No 10-0802 in the SUPREME COURT of TEXAS MISSION

No 10-0802

MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Petitioner,

GLORIA GARCIA, deceased, Respondent

On Appeal From The Thirteenth District Court of Appeals, Corpus Christi-Edinburg, Texas

BRIEF OF AMICUS CURIAE AARP IN SUPPORT OF RESPONDENT

______

DANIEL B. KOHRMAN AARP FOUNDATION LITIGATION 601 E Street, NW Washington, DC 20049 Telephone (202) 434-2064 Facsimile (202) 434-6424 [email protected]

Counsel for Amicus Curiae AARP

TABLE OF CONTENTS

TABLE OF CONTENTS...... i

TABLE OF AUTHORITIES ...... iii

INTRODUCTION ...... 1

STATEMENT OF INTEREST ...... 2

STATEMENT OF FACTS AND PROCEDURE...... 2

SUMMARY OF THE ARGUMENT ...... 5

ARGUMENT ...... 6

I. The Court of Appeals’ Decision is Consistent, and MCISD’s Position Is Irreconcilable, With Precedent Applying the “Otherwise Discharged” Prong of the Fifth Circuit/Texas State Court Age Discrimination Prima Facie Case Test ...... 6

A. “Otherwise Discharged” Applies to All Age Discrimination Cases ...... 7

B. Replacement by an Older Worker Does Not Preclude a Prima Facie Case ...... 9

II. The School District Ignores Other Federal and State Authority Establishing Flexible Standards Governing a Prima Facie Case of Age Discrimination ...... 16

A. McDonnell Douglas and Its Progeny ...... 16

B. O’Connor v. Consolidated Coin Caterers Corp...... 24

III. Ample Precedent Permits a Protected-Age Worker Replaced by a Still Older Employee to Establish a Prima Facie Case of Age Discrimination ...... 26

A. Federal Courts of Appeals Have Approved Claims Like Garcia’s ...... 26

B. The “Direct Evidence” Option ...... 29

C. Discharged Employees replaced by a Person of the Same Sex or Race May Establish a Prima Facie Violation of Title VII ...... 32

PRAYER ...... 35

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES

Acker v. DeBoer, Inc., 429 F. Supp. 2d 828 (N.D. Tex. 2006) ...... 8

Adams v. Valley Fed. Credit Union, 848 S.W.2d 182 (Tex. App. 1992) ...... 9

Alphin v. Sears, Roebuck & Co., 940 F.2d 1497 (11th Cir. 1991) ...... 22, 23, 24

Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir. 1991) ...... 13, 21

Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir. 1995) ...... 11, 13

Bauer v. Albemarle Corp., 169 F.3d 962 (5th Cir. 1999) ...... 11, 13

Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) ...... 11

Browning v. Southwest Research Inst., 288 Fed. Appx. 170 (5th Cir. 2008), cert. denied, 555 U.S. 1170 (2009) ...... 33

Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000) ...... 34

Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir. 1982) ...... 20

Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989) ...... 22, 32

City of Austin Police Dep’ v. Brown, 96 S.W.3d 588 (Tex. App. 2002, rev. dism'd) ...... 18

iii

Connecticut v. Teal, 457 U.S. 440 (1982) ...... 12

Cory v. Brady Indep. Sch. Dist., No. 03-09-00098, 2009 Tex. App. LEXIS 7034 (Tex. App. Aug. 31, 2009) ...... 14

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148 (1st Cir. 1990) ...... 33

Dowd v. Northrup Corp., No. 90-1990, 1991 U.S. App. LEXIS 15038 (1st Cir. June 17, 1991) ...... 23

Dreyer v. Arco Chem. Co., 801 F.2d 651 (3d Cir. 1986), cert. denied, 480 U.S. 906 (1987) ...... 21

El Paso Cmty. Coll. Dist. v. Chase, No. 0809-00100-CV, 2011 Tex. App. LEXIS 3349 (Tex. App. May 4, 2011) ...... 30

Elliot v. Group Med. & Surgical Serv., 714 F.2d 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984) ...... 21

Fox v. American Airlines, No. 3:00-CV-0369-L, 2001 U.S. Dist. LEXIS 20623 (N.D. Tex. Dec. 11, 2001) ...... 11

Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ...... 18

Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419 (Tex. App. 2000) ...... 33

Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996) ...... 23, 24, 27, 28, 31

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009) ...... 30, 31

Henderson v. Univ. of Texas M.D. Anderson Cancer Ctr., No. 01-08-00376, 2010 Tex. App. LEXIS 8883 (Tex. App. Nov. 4, 2010, rev. dism'd) ...... 16, 17

In re: United Servs. Auto. Ass’n, 307 S.W.3d 299 (Tex. 2010) ...... 4

Jackson v. GTE Directories Serv. Corp., 734 F. Supp. 258 (N.D. Tex. 1990) ...... 10, 11, 28, 29

Jackson v. Cal-West Packaging Corp., 602 F.3d 374 (5th Cir. 2010) ...... 31

Jackson v. Richards Med. Co., 961 F.2d 575 (6th Cir. 1992) ...... 33

Jones v. Okla. City Publ. Sch., 617 F.3d 1273 (10th Cir. 2010) ...... 31

Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000) ...... 33

Leibowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009) ...... 33

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) ...... 17, 23, 24, 29, 32

Machinick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005) ...... 8, 9

Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977) ...... 20

Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir. 1983), cert. denied, 464 U.S. 937 (1983) ...... 21

McCarthy v. N.Y.C. Technical Coll., 202 F.3d 161 (2nd Cir. 2000) ...... 23

McCorstin v. United States Steel Corp., 621 F.2d 749 (5th Cir. 1980) ...... 1, 20, 21

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ...... passim

McGinnis v. Union Pac. R.R. Co., 496 F.3d 868 (8th Cir. 2007) ...... 33

M.D. Anderson Hosp. & Tumor Inst., v. Willrich, 28 S.W.3d 22 (Tex. 2000) ...... 4

Mehn v. Prof'l Constr. Servs., Inc., No. 95-3125, 1997 U.S. Dist. LEXIS 490 (E.D. La., Jan. 10, 1997) ...... 11

Mercado v. White, No. 03-451, 2004 U.S. Dist. LEXIS 30613 (M.D. Pa. Sept. 27, 2004) ...... 28, 29

Mission Consol. Indep. Sch. Dist. v. Garcia, 314 S.W.3d 548 (Tex. App. 2010) ...... passim

Mooney v. Aramco Servs., Co., 54 F.3d 1207 (5th Cir. 1995) ...... 16

Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034 (8th Cir. 2007) ...... 24

Nieto v. L&H Packing Co., 108 F.3d 621 (5th Cir. 1997) ...... 33

NME Hosps., Inc. v. Rennels, 994 S.W.2d 142 (Tex. 1999) ...... 4

Obitko v. Ohio Barge Line, Inc., 628 F. Supp. 62 (W.D. Pa. 1986) ...... 29

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) ...... 2, 24, 25, 26

Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507 (5th Cir. 2001) ...... 33

Parrish v. Immanuel Med. Ctr., 92 F.3d 727 (8th Cir. 1996) ...... 22, 25, 26

Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000) ...... 34

Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999) ...... 26, 34

Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir. 1977) ...... 13

Price Waterhouse v. Hopkins, 490 U.S. 229 (1989) ...... 30

Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001) ...... 4, 16, 17, 18, 30

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) ...... 7, 8, 16, 30

Racicot v. v. Wal-Mart Stores, Inc., 414 F.3d 675 (7th Cir. 2005) ...... 27

Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640 (Tex. 1995) ...... 3

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) ...... 20, 30

Russo v. Smith Int’l, Inc., 93 S.W.3d 428 (Tex. App. 2002) ...... 13

Schwager v. Sun Oil Co. of Pennsylvania, 591 F.2d 58 (3d Cir. 1979) ...... 14

Silva v. Chertoff, 512 F. Supp. 2d 792 (W.D. Tex. 2007) ...... 9

vii

Smith v. World Book-Childcraft Int’l, Inc., 502 F. Supp. 96 (N.D. Ill. 1980) ...... 14

Stella v. Mineta, 284 F.3d 135 (D.C. Cir. 2002) ...... 33

Swierkiewicz v. Sorema, N.A., 535 U.S. 506 (2002) ...... 5, 18, 19, 30

Teamsters v. United States, 431 U.S. 324 (1977) ...... 18, 25, 26

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ...... 16, 17, 25

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ...... 3, 19

Thornbrough v. Columbus and Greenville R.R. Co., 60 F.2d 633 (5th Cir. 1985) ...... 12, 13, 17, 21

