Beaumont Court of Appeals: Age Discrimination Claim Accrued When Layoffs Were Announced, Not When They Occurred
The employer laid off the plaintiff from his job at a factory. The plaintiff later filed a charge of discrimination based on age with the Texas Workforce Commission. The employer moved for summary judgment on the ground that the plaintiff failed to file the charge within 180 days after the date of the alleged discriminatory act. The timeline was as follows:
- June 15, 2009: The employer announces the layoffs, which would be effective on November 30, 2009. The plaintiff is told not to come back to work, but keeps getting paid through November 30.
- June 17, 2009: The employer allegedly hires two younger workers to replace the plaintiff.
- November 30, 2009: The plaintiff is officially removed from the payroll.
- June 1, 2010: The plaintiff files a charge of discrimination with the TWC.
The employer argued that the discriminatory act took place on June 15, 2009, when the layoffs were announced. The plaintiff argued that the discriminatory act took place no earlier than November 30, 2009, when the layoff was effective, because he had not discovered that he had been replaced by younger workers. The Beaumont Court of Appeals agreed with the employer:
In the context of a layoff, the alleged discriminatory act is focused on why a certain employee was included in the layoff. This focus on the discrimination at issue is reflected in Floersheim’s complaint, which alleged: “[Motiva]’s selection process for its reduction in force resulted in the three oldest Process Engineers being laid off (ages 50-65). No Process Engineers under the age of 40 were laid off.” The discriminatory act identified by Floersheim’s complaint concerns the selection process for the layoff.
We conclude that the allegedly discriminatory decision at issue in this case was Motiva’s decision to include Floersheim in the group to be laid off. Floersheim learned of that decision on June 15. Section 21.202 of the Texas Labor Code required Floersheim to file an administrative complaint complaining of Motiva’s decision to lay him off with the Commission within 180 days of the date he learned of Motiva’s decision.
Because the plaintiff did not file his charge of discrimination within 180 days of the announcement of the layoff, the court found that his charge of discrimination was untimely and his lawsuit was jurisdictionally barred.
This may seem like an odd decision, because the court found that the 180 period started to run before the plaintiff actually became unemployed. This should provide a warning to prospective plaintiffs: Don't be dilatory in asserting a discrimination claim.
It should also be noted that, if the plaintiff had elected to proceed under the federal Age Discrimination in Employment Act, he could have filed a charge of discrimination with the EEOC up to 300 days after the discriminatory act. As it turns out, this would not have saved this particular plaintiff, who waited 345 days to file his charge.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes