1

NO. 13-15-00313-CV

________________________________________________ IN THE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS

_________________________________________________ NEAL VANZANTE Plaintiff-Appellant

V. TEXAS A & M UNIVERSITY--KINGSVILLE Defendant-Appellee

____________________________________________________ On Appeal From the 105 th District Court Kleberg County Trial Court Cause No. 12-238-D

____________________________________________________

APPELLANT NEAL VANZANTE'S REPLY BRIEF

_____________________________________________________

REQUEST FOR ORAL ARGUMENT Respectfully submitted, _/s/ Chris McJunkin________ Chris McJunkin State Bar No. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com ACCEPTED 13-15-00313-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 12/23/2015 5:08:07 PM Dorian E. Ramirez

CLERK2

IDENTITIES OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), Appellan t submits the following list of names and last known addresses of all parties and t heir counsel at trial and on appeal: Parties to the Trial Court Judgment: Appellant/Plaintiff: Neal Vanzante Appellee/Defendant Texas A&M University- Kingsvi lle

Counsel:

For Appellant: Chris McJunkin, Appellate Cou nsel 2842 Lawnview Corpus Christi, Tx. 78404 Fax: 361-882-8926 cmcjunkin@stx.rr.com For Appellee: Anne Mackin , Assistant Attorney General Office of Attorney General - Litigation P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Anne.Mackin@texasattoneygeneral.gov3 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ................................... . 2
TABLE OF CONTENTS ...................................................... ...... 3
INDEX OF AUTHORITIES ................................................... ..... 5 STATEMENT OF FACTS ........................................................... 7 Appellant was Qualified for Hire and was Not Prohib ited From Applying by the 2006 Release and Settlement Agreem ent with TAMU Corpus Christi ...............................

................................................... 8 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in Not Hiring App ellant: ..................... 8 Appellant was not prohibited from applying for t he Chair opening by the 2006 Release and Settlement Agreement with TAMU Co rpus Christi .......... 10 Appellant's resignation............................

................................................... .............. 13 Appellant's Applications ..........................

................................................... ............. 15 Qualification Leadership, Administration, etc. .......

................................................ 15 Appellant Met ALL Appellee's Qualifications for Ful l Professor.................. 16 Appellant Met Appellee's Alleged General Qualificat ion Leadership, Administration, etc. ..... .

............................................... 18 Dr.Sullivan did not Meet Appellee's Alleged General Qualification Leadership, Administration, etc. ..... .

............................................... 20 General Qualification: Appellee's supporting evide nce not part of the decision-making process...........

............................................. 21 Appellee's Alleged General Qualification Professional, Facilitator, etc. c. ......

.................................................. 224

Dr.Sullivan did not Meet Appellee's Alleged General Qualification Professional, Facilitator, etc e tc. ........................................... 22 General Qualification: Appellee's supporting evide nce not part of the decision-making process........... .......................................... 22 Appellant Met Appellee's Alleged General Qualificat ion Professional, Facilitator, etc . .......

............................................ ..... 20, 23 Appellant was AACSB AQ............................. ......................................... 25 AACSB does not require current teaching to maintain AACSB AQ status.. 25 Appellant Met and Maintained AACSB AQ during 18 mon ths................... 28 Appellant Met AACSB currency requirement........... ......... ........................ 28 Appellant Met Position's Preferred Qualifications.. .................... ................. 30 Krueger draft document.............................

.................................................. 31 2006 Release and Settlement was not basis for decis ion............................ 34 Dr.Sullivan was not qualified Appellee determined Sullivan not Qualified........ ..................................36 Sullivan was not qualified for Full Professor..... .................................. 36 Dean Thomas Dock was decision-maker................ ...................................... 38 January 7, 2013, Start date........................

................................................... .. 42 Appellee conducted investigation into Dean Dock's h iring, etc...................... 43 PRAYER .................................................................................... 44 CERTIFICATE OF SERVICE .......................................................... . 45
CERTIFICATE OF COMPLIANCE ......................... ....................................... 465

INDEX OF AUTHORITIES Gee v Principi , 289 F.3d 342, 346, (5th Cir. 2002) Staub v Proctor Hosp ., 131 SW.Ct. 1186, 1193 (2011) STATUTES:

Tex.Lab.Code Sec. 125(a).

Texas Rules of Appellate Procedure 38.6(c) ..................

...................... Texas Rules of Appellate Procedure TRAP 9.4(i)(2)( C),

.........................6 NO. 13-15-00313-CV

______________________________________________ __ IN THE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS

________________________________________________ _

NEAL VANZANTE Plaintiff-Appellant

V. TEXAS A & M UNIVERSITY--KINGSVILLE Defendant-Appellee

__________________________________________________ __ On Appeal From the 105 th District Court Kleberg County Trial Court Cause No. 12- 238-D

_________________________________________________ ___ FIRST AMENDED BRIEF OF APPELLANT NEAL VANZANTE

__________________________________________________ ___

TO THE HONORABLE THIRTEENTH COURT OF APPEALS: COMES NOW, Appellant, Neal Vanzante, and respectful ly submits this, Appellant’s Reply, pursuant to Rule 38.6(c) of the Texas Rules of Appellate Procedure, and would show the Court the following:7

============================== Appellee's Fact Presentation Appellee Brief p.4: Defendant cites Dr.Richar d Aukerman deposition testimony to allege that Dr. Sullivan was the only candidate invited by the search committee. citing p.26, lines 15-20. Aukerman's testimony cited by Appellee e vidences that Dean Dock should have re-advertised the Chair opening after it was d etermined Dr.Sullivan was not qualified: 15.Hypothetically, because obviously I wasn't in a 16 position to do that, I, I probably would have s imply - I 17 probably would have at that point, since that w as the 18 only candidate that the search committee said a nything 19 about inviting at all, I probably would have recommended 2 0 that we readvertise the position . Probably. I mean I

Dr.Aukerman investigation had determined that the search committee did not invite Dr.Sullivan to campus. August 15, 2012: Dr. Aukerman notified Martin Brittain of a list of Dean Dock's misconduct includ ing that " she (Dr.Sullivan) was not recommended for an interview by the search comm ittee ". (CR 1: 872, sec.10 last sentence)

======================= =========8 Appellee Brief sec. A. i. (p.8-9) Appellant VanZante Was Qualified for Hire and was N OT Prohibited From Applying for the Chair Position by the 2006 Release and Settlement

Agreement with TAMU-CC. (response to Appellee Brief Sec. A, p.8 -13) Appellant incorporates herein as if set forth verba tim Appellant's detailed argument on this issue set out in Appellant's First Amended Brief at p.20 to p.32

