One would expect that a case involving direct evidence of age bias would not be granted summary judgment. Yet, that is what happened in Lopez v. Exxon Mobil Development Co., No. 14-16-00826, 2017 WL 4018359 (Tex.App. Houston 9/12/2017). Plaintiff David Lopez worked for Exxon for over ten years when he was terminated in 2014. He was 56 years old at the time. He worked at various positions, mostly in management. He was told he would have to move from Texas to Canada. He complained about the assignment and the lack of a housing waiver. Not having a housing waiver, his family would have to move with him. Plaintiff Lopez spoke with his senior supervisor, Don Moe, about the transfer. Mr. Moe said higher-ups were concerned that someone of Lopez’ age was complaining about a move. He said older guys should just shut up. It was clear, said Mr. Moe, that Lopez was not on the “fast track.”

Plaintiff Lopez did not mention the ageist remarks for another six months. He finally mentioned them to his functional supervisor, Irfan Khan. Mr. Lopez said his transfer was discriminatory. The employee said Mr. Khan said he would look into the matter. Mr. Lopez received a poor evaluation after complaining. He was placed on a PIP. Mr. Khan and two other supervisors decided to terminate Mr. Lopez. The two other managers said Mr.Lopez was “old and stubborn.”The employee filed suit based on the Texas Commission on Human Rights Act. Exxon moved for summary judgment, which was granted.

On appeal, the court of appeals claimed the “old and stubborn” comment was not direct evidence. Without explaining its reasoning, the court simply said the court would have to draw an inference or make an assumption to determine whether the comment indicated motive. If the comment was direct evidence, then no inference or presumption would be necessary to see its discriminatory bias.

Reviewing the case as one of circumstantial proof, the court noted that Mr. Lopez had been ranked in the bottom third of his peers for the last four or five years. Acknowledging the many good performance reviews received by the plaintiff, the court of appeals simply found his testimony conclusory and subjective. Yet, at the same time the court made that observation that Lopez was describing the subjective evaluation process that resulted in his PIP. It then remarkably concluded that showing good performance evaluations simply shows the plaintiff might show the employer provided a false reason – that is not competent summary judgment evidence, claimed the court. Of course, that flies in the face of Reeves v, Sanderson Plumbing Products, 530 U.S. 133, 147 (2000), which expressly had that evidence of falsity of the reasons alone may support a finding of improper motive. The court actually accused the plaintiff of drawing a subjective conclusion when he argued that Exxon’s process was “highly subjective.” The court apparently never heard the phrase “what is good for the goose is good for the gander.”

The Fourteenth Court has imposed a doctrine known as pretext plus. It required the plaintiff to show more than pretext. It has held the plaintiff to a different standard than that set for the employer. The employer may engage in a subjective process, but the employee may not. Too, it has engaged in fact-finding. It finds the ageist remarks by Moe, and others to be too distant in time. That should be a jury finding. The jury should determine whether six months was too long. Certainly, the comments about “old and stubborn” were not distant in time. This is a motion for summary judgment, not a trial. Summary judgment exists to test the evidence, not to resolve it. See the decision here.

The Fourteenth Court has issued a poorly thought decision. It is decisions like this that have come to undermine our jury system. Decisions like this take away from the jury assessments which serve as bedrock for our judicial system.