Opinion
22-0940
12-31-2024
Texas Tech University Health Sciences Center-El Paso, Petitioner, v. Loretta K. Flores, Respondent
Argued September 11, 2024
On Petition for Review from the Court of Appeals for the Eighth District of Texas
Justice Blacklock filed a concurring opinion, in which Justice Young joined.
Justice Young filed a concurring opinion.
OPINION
Debra H. Lehrmann, Justice
In this case, we consider whether a state university's immunity from suit has been waived with respect to an employee's age-discrimination claim. The employee applied to be the university president's chief of staff, and a significantly younger candidate was chosen for the position. The employee alleges she was not selected because of her age, in violation of Chapter 21 of the Texas Labor Code, while the university maintains the president simply hired the more qualified candidate. The question presented is whether a genuine issue of material fact exists as to whether the university's stated reasons for not giving the employee the chief-of-staff position were a mere pretext for discrimination. The university contends that the employee adduced no evidence of pretext and that Chapter 21 therefore does not waive the university's immunity from suit. We agree and hold that the court of appeals erred in affirming the trial court's denial of the university's plea to the jurisdiction with respect to the employee's age-discrimination claim. Accordingly, we reverse the court of appeals' judgment as to that claim and render judgment dismissing the case.
I. Background
This is Loretta Flores's second age-discrimination suit against her employer, Texas Tech University Health Sciences Center-El Paso. We begin with an abbreviated account of the facts underlying the first suit, which provide important context and are described in more detail in our opinion in Texas Tech University Health Sciences Center-El Paso v. Flores, 612 S.W.3d 299 (Tex. 2020) (Flores I).
A. Flores I
Flores has worked for the University since 1993. Until 2013, the University operated as a regional campus of the Texas Tech University School of Medicine. At that time, Flores served as director in charge of operations in the office of the regional dean, Dr. Jose Manuel de la Rosa. The school transitioned to a separate university within the Texas Tech University System, to be led by a president rather than a regional dean. Initially, Flores continued in her director position and supported both the interim president and Dr. de la Rosa.
The University hired Dr. Richard Lange as its first president in July 2014 and subsequently appointed Dr. de la Rosa as the University's provost and vice president of academic affairs. President Lange restructured the president's office to eliminate the director position and create an "assistant to the president" position that would involve more clerical, administrative duties. In March 2015, President Lange appointed Vanessa Solis, who had worked in the dean's office since 2010, to the assistant position. He informed Flores that she would be reassigned to the provost's office to continue working with Dr. de la Rosa. Based on her job duties after the transition, in August 2015 Flores was reclassified as an "executive associate," a position that commanded a lower salary than she had been receiving as director. She was fifty-nine years old.
Before her reassignment, Flores received a substantial raise in recognition of her service as director during the transition. Flores I, 612 S.W.3d at 303. Her new executive-associate salary, the maximum available for that position, was higher than her pre-raise salary as director but lower than her salary immediately before her reclassification. Id. at 303-04.
Flores filed a charge of discrimination with the Equal Employment Opportunity Commission. In August 2016, she sued the University for age discrimination under Chapter 21 of the Labor Code, alleging that she was "replaced" as director by the younger Solis, who was in her mid-thirties. Id. at 303-04. The trial court denied the University's plea to the jurisdiction, and the court of appeals affirmed. Id. at 304. We reversed and dismissed the case, holding that "a reasonable juror could not conclude that Solis took or was placed in Flores's former position as director in the president's office." Id. at 308. Rather, "the evidence establishe[d] only that President Lange restructured and reorganized the president's office, resulting in the elimination of Flores's director position and the creation of a new and different assistant-to-the-president position." Id. at 310. Further, Flores presented no evidence that she was treated less favorably than younger, similarly situated employees. Id. at 312.
Chapter 21's predecessor was enacted as the "Commission on Human Rights Act," in reference to the administering state agency. Commission on Human Rights Act, 68th Leg., 1st C.S., ch. 7, § 1.01, 1983 Tex. Gen. Laws 37, 37. In 2003, the Legislature transferred the powers and duties of the Commission on Human Rights to the Texas Workforce Commission. Act of June 1, 2003, 78th Leg., R.S., ch. 302, § 1, 2003 Tex. Gen. Laws 1279, 1279. Nevertheless, courts, including this Court, have sometimes continued to refer to Chapter 21 as the Texas Commission on Human Rights Act, or TCHRA. We now refer simply to Chapter 21.
B. Flores II
Meanwhile, in July 2016-almost a year after Flores submitted her EEOC complaint and shortly before she filed suit in Flores I- President Lange created a new "chief of staff" position in the president's office. The "essential functions" of the new position included:
• oversee presidential initiatives and special projects as directed by the president;
• serve as a liaison for the president to a variety of internal and external constituencies;
• gather, investigate, research, analyze, and study information affecting University-wide, intradepartmental, or interdepartmental operations;
• advise the president on issues related to University policy, process, and practice;
• handle questions, concerns, and requests on behalf of the president to solve problems and mediate disputes;
• oversee the president's office scholarships and administer their budgets;
• develop sustainability plans for scholarship funds;
• administer budget for special projects and onetime financial commitments of the president's funds;
• report on financial viability of commitments; and
• mentor the administrative staff in the president's office.
The position's "required qualifications" included a graduate degree and ten years of experience "in positions of increasing management responsibility in complex organizations."
Before the position was officially posted, President Lange learned that Amy Sanchez, the director of the University's office of auditing services, was considering leaving the University to pursue other opportunities. President Lange informed Sanchez about the upcoming position and encouraged her to apply.
Flores, Sanchez, and five external candidates applied for the chief-of-staff position. President Lange interviewed only Flores and Sanchez. At the time, he was aware of Flores's EEOC complaint regarding her reassignment and knew her age. Nevertheless, during Flores's interview, he asked her how old she was. According to President Lange, the question was a rhetorical one intended to address the "elephant in the room"-Flores's EEOC complaint. Flores did not answer the question.
The job posting for the position stated that it was a "confidential posting," but President Lange testified he did not know what that meant and he had not been involved in generating the document other than to forward the job description and requirements to the human-resources department. In any event, given that five external candidates applied for the position, we ascribe no significance to the "confidential posting" designation.
After interviewing Flores and Sanchez, President Lange hired Sanchez for the position. At the time, Flores was sixty years old, and Sanchez was thirty-seven. Flores submitted a second charge of discrimination to the EEOC and, after being issued a right-to-sue letter, filed her second lawsuit against the University under Chapter 21. Flores alleges that the failure to select her for the chief-of-staff position constitutes both age discrimination and retaliation for her earlier complaints about her reassignment.
As in Flores I, the University filed a plea to the jurisdiction, which the trial court denied. The court of appeals reversed in part and dismissed the retaliation claim, 657 S.W.3d 502, 517-18 (Tex. App.-El Paso 2022), and Flores does not challenge that portion of the court of appeals' judgment here. The court of appeals affirmed as to the discrimination claim, holding that Flores raised a genuine issue of material fact as to whether age was a motivating factor in the University's decision not to select her for the chief-of-staff position. Id. at 512-15. We granted the University's petition for review.
II. Discussion
As a state university, the University is immune from suit absent an express legislative waiver. Flores I, 612 S.W.3d at 305. Chapter 21 waives that immunity, "but only if the plaintiff alleges facts that would establish that the state agency violated the Act and, when challenged with contrary evidence, provides evidence that is at least sufficient to create a genuine fact issue material to that allegation." Id. (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018)). In evaluating the University's jurisdictional plea, we assume the evidence supporting the plaintiff's allegations is true, resolving all doubts and indulging reasonable inferences in the plaintiff's favor. Id. 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." Alamo Heights, 544 S.W.3d at 771.
A. Legal Framework
Under Chapter 21 of the Labor Code, an employer may not discriminate against an individual "because of" certain characteristics, including age. Tex. Lab. Code § 21.051(1). An employment practice is unlawful "if discrimination 'was a motivating factor for [the] practice, even if other factors also motivated the practice.'" Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 479-80 (Tex. 2001) (quoting Tex. Lab. Code § 21.125(a)).
Before a case is tried on the merits, and in the absence of direct evidence of discrimination, we use the McDonnell Douglas burden-shifting framework to evaluate whether a plaintiff has created a fact issue on her statutory claim. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under that framework, (1) the plaintiff must create a presumption of illegal discrimination by establishing a prima facie case; (2) the defendant must then rebut that presumption by establishing a legitimate, nondiscriminatory reason for the employment action; and (3) the plaintiff must then overcome the rebuttal evidence by establishing that the defendant's stated reason is a mere pretext. Flores I, 612 S.W.3d at 305. As we held in Alamo Heights, because a statutory violation is necessary to establish an immunity waiver-such that jurisdiction and the merits intertwine-all three steps of the framework "are relevant to the jurisdictional inquiry." 544 S.W.3d at 783-84.
Because Texas's anti-discrimination statutes are analogous to their federal counterparts, the "federal statutes and the cases interpreting them guide our reading of [Chapter 21]." Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012). Federal authorities interpreting Title VII "do not bind us," but they do "assist us in our independent obligation to construe Texas law." Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Niehay, 671 S.W.3d 929, 937 (Tex. 2023).
B. Prima Facie Case
A prima facie case requires evidence that the employee:
(1) was a member of the protected class (that is, 40 years of age or older), (2) was qualified for the position at issue, (3) suffered a final, adverse employment action, and (4) was either (a) replaced by someone significantly younger or (b) otherwise treated less favorably than others who were similarly situated but outside the protected class.Flores I, 612 S.W.3d at 305. In Flores I, we held that Flores failed to create a fact issue with respect to her prima facie case because a reasonable juror could not conclude that she was "replaced" by Solis or treated less favorably than others who were "similarly situated" to Flores but outside the protected class. Id. at 310, 312. Here, the University does not dispute the existence of a prima facie case: Flores is over forty years of age and thus a member of a protected class; she was qualified for the chief-of-staff position; she was not hired for the position; and the person who was hired-Sanchez-is significantly younger.
