                                                                                ACCEPTED
                                                                           13-15-00313-CV
                                                           THIRTEENTH COURT OF APPEALS
                                                                  CORPUS CHRISTI, TEXAS
                                                                     10/27/2015 7:03:27 AM
                                                                          Dorian E. Ramirez
                                                                                     CLERK


                     NO. 13-15-00313-CV

                                                FILED IN
                                        13th COURT OF APPEALS
             IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS
           THIRTEENTH JUDICIAL DISTRICT 10/27/2015 7:03:27 AM
                                          DORIAN E. RAMIREZ
              CORPUS CHRISTI, TEXAS              Clerk


                 NEAL VANZANTE
                              Appellant-Appellant

                             v.
          TEXAS A & M UNIVERSITY--KINGSVILLE

                              Defendant-Appellee


           On Appeal From the 105 1h District Court
                     Kleberg County
              Trial Court Cause No. 12-238-D


      AMENDED BRIEF OF APPELLANT NEAL V ANZANTE




REQUEST FOR ORAL ARGUMENT

                               Respectfully submitted,

                                /s/ Chris McJunkin
                               Chris McJunkin
                               State Bar No. 13686525
                               2842 Lawnview
                               Corpus Christi, Tx. 78404
                               Tel: (361) 882-5747
                               Fax: (361) 882-8926
                               cmcjunkin@stx.rr.com

                                  I
                 IDENTITIES OF PARTIES AND COUNSEL

   Pursuant to Tex. R. App. P. 38.1(a), Appellant submits the following list of
names and last known addresses of all parties and their counsel at trial and on
appeal:
Parties to the Trial Court Judgment:

Appellant/Plaintiff:                   Neal Vanzante

Appellee/Defendant              Texas A&M University- Kingsville



Counsel:


For Appellant:                  Chris McJunkin, Appellate Counsel
                                2842 Lawnview
                                Corpus Christi, Tx. 78404
                                Fax: 361-882-8926
                                cmcjunkin@stx.rr.com

For Appellee:                   Marie! Puryear, Assistant Attorney General
                                Office of Attorney General - Litigation
                                P.O.Box 12548, Capitol Station
                                Austin, Tx. 78711-2548
                                Fax: (512) 320-0667
                                Marie!. puryear@texasattoneygeneral.gov




                                         2
                                                          TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL.............................                                                                             2

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          3

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 6

STATEMENT OF JURISDICTION.......................................................                                                       8

STATEMENT OF THE CASE.......................................................                                                                   8

STATEMENT REGARDING ORAL ARGUMENT ........................................ 10
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       II
Trial Court Erred in Granting Defendant's Motion for Summary Judgment Dismissing
the Appellant's Lawsuit

 A. Appellant's 2006 Release and Settlement Agreement with TAMU Corpus
Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:

 B. Appellant was not prohibited from applying for the Chair opening by the
2006 Release and Settlement Agreement with TAMU Corpus Christi

The Trial Court Erred in Dismissing Appellant's Lawsuit

    A. Appellant Establishes Direct Evidence of Age Discrimination

    B. Appellant Establishes Circumstantial Evidence of Age Discrimination

              Step One: Appellant's Prima Facie Case
                      Element No. 1: Appellant is a member of a protected class
                    Element No. 2: Appellant was Qualified for the Chair Position
                    Element No.3: Adverse employment action
                   Element No. 4: defendant hired someone substantially younger than
                             Appellant I treated Appellant differently than someone younger


                                                                                 3
       . Step Three: Appellant establishes Pretext:


TATEMENT OF FACTS                     ........................................................... 11

SUMMARY OF THE ARGUMENT ················································ 18
ARGUMENT .................................................................................................... 19
Summary Judgment Standard .......................................................... 19
Appellant's 2006 Release and Settlement Agreement with TAMU Corpus Christi
Was Not a Basis Used by Defendant in Not Hiring Appellant: ..................... 20

 Appellant was not prohibited from applying for the Chair opening by the
2006 Release and Settlement Agreement with TAMU Corpus Christi .......... 23

The Trial Court Erred in Dismissing Appellant's Age Claim: ...................... 32

 Appellant Establishes Direct Evidence of Age Discrimination ..........                                      32

 Appellant Establishes Circumstantial Evidence of Age Discrimination ..... 33

       Step One: Appellant's Prima Facie Case
              (a) Element No. 1: Appellant is a member of a protected class ..... 35
              (b) Element No.2: Appellant was Qualified for the Chair Position .. 35
                       Appellant Met Actual Required Qualifications No. 1...                                   38
                      Appellant Met Actual Preferred Qualification ...............                             41
                     Appellant Met Defendant's Alleged Required Qualifications .. .42
                     Appellant Met Def General Qualification: leadership, etc. .. ... 48
                     Disparate Treatment. ................................................................. 53
                      Plaintiff Met Def Alleged Qualification: professional, etc ...... 56
                     Disparate Treatment.. ................................................................ 59
                      Appellant Met Def AACSB requirement ....... 18 month ........... 60
                     Appellant Met Def AACSB currency requirement. ................... 65


               (c) Element No.3: adverse employment action ............................... 69

                                                           4
              (d) Element No.4: defendant hired someone substantially younger than
                    Appellant I treated younger person differently ........................ 69


Step Three: Appellant establishes Pretext:
            Appellant presents sufficient evidence to create a genuine issue
           of material fact that Defendant's Legitimate Nondiscriminatory
           reasons are false ............................................................................. 71:


CONCLUSION ................................................................................... 84


PRAYER··························································································· 84

CERTIFICATE OF COMPLIANCE ....................................................................... 85

CERTIFICATE OF SERVICE..........................................................                            85




                                                        5
APPENDIX ........................................................................................ .



Appendix!: June 10, 2015: Order Granting Defendant Texas A&M
           University-Kingsville's Motion for Summary Judgment (CR 1: 1006)

Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion
           for Summary Judgment (CR 1: 291).

Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction
            (CR 1: 292).

Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time
            to File Brief to October 23,2015, was granted.




                                                       6
                            INDEX OF AUTHORITIES



Am. Tobacco Co. v. Grinnell, 951 S. W.2d 420, 425 (Tex. 1997)............... 19


Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex 1975) ................... 32


Gaines v. Hamman, 163 Tex. 618,358 S.W.2d 557, 563 (Tex. 1962) ....... 19

Michael v. City ofDallas, 314 S. W.3d 687, 690-91
(Tex. App.-Dallas 2010, no pet.).............................................................. 34
O'connor v Consolidated Coin Caterers Corp, 517 US 308, 312, ( 1996)...                                 69

Rachid v Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) ......................... 69

Rincones v. WHM Custom Serv, 457 F.3d, 221, 236
            (13th Corpus Christi 2015) ................................................. 19,34

Tex. Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248,254, (1981).......                                34


Pattern Jury Charge 100 ............................................................................... 32


STATUTES:


Texas Rules of Appellate Procedure 38.1 .............................................. 8

Texas Rules of Appellate Procedure 26.1 .............................................. 9

Texas Rules of Appellate Procedure 9.4(i)(2)(B) ..................................... 85



Tex.Labor Code Ann. Sec.21.001 ....................................................... 21

Tex.LaborCodeSec.21.051 ............................................................. 14



                                                        7
                            NO. 13-15-00313-CV



                    IN THE COURT OF APPEALS
                  THIRTEENTH JUDICIAL DISTRICT
                     CORPUS CHRISTI, TEXAS



                         NEAL VANZANTE
                                       Appellant-Appellant

                                      v.
                TEXAS A & M UNIVERSITY--KINGSVILLE

                                      Defendant-Appellee



                  On Appeal From the 105 1h District Court
                            Kleberg County
                     Trial Court Cause No. 12-238-D


        AMENDED BRIEF OF APPELLANT NEAL V ANZANTE




TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

  COMES NOW, Appellant, Neal Vanzante, and respectfully submits this, Appellant's

Amended Brief, pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, and

would show the Court the following:



                                           8
                  STATEMENT OF JURISDICTION

   This Court has jurisdiction pursuant to TRAP 26.1: Appellant filed his Notice

of Appeal within 30 days after order I judgment was signed and within the time

allowed by TRAP 26.1; and within 30 days of receiving notice of order I judgment.

(CR 1: 1006, 1026-1 027)



                      STATEMENT OF THE CASE

 Appellant filed suit pursuant to Texas Labor Code Sec. 21 et seq. for age

discrimination based upon Defendant's failure to hire Appellant and Defendant

hiring a substantially younger person for advertised Chair position in August of

2012. (CR 1: 5-11).

  March 18, 2015: Order Denying Defendant's No-Evidence Motion for Summary

Judgment was granted by Honorable Judge Rose Vela. (CR 1: 291). (Appendix 2)

 March 25, 2015: Order Denying Defendant's Plea to Jurisdiction was granted by

Honorable Judge Rose Vela. (CR 1: 292). (Appendix 3)

  June 10, 2015: Order Granting Defendant Texas A&M University-Kingsville's

Motion for Summary Judgment was granted by Honorable Judge Jack Pulcher.

(CR 1: 1006)(Appendixl)

  July 9, 2015: Appellant I Appellant Filed his Notice of Appeal. (CR 1: 1026-

1027)


                                       9
   October 9, 2015: Appellant's Motion for Extension of Time to File Brief to

October 23, 2015, was granted. (Appendix 4)

              STATEMENT REGARDING ORAL ARGUMENT

  This appeal involves substantial amount of facts. Appellant submits that oral

argument should be permitted and that it would aid this Court's decisional process

to emphasize and clarifY the written arguments in the briefs and to respond to any

questions.

                      ISSUES PRESENTED


      The Trial Court Erred in Granting Defendant's Motion for Summary
      Judgment Dismissing the Appellant's Lawsuit

      *Does Not Include Subsidiary Questions which are set out in the Argument


I. The Trial Court Erred in Granting Summary Judgment Based on Appellant's
2006 Release and Settlement Agreement with TAMU Corpus Christi

     A. Appellant's 2006 Release and Settlement Agreement with TAMU
Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:

     B. Appellant was not prohibited from applying for the Chair opening by the
2006 Release and Settlement Agreement with TAMU Corpus Christi

II. The Trial Court Erred in Dismissing Appellant's Lawsuit


  A. Appellant Establishes Direct Evidence of Age Discrimination

  B. Appellant Establishes Circumstantial Evidence of Age Discrimination



                                         10
         1. Step One: Appellant's Prima Facie Case
           (a) Element No. 1: Appellant is a member of a protected class
           (b) Element No. 2: Appellant was Qualified for the Chair Position


             (1) Appellant Met the Chair Positions Actual Required Minimum
Qualifications
              (2) Appellant Met the Chair Positions Actual Preferred Qualifications


              (3) Appellant Met the Defendant's Alleged Required Qualifications


            (c) Element No.3: Appellant was subjected to an adverse employment
action
           (d) Element No.4: defendant hired someone substantially younger
than Appellant

     2. Step Three: Appellant establishes Pretext:
              Appellant presents sufficient evidence to create a genuine issue of
material fact of either:




                       STATEMENT OF FACTS

   Appellant has filed an age discrimination action based on Defendant hiring a

substantially younger person for the posted Endowed - Named Chair position in

2012.

         February 20, 2012: Defendant advertised an opening for the Chair of the

Department of Accounting and Finance. (CR 1: 780) The Chair Position's written

job qualification requirements were: (CR I: 782 top)

                                         11
      Minimum (actual required) Qualifications:
                       "Candidates must have 18 graduate hours for every
                         field in which they will teach. Candidates must be
                         professionally qualified to (I) hold the rank of
                         Full Professor and (2) be AACSB Academically
                          Qualified (AQ).


      Preferred Qualifications:     AACSB Accreditation

    AACSB is an acronym for "Association to Advance Collegiate Schools of

Business". AACSB provides specialized accreditation for business and accounting

programs at the bachelor's, master's, and doctoral level. AACSB Accreditation is a

recognized form of specialized professional accreditation of an institution and its

business programs.


   Dr.Thomas Dock was the Dean of Department of Accounting and Finance

beginning to Sept. 13,2012, when Dock was removed as Dean. (CR 1: 667: p.12,

line 25 to p.l3, line 9; CR 1:876).     During the selection process, Dr.Richard

Aukerman was the Associate Dean and Search Committee Chair. (CR I: 782)

   At the time of applying: Appellant was sixty-six years old. (CR I: 652, sec. 4).

Appellant's academia career spanned 40 years including six years employed as an

Assistant Professor, 15 years employed as an Associate Professor, and 18 years as

a Full Professor. (CR 1: 799-800)

   Defendant hired Carol Sullivan. who was fifty-one and substantially younger

(15 years) than Appellant. (CR 1:918: p.48, lines 2-7).

                                        12
    February 24, 2012: Appellant applied for the Chair position. (CR1: 799)

     March 5, 2012: Carol Sullivan applies for the Chair position (CR1: 823)

   Dean Dock informed Associate Dean Aukerman and Assistant Dean Martin

Brittain that Dock was going to Carol Sullivan privately off campus;           Both

Dr.Aukerman and Brittain instructed Dean Dock that was wrong and not to meet

Sullivan. (CR1: 728, p.43, line 14 to p.44, line 8)

   March 20, 2012: Dean Dock ignores policy and drives to Victoria, Texas, to

privately interview Carol Sullivan. (CR1: 834).       Dean Dock arranged for Carol

Sullivan to come to campus for interview despite the Search recommending not to

interview Sullivan. (CR 1: 872, sec.1 0)

     July 2012, the Faculty Search Committee met with Carol Sullivan and

  determined that Carol Sullivan was not qualified and 'unacceptable' for the

  Chair position. (CR1: 836-839).

