Neal Vanzante v. Texas a & M University
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Opinion
ACCEPTED 13-15-00313-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/27/2015 7:03:27 AM Dorian E. Ramirez CLERK
NO. 13-15-00313-CV
FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH JUDICIAL DISTRICT 10/27/2015 7:03:27 AM DORIAN E. RAMIREZ CORPUS CHRISTI, TEXAS Clerk
NEAL VANZANTE Appellant-Appellant
v. TEXAS A & M UNIVERSITY--KINGSVILLE
Defendant-Appellee
On Appeal From the 105 1h District Court Kleberg County Trial Court Cause No. 12-238-D
AMENDED BRIEF OF APPELLANT NEAL V ANZANTE
REQUEST FOR ORAL ARGUMENT
Respectfully submitted,
/s/ Chris McJunkin Chris McJunkin State Bar No. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com
I IDENTITIES OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), Appellant submits the following list of names and last known addresses of all parties and their counsel at trial and on appeal: Parties to the Trial Court Judgment:
Appellant/Plaintiff: Neal Vanzante
Appellee/Defendant Texas A&M University- Kingsville
Counsel:
For Appellant: Chris McJunkin, Appellate Counsel 2842 Lawnview Corpus Christi, Tx. 78404 Fax: 361-882-8926 cmcjunkin@stx.rr.com
For Appellee: Marie! Puryear, Assistant Attorney General Office of Attorney General - Litigation P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Marie!. puryear@texasattoneygeneral.gov
2 TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL............................. 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF JURISDICTION....................................................... 8
STATEMENT OF THE CASE....................................................... 8
STATEMENT REGARDING ORAL ARGUMENT ........................................ 10 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II Trial Court Erred in Granting Defendant's Motion for Summary Judgment Dismissing the Appellant's Lawsuit
A. Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:
B. Appellant was not prohibited from applying for the Chair opening by the 2006 Release and Settlement Agreement with TAMU Corpus Christi
The Trial Court Erred in Dismissing Appellant's Lawsuit
A. Appellant Establishes Direct Evidence of Age Discrimination
B. Appellant Establishes Circumstantial Evidence of Age Discrimination
Step One: Appellant's Prima Facie Case Element No. 1: Appellant is a member of a protected class Element No. 2: Appellant was Qualified for the Chair Position Element No.3: Adverse employment action Element No. 4: defendant hired someone substantially younger than Appellant I treated Appellant differently than someone younger
3 . Step Three: Appellant establishes Pretext:
TATEMENT OF FACTS ........................................................... 11
SUMMARY OF THE ARGUMENT ················································ 18 ARGUMENT .................................................................................................... 19 Summary Judgment Standard .......................................................... 19 Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant: ..................... 20
Appellant was not prohibited from applying for the Chair opening by the 2006 Release and Settlement Agreement with TAMU Corpus Christi .......... 23
The Trial Court Erred in Dismissing Appellant's Age Claim: ...................... 32
Appellant Establishes Direct Evidence of Age Discrimination .......... 32
Appellant Establishes Circumstantial Evidence of Age Discrimination ..... 33
Step One: Appellant's Prima Facie Case (a) Element No. 1: Appellant is a member of a protected class ..... 35 (b) Element No.2: Appellant was Qualified for the Chair Position .. 35 Appellant Met Actual Required Qualifications No. 1... 38 Appellant Met Actual Preferred Qualification ............... 41 Appellant Met Defendant's Alleged Required Qualifications .. .42 Appellant Met Def General Qualification: leadership, etc. .. ... 48 Disparate Treatment. ................................................................. 53 Plaintiff Met Def Alleged Qualification: professional, etc ...... 56 Disparate Treatment.. ................................................................ 59 Appellant Met Def AACSB requirement ....... 18 month ........... 60 Appellant Met Def AACSB currency requirement. ................... 65
(c) Element No.3: adverse employment action ............................... 69
4 (d) Element No.4: defendant hired someone substantially younger than Appellant I treated younger person differently ........................ 69
Step Three: Appellant establishes Pretext: Appellant presents sufficient evidence to create a genuine issue of material fact that Defendant's Legitimate Nondiscriminatory reasons are false ............................................................................. 71:
CONCLUSION ................................................................................... 84
PRAYER··························································································· 84
CERTIFICATE OF COMPLIANCE ....................................................................... 85
CERTIFICATE OF SERVICE.......................................................... 85
5 APPENDIX ........................................................................................ .
Appendix!: June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's Motion for Summary Judgment (CR 1: 1006)
Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion for Summary Judgment (CR 1: 291).
Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction (CR 1: 292).
Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time to File Brief to October 23,2015, was granted.
6 INDEX OF AUTHORITIES
Am. Tobacco Co. v. Grinnell, 951 S. W.2d 420, 425 (Tex. 1997)............... 19
Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 1975) ................... 32
Gaines v. Hamman, 163 Tex. 618,358 S.W.2d 557, 563 (Tex. 1962) ....... 19
Michael v. City ofDallas, 314 S. W.3d 687, 690-91 (Tex. App.-Dallas 2010, no pet.).............................................................. 34 O'connor v Consolidated Coin Caterers Corp, 517 US 308, 312, ( 1996)... 69
Rachid v Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) ......................... 69
Rincones v. WHM Custom Serv, 457 F.3d, 221, 236 (13th Corpus Christi 2015) ................................................. 19,34
Tex. Dep't ofCmty. Affairs v.
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ACCEPTED 13-15-00313-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/27/2015 7:03:27 AM Dorian E. Ramirez CLERK
NO. 13-15-00313-CV
FILED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH JUDICIAL DISTRICT 10/27/2015 7:03:27 AM DORIAN E. RAMIREZ CORPUS CHRISTI, TEXAS Clerk
NEAL VANZANTE Appellant-Appellant
v. TEXAS A & M UNIVERSITY--KINGSVILLE
Defendant-Appellee
On Appeal From the 105 1h District Court Kleberg County Trial Court Cause No. 12-238-D
AMENDED BRIEF OF APPELLANT NEAL V ANZANTE
REQUEST FOR ORAL ARGUMENT
Respectfully submitted,
/s/ Chris McJunkin Chris McJunkin State Bar No. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com
I IDENTITIES OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), Appellant submits the following list of names and last known addresses of all parties and their counsel at trial and on appeal: Parties to the Trial Court Judgment:
Appellant/Plaintiff: Neal Vanzante
Appellee/Defendant Texas A&M University- Kingsville
Counsel:
For Appellant: Chris McJunkin, Appellate Counsel 2842 Lawnview Corpus Christi, Tx. 78404 Fax: 361-882-8926 cmcjunkin@stx.rr.com
For Appellee: Marie! Puryear, Assistant Attorney General Office of Attorney General - Litigation P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Marie!. puryear@texasattoneygeneral.gov
2 TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL............................. 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF JURISDICTION....................................................... 8
STATEMENT OF THE CASE....................................................... 8
STATEMENT REGARDING ORAL ARGUMENT ........................................ 10 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II Trial Court Erred in Granting Defendant's Motion for Summary Judgment Dismissing the Appellant's Lawsuit
A. Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:
B. Appellant was not prohibited from applying for the Chair opening by the 2006 Release and Settlement Agreement with TAMU Corpus Christi
The Trial Court Erred in Dismissing Appellant's Lawsuit
A. Appellant Establishes Direct Evidence of Age Discrimination
B. Appellant Establishes Circumstantial Evidence of Age Discrimination
Step One: Appellant's Prima Facie Case Element No. 1: Appellant is a member of a protected class Element No. 2: Appellant was Qualified for the Chair Position Element No.3: Adverse employment action Element No. 4: defendant hired someone substantially younger than Appellant I treated Appellant differently than someone younger
3 . Step Three: Appellant establishes Pretext:
TATEMENT OF FACTS ........................................................... 11
SUMMARY OF THE ARGUMENT ················································ 18 ARGUMENT .................................................................................................... 19 Summary Judgment Standard .......................................................... 19 Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant: ..................... 20
Appellant was not prohibited from applying for the Chair opening by the 2006 Release and Settlement Agreement with TAMU Corpus Christi .......... 23
The Trial Court Erred in Dismissing Appellant's Age Claim: ...................... 32
Appellant Establishes Direct Evidence of Age Discrimination .......... 32
Appellant Establishes Circumstantial Evidence of Age Discrimination ..... 33
Step One: Appellant's Prima Facie Case (a) Element No. 1: Appellant is a member of a protected class ..... 35 (b) Element No.2: Appellant was Qualified for the Chair Position .. 35 Appellant Met Actual Required Qualifications No. 1... 38 Appellant Met Actual Preferred Qualification ............... 41 Appellant Met Defendant's Alleged Required Qualifications .. .42 Appellant Met Def General Qualification: leadership, etc. .. ... 48 Disparate Treatment. ................................................................. 53 Plaintiff Met Def Alleged Qualification: professional, etc ...... 56 Disparate Treatment.. ................................................................ 59 Appellant Met Def AACSB requirement ....... 18 month ........... 60 Appellant Met Def AACSB currency requirement. ................... 65
(c) Element No.3: adverse employment action ............................... 69
4 (d) Element No.4: defendant hired someone substantially younger than Appellant I treated younger person differently ........................ 69
Step Three: Appellant establishes Pretext: Appellant presents sufficient evidence to create a genuine issue of material fact that Defendant's Legitimate Nondiscriminatory reasons are false ............................................................................. 71:
CONCLUSION ................................................................................... 84
PRAYER··························································································· 84
CERTIFICATE OF COMPLIANCE ....................................................................... 85
CERTIFICATE OF SERVICE.......................................................... 85
5 APPENDIX ........................................................................................ .
Appendix!: June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's Motion for Summary Judgment (CR 1: 1006)
Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion for Summary Judgment (CR 1: 291).
Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction (CR 1: 292).
Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time to File Brief to October 23,2015, was granted.
6 INDEX OF AUTHORITIES
Am. Tobacco Co. v. Grinnell, 951 S. W.2d 420, 425 (Tex. 1997)............... 19
Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 1975) ................... 32
Gaines v. Hamman, 163 Tex. 618,358 S.W.2d 557, 563 (Tex. 1962) ....... 19
Michael v. City ofDallas, 314 S. W.3d 687, 690-91 (Tex. App.-Dallas 2010, no pet.).............................................................. 34 O'connor v Consolidated Coin Caterers Corp, 517 US 308, 312, ( 1996)... 69
Rachid v Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) ......................... 69
Rincones v. WHM Custom Serv, 457 F.3d, 221, 236 (13th Corpus Christi 2015) ................................................. 19,34
Tex. Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248,254, (1981)....... 34
Pattern Jury Charge 100 ............................................................................... 32
STATUTES:
Texas Rules of Appellate Procedure 38.1 .............................................. 8
Texas Rules of Appellate Procedure 26.1 .............................................. 9
Texas Rules of Appellate Procedure 9.4(i)(2)(B) ..................................... 85
Tex.Labor Code Ann. Sec.21.001 ....................................................... 21
Tex.LaborCodeSec.21.051 ............................................................. 14
7 NO. 13-15-00313-CV
IN THE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS
On Appeal From the 105 1h District Court Kleberg County Trial Court Cause No. 12-238-D
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
COMES NOW, Appellant, Neal Vanzante, and respectfully submits this, Appellant's
Amended Brief, pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, and
would show the Court the following:
8 STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to TRAP 26.1: Appellant filed his Notice
of Appeal within 30 days after order I judgment was signed and within the time
allowed by TRAP 26.1; and within 30 days of receiving notice of order I judgment.
(CR 1: 1006, 1026-1 027)
STATEMENT OF THE CASE
Appellant filed suit pursuant to Texas Labor Code Sec. 21 et seq. for age
discrimination based upon Defendant's failure to hire Appellant and Defendant
hiring a substantially younger person for advertised Chair position in August of
2012. (CR 1: 5-11).
March 18, 2015: Order Denying Defendant's No-Evidence Motion for Summary
Judgment was granted by Honorable Judge Rose Vela. (CR 1: 291). (Appendix 2)
March 25, 2015: Order Denying Defendant's Plea to Jurisdiction was granted by
Honorable Judge Rose Vela. (CR 1: 292). (Appendix 3)
June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's
Motion for Summary Judgment was granted by Honorable Judge Jack Pulcher.
(CR 1: 1006)(Appendixl)
July 9, 2015: Appellant I Appellant Filed his Notice of Appeal. (CR 1: 1026-
1027)
9 October 9, 2015: Appellant's Motion for Extension of Time to File Brief to
October 23, 2015, was granted. (Appendix 4)
STATEMENT REGARDING ORAL ARGUMENT
This appeal involves substantial amount of facts. Appellant submits that oral
argument should be permitted and that it would aid this Court's decisional process
to emphasize and clarifY the written arguments in the briefs and to respond to any
questions.
ISSUES PRESENTED
The Trial Court Erred in Granting Defendant's Motion for Summary Judgment Dismissing the Appellant's Lawsuit
*Does Not Include Subsidiary Questions which are set out in the Argument
I. The Trial Court Erred in Granting Summary Judgment Based on Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi
A. Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:
B. Appellant was not prohibited from applying for the Chair opening by the 2006 Release and Settlement Agreement with TAMU Corpus Christi
II. The Trial Court Erred in Dismissing Appellant's Lawsuit
A. Appellant Establishes Direct Evidence of Age Discrimination
B. Appellant Establishes Circumstantial Evidence of Age Discrimination
10 1. Step One: Appellant's Prima Facie Case (a) Element No. 1: Appellant is a member of a protected class (b) Element No. 2: Appellant was Qualified for the Chair Position
(1) Appellant Met the Chair Positions Actual Required Minimum Qualifications (2) Appellant Met the Chair Positions Actual Preferred Qualifications
(3) Appellant Met the Defendant's Alleged Required Qualifications
(c) Element No.3: Appellant was subjected to an adverse employment action (d) Element No.4: defendant hired someone substantially younger than Appellant
2. Step Three: Appellant establishes Pretext: Appellant presents sufficient evidence to create a genuine issue of material fact of either:
STATEMENT OF FACTS
Appellant has filed an age discrimination action based on Defendant hiring a
substantially younger person for the posted Endowed - Named Chair position in
2012.
February 20, 2012: Defendant advertised an opening for the Chair of the
Department of Accounting and Finance. (CR 1: 780) The Chair Position's written
job qualification requirements were: (CR I: 782 top)
11 Minimum (actual required) Qualifications: "Candidates must have 18 graduate hours for every field in which they will teach. Candidates must be professionally qualified to (I) hold the rank of Full Professor and (2) be AACSB Academically Qualified (AQ).
Preferred Qualifications: AACSB Accreditation
AACSB is an acronym for "Association to Advance Collegiate Schools of
Business". AACSB provides specialized accreditation for business and accounting
programs at the bachelor's, master's, and doctoral level. AACSB Accreditation is a
recognized form of specialized professional accreditation of an institution and its
business programs.
Dr.Thomas Dock was the Dean of Department of Accounting and Finance
beginning to Sept. 13,2012, when Dock was removed as Dean. (CR 1: 667: p.12,
line 25 to p.l3, line 9; CR 1:876). During the selection process, Dr.Richard
Aukerman was the Associate Dean and Search Committee Chair. (CR I: 782)
At the time of applying: Appellant was sixty-six years old. (CR I: 652, sec. 4).
Appellant's academia career spanned 40 years including six years employed as an
Assistant Professor, 15 years employed as an Associate Professor, and 18 years as
a Full Professor. (CR 1: 799-800)
Defendant hired Carol Sullivan. who was fifty-one and substantially younger
(15 years) than Appellant. (CR 1:918: p.48, lines 2-7).
12 February 24, 2012: Appellant applied for the Chair position. (CR1: 799)
March 5, 2012: Carol Sullivan applies for the Chair position (CR1: 823)
Dean Dock informed Associate Dean Aukerman and Assistant Dean Martin
Brittain that Dock was going to Carol Sullivan privately off campus; Both
Dr.Aukerman and Brittain instructed Dean Dock that was wrong and not to meet
Sullivan. (CR1: 728, p.43, line 14 to p.44, line 8)
March 20, 2012: Dean Dock ignores policy and drives to Victoria, Texas, to
privately interview Carol Sullivan. (CR1: 834). Dean Dock arranged for Carol
Sullivan to come to campus for interview despite the Search recommending not to
interview Sullivan. (CR 1: 872, sec.1 0)
July 2012, the Faculty Search Committee met with Carol Sullivan and
determined that Carol Sullivan was not qualified and 'unacceptable' for the
Chair position. (CR1: 836-839).
July 16, 2012: Associate Dean Aukerman, notified Defendant's Hiring
Manager that the College of Business Search Committee had determined that
Sullivan was not qualified for the chair position. (CR1: 840)
August 6, 2012: Dean Dock notified the faculty that he had hired Carol
Sullivan for the Chair opening and enter into a contract with Carol Sullivan
who agreed to all terms of employment-- Associate Dean Aukerman and
Provost Gandy are copied. (CRI: 842-844)
13 August 15, 2012: Associate Dean Dr.Aukerman notified Defendant's
Hiring Authority, that Dean Dock's hiring of Carol Sullivan had been an
"Inappropriate, unethical, and/or illegal actions of Dean Tom Dock". (CR1:
871; 872 sec.l 0)
August 16, 2012: Associate Dean Aukerman notified Provost Gandy that
the department had determined that Sullivan was not qualified for nor
acceptable for the Chair position: that "the 9 faculty members who visited with
Carol Sullivan said she was unacceptable for the Accounting Department
Chair position, byavoteof8-l." (CR1: 846)
August 29, 2012: Defendant notified "the search has been successfully
completed" and Appellant "was not the candidate selected for the position". (CR1:
852)
August 31, 2012: Defendant identified on its official
Applicant log that Carol Sullivan was the candidate 'hired'. (CR1 :885: Sullivan
'hired'; Vanzante 'not hired')
Two years later, on September 17, 2014: Dock testified that Dock was the
decision-maker and stated: " I hired Carol (Sullivan) as Chair of the Department
of Accounting, and at the professorial rank of full professor". (CR1: 665, p.6,
lines 15-19) (CR1: 664 for date of deposition).
===================== 14 Ever since Dock's illegal selection I hiring of Sullivan, Defendant has been
offering new and changing reasons for the selection I hiring of Sullivan to cover up
the fact that its investigation had found that Dock's hiring Sullivan was an
Inappropriate, unethical, and/or illegal action.
August 29, 2012: Appellant requested the reason that Appellant was not hired.
(CR 1: 852 I 892)
September 13,2012: Defendant removed Dock as the Dean and Associate Dean
Aukerman became Interim Dean. (CR I :876) (CR 1: 724, p.29, lines 18-24).
Provost Gandy instructed Interim Dean Aukerman that Sullivan was the
person hired for the Chair opening and go with it. (CR 1: 725, p.30, lines 3-9) (CR
1: 724, p.28, line 25 to p.29, line 11 ).
September 19, 2013: Interim Dean Aukerman sends memo to Defendant's HR
Director and to Provost Gandy: (CR 1:927)
"Upon completion of the search process it was determined that Dr. Carol Sullivan was the most appropriate fit for our needs at this time. "
Both Interim Dean Aukerman and Provost Gandy knew this reason was false at
the time it was created to be placed in Defendant's hiring records. Dr.Aukerman
and Provost Gandy had previously been informed by the Faculty Search
Committee that Sullivan did not meet the position's required qualifications, was
15 not qualified and Dock's hiring of Sullivan was illegal. (CR1: 840) (CR1: 871; 872
sec.10)(CR1: 846)
Defendant did not reopen the chair selection process after Dock's removal as
Dean and Dr.Aukerman testified that the position should have been re-advertised
after Dean Dock received the faculty determination that Sullivan was not qualified
to. (CR 1: 724, p.29, line 23 to CR 1:725, line 2). (CR 1: 723, p.25, line19 to CR
1: 724, p.26, line 20)
Aukerman, as Interim Dean, and Provost Gandy signed off on Dock's hiring
of Sullivan. (CR 1: 739, p.86, lines 9-15)
==================
DEFENDANT'S FINDING AND KNOWLEDGE OF DEAN'S DOCK LACK OF CREDIBILITY AND DISHONESTY DURING SELECTION PROCESS
By August 15, 2012: Defendant had started investigating Dean Dock for
serious misconduct. Associate Dean Dr.Aukerman had documented and
reported to Assistant Dean Martin Brittain an extensive and detailed listing of 26
acts of "Inappropriate, unethical, and/or illegal actions of Dean Tom Dock".
(CR 1: 871-874).
Defendant had found that Dean Dock lied and made up reasons to hire Sullivan
at the time of these events.
16 (8) hiring of Carol Sullivan for the Accounting and Finance Department Chair position who was not recommended for interview by the search committee and who the faculty have voted 8 to I that Sullivan was 'unacceptable'. "Tom Dock had decided previously that he wanted to hire her." (CR 1: 872, sec. 10)
December 6, 2012: Defendant I TAMU System Auditor issues its Final Report. (CR 1: 878-879) The TAMU System Auditor found: Thomas Dock as Dean had: (1) Falsification of University Records that rose to level of possible violations of the Texas Penal Code Sec.37.10, Tampering with a Governmental Record and forwarded for further criminal review. (CR 1: 878)
(2) Misuse of Donor Funds: Thomas Dock, as Dean, had misused and misappropriated money.(CR 1: 878-879)
(a) Dean Dock made approximately $5,000 in unallowable expenditures of donor funds; (CR 1: 878) (b) the department had approximately another $63,700 in questionable expenditures (CR 1: 879)
January 14, 2013: Provost Gandy sent notice to Thomas Dock that Dock, as Dean had engaged in activities of improper activity: 1) Falsification of University Records; 2)Misuse of Donor Funds, and 3) Unauthorized Work Locations. (CR 1: 881)
Dock was not terminated for these senous acts of fraud, misappropriation,
falsification of documents. (CR I: 881)
Appellant's 2006 Release and Settlement with Texas A&M Corpus Christi
In 2006, Appellant had a jury trial against Texas A&M Corpus Christi wherein
the jury found Appellant had returned a jury verdict finding that TAMU Corpus
Christi had discriminated against Appellant on the basis of his age awarding
Appellant lost wages. Appellant entered the Settlement and Release with TAMU 17 Corpus Christi after specific sections were included that protected all Appellant's
future rights of employment with TAMU Kingsville. (CR 1: 771-776, see 773,
sec.3)
The 2006 Settlement and Release with Texas A&M Corpus Christi specifically
provided that Appellant could apply for the position at issue in this suit at any time
it came open: (CR 1: 778, sec. 3; same as CR 1:773, sec. 3).
SUMMARY OF THE ARGUMENT
Defendant has alleged that it is entitled to a judgment as a matter of law--there are no
factual disputes.
Appellant provides evidence that the 2006 Release and Settlement Agreement with
TAMU Corpus Christi was not a reason Appellant was not hired and allowed Appellant
to apply for the Chair opening.
Appellant provides evidence that: Appellant was qualified: met the Chair position's
actual required minimum qualifications and preferred qualification; met each of the
alleged qualifications raised in Defendant's Motion for Summary Judgment.
Appellant provides evidence that Defendant's legitimate non-discriminatory reasons
are false and a pretext for discrimination.
Appellant provides evidence of Disparate Treatment of Appellant and the younger
person hired, Carol Sullivan.
18 ARGUMENT
Standard of Review
The purpose of a summary judgment is to "provide a method of summarily
terminating a case when it clearly appears that only a question of law is involved
and that there is no genuine issue of fact." Rincones v. WHM Custom Serv, 457
F.3d, 221, 236. citing Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563
(Tex. 1962).
The Appellate Court reviews a summary judgment de novo. Rincones at 236.
citing Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no
pet.).
In deciding whether there is a genuine issue of material fact, evidence favorable
to the non-movant is taken as true, and all reasonable inferences are made, and all
doubts are resolved, in favor of the non-movant. Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 425 (Tex. 1997);
=============================================================
19 Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi was not a Basis to grant Summary Judgment
(A) Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:
Defendant alleges that Appellant's suit should be dismissed based there is not
fact issue regarding Appellant being barred from filing this suit based upon a 2006
Release and Settlement Agreement.
Defendant's argument is not relevant to Defendant's MSJ to dismiss Appellant's
discriminatory failure to hire claim: Appellant's 2006 Release and Settlement
Agreement with Texas A&M Corpus Christi was not the or a basis that Defendant
did not hire Appellant for the Chair position; and cannot negate the discriminatory
act of which Appellant complains: Defendant's wrongful act of hiring the younger
applicant over the Appellant.
August 29, 2012: Date Defendant notified Appellant of non-hire and that
someone else had been hired. (CR 1:852)
January 7, 2013: the date Appellant would have started working. (CR 1: 780)
Appellant's 2006 Release and Settlement Agreement with Texas A&M Corpus Was Not the Basis Defendant Did Not Hire Appellant
February 20, 2012: Defendant posted an opening seeking applicants for Chair
ofthe Department of Accounting to begin working January 7, 2013. (CR 1: 780-
787). Appellant, 66, applied; Carol Sullivan (51) applied. (CR 1: 652, sec. 4). 20 Defendant hired Carol Sullivan, the substantially younger candidate. (CR 1: 652,
sec.4)
Dean Dock testified Carol, I hired Carol as Chair of the Department of
Accounting, and at the professorial rank of full professor." (CR I: 666, p.6, lines
15-19)
August 6, 2012: Krueger testified that Dean Dock told the faculty that Dean
Dock had selected and hired Sullivan. (CR 1: 697, p.24, lines 2-8)
August 6, 2012: Dean Dock hired and contracted with Sullivan: offered
Sullivan the Chair position and Sullivan accepted. (CR I: 842-844)
--(Sullivan's acceptance on last page, (CR I: 844) "I accept this proposal without any revisions. Thank you for the opportunities and I look fOrward to contributing to the excellence at Texas A&M- Kingsville. " "Respectfully,
Carol Sullivan (signature)
Dean Dock then instructed Krueger, Defendant's Director of Research for the
College of Business, to write the actual basis for hiring Sullivan and the basis for
not hiring the other four applicants considered for the Chair position, which
included Appellant. (CR I: 697, p.24, lines 2-14)(CR 1: 848-Krueger's basis). (CR
1: 701, p.38, lines 8-12),
21 August 23, 2012 Dr.Krueger reviewed Appellant's application I resume and
stated the reason and basis Appellant was not hired was: (CR 1: 1051, bottom;
Vanzante, Neal)
"Professor Vanzante left teaching profession two years ago. Although he was a professor at Texas A&M University --Kingsville for many years, his reference list does not include someone from this institution. Instead of helping Texas A&M University--Kingsville, he left to join a university that was already accredited. We are interested in someone who is willing to work here to make our CBA an AACSB--accredited institution."
