ACCEPTED

13-15-00313-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

10/27/2015 7:03:27 AM

Dorian E. Ramirez

CLERK

NO. 13-15-00313-CV 

IN THE COURT OF APPEALS 

THIRTEENTH JUDICIAL DISTRICT 

CORPUS CHRISTI, TEXAS 

NEAL VANZANTE 

Appellant-Appellant 

v. 

TEXAS A & M UNIVERSITY--KINGSVILLE 

Defendant-Appellee 

On Appeal From the 1 051

h District Court 

Kleberg County 

Trial Court Cause No. 12-238-D 

AMENDED BRIEF OF APPELLANT NEAL V ANZANTE 

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 

I 

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 10/27/2015 7:03:27 AM DORIAN E. RAMIREZ Clerk
IDENTITIES OF PARTIES AND COUNSEL 

Pursuant to Tex. R. App. P. 38.1(a), Appellant submits the following list of 

names and last known addresses of all parties and their counsel at trial and on 

appeal: 

Parties to the Trial Court Judgment: 

Appellant/Plaintiff: 

Appellee/Defendant 

Counsel: 

For Appellant: 

For Appellee: 

Neal Vanzante 

Texas A&M University- Kingsville 

Chris McJunkin, Appellate Counsel 

2842 Lawnview 

Corpus Christi, Tx. 78404 

Fax: 361-882-8926 

cmcjunkin@stx.rr.com 

Marie! Puryear, Assistant Attorney General 

Office of Attorney General - Litigation 

P.O.Box 12548, Capitol Station 

Austin, Tx. 78711-2548 

Fax: (512) 320-0667 

Marie!. puryear@texasattoneygeneral.gov 

2 
TABLE OF CONTENTS 

IDENTITIES OF PARTIES AND COUNSEL............................. 2 

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

STATEMENT OF JURISDICTION....................................................... 8 

STATEMENT OF THE CASE....................................................... 8 

STATEMENT REGARDING ORAL ARGUMENT ........................................ 10 

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 

Trial Court Erred in Granting Defendant's Motion for Summary Judgment Dismissing 

the Appellant's Lawsuit 

A. Appellant's 2006 Release and Settlement Agreement with T AMU Corpus 

Christi Was Not a Basis Used by Defendant in Not Hiring Appellant: 

B. Appellant was not prohibited from applying for the Chair opening by the 

2006 Release and Settlement Agreement with T AMU Corpus Christi 

The Trial Court Erred in Dismissing Appellant's Lawsuit 

A. Appellant Establishes Direct Evidence of Age Discrimination 

B. Appellant Establishes Circumstantial Evidence of Age Discrimination 

Step One: Appellant's Prima Facie Case 

Element No. 1: Appellant is a member of a protected class 

Element No. 2: Appellant was Qualified for the Chair Position 

Element No.3: Adverse employment action 

Element No. 4: defendant hired someone substantially younger than 

Appellant I treated Appellant differently than someone younger 

3 
. Step Three: Appellant establishes Pretext: 

TATEMENT OF FACTS ........................................................... 11 

SUMMARY OF THE ARGUMENT ················································ 18 

ARGUMENT .................................................................................................... 19 

Summary Judgment Standard .......................................................... 19 

Appellant's 2006 Release and Settlement Agreement with T AMU Corpus Christi 

Was Not a Basis Used by Defendant in Not Hiring Appellant: ..................... 20 

Appellant was not prohibited from applying for the Chair opening by the 

2006 Release and Settlement Agreement with T AMU Corpus Christi .......... 23 

The Trial Court Erred in Dismissing Appellant's Age Claim: ...................... 32 

Appellant Establishes Direct Evidence of Age Discrimination .......... 32 

Appellant Establishes Circumstantial Evidence of Age Discrimination ..... 33 

Step One: Appellant's Prima Facie Case 

(a) Element No. 1: Appellant is a member of a protected class ..... 35 

(b) Element No.2: Appellant was Qualified for the Chair Position .. 35 

Appellant Met Actual Required Qualifications No. 1... 38 

Appellant Met Actual Preferred Qualification ............... 41 

Appellant Met Defendant's Alleged Required Qualifications .. .42 

Appellant Met Def General Qualification: leadership, etc. .. ... 48 

Disparate Treatment. ................................................................. 53 

Plaintiff Met Def Alleged Qualification: professional, etc ...... 56 

Disparate Treatment.. ................................................................ 59 

Appellant Met Def AACSB requirement ....... 18 month ........... 60 

Appellant Met Def AACSB currency requirement. ................... 65 

(c) Element No.3: adverse employment action ............................... 69 

4 
(d) Element No.4: defendant hired someone substantially younger than 

Appellant I treated younger person differently ........................ 69 

Step Three: Appellant establishes Pretext: 

Appellant presents sufficient evidence to create a genuine issue 

of material fact that Defendant's Legitimate Nondiscriminatory 

reasons are false ............................................................................. 71: 

CONCLUSION ................................................................................... 84 

PRAYER··························································································· 84 

CERTIFICATE OF COMPLIANCE ....................................................................... 85 

CERTIFICATE OF SERVICE.......................................................... 85 

5 
APPENDIX ........................................................................................ . 

Appendix!: June 10, 2015: Order Granting Defendant Texas A&M 

University-Kingsville's Motion for Summary Judgment (CR 1: 1006) 

Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion 

for Summary Judgment (CR 1: 291). 

Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction 

(CR 1: 292). 

Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time 

to File Brief to October 23,2015, was granted. 

6 
INDEX OF AUTHORITIES 

Am. Tobacco Co. v. Grinnell, 951 S. W.2d 420, 425 (Tex. 1997) ............... 19 

Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 1975) ................... 32 

Gaines v. Hamman, 163 Tex. 618,358 S.W.2d 557, 563 (Tex. 1962) ....... 19 

Michael v. City of Dallas, 314 S. W.3d 687, 690-91 

(Tex. App.-Dallas 2010, no pet.).............................................................. 34 

O'connor v Consolidated Coin Caterers Corp, 517 US 308, 312, ( 1996)... 69 

Rachid v Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) ......................... 69 

Rincones v. WHM Custom Serv, 457 F.3d, 221, 236 

(13th Corpus Christi 2015) ................................................. 19,34 

Tex. Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248,254, (1981)....... 34 

Pattern Jury Charge 100 ............................................................................... 32 

STATUTES: 

Texas Rules of Appellate Procedure 38.1 .............................................. 8 

Texas Rules of Appellate Procedure 26.1 .............................................. 9 

Texas Rules of Appellate Procedure 9.4(i)(2)(B) ..................................... 85 

Tex.Labor Code Ann. Sec.21.001 ....................................................... 21 

Tex.LaborCodeSec.21.051 ............................................................. 14 

7 
NO. 13-15-00313-CV 

IN THE COURT OF APPEALS 

THIRTEENTH JUDICIAL DISTRICT 

CORPUS CHRISTI, TEXAS 

NEAL VANZANTE 

Appellant-Appellant 

v. 

TEXAS A & M UNIVERSITY--KINGSVILLE 

Defendant-Appellee 

On Appeal From the 1 051

h District Court 

Kleberg County 

Trial Court Cause No. 12-238-D 

AMENDED BRIEF OF APPELLANT NEAL V ANZANTE 

TO THE HONORABLE THIRTEENTH COURT OF APPEALS: 

COMES NOW, Appellant, Neal Vanzante, and respectfully submits this, Appellant's 

Amended Brief, pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, and 

would show the Court the following: 

8 
STATEMENT OF JURISDICTION 

This Court has jurisdiction pursuant to TRAP 26.1: Appellant filed his Notice 

of Appeal within 30 days after order I judgment was signed and within the time 

allowed by TRAP 26.1; and within 30 days of receiving notice of order I judgment. 

(CR 1: 1006, 1026-1 027) 

STATEMENT OF THE CASE 

Appellant filed suit pursuant to Texas Labor Code Sec. 21 et seq. for age 

discrimination based upon Defendant's failure to hire Appellant and Defendant 

hiring a substantially younger person for advertised Chair position in August of 

2012. (CR 1: 5-11). 

March 18, 2015: Order Denying Defendant's No-Evidence Motion for Summary 

Judgment was granted by Honorable Judge Rose Vela. (CR 1: 291). (Appendix 2) 

March 25, 2015: Order Denying Defendant's Plea to Jurisdiction was granted by 

Honorable Judge Rose Vela. (CR 1: 292). (Appendix 3) 

June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's 

Motion for Summary Judgment was granted by Honorable Judge Jack Pulcher. 

(CR 1: 1006)(Appendixl) 

July 9, 2015: Appellant I Appellant Filed his Notice of Appeal. (CR 1: 1026-

1027) 

9 
October 9, 2015: Appellant's Motion for Extension of Time to File Brief to 

October 23, 2015, was granted. (Appendix 4) 

STATEMENT REGARDING ORAL ARGUMENT 

This appeal involves substantial amount of facts. Appellant submits that oral 

argument should be permitted and that it would aid this Court's decisional process 

to emphasize and clarifY the written arguments in the briefs and to respond to any 

questions. 

ISSUES PRESENTED 

The Trial Court Erred in Granting Defendant's Motion for Summary 

Judgment Dismissing the Appellant's Lawsuit 

*Does Not Include Subsidiary Questions which are set out in the Argument 

I. The Trial Court Erred in Granting Summary Judgment Based on Appellant's 

2006 Release and Settlement Agreement with T AMU Corpus Christi 

A. Appellant's 2006 Release and Settlement Agreement with T AMU 

Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant: 

B. Appellant was not prohibited from applying for the Chair opening by the 

2006 Release and Settlement Agreement with T AMU Corpus Christi 

II. The Trial Court Erred in Dismissing Appellant's Lawsuit 

A. Appellant Establishes Direct Evidence of Age Discrimination 

B. Appellant Establishes Circumstantial Evidence of Age Discrimination 

10 
1. Step One: Appellant's Prima Facie Case 

(a) Element No. 1: Appellant is a member of a protected class 

(b) Element No. 2: Appellant was Qualified for the Chair Position 

(1) Appellant Met the Chair Positions Actual Required Minimum 

Qualifications 

(2) Appellant Met the Chair Positions Actual Preferred Qualifications 

(3) Appellant Met the Defendant's Alleged Required Qualifications 

(c) Element No.3: Appellant was subjected to an adverse employment 

action 

(d) Element No.4: defendant hired someone substantially younger 

than Appellant 

2. Step Three: Appellant establishes Pretext: 

Appellant presents sufficient evidence to create a genuine issue of 

material fact of either: 

STATEMENT OF FACTS 

Appellant has filed an age discrimination action based on Defendant hiring a 

substantially younger person for the posted Endowed - Named Chair position in 

2012. 

February 20, 2012: Defendant advertised an opening for the Chair of the 

Department of Accounting and Finance. (CR 1: 780) The Chair Position's written 

job qualification requirements were: (CR I: 782 top) 

11 
Minimum (actual required) Qualifications: 

"Candidates must have 18 graduate hours for every 

field in which they will teach. Candidates must be 

professionally qualified to (I) hold the rank of 

Full Professor and (2) be AACSB Academically 

Qualified (AQ). 

Preferred Qualifications: AACSB Accreditation 

AACSB is an acronym for "Association to Advance Collegiate Schools of 

Business". AACSB provides specialized accreditation for business and accounting 

programs at the bachelor's, master's, and doctoral level. AACSB Accreditation is a 

recognized form of specialized professional accreditation of an institution and its 

business programs. 

Dr.Thomas Dock was the Dean of Department of Accounting and Finance 

beginning to Sept. 13,2012, when Dock was removed as Dean. (CR 1: 667: p.12, 

line 25 to p.l3, line 9; CR 1 :876). During the selection process, Dr.Richard 

Aukerman was the Associate Dean and Search Committee Chair. (CR I: 782) 

At the time of applying: Appellant was sixty-six years old. (CR I: 652, sec. 4). 

Appellant's academia career spanned 40 years including six years employed as an 

Assistant Professor, 15 years employed as an Associate Professor, and 18 years as 

a Full Professor. (CR 1: 799-800) 

Defendant hired Carol Sullivan. who was fifty-one and substantially younger 

(15 years) than Appellant. (CR 1:918: p.48, lines 2-7). 

