Texas Supreme Court: No Prima Facie Case When the Plaintiff Is Replaced by an Older Worker
The Texas Supreme Court has decided few employment discrimination cases. One of the most significant cases that the Texas Supreme court has decided is Mission Consolidated Independent School District v. Garcia, 372 S.W.3d 629 (Tex. 2012). This was an age discrimination case decided under Chapter 21 of the Texas Labor Code. (For some peculiar reason, the Supreme Court and some lower courts insist on referring to this statute as the "Texas Commission on Human Rights Act," even though it is now codified as part of the Labor Code, and even though the Texas Commission on Human Rights was abolished in 2003.)
Ms. Garcia was an employee of the School District. When she was 48 years old, she was fired. The School District replaced her with an employee who was three years older. She made a number of different discrimination claims, including race, national origin, age, and gender. By the time the case reached the Supreme Court, everything other than age discrimination had been dismissed.
The specific question before the Supreme Court was whether Ms. Garcia had established a prima facie case of age discrimination. The court noted that the first three elements of a prima facie were not indispute:
- that the plaintiff is a member of a protected class (in other words, over 40 years old)
- that the plaintiff is qualified for the job
- that the plaintiff was terminated (presumably, this would also include other adverse employment actions, such as demotions, suspensions, and pay reductions)
The fourth element was in dispute. The School District argued that Ms. Garcia was required to prove that she was replaced by a younger worker. Ms. Garcia argued that she could establish a prima facie case by showing that that she was replaced by a younger worker or "otherwise discharged because of age."
After discussing various federal cases under the Age Discrimination in Employment Act (ADEA), which the Supreme Court believed to be conflicting, the Supreme Court made the following holdings:
- In a "true replacement" case (i.e., a case in which the employer replaced the plaintiff after the termination), the plaintiff cannot obtain the inference of discrimination that flows from a prima facie case unless the plaintiff can show that he or she was replaced by a younger worker.
- In all other cases, the plaintiff must present "direct evidence" of age discrimination.
Because Ms. Garcia was replaced by an older worker, and because she failed to produce direct evidence of discrimination, she lost.
On its face, this is a peculiar holding. The various federal cases cited by the Supreme Court are not in actual conflict. On the contrary, it is well settled that the fourth element of a prima facie case is a "nexus" requirement: the plaintiff must show that there is some causal connection between the plaintiff's protected class (race, sex, religion, disability status, age, national origin, or several others) and the adverse employment action (termination, demotion, and so forth). If the plaintiff is fired and then replaced by a different type of worker (a black employee replaced by a white worker, a disabled worker replaced by a non-disabled worker, or an older worker replaced by a younger worker), the prima facie case is established. But there are many other ways to prove the "nexus." In fact, the supervisor who fires the employee may not be the same person who hires the replacement. For example, the racially motivated firing of a black employee does not become legal just because a non-racist supervisor later hires a black worker to fill the job.
On its face, Garcia thus appears to be a striking break from well settled law under Title VII and the ADEA. The Texas courts are supposed to take guidance from federal decisions under statutes that are similar to Chapter 21 of the Texas Labor Code.
In fact, the analysis in Garcia can be explained by the unique procedural posture of that case. This was not an appeal from a summary judgment, a directed verdict, or a jury trial. Instead, the School District was a government entity that filed a plea to the jurisdiction and then took an interlocutory appeal. In that procedural posture, the burden of proof was on the defendant, rather than the plaintiff. The rules of civil procedure do not provide a "no evidence" practice on a plea to the jurisdiction. Instead, the School District was obligated to conclusively disprove that Ms. Garcia was fired due to her age.
The Corpus Christi Court of Appeals held that, even though Ms. Garcia was replaced by an older worker, the School District had not (and perhaps could not) conclusively negate that Ms. Garcia was the victim of age discrimination. This is because it was possible that Ms. Garcia could "otherwise show" that she was fired due to her age. Even though Ms. Garcia had not articulated any other basis for finding that her firing was discriminatory, and even though Ms. Garcia presented no evidence at all despite an ample opportunity for discovery, the Corpus Christ Court of Appeals felt constrained to deny the plea to the jurisdiction.
The Supreme Court avoided that result by shifting the burden of proof to Ms. Garcia. The Supreme Court held that the evidence that Ms. Garcia was replaced by an older worker "negated one of the essential elements of the prima facie case, thus triggering Garcia's duty to raise a fact question on the issue of discriminatory intent."
There are legitimate reasons to question whether this is a proper result. In effect, the Supreme Court altered the elements of a prima facie case to make those elements dovetail with a plea to the jurisdiction. It may have been more sensible to send the case back to the trial court to be processed under the usual summary judgment framework. This seemed to be the thrust of Chief Justice Jefferson's dissenting opinion, which was joined by Justices Medina and Lehrmann. It remains to be seen whether future cases will interpret Garcia as a true change in the law, as opposed to a procedural oddity.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes