NUMBER 13-20-00310-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SAN BENITO CONSOLIDATED
INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
MARIA CONCEPTION CRUZ, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras
Appellant San Benito Consolidated Independent School District (SBISD) appeals
the denial of its plea to the jurisdiction in this employment discrimination suit brought by
appellee Maria Conception Cruz. 1 By four issues, that we treat as one, SBISD argues the
trial court erred when it denied its plea as to Cruz’s age discrimination claim. We affirm.
I. BACKGROUND
In September 2017, SBISD hired Nate Carman as its superintendent. In October
2017, at the direction of Carman, SBISD hired Hector Madrigal as the new executive
director of academics, and Madrigal became Cruz’s new supervisor. 2 Carman and
Madrigal had previously worked together. At the time Carman and Madrigal began
working for SBISD, Cruz worked as the director of elementary instructional
implementation, overseeing twelve elementary schools and their respective principals.
Cruz had been employed in that position for the previous thirteen years and had worked
for SBISD for an aggregate of twenty-seven years. 3
Madrigal quickly became displeased with Cruz’s job performance and expressed
his dissatisfaction to her. According to Cruz, Madrigal informed her on January 12, 2018,
that she was going to be moved from her role as director because three other directors
told Madrigal they were having difficulty working with Cruz.
On February 7, 2018, Cruz filed complaints of age discrimination with the president
of SBISD’s board and with the Texas Workforce Commission (TWC). In her charge with
the TWC, Cruz stated:
1
Appellee is identified in the judgment, notice of appeal, and some of the pleadings as “Maria
Conception Cruz”; however, the documents in the record that Cruz filed herself, such as her complaint of
discrimination with the Texas Workforce Commission, and her employment documents with SBISD have
her middle name as “Concepcion.”
2
According to the record, Madrigal oversees ten directors and twenty-one principals as executive
director of academics.
3
Cruz was initially hired by SBISD in 1993 and retired in 2003. Cruz began working as director of
elementary instructional implementation sometime in 2004.
2
Since Mr. Madrigal was hired, I have been subjected to a discriminatory
work environment based upon my age. Mr. Madrigal has shown favoritism
toward younger employees than myself. Ms. Theresa Servellon, Secondary
Director of Instructional Implementation, who is substantially younger than
myself as is Hector Madrigal is alleged to have issues with me that are my
creation according to Mr. Madrigal. On approximately November 15, 2017,
Mr. Madrigal told me that I could not get along with Ms. Servellon and that
“I better make it good or you’re not going to like my decision.”[ 4] Mr. Madrigal
since his hiring has made my work environment a living hell as he has with
other older employees that he supervises, such as Dr. Patricia Quesada,
Mary Julia Trevino to name a few who are all well over 40 years of age. I
met with Ms. Servellon and attempted to convey my good will and intentions
as made clear by Mr. Madrigal, however, it was not to Mr. Madrigal or Ms.
Servellon’s satisfaction who are both substantially younger than myself.
Subsequently afterwards, on January 12, 2018, Mr. Madrigal informed me
that I would need to be moved and not to cry because there were 3 directors
who didn’t get along with me.[ 5]
On February 1, 2018, I decided to meet with Dr. Nate Carman regarding my
complaints against Mr. Madrigal and his discriminatory treatment. The
meeting lasted for approximately 1 hour. To my chagrin, after expecting Dr.
Carman to assist me, he had prepared prior to meeting with him 3 options:
(1) To write a resignation letter immediately that would take effect during
the end of the 2018-2019 school year so that my title and salary would
remain the same (2) To retire at the end of the 2017-2018 school year, and
receive 2 additional months of pay, subject to board approval [or] (3) To
remain an employee for the 2018-2019 school year to a demoted position
as coordinator with significant less pay and responsibilities. I was given until
February 19, 2018, to make my decision from the above 3 options. It must
be noted that the option of staying in my current job without offering a
resignation was not an option and I believe that the attempt to force my
retirement is in itself, discriminatory based upon my age.
Furthermore, since the inception of Dr. Nate Carman as Superintendent,
highly educated, skilled, and loyal female employees have been
discriminated against. Ms. Linda McKinney, Payroll Clerk, Dr. Patricia
Quesada, Ms. Mary Julia Trevino, and former employees Mary Alice
Martinez and Margot Torres, have experienced gender discrimination while
4
Madrigal told SBISD’s internal investigator that “he did not recall a conversation that Ms. Cruz is
claiming he had with her on November 15th.”
