DISSENT and Opinion Filed June 27, 2022 

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 FROM DENIAL OF 

EN BANC RECONSIDERATION 

Opinion by Justice Reichek 

This appeal concerns a former UTD employee’s allegations that he was 

terminated from his position as a non-tenured senior lecturer in retaliation for 

reporting and/or opposing both gender discrimination and sexual harassment. The 

trial court denied UTD’s plea to the jurisdiction, but a panel of this Court reversed, 

with one justice dissenting, and dismissed the suit brought by Richard J. 

Addante, Ph.D. Addante sought en banc review, which a majority of this Court 

voted to deny. Because I disagree with that vote as it relates to Addante’s claim of 

retaliation for reporting gender discrimination, I dissent. The majority opinion sets 
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forth the background facts in this case at length, and I will not repeat those facts 

other than to note the following. 

In August 2015, UTD’s Acting Provost Inga Musselman sent Addante a 

reappointment letter for the 2015-2016 academic year that reflected a $50,000 

annual salary. In response, on August 3, Addante sent Musselman an email 

acknowledging the offer of employment but expressing concern about a 

“considerable pay gap” between his salary and that of a fellow senior lecturer who 

was female. Addante made clear in his email that he believed this was an instance 

of “gender discrimination”: 

I wanted to be sure that UT Dallas remained compliant 

with Title IX employment law, and did not inadvertently 

become non-compliant with federal law prohibiting 

gender discrimination in pay for its Senior Lecturers. 

. . . 

According to the EEOC, “the 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.” As far as I am aware, the 

current pay discrepancy is the type of discrepancy 

forbidden by Title IX statutes, and I’d like to help UT 

Dallas remain compliant. 

. . . 

It is my hope that as we begin this new academic year’s 

successes, that we can do so as compliant with federal 

Title IX policies of equal pay for equal work, and that the 

compensation level may be adjusted accordingly, so that it 

is commensurate with experience and on par with other 

comparable colleagues. 

Musselman, who had only recently assumed her role and had no knowledge 

of how Addante’s pay rate was determined, forwarded Addante’s email to UTD 
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Interim President Dr. Hobson Wildenthal. Thirty-two days later, on September 4, 

Wildenthal responded to Addante’s email as follows: 

You recently communicated with Acting Provost 

Musselman raising issues about your FY 16 

compensation. Since Dr. Musselman had no role in setting 

your compensation, which occurred under my 

management, I am answering your letter. 

In reviewing the evaluations of classroom instruction last 

year, I noted the unsatisfactory results for your teaching 

performance. I inquired as to the genesis of your 

employment and was informed that it was a temporary 

expedient, provided more or less on compassionate 

grounds in order for you to have a better chance of 

obtaining regular employment subsequent to the 

completion of your post-doctoral appointment. 

I expressed my lack of support for this sort of process for 

providing instruction for our students, in particular given 

the unsatisfactory results, and was given to understand that 

your employment would not be renewed. As is normal for 

individuals programmed not to be employed for the 

coming year, I did not allocate a salary adjustment for your 

name. 

The fact that you appear to again be employed for FY 16 I 

regard as an administrative oversight or failure. You 

should use this fortuitous (for you) accident of an 

additional year of UT Dallas employment to good 

advantage and succeed in finding regular employment 

elsewhere after May 31, 2016. 

UTD has taken the position that this communication reflected its decision to 

terminate Addante at the end of the 2015-2016 academic year and, as reflected in his 

letter, that the decision was made by Wildenthal. 
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In response to UTD’s appellate brief, Addante argued that his email to 

Musselman constituted protected conduct, and that Wildenthal retaliated against him 

in response to this protected conduct.1

 UTD argued in reply, and a majority of the 

panel agreed, that Addante failed to raise this issue before the trial court. The 

majority reasoned: 

Regarding Addante’s argument that Addante’s Letter to 

Musselman was a protected activity, the record shows that 

Addante failed to raise that argument before the trial court. 

