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

NEALVANZANTE Appellant-Appellant 

## v. TEXAS A & M UNIVERSITY--KINGSVILLE Defendant-Appellee
On Appeal From the 1 05 1 hDistrictCourt Kleberg County Trial Court Cause No. 12-238-D
AMENDED BRIEF OF APPELLANTNEAL VANZANTE

REQUESTFORORAL ARGUMENT Respectfully submitted,

/s/ Chris McJunkin Chris McJunkin State BarNo. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com IIDENTITIES OF PARTIES AND COUNSEL Pursuantto Tex. R. App. P. 38.1(a), Appellant submits the following list of names and lastknown addresses ofall parties and their counsel attrial and on appeal: Parties to the Trial CourtJudgment: Appellant/Plaintiff: Appellee/Defendant

Counsel:
ForAppellant:

ForAppellee: 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, AssistantAttorney General Office ofAttorney General

- Litigation P.O.Box 12548, Capitol Station Austin, Tx. 78711-2548 Fax: (512) 320-0667 Marie!.puryear@texasattoneygeneral.gov

2TABLE 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 STATEMENTREGARDING 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 SettlementAgreement with TAMU Corpus Christi Was Not a Basis Usedby Defendant in NotHiringAppellant:

B. Appellant was not prohibited from applying for the Chairopeningbythe 2006 Release and SettlementAgreement with TAMU Corpus Christi The Trial CourtErred in DismissingAppellant's Lawsuit A. AppellantEstablishes DirectEvidence ofAge Discrimination B. AppellantEstablishes Circumstantial Evidence ofAge Discrimination Step One: Appellant's PrimaFacie Case ElementNo. 1: Appellant is a member ofaprotected class ElementNo. 2: Appellant was Qualified for the ChairPosition ElementNo.3: Adverse employment action ElementNo. 4: defendant hired someone substantially youngerthan 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 SettlementAgreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in NotHiringAppellant:
..................... 20

Appellant was not prohibited from applying for the Chairopening by the 2006 Release and SettlementAgreement with TAMU Corpus Christi
.......... 23 The Trial CourtErred in Dismissing Appellant's Age Claim:
...................... 32 AppellantEstablishes Direct Evidence ofAge Discrimination
.......... 32 AppellantEstablishes Circumstantial Evidence ofAge Discrimination
.....33 Step One: Appellant's PrimaFacie Case (a) ElementNo. 1: Appellant is a member ofa protected class
..... 35 (b) ElementNo.2: Appellant was Qualified for the ChairPosition
.. 35 AppellantMet Actual Required Qualifications No. 1... 38 AppellantMet Actual Preferred Qualification
............... 41 Appellant MetDefendant's Alleged Required Qualifications
...42 AppellantMetDefGeneral Qualification: leadership, etc. ..... 48 Disparate Treatment.
................................................................. 53 PlaintiffMetDef Alleged Qualification: professional, etc...... 56 Disparate Treatment..
................................................................ 59 Appellant Met DefAACSB requirement
.......18 month
........... 60 AppellantMetDefAACSB currencyrequirement.
................... 65 (c) ElementNo.3: adverse employment action
............................... 69 4(d) ElementNo.4: defendant hired someone substantiallyyoungerthan Appellant 

### Itreated youngerperson differently
........................ 69 Step Three: Appellant establishesPretext: Appellantpresents sufficient evidence to create a genuine issue ofmaterial fact that Defendant's Legitimate Nondiscriminatory reasons are false
............................................................................. 71:
CONCLUSION
...................................................................................84
PRAYER··························································································· 84 CERTIFICATE OF COMPLIANCE
....................................................................... 85 CERTIFICATE OF SERVICE.......................................................... 85



### 5APPENDIX
......................................................................................... Appendix!: June 10, 2015: OrderGranting Defendant Texas A&M University-Kingsville's Motion for SummaryJudgment (CR 1: 1006) Appendix 2: March 18,2015: OrderDenying Defendant'sNo-Evidence Motion for Summary Judgment (CR 1: 291). Appendix 3: March 25, 2015: OrderDenyingDefendant's Pleato Jurisdiction (CR 1: 292). Appendix 4: October9, 2015: Appellant's Motion for Extension ofTime toFileBriefto October23,2015, was granted.

6INDEX 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 RachidvJack in theBox, Inc., 376 F.3d 305 (5th Cir. 2004)
......................... 69 Rincones v. WHMCustom 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
PatternJury Charge 100
............................................................................... 32 STATUTES:
Texas Rules ofAppellate Procedure 38.1
.............................................. 8 Texas Rules ofAppellate Procedure 26.1
.............................................. 9 Texas Rules ofAppellate Procedure 9.4(i)(2)(B)
.....................................85
Tex.Labor Code Ann. Sec.21.001
....................................................... 21 Tex.LaborCodeSec.21.051
............................................................. 14

7NO. 13-15-00313-CV
INTHE COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS

NEALVANZANTE Appellant-Appellant 

## v. TEXAS A & M UNIVERSITY--KINGSVILLE Defendant-Appellee

OnAppeal Fromthe 1 05 1 hDistrict Court Kleberg County Trial Court Cause No. 12-238-D
AMENDED BRIEF OF APPELLANTNEAL VANZANTE

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 ofthe Texas Rules ofAppellate Procedure, and would show the Courtthe following:

8STATEMENT OFJURISDICTION This Court hasjurisdiction pursuant to TRAP 26.1: Appellant filed his Notice ofAppeal within 30 days after order Ijudgment was signed and within the time allowed by TRAP 26.1; and within 30 days ofreceiving notice oforder Ijudgment. (CR 1: 1006, 1026-1027)

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 ofAppeal. (CR 1: 1026- 1027)
9October 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 JudgmentDismissing the Appellant's Lawsuit *DoesNotInclude Subsidiary Questions which are setout in theArgument
I. The Trial CourtErred in Granting SummaryJudgment Based on Appellant's 2006 Release and SettlementAgreement with TAMU Corpus Christi A. Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi Was Not a Basis Used by Defendant in NotHiringAppellant: B. Appellant was notprohibited from applying for the Chair opening by the 2006 Release and SettlementAgreement with TAMUCorpus Christi II. The Trial CourtErred in DismissingAppellant's Lawsuit
A. AppellantEstablishes DirectEvidence ofAge Discrimination B. AppellantEstablishes Circumstantial Evidence ofAge Discrimination

101. Step One: Appellant's PrimaFacie Case (a) ElementNo. 1: Appellant is a member ofa protected class (b) ElementNo. 2: Appellant was Qualified for the ChairPosition (1) AppellantMetthe ChairPositions Actual Required Minimum Qualifications (2) Appellant Metthe ChairPositions Actual Preferred Qualifications (3) AppellantMetthe Defendant's Alleged Required Qualifications (c) ElementNo.3: Appellant was subjectedto an adverse employment action (d) ElementNo.4: defendant hired someone substantiallyyounger than Appellant 2. Step Three: Appellant establishesPretext: Appellant presents sufficient evidence to create a genuine issue of material fact ofeither:

