Dissenting Opinion Filed September 8, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00376-CV
THE UNIVERSITY OF TEXAS AT DALLAS, Appellant
V.
RICHARD J. ADDANTE, PH.D., Appellee
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-17-03714-A
DISSENTING OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Partida-Kipness
Based on the record before us, I would affirm the trial court’s order denying
appellant’s plea to the jurisdiction. Because the majority does not, I dissent.
The University of Texas at Dallas (UTD) challenged the existence of
jurisdictional facts to support Richard J. Addante’s claims against it. In such cases,
the court must consider the evidence submitted by the parties. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). If the movant asserts
and supports its contention that the trial court lacks subject-matter jurisdiction, the
non-movant must raise a jurisdictional fact issue to avoid dismissal. City of Dallas
v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet. denied) (citing
Miranda, 133 S.W.3d at 228). Applying the legal sufficiency standard to the parties’
evidence, the court must take as true all evidence favorable to the non-movant,
indulging every reasonable inference and resolving any doubts in the non-movant’s
favor while not disregarding evidence and inferences unfavorable to the non-movant
if reasonable jurors could not. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 771 (Tex. 2018); City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
A non-movant need only raise a genuine issue of material fact to overcome a
challenge to the trial court’s subject-matter jurisdiction. Clark, 544 S.W.3d at 771. I
will address four aspects in which I think the majority has erred in applying this
standard.
Addante’s Evidence
At the outset, I note that the majority paid only scant attention to the key issue
on appeal: the admissibility of Addante’s evidence. Addante filed three responses,
three declarations, and multiple documents in response to UTD’s plea. UTD
objected to Addante’s first two declarations as containing conclusory statements,
legal conclusions, and hearsay. The trial court overruled UTD’s objections, and UTD
contends on appeal that this was an abuse of discretion. The majority summarily
concludes Addante’s declarations and evidence are not competent evidence. I
disagree.
Our review of the trial court’s ruling on UTD’s plea mirrors that of a
traditional summary judgment. Clark, 544 S.W.3d at 771 (citing Miranda, 133
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S.W.3d at 225–26). Rule 166a requires affidavits supporting or opposing summary
judgment to be made on personal knowledge and state facts that would be admissible
in evidence. TEX. R. CIV. P. 166a(f). The rule also requires that sworn or certified
copies of documents referred to in an affidavit be attached to the same. Id. However,
defects of form in affidavits or attachments “will not be grounds for reversal unless
specifically pointed out by objection by an opposing party with opportunity, but
refusal, to amend.” Id. The record does not reflect that UTD objected to Addante’s
declarations on these grounds. Regardless, “[e]ven if the trial court abused its
discretion in admitting certain evidence, reversal is only appropriate if the error was
harmful, i.e., it probably resulted in an improper judgment.” U-Haul Int’l, Inc. v.
Waldrip, 380 S.W.3d 118, 132 (Tex. 2012).
UTD objected that certain statements contained in Addante’s first two
declarations were conclusory, legal conclusions, or hearsay. Without analyzing any
of the statements at issue, the majority summarily concludes that Addante’s
declarations “are replete with conclusory statements that lack support” and
“enumerate actions, acknowledgements, and admissions attributed to UTD [that are]
without support and outside of Addante’s personal knowledge.” To the contrary,
many of the allegedly conclusory statements cited by UTD are merely statements of
fact. For example, Addante declared that McIntyre “acknowledged that I ‘did a good
job’ and ‘was doing fine.’” Addante also declared, “I filed an EEOC charge based
on the discrimination and retaliation. UTD then terminated my employment.” UTD
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contends these are conclusory statements, yet they are statements of fact susceptible
to being readily controverted. See Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex.
1996). There are many other statements like these that the majority fails to analyze.
Although Addante’s declarations do contain legal conclusions, the same
statements also contain proper statements of fact. Thus, the statements are not
entirely inadmissible. For example, Addante’s first affidavit offered as “evidence of
pretext” that he “did not receive the lowest evaluations” and “[o]ther employees
received lower evaluations and were not disciplined or terminated.” Although he
may not opine as to whether such facts constitute evidence of pretext, the facts of
his evaluations and the other employees’ treatment are not legal conclusions.