C. Legitimate, Nondiscriminatory Reason
The parties also do not dispute that the University articulated legitimate, nondiscriminatory reasons for its action, rebutting the presumption established by the prima facie case. In support of its plea to the jurisdiction, the University attached an affidavit from President Lange attesting that he selected Sanchez for the chief-of-staff position because she "was simply the better qualified candidate-mostly because of her auditing and accounting background and skillset, and broad range of experience." More specifically, President Lange attested that he considered Sanchez's experience as director of the office of auditing services, which "gave her familiarity with each of [the University's] various departments," to be "extremely valuable to the position" and that Flores did not have a comparable auditing and accounting background. He also testified in his deposition that Sanchez had "more experience" in "the areas that I was most interested in," specifically, "[b]usiness, audit, [and] grants." Relatedly, President Lange attested that he asked Flores during her interview "whether she had any experience with auditing, accounting, or budgeting-skill sets that were important to the Chief of Staff position. Ms. Flores responded that she did not have any significant experience in these areas." Finally, President Lange averred that "based on my observations and experiences during the period in which Ms. Flores supported me before her reclassification [to executive associate], I also lacked confidence in certain of her competencies, such as grant management, auditing, budgeting, and her ability to follow instructions and receive constructive feedback."
In light of these stated reasons, we turn to the third "pretext" step of the analysis. Here, the parties part ways in their evaluation of the evidence.
D. Pretext
At this third step, we examine whether Flores presented evidence, sufficient to create a genuine issue of material fact, that the University's stated reasons for its employment action were a pretext for discrimination. See Alamo Heights, 544 S.W.3d at 782. The United States Supreme Court has held that evidence that would allow the factfinder to disbelieve the employer's stated reason, in conjunction with the requisite prima facie case established at step one, "may permit" an inference "that the employer is dissembling to cover up a discriminatory purpose" even in the absence of additional, independent evidence of such discriminatory intent. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 149 (2000). Citing Reeves, we have similarly noted that in a pretext case, a "plaintiff can usually provide sufficient evidence of discriminatory intent by showing that the employer's proffered reason for the adverse action is false." Quantum Chem., 47 S.W.3d at 476 (emphasis added). However, the Reeves Court recognized that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." 530 U.S. at 148. The parties dispute whether this case presents such an instance. See Owens v. Circassia Pharms., Inc., 33 F.4th 814, 826 (5th Cir. 2022) (holding that the case presented "one of those instances" where a prima facie case and evidence that the defendant's explanation was false were insufficient to create a fact issue on whether the explanation was a pretext for discrimination).
In Canchola, we explained that when conducting an evidentiary review of a jury's verdict in a discrimination case that has been fully tried on its merits, the McDonnell Douglas burden-shifting analysis does not apply; instead, the question is whether the evidence supports the jury's "ultimate finding" that discrimination was a "motivating factor" in the adverse employment action. Canchola, 121 S.W.3d at 739. At that stage, evidence of the falsity of an employer's stated reasons does not equate to evidence that the real reason was unlawful discrimination. Id. at 740 ("The relevant inquiry is not whether the [employer's stated reasons] were a pretext, but what they were a pretext for.").
"For instance," the Court noted, "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves, 530 U.S. at 148.
The University argues that Flores presented no evidence that the University's stated reasons for its employment action were false and, even if she did, the evidence nevertheless does not support an inference of discriminatory intent. We agree with the University that the evidence does not permit a reasonable conclusion that the proffered justification for selecting Sanchez over Flores was false, let alone discriminatory.
As an initial matter, it is undisputed that both Sanchez and Flores met the "required qualifications" for the chief-of-staff position. They each have a graduate degree-Sanchez received an MBA in 2007, and Flores received an MBA in 2013. Further, both have the requisite ten years of experience "in positions of increasing management responsibility in complex organizations." Sanchez worked her way from a staff auditor at a school district, to assistant director of the University of Texas at El Paso's office of auditing and consulting services, to director of the University's office of auditing services. She is also a certified public accountant and a certified internal auditor. Flores began her career at the University as an administrative secretary and then a coordinator (a more senior secretarial position for one of the departments) before being promoted to executive associate to the regional dean and then director of that office before her reclassification as an executive associate in the provost's office.
Flores first argues that her strong record of performance in the director position, which involved many of the same duties as the chief-of-staff position, belies the University's claim that President Lange believed Sanchez to be the better-qualified candidate. Indeed, Dr. de la Rosa submitted a recommendation letter on Flores's behalf attesting to a "perfect alignment between her prior experience and [the chief-of-staff] position." We disagree with this narrow account of the candidates' qualifications.
As an alternative to showing pretext by evidence that the employer's proffered explanation is false, the Fifth Circuit has held that the plaintiff may also show pretext via evidence that she "is 'clearly better qualified' than the person selected for the position." Burrell v. Dr. Pepper/Seven Up Bottling Grp., 482 F.3d 408, 412 (5th Cir. 2007) (quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)). Flores does not contend in this Court that she is "clearly better qualified" than Sanchez; rather, she asserts that the reason given by the University for the decision to hire Sanchez over Flores- President Lange's conclusion that Sanchez was the better-qualified candidate-is unworthy of credence.
In his deposition in Flores I, however, Dr. de la Rosa testified that when President Lange began his tenure and they discussed the transition, Dr. de la Rosa said that he did not think Flores and President Lange "would make a good fit."