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 ofthe Department ofAccounting and Finance. (CR 1: 780) The Chair Position's written job qualificationrequirements were: (CR I: 782 top) 11Minimum (actual required) Qualifications: "Candidates musthave 18graduate hours for every field in which they will teach. Candidates must be professionally qualifiedto (I) holdthe rankof FullProfessorand(2) beAACSBAcademically Qualified(AQ).
Preferred Qualifications: AACSBAccreditation 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 ofan 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 ofapplying: 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). 12February 24, 2012: Appellant applied for the Chairposition. (CR1: 799) March 5, 2012: Carol Sullivan applies for the Chairposition (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.10) July 2012, the Faculty Search Committee met with Carol Sullivan and determined that Carol Sullivan was not qualified and 'unacceptable' for the Chairposition. (CR1: 836-839). July 16, 2012: Associate Dean Aukerman, notified Defendant's Hiring Manager that the College ofBusiness Search Committee had determined that Sullivan was notqualified for the chairposition. (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 ProvostGandy are copied. (CRI: 842-844) 13August 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 illegalactions of Dean Tom Dock". (CR1: 871; 872 sec.l0) 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 9faculty members who visitedwith Carol Sullivan said she was unacceptablefor 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 theposition". (CR1: 852) August 31, 2012: Defendant identified on its official Applicant log that Carol Sullivan was the candidate 'hired'. (CR1 :885: Sullivan 'hired'; Vanzante 'nothired') 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 ofdeposition).



### ===================== 14Ever since Dock's illegal selection I hiring of Sullivan, Defendant has been offering new and changing reasons for the selection Ihiring ofSullivan to coverup the fact that its investigation had found that Dock's hiring Sullivan was an Inappropriate, unethical, and/orillegalaction. 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 thesearchprocess itwas determined that Dr. CarolSullivan was the mostappropriate fit for ourneeds atthis 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

15not qualified and Dock's hiring ofSullivan 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 offon Dock's hiring ofSullivan. (CR 1: 739, p.86, lines 9-15)



### ================== DEFENDANT'S FINDINGAND KNOWLEDGE OF DEAN'S DOCK LACK OF CREDIBILITYAND DISHONESTY DURING SELECTIONPROCESS 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 of26 acts of "Inappropriate, unethical, and/or illegal actions ofDean Tom Dock". (CR 1: 871-874).

Defendant had found that Dean Dock lied and made up reasons to hire Sullivan at the time ofthese events.
16(8) hiring ofCarol 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 haddecidedpreviously thathewantedto hireher." (CR 1: 872, sec. 1 0) December 6, 2012: Defendant ITAMU SystemAuditor issues its Final Report. (CR 1: 878-879) The TAMU SystemAuditorfound: ThomasDock as Deanhad: (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 ofdonor 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 ofdocuments. (CR I: 881) Appellant's 2006 Release and Settlement with Texas A&M Corpus Christi In 2006, Appellant had ajurytrial against Texas A&M Corpus Christi wherein the jury found Appellant had returned a jury verdict finding that TAMU Corpus Christi had discriminated against Appellant on the basis of his age awarding Appellant lost wages. Appellant entered the Settlement and Release with TAMU 17Corpus 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 anytime 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 ajudgment as a matter oflaw--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 apretext for discrimination. Appellant provides evidence of Disparate Treatment of Appellant and the younger person hired, Carol Sullivan.

18ARGUMENT Standard ofReview The purpose of a summary judgment is to "provide a method of summarily terminating a case when it clearly appears that only a question oflaw 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 summaryjudgment de novo. 

### Rincones at 236. citing 

### Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no pet.).
In deciding whetherthere is a genuine issue ofmaterial fact, evidence favorable to the non-movant is taken as true, and all reasonable inferences are made, and all doubts are resolved, in favor ofthe non-movant.

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

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

19Appellant's 2006 Release and SettlementAgreement with TAMU Corpus Christi was nota Basis to grant SummaryJudgment (A) Appellant's 2006 Release and SettlementAgreement with TAMU Corpus Christi Was Not a Basis Used byDefendantin NotHiring 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 SettlementAgreement. 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 ora basis thatDefendant didnothireAppellant for the Chairposition; and cannot negate the discriminatory act ofwhich Appellant complains: Defendant's wrongful act ofhiring the younger applicant overthe Appellant. August 29, 2012: Date Defendant notified Appellant of non-hire and that
someone else had beenhired. (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 Notthe Basis Defendant DidNotHire Appellant February 20, 2012: Defendant posted an opening seeking applicants for Chair ofthe Department ofAccounting to begin working January 7, 2013. (CR 1: 780- 787). Appellant, 66, applied; Carol Sullivan (51) applied. (CR 1: 652, sec. 4). 20Defendant hired Carol Sullivan, the substantially younger candidate. (CR 1: 652, sec.4) Dean Dock testified Carol, I hired Carol as Chair ofthe Department of Accounting, andat 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 Dockhad 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 Chairposition and Sullivan accepted. (CR I: 842-844) --(Sullivan's acceptance on lastpage, (CR I: 844) "I accept this proposal without any revisions. Thank you for the opportunities andI lookfOrward to contributing to the excellence at Texas A&MKingsville. " "Respectfully, CarolSullivan (signature) Dean Dock then instructed Krueger, Defendant's Director ofResearch for the College ofBusiness, 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),

21August 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 teachingprofession twoyears ago. Although he was aprofessor at Texas A&M University --Kingsvillefor manyyears, his reference list does not include someonefrom this institution. Instead of helping Texas A&M University--Kingsville, he left tojoin a university thatwas alreadyaccredited. We are interestedin someonewho is willingto workhere to makeour CBA anAACSB--accreditedinstitution." (This was Dr.Krueger'sdetermination and finding). (CR 1: 698: p.26: lines 5-16) (*this paragraph is later deleted and rewritten by Dean Dockas 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 nothired was: (CR 1: 888) Vanzante, Neal: NotHired: "Other, Was at TAMUK, butleft. Reference listdoes not include anyonefro(m) TAMUK. Needsomeonewho willworkto help TAMUKachieveAACSBaccreditation". (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 ofthe four non-hired qualified applicants, Dock only changed the reason for

22not hiring Appellant: Dock's "changes dealt with Neal Vanzante" (CR 1: 697, p.25, line 15); Dean Dockprovided the newreason Appellant was nothired. (CR 1: 698, p.28, lines 10-15; CR 1: 701, p.39, line 23 to p.40, line 16). Dock's newreason: (CR 1: 850)

Dr. Vanzante does not meet the two salient position requirements: (I) professorial experiences that meet the current college expectations ofa Full Professorand(2) AACSBAcademically 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 TAMU Comus Christi is not relevant to Appellant's Discrimination Claim of Failure to Hire because it was not a basis for Defendant's decisionnotto hire Appellant

