COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00363-CV
RUBY LUCILLE HALL APPELLANT
V.
RDSL ENTERPRISES LLC D/B/A APPELLEE
JACK IN THE BOX
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellant Ruby Lucille Hall presents a sole issue on appeal, contending
that the trial court erred by granting summary judgment in favor of Appellee
RDSL Enterprises LLC d/b/a Jack in the Box in her suit alleging a violation of
section 21.051 of the Texas Labor Code. Specifically, Hall contends that she
established a prima facie case of age discrimination and therefore summary
judgment was improper in this case. We will reverse and remand.
II. BACKGROUND
According to Hall’s original petition—the live petition at the time the trial
court granted summary judgment—Hall began working for Jack in the Box in
1990. In 2008, RDSL took over management of the restaurant where Hall
worked as a “food prep” specialist. By Hall’s account, RDSL began to cut her
hours, which “were assumed by younger employees.” Hall alleged that
“eventually in November of 2010, she was simply terminated from her
employment and replaced by a much younger employee.” At that time, Hall was
eighty-one years old. Hall pleaded that RDSL was “liable under §21.051 [of the]
Texas Labor Code for discrimination on the basis of age.”
Seven months after Hall filed suit and after both parties conducted
discovery, RDSL filed a combination traditional and no-evidence motion for
summary judgment. Under both summary judgment standards, RDSL argued
that Hall failed to establish the fourth element of her prima facie age-
discrimination claim under the McDonnell Douglas burden-shifting paradigm.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792–93, 93 S. Ct. 1817, 1819–
20 (1973). In its traditional motion for summary judgment, RDSL argued that the
evidence conclusively established that Hall was neither replaced by someone
younger nor was she otherwise discharged because of her age. In its no-
evidence motion for summary judgment, RDSL argued that Hall had failed to
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produce any evidence that she was replaced by someone outside of her age-
related, protected class and that she had failed to provide any evidence that age
was a motivating factor in the reduction of her hours or her “alleged termination.”
RDSL later filed a supplemental no-evidence motion for summary
judgment in which it added the argument that in a “non-replacement,” age-
discrimination case, the plaintiff is required to present evidence that she had
been “treated less favorably than similarly situated members outside the
protected class.” Accordingly, RDSL argued that Hall presented no evidence that
“age was a motivating factor in the reduction [of Hall’s] hours or her alleged
termination”; that she presented no evidence of age-related comments by an
individual who had the authority to reduce Hall’s hours or terminate her
employment; and that Hall presented no evidence that she “was treated less
favorably than similarly situated members outside of [Hall’s] protected class or
that [RDSL] filled [Hall’s] position with a person who was not a member of the
protected class.”
In her response to RDSL’s motion, Hall argued that she was relying solely
“upon circumstantial evidence” to support her age-discrimination claim and that
under the McDonnell Douglas burden-shifting rubric, she had presented evidence
that created, at a minimum, genuine issues of material fact as to each of the
elements of her prima facie age-discrimination claim. Specifically as to the fourth
element, and even though Hall acknowledged that there was no evidence that
RDSL had replaced her after her alleged termination, Hall argued that she had
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presented sufficient evidence to withstand summary judgment. Citing Russo v.
Smith International, Inc. for the proposition that when a terminated employee is
not replaced, she is only required to produce evidence that younger employees
in a similar position were retained, Hall argued that she had presented evidence
that “she was replaced by employees far younger than her.” 93 S.W.3d 428,
435–36 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
As evidence of this theory of age-discrimination, Hall argued that a
spreadsheet produced by RDSL during discovery, in which it listed all employees
and their respective ages, demonstrated that after RDSL allegedly fired her, all
employees remaining were substantially younger than her. Hall also argued that
the evidence demonstrated that since RDSL took over managing the Jack in the
Box where she worked, RDSL had established a record of “separat[ing]” older
employees from employment while maintaining a younger employment roster.
