United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
January 24, 2005
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk
No. 04-20418
_________________________
FRED MACHINCHICK,
Plaintiff - Appellant,
versus
PB POWER, INC. d/b/a/ PARSONS BRINCKERHOFF,
Defendant - Appellee.
_________________________
Appeal from the United States District Court
For the Southern District of Texas
_________________________
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A recently terminated employee brought suit against his former
employer asserting claims for age discrimination pursuant to the
Age Discrimination in Employment Act (ADEA) and the Texas
Commission on Human Rights Act (TCHRA). Following a hearing, the
district court granted the employer’s motion for summary judgment
with respect to both of the employee’s claims. We reverse and
remand for trial.
I
In 1996, Fred Machinchick was hired by PB Power Inc. to serve
as a director of business development in the Houston area. His
primary job duty was to develop new energy sector clients for PB
Power. In both 1997 and 1998, he received reviews describing his
job performance as “excellent,” and was promoted to Vice President
in 1998. In December 2001, Jim Knowlton, a Vice President located
in PB Power’s San Francisco office, became Machinchick’s new
supervisor. In January 2002, PB Power changed its business
development philosophy by implementing a “cradle-to-grave” strategy
under which business development personnel such as Machinchick
would be required to initiate new business prospects, and shepherd
those prospects through the sales process to closing and beyond.
Prior to the implementation of this strategy, business development
personnel had been required only to develop new prospects, and then
turn those prospects over to other PB Power personnel who would
prepare sales presentations and close contracts.
In January 2002, PB Power released a business plan in which it
described as one of its competitive advantages its intention to
“hand-pick employees whose mindset resides [sic] in the 21st
Century, who are highly qualified to do their job, and who are
motivated toward the success of the company.” In an e-mail dated
April 7, 2002, Knowlton announced the continuation of his
“recruiting plan” to “strategically hire some younger engineers and
designers to support and be mentored by the current staff.” On
April 9, 2002, Knowlton sent an e-mail to Elizabeth Erichsen in PB
Power’s human resources department delineating Machinchick’s
shortcomings as an employee, including the accusation that
2
Machinchick possessed “[l]ow motivation to adapt to a rapidly
changing business environment and new company management style.”
On April 17, 2002, Knowlton informed Machinchick that he was
being terminated due to performance concerns. Although PB Power
had a written disciplinary policy providing that a supervisor
should engage in informal and formal discussions with a problematic
employee before termination, Machinchick received no warnings prior
to his termination. Machinchick was initially told that his last
day at PB Power would be on May 17, 2002, but he later agreed to
stay until May 31 to assist with the turnover of his key client
base and contacts to Mike Betz, an employee assigned to PB Power’s
Chicago office. At this time, Machinchick was 63 years old and
Betz was 42 years old.
Following his termination, Machinchick sued PB Power in the
189th Judicial District Court of Harris County, Texas, alleging
that he had been unlawfully fired because of his age in violation
of both the ADEA and the TCHRA. PB Power removed the case to the
United States District Court for the Southern District of Texas,
and moved for summary judgment. The district court held two
hearings on PB Power’s motion, and granted it immediately following
the second hearing. Machinchick filed a timely notice of appeal.
II
We review a “grant of summary judgment de novo, applying the
3
same standard as the district court.”1 Summary judgment is
appropriate when “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of
law.”2 In making this determination, “we view the evidence and all
factual inferences from that evidence in the light most favorable
to the party opposing the motion and all reasonable doubts about
the facts are resolved in favor of the nonmoving litigant.”3
Machinchick challenges the district court’s grant of summary
judgment as to both his ADEA claim and his TCHRA claim. We will
review the district court’s ruling on each of these claims in turn.
III
A
Under the ADEA, it is unlawful for an employer “to fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age.”4 We have traditionally
bifurcated ADEA cases into distinct groups: those in which the
plaintiff relies upon direct evidence to establish his case of age
1
Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).
2
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting FED. R.
CIV. P. 56(c)).
3
Bryan, 375 F.3d at 360; Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc) (“We resolve factual controversies in favor of the
nonmoving party, but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.”).