B. Appellant VanZante Was NOT Prohibited From Applying for the Chair Position by the 2006 Release and Settlement Agreement with TAMU-CC. (response to defendant's argument beginning CR 1:298) The 2006 Release and SettlementAgreement ("Agreement") with TAMU-CC provided Appellant could apply for the Chair opening.
23Appellant has produced evidence that the 2006 Release and Settlement Agreement with TAMU-CC provided that Appellant could apply for the opening with Defendant Texas A&MUniversity Kingsville.
The last sentence in Section 3 ofAppellant'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 inpositions such as an endowed chairposition that mav becomeavailable after the execution ofthisagreement. " Appellant filed this action based upon discriminatory actions by Defendant TAMU Kingsville related to Appellant's application process and non-hiring ofan endowed Chair position that became available after the execution of the 2006 Settlement and Release with TAMU Corpus Christi. February 24, 2012: Appellant applied for a posted opening for the Chairofthe Department ofAccounting and Finance. (CR 1:799).
Defendant' job posting identified the opening as being 

### 'the holder ofa namedChair'. (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 TAMU Kingsville had been wanting to have an Endowed Chair and TAMU 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 anyrestriction and not subjectto any restriction. (CR I: 658: sec.30) The parties clearly put in writing and agreed in the last sentence ofSection 3 as
a stand aloneprovision: "The Partiesfurther agreethatthisparagraph (Paragraph 3) shallnotapplv 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 ofthe terms in the 2006 Settlement and Release for Appellant's application to a Chair opening at TAMU Kingsville, THEN these terms would have been added to the wording of the 2006 Settlement and Release with TAMU Corpus Christi regarding Appellant's application for a Chairopening. (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 25Appellant's right to return to work for Defendant orto 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 TAMU 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 orderto be eligible to apply for an endowed Chair opening. (CR I: 778, sec. 3, last sentence)

Appellant's Departure to workat UTPA The Release and Settlement Agreement was executed in September of2006 (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 TAMUK in its AACSB accreditation process. Defendanthadbeen planningto seek AACSB accreditation. (para from CR I: 654, sec.ll-13). Appellant had included a provtsiOn m the 2006 TAMU Corpus Christi Settlement and Release Agreement that specifically provided for this situation: (CR 778: sec.3) 26"The Partiesfurther agree that,for thepurposes of this Agreement, any actions**~r** apP_lications required ofAppellant by Texas A&M University--Kingsville, mcludmg butnot limitedto applications for renewal of tenure andapplicationsfor 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. ofTexas PanAmerican: (a) Appellant requested verification from both Dr. Kay Clayton (Provost) and Dr. Jane Stanford (Dean ofthe College ofBusiness Administration) that the 2006 Settlement and Release Agreement allowed for Appellant's 'resignation" and "reapplication" with Defendant--TAMU Kingsville. (CR 1: p.654, sec.14); (b Appellant requested that both, Dean Stanford and Provost Clayton, contact TAMU 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 TAMU Corpus Christi Settlementand Release Agreement. (CR 1: p.655, sec.14).

27Dean Stanfordtold 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 TAMUK and would have rejected the offer tojoin the University ofTexas Pan American ifDefendant 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 theProvostandtheSystem. (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 ofresignation 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: PresidentJuarez: Pamela Trant: Interim Dean ofCollege ofBusiness Defendant's DirectorofHuman Resources University Provost President ofthe University SeniorAdministrative Assistant 28RobertDiersing: Ms.Guajardo: RichardAukerman: FormerDean ofCollege ofBusiness University Office Manager DepartmentChair,

Defendant's Own Records Evidencethat Appellant Was NotBarred From Leavingand Returning to Workfor Defendant June 7, 2007: Defendant accepted Appellant's letter ofresignation and right to return to work for Defendant at a later date. (CR I:789) Thereafter Defendant accepted Appellant's applications for openings at TAMU Kingsville after 2007. October 18, 2010: Following Appellant's application for Department Chair, Defendantnotified Appellant ofnon-selection and adds "wehopeyou will continue togive 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 ofnon-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 notprotect 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 TAMUK of Appellant taking a "leave of absence" and the fact the leave would require a "resignation" followed by a "reapplication" ifthe period was for more than one academic year. The specific benefit to TAMUK 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 TAMUK for purposes of pursuing AACSB accreditation. For that reason, it was important to exclude TAMUK from the prohibition ofthe stand-alone paragraph 3. (para from CR 1: 656-657: sec. 24) The next version ofthe 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 ofthe paragraph as is because it did not set out the 30conditions Appellant required to protect his opportunities as Tamu Kingsville where Appellanthad taught for over 18 years. (para from CR 1:657: sec. 25) Appellant had already had discussions with the TAMU Kingsville, as set out above, regarding Appellant taking action of leaving TAMU Kingsville to obtain AACSB accreditation and AACSB accreditation experience (which TAMU Kingsville needed in its AACSB accreditation process) and then returning to TAMU Kingsville. TAMU Kingsville would require Appellant and its professors to become AACSB AQ in its accreditationprocess. (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 TAMU Kingsville to become AACSB AQ accredited. (CR 1: 658: sec.28)
Sec.3: Nextto Last Sentence: (CR 1: 778, p.3, sec. 3; p.774, sec. 3)

The Partiesfurther agree that, for the purposes ofthis Agreement, any actions or applications required ofAppellant by Texas A&M University-- Kingsville to maintain his currentposition of Professor of Accounting, including, but not limited to applicationsfor renewal oftenure, applicationsfor 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 TAMUK and Appellant to take the "action" which would allow for 31Appellant's "reapplication" following Appellant gaining the first-hand AACSB experience and getting a record ofbeing AACSB AQ. (para from CRl:658: sec.28)

II. The Trial CourtErred in DismissingAppellant'sAgeDiscrimination Lawsuit
A. Appellant Establishes DirectEvidence ofAge Discrimination Appellant submits that hehas provided direct evidenceto support a factual issue for ajuryto 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 orby witnesses who saw the act done orheard the words spoken." PJC 100 Appellant filed a failure to hire cause ofaction based the wrongful hiring of Sullivan and Defendanthiring a substantially youngerperson--Sullivan (age bias)

32Expressions may be "direct evidence" ofmotivation "when they are related to the specific employment decision challenged, and made close in time to the decision." QualityDialysis, Inc. v. Adams, 2006 Tex. App. LEXIS 4921, Documentary Evidence Defendant admits Dean Dock's Hiring ofCarol Sullivan was Wrongful IIllegal Defendant's internal investigation conducted at the time ofthe 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 ofCarol Sullivan was inappropriate, unethical, and/or illegal. Dr.Aukerman determined that: : (CR 1: 872, sec. 10) Sec ( 1 0) hiring of Carol Sullivanfor theAccountingandFinance Department Chairposition who was not recommendedfor interview by the search committee andwho the faculty have voted8 to 1thatSullivan was 'unacceptable'. "Tom Dock haddecidedpreviously thathewantedto hireher."(CR 1: 872, sec. 1 0) (*Defendantproducedthis document after Dr.Aukerman's deposition) Defendant admits facts to establish age as basis I motivating factor for wrongful hiring ofSullivan Defendant admits that Sullivan, the person hired, was substantially younger than Appellant (CR 1: 301, sec. A). Appellant has also provided evidence to 33support a finding ofage 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 ofwrongful age discrimination in this matter.



