The Texas Tech University System and its board of regents cannot escape an unlawful age discrimination lawsuit filed by a former employee, the Amarillo Court of Appeals has ruled.
Texas Tech University Health Sciences Center, Texas Tech University System, Texas Tech University and Texas Tech University System Board of Regents v. Pureza “Didit” Martinez (No. 07-22-00055-CV) arose from Chancellor Tedd Mitchell’s decision to terminate Martinez, his 72-year-old chief of staff, and elevate a much younger white male to the same position. Martinez alleged that Mitchell, bowing to pressure from the Board of Regents, unlawfully terminated her in order to “lower the average age” of President’s Executive Counsel in violation of § 21.051, Labor Code. If Martinez’s allegations are true, it appears that the Board of Regents made the situation worse by trying to induce Martinez to agree to a settlement in return for releasing them and the other defendants from liability and, when she rejected the offer, spreading misinformation about why she was fired.
Martinez filed complaints with the Texas Workforce Commission and Equal Employment Opportunity Commission. The EEOC found “reasonable cause to believe” that Martinez was fired because of her age in violation of federal law. She also filed suit in a Lubbock County district court. The defendants (except for the HSC) filed a plea to the jurisdiction, which the trial court denied. They then filed an interlocutory appeal in the court of appeals.
The court of appeals reversed with respect to Texas Tech University but affirmed as to the remaining defendants. To establish a waiver of sovereign immunity, Martinez had to allege facts showing that the Board of Regents, et al. were her “employers” for purposes of § 21.051 (prohibiting discrimination in employment based on race, color, disability, religion, sex, national origin, or age). The statute applies to private and public sector employers and confers standing to sue both a direct employer and a person who “using its power position of power and control, adversely and wrongfully interfered with the plaintiff’s employment relationship with a third party” (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999)). The court first established that the Board of Regents was Martinez’s “employer” under the statute based on its “power and control” over Martinez’s employment (citing various provisions in the Education Code granting the regents authority to control and manage the system and its component institutions). Sovereign immunity was thus waived to the extent of Mitchell’s damages, if any.
The regents further alleged that Martinez did not exhaust her administrative remedies because her TWC/EEOC complaint did not identify them and the HSC has her employers. Again based on the allegations in Martinez’s pleading, the court found no merit in this argument. “As can be seen,” opined the court, “Martinez expressly named Mitchell as the one who effectuated the decision to terminate. Yet, she rather clearly implicated the Board of Regents when averring that he acted to ‘appease’ it. Furthermore, her implication of the University System into the scheme can be inferred from a reference to Mitchell as Chancellor for the University System. In other words, one can infer from her allegations that Mitchell wore the hat of both Center president and University System Chancellor when acting to appease the Board of Regents by reducing the age of those on his executive committee.” The EEOC thus had plenty of information to identify Mitchell, the System, and the regents as respondents to the complaint.
This is an interesting case in many respects. Martinez’s primary evidence was an email she received from Mitchell outlining the Board of Regents’ high level of interest in reducing the average age of senior staff for, among other things, budgetary reasons. Almost immediately thereafter, Mitchell fired Martinez and replaced her with a much younger (and presumably much cheaper) man. The System’s unsuccessful (and ham-handed) attempt to buy her off, followed by its alleged rumor-mongering, don’t pass the smell test either. At the very least, the whole mess could have been handled better (Rule #1: don’t send incriminating emails to employees you intend to fire) and with some awareness of the applicable law. In any event, this case offers an instructive example of how not to conduct a youth movement in one’s workforce.