(This was Dr.Krueger's determination and finding). (CR 1: 698: p.26: lines 5-16) (*this paragraph is later deleted and rewritten by Dean Dock as shown below)
August 26, 2012: Martin Brittain (Defendant's Hiring Authority-CR 1: 781 ),
identified, in its official Applicant History, that Defendant's basis Appellant was
not hired was: (CR 1: 888)
Vanzante, Neal:
Not Hired: "Other, Was at TAMUK, but left. Reference list does not include anyonefro(m) TAMUK. Need someone who will work to help TAMUK achieve AACSB accreditation". (CR 1: 888)
August 29, 2012: Appellant was notified that he was not hired and then
requested the reason he was not hired. (CR 1: 852)
Dean Dock instructed Krueger to change the reason Appellant was not hired--
that of the four non-hired qualified applicants, Dock only changed the reason for
22 not hiring Appellant: Dock's "changes dealt with Neal Vanzante" (CR 1: 697,
p.25, line 15);
Dean Dock provided the new reason Appellant was not hired. (CR 1: 698, p.28,
lines 10-15; CR 1: 701, p.39, line 23 to p.40, line 16).
Dock's new reason: (CR 1: 850)
Dr. Vanzante does not meet the two salient position requirements: (I) professorial experiences that meet the current college expectations of a Full Professor and (2) AACSB Academically Qualified (AQ) status.
*this document is dated August 23, 2012, but the evidence above supports that Dock created this document after Krueger's original Aug 23, 2012, document, after Defendant's Aug 26, 2012, reason, and after Appellant's Aug 29, 2012, request for the selection basis.
Defendant has found that, during this same time period, Dock has a record of falsifying University documents.(CR 1: 878)
Summarizing: Appellant's 2006 Release and Settlement Agreement with TAMU Comus Christi is not relevant to Appellant's Discrimination Claim of Failure to Hire because it was not a basis for Defendant's decision not to hire Appellant
B. Appellant VanZante Was NOT Prohibited From Applying for the Chair Position by the 2006 Release and Settlement Agreement with TAMU-CC. (response to defendant's argument beginning CR 1:298)
The 2006 Release and Settlement Agreement ("Agreement") with TAMU-CC provided Appellant could apply for the Chair opening.
23 Appellant has produced evidence that the 2006 Release and Settlement
Agreement with TAMU-CC provided that Appellant could apply for the opening
with Defendant Texas A&M University Kingsville.
The last sentence in Section 3 of Appellant's 2006 Release and Settlement
Agreement with TAMU Corpus Christi provides: CR 1: 778, sec. 3, last sentence
sec. 3; CR 1: 773, sec.3, last sentence).
"The Parties further agree that this paragraph (Paragraph 3) shall not !H!1!!J!. to any applications Appellant may make to Texas A&M University-- Kingsville, for employment in positions such as an endowed chair position that mav become available after the execution ofthis agreement. "
Appellant filed this action based upon discriminatory actions by Defendant
TAMU Kingsville related to Appellant's application process and non-hiring of an
endowed Chair position that became available after the execution of the 2006
Settlement and Release with TAMU Corpus Christi.
February 24, 2012: Appellant applied for a posted opening for the Chair of the
Department of Accounting and Finance. (CR 1:799).
Defendant' job posting identified the opening as being 'the holder of a named Chair'. (CR 1:781: job summary).
Dean Dock testified that "a named Chair is an endowed Chair", and the opening was for an endowed Chair. (CR 1: 666 at p.9, lines 7-8; p.29, line 22 to p.30, line 3).
24 ---===='
Paragraph 3, Last Sentence
Appellant knew that TAMU Kingsville had been wanting to have an Endowed
Chair and T AMU Kingsville would continue to be working on establishing this
position. (CR I :658: sec.30). The Parties added the last sentence to Section 3
allowing Appellant an unqualified right to apply for an endowed chair opening
without any restriction and not subject to any restriction. (CR I: 658: sec.30)
The parties clearly put in writing and agreed in the last sentence of Section 3 as
a stand alone provision:
"The Parties further agree that this paragraph (Paragraph 3) shall not applv to any applications Appellant may make to Texas A&M University--Kingsville, for employment in positions such as an endowed chair position that may become available after the execution of this agreement." (CR 1: p.776, last sentence sec. 3; same at CR 1: p. 773, sec. 3--Iast sentence).
IF Defendant's changes, as set out in its Motion, were part of the terms in the
2006 Settlement and Release for Appellant's application to a Chair opening at
TAMU Kingsville, THEN these terms would have been added to the wording of
the 2006 Settlement and Release with T AMU Corpus Christi regarding Appellant's
application for a Chair opening. (CR 1:660, sec.36; p. 659, sec. 35)
Appellant could have then accepted or rejected the limitation and wording.
Appellant would have rejected any Settlement and Release that restricted
25 Appellant's right to return to work for Defendant or to apply for a Chair opening at
TAMU Kingsville. (CR I: 655 sec.l5; p.654, sec.IO)
Just the opposite: such a restriction and meaning, as now asserted by TAMU
Kingsville, was not included and the TAMU Corpus Christi Settlement. The
TAMU-CC Settlement and Release sets out the parties' intention regarding the
Appellant's right to apply for the Chair opening at any time: that there is no
restriction that Appellant be currently employed with the Defendant in order to be
eligible to apply for an endowed Chair opening. (CR I: 778, sec. 3, last sentence)
Appellant's Departure to work at UTPA
The Release and Settlement Agreement was executed in September of 2006
(CR 1:776);
Beginning in early 2007, Appellant discussed with his Dean, Dr. Jane Stanford,
Appellant taking a leave of absence from Defendant in order to gain the
experience that would benefit T AMUK in its AACSB accreditation process.
Defendant had been planning to seek AACSB accreditation. (para from CR I: 654,
sec.ll-13 ).
Appellant had included a provtsiOn m the 2006 TAMU Corpus Christi
Settlement and Release Agreement that specifically provided for this situation:
(CR 778: sec.3) 26 "The Parties further agree that, for the purposes of this Agreement, any actions ~r apP_lications required of Appellant by Texas A&M University--Kingsville, mcludmg but not limited to applications for renewal of tenure and applications for summer teaching at Texas A&M University--Kingsville, shall be exempt from the restrictions set forth in Paragraph 3. "
In 2007, the opportunity arose that Appellant could work at University of
Texas Pan American (UTPA) which was an AACSB accredited doctoral granting
institution and UTPA was going through its AACSB re-accreditation process. (CR
1:p.654, sec.12).
Prior to leaving Defendant and submitting his resignation to work at the Univ.
of Texas Pan American:
(a) Appellant requested verification from both Dr. Kay Clayton (Provost) and Dr. Jane Stanford (Dean of the College of Business Administration) that the 2006 Settlement and Release Agreement allowed for Appellant's 'resignation" and "reapplication" with Defendant--TAMU Kingsville. (CR 1: p.654, sec.14 );
(b Appellant requested that both, Dean Stanford and Provost Clayton, contact TAMU System Attorneys to confirm that this would be acceptable under the 2006 TAMU Corpus Christi Settlement and Release Agreement. (CR 1: p.654, sec.14).
Dean Stanford instructed Appellant that Appellant resigning and returning at a
later date would be acceptable to Defendant and acceptable under the 2006 TAMU
Corpus Christi Settlement and Release Agreement. (CR 1: p.655, sec.14).
27 Dean Stanford told Appellant that Appellant's resignation from Defendant and
returning work with the Defendant at a later date was acceptable to the Provost
and the System. (CR 1:p.655, sec.15).
Appellant would not have left his position at TAMUK and would have
rejected the offer to join the University of Texas Pan American if Defendant had
not agreed that Appellant was allowed to resign in 2007 and return at a later date to
work for Defendant under the 2006 Settlement and Release with TAMU Corpus
Christi. (CR 1:p.655, sec.15). "Dean Stanford told me (Appellant) that this was
acceptable to the Provost and the System. (CR 1:p.655, sec.15)
On June 1, 2007: After Appellant had received Dr.Stanford's confirmation:
Appellant submitted his letter of resignation to Dean Stanford (Defendant)
confirming that Appellant could resign and return to work for the Defendant in the
future. (CR 1:p. 789)
June 4, 2007: Dean Stanford, on behalf of President Juarez and Provost
Clayton, accepted Appellant's letter of resignation and right to return to work for
the Defendant at a later date. (CR 1:p. 789) Defendant's agents and representatives
to the email were: (CR 1:760, p.57, line 20 to CR 1: p.59, line 11)
Jane Stanford: Interim Dean of College of Business Stuart Isdale: Defendant's Director of Human Resources Kay Clayton: University Provost President Juarez: President of the University Pamela Trant: Senior Administrative Assistant 28 Robert Diersing: Former Dean of College of Business Ms. Guajardo: University Office Manager Richard Aukerman: Department Chair,
Defendant's Own Records Evidence that Appellant Was Not Barred From Leaving and Returning to Work for Defendant
June 7, 2007: Defendant accepted Appellant's letter of resignation and right to
return to work for Defendant at a later date. (CR I :789)
Thereafter Defendant accepted Appellant's applications for openings at TAMU
Kingsville after 2007.
October 18, 2010: Following Appellant's application for Department Chair,
Defendant notified Appellant of non-selection and adds "we hope you will continue
to give our institution consideration for employment". (CR 1:p. 791)
March 29, 2011: Following Appellant's application for Assistant Professor,
Defendant notified Appellant that Defendant did not hire anyone for the Assistant
Professor position and adds "we hope you will continue to give our institution
consideration for employment". (CR I :p. 792)
August 29, 2012: As concerns the Chair position at issue in this suit:
Defendant notified Appellant of non-selection and informs Appellant: "we hope
you will continue to give our institution consideration for employment". (CR
l:p.793)
29 ----------------------------------------- Section 3: "Paragraph 2"
Appellant was first provided a Version of the Settlement and Release that
contained only the one paragraph, number 3, which was unacceptable because it
did not protect Appellant's employment at TAMU Kingsville where Appellant had
taught for over 18 years. (CR 1: 656: sec.23)
TAMUK officials (Department Chairs, Deans, and Provost Kay Clayton)
and Appellant had been discussing for several years the benefit to T AMUK of
Appellant taking a "leave of absence" and the fact the leave would require a
"resignation" followed by a "reapplication" if the period was for more than one
academic year. The specific benefit to T AMUK was considered to be the first
hand AACSB experience for Appellant, Defendant's senior accounting faculty
member who would then bring this experience back to T AMUK for purposes of
pursuing AACSB accreditation. For that reason, it was important to exclude
TAMUK from the prohibition of the stand-alone paragraph 3. (para from CR 1:
656-657: sec. 24)
The next version of the Release offered was a two sentence paragraph (marked
TAMU-002126). Appellant accepted wording that Appellant was not required to
resign at Tamu Kingsville where Appellant was a Professor of Accounting.
Appellant objected to the rest of the paragraph as is because it did not set out the 30 conditions Appellant required to protect his opportunities as Tamu Kingsville
where Appellant had taught for over 18 years. (para from CR 1:657: sec. 25)
Appellant had already had discussions with the TAMU Kingsville, as set out
above, regarding Appellant taking action of leaving TAMU Kingsville to obtain
AACSB accreditation and AACSB accreditation experience (which TAMU
Kingsville needed in its AACSB accreditation process) and then returning to
TAMU Kingsville. TAMU Kingsville would require Appellant and its professors
to become AACSB AQ in its accreditation process. (CR 1:657, sec.26).
