Findings of Fact means MSJ order improper and EEOC piggybacking allowed says Eastland Court of Appeals


Jimmy Wilsher, et al  v. City of Abilene, 11-11-00355-CV (Tex. App. – Eastland, December 31, 2013)

This is an age discrimination case brought by former City employees. The trial court dismissed all claims but the Eastland Court of Appeals reversed and remanded for trial.

The Plaintiffs allege the City forced them to retire on the basis of their age under what the City identified as a voluntary retirement incentive program. The City first filed a plea to the jurisdiction asserting several of the Plaintiffs did not exhaust their administrative remedies because they did not file a complaint with the Texas Workforce Commission. The City filed a no-evidence summary judgment as to all other Plaintiffs asserting no evidence of discharge, replacement by younger employee, or pretext. The trial court granted the plea and MSJ dismissing all claims and the Plaintiffs appealed.

The court first noted that the trial court entered findings of fact and conclusions of law (“FFCL”), which have no place in a summary judgment proceeding. If a trial court makes factual findings, this indicates that a question of fact was present and that, therefore, summary judgment was improper.  It noted that normally a court should not consider the FFCL but here they conflict with the general nature of the orders granting summary judgment. Therefore it reversed the summary judgment orders. As to the plea the single-filing rule allows a plaintiff who has not filed a charge with the Equal Employment Opportunity Commission to piggyback on an EEOC complaint that has been filed by another person who is similarly situated. The non-filing Plaintiffs were similarly situated so they can rely on the filings of the other Plaintiffs and the Plea should have been denied. The orders are all reversed and the matter remanded for trial.

This holding should be considered a cautionary note when a City files a plea and MSJ, especially when the plea may require an evidentiary hearing. FFCL are appropriate after an evidentiary hearing on the plea, but apparently can have adverse consequences to an MSJ. A City litigator should make sure any orders signed in such a situation clearly delineate what is being ruled upon, what was considered for each, what was not considered, and there is no inconsistency in the orders.

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