4
29 U.S.C. § 623(a)(1).
4
discrimination, and those in which the plaintiff relies upon purely
circumstantial evidence.5 Plaintiffs presenting direct evidence of
age discrimination may proceed under the “mixed-motive” analysis
set forth in Price Waterhouse v. Hopkins.6 The mixed-motive
analysis requires only that a plaintiff produce direct evidence
that “discriminatory animus played a role in the decision at
issue,” after which the “burden of persuasion shifts to the
defendant, who must prove that it would have taken the same action
regardless of discriminatory animus.”7
Plaintiffs producing only circumstantial evidence of
discriminatory animus, however, must negotiate the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green.8 Under
McDonnell Douglas, a plaintiff must first establish a prima facie
case of age discrimination by showing that “(1) he was discharged;
(2) he was qualified for the position; (3) he was within the
protected class at the time of discharge; and (4) he was either i)
replaced by someone outside the protected class, ii) replaced by
5
See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)
(“In employment discrimination cases, a plaintiff may present his case by direct
or circumstantial evidence, or both.”); Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 219 (5th Cir. 2001) (same); Russell v. McKinney Hosp. Venture, 235 F.3d 219,
223 (5th Cir. 2000) (same).
6
490 U.S. 228 (1989).
7
Sandstad, 309 F.3d at 896.
8
411 U.S. 792 (1973).
5
someone younger, or iii) otherwise discharged because of his age.”9
Once the plaintiff establishes a prima facie case, the burden of
production shifts to the defendant to proffer a legitimate
nondiscriminatory reason for its employment action.10
If the defendant meets its burden, the presumption of
discrimination created by the plaintiff’s prima facie case
disappears and the plaintiff must meet its ultimate burden of
persuasion on the issue of intentional discrimination.11 A
plaintiff may meet this burden by producing evidence tending to
show that the reason offered by the defendant is pretext for
discrimination.12 In Reeves v. Sanderson Plumbing, Inc., the
Supreme Court found that a plaintiff need not produce evidence of
both pretext and actual discriminatory intent to create a fact
issue on an ADEA claim, holding instead that “a plaintiff’s prima
facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of
9
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)
(citations and internal quotation marks omitted); see also Brown v. CSC Logic,
Inc., 82 F.3d 651, 654 (5th Cir. 1996).
10
See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th
Cir. 2003) (noting that once the plaintiff in an ADEA case has established a
prima facie case of age discrimination, the defendant must “produce evidence of
a legitimate, nondiscriminatory reason for its decision to terminate [the
plaintiff’s] employment”).
11
See Sandstad, 309 F.3d at 896-97; Wallace, 271 F.3d at 219; Russell, 235
F.3d at 222-23.
12
See Sandstad, 309 F.3d at 896-97; Wallace, 271 F.3d at 219; Russell, 235
F.3d at 222-23.
6
fact to conclude that the employer unlawfully discriminated.”13
Following the Supreme Court’s decision in Reeves, we have
found that “[e]vidence demonstrating the falsity of the defendant’s
explanation, taken together with the prima facie case, is likely to
support an inference of discrimination even without further
evidence of [the] defendant’s true motive.”14
With respect to causation, we have required that a plaintiff
advancing an ADEA claim using only circumstantial evidence prove
that discriminatory animus was the “determinative basis for his
termination.”15 As a practical matter, this requirement dictates
that the plaintiff put forward evidence rebutting each one of a
13
530 U.S. 133, 148 (2000).
14
Sandstad, 309 F.3d at 897; see Reeves, 530 U.S. at 148-49 (finding that
when determining whether judgment as a matter of law is appropriate with respect
to plaintiff’s ADEA claim, a court may consider “the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s
explanation is false, and any other evidence that supports the employer’s case
and that properly may be considered on a motion for judgment as a matter of
law”); Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (“In making
her showing on [the] ultimate question [of intentional discrimination], the
plaintiff can rely on evidence that the employer’s reasons were a pretext for
unlawful discrimination, and the factfinder may still consider the evidence
establishing the plaintiff’s prima facie case and inferences properly drawn
therefrom.” (citations and internal quotation marks omitted)); but see Reeves,
530 U.S. at 148 (noting that in rare circumstances, showing of pretext may not
be sufficient to infer discrimination, such as when “the record conclusively
reveal[s] some other, nondiscriminatory reason for the employer’s decision, or
if the plaintiff created only a weak issue of fact as to whether the employer’s
reason was untrue and there was abundant and uncontroverted independent evidence
that no discrimination occurred”).