The Parties then agreed to insert the next to last sentence which clearly
clarified Appellant's right to take any action necessary to maintain his current
position which was going to be required by TAMU Kingsville to become AACSB
AQ accredited. (CR 1: 658: sec.28)
Sec.3: Next to Last Sentence: (CR 1: 778, p.3, sec. 3; p.774, sec. 3)
The Parties further agree that, for the purposes of this Agreement, any actions or applications required of Appellant by Texas A&M University-- Kingsville to maintain his current position of Professor of Accounting, including, but not limited to applications for renewal of tenure, applications for summer teaching at Texas A&M University--Kingsville, shall be exempt from the restrictions set forth in Paragraph 3. "
The third sentence clearly states that "any actions or applications" required to
maintain Appellant's current position" shall be exempt. This wording specifically
allowed for TAMUK and Appellant to take the "action" which would allow for
31 Appellant's "reapplication" following Appellant gaining the first-hand AACSB
experience and getting a record of being AACSB AQ. (para from CRl :658: sec.28)
II. The Trial Court Erred in Dismissing Appellant's Age Discrimination Lawsuit
A. Appellant Establishes Direct Evidence of Age Discrimination
Appellant submits that he has provided direct evidence to support a factual issue
for a jury to determine Appellant's action for age discrimination.
If a material fact is supported by direct evidence, then the issue must be
submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex
1975)
Pattern Jury Charge 100: "a fact is established by direct evidence when proved
by documentary evidence or by witnesses who saw the act done or heard the words
spoken." PJC 100
Appellant filed a failure to hire cause of action based the wrongful hiring of
Sullivan and Defendant hiring a substantially younger person--Sullivan (age bias)
32 Expressions may be "direct evidence" of motivation "when they are related to
the specific employment decision challenged, and made close in time to the
decision." Quality Dialysis, Inc. v. Adams, 2006 Tex. App. LEXIS 4921,
Documentary Evidence
Defendant admits Dean Dock's Hiring of Carol Sullivan was Wrongful I Illegal
Defendant's internal investigation conducted at the time of the failure to hire
Appellant and the hiring of Carol Sullivan determined that the hiring was an
"Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR 1:
872, sec. 10)
August 15, 2012: Associate Dean Aukerman notified and warned Martin
Brittain, the Defendant's Hiring Authority for the Chair selection process, that
Dean Dock's hiring of Carol Sullivan was inappropriate, unethical, and/or illegal.
Dr.Aukerman determined that: : (CR 1: 872, sec. 10)
Sec ( 10) hiring of Carol Sullivan for the Accounting and Finance Department Chair position who was not recommended for interview by the search committee and who the faculty have voted 8 to 1 that Sullivan was 'unacceptable'. "Tom Dock had decided previously that he wanted to hire her." (CR 1: 872, sec. 10) (*Defendant produced this document after Dr.Aukerman's deposition)
Defendant admits facts to establish age as basis I motivating factor for wrongful hiring of Sullivan
Defendant admits that Sullivan, the person hired, was substantially younger
than Appellant (CR 1: 301, sec. A). Appellant has also provided evidence to
33 support a finding of age bias: Sullivan was significantly younger, 15 years, than
Appellant. (CRI: 871, 872 sec. 10).
Defendant's admissions establish a factual issue for a jury and support a
finding of wrongful age discrimination in this matter.
PLAINTIFF ESTABLISH CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATION
To establish a prima facie case of employment discrimination the Appellant must show: ( 1) he was a member of a protected class, (2) he was qualified for his employment position, (3) he was subject to an adverse employment decision, and (4) he was replaced by someone outside of the protected class, or he was treated less favorably than similarly situated members of the opposite class (disparate treatment cases)." Rincones v. WHM Custom Serv, 457 SW3d 221, 234 citing Michael v. City ofDallas, 314 S.W.3d 687, 690-91 (Tex. App.-Dallas 2010, no pet.)
If the Appellant establishes a prima facie case, then the burden shifts to the
defendant to "produce evidence that the Appellant was rejected, or someone else
was preferred, for a legitimate, nondiscriminatory reason." Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
34 APPELLANT'S PRIMA FACIE CASE
Step One: Element No. 1: Appellant is a member of a protected class
Defendant does not contest this element. (CR 1: 301, sec.II, A)
Appellant was 66 years of age at the time of the employment decision not to hire
Appellant for the advertised Chair of the Department position,. (CR1: 652: sec. 4).
Texas Labor Code Sec. 21.101 defines the protected class of age as "an individual
40 years of age or older".
Element No.2: Appellant was qualified for the Chair position,
Appellant met the Chair position's actual required minimum qualification requirements;
Actual Job Posting Stated 'Required Minimum' and 'Preferred Qualifications' (Current Employment Not Requirement)
The Chair Position's written job posting: (CR 1: 782 top)
Minimum (actual required) Qualifications: "Candidates must have 18 graduate hours for every field in which they will teach. Candidates must be professionally qualified to (1) hold the rank of Full Professor and (2) be AACSB Academically Qualified (AQ).
35 ======
CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO.1
Appellant was Professionally Qualified to hold the rank of Full Professor
Dr.Richard Aukerman, Search Committee Chair and Associate Dean of the Department
Assoc.Dean Aukerman provides evidence that Appellant met all Defendant's
requirements to be hired as a Full Professor.
Dr.Aukerman began employment with the defendant in 2002; promoted to
Chair of the Department of Accounting and Computer Information Systems in
2002; then promoted to Interim Dean of the College of Business Administration in
January 2009; became Associate Dean of College of Business Administration (2nd
highest ranking administrator) in July 2010 after Thomas Dock was hired as the
Dean; was promoted back to Interim Dean in September of 2012; became
Associate Dean in September of2013. (Ex. 4: p.10, line 19 to p.l3, line 5).
Dr.Aukerman testified that, while employed with the Defendant, Dr.
Aukerman had been involved in "lots' of faculty hirings either as being "on search
committees or chair of a search committee, or doing the hiring as an Interim
Dean" and involved in majority of the hiring "more than half of the faculty that are
currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.l9, line 25 top. 20,
line 19).
36 Dr. Aukerman had first-hand knowledge of working with Appellant for six (6)
years: 2002 to 2007. (auk: p.8, lines13-19; presume, p. ) (CR 1: 782 mid page).
Assoc Dean Aukerman, testified, based on Aukerman's experience with
Defendant's hiring process, evaluating applicants, his administrative experience,
and, after reviewing Appellant's application -- resume, that:
Appellant was qualified to be hired as a "Full Professor".
(see CR 1: 738, p.82, lines 5-21)(Appellant's application at CR 1: 797-819; teaching employment history at CR 1: 800).
Aukerman reviewed his deposition testimony, confirmed Appellant was
qualified to be a Full Professor: made no changes to this testimony and made other
corrections. (CR 1: 741-742)
Appellant's cover letter I resume set out Appellant's work history including that
Appellant's most last teaching position was as Associate Professor of Accounting,
University of Texas Pan American, Edinburg, Texas, September, 2007 to May of
2010. (CR 1: 799, 800) Appellant applied for the Chair position in February of
2012. (CR 1: 797-919)
Aukerman establishes that Appellant's break in classroom teaching time and
not being currently teaching at time of applying was not relevant to and does not
prevent Appellant from being qualified to be hired as a Full Professor. (CR 1: 738,
p.82, lines 5-21 )(Appellant's application at CR 1: 797-819; teaching employment
history at CR 1: 800). 37 ============================== Additional Evidence to find Appellant was Qualified to Hold the Rank of Full Professor
Appellant has been qualified by as a Full Professor by Defendant for 18 years :
1999 to 2007 (CR 1: 799-800; CR 1: CR 1: 651, sec 2)
Appellant was employed by the Defendant from August, 1989 through the
summer of 2007. Defendant's policy on appointments to a Full Professor are set
out in Defendant's Faculty Handbook, Sec. B.4.1.6(b). (CR 1: 651, sec. 3; CR 1:
911) Defendant's Faculty Handbook required the individual to have held the rank
of Associate Professor (or higher) for at least five years prior to being eligible for
appointment to Full Professor. (Ex. 1: p.2, sec. 3; Ex.36-3 ---tamu 0196)
Appellant met this and all qualifications to hold the position of Full Professor
Defendant had qualified and employed Appellant in the rank of Full
Professor for 18 years. (CR 1: 799-800 -applic I resume; CR 1: 650-651, sec. 7;
CR 1: 653, sec. 10).
============== CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO. 2
APPELLANT WAS AACSB ACADEMICALLY QUALIFIED
Dr. Aukerman Associate Dean Aukerman, Chair of the Search Committee, Testified Appellant Met Defendant's AACSB Academically Qualified Requirements 38 Association Dean Aukerman was the Chair of the Chair Search Committee. (CR
1: 782 mid page).
Assoc. Dean Aukerman testified that, while employed with the Defendant,
Dr. Aukerman had been involved in "lots' of faculty hirings either as being "on
search committees or chair of a search committee, or doing the hiring as an
Interim Dean" and involved in majority of the hiring "more than half of the faculty
that are currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.19, line 25
top. 20, line 19).
February 24, 2012: Assoc Dean.Aukerman informed Appellant, that to meet
requirement to be AACSB Academically Qualified, the Defendant required a
minimum of three (3) publications from 2009 to the time of applying in 2012. (CR
914). In the period from 2009 to applying in 2012, Appellant had published eight
peer reviewed articles, including eight listed in Cabels with acceptance rates less
than 30%. (CR 1: 803-804 --resume; CR 1: 652-653, sec. 7)
Assoc. Dean Aukerman reviewed Appellant's resume, publication record and
the AACSB Section 10 accreditation standards: Aukerman then testified that:
Appellant was and met the Defendant's AACSB Academically Qualified requirements for the position. (CR 1: 738, p.82, lines 2-20).
39 Aukerman reviewed his deposition testimony, confirmed this testimony that
Appellant was AACSB Academically Qualified: made no corrections. (CR 1: 741-
742)
======================= Additional Evidence Appellant Was Classified as AACSB AQ and Satisfied Defendant's AACSB AQ Standards
Appellant was employed at Univ. of Texas Pan American (UTPA) , from
2007, to May 2010. UTPA is an AACSB accredited university and Appellant was
certified AACSB AQ status during his employment at UTP A and gained AACSB
accreditation knowledge during employment at the UTPA. (CR 1: 890)(CR 1:
660-61, sec. 39-40). (CR 1: 652, p.3, sec. 5)
Defendant TAMU-K was a Master's Degree granting university. UTPA was a
doctoral degree university. Dean Dock testified that the AACSB AQ standards at
UTPA, a doctoral degree granting university, would be more stringent that
defendant's standards, a masters degree granting university. ( CR I: 682: p.72,
lines 10-15) (see also CR 1: 652, sec. 5 of Appellant's Affidavit).
40 Dr. Krueger was defendant's Director of Research, whose job was to
analyze research for AACSB purposes, at the time of the hiring selection in this
lawsuit. (Ex.3: p. 67, lines 17-23).
Both Dr.Krueger and Assoc. Dean Aukerman establish that Appellant needed
only 3 articles in the prior five year period to meet AACSB AQ accreditation
standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24 email
Appellant's publications vastly exceeded the amount required for AACSB
AQ status: In the immediate three year period (2009-2012) prior to Appellant's
application to Defendant, Appellant had a total of eight acceptable quality
publications (all of which were in journals with acceptance rates ofless than 30%).
(Ex. 1: p.3, sec.6)(Ex.11: Appellant's application).
Appellant met the Position's Preferred Qualifications
The Chair Job Posting identified the position's preferred qualification as: page
3. (CR 1: 782)
Preferred Qualification: AACSB accreditation
Appellant was formally accredited as AACSB Academically Qualified at the
time of his application process. (CR I: 890, 799, 800; CR 1: 652, sec. 6
Younger Applicant: No record of being AACSB AQ accredited
41 Carol Sullivan, the younger applicant hired, had no record of being AASCB
accredited. (CR I: 821-832)
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT's REASONS FOR THE ACTUAL HIRING DECISION
Defendant's Motion for Summary Judgment alleges more new reasons for its Decision not to hire Appellant
Defendant's Motion for Summary Judgment alleges new reasons, which were
not part of the actual selection and hiring decision, process that Appellant was not
qualified for the position and that Sullivan was the most qualified.
Defendant's new reasons are:
( 1) Appellant did not meet the 'general qualifications' of 'leadership, administration, and interpersonal and professional communication'. (CR 1:301-302, sec. A, i)
(2) Appellant was not qualified to hold the rank of Full Professor based on a new position required qualification that applicant must be 'a professional, a facilitator, and a trustee'. (CR I: 303-304, sec. i)\
(3) Appellant was not AACSB Academically Qualified based on a new position required qualification that Appellant must be continuously employed at the time of application or Appellant would not be AACSB Academically Qualified. (CR I: 304-305, sec. ii).