5
Madrigal told SBISD’s internal investigator that he “never told [Cruz] that she was going to be
moved”; however, he subsequently testified at his deposition that he asked Carman to remove Cruz in
“January [or] February.” Likewise, his supervisor Nate Carman acknowledged in his deposition that Cruz
made an appointment with him on February 1, 2018 to discuss the way Madrigal treated her and the fact
that Madrigal had mentioned to her that he was going to have to move her.
3
Dr. Carman has approved all of our demotions during the 2017-2018 school
year that has approximately 4 months remaining of educational instruction.
I have always received excellent performance evaluations during my
career. I have attended L. Central College, Texas Women’s University, and
graduated from Southern Methodist University with a Master’s in Education.
I grew up in the Rio Grande Valley and decided to return and serve the
community after I was educated.
On April 14, 2018, Cruz amended her charge with the TWC and added a complaint for
retaliation.
On May 4, 2018, a report from SBISD’s internal investigation found Cruz had not
been discriminated against based on her age because she had not suffered an adverse
employment action. On May 24, 2018, Cruz appealed the result of the investigation and
simultaneously filed a formal complaint form with Carman.
In June 2018, Madrigal gave Cruz a “Professional Performance Appraisal,”
assessing her “knowledge of programs” and “punctuality of reports” as “below
expectations” and included a comment that “Cruz had to be reminded several times about
due dates.” 6 On June 19, 2018, Carman wrote a letter to Cruz advising her that she would
be assigned to the lower position of Title 1 Coordinator for the next school year (2018–
2019), beginning on July 2, 2018. Cruz was sixty-eight years old at the time. On June 25,
2018, Carman wrote a letter to Olivia Flores advising her that she would be assigned to
Cruz’s former position as director of elementary instruction for the next school year
(2018–2019), beginning on July 2, 2018. Flores was sixty-seven years of age at the time
and a principal at one of the elementary schools Cruz oversaw as a director.
6
In her interrogatory responses, Cruz explained that Madrigal “was responsible for knowingly and
intentionally placing these unobtainable deadlines on [Cruz] in efforts of creating a hostile work
environment.” Cruz then listed nine examples of instances where Madrigal allegedly assigned her projects
at the last minute with unreasonable deadlines.
4
On June 26, 2018, Cruz again amended her charge with the TWC to add:
On June 19, 2018, [SBISD] has continued its aggression and retaliation
concerning my employment. I was informed in writing that my position would
become Title I Coordinator. This position is completely different than my
previous position Director of Elementary Instructional Implementation. Also,
I have been informed that my salary will be “adjusted” during the 2019-2020
school year. Adjusted means I will be making less salary after the 2018-
2019 school year. Additionally, this is an adverse employment action
because my salary will be affected and reassigned to a different job
classification that is a demotion. Lastly, my employer has provided a poor
evaluation after my opposition to workplace discrimination from a
professional performance evaluation conducted by Hector Madrigal. It is the
lowest score and evaluation in my 27 years of employment with [SBISD]. I
was provided with two categories of below expectation and a negative
comment that I had to be reminded several times about due dates. I deny
the assertions that I am not knowledgeable of the programs and am not
punctual regarding my reports.
I am asking the Texas Workforce Commission; Division of Civil Rights to
investigate my claim of age discrimination and retaliation in violation of
[§] 21.051 and [§] 21.055 of the Texas Labor Code.
On August 8, 2018, Cruz amended her TWC complaint and added that she had been
officially reassigned. In October 2018, the TWC issued Cruz a right to sue letter.
The following year, on July 6, 2019, Carman reassigned Flores back to a principal
position at an elementary school for the upcoming year (2019-2020), beginning on July
17, 2019. Flores was replaced as director of elementary instructional implementation by
another elementary school principal, Dilia Cornett. Cornett was forty-nine years old.
In November 2019, Cruz filed suit against SBISD for age discrimination and for
retaliation. Cruz’s petition largely mirrored her most recent charge with TWC, except she
added that she “was replaced by a younger and less qualified employee” and that her
“replacement was selected after [Cruz] filed her discrimination complaint on February 7,
2018.”