### PLAINTIFF ESTABLISH CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATION To establish a prima facie case ofemployment discrimination the Appellant must show: (1) he was a member ofa protected class, (2) he was qualified for his employmentposition, (3) he was subjectto an adverse employment decision, and (4) he was replacedby someone outside ofthe protected class, or he was treated less favorably than similarly situated members ofthe opposite class (disparate treatment cases)." Rincones v. WHMCustom Serv, 457 SW3d 221, 234 citing Michael v. City of Dallas, 314 S.W.3d 687, 690-91 (Tex. App.-Dallas 2010, nopet.)
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 ofCmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d207 (1981).

34APPELLANT'S PRIMAFACIE CASE Step One: ElementNo. 1: Appellantis a memberofa protected class Defendant does not contestthis element. (CR 1: 301, sec.II, A) Appellant was 66 years ofage at the time ofthe employment decision not to hire Appellant for the advertised Chair ofthe Department position,. (CR1: 652: sec. 4). Texas Labor Code Sec. 21.101 defines the protected class ofage as "an individual 40 years ofage orolder".

ElementNo.2: Appellantwas qualified for the Chairposition, Appellant met the Chairposition's actual required minimum qualification requirements; ActualJob Posting Stated 'Required Minimum' and 'Preferred Qualifications' (CurrentEmploymentNotRequirement) The ChairPosition's writtenjobposting: (CR 1: 782 top) Minimum (actual required) Qualifications:

Preferred Qualifications: "Candidates musthave 18graduate hours for every field in which theywill teach. Candidates mustbe professionallyqualifiedto (1) holdthe rankof FullProfessorand(2) beAACSBAcademically Qualified (AQ).
AACSBAccreditation 35====== CHAIRPOSITION'S MINIMUM REQUIRED QUALIFICATION NO.1 Appellantwas Professionally Qualified to hold the rank ofFull Professor Dr.Richard Aukerman, Search Committee Chairand Associate Dean ofthe 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 ofthe College ofBusiness Administration in January 2009; became Associate Dean ofCollege ofBusiness 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' offaculty hirings either as being "on search committees or chair ofa search committee, or doing the hiring as an Interim Dean" and involved in majority ofthe hiring "more than half of the faculty thatare currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.l9, line 25 top. 20, line 19). 36Dr. Aukerman had first-hand knowledge ofworking with Appellant for six (6) years: 2002 to 2007. (auk: p.8, lines13-19; presume,p. ) (CR 1: 782 midpage). Assoc Dean Aukerman, testified, based on Aukerman's experience with Defendant's hiring process, evaluating applicants, his administrative experience, and, afterreviewing Appellant's application

-- resume, that: Appellant was qualified to be hired as a 

### "FullProfessor". (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 teachingposition was as Associate Professor ofAccounting, University ofTexas 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 ofapplying 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 Evidenceto find Appellant was Qualifiedto Holdthe Rank ofFull 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 of2007. 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 ofAssociate Professor (or higher) for at least five years prior to being eligible for appointmentto Full Professor. (Ex. 1: p.2, sec. 3; Ex.36-3 ---tamu 0196) Appellant met this and all qualifications to hold the position ofFull 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).


### ============== CHAIRPOSITION'S MINIMUM REQUIRED QUALIFICATION NO. 2 APPELLANT WAS AACSB ACADEMICALLY QUALIFIED
Dr. Aukerman Associate Dean Aukerman, Chairofthe Search Committee, Testified AppellantMet Defendant's AACSB Academically Qualified Requirements 38Association Dean Aukerman was the Chair ofthe Chair Search Committee. (CR 1: 782 midpage). Assoc. Dean Aukerman testified that, while employed with the Defendant, Dr. Aukerman had been involved in "lots' offaculty hirings either as being "on search committees or chair ofa search committee, or doing the hiring as an Interim Dean" and involved in majority ofthe hiring "more than half of thefaculty 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 ofthree (3) publications from 2009 to the time ofapplying in 2012. (CR 914). In the period from 2009 to applying in 2012, Appellanthad 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).

39Aukerman reviewed his deposition testimony, confirmed this testimony that Appellant was AACSB Academically Qualified: made no corrections. (CR 1: 741- 742)



### ======================= Additional Evidence AppellantWas Classified as AACSB AQ and Satisfied Defendant'sAACSB 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 UTPA and gained AACSB accreditation knowledge during employment at the UTPA. (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 ofAppellant's Affidavit).

40Dr. Krueger was defendant's Director of Research, whose job was to analyze research for AACSB purposes, at the time ofthe 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 ofwhich were injournals 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: AACSBaccreditation Appellant was formally accredited as AACSB Academically Qualified at the time ofhis application process. (CR I: 890, 799, 800; CR 1: 652, sec. 6 Younger Applicant: No record ofbeing AACSB AQ accredited

41Carol Sullivan, the younger applicant hired, had no record ofbeing AASCB accredited. (CR I: 821-832)

DEFENDANT'S MOTION FOR SUMMARYJUDGMENT's REASONS FOR THE ACTUAL HIRING DECISION Defendant's Motion for SummaryJudgment alleges more newreasons for its Decisionnotto hire Appellant Defendant's Motion for Summary Judgment alleges new reasons, which were notpart of the actual selection andhiringdecision, process that Appellant was not qualified for the position and that Sullivan was the most qualified. Defendant's newreasons 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 ofFull 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) 42Appellantprovides evidence that: (b) Appellantmet Defendant's MSJ's newqualification requirements; (c) Defendant's new required qualification requirements were not used in the actual hiring decision-makingprocess; (d) Defendant's new required qualification requirements are based on ten to fifteen year old documents that were part ofthe application process and were not used in the actual hiring decision-makingprocess; (e) Disparate Treatment: Defendant's MSJ's new qualification requirements were not applied to younger candidate hired (Sullivan): Defendant determined Sullivan did not meetrequired qualifications

Defendant Admitted to the EEOC Investigator that Appellantmet all required Qualifications for the ChairPosition thatDefendant alleges Appellant did not meet Defendant had actually determined that Appellant met the mtmmum requirements to be: professionally qualified to (1) holdthe rank ofFull Professor and (2) be AACSB Academically Qualified (AQ), that Defendant's MSJ asserted Appellant did notmeet. 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, leavingfive candidates who did meet minimum qualifications. These were: 43Dr.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 ofFull Professor and (2) beAACSB Academically Qualified (AQ).