. Appellee asserts that Vanzante, Appellant, was n ot qualified for the position because Appellant was barred from applying for the Chair position because of the 2006 Release and Settlement Agreement with TAMU-CC.
Not Relevant Appellant has filed a discriminatory failure to hire claim regarding Defendant hiring a younger applicant over Appellant for a dep artment Chair opening in August of 2012. Defendant's argument is not relevan t to Defendant's MSJ to dismiss Appellant's: Appellant's 2006 Release an d Settlement Agreement with Texas A&M Corpus Christi was not the or a basis that Defendant did not hire Appellant for the Chair position; and cannot negate the discriminatory act of which Appellant complains: Defendant's wrongful act of hi ring the younger applicant over the Appellant. Basis of Hiring Decision

(also see Appellant's First Amended Brief: p.12-17) August 6, 2012 : Dean Dock notified the faculty that he had hir ed Carol Sullivan for the Chair opening and entered into a contract with Carol Sullivan9

who agreed to all terms- Associate Dean Aukerman an d Provost Gandy are copied. (CR1: 842-844) -- (Sullivan's handwritten acceptance on last pag e, (CR 1: 844)

" I accept this proposal without any revisions. Thank you for the opportunities and I look forward to contributing to the excellence at Texas A&MKingsville ." " Respectfully , Carol Sullivan (signature)

August 23, 2012 : Appellee / Defendant identified the reason Dr.Su llivan was hired and the reason Appellant was not hired. (CR 1 : 850) Dr.Vanzante does not meet the two salient position requirements: (1) professorial experiences that meet the current college expectati ons of a Full Professor and (2) AACSB Academically Qualified (AQ) status. (CR 1:850) Dr.Krueger testified that Dean Dock provided the reason Appellant was not hired. (CR 1: 698, p.28, lines 10-15; CR 1: 701, p. 39, line 23 to p.40, line 16). August 31, 2012 : Defendant identified on its official Applicant Lo g that Carol Sullivan was the candidate 'hired'. (C R1:885: Sullivan 'hired';

Vanzante 'not hired') September 13,2012 : Defendant removed Dock as the Dean and Associate Dean Aukerman became Interim Dean. (CR 1:876) (CR 1 : 724, p.29, lines 18-24). Dr.Aukerman testified that, before Dr.Aukerma n became Interim Dean, Sullivan had accepted Dean Dock's offer; Dean Dock had informed Provost Gandy and the Defendant had closed the position. (CR 1: 739: p.86/1-10)10

Provost Gandy instructed Interim Dean Aukerm an that Sullivan was the person hired for the Chair opening and go with it. (CR 1: 725, p.30, lines 3-9) (CR 1: 724, p.28, line 25 to p.29, line 11). Both Dr.Aukerman / Provost Gandy later signed off on Dean Dock's hiring Dr. Sullivan for the Chair position. (CR 1: 739: p.86/ 1-21) Two years later, on September 17, 2014: Dr.D ock testified that he, Dr.Dock, was the decision-maker and stated: “ I hired Carol (Sullivan) as Chair of the Department of Accounting, and at the professorial r ank of full professor" . (CR1: 665, p.6, lines 15-19) (CR1: 664 for date of deposi tion).

========================= The 2006 Release and Settlement Agreement with TAMU -CC provided that Appellant could for the Chair position at issue in this suit. (Appellant incorporates his detailed argument on th is issue at Appellant's First Amended Brief at p.20 to p.32) In addition: February 24, 2012: Appellant applied for a posted opening for the Chair of the Department of Accounting and Finance. (CR 1:799 ). Defendant' job posting identified the opening as being 'the holder of a named Chair' . (CR 1:781: job summary).11

Dean Dock testified that " a named Chair is an endowed Chair ", and the position opening was for an endowed Chair. (CR 1: 666 at p.9, lines 7-8; p.29, line 22 to p.30, line 3).

===================================== The 2006 Release and Settlement Agreement with TAM U-CC

Paragraph 3, Last Sentence At the time of the 2006 Release and Settlemen t Agreement and while employed with Appellee, Appellant knew that TAMU Ki ngsville would be working to have an Endowed Chair position in the De partment. (CR 1:658: sec.30). The Parties added the last sentence to Sec tion 3 specifically allowing Appellant an unqualified right to apply for an endo wed chair opening that might open in the futre and not subject to any restrictio n to be currently employed. (CR 1: 658: sec.30) The parties agreed and ended Section 3 with a stand-alone provision:
" The Parties further agree that this paragraph (Para graph 3) shall not apply to any applications Appellant may make to Texas A&M University--Kingsville, for employment in positions such as an endowed chai r position that may become available after the execution of this agreement." (CR 1: p.776, last sentence sec. 3; same at CR 1: p.773, sec. 3--last sentence) . IF Defendant's changes, as set out in its Motion for Summary Judgment and Appellee's Brief, that Appellant had any type of re strictions or had to be currently employed at TAMU Kingsville to apply for an endowed chair opening at TAMU Kingsville were the terms in the 2006 Settlement an d Release Agreement with12

TAMU Corpus Christi, THEN these terms would have been added to the wording of the 2006 Settlement and Release with TAMU Corpus Christi. (CR 1:660, sec.36; p. 659, sec. 35) Appellant could have then accepted or reject ed the limitation and wording; of which Appellant would have rejected. (CR 1: 655 s ec.15; p.654, sec.10) Just the opposite : such a restriction and meaning, as now asserted by TAMU Kingsville, was not included and the TAMU Corpus Ch risti Settlement. (CR 1: 778, sec. 3, last sentence) There is no wording in the 2006 Release and Settlement Agreement with Texas A&M Corpus Christi that Appellant's right to apply for an endowed Chair opening was limited to b eing currently employed; the parties' only limitation was that the opening " become available after the execution of this agreement ". (CR 1: 773, 776--executed in Sept 2006) Extrinsic Evidence Appellant must produce and rely upon extrins ic evidence, the Assistant Attorney General who crafted the 2006 RSA (Mr.Danie l Perkins), to assert this additional term to the 2006 RSA. If allowed, this would create a fact issue.

Appellee Records Evidence Appellant Not Barred from Applying for advertised positions. Set out in Appellant's 1st Amended Brief p. 29.

=================================================== ==13 Appellee Brief sec. A. ii. (p.9-10) Appellee asserts: TAMU-K's AACSB accreditation did not require VanZante to resign.

