Since manager’s position was reorganized into director position, former manager was not “replaced” with someone outside of her protected class

DISD reorganized the CAFD, renamed it the Finance and Accounting Support for Campuses Department (the FASCD), and decided the new department should be led by a Director, a position one managerial level higher than Manager. The DISD hired Donna Zemanek, an Anglo woman, to be the Director and terminated Allen by the elimination of her position.  Allen sued for race discrimination and other claims.  After three pleas to the jurisdiction, only the race claim remained. The trial court denied the final plea regarding race discrimination and the DISD appealed.

The court went through an employment history of Allen’s supervisors (their race), the people she supervised (their race) and different performance issues at different times with Allen.  She asserted a specific Director (before he became CFO) made a comment about another department as “wannabees” which she felt was discriminatory.  However, the court held Allen failed to establish the “wannabe” comment was anything other than a “stray remark.” There is no evidence the comment was related to Allen’s protected class. Rather, the Director addressed the comment at the W/MBE Department, which consisted of one African- American woman, one Hispanic woman, and one Hispanic man and was a play on words from the anacronym. There is no evidence the comment related to the decision to terminate Allen. Further, the new Director of the FASCD did not “replace” Allen in her position. The job duties and qualifies for the Director position and Allen’s Manager position were distinctly and rather dramatically different. This is consistent with the reorganization goals. The evidence established that all jobs in the CAFD, including Allen’s position as Manager, were eliminated when the CAFD was reorganized into the newly-created FASCD. The FASCD had much broader responsibilities than the CAFD, and all positions in the CAFD were “upgraded” to higher level positions.  All employees of the CAFD were invited to apply. Allen did not apply for the Director of the FASCD position, which would have been a promotion, or for any other position in the FASCD. The other employees of the CAFD, all of whom were African-American women, were hired back. Further, there is no evidence Allen was treated less favorable than any employee who was similarly situated. Because Allen failed to create a fact issue, the plea should have been granted.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers , Justice Stoddart and Retired Justice O’Neill. Justice O’Neill delivered the opinion of the court. Attorneys’ for the Appellant: Holly Mclntush, Carlos G. Lopez, and Kathryn E. Long. Attorneys for the Appellee: Giana Ortiz and Daniel A. Ortiz.

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