Ex-employee failed to allege she was qualified for her position but court held she was entitled to amend in discrimination/retaliation case

City of Granbury v. Christine Willsey 02-17-00343-CV (Tex. .App. — Fort Worth, March 15, 2018)

This is an age/sex discrimination and retaliation case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the order denying the City’s plea to the jurisdiction.

Willsey worked for the City for over seventeen years, including nine years as a police officer and almost nine years as a public works inspector.  In 2016 the City eliminated her inspector position but reassigned her to be a permit clerk. Three days after she inquired as to how long before her retirement would vest, the City terminated her. The City asserts the inspector as well as the permit clerk position were eliminated and absorbed into the existing number of employees. The City filed a combined answer/plea to the jurisdiction. The trial court denied the plea. The City appealed.

The court went through a detailed point-by-point prima facie analysis. To be successful in an age discrimination claim a plaintiff must plead that she was either (1) replaced by someone outside the protected class, (2) replaced by someone younger, or (3) otherwise discharged because of her age. Willsey did not plea or establish she was qualified for the inspector position, only that she was eliminated. Simply because she was an inspector for nine years does not equate to her continued qualifications for the position. The same goes for her sex discrimination claims. Under the retaliation claims, Willsey asserts that the City pursued her after her termination by “making up false accusations against her and seeking criminal charges against her” for stealing records, interfering with her future employment. However, the court responded “[e]ven construing Willsey’s pleadings liberally in her favor, we are left to guess what the protected activity is that Willsey participated in prior to her termination that the final decisionmaker for the City was aware of and the causal link between that protected activity and her termination.” However, the court then analyzed whether the lack of pleading sufficiency could be cured by allowing her the ability to amend. Because this is a reduction-in-force case rather than a true replacement case, and the City’s arguments focus on a replacement case, it has not established an amendment would be futile. As a result, it remanded the case to allow the trial court to allow an amendment after some level of discovery has occurred.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Kerr and Justice Pittman. The attorney listed for Willsey is Christopher S. Medlenka. The attorney listed for the County are Fredrick ‘Fritz’ Quast.