Can an Age Discrimination Claim Stand if a Younger Person was Not Hired as a Replacement? By Dan Atkerson on March 15, 2017

Plaintiff was a security officer at the Texas Department of Aging and Disability Services (DADS), and he applied for an Assistant Unit Director position. Plaintiff was 60 years old, and he was initially selected over several other applicants (under age 40) as the best candidate for the position. He began filling out employment paperwork, when a higher-level supervisor decided to not hire him. She instead hired two temporary replacement workers for the position, both younger than 40, then reorganized the department and got rid of the position he applied to. The replacement position had additional eligibility qualifications, including a bachelor’s degree, that Plaintiff did not possess. Plaintiff alleged this restructuring was simply a pretext to avoid an age discrimination complaint.

Plaintiff filed an age discrimination claim with the Texas Workforce Commission and the EEOC and was granted “right to sue” letters. DADS responded that Plaintiff is unable to bring an age discrimination claim because no younger person was hired to replace the position, as the position was eliminated. The trial court agreed with DADS and dismissed the petition. Plaintiff appealed in the case Texas Department of Aging and Disability Services v. Lagunas, No 08-16-00086-CV (Feb. 24, 2017).

What is Required for an Age Discrimination Claim in Texas?

To have an age discrimination case in Texas, you must show:

The applicant was not hired
The applicant was qualified for the position
The applicant is a member of a protected class (in this case, a worker over the age of 40)
A younger person under 40 was hired for the position

Although the parties agreed as to the first three elements, they disagreed regarding the fourth element. Plaintiff noted that under the 5^th Circuit Court of Appeals, there are sub-parts to this fourth issue. He asserted he could fulfil the fourth element if he could show: (1) He was replaced by someone outside the protected class, (2) he was replaced by someone younger, or (3) he was otherwise not selected due to his age. He contended that (3) was the case here.

The court declined to adopt with certainty Plaintiff’s theory of the case, but held he was able to show a prima facia case of age discrimination. The court noted that DADS had filled the position by hiring younger workers on a temporary basis. That was enough to meet the fourth element of an age discrimination case. The court therefore reinstated the petition for it to be heard on the merits.

Dan A. Atkerson is a Dallas employment lawyer who fights passionately on behalf of victims of workplace discrimination and other forms of workplace injustice.