       July 16, 2012:     Associate Dean Aukerman, notified Defendant's Hiring

    Manager that the College of Business Search Committee had determined that

    Sullivan was not qualified for the chair position. (CR1: 840)

       August 6, 2012:      Dean Dock notified the faculty that he had hired Carol

    Sullivan for the Chair opening and enter into a contract with Carol Sullivan

    who agreed to all terms of employment-- Associate Dean Aukerman and

    Provost Gandy are copied. (CRI: 842-844)

                                           13
       August 15, 2012:        Associate Dean Dr.Aukerman notified     Defendant's

   Hiring Authority, that Dean Dock's hiring of Carol Sullivan had been an

   "Inappropriate, unethical, and/or illegal actions of Dean Tom Dock". (CR1:

   871; 872 sec.l 0)

       August 16, 2012: Associate Dean Aukerman notified Provost Gandy that

   the department had determined that Sullivan was not qualified for nor

   acceptable for the Chair position: that "the 9 faculty members who visited with

   Carol Sullivan said she was unacceptable for the Accounting Department

   Chair position, byavoteof8-l." (CR1: 846)

   August 29, 2012:       Defendant notified "the search has been successfully

completed" and Appellant "was not the candidate selected for the position". (CR1:

852)

   August      31,     2012:       Defendant      identified   on    its   official

Applicant log that Carol Sullivan was the candidate 'hired'.   (CR1 :885: Sullivan

'hired'; Vanzante 'not hired')

   Two years later, on September 17, 2014: Dock testified that Dock was the

decision-maker and stated: " I hired Carol (Sullivan) as Chair of the Department

of Accounting, and at the professorial rank of full professor". (CR1: 665, p.6,

lines 15-19) (CR1: 664 for date of deposition).

                     =====================
                                         14
      Ever since Dock's illegal selection I hiring of Sullivan, Defendant has been

offering new and changing reasons for the selection I hiring of Sullivan to cover up

the fact that its investigation had found that Dock's hiring Sullivan was an

Inappropriate, unethical, and/or illegal action.

  August 29, 2012: Appellant requested the reason that Appellant was not hired.

(CR 1: 852 I 892)

 September 13,2012: Defendant removed Dock as the Dean and Associate Dean

Aukerman became Interim Dean. (CR I :876) (CR 1: 724, p.29, lines 18-24).

    Provost Gandy instructed Interim Dean Aukerman that Sullivan was the

person hired for the Chair opening and go with it. (CR 1: 725, p.30, lines 3-9) (CR

1: 724, p.28, line 25 to p.29, line 11 ).

  September 19, 2013: Interim Dean Aukerman sends memo to Defendant's HR

Director and to Provost Gandy: (CR 1:927)

      "Upon completion of the search process it was determined that
     Dr. Carol Sullivan was the most appropriate fit for our needs at this time. "


  Both Interim Dean Aukerman and Provost Gandy knew this reason was false at

the time it was created to be placed in Defendant's hiring records. Dr.Aukerman

and Provost Gandy had previously            been informed by the Faculty Search

Committee that Sullivan did not meet the position's required qualifications, was




                                            15
not qualified and Dock's hiring of Sullivan was illegal. (CR1: 840) (CR1: 871; 872

sec.10)(CR1: 846)

    Defendant did not reopen the chair selection process after Dock's removal as

Dean and Dr.Aukerman testified that the position should have been re-advertised

after Dean Dock received the faculty determination that Sullivan was not qualified

to. (CR 1: 724, p.29, line 23 to CR 1:725, line 2). (CR 1: 723, p.25, line19 to CR

1: 724, p.26, line 20)

    Aukerman, as Interim Dean, and Provost Gandy signed off on Dock's hiring

of Sullivan. (CR 1: 739, p.86, lines 9-15)

                    ==================

           DEFENDANT'S FINDING AND KNOWLEDGE OF
        DEAN'S DOCK LACK OF CREDIBILITY AND DISHONESTY
                  DURING SELECTION PROCESS


   By August 15, 2012:         Defendant had started investigating Dean Dock for

serious misconduct.            Associate Dean Dr.Aukerman   had documented and

reported to Assistant Dean Martin Brittain an extensive and detailed listing of 26

acts of "Inappropriate, unethical, and/or illegal actions of Dean Tom Dock".

(CR 1: 871-874).

 Defendant had found that Dean Dock lied and made up reasons to hire Sullivan

at the time of these events.


                                         16
    (8) hiring of Carol Sullivan for the Accounting and Finance Department Chair
position who was not recommended for interview by the search committee and
who the faculty have voted 8 to I that Sullivan was 'unacceptable'. "Tom Dock
had decided previously that he wanted to hire her." (CR 1: 872, sec. 10)

December 6, 2012: Defendant I TAMU System Auditor issues its Final Report.
(CR 1: 878-879)
         The TAMU System Auditor found: Thomas Dock as Dean had:
       (1) Falsification of University Records that rose to level of possible
violations of the Texas Penal Code Sec.37.10, Tampering with a Governmental
Record and forwarded for further criminal review. (CR 1: 878)

    (2) Misuse of Donor Funds: Thomas Dock, as Dean, had misused and
misappropriated money.(CR 1: 878-879)

            (a) Dean Dock made approximately $5,000 in unallowable
expenditures of donor funds; (CR 1: 878)
            (b)    the department had approximately another $63,700 in
questionable expenditures (CR 1: 879)

      January 14, 2013: Provost Gandy sent notice to Thomas Dock that Dock,
as Dean had engaged in activities of improper activity: 1) Falsification of
University Records; 2)Misuse of Donor Funds, and 3) Unauthorized Work
Locations. (CR 1: 881)



  Dock was not terminated for these senous acts of fraud, misappropriation,

falsification of documents. (CR I: 881)

     Appellant's 2006 Release and Settlement with Texas A&M Corpus Christi

   In 2006, Appellant had a jury trial against Texas A&M Corpus Christi wherein

the jury found Appellant had returned a jury verdict finding that TAMU Corpus

Christi had discriminated against Appellant on the basis of his age awarding

Appellant lost wages. Appellant entered the Settlement and Release with TAMU
                                          17
Corpus Christi after specific sections were included that protected all Appellant's

future rights of employment with TAMU Kingsville. (CR 1: 771-776, see 773,

sec.3)

    The 2006 Settlement and Release with Texas A&M Corpus Christi specifically

provided that Appellant could apply for the position at issue in this suit at any time

it came open: (CR 1: 778, sec. 3; same as CR 1:773, sec. 3).




                       SUMMARY OF THE ARGUMENT

   Defendant has alleged that it is entitled to a judgment as a matter of law--there are no

factual disputes.

     Appellant provides evidence that the 2006 Release and Settlement Agreement with

TAMU Corpus Christi was not a reason Appellant was not hired and allowed Appellant

to apply for the Chair opening.

   Appellant provides evidence that: Appellant was qualified: met the Chair position's

actual required minimum qualifications and preferred qualification; met each of the

alleged qualifications raised in Defendant's Motion for Summary Judgment.

  Appellant provides evidence that Defendant's legitimate non-discriminatory reasons

are false and a pretext for discrimination.

  Appellant provides evidence of Disparate Treatment of Appellant and the younger

person hired, Carol Sullivan.



                                              18
                             ARGUMENT

Standard of Review


   The purpose of a summary judgment is to "provide a method of summarily

terminating a case when it clearly appears that only a question of law is involved

and that there is no genuine issue of fact." Rincones v. WHM Custom Serv, 457

F.3d, 221, 236. citing Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563

(Tex. 1962).


    The Appellate Court reviews a summary judgment de novo. Rincones at 236.

citing Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no

pet.).


   In deciding whether there is a genuine issue of material fact, evidence favorable

to the non-movant is taken as true, and all reasonable inferences are made, and all

doubts are resolved, in favor of the non-movant. Am. Tobacco Co. v. Grinnell, 951

S.W.2d 420, 425 (Tex. 1997);



=============================================================




                                         19
  Appellant's 2006 Release and Settlement Agreement with TAMU Corpus
           Christi was not a Basis to grant Summary Judgment

     (A) Appellant's 2006 Release and Settlement Agreement with TAMU
Corpus Christi Was Not a Basis Used by Defendant in Not Hiring Appellant:


    Defendant alleges that Appellant's suit should be dismissed based there is not

fact issue regarding Appellant being barred from filing this suit based upon a 2006

Release and Settlement Agreement.

   Defendant's argument is not relevant to Defendant's MSJ to dismiss Appellant's

discriminatory failure to hire claim:   Appellant's 2006 Release and Settlement

Agreement with Texas A&M Corpus Christi was not the or a basis that Defendant

did not hire Appellant for the Chair position; and cannot negate the discriminatory

act of which Appellant complains: Defendant's wrongful act of hiring the younger

applicant over the Appellant.

   August 29, 2012:     Date Defendant notified Appellant of non-hire and that

someone else had been hired. (CR 1:852)

   January 7, 2013: the date Appellant would have started working. (CR 1: 780)


  Appellant's 2006 Release and Settlement Agreement with Texas A&M Corpus
              Was Not the Basis Defendant Did Not Hire Appellant

    February 20, 2012: Defendant posted an opening seeking applicants for Chair

ofthe Department of Accounting to begin working January 7, 2013. (CR 1: 780-

787). Appellant, 66, applied; Carol Sullivan (51) applied. (CR 1: 652, sec. 4).
                                        20
Defendant hired Carol Sullivan, the substantially younger candidate. (CR 1: 652,

sec.4)

    Dean Dock testified Carol, I hired Carol as Chair of the Department of

Accounting, and at the professorial rank of full professor." (CR I: 666, p.6, lines

15-19)

   August 6, 2012: Krueger testified that Dean Dock told the faculty that Dean

Dock had selected and hired Sullivan. (CR 1: 697, p.24, lines 2-8)

   August 6, 2012: Dean Dock hired and contracted with Sullivan: offered

Sullivan the Chair position and Sullivan accepted. (CR I: 842-844)

      --(Sullivan's acceptance on last page, (CR I: 844)
      "I accept this proposal without any revisions. Thank you for the
opportunities and I look fOrward to contributing to the excellence at Texas A&M-
Kingsville. "
                                "Respectfully,

                                Carol Sullivan (signature)

   Dean Dock then instructed Krueger, Defendant's Director of Research for the

College of Business, to write the actual basis for hiring Sullivan and the basis for

not hiring the other four applicants considered for the Chair position, which

included Appellant. (CR I: 697, p.24, lines 2-14)(CR 1: 848-Krueger's basis). (CR

1: 701, p.38, lines 8-12),




                                        21
   August 23, 2012      Dr.Krueger reviewed Appellant's application I resume and

stated the reason and basis Appellant was not hired was: (CR 1: 1051, bottom;

Vanzante, Neal)

      "Professor Vanzante left teaching profession two years ago. Although he
      was a professor at Texas A&M University --Kingsville for many years,
      his reference list does not include someone from this institution. Instead
      of helping Texas A&M University--Kingsville, he left to join a university
      that was already accredited. We are interested in someone who is
     willing to work here to make our CBA an AACSB--accredited institution."

(This was Dr.Krueger's determination and finding). (CR 1: 698: p.26: lines 5-16)
(*this paragraph is later deleted and rewritten by Dean Dock as shown below)



   August 26, 2012: Martin Brittain (Defendant's Hiring Authority-CR 1: 781 ),

identified, in its official Applicant History, that Defendant's basis Appellant was

not hired was: (CR 1: 888)

                               Vanzante, Neal:

Not Hired: "Other, Was at TAMUK, but left. Reference list does not include
            anyonefro(m) TAMUK. Need someone who will work to help
           TAMUK achieve AACSB accreditation". (CR 1: 888)


   August 29, 2012:     Appellant was notified that he was not hired and then

requested the reason he was not hired. (CR 1: 852)

    Dean Dock instructed Krueger to change the reason Appellant was not hired--

that of the four non-hired qualified applicants, Dock only changed the reason for



                                        22
not hiring Appellant: Dock's "changes dealt with Neal Vanzante" (CR 1: 697,

p.25, line 15);

   Dean Dock provided the new reason Appellant was not hired. (CR 1: 698, p.28,

lines 10-15; CR 1: 701, p.39, line 23 to p.40, line 16).

     Dock's new reason: (CR 1: 850)

      Dr. Vanzante does not meet the two salient position requirements: (I)
professorial experiences that meet the current college expectations of a Full
Professor and (2) AACSB Academically Qualified (AQ) status.

*this document is dated August 23, 2012, but the evidence above supports that
Dock created this document after Krueger's original Aug 23, 2012, document, after
Defendant's Aug 26, 2012, reason, and after Appellant's Aug 29, 2012, request for
the selection basis.

Defendant has found that, during this same time period, Dock has a record of
falsifying University documents.(CR 1: 878)


Summarizing: Appellant's 2006 Release and Settlement Agreement with TAMU
Comus Christi is not relevant to Appellant's Discrimination Claim of Failure to
Hire because it was not a basis for Defendant's decision not to hire Appellant




B. Appellant VanZante Was NOT Prohibited From Applying for the Chair
Position by the 2006 Release and Settlement Agreement with TAMU-CC.
(response to defendant's argument beginning CR 1:298)

   The 2006 Release and Settlement Agreement ("Agreement") with TAMU-CC
             provided Appellant could apply for the Chair opening.



