Dear Dawg: I’m 64 and got fired by the school district last year. Now they have gone and replaced me with a young fella. He’s 63. Do I have an Age Discrimination case? NOT THAT OLD.
DEAR NOT THAT OLD: We’d have to know a lot more about your situation before we’d express any opinion about that. But let’s just start out by saying it would probably be a stretch to convince a court that the school was motivated by age when they replaced an elderly 64-year old with a spring chicken of 63.
This issue came up in a case recently decided by the Houston Court of Appeals. A charter school teacher was let go, and she alleged that it was based on age. She was 64. The majority of the Court held that she failed to allege a “prima facie” case because she admitted that she was replaced by a 50-year old. The Court said that a prima facie case requires allegations to show four critical facts: 1) that you are older than 40; 2) that you are qualified for the job; 3) that your employment was terminated; and 4) that you were replaced by someone younger than 40, or that similarly situated people were treated differently.
The teacher had no problem with the first three factors, but she lost her case based on the 4th factor. Since her replacement was 50, rather than 39 or younger, the case was doomed to failure.
A dissenting judge asserted that the majority got it wrong. He cited a Texas Supreme Court case that said the 4th factor was not about being under 40—it was about being younger than the plaintiff. See Mission CISD v. Garcia, 372 S.W.3d 629 (Tex. 2012). Thus the dissenting judge said that the teacher alleged a prima facie case, and should have been allowed to proceed with her case.
Even if the plaintiff had gotten past that “prima facie” hurdle she would have borne the burden of proving that age was the motivating factor in the termination decision. So to get back to your question, we think that burden of proof would be particularly difficult if the age differential was just one year.
The case is Rosenberg v. KIPP, Inc. decided by the Court of Appeals for Houston, the 14th District, on January 29, 2015. We found it at 2015 WL 410454.
DAWG BONE: AGE DISCRIMINATION CLAIMS REQUIRE PROOF THAT AGE WAS THE MOTIVATING FACTOR.