There is no question that Flores had significant relevant experience from her time as director of the regional dean's office before and during the University's transition-e.g., managing various special projects, assisting the dean with strategic planning, and serving as the dean's "problem solver" and liaison to other departments and agencies- and had received consistently positive evaluations from Dr. de la Rosa over the years. However, there is also no question that Sanchez had more accounting and finance experience and that, as director of the University's office of auditing services, she had in-depth institutional knowledge and experience across all departments following the school's transition to a four-year university. Relatedly, President Lange testified in his deposition that Flores had "an experience poorly managing grants" with respect to the student-run free clinic, resulting in the removal of that responsibility. Flores confirmed that in April 2015, her responsibility for the clinic's budgeting had been removed due to concerns about proper fund management. This incident occurred while she was working with President Lange and before she had made any discrimination complaints.
The testimony of both President Lange and Flores regarding this incident, which Flores stated was documented in an email, controverts the court of appeals' assertion that "[t]here is no contemporaneous documentation of any problems with or concerns over Flores' work or her competencies" until after she complained of age discrimination. 657 S.W.3d at 514-15.
Certainly, then, both candidates had their strengths, and we will not lightly second-guess the manner in which President Lange weighed those qualifications. See Martinez v. Tex. Workforce Comm'n, 775 F.3d 685, 688 (5th Cir. 2014) (stating that "employers are generally free to weigh the qualifications of prospective employees, so long as they are not motivated by [discrimination]" (emphasis removed)). The court of appeals, however, concluded that the evidence calls President Lange's credibility into question because "the areas of business, audits, grants, and finances [that President Lange claimed were most relevant to his decision] were not listed to any degree on the job description [he created] for the chief of staff position." 657 S.W.3d at 515. Flores similarly asserts that President Lange relied on "subjective and previously unmentioned hiring criteria" in asserting that Sanchez was the better candidate. See Stennett v. Tupelo Pub. Sch. Dist., 619 Fed.Appx. 310, 322 (5th Cir. 2015) (stating that such reliance "could help support a rational jury's finding of pretext"); see also Moss v. BMC Software, Inc., 610 F.3d 917, 926 (5th Cir. 2010) ("An employer's reliance on a previously unmentioned job requirement to justify a challenged hiring decision would raise a genuine issue of material fact as to pretext."). But the record simply does not support that assertion.
As discussed, the job description for the chief-of-staff position included, among other things:
• "[o]versee the president's office scholarships and administer their budgets";
• "develop sustainability plans for scholarship funds";
• "[a]dminister budget for special projects and onetime financial commitments of the president's funds"; and
• "[r]eport on financial viability of commitments."
Flores and the court of appeals gloss over these duties, which correspond directly with Sanchez's finance and accounting experience, and instead appear to focus on the fact that the specific words "accounting," "audit," and "grants" were not used. That fact is at most a technicality. In taking such a narrow and unsupported view of the position to which Sanchez and Flores applied, the court of appeals created a fact issue where none exists.
Next, the parties dispute the ramifications of the evidence that President Lange encouraged Sanchez to apply for the chief-of-staff position before it was posted. Flores argues that the fact that he "sought out the younger Sanchez rather than Flores for the position . . . despite its similarity to her former duties" undercuts President Lange's claim that he hired Sanchez because of her qualifications. The University responds that if, as Flores claims, President Lange "preselected" Sanchez for the position before Flores even applied, then he cannot be accused of discriminating against Flores. Cf. Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 387-88 (2d Cir. 2000) (holding that no evidence called into question the employer's legitimate, nondiscriminatory reason for selecting a qualified younger employee for a position rather than the plaintiff-that it had created the position specifically for that employee to prevent her from being laid off).
Both parties stretch the evidence to support their respective inferences, neither of which is reasonable. As noted, all the evidence shows is that President Lange encouraged Sanchez to apply for the chief-of-staff position upon learning that she was considering leaving the University to pursue other opportunities. It indicates neither that he "preselected" her nor that he sought her out over other potential candidates. We fail to see how this evidence has any bearing on whether President Lange's stated reason for hiring Sanchez-that she was more qualified for the position-was a pretext for discrimination against Flores.
Finally, Flores argues that President Lange's inquiry regarding her age during her interview is some evidence of pretext. Again, we disagree. Certainly, age-related comments by the relevant decisionmaker can be evidence supporting a finding of pretext. See Goudeau v. Nat'l Oilwell Varco, LP, 793 F.3d 470, 477 (5th Cir. 2015) (holding that doubts the plaintiff raised about the validity of performance warnings he was given, "combined with the ageist comments that [we]re potentially corroborated by the firing of both [the plaintiff] and [another older employee], would allow a jury to conclude that age was the reason for the termination"). But as with any other evidence, the inquiry regarding Flores's age must be considered in context. See Alamo Heights, 544 S.W.3d at 774.
Flores does not assert that this inquiry constitutes "direct evidence" of discrimination. Rather, she offers it as additional circumstantial evidence pertinent to the McDonnell Douglas pretext analysis. See Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012).