Appellee misstates Appellant's argument. The 2006 Release and Settlement Agreement wi th Texas A&M Corpus Christi actual wording is:

" The Parties further agree that, for the purposes of this Agreement, any actions or applications required of Plaintiff by Texas A&M Uni versity--Kingsville to maintain his current position of Professor of Accounting, in cluding, but not limited to applications for renewal of tenure and applications for summer teaching at Texas A&M University--Kingsville, shall be exempt from th e restrictions set forth in Paragraph 3 ." Appellant's First Amended Brief on pages 26-28 and 30-32 sets out how this provision came to be drafted. It is not disputed that Appellee TAMU Kingsvill e was going to apply for AACSB accreditation at some time after 2006, at whi ch time Appellee would require faculty to become AACSB AQ certified. Th e 2012 Chair job description's required minimum qualifications included that the c andidate must ( 2) be AACSB Academically Qualified (AQ) and preferred qualification was " AACSB accreditation ". (CR 1:782). In 2007, the opportunity arose that Appellant could work at University of Texas Pan American (UTPA) which was an AACSB accred ited doctoral granting14

institution and UTPA was going through its AACSB re -accreditation process. (CR 1:p.654, sec.12). Prior to leaving Defendant and submitting his resignation to work at the Univ. of Texas Pan American: (Appellant 1st Amended Brie f p.27-28) Appellee / Dean Stanford instructed Appellant that Appellant resigning and returning to work with Appellee at a later date wou ld be acceptable to Appellee (to Dean Standford and Appellee's Provost Clayton, to T AMU System and acceptable under the 2006 TAMU Corpus Christi Settlement and R elease Agreement. (CR 1: p.655, secs.14, 15)(CR 1: p.654, sec.14). Party Admissions

**The District Court found Dean Stanford's and Prov ost Clayton's statements were not hearsay and admissible under TRE 801(e)(2) as party admissi ons, TRE 803(3) then existing state of mind of motive, intent, plan regarding Appellant resigni ng and re-applying at a later date; and as nonhearsay to show the effect of the statement on the Appellant, not for the truth of the statement. (CR 1: 1007-1010) Appellant would not have left his position a t TAMUK and would have rejected the offer to join the University of Texas Pan American if Appellee / Defendant had not agreed that Appellant could resig n in 2007 and return at a later date to work for Defendant under the 2006 Settlemen t and Release with TAMU Corpus Christi. (CR 1:p.655, sec.15). " Dean Stanford told me (Appellant) that this was acceptable to the Provost and the System . (CR 1:p.655, sec.15; 1007-08, 1010)15

========================================= ======= Appellee Brief sec. A. iii. (p.10-13) Appellee asserts: VanZante's resignation did not c reate a right to future employment opportunitie s Appellant sets out a detailed response to th is issue in Appellant's First Amended Brief at pages 20 to 32 regarding leaving A ppellee and returning; and application for endowed Chair posting.

=================================== APPELLEE'S ALLEGED REQUIRED GENERAL QUALIFICATIONS Appellee's Brief Sec. B pages 14-16 asserts Appella nt did not meet the Chair

position's alleged general qualifications. Appellee asserts a new alleged general qualific ation which was not actual required qualifications and not part of the actual hiring decision process. Appellant addressed this issue in detail at A ppellant’s First Amended Brief pages 48-53 of which Appellant incorporates herein as if set forth verbatim.

Defendant's Written Job Posting identified the r equired 'Minimum Qualifications' were: (CR 1: 782) Candidate must be professionally qualified to: (1) hold the rank of Full Professor and (2) be AACSB Academically Qualified (AQ). 1. Appellee Defendant acknowledged to the EEOC th at Appellant met the positions requirements and was a qualified applican t. (Appellant 1st Amended Brief p.43-44)16

2. Appellee identified Appellant as a qualified candidate for hiring on its Applicant Logs created after the hiring decision. ( Appellant 1st Amended Brief p.67-68)

==================================

Defendant Acknowldged to the EEOC Investigator that Appellant met all required Qualifications for the Chair Position April 5, 2013, responding to the Equal Employ ment Opportunity Commission investigation, Defendant acknowledged to the EEOC t hat Appellant did meet the Chair position's required qualifications. (CR 1: bo ttom of CR 865 to top of CR 866) "The application system determined three appli cants did not meet minimum qualifications, leaving five candidates who did mee t minimum qualifications. These were: Dr.Neal Vanzante" (Appellant)

plus 4 others



## -------------------------- Appellee identified Appellant as a quali fied candidate for hiring

on its Applicant Logs created after the hiring deci sion. (Appellant 1st Amended Brief p.67-68) Appellee’s Hiring Authority identified any app licant whose application established that the applicant did meet the posti on's qualifications in order to be processed as acceptable applicant and identified Ap pellant as a candidate meeting the position qualifications. (CR 1: 883-884, 885-8 86)17

(1) August 31, 2012 (CR 1: 885-886) and September 18, 2012, Applicant Logs identified Appellant as one of four applicants identified meeting required qualifications but 'not hired'. (CR 1: 883-884). Applicants meeting required qualifications: (in o rder as listed) Haque, Mohammed Not Hired

Vanzante, Neal (Appellant) Not Hired Rabbani, Mohammad Not Hired Ghosh, Dillip Not Hired Sullivan, Carol Hired

Applicants not meeting required qualifications: ( in order as listed) Francis, Conrad Did Not Meet Min Quals Hopson, James Did Not Meet Min Quals

========================================== Appellee's Brief Sec. B: p.14-16 General Qualifications: Appellant provides and inco rporates his detailed response on this issue set out at Appellant's First Amended Brief pgs. 48-53. 1. Appellee's alleged general qualifications of Le adership, Administration, and Interpersonal and professional communication were n ot requirements for the selection and not used in the decision process. (Ap pellant 1st Amended Brief p. 49) 2. These General Qualifications were not applied t o Dr.Sullivan, the younger applicant selected; and Appellee determined Dr.Sull ivan did not possess these general qualifications. (Appellant 1st Amended Bri ef p. 53-54) 3. Appellant met these General Qualifications (App ellant 1st Amended Brief p.49- 53)18

4. Appellee's evidence to support its argument on this basis was not part of the selection or decision-making process. (Appellant 1 st Amended Brief p.55). Appelle has asserted that the following 'gener al qualifications' were the basis of the hiring process: 1. Leadership 2. Administration 3. Interpersonal and professional communication No one has testified that these factors were used or applied in the actual decision-making process.

=================================

Appellant provided evidence that Appellant met the these alleged general requirements and all req uirements for Full Professor Appellant addressed this issue in detail at Appella nt’s First Amended Brief pages 49-52 of which Appellant incorporates herein as if set forth verbatim.

