The Texas Supreme Court has issued another decision which undercuts the rights of consumers. In Mission ISD v. Garcia, the Supreme Court looked at the prima facie case necessary for age discrimination. The Court found that a plaintiff must be able to show that s/he was replaced by someone younger. In Garcia, the plaintiff was replaced by someone who was about three years older. The majority decision found that unless the plaintiff can plead that s/he was replaced by a younger person, then s/he cannot go forward with his case. The case arose on Defendant’s plea to the jurisdiction. A "plea to jurisdiction" is the Texas equivalent of the Federal 12(b)(6) motion to dismiss, which focuses on what the plaintiff has plead in the initial Complaint.
The minority decision was authored by Chief Justice Jefferson, who is generally one of the more moderate justices. He pointed out that the prima face case is not intended to be a pleading requirement. It is meant only to show how discrimination may be proved. The Chief Justice added, a plaintiff may well have other evidence of discrimination, separate and apart from the age of the replacement worker.
The pertinent Fifth Circuit standard provides that a plaintiff may show discrimination if s/he can show s/he was replaced by a younger person or otherwise show that s/he was discharged because of age. So, the Thirteenth Court of Appeals found in favor of the employee. Numerous cases since McDonnell Douglas have held that the prima facie case formula is flexible and must be flexible. The Texas Commission Human Rights Act is modeled on Title VII. So, Texas caselaw holds that Texas decisions should follow federal precedent.
For example, as the AARP pointed in its amicus brief, in Walther v. Lone Star Gas, 952 F.2d 119 (5th Cir. 1992), a 50 year old manager won his age discrimination trial. On appeal, the employer argued that he had been replaced by someone older and, therefore, the jury verdict should be reversed. But, said the Fifth Circuit, the plaintiff had been terminated as part of a RIF. That he had been replacd by someone older does not necessarily mean age was not the basis for his termination. Too, it is just reality that in some cases, we do not know who replaced the terminated worker. New hires may occur long after the termination. Or, in a given situation, there may be so many terminations and so many new hires that it cannot be determined who the replacement employee is.
In Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996) and in Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999), these two courts of appeals reversed summary rulings for the employers and found that due to the strong evidence of age bias, that the plaintiff’s case should go forward – despite the fact that the employees were replaced by someone older. The evidence for age bias was simply so strong in both cases. If a plaintiff has direct evidence of discrimination, then the prima facie case analysis does not apply. That is why the court in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002), found that the prima facie case analysis is an evidentiary standard, not a pleading requirement.
As the Chief Justice explains in his dissent, an email could turn up during discovery which shows conclusively that age was the reason for the termination. The employer should not be "absolved" of its sins because it later hired someone older. As the Chief Justice concluded, the Texas Supreme Court has established a new and "oppressive burden in the employment setting: a plaintiff must prove her case to establish jurisdiction." That is, the Supreme Court is requiring the plaintiff to have her evidence prior to filing suit.
This is a remarkably poor decision. To lose because a judge disagrees with the plaintiff’s facts is one thing. But, to lose because a judge displays poor reasoning and ignorance of the law is irresponsible. See majority decision. See dissenting opinion here.