University of Texas Southwestern Medical Center v. Ellen S. Vitetta

• Court: Court of Appeals of Texas
• Decided: September 28, 2020
• Docket: 05-19-00105-CV
• Status: Published

Opinion

Affirmed in part, Reversed in part and Remanded and Opinion Filed September 28, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00105-CV

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant V. ELLEN S. VITETTA, Appellee

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-09146

MEMORANDUM OPINION Before Justices Molberg and Partida-Kipness1 Opinion by Justice Molberg The University of Texas Southwestern Medical Center (UTSWMC) appeals

the denial of its plea to the jurisdiction2 on Dr. Ellen S. Vitetta’s third amended

1 The Honorable David Bridges, Justice, participated in the submission of this case. However, he did not participate in the issuance of this opinion due to his death on July 25, 2020. 2 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (allowing interlocutory appeal of order granting or denying a plea to the jurisdiction by a governmental unit as defined in TEX. CIV. PRAC. & REM. CODE § 101.001); Powell v. Knipp, 479 S.W.3d 394, 399 (Tex. App.—Dallas 2015, pet. denied) (“[a]s a matter of law, UTSWMC is a ‘governmental unit’ within the meaning of section 101.001(3)”). petition, in which she asserts claims of age discrimination, sex discrimination and

retaliation under the Texas Commission on Human Rights Act (TCHRA).3

We affirm in part and reverse and dismiss in part.

I. CLAIMS AT ISSUE

Dr. Vitetta asserts age discrimination, sex discrimination, and retaliation

claims against UTSWMC under TCHRA sections 21.051 and 21.055, which state:

TEX. LAB. CODE § 21.051 – Discrimination by Employer4

An employer commits an unlawful employment practice if because of . . . sex . . . or age[5] the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

TEX. LAB. CODE § 21.055 – Retaliation

An employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who, under this chapter:

(1) opposes a discriminatory practice;

(2) makes or files a charge;

3 See TEX. LAB. CODE § 21.001–.556. 4 “Employer” includes state agencies or instrumentalities. TEX. LAB. CODE § 21.002(8)(D). 5 For age discrimination claims, the TCHRA only applies to discrimination against individuals 40 years of age or older. TEX. LAB. CODE § 21.101. –2– (3) files a complaint; or

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

Dr. Vitetta alleges UTSWMC discriminated or retaliated against her

by (1) cutting her salary by $50,000 per year, (2) cutting her lab space and staff and

interfering with her efforts to maintain them, and (3) sabotaging her role as president

of UTSWMC’s Faculty Senate. She claims age and sex discrimination in her salary

and lab cuts and retaliation in her lab cuts and her Faculty Senate role.6

II. BACKGROUND

A. Dr. Vitetta’s General Role at UTSWMC

UTSWMC describes Dr. Vitetta as “an accomplished research scientist and

respected member of [UTSWMC’s] faculty.” A UTSWMC colleague describes her

as “one of the most accomplished immunologists and microbiologists in the world.”

Dr. Vitetta is an internationally renowned, award-winning and distinguished

professor, researcher, educator and inventor in the scientific field of immunology.

Dr. Vitetta is a full, tenured UTSWMC professor and has served as a Professor

of Microbiology and Immunology at UTSWMC since 1976, for over forty years.

She was born in June 1942 and is now seventy-eight years old.

6 Dr. Vitetta complained of discrimination in connection with her salary and lab cuts as early as July 23, 2015. She asserts that UTSWMC’s lab cuts and sabotage to her Faculty Senate role were in retaliation for her protected activity through her internal complaints to UTSWMC, to the EEOC, and in this lawsuit. –3– She is a past Chair of UTSWMC’s Immunology Graduate Program, and was

Director of UTSWMC’s Cancer Immunobiology Center (CIC) for approximately

twenty-five years. She has held UTSWMC’s Scheryle Simmons Patigian

Distinguished Chair in Cancer Immunobiology since 1989 and was the first female

to receive a Distinguished Chair position at UTSWMC.

She is an elected member of the National Academy of Sciences, the National

Academy of Medicine, and the American Academy of Arts and Sciences. Fewer

than fifteen individuals at UTSWMC have been elected to all three. Dr. Vitetta has

published over 500 scientific papers, reviews, and articles in various scientific

journals and has one of the most extensive publication records of any member of

UTSWMC’s faculty.

UTSWMC named Dr. Vitetta a Distinguished Teaching Professor in 2006.

She won UTSWMC’s Outstanding Faculty Teaching Award for many years (1989,

1991–96, 1999–2007), was among the first faculty “class” to be elected to the

Southwestern Academy of Teachers in 2006, and received statewide teaching

awards in 2006, 2011, and 2012. According to Dr. Vitetta, she is the only UTSWMC

faculty member who has accomplished widespread recognition for both teaching and

scientific excellence and productivity and is the only UTSWMC faculty member

whose graduate student has gone on to win the Nobel Prize.

To support her research activities, Dr. Vitetta has raised approximately

$50 million in research funding through National Institute of Health (NIH) grants, –4– other public and private grants, contracts, sponsored research agreements, material

transfer agreements, license fees and royalties, cooperative agreements, or other

sponsored programs or donations. UTSWMC receives an additional thirty to fifty-

nine percent over and above these amounts for its own use. She has also founded

four companies and raised money for all of them, including most recently Enterprise

Mimetics, which in turn funded one of her UTSWMC research projects.7

We discuss the parties’ other evidence below.

B. UTSWMC’s Plea to the Jurisdiction & Issues on Appeal

Dr. Vitetta filed this lawsuit on July 29, 2016. In late 2018, UTSWMC filed

a plea to the jurisdiction in response to her third amended petition. The trial court

denied that plea in an order dated January 9, 2019.8 UTSWMC appeals.

In three broad issues,9 UTSWMC asks us to reverse that order and render

judgment on the following, as well as on a retaliation claim she has not made:10

 Salary & Lab Cuts / Age & Sex Discrimination Claims – UTSWMC challenges the adverse action element regarding her lab cuts and the disparate

7 Dr. Vitetta founded Enterprise Mimetics as a joint endeavor with UT Austin’s MBA Program. It established an SRA with UTSWMC to fund her lab for $35,000 per month, payable monthly and renewable every three months beginning February 2014. By 2016, funding totaled $611,000. 8 UTSWMC also filed pleas to the jurisdiction in response to her original, first amended, and second amended petitions, but none of them were granted. UTSWMC did not appeal any of those rulings. 9 UTSWMC argues “Dr. Vitetta failed to meet her burden to overcome its sovereign immunity” on (1) her retaliation claims, (2) her sex discrimination claims and (3) her age discrimination claims. When we refer to UTSWMC’s issues by number (e.g. “UTSWMC’s first issue”), our numbers correspond with the order listed here, not the order of the bullet points we include above. 10 UTSWMC also asks us to reverse and render judgment on a retaliation claim regarding her salary cut. Dr. Vitetta did not address that claim in her brief, and neither party raised it in oral argument. We do not decide that issue here because the record does not show such a claim was made or ruled on below. –5– treatment and pretext elements regarding the cuts to her salary and her lab. We discuss and overrule these issues in Section III.B. below.

 Lab Cuts / Retaliation Claim – UTSWMC challenges the adverse action, causal connection, and pretext elements of her lab-related retaliation claim. We discuss and sustain the causal connection issue in Section III.C. below.

 Faculty Senate Role / Retaliation Claim – UTSWMC challenges the adverse action and causal connection elements of her prima facie retaliation claim regarding her Faculty Senate role. We discuss and overrule this in Section III.D. below.

III. DISCUSSION

A. General Review Standards

1. Sovereign Immunity11

Sovereign immunity “prohibits suits against the state unless the state consents

and waives its immunity.” Nazari v. State, 561 S.W.3d 495, 500 (Tex. 2018); see

State v. Allodial Ltd. P’ship, 280 S.W.3d 922, 925–26 (Tex. App.—Dallas 2009, no

pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004)). Sovereign immunity has two aspects: “(1) immunity from suit even when

the sovereign’s liability is not disputed, and (2) immunity from liability even though

11 Though they are often used interchangeably, sovereign immunity and governmental immunity protect distinct entities. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 n.56 (Tex. 2019). Sovereign immunity refers to the State’s immunity from suit and from liability and protects the State and its various divisions, including agencies, boards, hospitals and universities, while governmental immunity protects political subdivisions such as counties and municipalities who share the State’s immunity when performing governmental functions as the State’s agent. Id. at 746, n.57. Other differences in the two doctrines exist, see id. at 740, 746–47, but we do not discuss those further because they are not material to the issues presented here. See Ellis v. Dallas Area Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711, at *2 n.3 (Tex. App.—Dallas Mar. 13, 2019, pet. denied) (mem. op.). Throughout our opinion, we refer to sovereign immunity, as UTSWMC is a part of The University of Texas System. See TEX. EDUC. CODE §§ 65.02(a)(7), 74.101. –6– the sovereign has consented to the suit.” Rosenberg Dev. Corp., 571 S.W.3d at 746;

see Allodial, 280 S.W.3d at 926 (citing Miranda, 133 S.W.3d at 224). Immunity

from suit can be raised in a plea to the jurisdiction and implicates the court’s subject

matter jurisdiction, while immunity from liability does not and cannot be raised by

such a plea. Rosenberg Dev. Corp., 571 S.W.3d at 746; see Allodial, 280 S.W.3d at

926 (citing Miranda, 133 S.W.3d at 224–26).

For the State to waive its sovereign immunity, the legislature must do so “‘by

clear and unambiguous language.’” Nazari, 561 S.W.3d at 500 (quoting Tooke v.

City of Mexia, 197 S.W.3d 325, 328–39 (Tex. 2006)); Ellis, 2019 WL 1146711, at

*2; TEX. GOV’T CODE § 311.034 (“[A] statute shall not be construed as a waiver of

sovereign immunity unless the waiver is effected by clear and unambiguous

language.”). Unless waived, immunity from suit deprives a court of jurisdiction.

Ellis, 2019 WL 1146711, at *2. However, a waiver need not be express, for “when

a waiver of immunity has been necessary to make sense of a statute, [the Texas

Supreme Court has] held it to be clear and unambiguous.” Travis Cent. Appraisal

Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011); Ellis, 2019 WL 1146711, at *2.

“The clear and unambiguous standard is never applied ‘mechanically to defeat the

law’s purpose or the Legislature’s intent.’” Ellis, 2019 WL 1146711, at *2 (quoting

Norman, 342 S.W.3d at 58).

–7– 2. TCHRA Generally

The TCHRA clearly and unambiguously waives sovereign immunity, but only

if a claimant states a claim for conduct that actually violates the statute. See Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018) (citing Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012); TEX. LAB.

CODE § 21.254 (complainants may bring private civil action)).

Among its other general purposes,12 the TCHRA is meant to secure for

persons in this state freedom from discrimination in certain employment

transactions, to make available to the State the full productive capacities of persons

in the State, and to provide for the execution of the policies of various federal

employment discrimination laws. TEX. LAB. CODE § 21.001(1), (3)–(5). The

TCHRA also prohibits retaliation against an employee for engaging in certain

protected activities, such as by filing an internal complaint of discrimination,

opposing a discriminatory practice, or making a charge of discrimination with the

EEOC or Texas Workforce Commission–Civil Rights Division. See Alamo Heights,

544 S.W.3d at 781, 786; TEX. LAB. CODE § 21.055.

In interpreting the TCHRA, we consider its plain language and state law

precedent and look to federal law for guidance when the TCHRA and federal

12 See TEX. LAB. CODE § 21.001(1)–(8). –8– discrimination laws contain analogous statutory language. Prairie View

A & M Univ. v. Chatha, 381 S.W.3d 500, 505 (Tex. 2012).

Under the TCHRA, unlawful employment practices can be established when

age, sex, or other identified characteristics are “a motivating factor” for an

employment practice, even if other factors also motivated the practice. TEX. LAB.

CODE § 21.125(a); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.