Defendant's New Reasons Were nota Basis in the Actual Hiring Decisionmaking Process Defendant's Written Basis for the NotHiring 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 Kruegerto write the basis for hiring Sullivan andthe basis for not hiring the other four applicants considered eligible for the Chairposition, which included Appellant. (CR 1: 697, p.24, lines 2-14)(CR 1: 848). August 23, 2012: date of Dr.Krueger's determination ofthe reason and basis Appellant was nothired was: (CR 1: 848,bottom; Vanzante, Neal) "Professor Vanzante left teachingprofession twoyears ago. Although he was aprofessor at Texas A&M University

-- Kingsvillefor manyyears, his reference list does not include someonefrom this institution. Instead 44of helping Texas A&M University--Kingsville, he left tojoin a university thatwas alreadyaccredited. We are interestedin someone who is willingto workhere to make our CBA anAACSB--accreditedinstitution."
August 26, 2012: Defendant identified the same basis Appellant was not hired
was: (CR 1: 888) Vanzante, Neal: NotHired: "Other, Was at TAMUK, butleft. Reference listdoes notinclude anyone.fro(m) TAMUK. Needsomeonewho will workto help TAMUKachieveAACSBaccreditation". (CR 1: 888) August 29, 2015: Appellant made an 'official request' for the reason Appellant was not hired. (CR 1: 852: top email).
Ofthe FourNon-Selected Applicants: Dean Dockinstructed Krueger to change ONLY the basis for not hiring Appellant
There were five applicants considered qualified for hiring. (CR 1 848, 850). Kruegertestified that there a pool offive 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 45As 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).
DeanDock's NewReason Appellant was Not Hired Dean Dock removed Krueger's entire determination and replaced it with: (CR 1: 850) Vanzante, Neal: Dr. Vanzante does notmeetthe two salientposition requirements: (1) professorialexperiences thatmeetthe current college expectations of a FullProfessorand(2) AACSBAcademically 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 otheremploymenthirings. (CR I: 871-874; 878-879)

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

46KRUEGER'S BASIS APPELLANT WAS NOTHIRE INFERS PLIANTIFF MET THE POSITIONS TWOREQUIRED QUALIFICATIONS
The ChairJob Posting identified two required Minimum Qualifications: (CR 1: 782) Minimum Qualifications: "Candidates musthave 18 graduate hours for every field in which they will teach. Candidates must be professionally qualified to (1) holdthe 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 thejobrequirements, and determined Appellant met the two salient position requirements: (1) professorial experiences that meet the current college expectations ofa Full Professor and (2) AACSB Academically Qualified (AQ) status BUT WAS NOT HIRED for "other" reasons: (CR 1: 848) "Professor Vanzante left teachingprofession twoyears ago. Although he was aprofessor at Texas A&M University-- Kingsvillefor manyyears, his reference list does not include someonefrom this institution. Instead of helping Texas A&M University--Kingsville, he left tojoin a university thatwas alreadyaccredited. We are interested in someone who is willing to workhere to makeour CBA anAACSB--accreditedinstitution. Dr.Krueger did not find that Appellant did not meet the position's required minimum requirements. (CR 1: 848; 782-jobposting) The evidences supports the fact that: Defendant's Hiring Authority determined Appellant met the two salient position requirements: (1) professorial experiences 47that 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, butleft. Reference listdoes not include

anyonefro(m) TAMUK. Needsomeonewho willworkto help TAMUKachieveAACSBaccreditation". (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 andprofessional communication. (CR I: 301-302). These newly asserted requirements were not used in the decision to hire the Chair and notpartofthehiring decision process.

Defendant's alleged required qualification of skills of Leadership, Administration, Interpersonal and professional communication (CR I: 301-02)
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. 48NewRequirements of Leadership,Administration, Intemersonal and Professional Communication NotApplied 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' ofLeadership, Administration, Interpersonal andprofessional communications. (CR 1: 836-838, 840, 846).



### ============================ APPELLANTMET THIS REQUIREMENT Appellantprovides evidence thatAppellantmet the alleged basis ofgeneral requirements for Full Professor ofLeadership, 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 ofFull Professor, had held the position of Full Professor with the Defendant for 18 years, and Appellant's application resume. 49Associate Dean Aukerman had worked in the College of Business with Appellant from about 2002, to 2007, and had first-hand knowledge ofAppellant'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 weboth worked in the College ofBusiness 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 ofreference for Dr. VanZante? A Yes, I have. Q And have you evernominated 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 ofduty, I guess you could say, in, over a number ofyears at the university. Q And what about any nominations for outstanding faculty here at TAMUKingsville? Have you ever-- A Well, Iremember Inominated him for an Outstanding Educator award for the State Accounting Association. Ihonestly don'tremember ifI'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.

====================== 50Appellant's Application and Resume Appellant'sEmploymentwith the Defendant established that Appellantpossessed 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: Appellantreceived above exceptional evaluation. (CR 1: 860) Appellant's application evidenced that, from 2003 to 2012, Appellant received consistentperformance and achievement awards while employed by Defendant and thereafter: (CR 1: 816) Honors and Achievements While employed with Defendant: (CR 1: 816) Texas A&MUniversity-Kingsville, College ofBusiness Administration, Students' Choice Distinguished TeachingAward (May 2003). Texas A&M University-Kingsville, President's SeniorFacultyResearch and ScholarlyExcellence Award (March 2004). This award was only given in 2004. Texas Society ofCertifiedPublic Accountants, OutstandingAccounting EducatorAward (2005). Corpus Christi Chapterofthe Texas Society ofCertified Public Accountants, 512007 to 2012(CR 1: 816) Outstanding Service Award (2007-2008). SouthwestRegion oftheAmerican Accounting Association, Outstanding EducatorAward (2009). Institute ofManagementAccountant's Lybrand Certificate ofMeritAward for outstanding character and excellence in contributingtothe literature for the advancement ofmanagement accounting and financial management. (2011).

Appellant's Service with Defendant for mostrecent 12 Years (CR 1:815) Beginning in 1990, through 2007, Appellant was a member of twelve (12) Defendant College ofBusiness 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 : 817) While employed with Defendant from 1989 to 2007, Appellant's overall student evaluations were significantly higher than the Department ofAccounting, College ofBusiness and University averages. (CR 1: 817, mid page) Teaching Record with Univ ofTexas Pan American 2007 to 2010: (CR 1: 817, top) Appellant's overall student evaluation was 4.62 on a 5point scale.

52Professional Service in Appellant's Field ofAccounting

, Appellant served on board of directors and committees of nonprofit organizations, providing professional services for the Texas State Board ofPublic Accountancy, and serving on editorial boards. (CR 1: 814, top).
Disparate Treatment Defendantdid not apply these 'general qualifications' to the Younger Person Hired: Carol Sullivan, Defendant's OwnRecords Establish Carol Sullivan did notpossessthese 'general

qualifications' ofLeadership, Interpersonal and Professional Communications

The Chair Search Committee members' actual evaluations ofSullivan 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) "Oddpersonality (which isn't necessarily a weakness but seem too much like the person whojust left the position we are trying to fill
...)" (b) "Don't thinkthatshewouldbeable to workwellwith ourstudents." (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 orthe Chairposition : (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 ofCarol Sullivan was an "Inappropriate, unethical, and/or illegalaction". (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 ChairConfirm the Findingsthat 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 employmentwould end and the end ofhercontractin May 2014. (CR 1: 856-857) 54

### ================================== Defendant's SupportingEvidence was NotUsed orRelied 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 oftheir applications. (CR 1: 697, p.15-22) Appellant's application did not contain the information orthese documents that defendant nowuses to assert this new reason. (CR 1: 797-819)