15
Rachid, 376 F.3d at 310; see also Reeves, 530 U.S. at 141 (“When a
plaintiff alleges disparate treatment, ‘liability depends on whether the
protected trait (under the ADEA, age) actually motivated the employer’s
decision.’ That is the plaintiff’s age must have ‘actually played a role in [the
employer’s decisionmaking] process and had a determinative influence upon the
outcome.’” (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993))); West,
330 F.3d at 385 (“The plaintiff must prove that age ‘actually plated a role in’
and ‘had a determinative influence on’ the employer’s decision-making process.”
(citations and internal quotation marks omitted)).
7
defendant’s nondiscriminatory explanations for the employment
decision at issue.16 Thus, a plaintiff relying upon evidence of
pretext to create a fact issue on discriminatory intent falters if
he fails to produce evidence rebutting all of a defendant’s
proffered nondiscriminatory reasons. This approach differs from
that used in the mixed-motive analysis, under which a plaintiff
need only prove that discriminatory animus was a “motivating
factor” in an adverse employment decision.17
In Rachid v. Jack in the Box, Inc., we altered our ADEA
jurisprudence in response to the Supreme Court’s decision in Desert
Palace v. Costa18 by holding that direct evidence of discrimination
is not necessary in order for a plaintiff to receive a mixed-motive
analysis for an ADEA claim.19 We developed an “integrated” or
“modified McDonnell Douglas” approach under which a plaintiff
seeking to establish an ADEA claim using circumstantial evidence
must still demonstrate a prima facie case of
16
See Wallace, 271 F.3d at 220 (“The plaintiff must put forward evidence
rebutting each of the nondiscriminatory reasons the employer articulates.”);
Rutherford v. Harris County, 197 F.3d 173, 184 (5th Cir. 1999) (A plaintiff “must
provide some evidence, direct or circumstantial, to rebut each of the employer’s
proffered reasons and allow the jury to infer that the employer’s explanation was
a pretext for discrimination.” (quoting Scott v. Univ. of Miss., 148 F.3d 493,
504 (5th Cir. 1998), overruled on other grounds by Kimel v. Fl. Bd. of Regents,
528 U.S. 62 (2000))); see also Sandstad, 309 F.3d at 899 (“[The plaintiff] must
point to evidence creating an issue of fact as to the pretextual nature of the
[employer’s] explanation. Merely disputing [the employer’s] assessment of his
performance will not create an issue of fact.”).
17
See Rachid, 376 F.3d at 309-310.
18
539 U.S. 90 (2003).
19
376 F.3d at 311.
8
discrimination; the defendant then must articulate a
legitimate, non-discriminatory reason for its decision to
terminate the plaintiff; and, if the defendant meets its
burden of production, the plaintiff must then offer
sufficient evidence to create a genuine issue of material
fact either (1) that the defendant’s reason is not true,
but is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason, while
true, is only one of the reasons for its conduct, and
another motivating factor is the plaintiff’s protected
characteristic (mixed-motive alternative). If a
plaintiff demonstrates that age was a motivating factor
in the employment decision, it then falls to the
defendant to prove that the same adverse employment
decision would have been made regardless of
discriminatory animus. If the employer fails to carry
this burden, plaintiff prevails.20
Under this integrated approach, a plaintiff relying on
circumstantial evidence has two options for surviving summary
judgment in an ADEA case: (1) the plaintiff may offer evidence
showing that the defendant’s proffered nondiscriminatory reasons
are false; or (2) the plaintiff may offer evidence showing that his
age was a motivating factor for the defendant’s adverse employment
decision.
B
Applying the integrated approach, we first find that
Machinchick met his initial burden of establishing a prima facie
case of age discrimination. He produced uncontroverted evidence
that he was qualified for his job,21 was terminated, and was a
20
Rachid, 376 F.3d at 312 (citations, internal quotation marks and
alteration omitted).
21
Machinchick held a bachelor’s degree in mechanical engineering from
Villanova University, an MBA from Loyola University, and had 35 years of
experience in relevant fields. In addition, he had received excellent job
reviews and had received no warnings concerning his performance at the time his
9
member of the protected class at the time of his termination.22 PB
Power contends that Machinchick failed to meet the fourth prong of
his prima facie case – that he was replaced by a younger worker –
because it did not hire or reassign an individual to assume his
position. Rather, PB Power contends that Machinchick’s position
was eliminated following his termination, and that Betz served
merely as a temporary intermediary between PB Power and
Machinchick’s former clients.
We need not decide whether Betz replaced Machinchick because
Machinchick may establish the fourth prong of his prima facie case
with evidence that he was “otherwise discharged because of his
age.”23 Machinchick presented evidence showing that weeks before
he was terminated, Knowlton sent an e-mail to several PB Power
employees24 discussing his intent to go forward with his plan to
“strategically hire some younger engineers and designers.”