12 
February 24, 2012: Appellant applied for the Chair position. (CR1: 799) 

March 5, 2012: Carol Sullivan applies for the Chair position (CR1: 823) 

Dean Dock informed Associate Dean Aukerman and Assistant Dean Martin 

Brittain that Dock was going to Carol Sullivan privately off campus; Both 

Dr.Aukerman and Brittain instructed Dean Dock that was wrong and not to meet 

Sullivan. (CR1: 728, p.43, line 14 to p.44, line 8) 

March 20, 2012: Dean Dock ignores policy and drives to Victoria, Texas, to 

privately interview Carol Sullivan. (CR1: 834). Dean Dock arranged for Carol 

Sullivan to come to campus for interview despite the Search recommending not to 

interview Sullivan. (CR 1: 872, sec.1 0) 

July 2012, the Faculty Search Committee met with Carol Sullivan and 

determined that Carol Sullivan was not qualified and 'unacceptable' for the 

Chair position. (CR1: 836-839). 

July 16, 2012: Associate Dean Aukerman, notified Defendant's Hiring 

Manager that the College of Business Search Committee had determined that 

Sullivan was not qualified for the chair position. (CR1: 840) 

August 6, 2012: Dean Dock notified the faculty that he had hired Carol 

Sullivan for the Chair opening and enter into a contract with Carol Sullivan 

who agreed to all terms of employment-- Associate Dean Aukerman and 

Provost Gandy are copied. (CRI: 842-844) 

13 
August 15, 2012: Associate Dean Dr.Aukerman notified Defendant's 

Hiring Authority, that Dean Dock's hiring of Carol Sullivan had been an 

"Inappropriate, unethical, and/or illegal actions of Dean Tom Dock". (CR1: 

871; 872 sec.l 0) 

August 16, 2012: Associate Dean Aukerman notified Provost Gandy that 

the department had determined that Sullivan was not qualified for nor 

acceptable for the Chair position: that "the 9 faculty members who visited with 

Carol Sullivan said she was unacceptable for the Accounting Department 

Chair position, byavoteof8-l." (CR1: 846) 

August 29, 2012: Defendant notified "the search has been successfully 

completed" and Appellant "was not the candidate selected for the position". (CR1: 

852) 

August 31, 2012: Defendant identified on its official 

Applicant log that Carol Sullivan was the candidate 'hired'. (CR1 :885: Sullivan 

'hired'; Vanzante 'not hired') 

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 Department 

of Accounting, and at the professorial rank of full professor". (CR1: 665, p.6, 

lines 15-19) (CR1: 664 for date of deposition). 

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

14 
Ever since Dock's illegal selection I hiring of Sullivan, Defendant has been 

offering new and changing reasons for the selection I hiring of Sullivan to cover up 

the fact that its investigation had found that Dock's hiring Sullivan was an 

Inappropriate, unethical, and/or illegal action. 

August 29, 2012: Appellant requested the reason that Appellant was not hired. 

(CR 1: 852 I 892) 

September 13,2012: Defendant removed Dock as the Dean and Associate Dean 

Aukerman became Interim Dean. (CR I :876) (CR 1: 724, p.29, lines 18-24). 

Provost Gandy instructed Interim Dean Aukerman 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 determined that 

Dr. Carol Sullivan was the most appropriate fit for our needs at this time. " 

Both Interim Dean Aukerman and Provost Gandy knew this reason was false at 

the time it was created to be placed in Defendant's hiring records. Dr.Aukerman 

and Provost Gandy had previously been informed by the Faculty Search 

Committee that Sullivan did not meet the position's required qualifications, was 

15 
not qualified and Dock's hiring of Sullivan was illegal. (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 not qualified 

to. (CR 1: 724, p.29, line 23 to CR 1:725, line 2). (CR 1: 723, p.25, line19 to CR 

1: 724, p.26, line 20) 

Aukerman, as Interim Dean, and Provost Gandy signed off on Dock's hiring 

of Sullivan. (CR 1: 739, p.86, lines 9-15) 

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

DEFENDANT'S FINDING AND KNOWLEDGE OF 

DEAN'S DOCK LACK OF CREDIBILITY AND DISHONESTY 

DURING SELECTION PROCESS 

By August 15, 2012: Defendant had started investigating Dean Dock for 

serious misconduct. Associate Dean Dr.Aukerman had documented and 

reported to Assistant Dean Martin Brittain an extensive and detailed listing of 26 

acts of "Inappropriate, unethical, and/or illegal actions of Dean Tom Dock". 

(CR 1: 871-874). 

Defendant had found that Dean Dock lied and made up reasons to hire Sullivan 

at the time of these events. 

16 
(8) hiring of Carol Sullivan for the Accounting and Finance Department Chair 

position who was not recommended for interview by the search committee and 

who the faculty have voted 8 to I that Sullivan was 'unacceptable'. "Tom Dock 

had decided previously that he wanted to hire her." (CR 1: 872, sec. 1 0) 

December 6, 2012: Defendant I TAMU System Auditor issues its Final Report. 

(CR 1: 878-879) 

The TAMU System Auditor found: Thomas Dock as Dean had: 

(1) Falsification of University Records that rose to level of possible 

violations of the Texas Penal Code Sec.37.10, Tampering with a Governmental 

Record and forwarded for further criminal review. (CR 1: 878) 

(2) Misuse of Donor Funds: Thomas Dock, as Dean, had misused and 

misappropriated money.(CR 1: 878-879) 

(a) Dean Dock made approximately $5,000 in unallowable 

expenditures of donor funds; (CR 1: 878) 

(b) the department had approximately another $63,700 in 

questionable expenditures (CR 1: 879) 

January 14, 2013: Provost Gandy sent notice to Thomas Dock that Dock, 

as Dean had engaged in activities of improper activity: 1) Falsification of 

University Records; 2)Misuse of Donor Funds, and 3) Unauthorized Work 

Locations. (CR 1: 881) 

Dock was not terminated for these senous acts of fraud, misappropriation, 

falsification of documents. (CR I: 881) 

Appellant's 2006 Release and Settlement with Texas A&M Corpus Christi 

In 2006, Appellant had a jury trial against Texas A&M Corpus Christi wherein 

the jury found Appellant had returned a jury verdict finding that T AMU Corpus 

Christi had discriminated against Appellant on the basis of his age awarding 

Appellant lost wages. Appellant entered the Settlement and Release with T AMU 

17 
Corpus Christi after specific sections were included that protected all Appellant's 

future rights of employment with TAMU Kingsville. (CR 1: 771-776, see 773, 

sec.3) 

The 2006 Settlement and Release with Texas A&M Corpus Christi specifically 

provided that Appellant could apply for the position at issue in this suit at any time 

it came open: (CR 1: 778, sec. 3; same as CR 1 :773, sec. 3). 

SUMMARY OF THE ARGUMENT 

Defendant has alleged that it is entitled to a judgment as a matter of law--there are no 

factual disputes. 

Appellant provides evidence that the 2006 Release and Settlement Agreement with 

TAMU Corpus Christi was not a reason Appellant was not hired and allowed Appellant 

to apply for the Chair opening. 

Appellant provides evidence that: Appellant was qualified: met the Chair position's 

actual required minimum qualifications and preferred qualification; met each of the 

alleged qualifications raised in Defendant's Motion for Summary Judgment. 

Appellant provides evidence that Defendant's legitimate non-discriminatory reasons 

are false and a pretext for discrimination. 

Appellant provides evidence of Disparate Treatment of Appellant and the younger 

person hired, Carol Sullivan. 

18 
ARGUMENT 

Standard of Review 

The purpose of a summary judgment is to "provide a method of summarily 

terminating a case when it clearly appears that only a question of law is involved 

and that there is no genuine issue of fact." Rincones v. WHM Custom Serv, 457 

F.3d, 221, 236. citing Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 

(Tex. 1962). 

The Appellate Court reviews a summary judgment de novo. Rincones at 236. 

citing Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no 

pet.). 

In deciding whether there is a genuine issue of material fact, evidence favorable 

to the non-movant is taken as true, and all reasonable inferences are made, and all 

doubts are resolved, in favor of the non-movant. Am. Tobacco Co. v. Grinnell, 951 

S.W.2d 420, 425 (Tex. 1997); 

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

19 
Appellant's 2006 Release and Settlement Agreement with TAMU Corpus 

Christi was not a Basis to grant Summary Judgment 

(A) Appellant's 2006 Release and Settlement Agreement with TAMU 

Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant: 

Defendant alleges that Appellant's suit should be dismissed based there is not 

fact issue regarding Appellant being barred from filing this suit based upon a 2006 

Release and Settlement Agreement. 

Defendant's argument is not relevant to Defendant's MSJ to dismiss Appellant's 

discriminatory failure to hire claim: Appellant's 2006 Release and 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 hiring the younger 

applicant over the Appellant. 

August 29, 2012: Date Defendant notified Appellant of non-hire and that 

someone else had been hired. (CR 1 :852) 

January 7, 2013: the date Appellant would have started working. (CR 1: 780) 

Appellant's 2006 Release and Settlement Agreement with Texas A&M Corpus 

Was Not the Basis Defendant Did Not Hire Appellant 

February 20, 2012: Defendant posted an opening seeking applicants for Chair 

ofthe Department of Accounting to begin working January 7, 2013. (CR 1: 780-

787). Appellant, 66, applied; Carol Sullivan (51) applied. (CR 1: 652, sec. 4). 

20 
Defendant hired Carol Sullivan, the substantially younger candidate. (CR 1: 652, 

sec.4) 

Dean Dock testified Carol, I hired Carol as Chair of the Department of 

Accounting, and at the professorial rank of full professor." (CR I: 666, p.6, lines 

15-19) 

August 6, 2012: Krueger testified that Dean Dock told the faculty that Dean 

Dock had selected and hired Sullivan. (CR 1: 697, p.24, lines 2-8) 

August 6, 2012: Dean Dock hired and contracted with Sullivan: offered 

Sullivan the Chair position and Sullivan accepted. (CR I: 842-844) 

--(Sullivan's acceptance on last page, (CR I: 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) 

Dean Dock then instructed Krueger, Defendant's Director of Research for the 

College of Business, to write the actual basis for hiring Sullivan and the basis for 

not hiring the other four applicants considered for the Chair position, which 

included Appellant. (CR I: 697, p.24, lines 2-14)(CR 1: 848-Krueger's basis). (CR 

1: 701, p.38, lines 8-12), 

21 
August 23, 2012 Dr.Krueger reviewed Appellant's application I resume and 

stated the reason and basis Appellant was not hired was: (CR 1: 1051, bottom; 

Vanzante, Neal) 

"Professor Vanzante left teaching profession two years ago. Although he 

was a professor at Texas A&M University --Kingsville for many years, 

his reference list does not include someone from this institution. Instead 

of helping Texas A&M University--Kingsville, he left to join a university 

that was already accredited. We are interested in someone who is 

willing to work here to make our CBA an AACSB--accredited institution." 

(This was Dr.Krueger's determination and finding). (CR 1: 698: p.26: lines 5-16) 

(*this paragraph is later deleted and rewritten by Dean Dock as shown below) 

August 26, 2012: Martin Brittain (Defendant's Hiring Authority-CR 1: 781 ), 

identified, in its official Applicant History, that Defendant's basis Appellant was 

not hired was: (CR 1: 888) 

Vanzante, Neal: 

Not Hired: "Other, Was at TAMUK, but left. Reference list does not include 

anyonefro(m) TAMUK. Need someone who will work to help 

TAMUK achieve AACSB accreditation". (CR 1: 888) 

August 29, 2012: Appellant was notified that he was not hired and then 

requested the reason he was not hired. (CR 1: 852) 

Dean Dock instructed Krueger to change the reason Appellant was not hired--

that of the four non-hired qualified applicants, Dock only changed the reason for 

22 
not hiring Appellant: Dock's "changes dealt with Neal Vanzante" (CR 1: 697, 

p.25, line 15); 

Dean Dock provided the new 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). 

Dock's new reason: (CR 1: 850) 

Dr. Vanzante does not meet the two salient position requirements: (I) 

professorial experiences that meet the current college expectations of a Full 

Professor and (2) AACSB Academically Qualified (AQ) status. 

*this document is dated August 23, 2012, but the evidence above supports that 

Dock created this document after Krueger's original Aug 23, 2012, document, after 

Defendant's Aug 26, 2012, reason, and after Appellant's Aug 29, 2012, request for 

the selection basis. 

Defendant has found that, during this same time period, Dock has a record of 

falsifying University documents.(CR 1: 878) 

Summarizing: Appellant's 2006 Release and Settlement Agreement with T AMU 

Comus Christi is not relevant to Appellant's Discrimination Claim of Failure to 

Hire because it was not a basis for Defendant's decision not to hire Appellant 

B. Appellant VanZante Was NOT Prohibited From Applying for the Chair 

Position by the 2006 Release and Settlement Agreement with T AMU-CC. 