Hall also argued that since RDSL’s arrival, the three oldest employees (including
herself) had been “separated from RDSL.” Furthermore, Hall attached to her
response the deposition testimony by RDSL’s area manager in which he
described a corporate-wide, cost-motivated plan to eliminate the “food prep”
position from all Jack in the Box locations and he stated that the duties
performed by the food prep position were to be distributed to other positions.
Hall also attached evidence to her response that while younger employees were
trained for these positions, she was not.
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Hall also argued that even if a Russo-type analysis did not apply to her
case, she had presented competent summary judgment evidence of the fourth
element of her prima facie case that established she was “otherwise discharged
because of her age.” Hall pointed to evidence in the record that an alleged
manager had referred to her as “Grandma”; that her hours were repeatedly cut
by a different manager while her coworkers’ hours were not; that her coworkers
played loud music while she worked; that she had been called a “racist” by an
assistant manager named “Maria”; that her coworkers would not talk to her, or
when they did, they would say things like “get out of the way”; that her coworkers
spoke Spanish only, thus “excluding her from communications at work”; that her
area manager was “not friendly to her, but was friendly to other employees”; and
that RDSL had failed to train her to multi-task while training her “younger,
Hispanic [coworkers]” to do so, thus providing RDSL with a reason to terminate
her employment—that she did not multitask and could not perform non-food prep
tasks.
Without specifying the basis for its ruling, the trial court granted RDSL’s
“Motion for Summary Judgment and Supplemental Motion for Summary
Judgment” on August 16, 2012. This appeal followed.
III. DISCUSSION
In her sole issue, Hall argues that the trial court erred by granting summary
judgment because, according to Hall, she presented circumstantial evidence
establishing a prima facie case of age discrimination. Specifically, Hall argues
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that she presented evidence that RDSL retained “younger employees in similar
positions” to her while terminating her employment; thus, she is entitled to the
modified “reduction in force” standard for establishing her prima facie case. See
Russo, 93 S.W.3d at 435–36 (applying modified prima facie standard to age-
discrimination claim where plaintiff had not been replaced by another employee
due to company’s reduction-in-force efforts). Alternatively, Hall argues that even
if this is not a reduction-in-force case, she established that she was “otherwise
discharged because of her age.”
RDSL counters that there is no evidence that Hall was replaced.
Furthermore, RDSL argues that the reduction-in-force standard does not apply to
this case, that Hall did not plead that this was a reduction-in-force case, and that
Hall did not establish that she was otherwise discharged because of her age.
We agree with Hall that she established her prima facie case for age
discrimination.
A. Summary Judgment Standards
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
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Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We must consider whether
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566,
568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
In a traditional summary judgment case, the issue on appeal is whether the
movant met the summary judgment burden by establishing that no genuine issue
of material fact exists and that the movant is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848. If
uncontroverted evidence is from an interested witness, it does nothing more than
raise a fact issue unless it is clear, positive and direct, otherwise credible and
free from contradictions and inconsistencies, and could have been readily
controverted. Tex. R. Civ. P. 166a(c); Morrison v. Christie, 266 S.W.3d 89, 92
(Tex. App.—Fort Worth 2008, no pet.).
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008). If the nonmovant brings forward more than a scintilla of
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probative evidence that raises a genuine issue of material fact, then a no-
evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417,
424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003), cert. denied, 541 U.S. 1030 (2004).
When a party moves for both a traditional and a no-evidence summary
judgment, we generally first review the trial court’s summary judgment under no-
evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 526 (Tex.
App.—Fort Worth 2009, pet. denied).
B. Texas Law and the McDonnell Douglas Minuet
An employer is prohibited from discharging or in any other way
discriminating against an employee because of the employee’s age. See Tex.
Lab. Code Ann. § 21.051 (West 2006). One of the purposes of the Texas
Commission on Human Rights Act (TCHRA) is to “provide for the execution of
the policies of Title VII of the Civil Rights Act of 1964.” Tex. Lab. Code Ann.
