"Forget about your damages because I would've fired you anyway."
Goodbye pretext, hello mixed motive in age discrimination cases
Reber v. Bell Helicopter Textron, 2008 WL 623949 (Tex. App.-Ft. Worth, March 6, 2008)
Monday, May 5, 2008
Contributed by: Kelly Utsinger
Fearing its V-22 Osprey project was headed for the military contract endangered species list and realizing it was $100 million behind in its business and commercial aircraft sales, Bell directed a VP to "close the gap" on the profitability of the business unit and save $40 million. The VP and his team evaluated and ranked each employee, considering their strengths and weaknesses. Termination decisions were made on these rankings and as well as each employee's potential for contribution in a different work environment. Two employees over 40 years old who each had at least 13 years of experience ("the Terminated Two") were axed and their job responsibilities taken over by younger, less experienced employees. The Terminated Two claimed the grounds for their firing were pretextual and sued for age discrimination under the Texas Commission on Human Rights Act, Texas Labor Code section 21.125. Bell denied their allegations, but affirmatively plead under section 21.125 (b) that Bell "would have taken the same action in the absence of the impermissible motivating factor."
The jury determined that age was a motivating factor in their termination and found over $800,000 in damages. Against objections by the Terminated Two, the jury also found, that a "mixed motive" existed for the terminations and that the two would have been terminated anyway without regard to age as a motivating factor. With that finding, the Terminated Two could not recover the damages awarded, but could recover their attorney's fees.
The Terminated Two appealed, contending that they should be able to elect to submit whether their termination was based on pretext or on mixed motive. Considering the language of Texas Labor Code section 21.125 and analyzing it in the context of section 107 of the Civil Rights Act of 1991 (42 U.S.C. section 2000e-5(g)(2)(B) and related federal case law, the Ft. Worth court concluded that if the defendant presents sufficient evidence that the plaintiff would have been terminated anyway, the defendant is entitled to submit a question to the jury inquiring about mixed motive. Because the evidence here established a financial motive unrelated to age to reduce personnel, the objectivity of the evaluative process, and the specific criticisms of the Terminated Two, the court affirmed the trial court's decision to submit a mixed motive question, foreclosing recovery of the Terminated Two's $800,000 jury award.
Consistent with the trend in federal law, the former distinctions between pretext and mixed motive age discrimination claims are now blurred in cases filed under the Texas Labor Code. The would-have-been-terminated-anyway question is now one of affirmative pleading and evidence sufficiency-not Plaintiff's election.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