(response to defendant's argument beginning CR 1:298) 

The 2006 Release and Settlement Agreement ("Agreement") with TAMU-CC 

provided Appellant could apply for the Chair opening. 

23 
Appellant has produced evidence that the 2006 Release and Settlement 

Agreement with T AMU-CC provided that Appellant could apply for the opening 

with Defendant Texas A&M University Kingsville. 

The last sentence in Section 3 of Appellant's 2006 Release and Settlement 

Agreement with TAMU Corpus Christi provides: CR 1: 778, sec. 3, last sentence 

sec. 3; CR 1: 773, sec.3, last sentence). 

"The Parties further agree that this paragraph (Paragraph 3) shall not 

!H!1!!J!. to any applications Appellant may make to Texas A&M University--

Kingsville, for employment in positions such as an endowed chair position that 

mav become available after the execution ofthis agreement. " 

Appellant filed this action based upon discriminatory actions by Defendant 

T AMU Kingsville related to Appellant's application process and non-hiring of an 

endowed Chair position that became available after the execution of the 2006 

Settlement and Release with T AMU Corpus Christi. 

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). 

Dean Dock testified that "a named Chair is an endowed Chair", and the 

opening was for an endowed Chair. (CR 1: 666 at p.9, lines 7-8; p.29, line 22 to 

p.30, line 3). 

24 
---====' 

Paragraph 3, Last Sentence 

Appellant knew that T AMU Kingsville had been wanting to have an Endowed 

Chair and T AMU Kingsville would continue to be working on establishing this 

position. (CR I :658: sec.30). The Parties added the last sentence to Section 3 

allowing Appellant an unqualified right to apply for an endowed chair opening 

without any restriction and not subject to any restriction. (CR I: 658: sec.30) 

The parties clearly put in writing and agreed in the last sentence of Section 3 as 

a stand alone provision: 

"The Parties further agree that this paragraph (Paragraph 3) shall not applv to 

any applications Appellant may make to Texas A&M University--Kingsville, for 

employment in positions such as an endowed chair 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--Iast sentence). 

IF Defendant's changes, as set out in its Motion, were part of the terms in the 

2006 Settlement and Release for Appellant's application to a Chair opening at 

T AMU Kingsville, THEN these terms would have been added to the wording of 

the 2006 Settlement and Release with T AMU Corpus Christi regarding Appellant's 

application for a Chair opening. (CR 1:660, sec.36; p. 659, sec. 35) 

Appellant could have then accepted or rejected the limitation and wording. 

Appellant would have rejected any Settlement and Release that restricted 

25 
Appellant's right to return to work for Defendant or to apply for a Chair opening at 

TAMU Kingsville. (CR I: 655 sec.l5; p.654, sec.IO) 

Just the opposite: such a restriction and meaning, as now asserted by T AMU 

Kingsville, was not included and the TAMU Corpus Christi Settlement. The 

T AMU-CC Settlement and Release sets out the parties' intention regarding the 

Appellant's right to apply for the Chair opening at any time: that there is no 

restriction that Appellant be currently employed with the Defendant in order to be 

eligible to apply for an endowed Chair opening. (CR I: 778, sec. 3, last sentence) 

Appellant's Departure to work at UTPA 

The Release and Settlement Agreement was executed in September of 2006 

(CR 1:776); 

Beginning in early 2007, Appellant discussed with his Dean, Dr. Jane Stanford, 

Appellant taking a leave of absence from Defendant in order to gain the 

experience that would benefit T AMUK in its AACSB accreditation process. 

Defendant had been planning to seek AACSB accreditation. (para from CR I: 654, 

sec.ll-13 ). 

Appellant had included a provtsiOn m the 2006 T AMU Corpus Christi 

Settlement and Release Agreement that specifically provided for this situation: 

(CR 778: sec.3) 

26 
"The Parties further agree that, for the purposes of this Agreement, any actions 

~r apP_lications required of Appellant by Texas A&M University--Kingsville, 

mcludmg but not limited to applications for renewal of tenure and applications for 

summer teaching at Texas A&M University--Kingsville, shall be exempt from the 

restrictions set forth in Paragraph 3. " 

In 2007, the opportunity arose that Appellant could work at University of 

Texas Pan American (UTPA) which was an AACSB accredited doctoral granting 

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: 

(a) Appellant requested verification from both Dr. Kay Clayton (Provost) 

and Dr. Jane Stanford (Dean of the College of Business Administration) that the 

2006 Settlement and Release Agreement allowed for Appellant's 'resignation" and 

"reapplication" with Defendant--T AMU Kingsville. (CR 1: p.654, sec.14 ); 

(b Appellant requested that both, Dean Stanford and Provost Clayton, 

contact T AMU System Attorneys to confirm that this would be acceptable under 

the 2006 TAMU Corpus Christi Settlement and Release Agreement. (CR 1: p.654, 

sec.14). 

Dean Stanford instructed Appellant that Appellant resigning and returning at a 

later date would be acceptable to Defendant and acceptable under the 2006 T AMU 

Corpus Christi Settlement and Release Agreement. (CR 1: p.655, sec.14). 

27 
Dean Stanford told Appellant that Appellant's resignation from Defendant and 

returning work with the Defendant at a later date was acceptable to the Provost 

and the System. (CR 1:p.655, sec.15). 

Appellant would not have left his position at T AMUK and would have 

rejected the offer to join the University of Texas Pan American if Defendant had 

not agreed that Appellant was allowed to resign in 2007 and return at a later date to 

work for Defendant under the 2006 Settlement 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) 

On June 1, 2007: After Appellant had received Dr.Stanford's confirmation: 

Appellant submitted his letter of resignation to Dean Stanford (Defendant) 

confirming that Appellant could resign and return to work for the Defendant in the 

future. (CR 1 :p. 789) 

June 4, 2007: Dean Stanford, on behalf of President Juarez and Provost 

Clayton, accepted Appellant's letter of resignation and right to return to work for 

the Defendant at a later date. (CR 1 :p. 789) Defendant's agents and representatives 

to the email were: (CR 1:760, p.57, line 20 to CR 1: p.59, line 11) 

Jane Stanford: 

Stuart Isdale: 

Kay Clayton: 

President Juarez: 

Pamela Trant: 

Interim Dean of College of Business 

Defendant's Director of Human Resources 

University Provost 

President of the University 

Senior Administrative Assistant 

28 
Robert Diersing: 

Ms. Guajardo: 

Richard Aukerman: 

Former Dean of College of Business 

University Office Manager 

Department Chair, 

Defendant's Own Records Evidence that Appellant Was Not Barred From 

Leaving and Returning to Work for Defendant 

June 7, 2007: Defendant accepted Appellant's letter of resignation and right to 

return to work for Defendant at a later date. (CR I :789) 

Thereafter Defendant accepted Appellant's applications for openings at T AMU 

Kingsville after 2007. 

October 18, 2010: Following Appellant's application for Department Chair, 

Defendant notified Appellant of non-selection and adds "we hope you will continue 

to give our institution consideration for employment". (CR 1 :p. 791) 

March 29, 2011: Following Appellant's application for Assistant Professor, 

Defendant notified Appellant that Defendant did not hire anyone for the Assistant 

Professor position and adds "we hope you will continue to give our institution 

consideration for employment". (CR I :p. 792) 

August 29, 2012: As concerns the Chair position at issue in this suit: 

Defendant notified Appellant of non-selection and informs Appellant: "we hope 

you will continue to give our institution consideration for employment". (CR 

l:p.793) 

29 
-----------------------------------------

Section 3: "Paragraph 2" 

Appellant was first provided a Version of the Settlement and Release that 

contained only the one paragraph, number 3, which was unacceptable because it 

did not protect Appellant's employment at TAMU Kingsville where Appellant had 

taught for over 18 years. (CR 1: 656: sec.23) 

TAMUK officials (Department Chairs, Deans, and Provost Kay Clayton) 

and Appellant had been discussing for several years the benefit to T AMUK of 

Appellant taking a "leave of absence" and the fact the leave would require a 

"resignation" followed by a "reapplication" if the period was for more than one 

academic year. The specific benefit to T AMUK was considered to be the first 

hand AACSB experience for Appellant, Defendant's senior accounting faculty 

member who would then bring this experience back to T AMUK for purposes of 

pursuing AACSB accreditation. For that reason, it was important to exclude 

T AMUK from the prohibition of the stand-alone paragraph 3. (para from CR 1: 

656-657: sec. 24) 

The next version of the Release offered was a two sentence paragraph (marked 

TAMU-002126). Appellant accepted wording that Appellant was not required to 

resign at Tamu Kingsville where Appellant was a Professor of Accounting. 

Appellant objected to the rest of the paragraph as is because it did not set out the 

30 
conditions Appellant required to protect his opportunities as Tamu Kingsville 

where Appellant had taught for over 18 years. (para from CR 1:657: sec. 25) 

Appellant had already had discussions with the T AMU Kingsville, as set out 

above, regarding Appellant taking action of leaving T AMU Kingsville to obtain 

AACSB accreditation and AACSB accreditation experience (which TAMU 

Kingsville needed in its AACSB accreditation process) and then returning to 

T AMU Kingsville. T AMU Kingsville would require Appellant and its professors 

to become AACSB AQ in its accreditation process. (CR 1:657, sec.26). 

The Parties then agreed to insert the next to last sentence which clearly 

clarified Appellant's right to take any action necessary to maintain his current 

position which was going to be required by T AMU Kingsville to become AACSB 

AQ accredited. (CR 1: 658: sec.28) 

Sec.3: Next to Last Sentence: (CR 1: 778, p.3, sec. 3; p.774, sec. 3) 

The Parties further agree that, for the purposes of this Agreement, any 

actions or applications required of Appellant by Texas A&M University--

Kingsville to maintain his current position of Professor of Accounting, including, 

but not limited to applications for renewal of tenure, applications for summer 

teaching at Texas A&M University--Kingsville, shall be exempt from the 

restrictions set forth in Paragraph 3. " 

The third sentence clearly states that "any actions or applications" required to 

maintain Appellant's current position" shall be exempt. This wording specifically 

allowed for T AMUK and Appellant to take the "action" which would allow for 

31 
Appellant's "reapplication" following Appellant gaining the first-hand AACSB 

experience and getting a record of being AACSB AQ. (para from CRl :658: sec.28) 

II. The Trial Court Erred in Dismissing Appellant's Age Discrimination 

Lawsuit 

A. Appellant Establishes Direct Evidence of Age Discrimination 

Appellant submits that he has provided direct evidence to support a factual issue 

for a jury to determine Appellant's action for age discrimination. 

If a material fact is supported by direct evidence, then the issue must be 

submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 

1975) 

Pattern Jury Charge 100: "a fact is established by direct evidence when proved 

by documentary evidence or by witnesses who saw the act done or heard the words 

spoken." PJC 100 

Appellant filed a failure to hire cause of action based the wrongful hiring of 

Sullivan and Defendant hiring a substantially younger person--Sullivan (age bias) 

32 
Expressions may be "direct evidence" of motivation "when they are related to 

the specific employment decision challenged, and made close in time to the 

decision." Quality Dialysis, Inc. v. Adams, 2006 Tex. App. LEXIS 4921, 

Documentary Evidence 

Defendant admits Dean Dock's Hiring of Carol Sullivan was Wrongful I Illegal 

Defendant's internal investigation conducted at the time of the failure to hire 

Appellant and the hiring of Carol Sullivan determined that the hiring was an 

"Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR 1: 

872, sec. 1 0) 

August 15, 2012: Associate Dean Aukerman notified and warned Martin 

Brittain, the Defendant's Hiring Authority for the Chair selection process, that 

Dean Dock's hiring of Carol Sullivan was inappropriate, unethical, and/or illegal. 

Dr.Aukerman determined that: : (CR 1: 872, sec. 10) 

Sec ( 1 0) hiring of Carol Sullivan for the Accounting and Finance Department 

Chair position who was not recommended for interview by the search committee 

and who the faculty have voted 8 to 1 that Sullivan was 'unacceptable'. "Tom Dock 

had decided previously that he wanted to hire her." (CR 1: 872, sec. 1 0) 

(*Defendant produced this document after Dr.Aukerman's deposition) 

Defendant admits facts to establish age as basis I motivating factor 

for wrongful hiring of Sullivan 

Defendant admits that Sullivan, the person hired, was substantially younger 

than Appellant (CR 1: 301, sec. A). Appellant has also provided evidence to 

33 
support a finding of age bias: Sullivan was significantly younger, 15 years, than 

Appellant. (CRI: 871, 872 sec. 10). 