5
SBISD filed a combined motion for summary judgment and plea to the jurisdiction
arguing that Cruz had failed to present evidence supporting a prima facie case as to her
age discrimination and retaliation claims. Specifically, as to the age discrimination claim,
SBISD argued that: (1) Cruz’s pleadings failed to establish a prima facie case because
she was replaced by Flores, who was less than two years younger than Cruz; and (2)
SBISD had legitimate, non-discriminatory reasons for Cruz’s reassignment. Cruz filed a
response arguing that her true replacement was Cornett, not Flores, and that there was
a fact issue as to whether SBISD’s proffered reasons were a pretext for age
discrimination. Cruz attached excerpts of depositions of herself, Carman, Madrigal,
Flores, Servellon, and the former director of human resources for SBISD, Kevin Phillips.
After a hearing, the trial court granted SBISD’s summary judgment motion and plea
to jurisdiction as to Cruz’s retaliation claim but denied it as to her age discrimination claim.
This interlocutory appeal followed. 7 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)
(providing for interlocutory appeal from a trial court’s order on a plea to the jurisdiction).
II. DISCUSSION
By its sole issue, SBISD argues the trial court erred when it denied its plea to the
jurisdiction as to Cruz’s age discrimination claim.
A. Standard of Review
A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without
regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter
jurisdiction. Id. Whether a trial court has subject matter jurisdiction and whether the
7
Cruz has not appealed the dismissal of her retaliation claim.
6
pleader has alleged facts that affirmatively demonstrate the trial court’s subject matter
jurisdiction are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The plaintiff has the initial burden to plead facts affirmatively showing that the trial
court has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993); see Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.
2012). If the plaintiff pleaded facts making out a prima facie case and the governmental
unit instead challenges the existence of jurisdictional facts, then we consider the relevant
evidence submitted. Metro. Transit Auth. of Harris Cty. v. Douglas, 544 S.W.3d 486, 492
(Tex. App.—Houston [14th Dist.] 2018, pet. denied); see Garcia, 372 S.W.3d at 635.
When reviewing a plea to the jurisdiction in which the pleading requirement has been met
and evidence has been submitted to support the plea that implicates the merits of the
case, we take as true all evidence favorable to the plaintiff. Douglas, 544 S.W.3d at 492;
see Garcia, 372 S.W.3d at 635. We indulge every reasonable inference and resolve any
doubts in the plaintiff’s favor. Douglas, 544 S.W.3d at 492; see Miranda, 133 S.W.3d at
226. If the relevant evidence is undisputed or if the plaintiff fails to raise a fact question
on the jurisdictional issue, then the trial court rules on the plea as a matter of law. Garcia,
372 S.W.3d at 635; see Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798–99
(Tex. 2016) (op. on reh’g).
B. Texas Commission on Human Rights Act
Governmental units, including school districts, are immune from suit unless the
State consents. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex.
2018). Governmental immunity from suit deprives a trial court of subject-matter
7
jurisdiction and is properly asserted in a plea to the jurisdiction. See Miranda, 133 S.W.3d
at 225–26. The Texas Commission on Human Rights Act (TCHRA) waives immunity for
governmental units, but only when the plaintiff states a claim for conduct that actually
violates the statute. Clark, 544 S.W.3d at 763. If a plaintiff fails to allege a violation of the
TCHRA, then the trial court does not have jurisdiction and the claim should be dismissed.
Garcia, 372 S.W.3d at 637.
As relevant to this case, the TCHRA prohibits age discrimination by employers and
protects employees who are “40 years of age or older.” See TEX. LAB. CODE ANN.
§§ 21.001, 21.051, 21.055, 21.101; Tex. Tech. Univ. Health Scis. Ctr.-El Paso v. Flores,
612 S.W.3d 299, 304–05 (Tex. 2020); Garcia, 372 S.W.3d at 640–42. An “employer”
includes a county, municipality, state agency, or state instrumentality, regardless of the
number of individuals employed. TEX. LAB. CODE ANN. § 21.002(8)(D). Generally, an
employer commits an unlawful employment practice “because of” an employee’s age if
the employee’s age was “a motivating factor” for the practice, “even if other factors also
motivated the practice.” Id. § 21.125(a); Flores, 612 S.W.3d at 305. Section 21.051 of the
labor code states that “[a]n employer commits an unlawful employment practice if
because of . . . age the employer . . . discriminates in any . . . manner against an
individual in connection with compensation or the terms, conditions, or privileges of
employment.” TEX. LAB. CODE ANN. § 21.051(1); Cox v. Waste Mgmt. of Tex., Inc., 300
S.W.3d 424, 432 (Tex. App.—Fort Worth 2009, pet. denied).
