Ex-employee unable to establish direct evidence of age discrimination and failed to establish someone younger was hired instead

 

Juan Bazaldua Jr. v. City of Lyford, Texas, 13-16-00004-CV (Tex.App— Corpus Christi, September 1, 2016)

This is an age-discrimination case where the Thirteenth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Bazaldua was a forty-nine-year-old laborer employed in the City’s public works department. After the City purchased a new leaf blower, Bazaldua filled it with gasoline but failed to include the oil mixture. This destroyed the blower. Bazaldua’s supervisor, Javier Lopez, issued a written reprimand and informed Bazaldua he would have to pay for a replacement. Bazaldua refused so he was terminated. Bazaldua filed suit for age discrimination. The City filed a plea to the jurisdiction asserting he was replaced with an older employee and the trial court granted the plea. Bazaldua appealed.

Bazaldua asserts he provided direct evidence of age discrimination in his affidavit where he avers Lopez would routinely address him as “viejo”, which means “old man” in Spanish.  In a true replacement case, to establish a prima facie case of age discrimination, the plaintiff must show that he was: (1) a member of the protected class; (2) qualified for his employment position; (3) terminated by the employer; and (4) replaced by someone younger.  A plaintiff who is replaced by someone older is unable to meet the fourth element.  In order to avoid this burden shifting framework, a Plaintiff can provide direct evidence of discrimination. Direct evidence of discrimination “is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” “If an inference is required for the evidence to be probative as to the employer’s discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct.” Statements and remarks may serve as direct evidence if, among other things not relevant here, the remarks are close in time to the employment decision and related to the employment decision at issue. Bazaldua has provided no evidence that the use of the term “viejo” was proximate in time to his firing or related to the employment decision at issue. He provided no direct evidence and since he was replaced by an older employee, he cannot satisfy the McDonnell Douglas framework.  The plea was properly granted.

If you would like to read this opinion click here. The panel Includes Justice Rodriguez, Justice Benavides and Justice Perkes. Justice Perkes delivered the opinion of the court.  Attorney for the Appellant is listed as Mauro F. Ruiz. Attorneys for the Appellee are listed as Ricardo Morado and Jeffery D. Roerig.