Defendant's admissions establish a factual issue for a jury and support a 

finding of wrongful age discrimination in this matter. 

PLAINTIFF ESTABLISH CIRCUMSTANTIAL EVIDENCE 

OF DISCRIMINATION 

To establish a prima facie case of employment discrimination the Appellant must 

show: 

( 1) he was a member of a protected class, 

(2) he was qualified for his employment position, 

(3) he was subject to an adverse employment decision, and 

(4) he was replaced by someone outside of the protected class, or 

he was treated less favorably than similarly situated members of the opposite 

class (disparate treatment cases)." Rincones v. WHM Custom Serv, 457 

SW3d 221, 234 citing Michael v. City of Dallas, 314 S.W.3d 687, 690-91 (Tex. 

App.-Dallas 2010, no pet.) 

If the Appellant establishes a prima facie case, then the burden shifts to the 

defendant to "produce evidence that the Appellant was rejected, or someone else 

was preferred, for a legitimate, nondiscriminatory reason." Tex. Dep't of Cmty. 

Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 

34 
APPELLANT'S PRIMA FACIE CASE 

Step One: 

Element No. 1: Appellant is a member of a protected class 

Defendant does not contest this element. (CR 1: 301, sec.II, A) 

Appellant was 66 years of age at the time of the employment decision not to hire 

Appellant for the advertised Chair of the Department position,. (CR1: 652: sec. 4). 

Texas Labor Code Sec. 21.101 defines the protected class of age as "an individual 

40 years of age or older". 

Element No.2: Appellant was qualified for the Chair position, 

Appellant met 

the Chair position's actual required minimum qualification requirements; 

Actual Job Posting 

Stated 'Required Minimum' and 'Preferred Qualifications' 

(Current Employment Not Requirement) 

The Chair Position's written job posting: (CR 1: 782 top) 

Minimum (actual required) Qualifications: 

Preferred Qualifications: 

"Candidates must have 18 graduate hours for every 

field in which they will teach. Candidates must be 

professionally qualified to (1) hold the rank of 

Full Professor and (2) be AACSB Academically 

Qualified (AQ). 

AACSB Accreditation 

35 
====== 

CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO.1 

Appellant was Professionally Qualified to hold the rank of Full Professor 

Dr.Richard Aukerman, 

Search Committee Chair and Associate Dean of the Department 

Assoc.Dean Aukerman provides evidence that Appellant met all Defendant's 

requirements to be hired as a Full Professor. 

Dr.Aukerman began employment with the defendant in 2002; promoted to 

Chair of the Department of Accounting and Computer Information Systems in 

2002; then promoted to Interim Dean of the College of Business Administration in 

January 2009; became Associate Dean of College of Business Administration (2nd 

highest ranking administrator) in July 2010 after Thomas Dock was hired as the 

Dean; was promoted back to Interim Dean in September of 2012; became 

Associate Dean in September of2013. (Ex. 4: p.10, line 19 to p.l3, line 5). 

Dr.Aukerman testified that, while employed with the Defendant, Dr. 

Aukerman had been involved in "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 involved in majority of the hiring "more than half of the faculty that are 

currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.l9, line 25 top. 20, 

line 19). 

36 
Dr. Aukerman had first-hand knowledge of working with Appellant for six (6) 

years: 2002 to 2007. (auk: p.8, lines13-19; presume, p. ) (CR 1: 782 mid page). 

Assoc Dean Aukerman, testified, based on Aukerman's experience with 

Defendant's hiring process, evaluating applicants, his administrative experience, 

and, after reviewing Appellant's application -- resume, that: 

Appellant was qualified to be hired as a "Full Professor". 

(see CR 1: 738, p.82, lines 5-21)(Appellant's application at CR 1: 797-819; 

teaching employment history at CR 1: 800). 

Aukerman reviewed his deposition testimony, confirmed Appellant was 

qualified to be a Full Professor: made no changes to this testimony and made other 

corrections. (CR 1: 741-742) 

Appellant's cover letter I resume set out Appellant's work history including that 

Appellant's most last teaching position was as Associate Professor of Accounting, 

University of Texas Pan American, Edinburg, Texas, September, 2007 to May of 

2010. (CR 1: 799, 800) Appellant applied for the Chair position in February of 

2012. (CR 1: 797-919) 

Aukerman establishes that Appellant's break in classroom teaching time and 

not being currently teaching at time of applying was 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). 

37 
============================== 

Additional Evidence to find Appellant was Qualified to Hold the Rank of Full 

Professor 

Appellant has been qualified by as a Full Professor by Defendant for 18 years : 

1999 to 2007 (CR 1: 799-800; CR 1: CR 1: 651, sec 2) 

Appellant was employed by the Defendant from August, 1989 through the 

summer of 2007. Defendant'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 individual to have held the rank 

of Associate Professor (or higher) for at least five years prior to being eligible for 

appointment to Full Professor. (Ex. 1: p.2, sec. 3; Ex.36-3 ---tamu 0196) 

Appellant met this and all qualifications to hold the position of Full Professor 

Defendant had qualified and employed Appellant in the rank of Full 

Professor for 18 years. (CR 1: 799-800 -applic I resume; CR 1: 650-651, sec. 7; 

CR 1: 653, sec. 1 0). 

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

CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO. 2 

APPELLANT WAS AACSB ACADEMICALLY QUALIFIED 

Dr. Aukerman 

Associate Dean Aukerman, Chair of the Search Committee, 

Testified Appellant Met Defendant's AACSB Academically Qualified 

Requirements 

38 
Association Dean Aukerman was the Chair of the Chair Search Committee. (CR 

1: 782 mid page). 

Assoc. Dean Aukerman testified that, while employed with the Defendant, 

Dr. Aukerman had been involved in "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 involved in majority of the hiring "more than half of the faculty 

that are currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.19, line 25 

top. 20, line 19). 

February 24, 2012: Assoc Dean.Aukerman informed Appellant, that to meet 

requirement to be AACSB Academically Qualified, the Defendant required a 

minimum of three (3) publications from 2009 to the time of applying in 2012. (CR 

914). In the period from 2009 to applying in 2012, Appellant had published eight 

peer reviewed articles, including eight listed in Cabels with acceptance rates less 

than 30%. (CR 1: 803-804 --resume; CR 1: 652-653, sec. 7) 

Assoc. Dean Aukerman reviewed Appellant's resume, publication record and 

the AACSB Section 10 accreditation standards: Aukerman then testified that: 

Appellant was and met the Defendant's AACSB Academically Qualified 

requirements for the position. (CR 1: 738, p.82, lines 2-20). 

39 
Aukerman reviewed his deposition testimony, confirmed this testimony that 

Appellant was AACSB Academically Qualified: made no corrections. (CR 1: 741-

742) 

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

Additional Evidence 

Appellant Was Classified as AACSB AQ 

and 

Satisfied Defendant's AACSB AQ Standards 

Appellant was employed at Univ. of Texas Pan American (UTPA) , from 

2007, to May 2010. UTPA is an AACSB accredited university and Appellant was 

certified AACSB AQ status during his employment at UTP A and gained AACSB 

accreditation knowledge during employment at the UTP A. (CR 1: 890)(CR 1: 

660-61, sec. 39-40). (CR 1: 652, p.3, sec. 5) 

Defendant TAMU-K was a Master's Degree granting university. UTPA was a 

doctoral degree university. Dean Dock testified that the AACSB AQ standards at 

UTPA, a doctoral degree granting university, would be more stringent that 

defendant's standards, a masters degree granting university. ( CR I: 682: p.72, 

lines 1 0-15) (see also CR 1: 652, sec. 5 of Appellant's Affidavit). 

40 
Dr. Krueger was defendant's Director of Research, whose job was to 

analyze research for AACSB purposes, at the time of the hiring selection in this 

lawsuit. (Ex.3: p. 67, lines 17-23). 

Both Dr.Krueger and Assoc. Dean Aukerman establish that Appellant needed 

only 3 articles in the prior five year period to meet AACSB AQ accreditation 

standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24 email 

Appellant's publications vastly exceeded the amount required for AACSB 

AQ status: In the immediate three year period (2009-2012) prior to Appellant's 

application to Defendant, Appellant had a total of eight acceptable quality 

publications (all of which were in journals with acceptance rates ofless than 30% ). 

(Ex. 1: p.3, sec.6)(Ex.11: Appellant's application). 

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 Academically Qualified at the 

time of his application process. (CR I: 890, 799, 800; CR 1: 652, sec. 6 

Younger Applicant: No record of being AACSB AQ accredited 

41 
Carol Sullivan, the younger applicant hired, had no record of being AASCB 

accredited. (CR I: 821-832) 

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT's 

REASONS 

FOR THE ACTUAL HIRING DECISION 

Defendant's Motion for Summary Judgment alleges more new reasons for its 

Decision not to hire Appellant 

Defendant's Motion for Summary Judgment alleges new reasons, which were 

not part of the actual selection and hiring decision, process that Appellant was not 

qualified for the position and that Sullivan was the most qualified. 

Defendant's new reasons are: 

( 1) Appellant did not meet the 'general qualifications' of 'leadership, 

administration, and interpersonal and professional communication'. (CR 

1:301-302, sec. A, i) 

(2) Appellant was not qualified to hold the rank of Full Professor based on a 

new position required qualification that applicant must be 'a professional, a 

facilitator, and a trustee'. (CR I: 303-304, sec. i)\ 

(3) Appellant was not AACSB Academically Qualified based on a new position 

required qualification that Appellant must be continuously employed at the 

time of application or Appellant would not be AACSB Academically 

Qualified. (CR I: 304-305, sec. ii). 

*Defendant asserted this same 'continuously employed' argument and 

presented the same exhibits to Judge Vela who denied Defendant's Plea to 

Jurisdiction and No-Evidence Motion for Summary Judgment. (CR 291, 

292) ( CR 1: 23-111-- Defendant's Argument and Evidence) 

42 
Appellant provides evidence that: 

(b) Appellant met Defendant's MSJ's new qualification requirements; 

(c) Defendant's new required qualification requirements were not used in 

the actual hiring decision-making process; 

(d) Defendant's new required qualification requirements are based on ten to 

fifteen year old documents that were part of the application process and were not 

used in the actual hiring decision-making process; 

(e) Disparate Treatment: Defendant's MSJ's new qualification requirements 

were not applied to younger candidate hired (Sullivan): Defendant determined 

Sullivan did not meet required qualifications 

Defendant Admitted to the EEOC Investigator 

that Appellant met all required Qualifications for the Chair Position 

that Defendant alleges Appellant did not meet 

Defendant had actually determined that Appellant met the mtmmum 

requirements to be: professionally qualified to (1) hold the rank of Full Professor 

and (2) be AACSB Academically Qualified (AQ), that Defendant's MSJ asserted 

Appellant did not meet. 

Defendant admitted to the EEOC that Appellant met the Chair position's 

minimum required qualifications. (CR I: 865-866) 

"The application system determined three applicants did not meet minimum 

qualificatation, leaving five candidates who did meet minimum qualifications. 

These were: 

43 
Dr.Neal Vanzante" 

plus 4 others 

Defendant's Written Job Posting identified the 'Minimum Qualifications' as: (CR 

1: 782) 

Candidate must be professionally qualified to: 

(1) hold the rank of Full Professor and 

(2) be AACSB Academically Qualified (AQ). 

Defendant's New Reasons Were not a Basis in the Actual Hiring Decisionmaking Process 

Defendant's Written Basis for the Not Hiring Appellant 

August 6, 2012: Dean Dock announced to the faculty that Sullivan was hired 

for the Chair position--- that Dean Dock hired Sullivan. (CR 1: 697: p.24, lines 2-

8) After Dean Dock's announcement that Sullivan was hired, Dean Dock 

instructed Krueger to write the basis for hiring Sullivan and the basis for not hiring 

the other four applicants considered eligible for the Chair position, which included 

Appellant. (CR 1: 697, p.24, lines 2-14)(CR 1: 848). 

August 23, 2012: date of Dr.Krueger's determination of the reason and basis 

Appellant was not hired was: (CR 1: 848, bottom; Vanzante, Neal) 

"Professor Vanzante left teaching profession two years ago. Although he 

was a professor at Texas A&M University -- Kingsville for many years, 

his reference list does not include someone from this institution. Instead 

44 
of helping Texas A&M University--Kingsville, he left to join a university 

that was already accredited. We are interested in someone who is 

willing to work here to make our CBA an AACSB--accredited institution." 