Defendant relies upon documents taken out ofcontext and dated 1997 to 2002. Defendant Exhibits 10, 11, 12, 14, 15 to support its argument. None of these exhibits were partofthe actual decision-making process as shown above. (a)DefendantMSJ Exhibit 15 (CR 1: 477): (b)DefendantMSJ Exhibit 12 (CR 1: 375-376): (c)DefendantMSJ Exhibit 10 (CR 1: 366-371): (d)DefendantMSJ Exhibit 11 (CR 1: 373): (e)DefendantMSJ Exhibit 14 (CR I: 475):



### ================

55

### Defendant'sAlleged Basis thatrequired qualification was a professional, a facilitator, and a trustee to hold the Rank ofFull Professor (DefMSJ: CR 1:303,sec. ii, i) AppellantMetthis Qualification ofa professional, a facilitator, and a trustee to o hold the rank ofFull 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) Defendantbases this assertion on DefEx. 13. Notestimony supportsthis assertion. Def.MSJExhibit 13 is a draft document originating from University ofWisconsin NotDefendant'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 ajury could find from the evidence that Defendant has both, made up this reason and presented a fabricated document, to support this fabricated reason.
56Det'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 ofWisconsin -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 thefollowing AACSB accredited schools: the University of Wisconsin-Eau Claire, the University ofWisconsin-Oshkosh, andthe 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 PlanningandSteering Committee." (CR 1: 396) Dr.Krueger testified that this was a book offaculty policies and procedures that Dean Dock was trying to bring from the University ofWisconsin-Eau Claire; and that Defendant had not adopted it as its policy. (CR 1: 706: p.63: line 18 to p.64, line 3).

DefendantClassifiedAppellant 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** Explanationto the EEOC Investigation Established DefendantsFacultyHandbook, not Ex. 13 was notthe policyused to evaluate a Full Professor
Defendant's Dec II, 2013, Supplemental Response to the EEOC: Defendant acknowledged to the EEOC investigatorthat it was Defendant's Faculty Handbook that set outthe requirements for the position ofFull Professor. (CR I: 907-908) Itwas notDefMSJ Ex. 13,


### ======================= Documents relied upon by Defendant were not used in the Actual Decision-Makingprocess Defendantproduces DefMSJExhibits, 10, 14, and 15 to assert that, as a matter oflaw, Appellant did notpossess these newqualifications. (CR I: 303-304). These exhibits were never a part ofthe actual decision-makingprocess.

None ofthese documents were part ofAppellant'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).
58Def. MSJ ex. 14: (CR 1: 475) One page from Appellant's 2001 evaluation beginning with Dean Diersing acknowledging Appellant's greatjob performance: 

### 'Congratulations on anotherfine 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 afterthis date. (CR 1: 

### =================== Disparate Treatment Defendant did notrequire Sullivan, the younger candidate selected, to possess these newly alleged qualifications of'a professional, a facilitator, and atrustee' which form the basis ofDefendant's Motion for Summary Judgment Disparate Treatment these New Requirements NotApplied to YoungerApplicant 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 ofbeing "aprofessional, a facilitator, and a trustee" and was not qualified for the Chair. The Chair Search Committee members determined that Sullivan did not meetthe 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)

59DefendantassertsthatAppellantwas notAACSB AQ qualified because Appellanthad nottaughtin the 18 month period priorto applying. (CR 1: 305-306:DefMSJp.l3-14).
ii. Appellantwas AACSB Academically Qualified Defendant's MSJ asserted that Appellant lost his AACSB AQ status by not teaching for the 18 months priorto applying. (CR 1: 304-305, sec ii) Defendant'sAssertion thatAACSB StandardsRequired to be 'currentlyemployed' attime ofApplication is FALSE Defendant processed Appellant's application as a qualified candidate through-out the entire hiring process by Defendant's Hiring Authority because current employmentwas not an actual requirement. (CR 1: 883-886, 888, 892) DefendantAdmits 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))
JudgeVela denied Defendant's priorMotions 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 Pleato the Jurisdiction and No-Evidence Summary Judgment). 60Judge 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 currentMotion for SummaryJudgment: (a) AACSB Standard 10: (CR 1: 295: Ex. 16 to DefMSJ), (CR 1: 31: Def ex list for March 9, 2015, Summary ofArgument) (b) Appellant's Application: (CR 1: 31: Def ex list for March 9, 2015, Summary ofArgument; and CR 1:295: Ex. 23 to DefMSJ) (b) Dock deposition: (CR 1: 295: Ex. 17 to DefMSJ) (CR 1: 31: Defex list for March 9, 2015, Summary ofArgument) (c) Krueger deposition: (CR 1: 296: Ex. 23 to DefMSJ) (CR 1: 31: Defex list for March 9, 2015, Summary ofArgument)


### ====================================
AACSB does not have a requirement that actual teaching ofcourses is required to maintain AACSB AQ status. (CR 1: 660-61, sec.40; CR1: 896-901

-- AACSB standard 1 0)

61AACSB Standard 10 and AACSB White PaperEstablish AppellantMaintainedhis AACSB AQ Status Defendant admitted in both its March 9, 2015, Summary ofArgumentpresented 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 ofdevelopmental activities within thepastfive years..." citing AACSB Standard 1 0) (CR 1:304, sec. i: "discipline basedscholarship over thepreviousfive 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 ofacademic or professional

qualifications": (CR I: 900 AACSB Standard 10

- mid page)(CR I: 904: mid page)
Relevantjournal and/or otherbusinesspublication editorships and/or editorial board/committee service Consulting activities that are material in terms oftimeand substance Faculty internships Sustainedprofessional work supporting qualified status Leadership positions in recognized professional/academic societies Advanced academic coursework Relevant, active service on boards ofdirectors Documented continuingprofessional education experiences 62Significantparticipation in professional and/or academic conferences Additionally:"Itis notAACSBInternational's intent to limitthe range of developmentactivities thatmaybe 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 Sufficientto Sustain Academically Qualified (AQ) Status "All faculty members are expected to demonstrate activities that maintain the currency and relevancy oftheir instruction. Faculty members can maintain qualifications through a variety ofefforts including the production ofintellectual contributions, professional development, and currentprofessional experience."
APPELLANT MAINTAINEDAACSB AQ STATUS Defendant's MSJ admitted that AACSB AQ status is maintained I sustained by under AACSB guidelines ifprofessor /faculty 'continue to undertake appropriate development activities that sustain his
..... intellectual capital and currency in the fieldof teaching'. (CR 1: 305 middle para).


### 63This wording means that a person needs to remain "current in their field of teaching." Appellant's "field ofteaching" is accounting. (CR 1:660, sec.40) This does not mean someone needs to be teaching. (CR 1:660, sec.40) The AACSB Sec. I0 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 LookBackPeriod Maintenance of AACSB AQ Status Defendant admits in its Motion for Summary Judgment that there is a "fiveyear look back used in making applicationsfor AACSB accreditation". (CR 1: 305, top sec) By defendant's own acknowledgement ofa five year look back period, Appellant was AACSB AQ at the time ofthe Defendant's selection ofthe Chair opening in August of2012. December2009: Appellant had a formal record ofbeing AACSB Academically Qualified while employed at the University ofTexas 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 entiretime while working at UTPA. (CR 1: 652, sec. 5). 64August 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 ofUTPA's AACSB December 2009 formal certification ofAppellant 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 ofMaintaining AACSB Academically Qualified status Appellant's publications vastly exceeded the amount both Director ofResearch 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 ofeight acceptable quality publications (all of which were in journals with acceptance rates ofless than 30% listed in Cabell's director). (Ex. 1: sec. )(Ex.11: Appellant's application, p.tamu 0027-0028).

