                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-16-00489-CV


BELL HELICOPTER TEXTRON,                                          APPELLANT
INC.

                                      V.

BRIAN BURNETT                                                      APPELLEE

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        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 153-276130-14



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                          DISSENTING OPINION

                                   ----------

      In this appeal, we are faced with an issue of first impression in Texas

jurisprudence, one which, regrettably, the majority does not fully address.

Namely, whether an individual may maintain a cause of action for wrongful

termination because of age pursuant to the Texas Commission on Human Rights

Act (TCHRA) based solely on alleged discriminatory actions that occurred before
the individual turned forty years old and became a member of the protected

class. See Tex. Lab. Code Ann. §§ 21.001–.556 (West 2015). Because I believe

the plain language of the TCHRA cannot be stretched to cover supposed

discriminatory actions that may have occurred prior to an individual’s

membership in the statutorily enumerated protected class, I must respectfully

dissent.

      The purpose of the TCHRA, codified in chapter 21 of the Texas Labor

Code, was intended to “correlat[e] . . . state law with federal law in the area of

discrimination in employment,” Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d

483, 485 (Tex. 1991), and to “conform with federal law under Title VII the Civil

Rights Act of 1964, . . . and the Age Discrimination in Employment Act” (ADEA).

Caballero v. Central Power & Light Co., 858 S.W.2d 359, 361 (Tex. 1993); see

Tex. Lab. Code Ann. § 21.001(1).            As a result, the TCHRA prohibits

discrimination in employment based on “race, color, disability, religion, sex,

national origin, or age.” Tex. Lab. Code Ann. § 21.051; see Navy v. Coll. of the

Mainland, 407 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

The TCHRA provides that an employer commits an unlawful employment

practice if because of age, the employer discharges or otherwise discriminates

against an employee. Tex. Lab. Code Ann. § 21.051. Importantly, the TCHRA’s

provisions “referring to discrimination because of age . . . apply only to

discrimination against an individual 40 years of age or older.” Id. § 21.101

(emphasis added); see Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 638

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n.54, 641 (Tex. 2012) (explaining that “the protected class for age discrimination

claims consists of those 40 years of age and older” and recognizing that a

thirty-nine-year-old person is outside the protected class) (emphasis added).

      It is well-settled that except where prohibited by the TCHRA, an employer

may generally terminate an employee’s at-will employment for any reason or no

reason, even if the employer “carelessly form[s] its reasons for termination.”

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex. 2003). In a case

under the TCHRA,1 when an employer presents evidence of a nondiscriminatory

reason for an adverse employment action, the employee must then show that the

employer’s reason was a pretext for unlawful discrimination. Mitchell v. Tex.

Dep’t of Criminal Justice, No. 02-16-00100-CV, 2017 WL 632906, at *3 (Tex.

App.—Fort Worth Feb. 16, 2017, no pet.) (mem. op.). To prove pretext, the

employee must present evidence showing both that (1) the nondiscriminatory

reason given by the employer is false or not credible and (2) the “real reason for

the employment action was unlawful discrimination.”2 McNeel v. Citation Oil &

Gas Corp., 526 S.W.3d 750, 760 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(emphasis added) (citing Chandler v. CSC Applied Techs., LLC, 376 S.W.3d


      1
        We may look to analogous federal law to interpret and apply the TCHRA.
Kaplan v. City of Sugar Land, 525 S.W.3d 297, 302 (Tex. App.—Houston [14th
Dist.] 2017, no pet.).
      2
       When evaluating pretext, we consider the facts as they appeared to the
decisionmaker at the time of the decision to terminate employment. See
Kendrick v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1231 (10th Cir. 2000).

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802, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)); Elgaghil v. Tarrant

Cty. Junior Coll., 45 S.W.3d 133, 140 (Tex. App.—Fort Worth 2000, pet. denied);

see also Little v. Tex. Dep’t of Criminal Justice, 177 S.W.3d 624, 632 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (“[T]he United States Supreme Court

has made it clear that it is not sufficient merely to show that the employer’s

reasons are false or not credible; the plaintiff must prove that the employer

discriminated intentionally.”). Moreover, the relevant inquiry is not whether the

stated basis for termination was a pretext, but whether the stated basis for

termination was a pretext for unlawful discrimination.     Wal-Mart Stores, 121

S.W.3d at 740.