Flores and President Lange agree that he asked Flores how old she was, that he then told her she did not have to answer the question, and that she in fact did not answer. As noted, President Lange testified that he already knew Flores's age and that the question was a rhetorical one intended to address the "elephant in the room." That "elephant" was the fact that, at the time of the interview, Flores had already submitted a claim of discrimination to the EEOC premised on her reassignment and reclassification to executive associate. President Lange recalled telling Flores in connection with the question that he did not care about her age and that her age "did not matter." Flores disputes that he made those statements, but she conceded in her deposition that there "[c]ould have been" some context to the question that she does not remember.
Flores argues that a factfinder could disregard President Lange's "self-serving statement" that he already knew Flores's age. The statement may be self-serving, but we see no basis to disregard it given President Lange's involvement in the events underlying Flores I. Indeed, when Flores was asked at her deposition whether she thought President Lange knew her age before the interview, she responded, "I'm sure he had an idea."
As noted, Flores filed suit in Flores I based on that earlier complaint shortly after President Lange hired Sanchez as his chief of staff.
In the context of the ongoing dispute in which age was an issue, President Lange's reference to age does not call into question the reasons given by the University for hiring Sanchez over Flores. An acknowledgment of Flores's pending discrimination complaint-the subject of Flores I-is not an admission of discrimination by President Lange or the University, nor does it remotely undercut President Lange's position that Sanchez was more qualified to be his chief of staff. In sum, reviewing the record as a whole, we conclude that Flores failed to present evidence that would allow a reasonable factfinder to disbelieve the University's stated reasons for selecting Sanchez as the president's chief of staff. In turn, we hold that Flores has failed to present evidence from which a reasonable juror could conclude that age was a motivating factor behind that decision.
III. Conclusion
The University is immune from suit absent some evidence that it violated Chapter 21. Because Flores presented no such evidence, the University's plea to the jurisdiction should have been granted. Accordingly, we reverse the court of appeals' judgment as to the discrimination claim and render judgment dismissing the case for lack of jurisdiction.
James D. Blacklock, Justice joined by Justice Young, concurring.
Thanks in large part to the way judges have interpreted employment-discrimination statutes, a pervasive "human resources" industry long ago attached itself to nearly every aspect of American life outside the home. It enlists us all in its elaborate game of litigation-avoidance, demanding of everyone a diligent and circumspect self-censorship during the considerable percentage of our waking hours we spend at work. Many people, it seems, end up internalizing the politically correct dictates of corporate risk-avoidance culture and thereby mistakenly come to believe that all kinds of interesting things the HR Department warns us not to talk about are somehow illegal or even immoral. And so this enervating regime of workplace speech-policing spills out of the office, infecting the broader culture.
American industry and American government spend many billions every year on the economically unproductive pursuit of compliance with the labyrinthine dictates of employment law. Judges and bureaucrats, not legislators, built the labyrinth. The economic loss represented by the expenditures required to navigate it pales in comparison to another unwelcome consequence of modern employment law. More difficult to calculate, but no less real, are the economic and social consequences of converting so many American workplaces from lively engines of innovation and competition into sclerotic bureaucracies whose prime directive is to avoid litigation rather than to achieve excellence.
Very little of this could have been envisioned by the legislators who voted for Title VII of the federal Civil Rights Act or Chapter 21 of the Texas Labor Code. Very little of it is compelled by the text of these laws. Those who lament the suffocating and sterile culture of many modern American places of employment can justifiably direct some of their complaints to the judges and to the executive branch regulators. We did much of this, and we should think about how to undo it.
* * *
The two people sitting across from each other in a job interview are flesh-and-blood human beings trying to get to know each other-not performers in a kabuki dance choreographed by the HR Director. Questions will be asked. Someone might even get uncomfortable. Life goes on. Fortunately, this meritless litigation does not.
As the Court observes, the only evidence proffered to show that age discrimination had anything to do with the medical school President's decision not to hire the plaintiff as his Chief of Staff is that he asked the plaintiff how old she was during a job interview. That question surely violated Texas Tech's HR Manual, but it did not violate the law. Nothing we know about the conversation indicates that this perhaps indelicate question was motivated by nefarious discriminatory purposes. Asking someone her age may be a little rude, depending on the circumstances, but it is also a very natural and normal topic of human conversation. It is certainly no evidence of illegal discrimination.
The proverbial HR Manual (does anybody really read these things?) probably warns an interviewer never to ask a job applicant's age. But it does so only because lawsuits like this one are expensive and distracting, not because it is actually illegal or discriminatory to ask the question. It is only illegal, sometimes, to discriminate on the basis of the answer-and it is beyond me how anyone could reasonably infer discriminatory intent from the question itself. People ask each other's ages all the time. They also ask each other where they are from (national origin, a protected status). And they ask each other about their families (familial status, another one). There is nothing discriminatory about these questions, and it is not illegal to ask them in a job interview or anywhere else.
* * *
Because the plaintiff lacks evidence of discrimination, she seeks to generate an "inference" of discrimination by showing that the President's innocent explanation-that he simply thought the successful candidate was a better fit for the job-is just a "pretext" for age discrimination against the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). In McDonnell Douglas, the U.S. Supreme Court devised the following three-step framework: A plaintiff who lacks direct evidence of employment discrimination may nevertheless demonstrate it by showing (1) that the plaintiff was qualified for the position but was treated less favorably than someone outside the protected class, which (2) shifts the burden to the defendant to show a legitimate, non-discriminatory reason for its employment decision, which (3) shifts the burden back to the plaintiff to show that the proffered reason for the decision is a "pretext" for discrimination. Id. at 802-04. A plaintiff who succeeds at step three has mustered enough evidence of discrimination to survive summary judgment-at least according to this framework. See id.