*Defendant asserted this same 'continuously employed' argument and presented the same exhibits to Judge Vela who denied Defendant's Plea to Jurisdiction and No-Evidence Motion for Summary Judgment. (CR 291, 292) ( CR 1: 23-111-- Defendant's Argument and Evidence)
42 Appellant provides evidence that:
(b) Appellant met Defendant's MSJ's new qualification requirements;
(c) Defendant's new required qualification requirements were not used in the actual hiring decision-making process;
(d) Defendant's new required qualification requirements are based on ten to fifteen year old documents that were part of the application process and were not used in the actual hiring decision-making process;
(e) Disparate Treatment: Defendant's MSJ's new qualification requirements were not applied to younger candidate hired (Sullivan): Defendant determined Sullivan did not meet required qualifications
Defendant Admitted to the EEOC Investigator that Appellant met all required Qualifications for the Chair Position that Defendant alleges Appellant did not meet
Defendant had actually determined that Appellant met the mtmmum
requirements to be: professionally qualified to (1) hold the rank of Full Professor
and (2) be AACSB Academically Qualified (AQ), that Defendant's MSJ asserted
Appellant did not meet.
Defendant admitted to the EEOC that Appellant met the Chair position's
minimum required qualifications. (CR I: 865-866)
"The application system determined three applicants did not meet minimum qualificatation, leaving five candidates who did meet minimum qualifications. These were: 43 Dr.Neal Vanzante" plus 4 others
Defendant's Written Job Posting identified the 'Minimum Qualifications' as: (CR
1: 782)
Candidate must be professionally qualified to:
(1) hold the rank of Full Professor and (2) be AACSB Academically Qualified (AQ).
Defendant's New Reasons Were not a Basis in the Actual Hiring Decision- making Process
Defendant's Written Basis for the Not Hiring Appellant
August 6, 2012: Dean Dock announced to the faculty that Sullivan was hired
for the Chair position--- that Dean Dock hired Sullivan. (CR 1: 697: p.24, lines 2-
8) After Dean Dock's announcement that Sullivan was hired, Dean Dock
instructed Krueger to write the basis for hiring Sullivan and the basis for not hiring
the other four applicants considered eligible for the Chair position, which included
Appellant. (CR 1: 697, p.24, lines 2-14)(CR 1: 848).
August 23, 2012: date of Dr.Krueger's determination of the reason and basis
Appellant was not hired was: (CR 1: 848, bottom; Vanzante, Neal)
"Professor Vanzante left teaching profession two years ago. Although he was a professor at Texas A&M University -- Kingsville for many years, his reference list does not include someone from this institution. Instead
44 of helping Texas A&M University--Kingsville, he left to join a university that was already accredited. We are interested in someone who is willing to work here to make our CBA an AACSB--accredited institution."
August 26, 2012: Defendant identified the same basis Appellant was not hired
was: (CR 1: 888)
Not Hired: "Other, Was at TAMUK, but left. Reference list does not include anyone.fro(m) TAMUK. Need someone who will work to help TAMUK achieve AACSB accreditation". (CR 1: 888)
August 29, 2015: Appellant made an 'official request' for the reason
Appellant was not hired. (CR 1: 852: top email).
Of the Four Non-Selected Applicants: Dean Dock instructed Krueger to change ONLY the basis for not hiring Appellant
There were five applicants considered qualified for hiring. (CR 1 848, 850).
Krueger testified that there a pool of five applicants considered for the position.
(CR 1: 700, p.40, lines 3 to 5). The five qualified applicants considered for the
position were: (CR 1: 850, 848)
Carol Sullivan Ghosh, Dilip Haque, Mohammed Robbani, Mohammad Vanzante, Neal
45 As to qualified candidates not hired: Dean Dock only changed the reason for
not hiring Appellant (Neal Vanzate); Dock did not change the reasons for the other
three candidates considered for, but not hired for, the Chair opening. (CR 1: 850,
848)(CR 1: 697, p.25, line 15).
Dean Dock's New Reason Appellant was Not Hired
Dean Dock removed Krueger's entire determination and replaced it with: (CR
1: 850)
Dr. Vanzante does not meet the two salient position requirements: (1) professorial experiences that meet the current college expectations ofa Full Professor and (2) AACSB Academically Qualified (AQ) status.
This is in a document dated August 23, 2012. (CR 1: 850). Appellant submits
that the above facts and timeline support an inference that Dean Dock changed the
reason for Appellant's hiring after Appellant's August29, 2012, request Defendant
to produce the hiring basis.
During this time period, Defendant had found that Dock falsified records,
misused funds and lied about other employment hirings. (CR I: 871-874; 878-879)
==============
46 KRUEGER'S BASIS APPELLANT WAS NOT HIRE INFERS PLIANTIFF MET THE POSITIONS TWO REQUIRED QUALIFICATIONS
The Chair Job Posting identified two required Minimum Qualifications: (CR 1:
782)
Minimum Qualifications: "Candidates must have 18 graduate hours for every field in which they will teach. Candidates must be professionally qualified to (1) hold the rank of Full Professor and (2) be AACSB Academically Qualified (AQ).
The evidences supports the fact that: Dr.Krueger, Defendant's Director of
Research, reviewed Appellant's application as applied to the job requirements, and
determined Appellant met the two salient position requirements: (1) professorial
experiences that meet the current college expectations of a Full Professor and (2)
AACSB Academically Qualified (AQ) status BUT WAS NOT HIRED for
"other" reasons: (CR 1: 848)
"Professor Vanzante left teaching profession two years ago. Although he was a professor at Texas A&M University-- Kingsville for many years, his reference list does not include someone from this institution. Instead of helping Texas A&M University--Kingsville, he left to join a university that was already accredited. We are interested in someone who is willing to work here to make our CBA an AACSB--accredited institution.
Dr.Krueger did not find that Appellant did not meet the position's required minimum requirements. (CR 1: 848; 782- job posting)
The evidences supports the fact that: Defendant's Hiring Authority determined
Appellant met the two salient position requirements: (1) professorial experiences 47 that meet the current college expectations of a Full Professor and {2) AACSB
Academically Qualified (AQ) status BUT WAS NOT HIRED for "other"
reasons: (CR 1: 888)
Other, Was at TAMUK, but left. Reference list does not include anyonefro(m) TAMUK. Need someone who will work to help TAMUK achieve AACSB accreditation". (CR 1: 888)
DEFENDANT'S NEW GENERAL QUALIFICATION REQUIREMENT of Leadership,Administration, Interpersonal and Professional Communication
Defendant's Motion for Summary Judgment alleged Appellant was not qualified
because : 'Appellant did not meet general qualifications' of Leadership,
Administration, Interpersonal and professional communication. (CR I: 301-302).
These newly asserted requirements were not used in the decision to hire the Chair and not part ofthe hiring decision process.
Defendant's alleged required qualification of skills of Leadership,
Administration, Interpersonal and professional communication (CR I: 30 1-02)
were not part of the actual position's posted required minimum or preferred
qualifications and not considered during the selection process identified in the Job
Posting under 'Minimum Qualifications' and 'Preferred Qualifications'.(CR I: 782)
Appellant incorporates his facts in the decision process set forth above in
support.
48 New Requirements of Leadership,Administration, Intemersonal and Professional Communication Not Applied to Younger Candidate Selected
Evidence also supports a finding that defendant did not use these alleged
general qualifications in the decision-making process as they were not applied to
Sullivan, the younger applicant hired, whom Defendant's Search Committee and
Chair had determined did not meet the position's required qualifications-thereby
not meeting these alleged general qualifications' of Leadership, Administration,
Interpersonal and professional communications. (CR 1: 836-838, 840, 846).
============================
APPELLANT MET THIS REQUIREMENT
Appellant provides evidence that Appellant met the alleged basis of general requirements for Full Professor of Leadership, Administration, Intemersonal and professional communications.
Appellant possessed these skills in Leadership, Administration, Interpersonal
and professional communication" as shown in Associate Dean Aukerman's
testimony Appellant was qualified to hold the position of Full Professor, had held
the position of Full Professor with the Defendant for 18 years, and Appellant's
application resume.
49 Associate Dean Aukerman had worked in the College of Business with
Appellant from about 2002, to 2007, and had first-hand knowledge of Appellant's
skills. (CR 1:720, p.10,line 19, to p.l3, line 5). Aukerman testified Appellant
possessed skills of 'Leadership, Administration, Interpersonal and professional
communications' (CR 1: 719, p. 8, line 13 to p.9, line 12):
Q: Okay. Do you know Dr. VanZante?
A: Yes.
Q And how did you come about --
A Well, initially I met him because we both worked in the College of Business Administration. He had been here a few years when I was hired. And that would have been in 2002.
Q Have you ever written any letters of reference for Dr. VanZante?
A Yes, I have.
Q And have you ever nominated Dr. VanZante for like something called a Regents Professorship?
A Yes.
Q What is that?
A That's an award that the A&M system gives to faculty members who have performed above and beyond the call of duty, I guess you could say, in, over a number of years at the university.
Q And what about any nominations for outstanding faculty here at TAMU- Kingsville? Have you ever--
A Well, I remember I nominated him for an Outstanding Educator award for the State Accounting Association. I honestly don't remember if I've done that for an on-campus teaching award or not. I don't recall. But I know I did for the State Accounting Society.
====================== 50 Appellant's Application and Resume
Appellant's Employment with the Defendant established that Appellant possessed these newly alleged general requirements of "Leadership, Administration, Intemersonal and Professional Communication".
Appellant's application and resume provides sufficient evidence that Appellant
possessed skills of Leadership, Administration, Interpersonal and professional
communication.
The employment decision not to hire Appellant was made in August of2012.
From 2001 to 2007 Appellant received above Exceptional Annual Evaluations
each year. (CR 1: 660, sec. 38) (CR 1: 817) January- December 2005: Appellant
received above exceptional evaluation. (CR 1: 859) January- December 2006:
Appellant received above exceptional evaluation. (CR 1: 860)
Appellant's application evidenced that, from 2003 to 2012, Appellant received
consistent performance and achievement awards while employed by Defendant and
thereafter: (CR 1: 816)
Honors and Achievements
While employed with Defendant: (CR 1: 816)
Texas A&M University-Kingsville, College of Business Administration, Students' Choice Distinguished Teaching Award (May 2003). Texas A&M University-Kingsville, President's Senior Faculty Research and Scholarly Excellence Award (March 2004). This award was only given in 2004. Texas Society of Certified Public Accountants, Outstanding Accounting Educator Award (2005). Corpus Christi Chapter of the Texas Society of Certified Public Accountants, 51 2007 to 2012(CR 1: 816)
Outstanding Service Award (2007-2008). Southwest Region ofthe American Accounting Association, Outstanding Educator Award (2009). Institute of Management Accountant's Lybrand Certificate of Merit Award for outstanding character and excellence in contributing to the literature for the advancement of management accounting and financial management. (2011).
Appellant's Service with Defendant for most recent 12 Years (CR 1:815)
Beginning in 1990, through 2007, Appellant was a member of twelve (12)
Defendant College of Business Committees, including five (5) promotion, tenure,
search committees, a University Promotions Appeal Committee (2005),
Presidential Travel Support Committee (2005-2007), Accounting Faculty Search
Committee as both Chair and member. (2003, Chair, 2004, and 2006 member)
Teaching Excellence (CR 1: 817)
Teaching Record with the Defendant: (CR 1: 81 7)
While employed with Defendant from 1989 to 2007, Appellant's overall student
evaluations were significantly higher than the Department of Accounting, College
of Business and University averages. (CR 1: 817, mid page)
Teaching Record with Univ of Texas Pan American 2007 to 2010: (CR 1: 817, top)
Appellant's overall student evaluation was 4.62 on a 5 point scale.
52 Professional Service in Appellant's Field of Accounting
, Appellant served on board of directors and committees of nonprofit
organizations, providing professional services for the Texas State Board of Public
Accountancy, and serving on editorial boards. (CR 1: 814, top).
Disparate Treatment Defendant did not apply these 'general qualifications' to the Younger Person Hired: Carol Sullivan,
Defendant's Own Records Establish Carol Sullivan did not possess these 'general qualifications' of Leadership, Interpersonal and Professional Communications
The Chair Search Committee members' actual evaluations of Sullivan establish
Sullivan did not possess this newly alleged general qualification of 'Leadership,
Administration, Interpersonal and professional communications' The Chair Search
Committee members made the following written factual findings:
(1) Determined that Sullivan did not meet the position's required qualifications and not acceptable for the Chair position finding: (CR 1: 838)
(a) "Odd personality (which isn't necessarily a weakness but seem too much like the person who just left the position we are trying to fill ... )"
(b) "Don't think that she would be able to work well with our students."
(2) Determined that Sullivan did not meet the position's required qualification and not acceptable for the Chair position finding that Sullivan did not exhibit a positive feel to others:(CR 1: 837) 53 (3) Determined that Sullivan did not meet the position's required qualifications and not acceptable or the Chair position : (CR 1: 836)
Associate Dean Aukerman, the Chair of the Search Committee, determined
Sullivan did not meet qualification requirements for the Chair opening: therein did
not possess these same newly alleged general qualifications of 'Leadership,
Administration, Interpersonal and professional communications'.