2001) (“The plain meaning of this statute establishes ‘a motivating factor’ as the

plaintiff’s standard of causation in a TCHRA unlawful employment practice claim,

regardless of how many factors influenced the employment decision.”).13

3. Standard of Review on a Plea to the Jurisdiction

Whether a court has subject matter jurisdiction is a question of law and is thus

subject to de novo review. Miranda, 133 S.W.3d at 226, 228; Ellis, 2019 WL

1146711, at *2. In Alamo Heights, the Texas Supreme Court explained:

13 But see Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (Title VII retaliation claims require “but for” causation); Alamo Heights, 544 S.W.3d at 782–83 (stating Texas Supreme Court had “yet to determine the appropriate causation standard for a TCHRA retaliation claim”); Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.) (TCHRA retaliation claims require “but for” causation; employee must show that, in the absence of the employee’s protected activity, the employer’s prohibited conduct would not have occurred when it did) (citing Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995), a Whistleblower Act case) (other citations omitted). Incidentally, we note that Nassar involved the same appellant and at least one of the same individuals (Dr. Fitz) as in the case before us. 570 U.S. at 344–45. Nassar involved a Title VII retaliation claim in which the plaintiff, Dr. Nassar, alleged he had been retaliated against based on his complaint that his UTSWMC supervisor had harassed him “based on religious, racial, and cultural bias against Arabs and Muslims.” According to the opinion, after Dr. Fitz read Dr. Nassar’s complaint, Dr. Fitz “expressed consternation at [Dr. Nassar’s] accusations, saying that [his supervisor] had been ‘publicly humiliated by [the] letter’ and that it was ‘very important that [the supervisor] be publicly exonerated.” Id. at 345. Also, after Dr. Fitz learned an affiliated hospital had offered Dr. Nassar a job as a staff physician, Dr. Fitz protested to the hospital based on its affiliation agreement with UTSWMC, and the hospital withdrew its employment offer to Dr. Nassar. Id. –9– A jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both. When [it] challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating subject-matter jurisdiction. If [it] challenges the existence of jurisdictional facts, we must move beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues, even if the evidence implicates both subject-matter jurisdiction and the merits of a claim.

[In the latter situation], the standard of review mirrors that of a traditional summary judgment: ‘[I]f the plaintiffs’ factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court’s subject matter jurisdiction.’ In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff’s favor. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not.

Alamo Heights, 544 S.W.3d at 770–71 (quoting Miranda, 133 S.W.3d at 221) (other

citations omitted). In TCHRA cases, questions regarding jurisdiction and the merits

of the case often overlap, and when that occurs, the proceeding mirrors that of a

traditional summary judgment motion. See id. at 770 (citing Miranda, 133 S.W.3d

at 225–26); Garcia, 372 S.W.3d at 635 (citing Miranda, 133 S.W.3d at 228 and TEX.

R. CIV. P. 166a(c)). Miranda explains:

We acknowledge that this standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). We adhere to the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided. . . . By requiring the state to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to “put on their case simply to establish jurisdiction.” Bland, 34 S.W.3d at –10– 554.[14] Instead, after the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue. See Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000); Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999).

Miranda, 133 S.W.3d at 228; see Allodial, 280 S.W.3d at 926 (review generally

mirrors that of a summary judgment under Rule 166a(c)). Here, UTSWMC

challenged the existence of jurisdictional facts and submitted evidence with its plea.

Thus, we review this as we would a traditional summary judgment motion, taking as

true all evidence favorable to Dr. Vitetta, indulging every reasonable inference and

resolving any doubts in her favor, while considering evidence and inferences

unfavorable to her if reasonable jurors would be unable to disregard them. See

Alamo Heights, 544 S.W.3d at 770–71.15

If UTSWMC satisfies its burden of negating certain elements, we then

consider whether a genuine fact issue exists, including on UTSWMC’s intent. See

14 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000). 15 In a traditional summary judgment motion, the movant must demonstrate there is no genuine issue of material fact and is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If it does so, the burden shifts to the non-movant to come forward with competent controverting evidence sufficient to raise a genuine issue of material fact. Id. at 84. On review, we consider the evidence in the light most favorable to the non-movant, making every reasonable inference and resolving all doubts in her favor. See id. We credit evidence favorable to the non-movant if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. See Samson Exploration, LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017). Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary judgment evidence. Lakshmi Realty, LLC v. Firewheel Brokerage PLLC, No. 05-17-00142-CV, 2018 WL 1602583, at *2 (Tex. App.—Dallas Apr. 3, 2018, no pet.) (mem. op.) (citing Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.—Dallas 2011, pet. denied)). –11– id. at 785 (“Whether by jurisdictional plea or summary-judgment motion, the

plaintiff is not put to the ultimate burden of proof but must only raise a fact issue on

the existence of illegal intent.”); Town of Shady Shores v. Swanson, 590 S.W.3d 544,

552 (Tex. 2019) (“when jurisdictional challenge implicating merits is properly made

and supported, plaintiff must present sufficient evidence on the merits of the claims

to create a genuine issue of material fact”).

4. McDonnell Douglas Framework

Under the TCHRA, an unlawful employment practice is established when age,

sex, or other protected characteristics are a “motivating factor” for the action, even

if other factors also motivated the practice. See TEX. LAB. CODE § 21.125(a);

Quantum Chem., 47 S.W.3d at 480.

Discriminatory motive can be shown either with direct or circumstantial

evidence. “Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption.” Jespersen v. Sweetwater

Ranch Apartments, 390 S.W.3d 644, 653–54 (Tex. App.—Dallas 2012, no pet.)

Circumstantial evidence, on the other hand, refers to evidence that requires an

inference to be made regarding the employer’s discriminatory motive. Id. (“If an

inference is required for the evidence to be probative as to the employer’s

discriminatory animus in making the employment decision, the evidence is

circumstantial, not direct.”)

–12– In the absence of direct evidence of discrimination, a plaintiff can prove

unlawful employment discrimination using the indirect, circumstantial method of

proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see

Garcia, 372 S.W.3d at 634. Under that method, once a plaintiff establishes a prima

facie case of discrimination, a presumption of discrimination exists, which shifts the

burden to the employer to produce a legitimate, non-discriminatory reason for its

actions; if the employer does so, the presumption of discrimination disappears, and

the burden shifts back to the plaintiff to show the employer’s asserted reasons were

a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802–05.

McDonnell Douglas involved Title VII race discrimination and retaliation

claims by a former employee who sued after his employer refused to rehire him. Id.

at 796. The trial court dismissed his race discrimination claim, and the court of

appeals reversed. Id. at 797–98. After granting certiorari “to clarify the standards

governing . . . employment discrimination,” id. at 798, the Supreme Court explained

the prima facie proof required as follows:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

–13– Id. at 802. The Court explained, “The facts necessarily will vary . . . and the

specification above of the prima facie proof required . . . is not necessarily applicable

in every respect to differing factual situations.” Id. at 802 n.13.

After McDonnell Douglas, the Supreme Court has repeatedly indicated that

the prima facie case “is not intended to be an inflexible rule.” See Young v. United

Parcel Service, Inc., 575 U.S. 206, 228 (2015) (quoting Furnco Constr. Corp. v.

Waters, 438 U.S. 567, 575 (1978)). Immediately after that statement, Young states:

Rather, an individual plaintiff may establish a prima facie case “by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.” Young, 575 U.S. at 228 (quoting Furnco, 438 U.S. at 576).

The Supreme Court has also repeatedly stated that the prima facie burden is

“‘not onerous.’” Young, 575 U.S. at 228 (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)), a fact also acknowledged by the Texas Supreme

Court in analyzing cases under the TCHRA. Garcia, 372 S.W.3d at 634. The prima

facie burden “is not as burdensome as succeeding on an ‘ultimate finding of fact as

to’ a discriminatory employment action.” Young, 575 U.S. at 228 (quoting Furnco,

438 U.S. at 576).

We have previously stated that “to establish a prima facie case of employment

discrimination, a plaintiff must show (1) she was a member of a protected class,

(2) she was qualified for her employment position, (3) she was subjected to an –14– adverse employment decision, and (4) she was replaced by someone outside of the

protected class, or she was treated less favorably than similarly situated members of

the opposite class.” Mesquite Indep. Sch. Dist. v. Mendoza, 441 S.W.3d 340, 343

(Tex. App.—Dallas 2013, no pet.) (citing Jespersen, 390 S.W.3d at 654; Michael v.

City of Dallas, 314 S.W.3d 687, 690–91 (Tex. App.—Dallas 2010, no pet.)).

Like discrimination claims, TCHRA retaliation claims can be established with

either direct or circumstantial evidence, and for the latter, the McDonnell Douglas

framework applies, but the elements differ. Alamo Heights, 544 S.W.2d at 782. To

state a prima facie case of TCHRA retaliation, an employee must show (1) she

engaged in protected activity under the TCHRA, (2) she experienced a material

adverse employment action, and (3) a causal link exists between her protected

activity and the adverse action. Alamo Heights, 544 S.W.2d at 782 (citing San

Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 137 (Tex. 2015)). The causal

connection required at the prima facie stage is “not onerous and can be satisfied

merely by proving close timing between the protected activity and the adverse

action.” Id. Retaliation claims may be actionable under the TCHRA even if the

underlying discrimination claim is not. Id. at 781.

While the prima facie standards discussed above are correct—in other words,

a plaintiff can satisfy a prima facie case of discrimination or retaliation with such

proof—it would be contrary to both the spirit and the statements of McDonnell

Douglas and its progeny to apply these elements so rotely or so rigidly as to preclude –15– a trial of an employment discrimination case when there is proof of “actions taken

by the employer from which one can infer, if such actions remain unexplained, that

it is more likely than not that such actions were based on a discriminatory criterion”

under anti-discrimination laws such as the TCHRA. See, e.g., Young, 575 U.S. at

228 (citing Furnco, 438 U.S. at 576).

McDonnell Douglas makes clear that, even in situations where the employer

articulates a legitimate, nondiscriminatory reason for the employer’s action—thus

meeting and eliminating the presumption created by the prima facie case—plaintiffs

must be given “a full and fair opportunity to demonstrate by competent evidence that

whatever the stated reasons for [the adverse employment action], the decision was

in reality . . . premised” on a discriminatory basis. McDonnell Douglas, 411 U.S. at

805, n.18. This “full and fair opportunity” is meant to allow a plaintiff “to

demonstrate by competent evidence that the presumptively valid reasons for [the

adverse action] were in fact a cover-up for a . . . discriminatory decision.” Id. at 805.

B. Age and Sex Discrimination in Salary and Lab Cuts

1. The Parties’ Evidence

With its plea, UTSWMC submitted documents and affidavits from certain

UTSWMC faculty members and from two members of its executive leadership,

–16– Dr. Gregory Fitz and Dr. Dwain Thiele.16 Dr. Vitetta responded with her own

affidavits and other evidence, including an affidavit from a UTSWMC colleague,

Jerry Y. Niederkorn, Ph.D., a UTSWMC faculty member and Vice Chairman for

Research who is familiar with Dr. Vitetta and others and who was on a review panel

that reviewed Dr. Vitetta’s performance for the period from 2010 to 2014.

a. UTSWMC’s Evidence

1) Salary Cut and Reason Given in June 2015

In a June 4, 2015 letter, UTSWMC informed Dr. Vitetta it was reducing her

salary by $50,000 per year “due to the sustained absence of external grant support”

(emphasis added). Dr. Fitz and Dr. Wakeland, her supervisor, signed the letter.

2) Lab Cuts and Reason Given in June 2015

Five days later, in a June 9, 2015 letter, UTSWMC informed Dr. Vitetta her

research lab and lab staff would no longer be available after August 31, 2015, stating:

The purpose of this letter is to inform you that space in the department will no longer be available after August 31, 2015. The space is required for other departmental needs. This date nearly coincides with the date that your SRA[17] with Enterprise Mimetics comes to an end (September 1, 2015).

16 J. Gregory Fitz, M.D. and Dwain Thiele, M.D. both served as UTSWMC’s Executive Vice President for Academic Affairs and Provost, Dean of UT Southwestern Medical School (Dr. Fitz from 2009 to April 2018, and Dr. Thiele on an interim basis thereafter). They oversaw all academic affairs, including “faculty appointments, faculty salaries, faculty performance and research productivity, and allocation of research and academic space” at UTSWMC. Both served in these roles when they signed their affidavits. Dr. Fitz signed his affidavit on June 22, 2017. Dr. Thiele signed his affidavit on November 2, 2018.

17 While not defined in the letter, other evidence indicates “SRA” refers to “sponsored research agreement,” one type of extramural funding research faculty might obtain to support their research. –17– Related Issues

 Faculty Office: As a tenured professor . . . you may continue to maintain your office . . . but all other space will no longer be available to you after the end of this fiscal year.

 Lab Staff: Your staff will be subject to a reduction-in-force (RIF), for which they will be notified this month. . . .

 Lab Closure Issues: Since your staff will be RIF’d by the end of August, unless they find other employment, it is expected that you and your staff will handle all lab closure issues, such as the packing up and movement of your equipment, supplies, and other items out of the . . . space by the end of this fiscal year.

o Costs: Costs associated with the packing up and movement of your equipment and supplies will be your responsibility. ....