                                          23
   Appellant has produced evidence that the 2006 Release and Settlement

Agreement with TAMU-CC provided that Appellant could apply for the opening

with Defendant Texas A&M University Kingsville.


   The last sentence in Section 3 of Appellant's 2006 Release and Settlement

Agreement with TAMU Corpus Christi provides: CR 1: 778, sec. 3, last sentence

sec. 3; CR 1: 773, sec.3, last sentence).


          "The Parties further agree that this paragraph (Paragraph 3) shall not
!H!1!!J!. to any applications Appellant may make to Texas A&M University--
Kingsville, for employment in positions such as an endowed chair position that
mav become available after the execution ofthis agreement. "


   Appellant filed this action based upon discriminatory actions by Defendant

TAMU Kingsville related to Appellant's application process and non-hiring of an

endowed Chair position that became available after the execution of the 2006

Settlement and Release with TAMU Corpus Christi.

     February 24, 2012: Appellant applied for a posted opening for the Chair of the

Department of Accounting and Finance. (CR 1:799).


   Defendant' job posting identified the opening as being 'the holder of a
named Chair'. (CR 1:781: job summary).

   Dean Dock testified that "a named Chair is an endowed Chair", and the
opening was for an endowed Chair. (CR 1: 666 at p.9, lines 7-8; p.29, line 22 to
p.30, line 3).

                                            24
                ---===='


Paragraph 3, Last Sentence

    Appellant knew that TAMU Kingsville had been wanting to have an Endowed

Chair and T AMU Kingsville would continue to be working on establishing this

position. (CR I :658: sec.30). The Parties added the last sentence to Section 3

allowing Appellant an unqualified right to apply for an endowed chair opening

without any restriction and not subject to any restriction. (CR I: 658: sec.30)

   The parties clearly put in writing and agreed in the last sentence of Section 3 as

a stand alone provision:

   "The Parties further agree that this paragraph (Paragraph 3) shall not applv to
any applications Appellant may make to Texas A&M University--Kingsville, for
employment in positions such as an endowed chair position that may become
available after the execution of this agreement." (CR 1: p.776, last sentence sec.
3; same at CR 1: p. 773, sec. 3--Iast sentence).

  IF Defendant's changes, as set out in its Motion, were part of the terms in the

2006 Settlement and Release for Appellant's application to a Chair opening at

TAMU Kingsville, THEN these terms would have been added to the wording of

the 2006 Settlement and Release with T AMU Corpus Christi regarding Appellant's

application for a Chair opening. (CR 1:660, sec.36; p. 659, sec. 35)

    Appellant could have then accepted or rejected the limitation and wording.

Appellant would have rejected any Settlement and Release that restricted


                                         25
Appellant's right to return to work for Defendant or to apply for a Chair opening at

TAMU Kingsville. (CR I: 655 sec.l5; p.654, sec.IO)

   Just the opposite: such a restriction and meaning, as now asserted by TAMU

Kingsville, was not included and the TAMU Corpus Christi Settlement.            The

TAMU-CC Settlement and Release sets out the parties' intention regarding the

Appellant's right to apply for the Chair opening at any time: that there is no

restriction that Appellant be currently employed with the Defendant in order to be

eligible to apply for an endowed Chair opening. (CR I: 778, sec. 3, last sentence)




                     Appellant's Departure to work at UTPA

     The Release and Settlement Agreement was executed in September of 2006

(CR 1:776);

 Beginning in early 2007, Appellant discussed with his Dean, Dr. Jane Stanford,

Appellant taking a    leave of absence from Defendant         in order to gain the

experience that would benefit T AMUK in its AACSB accreditation process.

Defendant had been planning to seek AACSB accreditation. (para from CR I: 654,

sec.ll-13 ).

    Appellant had included a provtsiOn m         the 2006 TAMU Corpus Christi

Settlement and Release Agreement that specifically provided for this situation:

(CR 778: sec.3)
                                         26
  "The Parties further agree that, for the purposes of this Agreement, any actions
~r apP_lications required of Appellant by Texas A&M University--Kingsville,
mcludmg but not limited to applications for renewal of tenure and applications for
summer teaching at Texas A&M University--Kingsville, shall be exempt from the
restrictions set forth in Paragraph 3. "

   In 2007, the opportunity arose that Appellant could work at University of

Texas Pan American (UTPA) which was an AACSB accredited doctoral granting

institution and UTPA was going through its AACSB re-accreditation process. (CR

1:p.654, sec.12).

  Prior to leaving Defendant and submitting his resignation to work at the Univ.

of Texas Pan American:

      (a) Appellant requested verification from both Dr. Kay Clayton (Provost)
and Dr. Jane Stanford (Dean of the College of Business Administration) that the
2006 Settlement and Release Agreement allowed for Appellant's 'resignation" and
"reapplication" with Defendant--TAMU Kingsville. (CR 1: p.654, sec.14 );

      (b Appellant requested that both, Dean Stanford and Provost Clayton,
contact TAMU System Attorneys to confirm that this would be acceptable under
the 2006 TAMU Corpus Christi Settlement and Release Agreement. (CR 1: p.654,
sec.14).


  Dean Stanford instructed Appellant that Appellant resigning and returning at a

later date would be acceptable to Defendant and acceptable under the 2006 TAMU

Corpus Christi Settlement and Release Agreement. (CR 1: p.655, sec.14).




                                       27
   Dean Stanford told Appellant that Appellant's resignation from Defendant and

returning work with the Defendant at a later date was acceptable to the Provost

and the System. (CR 1:p.655, sec.15).

   Appellant would not have left his position at TAMUK             and would have

rejected the offer to join the University of Texas Pan American if Defendant had

not agreed that Appellant was allowed to resign in 2007 and return at a later date to

work for Defendant under the 2006 Settlement and Release with TAMU Corpus

Christi. (CR 1:p.655, sec.15). "Dean Stanford told me (Appellant) that this was

acceptable to the Provost and the System. (CR 1:p.655, sec.15)

     On June 1, 2007: After Appellant had received Dr.Stanford's confirmation:

Appellant submitted his letter of resignation to Dean Stanford (Defendant)

confirming that Appellant could resign and return to work for the Defendant in the

future. (CR 1:p. 789)


   June 4, 2007:        Dean Stanford, on behalf of President Juarez and Provost

Clayton, accepted Appellant's letter of resignation and right to return to work for

the Defendant at a later date. (CR 1:p. 789) Defendant's agents and representatives

to the email were: (CR 1:760, p.57, line 20 to CR 1: p.59, line 11)

      Jane Stanford:             Interim Dean of College of Business
      Stuart Isdale:             Defendant's Director of Human Resources
      Kay Clayton:               University Provost
      President Juarez:          President of the University
      Pamela Trant:              Senior Administrative Assistant
                                         28
      Robert Diersing:           Former Dean of College of Business
      Ms. Guajardo:              University Office Manager
      Richard Aukerman:          Department Chair,




  Defendant's Own Records Evidence that Appellant Was Not Barred From
               Leaving and Returning to Work for Defendant

   June 7, 2007: Defendant accepted Appellant's letter of resignation and right to

return to work for Defendant at a later date. (CR I :789)

   Thereafter Defendant accepted Appellant's applications for openings at TAMU

Kingsville after 2007.

   October 18, 2010:     Following Appellant's application for Department Chair,

Defendant notified Appellant of non-selection and adds "we hope you will continue

to give our institution consideration for employment". (CR 1:p. 791)

   March 29, 2011: Following Appellant's application for Assistant Professor,

Defendant notified Appellant that Defendant did not hire anyone for the Assistant

Professor position and adds "we hope you will continue to give our institution

consideration for employment". (CR I :p. 792)

     August 29, 2012:       As concerns the Chair position at issue in this suit:

Defendant notified Appellant of non-selection and informs Appellant: "we hope

you will continue to give our institution consideration for employment". (CR

l:p.793)

                                         29
                    -----------------------------------------
                           Section 3: "Paragraph 2"


     Appellant was first provided a Version of the Settlement and Release that

contained only the one paragraph, number 3, which was unacceptable because it

did not protect Appellant's employment at TAMU Kingsville where Appellant had

taught for over 18 years. (CR 1: 656: sec.23)

        TAMUK officials (Department Chairs, Deans, and Provost Kay Clayton)

and Appellant had been discussing for several years the benefit to T AMUK of

Appellant taking a "leave of absence" and the fact the leave would require a

"resignation" followed by a "reapplication" if the period was for more than one

academic year. The specific benefit to T AMUK was considered to be the first

hand AACSB experience for Appellant, Defendant's senior accounting faculty

member who would then bring this experience back to T AMUK for purposes of

pursuing AACSB accreditation.          For that reason, it was important to exclude

TAMUK from the prohibition of the stand-alone paragraph 3. (para from CR 1:

656-657: sec. 24)

   The next version of the Release offered was a two sentence paragraph (marked

TAMU-002126). Appellant accepted wording that Appellant was not required to

resign at Tamu Kingsville where Appellant was a Professor of Accounting.

Appellant objected to the rest of the paragraph as is because it did not set out the
                                             30
conditions Appellant required to protect his opportunities as Tamu Kingsville

where Appellant had taught for over 18 years. (para from CR 1:657: sec. 25)

   Appellant had already had discussions with the TAMU Kingsville, as set out

above, regarding Appellant taking action of leaving TAMU Kingsville to obtain

AACSB accreditation and AACSB accreditation experience              (which TAMU

Kingsville needed in its AACSB accreditation process) and then returning to

TAMU Kingsville. TAMU Kingsville would require Appellant and its professors

to become AACSB AQ in its accreditation process. (CR 1:657, sec.26).

    The Parties then agreed to insert the next to last sentence which        clearly

clarified Appellant's right to take any action necessary to maintain his current

position which was going to be required by TAMU Kingsville to become AACSB

AQ accredited. (CR 1: 658: sec.28)


     Sec.3: Next to Last Sentence: (CR 1: 778, p.3, sec. 3; p.774, sec. 3)

       The Parties further agree that, for the purposes of this Agreement, any
actions or applications required of Appellant by Texas A&M University--
Kingsville to maintain his current position of Professor of Accounting, including,
but not limited to applications for renewal of tenure, applications for summer
teaching at Texas A&M University--Kingsville, shall be exempt from the
restrictions set forth in Paragraph 3. "

    The third sentence clearly states that "any actions or applications" required to

maintain Appellant's current position" shall be exempt. This wording specifically

allowed for TAMUK and Appellant to take the "action" which would allow for

                                        31
Appellant's "reapplication" following Appellant gaining the first-hand AACSB

experience and getting a record of being AACSB AQ. (para from CRl :658: sec.28)




   II. The Trial Court Erred in Dismissing Appellant's Age Discrimination
                                  Lawsuit


  A. Appellant Establishes Direct Evidence of Age Discrimination

   Appellant submits that he has provided direct evidence to support a factual issue

for a jury to determine Appellant's action for age discrimination.


   If a material fact is supported by direct evidence, then the issue must be

submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex

1975)


   Pattern Jury Charge 100: "a fact is established by direct evidence when proved

by documentary evidence or by witnesses who saw the act done or heard the words

spoken." PJC 100


   Appellant filed a failure to hire cause of action based the wrongful hiring of

Sullivan and Defendant hiring a substantially younger person--Sullivan (age bias)




                                         32
    Expressions may be "direct evidence" of motivation "when they are related to

the specific employment decision challenged, and made close in time to the

decision." Quality Dialysis, Inc. v. Adams, 2006 Tex. App. LEXIS 4921,


                       Documentary Evidence

Defendant admits Dean Dock's Hiring of Carol Sullivan was Wrongful I Illegal

   Defendant's internal investigation conducted at the time of the failure to hire

Appellant and the hiring of Carol Sullivan determined that the hiring was an

"Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR 1:

872, sec. 10)

    August 15, 2012:     Associate Dean Aukerman notified and warned Martin

Brittain, the Defendant's Hiring Authority for the Chair selection process, that

Dean Dock's hiring of Carol Sullivan was inappropriate, unethical, and/or illegal.

Dr.Aukerman determined that: : (CR 1: 872, sec. 10)

    Sec ( 10) hiring of Carol Sullivan for the Accounting and Finance Department
Chair position who was not recommended for interview by the search committee
and who the faculty have voted 8 to 1 that Sullivan was 'unacceptable'. "Tom Dock
had decided previously that he wanted to hire her." (CR 1: 872, sec. 10)
(*Defendant produced this document after Dr.Aukerman's deposition)

        Defendant admits facts to establish age as basis I motivating factor
                        for wrongful hiring of Sullivan

   Defendant admits that Sullivan, the person hired, was substantially younger

than Appellant (CR 1: 301, sec. A). Appellant has also provided evidence to


                                        33
support a finding of age bias: Sullivan was significantly younger, 15 years, than

Appellant. (CRI: 871, 872 sec. 10).

   Defendant's admissions establish a factual issue for a jury       and support a

finding of wrongful age discrimination in this matter.




    PLAINTIFF ESTABLISH CIRCUMSTANTIAL EVIDENCE
                  OF DISCRIMINATION

To establish a prima facie case of employment discrimination the Appellant must
show:
       ( 1) he was a member of a protected class,
      (2) he was qualified for his employment position,
      (3) he was subject to an adverse employment decision, and
      (4) he was replaced by someone outside of the protected class, or
      he was treated less favorably than similarly situated members of the opposite
      class (disparate treatment cases)." Rincones v. WHM Custom Serv, 457
SW3d 221, 234 citing Michael v. City ofDallas, 314 S.W.3d 687, 690-91 (Tex.
App.-Dallas 2010, no pet.)


   If the Appellant establishes a prima facie case, then the burden shifts to the

defendant to "produce evidence that the Appellant was rejected, or someone else

was preferred, for a legitimate, nondiscriminatory reason." Tex. Dep't of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).




                                         34
                    APPELLANT'S PRIMA FACIE CASE

    Step One:
             Element No. 1: Appellant is a member of a protected class

  Defendant does not contest this element. (CR 1: 301, sec.II, A)

 Appellant was 66 years of age at the time of the employment decision not to hire

Appellant for the advertised Chair of the Department position,. (CR1: 652: sec. 4).

Texas Labor Code Sec. 21.101 defines the protected class of age as "an individual

40 years of age or older".



Element No.2: Appellant was qualified for the Chair position,


                                 Appellant met
  the Chair position's actual required minimum qualification requirements;

                           Actual Job Posting
             Stated 'Required Minimum' and 'Preferred Qualifications'
                    (Current Employment Not Requirement)

    The Chair Position's written job posting: (CR 1: 782 top)

Minimum (actual required) Qualifications:
                        "Candidates must have 18 graduate hours for every
                          field in which they will teach. Candidates must be
                          professionally qualified to (1) hold the rank of
                          Full Professor and (2) be AACSB Academically
                           Qualified (AQ).


Preferred Qualifications:    AACSB Accreditation

                                        35
                           ======

     CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO.1


  Appellant was Professionally Qualified to hold the rank of Full Professor

                        Dr.Richard Aukerman,
      Search Committee Chair and Associate Dean of the Department

    Assoc.Dean Aukerman provides evidence that Appellant met all Defendant's

requirements to be hired as a Full Professor.

    Dr.Aukerman began employment with the defendant in 2002; promoted to

Chair of the Department of Accounting and Computer Information Systems in

2002; then promoted to Interim Dean of the College of Business Administration in

January 2009; became Associate Dean of College of Business Administration (2nd

highest ranking administrator) in July 2010 after Thomas Dock was hired as the

Dean; was promoted back to Interim          Dean in    September of 2012; became

Associate Dean in September of2013. (Ex. 4: p.10, line 19 to p.l3, line 5).

     Dr.Aukerman testified that, while employed with the Defendant, Dr.

Aukerman had been involved in "lots' of faculty hirings either as being "on search

committees or chair of a search committee, or doing the hiring as an Interim

Dean" and involved in majority of the hiring "more than half of the faculty that are

currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.l9, line 25 top. 20,

line 19).

                                          36
    Dr. Aukerman had first-hand knowledge of working with Appellant for six (6)

years: 2002 to 2007. (auk: p.8, lines13-19; presume, p. ) (CR 1: 782 mid page).

    Assoc Dean Aukerman, testified, based on Aukerman's experience with

Defendant's hiring process, evaluating applicants, his administrative experience,

and, after reviewing Appellant's application -- resume, that:

             Appellant was qualified to be hired as a "Full Professor".

(see CR 1: 738, p.82, lines 5-21)(Appellant's application at CR 1: 797-819;
teaching employment history at CR 1: 800).

   Aukerman reviewed his deposition testimony, confirmed Appellant was

qualified to be a Full Professor: made no changes to this testimony and made other

corrections. (CR 1: 741-742)

   Appellant's cover letter I resume set out Appellant's work history including that

Appellant's most last teaching position was as Associate Professor of Accounting,

University of Texas Pan American, Edinburg, Texas, September, 2007 to May of

2010. (CR 1: 799, 800) Appellant applied for the Chair position in February of

2012. (CR 1: 797-919)

     Aukerman establishes that Appellant's break in classroom teaching time and

not being currently teaching at time of applying was not relevant to and does not

prevent Appellant from being qualified to be hired as a Full Professor. (CR 1: 738,

p.82, lines 5-21 )(Appellant's application at CR 1: 797-819; teaching employment

history at CR 1: 800).
                                         37
                    ==============================
   Additional Evidence to find Appellant was Qualified to Hold the Rank of Full
                                    Professor

   Appellant has been qualified by as a Full Professor by Defendant for 18 years :

1999 to 2007 (CR 1: 799-800; CR 1: CR 1: 651, sec 2)

       Appellant was employed by the Defendant from August, 1989 through the

summer of 2007.     Defendant's policy on appointments to a Full Professor are set

out in Defendant's Faculty Handbook, Sec. B.4.1.6(b). (CR 1: 651, sec. 3; CR 1:

911) Defendant's Faculty Handbook required the individual to have held the rank

of Associate Professor (or higher) for at least five years prior to being eligible for

appointment to Full Professor. (Ex. 1: p.2, sec. 3; Ex.36-3 ---tamu 0196)

     Appellant met this and all qualifications to hold the position of Full Professor

       Defendant had qualified and employed Appellant in the rank of Full

Professor for 18 years. (CR 1: 799-800 -applic I resume; CR 1: 650-651, sec. 7;

CR 1: 653, sec. 10).

                          ==============
  CHAIR POSITION'S MINIMUM REQUIRED QUALIFICATION NO. 2

          APPELLANT WAS AACSB ACADEMICALLY QUALIFIED


                              Dr. Aukerman
         Associate Dean Aukerman, Chair of the Search Committee,
    Testified Appellant Met Defendant's AACSB Academically Qualified
                              Requirements
                                         38
  Association Dean Aukerman was the Chair of the Chair Search Committee. (CR

1: 782 mid page).

        Assoc. Dean Aukerman testified that, while employed with the Defendant,

Dr. Aukerman had been involved in "lots' of faculty hirings either as being "on

search committees or chair of a search committee, or doing the hiring as an

Interim Dean" and involved in majority of the hiring "more than half of the faculty

that are currently in the college", at least 9 or 10 hirings. (CR 1: 722, p.19, line 25

top. 20, line 19).

   February 24, 2012: Assoc Dean.Aukerman informed Appellant, that to meet

requirement to be AACSB Academically Qualified,            the Defendant required a

minimum of three (3) publications from 2009 to the time of applying in 2012. (CR

914).    In the period from 2009 to applying in 2012, Appellant had published eight

peer reviewed articles, including eight listed in Cabels with acceptance rates less

than 30%. (CR 1: 803-804 --resume; CR 1: 652-653, sec. 7)



    Assoc. Dean Aukerman reviewed Appellant's resume, publication record and

the AACSB Section 10 accreditation standards: Aukerman then testified that:

 Appellant was and met the Defendant's AACSB Academically Qualified
requirements for the position. (CR 1: 738, p.82, lines 2-20).




                                          39
       Aukerman reviewed his deposition testimony, confirmed this testimony that

Appellant was AACSB Academically Qualified: made no corrections. (CR 1: 741-

742)



                    =======================
                           Additional Evidence
                 Appellant Was Classified as AACSB AQ
                                and
            Satisfied Defendant's AACSB AQ Standards


       Appellant was employed at Univ. of Texas Pan American (UTPA) , from

2007, to May 2010. UTPA is an AACSB accredited university and Appellant was

certified AACSB AQ status during his employment at UTP A and gained AACSB

accreditation knowledge during employment at the UTPA. (CR 1: 890)(CR 1:

660-61, sec. 39-40). (CR 1: 652, p.3, sec. 5)

   Defendant TAMU-K was a Master's Degree granting university. UTPA was a

doctoral degree university. Dean Dock testified that the AACSB AQ standards at

UTPA, a doctoral degree granting university, would be more stringent that

defendant's standards, a masters degree granting university. ( CR I: 682: p.72,

lines 10-15) (see also CR 1: 652, sec. 5 of Appellant's Affidavit).




                                         40
       Dr. Krueger was defendant's Director of Research, whose job was to

analyze research for AACSB purposes, at the time of the hiring selection in this

lawsuit. (Ex.3: p. 67, lines 17-23).

  Both Dr.Krueger and Assoc. Dean Aukerman establish that Appellant needed

only 3 articles in the prior five year period to meet AACSB AQ accreditation

standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24 email

      Appellant's publications vastly exceeded the amount required for AACSB

AQ status:    In the immediate three year period (2009-2012) prior to Appellant's

application to Defendant, Appellant       had a total of eight acceptable quality

publications (all of which were in journals with acceptance rates ofless than 30%).

(Ex. 1: p.3, sec.6)(Ex.11: Appellant's application).


             Appellant met the Position's Preferred Qualifications


   The Chair Job Posting identified the position's preferred qualification as: page

3. (CR 1: 782)

                  Preferred Qualification:     AACSB accreditation

   Appellant was formally accredited as AACSB Academically Qualified at the

time of his application process. (CR I: 890, 799, 800; CR 1: 652, sec. 6

              Younger Applicant: No record of being AACSB AQ accredited




                                          41
   Carol Sullivan, the younger applicant hired, had no record of being AASCB

accredited. (CR I: 821-832)




         DEFENDANT'S MOTION FOR SUMMARY JUDGMENT's
                          REASONS
               FOR THE ACTUAL HIRING DECISION

   Defendant's Motion for Summary Judgment alleges more new reasons for its
                         Decision not to hire Appellant

   Defendant's Motion for Summary Judgment alleges new reasons, which were

not part of the actual selection and hiring decision, process that Appellant was not

qualified for the position and that Sullivan was the most qualified.

    Defendant's new reasons are:

   ( 1) Appellant did not meet the 'general qualifications' of 'leadership,
        administration, and interpersonal and professional communication'. (CR
        1:301-302, sec. A, i)

   (2) Appellant was not qualified to hold the rank of Full Professor based on a
       new position required qualification that applicant must be 'a professional, a
       facilitator, and a trustee'. (CR I: 303-304, sec. i)\

   (3) Appellant was not AACSB Academically Qualified based on a new position
       required qualification that Appellant must be continuously employed at the
       time of application or Appellant would not be AACSB Academically
       Qualified. (CR I: 304-305, sec. ii).

      *Defendant asserted this same 'continuously employed' argument and
      presented the same exhibits to Judge Vela who denied Defendant's Plea to
      Jurisdiction and No-Evidence Motion for Summary Judgment. (CR 291,
      292) ( CR 1: 23-111-- Defendant's Argument and Evidence)

                                         42
    Appellant provides evidence that:

      (b) Appellant met Defendant's MSJ's new qualification requirements;

       (c) Defendant's new required qualification requirements were not used in
the actual hiring decision-making process;

       (d) Defendant's new required qualification requirements are based on ten to
fifteen year old documents that were part of the application process and were not
used in the actual hiring decision-making process;

      (e) Disparate Treatment: Defendant's MSJ's new qualification requirements
were not applied to younger candidate hired (Sullivan): Defendant determined
Sullivan did not meet required qualifications




                 Defendant Admitted to the EEOC Investigator
       that Appellant met all required Qualifications for the Chair Position
                  that Defendant alleges Appellant did not meet

    Defendant had actually determined that Appellant met the mtmmum

requirements to be:   professionally qualified to (1) hold the rank of Full Professor

and (2) be AACSB Academically Qualified (AQ), that Defendant's MSJ asserted

Appellant did not meet.

   Defendant admitted to the EEOC that Appellant met the Chair position's

minimum required qualifications. (CR I: 865-866)


   "The application system determined three applicants did not meet minimum
qualificatation, leaving five candidates who did meet minimum qualifications.
These were:
                                       43
               Dr.Neal Vanzante"
               plus 4 others


     Defendant's Written Job Posting identified the 'Minimum Qualifications' as: (CR

1: 782)

         Candidate must be professionally qualified to:

         (1) hold the rank of Full Professor and
         (2) be AACSB Academically Qualified (AQ).



     Defendant's New Reasons Were not a Basis in the Actual Hiring Decision-
                              making Process

                Defendant's Written Basis for the Not Hiring Appellant

     August 6, 2012: Dean Dock announced to the faculty that Sullivan was hired

for the Chair position--- that Dean Dock hired Sullivan. (CR 1: 697: p.24, lines 2-

8)            After Dean Dock's announcement that Sullivan was hired, Dean Dock

instructed Krueger to write the basis for hiring Sullivan and the basis for not hiring

the other four applicants considered eligible for the Chair position, which included

Appellant. (CR 1: 697, p.24, lines 2-14)(CR 1: 848).

     August 23, 2012: date of Dr.Krueger's determination of the reason and basis

Appellant was not hired was: (CR 1: 848, bottom; Vanzante, Neal)

        "Professor Vanzante left teaching profession two years ago. Although he
        was a professor at Texas A&M University -- Kingsville for many years,
        his reference list does not include someone from this institution. Instead


                                          44
      of helping Texas A&M University--Kingsville, he left to join a university
      that was already accredited. We are interested in someone who is
     willing to work here to make our CBA an AACSB--accredited institution."



   August 26, 2012: Defendant identified the same basis Appellant was not hired

was: (CR 1: 888)

                                  Vanzante, Neal:

Not Hired: "Other, Was at TAMUK, but left. Reference list does not include
            anyone.fro(m) TAMUK. Need someone who will work to help
           TAMUK achieve AACSB accreditation". (CR 1: 888)

      August 29, 2015: Appellant made an 'official request' for the reason

Appellant was not hired. (CR 1: 852: top email).


                   Of the Four Non-Selected Applicants:
   Dean Dock instructed Krueger to change ONLY the basis for not hiring
                                Appellant


  There were five applicants considered qualified for hiring. (CR 1 848, 850).