(1) July 16, 2012: Associate Dean Aukerman notified the Hiring Manager that the faculty had determined Sullivan did not possess required qualifications and Sullivan was not qualified to be hired. (CR 1: 840)
(2) Aug 15, 2012: Dr.Aukerman notified the Hiring Manager that Dean Dock's hiring of Carol Sullivan was an "Inappropriate, unethical, and/or illegal action". (CR 1: 871,872 sec.lO)
(3)August 16, 2012: Dr.Aukerman notified Provost Gandy that Sullivan did not meet the position's qualifications and not qualified to be hired.(CR 1:846)
Sullivan's Employment as Chair Confirm the Findings that Sullivan did not posses these alleged 'general qualifications'
On or about August 22, 2013: Sullivan assumed Department Chair position.
(CR 1: 842).
October 31, 2013: Provost Gandy removed Sullivan as the Department Chair,
to be effective immediately. (CR 1: 854)
November 19, 2013: Provost Gandy issued Sullivan notice that her
employment would end and the end ofhercontract in May 2014. (CR 1: 856-857) 54 ================================== Defendant's Supporting Evidence was Not Used or Relied upon by Decision- makers in Not Hiring Appellant:
Defendant's exhibits were not used in the actual decision making process and
are dated 1997 to 2002 and. The applicants submitted only a cover letter and
resume during the application process. (CR 1: 797-819 Appellant applic; CR 1:
821-832--Sullivan applic)
Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant
was based solely on a review of their applications. (CR 1: 697, p.15-22)
Appellant's application did not contain the information or these documents that
defendant now uses to assert this new reason. (CR 1: 797-819)
Defendant relies upon documents taken out of context and dated 1997 to 2002.
Defendant Exhibits 10, 11, 12, 14, 15 to support its argument. None of these
exhibits were part of the actual decision-making process as shown above.
(a) Defendant MSJ Exhibit 15 (CR 1: 477): (b)DefendantMSJ Exhibit 12 (CR 1: 375-376): (c) Defendant MSJ Exhibit 10 (CR 1: 366-371): (d) Defendant MSJ Exhibit 11 (CR 1: 373): (e) Defendant MSJ Exhibit 14 (CR I: 475):
================
55 Defendant's Alleged Basis that required qualification was a professional, a facilitator, and a trustee to hold the Rank of Full Professor (DefMSJ: CR 1: 303, sec. ii, i)
Appellant Met this Qualification of a professional, a facilitator, and a trustee to o hold the rank of Full Professor
Defendant's MSJ alleged a new required qualification that a Full Professor was
"a professional, a facilitator, and a trustee." (CR 1: 303 =DMSJ sec i) Defendant
bases these new qualifications on Def. MSJ Ex. 13. (See CR 1: 303, sec. i; ex. 13
at CR 1: 378-473)
Defs MSJ asserts that Appellant must be "a professional, a facilitator, and a
trustee." (CR 1: 303) Defendant bases this assertion on DefEx. 13.
No testimony supports this assertion.
Def.MSJ Exhibit 13 is a draft document originating from University of Wisconsin Not Defendant's Policy in Use
Defendant's MSJ uses its Exhibit 13 as the basis to assert these new
qualifications. (CR 1: 303, sec. i, 1st para). Def. MSJ Exhibit 13 is located at CR
1: 377-473.
Appellant submits a jury could find from the evidence that Defendant has both,
made up this reason and presented a fabricated document, to support this
fabricated reason.
56 Det's MSJ Ex. 13, was not in use by or the Defendant's adopted policy during
these events.
Prior to being hired by Defendant, Dean Dock was employed at the
University of Wisconsin -Eau Claire. (CR 1: 666: p.8, line 22 to p.9, line 4). The
actual exhibit shows that Exhibit 13 is a document from the University of
Wisconsin (UW) MBA program and was in draft form.
(1) Def MSJ Ex. 13, p.17, top sec.: "The University of Wisconsin MBA Consortium includes the following AACSB accredited schools: the University of Wisconsin-Eau Claire, the University of Wisconsin-Oshkosh, and the University of Wisconsin-Parkside. The Consortium MBA program is managed by UW-Eau Claire." (CR 1: 394)
(1) p.19, sec. 4: "UW MBA Business Consortium Planning and Steering Committee. One member ...... .. will participate on the UW MBA Business Consortium Planning and Steering Committee." (CR 1: 396)
Dr.Krueger testified that this was a book of faculty policies and procedures that
Dean Dock was trying to bring from the University of Wisconsin-Eau Claire; and
that Defendant had not adopted it as its policy. (CR 1: 706: p.63: line 18 to p.64,
line 3).
Defendant Classified Appellant as a Full Professor 1999 to 2007
This Defendant had classified Appellant as and employed Appellant as a full
professor for 15 years: 1989 to 2007. (CR 1:799, 800; CR 1: 650-51, sec. 1)
57 . Defendant's S~pplemental Explanation to the EEOC Investigation Established Defendants Faculty Handbook, not Ex. 13 was not the policy used to evaluate a Full Professor
Defendant's Dec II, 2013, Supplemental Response to the EEOC: Defendant
acknowledged to the EEOC investigator that it was Defendant's Faculty Handbook
that set out the requirements for the position of Full Professor. (CR I: 907-908)
It was not DefMSJ Ex. 13,
======================= Documents relied upon by Defendant were not used in the Actual Decision-Making process
Defendant produces DefMSJ Exhibits, 10, 14, and 15 to assert that, as a matter
oflaw, Appellant did not possess these new qualifications. (CR I: 303-304).
These exhibits were never a part of the actual decision-making process.
None of these documents were part of Appellant's application. (CR 1: 797-
819). Krueger establishes that only Appellant's I an applicant's application was
used in determining the basis of non-selection or selection: None of these
documents were used or relied upon in the actual decision-making process. (CR 1:
697, Krueger: p.24, lines 9 to 25).
DefMSJ ex. 10: (CR 1: 366-371). Appellant's 2000 evaluation (CR 1: 366). The Dean Diersing wrote "Congratulations on a very good annual evaluation'. (CR 1: 370).
58 Def. MSJ ex. 14: (CR 1: 475) One page from Appellant's 2001 evaluation beginning with Dean Diersing acknowledging Appellant's great job performance: 'Congratulations on another fine annual evaluation. Your teaching evaluations, professional growth and development, research, and service were all excellent'. (CR 1: 475).
Def. MSJ ex. 15: (CR 1: 477). October 23, 1997: one page memo from then Dean Bigbee. (CR 1: 477). Dean Bigbee was experiencing personal problems and resigned shortly after this date. (CR 1: =================== Disparate Treatment Defendant did not require Sullivan, the younger candidate selected, to possess these newly alleged qualifications of 'a professional, a facilitator, and a trustee' which form the basis of Defendant's Motion for Summary Judgment
Disparate Treatment these New Requirements Not Applied to Younger Applicant Hired
At the time of the actual selection process, the Defendant's Accounting
Department faculty and Chair of the Selection Committee had determined that
Sullivan, the younger applicant, did not meet the position's which would include
the new requirements of being "a professional, a facilitator, and a trustee" and was
not qualified for the Chair.
The Chair Search Committee members determined that Sullivan did not meet the
required qualifications and Aukerman determined her hiring was illegal. See: (CR
1: 838) (CR 1: 837) (CR 1: 836) (CR 1: 840) (CR 1: 871; 872--sec 10) (CR 1:
846)
59 Defendant asserts that Appellant was not AACSB AQ qualified because Appellant had not taught in the 18 month period prior to applying. (CR 1: 305-306:DefMSJ p.l3-14).
ii. Appellant was AACSB Academically Qualified
Defendant's MSJ asserted that Appellant lost his AACSB AQ status by not
teaching for the 18 months prior to applying. (CR 1: 304-305, sec ii)
Defendant's Assertion that AACSB Standards Required to be 'currently employed' at time of Application is FALSE
Defendant processed Appellant's application as a qualified candidate
through-out the entire hiring process by Defendant's Hiring Authority because
current employment was not an actual requirement. (CR 1: 883-886, 888, 892)
Defendant Admits to EEOC Appellant is AACSB AQ
Defendant admitted to the EEOC that Appellant met the Chair position's
minimum qualifications which included being professionally qualified to be
AACSB Academically Qualified. (CR 1: 865-866; CR 1: 782))
Judge Vela denied Defendant's prior Motions asserting this same argument
Defendant made this same argument and the presented same exhibits to
Judge Vela on March 10, 2015. (CR 1: 23-26, 31--Defendant's Summary of
Argument with attachments on Plea to the Jurisdiction and No-Evidence Summary
Judgment). 60 Judge Vela found a fact issue existed and denied Defendant's pleadings to
dismiss on this argument. ( CR I: 291, 292)
Defendant argued to Judge Vela that Appellant was not qualified because
Appellant lost AACSB AQ status because: (l) Appellant was not currently
employed at time of applying; (2) Appellant had not taught in a classroom for
prior 18 months.
Defendant produced to Judge Vela the same exhibits as relied upon in this
argument in its current Motion for Summary Judgment:
(a) AACSB Standard 10: (CR 1: 295: Ex. 16 to DefMSJ), (CR 1: 31: Def ex list for March 9, 2015, Summary of Argument)
(b) Appellant's Application: (CR 1: 31: Def ex list for March 9, 2015, Summary of Argument; and CR 1:295: Ex. 23 to DefMSJ)
(b) Dock deposition: (CR 1: 295: Ex. 17 to Def MSJ) (CR 1: 31: Def ex list for March 9, 2015, Summary of Argument)
(c) Krueger deposition: (CR 1: 296: Ex. 23 to DefMSJ) (CR 1: 31: Defex list for March 9, 2015, Summary of Argument)
====================================
AACSB does not have a requirement that actual teaching of courses is required
to maintain AACSB AQ status. (CR 1: 660-61, sec.40; CR1: 896-901 -- AACSB
standard 10)
61 AACSB Standard 10 and AACSB White Paper Establish Appellant Maintained his AACSB AQ Status
Defendant admitted in both its March 9, 2015, Summary of Argument presented to
Judge Vela and in its Motion for Summary Judgment that the AACSB does not
have a requirement regarding an 18 month break in employment, but that the
AACSB looks at a five (5) year period for accreditation of AQ (academically
qualified) status. (CR 1: 25, Mar 9, 2015, Summary of Argument, p.3, sec. 6:
'evidence of developmental activities within the past five years ... " citing AACSB
Standard 10) (CR 1:304, sec. i: "discipline based scholarship over the previous five
years" citing its exhibit 16 which is AACSB Standard 10 as shown identified at
CR 1: 295).
AACSB Standard 10 identifies a "non-exhaustive list ofpossible activities that
faculty may undertake to support the maintenance of academic or professional
qualifications": (CR I: 900 AACSB Standard 10 - mid page )(CR I: 904: mid
page)
Relevant journal and/or other business publication editorships and/or editorial board/committee service Consulting activities that are material in terms oftime and substance Faculty internships Sustained professional work supporting qualified status Leadership positions in recognized professional/academic societies Advanced academic coursework Relevant, active service on boards of directors Documented continuing professional education experiences 62 Significant participation in professional and/or academic conferences
Additionally:" It is not AACSB International's intent to limit the range of development activities that may be undertaken." (CR 1: 900- mid page).
===========--=======
In the pending MSJ, Defendant left out AACSB Standard 10 it presented to
Judge Vela, and added a different exhibit, AACSB White Paper Deploying
Academically Qualified Faculty, to try to allege the same argument. (CR 1: 545
DefEx. 22). This document sets out the same ways to maintain AACSB AQ status
as AACSB Standard 10 which Defendant omits. The document states: (CR 1: 904,
mid page)
Activities Sufficient to Sustain Academically Qualified (AQ) Status
"All faculty members are expected to demonstrate activities that maintain the currency and relevancy of their instruction. Faculty members can maintain qualifications through a variety of efforts including the production of intellectual contributions, professional development, and current professional experience."
APPELLANT MAINTAINED AACSB AQ STATUS
Defendant's MSJ admitted that AACSB AQ status is maintained I sustained by
under AACSB guidelines if professor /faculty 'continue to undertake appropriate
development activities that sustain his ..... intellectual capital and currency in the
field of teaching'. (CR 1: 305 middle para).
63 This wording means that a person needs to remain "current in their field of
teaching." Appellant's "field of teaching" is accounting. (CR 1:660, sec.40) This
does not mean someone needs to be teaching. (CR 1:660, sec.40) The AACSB
Sec. I 0 does not mention classroom teaching as a requirement to maintain AQ
currency. (CR 1:660, sec.40). AACSB Standard 10 clearly sets out what activities
are necessary to "remain current." Actual Teaching is not a requirement. (CR
1:661, sec.40 top pg).
Appellant's Five Year Look Back Period Maintenance of AACSB AQ Status
Defendant admits in its Motion for Summary Judgment that there is a "five-
year look back used in making applications for AACSB accreditation". (CR 1:
305, top sec) By defendant's own acknowledgement of a five year look back
period, Appellant was AACSB AQ at the time of the Defendant's selection of the
Chair opening in August of2012.
