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Wilsher v. City of Abilene

Court of Appeals of Texas, Eleventh District

December 31, 2013

JIMMY WILSHER, JIMMY D. ASBILL, JERRY

On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 09010D

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

MEMORANDUM OPINION

JIM R. WRIGHT CHIEF JUSTICE

Appellants, Jimmy Wilsher, Jimmy D. Asbill, Jerry ―Gerardo- Garcia, Craig Mayhall, John M. Wegner, Barbara Carolyn Wiggins, Fidencio Garcia Jr., Ronal Piland, and Terry Vines, brought this age discrimination suit against their former employer, Appellee, the City of Abilene.[1] The trial court granted the City's plea to the jurisdiction as to the claims of Appellants Wiggins, Garcia Jr., Piland, and Vines. The trial court granted summary judgment in favor of the City on the other Appellants' claims. We reverse the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Appellants Wilsher, Asbill, Garcia, Mayhall, and Wegner each filed a charge of discrimination with the Texas Workforce Commission Civil Rights Division (Commission). They stated in their charges that ―THIS IS A CLASS ACTION FILED ON BEHALF OF PLAINTIFF AND ALL SIMILARLY SITUATED EMPLOYEES.- They alleged in the charges that the City had discriminated against them and other similarly situated employees on the basis of their age. Appellants Wiggins, Garcia Jr., Piland, and Vines did not file charges with the Commission.

Appellants brought this suit against the City. They did not bring the suit as a class action. Appellants alleged, among other things, that the City forced them to retire on the basis of their age under what the City identified as a voluntary retirement incentive program. The City asserted in a plea to the jurisdiction that Appellants Wiggins, Garcia Jr., Piland, and Vines failed to exhaust their administrative remedies because they did not file a complaint with the Commission as required by the Texas Labor Code. See Tex. Labor Code Ann. §§ 21.201, 21.202 (West 2006). Based on its assertion, the City contended that the trial court lacked jurisdiction over the claims of Appellants Wiggins, Garcia Jr., Piland, and Vines. Following a hearing, the trial court entered an order in which it granted the City's plea to the jurisdiction.

The City filed a separate ―Motion for No-Evidence Summary Judgment- as to each of the other Appellants. The City asserted the same grounds for summary judgment as to each Appellant. Specifically, the City contended that it was entitled to a no-evidence summary judgment on the claims of Appellants Wilsher, Asbill, Garcia, Mayhall, and Wegner on the following grounds:

[Plaintiff] cannot provide any evidence to support the following elements:
(2) That he was discharged;
(4)That he was replaced by someone under forty, replaced by someone younger, or was otherwise discharged because of age; and/or
(5) That Defendant's stated reason for discharge was a pretext for discrimination.

The City also filed separate traditional motions for summary judgment as to Appellants Wilsher, Asbill, Garcia, Mayhall, and Wegner. The City titled each of its traditional motions in the same manner, such as ―Defendant's Motion for Final Summary Judgment on Plaintiff's Cause of Action and on Its Affirmative Defenses Regarding John M. Wegner.- In its traditional motions, the City moved for summary judgment on the following grounds:

The material evidence shows that Plaintiff did not suffer an adverse employment action. The material evidence shows that Plaintiff was not replaced by another person. Plaintiff's cause of action for age discrimination under the Texas Labor Code must wholly fail and be denied.
Defendant has provided evidence of its legitimate, nondiscriminatory reason for its creation and implementation of its voluntary retirement incentive program to reduce its operating expenses during the summer of 2009, and Plaintiff has provided no legitimate ...

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