Appellee Defendant had qualified and classifi ed Appellant as meeting all Appellee's requirements for Full Professor, employi ng Appellant as a Full Professor for 18 years. (CR 651, sec. 2; CR 799, pa ra 2). Associate Dean Aukerman had worked in the C ollege of Business with Appellant from about 2002, to 2007 (CR 1: 720, p.1 0,line 19, to p.13, line 5). Dr. Aukerman testified Appellant possessed skills o f 'Leadership, Administration, Interpersonal and professional communications' : (C R 1: 719, p. 8, line 13 to p.9, line 12)19

Q: Okay. Do you know Dr. VanZante?
A: Yes. Q And how did you come about -- A Well, initially I met him because we both worked in the College of Business Admin istration. He had been here a few years when I was hired. And that would have been in 2002. Q Have you ever written any letters of reference for Dr. VanZante? A Yes, I have. Q And have you ever nominated Dr. VanZante for l ike something called a Regents Professorship?
A Yes. Q What is that? A That's an award that the A&M system gives to f aculty members who have performed above and beyond the c all of duty, I guess you could say, in, over a number of years at the universit y. Q And what about any nominations for outstandin g faculty here at TAMU- Kingsville? Have you eve r -- A Well, I remember I nominated him for an Outs tanding Educator award for the State Accounting Association. I honestly don't remember if I've done that for an on-campus teaching award or not. I don't recall. But I know I did for the State Accounting Society.

====================== Appellant's application and resume provided evid enced Appellant possessed skills of Leadership, Administration, Interpersonal and professional communication. (Appellant First Amended Brief: p. 51-53) This included above Exceptional Annual Evaluations (CR 1: 660, sec. 38) (CR 1: 817); performance and achievement awards (CR 1: 816); member of twe lve (12) Defendant College20

of Business Committees (CR 1:815); high student eva luations (CR 1: 817 mid page); service on boards of directors of organizati ons in Appellant's Field of Accounting (CR 1: 814, top).

Defendant did not apply these 'general qualificatio ns' to the Younger Person Hired: Carol Sullivan,

------ Defendant's Own Records Establish Carol Sullivan di d not possess these 'general qualifications' of Leadership, Interpersonal and Pr ofessional Communications Appellant addressed this issue in detail at Appella nt’s First Amended Brief pages 53-54 of which Appellant incorporates herein as if set forth verbatim.

The Chair Search Committee members evaluated a nd determined Dr. Sullivan did not meet qualifications, therefore did not poss ess this newly alleged general qualification of 'Leadership, Administration, Inte rpersonal and professional communications' The Chair Search Committee members made the following written factual findings: (1) Dr. Sullivan did not meet the position's qualifica tions and not acceptable candidate finding: (CR 1: 838)( CR 1: 837) (CR 1: 8 36) (a) " Odd personality (which isn't necessarily a weakness but seem too much like the person who just left the position we are trying to fill ...)" (b) " Don't think that she would be able to work well wit h our students ." (c) did not exhibit a positive feel to other s21

Associate Dean Aukerman, the Chair of the Sear ch Committee, determined Sullivan not qualified candidate: 1. notified the Hiring Manager that the faculty h ad determined Sullivan did not possess required qualifications (CR 1: 840) and that Dean Dock's hiring of Carol Sullivan was an " Inappropriate, unethical, and/or illegal action ". (CR 1: 871, 872 sec.10) 2. notified Provost Gandy that Dr.Sullivan did not meet the position's qualifications and not qualified to be hired.(CR 1: 846)

================================== Defendant’s Supporting Evidence was Not Used or Rel ied upon by Decisionmakers in Not Hiring Appellant : Appellant's 1st Amended Brief p.55 Appellee basis the new 'general qualifications' argument on selected employee file documents dated 1997 to 2002 (Defendant MSJ Ex hibits 10, 11, 12, 14, 15) which were NOT part of the decision-making process. (a) Defendant MSJ Exhibit 15 (CR 1: 477): 1997 Memo (b) Defendant MSJ Exhibit 12 ( CR 1: 375-376): 2002 Memo (c) Defendant MSJ Exhibit 10 (CR 1: 366-371) : 2001 Evaluation which Appellant filed appeal (d) Defendant MSJ Exhibit 11 (CR 1: 373) : 2002 Letter involving Appellant's grievance (e) Defendant MSJ Exhibit 14 (CR 1: 475) : 2002 Memo

The basis for hiring Sullivan and not hiring Ap pellant was based solely on a review of their applications. (CR 1: 697, p.24, li nes 15-22) Neither Appellant's application nor any other applications contained em ployee files that defendant22

now uses to assert this new reason. (CR 1: 797-819) CR 1: 797-819 Appellant applic; CR 1: 821-832--Sullivan applic)(CR 1: 477, 366-71. 475, 373)

=======================================



## Appellee Brief Sec. C.i. p.16-18 Appellee asserts: VanZante was not qualified to hol d the rank of Full Professor because VanZante did not sho w he was a professional, facilitator, and a trustee This is a newly created basis.

Defendant did not apply these same qualifications to the Younger Person Hired: Carol Sullivan,

and Sullivan did not have these qualifications

------ Defendant's Own Records Establish Carol Sullivan di d not possess these same general qualifications (Appellant's 1st Amended Brief p.53-54) Appellant's Search Committee and Assist.Dean Au kerman findings Sullivan did not meet qualifications.

Appellee's argument based on documents not use d in hiring process Appellee relies upon documents which were not part of, not used in and not relied upon in actual the decision-making process. (Appellant's 1st Amended Brief23

p. 58). Appellee bases this assertion on CR 1:370- 71, CR 1:475, CR 1: 477 (Appellee Brief at p.17) CR 1: 370-71: part of 2001 Evaluation act CR 1: 366-371 CR 1: 370: Dean wrote: "Congratulations on a very good annual evaluation" CR 1: 475: 2002 Memo Dean wrote: " 'Congratulations on another fine annual evaluation. Yo ur teaching evaluations, professional growth and developmen t, research, and service were all excellent'

. CR 1: 477: 1997 Letter

Appellant met ALL Appellee Defendant's requirement s and qualifications to hold the position of Full Professor Defendant qualified and employed Appella nt in the rank of Full Professor for 18 years: 1989 to 2007. (CR 1: 799-800 -applic / resume; CR 1: 650-651, sec. 7; CR 1: 653, sec. 10).