Sincerely, /s/ Edward K. Wakeland, Ph.D. Professor and Chairman

Cc: Greg Fitz, M.D., Dean [emphasis added in first paragraph]

3) UTSWMC’s Later Information Regarding Funding, Her Salary and Lab, and Other UTSWMC Faculty

Dr. Fitz and Dr. Thiele indicated that UTSWMC research faculty are

responsible for financially supporting the equivalent of fifty percent of their own

salary, the UTSWMC space they occupy, their equipment and supplies, and their

staff, using extramural funding they garner from “NIH grants or other federal or state

grants, contracts, sponsored research agreements, cooperative agreements, or other

sponsored programs, to support their research activities.” Both Dr. Fitz and –18– Dr. Thiele stated that Dr. Vitetta “has not had sufficient funding to meet that

standard.” According to Dr. Fitz, “Faculty’s ability to finance their research directly

impacts [UTSWMC’s] business decisions regarding allocation of available space,

salaries and staffing levels.”

Dr. Thiele described different types of extramural funding at UTSWMC,

drawing distinctions between awards from competitive peer-reviewed processes,

private companies, licensing or material transfer agreements, and other sources, and

he explained UTSWMC’s considerations in including that funding (or not) in

making its lab space allocations. He stated, “Although all extramural funding is

considered in [UTSWMC’s] business decisions regarding space and salaries, all

sources of funding are not equal.”

Dr. Fitz and Dr. Thiele stated UTSWMC had used institutional funds to cover

a significant percentage of Dr. Vitetta’s salary since 2012. Both provided specific

percentages for certain years, all of which were over ninety percent.

According to Dr. Fitz, UTSWMC closed the CIC “due to Dr. Vitetta’s failure

to secure sufficient extramural funding for several years.”18 He stated, “Prior to and

since the closing of the CIC in 2013, Dr. Vitetta has struggled to secure necessary

extramural funding to support her research activities, in accordance with established

18 The CIC had been housed within UTSWMC’s Department of Microbiology. Dr. Fitz indicated that after the CIC’s closure, Dr. Vitetta transferred to the Department of Immunology. –19– standards” and has “received significant institutional funding support” from

UTSWMC as a result. He estimated this support as totaling “nearly $6 million.”

Dr. Fitz stated the “contribution of University funds toward Dr. Vitetta’s

annual salary and nearly $6 million in additional money to support her research over

an extended period of time far exceeds that provided to any other faculty member in

Basic Sciences.”

Dr. Fitz stated in his 2017 affidavit that Dr. Vitetta’s salary was cut in 2015

“because of her sustained lack of extramural funding and because [her prior annual

salary] was 72% higher than similarly situated Basic Sciences faculty.” He also

stated her “reduced salary . . . remains the highest of any of the 61 full professors in

Basic Sciences who are also not center directors, Department Chairs, Vice Provost

or Associate Dean.”

Dr. Fitz and Dr. Thiele also provided information in their affidavits about

other UTSWMC faculty members Dr. Vitetta named in her pleading or in her

affidavits, including certain information about extramural funding they received or

bridge funding UTSWMC provided them. We summarize this information here:

 Bruce Beutler, M.D. (information provided by Dr. Fitz) o Director of Center for Genetics of Host Defense, Regental Professor o His Center houses approximately 70 faculty, staff, and trainees o Extramural funding of $29 million to support research, lab

 Igor Butovich, Ph.D. (information provided by Dr. Thiele) o Associate Professor in Ophthalmology o $95,192 in bridge funding received from 3/1/15 to 7/31/16 from dept.

–20–  David Farrar, Ph.D. (information provided by Dr. Thiele) o Director of Flow Cytometry Core o Associate Professor in Immunology o $150,000 in bridge funding approved 6/11/2015

 Lora Hooper, Ph.D. (information provided by Dr. Fitz) o Chair, Department of Immunology o Her own lab houses 18 researchers o Extramural funding of $4 million to support research, lab

 Rafael Ufret-Vincenty, M.D. (information provided by Dr. Thiele) o Associate Professor in Ophthalmology o $326,440 in bridge funding from 9/1/2017 through FY2019

 Ellen S. Vitetta, M.D. (information provided by Dr. Fitz) o Was Director of Cancer Immunobiology Center 1988-2013 o Full Professor with tenure in Dept. of Immunology o Extramural funding of $871,000 to support research, lab

In their affidavits, Dr. Fitz and Dr. Thiele also provided information about

UTSWMC’s lab space allocations. Both stated UTSWMC allocates and reallocates

research space based on the standards and best practices set forth by the American

Association of Medical Colleges standards, which are included in the record.

Both men stated this involves “a data-driven utilization review . . . using an

established financial model” and consideration of “institutional priorities and goals,

underutilization of space, research productivity, and indirect and direct research

dollars per square foot.” Dr. Thiele provided certain details about how much money

Dr. Vitetta and others had recovered in direct and indirect research expenditures per

square foot over certain time periods and stated that in fiscal years 2014 to 2018, all

of the extramural funding Dr. Vitetta obtained to cover her direct and indirect

–21– research expenditures, regardless of source, was used to calculate her research space

allocation. Dr. Fitz stated UTSWMC’s lab space allocation for Dr. Vitetta was

consistent with its established standards.

Dr. Thiele stated, “In making space allocation decisions, all extramural

funding a faculty member has obtained is used to calculate research dollars per

square foot, including federal or state grants, private foundation grants, consortium

agreements with other research institutions, sponsored research agreements, or other

sponsored programs, so long as the funds are actually spent on research activities.”

Dr. Fitz stated that the lab and office space for Dr. Beutler, Dr. Hooper, and

Dr. Vitetta “is commensurate in research dollars per square foot with extramural

funding levels in accordance with UTSWMC’s standards.”

b. Dr. Vitetta’s Evidence

1) Results and Statements in February 2015 Review

In 2014, Dr. Fitz informed Dr. Vitetta that her first post-tenure review would

be due in February 2015. She had been tenured since 1974 and had never before

received such a review.

In late February 2015, Dr. Vitetta’s supervisor, Dr. Wakeland, provided

Dr. Fitz with a post-tenure review letter about Dr. Vitetta, stating she “has had a

stellar career spanning close to 45 years as a faculty member” and agreeing with the

–22– “meets expectations” rating of her by the departmental review panel19 for the 2010-

2014 review period.

The review letter also referred to Dr. Vitetta’s retirement, stating, “Dr. Vitetta

is a senior faculty member who is nearing the point of retirement and, presumably,

will transition to the status of Emeritus Professor.” The letter also stated, “Should

the single SRA that funds her research end without the acquisition of other sources

of external funding, Dr. Vitetta will lose her laboratory space and lab staff.”

At the end of the letter, Dr. Wakeland stated he “would like to develop a

strategy that will facilitate the transition of Dr. Vitetta to Emeritus Professor at an

appropriate time” and would “continue to strive to find a process that will allow this

transition to proceed gracefully.” Dr. Vitetta had no intention of retiring and was in

no hurry to become an Emeritus at that time.

Just over three months later, UTSWMC sent Dr. Vitetta its June 4 and June 9,

2015 letters, informing her salary had been cut by $50,000 per year and that she

would be losing her research lab and lab staff by August 31, 2015.

2) Salary and Lab Cuts and Comments by Dr. Wakeland

When Dr. Vitetta received Dr. Wakeland’s June 9, 2015 letter stating that lab

space would no longer be available after August 31, 2015, Dr. Vitetta was then in

19 The letter indicated that the departmental review committee consisted of Dr. Lora Hooper, Dr. Jerry Niederkorn, and Dr. Chandrashekhar Pasare. –23– the process of negotiating the renewal of the Enterprise Mimetics SRA. According

to her affidavit, losing the lab space would likely cause the SRA not to be renewed.

She requested and was granted a storage lab to keep all her equipment and

reagents20 until she heard about her pending grant. Dr. Vitetta filed a formal

grievance with UTSWMC’s president in early August, and he granted her a one

month extension. She met several times with her supervisor, Dr. Wakeland, to

discuss the cuts to her lab. In describing these discussions, she stated, in part:

In short, Dr. Russell[21] wanted to turn my lab over to Dr. Lora Hooper (a woman twenty-two years my junior . . . [who] had lab space . . . . I informed Dr. Wakeland that I had heard a rumor that Dr. Russell had previously been heard saying that senior scientists “should buy a fishing pole,” and he confirmed that Drs. Fitz and Russell both wanted me to retire as soon as possible but recognized that they could not force me to do so. He also noted that they wanted my Endowments back and that this would occur if I retired. My interpretation of all this was that they were doing everything in their power to harass me until I simply quit.

As to her salary cut, Dr. Wakeland told Dr. Vitetta he had informed Dr. Fitz

and Dr. Russell that she had been supporting her lab through her sponsored research

agreement with Enterprise Mimetics, which brought in more money than many

senior professors, but, Dr. Russell said he “did not care”—this was “not peer

reviewed money and did not count.”

20 Dr. Vitetta describes a reagent as a substance or mixture for use in lab research that is often the result of twenty to twenty-five years of continuous research. 21 Dr. Russell and Dr. Fitz were both Deans, with Dr. Russell reporting to Dr. Fitz. Their specific positions are described below. –24– Dr. Vitetta had never before been told during her years at UTSWMC that peer-

reviewed and non-peer-reviewed money were counted differently. In their

discussion about this, Dr. Wakeland told Dr. Vitetta, “They probably made that up.”

Dr. Wakeland indicated “he had never heard of it before” and had spoken about this

to Dr. Norgard, the Chair of the Immunology Department, and Dr. Norgard “had

never heard of any such rule either.” Dr. Wakeland reiterated that “the notion that

[she] needed peer-reviewed funding was probably a ‘newly made up rule.’”

Dr. Vitetta and Dr. Wakeland “agreed that many clinical faculty run their labs on

[sponsored research agreements],” and he indicated he thought “this was a poor

excuse for cutting [her] salary.”

Dr. Vitetta donated her personal share of certain royalties to UTSWMC in a

check earmarked toward lab expenses. On August 11, 2015, she learned that the

UTSWMC president’s office had ordered that the check be held and not deposited

until further notice, even though her lab funds were running low and she needed to

pay salaries. The check was eventually deposited.

On August 26, 2015, Dr. Vitetta met again with Dr. Wakeland to discuss her

salary cut and temporary storage lab. Dr. Vitetta’s affidavit states that in their

discussion, “Dr. Wakeland and I agreed that the real reason all of this was happening

to me was that the Deans—Fitz and Russell—wanted me to retire and would push

me until I did.”

–25– Dr. Wakeland told her if he were in her position, he would retire. She told

him she did not wish to, and when he seemed puzzled, she explained her work was

important to her and she wanted to finish it. Dr. Vitetta pointed out that their

department had three other empty labs, and Dr. Wakeland told her he preferred she

not occupy them even if she did get more funding, since they were being held for

“new junior recruits” who were not yet identified. Two of these three labs were later

occupied by other UTSWMC faculty members, both men, one in his thirties, and

one in his forties.

Dr. Vitetta stated in her affidavit, “Dr. Wakeland told me that Dr. Russell was

determined ‘to get me out’ and ‘clear the decks for new people’ . . . . [and that] ‘they

all’ (Fitz, Russell, Podolsky) wanted me gone, or at least in an Emeritus position

without a lab or my endowed chairs.”

Dr. Vitetta spent most of September and October 2015 trying to find ways to

hold on to her storage lab space and her five remaining staff members. Around

October 1, 2015, she received a $100,000 materials transfer agreement with a

company named Soligenix, and she signed over her $50,000 share to UTSWMC for

her lab. On October 29, 2015, she emailed Dr. Fitz, demonstrating that her lab now

had sufficient funding through January 31, 2016, and she asked that reduction-in-

force notifications be delayed until December 1, 2015, which would allow staff to

remain employed until January 31, 2016, due to the two-month notice UTSWMC

was to provide. UTSWMC replied, stating it would not wait, and UTSWMC sent –26– reduction-in-force notification letters to her staff that same day, informing them on

October 29 their employment would be terminated effective December 31, 2015.

On November 3, 2015, Dr. Vitetta met again with Dr. Wakeland to discuss

her salary cut, lab, equipment, and termination of her staff, even though she had

money set aside to cover the cost of staff salaries. In her affidavit, Dr. Vitetta states,

“In the context of this conversation, Dr. Wakeland informed me that it would be very

difficult for him to accommodate me because if he did he would get a lot of flak

from a lot of people in the administration, because they had already communicated

to him that their objective was that they wanted me to retire.”