Although PB Power argues that this plan applied only to engineers
and designers hired in its San Francisco office, Knowlton testified
in his deposition that the hiring plan was represented in PB
Power’s business plan for 2002 – which applied generally to all of
was terminated.
22
Under the ADEA, the protected class is limited to persons at least 40
years of age or older. See 29 U.S.C. § 631(a). As noted above, Machinchick was
63 years old when he was terminated.
23
Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003)
(quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)).
24
Machinchick, incidentally, was not one of the employees originally
copied on the e-mail.
10
PB Power’s operations – via the goal of hiring employees whose
mindsets reside in the “21st Century.” Taken together, Knowlton’s
e-mail and PB Power’s business plan provide evidence that PB Power
intended to assemble a younger workforce, creating an inference
that Machinchick’s age was a factor in his termination.
Second, Machinchick points to Knowlton’s use of “age
stereotyping remarks” as evidence that he was terminated because of
his age. In his e-mail to Elizabeth Erichsen describing
Machinchick’s shortcomings, Knowlton claimed that Machinchick had
a “[l]ow motivation to adapt” to change. Knowlton expounded upon
this claim in his deposition, describing Machinchick as
“inflexible,” “not adaptable,” and possessing a “business-as-usual
attitude.” We have found that purely indirect references to an
employee’s age, such as comments that an employee needed to look
“sharp” if he were going to seek a new job, and that he was
unwilling and unable to “adapt” to change, can support an inference
of age discrimination.25 Thus, Knowlton’s description of
Machinchick in both his e-mail and deposition gives rise to an
inference that Machinchick was terminated because of his age.
Third, Machinchick produced evidence that PB Power treated him
25
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507 n.4 (5th Cir.
1988); see Rachid, 376 F.3d at 315 (“Comments to look ‘sharp’ and comments
concerning an employee’s willingness to ‘adapt’ to new systems are rather
nebulous, but they allowed Bienkowski to avoid summary judgment.”); Hansard v.
Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1466 (5th Cir. 1989) (“Indirect
references to an employee’s age can support an inference of age
discrimination.”).
11
in a disparate manner by terminating him while retaining the
younger, similarly situated Mike Betz. Although we do not address
whether Betz replaced Machinchick, we find that his retention
coupled with Machinchick’s termination gives rise to an inference
that Machinchick was terminated because of his age.26
Fourth, Machinchick presented evidence that, immediately
following his first meeting with Knowlton, he was asked by Knowlton
when he planned on retiring. This inquiry, although potentially
innocuous, constitutes some evidence giving rise to an inference of
discriminatory motivation behind Machinchick’s termination.27
By presenting evidence sufficient to establish a prima facie
case of age discrimination, Machinchick shifted the burden of
production to PB Power to articulate a legitimate, non-
discriminatory reason for its decision to terminate him. PB Power
met this burden by alleging that Machinchick was terminated due to
his inadequate performance under the new “cradle-to-grave” business
plan, his refusal to adapt and modify his personal marketing plan
26
We have found that a plaintiff may satisfy the fourth prong of a prima
facie case in a Title VII suit by presenting evidence that he was terminated
while “others who were not members of the protected class remained in similar
positions.” Meinecke v. H&R Block of Houston, 66 F.3d 77, 82 (5th Cir. 1995).
With respect to ADEA claims, however, we have held that a plaintiff may satisfy
the fourth prong of his prima facie case with evidence that he was “otherwise
discharged because of his age.” See West, 330 F.3d at 384; Palasota, 342 F.3d
at 576. Although the ADEA test differs from the Title VII test, evidence of
disparate treatment may still logically suggest a discriminatory motive for
purposes of establishing a prima facie case of age discrimination.
27
See Guthrie v. J.C. Penney Co., 803 F.2d 202, 208 (5th Cir. 1986)
(finding that an employer’s repeated and harassing inquiries into a 60 year-old
employee’s retirement plans constituted some evidence of discriminatory intent).
12
in order to implement the cradle-to-grave strategy, and his
“business-as-usual” attitude after the new strategy was
implemented.28
Because PB Power articulated legitimate, non-discriminatory
reasons for its decision to terminate Machinchick, the presumption
of discrimination created by Machinchick’s prima facie case drops
from the case, leaving him with the ultimate burden of proving
intentional discrimination. As we have observed, Rachid provides
that an ADEA plaintiff may now meet his ultimate burden by
producing circumstantial evidence sufficient to create a fact issue
as to whether the employer’s non-discriminatory reasons are merely
pretext for discrimination, or whether the plaintiff’s age was a
motivating factor in his employer’s decision to terminate him.