Because the TCHRA is modeled after federal civil rights law, we may look to
analogous federal precedent for our guidance. Hoffman-La Roche, Inc. v. Zeltwanger,
144 S.W.3d 438, 446 (Tex. 2004); Brownsville Indep. Sch. Dist. v. Alex, 408 S.W.3d 670,
8
674 n.6 (Tex. App.—Corpus Christi–Edinburg 2013, no pet.); see TEX. LAB. CODE ANN.
§ 21.001.
C. Evidentiary Burdens
To establish unlawful discrimination under the TCHRA, a plaintiff may rely on either
direct or circumstantial evidence. Clark, 544 S.W.3d at 782. A case based on
circumstantial evidence is referred to as a “pretext” case. See Quantum Chem. Co. v.
Toennies, 47 S.W.3d 473, 476 (Tex. 2001) (per curiam). In a pretext case, the plaintiff’s
ultimate goal is to show that the employer’s stated reason for the adverse action was a
pretext for discrimination. Id.
Cruz concedes that she has no direct evidence of discrimination and that her case
is a circumstantial case. See id. at 475. When a plaintiff relies on circumstantial evidence
to establish a discrimination claim, we follow the burden-shifting framework the United
States Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Flores, 612 S.W.3d at 305; Clark, 544 S.W.3d at 764, 782. Under this framework:
(1) the plaintiff must first create a presumption of illegal discrimination by establishing a
prima facie case; (2) the defendant must then rebut that presumption by producing
evidence of a legitimate, non-discriminatory reason for the employment action; and (3)
the plaintiff must then overcome the rebuttal evidence by producing evidence that the
defendant’s stated reason is a mere pretext. Flores, 612 S.W.3d at 305; Clark, 544
S.W.3d at 782. If a plaintiff fails to establish a prima facie case against a governmental
unit or overcome the rebuttal evidence, then the trial court lacks jurisdiction and must
dismiss the case. See Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 225–26.
9
1. Prima Facie Case
We must first determine whether Cruz presented a prima facie case raising a
presumption of illegal age discrimination. See Toennies, 47 S.W.3d at 479.
In an age-discrimination case, the plaintiff establishes a prima facie case with
evidence that she: (1) was a member of the protected class (that is, 40 years of age or
older); (2) was qualified for the position at issue; (3) suffered a final, adverse employment
action; and (4) was either (a) replaced by someone significantly younger or (b) otherwise
treated less favorably than others who were similarly situated but outside the protected
class. Flores, 612 S.W.3d at 305; see Garcia, 372 S.W.3d at 632; AutoZone v. Reyes,
272 S.W.3d 588, 592 (Tex. 2008) (per curiam). SBISD does not dispute that Cruz
presented evidence of the first three elements, so we need only address the fourth—i.e.,
whether Cruz presented evidence that she was replaced by someone significantly
younger or otherwise treated less favorably than others similarly situated but outside the
protected class.
SBISD argues that it established as a matter of law that Flores was Cruz’s
replacement because Flores assumed Cruz’s former position and duties for a year before
being demoted and replaced by Cornett. See Baker v. Gregg County, 33 S.W.3d 72, 81
(Tex. App.—Texarkana 2000, no pet.) (“In the context of age discrimination, a terminated
employee is replaced by another person when the terminated employee’s position is filled
by that person and that person is assigned the terminated employee’s former job duties.”).
Accordingly, SBISD argues, Cruz was replaced by someone insignificantly younger. See
Garcia, 372 S.W.3d at 641 (“[A]n inference of age discrimination ‘cannot be drawn from
the replacement of one worker with another worker insignificantly younger.’” (quoting
10
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312–13 (1996))). Cruz argues
that she raised a fact issue as to whether she was replaced by someone significantly
younger because she disputes SBISD’s assertion that Flores was her real replacement
and instead argues Cornett was her replacement. Cf. Garcia, 372 S.W.3d at 632, 642
(“Because it is undisputed that the plaintiff was replaced by an older worker, she has
failed to allege a prima facie case, and the trial court should have granted the defendant’s
plea to the jurisdiction.” (emphasis added)). We agree with Cruz.