   Krueger testified that there a pool of five applicants considered for the position.

(CR 1: 700, p.40, lines 3 to 5). The five qualified applicants considered for the

position were: (CR 1: 850, 848)

      Carol Sullivan
      Ghosh, Dilip
      Haque, Mohammed
      Robbani, Mohammad
      Vanzante, Neal


                                         45
     As to qualified candidates not hired: Dean Dock only changed the reason for

not hiring Appellant (Neal Vanzate); Dock did not change the reasons for the other

three candidates considered for, but not hired for, the Chair opening. (CR 1: 850,

848)(CR 1: 697, p.25, line 15).


               Dean Dock's New Reason Appellant was Not Hired

    Dean Dock removed Krueger's entire determination and replaced it with: (CR

1: 850)

  Vanzante, Neal:

            Dr. Vanzante does not meet the two salient position requirements:
          (1) professorial experiences that meet the current college expectations ofa
           Full Professor and (2) AACSB Academically Qualified (AQ) status.


   This is in a document dated August 23, 2012. (CR 1: 850). Appellant submits

that the above facts and timeline support an inference that Dean Dock changed the

reason for Appellant's hiring after Appellant's August29, 2012, request Defendant

to produce the hiring basis.

   During this time period, Defendant had found that Dock falsified records,

misused funds and lied about other employment hirings. (CR I: 871-874; 878-879)


                     ==============




                                          46
KRUEGER'S BASIS APPELLANT WAS NOT HIRE INFERS PLIANTIFF MET
       THE POSITIONS TWO REQUIRED QUALIFICATIONS


   The Chair Job Posting identified two required Minimum Qualifications: (CR 1:

782)

Minimum Qualifications: "Candidates must have 18 graduate hours for every
                         field in which they will teach. Candidates must be
                         professionally qualified to (1) hold the rank of
                         Full Professor and (2) be AACSB Academically
                         Qualified (AQ).


   The evidences supports the fact that: Dr.Krueger, Defendant's Director of

Research, reviewed Appellant's application as applied to the job requirements, and

determined Appellant met the two salient position requirements:      (1) professorial

experiences that meet the current college expectations of a Full Professor and (2)

AACSB Academically Qualified (AQ) status             BUT WAS NOT HIRED for

"other" reasons: (CR 1: 848)

       "Professor Vanzante left teaching profession two years ago. Although he
       was a professor at Texas A&M University-- Kingsville for many years,
       his reference list does not include someone from this institution. Instead
       of helping Texas A&M University--Kingsville, he left to join a university
        that was already accredited. We are interested in someone who is
       willing to work here to make our CBA an AACSB--accredited institution.

  Dr.Krueger did not find that Appellant did not meet the position's required
minimum requirements. (CR 1: 848; 782- job posting)

    The evidences supports the fact that: Defendant's Hiring Authority determined

Appellant met the two salient position requirements: (1) professorial experiences
                                         47
that meet the current college expectations of a      Full Professor and {2) AACSB

Academically Qualified (AQ) status         BUT WAS NOT HIRED for "other"

reasons: (CR 1: 888)

            Other, Was at TAMUK, but left. Reference list does not include
             anyonefro(m) TAMUK. Need someone who will work to help
            TAMUK achieve AACSB accreditation". (CR 1: 888)



 DEFENDANT'S NEW GENERAL QUALIFICATION REQUIREMENT
                                    of
Leadership,Administration, Interpersonal and Professional Communication


  Defendant's Motion for Summary Judgment alleged Appellant was not qualified

because :      'Appellant did not meet general qualifications'        of Leadership,

Administration, Interpersonal and professional communication. (CR I: 301-302).

  These newly asserted requirements were not used in the decision to hire the
Chair and not part ofthe hiring decision process.

 Defendant's    alleged   required   qualification   of skills   of      Leadership,

Administration, Interpersonal and professional communication (CR I: 30 1-02)

were not part of the actual position's posted required minimum or preferred

qualifications and not considered during the selection process identified in the Job

Posting under 'Minimum Qualifications' and 'Preferred Qualifications'.(CR I: 782)

      Appellant incorporates his facts in the decision process set forth above in

support.

                                         48
                             New Requirements of
    Leadership,Administration, Intemersonal and Professional Communication
                 Not Applied to Younger Candidate Selected


      Evidence also supports a finding that defendant did not use these alleged

general qualifications in the decision-making process as they were not applied to

Sullivan, the younger applicant hired, whom Defendant's Search Committee and

Chair had determined did not meet the position's required qualifications-thereby

not meeting these alleged general qualifications' of Leadership, Administration,

Interpersonal and professional communications. (CR 1: 836-838, 840, 846).



                  ============================

                 APPELLANT MET THIS REQUIREMENT

                 Appellant provides evidence that Appellant met
           the alleged basis of general requirements for Full Professor
  of Leadership, Administration, Intemersonal and professional communications.


   Appellant possessed these skills in Leadership, Administration, Interpersonal

and professional communication" as shown in Associate Dean Aukerman's

testimony Appellant was qualified to hold the position of Full Professor, had held

the position of Full Professor with the Defendant for 18 years, and Appellant's

application resume.

                                       49
     Associate Dean Aukerman had worked in the College of Business with

Appellant from about 2002, to 2007, and had first-hand knowledge of Appellant's

skills. (CR 1:720, p.10,line 19, to p.l3, line 5).           Aukerman testified Appellant

possessed skills of 'Leadership, Administration, Interpersonal and professional

communications' (CR 1: 719, p. 8, line 13 to p.9, line 12):

      Q: Okay. Do you know Dr. VanZante?

      A:    Yes.

      Q     And how did you come about --

      A     Well, initially I met him because we both
            worked in the College of Business Administration. He had been here a few
           years when I was hired. And that would have been in 2002.

      Q    Have you ever written any letters of reference for Dr. VanZante?

      A    Yes, I have.

      Q    And have you ever nominated Dr. VanZante for like something called a
           Regents Professorship?

      A    Yes.

      Q    What is that?

      A    That's an award that the A&M system gives to faculty members who have
           performed above and beyond the call of duty, I guess you could say, in, over a
           number of years at the university.

      Q     And what about any nominations for outstanding faculty here at TAMU-
               Kingsville? Have you ever--

      A    Well, I remember I nominated him for an Outstanding Educator award for the
           State Accounting Association. I honestly don't remember if I've done that
           for an on-campus teaching award or not. I don't recall. But I know I did for
           the State Accounting Society.


                             ======================
                                              50
                          Appellant's Application and Resume

Appellant's Employment with the Defendant established that Appellant possessed
                 these newly alleged general requirements of
 "Leadership, Administration, Intemersonal and Professional Communication".

  Appellant's application and resume provides sufficient evidence that Appellant

possessed skills of Leadership, Administration, Interpersonal and professional

communication.

   The employment decision not to hire Appellant was made in August of2012.

   From 2001 to 2007 Appellant received above Exceptional Annual Evaluations

each year. (CR 1: 660, sec. 38) (CR 1: 817) January- December 2005: Appellant

received above exceptional evaluation. (CR 1: 859)     January- December 2006:

Appellant received above exceptional evaluation. (CR 1: 860)

  Appellant's application evidenced that, from 2003 to 2012, Appellant received

consistent performance and achievement awards while employed by Defendant and

thereafter: (CR 1: 816)

                     Honors and Achievements

                   While employed with Defendant: (CR 1: 816)

Texas A&M University-Kingsville, College of Business Administration,
Students' Choice Distinguished Teaching Award (May 2003).
Texas A&M University-Kingsville, President's Senior Faculty Research and
     Scholarly Excellence Award (March 2004).
    This award was only given in 2004.
Texas Society of Certified Public Accountants, Outstanding Accounting
      Educator Award (2005).
Corpus Christi Chapter of the Texas Society of Certified Public Accountants,
                                         51
                         2007 to 2012(CR 1: 816)

Outstanding Service Award (2007-2008).
Southwest Region ofthe American Accounting Association, Outstanding
     Educator Award (2009).
Institute of Management Accountant's Lybrand Certificate of Merit Award for
     outstanding character and excellence in contributing to the literature for
      the advancement of management accounting and financial management.
      (2011).

      Appellant's Service with Defendant for most recent 12 Years (CR 1:815)

  Beginning in 1990, through 2007, Appellant was a member of twelve (12)

Defendant College of Business Committees, including five (5) promotion, tenure,

search committees,     a University Promotions Appeal          Committee (2005),

Presidential Travel Support Committee (2005-2007), Accounting Faculty Search

Committee as both Chair and member. (2003, Chair, 2004, and 2006 member)

                         Teaching Excellence (CR 1: 817)

Teaching Record with the Defendant: (CR 1: 81 7)

   While employed with Defendant from 1989 to 2007, Appellant's overall student

evaluations were significantly higher than the Department of Accounting, College

of Business and University averages. (CR 1: 817, mid page)

Teaching Record with Univ of Texas Pan American 2007 to 2010: (CR 1: 817, top)

 Appellant's overall student evaluation was 4.62 on a 5 point scale.




                                        52
            Professional Service in Appellant's Field of Accounting

   , Appellant served on board of directors and committees of nonprofit

organizations, providing professional services for the Texas State Board of Public

Accountancy, and serving on editorial boards. (CR 1: 814, top).



                           Disparate Treatment
            Defendant did not apply these 'general qualifications'
               to the Younger Person Hired: Carol Sullivan,

 Defendant's Own Records Establish Carol Sullivan did not possess these 'general
  qualifications' of Leadership, Interpersonal and Professional Communications


    The Chair Search Committee members' actual evaluations of Sullivan establish

Sullivan did not possess this newly alleged general qualification of 'Leadership,

Administration, Interpersonal and professional communications' The Chair Search

Committee members made the following written factual findings:

   (1)   Determined that Sullivan       did not meet the position's required
         qualifications and not acceptable for the Chair position finding: (CR 1:
         838)

          (a) "Odd personality (which isn't necessarily a weakness but seem too
              much like the person who just left the position we are trying to
             fill ... )"

          (b) "Don't think that she would be able to work well with our students."


   (2)   Determined that Sullivan did not meet the position's required
         qualification and not acceptable for the Chair position finding that
         Sullivan did not exhibit a positive feel to others:(CR 1: 837)
                                        53
   (3)   Determined that Sullivan       did not meet the position's required
         qualifications and not acceptable or the Chair position : (CR 1: 836)

   Associate Dean Aukerman, the Chair of the Search Committee, determined

Sullivan did not meet qualification requirements for the Chair opening: therein did

not possess these same newly alleged general qualifications          of 'Leadership,

Administration, Interpersonal and professional communications'.

    (1) July 16, 2012: Associate Dean Aukerman notified the Hiring Manager
       that the faculty had determined Sullivan did not possess required
       qualifications and Sullivan was not qualified to be hired. (CR 1: 840)

    (2) Aug 15, 2012: Dr.Aukerman notified the Hiring Manager that Dean
       Dock's hiring of Carol Sullivan was an "Inappropriate, unethical, and/or
       illegal action". (CR 1: 871,872 sec.lO)


    (3)August 16, 2012: Dr.Aukerman notified Provost Gandy that Sullivan did
       not meet the position's qualifications and not qualified to be hired.(CR
       1:846)


           Sullivan's Employment as Chair Confirm the Findings that
           Sullivan did not posses these alleged 'general qualifications'

   On or about August 22, 2013: Sullivan assumed Department Chair position.

(CR 1: 842).

    October 31, 2013: Provost Gandy removed Sullivan as the Department Chair,

to be effective immediately. (CR 1: 854)

     November 19, 2013:        Provost Gandy issued Sullivan notice that her

employment would end and the end ofhercontract in May 2014. (CR 1: 856-857)
                                        54
             ==================================
   Defendant's Supporting Evidence was Not Used or Relied upon by Decision-
                        makers in Not Hiring Appellant:

  Defendant's exhibits were not used in the actual decision making process and

are dated 1997 to 2002 and. The applicants submitted only a cover letter and

resume during the application process. (CR 1: 797-819 Appellant applic; CR 1:

821-832--Sullivan applic)

   Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant

was based solely on a review of their applications. (CR 1: 697, p.15-22)

   Appellant's application did not contain the information or these documents that

defendant now uses to assert this new reason. (CR 1: 797-819)



   Defendant relies upon documents taken out of context and dated 1997 to 2002.

Defendant Exhibits 10, 11, 12, 14, 15 to support its argument. None of these

exhibits were part of the actual decision-making process as shown above.

   (a) Defendant MSJ Exhibit   15 (CR 1: 477):
   (b)DefendantMSJ Exhibit     12 (CR 1: 375-376):
   (c) Defendant MSJ Exhibit   10 (CR 1: 366-371):
   (d) Defendant MSJ Exhibit   11 (CR 1: 373):
   (e) Defendant MSJ Exhibit   14 (CR I: 475):


                   ================



                                        55
          Defendant's Alleged Basis that required qualification was
                   a professional, a facilitator, and a trustee
           to hold the Rank of Full Professor
                 (DefMSJ: CR 1: 303, sec. ii, i)


 Appellant Met this Qualification of a professional, a facilitator, and a trustee to o
                         hold the rank of Full Professor

   Defendant's MSJ alleged a new required qualification that a Full Professor was

"a professional, a facilitator, and a trustee." (CR 1: 303 =DMSJ sec i) Defendant

bases these new qualifications on Def. MSJ Ex. 13. (See CR 1: 303, sec. i; ex. 13

at CR 1: 378-473)

      Defs MSJ asserts that Appellant must be "a professional, a facilitator, and a

trustee." (CR 1: 303) Defendant bases this assertion on DefEx. 13.