December 2009: Appellant had a formal record of being AACSB Academically
Qualified while employed at the University of Texas Pan American which ended
May of 2010. (CR 1: 890) Appellant would have remained AACSB
Academically Qualified until May of2015 without any activities.
May 2010: Appellant left UTPA and was AACSB Academically Qualified
his entire time while working at UTPA. (CR 1: 652, sec. 5).
64 August 2012: date of employment decision--Defendant hired the younger
candidate, Sullivan, and did not hire Appellant. (CR 1: 892, 842-844)
December 2014: the Date Appellant would remain qualified as AACSB
Academically Qualified, with no new qualifYing activity, using date of UTPA's
AACSB December 2009 formal certification of Appellant as AACSB AQ and the
five year look forward time period. (CR 1: 890)
=========== Appellant Maintained Currency in Appellant's Field as Required to Maintain AACSB AQ Status
Appellant's Evidence of Maintaining AACSB Academically Qualified status
Appellant's publications vastly exceeded the amount both Director of Research
Krueger and Associate Dean testified were needed to be qualified for AACSB AQ
status-- 3 publications during that period. (CR 1: 914; CR 1: 700, p.37, lines 16-
23; CR 1: 701, p.38, lines 8-19): In the immediate three year period (2009-2012)
prior to Appellant's application with Defendant, Appellant had a total of eight
acceptable quality publications (all of which were in journals with acceptance
rates of less than 30% listed in Cabell's director). (Ex. 1: sec. )(Ex.11: Appellant's
application, p.tamu 0027-0028).
65 Appellant had continuously undertaken additional AACSB approved activities
to maintain currency in Appellant's field of accounting. Appellant's resume
identified: (Ex. 11 )(CR 1: 900 mid page; 904 mid page.
(1 )Part-time self-employment as a Certified Public Accountant (CR 1: 800)
(2) accounting publications; 2009-2012: Appellant published eight acceptable quality publications in journals with acceptance rates of 30% or less acceptance rate, including five publications from May 2010, to March 2012.; (CR 1: 803-804);
(3) accounting paper presentations: 2009-2012: Appellant made 12 accounting paper presentations, including 6 accounting presentations from May 2010 to March 2012; (CR 1: 811-812);
(4) professional services: 2011-2012-current, Appellant was a reviewer of Manuscripts for The CPA Journal, which is published by the New York Society of CPA's (CR 1: 812-813);
(5) August 2011: Appellant participated in Accounting Professional Meeting: American Association National Meeting in August 2011 where Appellant reviewed two accounting papers. (CR 1: 813);
Professional Services: Appellant was a member of five professional
Accounting Boards: (CR 1: 814 );
(7) Awards: In 2011, Appellant received the Institute of Management Accountant's Lybrand Certificate of Merit Award for outstanding character and excellence in contributing to literature for the advancement of management accounting and financial management. (CR 1: 816);
==========================
66 Defendant's Records Establish 'Current Employment' was not a Requirement for the Chair Position
Appellant produced evidence to support a finding that:
( 1) Appellant was a qualified applicant for the Chair opening; and
(2) Defendant found Appellant to have been a qualified applicant and to have met the required qualifications of the Chair position.
Defendant's Hiring Authority and identified any applicant whose application
established that the applicant did meet the posting qualifications in order to be
processed as acceptable applicant. (CR 1: 883-884, 885-886)
(1) August 29, 2012: Appellant was notified of non-selection (CR 1: 852)
(2) August 31,2012: Defendant identified applicants who met the positions required minimum qualifications and applicants who did not meet the positions. Appellant was one of four applicants identified meeting required qualifications but 'not hired'. (CR 1: 885-886).
Applicants meeting required qualifications: (in order as listed)
Haque, Mohammed Not Hired Vanzante, Neal (Appellant) Not Hired Rabbani, Mohammad Not Hired Ghosh, Dillip Not Hired Sullivan, Carol Hired
Applicants not meeting required qualifications: (in order as listed)
Francis, Conrad Did Not Meet Min Quais Hopson, James Did Not Meet Min Quais Committee, Bruce Did Not Meet Min Quais
67 (2) September 18,2012: Defendant again printed the applicant log. (CR 1: 883-
884). The applicants were listed in alphabetical order. Appellant was one offour
applicants identified meeting required qualifications but 'not hired'.
Applicants meeting required qualifications: (in order as listed)
Ghosh, Dillip Not Hired Haque, Mohammed Not Hired Rabbani, Mohammad Not Hired Sullivan, Carol Hired Vanzante, Neal (Appellant) Not Hired
Applicants not meeting required qualifications: (in order as listed)
Committee, Bruce Did Not Meet Min Quais Francis, Conrad Did Not Meet Min Quais Hopson, James Did Not Meet Min Quais
Dean Dock and Dr.Krueger
August 23, 2012: Defendant processed Appellant as one of five candidates that
met Chair position requirements to be considered for hire. (Ex. 18) The qualified
candidates for hiring were:
Ghosh, Dillip Not Hired Haque, Mohammed Not Hired Rabbani, Mohammad Not Hired Vanzante, Neal (Appellant) Not Hired
Sullivan, Carol Hired
68 ========================== ELEMENT No. 3: Appellant was subjected to an adverse employment action;
Defendant sought applicants for the advertised Chair of Department of
Accounting and Finance opening. (CR I: 780-797) Appellant applied. Appellant
was not hired for the advertised and open position the subject of this lawsuit, Chair
of the Department of Accounting and Finance. (CR I: 892; CR 1: 650-51, sec. 4).
NOT DISPUTED
ELEMENT No. 4:
A. defendant hired someone younger than Appellant :
Defendant's Motion for Summary Judgment does not contest and admitted that
Carol Sullivan was substantially younger candidate than Appellant. (CRI :301,
sec.A).
Dean Dock had first-hand knowledge of the ages and disparity m ages of
Sullivan and Appellant.
Appellant was 66 years old at the time of applying for the Chair opening. (CR
I: 652, sec. 4). Dean Dock had met Appellant at a business function at TAMU-K a
short while before Appellant applied for the Chair opening. (CR 1: 653, sec. 4).
69 Dean Dock drove to personally meet Sullivan at an off campus location a few
weeks after Sullivan applied for the Chair opening. (CR 1: 834) Sullivan was 51
years of age and 15 years younger than Appellant. (CR 1: 652, sec. 4). (CR 1:
918, p. 48, lines2-7)(CR 1:653, sec.4)
Carol Sullivan was noticeably younger than Appellant. (CR 1: 652, sec.4)
In an age discrimination suit, a Appellant may satisfY and establish his prima
facie case if the person hired is younger than the Appellant. Age discrimination
statutes do not require that the person hired be outside the class protected by the
age discrimination statute. O'connor v Consolidated Coin Caterers Corp, 517 US
308, 312, 116 S.Ct. 1307 (1996). Appellant may establish his prima facie case
when person hired is five (5) years younger. Rachid v Jack in the Box, Inc., 376
F.3d 305 (5th Cir. 2004).
Disparate Treatment: Defendant treated the younger applicant hired (Sullivan) differently
Appellant incorporates herein his facts and argument regarding:
1. Sullivan not meeting its basis of meet general qualifications' of Leadership, Administration, Interpersonal and professional communication
2. Sullivan not meeting its basis that the selectee must be "a professional, a facilitator, and a trustee."
3. Sullivan was determined not qualified and hired. (CR 1: 836-838, 846)
70 STEP THREE: Appellant establishes a factual issue to show that Defendant did not have a legitimate non-discriminatory reason its employment decision at time of decision;
Once the employer's justification has been eliminated, discrimination may well
be the most likely alternative explanation, especially since the employer is in the
best position to put forth the actual reason for its decision. "Rincones at 236, citing
Reeves at Reeves 120 S.Ct. 2097, 2108-09)
"Thus, a Appellant's prima facie case, combined with sufficient evidence to find
that the employer's asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated." Rincones at 236, citing
Reeves at 148.
The court must draw all reasonable inferences in favor of the nonmoving party
and not make credibility determinations or weigh the evidence. Credence must be
given to the evidence supporting the nonmovant as well as any evidence
supporting the moving party that 1s uncontradicted, unimpeached, and not
attributable to interested witnesses. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (emphasis added).
71 DIRECT EVIDENCE
If a material fact is supported by direct evidence, then the issue must be
submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex
1975) Appellant restates his Direct Evidence argument herein as if set forth
verbatim.
CIRCUMSTANTIAL EVIDENCE
Defendant reasserts its arguments regarding Appellant being qualified for the
position and reasserts its argument regarding Appellant's 2006 Settlement and
Release with TAMU Corpus Christi:: (CR 1: 305-307)
Reasserted earlier arguments raised in its assertions that Appellant was not Qualified.
1. that Appellant was prohibited from applying for the Chair position, by his 2006 Settlement and Release with TAMU Corpus Christi.
2. that Appellant was not qualified because of Appellant's alleged poor record of employment with Defendant (CR 1: 306, B)
3. that Appellant was not qualified because of Appellant's based on Appellant's alleged absence 'from the teaching profession' for the eighteen months prior to Appellant's application (CR 1: 306, B)
As evidence Defendant's legitimate reasons are false:
(I) Appellant restates his qualification arguments herein as if set forth verbatim
72 (2) Appellant restates his disparate treatment arguments herein as if set forth
(3)) Appellant restates his 2006 Settlement and Release with TAMU Corpus
Christi arguments herein as if set forth verbatim.
Defendant's also asserts the reason that Appellant was not hired and Sullivan
was hired was: Sullivan was clearly better qualified than Appellant (Vanzante).
(CR 1: 306-307)
a. because Appellant had not taught for 18 months
b. Sullivan's articles were better than Appellant's articles.
These are all new reasons and not used as a basis by Defendant at the time the decision was made to not hire Appellant and to hire the younger applicant, Sullivan.
Appellant has provided substantial evidence that each alleged legitimate non discriminatory reason is false.
Defendant has already investigated and determined that Dean Dock's Hiring of Sullivan was Wrongful
Defendant's internal investigation conducted at the time of the failure to hire
Appellant and the hiring of Carol Sullivan determined that the hiring was an
73 "Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR1:
August 15, 2012: Associate Dean Aukerman notified Martin Brittain, the
Defendant's Hiring Authority for the Chair selection process, that Dean Dock's
hiring of Carol Sullivan was inappropriate, unethical, and/or illegal. Dr.Aukerman
determined that: (CRl: 871,872, Sec. 10)
Sec (10) The faculty who were involved in the interview of Carol Sullivan for the Accounting and Finance Department Chair position indicated that she was unacceptable by a margin of 8 to 1. "Tom Dock had decided previously that he wanted to hire her. She was not recommended for an interview by the search committee." (CRl: 872, Sec. 10)
(*Defendant produced this document after Dr.Aukerman's deposition)
Appellant's 2006 Settlement and Release with TAMU Corpus Christi was NOT a basis for not hiring Appellant.
Appellant incorporates his 2006 Settlement and Release with TAMU Corpus
Christi argument above here as if set forth verbatim.
Appellant has produced evidence to show that the Defendant did not rely on the
2006 Settlement and Release with TAMU Corpus Christi and the Release was not
a basis for not hiring Appellant.
74 Appellant produce evidence to establish that Appellant was not barred from
applying for the Chair position by the 2006 Settlement and Release with T AMU
Corpus Christi.
Appellant produced evidence that Defendant Texas A&M University Kingsville
did not consider Appellant barred from applying for positions, consistent with the
terms of the 2006 Settlement and Release with TAMU Corpus Christi.
1. Appellant had applied for positions with Defendant four times prior to applying for the Chair opening.
2. August 29, 2012: In notifying Appellant of non-selection for the Chair, Defendant told Appellant "we hope you will continue to give our institution consideration for employment." (CR 1: 852)
Defendant's basis that Appellant was not hired because of Appellant's alleged poor record of employment with Defendant is FALSE
Defendant's Supporting Evidence was Not Used or Relied upon by Decision- makers in Not Hiring Appellant:
Defendant's exhibits were not used nor relied upon m the actual decision
making process and are dated 1997 to 2002 and. The applicants submitted only a
cover letter and resume during the application process. (CR 1: 797-819 Appellant
applic; CR 1: 821-832--Sullivan applic)
Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant
was based solely on a review of their applications. (CR 1: 697, p.15-22)
75 Appellant's application did not contain the information nor these documents that
defendant now produces to assert this new reason. (CR 1: 797-819)
Defendant's basis that Appellant was not qualified because of Appellant was not currently teaching when applied and Appellant's alleged absence 'from the teaching profession' for the eighteen months prior to Appellant's application is not worthy of credence.
Associate Dean Aukerman, reviewed Appellant's application and resume
which identified Appellant's last teaching position in May of 2010 and that
Appellant was not currently employed at the time of applying, testified that
Appellant met both of the Chair position's required qualifications:
Aukerman then testified:
1. Appellant was and met the Defendant's AACSB Academically Qualified requirements for the position. (CR 1: 738, p.82, lines 2-20).
