In employment lawsuits, the nub of the matter is often the alleged pretext. The employer argues the personnel decisions as completely normal and free of discriminatory bias. The plaintiff argues the opposite, that the employer’s decision does not withstand scrutiny. In Texas Tech Univ. Health Sciences Center v. Flores, No. 22-0940 (Tex. Dec. 31, 2024), the higher court addressed that very issue, pretext. Loretta Flores worked for Texas Tech University for over 20 years, working her way up the ladder from temporary medical secretary. She filed her first EEOC charge in 2015 when she was passed over for promotion by then new Pres. Richard Lange.
Flores I
That first charge resulted in the decision in Texas Tech Univ. Health Science Center v. Flores, 612 S.W. 2d 299 (Tex. 2020) – known as Flores I. In that first decision, the Texas Supreme Court disregarded evidence that Pres. Lange’s alleged rationale for choosing a younger person was sketchy. The higher court overturned a denial of Defendant’s Plea to the Jurisdiction. A plea to jurisdiction essentially argues that the plaintiff lacks sufficient evidence to go to a jury. When in doubt, the courts are supposed to deny such a plea and let the jury decide. But, in the first Flores decision, the Texas Supreme Court weighed the evidence and found it lacking. Anytime a court has to weigh evidence, there is sufficient question that ought to warrant a jury trial.
Direct Evidence
The same result obtains in the second Flores case. In the second case, Ms. Flores was again passed over for promotion for a much younger employee. This time, Pres. Lange even flat asked Ms. Flores about her age during his interview. He then told her she did not have to answer the question. Raising the issue of age suggests ageist concerns. To many judges, that question itself would amount to direct evidence of discriminatory bias.
Ms. Flores did not answer the question. Yet, the Texas Supreme Court excused Lange’s question, since he told her she did not have to answer. …. Yes, the Texas Supreme Court now allows discrimination, so long as the supervisor claims he does not actually want a response.
The problem with the court’s reasoning is that Flores’ appeal is based on a plea to jurisdiction. When the facts are close, the court is supposed to let the jury decide the case. But, the activist Texas Supreme Court prefers to weigh evidence. There was other evidence of pretext. Pres. Lange articulated reasons for his preferred candidate based on skills not really mentioned in the job description. But, the Supreme Court pointed to an alleged incident several years prior in which Flores had problems with a budget. Justice Lehrmann said this was evidence of poor performance. Yet, this alleged poor performance was never the subject of formal counseling or a performance evaluation. Again, the evidence is close enough that a jury should decide.
The court even noted the guidance in Reeves v. Sanderson Plumbing Prods., 530 U.S. 147, 149 (2000), that based on the failure of the employer’s supposed reason, a jury may infer that unlawful discrimination was the true reason. An employer is presumed to know the reason why it makes a decision. So, if there are possible issues of pretext, there ought to be a jury trial to resolve those issues. Despite all this, the court weighed the evidence and found it wanting. See the decision in Texas Tech Univ. Health Sciences Center v. Flores here.