Appellant was Professionally Qualified to hold the rank of Full Professor Appellant's policy on appointments to a Full Professor are set out in Defendant's Faculty Handbook, Sec. B.4.1.6(b). (CR 1: 651, sec. 3; CR 1: 911) Defendant's Faculty Handbook required the individua l to have held the rank of Associate Professor (or higher) for at least five y ears prior to being eligible for appointment to Full Professor. (Ex. 1: p.2, sec. 3 ; Ex.36-3 ---tamu 0196)

Dr.Richar d Aukerman,24

Search Committee Chair and Associate Dean of the Department

(Appellant's 1st Amended Brief p.36-38) Dr.Aukerman was employed by Appellee in admi nistrative positions from 2002 to 2013. (Ex. 4: p.10, line 19 to p.13, line 5 ) and handled ”lots" of faculty hirings either as being " on search committees or chair of a search committee , or doing the hiring as an Interim Dean " and was involved in the hiring of " more than half of the faculty that are currently in the colle ge ", (CR 1: 722, p.19, line 25 to p. 20, line 19), and worked with Appellant for six (6) years: 2002 to 2007. (auk: p.8, lines13-19; p resume, p. ) (CR 1: 782 mid page). Aukerman testified Appellant was qualified to be hired as a " Full Professor ". (see CR 1: 738, p.82, lines 5-21)(Appellant's a pplication at CR 1: 797- 819; teaching employment history at CR 1: 800). Aukerman establishes that Appellant’s br eak in classroom teaching time and not being currently teaching at time of applying wa s not relevant to and does not prevent Appellant from being qualified to be hired as a Full Professor. (CR 1: 738, p.82, lines 5-21)(Appellant's application at CR 1: 797-819; teaching employment history at CR 1: 800).

============================== Appellee Brief Sec. C. ii. p.18-20 Appellee asserts: Appellant VanZante was not AACSB Academically Qualified because Appellant had not taught for 18 months prior to applying.25

Appellant Vanzante's First Amended Brief addresses this issue in detail at p.60 to p. 66, Appellee's assertion is false: A faculty member mai ntains his AASCB AQ status by undertaking scholarly activities in his filed du ring the five year period not by teaching.

APPELLANT WAS AACSB ACADEMICALLY QUALIFIED

Appellant was only applicant who Appellant had actu al knowledge was AACSB AQ qualified at the time of applying. (CR 1: 848)

ii. Appellant was AACSB Academically Qualified Defendant's MSJ asserted that Appellant lost hi s AACSB AQ status by not teaching for the 18 months prior to applying. (CR 1 : 304-305, sec ii)

Defendant's Assertion that AACSB Standards Required to be 'currently employed' at time of Application is FALSE

(Appellant's 1st Amended Brief p.60-63) Defendant processed Appellant's applic ation as a qualified candidate through-out the entire hiring process by Defendant' s Hiring Authority. (CR 1: 883- 886, 888, 892) Defendant Admits to EEOC Appellant is AACSB AQ26

Defendant admitted to the EEOC that Appellant met the Chair position's minimum qualifications which included being profess ionally qualified to be AACSB Academically Qualified. (CR 1: 865-866; CR 1: 782))

Judge Vela denied Defendant's prior Motions asserti ng

this same argument (see Appellant's 1st Amended Brief p.60-61) Evidence Reasonable Minds Can Differ Defendant made this same argument and the presente d same exhibits to Judge Vela on March 10, 2015. (CR 1: 23-26, 23 to 112--Defendant's Summary of Argument with attachments on Plea to the Jurisdicti on and No-Evidence Summary Judgment) that Appellant was not qualified because Appellant lost AACSB AQ status because: (1) Appellant was not currently emp loyed at time of applying; (2) Appellant had not taught in a classroom for prior 18 months. (CR 1: 24-29) Judge Vela found a fact issue existed and den ied Defendant's pleadings to dismiss on this argument. ( CR 1: 291, 292).

AACSB does not have a requirement that actual teach ing of courses is

required to maintain AACSB AQ status. (CR 1: 660-61, sec.40 ; CR 1: 896-901 -- AACSB sta ndard 10)

AACSB Standard 10 and AACSB White Paper Establis h

Appellant Maintained his AACSB AQ Status (see Appellant's 1st Amended Brief p.62-65)27

Defendant admitted in both its March 9, 2015, Summary of Argument presented to Judge Vela and in its Motion for Summary Judgmen t that the AACSB does not have a requirement regarding an 18 month break in e mployment, but that the AACSB looks at a five (5) year period for accredita tion of AQ (academically qualified) status. (CR 1: 25, Mar 9, 2015, Summary of Argument, p.3, sec. 6: 'evidence of developmental activities within the pa st five years ..." citing AACSB Standard 10) (CR 1:304, sec. i: " discipline based scholarship over the previous five

years " citing its exhibit 16 which is AACSB Standard 10 as shown identified at CR 1: 295).

AACSB Standard 10 identifies a " non-exhaustive list of possible activities that faculty may undertake to support the maintenance of academic or professional qualifications"

-- too maintain AACSB AQ status : (CR 1: 900 AACSB Standard 10 - mid page)(CR 1: 904: mid page)

Relevant journal and/or other business publication editorships and/or editorial board/committee service Consulting activities that are material in terms o f time and substance Faculty internships Sustained professional work supporting qualified s tatus Leadership positions in recognized professional/ac ademic societies Advanced academic coursework Relevant, active service on boards of directors Documented continuing professional education exper iences Significant participation in professional and/or a cademic conferences28

=========================== Defendant has produced an AACSB White Paper D eploying Academically Qualified Faculty to base its assertion that actua l teaching is required to maintain AACSB AQ status. (CR 1: 545 Def Ex. 22). This docum ent actually sets out the same ways to maintain AACSB AQ status as AACSB Stan dard 10. The document states: (CR 1: 904, mid page) Activities Sufficient to Sustain Academically Qua lified (AQ) Status "All faculty members are expected to demonstrate a ctivities that maintain the currency and relevancy of th eir instruction. Faculty members can maintain qualifications through a va riety of efforts including the production of intellectual contributi ons, professional development, and current professional experience."

