By Janet Elliott
Staff Writer for The Texas Lawbook
AUSTIN – Fired public workers claiming age discrimination who are replaced by older workers do not enjoy a presumption of discrimination, the Texas Supreme Court said Friday.
Labor lawyers said the case could have widespread implications for employment discrimination cases against public and private employers. One lawyer who represents employers said he will be arguing that it should be extended to all forms of discrimination, not just age discrimination.
The court split 6-3 in the long-running case, involving a veteran employee of Mission Independent School District. Gloria Garcia was 48 when she was fired in 2003 from a job she held for 27 years, as a high school community liaison. She was replaced by a 51-year-old woman.
Garcia, who died last December, failed to establish a prima facie case that she was the victim of discrimination, the court said. The prima facie case is the necessary first step to bringing a discrimination claim under the Texas Commission on Human Rights Act.
“If an inference of discrimination cannot be drawn from replacement by an ‘insignificantly younger’ worker, then one certainly cannot be drawn from replacement by an older worker,” said Justice Don Willett in the majority opinion. “That is the situation confronting us today, and that is the reason we hold that a plaintiff in Garcia’s situation cannot make out a prima facie case of age discrimination.”
Chief Justice Wallace Jefferson, joined by Justices David Medina and Debra Lehrmann, said in a dissenting opinion that Garcia should be allowed to proceed with discovery.
“The Court is today establishing a new and oppressive burden in the employment setting: a litigant must prove her case to establish jurisdiction,” Jefferson said.
He also said that the ruling gives governmental entities a blueprint to win cases if they hire a worker of the same protected class.
David Hansen, who represents the school district, said the decision will help workers decide whether they want to go forward with age discrimination claims.
“What I’m happiest about for the school district is that it is a decision that at least on some levels shows what they’ve known to be the truth for a long time,” said Hansen, a partner in Austin’s Eichelbaum Wardell Hansen Powell & Mehl. “The decision wasn’t based on her age or race or national origin.”
Garcia was represented by Savannah Robinson of Danbury.
Richard R. Carlson, a South Texas College of Law professor who specializes in employment discrimination law, said he thinks the case is not as far reaching as it might seem.
“A good plaintiff’s attorney will not file unless he’s already got evidence of discrimination or knows where he can find it,” Carlson said. “When suing a state or local government, you have to have some reason to believe it is discrimination before you file a lawsuit.”
Carlson said it would be “nonsense” to assume that there could never been discrimination when someone in a protected class is replaced by someone else in that protected class.
Billy Hammel, a partner in the Dallas office of Constangy Brooks & Smith, a national law firm that represents employers, said the ruling clarifies the law in Texas. That’s not the case in the federal system, where the U.S. Court of Appeals for the Fifth Circuit has issued inconsistent rulings.
“Importantly, this opinion does not prevent an employee from alleging age discrimination when she is either replaced by an older worker or is able to show other evidence of age discrimination,” Hammel said.
“Instead, the Texas Supreme Court today simply noted that such claims merely do not get the McDonnell Douglas rebuttable presumption of discrimination and instead must rely on traditional direct evidence to meet their respective burdens of proof,” he said. “This is a fair outcome because of the significance of the McDonnell Douglas burden shifting framework and the power of the rebuttable presumption of discrimination.”
Hammel said he plans to argue on behalf of clients in future cases that the holding should be extended to all forms of discrimination prohibited by the Texas Commission on Human Rights Act.
The Garcia case was first before the Supreme Court in 2007 on the school district’s governmental immunity claim. The court ruled in 2008 that the case could proceed under the anti-discrimination statute.
The AARP filed an amicus brief supporting Garcia.
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