August 26, 2012: Defendant identified the same basis Appellant was not hired 

was: (CR 1: 888) 

Vanzante, Neal: 

Not Hired: "Other, Was at TAMUK, but left. Reference list does not include 

anyone.fro(m) TAMUK. Need someone who will work to help 

TAMUK achieve AACSB accreditation". (CR 1: 888) 

August 29, 2015: Appellant made an 'official request' for the reason 

Appellant was not hired. (CR 1: 852: top email). 

Of the Four Non-Selected Applicants: 

Dean Dock instructed Krueger to change ONLY the basis for not hiring 

Appellant 

There were five applicants considered qualified for hiring. (CR 1 848, 850). 

Krueger testified that there a pool of five applicants considered for the position. 

(CR 1: 700, p.40, lines 3 to 5). The five qualified applicants considered for the 

position were: (CR 1: 850, 848) 

Carol Sullivan 

Ghosh, Dilip 

Haque, Mohammed 

Robbani, Mohammad 

Vanzante, Neal 

45 
As to qualified candidates not hired: Dean Dock only changed the reason for 

not hiring Appellant (Neal Vanzate); Dock did not change the reasons for the other 

three candidates considered for, but not hired for, the Chair opening. (CR 1: 850, 

848)(CR 1: 697, p.25, line 15). 

Dean Dock's New Reason Appellant was Not Hired 

Dean Dock removed Krueger's entire determination and replaced it with: (CR 

1: 850) 

Vanzante, Neal: 

Dr. Vanzante does not meet the two salient position requirements: 

(1) professorial experiences that meet the current college expectations of a 

Full Professor and (2) AACSB Academically Qualified (AQ) status. 

This is in a document dated August 23, 2012. (CR 1: 850). Appellant submits 

that the above facts and timeline support an inference that Dean Dock changed the 

reason for Appellant's hiring after Appellant's August29, 2012, request Defendant 

to produce the hiring basis. 

During this time period, Defendant had found that Dock falsified records, 

misused funds and lied about other employment hirings. (CR I: 871-874; 878-879) 

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

46 
KRUEGER'S BASIS APPELLANT WAS NOT HIRE INFERS PLIANTIFF MET 

THE POSITIONS TWO REQUIRED QUALIFICATIONS 

The Chair Job Posting identified two required Minimum Qualifications: (CR 1: 

782) 

Minimum Qualifications: "Candidates must have 18 graduate hours for every 

field in which they will teach. Candidates must be 

professionally qualified to (1) hold the rank of 

Full Professor and (2) be AACSB Academically 

Qualified (AQ). 

The evidences supports the fact that: Dr.Krueger, Defendant's Director of 

Research, reviewed Appellant's application as applied to the job requirements, and 

determined Appellant met the two salient position requirements: (1) professorial 

experiences that meet the current college expectations of a Full Professor and (2) 

AACSB Academically Qualified (AQ) status BUT WAS NOT HIRED for 

"other" reasons: (CR 1: 848) 

"Professor Vanzante left teaching profession two years ago. Although he 

was a professor at Texas A&M University-- Kingsville for many years, 

his reference list does not include someone from this institution. Instead 

of helping Texas A&M University--Kingsville, he left to join a university 

that was already accredited. We are interested in someone who is 

willing to work here to make our CBA an AACSB--accredited institution. 

Dr.Krueger did not find that Appellant did not meet the position's required 

minimum requirements. (CR 1: 848; 782- job posting) 

The evidences supports the fact that: Defendant's Hiring Authority determined 

Appellant met the two salient position requirements: (1) professorial experiences 

47 
that meet the current college expectations of a Full Professor and {2) AACSB 

Academically Qualified (AQ) status BUT WAS NOT HIRED for "other" 

reasons: (CR 1: 888) 

Other, Was at TAMUK, but left. Reference list does not include 

anyonefro(m) TAMUK. Need someone who will work to help 

TAMUK achieve AACSB accreditation". (CR 1: 888) 

DEFENDANT'S NEW GENERAL QUALIFICATION REQUIREMENT 

of 

Leadership,Administration, Interpersonal and Professional Communication 

Defendant's Motion for Summary Judgment alleged Appellant was not qualified 

because : 'Appellant did not meet general qualifications' of Leadership, 

Administration, Interpersonal and professional communication. (CR I: 301-302). 

These newly asserted requirements were not used in the decision to hire the 

Chair and not part ofthe hiring decision process. 

Defendant's alleged required qualification of skills of Leadership, 

Administration, Interpersonal and professional communication (CR I: 30 1-02) 

were not part of the actual position's posted required minimum or preferred 

qualifications and not considered during the selection process identified in the Job 

Posting under 'Minimum Qualifications' and 'Preferred Qualifications'.(CR I: 782) 

Appellant incorporates his facts in the decision process set forth above in 

support. 

48 
New Requirements of 

Leadership,Administration, Intemersonal and Professional Communication 

Not Applied to Younger Candidate Selected 

Evidence also supports a finding that defendant did not use these alleged 

general qualifications in the decision-making process as they were not applied to 

Sullivan, the younger applicant hired, whom Defendant's Search Committee and 

Chair had determined did not meet the position's required qualifications-thereby 

not meeting these alleged general qualifications' of Leadership, Administration, 

Interpersonal and professional communications. (CR 1: 836-838, 840, 846). 

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

APPELLANT MET THIS REQUIREMENT 

Appellant provides evidence that Appellant met 

the alleged basis of general requirements for Full Professor 

of Leadership, Administration, Intemersonal and professional communications. 

Appellant possessed these skills in Leadership, Administration, Interpersonal 

and professional communication" as shown in Associate Dean Aukerman's 

testimony Appellant was qualified to hold the position of Full Professor, had held 

the position of Full Professor with the Defendant for 18 years, and Appellant's 

application resume. 

49 
Associate Dean Aukerman had worked in the College of Business with 

Appellant from about 2002, to 2007, and had first-hand knowledge of Appellant's 

skills. (CR 1:720, p.10,line 19, to p.l3, line 5). Aukerman testified Appellant 

possessed skills of 'Leadership, Administration, Interpersonal and professional 

communications' (CR 1: 719, p. 8, line 13 to p.9, line 12): 

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 Administration. 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 like something called a 

Regents Professorship? 

A Yes. 

Q What is that? 

A That's an award that the A&M system gives to faculty members who have 

performed above and beyond the call of duty, I guess you could say, in, over a 

number of years at the university. 

Q And what about any nominations for outstanding faculty here at T AMUKingsville? Have you ever--

A Well, I remember I nominated him for an Outstanding 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. 

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

50 
Appellant's Application and Resume 

Appellant's Employment with the Defendant established that Appellant possessed 

these newly alleged general requirements of 

"Leadership, Administration, Intemersonal and Professional Communication". 

Appellant's application and resume provides sufficient evidence that Appellant 

possessed skills of Leadership, Administration, Interpersonal and professional 

communication. 

The employment decision not to hire Appellant was made in August of2012. 

From 2001 to 2007 Appellant received above Exceptional Annual Evaluations 

each year. (CR 1: 660, sec. 38) (CR 1: 817) January- December 2005: Appellant 

received above exceptional evaluation. (CR 1: 859) January- December 2006: 

Appellant received above exceptional evaluation. (CR 1: 860) 

Appellant's application evidenced that, from 2003 to 2012, Appellant received 

consistent performance and achievement awards while employed by Defendant and 

thereafter: (CR 1: 816) 

Honors and Achievements 

While employed with Defendant: (CR 1: 816) 

Texas A&M University-Kingsville, College of Business Administration, 

Students' Choice Distinguished Teaching Award (May 2003). 

Texas A&M University-Kingsville, President's Senior Faculty Research and 

Scholarly Excellence Award (March 2004). 

This award was only given in 2004. 

Texas Society of Certified Public Accountants, Outstanding Accounting 

Educator Award (2005). 

Corpus Christi Chapter of the Texas Society of Certified Public Accountants, 

51 
2007 to 2012(CR 1: 816) 

Outstanding Service Award (2007-2008). 

Southwest Region ofthe American Accounting Association, Outstanding 

Educator Award (2009). 

Institute of Management Accountant's Lybrand Certificate of Merit Award for 

outstanding character and excellence in contributing to the literature for 

the advancement of management accounting and financial management. 

(2011). 

Appellant's Service with Defendant for most recent 12 Years (CR 1:815) 

Beginning in 1990, through 2007, Appellant was a member of twelve (12) 

Defendant College of Business Committees, including five (5) promotion, tenure, 

search committees, a University Promotions Appeal Committee (2005), 

Presidential Travel Support Committee (2005-2007), Accounting Faculty Search 

Committee as both Chair and member. (2003, Chair, 2004, and 2006 member) 

Teaching Excellence (CR 1: 817) 

Teaching Record with the Defendant: ( CR 1 : 81 7) 

While employed with Defendant from 1989 to 2007, Appellant's overall student 

evaluations were significantly higher than the Department of Accounting, College 

of Business and University averages. (CR 1: 817, mid page) 

Teaching Record with Univ of Texas Pan American 2007 to 2010: (CR 1: 817, top) 

Appellant's overall student evaluation was 4.62 on a 5 point scale. 

52 
Professional Service in Appellant's Field of Accounting 

, Appellant served on board of directors and committees of nonprofit 

organizations, providing professional services for the Texas State Board of Public 

Accountancy, and serving on editorial boards. (CR 1: 814, top). 

Disparate Treatment 

Defendant did not apply these 'general qualifications' 

to the Younger Person Hired: Carol Sullivan, 

Defendant's Own Records Establish Carol Sullivan did not possess these 'general 

qualifications' of Leadership, Interpersonal and Professional Communications 

The Chair Search Committee members' actual evaluations of Sullivan establish 

Sullivan did not possess this newly alleged general qualification of 'Leadership, 

Administration, Interpersonal and professional communications' The Chair Search 

Committee members made the following written factual findings: 

(1) Determined that Sullivan did not meet the position's required 

qualifications and not acceptable for the Chair position finding: (CR 1: 

838) 

(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 with our students." 

(2) Determined that Sullivan did not meet the position's required 

qualification and not acceptable for the Chair position finding that 

Sullivan did not exhibit a positive feel to others:(CR 1: 837) 

53 
(3) Determined that Sullivan did not meet the position's required 

qualifications and not acceptable or the Chair position : (CR 1: 836) 

Associate Dean Aukerman, the Chair of the Search Committee, determined 

Sullivan did not meet qualification requirements for the Chair opening: therein did 

not possess these same newly alleged general qualifications of 'Leadership, 

Administration, Interpersonal and professional communications'. 

(1) July 16, 2012: Associate Dean Aukerman notified the Hiring Manager 

that the faculty had determined Sullivan did not possess required 

qualifications and Sullivan was not qualified to be hired. (CR 1: 840) 

(2) Aug 15, 2012: Dr.Aukerman notified the Hiring Manager that Dean 

Dock's hiring of Carol Sullivan was an "Inappropriate, unethical, and/or 

illegal action". (CR 1: 871,872 sec.lO) 

(3)August 16, 2012: Dr.Aukerman notified Provost Gandy that Sullivan did 

not meet the position's qualifications and not qualified to be hired.(CR 

1 :846) 

Sullivan's Employment as Chair Confirm the Findings that 

Sullivan did not posses these alleged 'general qualifications' 

On or about August 22, 2013: Sullivan assumed Department Chair position. 

(CR 1: 842). 

October 31, 2013: Provost Gandy removed Sullivan as the Department Chair, 

to be effective immediately. (CR 1: 854) 

November 19, 2013: Provost Gandy issued Sullivan notice that her 

employment would end and the end ofhercontract in May 2014. (CR 1: 856-857) 

54 
================================== 

Defendant's Supporting Evidence was Not Used or Relied upon by Decisionmakers in Not Hiring Appellant: 

Defendant's exhibits were not used in the actual decision making process and 

are dated 1997 to 2002 and. The applicants submitted only a cover letter and 

resume during the application process. (CR 1: 797-819 Appellant applic; CR 1: 

821-832--Sullivan applic) 

Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant 

was based solely on a review of their applications. (CR 1: 697, p.15-22) 

Appellant's application did not contain the information or these documents that 

defendant now uses to assert this new reason. (CR 1: 797 -819) 

Defendant relies upon documents taken out of context and dated 1997 to 2002. 

Defendant Exhibits 10, 11, 12, 14, 15 to support its argument. None of these 

exhibits were part of the actual decision-making process as shown above. 