§ 21.001(1) (West 2006). In interpreting the TCHRA, the Texas Supreme Court
has consistently looked to analogous federal statutes and the cases interpreting
them for guidance. See Mission Consol. Indep. School Dist. v. Garcia, 372
S.W.3d 629, 633–34 (Tex. 2012) (citing Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 476 (Tex. 2001)); see also NME Hosps., Inc. v. Rennels, 994
S.W.2d 142, 144 (Tex. 1999).
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Texas courts follow the approach set forth by the United States Supreme
Court and recognize two alternative methods of proof in discriminatory treatment
cases. Mission Consol., 372 S.W.3d at 634. Under the first method, a plaintiff
proves discriminatory intent via direct evidence. Id. “Direct evidence is evidence
that, if believed, proves the fact of discriminatory animus without inference or
presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.
2002), cert. denied, 539 U.S. 926 (2003). But it is often difficult to prove
“forbidden animus” through direct evidence. See Mission Consol., 372 S.W.3d at
634 (recognizing that “motives are often more covert than overt, making direct
evidence of forbidden animus hard to come by”); see also U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 716–17, 103 S. Ct. 1478, 1482 (1983)
(noting that there will seldom be an eyewitness who can testify as to the
employer’s mental processes and therefore recognizing the difficultly in using
direct evidence to prove the “state of a man’s mind at a particular time”). Thus, in
order to ease the burden on discrimination plaintiffs, the court created a second
method of proof. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at
1824; Mission Consol., 372 S.W.3d at 634. Accordingly, when there is no direct
evidence of discriminatory intent, discrimination can be shown indirectly through
a burden-shifting method of proof. See McDonnell Douglas Corp., 411 U.S. at
801–03, 93 S. Ct. at 1824; Mission Consol., 372 S.W.3d at 634.
Hall admittedly provided only circumstantial evidence in support of her
age-discrimination claim. Thus, her case falls under the second method of
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proving discriminatory treatment. Under this second method, as a general rule,
the plaintiff must first make a prima facie case showing that the plaintiff: (1) was
discharged; (2) was qualified for the position from which she was discharged;
(3) is a member of a protected class; and (4) was either replaced by someone
outside the protected class, replaced by someone younger, or was otherwise
discharged because of her age. Mission Consol., 372 S.W.3d at 632. So long
as a plaintiff meets the “minimal” initial burden of establishing a prima facie case
of discrimination, she is entitled to a presumption of discrimination. Id. at 634
(citing Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct.
1089, 1094 (1981)). “Although the precise elements of this showing will vary
depending on the circumstances, the plaintiff’s burden at this stage of the case is
not onerous.” Mission Consol., 372 S.W.3d at 634 (quoting Burdine, 450 U.S. at
253, 101 S. Ct. at 1094) (internal quotations omitted). Once the plaintiff makes a
prima facie showing, the burden then shifts to the defendant to demonstrate a
legitimate nondiscriminatory purpose for the employment action. McDonnell
Douglas Corp., 411 U.S. at 802–03, 93 S. Ct. at 1824. If the defendant meets
this burden, then the plaintiff must prove that the employer’s stated reason for the
adverse action was merely pretext for the real, discriminatory purpose. Id.
Summary judgment is usually considered an inappropriate tool for
resolving employment discrimination cases because the claims involve “nebulous
questions of motivation and intent.” Thornbrough v. Columbus & Greenville R.R.
Co., 760 F.2d 633, 640 (5th Cir. 1985); see also Clemons v. Tex. Concrete
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Materials, Ltd., 07-09-00034-CV, 2010 WL 4105662, at *4 (Tex. App.—Amarillo
Oct. 19, 2010, no pet.) (mem. op.).
C. Hall’s Prima Facie Case
As discussed above, precise requirements to establish a prima facie case
under the McDonnell Douglas minuet vary depending on the allegations in each
particular case. Acosta v. Gov’t Empls. Credit Union, 351 S.W.3d 637, 641 (Tex.
App.—El Paso 2011, no pet.). And it is often the fourth prong of the minuet that
receives the most variation and attention. Mission Consol., 372 S.W.3d at 634.
As the Supreme Court of Texas recently stated about applying the McDonnell
Douglas prima facie standard, “harmony turns to discord when we approach the
fourth and final element.” Id. Indeed, in this case the issue of what type of fourth
factor analysis applies is a primary focus of both parties.
Hall argues that she is entitled to the “altered” analysis found in reduction-
in-force cases. See Williams v. Gen. Motors Corp., 656 F.2d 120, 127–28 (5th
Cir. 1981) (establishing modified prima facie standard in reduction-in-force
cases); Russo, 93 S.W.3d at 435–36 (discussing the Fifth Circuits’ modified
prima facie standard in cases involving a general reduction in the employer’s
workforce); see also Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805,
812–13 (5th Cir. 1991) (elaborating upon the special Williams prima facie case
standard in reduction-in-force cases). RDSL argues that a reduction-in-force
standard does not apply to this case because Hall specifically pleaded a “true
replacement” case. See Mission Consol., 372 S.W.3d at 642 (holding that in a
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“true replacement” case, the fourth prong of the McDonnell Douglas minuet is
satisfied only by evidence that plaintiff was replaced by someone younger).
Even though portions of Hall’s pleadings state that she was replaced by
“much younger” employees, Hall also initially pleaded that “new management
began to cut her hours [and her] hours were assumed by younger employees.” A
reduction in hours is an adverse employment action under the TCHRA because it
“constitutes a significant change in employment status.” Burlington Indus. v.
Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 2268 (1998). Given that Hall, in
addition to pleading that she was replaced by a younger employee, also pleaded
that her hours were reduced and that those hours were assumed by younger
employees, Hall did not limit her initial pleading to a “true replacement” case only.
Furthermore, in her response to RDSL’s summary judgment motion, Hall argued
that her case was “akin” to cases like Russo, where courts have altered the
fourth prong of the McDonnell Douglas prima facie case to accommodate
scenarios when age discrimination might have occurred but when a true
replacement has not been hired by the employer because the employer was
reducing its workforce for economic reasons. See All Metals Fabricating, Inc. v.
Ramer Concrete, Inc., 338 S.W.3d 557, 560 (Tex. App.—El Paso 2009, no pet.)
(“However, despite not having alleged a cause of action, Appellant is not barred
from raising the issue for the first time in their summary judgment response.”);
see also Russo, 93 S.W.3d at 436 (“[T]he Fifth Circuit has modified the test in
cases involving a general reduction in the employer's workforce.”).
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It should also be noted that even before Hall filed her response to RDSL’s
summary judgment motion, RDSL filed a supplemental motion specifically
attacking the fourth prong of a prima facie, “non-replacement,” age-discrimination
case. Furthermore, in its briefing, RDSL spends the lion’s share of its “Statement
of Facts” explaining that RDSL reduced its “employees’ hours throughout its
restaurants in order to manage labor costs in light of declining sales.” We
conclude that Hall’s pleadings are not so deficient as to foreclose her from
arguing a theory of age-discrimination other than a “true replacement, age-
discrimination” case. See Mission Consol., 372 S.W.3d at 642 (“[O]ur holding
today is simply that a plaintiff who is replaced by an older worker does not
receive the inference of discrimination that the prima facie case affords.”).