      In other words, the employee must show that the protected-class

characteristic—here, age of at least forty years—motivated the employment

decision. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 141, 120

S. Ct. 2097, 2105 (2000) (explaining that when a plaintiff alleges disparate

treatment, liability depends on whether “the protected trait (under the ADEA, age)

actually motivated the employer’s decision” and that the plaintiff’s age must have

“actually played a role in [the employer’s decision-making] process and had a

determinative influence on the outcome”); Hazen Paper Co. v. Biggins, 507 U.S.

604, 610, 113 S. Ct. 1701, 1706 (1993) (“Whatever the employer’s

decision[-]making process, a disparate treatment claim cannot succeed unless

the employee’s protected trait actually played a role in that process and had a

determinative influence on the outcome.” (emphasis added)); Tex. Parks &

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Wildlife Dep’t v. Dearing, 150 S.W.3d 452, 461 (Tex. App.—Austin 2004, pet.

denied) (explaining that “disparate-treatment claims . . . require proof that age

actually motivated the employer’s decision”).

      With this standard in mind, an exhaustive review of the record shows that it

is devoid of any evidence showing that Burnett’s protected-class characteristic—

age of at least forty—motivated Bell Helicopter’s termination decision.      First,

Rosenbaum testified that she decided to fire Burnett in July 2013; at that time,

Burnett, who turned forty on August 4, 2013, was still thirty-nine years old. She

explained that she had delayed making the termination official until August 20,

2013 only because she had to “work with HR on the termination” and because

Burnett was going on vacation.          Indeed, all the events leading up to

Rosenbaum’s July 2013 decision to terminate Burnett—including alleged early

2013 informal meetings between Rosenbaum and Burnett about his alleged

deficiencies3 and the June 2013 formal written discipline about alleged

deficiencies in Burnett’s performance—occurred when Burnett was thirty-nine

years old, and therefore could not have been motivated by unlawful age

discrimination under the TCHRA. Likewise, the alleged disparate treatment that

Burnett received as compared to younger workers (including Isler)—as

evidenced by his and Creamer’s testimony—occurred when he was thirty-nine

      3
       Burnett testified that prior to the June 2013 disciplinary letter, Rosenbaum
had given him “constructive criticisms” but had not expressed that he was failing
to meet expectations. Rosenbaum testified that before June 2013, she had
informal meetings with Burnett in which she criticized his performance.

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years old, and therefore could not have been motivated by unlawful

discrimination under the TCHRA.

          Second, the record contains no evidence contradicting Rosenbaum’s

testimony that she made the termination decision in July 2013, before Burnett

turned forty.      In fact, Burnett’s own testimony appears to corroborate

Rosenbaum’s testimony in that regard.         On cross-examination, when he was

asked whether he was surprised by his termination, Burnett said, “No, ma’am.”

He explained that he had anticipated his termination after the June disciplinary

letter.    He testified, “After I got [written] up, I saw the writing on the wall.

Things were changing that were out of my control.” [Emphasis added.] Further,

Burnett explained that before his official termination on August 20, 2013, he

began looking for other jobs within the company, which reflects his anticipation of

termination.

          Considering: (1) Rosenbaum’s testimony that she decided to terminate

Burnett in July 2013, when he was thirty-nine years old, and Burnett’s testimony

that he saw the “writing on the wall” concerning his termination in June 2013,

when he was thirty-nine years old; and (2) the fact that all of the circumstantial

evidence concerning Rosenbaum’s supervision of Burnett that he relies on to

show her discriminatory animus occurred when he was thirty-nine years old, it is

simply not conceivable that Burnett’s sole alleged protected trait under chapter

21—his age of forty or above—motivated Rosenbaum’s termination decision or

that Rosenbaum’s reasons for firing Burnett could be viewed as a pretext for

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unlawful discrimination under any review of the trial court’s decision.          Cf.