65Appellant 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 midpage. (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 ofCPA's (CR 1: 812-813); (5) August 2011: Appellant participated in Accounting Professional Meeting: American Association National Meeting in August 2011 where Appellant reviewedtwo accountingpapers. (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);



### ==========================

66Defendant's Records Establish 'CurrentEmployment' was not aRequirement for the ChairPosition

Appellant produced evidence to support a finding that: (1) Appellant was a qualified applicant for the Chairopening; and (2) Defendant found Appellant to have been a qualified applicant and to have metthe required qualifications ofthe Chairposition. 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 ofnon-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 offour applicants identified meeting required qualifications but 'nothired'. (CR 1: 885-886). Applicants meeting required qualifications: (in order as listed) Haque, Mohammed Vanzante, Neal (Appellant) Rabbani, Mohammad Ghosh, Dillip Sullivan, Carol NotHired NotHired NotHired NotHired Hired Applicants notmeetingrequired qualifications: (in order as listed) Francis, Conrad Hopson, James Committee,Bruce

67 DidNotMeetMin Quais DidNotMeetMin Quais Did NotMeetMin 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 identifiedmeetingrequired qualificationsbut 'nothired'. Applicants meetingrequired qualifications: (in order as listed) Ghosh, Dillip Haque, Mohammed Rabbani, Mohammad Sullivan, Carol Vanzante, Neal (Appellant) NotHired NotHired NotHired Hired NotHired Applicants not meetingrequired qualifications: (in order as listed) Committee, Bruce Francis, Conrad Hopson, James DidNotMeetMin Quais DidNot MeetMin Quais DidNotMeet Min Quais

Dean Dock and Dr.Krueger August 23, 2012: DefendantprocessedAppellant as one offive candidatesthat met Chair position requirements to be considered for hire. (Ex. 18) The qualified candidates for hiring were: Ghosh, Dillip NotHired Haque, Mohammed NotHired Rabbani, Mohammad NotHired Vanzante, Neal (Appellant) NotHired 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 nothired for the advertised and open positionthe subject ofthis lawsuit, Chair ofthe Department ofAccounting and Finance. (CR I: 892; CR 1: 650-51, sec. 4). NOT DISPUTED

ELEMENT No. 4: A. defendant hired someoneyounger 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 ofapplying for the Chair opening. (CR I: 652, sec. 4). Dean Dockhad met Appellant at a business function at TAMU-K a short while before Appellant applied for the Chairopening. (CR 1: 653, sec. 4).


### 69Dean Dock drove to personally meet Sullivan at an offcampus location a few weeks after Sullivan applied for the Chairopening. (CR 1: 834) Sullivan was 51 years ofage 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 youngerthan Appellant. (CR 1: 652, sec.4) In an age discrimination suit, a Appellant may satisfY and establish hisprima facie case ifthe 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: Defendanttreated the younger applicant hired (Sullivan) differently Appellant incorporates herein his facts and argumentregarding: 1. Sullivannot meeting its basis of meetgeneralqualifications' of Leadership, Administration, Interpersonal and professional communication 2. Sullivan not meeting its basis thatthe selectee mustbe "aprofessional, a facilitator, and atrustee." 3. Sullivan was determined not qualified and hired. (CR 1: 836-838, 846)

70STEP THREE: Appellant establishes a factual issue to show that Defendant did not have a legitimate non-discriminatory reason its employmentdecision attime ofdecision;

Once the employer'sjustification 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 ofthe nonmoving party and not make credibility determinations orweigh 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).

71DIRECT 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 Defendantreasserts its arguments regarding Appellantbeing qualified for the position and reasserts its argumentregarding Appellant's 2006 Settlementand 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 Chairposition, by his 2006 Settlement andRelease with TAMU Corpus Christi. 2. that Appellant was not qualified because ofAppellant's alleged poorrecord ofemployment with Defendant (CR 1: 306, B) 3. that Appellant was not qualifiedbecause ofAppellant's based on Appellant's alleged absence 'from the teaching profession' for the eighteen months priorto Appellant's application (CR 1: 306, B)
As evidence Defendant's legitimate reasons are false: (I)Appellant restates his qualification arguments herein as ifset forth verbatim

72(2) Appellantrestates his disparate treatment arguments herein as ifset forth verbatim. (3)) Appellant restates his 2006 Settlement and Release with TAMU Corpus Christi arguments herein as ifset 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 Appellanthadnottaught for 18 months b. Sullivan's articles were betterthan 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. Defendanthas already investigated and determined that Dean Dock'sHiring of Sullivan was Wrongful Defendant's internal investigation conducted at the time ofthe 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 ofCarol Sullivan was inappropriate, unethical, and/or illegal. Dr.Aukerman determined that: (CRl: 871,872, Sec. 10) Sec (10) Thefaculty who were involved in the interview of Carol Sullivanfor the Accounting and Finance Department Chair position indicated that she was unacceptable by a margin of8 to 1. "Tom Dock had decidedpreviously that he wanted to hire her. She was not recommendedfor an interview by the search committee."

### (CRl: 872, Sec. 1 0) (*Defendantproducedthis document afterDr.Aukerman's deposition)
Appellant's 2006 Settlement and Release with TAMU Corpus Christi wasNOT a basis for not hiring Appellant.
Appellant incorporates his 2006 Settlement and Release with TAMU Corpus Christi argument above here as ifset forth verbatim. Appellanthas produced evidence to show that the Defendantdid not rely on the 2006 Settlement and Release with TAMU Corpus Christi and the Release was not
a basis for not hiring Appellant.



### 74Appellant produce evidence to establish that Appellant was not barred from applying for the Chair position by the 2006 Settlement and Release with TAMU Corpus Christi. Appellantproduced evidence that Defendant Texas A&M University Kingsville did not consider Appellant barred from applying for positions, consistent with the terms ofthe 2006 Settlement and Release with TAMU Corpus Christi. 1. Appellant had applied for positions with Defendant four times prior to applying for the Chairopening. 2. August 29, 2012: In notifying Appellant of non-selection for the Chair, Defendanttold Appellant "we hopeyou will continue to give our institution consideration for employment." (CR 1: 852)

Defendant's basis that Appellant was not hired because ofAppellant's alleged poor record ofemployment with Defendant is FALSE Defendant's SupportingEvidence was NotUsed orRelied upon by Decisionmakers in Not HiringAppellant: 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) 75Appellant's application did not contain the information nor these documents that defendant nowproduces to assertthis newreason. (CR 1: 797-819)

Defendant'sbasisthat Appellant was not qualifiedbecause ofAppellant was

not currentlyteaching when applied and Appellant's alleged absence 'from the teachingprofession' for the eighteen monthspriorto Appellant's application is not worthy ofcredence.