On or around December 9, 2015, she informed UTSWMC of her intention to

use her lab’s money to retain her staff as “temps” (i.e. independent contractors)

through the end of January. By that point, no lab money would have been available

but for the personal donations she had made, including the $50,000 for the Soligenix

money she had donated. Two days later, on December 11, 2015, a lawyer with

UTSWMC emailed her, copying Dr. Podolsky and Dr. Fitz, stating that UTSWMC

intended to give Soligenix a $50,000 refund, even though Soligenix had made no

such request. Dr. Vitetta protested, but UTSWMC withdrew $25,000 from her lab

account and sent it to Soligenix. While Soligenix later returned the money, her lab

was crippled. By the end of January, 2016, all of her staff, save one, had left.

In February 2016, Dr. Vitetta received news that her last pending grant would

be funded, but by this time, her lab had been completely decimated, and all –27– remaining items were in a storage lab in the pathology department. By May 2016,

Dr. Vitetta had to start all over building a lab team, reorganizing the lab, and moving

more things into storage to make room to work. Now that she was funded, she

requested lab space back in the immunology department, and her request was denied.

UTSWMC gave her a storage lab in pathology to use as her “permanent” lab space,

and she trained two new lab employees. Having a lab in pathology while holding an

appointment in immunology is very difficult, and at least once, Dr. Vitetta had to

move within pathology to accommodate one of the department’s new recruits, again

losing time.

According to her affidavit, because the lab space UTSWMC told Dr. Vitetta

to vacate in June 2015 remained empty for nine months, Dr. Vitetta concluded that

Dr. Russell and Dr. Fitz directed Dr. Wakeland to throw her out of her lab space on

August 31, 2015 “for the sole purpose of killing my SRA funding and further

pushing me to retire.”

When she and Dr. Wakeland met to discuss her situation on December 15,

2015, Dr. Wakeland informed her that the administration was “inconsistent” in the

way it was defining what money “counted” and what did not. He said he had

discussed the administration’s pattern of defining and re-defining what constituted

sufficient funding in their department, and the other department chairs stated they

“had never heard of such a thing” and “had no idea what the administration was

talking about” with regard to funds from sponsored research agreements as opposed –28– to NIH grants. Dr. Vitetta replied that it “appeared to be made up” on the spot, and

Dr. Wakeland agreed. He also told her it appeared to him that the administration

was cycling department chairs out after age sixty-five.

3) Dr. Vitetta’s Unique Status, Her Comparison to Others, and Views from Other Faculty

In her affidavit, Dr. Vitetta stated she holds a unique position among faculty

at UTSWMC in three respects: she is the only faculty member at UTSWMC who

has accomplished both widespread recognition for both teaching and scientific

excellence and productivity; she is the only faculty member at UTSWMC whose

graduate student has gone on to win the Nobel Prize; and she has one of the most

extensive publication records of any member of the UTSWMC faculty. Dr. Vitetta

stated that between her “accomplishments and recognition in teaching and science,

as well as the tens of millions of dollars . . . raised” for UTSWMC, there is no

employee at UTSWMC who is similarly situated to her.

However, Dr. Vitetta also stated that while there is no employee at UTSWMC

similarly situated to her in both teaching and research, both Dr. Lora Hooper and

Dr. Bruce Beutler were treated more favorably than she was, as they had not had

their salaries cut, had not had their research and productivity compromised,

aggressively undermined, and actively sabotaged as hers had been, and had not been

subjected to ill-defined and constantly changing fund-raising rules. Dr. Vitetta also

stated that “younger faculty members in their thirties and fifties have received more

–29– favorable treatment—most of them men.” She named three such individuals:

Dr. David Farrar, Igor Butovich, Ph.D., and Rafael Ufret-Vincenty, M.D., and she

stated that they are younger, less-qualified men UTSWMC treated more favorably

with regard to bridge funding.

Dr. Wakeland discussed Dr. Farrar with Dr. Vitetta on May 5, 2016.

Dr. Farrar is a male in his fifties who was not a full professor. He is a tenured

associate professor in the Immunology and Molecular Biology Departments in the

Basic Sciences Division, where Dr. Vitetta is. In their discussion, Dr. Wakeland

informed Dr. Vitetta that Dr. Farrar was without grant money but was being allowed

to remain in a 2,400 square foot lab, more than double what she had. Dr. Wakeland

had also been helping Dr. Farrar with his salary and operating funds for a while.

Dr. Butovich and Dr. Ufret-Vincenty are male UTSWMC faculty members in

their early fifties. Dr. Niederkorn, who chairs their department and is very familiar

with their employment with UTSWMC and with Dr. Vitetta’s, identified both

Dr. Butovich and Dr. Ufret-Vincenty as “two less qualified and younger male

research faculty members” whom UTSWMC “recently treated more favorably” than

UTSWMC treated Dr. Vitetta with regard to research bridge funding.22

22 At the time of his 2018 affidavit, Dr. Niederkorn was UTSWMC’s former director and then-current Vice Chairman of Research for the Department of Ophthalmology. In his affidavit, he identified Dr. Butovich and Dr. Ufret-Vincenty as Associate Professors at UTSWMC. He also indicated he had been a UTSWMC colleague of Dr. Vitetta’s for over thirty-five years and is “very familiar with her career and track record as an immunologist and research scientist.” –30– Dr. Niederkorn described Dr. Vitetta’s qualifications and accomplishments as

“better” than those of Dr. Butovich or Dr. Ufret-Vincenty and stated Dr. Vitetta has

“contributed substantially more to her fields than either of them had thus far

contributed to theirs.”23 He described Dr. Vitetta as “one of the most accomplished

immunologists and microbiologists in the world.”

Dr. Niederkorn stated that when Dr. Butovich was unable to obtain grant

money to fund his research in approximately 2014-2016, UTSWMC provided

Dr. Butovich bridge funding for at least two years that paid his entire salary, covered

the cost of his lab space and salaries of his research personnel, and kept his lab

running during a lengthy gap in available funding for his research.

Dr. Niederkorn also stated that when Dr. Ufret-Vincenty was unable to obtain

grant funding from approximately 2015 through at least June 30, 2018, UTSWMC

provided him bridge funding to cover the cost of his lab space and the salaries of his

personnel.

Finally, Dr. Niederkorn stated that UTSWMC provided funding to Dr.

Butovich and Dr. Ufret-Vincenty from “discretionary portions of the department’s

budget, without the Dean’s or University’s having tied the department chair’s hands

with respect to any bridge funding the department provided,” and that the dean and

23 Among other positive statements describing Dr. Vitetta, Dr. Niederkorn stated she is “one of the most accomplished immunologists and microbiologists in the world” and that, while UTSWMC “has many fine scientists in many different fields, there are few whose careers have produced such distinction.” –31– other members of UTSWMC “did not actively intervene to sabotage their efforts” in

cobbling together a solution for funding gaps, such as “making unilateral decisions

on sponsored research agreements or other private funding sources, removing funds

from their lab’s bank accounts without agreement, and terminating their lab

personnel even when funding was available.”

Dr. Niederkorn had been on the review panel for Dr. Vitetta’s February 2015

review. Consistent with Dr. Wakeland’s comments to Dr. Vitetta regarding funding,

in Dr. Niederkorn’s affidavit, he stated, “In the evaluation of a research professor’s

performance in the arena of fund raising for his or her own research, I am not aware

of UTSW’s refusing to acknowledge, accept or count non-peer-reviewed funding,

private funding, sponsored research agreements, re-directed chair money, or funding

from any other source the professor was able to obtain or divert.”

According to Dr. Niederkorn, UTSWMC and Dr. Fitz “have never issued any

written rule, regulation, standard or guideline limiting research faculty to NIH

funding . . . to peer-reviewed funding . . . nor . . . has any such rule been orally

communicated.” In his experience, UTSWMC “and Dr. Fitz welcome financial

contributions to scientific research from nearly any source the research faculty

member can secure, and there is no written or orally communicated standard

informing research faculty in advance that, without NIH funding in place, other

sources of income or support will be rejected by the University.”

–32– In explaining why he provided an affidavit, Dr. Niederkorn stated, “I am

greatly concerned that Dr. Vitetta’s contributions and value to the University are not

being recognized, and her continued success as a research scientist is being

hampered.”

4) Other Prior Events Affecting Dr. Vitetta24

Dr. Vitetta also provided evidence regarding UTSWMC’s treatment of her in

the years leading up to the 2015 cuts. She described serving as Director of the CIC

for twenty-five years beginning in 1988, and she detailed the circumstances

surrounding its closure, some of which we include here.

From 1998 to 2012, Dr. Vitetta was “never given any specific parameters for

the funds she had to raise” for the CIC—including “no specific minimums to raise,

no specific sources where any such funds had to come from (e.g. peer-reviewed or

otherwise), and no specific requirements for the allocation of such funds (e.g., for

her salary, lab expenses, or otherwise).”

Between 2008 and 2011 (not long after Dr. Vitetta turned sixty-five),

UTSWMC placed into executive or senior leadership positions three male doctors

who are ten to fifteen years younger than she is, including Daniel K. Podolsky, M.D.,

24 Though not actionable here, events before June 2015 may serve as relevant background evidence in this appeal. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (acts not made the basis for a timely charge may constitute relevant background evidence in which the status of a current practice is at issue); McDonnell Douglas, 411 U.S. at 804 (other evidence that may be relevant to any showing of pretext includes facts as to the employer’s treatment of the employee during the employee’s prior term).

–33– Greg Fitz, Ph.D., and David Russell, Ph.D., who joined UTSWMC in 2008, 2009,

and 2011, respectively.25

On May 1, 2012 (about a month before her seventieth birthday), Dr. Russell

met with Dr. Vitetta and told her he intended to “shut down her good manufacturing

practice lab” and to give the lab space to a newly hired faculty member, Bruce

Beutler, M.D., a man approximately fifteen years younger than she is. When she

told Dr. Russell this would undermine her research and the productivity of the CIC,

he “became angry and began to disparage her, her work, and her research program.”

Dr. Vitetta told Dr. Russell that she needed that lab to continue doing clinical trials,

that it “was the centerpiece of her entire research operation in the CIC,” and she

“could not manufacture a vaccine or anything else for human use without it.”

Despite her objections, UTSWMC and Dr. Russell followed through with the plan.

Between May 2012 and March 2014 (as Dr. Vitetta approached seventy-two),

the CIC’s floor space went through constant renovations and moves. Dr. Vitetta’s

group was repeatedly relocated to various parts of the floor. Equipment, office

records, reagents, freezers, refrigerators, and everything else the lab used had to be

moved each time. During this time, the CIC’s personnel, productivity, research

projects, and acquisition of data were all severely compromised by persistent

25 During relevant times here, Dr. Podolsky was UTSWMC’s president, Dr. Fitz was UTSWMC’s Executive Vice President for Academic Affairs and Provost, Dean of UT Southwestern Medical School, and Dr. Russell was UTSWMC’s Vice Provost and Dean of Basic Research and worked under Dr. Fitz. –34– construction, renovations and moves made to accommodate Dr. Beutler’s new

center. These functions slowed down and often stopped research, and personnel

could not work because of noise, contamination with dust and mold, and overall loss

of morale or inability to concentrate.

During this time, as Dr. Beutler was gradually given more and more space,

Dr. Vitetta’s space was cut back, and eventually, Dr. Beutler took over the space for

his own. Dr. Vitetta’s lab productivity was severely hindered by two years of

constant moving and construction. She brought these concerns to her superiors and

was either ignored or rebuffed.

This disruption and lack of support created chaos that made the CIC unable to

provide new data or publications, and Dr. Vitetta’s attempts to land a new NIH grant

were largely unsuccessful during that period as a result of the chaos. When her grant

funds began to run out and new grants were not yet successful, Dr. Vitetta was told

for the first time that she had to close the CIC because she had not raised enough

funds in the prior years. This created an enormous and entirely new disruption to

her research, as the closure led to, among other things, the relocation or destruction

of records and the move or loss of valuable chemical reagents and irreplaceable

animal and human serum samples. Closure also resulted in the firing of thirty-five

of her forty employees, many of whom had worked for her for ten to twenty years.

Around March 2014, Dr. Vitetta spoke with Dr. Wakeland, who chaired the

Department of Immunology, and Dr. Norgard, who chaired the Department of –35– Microbiology, about finding space to move her remaining group to since she was

tenured in both departments. Dr. Wakeland told her she could have temporary space

in immunology until he needed the space for “new young recruits,” and Dr. Norgard

told her he only had space for a “new recruit.” The temporary space would only

allow her 1,000 square feet (her CIC space was 18,000 square feet), leaving an

extremely crowded working lab, with some equipment stored on other floors, in

other buildings, with colleagues, and even in Dr. Vitetta’s home.

Also in 2014, Dr. Fitz informed Dr. Vitetta that her first post-tenure review

would be due in February 2015. She had been tenured since 1974 and had never

before received such a review. The February 2015 post-tenure review letter Dr.