UTD contends that documents attached to Addante’s first declaration and
certain statements in Addante’s second declaration are inadmissible hearsay. The
first document at issue is an e-mail Addante sent to a colleague shortly after filing
his sexual harassment complaint that contains a discussion of the circumstances
surrounding his complaint. Addante included this document in support of his
contention that UTD retaliated against him for filing the sexual harassment
complaint. The parties do not contest whether he actually filed the complaint; thus,
the e-mail was not offered to prove the truth of the matter asserted, and it was not
hearsay. See TEX. R. EVID. 801(d). Even if it was error to admit the e-mail, however,
such error was harmless because it was cumulative of other evidence offered by
UTD. Waldrip, 380 S.W.3d at 132. The remaining documents are letters and e-mail
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correspondence between Addante and students and colleagues regarding his
nomination for various awards. Addante does not explain why he attached these
documents to his first declaration, but they appear to be circumstantial evidence of
pretext offered to undercut UTD’s contention that he was not a good teacher.
However, UTD does not contest the matters asserted in the documents, and Addante
did not offer the documents to prove the matters asserted therein. Accordingly, they
are not hearsay. See TEX. R. EVID. 801(d).
UTD likewise contends that the “documents and document excerpts inserted
in” Addante’s second declaration are hearsay. Addante attested that the documents
were produced by UTD as part of discovery. Indeed, Addante’s second declaration
even cites UTD’s Bates numbers for the documents excerpted. “Discovery products
not on file with the clerk may be used as summary judgment evidence” if copies or
notice of intent to use the material is filed and served on the parties. TEX. R. CIV. P.
166a(d). UTD did not object that Addante failed to provide copies or notice. Even
assuming it was error to admit the documents, however, UTD failed to show how
these documents probably caused the rendition of an improper judgment. See
Waldrip, 380 S.W.3d at 132. Based on the record before the Court, I would conclude
the trial court did not abuse its discretion in overruling UTD’s objections. See In re
J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam).
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Protected Activities
The majority concludes that Addante’s April 10, 2014 anonymous sexual
harassment complaint regarding Dr. Michael Rugg, co-director in UTD’s Center for
Vital Longevity (CVL) and Addante’s supervisor at the CVL, is the only protected
activity at issue. In arriving at this conclusion, however, the majority summarily
disregards Addante’s evidence. When properly considered, however, Addante’s
evidence is sufficient to establish that he not only reported sexual harassment but
also opposed apparent gender discrimination.
Specifically, Addante sent a letter to Acting Provost Inga Musselman on
August 3, 2015, shortly after being reappointed for the 2015-2016 year. In the letter,
Addante complained of a disparity in pay between himself and Dr. Eva LaDow.
Addante stated that he did not want UTD to “inadvertently become non-compliant
with federal law prohibiting gender discrimination in pay for its Senior Lecturers.”
He then outlined the pay gap between himself and LaDow. Purportedly quoting the
EEOC, he also noted, “[T]he Equal Pay Act requires that men and women in the
same workplace be given equal pay for equal work. The jobs need not be identical,
but they must be substantially equal.” Addante informed Musselman that “the
current pay discrepancy is the type of discrepancy forbidden by Title IX statutes”
and offered that she should correct the discrepancy to remain “compliant with federal
Title IX policies of equal pay for equal work.”
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Incredibly, the majority concludes that Addante failed to identify the letter as
a protected activity in the proceedings below. The record reflects, however, that
Addante raised the issue in his petition, response to UTD’s plea to the jurisdiction,
and EEOC charge. Specifically, Addante asserted in his petition that “UTD may not
treat faculty members differently based upon unlawful discrimination, including sex
discrimination” and that “UTD treats Dr. Addante differently because of his gender.
For example, UTD treated Dr. Addante differently in compensation to equitable
employees of other gender . . . .”
Addante’s supplemental response to UTD’s plea include among Addante’s
“protected activities” that he “opposed and reported discrimination.” Directly
referencing the letter, his initial response states:
When Dr. Addante inquired why [he was denied a standard merit raise],
and noted a gender pay gap for instructors, the UTD President (who
oversaw the sexual harassment claim investigation but never once saw
Addante teach) then sent Dr. Addante a hostile letter threatening to fire
him and falsely denigrating his teaching performance.