2. Appellant was qualified to be hired as a "Full Professor". (CR 1: 738, p.82, lines 5-21) (Appellant's application at CR 1: 797-819; teaching employment history at CR 1: 800).
Appellant has established that:
1. Defendant's requirements for a Full Professor require five years employed in rank and do not require current employment.
2. The AACSB standards do not require current employment to be AACSB AQ accredited. 76 3. The AACSB standards allow a five year look back period to qualify for current AACSB AQ status.
Defendant's also asserts the reason that Appellant was not hired and Sullivan
was hired was: Sullivan's resume showed Sullivan was clearly better qualified
than Appellant (Vanzante ). (CR 1: 306-307)
This is a false basis: Appellate set out in detail in his Qualification argument
that not teaching for 18 months was not a basis for the decision and was not
relevant to the position's required minimum qualifications of being a Full
Professor or AACSB AQ accredited.
b. Sullivan's articles were better than Appellant's articles.
This is false: Appellant established that Appellant's articles vastly exceeded
AACSB accreditation requirements Both Dr.Krueger and Assoc. Dean Aukerman
establish that Appellant needed only 3 articles in the prior five year period to meet
AACSB AQ accreditation standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24
Appellant's publications vastly exceeded the amount required for AACSB
AQ status: In the immediate three year period (2009-2012) prior to Appellant's
application to Defendant, Appellant had a total of eight acceptable quality 77 publications (all of which were in journals with acceptance rates ofless than 30%).
(Ex. I: p.3, sec.6)(Ex.11: Appellant's application).
Krueger never examined Sullivan's articles. Dr.Krueger testified that he did
not evaluate or and read Sullivan's publications during the hiring process: Krueger
did not review or evaluate Sullivan's publications to determine or verifY if Sullivan
met the Chair position's AACSB requirement prior to Sullivan being hired. (CR I:
704: p.57, lines 5-11). Krueger testified that it a year after Sullivan was hired in
August of 2012, when Sullivan provided Krueger copies of her publications when
Sullivan moved into the Chair's office in Fall of 2013. (CR 1: 714, p.57, line 21
correction).
Defendant's own documents establish this is false. The evidence established
Defendant's Search Committee, Chair of Search Committee and Associate Dean of
the Dept. had all determined from Sullivan's resume and interview that Sullivan
did not meet the position's requirements and was not qualified for the position.
(CR 1: 837)(CR 1: 838)(CR 1: 836) (CR 1:840) (CR 1:871; 872- sec.IO)(CR 1:
Dean Dock Ignored the vote of the Search Committee and Hired Carol Sullivan
August 16, 2012: Associate Dean Aukerman, aslo Chair of the Search
Committe, notified Provost Gandy that Chair Search Selection Committee and
78 department faculty had determined Sullivan was not qualified to be hired and was
"unacceptable". (CR 1: 846).
The faculty search committee evaluations where that Sullivan was not qualified
to be hired, should not be hired and referenced that the committee could not even
determine Sullivan's qualifications from Sullivan's application. (CR 1: 83 7).
Dock changed the terms of the advertised position requirements and did not re-advertise the position in order to hire Sullivan.
The Defendant needed to hire a Chair of the Department of Accounting and
Finance to begin January 7, 2013, and authorized the funding. (CR 1: 780) Dean
Dock changed the hiring date without re-posting the position. The original hiring
date started mid-semester which excluded persons already working under contract
for the 2012-2013 school term from applying.
Dock changed the beginning date from January 1, 2013, to September 1,
2013, in order to hire Sullivan beginning August 22, 2013. (CR 1: 908: Sullivan
was under contract at the University of St. Thomas for the September 2012 to May
2013 school term).
The change in start date affected the applicant pool and should have been re-posted.
Martin Brittain, the Hiring Authority, testified that the normal process was "if
you want to make any changes at all, it requires a new -- cancellation and a new 79 posting". (CR 1: 755 at p.31, lines 13-20). Brittain testified that the Chair posting
listed January 7, 2013, as the start date which was in the middle of the 2012-2013
school term; and that starting in the middle of a school term 'could make it more
difficult for them (person already under contract for the 2012-2013 school term) to
apply'. (CR 1: 755 at p.33, lines 10-20; p.34, lines 9-15). By a fortiori, this would
prevent applicants from applying who were already under contract for the 2012-
2013 school term.
DISPARATE TREATMENT Carol Sullivan, Candidate Hired, Did Not Meet Required Minimum Qualification to Hold Rank of Full Professor When Hired
Defendant required five years of employment in position of Associate Professor
or higher rank before qualifying to be placed into Full Professor position. (CR I:
651, sec. 3)(CR 1: 911, sec. B.4.1.6(b)--Faculty Handbook). Sullivan had only
three years of employment in position of Associate Professor at the time Defendant
hired Sullivan. (CR 1: 651, sec. 3)
An applicant's work history must be known in order to determine whether
qualified to hold the rank of Full Professor as the faculty member must have 5
years working in rank of Associate Professor. (CR 1: 651, sec. 3; 908 mid page-
Sullivan's revised work history provided to the EEOC 15 months after she had
been hired). 80 Appellant's application cover letter and work history identified Appellant had
been a Full Professor with the Defendant for 18 years, till 2007. (CR 1: 799 and
800)
Sullivan's application did not provide a work history to determine whether
Sullivan met he minimum required qualification to be a Full Professor. (CR 1: 823-
825 Sullivan application). The Chair faculty search committee members found that
Sullivan had not shown she had five years holding a position of Associate
Professor or higher. Finding: "no history provided of places worked and dates"
(CR 1: 836); "Dr. Sullivan's resume and cover letter did not list key information.
For example current place of work, where all she had worked in the past..... " (CR
1: 837)
In December of 2013, fifteen months after Sullivan was hired, Defendant and
Sullivan prepared a work history in an attempt to show Sullivan met the minimum
qualification to hold the rank of Full Professor by having been employed as an
Associate Professor or higher for five years. (CR 1: 908, 906)
This information was not set out in Sullivan's March 5, 2012application and
resume submitted. (CR 1: 821-832)
To show Sullivan qualified for hire as a Full Professor, Defendant had to
intentionally misrepresent Sullivan's work history to the EEOC.
81 Defendant had to include Sullivan's 2012-2013 year of employment with the
University of St. Thomas. (CR 1: 908) The Defendant's new Chair was to begin
working on January 7, 2013. (CR 1: 780)
Sullivan did not have the required five years at the time she was hired in
August of 2012, because Defendant needed to include Sullivan's employment for
the 2012-2013 school term at another university to try to show Sullivan qualified
with five years employed in rank of Associate Professor or higher to quality as a
Full Professor, as required to be hired. (CR 1: 908-resume )(CR 1: 782-job posted
minimum required qualification of Full Professor)
December 11, 2011: Defendant's identification of Sullivan's work history.
Only the three years employed as an Associate Professor of Accounting
qualified toward the five years employed in rank. (CR 1: 651, sec.3)
Positions of Visiting Associate Professor are not positions of'rank'. (CR 1: 651,
sec. 3). Sullivan's identified employment history was positions of Visiting Assoc.
Professor.
(1) 'Visiting Associate Professor of Accounting, University of St. Thomas during the 2012-2013 school term'. (CR 1: 908). Does not count towards Sullivan's five year requirement because this is school year after Sullivan hired in Aug 2012).
(2) Visiting Professor of Accounting, Seattle University (2008-2009). Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3)
82 (3) Visiting Professor of Accounting, University of Texas at Arlington (2000- 2002): Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3)
(4) Visiting Professor, Texas A&M University at College Station (1996-1997): Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3)
83 CONCLUSION
Appellant submits that if the facts and allegations he has presented are taken as true
and construed in his favor, Appellant has presented an issue of fact to be determined by a
jury on all issues; including that Appellant's 2006 Settlement and Release with TAMU
Corpus Christi is not a basis to dismiss Appellant's; that his age was a motivating factor
in the Defendant's decision not hire Appellant; that the Defendant's non-discriminatory
reasons for its actions are false; and that a reasonable juror could infer discrimination
from the evidence presented.
PRAYER
For all the above reasons, Appellant Neal Vanzante requests this Court to vacate
and/or reverse the Trial Court's Order Granting Defendant Motion for Summary
Judgment, and remand Plaintiffs lawsuit back to the trial court to be placed on its trial
docket. Appellant also requests any and all relief to which he is entitled at law or in
equity, and requests general relief.
Is/ Chris McJunkin Chris McJunkin State Bar No. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com
84 CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4(i)(2)(B), I hereby certifY that Statement of Facts,
summary of argument, argument, conclusion and prayer contain 14,292 words as
determined by WORD 2007
Is/ Chris McJunkin
CERTIFICATE OF SERVICE
I hereby certifY that on the 26th day of October 2015, a copy of the foregoing
was delivered in accordance with the Texas Rules of Civil Procedure on the
following person:
Marie! Puryear, Assistant Attorney General Office of Attorney General - Litigation Division P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Email: Mariel.puryear@texasattoneygeneral.gov
85 APPENDIX
Appendix!: June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's Motion for Summary Judgment (CR 1: 1006)
Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion for Summary Judgment (CR 1: 291).
Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction (CR 1: 292).
Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time to File Brief to October 23, 2015, was granted. Appendix!: June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's Motion for Summary Judgment (CR 1: 1006) CAUSE NO. 14-238-D NEALVANZANTE, § Plaintiff § IN THE DISTRICT COURT § VS. § § 105m JUDICIAL DISTRrCT § TEXAS A&M UNJVERSITY- § KINGSVILLE, § KLEBERO COUNTY, TEXAS Defendant
ORDER GRANTING DEFENDANT TEXAS A&M UNIVERSITY- KINGSVILLE'S MOTION FOR SUMMARY JUDGMENT
Came on this day to be heard Defendant Texas A&M University- Kingsville's Motion for
Swnmary Judgment, and any responsive pleadings and/or oral argwnent. After considering the
evidence, the Court finds the Motion does have merit and makes the following ruling:
IT IS HEREBY ORDERED that Defendant Texas A&M Univetsity-Kingsville's Motion
for Summary Judgment is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff's lawsuit in its entirety is DISMISSED with
I '"''L
\ 1006 Appendix 2: March 18, 2015: Order Denying Defendant's No-Evidence Motion for Summary Judgment (CR 1: 291). ~~ryr..i'"-······· "'~:ro:·:-~,,-._~--...,..· --- ~ .... ·. r:: . Mar.25.2015 07:34
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CAUSil NO ••·DJ..U • • • vs. • • "reXAS. A~ M UWJVI!IlSrrY- • K.II'IGSVIU.F, • De~
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s.-y Jail..-. .-1 do:: Cowl.. .&t· w>:b4 oq; do:: FICI if. . ee.n.·s. .:e .-1 ••aa--• o( tic panica, is of 1loe Ofill' rr IS HF.~t£BY OIWER.ED c1ooo1 n ' '· n ~Ko-fll\.rio"·b:c ~>taciGoa roo ss.,__'), .,.•., '"" 291 Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction (CR 1: 292). ·NEAtv~ ··~·· • '\IS.· ... - ... ~A.t:M~- ,. • ~cOONTY~~· ~. 6lWJi1~~~'rt)~ · &ic. '"'• •4: ·~. 1iiH oullrls ... ·,..ay . ill. bit~ .. came ari . DatGiulam.'a PiGa . to.l• m ~.ad 292 Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time to File Brief to October 23, 2015, was granted. FILE COPY CIE'.-nr:E NUE'CES COUNtY COURlHOUSE ROOB.lO VALDEZ 901 LEOPARD, 101M FLOOR CORAlS CHR18TI, TEXAS 78401 38HIIIII.o416 (TEL) JUSIJCES -V...._....IEZ 36HJ8II.0194 (FAX) DORICCMIILIIiiSGMZA lfiDI1ILOOOOUNTY Glllll M.IIENIMDES ADioiNI8IRATION BlDG. Gl' EGI ..~ T. PERICEII NOM L UlNGilRio\ 6utt of Spptaff 100 E. CANO, STH FUXlR EDINBURG. TEXAS 711538 956-3111-24011 (TEL) CI.ERK IXlRIAN E. RAMIREZ Qtrlnllt afitdd of~ 956-316-2403 (FAX) October9,2015 --""'-,goWo- Hon. Christopher E. McJunkin Attorney at Law 2842 l..aWrMew Corpus Christi, TX 78404 • DELIVERED VIA E-MAIL * Re: cause No. 13-15-00313-CV Tr.Ct.No. 14-238-D Style: Neat Vanzante v. Texas A & M UniYerslly Dear Mr. McJunkin: Appellant's motion for extension of time to file brief in the above cause was this day GRANTED by this Cowl The time has been extended to Friday, ()ck)ber 23, 2015. Very truly yours, ~~. ?'(~ Dorian E. Ramirez, Clert DER:sc cc: Hon. Marial Puryear (DELIVERED VIA E-MAIL)
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Neal Vanzante v. Texas a & M University, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-vanzante-v-texas-a-m-university-texapp-2015.