Wakeland provided Dr. Fitz in connection with that review is described earlier. Just

over three months after that letter, UTSWMC made the cuts to Dr. Vitetta’s salary

and lab that led to this lawsuit.

2. Analysis of Age and Sex Discrimination Claims

a. Adverse Action (Lab Cuts)

With regard to her discrimination claims involving her lab (but not her salary),

UTSWMC argues the events in 2015 do not constitute an adverse action under

McDonnell Douglas. UTSWMC characterizes her claim as one involving a “work

space move” that is not actionable, and even if actionable, one that was not

materially adverse. We disagree. Even if we assume UTSWMC satisfied its initial

burden of negating this element with its own proof (which we doubt, based on this –36– record), Dr. Vitetta’s evidence raises a genuine issue of fact on this jurisdictional

element on her lab-related age and sex discrimination claims.

In reaching this conclusion, we have considered the TCHRA’s plain text,

which makes it an “unlawful employment practice” to “discriminate in any other

manner against an individual in connection with compensation or the terms,

conditions, or privileges of employment.” TEX. LAB. CODE § 21.051. At a

minimum, a fact issue exists on whether her lab constituted a term, condition, or

privilege of her employment and whether its removal was sufficiently adverse to

constitute an adverse employment action for McDonnell Douglas purposes.

In addition to considering the statutory text, we have also considered the cases

UTSWMC cites, Allbritain v. Texas Dep’t of Ins., No. A-12-CA-431-SS, 2014 WL

272223 (W.D. Tex. Jan. 23, 2014), Hamlett v. Gonzales, No. 3:03-CV-2202-BHM,

2005 WL 1500819 (N.D. Tex. June 15, 2005), Winters v. Chubb & Son, Inc., 132

S.W.3d 568 (Tex. App.—Houston [14th Dist.] 2004, no pet.), and Wooten v. St.

Francis Med. Ctr., 108 F. App’x 888 (5th Cir. 2004) (unpublished). None of these

cases are binding, and each is distinguishable from the facts here.

We begin with Winters, the only TCHRA case UTSWMC cites on this issue.

UTSWMC cites Winters for the proposition that the TCHRA only addresses ultimate

employment decisions, a phrase that is not contained in the TCHRA itself and that

does not accurately describe the law. As indicated above and in the statute itself,

among other things, the TCHRA prohibits employers from discriminating against an –37– individual “in connection with . . . the terms, conditions, or privileges of

employment.” TEX. LAB. CODE § 21.051(1).26

Winters involved facts distinguishable from those here and does not support

UTSWMC’s argument on the adverse action element. In Winters, an underwriter

asserted a discriminatory constructive discharge claim based on his resignation after

receiving performance warnings and after his underwriting authority was revoked

and was not reinstated. Winters, 132 S.W.3d at 571–73, 575–76. The court

concluded a fact issue existed on the adverse action element in that case but affirmed

summary judgment based on other elements. Id. at 575–80.

UTSWMC also cites Wooten, 108 F. App’x at 891 and Hamlett, 2005 WL

1500819, at *15, but those cases are distinguishable as well. In Wooten, in an

unpublished opinion and in dicta, the Fifth Circuit stated that the act of moving a

claimant’s work area to a storage closet did not constitute an adverse action. Wooten,

180 F. App’x at 891. The opinion is silent about what evidence the employee

presented, if any, to show what impact the move had on the claimant’s work or

workplace conditions. In Hamlett, the court found that a change in office assignment

did not constitute an adverse employment action and noted, in part, that the claimant

26 See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) (interpreting similar language under Title VII as covering “actions that affect employment or alter the conditions of the workplace”); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–16 (2002) (scope of Title VII’s prohibition is not limited to economic or tangible discrimination); Alamo Heights, 544 S.W.3d at 781 (“Texas jurisprudence parallels federal cases construing and applying equivalent federal statutes, like Title VII.”). –38– had not asserted her pay, benefits, or level of responsibility changed as a result of

the new location. Hamlett, 2005 WL 1500819, at *15. Unlike those cases, even if

we assume UTSWMC’s evidence negated this element, Dr. Vitetta has raised a

genuine fact issue here considering the negative impact on her work and level of

responsibility.

Finally, UTSWMC cites Allbritain, and argues the reduction-in-force of Dr.

Vitetta’s lab employees is not an adverse action. In Allbritain, the court determined

that an employer’s refusal to provide a claimant with support staff did not constitute

an adverse action. 2014 WL 272223, at *8. Unlike that case, here UTSWMC closed

her lab and removed her staff from their existing projects, thus negatively altering

Dr. Vitetta’s existing work conditions and level of responsibility.

In addition to UTSWMC’s cited cases, we have also considered Chuang v.

Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1125–26 (9th Cir. 2000), which

involves facts more similar to those involved here. In Chuang, an assistant professor

of pharmacology and an assistant research pharmacologist sued a state university for

discrimination, based in part on the relocation of their lab space. Id. at 1119, 1125–

26. The trial court granted summary judgment in the employer’s favor. On appeal,

the circuit court reversed the trial court’s judgment on the claim involving the lab,

concluding that “the relocation of their laboratory space unquestionably qualifies as

an adverse employment action” and “involved far more than, as the district court

characterized it, a ‘host of annoyances.’” Id. at 1125–26. The court found that the –39– relocation of the lab in that case “more than qualified” as an adverse employment

action, based in part on evidence that the forced relocation of the lab “disrupted

important, ongoing research projects,” after which the research team quit,

experimental subjects were lost, and research grants were withheld. Id. In deciding

that issue, the court held, “The removal of or substantial interference with work

facilities important to the performance of the job constitutes a material change in the

terms and conditions of a person’s employment.” Id.

Here, it is undisputed that UTSWMC informed Dr. Vitetta that by August 31,

2015, her lab space would no longer be available, her employees would be

terminated through a reduction in force, she and her employees would be responsible

for moving all equipment, supplies, and other items out of the space, and she would

be responsible for all costs associated with doing so. In other words, UTSWMC

informed her—a member of its research faculty—that she would no longer have a

place, the personnel, the equipment, or the tools necessary to conduct her research.

We agree with Chuang’s analysis and conclude Dr. Vitetta’s evidence raises

a genuine issue of fact on the adverse action element of her lab-related age and sex

discrimination claims.

b. Disparate Treatment (Salary and Lab Cuts)

UTSWMC also argues Dr. Vitetta is unable to satisfy the disparate treatment

element of her prima facie case of age or sex discrimination because she cannot show

that other similarly situated, “nearly identical” employees were treated more –40– favorably with regard to their lab or their salary. We conclude UTSWMC has

satisfied its burden under Alamo Heights but also conclude that Dr. Vitetta has raised

a fact issue on this element on both her lab- and salary-related discrimination claims.

First, “whether two employees are ‘similarly situated’ generally presents a

question of fact for the jury.” Wallace v. Seton Family of Hosps., 777 F. App’x 83,

89 (5th Cir. 2019) (unpublished) (citing Perez v. Tex. Dep’t of Crim. Justice,

Institutional Div., 395 F.3d 206, 214–15 (5th Cir. 2004); George v. Leavitt, 407 F.3d

405, 414 (D.C. Cir. 2005)); see Graham v. Long Island R.R., 230 F.3d 34, 39 (2d

Cir. 2000).

Second, rigidly applying the prima facie elements to require Dr. Vitetta to

identify a “nearly identical” comparator to her would contradict the Supreme Court’s

statement in Young that the prima facie case does not require a plaintiff to show “that

those whom the employer favored and those whom the employer disfavored were

similar in all but the protected ways.” Young, 575 U.S. at 228 (citing McDonnell

Douglas, 411 U.S. at 802; Furnco, 438 U.S. at 575–77; Burdine, 450 U.S. at 253).

Further, a rigid application of a “nearly identical” requirement would be contrary to

McDonnell Douglas and its progeny when, as here, there is evidence that would

allow us to infer, if UTSWMC’s actions remain unexplained, that it is more likely

–41– than not that its actions were based on Dr. Vitetta’s age or sex. See Young, 575 U.S.

at 228 (citing Furnco, 438 U.S. at 576).27

Third, Alamo Heights makes clear that employees are “similarly situated if

their circumstances are comparable in all material respects, including similar

standards, supervisors, and conduct.” 544 S.W.3d at 791 (citing Ysleta Indep. Sch.

Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)). Here, the evidence suggests

that, at the time of the pertinent events, Dr. Vitetta and the other research faculty she

lists as comparators were all in the same ultimate chain of command, where the

decisions by their department chairs were overseen and supervised by Dr. Russell,

Dr. Fitz, and Dr. Podolsky who served as senior leadership officials. According to

the parties’ evidence, at least two of these individuals, Dr. Russell and Dr. Fitz,

played a role in shutting down Dr. Vitetta’s labs (both before and in 2015),

communicated with her supervisor about her funding, and left her supervisor with

the impression that they all wanted Dr. Vitetta to retire but knew they could not force

27 One scholar has noted that requiring comparator evidence in our modern economy can have the effect of restricting, rather than promoting, anti-discrimination laws given the realities of modern workplaces, particularly in cases involving high-level, specialized, and unique positions, including in academia, as well as those involving intersectional claims of discrimination (e.g. when the combination of two or more protected traits forms the basis for discrimination). Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 731 (2011) (stating that the comparator heuristic “is barely functional in today’s economy,” is “largely unresponsive to updated understandings of discrimination,” and has “constrict[ed] the very idea of discrimination”); see Tricia M. Beckles, Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage if They Have No “Similarly Situated” Comparators?, 10 U. Pa. J. Bus. & Emp. L. 459, 469, 471 (2008) (describing various standards among the federal circuit courts on the issue, pointing out they are “by no means uniformly defined” and are “hardly a ‘standard’ in a strict sense,” and stating the differences cause “a great deal of uncertainty” particularly in cases involving a “class of one”). –42– her to do so. Additionally, UTSWMC’s own evidence indicates that at all pertinent

times here, Dr. Fitz was responsible for overseeing all academic affairs, including

“faculty appointments, faculty salaries, faculty performance and research

productivity, and allocation of research and academic space,” the very actions that

are at issue. Based on the evidence before us, we believe Dr. Vitetta has raised a

genuine fact issue on whether the comparators she has identified are similar to her

in all material respects as required by Alamo Heights.

Thus, a fact-finder could infer that Dr. Vitetta’s age and sex were motivating

factors in UTSWMC’s decisions to cut her salary and lab in 2015. After several

decades of successful employment, UTSWMC’s actions toward Dr. Vitetta as she

approached and surpassed age seventy worsened and increased in intensity over

time, culminating in a significant salary reduction and loss of her research lab and

lab staff. The June 2015 events at issue occurred roughly three months after her

supervisor communicated to Dr. Fitz about her then-unplanned retirement and his

hope for a smooth process to transition her to Emeritus status. Dr. Vitetta’s evidence

shows that beginning in June 2015 and in the months thereafter, UTSWMC removed

lab space from Dr. Vitetta and gave it to younger faculty members, denied her use

of other, available space that her supervisor indicated was being reserved for newer,

younger recruits, provided to two younger men two of the available spaces she had

been denied, and interfered with her funding efforts in ways that younger and male

–43– faculty members did not experience, according to Dr. Vitetta, her supervisor, and

Dr. Niederkorn.

We conclude Dr. Vitetta has raised a genuine fact issue on the disparate

treatment elements of her age and sex discrimination claims involving both her

salary and her lab.

c. Pretext (Salary and Lab Cuts)

UTSWMC argues that Dr. Vitetta cannot show that its reasons for cutting her

salary and lab in 2015 were a pretext for age or sex discrimination. While UTSWMC

has satisfied its burden under Alamo Heights, Dr. Vitetta has raised a fact issue on

this element on both her lab- and salary-related discrimination claims.

Under McDonnell Douglas, once an employer produces a legitimate,

nondiscriminatory explanation for its decision, an employee “must be afforded ‘the

opportunity to prove by a preponderance of the evidence that the legitimate reasons

offered by the [employer] were not its true reasons, but were a pretext for

discrimination.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000) (quoting Burdine, 450 U.S. at 253). An employee can do this by showing

that the employer’s proffered reason is “unworthy of credence.” Id. (quoting

Burdine, 450 U.S. at 256); Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003)

(“An explanation is false or unworthy of credence if it is not the real reason for the

adverse employment action.”). Along with prima facie proof, disbelief of the reason

put forward by the employer may “suffice to show intentional discrimination” and –44– “will permit the trier of fact to infer the ultimate fact of intentional discrimination.’”

Reeves, 530 U.S. at 147 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993)). Reeves states, “In appropriate circumstances, the trier of fact can reasonably

infer from the falsity of the explanation that the employer is dissembling to cover up

a discriminatory purpose.” Id.