His response also devotes an entire subsection to “[p]rima facie case of gender
discrimination” in which Addante contends that he and “Dr. Ladow were similarly
situated” yet he was paid less. As evidence, Addante included his declaration that
incorporated a timeline citing the letter and asserting that Wildenthal’s September 4,
2015 response was “retaliation for . . . whistleblower of differential treatment based
on gender.” His response also cited evidence contained in UTD’s own plea
addressing Addante’s gender discrimination claim. UTD included Addante’s letter
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as an exhibit attached to its plea. UTD also included Musselman’s affidavit in which
Musselman noted Addante’s letter, stating, “Dr. Addante emailed to accept his
reappointment and also ask why he did not receive a raise and was not paid the same
as another Senior Lecturer I at UTD, Dr. Eva LaDow.”
Finally, Addante alleged in his EEOC charge that UTD “discriminated and
retaliated against me on the basis of sex.” Citing the letter, Addante asserted:
I accepted the offer for continued employment at a lower rate,
reluctantly, out of necessity. Included with my acceptance is a letter
respectfully requesting a compensation that is commensurate with
experience and which is compliant with Title IX for gender equity
among equally-qualified peers in the same position (e.g. Dr. Eva
Ladow’s $75,000), as well as the basic standard of living raise that had
been provided every year prior.
Thus, the record reflects ample evidence that Addante identified the August 3, 2015
letter to Musselman as a protected activity. See TEX. LABOR CODE § 21.055
(prohibiting retaliation against a person who “opposes a discriminatory practice”).
Causal Link
To state a prima facie case of retaliation, Addante needed only show “a
minimal causal link between the protected activity and the adverse action.” Clark,
544 S.W.3d at 789. The majority focuses on one protected activity: Addante’s sexual
harassment complaint. With respect to this activity, the majority addresses two
points: (1) Addante’s contention that B. Hobson Wildenthal, Provost and President
ad interim of UTD at the time of the events in question, knew Addante was the
anonymous complainant; and (2) the temporal proximity between the complaint and
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the denial of Addante’s reappointment. The majority concludes there is no
competent evidence showing Wildenthal knew Addante was the complainant and
there is no temporal proximity between the two events. Setting aside my
disagreement that the sexual harassment complaint is the only protected activity at
issue, I disagree with the majority’s analysis as to the sexual harassment complaint.
Despite concluding that Addante’s declarations are inadmissible, the majority
cites UTD’s EEO Director Marco Mendoza’s investigation notes, which Addante’s
second declaration discussed, as the only evidence of Wildenthal’s knowledge. To
the contrary, there is much more evidence in the record regarding this question,
including evidence offered by UTD. Specifically, Addante’s EEOC charge, attached
to UTD’s plea, contains Addante’s narrative in which he states that he sent an e-mail
to Mendoza on July 17, 2014, seeking a copy of the investigative report. Addante
alleges that he received a response the next day from Mendoza and “UT Human
Resource Director & Associate Vice President Collen Dutton.” There is no evidence,
however, that Addante included Dutton or consented to Dutton’s participation in the
discussion with Mendoza. Addante’s narrative also indicates that he was approached
by “UTD Director of Audit and Compliance” Toni Stephens, who acknowledged
that she knew about the investigation. The circumstances in which Stephens
approached Addante imply that she also knew he was the complainant. Addante’s
narrative likewise recounts a meeting with Dr. James Bartlett, one of Addante’s
supervisors, in which Bartlett “called [him] out for having reported an anonymous
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report of sexual harassment” against Rugg. Addante notes that Bartlett should not
have known about the complaint.
Other evidence included in Addante’s second declaration shows that Rugg
and Wildenthal could have deduced that the anonymous complainant was Addante.
Specifically, Addante included excerpts from notes taken of witness interviews. The
notes, produced by UTD in discovery, reflect witness testimony that Rugg’s CVL
lab was “a small lab” such that the witness was “not sure [Rugg] couldn’t know who
complained.” Addante also contended the Ethics and Compliance Hotline report,
also produced by UTD, “lists five different people, including three women and two
male post doc employees.” He asserted that Wildenthal could deduce his identity
from this report because “there were nearly no other options of male post docs.”
Additionally, Addante asserted in his declarations and deposition testimony that
Rugg’s wife was Wildenthal’s assistant. Thus, if Rugg figured out who the
complainant was, it is reasonable to conclude that his wife conveyed that information
to Wildenthal. Although Addante does qualify his assertion as merely his belief,
UTD did not contest or object to this assertion. See Grand Prairie Indep. Sch. Dist.
v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (failure to object to defects in form
results in waiver).