(a) Defendant MSJ Exhibit 15 (CR 1: 477): 

(b)DefendantMSJ Exhibit 12 (CR 1: 375-376): 

(c) Defendant MSJ Exhibit 10 (CR 1: 366-371): 

(d) Defendant MSJ Exhibit 11 (CR 1: 373): 

(e) Defendant MSJ Exhibit 14 (CR I: 475): 

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

55 
Defendant's Alleged Basis that required qualification was 

a professional, a facilitator, and a trustee 

to hold the Rank of Full Professor 

(DefMSJ: CR 1: 303, sec. ii, i) 

Appellant Met this Qualification of a professional, a facilitator, and a trustee to o 

hold the rank of Full Professor 

Defendant's MSJ alleged a new required qualification that a Full Professor was 

"a professional, a facilitator, and a trustee." (CR 1: 303 =DMSJ sec i) Defendant 

bases these new qualifications on Def. MSJ Ex. 13. (See CR 1: 303, sec. i; ex. 13 

at CR 1: 378-473) 

Defs MSJ asserts that Appellant must be "a professional, a facilitator, and a 

trustee." (CR 1: 303) Defendant bases this assertion on DefEx. 13. 

No testimony supports this assertion. 

Def.MSJ Exhibit 13 is a draft document 

originating from University of Wisconsin 

Not Defendant's Policy in Use 

Defendant's MSJ uses its Exhibit 13 as the basis to assert these new 

qualifications. (CR 1: 303, sec. i, 1st para). Def. MSJ Exhibit 13 is located at CR 

1: 377-473. 

Appellant submits a jury could find from the evidence that Defendant has both, 

made up this reason and presented a fabricated document, to support this 

fabricated reason. 

56 
Det's MSJ Ex. 13, was not in use by or the Defendant's adopted policy during 

these events. 

Prior to being hired by Defendant, Dean Dock was employed at the 

University of Wisconsin -Eau Claire. (CR 1: 666: p.8, line 22 to p.9, line 4). The 

actual exhibit shows that Exhibit 13 is a document from the University of 

Wisconsin (UW) MBA program and was in draft form. 

(1) Def MSJ Ex. 13, p.17, top sec.: "The University of Wisconsin MBA 

Consortium includes the following AACSB accredited schools: the University of 

Wisconsin-Eau Claire, the University of Wisconsin-Oshkosh, and the University of 

Wisconsin-Parkside. The Consortium MBA program is managed by UW-Eau 

Claire." (CR 1: 394) 

(1) p.19, sec. 4: "UW MBA Business Consortium Planning and Steering 

Committee. One member ...... .. will participate on the UW MBA Business 

Consortium Planning and Steering Committee." (CR 1: 396) 

Dr.Krueger testified that this was a book of faculty policies and procedures that 

Dean Dock was trying to bring from the University of Wisconsin-Eau Claire; and 

that Defendant had not adopted it as its policy. (CR 1: 706: p.63: line 18 to p.64, 

line 3). 

Defendant Classified Appellant as a Full Professor 1999 to 2007 

This Defendant had classified Appellant as and employed Appellant as a full 

professor for 15 years: 1989 to 2007. (CR 1:799, 800; CR 1: 650-51, sec. 1) 

57 
. Defendant's S~pplemental Explanation to the EEOC Investigation 

Established Defendants Faculty Handbook, not Ex. 13 was not the policy used to 

evaluate a Full Professor 

Defendant's Dec II, 2013, Supplemental Response to the EEOC: Defendant 

acknowledged to the EEOC investigator that it was Defendant's Faculty Handbook 

that set out the requirements for the position of Full Professor. (CR I: 907-908) 

It was not DefMSJ Ex. 13, 

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

Documents relied upon by Defendant 

were not used in the Actual Decision-Making process 

Defendant produces DefMSJ Exhibits, 10, 14, and 15 to assert that, as a matter 

oflaw, Appellant did not possess these new qualifications. (CR I: 303-304). 

These exhibits were never a part of the actual decision-making process. 

None of these documents were part of Appellant's application. (CR 1: 797-

819). Krueger establishes that only Appellant's I an applicant's application was 

used in determining the basis of non-selection or selection: None of these 

documents were used or relied upon in the actual decision-making process. (CR 1: 

697, Krueger: p.24, lines 9 to 25). 

DefMSJ ex. 10: (CR 1: 366-371). Appellant's 2000 evaluation (CR 1: 366). 

The Dean Diersing wrote "Congratulations on a very good annual evaluation'. 

(CR 1: 370). 

58 
Def. MSJ ex. 14: (CR 1: 475) One page from Appellant's 2001 evaluation 

beginning with Dean Diersing acknowledging Appellant's great job performance: 

'Congratulations on another fine annual evaluation. Your teaching evaluations, 

professional growth and development, research, and service were all excellent'. 

(CR 1: 475). 

Def. MSJ ex. 15: (CR 1: 477). October 23, 1997: one page memo from then 

Dean Bigbee. (CR 1: 477). Dean Bigbee was experiencing personal problems and 

resigned shortly after this date. (CR 1: 

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

Disparate Treatment 

Defendant did not require Sullivan, the younger candidate selected, 

to possess these newly alleged qualifications 

of 'a professional, a facilitator, and a trustee' 

which form the basis of Defendant's Motion for Summary Judgment 

Disparate Treatment 

these New Requirements Not Applied to Younger Applicant Hired 

At the time of the actual selection process, the Defendant's Accounting 

Department faculty and Chair of the Selection Committee had determined that 

Sullivan, the younger applicant, did not meet the position's which would include 

the new requirements of being "a professional, a facilitator, and a trustee" and was 

not qualified for the Chair. 

The Chair Search Committee members determined that Sullivan did not meet the 

required qualifications and Aukerman determined her hiring was illegal. See: (CR 

1: 838) (CR 1: 837) (CR 1: 836) (CR 1: 840) (CR 1: 871; 872--sec 10) (CR 1: 

846) 

59 
Defendant asserts that Appellant was not AACSB AQ qualified because 

Appellant had not taught in the 18 month period prior to applying. 

(CR 1: 305-306:DefMSJ p.l3-14). 

ii. Appellant was AACSB Academically Qualified 

Defendant's MSJ asserted that Appellant lost his 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 

Defendant processed Appellant's application as a qualified candidate 

through-out the entire hiring process by Defendant's Hiring Authority because 

current employment was not an actual requirement. (CR 1: 883-886, 888, 892) 

Defendant Admits to EEOC Appellant is AACSB AQ 

Defendant admitted to the EEOC that Appellant met the Chair position's 

minimum qualifications which included being professionally qualified to be 

AACSB Academically Qualified. (CR 1: 865-866; CR 1: 782)) 

Judge Vela denied Defendant's prior Motions asserting 

this same argument 

Defendant made this same argument and the presented same exhibits to 

Judge Vela on March 10, 2015. (CR 1: 23-26, 31--Defendant's Summary of 

Argument with attachments on Plea to the Jurisdiction and No-Evidence Summary 

Judgment). 

60 
Judge Vela found a fact issue existed and denied Defendant's pleadings to 

dismiss on this argument. ( CR I: 291, 292) 

Defendant argued to Judge Vela that Appellant was not qualified because 

Appellant lost AACSB AQ status because: (l) Appellant was not currently 

employed at time of applying; (2) Appellant had not taught in a classroom for 

prior 18 months. 

Defendant produced to Judge Vela the same exhibits as relied upon in this 

argument in its current Motion for Summary Judgment: 

(a) AACSB Standard 10: (CR 1: 295: Ex. 16 to DefMSJ), (CR 1: 31: Def 

ex list for March 9, 2015, Summary of Argument) 

(b) Appellant's Application: (CR 1: 31: Def ex list for March 9, 2015, 

Summary of Argument; and CR 1:295: Ex. 23 to DefMSJ) 

(b) Dock deposition: (CR 1: 295: Ex. 17 to Def MSJ) (CR 1: 31: Def ex list 

for March 9, 2015, Summary of Argument) 

(c) Krueger deposition: (CR 1: 296: Ex. 23 to DefMSJ) (CR 1: 31: Defex 

list for March 9, 2015, Summary of Argument) 

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

AACSB does not have a requirement that actual teaching of courses is required 

to maintain AACSB AQ status. (CR 1: 660-61, sec.40; CR1: 896-901 -- AACSB 

standard 1 0) 

61 
AACSB Standard 10 and AACSB White Paper Establish 

Appellant Maintained his AACSB AQ Status 

Defendant admitted in both its March 9, 2015, Summary of Argument presented to 

Judge Vela and in its Motion for Summary Judgment that the AACSB does not 

have a requirement regarding an 18 month break in employment, but that the 

AACSB looks at a five (5) year period for accreditation of AQ (academically 

qualified) status. (CR 1: 25, Mar 9, 2015, Summary of Argument, p.3, sec. 6: 

'evidence of developmental activities within the past five years ... " citing AACSB 

Standard 1 0) (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": (CR I: 900 AACSB Standard 10 - mid page )(CR I: 904: mid 

page) 

Relevant journal and/or other business publication editorships and/or 

editorial board/committee service 

Consulting activities that are material in terms oftime and substance 

Faculty internships 

Sustained professional work supporting qualified status 

Leadership positions in recognized professional/academic societies 

Advanced academic coursework 

Relevant, active service on boards of directors 

Documented continuing professional education experiences 

62 
Significant participation in professional and/or academic conferences 

Additionally:" It is not AACSB International's intent to limit the range of 

development activities that may be undertaken." (CR 1: 900- mid page). 

===========--======= 

In the pending MSJ, Defendant left out AACSB Standard 10 it presented to 

Judge Vela, and added a different exhibit, AACSB White Paper Deploying 

Academically Qualified Faculty, to try to allege the same argument. (CR 1: 545 

DefEx. 22). This document sets out the same ways to maintain AACSB AQ status 

as AACSB Standard 10 which Defendant omits. The document states: (CR 1: 904, 

mid page) 

Activities Sufficient to Sustain Academically Qualified (AQ) Status 

"All faculty members are expected to demonstrate activities that 

maintain the currency and relevancy of their instruction. Faculty members 

can maintain qualifications through a variety of efforts including 

the production of intellectual contributions, professional 

development, and current professional experience." 

APPELLANT MAINTAINED AACSB AQ STATUS 

Defendant's MSJ admitted that AACSB AQ status is maintained I sustained by 

under AACSB guidelines if professor /faculty 'continue to undertake appropriate 

development activities that sustain his ..... intellectual capital and currency in the 

field of teaching'. (CR 1: 305 middle para). 

63 
This wording means that a person needs to remain "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 1:660, sec.40) The AACSB 

Sec. I 0 does not mention classroom teaching as a requirement to maintain AQ 

currency. (CR 1:660, sec.40). AACSB Standard 10 clearly sets out what activities 

are necessary to "remain current." Actual Teaching is not a requirement. (CR 

1 :661, sec.40 top pg). 

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

Defendant admits in its Motion for Summary Judgment that there is a "fiveyear look back used in making applications for AACSB accreditation". (CR 1: 

305, top sec) By defendant's own acknowledgement 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 of2012. 

December 2009: Appellant had a formal record of being AACSB Academically 

Qualified while employed at the University of Texas Pan American which ended 

May of 2010. (CR 1: 890) Appellant would have remained AACSB 

Academically Qualified until May of2015 without any activities. 

May 2010: Appellant left UTPA and was AACSB Academically Qualified 

his entire time while working at UTPA. (CR 1: 652, sec. 5). 

64 
August 2012: date of employment decision--Defendant hired the younger 

candidate, Sullivan, and did not hire Appellant. (CR 1: 892, 842-844) 

December 2014: the Date Appellant would remain qualified as AACSB 

Academically Qualified, with no new qualifYing activity, using date of UTP A's 

AACSB December 2009 formal certification of Appellant as AACSB AQ and the 

five year look forward time period. (CR 1: 890) 

=========== 

Appellant Maintained Currency in Appellant's Field 

as Required to Maintain AACSB AQ Status 

Appellant's Evidence of Maintaining AACSB Academically Qualified status 

Appellant's publications vastly exceeded the amount both Director of Research 

Krueger and Associate Dean testified were needed to be qualified for AACSB AQ 

status-- 3 publications during that period. (CR 1: 914; CR 1: 700, p.37, lines 16-

23; CR 1: 701, p.38, lines 8-19): In the immediate three year period (2009-2012) 

prior to Appellant's application with Defendant, Appellant had a total of eight 

acceptable quality publications (all of which were in journals with acceptance 

rates of less than 30% listed in Cabell's director). (Ex. 1: sec. )(Ex.11: Appellant's 

application, p.tamu 0027-0028). 