In Michael v. City of Dallas, we described the TCHRA analysis this way:

If the defendant proffers a legitimate reason for the adverse employment decision, the burden shifts back to the plaintiff to show either (1) the reason stated by the employer was a pretext for discrimination, or (2) the defendant's reason, while true, was only one reason for its conduct and discrimination is another motivating factor (‘mixed motive’).

314 S.W.3d at 691 (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th

Cir. 2004); McCoy v. Texas Instruments, Inc., 183 S.W.3d 548 (Tex. App.—Dallas

2006, no pet.)).

Here, UTSWMC makes two main arguments regarding pretext, one regarding

falsity, and the other, regarding whether we may consider certain evidence.

As to its first argument regarding falsity, UTSWMC argues that Dr. Vitetta

cannot demonstrate pretext when she has not presented any evidence contradicting

its assertions regarding certain funding issues—arguing, in essence, that funding

issues are why the 2015 cuts to the lab occurred. With regard to her salary cut,

UTSWMC states, “[Dr.] Vitetta’s salary was reduced because of her sustained lack

of grant funding and because at [her prior salary amount] annually, her salary was

–45– 72% higher than similarly situated Basic Sciences faculty.” This statement is

consistent with the reason Dr. Fitz provided in his 2017 affidavit, but notably, it

provides an additional reason beyond the reason UTSWMC provided her in 2015,

when UTSWMC stated her salary cut was “due to the sustained absence of external

grant support” and did not discuss how her salary compared with others.

With regard to the cuts to her lab and lab staff, UTSWMC states that

Dr. Vitetta has failed to put forth any evidence that its “financial and business

reasons” for making the lab cuts are false and mere pretext for discrimination or

retaliation because “her own evidence establishes her lack of extramural funding

during the period,” and UTSWMC then mentions other facts, including that her

allocation of lab space is consistent with UTSWMC’s standards and is nearly

identical to others. However, notably missing from UTSWMC’s pretext discussion

in its brief is any acknowledgment that the funding-related reasons it now asserts

were never mentioned in its June 9, 2015 letter notifying her of the lab cuts. Instead,

that letter simply informed her that, “The space is required for other departmental

needs.”

Regardless of the precise reasons for UTSWMC’s actions, we reject

UTSWMC’s first argument because, even if its asserted reasons are true, an unlawful

employment practice may still be established under the TCHRA if Dr. Vitetta’s age

or sex were motivating factors in the decisions to cut her salary or lab staff. See TEX.

LAB. CODE § 21.125(a). Additionally, even if UTSWMC’s reasons appear facially –46– true, a fact-finder could conclude from Dr. Vitetta’s evidence that UTSWMC’s

asserted reasons were “made up,” were a “poor excuse,” and were not the “real

reason” UTSWMC made the cuts to her salary and lab in 2015. Because of this

evidence, a fact-finder could also infer from her evidence that UTSWMC made these

cuts due to her age and her sex. See Reeves, 530 U.S. at 147.

Under Reeves, a fact-finder may infer that discrimination has occurred if the

plaintiff can demonstrate the employer’s reason is “unworthy of credence.” Id.

(“Proof that the defendant's explanation is unworthy of credence is simply one form

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

be quite persuasive.”). Doubt in the employer’s asserted reason can be established

in a number of ways, including by proof that the employer provided shifting or

different reasons for its action at different times. See Caldwell v. KHOU-TV, 850

F.3d 237, 242 (5th Cir. 2017) (“employer’s inconsistent explanations for an

employment decision ‘cast doubt’ on the truthfulness of their explanations”);

Palasota v. Haggar Clothing Co., 342 F.3d 569, 575 (5th Cir. 2003) (jury could infer

discriminatory animus from employer’s shifting reasons from time of the adverse

employment action to time case was litigated). Doubt can also be established when

the reason seems to make no sense. See Young, 575 U.S. at 233 (Alito, J.,

concurring) (“when an employer claims to have made a decision for a reason that

does not seem to make sense, a factfinder may infer that the employer’s asserted

reason for its action is a pretext for unlawful discrimination”). Here, particularly in –47– light of the contents of the February 2015 post-tenure review letter, which notes

Dr. Vitetta’s considerable contributions to UTSWMC and her “meets expectations”

rating for the prior review period of 2010 to 2014, subjecting her to such significant

cuts just over three months later makes no sense. Even without considering Dr.

Wakeland’s comments (which we will separately address below), Dr. Vitetta’s other

evidence, including her post-tenure review letter, her own history at UTSWMC, and

her evidence from Dr. Niederkorn, are sufficient to raise a genuine fact issue on

pretext.

Dr. Vitetta’s pretext evidence is even stronger when we consider the

comments made by Dr. Wakeland, her supervisor, regarding the cuts. This brings

us to UTSWMC’s second argument regarding pretext, in which UTSWMC asserts

we should ignore evidence of Dr. Wakeland’s comments because they “are not direct

evidence of discrimination or discriminatory animus sufficient to allege a violation

of the TCHRA.” 28

Dr. Vitetta does not argue Dr. Wakeland’s comments are direct evidence, but

instead offers them as evidence of pretext. At oral argument, in response to a

question about how the court should view Dr. Wakefield’s comments, UTSWMC’s

counsel took the remarkable position that, because they do not constitute direct

28 UTSWMC describes Dr. Wakeland’s comments as “hearsay, rumors, and stray comments.” Although UTSWMC made similar arguments below, the record contains no specific objections by UTSWMC or rulings by the trial court on such matters. Thus, UTSWMC did not preserve any hearsay- related objections for our review, and we do not consider such objections here. See TEX. R. APP. P. 33.1. –48– evidence, they simply do not count as any evidence at all. We disagree.

Dr. Wakeland’s comments are strong circumstantial evidence that UTSWMC’s

reasons for the 2015 cuts to her salary and lab were unworthy of credence and would

allow a fact-finder to infer that Dr. Vitetta’s age and sex were both motivating factors

in UTSWMC’s decisions. See Reeves, 530 U.S. at 147. Ignoring or minimizing

such evidence would be inconsistent with Reeves, 530 U.S. at 152–53, with our

standard of review here, and with the rules of evidence, which make no distinction

between direct and circumstantial evidence.

In Reeves, a jury concluded that an employee was terminated because of his

age in violation of section 623(a)(1) of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621–34, based in part on two age-related comments by a

person who participated in the decision to terminate him—comments made several

months before the firing that the employee “was so old that he ‘must have come over

on the Mayflower,’” and “was ‘too damn old to do the job.’” Reeves v. Sanderson

Plumbing Prods., Inc., 197 F.3d 688, 691 (5th Cir. 1999), rev’d, 530 U.S. 133

(2000). After the verdict, the trial court denied the employer’s motion for judgment

as a matter of law, and on appeal, the Fifth Circuit reversed, finding there was

insufficient evidence of age discrimination to support the jury’s finding of liability.

Id. The Supreme Court reversed, criticizing the Fifth Circuit’s dismissive treatment

of the comments, stating:

–49– In holding the record contained insufficient evidence to sustain the jury’s verdict, the Court of Appeals misapplied the standard of review dictated by Rule 50. Again, the court disregarded critical evidence favorable to petitioner—namely, the evidence supporting petitioner’s prima facie case and undermining respondent’s nondiscriminatory explanation. The court also failed to draw all reasonable inferences in favor of petitioner. For instance, while acknowledging “the potentially damning nature” of [the speaker’s] age-related comments, the court discounted them on the ground that they “were not made in the direct context of Reeves’s termination.” And the court discredited petitioner’s evidence that [the speaker] was the actual decisionmaker by giving weight to the fact that there was “no evidence to suggest that any of the other decision makers were motivated by age.” Moreover, the other evidence on which the court relied—that [other employees] were also cited for poor recordkeeping [the same reason the employer cited for firing Reeves], and that respondent employed many managers over age 50—although relevant, is certainly not dispositive. In concluding that . . . no rational trier of fact could have found that petitioner was fired because of his age, the Court of Appeals impermissibly substituted its judgment concerning the weight of the evidence for the jury’s.

Reeves, 530 U.S. at 152–53 (quoting Fifth Circuit’s opinion at 197 F.3d. at 693–94;

internal citations omitted).

Later, in Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000),

the court noted such comments can be used to support discrimination and pretext,

explaining that their value depends on the content of the remarks and the speaker.

Id. at 225 (citing Reeves, 530 U.S. at 151–52). The court emphasized the importance

of “view[ing] cautiously” its pre-Reeves stray remarks jurisprudence and also noted

the court’s prior warning that “‘the ‘stray remark’ jurisprudence is itself inconsistent

with the deference appellate courts traditionally allow juries regarding their view of

–50– the evidence presented and so should be narrowly cabined.’” Russell, 235 F.3d at

225 (quoting Vance v. Union Planters Corp., 209 F.3d 438, 442 n.4 (5th Cir. 2000)).

Finally, in Reed v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012), the

court explained that, unlike in a direct evidence case, where a more stringent four-

part test applies,29 when a plaintiff offers comments as circumstantial evidence

alongside other discriminatory conduct, a more flexible, two-part test applies,

requiring only that the comment show (1) discriminatory animus (2) on the part of a

person primarily responsible for the challenged employment action or by a person

with influence or leverage over the relevant decision maker. Id. at 441 (citing

Russell, 235 F.3d at 226 and Laxton, 333 F.3d at 572). Here, the comments were

made by Dr. Vitetta’s supervisor in their discussions about her salary and lab cuts,

and many of them reflect age-related motivations on the part of Dr. Russell, Dr. Fitz,

and others in senior leadership positions with leverage over him.

Thus, in line with Reeves and our own analogous standard of review here,30

we reject UTSWMC’s assertion that we should ignore Dr. Wakefield’s comments in

29 Statements or remarks are direct evidence of discrimination when they (1) are related to the employee’s protected class, (2) are related to the employment decision at issue, (3) are close in time to that decision, and (4) are made by an individual with authority over the decision. See Dallas Indep. Sch. Dist. v. Allen, No. 05–16–00537–CV, 2016 WL 7405781, at *7 (Tex. App.—Dallas Dec. 22, 2016, pet. denied) (mem. op.). Because neither party argues this is a direct evidence case, we do not apply that four-part test here. See Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015) (citing Reed, 701 F.3d at 441).

30 Reeves involved a motion for a judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, which mirrors the Rule 56 standard for summary judgment. Under both rules, courts must review all of the evidence in the record, drawing all reasonable inferences in favor of the non-movant, but making no credibility determinations or weighing any evidence. Reeves, 530 U.S. at 150. –51– considering Dr. Vitetta’s claims. Both with and without consideration of

Dr. Wakefield’s comments, a fact-finder could conclude that UTSWMC’s asserted

reasons for Dr. Vitetta’s salary and lab cuts were unworthy of credence, which alone

and with the other evidence presented would allow a fact-finder to infer that

Dr. Vitetta’s age and sex motivated its decisions.

Because Dr. Vitetta has raised a genuine fact issue on her age and sex

discrimination claims regarding her salary and lab cuts, we agree with the trial court

that sovereign immunity under the TCHRA has been waived. See Alamo Heights,

544 S.W.3d at 785 (“Whether by jurisdictional plea or summary-judgment motion,

the plaintiff is not put to the ultimate burden of proof but must only raise a fact issue

on the existence of illegal intent.”).

We overrule UTSWMC’s second and third issues.

C. Retaliation in Lab Cuts

In its first issue, UTSWMC argues, in part, that the trial court erred in denying

its plea to the jurisdiction on Dr. Vitetta’s lab-related retaliation claim. According

to its counsel’s statements in oral argument, unlike its other challenges, UTSWMC

challenges Dr. Vitetta’s claim on the basis of Dr. Vitetta’s pleadings, not on its own

evidence. In its briefing, UTSWMC challenges the adverse action, causal

–52– connection, and pretext elements of her case. We agree with UTSWMC’s argument

regarding the causal connection element and do not reach its other arguments.31

1. UTSWMC’s Position on Causal Connection

UTSWMC argues Dr. Vitetta’s pleadings establish that no causal connection

exists between her protected activity and UTSWMC’s decision regarding her lab

because the earliest protected activity she identifies in her pleading occurred on July

23, 2015, more than a month after UTSWMC had already made and communicated

its decision regarding Dr. Vitetta’s lab.