Additionally, Addante sent an e-mail to a colleague shortly after filing the
complaint. In the e-mail, Addante discussed the events leading up to the complaint.
Addante even attached a copy of the complaint to the e-mail. Moreover, Addante
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admitted in the e-mail that he initially informed another person in the CVL lab of
the complaint before filing it with HR. Addante stated:
I had informed one of the ladies in charge of our Center, and reported
it to her as a first pass. But ultimately, she really was neither the proper
person to inform nor did she have the authority to do anything about it,
since she was effectively the head secretary there and it was her boss
too.
This e-mail shows that at least two other people knew Addante was the complainant,
one of whom was Addante’s co-worker under Rugg. When viewed in its entirety,
evidence produced by both parties shows that other persons knew about Addante’s
complaint. This is sufficient to raise a fact question about whether Wildenthal knew
and, if so, when did he so learn. See Clark, 544 S.W.3d at 771 (non-movant need
only raise a fact issue to survive a plea to the jurisdiction).
The majority attempts to diminish any possibility that Wildenthal knew of
Addante’s identity by pointing out that he approved Addante’s initial hire “on or
before July 3, 2014—almost three months after his April 10, 2014 complaint.” Dean
Bert Moore’s initial offer letter to Addante was dated July 3, 2014. Wildenthal’s
affidavit, offered by UTD in support of its plea, indicates, however, that UTD’s
“budget decisions are normally made in April or May, but decisions regarding
reappointment of faculty are not made final until around August 15th of each year
when the Provost issues formal reappointment letters.” (emphasis added). Thus, the
decision to hire Addante was made in “April or May,” not July. Considering
Mendoza’s investigation did not conclude until June, it is unlikely that Wildenthal
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knew Addante was the anonymous complainant when he approved his hire in “April
or May.” Indeed, it is reasonable to conclude that he learned about Addante only
after he was hired, and he was unable to act on the decision until Addante had been
reappointed. Wildenthal admits in his declaration that he did not know Addante had
been reappointed and assumed he would not be because he had already voiced his
displeasure over the hire to Moore. Thus, the earliest Wildenthal could have taken
adverse action against Addante was after he learned Addante had been reappointed.
The majority’s error is further compounded by the majority’s failure to
consider Addante’s letter to Musselman. According to Wildenthal’s affidavit,
“decisions regarding reappointment of faculty are not made final until around
August 15th of each year.” Consistent with this testimony, Musselman sent the
reappointment letter to Addante on August 1, 2015, and Addante sent his letter
concerning his compensation to Musselman on August 3, 2015. Wildenthal issued
his September 4, 2015 letter voicing his displeasure with Addante’s reappointment
immediately after he was reappointed and after Addante complained of gender
discrimination. This one-month gap is close enough in temporal proximity to show
causation. See Clark, 544 S.W.3d at 790 (“Temporal proximity is relevant to
causation when it is ‘very close.’”).
Even though temporal proximity generally requires the protected action and
retaliation to be close in time, the seventeen-month gap between Addante’s April 10,
2014 complaint and Wildenthal’s September 4, 2015 letter does not disprove
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causation as to Addante’s sexual harassment complaint. As discussed, Wildenthal
could not have learned that Addante was the anonymous complainant until after
Addante had already been hired. If Wildenthal assumed Addante would not be
reappointed, as his affidavit contends, the earliest he could have taken action would
be after Moore reappointed Addante in August of 2015. Thus, the seventeen-month
gap between Addante’s complaint and Wildenthal’s letter does not disprove
causation. Accordingly, I would conclude that Addante proved a prima facie case of
retaliation.
Pretext
Under the McDonnell Douglas framework, once a plaintiff provides prima
facie proof of his claim and the defendant provides evidence of a legitimate, non-
retaliatory reason for the adverse action, the burden shifts back to the plaintiff to
raise a fact issue by presenting some evidence the defendant’s articulated reason was
false or not credible. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993);
Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 814 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied).
Circumstantial evidence of pretext may include the employer’s failure to
follow its usual policies and procedures in carrying out the challenged employment
actions; discriminatory treatment in comparison to similarly situated employees;
knowledge of the discrimination charge by those making the adverse employment
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decision; evidence the stated reason for the adverse employment decision was false
or not credible; and the temporal proximity between the employee’s protected
activity and the adverse employment decision. Crutcher v. Dallas Indep. Sch. Dist.,
410 S.W.3d 487, 494 (Tex. App.—Dallas 2013, no pet.); see also Clark, 544 S.W.3d
at 790. To carry this burden, the plaintiff must rebut each non-retaliatory reason
articulated by the employer. Crutcher, 410 S.W.3d at 493 (quoting McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)).
