Life Really Does Begin at 40…Unless, Maybe, You’re Claiming Age Discrimination?



Brian Burnett was 22 years old when, in 1996, he began working at Bell Helicopter as a stock clerk.  By 2012, Burnett had risen all the way up to a senior manufacturing specialist position. 

But Burnett began to suffer from performance problems, and, in 2013, after being subjected to a series of written reprimands and performance-improvement plans, he was fired and replaced with a 29-year-old employee.

Burnett said that just before he was fired--but more importantly, before he turned 40--he "saw the writing on the wall" once management took issue with his performance.  However, he wasn't officially fired until 16 days after he turned the Big 4-0.

Burnett filed suit in Texas state court, prevailed on his age discrimination claims at a bench trial and was awarded more than $864,000.  Bell Helicopter then appealed.

Appellate Court’s Reliance on Federal Case Law

Affirming the trial court’s decision, a three-judge panel of the Texas Court of Appeals devoted almost all of its analysis to whether the facts supported Burnett’s claim that his age rather than his being older than 40 years old motivated the company’s decision to fire him.   

Dedicating less than a page of examination to the issue of whether the fact that Burnett was a “younger”-than-usual age discrimination claimant, the majority relied on three federal cases interpreting the Age Discrimination in Employment Act to come to the conclusion that the similarly designed Texas Labor Code merely prevented discrimination “because of” one’s age, not because the individual is 40 or older.

First, the majority relied on O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 1308, 134 L. Ed. 2d 433, 436 (1996), a Supreme Court decision which, from afar, would seem to support its opinion, but when examined further has little to do with Burnett’s claim. 

The issue in O’Connor was whether a 56-year-old fired employee could show age discrimination when he was replaced by a 40-year-old employee, and the main concern was whether the fired employee could show an ADEA violation even when his replacement was also part of the protected class.  The Supreme Court unanimously answered affirmatively to that question.

Second, the majority relied on Charles v. D.C. Dep't of Youth Rehab. Servs., 690 Fed. Appx. 14, 2017 BL 179100 (D.C. Cir. 2017), an unpublished D.C. Circuit opinion, which it cited for the proposition that the “prohibited act of discrimination occurs when a decision to terminate is made final, is communicated to the employee, and is no longer subject to reconsideration.” 

But a closer look at Charles reveals that quote to be in the context of deciding whether the plaintiff in that case had timely exhausted her administrative remedies, not whether she could consider earlier behavior to prove her claim.

A third case—Brown v. Northside Hosp., 311 Fed. Appx. 217, 219, 2009 BL 23943 (11th Cir. 2009)—was cited by the majority simply for the boilerplate proposition that “federal law ‘prohibits an employer from discriminating against a person who is forty or older on the basis of age.’”  The case, however, addressed the allegations of an employee who was in her fifties when her claims of age discrimination arose.

Justice Pittman’s dissent

Justice Pittman's dissent highlighted the flaws in the majority's decision and its inconsistencies with Supreme Court language.  The "because of age" language, as Justice Pittman pointed out, becomes a bit lost as the protected class characteristic—in this case, being more than 40 years old—is not really what motivated the discrimination, even if the final event, so to speak, occurred after the cutoff point.

As a factual matter, Justice Pittman pointed out that Burnett’s supervisor testified that it was only incidental that the decision to fire him occurred after he turned 40 and that she would have fired him earlier if she could have cut through the necessary red tape with human resources. 

Justice Pittman was particularly frustrated that Burnett’s entire claim was built on circumstantial evidence of legal age discrimination, and he implored the Texas Supreme Court to review the case to provide clarity as to whether age discrimination claimants must show that they were discriminated against because they were older than 40, not simply because they were just older than more favorably treated employees. 

What this means going forward?

Should the state’s highest court review the case, this discussion might be just academic.  But, for now, we know that in Texas, it is possible to premise an entire age discrimination claim on acts that occurred before the claimant turned 40 years old, so long as the final employment action in the claim occurs after the claimant turns 40.

Of course, it is also entirely possible for the Texas Supreme Court to uphold the majority's interpretation as correct, even if it also concludes that it is inconsistent with the way that federal courts have interpreted the ADEA. 

Though this would go against longstanding practice in Texas, there is no requirement that a state court interpret the same language in its own state law in the same way as a federal court would interpret similar language in the analogous federal law.

Stay tuned!

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