X Articles Dec 14, 2020 | Michelle Robberson Texas Supreme Court Clarifies “True Replacement” Theory of Employment Discrimination By: Michelle Robberson The Texas Supreme Court recently addressed the proof requirements for a “true replacement” theory of employment discrimination in a case involving allegations of age discrimination, Texas Tech University Health Sciences Center-El Paso v. Flores, __ S.W.3d __, No. 19-0790, 2020 WL 6811725 (Tex., Nov. 20, 2020). The issue under this theory was whether the older employee was “replaced” by the younger employee, with age as a motivating factor. The Court concluded that a staff restructuring at the university did not result in the “true replacement” of an older employee and, thus, did not violate the Texas Commission on Human Rights Act (“TCHRA”). The TCHRA prohibits an employer from committing an “unlawful employment practice” against an employee “because of” the employee’s age (i.e., employees who are “40 years of age or older.”), among other reasons. Tex. Lab. Code §§ 21.051.1, 21.101. Generally, an employer commits an unlawful practice “because of” an employee’s age if the employee’s age was “a motivating factor” for the practice, “even if other factors also motivated the practice.” Id. § 21.125(a). Layered onto the TCHRA framework was the fact that Texas Tech-El Paso is a state university with sovereign immunity. Thus, Texas Tech-El Paso challenged Flores’s claim via plea to the jurisdiction, and Flores had to prove she fell within the waiver of immunity by (a) alleging facts that would establish that the university violated the Act, and (b) providing evidence to create a genuine fact issue material to that allegation. The Court surveyed numerous state and federal employment cases in reaching its decision, given that Texas modeled the TCHRA on its federal counterparts, including Title VII. The Court noted somewhat of a split among cases that had considered a “true replacement” theory of employment discrimination. The focus[1] was on whether Flores presented a prima facie case. As to the elements of age discrimination, Texas Tech-El Paso did not dispute that Flores (1) was a member of a protected class (older than 40), (2) was qualified for the position, and (3) suffered an adverse employment decision. Thus, the analysis centered upon the fourth element: whether Flores was (a) replaced by someone significantly younger, or (b) otherwise treated less favorably than others who were similarly situated but outside the protected class. Element (a) involves the “true replacement” theory. Factually, Flores had worked for the university for 20 years, working her way up from a temp secretary to “director” in charge of operations in the office of the regional dean, Dr. De La Rosa. During this time, Texas Tech-El Paso was a regional campus of the Texas Tech University School of Medicine. But, in 2013, Texas Tech-El Paso became a separate university within the Texas Tech University System. Thus, instead of having a regional dean, the new university was to have a president. Texas Tech first appointed an interim president, and Flores continued to work in what had become the president’s office. During this time, she received a 40% raise to her annual salary (from $60,000 to $85,000). In July 2014, Texas Tech named a permanent president and dean of the medical school, Dr. Lange. For the first few months of Dr. Lange’s tenure, Flores continued to work in the president’s office with Dr. Lange and Dr. De La Rosa. In November 2014, Dr. Lange appointed Dr. De La Rosa as a provost and Vice President of Academic Affairs. In February 2015, Dr. Lange decided to eliminate Flores’s “director” position as part of a restructuring of his office. He decided he needed an Assistant to the President, a more administrative position. This position had not previously existed. Dr. Lange and Dr. De La Rosa discussed who might be a good fit for the new position. Dr. Lange did not want to put Flores in the position and cited some deficiencies in her work (although he never reported those deficiencies to Flores). Dr. De La Rosa wanted Flores to work with him in his office. In March 2015, Dr. Lange selected Vanessa Solis for the new position, and Solis was 20 years younger than Flores. Flores had hired Solis in 2010 as an executive associate in the regional dean’s office, and she had performed well in that role. Over the ensuing months, Dr. Lange directed Solis to assume some of Flores’s duties, including handling communications with the board of regents, preparing their meeting agendas, and managing Lange’s calendar. Flores went to work for Dr. De La Rosa, with different job duties and a reduction in salary (back to $64,000). Although other administrative staff had been reclassified in the restructuring, Flores was the only one who received a pay cut. In the lawsuit, Flores claimed she had been replaced by Solis, with age as a motivating factor. The university argued that the job change was not a “true replacement” but, rather, that Flores’s position had been eliminated as part of a restructuring, and that only some of her former duties had been transferred to Solis. The Texas Supreme Court recognized that, to determine whether a “true replacement” had occurred, it could not look only to job titles and salaries; it also had to look at the actual duties, comparing the duties of Flores’s prior position with those of Solis, the employee she alleged replaced her. After considering the evidence and comparing the duties, the Texas Supreme Court agreed with Texas Tech-El Paso. The Court explained: Flores was removed from her position, that position was not filled, an existing employee (Solis) was given a new and different position, and Solis was assigned some but not all of Flores’s former duties. The Court held that, under these circumstances, “the evidence is sufficient to create a fact issue over whether the existing employee truly replaced the plaintiff if the existing employee’s duties in her new position are so similar to the plaintiff’s former duties that a reasonable juror could conclude that the existing employee actually took or was placed in the plaintiff’s former job or position.” However, on the evidence presented by Flores, the Court held that a reasonable juror could not conclude that Solis took or was placed in Flores’s former position as director in the president’s office. The evidence proved that Solis took over some of Flores’s duties as Assistant to the President, but not all of Flores’s former duties. Solis’s new position, the Court said, did not suggest even a “similar” level of authority and responsibility as the prior “director” position. The salary also was less ($58,000). Continuing, the Court said: [T]he evidence here simply would not permit a reasonable juror to conclude that Solis’s new position was so similar to Flores’s former position that Solis essentially took over Flores’s job. To put it simply, the undisputed evidence conclusively establishes that Flores stopped being a “director” and Solis became an “assistant.” Therefore, without evidence from which a reasonable juror could conclude that Solis, a significantly younger employee, took or was placed in Flores’s same job, Flores could not sustain a prima facie “true replacement” claim. The Court also briefly addressed the other part of the fourth element – whether Flores suffered disparate treatment. Largely based on the same evidence, the Court held Flores could not prove disparate treatment discrimination because she could not prove that she and Solis were “similarly situated.” Employees with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records are not considered to be ‘nearly identical’ and, thus, similarly situated. At the time of the restructuring, Solis was an assistant with a lesser salary and different job responsibilities from Flores in her “director” position. Thus, this theory failed as well. Because Flores could not make a prima facie case of a violation of the TCHRA based on age, Texas Tech-El Paso was protected by sovereign immunity. The Court reversed the trial court’s order denying the plea to the jurisdiction and rendered judgment dismissing Flores’s claims for lack of jurisdiction. [1] Although the Court considered other issues, this article focuses on the “true replacement” portion of the Opinion.