Machinchick first contends that he met his ultimate burden by
presenting evidence rebutting each of PB Power’s non-discriminatory
reasons for terminating him. In response to PB Power’s allegation
that he failed to perform adequately under the cradle-to-grave
28
On appeal, PB Power raised additional reasons such as Machinchick’s lack
of interest in preparing presentations, habit of continuously marketing old
contacts, failure to conduct himself in a professional manner and set a good
example for other employees, failure to work well with PB Power’s Regional Vice
President in Houston, and failure to follow-up on a business development
opportunity with Tractebel. Because we can find no indication that these reasons
were adequately raised below, we will not consider them on appeal. See Abbot v.
Equity Group, Inc., 2 F.3d 613, 629 n.56 (5th Cir. 1993) (limiting review on
grant of summary judgment to the “record before the district court when it
ruled.”); Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992) (“This
court’s inquiry is limited to the summary judgment record before the trial court:
the parties cannot add exhibits, depositions, or affidavits to support their
positions on appeal, nor may the parties advance new theories or raise new issues
to secure reversal. Facts not presented at trial cannot be asserted on appeal.”
(citations omitted)).
13
marketing plan, Machinchick presented evidence that he had
developed five “key prospects” as of April 2002, and had closed a
sale to Marathon Oil only months before his termination. In
addition, he offered as evidence of his good performance the fact
that he was terminated without being afforded a single verbal or
written warning pursuant to PB Power’s progressive discipline
policy,29 and that he received compliments from Knowlton’s superior,
Rod Ragan, for his work on the Marathon sale. Finally, he produced
evidence that he was given insufficient time to be comprehensively
evaluated under the cradle-to-grave plan,30 and that his accounts
were transferred to Mike Betz, a less-experienced employee who had
not closed a sale under the cradle-to-grave plan.
PB Power contends that Machinchick’s evidence fails to rebut
its accusation that he maintained a “business-as-usual” attitude
following the implementation of the cradle-to-grave strategy, and
that he generally failed to adapt to the new strategy. Machinchick
counters that the new philosophy was “not much different” from what
he had been doing all along, and that he had “no problem adapting
to a new company management style.” This evidence is not
sufficient to raise a fact issue as to Machinchick’s willingness
29
Although PB Power correctly notes that its policy is not mandatory, and
that Machinchick was an at-will employee, these facts do not eliminate the
inference of pretext raised by its failure to follow an internal company policy
specifically stating that it should be “followed in most circumstances.”
30
In his deposition, Mike Betz indicated that it would take six months
for an employee to develop a sufficient track record under the cradle-to-grave
plan in order to be comprehensively evaluated.
14
and ability to adapt to the cradle-to-grave strategy.
We need not rest here, however, because Machinchick also
argues that he raised a fact issue as to whether his age was a
motivating factor in PB Power’s decision to terminate him. In a
mixed-motive case involving an employment decision based on a
“mixture of legitimate and illegitimate motives,” the plaintiff
need only prove that the illegitimate motive was a motivating
factor in the decision.31 Once the plaintiff meets this burden, the
employer may seek to avoid liability by proving that it would have
made the same employment decision in the absence of the
illegitimate discriminatory motive.32 The employer’s burden on this
score is effectively that of proving an affirmative defense.33
When considered as a whole, we find that the evidence
31
Rachid, 376 F.3d at 310 (citations and internal quotation marks
omitted).
32
Id. at 312; see Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th
Cir. 1995) (“[U]nder [the mixed-motive analysis], once a plaintiff presents
direct evidence of discrimination, the burden of proof shifts to the employer to
show that the same adverse employment decision would have been made regardless
of discriminatory animus.”).