    No testimony supports this assertion.

                      Def.MSJ Exhibit 13 is a draft document
                     originating from University of Wisconsin
                           Not Defendant's Policy in Use

   Defendant's MSJ uses its Exhibit 13 as the basis to assert these new

qualifications. (CR 1: 303, sec. i, 1st para). Def. MSJ Exhibit 13 is located at CR

1: 377-473.

   Appellant submits a jury could find from the evidence that Defendant has both,

made up this reason and presented a fabricated document, to support                this

fabricated reason.



                                          56
    Det's MSJ Ex. 13, was not in use by or the Defendant's adopted policy during

these events.

     Prior to being hired by Defendant,       Dean Dock was employed          at the

University of Wisconsin -Eau Claire. (CR 1: 666: p.8, line 22 to p.9, line 4). The

actual exhibit shows     that Exhibit 13 is a document from the University of

Wisconsin (UW) MBA program and was in draft form.

   (1) Def MSJ Ex. 13, p.17, top sec.:      "The University of Wisconsin MBA
Consortium includes the following AACSB accredited schools: the University of
Wisconsin-Eau Claire, the University of Wisconsin-Oshkosh, and the University of
Wisconsin-Parkside. The Consortium MBA program is managed by UW-Eau
Claire." (CR 1: 394)

   (1) p.19, sec. 4: "UW MBA Business Consortium Planning and Steering
Committee. One member ...... .. will participate on the UW MBA Business
Consortium Planning and Steering Committee." (CR 1: 396)


  Dr.Krueger testified that this was a book of faculty policies and procedures that

Dean Dock was trying to bring from the University of Wisconsin-Eau Claire; and

that Defendant had not adopted it as its policy. (CR 1: 706: p.63: line 18 to p.64,

line 3).



           Defendant Classified Appellant as a Full Professor 1999 to 2007

   This Defendant had classified Appellant as and employed Appellant as a full

professor for 15 years: 1989 to 2007. (CR 1:799, 800; CR 1: 650-51, sec. 1)



                                         57
      . Defendant's S~pplemental Explanation to the EEOC Investigation
Established Defendants Faculty Handbook, not Ex. 13 was not the policy used to
                           evaluate a Full Professor


  Defendant's Dec II, 2013, Supplemental Response to the EEOC: Defendant

acknowledged to the EEOC investigator that it was Defendant's Faculty Handbook

that set out the requirements for the position of Full Professor. (CR I: 907-908)

   It was not DefMSJ Ex. 13,

             =======================
                      Documents relied upon by Defendant
               were not used in the Actual Decision-Making process

   Defendant produces DefMSJ Exhibits, 10, 14, and 15 to assert that, as a matter

oflaw, Appellant did not possess these new qualifications. (CR I: 303-304).

    These exhibits were never a part of the actual decision-making process.

     None of these documents were part of Appellant's application. (CR 1: 797-

819). Krueger establishes that only Appellant's I an applicant's application was

used in determining the basis of non-selection or selection:         None of these

documents were used or relied upon in the actual decision-making process. (CR 1:

697, Krueger: p.24, lines 9 to 25).

  DefMSJ ex. 10: (CR 1: 366-371). Appellant's 2000 evaluation (CR 1: 366).
The Dean Diersing wrote "Congratulations on a very good annual evaluation'.
(CR 1: 370).



                                         58
    Def. MSJ ex. 14: (CR 1: 475) One page from Appellant's 2001 evaluation
beginning with Dean Diersing acknowledging Appellant's great job performance:
'Congratulations on another fine annual evaluation. Your teaching evaluations,
professional growth and development, research, and service were all excellent'.
(CR 1: 475).

  Def. MSJ ex. 15: (CR 1: 477). October 23, 1997: one page memo from then
Dean Bigbee. (CR 1: 477). Dean Bigbee was experiencing personal problems and
resigned shortly after this date. (CR 1:
                    ===================
                               Disparate Treatment
       Defendant did not require Sullivan, the younger candidate selected,
                  to possess these newly alleged qualifications
                  of 'a professional, a facilitator, and a trustee'
       which form the basis of Defendant's Motion for Summary Judgment

                     Disparate Treatment
these New Requirements Not Applied to Younger Applicant Hired

  At the time of the actual selection process, the Defendant's Accounting

Department faculty and Chair of the Selection Committee had determined that

Sullivan, the younger applicant, did not meet the position's which would include

the new requirements of being "a professional, a facilitator, and a trustee" and was

not qualified for the Chair.

  The Chair Search Committee members determined that Sullivan did not meet the

required qualifications and Aukerman determined her hiring was illegal. See: (CR

1: 838) (CR 1: 837) (CR 1: 836) (CR 1: 840) (CR 1: 871; 872--sec 10)         (CR 1:

846)




                                         59
   Defendant asserts that Appellant was not AACSB AQ qualified because
     Appellant had not taught in the 18 month period prior to applying.
                      (CR 1: 305-306:DefMSJ p.l3-14).


                     ii. Appellant was AACSB Academically Qualified

  Defendant's MSJ asserted that Appellant lost his AACSB AQ status by not

teaching for the 18 months prior to applying. (CR 1: 304-305, sec ii)

            Defendant's Assertion that AACSB Standards Required
          to be 'currently employed' at time of Application is FALSE

        Defendant processed Appellant's application as a qualified candidate

through-out the entire hiring process by Defendant's Hiring Authority because

current employment was not an actual requirement. (CR 1: 883-886, 888, 892)

             Defendant Admits to EEOC Appellant is AACSB AQ

   Defendant admitted to the EEOC that Appellant met the Chair position's

minimum qualifications which included being professionally qualified to be

AACSB Academically Qualified. (CR 1: 865-866; CR 1: 782))



             Judge Vela denied Defendant's prior Motions asserting
                              this same argument

      Defendant made this same argument and the presented same exhibits to

Judge Vela on March 10, 2015.          (CR 1: 23-26, 31--Defendant's Summary of

Argument with attachments on Plea to the Jurisdiction and No-Evidence Summary

Judgment).
                                        60
   Judge Vela found a fact issue existed and denied Defendant's pleadings to

dismiss on this argument. ( CR I: 291, 292)

   Defendant argued to Judge Vela that Appellant was not qualified because

Appellant lost AACSB AQ status because: (l) Appellant was not currently

employed at time of applying; (2) Appellant had not taught in a classroom for

prior 18 months.

   Defendant produced to Judge Vela the same exhibits as relied upon in this

argument in its current Motion for Summary Judgment:


        (a) AACSB Standard 10: (CR 1: 295: Ex. 16 to DefMSJ), (CR 1: 31: Def
ex list for March 9, 2015, Summary of Argument)

    (b) Appellant's Application: (CR 1: 31: Def ex list for March 9, 2015,
Summary of Argument; and CR 1:295: Ex. 23 to DefMSJ)

      (b) Dock deposition: (CR 1: 295: Ex. 17 to Def MSJ) (CR 1: 31: Def ex list
for March 9, 2015, Summary of Argument)

        (c) Krueger deposition: (CR 1: 296: Ex. 23 to DefMSJ) (CR 1: 31: Defex
list for March 9, 2015, Summary of Argument)

      ====================================


   AACSB does not have a requirement that actual teaching of courses is required

to maintain AACSB AQ status. (CR 1: 660-61, sec.40; CR1: 896-901 -- AACSB

standard 10)




                                       61
              AACSB Standard 10 and AACSB White Paper Establish
                 Appellant Maintained his AACSB AQ Status

Defendant admitted in both its March 9, 2015, Summary of Argument presented to

Judge Vela and in its Motion for Summary Judgment that the AACSB does not

have a requirement regarding an 18 month break in employment, but that the

AACSB looks at a five (5) year period for accreditation of AQ (academically

qualified) status. (CR 1: 25, Mar 9, 2015, Summary of Argument, p.3, sec. 6:

'evidence of developmental activities within the past five years ... " citing AACSB

Standard 10) (CR 1:304, sec. i: "discipline based scholarship over the previous five

years" citing its exhibit 16 which is AACSB Standard 10 as shown identified at

CR 1: 295).


   AACSB Standard 10 identifies a "non-exhaustive list ofpossible activities that

faculty may undertake to support the maintenance of academic or professional

qualifications": (CR I: 900 AACSB Standard 10 - mid page )(CR I: 904: mid

page)


        Relevant journal and/or other business publication editorships and/or
              editorial board/committee service
        Consulting activities that are material in terms oftime and substance
        Faculty internships
        Sustained professional work supporting qualified status
        Leadership positions in recognized professional/academic societies
        Advanced academic coursework
        Relevant, active service on boards of directors
        Documented continuing professional education experiences
                                          62
      Significant participation in professional and/or academic conferences

   Additionally:" It is not AACSB International's intent to limit the range of
development activities that may be undertaken." (CR 1: 900- mid page).

                   ===========--=======



  In the pending MSJ, Defendant left out AACSB Standard 10 it presented to

Judge Vela, and added a different exhibit, AACSB White Paper Deploying

Academically Qualified Faculty, to try to allege the same argument. (CR 1: 545

DefEx. 22). This document sets out the same ways to maintain AACSB AQ status

as AACSB Standard 10 which Defendant omits. The document states: (CR 1: 904,

mid page)

       Activities Sufficient to Sustain Academically Qualified (AQ) Status

      "All faculty members are expected to demonstrate activities that
      maintain the currency and relevancy of their instruction. Faculty members
      can maintain qualifications through a variety of efforts including
      the production of intellectual contributions, professional
      development, and current professional experience."


                  APPELLANT MAINTAINED AACSB AQ STATUS

   Defendant's MSJ admitted that AACSB AQ status is maintained I sustained by

under AACSB guidelines if professor /faculty 'continue to undertake appropriate

development activities that sustain his ..... intellectual capital and currency in the

field of teaching'. (CR 1: 305 middle para).



                                         63
     This wording means that a person needs to remain "current in their field of

teaching." Appellant's "field of teaching" is accounting. (CR 1:660, sec.40)   This

does not mean someone needs to be teaching. (CR 1:660, sec.40) The AACSB

Sec. I 0 does not mention classroom teaching as a requirement to maintain AQ

currency. (CR 1:660, sec.40). AACSB Standard 10 clearly sets out what activities

are necessary to "remain current." Actual Teaching is not a requirement. (CR

1:661, sec.40 top pg).



Appellant's Five Year Look Back Period Maintenance of AACSB AQ Status

    Defendant admits in its Motion for Summary Judgment that there is a "five-

year look back used in making applications for AACSB accreditation". (CR 1:

305, top sec)     By defendant's own acknowledgement of a five year look back

period, Appellant was AACSB AQ at the time of the Defendant's selection of the

Chair opening in August of2012.

   December 2009: Appellant had a formal record of being AACSB Academically

Qualified while employed at the University of Texas Pan American which ended

May of 2010.      (CR 1: 890)         Appellant would have remained AACSB

Academically Qualified until May of2015 without any activities.

      May 2010: Appellant left UTPA and was AACSB Academically Qualified

his entire time while working at UTPA. (CR 1: 652, sec. 5).


                                        64
    August 2012: date of employment decision--Defendant hired the younger

candidate, Sullivan, and did not hire Appellant. (CR 1: 892, 842-844)

     December 2014:      the Date Appellant would remain qualified as AACSB

Academically Qualified, with no new qualifYing activity,       using date of UTPA's

AACSB December 2009 formal certification of Appellant as AACSB AQ and the

five year look forward time period. (CR 1: 890)


                                  ===========
              Appellant Maintained Currency in Appellant's Field
                 as Required to Maintain AACSB AQ Status


      Appellant's Evidence of Maintaining AACSB Academically Qualified status

  Appellant's publications vastly exceeded the amount both Director of Research

Krueger and Associate Dean testified were needed to be qualified for AACSB AQ

status-- 3 publications during that period. (CR 1: 914; CR 1: 700, p.37, lines 16-

23; CR 1: 701, p.38, lines 8-19): In the immediate three year period (2009-2012)

prior to Appellant's   application with Defendant, Appellant had a total of eight

acceptable quality publications (all of which were in journals with acceptance

rates of less than 30% listed in Cabell's director). (Ex. 1: sec. )(Ex.11: Appellant's

application, p.tamu 0027-0028).




                                         65
   Appellant had continuously undertaken additional AACSB approved activities

to maintain currency in Appellant's field of accounting.    Appellant's   resume

identified: (Ex. 11 )(CR 1: 900 mid page; 904 mid page.

   (1 )Part-time self-employment as a Certified Public Accountant (CR 1: 800)

   (2) accounting publications; 2009-2012: Appellant published eight acceptable
      quality publications in journals with acceptance rates of 30% or less
      acceptance rate, including five publications from May 2010, to March
      2012.; (CR 1: 803-804);

   (3) accounting paper presentations: 2009-2012:         Appellant made 12
      accounting paper presentations, including 6 accounting presentations from
      May 2010 to March 2012; (CR 1: 811-812);

   (4) professional services: 2011-2012-current, Appellant was a reviewer of
      Manuscripts for The CPA Journal, which is published by the New York
      Society of CPA's (CR 1: 812-813);

   (5) August 2011: Appellant participated in Accounting Professional Meeting:
      American Association National Meeting in August 2011 where Appellant
      reviewed two accounting papers. (CR 1: 813);

       Professional Services: Appellant was a member of five professional

       Accounting Boards: (CR 1: 814 );

      (7) Awards: In 2011, Appellant received the Institute of Management
Accountant's Lybrand Certificate of Merit Award for outstanding character and
excellence in contributing to literature for the advancement of management
accounting and financial management. (CR 1: 816);



            ==========================



                                          66
                            Defendant's Records
  Establish 'Current Employment' was not a Requirement for the Chair Position

   Appellant produced evidence to support a finding that:

      ( 1) Appellant was a qualified applicant for the Chair opening; and

      (2) Defendant found Appellant to have been a qualified applicant and to
have met the required qualifications of the Chair position.

