The Legal Brief: Differing Reasons and Inconsistent Documentation May Open the Door to an Inference of Age Discrimination

Last month, in San Benito ISD v. Cruz, No. 13-20-00310-CV (March 11, 2021), the Thirteenth Texas Court of Appeals affirmed a trial court judgment in favor of a school district employee who challenged a school district’s attempt to dismiss her lawsuit for lack of jurisdiction.  The Court of Appeals found that the employee-plaintiff “presented sufficient evidence to raise a fact issue as to whether she was replaced by someone substantially younger and whether [the district’s] arguments in favor of her demotion were pretextual.”  The plaintiff argued the school district’s replacement of her with another older employee was merely temporary and part of plan to put a substantially younger employee in the position.

Background

The Court’s opinion indicates that the plaintiff, who had served as the director of elementary instruction, filed her original age discrimination complaint with the Texas Workforce Commission—Civil Rights Division (TWC-CRD) after being told her options were to resign, retire, or be demoted.  She also filed an internal complaint with the school district.  The internal investigation found that she had not been discriminated against because she had not suffered an adverse employment action. Her supervisor subsequently completed a performance appraisal for the employee, noting some performance concerns. The Superintendent then notified the employee that she would be reassigned to a lower position for the upcoming school year.   The court’s opinion indicates plaintiff subsequently amended her TWC-CRD charge at least two times.  The person selected as the plaintiff’s replacement for the position of director for elementary instruction was 67 years of age at the time she was reassigned to the position.  The following year, the person who replaced the plaintiff was reassigned back to her former position as a campus principal.  In her place, a person 49 years of age was assigned to the plaintiff’s former position as director for elementary instruction, after which, the plaintiff filed suit.

The school district attempted to have the case dismissed on jurisdictional grounds, urging that the plaintiff did not even present a prima facie case raising a presumption of age discrimination.

Appellate Court Analysis

The Court of Appeals found that a prima facie case was established, but also found that the school district produced evidence of legitimate non-discriminatory reasons for the plaintiff’s demotion.  Thus, the burden shifted back to the plaintiff to raise a fact issue as to whether the school district’s stated reasons for the demotion were a mere pretext.  The Court found that the plaintiff presented sufficient evidence to raise a fact issue as to whether she was replaced by someone substantially younger and whether the reasons offered for her demotion were pretextual.  Considerations in the Court’s analysis include, but are not limited to, the following:

• Inconsistencies in the reasons for demotion offered by the school district and actions taken by the district supervisors with regard to the demotion;
• Inconsistences in the reasons for demotion provided by the school district as compared with evidence of prior notice of these reasons;
• Strength of prior performance evaluations as compared with the district’s stated reasons for demotion;
• Circumstances and reasons (or lack thereof) surrounding the appointment and removal of the short-term replacement of the plaintiff;
• The age of the eventual replacement of the plaintiff as the director of elementary instruction in comparison to plaintiff’s age;
• Evidence that district supervisors wanted the younger replacement for the plaintiff from the very beginning.

One issue this case points out is that performance evaluations matter.  Appraisals, even of senior personnel, should objectively document good performance, as well as areas for improvement. When appraisals fail to adequately document needed improvement until shortly before a decision is made to remove or terminate an employee from a position, it can raise a fact question regarding why a consistently high performing employee, as documented in appraisals, becomes one requiring improvement and it can complicate otherwise straightforward personnel actions.

For guidance in helping governmental employers avoid employment discrimination issues and defending against employment discrimination complaints, please contact Sara Leon & Associates, PLLC.

Author: John J. Janssen