Texas Supremes Find Another Way to Dismiss Age Discrimination Cases

On June 29, 2012, the Texas Supreme Court held in Mission Consolidated Independent School District v. Garcia that a worker cannot bring an age discrimination claim under Texas law if replaced by an older worker.

Garcia, who was 48 years old at the time of her discharge, alleged age discrimination (among other claims). She was replaced, however, by a 51 year old employee. The district sought dismissal based on Garcia’s inability to prove that she was replaced by a younger employee. Garcia argued that federal age discrimination law allows plaintiffs to prove the prima facie (initial) elements by either showing she was replaced by someone younger, or was otherwise discharged because of her age.

Unpersuaded, the Texas Supreme Court dismissed Garcia’s age discrimination claim, holding that such claims could not be asserted if the plaintiff was replaced by an older employee. At first blush, many might think this ruling makes sense. How can you allege age discrimination when you have been replaced by someone older? Let me explain with the following scenario.

Bob is an older worker who has been terminated, and files an age discrimination complaint with the EEOC. Included in Bob’s complaint are ageist comments made by his supervisor, evidence of other older workers being treated poorly, and assertions that the reasons for his termination are completely false. Employer receives the EEOC complaint and decides to thwart Bob’s legal claims by filling Bob’s prior position with a worker older than Bob.   Voilá.   According to the Garcia opinion, Bob’s age discrimination claim must be dismissed — regardless of any evidence that may exist of ageist comments; disparate treatment between older and younger workers; termination of other older workers; or evidence that the employer’s stated reasons for the termination are false. Generally, this type of evidence would be sufficient to create fact issues that would allow a plaintiff to avoid a dismissal, and proceed to a jury trial. Not anymore. As Justice Jefferson points out in his dissenting opinion:

Evidence of an older replacement alone does not disprove discrimination as a matter of law. Garcia can still prove her case if discovery reveals other evidence of discrimination. Assume, for example, that a plaintiff establishes conclusively that the decision to fire her was motivated by age discrimination—a smoking-gun e-mail confirms that motivation unequivocally. It cannot logically follow that the employer’s later decision to hire an older worker absolves it of its original sin. (emphasis added).

Actually, it does seem that an employer who has intentionally violated Texas’ anti-discrimination statute can absolve itself of its original sin – simply by continuing to be dishonest. You can bet employers are being counseled in age discrimination claims to hire older replacements– and retain them until the EEOC claim or lawsuit is over.

The Garcia opinion has created an additional concern among employment attorneys on how broadly this decision will be applied to other types of discrimination cases. Can a gender discrimination claim be brought by a female who is fired for not looking feminine enough, but is replaced by a more “feminine” looking woman? Can a dark skinned Hispanic with an accent be able to bring a national origin discrimination claim if his employer later replaces him with a light skinned Hispanic güero that speaks without an accent?

¿Quién sabe en Tejas?

“Law without justice is a wound without a cure.”

–          William Scott Downey

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.