Addante’s responses to UTD’s plea to the jurisdiction 

neither attached, specifically identified, or expressly 

presented Addante’s Letter to Musselman as a protected 

activity. For the first time on appeal, Addante asserts this 

letter was a protected activity. However, as this argument 

was not presented to or adjudicated by the trial court, we 

cannot consider this new argument. See Tex. R. App. 33.1; 

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 

337, 341 (Tex. 1993). 

 In her dissent to the majority opinion, Justice Partida-Kipness thoroughly 

rebuts this rationale. See Univ. of Tex. at Dallas v. Addante, No. 05-20-00376-CV, 

2021 WL 4771464, at *2–3 (Tex. App.—Dallas Sep. 8, 2021) (dissenting opinion). 

For the same reasons as set forth in the dissent, I would conclude that Addante 

identified the letter as a protected activity in the proceedings below and that he did 

not waive this issue for review. Id. In particular, I agree that Addante raised the 

issue in his original petition, as well as in his multiple responses to UTD’s plea to 

the jurisdiction, which was sufficient to put the trial court on notice. See id. at *3. 

1

 Addante exhausted his administrative remedies with respect to this allegation by filing a timely EEOC charge within 180 days of 

Wildenthal’s letter wherein he described both his email to Musselman and Wildenthal’s response to the email. 
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Having determined that this issue was raised by the pleadings, asserted in response 

to the plea to the jurisdiction, and considered by the trial court, I would reach the 

question of whether Addante raised a genuine issue of material fact on the matters 

of protected activity and unlawful retaliation. 

The Texas Commission on Human Rights Act is codified at Chapter 21 of the 

Texas Labor Code. Among other things, the TCHRA prohibits an employer from 

discriminating against an individual in connection with compensation on the basis 

of sex. TEX. LAB. CODE § 21.051. The TCHRA also prohibits an employer from 

retaliating against an employee who opposes such discrimination. TEX. LAB. CODE 

§ 21.055. 

To establish a prima facie retaliation case under the TCHRA, a plaintiff must 

show (1) he engaged in a protected activity, (2) the employer took an adverse 

employment action against him, and (3) a causal connection between the protected 

activity and the adverse employment action. San Antonio Water Sys. v. Nicholas, 

461 S.W.3d 131, 137 (Tex. 2015). The employee need not establish the protected 

activity was the sole cause of the employment action. City of Dallas v. Siaw-Afriyie, 

No. 05-19-00244-CV, 2020 WL 5834335, at *6 (Tex. App.—Dallas Oct. 1, 2020, 

no pet.) (mem. op). All that is required is evidence from which a factfinder may infer 

that retaliation motivated the adverse employment action in whole or in part. Id. 

Addante asserts that his email was protected conduct under § 21.055. 

Addante’s burden in this regard is not onerous, and he must show only that his email 
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alerted UTD of his reasonable belief that unlawful discrimination was at issue. 

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018) (citing

Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 586 (Tex. 2017)). EEOC 

Enforcement Guidance on Retaliation and Related Issues, No. 915.004, August 25, 

2016, provides: “The opposition clause [of Title VII] applies if an individual 

explicitly or implicitly communicates his or her belief that the matter complained of 

is, or could become, harassment or other discrimination. The communication itself 

may be informal and need not include the words ‘harassment,’ ‘discrimination,’ or 

any other legal terminology, as long as circumstances show the individual is 

conveying opposition or resistance to a perceived potential EEO violation.” 

Even though Addante need not use “magic words” like “discrimination,” he 

did so and more, warning UTD that it was at risk of becoming “non-compliant with 

federal law prohibiting ‘gender-discrimination’ in pay among its senior lecturers,” 

citing EEOC guidance interpreting the Equal Pay Act to require “equal pay for equal 

work,” describing his perception that “the current pay discrepancy is the type of 

discrepancy forbidden by Title IX statutes,” identifying who he believed to be a 

relevant female comparator, and expressing his goal of ensuring that UTD begin the 

new academic year “compliant with federal Title IX policies of equal pay for equal 

work.” 

For its part, UTD cited only Alamo Heights for the proposition that the email 

was not protected. UTD gave no explanation as to why Alamo Heights is instructive, 
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reciting only its observation that “complaining only of ‘harassment,’ ‘hostile 

environment,’ ‘discrimination,’ or ‘bullying’ is not enough.” Id. at 786. But UTD 

failed to include the next sentence in Alamo Heights: “There must be some 

indication of gender motivation, such as sexual propositioning or other behavior 

signifying Clark’s belief that her gender motivated the behavior.” Id. at 787. 

Addante’s email meets this standard, as it repeatedly draws a causal connection 

between his gender and his pay. 

Wildenthal’s September 4 letter advising Addante that his employment would 

not be renewed at the end of the year was in response to, and only one month after, 

the email Addante asserts as protected conduct. This was made clear in the opening 

paragraph: “You recently communicated with Acting Provost Musselman raising 

issues about your FY16 compensation. Since Dr. Musselman had no role in setting 

your compensation, which occurred under my management, I am answering your 

letter.” After criticizing Addante’s job performance, Wildenthal concluded with the 

following: “The fact that you appear to again be an employee for FY16 I regard as 

an administrative oversight or failure. You should use this fortuitous (for you) 

accident of an additional year of UT Dallas employment to good advantage and 

succeed in finding regular employment elsewhere after May 31, 2016.” Close timing 

between an employee’s protected activity and an adverse action may provide the 

“causal connection” required to make out a prima facie case of retaliation. Evans v. 

City of Houston, 246 F.3d 344, 354 (5th Cir. 2001). A time lapse of up to four 
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months has been found sufficient to satisfy the causal connection. Id.; see also Alamo 

Heights, 544 S.W.3d at 790 (in plea to jurisdiction, temporal proximity of two or 

three weeks would raise fact issue on prima facie causation). Based on the record, I 

conclude the parties’ evidence created a fact issue on whether UTD engaged in 

retaliation by not renewing his employment at the end of the 2015-2016 academic 

year.

UTD argues that even if the evidence created a fact issue on the prima facie 

case of retaliation, Addante failed to satisfy his burden to then provide evidence that 

UTD’s asserted non-retaliatory reasons for his termination were not credible, and 

were instead a pretext for unlawful retaliation. 

In support, UTD argues that it made the decision to terminate Addante at the 

end of the 2015-2016 academic year not because of his protected conduct, but 

because of the “articulated reasons for his non-reappointment” as set forth in 

Wildenthal’s letter; specifically, (1) Addante’s poor course and instructor scores in 

his student evaluations for the Fall 2014 semester; (2) Wildenthal’s lack of support 

for hiring a former UTD post-doctoral student who could not find a tenure track 

position at another university; and (3) Wildenthal’s understanding that the dean 

would not reappoint Addante for the 2015-2016 academic year. Relying on a 

specific excerpt from Addante’s deposition, UTD claims that Addante does not 

dispute that these were the articulated reasons for his non-reappointment. However, 

the referenced deposition testimony addresses only Addante’s student evaluations. 
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Assuming for the sake of argument that Wildenthal’s lack of support for hiring

Addante as a senior lecturer can serve as a legitimate non-retaliatory reason for firing

Addante a jury may choose to disbelieve this purported reason for his termination, 

especially since Wildenthal approved Addante’s hire as senior lecturer. Also, there 

is no evidence that Wildenthal’s understanding that the dean would not reappoint 

Addante for the 2015-2016 academic year was a reason for UTD’s decision not to 

renew Addante’s contract for 2016-2017. A jury could reasonably conclude that 

Wildenthal’s letter was merely explaining why Addante did not receive a merit raise 

that academic year, rather than giving another reason for his termination. 

UTD proffered affidavit testimony from Wildenthal in support of its plea to 

the jurisdiction. Wildenthal claimed that he reviewed Addante’s Fall 2014 course 

evaluations in January 2015 and instructed Dean Bert Moore not to extend Addante 

a teaching contract for 2015-2016 based on those evaluations. UTD offers no 

evidence to support this conversation other than Wildenthal’s affidavit testimony, 

which a jury is free to disbelieve or deem irrelevant since Addante was ultimately 

offered another teaching contract for 2015-2016, and, in this lawsuit, Addante 

challenges UTD’s decision to not renew his contract for 2016-2017. 