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) ...... 17, 18

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 (Tex. 2003) ...... 4

Waldmiller v. Continental Express, Inc., 74 S.W. 3d 116 (Tex. App. 2002) ...... 1, 18

Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992) ...... 12, 13

Williams v. General Motors Corp., 656 F.2d 120 (5th Cir. 1981) ...... 13, 20, 21

viii

Wright v. Southland Corp., 187 F.3d 1287 (11th Cir.1999) ...... 17, 24, 27, 28, 31, 32

STATUTES

Federal

Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621, et seq. (ADEA) ...... passim 29 U.S.C. § 623(a)(1) ...... 19

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., ...... 33, 34

42 U.S.C. § 1981 ...... 20

State

Texas Commission On Human Rights Act, Tex. Lab. Code Ann. §§ 21.001, et seq. (West 2011) (TCHRA) ...... passim

Tex. Lab. Code Ann. § 21.051 ...... 3

OTHER AUTHORITIES Tex R. App. P. 11(c) ...... 2

INTRODUCTION

This case presents a fundamental question of employment discrimination law: whether the height of an early hurdle for claimants – establishing a prima facie case, here of intentional age bias – is set by rigid rules, or rather, is flexibly determined. Petitioner asserts the former view, urging adherence to strictly-defined categories of age bias claims.

The alternative is to assess such claims according to the broad wording of the relevant laws, which prohibit workplace discrimination “because of . . . age.” Thus, an age bias claimant’s prima facie case may be established by meeting concrete and specific criteria, if possible; but if not, it must be measured by an elastic standard, reflecting the fact that “discrimination, unfortunately, exists in forms as myriad as the creative perverseness of human beings can provide.” McCorstin v. United States Steel Corp., 621 F.2d 749, 753-54 (5th Cir. 1980).

Amicus AARP submits that the overwhelming weight of relevant authority favors this latter view. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973)

(stating that “[t]he facts necessarily will vary in Title VII cases, and . . . the prima facie proof required from [a claimant] is not necessarily applicable in every respect to differing factual situations”); Waldmiller v. Continental Express, Inc., 74 S.W.3d 116, 120 (Tex. App.

2002) (citing and paraphrasing this passage of McDonnell Douglas). Accord McCorstin,

621 F.2d at 754 (“A mechanistic application of the McDonnell [Douglas] prima facie test is especially dangerous in the context of age discrimination”). Consistent with this pattern, many courts have rejected the proposition, advanced in this appeal, that a mature worker such as Gloria Garcia, replaced by another senior to her in age, never may establish a prima facie case of age bias. On this point, the appeals court should be affirmed.

STATEMENT OF INTEREST

AARP is a non-partisan, non-profit organization dedicated to representing the interests and addressing the needs of people age fifty and above. Nearly half of AARP members are employed, and many others are actively seeking employment. All such persons are protected by the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§

621, et seq. (ADEA), as well as state age discrimination provisions such as those contained in the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. §§ 21.001, et seq.

(West 2011) (TCHRA). Sound interpretation and vigorous enforcement of age discrimination laws is of paramount importance to AARP and to many millions of older workers on whose behalf AARP regularly engages in legal advocacy in state and federal courts. In particular, AARP has participated as an amicus curiae in virtually all age discrimination cases to have reached the U.S. Supreme Court in the past two decades, including O’Connor v. Consolidated Coin Caterers’ Corp., 517 U.S. 308 (1996), whose holding and analysis is central to resolution of this appeal.1

STATEMENT OF FACTS AND PROCEDURE

The parties sharply contest whether Defendant-Petitioner Mission Consolidated

Independent School District (“MCISD” or the “District”) discriminated against Plaintiff-

Respondent Gloria Garcia “because of [her] age.” Yet the facts underlying the assertion that

Garcia has failed to establish a prima facie case of age discrimination are undisputed.

MCISD hired Garcia in 1976 and discharged her in 2003 at age 48. The District hired Zoila

1 No fee has been paid or will be paid to AARP, to the AARP Foundation, to undersigned counsel, or to any other person or entity for preparing this brief. See Tex R. App. P. 11(c). 2

Longoria, age 51, to perform the same job Garcia formerly held, as a high school

Community/Home School Liaison.

Garcia alleged in her initial complaint (i.e., her original petition) that MCISD discriminated against her “due to her age.” Mission Consol. Indep. Sch. Dist. v. Garcia, 314

S.W.3d 548, 554 (Tex. App. 2010). Regarding this claim, Garcia also alleged that “her termination was part of a larger unwritten plan or scheme of the Defendant School District to discriminate against older Hispanic female employees who were politically associated with persons adverse to the Administration.” Id. (emphasis supplied).

“In response to Garcia’s [age discrimination claim, among others], the District filed a plea to the jurisdiction challenging Garcia’s jurisdictional facts.” Id. Supporting its plea,

MCISD submitted affidavits asserting that Longoria had replaced Garcia and was older than

Garcia. Id. at 555. The key premises of the District’s plea are twofold. First, “to properly invoke the TCHRA’s limited waiver of governmental immunity” against MCISD, a governmental entity, “Garcia must have shown a prima facie case of discrimination . . . as provided under that statute.” Id. (citing Tex. Lab Code Ann. § 21.051). Second, “the trial court’s subject matter will be defeated if the District can conclusively negate any element of

Garcia’s prima facie case of [age] discrimination under the TCHRA.” Id. (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004), and Randall’s Food

Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)). Garcia “did not create a fact issue with regard to her age or Longoria’s age”; indeed, she declined to respond to MCISD’s fact submissions, arguing Longoria’s older age did not preclude her from establishing a prima

3 facie case. Id. at 556. Significantly, MCISD “did not bring forth evidence challenging

Garcia’s claim other than to show that she was replaced by an older employee.” Id.

The Thirteenth District Court of Appeals, in reviewing MCISD’s jurisdictional plea, properly considered both federal and state authority regarding establishing a prima facie case of age discrimination. The appeals court observed, as the parties agree, that “[i]n enacting the TCHRA, the [Texas] Legislature intended to correlate state law with federal law with respect to employment discrimination; therefore we look to federal law in interpreting provisions of the TCHRA.” Garcia, 314 S.W.3d at 555, (citing M.D. Anderson

Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000), and NME Hosps., Inc. v.

Rennels, 994 S.W.2d 142, 144 (Tex. 1999)). Accord In re: United Servs. Auto. Ass’n, 307

S.W.3d 299, 308 (Tex. 2010); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739

(Tex. 2003); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

Accordingly, the appeals court, citing precedent from both the Fifth Circuit and

Texas courts, identified a four-part formula for establishing a prima facie case of age discrimination and focused on Garcia’s satisfaction of the fourth and only disputed element, requiring that a plaintiff:

[show] that she was replaced by someone outside the protected class or by someone younger, or otherwise show that she was discharged because of her age.

Garcia, 314 S.W.3d at 555-56. The appeals court read this formula literally and treated it as affording Garcia three options. Thus, it held, because “Garcia could establish the fourth element of a prima facie age discrimination claim by showing that she was terminated because of her age, regardless of whether she was replaced by someone younger,” MCISD’s

“proof [supporting its plea] was not sufficient to conclusively negate the fourth element of

Garcia’s age discrimination claim.” Id. at 556. That is, MCISD failed to preclude the possibility that Garcia was “otherwise . . . discharged because of age.” Id. Hence, the appeals court rejected MCISD’s jurisdictional challenge to Garcia’s age bias claim, ruling that “the trial court was correct to rely on Garcia’s pleadings – including her broad assertion that she was discriminated against ‘due to her age.’” Id. at 556-57.

SUMMARY OF THE ARGUMENT

The soundness of the appeals court’s denial of the School District’s plea to the jurisdiction of Gloria Garcia’s age discrimination claim is confirmed by a host of authorities. The Fifth Circuit “formula” for establishing a prima facie case of age discrimination, routinely applied in Texas courts, clearly supports the ruling now on appeal.

Both the wording of the formula and most precedent interpreting it favor affirmance. That is, the District has not conclusively disproved that Garcia was “otherwise . . . discharged because of [her] age.” Contrary to dicta in decisions relied on by MCISD, this flexible test has not been restricted to one type of age bias case – so-called “reduction” cases, and has not been ruled out for so-called “replacement cases,” like this one. In short, the Fifth

Circuit/Texas formula has been properly and flexibly applied in this case.

Even if the appeals court had not followed this specific flexible test, an overwhelming body of federal and state precedent requires just such an approach. These rulings are based on a long string of consistent U.S. Supreme Court decisions. Beginning with McDonnell Douglas Corp. v. Green (1973), and extending (at least) to Swierkiewicz v.

Sorema, N.A. (2002), the Court has held that the prima facie case in employment

5 discrimination cases: must vary with the facts of each cause; must accommodate the diverse forms of workplace bias, including age discrimination; and also must reflect the broad prohibitions enshrined in workplace bias laws such as the ADEA and the TCHRA, that bar discrimination “because of” protected characteristics, including age. Moreover, anything less than such a flexible approach would contravene an age bias claimant’s right to prove their case with direct evidence, regardless whether they have satisfied all elements of any particular test for establishing a prima facie case of age discrimination.

Following these settled principles, multiple courts, including the Fifth Circuit, have recognized that an “older replacement” is compatible with establishing a prima facie case under the ADEA. Many courts also have reached similar conclusions in analogous cases in which women or members of racial minorities have replaced others discharged and possessing the same protected characteristic. For all of these reasons, the decision of the

Thirteenth District Court of Appeals denying MCISD’s plea to the jurisdiction of Garcia’s

TCHRA age bias claim should be affirmed.

ARGUMENT

MCISD argues that a discharged older worker never can assert a claim of age bias if he or she is “replaced” by a still older employee. This is so, MCISD contends, no matter the circumstances of the older worker’s firing, and regardless of the strength of his or her evidence of age discrimination. This misstates the law, and ignores the express terms of the

Fifth Circuit/Texas State formula for establishing a prima facie case of age discrimination.

Specifically, MCISD asserts that the fourth component of a plaintiff’s prima facie case of age discrimination establishes two specific, rigidly-defined categories –

“Replacement Cases” and “Reduction-in-Force Cases” – that “are each subject to distinct prima facie [case] elements.” Petitioner’s Brief on the Merits (“Pet’r’s Br.”) at 3. The

District says that this supposed “necessary distinction,” id. at 7, has been consistently applied throughout the Fifth Circuit, and so, the third component of the fourth element, permitting a plaintiff to show they were “otherwise discharged because of . . . age,” is simply a “carve-out for Reduction-in Force cases [that] does not apply – and has never been applied – to a [Replacement] Case,” id. at 12 (emphasis supplied). And “[i]n cases where a discharged plaintiff was actually replaced in her employment by another,” only the initial options of the fourth element – replacement by a younger worker under age 40 or by a worker above age 40 who is “substantially younger” – ever can satisfy a plaintiff’s prima facie case. Id. at 13. This account directly contravenes decisions of the Fifth Circuit and district courts within it.

A. “Otherwise Discharged” Applies to All Age Discrimination Cases.

First, the separation MCISD imagines, between two mutually exclusive classes of age discrimination cases, does not exist, either in the Fifth Circuit or elsewhere (see §§ II.A. and III.A. below). For example, not all “replacement cases” are easily resolved by examining whether a discharged employee’s successor was “substantially younger.” Thus, where this is a “close question,” the Fifth Circuit has considered whether plaintiff’s “other evidence establishes a prima facie case.” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 313

(5th Cir. 2004). In other words,

regardless of how much younger his replacement is, a plaintiff in the protected class may still establish a prima facie case by producing evidence that he was “discharged because of his age.”

Id. at 309. See id. at 308 (referring to age of Rachid’s “replacement”). Accord Acker v.

DeBoer, Inc., 429 F. Supp. 2d 828, 841 (N.D. Tex. 2006) (“Under the ADEA, a plaintiff may establish a prima facie case of age discrimination by producing evidence that he was

‘discharged because of his age,’ without regard to how much younger his or her replacement may have been,” quoting Rachid, 376 F.3d at 309); see id. (alluding to “testimony that various members of management made negative comments about Acker’s age and suggested that they wished to replace him with someone younger”).

Second, in many instances, there is no easy way to distinguish a “replacement case” from a “reduction case.” Thus, in Machinick v. PB Power, Inc., 398 F.3d 345 (5th Cir.

2005), the parties disputed and the court declined to decide whether an ADEA plaintiff’s employer terminated and replaced him, or eliminated his position. The Court of Appeals concluded it did not have to reach the question because under the ADEA an employee “may establish the fourth prong of his prima facie case with evidence that he was ‘otherwise discharged because of his age.’” Id. at 352-53. 2 The Machinick Court noted generally, that

“evidence of disparate treatment may . . . logically suggest a discriminatory motive for purposes of establishing a prima facie case of age discrimination.” Id. at 353 n.26.

Specifically, the Fifth Circuit found the plaintiff satisfied his prima facie case based on evidence of the employer’s “business plan . . . to assemble a younger workforce,” and proof

2 The Court of Appeals concluded: “Although we do not address whether Betz replaced Machinick, we find that his retention coupled with Machinick’s termination gives rise to an inference that Machinick was terminated because of his age.” Id. at 353. 8 that PB Power Inc. treated Machinick “in a disparate manner by terminating him while retaining the younger, similarly situated Mike Betz.” Id. at 353. It is just such a “plan” of discrimination that Garcia alleges in this case.

Finally, Texas courts, both state and federal, apply the “otherwise discharged” language of the standard prima facie case in “replacement cases.” For instance, in Adams v.

Valley Federal Credit Union, 848 S.W.2d 182 (Tex. App. 1992), a TCHRA age case in which a younger worker replaced the plaintiff, the court “disagree[d] . . . that a plaintiff must prove that the person who replaced her was under 40 years of age.” Rather, it said,

“[t]he plaintiff must be replaced by someone outside the protected class, someone younger, or otherwise show that the discharge was because of age.” Id. at 187 n.5. Likewise, in

Silva v. Chertoff, 512 F. Supp. 2d 792 (W.D. Tex. 2007), the court said of a replaced ADEA plaintiff, that because Silva “ha[d] not presented any evidence that [his employer] replaced him with an individual under the age of 40 or someone over 40 years of age but younger . . . the Court must assume that [plaintiff] hopes to establish the final element of his prima facie age discrimination claim by relying on evidence that [his employer] ‘otherwise discharged’

[him] because of his age.” Id. at 810 & n.91.3 .

B. Replacement by an Older Worker Does Not Preclude a Prima Facie Case.

The District asserts that the Fifth Circuit formula “necessarily forecloses the possibility that [a] terminated employee [replaced by an older worker] can establish the

TCHRA prima facie element that she was discriminated against ‘because of age.’” Pet. Br. at 13. This is true neither in the Fifth Circuit nor beyond it.

3 Ultimately, the court rejected Silva’s effort to show his employer treated “similarly situated” co-workers “better than it treated [him].” Id 9

In Jackson v. GTE Directories Service Corp., 734 F. Supp. 258 (N.D. Tex. 1990), the court upheld a prima facie case of age discrimination presented by Jo Soderblom, the 42- year-old manager of GTE’s Commercial Credit Group, who GTE discharged and replaced with a45-year-old. The trial judge’s reliance on the third component of the fourth element of the Fifth Circuit’s formula for an ADEA prima facie case could not have been clearer.

Given plaintiff’s concession that she was replaced by an older worker:

The dispositive issue therefore is whether Soderblom has presented evidence sufficient to create a fact question as to whether her discharge was “otherwise because of her age.” The court concludes that she has.

Id. at 268. Elsewhere, the court said that “[t]he . . . three factors” in the Fifth Circuit’s formula for satisfying the fourth element of the ADEA prima facie case “are generally treated on an alternative basis; that is, a plaintiff need only establish one of the three.” Id. n.16. Significantly, as in this case, the defendant-employer did not rebut the plaintiff- employee’s evidence of age bias (a pattern of ageist remarks). Id. at 268-69. The trial judge thus denied summary judgment for GTE. Id. at 269. Garcia likewise should have a chance to present her evidence of age bias, whether it consists of a pattern of ageist comments or other indicia of age-based intent.

The Jackson court derived its confidence in drawing an inference of age discrimination from the broad purposes of the ADEA:

While it may appear anomalous to infer that an employee who is replaced by an older employee has been subjected to age discrimination, such an inference is permissible. The ADEA prohibits employers from utilizing age as a determinative factor in employment decisions. . . . . If the plaintiff can establish her discharge was “because of age” and otherwise satisfies the elements of a prima facie case, she may proceed with her claim.

Id. at 268 n.17 (citations omitted).

