Texas Tech Univ. Health Sciences Ctr.-El Paso v. Flores, 612 S.W.3d 299 (Tex. 2020)

Age Discrimination- Prima Facie Case- Replacement

This was an age discrimination case by an employee of a governmental entity, which requires proof of a prima facie case in order to establish jurisdiction and waiver of governmental immunity. Here the employee alleges she was replaced by someone younger than her. The Texas Supreme Court examined the issue of whether the employee was actually “replaced” since the defendant argued that the position was eliminated, a new position was created, and the new position did not contain all of the duties of the old position. The Court held that whether an employer has replaced an employee depends on whether the alleged replacement’s duties are so similar to the former duties that a reasonable juror could conclude that the employer placed the replacement in the former position. The person put in the new position assumed some of the plaintiff’s duties, but the new position duties were not nearly as broad as the former and did not have the same level of authority. The Court then held that the plaintiff had not been replaced thereby preventing plaintiff from making a prima facie case. The Court used the dreaded fourth element in the prima facie case framework of McDonald Douglas, which was that the plaintiff had to show that she had been replaced by someone significantly younger, or that she was otherwise treated less favorably than other similarly situated employees, but outside the protected class. The Court specifically held that the plaintiff could not rely merely on evidence that she was “otherwise discharged because of her age,” but instead must provide comparative evidence that she was treated less favorably than those who did not fit within the protected class.” The Court stated this despite the fact that Fifth Circuit cases have allowed plaintiffs to use other evidence of being discriminated against because of age. This rote requirement makes little sense considering that all admissible evidence should be acceptable, if it actually proves that the decision was made because of age. (This has the appearance of elevating form over substance for no good reason.) The Court did state that the plaintiff could use this type evidence, if it is direct evidence. This bone tossed to the plaintiff was of little use because direct evidence is very rare, and even if found, is generally strictly construed as to whether it really is direct evidence.

Hudgens v. Univ. of Tex. Md Anderson Cancer Ctr., 2020 Tex. App. LEXIS 9524 (Tex.App.-Houston 2020)
Age Discrimination- Pretext-Only vs. Pretext-Plus
Sixty-one year old employee terminated and replaced by an employee nine years and 10 months younger than him. The issue in the appeal from a summary judgment granted to the employer was whether the employee had satisfied the McDonnell Douglas framework for establishing a circumstantial evidence case sufficient to survive summary judgment. In 2000, the U.S. Supreme Court ruled in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000) that a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” This is referred to as the “pretext-only” standard. The “pretext-plus” standard had been used by some federal courts prior to the Reeves case. This standard required that the plaintiff prove the defendant’s reasons were a pretext plus that discrimination was the real reason for the adverse action. In 2003, in Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003), the Texas Supreme Court appeared to have either overlooked Reeves or purposely followed an earlier U.S. Supreme Court case instead, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993), which stated that “an employer’s proffered reason for the adverse action is not pretext for discrimination unless the plaintiff can show “both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). Notwithstanding the issue of why the Texas Supreme Court departed from Reeves’ pretext-only to Hicks’ pretext-plus in Canchola, that case has encouraged a growing divergence and use of the Canchola/Hicks language by the Texas Courts of Appeal, as witnessed by the present case. The Court of Appeals in this case affirmed the summary judgment despite a dissenting opinion. This case highlights the dilemma facing a plaintiff employee as to picking his “poison.” It requires a plaintiff to carefully evaluate whether the perceived easier path of state court, even with the difficult burden in Texas state court of pretext-plus, outweighs use of the easier federal court burden regarding pretext-only, but with the other difficulties of federal court.
Fort Bend Indep. Sch. Dist. v. Moore, 2020 Tex. App. LEXIS 10430 (Tex.App.-Houston 2020)
Sex Discrimination- Comparators- Pretext Only vs. Pretext Plus
Once again, the Houston Court of Appeals uses the pretext-plus standard, ignoring the pretext-only as was done in the above Hudgens case. A male teacher was accused of inappropriately touching a student and was terminated. The Court of Appeals used a restrictive type prima facie standard which required the teacher to show a comparator employee that was treated better than him, ignoring the federal standard that often times allows the employee to show that he was otherwise discriminated against based on sex when a comparator employee is not available. However, the Court did find that a female teacher accused of scratching a student in an altercation was a comparator, which is highly unusual in that the term “nearly identical” is usually strictly applied. However, the Court ultimately found against the teacher holding that he could not meet the pretext-plus standard citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), notwithstanding the later U.S. Supreme Court case of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000) allowing pretext-only.
Alaniz v. U.S. Renal Care, Inc., No. 19-40043, 2020 U.S. App. LEXIS 40266 (5th Cir.Dec. 23, 2020)
Discrimination—Prima Facie Case—Replacement with Person of Protected Class.
Employer terminated Plaintiff employee and employer replaced the plaintiff with a slightly older employee. The employee sued Employer for age discrimination. The Fifth Circuit held that replacement with an older employee did not preclude the possibility that the employer was motivated by age in terminating the plaintiff, where other evidence sufficient to create an issue of age discrimination. (Notice the difference between the federal court case and the Texas replacement age cases discussed above.) The older replacement employee was not hired for long, the employer also hired another much younger replacement, and the employer had started collecting alleged grievances against the plaintiff immediately after he filed a grievance about harassment. Considering the evidence that the employer was attempting to protect itself from an age discrimination claim, there was an issue of fact whether the employer hired the older employer only to shield itself from a discrimination claim. Thus, it was error for the district court to grant summary judgment for the employer, and the appellate court remanded the case for further proceedings.
Swales v. KLLM Transport Services, LLC, Docket no. 19-60847 (5th Cir. January 12, 2021)
FLSA-Certification of Class- Lusardi Test
Plaintiffs filed a collective action under the Fair Labor Standards Act (FLSA) against KLLM over a minimum wage labor dispute. The district court granted plaintiffs’ certification request, applying the widely used Lusardi test, a two-step method for certifying a collective. The Fifth Circuit declined to delineate the district court’s notice-sending discretion under the Lusardi test, rejecting Lusardi’s two-step certification rubric. The court explained that Lusardi has no anchor in the FLSA’s text or in Supreme Court precedent interpreting it. The court noted that the word “certification,” much less “conditional certification,” appears nowhere in the FLSA. Instead, the court embraced interpretive first principles: (1) the FLSA’s text, specifically section 216(b), which declares (but does not define) that only those “similarly situated” may proceed as a collective; and (2) the Supreme Court’s admonition that while a district court may “facilitat[e] notice to potential plaintiffs” for case-management purposes, it cannot signal approval of the merits or otherwise stir up litigation. The court concluded that these are the only binding commands on district courts. Accordingly, the court vacated the district court’s grant of conditional certification and remanded for further proceedings.