65 
Appellant had continuously undertaken additional AACSB approved activities 

to maintain currency in Appellant's field of accounting. Appellant's resume 

identified: (Ex. 11 )(CR 1: 900 mid page; 904 mid page. 

(1 )Part-time self-employment as a Certified Public Accountant (CR 1: 800) 

(2) accounting publications; 2009-2012: Appellant published eight acceptable 

quality publications in journals with acceptance rates of 30% or less 

acceptance rate, including five publications from May 2010, to March 

2012.; (CR 1: 803-804); 

(3) accounting paper presentations: 2009-2012: Appellant made 12 

accounting paper presentations, including 6 accounting presentations from 

May 2010 to March 2012; (CR 1: 811-812); 

(4) professional services: 2011-2012-current, Appellant was a reviewer of 

Manuscripts for The CPA Journal, which is published by the New York 

Society of CPA's (CR 1: 812-813); 

(5) August 2011: Appellant participated in Accounting Professional Meeting: 

American Association National Meeting in August 2011 where Appellant 

reviewed two accounting papers. (CR 1: 813); 

Professional Services: Appellant was a member of five professional 

Accounting Boards: ( CR 1 : 814 ); 

(7) Awards: In 2011, Appellant received the Institute of Management 

Accountant's Lybrand Certificate of Merit Award for outstanding character and 

excellence in contributing to literature for the advancement of management 

accounting and financial management. (CR 1: 816); 

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

66 
Defendant's Records 

Establish 'Current Employment' was not a Requirement for the Chair Position 

Appellant produced evidence to support a finding that: 

( 1) Appellant was a qualified applicant for the Chair opening; and 

(2) Defendant found Appellant to have been a qualified applicant and to 

have met the required qualifications of the Chair position. 

Defendant's Hiring Authority and identified any applicant whose application 

established that the applicant did meet the posting qualifications in order to be 

processed as acceptable applicant. (CR 1: 883-884, 885-886) 

(1) August 29, 2012: Appellant was notified of non-selection (CR 1: 852) 

(2) August 31,2012: Defendant identified applicants who met the positions 

required minimum qualifications and applicants who did not meet the positions. 

Appellant was one of four applicants identified meeting required qualifications but 

'not hired'. (CR 1: 885-886). 

Applicants meeting required qualifications: (in order as listed) 

Haque, Mohammed 

Vanzante, Neal (Appellant) 

Rabbani, Mohammad 

Ghosh, Dillip 

Sullivan, Carol 

Not Hired 

Not Hired 

Not Hired 

Not Hired 

Hired 

Applicants not meeting required qualifications: (in order as listed) 

Francis, Conrad 

Hopson, James 

Committee, Bruce 

67 

Did Not Meet Min Quais 

Did Not Meet Min Quais 

Did Not Meet Min Quais 
(2) September 18,2012: Defendant again printed the applicant log. (CR 1: 883-

884). The applicants were listed in alphabetical order. Appellant was one offour 

applicants identified meeting required qualifications but 'not hired'. 

Applicants meeting required qualifications: (in order as listed) 

Ghosh, Dillip 

Haque, Mohammed 

Rabbani, Mohammad 

Sullivan, Carol 

Vanzante, Neal (Appellant) 

Not Hired 

Not Hired 

Not Hired 

Hired 

Not Hired 

Applicants not meeting required qualifications: (in order as listed) 

Committee, Bruce 

Francis, Conrad 

Hopson, James 

Did Not Meet Min Quais 

Did Not Meet Min Quais 

Did Not Meet Min Quais 

Dean Dock and Dr.Krueger 

August 23, 2012: Defendant processed Appellant as one of five candidates that 

met Chair position requirements to be considered for hire. (Ex. 18) The qualified 

candidates for hiring were: 

Ghosh, Dillip Not Hired 

Haque, Mohammed Not Hired 

Rabbani, Mohammad Not Hired 

Vanzante, Neal (Appellant) Not Hired 

Sullivan, Carol Hired 

68 
========================== 

ELEMENT No. 3: Appellant was subjected to an adverse employment 

action; 

Defendant sought applicants for the advertised Chair of Department of 

Accounting and Finance opening. (CR I: 780-797) Appellant applied. Appellant 

was not hired for the advertised and open position the subject of this lawsuit, Chair 

of the Department of Accounting and Finance. (CR I: 892; CR 1: 650-51, sec. 4). 

NOT DISPUTED 

ELEMENT No. 4: 

A. defendant hired someone younger than Appellant : 

Defendant's Motion for Summary Judgment does not contest and admitted that 

Carol Sullivan was substantially younger candidate than Appellant. (CRI :301, 

sec.A). 

Dean Dock had first-hand knowledge of the ages and disparity m ages of 

Sullivan and Appellant. 

Appellant was 66 years old at the time of applying for the Chair opening. (CR 

I: 652, sec. 4). Dean Dock had met Appellant at a business function at TAMU-K a 

short while before Appellant applied for the Chair opening. (CR 1: 653, sec. 4). 

69 
Dean Dock drove to personally meet Sullivan at an off campus location a few 

weeks after Sullivan applied for the Chair opening. (CR 1: 834) Sullivan was 51 

years of age and 15 years younger than Appellant. (CR 1: 652, sec. 4). (CR 1: 

918, p. 48, lines2-7)(CR 1:653, sec.4) 

Carol Sullivan was noticeably younger than Appellant. (CR 1: 652, sec.4) 

In an age discrimination suit, a Appellant may satisfY and establish his prima 

facie case if the person hired is younger than the Appellant. Age discrimination 

statutes do not require that the person hired be outside the class protected by the 

age discrimination statute. O'connor v Consolidated Coin Caterers Corp, 517 US 

308, 312, 116 S.Ct. 1307 (1996). Appellant may establish his prima facie case 

when person hired is five (5) years younger. Rachid v Jack in the Box, Inc., 376 

F.3d 305 (5th Cir. 2004). 

Disparate Treatment: Defendant treated the younger applicant hired 

(Sullivan) differently 

Appellant incorporates herein his facts and argument regarding: 

1. Sullivan not meeting its basis of meet general qualifications' of 

Leadership, Administration, Interpersonal and professional communication 

2. Sullivan not meeting its basis that the selectee must be "a professional, a 

facilitator, and a trustee." 

3. Sullivan was determined not qualified and hired. (CR 1: 836-838, 846) 

70 
STEP THREE: Appellant establishes a factual issue to show that 

Defendant did not have a legitimate non-discriminatory reason its 

employment decision at time of decision; 

Once the employer's justification has been eliminated, discrimination may well 

be the most likely alternative explanation, especially since the employer is in the 

best position to put forth the actual reason for its decision. "Rincones at 236, citing 

Reeves at Reeves 120 S.Ct. 2097, 2108-09) 

"Thus, a Appellant's prima facie case, combined with sufficient evidence to find 

that the employer's asserted justification is false, may permit the trier of fact to 

conclude that the employer unlawfully discriminated." Rincones at 236, citing 

Reeves at 148. 

The court must draw all reasonable inferences in favor of the nonmoving party 

and not make credibility determinations or weigh the evidence. Credence must be 

given to the evidence supporting the nonmovant as well as any evidence 

supporting the moving party that 1s uncontradicted, unimpeached, and not 

attributable to interested witnesses. Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (emphasis added). 

71 
DIRECT EVIDENCE 

If a material fact is supported by direct evidence, then the issue must be 

submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 

1975) Appellant restates his Direct Evidence argument herein as if set forth 

verbatim. 

CIRCUMSTANTIAL EVIDENCE 

Defendant reasserts its arguments regarding Appellant being qualified for the 

position and reasserts its argument regarding Appellant's 2006 Settlement and 

Release with TAMU Corpus Christi:: (CR 1: 305-307) 

Reasserted earlier arguments raised in its assertions that Appellant was not 

Qualified. 

1. that Appellant was prohibited from applying for the Chair position, by his 

2006 Settlement and Release with T AMU Corpus Christi. 

2. that Appellant was not qualified because of Appellant's alleged poor record 

of employment with Defendant (CR 1: 306, B) 

3. that Appellant was not qualified because of Appellant's based on 

Appellant's alleged absence 'from the teaching profession' for the eighteen 

months prior to Appellant's application (CR 1: 306, B) 

As evidence Defendant's legitimate reasons are false: 

(I) Appellant restates his qualification arguments herein as if set forth verbatim 

72 
(2) Appellant restates his disparate treatment arguments herein as if set forth 

verbatim. 

(3)) Appellant restates his 2006 Settlement and Release with TAMU Corpus 

Christi arguments herein as if set forth verbatim. 

Defendant's also asserts the reason that Appellant was not hired and Sullivan 

was hired was: Sullivan was clearly better qualified than Appellant (Vanzante). 

(CR 1: 306-307) 

a. because Appellant had not taught for 18 months 

b. Sullivan's articles were better than Appellant's articles. 

These are all new reasons and not used as a basis by Defendant at the time the 

decision was made to not hire Appellant and to hire the younger applicant, 

Sullivan. 

Appellant has provided substantial evidence that 

each alleged legitimate non discriminatory reason is false. 

Defendant has already investigated and determined that Dean Dock's Hiring of 

Sullivan was Wrongful 

Defendant's internal investigation conducted at the time of the failure to hire 

Appellant and the hiring of Carol Sullivan determined that the hiring was an 

73 
"Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR1: 

872, Sec. 10) 

August 15, 2012: Associate Dean Aukerman notified Martin Brittain, the 

Defendant's Hiring Authority for the Chair selection process, that Dean Dock's 

hiring of Carol Sullivan was inappropriate, unethical, and/or illegal. Dr.Aukerman 

determined that: (CRl: 871,872, Sec. 10) 

Sec (10) The faculty who were involved in the interview of Carol Sullivan for 

the Accounting and Finance Department Chair position 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." (CRl: 872, Sec. 1 0) 

(*Defendant produced this document after Dr.Aukerman's deposition) 

Appellant's 2006 Settlement and Release with T AMU Corpus Christi 

was NOT a basis for not hiring Appellant. 

Appellant incorporates his 2006 Settlement and Release with T AMU Corpus 

Christi argument above here as if set forth verbatim. 

Appellant has produced evidence to show that the Defendant did not rely on the 

2006 Settlement and Release with T AMU Corpus Christi and the Release was not 

a basis for not hiring Appellant. 

74 
Appellant produce evidence to establish that Appellant was not barred from 

applying for the Chair position by the 2006 Settlement and Release with T AMU 

Corpus Christi. 

Appellant produced evidence that Defendant Texas A&M University Kingsville 

did not consider Appellant barred from applying for positions, consistent with the 

terms of the 2006 Settlement and Release with TAMU Corpus Christi. 

1. Appellant had applied for positions with Defendant four times prior to 

applying for the Chair opening. 

2. August 29, 2012: In notifying Appellant of non-selection for the Chair, 

Defendant told Appellant "we hope you will continue to give our institution 

consideration for employment." (CR 1: 852) 

Defendant's basis that Appellant was not hired because of Appellant's 

alleged poor record of employment with Defendant is FALSE 

Defendant's Supporting Evidence was Not Used or Relied upon by Decisionmakers in Not Hiring Appellant: 

Defendant's exhibits were not used nor relied upon m the actual decision 

making process and are dated 1997 to 2002 and. The applicants submitted only a 

cover letter and resume during the application process. (CR 1: 797-819 Appellant 

applic; CR 1: 821-832--Sullivan applic) 

Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant 

was based solely on a review of their applications. (CR 1: 697, p.15-22) 

75 
Appellant's application did not contain the information nor these documents that 

defendant now produces to assert this new reason. (CR 1: 797-819) 

Defendant's basis that Appellant was not qualified because of Appellant was 

not currently teaching when applied and Appellant's alleged absence 'from 

the teaching profession' for the eighteen months prior to Appellant's 

application is not worthy of credence. 

Associate Dean Aukerman, reviewed Appellant's application and resume 

which identified Appellant's last teaching position in May of 2010 and that 

Appellant was not currently employed at the time of applying, testified that 

Appellant met both of the Chair position's required qualifications: 

Aukerman then testified: 

1. Appellant was and met the Defendant's AACSB Academically Qualified 

requirements for the position. (CR 1: 738, p.82, lines 2-20). 

2. Appellant was 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). 

Appellant has established that: 

1. Defendant's requirements for a Full Professor require five years 

employed in rank and do not require current employment. 

2. The AACSB standards do not require current employment to be AACSB 

AQ accredited. 