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 ofthe Chairposition'srequired qualifications: Aukermanthen 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 

### "FullProfessor". (CR 1: 738, p.82, lines 5-21) (Appellant's application at CR 1: 797-819; teaching employment history at CR 1: 800). Appellanthas 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. 763. The AACSB standards allow a five year look back period to qualify for currentAACSB 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 Appellanthad 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 orAACSB AQ accredited. b. Sullivan's articles were betterthan 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 yearperiod 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 77publications (all ofwhich were injournals with acceptance rates oflessthan 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 ifSullivan 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 of2012, when Sullivan provided Krueger copies ofher publications when Sullivan moved into the Chair's office in Fall of2013. (CR 1: 714, p.57, line 21 correction). Defendant's own documents establish this is false. The evidence established Defendant's Search Committee, Chair ofSearch 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 DockIgnored the vote ofthe 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 78department 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: 837).

Dockchanged the terms ofthe advertised position requirements and did not re-advertise the position in orderto hire Sullivan. The Defendant needed to hire a Chair ofthe Department ofAccounting 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 ofSt. Thomas for the September 2012 to May 2013 school term). The change in startdate 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 anda new 79posting". (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 ofthe 2012-2013 school term; and that starting in the middle ofa 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 NotMeetRequired Minimum Qualification to Hold Rank ofFull ProfessorWhen Hired Defendant required five years ofemployment in position ofAssociate 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 ofemployment in position ofAssociate 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 ofFull Professor as the faculty member must have 5 years working in rank ofAssociate Professor. (CR 1: 651, sec. 3; 908 mid pageSullivan's revised work history provided to the EEOC 15 months after she had beenhired). 80Appellant'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 methe minimumrequired 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 historyprovided of places worked and dates" (CR 1: 836); "Dr.Sullivan's resume and cover letter did not list key information. For example currentplace of work, where all she hadworked in thepast ....." (CR 1: 837) In December of2013, fifteen months after Sullivan was hired, Defendant and Sullivan prepared a workhistory 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 orhigherfor 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 tothe EEOC.

81Defendant had to include Sullivan's 2012-2013 year ofemployment with the University ofSt. Thomas. (CR 1: 908) The Defendant's new Chair was to begin working onJanuary 7, 2013. (CR 1: 780) Sullivan did not have the required five years at the time she was hired in August of2012, 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 ofAssociate Professor orhigher to quality as a Full Professor, as required to be hired. (CR 1: 908-resume)(CR 1: 782-job posted minimumrequired qualification ofFull Professor) December 11, 2011: Defendant's identification ofSullivan's workhistory. Only the three years employed as an Associate Professor of Accounting qualified towardthe five years employed in rank. (CR 1: 651, sec.3) Positions ofVisiting Associate Professor are notpositions of'rank'. (CR 1: 651,
sec. 3). Sullivan's identified employment history was positions ofVisiting 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 VisitingProfessor is not employment in 'rank'. (CR 1: 651, sec.3)

82(3) Visiting Professor ofAccounting, University ofTexas at Arlington (2000- 2002): Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3) (4) VisitingProfessor, TexasA&MUniversity at College Station (1996-1997): Employment as VisitingProfessor is notemployment in 'rank'. (CR 1: 651, sec.3)

83CONCLUSION Appellant submits that ifthe facts and allegations he has presented are taken as true and construed in his favor, Appellant has presented an issue offact 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 evidencepresented. 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 reliefto which he is entitled at law or in equity, and requests general relief. Respectfully submitted,
Is/Chris McJunkin Chris McJunkin State BarNo. 13686525 2842 Lawnview Corpus Christi, Tx. 78404 Tel: (361) 882-5747 Fax: (361) 882-8926 cmcjunkin@stx.rr.com

84CERTIFICATE OF COMPLIANCE Pursuant to TRAP 9.4(i)(2)(B), I hereby certifY that Statement of Facts, summary ofargument, argument, conclusion and prayer contain 14,292 words as determinedby WORD 2007 Is/Chris McJunkin

CERTIFICATE OF SERVICE
I hereby certifY that on the 26th day ofOctober 2015, a copy ofthe foregoing
was delivered in accordance with the Texas Rules of Civil Procedure on the following person: Marie! Puryear, Assistant Attorney General Office ofAttorney General

- LitigationDivision 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 DefendantTexas A&M University-Kingsville'sMotion for 

### SummaryJudgment (CR 1: 1006) Appendix 2: March 18,2015: OrderDenying Defendant's No-Evidence Motion for SummaryJudgment (CR 1: 291). Appendix 3: March 25, 2015: OrderDenying Defendant's Pleato

### Jurisdiction (CR 1: 292). Appendix4: October 9, 2015: Appellant's Motion forExtensionofTime to FileBriefto October23, 2015, was granted.Appendix!: June 10, 2015: OrderGranting DefendantTexas A&M University-Kingsville's Motion for SummaryJudgment (CR 1: 1 006)NEALVANZANTE, Plaintiff
VS. TEXAS A&M UNJVERSITYKINGSVILLE, Defendant CAUSENO. 14-238-D § § § § § § § § IN THE DISTRICT COURT 105mJUDICIAL DISTRrCT KLEBERO COUNTY, TEXAS

ORDERGRANTING DEFENDANTTEXAS A&M UNIVERSITYKINGSVILLE'S MOTIONFORSUMMARYJUDGMENT
Cameonthisday tobe heardDefendantTexasA&M University- Kingsville'sMotionfor Swnmary Judgment,andanyresponsivepleadingsand/ororalargwnent. Afterconsideringthe evidence, the Courtfinds the Motiondoeshave merit and makesthe following ruling: IT IS HEREBY ORDERED thatDefendantTexas A&M Univetsity-Kingsville'sMotion for SummaryJudgmentis herebyGRANTED. IT IS FURTHERORDERED thatPlaintiff's lawsuit inits entiretyis DISMISSED with

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### Appendix4: October9, 2015: Appellant's Motion forExtensionofTime to

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Hon. Christopher E. McJunkin Attorney at Law 2842l..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. TexasA& M UniYerslly Dear Mr. McJunkin: FILECOPY NUE'CES COUNtYCOURlHOUSE 901 LEOPARD, 101MFLOOR CORAlSCHR18TI, TEXAS 78401 38HIIIII.o416(TEL) 36HJ8II.0194(FAX) lfiDI1ILOOOOUNTY ADioiNI8IRATION BlDG. 100E. CANO, STHFUXlR EDINBURG. TEXAS711538 956-3111-24011 (TEL) 956-316-2403 (FAX)

# --""'-,goWoAppellant's motion for extension oftime 

### to file brief in theabove cause was this dayGRANTED bythis Cowl Thetime has beenextendedto Friday, ()ck)ber23, 2015. Verytrulyyours,

# ~~.**?'(~** Dorian E. Ramirez, Clert DER:sc cc: Hon. Marial Puryear(DELIVERED VIA E-MAIL)