Similarly, in Mehn v. Professional Construction Services, Inc., No. 95-3125, 1997

U.S. Dist. LEXIS 490 (E.D. La., Jan. 10, 1997), a 44-year-old plaintiff presented ageist comments “sufficient to satisfy the ‘otherwise discharged because of age’ prong of the fourth element of a prima facie case under the ADEA.” Id. at *9. The court relied on this language, as in Rachid, in order to avoid addressing contested evidence whether Mehn had satisfied the “replaced by someone younger” factor; in this instance, however, the dispute turned on whether Mehn had been replaced by someone older or someone younger (not on whether plaintiff had been replaced by someone “substantially younger”). Id. n.2. Thus, as in Jackson, and contrary to MCISD’s reading of applicable law, the court did not treat the assertion of an older replacement as fatal to the plaintiff’s prima facie case.4

4 Cf. Fox v. American Airlines, No. 3:00-CV-0368-L, 2001 U.S. Dist. LEXIS 20623, *12- 13 (N.D. Tex. Dec. 11, 2001) (stating “otherwise discharged” because of age language did not apply to efforts of ADEA plaintiff replaced by still older worker to establish a prima facie case). The Fox court relied on three RIF decisions (Bauer v. Albemarle Corp, 169 F.3d 962 (5th Cir. 1999), Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir. 1995) and Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996)) for the unremarkable proposition that the “otherwise discharged” language “applies in circumstances where a plaintiff may not be able to show that he was replaced by a younger employee.” Id. at *13. But the court provided no authority whatever for its refusal to apply the “otherwise discharged” prong in a replacement case. Rather, the Fox court made up a new rule that had the same effect as permitting reliance on the “otherwise discharged” prong in replacement cases: it said that “where one of the elements of a plaintiff’s prima facie case is missing, the plaintiff may attempt to remedy the deficiency by adducing evidence of discrimination in the form of remarks evidencing animus or bias.” Id. But the passage of Brown from which this rule purports to derive simply contains the Fifth Circuit’s inquiry into the Brown plaintiffs’ evidence (including, but not limited to, ageist comments) that they were “otherwise discharged because of age.” 82 F.3d at 655-57 (discussing plaintiffs’ showing as to the “fourth element” of the ADEA prima facie case).

Finally, in Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992), the court strongly suggested it would rule that a worker discharged and replaced by someone older may establish a prima facie case of age discrimination. Lone Star relied on its hiring of an

(alleged) older replacement to seek reversal of a jury verdict for a fifty-year-old gas company manager. After his discharge in a RIF, Melvin Walther learned that he had been

“replaced” as manager of a regional office in Greenville, Texas by an older employee transferred from Dallas. Id. at 121, 123. The Fifth Circuit noted several reasons to ignore the replacement issue, including the fact that Lone Star discharged Walther in circumstances making his case “a reduction in force case.” Id. at 122-23. Yet the court added: “the fact that Walther was replaced by an older employee rather than a younger one does not necessarily show that he was not discriminated against because of his age.” Id. at 123. Yet that is precisely what MCISD asserts in this case. The court also stated, in words equally relevant to this case:

Congress never intended to give an employer license to discriminate against some employees . . . merely because he favorably treats other members of the employees’ group.

Id. (quoting Thornbrough v. Greenville R.R. Co. 760 F.2d 633, 646 n.20 (5th Cir. 1985), quoting Connecticut v. Teal, 457 U.S. 440, 455 (1982)).5 The Court of Appeals refused to

5 Connecticut v. Teal also answers MCISD’s suggestion that a discharged worker replaced by an older person “only” can claim age discrimination on grounds of being “too young.” Pet’r’s Br. at 3. A (biased) decision to discharge an older worker may be quite unrelated to a decision (possibly unbiased) to replace them with another older worker. Thus, the District’s assertion that this case poses a “logical impossibility,” id. at. 13, and the specter of creating a TCHRA “cause of action for ... ‘reverse discrimination,’” id. at 3, is simply fanciful. As noted throughout this brief, there are many reported decisions accepting the possibility of an older replacement coinciding with genuine evidence of age discrimination.

12 upset the jury’s verdict for Walther, due to the failure of the trial court to instruct, as Lone

Star urged, that Walther was required “to show that he was replaced by a younger employee.” Id. at 126. The Fifth Circuit reviewed evidence plaintiff presented supporting an inference – and a verdict – of age discrimination, including statistics regarding the ages of those discharged and the lesser qualifications of younger employees “retained and transferred or promoted to positions similar to his own.” Id. at 122. Such evidence also is among potential sources of proof Garcia may offer in this case.

In light of Jackson, MCISD’s inability “to find a single case where an employee that was replaced by an older worker was nonetheless allowed to make its [sic] age- discrimination claim by showing that she was otherwise discriminated against ‘because of age,” Pet’r’s Br. 13, is inexplicable. By contrast, the District’s cramped reading of Fifth

Circuit precedent is easier to explain: MCISD has relied exclusively on “reduction cases” in which the issue of applying the ADEA’s prima facie case in “replacement cases” is absent or a matter or pure dicta. See id. at 8-12 (discussing Price v. Maryland Casualty Co., 561

F.2d 609 (5th Cir. 1977), Williams v. General Motors Corp., 656 F.2d 120 (5th Cir. 1981), cert. denied, 455 U.S. 943 (1982), Amburgey v. Corhart Refractories, Corp., Inc., 936 F.2d

805 (5th Cir. 1991), Thornbrough, Armendariz, and Bauer). See also id. at 12 (discussing

Russo v. Smith Int’l, Inc., 93 S.W.3d 428 (Tex. App. 2002) (another reduction case)).

It is unsurprising that these decisions opine that where replacement is not an issue, the first two components of the fourth element of the ADEA prima facie test – both of which reference replacement – do not apply. Further, what these decisions suggest, in dicta,

13 about facts not presented – i.e., how the Fifth Circuit formula applies in “replacement cases”

– should be ignored in the case at bar.6

In a similar case, a Seventh Circuit trial court succinctly summarized another serious flaw in MCISD’s argument: mischaracterizing what may be shown – to establish a prima facie case, by demonstrating replacement by a younger employee – as what must be shown.

In Smith v. World Book-Childcraft International, Inc., the judge explained that

. . . courts, in describing the facts which were held to constitute a prima facie case of age discrimination, included the fact that plaintiff was succeeded by younger employees. These courts did not hold however, that such a showing is a prerequisite to proving a prima facie case of age discrimination. In light of the necessity for a case-by-case approach to a finding of prima facie discrimination dictated by the legislative history of the ADEA and the McDonnell Douglas decision, it is a serious mistake to confuse a court’s recitation of the particular facts constituting a prima facie case showing in one case with a statement of standards that must be met in all cases.

502 F. Supp. 96, 100 n.4 (N.D. Ill. 1980). See id. n.5 (citing Schwager v. Sun Oil Co. of

Pennsylvania, 591 F.2d 58, 61 n.1 (3d Cir. 1979), and reproducing ADEA legislative history to the effect that “the case-by-case basis should serve as the underlying rule in the

6 A lone state decision suggesting an older replacement may preclude a prima facie case of age discrimination is no better authority. See Cory v. Brady Indep. Sch. Dist., No. 03-09- 00098, 2009 Tex. App. LEXIS 7034 (Tex. App. Aug. 31, 2009). This unreported intermediate appellate ruling, affirming a trial court summary judgment for the employer, found that plaintiff had “presented no competent summary judgment evidence that she was discharged because of her age,” only four “essentially identical” and “conclusory” affidavits free of “any supporting facts.” By comparison, Respondent Garcia has not yet had occasion to present her evidence of age bias. At one point, the Cory court simply assumed – based on Armendariz, a “reduction case” – that the “otherwise discharged” language of the Fifth Circuit formula did not apply. Id. at *12. But the Court of Appeals covered itself, ruling – as if such language did apply after all – that Cory’s evidence did not satisfy the fourth element of the prima facie case, including the “otherwise discharged” language. Id. at *13. 14 administration of the legislation [as] [t]oo many different types of situations in employment occur for the strict application of general prohibitions and provisions”).

