Home » Blog » Texas Supreme Court Pounds Another Nail In the Coffin for Age Discrimination Cases

Based on the latest Texas Supreme Court case of Texas Tech Health Science Center-El Paso vs. Flores, No.19-0790, Opinion delivered November 11, 2020, a plaintiff, with an age discrimination case based on being replaced by another person, faces such a difficult task of establishing a prima facie case, that federal court is probably the better choice under the ADEA.  The reason is because in the Flores case, the Texas Supreme Court has “double-downed” on the more difficult method of proving a prima facie case as to the fourth element of the prima facie case.  This fourth element according to the Court  is “under this approach, the plaintiff must submit evidence that she was “treated less favorably than similarly situated members of the opposing class. AutoZone, 272 S.W.3d at 592. The plaintiff cannot rely merely on evidence that she was “otherwise . . .discharged because of age,” but instead must provide comparative evidence that she was treated less favorably than those who did not fit within the protected class. Mission Consol., 372 S.W.3d at 640–41.12.”  The Fifth Circuit, under the Age Discrimination in Employment Act (ADEA), alllows the fourth element of the prima facie case to also be proved by the plaintiff establishing that “he was replaced by someone outside the protected class, someone younger, or was otherwise discharged because of his age.” Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996). The Texas Supreme Court, in the Flores case, followed their earlier Autozone case, however, that case adopted the stricter 4th element based on a different set of facts and situation.  Justice Boyd seemed to ignore this difference and simply cited the Autozone case for authority to now require the more difficult 4th element in all age cases.  This more difficult 4th element leaves all age cases out in the cold that can’t meet the very difficult burden of proving replacement by a “similarly situated member of the opposing class.”  Especially, since the Court is now making a plaintiff prove that the similarly situated comparator is “nearly identical.”  So, federal court seems like the place the Texas Supreme Court is sending most replacement age cases now.  Sometimes, this is not the best choice because of the differences in the Texas age discrimination laws and the ADEA. Oh, the Texas Supreme Court’s “bone” they toss at the plaintiff is that if he can’t prove the 4th element of the age prima facie case, he can still prove age discrimination by “direct evidence.”  However, direct evidence is about as rare as snow in July in Texas. So, now the sign over the door to the Texas Supreme Court for those entering with an age “replacement case” should state, like the fabled sign over the gates of Hell that says,”Abandon ye hope all that enter here,” (That is, if ye have an age case.)

Leave a Reply

Your email address will not be published. Required fields are marked *