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct.

1307, 1310 (1996) (“The discrimination prohibited by the ADEA is discrimination

‘because of [an] individual’s age,’ 29 U.S.C. § 623(a)(1), though the prohibition is

‘limited to individuals who are at least 40 years of age,’ § 631(a). This language

does not ban discrimination against employees because they are aged 40 or

older; it bans discrimination against employees because of their age, but limits

the protected class to those who are 40 or older.”); Keister v. PPL Corp., 318

F.R.D. 247, 261 (M.D. Pa. 2015) (“Unfortunately, as might seem obvious, ADEA

plaintiffs are statutorily limited to those individuals who are at least 40 years of

age.   That’s precisely because alleged mistreatment of individuals who are

younger than 40 is presumed not to have been committed on the basis of age.”)

(internal citations omitted); 1 Howard C. Eglit, Age Discrimination § 3.3 (2d ed.

1994) (“Put simply, the ADEA was enacted to protect, not everyone for age

discrimination, but rather those employees 40 years old and older.”). In other

words, even viewing the evidence in the light most favorable to the trial court’s

judgment that Burnett suffered discrimination due to his age, liability cannot be

found under the TCHRA because Burnett was only thirty-nine at the time of that

discrimination. See Tex. Lab. Code Ann. §§ 21.051, 21.101.

       There is simply no evidence of any action that occurred after Burnett

turned forty that motivated or precipitated his termination. See Tex. Lab. Code

Ann. § 21.125(a) (providing that an unlawful employment practice is established

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when the complainant demonstrates that age was a motivating factor for an

employment practice).     Because I believe that the majority departs from the

TCHRA’s explicit provision that its prohibitions against age discrimination are

limited to individuals that are at least forty years of age, I respectfully dissent and

would reverse and render. See Rabinovitz v. Pena, 905 F. Supp. 522, 529 (N.D.

Ill. 1995) (“The prohibitions under ADEA are limited to those who have attained

the age of forty or older.” (emphasis added)), aff’d 89 F.3d 1214 (7th Cir. 1996);

William P. Miles, Complainant, v. John E. Potter, Postmaster Gen., United States

Postal Serv., Agency, EEOC Decision No. 01A12528, 2003 WL 1440686, at *4

(Mar. 13, 2003) (“Furthermore, as the AJ noted in her decision, complainant

testified that the intense supervision to which he was subjected began before he

turned 40 years old, and therefore prior to the time in which he was protected

from age discrimination by the ADEA, and continued in the same manner after he

turned 40. As complainant himself testified that he was subjected to the same

treatment both prior to and after his 40th birthday, he cannot establish that the

treatment was motivated by his membership in a protected group.”).

      I greatly fear the majority’s decision effectively sanctions any age

discrimination suffered by an individual under the age of forty being used as a

basis to support the individual’s TCHRA claim once he or she turns forty and

becomes a member of the protected class. In doing so, the majority sails Texas

employment law into uncharted waters and goes beyond the court’s

constitutional duty to only interpret the law as written and ignores the plain

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language of the TCHRA. Accord United States v. Palmer, 16 U.S. (3 Wheat.)

610, 630 (1818) (Marshall, C.J.) (“[W]hen the legislature manifests [its] clear

understanding . . . with its words, courts are bound by it.”); Antonin Scalia,

Common–Law Courts in a Civil–Law System, in A Matter of Interpretation 20

(Amy Gutmann, ed. 1997) (“Congress can enact foolish statutes as well as wise

ones, and it is not for the courts to decide which is which and rewrite the

former.”); 1 Joseph Story, Commentaries on the Constitution of the United States

411 (Boston, Hilliard, Gray Co. 1833) (courts cannot ignore “the plain meaning of

a [statutory] provision, not contradicted by any other provision . . . because we

believe the framers of that instrument could not intend what they say”). For these

reasons, I urge the Supreme Court of Texas to review this decision and provide

clarity on this issue.



                                                  /s/ Mark T. Pittman
                                                  MARK T. PITTMAN
                                                  JUSTICE

DELIVERED: June 14, 2018




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