By requiring MCISD to conclusively rebut the “otherwise discharged” component of

Garcia’s prima facie case, the Court of Appeals imposed no impossible task. Rather, it was open to MCISD – if the facts warranted – to “provide[] an affidavit or deposition testimony by the appropriate District personnel attesting that Garcia was not “otherwise . . . discharged because of age.” Garcia, 314 S.W.3d at 556 n.3. This, in turn, would have required Garcia

“to bring forth evidence to create a fact issue as to her prima facie case in order to avoid dismissal for lack of subject matter jurisdiction.” Id. For instance, if the facts enabled her to so do so, Garcia could have presented evidence of ageist comments directed to her by those responsible for her discharge, of preferential treatment of younger District employees at the time Garcia and others were discharged, or of a pattern of ageist conduct by District personnel reflecting unfair, negative stereotypes about the work performance of Garcia and other “older . . . employees . . . associated with persons adverse to the Administration.” Id. at 554. Then, in turn, MCISD could have tried to conclusively rebut Garcia’s actual evidence of age discrimination.

Having failed to take steps possibly quite within reach, MCISD now instead asks this

Court to dramatically alter proof requirements for older workers generally. The Court should reject this misguided invitation.

The ruling on appeal – employing a narrow focus on a specific formula for the age discrimination prima facie case – is sound. A broader perspective, reflecting other

15 precedent, might incorporate other means, but would produce the same result: flexible definition and implementation of the age discrimination prima facie case.

II. The School District Ignores Other Federal and State Authority Establishing Flexible Standards Governing a Prima Facie Case of Age Discrimination.

The prima facie case approach used thus far in this case, stressing a claimant’s option to show that they were “otherwise discriminated against because of . . . age,” is consistent with U.S. Supreme Court precedent. Indeed the overwhelming weight of authority disfavors any stricter or more formulaic method. Thus, a key assertion of the District in this case, that

“the United States Supreme Court has construed the ADEA in a direction completely opposite to that of the Thirteenth Court of Appeals,” Pet’r’s Br. 13, is flatly incorrect.

A. McDonnell Douglas and Its Progeny.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the U.S. Supreme Court embraced a procedure for “allocate[ing] the burden of production and order[ing] the presentation of proof” in employment discrimination cases. Burdine, 450 U.S. at 252. The first step in this procedure is to establish a “prima facie case” that creates a rebuttable presumption that the plaintiff incurred discrimination. This Court consistently has applied McDonnell Douglas and its progeny to age discrimination cases under the TCHRA. See Quantum Chem. Corp.,

47 S.W.3d at 476-77. Accord Henderson v. Univ. of Texas M.D. Anderson Cancer Ctr., No.

01-08-00376, 2010 Tex. App. LEXIS 8883, *7 (Tex. App. Nov. 4, 2010, rev. dism’d).

The McDonnell Douglas approach is an “inferential method of proof” whereby

“[d]iscrimination can be shown indirectly,” principally through circumstantial evidence.

Rachid, 376 F.3d at 309 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th

Cir. 1995)). A critical reason for using this method, is that “direct evidence of discrimination is a rarity in employment cases.” Henderson, 2010 Tex. App. LEXIS 8883, at *8. Further, as the Fifth Circuit has explained, the overriding purpose of the McDonnell

Douglas method is “[t]o ease the evidentiary burdens on employment discrimination plaintiffs.” Thornbrough, 760 F.2d at 638 (observing that “[e]mployers are rarely so cooperative as to include a notation in the personnel file, “fired due to age,” or to inform a dismissed employee candidly that he is too old for the job,” citing United States Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711 716 (1983)). Accord Wright v. Southland Corp.,

187 F.3d 1287, 1293 (11th Cir.1999) (“the McDonnell Douglas presumption is . . . an evidence–producing mechanism that can aid the plaintiff in his ultimate task of proving illegal discrimination . . . ‘direct evidence’ is the alternative to using McDonnell Douglas”);

Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979) (McDonnell Douglas “addresses two problems [for plaintiffs] that exist in most employment discrimination cases: (1) direct evidence of discrimination is likely to be unavailable, and (2) the employer has the best access to the reasons that prompted him to fire . . . the complainant”).

Moreover, it is well-established that “[t]he burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253; see Quantum Chem.

Corp., 47 S.W.3d at 577 (quoting Burdine). Thus, “[g]enerally, to establish a prima facie case, a plaintiff need only make a very minimal showing.” Thornbrough, 760 F.2d at 638.

These central features of the McDonnell Douglas prima facie case – wholly ignored by Petitioner – undermine MCISD’s argument that Garcia’s case should be dismissed solely based on her replacement by an older employee. Even more troubling for MCISD’s

17 position is that the minimal showing required by McDonnell Douglas reflects the diverse forms of intentional discrimination and thus varies case-by-case.

In Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978), the Court explained that the

McDonnell Douglas prima facie case formula

was not intended to be an inflexible rule, as . . . ‘[t]he facts necessarily will vary in [employment discrimination] cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.’

438 U.S. at 575-76 (quoting McDonnell Douglas, 411 U.S. at 802 n.13). A generation later, the Supreme Court reaffirmed these principles. See Swierkeiwicz v. Sorema, N.A., 534 U.S.

506, 512 (2002). Accord Quantum Chem. Corp., 47 S.W.3d at 477 (“the precise elements of this showing will vary depending on the allegations”); Waldmiller v. Continental Express,

Inc., 74 S.W.3d 116, 120 (Tex. App. 2002) (stating same in TCHRA age bias case).

The U.S. Supreme Court’s clear message has been that the components of a prima facie case are not fixed, but rather, vary with the circumstances, or alternatively, they must be applied as such. That is,

The central focus of the inquiry in a case of [alleged disparate treatment] is always whether the employer is treating ‘some people less favorably than others because of [a protected characteristic].’

Furnco, 438 U.S. at 577 (quoting Teamsters v. United States, 431 U.S. 324, 335 n.15

(1977)). Also, “[t]he method suggested in McDonnell Douglas for pursuing this inquiry . . . was never intended to be rigid, mechanized or ritualistic.” Aikens, 460 U.S. at 715; see id.

(“Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.”). See City of Austin Police

Dep’t v. Brown, 96 S.W.3d 588, 596 (Tex. App. 2002, rev. dism’d) (citing and paraphrasing this passage from Aikens).

Further, “[b]ecause the precise requirements of a prima facie case can vary depending on the context,” “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case.” Swierkiewicz, 534 U.S. at 512. See Miranda, 133 S.W.3d at 227-28

(reasoning that unless a moving party’s “evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the[ir] plea to the jurisdiction”).

It follows from these authorities that the flexible approach applied by the Court of

Appeals in this case not only was faithful to the Fifth Circuit/Texas formula, but also was essential. It would have been clear error to “mechan[ically]”apply a much narrower version of the age discrimination prima facie case, such as the one MCISD suggests (and some courts have suggested in dicta) must be applied in “replacement cases,” regardless of the facts alleged by Garcia and evidence she might develop supporting her complaint.

This conclusion reflects common sense. First, the core anti-discrimination provisions of the ADEA (“it shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual . . . because of such individual’s age,” 29

U.S.C. § 623(a)(1)) and the TCHRA (“An employer commits an unlawful employment practice if because of . . . age the employer . . . discharges an individual, or discriminate in other manner against an individual”) are extremely broad. Thus, it is proper that the touchstone for proving intentional bias under such statutes, and thus, for establishing a prima facie case, is equally broad: “whether the protected trait (under the ADEA, age)

19 actually motivated the employer’s decision.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 141 (2000).

Second, no rigid standard such as MCISD demands is adequate to “order[] the presentation of proof” in all age discrimination discharge cases consistent with “common experience.” That is, “no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear.” Byrd v.

Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (42 U.S.C. § 1981 case). Thus, precluding Garcia from the chance to prove age bias because her replacement was older, based on a particular version of “the” prima facie case, would be a “Procrustean limitation on the ADEA,” just as it once was to insist that an age bias claimant show replacement by a worker below age 40. McCorstin, 621 F.2d at 753.

The overwhelming majority view is that “the” prima facie case does not exist in any category of employment discrimination cases. And this view derives from the insight that

“[d]iscrimination,” including in the form of age-based discharge, “unfortunately, exists in forms as myriad as the creative perverseness of human beings can provide.” Id. at 753-54.

The Fifth Circuit, no less than others – including in decisions on which MCISD principally relies – has recognized the “fluid” nature of the McDonnell Douglas prima facie case. Williams, 656 F.2d at 128. The Williams Court – contrary to the picture of rigidity painted in MCISD’s brief – fully endorsed the “factual variety of discrimination cases” described in McDonnell Douglas and affirmed “the corresponding need for a flexible view of a prima facie discrimination case.” Id. at 128 (citing same reasoning in Marshall v.