Addante also adduced evidence that his course evaluations were not a valid 

indicator of job performance, he was a good lecturer, and UTD knew this. In the 

alternative, assuming UTD considered his Fall 2014 course evaluations a valid 

indicator of job performance, Addante also offered evidence to show his teaching 
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performance improved after that. Interim Dean Dr. James Bartlett, who made the 

decision to employ Addante as a Senior Lecturer, explained that Addante’s 2014-

2015 teaching load was difficult and perhaps unrealistic, but that Addante met the 

challenge. In describing Addante’s teaching load, Bartlett stated that “[t]his was 

obviously a quite challenging teaching regimen, far more difficult than anything we 

would put an entering tenure track Assistant Professor through. Nonetheless, 

[Addante] did very well, not only in teaching the courses themselves, but inspiring 

a number of the undergraduate students to do research in an EEG lab we set up for 

this purpose.” Bartlett acknowledged that while there were some “bumps along the 

way” and some students did not enjoy Addante’s Behavioral Neuroscience class, 

this was “not an unusual situation with a new preparation in a challenging course 

[and] the important point [was] that [Addante] made some adjustments to his 

teaching style and rectified the problem.” In fact, both Bartlett and the director of 

the undergraduate neuroscience program sat in on several of Addante’s classes when 

he offered it for a second time and thought he did well. This is some evidence that 

UTD’s assertion that Addante’s termination was a result of his poor job performance 

was a pretext for retaliation. See McInnis v. Alamo Community College Dist., 207 

F.3d 276, 283 (5th Cir. 2000) (employer relied on performance problems that were 

stale by more than a year and a half without regard to his notably improved 

performance since); Bouard v. Ramtron Int’l Corp., No. 12-cv-00494-WYD-MJW, 

2013 WL 5445846, at *6 (D. Colo. Sept. 27, 2013) (termination took place months 
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after alleged misconduct but only 25 days after protected activity); Jeffries v. FEMA, 

No. PX-19-01816, 2020 WL 4262270, at *8 (D. Md. July 24, 2020) (mem. op.) (“At 

that time, Jeffries had already been counseled for her misuse of the credit card, and 

so a reasonable finder of fact could conclude that issue had been resolved, only to 

be resurrected in response to Jeffries’ formal discrimination complaint.”); Daoud v. 

Avamere Staffing, LLC, 336 F.Supp.2d 1129, 1137 (D. Or. 2004) (termination 

occurred immediately after request for accommodation; although employer claimed 

it terminated plaintiff because of customer complaints, those had occurred several 

days earlier and employer had taken no action in interim); Donley v. Stryker Sales 

Corp., 906 F.3d 635, 639 (7th Cir. 2018) (“If the disputed facts are resolved in 

Donley's favor, a reasonable jury could interpret the suspicious timing as evidence 

(a) that one or both decision-makers initially found Donley’s actions ... to be 

tolerable, and (b) that they decided only later, after she had filed her internal 

complaint, to use that incident as a pretext to fire her for retaliatory reasons.”); Cruz 

v. R2Sonic, LLC, 405 F.Supp.3d 676, 693-4 (W.D. Tex. 2019) (evidence of pretext 

where employer waited until after employee became disabled to discipline employee 

for purported performance problems that predated disability); Quillen v. Touchstone 

Med. Imaging LLC, 15 F.Supp.3d 774, 783 (M.D. Tenn. 2014) (after manager 

exposed discriminatory act against employee with disability, manager was 

disciplined for something that happened months before). 
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Because I conclude Addante pleaded a claim for gender discrimination 

retaliation, and further supported that claim with sufficient evidence to raise a 

genuine issue of material fact, I dissent from the Court’s decision to deny en banc 

consideration. 

 

Joined by: Molberg, Partida-Kipness, Nowell, Carlyle, and Garcia, J.J. 

200376F.P05 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE