In a recent case involving an age discrimination claim against Texas Tech University Health Services Center-El Paso, two members of the Texas Supreme Court called for reexamining the McDonnell Douglas framework.[1]

Loretta Flores worked for the University for years, and following its transition from a regional campus, she applied for a newly created position: chief of staff to the University president.[2] She was sixty years old.[3] At the president’s encouragement, another internal candidate (who was significantly younger than Ms. Flores) also applied for the position, along with several external candidates.[4] When the president interviewed Ms. Flores, he asked Ms. Flores her age.[5] The president later claimed this question was rhetorical and only “intended to address the ‘elephant in the room’”—Ms. Flores’s age discrimination complaint against the University which was then pending with the Equal Employment Opportunity Commission (EEOC).[6] Ms. Flores did not answer the president’s question, and the president hired his preferred internal candidate.[7]

In response, Ms. Flores filed another EEOC complaint and then sued the University under the Texas Labor Code, alleging the University had engaged in age discrimination and retaliation for her first EEOC complaint.[8] The trial court denied the University’s motion to dismiss; the court of appeals dismissed the retaliation claim (which Ms. Flores did not later challenge), but allowed the discrimination claim to proceed.[9] The Texas Supreme Court granted the University’s petition for review.[10]

The court employed the McDonnell Douglas framework established by the U.S. Supreme Court to determine whether Ms. Flores had created a genuine issue of material fact regarding discrimination.[11] Under this framework, (1) the plaintiff must create a presumption of illegal discrimination by establishing a prima facie case of discrimination, (2) the defendant must then rebut the presumption by providing a legitimate, nondiscriminatory reason for its employment action, and (3) the plaintiff must establish that the stated reason was pretextual.[12] Because it was undisputed that the parties had respectively satisfied the first two prongs, the court focused on whether Ms. Flores had presented evidence to establish a genuine issue of material fact on pretext.[13]

The court determined Ms. Flores had not. In reaching this conclusion, the court engaged in a fact-specific analysis of the candidates’ qualifications as they related to the chief of staff position.[14] And the court found the president’s question about Ms. Flores’s age to be irrelevant.[15] Because Ms. Flores did not carry her burden, the court reversed.[16]

Justice Blacklock concurred. In his lengthy separate opinion, he lambasted the current state of employment-discrimination jurisprudence, which he said creates a work culture where the focus is on avoiding litigation at all costs.[17] He said the president’s question was not impermissible because illegality could only arise if he discriminated based on Ms. Flores’s answer—which she never gave.[18] It was unclear to him “how anyone could reasonably infer discriminatory intent from the question itself.”[19]

He then turned to a critique of the McDonnell Douglas framework, saying he saw “no basis for this elaborate formula” in the statutory text.[20] This framework “essentially reverses the burden of proof: The plaintiff may show discrimination by showing that the defendant has not convincingly disclaimed discrimination—i.e., that the defendant’s innocent explanation is unworthy of credence.”[21] He would return to the text, which focuses on “the employer’s conscious discriminatory motive,” and he would not excuse the lack of proof just because it can be difficult to prove a culpable mental state.[22]

Finally, he noted structural concerns unique to employment-discrimination claims in government. Specifically, he observed that the chief of staff role is a high-level position of trust in the executive branch of state government, and that litigation challenging hiring decisions at that level “threatens to impermissibly entangle the judicial branch in the executive branch’s prerogatives.”[23] He believed suits like Ms. Flores’s implicated separation-of-powers concerns no matter how little “executive” power was at issue.[24]

Justice Young joined Justice Blacklock’s concurrence and also wrote his own. Justice Young also took issue with the majority’s use of the McDonnell Douglas framework, saying the state high court had “never really given much thought to the burden-shifting framework” it employed, instead borrowing from the U.S. Supreme Court.[25] He traced the framework’s roots in Texas and determined that “none” of the court’s “decisions actually wrestled with how McDonnell Douglas” became part of Texas law.[26] Although he agreed with Justice Blacklock that the validity of the framework was not before the court because the parties had not raised it, he called for its reconsideration in future cases when raised by the parties.[27]

 

[1] Tex. Tech Univ. Health Scis. Ctr.–El Paso v. Flores (Flores II), No. 22-0940, 2024 WL 5249446 (Tex. Dec. 31, 2024).

[3] Id. at *1–3.

[4] Id. at *2.

[5] Id.

[6] Id.

[7] Id. at *2–3.

[8] Id.

[9] Id.

[10] Id.

[11] Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)).

[12] Id.

[13] Id. at *4.

[14] Id. at *5–7.

[15] Id. at *7.

[16] Id.

[17] Id. at *7–8 (Blacklock, J., concurring).

[18] Id. at *8.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at *9.

[23] Id.

[24] Id. at *10–11.

[25] Id. at *12 (Young, J., concurring).

[26] Id.

[27] Id. at *12–13.

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