Goodyear Tire & Rubber Co., 554 F.2d 730, 735 (5th Cir. 1977)). Likewise, the Williams

20 court reaffirmed the finding in Marshall that “McDonnell Douglas (did) not establish an immutable definition of a prima facie case.” Id. (quoting 554 F.2d at 735); see

Thornbrough, 760 F.2d at 642 n.10 (same). Further, the Fifth Circuit reiterated in Williams the finding in McCorstin v. United States Steel Corp., that the standard elements identified by the Fifth Circuit for a prima facie case of age discrimination “do not constitute ‘the alpha and the omega of possible tests’ under the ADEA.” Thornbrough, 760 F.2d at 642 (quoting

McCorstin, 621 F.2d at 753). Accord Thornbrough, 760 F.2d at 641 (“The necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather, they vary depending on the facts of a particular case.”); see Amburgey,

936 F.2d at 812 (same).

At least one other federal appeals court has employed the Fifth Circuit’s formula for the ADEA prima facie case. See Dreyer v. Arco Chem. Co., 801 F.2d 651 (3d Cir. 1986), cert. denied, 480 U.S. 906 (1987) (citing Elliot v. Group Med. & Surgical Serv., 714 F.2d

556, 565 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984)). In doing so, the Third Circuit stressed the propriety of its flexible application. Id. at 654 (noting the “nature of plaintiff’s showing depends on [the] circumstances of the case”) (citing Massarsky v. General Motors

Corp., 706 F.2d 111, 118 n.13 (3d Cir.), cert. denied, 464 U.S. 937 (1983)).

Other federal appeals courts have followed a similar path. For instance, the Eighth

Circuit stated in a case not involving job reduction,

Although we have often held that a plaintiff may establish a prima facie case by showing a replacement by a younger person, we have adhered to the rule that the elements of a prima facie case vary with the circumstances of the alleged discrimination.

Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 733 n.2 (8th Cir. 1996) (emphasis added)

(affirming jury verdict for plaintiff on ADEA and other claims and rejecting proposed requirement that plaintiff show defendant “replaced her with a younger employee”).

Still other federal appeals courts have adhered to a flexible case-by-case approach in situations involving allegations of replacement by older employees. For example, the court in Alphin v. Sears, Roebuck & Co., 940 F.2d 1497 (11th Cir. 1991), explained that “[i]n this

Circuit we have “’repeatedly eschew[ed] . . . an overly strict formulation of the elements of a prima facie case, especially in age discrimination cases.’” Id. at 1500 (quoting Carter v.

City of Miami, 870 F.2d 578, 583 (11th Cir. 1989)).7 While the court acknowledged “we have generally required plaintiffs to prove at least that an employer replaced them with a younger employee,” it emphasized that “[a]t this stage, our inquiry is simply whether an ordinary person could reasonably infer discrimination if the facts presented remained unrebutted.” 940 F.2d at 1501 (quoting Carter, 870 F.2d at 583).

Alphin’s evidence showed he was replaced but left unclear by whom. Sears first sent

Brigante, an older co-worker, to fill Alphin’s former position; however, Brigante soon resigned, and a 24-year-old trainee succeeded Brigante. Alphin alleged that the facts of

Brigante’s resignation showed “a strategy to eliminate two employees from the protected group.” The court concluded this evidence of tactical grounds for an older replacement established Alphin’s prima facie case, though it left the replacement issue in dispute. Id. at

1501-02 (a). The Eleventh Circuit reversed a summary judgment for Sears. Id. at 1502.

7 The Carter court said that routinely applying Title VII prima facie case elements to ADEA cases “fail[ed] to take the reality of the working place into account.” 870 F.2d at 583. 22

Another Circuit, the First, likewise embraced a flexible approach to the ADEA prima facie case, and concluded as a result that “[r]eplacement by someone older would suggest no age discrimination but would not disprove it conclusively.” Loeb v. Textron, Inc., 600 F.2d

1003, 1013 n.9 (1st Cir. 1979). The Loeb court declared that the McDonnell Douglas proof method “should not be used inflexibly as a vehicle for organizing evidence or presenting a case to a jury” (emphasis supplied). Id. at 1016-17. Loeb rejected as inconsistent with

McDonnell Douglas a requirement that age bias claimants actually replaced always must show they were “replaced by a younger person or person outside the protected age group.”

Instead, it stated, “evidence of the . . . age of complainant’s replacement may . . . sometimes be probative of discrimination” (emphasis supplied)). 600 F.2d at 1013 n.9. The Loeb court, like the Alphin court, also articulated a plausible scenario in which an employer might hire an older replacement after discharging the plaintiff because of age: “The older replacement could have been hired, for example, to ward off a threatened discrimination suit.” 600 F.2d at 1013 n.9.

Numerous courts have cited Loeb for the proposition – highly relevant to this case – that circumstances exist in which age bias and an older replacement might coincide. See, e.g., Greene v. Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996) (discussing and citing with approval Loeb and Alphin); McCarthy v. N.Y.C. Technical Coll., 202 F.3d 161,

165 (2d Cir. 2000) (“Replacement by an older person may not necessarily be fatal to an age discrimination claim if, for example, a plaintiff can show that his age was the true motivation and the older replacement was hired temporarily as a means of insulating defendant from ADEA liability.”) (discussing and citing with approval Greene); Dowd v.

Northrup Corp., No. 90-1990, 1991 U.S. App. LEXIS 15038, *13 n.8 (1st Cir. June 17,

1991) (citing Loeb). See Wright v. Southland Corp., 187 F.3d 1287, 1305 n.23 (11th Cir.

1999) (discussing “numerous reasons why replacement of Wright by an older person” did not “rule out the possibility that Southland fired Wright because of his age,” including that

“the replacement may simply have been an ex post attempt to avoid liability for age discrimination”). See also Morgan v. A.G. Edwards & Son, Inc., 486 F.3d 1034, 1044-45

(8th Cir. 2007) (approving Greene and Alphin rationale for viewing older replacement worker as consistent with age discrimination claim).

B. O’Connor v. Consolidated Coin Caterers Corp.

The unanimous ruling in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S.

308 (1996), demonstrated the Supreme Court’s continuing commitment to flexible administration of proof requirements in age discrimination cases. Thus, there is no merit to

MCISD’s contention that affirming the Thirteenth Court of Appeals’ decision consistent with such an approach would take this Court “in a direction completely opposite to” that of the Court in O’Connor. See Pet’r’s Br. 13-14.

O’Connor ruled that an ADEA claim based on evidence of a plaintiff’s replacement by a younger worker need not be premised on replacement by a worker “outside the protected class”– i.e., younger than age 40, but only by a worker “substantially younger.”

517 U.S. at 312-13. For purposes of this case, the most important aspect of O’Connor is not its holding, as MCISD suggests, but rather the Court’s method of analysis. The Court did not engage in precise line-drawing, or an effort to strictly define categories of ADEA cases ruled-in and ruled-out. Indeed, the Court said nothing about the specific situation

24 presented here – an older replacement worker. Instead, O’Connor reaffirmed broad principles underlying the ADEA prima facie case.

The O’Connor court stressed that proof of a prima facie case requires “a logical connection between each element . . . and the illegal discrimination for which it establishes a

‘legally mandatory, rebuttable presumption.’” Id. at 1311-312 (quoting Burdine, 450 U.S. at

254 n.7). It also emphasized “that the prima facie case requires evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion. Id. at 312 (quoting Teamsters v. U.S., 431 U.S. at 358).

Shortly after O’Connor came down, the Eighth Circuit declared in Parrish v.

Immanuel Medical Center, 92 F.3d 727 (8th Cir. 1996), that O’Connor had “recently reaffirmed th[e] principle” that “the elements of a prima facie case vary with the circumstances of the alleged discrimination.” Id. at 733 n.2. On that basis the Court of

Appeals affirmed a jury verdict for Mary Ruth Parrish and rejected the defendant- employer’s assertion that the award should be overturned on grounds that plaintiff’s “prima facie case was deficient” in that she failed to show her employer “replaced her with a younger employee.” Id. The record on “replacement” was muddled by the fact that

Immanuel distributed Parrish’s duties to other “registrars” but never filled her position following her discharge. Id. at 731. Noting that it had “often held that a plaintiff may establish a prima facie case by showing replacement by a younger person” (emphasis supplied), the court nonetheless went on to look at Parrish’s evidence of age bias, focusing on other issues (i.e., Immanuel’s criticism of her computer skills, pressure on other older workers to retire, and its mandatory retirement policy). Id. at 733 n.2. The Eighth Circuit

25 judged this evidence “more than sufficient to raise such an inference.” Id. In short, based on O’Connor, the Parrish court looked beyond the literal terms of the prima facie case elements, a focus it suggested would have been “to deviate” from its task to assess the overall weight of evidence of age discrimination. Id. Such a constrained analysis in this case also would violate settled legal standards.