  Defendant's Hiring Authority and identified any applicant whose application

established that the applicant did meet the posting qualifications in order to be

processed as acceptable applicant. (CR 1: 883-884, 885-886)

     (1) August 29, 2012: Appellant was notified of non-selection    (CR 1: 852)

       (2) August 31,2012: Defendant identified applicants who met the positions
required minimum qualifications and applicants who did not meet the positions.
Appellant was one of four applicants identified meeting required qualifications but
'not hired'. (CR 1: 885-886).

            Applicants meeting required qualifications: (in order as listed)

                   Haque, Mohammed                 Not Hired
                   Vanzante, Neal (Appellant)      Not Hired
                   Rabbani, Mohammad               Not Hired
                   Ghosh, Dillip                   Not Hired
                   Sullivan, Carol                  Hired


            Applicants not meeting required qualifications: (in order as listed)

                   Francis, Conrad                 Did Not Meet Min Quais
                   Hopson, James                   Did Not Meet Min Quais
                   Committee, Bruce                Did Not Meet Min Quais




                                        67
 (2) September 18,2012: Defendant again printed the applicant log. (CR 1: 883-

884). The applicants were listed in alphabetical order.    Appellant was one offour

applicants identified meeting required qualifications but 'not hired'.

                    Applicants meeting required qualifications: (in order as listed)

                    Ghosh, Dillip                    Not Hired
                    Haque, Mohammed                  Not Hired
                    Rabbani, Mohammad                Not Hired
                    Sullivan, Carol                   Hired
                    Vanzante, Neal (Appellant)       Not Hired

             Applicants not meeting required qualifications: (in order as listed)

                    Committee, Bruce                 Did Not Meet Min Quais
                    Francis, Conrad                  Did Not Meet Min Quais
                    Hopson, James                    Did Not Meet Min Quais



                           Dean Dock and Dr.Krueger

   August 23, 2012: Defendant processed Appellant as one of five candidates that

met Chair position requirements to be considered for hire. (Ex. 18) The qualified

candidates for hiring were:

                    Ghosh, Dillip                    Not Hired
                    Haque, Mohammed                  Not Hired
                    Rabbani, Mohammad                Not Hired
                    Vanzante, Neal (Appellant)       Not Hired

                    Sullivan, Carol                    Hired




                                          68
            ==========================
       ELEMENT No. 3: Appellant was subjected to an adverse employment
action;

   Defendant sought applicants for the advertised Chair of Department of

Accounting and Finance opening. (CR I: 780-797) Appellant applied. Appellant

was not hired for the advertised and open position the subject of this lawsuit, Chair

of the Department of Accounting and Finance. (CR I: 892; CR 1: 650-51, sec. 4).

NOT DISPUTED



     ELEMENT No. 4:

   A. defendant hired someone younger than Appellant :


    Defendant's Motion for Summary Judgment does not contest and admitted that

Carol Sullivan was substantially younger candidate than Appellant. (CRI :301,

sec.A).

 Dean Dock had first-hand knowledge of the ages and disparity m ages of

Sullivan and Appellant.

   Appellant was 66 years old at the time of applying for the Chair opening. (CR

I: 652, sec. 4). Dean Dock had met Appellant at a business function at TAMU-K a

short while before Appellant applied for the Chair opening. (CR 1: 653, sec. 4).



                                         69
     Dean Dock drove to personally meet Sullivan at an off campus location a few

weeks after Sullivan applied for the Chair opening. (CR 1: 834)        Sullivan was 51

years of age and 15 years younger than Appellant. (CR 1: 652, sec. 4). (CR 1:

918, p. 48, lines2-7)(CR 1:653, sec.4)

   Carol Sullivan was noticeably younger than Appellant. (CR 1: 652, sec.4)

   In an age discrimination suit, a Appellant may satisfY and establish his prima

facie case if the person hired is younger than the Appellant. Age discrimination

statutes do not require that the person hired be outside the class protected by the

age discrimination statute. O'connor v Consolidated Coin Caterers Corp, 517 US

308, 312, 116 S.Ct. 1307 (1996). Appellant may establish his prima facie case

when person hired is five (5) years younger. Rachid v Jack in the Box, Inc., 376

F.3d 305 (5th Cir. 2004).

 Disparate Treatment: Defendant treated the younger applicant hired
(Sullivan) differently

  Appellant incorporates herein his facts and argument regarding:

      1. Sullivan not meeting its basis of meet general qualifications' of
Leadership, Administration, Interpersonal and professional communication

       2. Sullivan not meeting its basis that the selectee must be "a professional, a
facilitator, and a trustee."

      3. Sullivan was determined not qualified and hired. (CR 1: 836-838, 846)




                                          70
   STEP THREE: Appellant establishes a factual issue to show that
Defendant did not have a legitimate non-discriminatory reason its
employment decision at time of decision;



   Once the employer's justification has been eliminated, discrimination may well

be the most likely alternative explanation, especially since the employer is in the

best position to put forth the actual reason for its decision. "Rincones at 236, citing

Reeves at Reeves 120 S.Ct. 2097, 2108-09)


"Thus, a Appellant's prima facie case, combined with sufficient evidence to find

that the employer's asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated." Rincones at 236, citing

Reeves at 148.


    The court must draw all reasonable inferences in favor of the nonmoving party

and not make credibility determinations or weigh the evidence. Credence must be

given to the evidence supporting the nonmovant as well as any evidence

supporting the moving party that 1s uncontradicted, unimpeached, and not

attributable to interested witnesses. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (emphasis added).




                                          71
                     DIRECT EVIDENCE


   If a material fact is supported by direct evidence, then the issue must be

submitted to the jury. Farley v. M M Cattle Co., 529 S.W.2d 751, 753-54 (Tex

1975) Appellant restates his Direct Evidence argument herein as if set forth

verbatim.


                          CIRCUMSTANTIAL EVIDENCE

    Defendant reasserts its arguments regarding Appellant being qualified for the

position and reasserts its argument regarding Appellant's 2006 Settlement and

Release with TAMU Corpus Christi:: (CR 1: 305-307)

      Reasserted earlier arguments raised in its assertions that Appellant was not
Qualified.

   1. that Appellant was prohibited from applying for the Chair position, by his
      2006 Settlement and Release with TAMU Corpus Christi.

  2. that Appellant was not qualified because of Appellant's alleged poor record
     of employment with Defendant (CR 1: 306, B)

  3. that Appellant was not qualified because of Appellant's based on
     Appellant's alleged absence 'from the teaching profession' for the eighteen
     months prior to Appellant's application (CR 1: 306, B)


   As evidence Defendant's legitimate reasons are false:

   (I) Appellant restates his qualification arguments herein as if set forth verbatim




                                         72
   (2) Appellant restates his disparate treatment arguments herein as if set forth

verbatim.

   (3)) Appellant restates his 2006 Settlement and Release with TAMU Corpus

Christi arguments herein as if set forth verbatim.




  Defendant's also asserts the reason that Appellant was not hired and Sullivan

was hired was: Sullivan was clearly better qualified than Appellant (Vanzante).

(CR 1: 306-307)

      a. because Appellant had not taught for 18 months

      b. Sullivan's articles were better than Appellant's articles.

  These are all new reasons and not used as a basis by Defendant at the time the
decision was made to not hire Appellant and to hire the younger applicant,
Sullivan.



                Appellant has provided substantial evidence that
            each alleged legitimate non discriminatory reason is false.

 Defendant has already investigated and determined that Dean Dock's Hiring of
                            Sullivan was Wrongful

   Defendant's internal investigation conducted at the time of the failure to hire

Appellant and the hiring of Carol Sullivan determined that the hiring was an




                                          73
"Inappropriate, unethical, and/or illegal actions by Dean Tom Dock". (CR1:

872, Sec. 10)

    August 15, 2012:      Associate Dean Aukerman notified Martin Brittain, the

Defendant's Hiring Authority for the Chair selection process, that Dean Dock's

hiring of Carol Sullivan was inappropriate, unethical, and/or illegal. Dr.Aukerman

determined that: (CRl: 871,872, Sec. 10)

    Sec (10) The faculty who were involved in the interview of Carol Sullivan for
the Accounting and Finance Department Chair position indicated that she was
unacceptable by a margin of 8 to 1. "Tom Dock had decided previously that he
wanted to hire her. She was not recommended for an interview by the search
committee." (CRl: 872, Sec. 10)

(*Defendant produced this document after Dr.Aukerman's deposition)



       Appellant's 2006 Settlement and Release with TAMU Corpus Christi
                     was NOT a basis for not hiring Appellant.



Appellant incorporates his 2006 Settlement and Release with TAMU Corpus

Christi argument above here as if set forth verbatim.

   Appellant has produced evidence to show that the Defendant did not rely on the

2006 Settlement and Release with TAMU Corpus Christi and the Release was not

a basis for not hiring Appellant.




                                         74
   Appellant produce evidence to establish that Appellant was not barred from

applying for the Chair position by the 2006 Settlement and Release with T AMU

Corpus Christi.

   Appellant produced evidence that Defendant Texas A&M University Kingsville

did not consider Appellant barred from applying for positions, consistent with the

terms of the 2006 Settlement and Release with TAMU Corpus Christi.

   1. Appellant had applied for positions with Defendant four times prior to
      applying for the Chair opening.

   2. August 29, 2012: In notifying Appellant of non-selection for the Chair,
      Defendant told Appellant "we hope you will continue to give our institution
      consideration for employment." (CR 1: 852)




       Defendant's basis that Appellant was not hired because of Appellant's
           alleged poor record of employment with Defendant is FALSE

   Defendant's Supporting Evidence was Not Used or Relied upon by Decision-
                        makers in Not Hiring Appellant:

  Defendant's exhibits were not used nor relied upon m the actual decision

making process and are dated 1997 to 2002 and. The applicants submitted only a

cover letter and resume during the application process. (CR 1: 797-819 Appellant

applic; CR 1: 821-832--Sullivan applic)

   Dr.Krueger testified that the basis for hiring Sullivan and not hiring Appellant

was based solely on a review of their applications. (CR 1: 697, p.15-22)

                                          75
Appellant's application did not contain the information nor these documents that

defendant now produces to assert this new reason. (CR 1: 797-819)




      Defendant's basis that Appellant was not qualified because of Appellant was
       not currently teaching when applied and Appellant's alleged absence 'from
          the teaching profession' for the eighteen months prior to Appellant's
                          application is not worthy of credence.



   Associate Dean Aukerman, reviewed Appellant's application and resume

which identified Appellant's last teaching position in May of 2010 and that

Appellant was not currently employed at the time of applying,         testified that

Appellant met both of the Chair position's required qualifications:

Aukerman then testified:

   1. Appellant was and met the Defendant's AACSB Academically Qualified
      requirements for the position. (CR 1: 738, p.82, lines 2-20).

   2. Appellant was qualified to be hired as a "Full Professor". (CR 1: 738, p.82,
      lines 5-21) (Appellant's application at CR 1: 797-819; teaching employment
      history at CR 1: 800).


   Appellant has established that:

      1. Defendant's requirements for a Full Professor require five years
         employed in rank and do not require current employment.

      2. The AACSB standards do not require current employment to be AACSB
         AQ accredited.
                                         76
        3. The AACSB standards allow a five year look back period to qualify for
           current AACSB AQ status.



  Defendant's also asserts the reason that Appellant was not hired and Sullivan

was hired was: Sullivan's resume showed Sullivan was clearly better qualified

than Appellant (Vanzante ). (CR 1: 306-307)

        a. because Appellant had not taught for 18 months

   This is a false basis: Appellate set out in detail in his Qualification argument

that not teaching for 18 months was not a basis for the decision and was not

relevant to the position's required minimum qualifications of           being a Full

Professor or AACSB AQ accredited.

        b. Sullivan's articles were better than Appellant's articles.

   This is false: Appellant established that Appellant's articles vastly exceeded

AACSB accreditation requirements Both Dr.Krueger and Assoc. Dean Aukerman

establish that Appellant needed only 3 articles in the prior five year period to meet

AACSB AQ accreditation standards. (Ex.3: p.37, lines 17-23). Ex. 37: feb 24

email

        Appellant's publications vastly exceeded the amount required for AACSB

AQ status:     In the immediate three year period (2009-2012) prior to Appellant's

application to Defendant, Appellant         had a total of eight acceptable quality
                                            77
publications (all of which were in journals with acceptance rates ofless than 30%).

(Ex. I: p.3, sec.6)(Ex.11: Appellant's application).

    Krueger never examined Sullivan's articles.        Dr.Krueger testified that he did

not evaluate or and read Sullivan's publications during the hiring process: Krueger

did not review or evaluate Sullivan's publications to determine or verifY if Sullivan

met the Chair position's AACSB requirement prior to Sullivan being hired. (CR I:

704: p.57, lines 5-11). Krueger testified that it a year after Sullivan was hired in

August of 2012, when Sullivan provided Krueger copies of her publications when

Sullivan moved into the Chair's office in Fall of 2013. (CR 1: 714, p.57, line 21

correction).