I see no basis for this elaborate formula in the text of the Texas Labor Code. McDonnell Douglas dates to a time when courts were often less attentive to statutory text-and more attentive to perceived statutory purpose-than are most courts today, including this Court. It also dates to a time in our history, 1973, when legally sanctioned racial discrimination was still a recent memory. Perhaps, at that time, there was reason to worry that invidious racial discrimination, sometimes difficult to prove with direct evidence, lurked beneath the surface of many employers' innocent explanations. This concern about the hidden, nefarious motives of employers seems to have driven the creation-and elaboration in later cases-of a relaxed evidentiary standard based on "inferences" and "pretexts," which essentially reverses the burden of proof: The plaintiff may show discrimination by showing that the defendant has not convincingly disclaimed discrimination-i.e., that the defendant's innocent explanation is unworthy of credence.
See also "disparate impact" and "hostile work environment" for other examples of highly consequential jurisprudential concepts whose basis in the statutory text does not readily jump off the page.
Compare McDonnell Douglas, 411 U.S. at 800-01 (quoting several judicial statements of Title VII's perceived purpose without ever quoting the statutory text), with In re Tex. Educ. Agency, 619 S.W.3d 679, 690 (Tex. 2021) (judicial attempt to "advance a presumed but unarticulated statutory purpose . . . runs counter to bedrock statutory construction principles").
McDonnell Douglas's relaxed evidentiary standard-and the mountains of caselaw and oceans of bureaucratic detritus derived from it-originated with the concern, less than a decade after the end of Jim Crow, that racial discrimination in employment would be both frequent and easy to get away with if plaintiffs were required to prove with direct evidence that the employer's unfavorable decision was made "because of" the plaintiff's race. But what sense does it make to apply caselaw driven by 1970s-era concerns about race relations to an age discrimination case in 2024? This is not 1973.
We could easily discard all of this and return to the firm foundation of the statutory text. If the text of the Labor Code directed the courts to act as if hidden employment discrimination is lurking around every corner, then we would be obligated to do so. The text plainly does not do this. It just says, "An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer . . . fails or refuses to hire an individual . . . [etc.]" TEX. LAB. CODE § 21.051(1). The crucial fact on which liability under this provision turns is the employer's conscious discriminatory motive: Was the adverse decision made "because of" the plaintiff's protected characteristic? Culpable mental states can be difficult to prove, but difficulty of proof is no excuse for lack of proof.
Texas courts have no obligation at all to look to federal caselaw when applying an analogous Texas statute. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Niehay, 671 S.W.3d 929, 946 (Tex. 2023) (Blacklock, J., concurring) (“Federal sources of law have no formal role to play, in this case or in future cases, as this Court seeks to understand whether the various legal obligations that might be imagined to arise from Chapter 21 of the Texas Labor Code have truly achieved the consent of the governed in Texas.”) (emphasis in original).
In 2024, allegations of discrimination can of course be highly damaging to the alleged discriminator, no matter the outcome in court. More than fifty years after McDonnell Douglas, there is a strong case to be made that, in this day and age, using the court system to brand the scarlet label of "discrimination" on your fellow citizen should be difficult to do and should be subject to a rigorous evidentiary burden. We do not normally permit parties to prove their cases using suspicion and surmise rather than evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). I see no valid justification in the text of the Texas Labor Code for the evidentiary burdens in employment-discrimination cases to operate any differently than they do in other cases.
Nevertheless, despite my reservations, this Court has routinely employed the McDonnell Douglas burden-shifting analysis when applying Texas law. See, e.g., Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 640 (Tex. 2012). These parties do not suggest we have any alternative, although future parties are welcome to do so.
* * *
Whether under the McDonnell Douglas framework or otherwise, it should not have taken so long for the courts to dispose of this meritless case. But the case's undeserved lifespan is not the only problem here. Courts should be more aware that employment litigation challenging hiring decisions in the government-particularly in higher levels of government employment-threatens to impermissibly entangle the judicial branch in the executive branch's prerogatives.
The President of a public medical school needed to hire a Chief of Staff, an executive-level employee who would serve in a position of trust and responsibility in the leadership of a large government organization. This was the President's decision to make, of course-not a judge's or a jury's. And it was a personal decision, not merely a personnel decision. An executive leading a large organization, choosing a Chief of Staff who will handle many important matters on his behalf, must choose someone in whom he personally has great confidence. No matter what the HR Manual says, an applicant for such a job cannot demonstrate his suitability for the position merely by pointing to his objective qualifications. High-level positions of trust within a large organization-whether in the public or private sector-are not available to just anybody with the credentials and experience listed in the job posting. Instead, a front-office position like Chief of Staff to the President of a university will naturally be reserved for someone in whom the President personally wishes to place his trust.