The Third Circuit articulated a similar view of O’Connor in Pivirotto v. Innovative

Systems, Inc., 191 F.3d 344 (3d Cir. 1999), in which the court rejected a per se requirement in Title VII cases that a woman must show that she was replaced by a man in order to establish a prima facie case of sex discrimination. The Court of Appeals identified the crux of O’Connor to be its insistence that the prima facie case must turn on “evidence adequate to create an inference” that the plaintiff was fired because she possessed the protected characteristic at issue. Id. at 355 (citing O’Connor, 517 U.S. at 312, citing Teamsters, 431

U.S. at 358). In such circumstances, the Third Circuit recognized, O’Connor teaches that a fact that often may be relevant to a prima facie case – i.e., that a replacement employee was outside the protected class – may be “irrelevant [to the prima facie case], so long as she has lost out because of the protected characteristic.” Id. (citing O’Connor, 517 U.S. at 312).

Rather than eroding the Supreme Court’s commitment to flexible definition and administration of the ADEA prima facie case, O’Connor considerably fortified that commitment, by elaborating the legal justification for it.

III. Ample Precedent Permits a Protected-Age Worker Replaced by a Still Older Employee to Establish a Prima Facie Case of Age Discrimination.

A. Federal Courts of Appeals Have Approved Claims Like Garcia’s.

Given the procedural posture of this case, in which the Petitioner only has 26 challenged the prima facie case elements involving replacement by a younger employee, the foregoing analysis – demonstrating that Respondent also may establish her prima facie case by showing she was “otherwise discharged because of her age” – should be sufficient to affirm the Thirteenth Court of Appeals. But if this Court requires further reason to conclude that an older replacement employee does not alone conclusively preclude a viable case of age bias, numerous other federal decisions are available to oblige.

Two circuit courts have approved age discrimination claims in cases such as this, involving alleged patterns of employer age bias and a plaintiff replaced by a still older employee. In both Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996), and Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999), courts refused to hold a plaintiff to the strict terms of a standard ADEA prima facie case – that is, to require proof of replacement by a younger employee – and refused to short-circuit an age claim because the plaintiff was replaced by someone older. See Greene, 98 F.3d at 559; Wright, 187 F.3d at 1303-04. In light of powerful proof of age bias in each case, the court vacated a summary ruling for the employer (a directed verdict after plaintiff’s case for Safeway, and summary judgment for

Southland) and remanded each case for trial.8

In Greene, the Tenth Circuit stated that an ADEA plaintiff “must ordinarily prove” that a younger person replaced them. 98 F.3d at 559. But the court also said that the plaintiff’s robust proof, including “a pattern of removals [and new hires of managers] based

8 By contrast, the only federal circuit court to suggest the approach favored by MCISD should apply, did so in dicta that ignores precedent requiring a prima facie case that varies with the facts. Cf. Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 n.1 (7th Cir. 2005) (older replacement precludes establishing prima facie case of on-the-job age-based harassment, even though “Racicot does not appear to claim that she was actually terminated because of her age.”). 27 on age,” combined with statements of senior personnel indicating a reference for younger executives, supported “an inference of age motivation in these management replacements.”

Id. at 562. As a result, the Court of Appeals concluded, “when considered favorably to

Greene, as they must be, these evidentiary showings altogether raised a fact question for the jury which could justify the trier of fact in disregarding [Greene’s] older replacement and in nevertheless finding age discrimination.” Id.

In comparable fashion, the First Circuit declared the fact that “Wright was replaced by an individual six months older . . . tends to prove that Wright was not fired due to his age,” but was “not conclusive.” Wright, 187 F.3d at 1304-05. The Court of Appeals recounted Wright’s proof of age bias, including statements by both decisionmakers in his case, a few months before his discharge, that he was “too old,” as well as evidence that his firing “could have been part of a systematic attempt by Southland to reduce its number of older store managers.” Id. at 1303-05. On this basis, the court declined to link Wright’s

“replace[ment] by an older individual” and the “conclusion that [he] was not a victim of age discrimination.” Id. at 1305 n.23.

At least two federal district courts other than the Northern District of Texas, see

Jackson v. GTE Directories Serv. Corp., 734 F. Supp. 258 (N.D. Tex. 1990), have upheld

ADEA claims by plaintiffs replaced by still older workers. The first of these, as here, and like Greene and Wright, involved allegations of a pattern of age-based terminations. See

Mercado v. White, No. 03-451, 2004 U.S. Dist. LEXIS 30613 (M.D. Pa. Sept. 27, 2004).

Charles Mercado, a sheet metal worker in his mid-40s working for the U.S. Army, sued the government under the ADEA when he was denied a series of positions during a

28 period in which he heard numerous supervisors complain, inter alia, about their “aging workforce,” their concern about large-scale retirements, the low quality of older workers, and the need ‘to pump young blood into the depot.” Mercado, 2004 U.S. Dist. LEXIS

30613. *5-6, 19. Mercado reported numerous individuals over 50 (as well as many younger than him) being hired for and promoted to the jobs he sought. Still, he persuaded the court that his evidence of an age-based “corporate culture” (including younger workers being hired for temporary positions with the intent of converting them to permanent hires) justified finding he had satisfied the fourth element of the ADEA prima facie case, defined by the court as “adverse action occur[ing] under circumstances giving rise to an inference of discrimination.” Id. at *20-22; 23-24 (citing Loeb, 600 F.2d at 1013 n.9, and Jackson, 734

F. Supp. at 268).

Finally, Obitko v. Ohio Barge Line, Inc., 628 F. Supp. 62 (W.D. Pa. 1986), involved an age-biased discharge claim by a 57-year-old watchman replaced by a 58-year-old. The trial court denied the employer’s motion for summary judgment, based on the fact of an older replacement, refusing to adopt a “per se rule[] that all plaintiffs must meet.” Id. at 65.

The court said plaintiff could show “by any other proof that the discharge was because of age.” Id. It ruled Obitko established a prima facie case of age discrimination based on deposition testimony to ageist comments made to him by the defendant. Id. at 65-66.

B. The “Direct Evidence” Option.

A suggested above, regardless how a court applies the McDonnell Douglas method, age discrimination plaintiffs are entitled to oppose dismissal and/or summary judgment, and indeed, to try their case, based on “direct evidence” of disparate treatment. See

Swierkiewicz, 535 U.S. at 511 (explaining, in upholding an ADEA claim challenged by a motion to dismiss, that “if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case.”).

Texas courts recognize that the McDonnell Douglas proof method is proper “where there is only circumstantial evidence of discrimination.” El Paso Cmty. Coll. Dist. v. Chase,

No. 0809-00100-CV, 2011 Tex. App. LEXIS 3349, *7 (Tex. App. May 4, 2011) (citing

Reeves, McDonnell Douglas and Quantum Chem. Corp., in dismissing jurisdictional plea in

TCHRA race and national origin case). See esp. Quantum Chem. Corp., 47 S.W.3d at 477

(“If the plaintiff has only circumstantial evidence of discrimination, it will be classified as a

[McDonnell Douglas/Burdine] pretext case . . .”). MCISD’s plea simply assumes Garcia has only circumstantial proof of age bias, and that a McDonnell Douglas prima facie case is

“the only way” she can establish jurisdiction to proceed. This is incorrect.

The “alternative methodolog[y],” variously known as the “Price Waterhouse v.

Hopkins, 490 U.S. 229 (1989)] approach, or the “‘mixed-motives theory,’” once fully applied to ADEA cases. Rachid, 376 F.3d at 309. In Gross v. FBL Financial Services, Inc.,

129 S. Ct. 2343 (2009), the Supreme Court disavowed ADEA “mixed-motives claims; still, it reaffirmed that relying on “direct evidence” remains an option for ADEA plaintiffs:

. . . the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate- treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision.

Id. at 2351 (citing Reeves, 530 U.S. at 141-43); see Gross, 129 S. Ct. at 2349, 2351 & n.4

(holding that under the ADEA, burden-shifting and “motivating factor” components of the

“mixed-motives” method of proving disparate treatment no longer are available).9 Yet this is not an option that MCISD acknowledges is open to older workers challenging a plea to the jurisdiction of an age bias claim in Texas courts. Such a position is unsustainable.

