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

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.
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(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.
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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,
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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.
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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.
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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).
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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.
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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
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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)).
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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.
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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
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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
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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,
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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
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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
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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
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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
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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”).
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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
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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
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“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
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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
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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
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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:
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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
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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.
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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
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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.
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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.
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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.
1. The Parties’ Evidence
a. UTSWMC’s Evidence
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.”
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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.
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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
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president of the Faculty Senate or that they would be unwilling to work with
Dr. Vitetta as president of the Faculty Senate.”
b. Dr. Vitetta’s Evidence
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
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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–