APPELLANT ESTABLISHED HE MAINTAINED AACSB AQ STATUS

(see Appellant's 1st Amended Brief p.63-66) Defendant's MSJ admitted that AACSB AQ status is maintained / sustained by under AACSB guidelines if professor /faculty 'continue to undertake appropriate development activities that sustain his ..... intel lectual capital and currency in the field of teaching' . (CR 1: 305 middle para ). This wording means that a person needs to r emain "current in their field of teaching ." Appellant's "field of teaching" is accounting. ( CR 1:660, sec.40) This does not mean someone needs to be teaching. (CR 1:6 60, sec.40) The AACSB Sec. 10 does not mention classroom teaching as a re quirement to maintain AQ29

currency. (CR 1:660, sec.40). AACSB Standard 10 cl early sets out what activities are necessary to "remain current." Actual Teaching is not a requirement. (CR 1:661, sec.40 top pg). Publishing articles is the main means to main tain AACSB AQ accreditation. (CR 1: 900 mid page, 904 mid page)

Appellant's Five Year Look Back Period Maintenance of AACSB AQ Status

(See Appellant's 1st Amended Brief p.64-65) Defendant admits in its Motion for Summary Judgment that there is a "fiveyear look back used in making applications for AACS B accreditation ". (CR 1: 305, top sec) By defendant's own acknowledgemen t of a five year look back period, Appellant was AACSB AQ at the time of the Defendant's selection of the Chair opening in August of 2012. Based on Appellant's December 2009 formal rec ord of AACSB AQ while employed at the UTPA which ended May of 2010 (CR 1 : 890), Appellant would have remained AACSB Academically Qualified until M ay of 2014 without any activities. August 2012 : date of employment decision. (CR 1: 892, 842-844)

==============

Appellant Maintained Currency in Appellant's Field as Required to Maintain AACSB AQ Status (see Appellant's 1st Amended Brief p.65-66)30

Appellant's Evidence of Maintaining AACSB Academic ally Qualified status Director of Research Krueger and Associate Dean t estified Appellant needed only 3 publications during the immediate three year peri od (2009-2012) prior to Appellant's application to maintain AACSB AQ status . (CR 1: 914; CR 1: 700, p.37, lines 16-23; CR 1: 701, p.38, lines 8-19) Appellant had eight acceptable quality p ublications (all of which were in journals with acceptance rates of less than 30% lis ted in Cabell's director). (CR 1: 652-653: sec.6 )(Ex.11: CR 1: 803-04). Appellant's 1st Amended Brief p. 66: Identifi es Appellant's other continuous AACSB approved activities to maintain currency and AACSB AQ status.

====================================

Appellant met the Position's Preferred Qualifications The Chair Job Posting identified the position' s preferred qualification as: page 3. (CR 1: 782) Preferred Qualification: AACSB accreditation Appellant was formally accredited as AACSB Ac ademically Qualified at the time of his application process. (CR 1: 890, 799, 8 00; CR 1: 652, sec. 6)

================================================== ===31 Appellee Brief Sec. D, p.21-22 Appellee asserts: TAMU-K's first record indicates VanZante was not qualified for the position because he did not meet the general and academic qualifications required for the position.

Appellee / Defendant did not raise this issue in its Motion for Summary Judgment. To support this argument, Appellee then ref ers to Dr.Krueger's first draft of a basis for the hiring selections -- CR 1: 848. August 23, 2012: the date this document is mar ked, and which lists the reasons for hiring Dr.Sullivan and for not hiring the other four qualified candidates which included Appellant. (CR 1: 848) Appellee did not produce this document to the E EOC on April 5, 2013, as the Appellant's official hiring reasons. (CR 1: 850; CR 1: 862, 878-868). Appellee presented the August 23, 2012, version written by D ean Dock as its official reason for the employment decision. (id) September 17, 2014: Dr.Dock was deposed by App ellant. (CR 1: 665) December 2, 2014: Dr.Krueger's deposition -- F irst date it was revealed that Dr.Krueger made a draft document listing the reason s for the hiring decision of which Dr.Krueger had previously provided that to Ap pellee's internal counsel. (CR 1: 691l 697, p.24, line 3 to p.25, line 6).32

December 2, 2014: Dr.Krueger testified tha t Dean Dock, not Dr.Krueger, provided the basis Appellant was not hired, even th ough Krueger signed the August 23, 2012, document. (CR 1: 697, p.25, line 1 5); After Dean Dock announced to the faculty that Dr.Sullivan was hired, Dean Dock then instructed Krueger, Defendant's Director of Research for the College of Business, to write up a basis for hiring Sullivan a nd basis for not hiring the other four qualified applicants. (CR 1: 697, p.24, lines 2-14)(CR 1: 848-Krueger's basis). (CR 1: 701, p.38, lines 8-12), Dr. Krueger then created a draft version. (CR 1: 697: p.24, lines 19-25). (it is this draft version that is the basis of Appellee's argument in this section.) Of the four non-hired qualified applicants, Dean Dock instructed Dr.Krueger to only change the reason for not hiring Appellant and Dock provided the explanation. (CR 1: 697, p.25, line 15) (CR 1: 6 98, p.28, lines 10-15; CR 1: 701, p.39, line 23 to p.40, line 16): Dock's basis: Dr.Vanzante does not meet the two salient position requirements: (1) professorial experiences that meet the current college expectati ons of a Full Professor and (2) AACSB Academically Qualified (AQ) status. (CR 1:850)

----------------------- --------------------------- Dr.Krueger's version stated:33

a. Appellant Vanzante had gone to work for a univ ersity that was already AACSB-accredited; and b. Appellee " was interested in someone who is willing to work he re to make our CBA an AACSB-accredited institution. " (CR 848--last sentence in alleged reason Vanzante was not hired) Dr.Krueger's words evidence that Appellant' s employment at an AACSB accredited institution is exactly what Appellee was looking for: Appellant Vanzante had started at UTPA to gain AACSB experie nce and AACSB accreditation process which is what Dr.Krueger said Appellee wanted. (Appellant 1st Amended Brief p.26-top 29 Dr.Krueger: Dean Dock did not think Appellant leaving TAMU Kingsville (Appellee) or petty issues of past employment were relevant to the hiring decision. (CR 1: 698, p.27, lines 3 to 1 4). April 5, 2013, Appellee acknowledged to the EE OC that: "In Dr.Krueger's letter to Dean Dock recommendi ng Dr.Sullivan for the Department Chair position, he stated that 'Dr.VanZa nte does not meet the two salient position requirements: (1) professorial exp eriences that meet the current college expectations of a Full Professor and (2) AA CSB Academically Qualified (AQ) status." (CR 867, 2nd para from bottom) Appellee Defendant represented to the EEOC th at Krueger wrote the August 23, 2012, document signed by Dr.Krueger, when the t ruth was Dean Dock provided some explanations. (CR 321).34

April 5, 2013, Appellee acknowledged to the EE OC that Appellant met both of the qualifications for the Chair position: "...Dr.Krueger's conclusion that Dr.VanZante did no t possess professorial experiences that met current college expectations o f a Full Professor and did not meet AACSB Academically Qualified (AQ) status may h ave been somewhat speculative at the time..." (CR 868, 1st full par a). Appellee follows this admission with:
". .the fact remained that Dr.Sullivan was the best ca ndidate for the Department Chair position, as determined by the Search Committ ee, Dr.Krueger, and Dr. Dock." (CR 868, 1st full para, last 3 lines). Appellee knew this was false when made to the E EOC: the Search Committee and Chair of the Search Committee had determined Dr .Sullivan was not qualified and not an acceptable candidate for the Chair posit ion. (CR 1: 836-839; 840, 871, 872 sec.10; 846)

==================

III. Appellee's asserted legitimate reasons: p.2 2-33

III.A: TAMU had several legit reasons p.23 A.i p.23: Appellee alleges the The 2006 Release a nd Settlement as the legitimate reason Appellant was not hired.