76 
3. The AACSB standards allow a five year look back period to qualify for 

current AACSB AQ status. 

Defendant's also asserts the reason that Appellant was not hired and Sullivan 

was hired was: Sullivan's resume showed Sullivan was clearly better qualified 

than Appellant (Vanzante ). (CR 1: 306-307) 

a. because Appellant had not taught for 18 months 

This is a false basis: Appellate set out in detail in his Qualification argument 

that not teaching for 18 months was not a basis for the decision and was not 

relevant to the position's required minimum qualifications of being a Full 

Professor or AACSB AQ accredited. 

b. Sullivan's articles were better than Appellant's articles. 

This is false: Appellant established that Appellant's articles vastly exceeded 

AACSB accreditation requirements Both Dr.Krueger and Assoc. Dean Aukerman 

establish that Appellant needed only 3 articles in the prior five year period to meet 

AACSB AQ accreditation standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24 

email 

Appellant's publications vastly exceeded the amount required for AACSB 

AQ status: In the immediate three year period (2009-2012) prior to Appellant's 

application to Defendant, Appellant had a total of eight acceptable quality 

77 
publications (all of which were in journals with acceptance rates ofless than 30%). 

(Ex. I: p.3, sec.6)(Ex.11: Appellant's application). 

Krueger never examined Sullivan's articles. Dr.Krueger testified that he did 

not evaluate or and read Sullivan's publications during the hiring process: Krueger 

did not review or evaluate Sullivan's publications to determine or verifY if Sullivan 

met the Chair position's AACSB requirement prior to Sullivan being hired. (CR I: 

704: p.57, lines 5-11). Krueger testified that it a year after Sullivan was hired in 

August of 2012, when Sullivan provided Krueger copies of her publications when 

Sullivan moved into the Chair's office in Fall of 2013. (CR 1: 714, p.57, line 21 

correction). 

Defendant's own documents establish this is false. The evidence established 

Defendant's Search Committee, Chair of Search Committee and Associate Dean of 

the Dept. had all determined from Sullivan's resume and interview that Sullivan 

did not meet the position's requirements and was not qualified for the position. 

(CR 1: 837)(CR 1: 838)(CR 1: 836) (CR 1:840) (CR 1:871; 872- sec.IO)(CR 1: 

846) 

Dean Dock Ignored the vote of the Search Committee and 

Hired Carol Sullivan 

August 16, 2012: Associate Dean Aukerman, aslo Chair of the Search 

Committe, notified Provost Gandy that Chair Search Selection Committee and 

78 
department faculty had determined Sullivan was not qualified to be hired and was 

"unacceptable". (CR 1: 846). 

The faculty search committee evaluations where that Sullivan was not qualified 

to be hired, should not be hired and referenced that the committee could not even 

determine Sullivan's qualifications from Sullivan's application. (CR 1: 83 7). 

Dock changed the terms of the advertised position requirements and did not 

re-advertise the position in order to hire Sullivan. 

The Defendant needed to hire a Chair of the Department of Accounting and 

Finance to begin January 7, 2013, and authorized the funding. (CR 1: 780) Dean 

Dock changed the hiring date without re-posting the position. The original hiring 

date started mid-semester which excluded persons already working under contract 

for the 2012-2013 school term from applying. 

Dock changed the beginning date from January 1, 2013, to September 1, 

2013, in order to hire Sullivan beginning August 22, 2013. (CR 1: 908: Sullivan 

was under contract at the University of St. Thomas for the September 2012 to May 

2013 school term). 

The change in start date affected the applicant pool 

and 

should have been re-posted. 

Martin Brittain, the Hiring Authority, testified that the normal process was "if 

you want to make any changes at all, it requires a new -- cancellation and a new 

79 
posting". (CR 1: 755 at p.31, lines 13-20). Brittain testified that the Chair posting 

listed January 7, 2013, as the start date which was in the middle of the 2012-2013 

school term; and that starting in the middle of a school term 'could make it more 

difficult for them (person already under contract for the 2012-2013 school term) to 

apply'. (CR 1: 755 at p.33, lines 10-20; p.34, lines 9-15). By a fortiori, this would 

prevent applicants from applying who were already under contract for the 2012-

2013 school term. 

DISPARATE TREATMENT 

Carol Sullivan, Candidate Hired, 

Did Not Meet Required Minimum Qualification 

to Hold Rank of Full Professor When Hired 

Defendant required five years of employment in position of Associate Professor 

or higher rank before qualifying to be placed into Full Professor position. (CR I: 

651, sec. 3)(CR 1: 911, sec. B.4.1.6(b)--Faculty Handbook). Sullivan had only 

three years of employment in position of Associate Professor at the time Defendant 

hired Sullivan. (CR 1: 651, sec. 3) 

An applicant's work history must be known in order to determine whether 

qualified to hold the rank of Full Professor as the faculty member must have 5 

years working in rank of Associate Professor. (CR 1: 651, sec. 3; 908 mid pageSullivan's revised work history provided to the EEOC 15 months after she had 

been hired). 

80 
Appellant's application cover letter and work history identified Appellant had 

been a Full Professor with the Defendant for 18 years, till 2007. (CR 1: 799 and 

800) 

Sullivan's application did not provide a work history to determine whether 

Sullivan met he minimum required qualification to be a Full Professor. (CR 1: 823-

825 Sullivan application). The Chair faculty search committee members found that 

Sullivan had not shown she had five years holding a position of Associate 

Professor or higher. Finding: "no history provided of places worked and dates" 

(CR 1: 836); "Dr. Sullivan's resume and cover letter did not list key information. 

For example current place of work, where all she had worked in the past ..... " (CR 

1: 837) 

In December of 2013, fifteen months after Sullivan was hired, Defendant and 

Sullivan prepared a work history in an attempt to show Sullivan met the minimum 

qualification to hold the rank of Full Professor by having been employed as an 

Associate Professor or higher for five years. (CR 1: 908, 906) 

This information was not set out in Sullivan's March 5, 2012application and 

resume submitted. (CR 1: 821-832) 

To show Sullivan qualified for hire as a Full Professor, Defendant had to 

intentionally misrepresent Sullivan's work history to the EEOC. 

81 
Defendant had to include Sullivan's 2012-2013 year of employment with the 

University of St. Thomas. (CR 1: 908) The Defendant's new Chair was to begin 

working on January 7, 2013. (CR 1: 780) 

Sullivan did not have the required five years at the time she was hired in 

August of 2012, because Defendant needed to include Sullivan's employment for 

the 2012-2013 school term at another university to try to show Sullivan qualified 

with five years employed in rank of Associate Professor or higher to quality as a 

Full Professor, as required to be hired. (CR 1: 908-resume )(CR 1: 782-job posted 

minimum required qualification of Full Professor) 

December 11, 2011: Defendant's identification of Sullivan's work history. 

Only the three years employed as an Associate Professor of Accounting 

qualified toward the five years employed in rank. (CR 1: 651, sec.3) 

Positions of Visiting Associate Professor are not positions of'rank'. (CR 1: 651, 

sec. 3). Sullivan's identified employment history was positions of Visiting Assoc. 

Professor. 

(1) 'Visiting Associate Professor of Accounting, University of St. Thomas 

during the 2012-2013 school term'. (CR 1: 908). Does not count towards 

Sullivan's five year requirement because this is school year after Sullivan hired in 

Aug 2012). 

(2) Visiting Professor of Accounting, Seattle University (2008-2009). 

Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3) 

82 
(3) Visiting Professor of Accounting, University of Texas at Arlington (2000-

2002): Employment as Visiting Professor is not employment in 'rank'. (CR 1: 

651, sec.3) 

(4) Visiting Professor, Texas A&M University at College Station (1996-1997): 

Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3) 

83 
CONCLUSION 

Appellant submits that if the facts and allegations he has presented are taken as true 

and construed in his favor, Appellant has presented an issue of fact to be determined by a 

jury on all issues; including that Appellant's 2006 Settlement and Release with TAMU 

Corpus Christi is not a basis to dismiss Appellant's; that his age was a motivating factor 

in the Defendant's decision not hire Appellant; that the Defendant's non-discriminatory 

reasons for its actions are false; and that a reasonable juror could infer discrimination 

from the evidence presented. 

PRAYER 

For all the above reasons, Appellant Neal Vanzante requests this Court to vacate 

and/or reverse the Trial Court's Order Granting Defendant Motion for Summary 

Judgment, and remand Plaintiffs lawsuit back 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, 

Is/ 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 

84 
CERTIFICATE OF COMPLIANCE 

Pursuant to TRAP 9.4(i)(2)(B), I hereby certifY that Statement of Facts, 

summary of argument, argument, conclusion and prayer contain 14,292 words as 

determined by WORD 2007 

Is/ Chris McJunkin 

CERTIFICATE OF SERVICE 

I hereby certifY that on the 26th day of October 2015, a copy of the foregoing 

was delivered in accordance with the Texas Rules of Civil Procedure on the 

following person: 

Marie! Puryear, Assistant Attorney General 

Office of Attorney General - Litigation Division 

P.O.Box 12548, Capitol Station 

Austin, Tx. 78711-2548 

Fax: (512) 320-0667 

Email: Mariel.puryear@texasattoneygeneral.gov 

Is/ Chris McJunkin 

85 
APPENDIX 

Appendix!: June 10, 2015: Order Granting Defendant Texas A&M 

University-Kingsville's Motion for Summary Judgment (CR 1: 1006) 

Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion 

for Summary Judgment (CR 1: 291). 

Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction 

(CR 1: 292). 

Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time 

to File Brief to October 23, 2015, was granted. 
Appendix!: June 10, 2015: Order Granting Defendant Texas A&M 

University-Kingsville's Motion for Summary Judgment (CR 1: 1 006) 
NEALVANZANTE, 

Plaintiff 

VS. 

TEXAS A&M UNJVERSITYKINGSVILLE, 

Defendant 

CAUSE NO. 14-238-D 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

105m JUDICIAL DISTRrCT 

KLEBERO COUNTY, TEXAS 

ORDER GRANTING DEFENDANT TEXAS A&M UNIVERSITYKINGSVILLE'S MOTION FOR SUMMARY JUDGMENT 

Came on this day to be heard Defendant Texas A&M University- Kingsville's Motion for 

Swnmary Judgment, and any responsive pleadings and/or oral argwnent. After considering the 

evidence, the Court finds the Motion does have merit and makes the following ruling: 

IT IS HEREBY ORDERED that Defendant Texas A&M Univetsity-Kingsville's Motion 

for Summary Judgment is hereby GRANTED. 

IT IS FURTHER ORDERED that Plaintiff's lawsuit in its entirety is DISMISSED with 

I '"''L 

\ 

1006 
Appendix 2: March 18, 2015: Order Denying Defendant's No-Evidence Motion 

for Summary Judgment (CR 1: 291). 
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291 
Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction 

(CR 1: 292). 
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292 
Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time 

to File Brief to October 23, 2015, was granted. 
CIE'.-nr:E 

ROOB.lO VALDEZ 

JUSIJCES -V . ..._....IEZ 

DORICCMIILIIiiSGMZA 

Glllll M.IIENIMDES 

Gl' EGI .. ~ T. PERICEII 

NOM L UlNGilRio\ 

CI.ERK 

IXlRIAN E. RAMIREZ 

6utt of Spptaff 

Qtrlnllt afitdd of~ 

Hon. Christopher E. McJunkin 

Attorney at Law 

2842 l..aWrMew 

Corpus Christi, TX 78404 

• DELIVERED VIA E-MAIL * 

October9,2015 

Re: cause No. 13-15-00313-CV 

Tr.Ct.No. 14-238-D 

Style: Neat Vanzante v. Texas A & M UniYerslly 

Dear Mr. McJunkin: 

FILE COPY 

NUE'CES COUNtY COURlHOUSE 

901 LEOPARD, 101M FLOOR 

CORAlS CHR18TI, TEXAS 78401 

38HIIIII.o416 (TEL) 

36HJ8II.0194 (FAX) 

lfiDI1ILOOOOUNTY 

ADioiNI8IRATION BlDG. 

100 E. CANO, STH FUXlR 

EDINBURG. TEXAS 711538 

956-3111-24011 (TEL) 

956-316-2403 (FAX) 

--""'-,goWoAppellant's motion for extension of time to file brief in the above cause was this 

day GRANTED by this Cowl The time has been extended to Friday, ()ck)ber 23, 2015. 

Very truly yours, 

~~. ?'(~ Dorian E. Ramirez, Clert 

DER:sc 

cc: Hon. Marial Puryear (DELIVERED VIA E-MAIL)