Here, the evidence before the trial court showed that Madrigal and Carman were
aware of Cruz’s complaint of age discrimination for four months before she was eventually
demoted. According to Servellon’s deposition testimony, Flores believed that Carman and
Madrigal wanted Cornett in Cruz’s director position “from the very beginning” and that
Flores was never intended to be the permanent replacement for Cruz.
Flores testified in her deposition that she did not apply to be Cruz’s replacement
and that Madrigal called her unexpectedly in June of 2018 and told her he was appointing
her to Cruz’s position. Flores got the impression that she was being reassigned without
having a choice in the matter, and she had “never” talked to Madrigal or Carman about
wanting Cruz’s job. Flores explained her job at the time as a principal for an elementary
school was “as far as I wanted to go” and that Cruz’s director position was not posted for
anybody else to apply. When she was reassigned again the following year, Flores was
“blindsided” by the decision because she had received a positive performance evaluation.
Flores did not ask Madrigal the reason for her second reassignment because she was “in
shock,” and Madrigal did not give her a reason. 8 Flores was never written up by Madrigal
8
In his deposition, Madrigal stated that Flores was removed from the director position because “her
vision was not the same of what we were trying to do” and because “there were some decisions that she
11
or Carman; she was unaware of any rumors or information that she was performing the
job poorly; and no complaints were made against her while working as director.
Finally, Carman admitted he gave Cruz the three options that Cruz notes at their
meeting on February 1, and that he gave her two weeks to consider her options. During
his deposition, the following exchange occurred:
[Carman]: I think it was two weeks. She asked me for the numbers, what
that would actually look like financially, and that she needed
to discuss it with her husband.
[Counsel]: Why didn’t you move her—why didn’t you demote her within
those two weeks? Why did you wait?
[Carman]: Again, I had given her options and—
[Counsel]: But she didn’t take those options, right?
[Carman]: I had given her options to consider—
[Counsel]: She didn’t take them.
[Carman]: And a timeline.
...
[Counsel]: Did she take the options, yes or no?
[Carman]: She did not, no.
[Counsel]: What did she do? She filed a complaint on you, didn’t she?
[Carman]: She filed a DIA complaint, yes.
[Counsel]: Within six days after you met with her?
made that were contrary to what we were trying to get done when it came in regards to the writing of
curriculum resources.” However, Madrigal did not elaborate or articulate any details as to how his and
Carman’s vision differed from Flores’s or what decisions she made that Madrigal and Carman disapproved
of, and Flores stated in her deposition that she had never heard of these concerns. Madrigal conceded that
he did not provide Flores with anything in writing informing her that she would be removed from the director
job if her performance did not improve. In his deposition, Carman stated that Flores was removed from the
director position because “we felt she was better suited as an elementary principal, which is what most of
her administrative experience was, and felt she could better serve the district in that capacity.”
12
[Carman]: Very likely.
From this evidence—including testimony that Madrigal and Carman wanted
Cornett to be Cruz’s replacement from the very beginning, their awareness of Cruz’s
complaint of age discrimination before Flores was appointed, and their delay in demoting
Cruz after she filed a discrimination complaint—a person could reasonably infer that
Flores was not Cruz’s permanent replacement and that SBISD temporarily appointed
Flores to skirt Cruz’s complaints. 9 See Douglas, 544 S.W.3d at 492; Garcia, 372 S.W.3d
at 635; Miranda, 133 S.W.3d at 226. And, it is undisputed that, after receiving a positive
job performance for her only year as a director, Flores was permanently replaced by
Cornett, who is substantially younger than Cruz and Flores. We conclude that Cruz raised
a fact issue as to whether she was replaced by someone significantly younger and
therefore established a prima facie case of age discrimination. See Flores, 612 S.W.3d
at 305; cf. Mercer v. Capitol Mgmt. & Realty, Inc., 242 F. App’x 162, 163 (5th Cir. 2007)
(per curiam) (“Mercer has offered no proof to rebut Capital’s assertion that the persons
replacing her were not substantially younger than she was.”).
With Cruz having established a prima facie case, the burden then shifted to SBISD
to produce a legitimate, non-discriminatory reason for demoting her. See Flores, 612
S.W.3d at 305; Clark, 544 S.W.3d at 783.
2. Legitimate, Non-Discriminatory Reasons
SBSID argues Cruz’s work was “sub-par” and identifies the following reasons: Cruz
“submitted her work in an untimely manner,” had difficulties working cooperatively with
colleagues, “failed to offer solutions,” and “lacked knowledge about instructional material.”