  Defendant's own documents establish this is false. The evidence established

Defendant's Search Committee, Chair of Search Committee and Associate Dean of

the Dept. had all determined from Sullivan's resume and interview that Sullivan

did not meet the position's requirements and was not qualified for the position.

(CR 1: 837)(CR 1: 838)(CR 1: 836) (CR 1:840) (CR 1:871; 872- sec.IO)(CR 1:

846)


           Dean Dock Ignored the vote of the Search Committee and
                            Hired Carol Sullivan

    August 16, 2012: Associate Dean Aukerman, aslo Chair of the Search

Committe, notified Provost Gandy that Chair Search Selection Committee and

                                          78
department faculty had determined Sullivan was not qualified to be hired and was

"unacceptable". (CR 1: 846).

   The faculty search committee evaluations where that Sullivan was not qualified

to be hired, should not be hired and referenced that the committee could not even

determine Sullivan's qualifications from Sullivan's application. (CR 1: 83 7).



 Dock changed the terms of the advertised position requirements and did not
            re-advertise the position in order to hire Sullivan.

   The Defendant needed to hire a Chair of the Department of Accounting and

Finance to begin January 7, 2013, and authorized the funding. (CR 1: 780) Dean

Dock changed the hiring date without re-posting the position. The original hiring

date started mid-semester which excluded persons already working under contract

for the 2012-2013 school term from applying.

     Dock changed the beginning date from January 1, 2013, to September 1,

2013, in order to hire Sullivan beginning August 22, 2013. (CR 1: 908: Sullivan

was under contract at the University of St. Thomas for the September 2012 to May

2013 school term).

              The change in start date affected the applicant pool
                                      and
                         should have been re-posted.

  Martin Brittain, the Hiring Authority, testified that the normal process was "if

you want to make any changes at all, it requires a new -- cancellation and a new
                                         79
posting". (CR 1: 755 at p.31, lines 13-20). Brittain testified that the Chair posting

listed January 7, 2013, as the start date which was in the middle of the 2012-2013

school term; and that starting in the middle of a school term 'could make it more

difficult for them (person already under contract for the 2012-2013 school term) to

apply'. (CR 1: 755 at p.33, lines 10-20; p.34, lines 9-15). By a fortiori, this would

prevent applicants from applying who were already under contract for the 2012-

2013 school term.



                         DISPARATE TREATMENT
                       Carol Sullivan, Candidate Hired,
                Did Not Meet Required Minimum Qualification
                  to Hold Rank of Full Professor When Hired

   Defendant required five years of employment in position of Associate Professor

or higher rank before qualifying to be placed into Full Professor position. (CR I:

651, sec. 3)(CR 1: 911, sec. B.4.1.6(b)--Faculty Handbook). Sullivan had only

three years of employment in position of Associate Professor at the time Defendant

hired Sullivan. (CR 1: 651, sec. 3)

   An applicant's work history must be known in order to determine whether

qualified to hold the rank of Full Professor as the faculty member must have 5

years working in rank of Associate Professor. (CR 1: 651, sec. 3; 908 mid page-

Sullivan's revised work history provided to the EEOC 15 months after she had

been hired).
                                         80
   Appellant's application cover letter and work history identified Appellant had

been a Full Professor with the Defendant for 18 years, till 2007. (CR 1: 799 and

800)

   Sullivan's application did not provide a work history to determine whether

Sullivan met he minimum required qualification to be a Full Professor. (CR 1: 823-

825 Sullivan application). The Chair faculty search committee members found that

Sullivan had not shown she had five years holding a position of Associate

Professor or higher. Finding: "no history provided of places worked and dates"

(CR 1: 836); "Dr. Sullivan's resume and cover letter did not list key information.

For example current place of work, where all she had worked in the past..... " (CR

1: 837)

   In December of 2013, fifteen months after Sullivan was hired, Defendant and

Sullivan prepared a work history in an attempt to show Sullivan met the minimum

qualification to hold the rank of Full Professor by having been employed as an

Associate Professor or higher for five years. (CR 1: 908, 906)

   This information was not set out in Sullivan's March 5, 2012application and

resume submitted. (CR 1: 821-832)

   To show Sullivan qualified for hire as a Full Professor, Defendant had to

intentionally misrepresent Sullivan's work history to the EEOC.




                                        81
    Defendant had to include Sullivan's 2012-2013 year of employment with the

University of St. Thomas. (CR 1: 908) The Defendant's new Chair was to begin

working on January 7, 2013. (CR 1: 780)

      Sullivan did not have the required five years at the time she was hired in

August of 2012, because Defendant needed to include Sullivan's employment for

the 2012-2013 school term at another university to try to show Sullivan qualified

with five years employed in rank of Associate Professor or higher to quality as a

Full Professor, as required to be hired. (CR 1: 908-resume )(CR 1: 782-job posted

minimum required qualification of Full Professor)

   December 11, 2011: Defendant's identification of Sullivan's work history.

  Only the three years employed as an Associate Professor of Accounting

qualified toward the five years employed in rank. (CR 1: 651, sec.3)

   Positions of Visiting Associate Professor are not positions of'rank'. (CR 1: 651,

sec. 3). Sullivan's identified employment history was positions of Visiting Assoc.

Professor.

    (1) 'Visiting Associate Professor of Accounting, University of St. Thomas
during the 2012-2013 school term'. (CR 1: 908).           Does not count towards
Sullivan's five year requirement because this is school year after Sullivan hired in
Aug 2012).

  (2) Visiting Professor of Accounting, Seattle University (2008-2009).
Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3)




                                        82
   (3) Visiting Professor of Accounting, University of Texas at Arlington (2000-
2002): Employment as Visiting Professor is not employment in 'rank'. (CR 1:
651, sec.3)

   (4) Visiting Professor, Texas A&M University at College Station (1996-1997):
Employment as Visiting Professor is not employment in 'rank'. (CR 1: 651, sec.3)




                                     83
                               CONCLUSION

   Appellant submits that if the facts and allegations he has presented are taken as true

and construed in his favor, Appellant has presented an issue of fact to be determined by a

jury on all issues; including that Appellant's 2006 Settlement and Release with TAMU

Corpus Christi is not a basis to dismiss Appellant's; that his age was a motivating factor

in the Defendant's decision not hire Appellant; that the Defendant's non-discriminatory

reasons for its actions are false; and that a reasonable juror could infer discrimination

from the evidence presented.

                                       PRAYER

   For all the above reasons, Appellant Neal Vanzante requests this Court to vacate

and/or reverse the Trial Court's Order Granting Defendant Motion for Summary

Judgment, and remand Plaintiffs lawsuit back to the trial court to be placed on its trial

docket. Appellant also requests any and all relief to which he is entitled at law or in

equity, and requests general relief.


                                         Respectfully submitted,


                                          Is/ Chris McJunkin
                                         Chris McJunkin
                                         State Bar No. 13686525
                                         2842 Lawnview
                                         Corpus Christi, Tx. 78404
                                         Tel: (361) 882-5747
                                         Fax: (361) 882-8926
                                         cmcjunkin@stx.rr.com




                                           84
                    CERTIFICATE OF COMPLIANCE

   Pursuant to TRAP 9.4(i)(2)(B), I hereby certifY that Statement of Facts,

summary of argument, argument, conclusion and prayer contain 14,292 words as

determined by WORD 2007

                                             Is/ Chris McJunkin




                         CERTIFICATE OF SERVICE


   I hereby certifY that on the 26th day of October 2015, a copy of the foregoing

was delivered in accordance with the Texas Rules of Civil Procedure on the

following person:

Marie! Puryear, Assistant Attorney General
Office of Attorney General - Litigation Division
P.O.Box 12548, Capitol Station
Austin, Tx. 78711-2548
Fax: (512) 320-0667
Email: Mariel.puryear@texasattoneygeneral.gov

                                             Is/ Chris McJunkin



                                        85
                        APPENDIX

Appendix!: June 10, 2015: Order Granting Defendant Texas A&M
           University-Kingsville's Motion for Summary Judgment (CR 1: 1006)

Appendix 2: March 18,2015: Order Denying Defendant's No-Evidence Motion
           for Summary Judgment (CR 1: 291).

Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction
            (CR 1: 292).

Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time
            to File Brief to October 23, 2015, was granted.
Appendix!: June 10, 2015: Order Granting Defendant Texas A&M
           University-Kingsville's Motion for Summary Judgment (CR 1: 1006)
                                     CAUSE NO. 14-238-D
NEALVANZANTE,                               §
    Plaintiff                               §       IN THE DISTRICT COURT
                                            §
VS.                                         §
                                            §       105m JUDICIAL DISTRrCT
                                            §
TEXAS A&M UNJVERSITY-                       §
KINGSVILLE,                                 §      KLEBERO COUNTY, TEXAS
     Defendant


            ORDER GRANTING DEFENDANT TEXAS A&M UNIVERSITY-
              KINGSVILLE'S MOTION FOR SUMMARY JUDGMENT


       Came on this day to be heard Defendant Texas A&M University- Kingsville's Motion for

Swnmary Judgment, and any responsive pleadings and/or oral argwnent. After considering the

evidence, the Court finds the Motion does have merit and makes the following ruling:

       IT IS HEREBY ORDERED that Defendant Texas A&M Univetsity-Kingsville's Motion

for Summary Judgment is hereby GRANTED.

       IT IS FURTHER ORDERED that Plaintiff's lawsuit in its entirety is DISMISSED with



                                                                                 I   '"''L




                                                                                             \
                                                                                                 1006
Appendix 2: March 18, 2015: Order Denying Defendant's No-Evidence Motion
           for Summary Judgment (CR 1: 291).
~~ryr..i'"-·······   "'~:ro:·:-~,,-._~--...,..·     ---         ~  ....
   ·. r:: .
            Mar.25.2015             07:34


                                                          •                                                                                      !?AGE.   4/   4




                                                          CAUSil NO             ••·DJ..U
                                                                               •
                                                                              •
                                                                                •
                       vs.                                                      •
                                                               •
                       "reXAS. A~ M UWJVI!IlSrrY-                              •
                       K.II'IGSVIU.F,                                          •
                               De~


                                                 OllDER D£N\'11'1G
                          DUI:NDANT'S l"'O.£VID£NC£ 1\COllON POll st1MMA11.Y J"VI)CfiiUIT



                       s.-y Jail..-. .-1 do:: Cowl.. .&t· w>:b4 oq; do:: FICI if. . ee.n.·s. .:e .-1                             ••aa--• o(
                       tic panica, is of 1loe Ofill'<l" 1111111oe fDilov ~~~~ order $looWd isl.ue:



                          rr IS HF.~t£BY OIWER.ED c1ooo1 n                '    '·   n   ~Ko-fll\.rio"·b:c ~>taciGoa   roo ss.,__'), .,.•., '""




                                                                                                                                                                   291
Appendix 3: March 25, 2015: Order Denying Defendant's Plea to Jurisdiction
            (CR 1: 292).
·NEAtv~
··~··
                                      •
'\IS.·
                                ...
                                      -   ...
~A.t:M~-
                                          ,.
                                          •     ~cOONTY~~·
~.
         6lWJi1~~~'rt)~
  · &ic. '"'• •4: ·~. 1iiH oullrls
                           ...  ·,..ay       . ill. bit~
                                     .. came ari    .    DatGiulam.'a PiGa
                                                                      .    to.l• m ~.ad




                                                                                          292
Appendix 4: October 9, 2015: Appellant's Motion for Extension of Time
            to File Brief to October 23, 2015, was granted.
                                                                                    FILE COPY

CIE'.-nr:E                                                                NUE'CES COUNtY COURlHOUSE
 ROOB.lO VALDEZ                                                           901 LEOPARD, 101M FLOOR
                                                                          CORAlS CHR18TI, TEXAS 78401
                                                                          38HIIIII.o416 (TEL)
JUSIJCES
  -V...._....IEZ                                                          36HJ8II.0194 (FAX)
  DORICCMIILIIiiSGMZA                                                     lfiDI1ILOOOOUNTY
  Glllll M.IIENIMDES                                                      ADioiNI8IRATION BlDG.
  Gl' EGI ..~ T. PERICEII
  NOM L UlNGilRio\                 6utt of Spptaff                        100 E. CANO, STH FUXlR
                                                                          EDINBURG. TEXAS 711538
                                                                          956-3111-24011 (TEL)
CI.ERK
   IXlRIAN E. RAMIREZ            Qtrlnllt afitdd of~                      956-316-2403 (FAX)



                                         October9,2015
                                                                          --""'-,goWo-
       Hon. Christopher E. McJunkin
      Attorney at Law
      2842 l..aWrMew
      Corpus Christi, TX 78404
      • DELIVERED VIA E-MAIL *

      Re:       cause No. 13-15-00313-CV
      Tr.Ct.No. 14-238-D
      Style:    Neat Vanzante v. Texas A & M UniYerslly

      Dear Mr. McJunkin:

           Appellant's motion for extension of time to file brief in the above cause was this
      day GRANTED by this Cowl The time has been extended to Friday, ()ck)ber 23, 2015.

                                              Very truly yours,
                                              ~~. ?'(~
                                              Dorian E. Ramirez, Clert

      DER:sc

      cc:     Hon. Marial Puryear (DELIVERED VIA E-MAIL)