UTD contends it asserted three legitimate, non-retaliatory reasons for denying
Addante’s reappointment and merit raise: poor course evaluations for the Fall 2014
semester, Wildenthal’s disapproval of hiring “UTD postdocs” for non-tenured
teaching positions, and Wildenthal’s understanding that Moore would not reappoint
Addante for the 2015-2016 year. According to the majority, Addante addressed only
one of these reasons: poor course evaluations. Even then, the majority concludes that
Addante failed to produce competent evidence to rebut that reason. Accordingly, the
majority concludes that Addante failed to rebut all of UTD’s legitimate, non-
retaliatory reasons for its adverse actions against Addante. I disagree.
In support of its contention that it offered three reasons for the adverse actions,
UTD directs the Court to Wildenthal’s affidavit and September 4, 2015 letter. In
each document, Wildenthal stresses that Addante was not reappointed due to low
student evaluations in the Fall 2014 semester. Although he also voiced his
displeasure with hiring “UTD postdocs” to non-tenured positions, he does not claim
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that UTD is prohibited from doing so or that this is the reason Addante was released.
Rather, he merely stated his understanding that Moore would not reappoint Addante
for the 2015-2016 year because he had voiced his displeasure with the practice to
Moore. Despite this, Moore reappointed Addante anyway. Thus, the only reason
provided in either of these documents is Addante’s poor course evaluations for the
Fall 2014 semester. Addante recognized in his first supplemental response to UTD’s
plea that UTD had offered only this one reason.
The record reflects evidence sufficient to raise a fact question as to whether
UTD’s sole reason was merely pretext. As I have previously discussed, Wildenthal
issued his September 4, 2015 letter one month after Addante informed Musselman
of apparent gender discrimination. The temporal proximity between these two events
is sufficient circumstantial proof of pretext. See Crutcher, 410 S.W.3d at 494.
Addante also provided evidence via his declarations that his student evaluation
scores were not the lowest in the school, yet instructors with lower scores were
allowed to remain. This evidence of discriminatory treatment in comparison to
similarly situated employees is likewise proof of pretext. See id. Additionally,
although Wildenthal indicated in his letter and affidavit that he disapproved of hiring
“UTD postdocs” into non-tenured teaching positions, the record reflects that he
knew of and approved of Addante’s initial appointment to such a position in 2014.
This viewed in light of Moore’s decision to reappoint Addante after Wildenthal
allegedly told him not to raises a question of credibility. See id. Addante’s evidence
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also included a recommendation letter from Bartlett to an unnamed institution. In
the letter, Bartlett extols Addante’s virtues as a teacher and poses the question: “You
might ask why we are not ourselves considering [Addante] for a tenure track
position.” Bartlett cites only budget limitations and the need for “animal-based
System Neuroscience faculty” as the reason UTD did not consider Addante for a
tenure track position. Bartlett’s letter casts further doubt on Wildenthal’s credibility.
See id. As previously noted, the evidence is also sufficient to raise a question of fact
as to whether Wildenthal knew that Addante was the anonymous complainant on the
April 10, 2014 sexual harassment complaint. See id. Indeed, the undisputed evidence
of hiring decisions being made by people other than Wildenthal, and in defiance of
Wildenthal’s wishes, is sufficient to raise a question of whether Wildenthal was the
sole decision-maker. See id. Moreover, the undisputed evidence shows that
Wildenthal knew Addante had submitted a gender discrimination complaint to
Musselman on August 3, 2015. See id. Accordingly, I would conclude that Addante
successfully rebutted UTD’s legitimate, non-retaliatory reasons for its decisions not
to reappoint him and deny his merit raise.
The evidence presented by both parties is sufficient to provide prima facie
proof of Addante’s claims and rebut UTD’s legitimate, non-retaliatory reasons for
not reappointing Addante and denying his merit raise. Under this record, I would
affirm the trial court’s order denying the plea to the jurisdiction.
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Because the majority concludes otherwise, I respectfully dissent.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200376DF.P05
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