The Univ. of Tex. Rio Grande Valley v. Kavanaugh

THE UNIVERSITY OF TEXAS RIO GRANDE VALLEY, Appellant, v. PAUL C. KAVANAUGH, Appellee.

No. 13-22-00351-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 23, 2023

On appeal from the 138th District Court of Cameron County Texas.

Before Justices Benavides, Tijerina, and Peña

MEMORANDUM OPINION

GINA M. BENAVIDES JUSTICE

In this interlocutory appeal from the denial of a plea to the jurisdiction, appellant University of Texas Rio Grande Valley ("UTRGV") contends that appellee Paul Kavanaugh failed to present sufficient evidence of pretext to support his claim of age discrimination. We affirm.

I. Background

In March 2019, pursuant to UTRGV's Reduction in Force (RIF) policy, Kavanaugh was laid off from his position as a grant proposal writer in the Vackar College of Business and Entrepreneurship. Under the RIF policy, affected employees who apply for a vacancy at UTRGV within six months of their termination are given priority consideration over equally qualified candidates.

Grant programs are generally divided into two categories: publicly funded programs and privately funded programs. UTRGV's Office for Corporate and Foundation Relations (CFR) works with private funders to accomplish the university's strategic goals. In September 2019, CFR posted an opening for a "grant proposal writer.^[1]" The posting described the scope of the position as being "[r]esponsible for the development, writing, and editing of assigned proposals and reports." The posting further stated that the position "[p]rovides and coordinates assistance in identifying and developing funding sources to support existing and planned program activities." The posting goes on to describe eleven specific duties for the position. The scope and duties described in the posting were identical to UTRGV's description of Kavanaugh's previous position as a "grant proposal writer" for the business school. The only preferred qualification stated in the posting was "[e]xperience in [a] higher education setting."

A search committee was formed consisting of CFR's three employees at that time: Felipe Salinas, Director of Development for Corporate and Foundation Relations, Madahy Romero, who also held the title Director of Development for Corporate and Foundation Relations, and Alma Rock, Grant Development Manager. The role of the committee was to review applications, select candidates to interview, conduct interviews, and then make a hiring recommendation to UTRGV administration.

Kavanaugh, sixty-four years old at the time, applied for the position, along with five other candidates. As part of the application process, each candidate was required to submit samples of their previous grant proposals. According to his application, Kavanaugh had a doctoral degree and twelve years of experience as a grant proposal writer. In addition to writing grant proposals for publicly funded programs, Kavanaugh also had recent experience seeking private funders. Prior to his position with UTRGV's business school, Kavanaugh was a senior associate research strategist at UTRGV from September 2015 until October 2017. In this position, he "worked with faculty and staff to develop grant applications to private foundations and tax supported entities." After his position at the business school, Kavanaugh took a position with the Catholic Charities of the Archdiocese of San Antonio as a "Grants Director." In this position, Kavanaugh wrote grant proposals "to private foundations and tax-supported entities" while supervising two other grant writers.

Eslibeth Perez, twenty-six years old at the time, was one of the other applicants. According to her application, Perez had a master's degree and three years of experience as a grant proposal writer while working as the "Program Coordinator" for the United Way of South Texas's Volunteer Income Tax Assistance Program. Both candidates were selected for interviews.

The committee asked each candidate the same set of questions and took notes on their responses. Each candidate was asked to discuss their experience as a grant writer. The committee noted that Kavanaugh's experience as a grant writer was primarily in higher education, including writing grants "for every college & division" at UTRGV. Perez had never worked as a grant writer in higher education. Each candidate was also asked about the largest grant they had secured. Perez responded that she had secured a grant for $60,000 a year over a two-year period. Kavanaugh responded that he had secured a Title V grant for $2.5 million and another grant for more than $1 million. According to his resume, over the course of Kavanaugh's career, he also collaborated with faculty in securing grant awards of $688,000, $500,000, and $299,000. In response to a question about their experience drafting budgets for programs or grant proposals, Kavanaugh stated that he had developed 200-300 budgets in his twelve years of experience. Perez did not specify how many budgets she had developed but discussed her process for creating budgets and her familiarity with QuickBooks.

The committee recommended Perez for the position. In an email to the HR department, Salinas explained that the committee had recommended Perez over Kavanaugh because she "appeared to be a stronger fit for what the office requires." According to Salinas, the position required a "technician" who can manage a program, and Perez's experience as a project manager at United Way demonstrated to the committee that "she would work well in a fast-paced environment." UTRGV ultimately accepted the committee's recommendation and hired Perez for the position.

After receiving his right-to-sue letter from the Texas Workforce Commission, Kavanaugh filed suit against UTRGV alleging age discrimination. ^[2] According to Kavanaugh, UTRGV hired the substantially younger and less-experienced Perez to save money in salary and benefits, such as medical insurance. The job posting provided for an unspecified salary "commensurate with experience," and up to that point, Kavanaugh was commanding an annual salary that doubled Perez's salary with United Way. Kavanaugh also alleged that the decision to hire Perez was part of UTRGV's pattern and practice of forcing older, higher-salaried faculty and staff to retire in favor of hiring younger, less-experienced faculty and staff with lower salaries and less expensive benefit packages.

After both parties conducted discovery, UTRGV filed a plea to the jurisdiction. UTRGV acknowledged that Kavanaugh had established a prima facie case of age discrimination but argued that the record supported its decision to hire Perez because she was the better qualified candidate. Kavanaugh responded that the record supported his contrary assertion that he was clearly better qualified for the position than Perez. Additionally, he argued that evidence of UTRGV's pattern and practice of age discrimination supported his position that UTRGV's explanation was pretextual.

After conducting a hearing, the trial court found that a fact issue existed as to pretext and denied UTRGV's plea. This interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).

II. Standard of Review & Applicable Law

Subject matter jurisdiction is essential to a court's authority to decide a case. In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (orig. proceeding) (per curiam) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

A common-law doctrine, sovereign immunity protects the State and its agencies from lawsuits for money damages and deprives a trial court of subject matter jurisdiction over the plaintiff's claims. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008) ("Garcia I"). Generally, governmental entities in Texas, such as UTRGV, are immune from lawsuits unless the Legislature has expressly waived their immunity by statute. Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 904 (Tex. 2021) (observing that state universities are governmental entities entitled to immunity).

"A plaintiff has the burden to affirmatively demonstrate the trial court's jurisdiction." Town of Shady Shore v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019) (citing Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012)). Thus, when a plaintiff sues a governmental entity, they must allege facts that fall within a legislative waiver of immunity. Id. (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). A governmental defendant may challenge the trial court's jurisdiction by attacking the plaintiff's pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).

When a defendant challenges the existence of jurisdictional facts as UTRGV has done here, the analysis "mirrors that of a traditional summary judgment." Tex. Dep't of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012) ("Garcia II")). As such, we take as true all evidence favorable to Kavanaugh, indulging every reasonable inference and resolving any doubts in his favor. See id. (citing Alamo Heights, 544 S.W.3d at 771). Once a governmental entity establishes the absence of a jurisdictional fact, the burden shifts to the plaintiff to raise a genuine issue of material fact for the jury to resolve; otherwise, the trial court should rule on the plea to the jurisdiction as a matter of law. Tex. Dep't of Parks & Wildlife...