If a performance evaluation calls a female employee ‘abrasive,’ is it sexist?

In a recent case, the Texas Court of Appeals found that the evidence raised a factual issue about whether the employer chose not to renew an employee contract based on age discrimination, but not because of sex discrimination.

In February 2011, the University of North Texas Health Science Center (UNTHSC) hired the plaintiff, who was over 50 years old, as a nontenure-track instructor in its Department of Health Behavior and Health Systems within the School of Public Health.

In 2016, she was promoted to a nontenure-track assistant professor after she got a PhD in multicultural women’s and gender studies with a minor concentration in health studies from Texas Woman’s University.

Her duties as an instructor or as an assistant professor included teaching community health courses and maternal and child health (MCH) courses, getting grant funding, and supervising doctoral students.

The UNTHSC employed the woman via one-year teaching contracts, which it would issue annually unless it would notify the employee about nonrenewal. Her performance reviews from 2015 through 2018 provided that she met or exceeded expectations in most categories.

However, the professor appealed an evaluation in the September 2018 review. She claimed that the then-department chairperson’s use of the term “abrasive” to describe a woman was inherently sexist. The school’s dean disagreed and found the comment reasonable.

In December 2018, the school posted a position for a tenure-track MCH professor. The plaintiff applied, but the school instead hired Stacey Griner, a nontenure-track assistant professor under 40 years old. In January 2019, the school had an open position for the new department chairperson. Again, the plaintiff applied and was not chosen.

In February 2019, the UNTHSC informed the plaintiff that it was not renewing her contract as an assistant professor. It alleged that she refused to cooperate with changes to its master’s in public health internship program.

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The plaintiff filed a lawsuit based on Labor Code violations against the UNTHSC. Specifically, she alleged age discrimination, sex discrimination, and retaliation relating to its failure to hire her for the tenure-track position, failure to promote her to department chairperson, and failure to renew her contract. She claimed that the UNTHSC distributed her classes to women at least 20 years younger than she was, including two graduate students and Griner, whom the plaintiff described as having “no background.”

The UNTHSC argued that it had sovereign immunity as a governmental entity and that the trial court thus lacked jurisdiction. The trial court disagreed, which prompted the UNTHSC to appeal.

Employer immune from some claims

In the case of University of North Texas Health Science Center v. Marcy Paul, the Court of Appeals for the Second Appellate District of Texas at Fort Worth partly affirmed and reversed the trial court’s judgment.

The appellate court agreed that the trial court had jurisdiction over the plaintiff’s claims of retaliation and age discrimination for the contract nonrenewal and her claims of retaliation, age discrimination, and sex discrimination for the failure to hire her for the tenure-track position.

However, the appellate court ruled that the trial court lacked jurisdiction over the plaintiff’s sex discrimination claim relating to the nonrenewal of her contract and over her retaliation, age discrimination, and sex discrimination claims relating to the failure to hire her for the department chair position.

The appellate court made the following findings:

• There was no direct evidence of sex discrimination because the use of the term “abrasive” lacked any inference of sexism
• There was no direct evidence of age discrimination because the dean’s comments that he was bringing in a person with “new” and “young” ideas had no inference of ageism
• The evidence raised a factual issue about whether the reasons given by the UNTHSC were mere pretext for choosing not to renew the plaintiff’s contract and for failing to hire her
• There was a factual issue regarding the plaintiff’s age discrimination claim relating to her contract nonrenewal because the evidence showed that, after her contract was not renewed, a younger professor and two graduate students took over or taught her classes
• The evidence failed to raise a factual issue on whether the plaintiff and Griner were similarly situated for the purposes of a sex discrimination claim
• Deciding whether the plaintiff’s degree was equivalent to a public-health or public-health-related degree was inappropriate at this stage because this issue involved a subjective analysis