RDSL also argues that this case is simply not a reduction-in-force case
and thus Hall cannot rely on an altered prima facie standard for her age-
discrimination claim. Citing to numerous cases where a reduction in force
occurred on a much larger scale than the evidence reveals in this case, RDSL
contends that reduction-in-force cases inherently require more than evidence of
the termination of one employee. See Ptomey v. Tex. Tech Univ., 277 S.W.3d
487, 491 n.3 (Tex. App.—Amarillo 2009, pet. denied) (“The reduction of sixty-six
[full-time employees] was accomplished by the elimination of a combination of
full-time, part-time, and student positions.”). We find no cases suggesting that
the reduction-in-force prima facie standard cannot apply when the evidence
demonstrates that the reduction in force was the reduction in force by one
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employee. Moreover, Hall presented evidence in her response to RDSL’s
summary judgment motion that there was a corporate-wide, cost-motivated plan
to eliminate Hall’s food prep position from all Jack in the Box locations, and that
the duties performed by the food prep position were to be distributed to other
positions, positions that Hall presented evidence were held by employees much
younger than herself. So this case is not as simple as the discharge of one
employee.
We conclude that a modified prima facie standard applies to the facts as
they are alleged in this case. See Russo, 93 S.W.3d at 436. In such cases, the
fourth prong of the prima facie case is altered to require the plaintiff to produce
“evidence, circumstantial or direct, from which a factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision at
issue.” Id.
Here, Hall presented evidence that her hours were gradually reduced while
younger employees’ hours remained the same and that eventually RDSL
discharged her from her position while retaining younger employees. Hall further
presented evidence that she was not the only member of the protected class who
met this fate. In addition, Hall presented evidence that younger employees were
trained to move into positions that assumed the duties of the food prep position—
a position that Hall presented evidence was being phased out of RDSL’s
corporate structure. Hall further presented evidence that unlike her younger
counterparts, she was not trained for this new position. This evidence is the type
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of circumstantial evidence from which a factfinder might reasonably conclude that
RDSL intended to discriminate against Hall because of her age in reaching its
decision to end her employment. Given that meeting her prima facie case was
not an “onerous” burden we hold that Hall established the fourth element of her
prima facie, age-discrimination case. See Diaz v. Eagle Produce Ltd. P’ship, 521
F.3d 1201, 1211 (9th Cir. 2008) (“To support an inference of discrimination[,] an
employee need not demonstrate that one particular individual was designated as
his replacement; evidence that a group of younger and comparably or less-
qualified employees assumed the plaintiff’s responsibilities is sufficient.”).
RDSL makes a tepid argument in its brief that it “raised” the issue of
pretext in its supplemental motion for summary judgment. It did no such thing.
RDSL’s supplemental motion for summary judgment specifically states that it is
addressing Hall’s “initial burden.” And even though RDSL states in its
supplemental motion that Hall had “no evidence demonstrating her age was a
motivating factor in the reduction of [her] hours or her alleged termination,” there
is simply no language in the motion that can be construed to satisfy RDSL’s
burden “to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. In short,
RDSL did not attempt to meet its burden of demonstrating a legitimate,
nondiscriminatory purpose for its alleged employment action; thus, the burden
never shifted back to Hall to provide evidence why that purpose was merely a
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pretext to age-discrimination. McDonnell Douglas Corp., 411 U.S. at 802–03, 93
S. Ct. at 1824.
By establishing the fourth element of her prima facie case, Hall presented
more than a scintilla of probative evidence that raised a genuine issue of material
fact; thus, summary judgment based on RDSL’s no-evidence motion was
improper given that RDSL’s no-evidence motion specifically targeted only the
fourth prong of Hall’s prima facie case. See Mann Frankfort, 289 S.W.3d at 848.
Furthermore, by Hall having established her prima facie case, RDSL failed to
establish that it met its traditional summary judgment burden by establishing that
no genuine issue of material fact existed regarding Hall’s prima facie case or that
it was entitled to judgment as a matter of law. See Hamilton, 249 S.W.3d at 426.
Thus, the trial court erred by granting RDSL’s motion for summary judgment. We
sustain Hall’s sole issue.
IV. CONCLUSION
Having sustained Hall’s sole issue on appeal, we reverse the trial court’s
judgment granting RDSL’s motion for summary judgment and remand this case
back to the trial court for proceedings consistent with this opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: February 20, 2014
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