33
Mooney, 54 F.3d at 1216 (“Although Price Waterhouse can be characterized
as a method to prove discrimination, the mixed-motives theory is probably best
viewed as a defense for an employer.”); see also Price Waterhouse, 490 U.S. at
246 (“[T]he employer’s burden is most appropriately deemed an affirmative
defense: the plaintiff must persuade the factfinder on one point, and then the
employer, if it wishes to prevail, must persuade it on another.”). By requiring
the plaintiff to prove that discrimination was a motivating factor, and then
placing the burden of proving that the employment decision would have been made
even absent discrimination on the employer, we effectively employ a “but-for”
standard of causation. However, once the presence of discrimination as a motive
has been established, the burden of persuasion rests with the employer to
disprove that such discrimination had a determinative or causal effect upon its
decision. See Price Waterhouse, 490 U.S. at 249 (noting that a court that finds
for the plaintiff under this standard “has effectively concluded that an
illegitimate motive was a ‘but-for’ cause of the employment decision.”).
15
presented by Machinchick would allow a reasonable jury to find that
his age was a motivating factor in PB Power’s decision to terminate
him. As a result, PB Power could prevail on summary judgment only
by establishing that it would have terminated Machinchick even
absent considerations regarding his age. PB Power has neither
briefed nor argued this point on appeal.34 Thus, we find that
summary judgment was not proper with respect to Machinchick’s ADEA
claim.
IV
In his second point of error, Machinchick argues that the
district court erred in granting summary judgment on his TCHRA
claim. The TCHRA provides that an “unlawful employment practice is
established when the complainant demonstrates that . . . age . . .
was a motivating factor for an employment practice, even if other
factors also motivated the practice.”35 In Quantum Chemical Corp.
v. Toennies, the Texas Supreme Court held “that ‘a motivating
factor’ is the correct standard of causation for the plaintiff in
all TCHRA unlawful employment practice claims,” regardless of
whether the plaintiff relies on direct or indirect evidence to
build his case.36 Case law following Toennies has confirmed that
34
See Robinson v. Guarantee Trust Life Ins. Co., 389 F.3d 475, 481 n.3
(5th Cir. 2004) (“Failure adequately to brief an issue on appeal constitutes
waiver of that argument.”).
35
TEX. LAB. CODE ANN. § 21.125(a) (Vernon 1996) (emphasis added).
36
47 S.W.3d 473, 481 (Tex. 2001).
16
at summary judgment, the McDonnell Douglas burden-shifting analysis
still applies to discrimination claims brought under the TCHRA.37
In order to establish a prima facie case of age discrimination
under the TCHRA, a plaintiff must prove that she “(1) is a member
of a protected class; (2) was discharged; (3) was qualified for the
position from which she was discharged; and (4) was either replaced
by someone outside the protected class, replaced by someone
younger, or was otherwise discharged because of her age.”38 Once
the plaintiff establishes a prima facie case, the “burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the disparate treatment.”39 If the
employer comes forward with nondiscriminatory reasons for the
employment decision, the plaintiff is “required to show either 1)
the reasons were not true but, rather, were a pretext for
discrimination, or 2) even if the reasons were true, another
motivating factor was . . . age.”40
37
See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)
(“In discrimination cases that have not been fully tried on the merits, we apply
the burden-shifting analysis established by the United States Supreme Court.”);
accord Kokes v. College, 148 S.W.3d 384, 391 (Tex. App.–Beaumont 2004, no pet.);
City of Austin Police Dep’t v. Brown, 96 S.W.3d 588, 596 (Tex. App.–Austin 2003,
pet. dism’d); Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 433-34 (Tex.
App.–Houston [14th] 2002, pet. denied).
38
See Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 435 (Tex. App.–Houston
[14th] 2002, pet. denied); Hartis v. Mason & Hanger Corp., 7 S.W.3d 700, 705
(Tex. App.–Amarillo 1999, no pet.).
39
Kokes, 148 S.W.3d at 391; Russo, 93 S.W.3d at 437.
40
Kokes, 148 S.W.3d at 393. The Kokes court phrased this requirement in
more general terms as follows: “If the employer meets its burden of production,
the only relevant question is whether the plaintiff presented evidence the
17
We can detect no meaningful distinction between this analysis,
and the one we now apply to ADEA claims following our decision in
Rachid. Thus, we find that summary judgment was improper on
Machinchick’s TCHRA claim for the same reasons that it was improper
on his ADEA claim.
V
Because Machinchick presented sufficient evidence to raise
genuine fact issues under both the ADEA and the TCHRA with respect
to whether his age was a motivating factor in PB Power’s decision
to terminate him, we reverse the judgment of the district court and
remand this case for trial on the merits.
REVERSED and REMANDED for trial.
employer made its decision based on race, gender or age, despite the employer’s
proffered explanation.” Id. at 391 (citing Raytheon Co. v. Hernandez, 540 U.S.
44 (2003); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)).
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