2. Dr. Vitetta’s Pleading32

Dr. Vitetta’s lab-related retaliation claim concerns the events that began on

June 9, 2015, when UTSWMC informed her of the lab cuts. In her third amended

petition, Dr. Vitetta states she “voiced her allegation of discrimination as early as

July 23, 2015, in an e-mail to one of her superiors.” She also states:

The elements of a prima facie case of retaliation are: (1) that Plaintiff engaged in an activity protected by the TCHRA (such as Plaintiff’s internal grievances of age discrimination on August 4, 2015 and November 4, 2015, and a charge of age and gender discrimination with TWC on November 30, 2015); (2) an adverse employment action occurred (here, (a) following through on the plan to deny Plaintiff’s lab

31 We do not reach UTSWMC’s argument regarding adverse action or pretext, as they are not necessary to the final disposition of the appeal. See TEX. R. APP. P. 47.1. 32 In her affidavit, Dr. Vitetta also states she filed internal complaints of age and gender discrimination with UTSWMC “during the summer and fall of 2015,” filed a formal charge questionnaire with the Texas Workforce Civil Rights Division alleging age discrimination, gender discrimination, and retaliation “on November 30, 2015,” and filed this lawsuit alleging age and gender discrimination and retaliation “on July 29, 2016.” Neither her pleading nor her affidavit include any allegation of any protected activity before June 9, 2015, the date UTSWMC communicated its decision regarding the cuts to her lab and lab staff.

–53– space and RIF Plaintiff’s employees as events changed . . . and (3) a causal link existed between the protected activity and the adverse action ....

Because UTSWMC has challenged the pleadings on this claim, rather than

the existence of jurisdictional facts, our task is to determine if Dr. Vitetta has alleged

facts affirmatively demonstrating subject-matter jurisdiction. Alamo Heights, 544

S.W.3d at 770–71. She has not done so based on her pleadings here.

Dr. Vitetta complains about the events involving her lab that began on June 9,

2015, and describes the adverse action as UTSWMC “following through” on its plan

to deny her lab space and to terminate her employees “as events changed.” However,

she cannot demonstrate a causal connection under the circumstances, when

UTSWMC’s decision regarding her lab cuts had been made and communicated to

her before she engaged in any protected activity.

On these facts, Dr. Vitetta is unable to establish a causal connection between

her protected activity and UTSWMC’s cuts to her lab. See Clark Co. Sch. Dist. v.

Breeden, 532 U.S. 268, 272 (2001) (proceeding with a previously made decision

after discovering protected activity has occurred is not evidence of causality for

purposes of a retaliation claim; employers “need not suspend” such previously made

decisions); Alamo Heights, 544 S.W.3d at 790 n.142 (citing Breeden, 532 U.S. at

272).

We sustain UTSWMC’s first issue on Dr. Vitetta’s lab-related retaliation

claim and dismiss that claim for lack of jurisdiction. –54– D. Retaliation in Faculty Senate Role

In her other retaliation claim, Dr. Vitetta alleges that UTSWMC retaliated

against her by sabotaging her service and position as president of UTSWMC’s

Faculty Senate in 2018. UTSWMC challenges the adverse action and causal

connection requirements of her prima facie case. We conclude UTSWMC has

satisfied its burden under Alamo Heights but also conclude that Dr. Vitetta has raised

a fact issue on these elements on this claim.

Dr. Vitetta asserts in this lawsuit that UTSWMC retaliated against her for her

complaints of age and sex discrimination by sabotaging her role as president-elect

of UTSWMC’s Faculty Senate, a group whose function and purposes are explained

in the evidence Dr. Vitetta provided, which we discuss in the next section.

UTSWMC denies any involvement in this, and in connection with its plea,

UTSWMC submitted affidavits from three of its faculty members, Dr. Linda Hynan,

Dr. Jeffrey Van Dermark, and Dr. Yan Peng, each of whom served as president of

the Faculty Senate for one year in the period from 2015 to 2018, respectively.

Dr. Van Dermark stated he “became aware that then president-elect of the

Faculty Senate, Dr. Ellen Vitetta, had a pending lawsuit against” UTSWMC. He

“discovered this information on [his] own via public records,” and “[n]o member of

[UTSWMC’s] administration communicated with [him] about [her] lawsuit.” He –55– brought up “the issue of [her] lawsuit for discussion” at the Faculty Senate’s

executive committee meeting in January 2018, and he and Dr. Peng “agreed that

Dr. Vitetta should have disclosed the existence of the lawsuit to the Faculty Senate

prior to her election as president-elect.” Dr. Peng and Dr. Van Dermark “were

concerned that Dr. Vitetta never disclosed her lawsuit to the Faculty Senate and the

non-disclosure might impact her ability to serve effectively as president.”

Dr. Peng convened an ad hoc committee “to review the situation and

recommend a course of action.” The ad hoc committee consisted of the Faculty

Senate’s president, past president, and chairs of its subcommittees.

According to the ad hoc committee’s report, the committee’s March 5, 2018

meeting “was the continuation of a series of other meetings within the executive

committee of the Senate discussing how best to address the issue of Dr. Vitetta’s

ongoing lawsuit against the University filed in 2015.”

The ad hoc committee made three recommendations to the Faculty Senate:

(1) to give Dr. Vitetta “an opportunity to discuss her lawsuit formally with the

members of the Senate at the next general meeting,” (2) to “hold a vote as to whether

a new election for Senate president should be held,” and (3) if that vote were to pass,

the Senate would “hold a new election for office of president in one month, with a

new slate of candidates,” and with Dr. Vitetta being “eligible to run for this office

once again if she chooses.”

–56– The ad hoc committee gave three reasons for its recommendations: (1) “an

ongoing lawsuit against the University has the potential to impact the ability of the

president of the Faculty Senate to work within the committees for which [Dr. Vitetta]

represents the faculty, principally the Faculty Council, as these bodies include the

leadership” of UTSWMC, (2) the information “should have been given provided

[sic] to senators prior to the election to allow them to make an informed decision”

regarding these possibilities, and (3) Faculty Senate members “should be given the

opportunity to directly inquire of Dr. Vitetta her plans and ability to work within the

University structure (including Faculty Council) if she chooses to run once again for

the office of president.”

These recommendations were presented in the March 2018 Faculty Senate

meeting, and senators voted to take a “confidence” or “no-confidence” vote in

Dr. Vitetta’s ability to effectively serve as president. A one-question anonymous

survey was sent to the 35 senators, asking the following: “Given new information

revealed regarding Ellen Vitetta’s personal situation, do you have confidence that

she will be able to adequately and effectively execute functions of Faculty Senate

President?” Thirty-one senators responded, and nineteen answered “no.”

The survey results were presented in the Faculty Senate meeting in April

2018. The senators agreed Dr. Vitetta would serve out her term as president-elect

through August 31, 2018, and the senate would hold a new election for president,

whose term would begin September 1, 2018. –57– According to Dr. Peng’s affidavit, Dr. Vitetta was permitted to run again in

the new election but “decided not to based on the large number of senators who

voted ‘no confidence.’” The senate had a new election in May 2018, and another

doctor was elected to serve as president. Dr. Vitetta served as president-elect the

remainder of her term and stepped down from a leadership role on August 31, 2018.

Dr. Vitetta remained on the senate as the senator from the Immunology

Department.

Dr. Peng stated that “no member of the [UTSWMC] administration initiated

this process or participated in any way” in the executive committee, ad hoc

committee, or full Faculty Senate process. Dr. Peng, Dr. Van Dermark, and

Dr. Hynan all stated, “at no time did any member of the [UTSWMC] administration

direct [them] to do anything with respect to Dr. Vitetta or her role on the Faculty

Senate,” and they “did not work in concert with anyone to remove Dr. Vitetta from

a leadership role in the Faculty Senate or to force her resignation.” Each stated they

“acted independently, using [their] own judgment,” and stated they did not

communicate with UTSWMC administration regarding Dr. Vitetta’s lawsuit, her

role on the Faculty Senate, the actions of the executive committee, the ad hoc

committee, or the Faculty Senate’s “no confidence” vote regarding her.

Dr. Hynan also stated, “At no time did anyone in [UTSWMC’s]

administration communicate to [her] that they did not want Dr. Vitetta to be

–58– president of the Faculty Senate or that they would be unwilling to work with

Dr. Vitetta as president of the Faculty Senate.”

Dr. Vitetta sued UTSWMC in 2016, alleging age discrimination, sex

discrimination, and retaliation for its actions regarding her salary, lab, and lab staff

beginning in June 2015. In 2017, after being encouraged to do so by several others,

Dr. Vitetta ran for and was elected to serve as president of UTSWMC’s Faculty

Senate, an independent body consisting of approximately thirty-five senators

representing the 2,700 members of UTSWMC faculty on matters relating to the

terms and conditions of faculty employment and the role of faculty at UTSWMC.

Faculty Senators meet monthly. The Faculty Senate interacts with UTSWMC

administration as it deems appropriate.

The Faculty Senate’s activities and projects are overseen by an executive

committee consisting of a group of three senators elected by a majority ballot to

serve as president. If elected as president, over a three year period, the person elected

becomes president-elect, then president, then past-president, each for one year. In

addition to other duties, the past-president represents the UTSWMC faculty on the

UT System’s Faculty Advisory Council, which meets in Austin several times a year

and discusses issues with the chancellor and other leaders of the UT system.

–59– Dr. Vitetta was elected president and began her term as president-elect in

September 2017. The other two members of the executive committee were Dr. Yan

Peng, president, and Dr. Jeff Van Dermark, past-president.

In an executive committee meeting in January 2018, Dr. Van Dermark

announced to Dr. Peng and Dr. Vitetta that there was a “problem” he had just learned

of—specifically, that Dr. Vitetta had a “pending lawsuit against UTSWMC.” He

said she “should have revealed that fact to the Faculty Senate when she ran for its

President” and claimed this put her in a conflict of interest, which she disputed. He

insisted she “immediately disclose and discuss her lawsuit with the Faculty Senate,”

claiming an “urgency” to do so. Dr. Peng, as president, decided the executive

committee would delay further discussion of the issue until later, after an upcoming

visit by UT system officers.

In the executive committee’s meeting in February 2018, Dr. Van Dermark

further escalated the alleged conflict-of-interest issue, this time demanding that

Dr. Vitetta resign. He became angry and insulting when she said she would not do

so. His tone became “increasingly insulting, bullying, and vehement.” He

announced he was going to resign from the executive committee and ask others to

do so as well, apparently in protest, and he stormed out of the meeting room. Dr. Van

Dermark emailed Dr. Peng his resignation from the executive committee.

Dr. Vitetta learned that the chairs of the Faculty Senate subcommittees would

be meeting with the executive committee after the next Faculty Senate meeting. –60– Dr. Vitetta attended. Dr. Van Dermark led the meeting and discussed with other

senators how “a senator has a pending lawsuit and should be asked to resign.” The

ad hoc subcommittee decided to meet again to investigate further and adjourned

without Dr. Vitetta’s name being mentioned. Dr. Vitetta was invited to the follow-

up meeting but declined, believing it inappropriate to attend as both the accused and

part of the jury, and she believed the meeting was a mixture of both a kangaroo court

and bully squad to back up Dr. Van Dermark’s insistence that she resign. The ad hoc

subcommittee met without her, and she was never interviewed.

At the next Faculty Senate meeting, she received a copy of the subcommittee’s

report. The report did not mention a conflict of interest but decided that Dr. Vitetta

“could not work with UTSWMC administration on behalf of the Faculty Senate

because of her pending lawsuit against UTSWMC.” Dr. Vitetta objected,

maintained that the senate and UTSWMC administration could continue to interact

professionally on all matters related to the faculty, and discussed the fact that the

senate’s bylaws and other documents did not mention the issue. Dr. Vitetta told the

senate she saw no reason she should resign. Another senator proposed that a secret

“vote of confidence” be taken to determine how the senate felt about Dr. Vitetta

moving forward to the presidency. A vote was taken, and Dr. Peng later informed

Dr. Vitetta privately that the majority vote was one of “no confidence.”

The Faculty Senate met on May 17, 2018. Dr. Vitetta attended, as did

Dr. Peng, Dr. Linda Hynan (another past-president and current senator), Dr. Van –61– Dermark, who attended by phone, and other senators. In the meeting, another

senator asked Dr. Vitetta “whether there was a perception on the part of the UT

administration that it was problematic to have the President of the Faculty Senate be

in a lawsuit against the University.” Dr. Vitetta responded that she had no reason to

believe so, since they were all professionals who wanted the best for UTSWMC.

Dr. Vitetta discussed general aspects of her lawsuit during the meeting.

Also during this meeting, Dr. Hynan was “extremely hostile” toward Dr.