2006 TAMU Corpus Christi Settlement and Release35

Appellant's 1st Amended Brief at Pages 20-32: Ap pellant was not prohibited from applying for the Chair position: Appellant se ts out in detail at Plaintiff's 1st Amended Brief pages 20-32 facts and argument establ ishing 2006 Release and Settlement excluded Appellant's application for thi s endowed Chair position. Appellant's 2006 Release and Settlement Agreement with Texas A&M Corpus

Was Not the Basis Defendant Did Not Hire Appellant

Appellant's 1st Amended Brief, Pages bottom p.12 to top of p. 17: The 2006 Release and Settlement was not a basis of the decision not to hire Appella nt in August of 2012.

September 17, 2014: Dean Dock testified that Dock hired Dr.Sullivan: stating

" Carol, I hired Carol as Chair of the Department of Accounting, and at the professorial rank of full professor ." (CR 1: 664; 666, p.6, lines 15-19) August 6, 2012 : Dean Dock hired and contracted with Sullivan: off ered Sullivan the Chair position and Sullivan accepted. (CR 1: 842-844) -- (Sullivan's acceptance on last page, (CR 1: 844 )

" I accept this proposal without any revisions. Thank you for the opportunities and I look forward to contributing to the excellence at Texas A&MKingsville ." " Respectfully , Carol Sullivan (signature)36

Dean Dock provided the basis Appellant was not hired: Dock's " changes dealt with Neal Vanzante ". (CR 1: 697, p.25, line 15); . (CR 1: 698, p.28, lines 10- 15; CR 1: 701, p.39, line 23 to p.40, line 16). Basis Dean Dock stated Appellant was not hi red: (CR 1: 850) Dr.Vanzante does not meet the two salient position requirements: (1) professorial experiences that meet the current coll ege expectations of a Full Professor and (2) AACSB Academically Qualified (AQ) status.

======================== Appellee Brief: Sec. A.ii. p.23-25: Appellee asserts that Sullivan was better qualified for the position of Chair Appellant addresses this issue in Appellant's First Amended Brief at p.80-83. Defendant's Own Records Establish Carol Sullivan wa s not Qualified

The Chair Search Committee members Associate Dean Aukerman, the Chair of the Search Committee evaluated and determined Dr . Sullivan was not qualified for hire. (CR 1: 838)(CR 1: 837)(CR 1: 836)(CR 1: 8 40) (CR 1: 871, 872 sec.10)(CR 1:846)

Dr.Sullivan did not meet the Appellee's requirement of five year employment in

rank to qualify for Full Professor (Appellant's 1st Amended Brief at p.80-8 3) Appellant sets out this argument in detail at Appellant's First Amended Brief, pages 80-83.37

Defendant required five years of employment in position of Associate Professor or higher rank before qualifying to be placed into Full Professor position. (CR 1: 651, sec. 3)(CR 1: 911, sec. B.4.1.6(b)--Faculty Ha ndbook). Sullivan had only three years of employment in position of Associate Professor at the time Defendant hired Sullivan. (CR 1: 651, sec. 3) Dr.Sullivan's application and cover letter did not provide a work history to determine whether Sullivan met the minimum required qualification of five years in rank to be a Full Professor. (CR 1: 823-825 Sull ivan application). December 11, 2013 , fifteen months after Sullivan was hired, Appellee produced a new work history to the EEOC to attempt to show Sullivan met requirement of employment in rank for five years. (CR 1: 908, 906) Defendant had to intentionally misrepresent Sullivan's work history to the EEOC adding Dr.Sullivan's 2012-2013 year of employm ent with the University of St. Thomas which occurred after Appellee hired Sull ivan in August of 2012. (CR 1: 908) Appellee also identified Sullivan's positi ons of Visiting Associate Professor which are not positions of 'rank'. (CR 1: 651, sec. 3).

==============================38 Appellee Brief III.B.i. p.26-27: Appellee alleges Dr Aukerman hired Sullivan

This is not correct. Dr.Aukerman had found Dr. Sullivan not qualified and unacceptable for the position. CR 1: 840, 846, 872 sec. 10)

Decision-maker Appellant provides detailed factual support to show Dean Thomas Dock was the legal / actual decision-maker at Appellant's 1st Am ended Brief bottom of page 12 to top of page 17. This includes: March 20, 2012: Dean Dock drives to Vic toria, Texas, to privately interview Carol Sullivan (CR1: 834) (CR1: 728, p.43 , line 14 to p.44, line 8) Dean Dock brings Carol Sullivan to campus for i nterview despite the Search recommending not to interview Sullivan. (CR 1: 872, sec.10) July to August 2012, the Chair Search Committee and Faculty met with Carol Sullivan and determined that Carol Sullivan was no t qualified and 'unacceptable' for the Chair position. (CR1: 836-839). July 16, 2012: Associate Dean Aukerman, notif ied Defendant's Hiring Manager that the College of Business Search Committee had d etermined that Sullivan was not qualified for the chair position. (CR1: 840)39

August 6, 2012: Dean Dock notified the faculty that he had hired Carol Sullivan for the Chair opening and entered into a contract with Carol Sullivan who agreed to all terms of employment-- Associate Dean Aukerma n and Provost Gandy are copied. (CR1: 842-844)

August 15, 2012: Associate Dean Dr.Aukerma n notified Defendant's Hiring Authority, that Dean Dock's hiring of Carol Sulliva n had been an " Inappropriate, unethical, and/or illegal actions of Dean Tom Dock ". (CR1: 871; 872 sec.10) (10) hiring of Carol Sullivan for the Accounting and Finance Department Chair position who was not recommended f or interview by the search committee and who the faculty have voted 8 to 1 tha t Sullivan was ' unacceptable '.

" Tom Dock had decided previously that he wanted to h ire her ." (CR 1: 872, sec. 10) August 16, 2012: Associate Dean Aukerman noti fied Provost Gandy that the department had determined that Sullivan was not qua lified for nor acceptable for the Chair position." (CR1: 846) August 29, 2012: Appellee notified Appellant " the search has been successfully completed " and Appellant " was not the candidate selected for the position". (CR1: 852) August 31, 2012: Defendant identified in its Applicant log that Carol Sullivan was the candidate 'hired' and Vanzante 'not hired' . (CR1:885) Two years later, on September 17, 2014: Dock testified that Dock was the decision-maker and stated: “ I hired Carol (Sullivan) as Chair of the Department40

of Accounting, and at the professorial rank of full professor" . (CR1: 665, p.6, lines 15-19) (CR1: 664 for date of deposition).