9
SBISD’s investigator noted that Cruz “stated it was clear Dr. Carman and Madrigal had spoken
but does not elaborate.”
13
We note that Cruz’s evaluation performed by Madrigal shortly before she was
demoted only assessed her performance as “below expectations” on her “knowledge of
programs” and “punctuality of reports” and included a comment that “Cruz had to be
reminded several times about due dates.” In his deposition, Madrigal stated that he
needed Cruz replaced with “somebody that was going to be effective and timely on their
paperwork” and noted that he received complaints from principals supervised by Cruz.
Carman submitted an affidavit in which he stated that “[a]fter my leadership team
and I had an opportunity to work with [Cruz], it became clear that she was not capable of
fulfilling our expectations regarding her role in implementing instruction at the elementary
campuses.” In his deposition Carman explained:
[Cruz] was not doing her job at the level, per Mr. Madrigal’s reports. Again,
I had direct knowledge of the one where I asked for three simple things from
the two directors, Ms. Cruz and Ms. Servellon. Ms. Servellon had the
information to me from the secondary principals in a very timely fashion.
Ms. Cruz had nothing and apparently could not recall being asked to get
that information. In that conversation, Ms. Servellon indicated that she had
had to cover several times for Ms. Cruz. So my knowledge of the situation
at that point in time was that Ms. Cruz was not performing her job at a
satisfactory level, not at the level we needed it to be to move the district
forward.
We will assume, without deciding, that SBISD produced evidence of legitimate,
non-discriminatory reasons for Cruz’s demotion. Thus, the burden shifted back to Cruz to
raise an issue of fact as to whether SBISD’s stated reasons were a mere pretext. See
Flores, 612 S.W.3d at 305; Clark, 544 S.W.3d at 783; Navy v. Coll. of the Mainland, 407
S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also Easterling v.
Tensas Par. Sch. Bd., 682 F. App’x 318, 322 (5th Cir. 2017) (per curiam) (“Easterling
must then raise a genuine issue of material fact whether each of those reasons is
14
pretextual, or alternatively that, while those reasons may be true, her sex was also a
motivating factor.”).
3. Pretext
Here, Cruz could raise a fact issue as to whether SBISD’s proffered reasons for
her demotion were a pretext for age discrimination by presenting evidence that SBISD’s
proffered reasons were false or “unworthy of credence.” See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000); Burrell v. Dr. Pepper/Seven Up
Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007); Little v. Tex. Dep’t of Criminal
Justice, 177 S.W.3d 624, 631–32 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A
reasonable inference that discrimination was a motivating factor may be made if the
plaintiff provides evidence that the reasons given were false or unworthy of credence.
See Reeves, 530 U.S. at 147 (“[I]t is permissible for the trier of fact to infer the ultimate
fact of discrimination from the falsity of the employer’s explanation.”); Toennies, 47
S.W.3d at 481–82; Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003)
(per curiam).
“Evidence that an employer is ‘pleased with an employee’s work performance
supports a finding of pretext when that evidence contradicts the reason given by the
employer of poor performance.’” Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901,
915–16 (Tex. App.—Fort Worth 2018, pet. denied) (quoting Dell, Inc. v. Wise, 424 S.W.3d
100, 112 (Tex. App.—Eastland 2013, no pet.)); see Toennies, 47 S.W.3d at 481. Pretext
may also be inferred from unexplained inconsistencies, weaknesses, implausibilities, or
contradictions in the employer’s proffered reasons for its actions. See Easterling, 682 F.
App’x at 322 (“It is true that an ‘unexplained inconsistency’ in the employer’s proffered
15
justification is ‘evidence from which a jury could infer’ pretext.”); see also, e.g., Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 235–36 (5th Cir. 2015); Burrell, 482 F.3d
at 415; Gee v. Principi, 289 F.3d 342, 347–48 (5th Cir. 2000). And a failure to document
complaints and discuss workplace problems may also support an inference of pretext.
See Vaughn v. Woodforest Bank, 665 F.3d 632, 638–39 (5th Cir. 2011); Lloyd v. Georgia
Gulf Corp., 961 F.2d 1190, 1195 (5th Cir. 1992) (“[W]hen an employer’s stated motivation
for an adverse employment decision involves the employee’s performance, but there is
no supporting documentation, a jury can reasonably infer pretext.”); see also Laxton v.
Gap, Inc., 333 F.3d 572, 580–82 (5th Cir. 2003). Finally, although the presumption of
discrimination disappears once the defendant meets its burden of production, it is still
proper to consider the evidence establishing the plaintiff’s prima facie case and inferences
properly drawn therefrom on the issue of whether the defendant’s explanation is
pretextual. Little, 177 S.W.3d at 631–32; see Reeves, 530 U.S. at 143 (“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.”).
4. Rebuttal Evidence
As noted, SBSID argued Cruz’s work was “sub-par” because she “submitted her
work in an untimely manner,” had difficulties working cooperatively with colleagues, “failed
to offer solutions,” and “lacked knowledge about instructional material.”
However, there are inconsistencies in the reasons offered and actions taken by
Madrigal and Carman as to Cruz’s demotion. See Burton, 798 F.3d at 235; Gee, 289 F.3d
at 347–48. Madrigal told SBISD’s investigator he did not tell Cruz he was going to move
her, but he acknowledged in his deposition he did in fact tell her that. Madrigal stated that
16
Cruz was removed in part because she did not cooperate well with coworkers, but his
evaluation of Cruz performed just before her demotion provided that Cruz’s performance
in that area was “Satisfactory,” and Carman never mentioned this as a reason for Cruz’s
demotion. 10 See Vaughn, 665 F.3d at 638–39; Laxton, 333 F. 3d at 580–81. The same is
true as to Cruz “Offering Solutions to Problems”—Madrigal assessed this area as
“Satisfactory” in his pre-suit evaluation, and Carman did not mention this as a reason for
her demotion. 11 See Vaughn, 665 F.3d at 638–39; Laxton, 333 F.3d at 580–81
According to Carman’s deposition, part of the reason Cruz was demoted was
because the schools she was responsible for had “declining” “student achievements” due
to lower test scores; however, Madrigal never mentioned student achievements or test
scores, nor does Cruz ever note that Carman or Madrigal ever expressed to her a concern
or displeasure regarding these matters. 12 The brunt of SBISD’s displeasure, as reflected
in the record and articulated by Madrigal and Carman, was Cruz’s timeliness. However,
Cruz alleged that Madrigal “intentionally and knowingly” assigned her tasks at the last
minute with unreasonable deadlines and presented nine examples of these occurrences.
Cruz also alleged that Madrigal never wrote her up or told her how she needed to improve
her performance. See Vaughn, 665 F.3d at 638–39; Laxton, 333 F.3d at 580–81; Lloyd,
961 F.2d at 1195. All of this casts doubt as to SBISD’s proffered reasons and supports
10
In his deposition, Madrigal stated Cruz was removed in part because “many” principals told him
Cruz “was not being helpful”; however, when pressed, Madrigal could only recall two of the twelve principals
complaining about Cruz.
11
In support of this reason, SBISD points only to Madrigal’s deposition testimony where he simply
stated “from what I can recall, she never offered solutions.”
12
When pressed, Carman conceded that he did not send Cruz any documentation “directly blaming
her for the lower test scores.” In Cruz’s answers to SBISD’s interrogatories, she stated: “The 2018
accountability rating for each of the 11 elementary schools met standards. Several elementary campuses
received different distinction in academics achievement in different subjects. Furthermore, [Cruz] has
increased the rating of the gifted and talented program for the district . . . .”
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an inference of pretext. See Burton, 798 F.3d at 235–36; Burrell, 482 F.3d at 415; Gee,
289 F.3d at 347–48. 13
Cruz also submitted into the record the evaluations of her performance as a
director in 2017, 2016, 2014, 2011, 2007, and 2006, all of which gave Cruz the highest
possible recognition in every section assessed (“Clearly Outstanding”), including the
areas later rated poor or satisfactory by Madrigal and offered by SBISD as legitimate and
non-discriminatory reasons for her demotion: “knowledge of programs,” “cooperation,”
“punctuality of reports,” and “offering solution to problems.” Cruz’s evaluation for 2017,
the year immediately preceding Madrigal’s and Carman’s employment with SBISD, noted
at length the reasons for her outstanding scores. 14 The cumulative strength of these
13
There are inconsistencies surrounding Flores’s removal, too: Madrigal and Carman provided that
Flores “did not live up to the expectations” or did not share their “vision,” but Flores stated she received a
good performance assessment, was not written up, and was not aware of any complaints.