At no point has the plaintiff mustered any evidence that she was ever such a person. Instead, the record is clear that the President had already identified such a person-the successful applicant-before the official hiring process began. He had worked with the successful applicant in the past, and he recruited her for the Chief of Staff position, convincing her to apply for it rather than leave for another opportunity. The President had also worked briefly with the plaintiff, and during that time he had not gained the kind of confidence in her that he had in the successful applicant. After interviewing both of them, he hired the one he thought was best for the job. Nothing in the record remotely suggests otherwise.
To the contrary, at the time the hiring decision was made, the plaintiff was already suing the medical school in a different employment-discrimination lawsuit, which she lost. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 302 (Tex. 2020). Given that acrimonious history, the idea that she would have been hired as the medical school's Chief of Staff but for her age strikes me as fantastical. While there are restrictions on retaliation against employees who sue their employer, it cannot be illegal retaliation to decline to give someone who is suing you a promotion to a high-level position of great trust and responsibility. I struggle to imagine any scenario in which such a person would ever be named Chief of Staff of the very entity she is actively accusing of illegal discrimination.
The parties focus considerable attention on whether the plaintiff was objectively qualified for the position described in the job posting. That is not at all the right question in a case like this. The central question in this appeal ought to be whether this record gives a reasonable fact-finder any basis to conclude that the President subjectively thought, apart from the plaintiff's age, that she would be a good fit for this high-level job in his new administration. If there was evidence he thought that and nevertheless refused to hire her because she was too old, the plaintiff might have a claim. Likewise, if there was evidence that the reason the President thought the plaintiff was not well suited for the Chief of Staff position was her age, then she might have a claim. But there is no such evidence. There is only evidence that other people-but not the President-thought the plaintiff was highly qualified and deserved the job. Of course, nothing about the President's state of mind can reasonably be inferred from other people's opinions about a decision that was not theirs to make.
The plaintiff emphasizes her history of excellent job performance reviews, none of which were written by the President. Obviously, the fact that the old boss thought highly of an employee is no evidence that the new boss is lying when he says he wasn't as impressed. An objectively qualified candidate's suitability for a position like Chief of Staff of a government organization is ultimately a subjective judgment call that the principal officer must have the freedom to make, no matter what old performance reviews or hand-wringing human resources directors may say. In this case, the President chose as his Chief of Staff the candidate he hand-selected and urged to apply, rather than the candidate who had recently sued the school for age discrimination and with whom he was not particularly impressed. The harder I squint to try to see the age discrimination lurking somewhere in the background, the more convinced I become that this case is not just meritless but frivolous.
Again, the plaintiff makes much of her glowing performance reviews and her recommendation letters from colleagues. It cannot be the case, however, that a newly appointed government executive has any obligation at all to heed his predecessors' opinions about the staff. In fact, when government offices change hands for political reasons, it may often be the case that the old management's high opinion of an employee gives the new management reason to doubt the employee's continued suitability. This was not such a situation. There is no evidence the new President of the medical school had anything but a cordial and productive relationship with the pre-existing staff. But the fact remains that the President was charged by the school's trustees with overseeing the reorganization of Texas Tech's pre-existing El Paso operation into a free-standing medical school and then leading the new school in its crucial first years. An essential aspect of such a high-stakes job is the authority to hire and fire staff, particularly in key front-office positions like Chief of Staff. Subjecting those decisions to judicial review through employment litigation is no small judicial imposition on a coordinate branch of state government.
Judicial review of a private employer's personnel decisions under the McDonnell Douglas framework has always been a doubtful enterprise as a matter of statutory interpretation. See supra at 4. But when courts apply employment-discrimination statutes in a way that installs judges and juries as minders of the executive branch's personnel decisions, the Constitution's separation-of-powers guarantee may have something to say about it. See TEX. CONST. art. II, § 1. I do not think the Labor Code or any other statute authorizes courts to engage in judicial review of the executive branch's personnel decisions. Any statute that did so would be constitutionally suspect, to say the least. But judicial review of executive-branch hiring is exactly what many judicial opinions in this area of law look like, as they micro-analyze the competing qualifications of government employees in search for the "inferences" and "pretexts" behind which discrimination may be lurking. See, e.g., Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 657 S.W.3d 502 (Tex. App.-El Paso 2022).
Whatever small sliver of the executive power of the State of Texas was vested in the President of Texas Tech's El Paso medical school, surely that power includes the authority to hire a Chief of Staff without the judiciary looking over his shoulder-and surely it is none of the judiciary's business whether he was "right" or "wrong" about the suitability of the applicants. It might be the judiciary's business if there were actually any genuine evidence of age discrimination, which the Texas Legislature has outlawed. As the Court correctly concludes, there is none.
The record provides abundant reason to believe that the President was justified in concluding the applicant he chose was more qualified for the job. We need not consider any of that evidence, however, because our job is not (or at least should not be) to second-guess his judgment. Our job is to decide whether there is any evidence that age discrimination-rather than the President's genuine belief about which candidate was more suitable- motivated his decision. There is not.
With these observations noted, I respectfully concur.
Evan A. Young, Justice concurring.