=========================== September 13,2012 : Defendant removed Dock as the Dean and Associate Dean Aukerman became Interim Dean. (CR 1:876) (CR 1: 724 , p.29, lines 18-24). Provost Gandy instructed Interim Dean Aukerm an that Sullivan was the person hired for the Chair opening and go with it. (CR 1: 725, p.30, lines 3-9) (CR 1: 724, p.28, line 25 to p.29, line 11). September 19, 2013 : Interim Dean Aukerman sends memo to Defendant's HR Director and to Provost Gandy: (CR 1:927) "Upon completion of the search process it was deter mined that Dr.Carol Sullivan was the most appropriate fit for our needs at this time."

Both Interim Dean Aukerman and Provost Gandy kn ew this reason was false at the time it was created to be Defendant's official hiring record. Faculty Search Committee and Aukerman had determined Sullivan unac ceptable. (CR1: 840) (CR1: 871; 872 sec.10) (CR1: 846) Defendant did not reopen the chair selection process after Dock's removal as Dean; and Dr.Aukerman testified that the position should have been re-advertised after Dean Dock received the faculty determination that Sullivan was not41

qualified. (CR 1: 724, p.29, line 23 to CR 1:725, l ine 2). (CR 1: 723, p.25, line19 to CR 1: 724, p.26, line 20) After Dr.Aukerman became Interim Dean in September of 2012, Dr.Aukerman met with Provost Gandy who instructed Dr.Aukerman t hat Dr.Sullivan would be hired for the Chair opening. (CR 1: 725: p.30, line s 3-9). Dr.Aukerman testified that Appellant closed the position; and Dr.Aukerma n and Provost Gandy signed off on Dr.Dock's hiring of Dr.Sullivan. (CR 1: 739: p.86, lines 9-15) An employer does not negate the discriminatory actions or discriminatory influence of its supervisor by having a third perso n sign off on the hiring decision. ( Gee v Principi , 289 F.3d 342, 346, (5th Cir. 2002)

Tex.Labor Code Used Motivating Factor

Plaintiff can establish an unlawful employment action if age was a motivating factor even if other factors also motivated the emp loyment action. (See Tex.Lab.Code Sec. 125(a).

" if a supervisor performs an act motivated by antimi litary (unlawful) animus that is intended by the supervisor to cause an adve rse employment action, and if that act is proximate cause of the ultimate employm ent action, then the employer is liable (under USERRA)" Staub v Proctor Hosp ., 131 SW.Ct. 1186, 1193 (2011)42

The presences of other alleged basis for no t hiring an employee does not save an employer from liability because causation i s under the 'motivating factor' standard. Ridley V Harris County , 2011 US Dist LEXIS 42219: end of retaliation section).

============================ ii. January 7, 2013, start date. Appellee asserts: Sullivan the only qualified appli cant, "was not able to start until after her commitment for that school term had ended ." p.27 Appellant has shown Appellee had determined Dr .Sullivan was not qualified. The job posting identified January 7, 2013, as the date the Chair was needed to start working as Chair of the Department. (CR 1: 78 0). The job posting does not state it is the preferred date. (CR1: 780). Martin Brittain, Appellant's Hiring Manager, te stified that the normal school term would be Sept. 2012, to May 2013; and the Appe llee needed someone to start in the middle of that school term. (CR 1: 755: p.3 3, lines 10-20). Martin testified that Appellee required faculty positions to be advertised. (CR 1: 755: p.30. lines 5-14); Dean Dock changed the s tart date without re-advertising the position in order to hire Dr. Sullivan. (CR 1: 780, 842-844)

===========================43 Appellee Brief B.iii. p.29-32 Appellee asserts that Carol Sullivan was qualified for the position Appellant has demonstrated Dr.Sullivan was not qualified. Dr.Sullivan did not meet Appellant's requireme nt of five years of employment in 'rank' of Associate Professor or higher to quali fy for full professor. (Detailed argument set out in Appellant's First Amended Brief at pages 80-83). Appellant has also demonstrated Appellee had determ ined that Dr.Sullivan was not qualified for the Chair position.

Appellant incorporates his argument above re garding Search Committee and Dr.Aukerman determining that Sullivan was not quali fied for the Chair position.

=========================== Appellee Brief B.iii. p.iv. p.33 TAMU-K did conduct an internal investigation into Dean Dock which

included Dock's hiring of Dr.Sullivan.

On August 15, 2015, Assoc.Dean Auker man reported findings of an investigation to Assistant Dean Martin Brittain in a report titled "“ Inappropriate, unethical, and/or illegal actions by Dean Tom Dock”

. (CR 1:871-874). Dr.Aukerman's investigation also determined Dean Dock's hiring of Dr.Sullivan was inappropriate, unethical, and/or il legal. Dr.Aukerman determined that: (CR1: 872, Sec. 10)44

Sec (10) The faculty who were involved in the interview of C arol Sullivan for the Accounting and Finance Department Chair positio n indicated that she was unacceptable by a margin of 8 to 1. "Tom Dock had decided previously that he wanted to hire her. She was not recommended for an interview by the search committee."

(CR1: 872, Sec. 10)

PRAYER For all the above reasons, Appellant Neal Vanzante requests this Court to vacate and/or reverse the Trial Court’s Order Granting Def endant Motion for Summary Judgment, and remand / order Plaintiff’s lawsuit ba ck to the trial court to be placed on its trial docket. Appellant also requests any and all relief to which he is entitled at law or in equity, and requests general relief.

Respectfully submitted,

_/s/ Chris McJunkin________ Chris McJunkin State Bar No. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com45

CERTIFICATE OF SERVICE

I hereby certify that on the 23rd day of Decem ber 2015, a copy of the foregoing was delivered in accordance with the Texas Rules of Civil Procedure on the following person:

Anne Mackin , Assistant Attorney General Office of Attorney General - Litigation Division P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Anne.Mackin@texasattoneygeneral.gov

_/s/ Chris McJunkin________46

CERTIFICATE OF COMPLIANCE Pursuant to TRAP 9.4(i)(2)(C), I hereby certif y that Statement of Facts, summary of argument, argument, conclusion and praye r contain 7,369 words as determined by WORD 2007; and that it has been prepa red in conventional typeface no smaller than 14 point for text. _/s/ Chris McJunkin________