, the record reveals legally sufficient evidence constituting genuine issues of material

fact calling Lange’s proffered reasons for the nonselection into question—issues for a fact finder

to determine. Based on the evidence as viewed in a light most favorable to Flores, without making

credibility determinations or weighing the evidence and without ignoring evidence that a jury

8

A rational jury could take “‘previously unmentioned’ job requirements” as a genuine issue of material fact of pretext,

especially in tandem with other evidence. See, e.g., Stennett, 619 Fed.Appx. at 322 (citing Moss v. BMC Software,

Inc., 610 F.3d 917, 926 (5th Cir. 2010)).

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could not ignore, we find that a reasonable fact finder could conclude that Lange’s proffered

reasons were pretextual and that age was at least a motivating factor in Texas Tech’s decision not

to select Flores for the chief of staff position. Appellant’s Issues Three and Four are overruled.

RETALIATION CLAIM

Prima Facie Case

To establish a prima facie case of retaliation, Flores must show that: (1) she engaged in

protected activity; (2) she experienced an adverse employment action; and (3) there was a causal

link between the two. Alamo Heights, 544 S.W.3d at 782; Medina, 238 F.3d at 684.

There is no dispute that Flores filed an age discrimination complaint both internally and

with the EEOC. It is also undisputed that Flores was not selected for the chief of staff position, for

which she applied and was qualified. However, Texas Tech argues Flores’ retaliation case fails for

a lack of a temporal connection between the filing of an age discrimination charge and the

nonselection, as just over a year passed between the time she first complained about age

discrimination and the nonselection. While a causal link is easily satisfied by a showing of close

temporal proximity between the protected activity and adverse action,9 the temporal connection is

not dispositive of whether the employer retaliated. See, e.g., Shirley v. Chrysler First, Inc., 970

F.2d 39, 43-44 (5th Cir. 1992); Univ. of Tex. at El Paso v. Esparza, 510 S.W.3d 147, 159

(Tex.App.—El Paso 2016, no pet.). An employee can establish a causal link when “the employer’s

decision . . . was based in part on knowledge of the employee’s protected activity” or that the

protected activity and the adverse action were “not wholly unrelated.” Medina, 238 F.3d at 684,

citing Sherrod v. American Airlines, Inc, 132 F.3d 1112, 1122 (5th Cir. 1998) then Simmons v.

Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985).

9

See Alamo Heights, 544 S.W.3d at 782.

15

The evidence in the record confirms the complaint was on Lange’s mind during the

selection process because Lange was well-aware of Flores’ age discrimination complaint when he

interviewed Flores for the chief of staff position; Lange said as much, calling it “the elephant in

the room” during the interview. He went so far as to address her age during the interview, although

there is an evidentiary dispute as to whether he told her that age did not matter. We hold this is

enough to show that Flores’ age discrimination complaint and the chief of staff selection process

were not completely unrelated, and for that reason Flores met her basic prima facie case burden

here.10

Proffered Nonretaliatory Reason

Once the employee establishes a prima facie case of retaliation, then the burden shifts to

the employer to articulate a nonretaliatory reason for the adverse action. Medina, 238 F.3d at 684

referencing Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996). In the present case,

Texas Tech meets this burden of production through Lange’s testimony that “Ms. Flores’ 2015

Charge . . . had [nothing] to do with [his] decision not to select Ms. Flores for the Chief of Staff

position. Ms. Sanchez was simply the better qualified candidate—mostly because of her auditing

and accounting background and skillset, and broad range of experience.”

Showing of But-For Causation

Because Texas Tech proffered a nondiscriminatory reason for the nonselection, Flores

must raise a genuine issue of material fact showing “the adverse action would not have occurred

‘but for’ the protected activity” to overcome governmental immunity. “The but-for causation

standard is significantly more difficult to prove than prima facie causation.” Alamo Heights, 544

10

See, e.g., McGrath-Malott v. Maryland, 565 F.Supp.2d 656, 671 (D. Md. 2008)(discussing that because employee’s

complaint was referenced in her supervisors’ notes at the time of their meeting, it was “clearly still on their minds” in

terms of the prima facie causal link element).

16

S.W.3d at 782; see also Apache Corp., 627 S.W.3d at 335. The employee does not have to prove

that filing the complaint was the sole reason the nonselection occurred when it did, but the causal

link is destroyed if the sole reasons for the nonselection are unrelated to filing the complaint. Texas

Dep’t of Human Services v. Hinds, 904 S.W.2d 629, 634, 637 (Tex. 1995); Office of Attorney

General v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020).

To help discern but-for causation in the absence of direct evidence, we may evaluate

circumstantial evidence (and reasonable inferences flowing from such evidence) regarding any or

all of the following factors: (1) knowledge of the complaint by Lange—the individual who made

the nonselection decision for Texas Tech; (2) whether Texas Tech had a negative attitude toward

Flores’ age discrimination complaint; (3) whether there was a failure on the part of Texas Tech to

follow its policies; (4) whether Flores suffered discriminatory treatment compared to similarly

situated employees; and (5) whether the proffered reason for the nonselection was false. Apache

Corp., 627 S.W.3d at 336 n.3 referencing Alamo Heights, 544 S.W.3d at 790; Continental Coffee

Products Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex. 1996). Depending on the case, some of

these Continental Coffee factors may be more probative than others; accordingly, the factors are

not simply to be applied and weighed equally in a mechanistic fashion. See Tex. Health & Human

Services Comm’n v. Enriquez, 642 S.W.3d 21, 32-33 (Tex.App.—El Paso 2021, no pet.)(citing

Apache Corp., 627 S.W.3d at 336-37). We may also consider the proximity in time between an

age discrimination complaint and the nonselection. See Echostar Satellite L.L.C. v. Aguilar, 394

S.W.3d 276, 288 (Tex.App.—El Paso 2012, pet. denied).

While Flores both established that Texas Tech had knowledge of her age discrimination

complaint at the time of the nonselection and raised a genuine issue of material fact as to the

17

credibility of Lange’s proffered reason for the nonselection, she was unable to present legally

sufficient evidence bearing on the other but-for causation analysis factors.

Flores did not draw a temporal nexus between her EEOC charge and her nonselection,

except that the nonselection took place approximately two months after Flores received her right

to sue notice from the EEOC. Flores provides no legal authority to support the notion that a

temporal connection between the issuance of an EEOC right to sue letter and her nonselection

bears on causation in a retaliation suit. Flores did not offer any concrete evidence to show that

Texas Tech had a negative attitude toward Flores’ age discrimination complaint, although she did

intimate a negative attitude on Lange’s part through his raising her age in the interview and in

Lange questioning certain “competencies” only after Flores complained. Flores suggested that

Texas Tech violated its policy of widely posting the chief of staff position because the position

was labeled “confidential posting.” However, this label is not enough to show that Texas Tech did

not follow its policies because Lange instructed human resources to post the position internally

and externally and the posting reached several external candidates who did apply. Flores did not

proffer any specific evidence to show that she suffered discriminatory treatment compared to

similarly situated employees. Taking the record as a whole, specifically in light of the Continental

Coffee factors, a rational jury could not conclude that Texas Tech would not have selected her at

that time but for Flores complaining of age discrimination. Appellant’s Issue Two is sustained.

CONCLUSION

The TCHRA has waived Texas Tech’s governmental immunity only regarding Flores’ age

discrimination claim. Appellant’s Issue One is sustained in part and overruled in part. The trial

court’s judgment is affirmed as to the denial of the plea to jurisdiction regarding Flores’ age

18

discrimination claim. We remand that claim to the trial court for further proceedings consistent

with this opinion.

However, Appellee did not establish claim of retaliation. Therefore, the trial court erred in

its denial of Appellant’s plea to jurisdiction regarding Flores’ retaliation claim. We reverse the

denial of the plea to jurisdiction and render granting of the plea to the jurisdiction as to Flores’

retaliation claim ONLY.

August 30, 2022

YVONNE T RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ

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