Vitetta, who stated:

Significantly, during that meeting—and much to my surprise— Dr. Hynan openly stated that the [UTSWMC] administration had indicated that it did have a problem with my serving as [p]resident, and . . . had indicated it did not want to work with me. She also said to the entire senate that before I became a member of the [executive committee in the 2017 timeframe], both she and [Dr.] Van Dermark had heard disparaging comments from the UT Administration about the fact that I was taking a leadership role in the [s]enate. I asked Dr. Hynan to clarify what she meant by ‘disparaging comments,’ in response to which she attributed the following statements to UT [a]dministration (or words to this effect): ‘Oh my God this lady is going to be a Faculty Senate President and we’re going to be unable to deal with her. . . you can just feel she’s not the right person for us to be able to work closely together.’

Dr. Van Dermark did not contradict Dr. Hynan’s summary of what the UT

administration had told them and compared the situation involving Dr. Vitetta’s

election on the senate while having a pending lawsuit to a situation involving a

tenured faculty member at UT Austin who had agreed to step down from its

–62– executive committee after he had been convicted of a crime. Dr. Vitetta has not been

convicted of anything.

Dr. Hynan’s statements, and Dr. Van Dermark’s failure to deny them,

revealed to Dr. Vitetta that UTSWMC administration had communicated with

Dr. Hynan and Dr. Van Dermark that UTSWMC administration did not want

Dr. Vitetta to serve in a leadership role as president and revealed Dr. Hynan and

Dr. Van Dermark had been put in a conflict of interest position as agents for

UTSWMC administration for the purpose of forcing Dr. Vitetta to resign from the

senate because of her pending discrimination and retaliation lawsuit.

The vote of no confidence by the Faculty Senate, combined with the

admission that the administration did not want to work with her and had initiated

this whole process by turning two colleagues against her, convinced Dr. Vitetta to

say that she might step down from the presidency. She asked for the weekend to

give them her final decision.

After that meeting, Dr. Vitetta asked for but was denied a meeting with the

ad hoc subcommittee, hoping to clarify several details regarding Dr. Hynan’s

disclosure. Afterwards, Dr. Vitetta received rude emails from both Dr. Hynan and

Dr. Van Dermark confirming how completely they had been turned against her as a

result of UTSWMC administration’s comments, which confirmed for Dr. Vitetta

that while the senate was supposedly an independent body, it could be manipulated

and intimidated as the administration saw fit. –63– Dr. Vitetta explained these events to her department chair but said she still

wished to serve as senator from the Immunology Department and to complete an

important mentoring initiative she had already begun. Her chair had no objections

and had rated her with an “exceeds expectations” rating on her annual faculty

evaluation in part because of her work on the Faculty Senate.

Dr. Vitetta maintains that, in the absence of any specific policy, the

UTSWMC administration—working through Dr. Van Dermark and Dr. Hynan—set

up a situation in which Dr. Vitetta would be forced to resign from her role as

president of the Faculty Senate, ruining her relationship with Dr. Van Dermark and

Dr. Hynan, and depriving her of an opportunity to serve in an important role to lead

UTSWMC’s Faculty Senate.

2. Adverse Action (Faculty Senate)

UTSWMC also argues the trial court lacked jurisdiction over this retaliation

claim because Dr. Vitetta has failed to establish an adverse employment action by

UTSWMC. We consider below whether Dr. Vitetta raised a fact issue on this and

conclude that she did.

We turn first to whether she raised a fact issue on an adverse employment

action by UTSWMC. In Burlington N. & Santa Fe Ry. v. White, 548 U.S. at 57, the

Supreme Court analyzed the retaliation provisions under Title VII of the Civil Rights

Act of 1964 and held that Title VII’s retaliation provisions are not limited to actions

related to employment or those occurring at the workplace. Id. at 57. Instead, Title –64– VII’s retaliation provisions require only that the actions be materially adverse to a

reasonable employee or job applicant, meaning that the employer’s actions “must be

harmful to the point that they could well dissuade a reasonable worker from making

or supporting a charge of discrimination.” Id. In reaching this conclusion, the

Supreme Court rejected the Fifth Circuit’s prior decision in Mattern v. Eastman

Kodak Co.33 and other cases that limited actionable retaliatory conduct to ultimate

employment actions such as hiring, granting leave, discharging, promoting, and

compensating. Burlington N. & Santa Fe v. White, 548 U.S. at 60, 67. The Court

noted that “[a]n employer can effectively retaliate against an employee by taking

actions not directly related to his employment or by causing him harm outside the

workplace” and that limiting retaliation protections to employment-related actions

“would not deter the many forms that effective retaliation can take.” Id. at 63.

On the adverse action element, UTSWMC first argues that no adverse action

exists because Dr. Vitetta’s role as president was an elected, voluntary role. Under

the facts here, considering both the prestige and the influence a position as president

of UTSWMC’s Faculty Senate offers, we conclude that Dr. Vitetta has raised a

genuine issue of fact on whether the action was sufficiently harmful to dissuade a

reasonable worker from complaining of discrimination and thus believe the action

was sufficiently adverse to raise a fact issue. See id. at 57; cf. Cristofaro v. Lake

33 104 F.3d 702, 707 (5th Cir.), cert. den., 522 U.S. 932 (1997). –65– Shore Cent. Sch. Dist., 473 F. App’x 28, 31–32 (2d Cir. 2012) (affirming summary

judgment on high school teacher’s retaliation claim on grounds that denial of unpaid

dance-team advisor position did not constitute adverse action for retaliation

purposes).34

Next, UTSWMC argues no adverse action exists because the Faculty Senate,

not UTSWMC, was responsible for the events involving Dr. Vitetta’s role on the

Faculty Senate. While UTSWMC has presented evidence supporting that position,

Dr. Vitetta has presented evidence raising a fact issue on that question.

Based on the evidence, a reasonable fact-finder could conclude that

UTSWMC administration negatively reacted to Dr. Vitetta’s lawsuit, communicated

that to Dr. Van Dermark and Dr. Hynan in words conveying UTSWMC had a

problem with Dr. Vitetta and did not want to work with her, and that these

communications influenced Dr. Van Dermark and Dr. Hynan’s own negative

comments to the other members of the Faculty Senate, who then expressed their own

concerns about Dr. Vitetta’s role because of her lawsuit, before a majority of them

cast a vote of no confidence in her. See Staub v. Proctor Hosp., 562 U.S. 411, 417,

34 Cristofaro is distinguishable from the facts here. Though both cases involve alleged retaliation in connection with voluntary roles, the differences between the relative prestige and influence the two positions offered is significant. Here, Dr. Vitetta alleges retaliation in connection with a role that allowed her to serve in a leadership position on an official, governing body representing roughly 2,700 faculty members in connection with the terms and conditions of their employment, while the plaintiff in Cristofaro was denied a role as an advisor to a student dance team. We recognize, of course, that the positions were important to each of the plaintiffs, but the loss of the Faculty Senate role appears much more likely to dissuade a reasonable worker from complaining of discrimination under Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68 (outlining proper retaliation standard). –66– 422 (2011) (confronting problem when an official who engages in adverse

employment action has no discriminatory animus but is influenced by animus in

someone else; court indicates employer may be liable when the person who did not

control ultimate employment action (a supervisor there) performs an act motivated

by unlawful animus that is intended to and that does in fact cause the ultimate

employment action); Gonzalez v. Champion Techs., Inc., 384 S.W.3d 462, 474 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (applying Staub to TCHRA retaliation

claim and concluding evidence raised fact issue on prima facie case, stating

“[d]iscriminatory animus by a person other than the decision-maker may be imputed

to an employer if person in question possessed leverage or exerted influence over

the decision-maker.”)

3. Causal Connection (Faculty Senate)

UTSWMC also argues the trial court lacked jurisdiction over this retaliation

claim because Dr. Vitetta has failed to establish the necessary causal connection

between her protected activity and her departure from her role as Faculty Senate

president. We consider whether Dr. Vitetta raises a fact issue on this and conclude

that she did.

UTSWMC argues that, as a matter of law, the eighteen months between the

time she filed her lawsuit and the occurrence of the events involving her Faculty

Senate role is too long as a matter of law to establish the necessary causal link.

UTSWMC cites Donaldson v. Tex. Dep’t of Aging and Disability Servs., 495 S.W.3d –67– 421 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) to support this argument.

Donaldson is distinguishable from the facts here. There, the court concluded that a

six month period between a protected activity and adverse event were insufficient to

raise a fact issue, but the only other evidence the plaintiff presented in that case was

that the decision maker knew about the protected activity. Id. at 443–44.

Here, while Dr. Vitetta first filed her lawsuit in July 2016, the evidence

reflects that UTSWMC’s first opportunity to engage in any adverse action regarding

her role as president of the Faculty Senate occurred in September 2017, when her

service as president-elect began. The executive committee meetings, ad hoc

subcommittee meetings, and Faculty Senate meetings that led to her departure from

the Faculty Senate began in January 2018 and continued through at least May 2018,

a period beginning just four months after that first opportunity, and most

importantly, the communications expressed during these meetings consistently

reflected an ongoing negative attitude toward Dr. Vitetta’s lawsuit. See Alamo

Heights, 544 S.W.3d at 782, 790 (explaining causation standard for McDonnell

Douglas prima facie case element is “not onerous” and can be satisfied merely by

proving close timing between the protected activity and the adverse action, and

indicating that expression of a negative attitude towards the protected activity is

among several factors court may consider).

In fact, it appears undisputed that the events leading up to the adverse action

were directly motivated by Dr. Vitetta’s lawsuit. A fact-finder could conclude from –68– Dr. Van Dermark’s, Dr. Peng’s, and Dr. Hynan’s affidavits that Dr. Vitetta’s lawsuit

prompted the discussions and actions taken here. Dr. Van Dermark states that “in

January 2018, [he] brought the issue of Dr. Vitetta’s lawsuit up for discussion” in an

executive committee meeting and believed she “should have disclosed the existence

of the lawsuit to the Faculty Senate prior to her election.”

Similarly, Dr. Peng states that in that meeting, “Dr. Van Dermark brought it

to my attention that Dr. Vitetta had a pending lawsuit against [UTSWMC] and that

he and Dr. Van Dermark “were concerned that Dr. Vitetta never disclosed her

lawsuit to the Faculty Senate and the non-disclosure might impact her ability to

effectively serve as president.” Dr. Peng convened the ad hoc committee “to review

the situation and recommend a course of action.”

Dr. Hynan, who served on that ad hoc committee, states the ad hoc committee

“considered whether Dr. Vitetta should have disclosed the existence of a lawsuit

against [UTSWMC] to the Faculty Senate prior to her election.”

The evidence also indicates that UTSWMC administration conveyed a

negative attitude to Dr. Hynan and Dr. Van Dermark about Dr. Vitetta, and this was

discussed in the same meeting in which Dr. Vitetta was asked “whether there was a

perception on the part of the UT administration that it was problematic to have the

President of the Faculty Senate be in a lawsuit against the University.” During this

meeting, Dr. Hynan was “extremely hostile” toward Dr. Vitetta, stated that

UTSWMC administration had “a problem” with her serving as president, and that –69– “UTSWMC administration had indicated it not want to work with her.” This

evidence is sufficient to raise a genuine fact issue on the causal connection element

of her prima facie claim.

We overrule UTSWMC’s first issue on this claim.

IV. Conclusion

We affirm the trial court’s order denying UTSWMC’s plea to the jurisdiction

on Dr. Vitetta’s age discrimination claims and sex discrimination claims involving

the 2015 cuts to her salary and her lab. We also affirm the court’s order denying

UTSWMC’s plea on Dr. Vitetta’s retaliation claim involving her role on the Faculty

Senate. We reverse the trial court’s order and dismiss for lack of jurisdiction

Dr. Vitetta’s retaliation claim involving the 2015 cuts to her lab.

/Ken Molberg/ 190105f.p05 KEN MOLBERG JUSTICE

–70– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

UNIVERSITY OF TEXAS On Appeal from the 101st Judicial SOUTHWESTERN MEDICAL District Court, Dallas County, Texas CENTER, Appellant Trial Court Cause No. DC-16-09146. Opinion delivered by Justice Molberg No. 05-19-00105-CV V. and Justice Partida-Kipness participating. ELLEN S. VITETTA, Appellee

In accordance with this Court’s opinion of this date, the trial court’s order denying UTSWMC’s plea to the jurisdiction is AFFIRMED in part and REVERSED in part. We AFFIRM the trial court’s order denying UTSWMC’s plea to the jurisdiction on Dr. Vitetta’s age discrimination claims and sex discrimination claims involving the 2015 cuts to her salary and her lab. We also AFFIRM the court’s order denying UTSWMC’s plea on Dr. Vitetta’s retaliation claim involving her role on the Faculty Senate. We REVERSE the trial court’s order and dismiss for lack of jurisdiction Dr. Vitetta’s retaliation claim involving the 2015 cuts to her lab. We REMAND this cause to the trial court for further proceedings consistent with this opinion.

Judgment entered this 28th day of September, 2020.

–71–