14
As to Cruz’s “Accuracy of Reports,” her 2017 evaluation stated:
Cruz is meticulous in the accuracy of the reports she prepares for the office of Leadership
& Performance and takes the initiative to develop the reports prior to the request for them
by anticipating their [need] based upon her many years of experience in the school district
leadership positions. She is present in all critical school leadership meetings and offers her
assistance in preparing for such meetings well in advance.
Her 2017 evaluation provided the following details as to the other areas assessed:
(1) “Cooperation”: “Cruz lends herself tirelessly to promote the goals of the RE-IMAGINE 2021/5
Year Strategic Plan at both the campus level and district levels. She always avails herself to work as many
hours as needed to complete a project on daily basis and throughout the weekend;”
(2) “Knowledge of Programs”: “Cruz has an extensive knowledge of all instructional programs being
implemented throughout the school district and is an invaluable resource in this area. Very often, she is the
‘go to’ person in meetings regarding the necessary components required to ensure the fidelity of program
implementation;”
(3) “Offering Solutions to Problems”: “Cruz is a natural problem solver and does so with great
finesse at the lowest possible levels of administration to ensure immediate attention for the parties
concerned. She does an excellent job of holding parent and school employees meetings and keeps detailed
notes regarding them for reference.”
The second page of the 2017 evaluation, presumably containing the “Punctuality of Reports”
section, is not included in the record; however, her evaluations for 2016, 2014, 2011, 2007, and 2006
assessed her as “clearly outstanding” for this section. Madrigal’s 2018 evaluation only contained the scoring
number assessed for each section (1–5 representing a range from “Unsatisfactory” to “Clearly
Outstanding”) and provided no details for the scoring assigned to those categories.
18
evaluations also calls SBISD’s proffered reasons into doubt. See Toennies, 47 S.W.3d at
481 (“This is more than a scintilla of evidence that Quantum regarded Toennie’s job
performance as satisfactory, which contradicts the company’s argument that he was fired
for poor performance.”); Bell Helicopter, 552 S.W.3d at 915–16; Dell, 424 S.W.3d at 112.
5. Conclusion
All of this rebuttal evidence, when viewed as a whole and in the light most favorable
to Cruz, casts doubt on SBISD’s proffered non-discriminatory reasons for demoting Cruz
and undermines its credibility. See Reeves, 530 U.S. at 147; Douglas, 544 S.W.3d at 492;
Toennies, 47 S.W.3d at 481; Burton, 798 F.3d at 235; Lloyd, 961 F.2d at 1195; see also
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000) (“Although
defendants contested Russell’s case, their evidence is not of such magnitude that a
reasonable jury could only find in their favor (i.e., that their justification for terminating
Russell was not pretextual).”). And a reasonable inference can be made that age was a
motivating factor in demoting Cruz based on: the evidence supporting an inference that
SBISD’s proffered reasons were unworthy of credence; the circumstances and reasons
(or lack thereof) surrounding the appointment and removal of Flores; Cornett’s age in
relation to Cruz (approximately twenty years younger); the delay in Cruz’s demotion after
she filed a discrimination complaint; and the evidence that Carman and Madrigal wanted
Cornett in Cruz’s position from the very beginning. See TEX. LAB. CODE ANN. § 21.125(a);
Reeves, 530 U.S. at 147 (“Moreover, once the employer’s justification has been
eliminated, discrimination may well be the most likely alternative explanation, especially
since the employer is in the best position to put forth the actual reason for its decision.”);
Flores, 612 S.W.3d at 305; see also Mackey v. Enventives, L.L.C., 802 F. App’x 835, 835
19
(5th Cir. 2020) (per curiam) (noting that rebuttal evidence raising a fact issue as to pretext,
“combined with the prima facie case, will suffice to create a genuine [dispute] of a material
fact such that summary judgment is inappropriate”).
We conclude Cruz presented evidence raising a fact issue as to whether SBISD’s
reasons were a pretext for age discrimination.
D. Summary
Cruz presented sufficient evidence to raise a fact issue as to whether she was
replaced by someone substantially younger and whether SBISD’s proffered reasons for
her demotion were pretextual. Therefore, the trial court did not err when it denied the plea
as to her age discrimination claim. SBISD’s sole issue is overruled.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
11th day of March, 2021.
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