Texas law forbids employers from making employment decisions "because of race, color, disability, religion, sex, national origin, or age." Tex. Lab. Code § 21.051. Cases like today's, however, suggest that the legal system inadequately distinguishes actual discrimination from disappointment in employment results. True, the system worked in the sense that the Court reached the right result-but only after extended litigation that clouded a legitimate hiring decision by a high-ranking state university leader. The consequences extend to the person he hired as his chief of staff. She was not sued, but she may as well have been; this lawsuit has subjected her to the oblique but public accusation that she was not the best candidate, that her hiring was unlawful, and that her mere occupancy of the position robbed someone else of a basic civil right. The effects of drawn-out litigation like in this case can be exceptionally harmful to individuals and institutions. Only if the conduct at issue plausibly was discriminatory would such harm to others be justifiable.
The balance is delicate. Too quickly ending any case risks undermining the parties' rights and risks undermining confidence in the legal system. Yet drawing out cases that clearly lack merit does all that too. The antidiscrimination context adds even more delicacy. An open admission that an adverse employment decision was made "because of" a characteristic that Texas law protects is hen's-teeth rare, so direct evidence is typically unavailable. But when claims have nothing to do with discrimination, the courts' inability to rapidly say so dilutes the force of and respect for antidiscrimination law itself. Ensuring that our law expeditiously and accurately targets actual discrimination would be a benefit all around.
The evidentiary framework for the opening stages, then, is of great significance. As far as I can see, this Court has never really given much thought to the burden-shifting framework that we use, which we borrowed from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973). The first time we invoked McDonnell Douglas to address burden shifting came in 1995, when we rejected its application in the context of the Whistleblower Act. See Tex. Dep't of Hum. Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995). We noted that the U.S. Supreme Court had adopted burden shifting for Title VII claims but held that we were "not at liberty to adopt this approach" because the Whistleblower Act expressly placed the burden of proof on the employee. Id.
Chapter 21 does not have a burden-of-proof provision that mirrors the one we addressed in Hinds, so that case does not directly govern our reading of Chapter 21. Five years later, we took a Chapter 21 case and, in a per curiam opinion, adopted McDonnell Douglas for the first time. See M.D. Anderson Hosp. &Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000). Our analysis was, shall we say, sparse. In total, we said:
In enacting the TCHRA, the Legislature intended to correlate state law with federal law in employment discrimination cases. Tex. Lab.Code § 21.001; see NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Adhering to legislative intent, Texas courts have looked to federal law in interpreting the TCHRA's provisions.Id. Section 21.001 expresses as a "general purpose[]" of the statute 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 § 21.001(1). With no more analysis than that, M.D. Anderson simply cited McDonnell Douglas (and three other U.S. Supreme Court cases) and then conducted the "burden-shifting analysis" as we would have done in federal court under federal law. 28 S.W.3d at 24. After that, we expressly invoked McDonnell Douglas to conduct burden shifting in these five cases: Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 (Tex. 2003); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012); Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017); Alamo Heights Indep. Sch. District v. Clark, 544 S.W.3d 755 (Tex. 2018). Our sixth occasion was in the first visit to this Court by the very parties before us today: Texas Tech Univ. Health Scis. Ctr.-ElPaso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020).
As far as I can tell, none of these decisions actually wrestled with how McDonnell Douglas got to be part of our law. M.D. Anderson appears to be the only time we have actually stated any rationale, which I quoted in full above, thin as it is.
As Justice Blacklock has previously suggested, we may have assumed too much in linking a general goal (consistency with federal law) to a specific mechanism to achieve that goal. See Texas Tech Univ. Health Scis. Ctr.-El Paso v. Niehay, 671 S.W.3d 929, 945-46 (Tex. 2023) (Blacklock, J., concurring). Reexamination may confirm the propriety of accepting into our law the McDonnell Douglas framework (or something much like it) and its progeny-or perhaps not. If not, it strikes me as at best unclear how a variety of doctrines, including stare decisis and liquidation, may affect our response. The analysis is worth undertaking if a case presents the question. As Justice Blacklock observes, this case does not give the Court such an opportunity: “These parties do not suggest we have any alternative, although future parties are welcome to do so.” Ante at 7 (Blacklock, J., concurring). The Court properly resolves today's case under current law as briefed by the parties.
If and when a proper case comes, though, I hope that the parties and amici will be prepared to assist us in either confirming or improving our jurisprudence. Doing so might be more complex than merely a thumbs-up-thumbs-down call on McDonnell Douglas. A second aspect of the question may ultimately be both more intricate and more nuanced: whether, even if the current burden-shifting framework or something like it remains, courts can better deploy it. Perhaps we can refine the kind of evidence deemed sufficiently probative at each stage, which will facilitate sorting conduct that the statute forbids (decisions made "because of" the off-limits characteristics) from conduct that in no way warrants a charge of discrimination. And, of course, regardless of what this Court decides, the legislature is always free to improve the administration of Chapter 21 if it concludes that refinements would better serve the interests of all Texans and more effectively vindicate the antidiscrimination principles that motivated Chapter 21's enactment in the first place.
For today's case, therefore, I am pleased to concur. The Court has done an admirable job of applying current law, proving that despite the concerns that I have expressed, the right result is still possible (albeit late). I also join Justice Blacklock's concurring opinion and in particular his call for careful examination of the jurisprudential underpinnings of this area of the law.