The Texas Supreme Court has held that the Texas Tech University Health Sciences Center-El Paso did not discriminate against an employee who was passed over for a new chief of staff position for a younger candidate.
Texas Tech University Health Sciences Center-El Paso v. Loretta K. Flores (No. 22-0940; December 31, 2025) marked the second time this case has come before SCOTX. The dispute arose in 2014, when, as a result of a university system-wide restructuring, Texas Tech hired a president for the newly separate medical school (under the prior structure, the El Paso medical school operated as a regional campus of Texas Tech School of Medicine). Flores, who had worked for the regional dean as director in charge of operations in El Paso since 1993, lost her position when the new president reorganized the office. Instead, in 2015 the president reassigned the 59-year-old Flores to a different position as “executive associate” in the provost’s office. That position paid less than her prior one. Flores filed a complaint with the Equal Opportunity Commission and, in August 2016, sued Texas Tech for age discrimination under Chapter 21, Labor Code. She asserted that she had been replaced by an employee who was in her mid-thirties. The trial court denied Tech’s plea to the jurisdiction, and the El Paso Court of Appeals affirmed. SCOTX, however, reversed, concluding that “a reasonable juror could not include that [the younger employee] took or was placed in Flores’s former position as director in the president’s office.” Texas Tech University Health Sciences Center-El Paso v. Flores, 612 S.W.3d 299, 310 (Tex. 2020) (Flores I).
The second iteration of the case commenced in July 2016, when the TTHSC-El Paso president created a new chief of staff position in his office. He encouraged another employee, Sanchez, who was considering leaving the university for another opportunity, to apply for the job, which she did. Flores and several others likewise applied. Flores and Sanchez received interviews, and the president hired Sanchez. Flores again filed an EEOC complaint and filed a second lawsuit against the university, again asserting age discrimination and retaliation for the first complaint and lawsuit. The trial court again denied the university’s plea to the jurisdiction. This time the court of appeals reversed as to the retaliation claim and dismissed it, allowing the age discrimination suit to proceed. SCOTX again granted review.
In an opinion by Justice Lehrmann, SCOTX reversed and dismissed Flores’s discrimination claim. The question was whether Flores created a fact issue on her statutory claim. According to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must create a presumption of illegal discrimination by establishing a prima facie case, shifting the burden to the defendant to rebut the presumption by establishing “a legitimate, nondiscriminatory reason for the employment action.” If the defendant does that, the burden shifts back to the plaintiff to “overcome the rebuttal evidence by establishing that the defendant’s states reason is a mere pretext” (citation omitted). And “because a statutory violation is necessary to establish an immunity waiver—such that jurisdiction and the merits intertwine—all three steps of the framework ‘are relevant to the jurisdictional inquiry’” (citation omitted).
Unlike in Flores I, where SCOTX concluded that Flores did not make a prima facie case, the university did not dispute that she made that showing in this case. The parties likewise did not dispute that the university “articulated legitimate, nondiscriminatory reasons for its action, rebutting the presumption established by the prima facie case,” i.e. that Sanchez was the better-qualified candidate for the job, partly because of her extensive accounting and auditing background, which Flores didn’t have. The issue thus narrowed to whether Flores could establish a genuine issue of material fact “that the University’s stated reasons for its employment action were a pretext for discrimination.” One way to show pretext is to provide sufficient evidence that “the employer’s proffered reason for the adverse action is false” (citation omitted). Texas Tech argued that Flores provided no evidence that the reason for its action was false and, even if she did, “the evidence nevertheless does not support an inference of discriminatory intent.” The Court agreed, detailing Sanchez’s superior qualifications, particularly in the accounting and auditing skills needed for the chief of staff position. In the end analysis, the Court noted that while “both candidates had their strengths, we will not lightly second-guess the manner in which President Lange weighed those qualifications” (citation omitted). And whereas the court of appeals questioned the president’s credibility because it did not believe that the auditing and financial skills were listed on the job description, SCOTX concluded otherwise, stating that “Flores and the court of appeals gloss over these duties, which correspond directly with Sanchez’s finance and accounting experience, and instead appear to focus on the fact that the specific words ‘accounting,’ ‘audit,’ and ‘grants’ were not used.”
The Court then turned to the fact that the president encouraged Sanchez to apply for the job before it was posted, which Flores argued occurred because Sanchez was younger. The university responded, quite logically, that if the president had in fact “pre-selected” Sanchez for the job, he could not have discriminated against Flores in the first place. The Court thought both arguments went too far, and that the case resolved purely on the qualifications issue. Flores made one last pitch, arguing that the president asked her about her age in the interview, a question she refused to answer. But he clearly already knew it and stated that he asked the question to bring up Flores’s first EEOC complaint. He also said he didn’t care how old she was and that it had nothing to do with the position in any event. The Court took the position that the president’s allusion to Flores’s age did not constitute “an admission of discrimination” by the president or Texas Tech and certainly did not vitiate the fact that Sanchez was the better qualified candidate. Flores, therefore, failed “to present evidence that would allow a reasonable factfinder to disbelieve the University’s stated reasons for selecting Sanchez as the president’s chief of staff.”
The Court undoubtedly reached the right result, and the case is valuable to employers faced with the type of situation in which Texas Tech found itself here.