Other than identifying Garcia’s older replacement, the District has done nothing to contest or discover the basis for Garcia’s allegations of age discrimination. Yet Garcia’s proof may contain myriad “direct evidence.” This might include ageist comments to Garcia by District personnel responsible for her discharge, or other age-based statements supporting the contention that “her termination was part of a larger unwritten plan or scheme of the Defendant School District to discriminate against older . . . employees who were politically associated with persons adverse to the Administration” (emphasis supplied).

Nevertheless, MCISD argues that Garcia’s replacement by an older protected-age worker

“necessarily” defeats her TCHRA claim because it “forecloses the possibility that [she] can establish a TCHRA prima facie [case] element.” Pet’r’s Br. 13.

This position directly contradicts the holding in Greene v. Safeway Stores, Inc., where the court rejected a prayer to dismiss plaintiff’s case because he was replaced by an older person and thus could not prove a prima facie case of age discrimination. Given the plaintiff’s strong “direct evidence” of age bias, the court rebuffed Safeway’s argument that a circumstantial evidence method of proof “[w]as ‘the only way” Greene could proceed.” 94

F.3d at 559. MCISD’s stance also defies the result in Wright v. Southland Corp. There the

9 Gross also noted that “the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas . . . utilized in Title VII cases is appropriate in the ADEA context.” 129 S. Ct. at 2349 n.2. Since then, however, federal appeals courts consistently have reaffirmed their intention to apply McDonnell Douglas. See, e.g., Jackson v. Cal-West Packaging Corp., 602 F.3d 3764, 378 & n.4 (5th Cir. 2010); Jones v. Okla. City Publ. Sch., 617 F.3d 1273, 1278-79 (10th Cir. 2010) (collecting cases). 31 court relied on plaintiff’s “direct evidence” of age discrimination to overturn a summary judgment for the employer that was premised solely on the trial court’s refusal to permit plaintiff to make his case with circumstantial evidence – i.e., to “make use of the McDonnell

Douglas presumption” – because of “unrebutted evidence that Wright was replaced by someone six months older.” 187 F.3d at 1303. Indeed, direct evidence not only is described as another way to prove discrimination but also as an alternative method “to establish a prima facie case of discrimination.” Carter, 870 F.2d at 581. See Loeb, 600

F.2d at 1017 (declaring, in discussion of direct evidence of bias, that “McDonnell Douglas points to one, but surely not the only way of establishing a legally sufficient prima facie case” of discrimination).

MCISD’s position on Garcia’s age claim conflicts with a plaintiff’s right to prove her case by direct evidence, regardless of her ability to prove all elements of her prima facie case. By contrast, Garcia’s approach to defining her prima facie case is readily reconciled with a plaintiff’s option to pursue a “direct evidence” method of proof. Garcia would permit

MCISD to secure a jurisdictional dismissal if and only the District can foreclose proof that she was “otherwise discharged because of [her] age.” A stricter test would fail to uphold the

Supreme Court’s insistence on the right to prove age discrimination by direct evidence.

C. Discharged Employees Replaced by a Person of the Same Sex or Race May Establish a Prima Facie Violation of Title VII.

In the analogous fields of employment discrimination on grounds of sex and race, the weight of authority in the Fifth Circuit and beyond holds that an employer’s replacement of

32 a discharged employee with another employee in the same protected class as the plaintiff does not preclude plaintiff from establishing a prima facie violation of Title VII.10

Thus, in Browning v. Southwest Research Institute, 288 Fed. Appx. 170 (5th Cir.

2008), cert. denied, 555 U.S. 1170 (2009), the Court of Appeals held that the replacement of a female plaintiff by another female worker was insufficient to defeat the plaintiff’s prima facie case. Id. at 176. And in Nieto v. L&H Packing Co., 108 F.3d 621 (5th Cir. 1997), the

Fifth Circuit, in a Title VII national origin case, reaffirmed circuit precedent explicitly recognizing “that the single fact that a plaintiff is replaced by someone within the protected class does not negate the possibility that the discharge was motivated [by] discriminatory reasons.” Id. at 624 n.7 (collecting cases). Accord, e.g., Cumpiano v. Banco Santander

Puerto Rico, 902 F.2d 148, 155 (1st Cir. 1990) (sex bias case); Leibowitz v. Cornell Univ.,

584 F.3d487, 502 n.5 (2d Cir. 2009) (same); Jackson v. Richards Med. Co., 961 F.2d 575,

587 n.12 (6th Cir. 1992) (race bias case); McGinnis v. Union Pac. R.R. Co., 496 F.3d 868,

874 n.2 (8th Cir. 2007) (sex bias); Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1229

(10th Cir. 2000) (race bias); Stella v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002) (sex bias);

10 The Court of Appeals’ decision is consistent with this authority. To be sure, it rejected Garcia’s sex and national origin claims because “she was required to show [and failed to show] that her employer filled her position with a person outside her protected class.” MCISD v. Garcia, 314 S.W.3d at 557 n.4. But the court said this only because Garcia could have shown – but failed to “specifically assert,” much less prove – sex or national origin bias in some other form: i.e., by showing “that persons outside of her protected class were treated more favorably.” Id. See id. (citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (permitting discharged Title VII plaintiff with same- race replacement to establish prima facie case of racial bias based on a showing “that others similarly situated were treated more favorably”), and Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App. 2000) (approving prima facie case of racial bias by discharged TCHRA plaintiff without focusing on his other-race replacement, but rather, based on his showing that he “was treated differently than [other-race] employees”)). 33 see Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (race bias)

(replacement by someone outside plaintiff’s protected class is neither a necessary nor a sufficient condition for establishing a prima facie violation of Title VII).

In Pivirotto v. Innovative Systems, Inc., the Third Circuit identified various plausible employer motivations for selecting a same-gender replacement worker that would not preclude establishing a prima facie case of employment discrimination. 191 F.3d at 354-55.

These included various rationales which might arise in an age bias case: to avoid litigation; to prevent discharged protected-class workers qualifying for retirement or promotion; holding protected-class workers to higher performance standards than similarly situated workers outside the class; and stereotypes, such as terminating an assertive (“feminist”) class member and replacing her with another who was more docile.11 Accord Perry v.

Woodward, 199 F.3d 1126, 1137-38 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000)

(discussing similar examples, including terminating an African-American employee who

“know[s] his place” and replacing him with one who does). See id. at 1137 (“imposition of the inflexible rule advocated by Defendants is untenable because it could result in the dismissal of meritorious claims”). Older workers alleging age bias deserve flexible

11 Pivirotto also rejected a jury charge like MCISD’s claim here. ISI asserted that Pivirotto had to show replacement by a man because “the only exception to the requirement that the plaintiff prove she was replaced by someone outside her class is in a reduction-in-force case, in which no one (of the same or another class) replaces the plaintiff.” The appeals court disagreed, citing McDonnell Douglas’ holding that “the prima facie proof required” “necessarily will vary in . . . differing factual situations.” It reasoned that if ISI were correct, “in McDonnell Douglas itself, the fourth element would have been that the defendant hired a white person for the position, not that it continued to seek applicants for the applied-for position.” 191 F.3d at 351-52, 356. 34 application of the McDonnell Douglas prima facie case no less than do claimants asserting sex or race bias in the workplace.

PRAYER

For the reasons set forth above, the denial of MCISD’s plea to the jurisdiction regarding Gloria Garcia’s TCHRA age discrimination claim should be affirmed.

Respectfully submitted,

/s/ Daniel B. Kohrman

DANIEL B. KOHRMAN AARP Foundation Litigation 601 E Street, NW Washington, DC 20049 Telephone (202) 434-2064 Facsimile (202) 434-6424 [email protected]

Counsel for Amicus Curiae AARP

CERTIFICATE OF SERVICE

I hereby certify that a true, complete and correct copy of the foregoing Brief of

Amicus Curiae AARP In Support of Respondent was electronically filed and served on the following counsel pursuant to the Texas Rules of Civil Procedure on this 4th day of January

2012:

David P. Hansen Savannah Robinson Eric E. Munoz LAW OFFICE OF SCHWARTZ & EICHELBAUM, P.C. S. ROBINSON WARDELL MEHL AND HANSEN, P.C. 1822 Main Street 4201 W. Parmer Lane, Suite A100 Danbury, TX 77534 Austin, TX 78727 Telephone (979) 922-8825 Telephone (512) 476-9944

Counsel for Petitioner MCISD Counsel for Respondent Gloria Garcia, deceased

/s/ Daniel B. Kohrman Daniel B. Kohrman, Esq.

Counsel for Amicus Curiae AARP