NUMBER 13-16-00004-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

JUAN BAZALDUA JR., Appellant, v. CITY OF LYFORD, TEXAS, Appellee.

On appeal from the 197th District Court of Willacy County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Juan Bazaldua Jr. filed an age-discrimination suit against the City of Lyford (the “City”) alleging the City terminated his employment in violation of the Texas Commission on Human Rights Act (“TCHRA”). The trial court granted the City’s plea to the jurisdiction and dismissed Bazaldua’s cause of action. By one issue, Bazaldua argues the trial court erred in granting the City’s plea to the jurisdiction because he presented direct evidence of discrimination. We affirm.

I. BACKGROUND The undisputed jurisdictional facts are as follows. 1 Bazaldua was employed by the City as a laborer in the City’s public works department. As one of the six laborers working for the City, Bazaldua’s duties included cleaning and maintaining parks and streets, meter reading, mechanic work, and carpentry. The City purchased a new leaf blower that was fueled by a mixture of oil and gasoline. Bazaldua and other crew members were assigned to clean the streets around the City cemetery, which required the use of the leaf blower. Following a request by one of the crew members, Bazaldua filled the two-gallon fuel container for the leaf blower with gasoline, but he failed to add the oil mixture. As a result, the leaf blower was destroyed while another crew member was operating it with the gasoline prepared by Bazaldua.

Bazaldua’s supervisor, Javier Lopez, investigated the incident and issued Bazaldua a written reprimand for failing to properly mix the fuel. Lopez presented the written reprimand to Bazaldua for his signature and also informed him that he would have to pay for a replacement. Bazaldua refused to sign the reprimand and to pay for the replacement equipment. Lopez asked Bazaldua to leave and told him he was fired.

The City’s policies required that the City Council approve all employee dismissals.

The City Council considered Bazaldua’s termination two weeks later and approved his dismissal. Bazaldua was forty-nine years old when his employment was terminated.

Bazaldua filed suit alleging the City discriminated against him by terminating his employment on the basis of age. The City filed a plea to the jurisdiction arguing Bazaldua failed to present a prima facie case of age discrimination because he was replaced by an older employee. The City asserted that its governmental immunity from suit was not waived and that Bazaldua’s claim should be dismissed. The City’s plea to the jurisdiction was supported by the affidavit of the City’s Secretary Lydia Moreno. The affidavit provided that two months after Bazaldua was terminated, the City hired a fifty- five year old worker to replace Bazaldua.

Bazaldua responded to the City’s plea to the jurisdiction and argued that he had presented direct evidence of age discrimination. Bazaldua’s response was supported by his affidavit in which he avers that Lopez would routinely address him as “viejo”, which means “old man” in Spanish. Bazaldua’s response was also supported by his deposition testimony and the deposition testimony of Lopez and Moreno.

The trial court granted the City’s plea to the jurisdiction and dismissed Bazaldua’s cause of action for want of jurisdiction. This appeal followed.

II. DISCUSSION By one issue, Bazaldua argues the trial court erred in granting the City’s plea to the jurisdiction. Specifically, Bazaldua maintains that the trial court granted the City more relief than it was entitled under the law and that Bazaldua presented direct evidence of discrimination.2

When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, a trial court's review “mirrors that of a traditional summary judgment motion.” Id. at 635. The trial court must take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor.

Miranda, 133 S.W.3d at 228. If there is a fact question regarding the jurisdictional issue, the trial court must deny the plea to the jurisdiction. Id. at 227–28. However, if the

of jurisdictional fact exist as to whether Bazaldua’s evidence constitutes direct evidence precluding dismissal for want of jurisdiction”; and (4) “whether the Texas Supreme Court’s opinion in Mission CISD v. Garcia requires the dismissal of Bazaldua’s TCHRA age discrimination claims brought under the McDonnel Douglas method of proof.” We construe appellant’s brief as raising two discrete sub-issues, which we will address as stated above. evidence is undisputed or if the plaintiff failed to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

B. Age Discrimination The TCHRA provides a limited waiver of sovereign immunity for employment discrimination claims. Garcia, 372 S.W.3d at 637; see TEX. LAB. CODE ANN. § 21.254 (West, Westlaw through 2015 R.S.). An employer commits an unlawful employment practice “if because of race, color, disability, religion, sex, national origin, or age the employer . . . fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment[.]” TEX. LAB. CODE ANN. § 21.051(1) (West, Westlaw through 2015 R.S.).

A plaintiff may prove a claim of intentional discrimination by either direct or circumstantial evidence. Garcia, 372 S.W.3d at 634. A plaintiff demonstrates discrimination by circumstantial evidence pursuant to the modified burden-shifting framework articulated in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802–04 (1973). Under this framework, a plaintiff is entitled to a presumption of discrimination if he meets an initial burden of establishing a prima facie case of discrimination. Id. In claims brought under the TCHRA, a plaintiff seeking to prove discrimination by circumstantial evidence must demonstrate a prima facie case of discrimination to invoke that statute's limited waiver of sovereign immunity. 3 Garcia, 372 S.W.3d at 637.

In a true replacement case, to establish a prima facie case of age discrimination, the plaintiff must show that he was: (1) a member of the protected class under the TCHRA (age forty or older); (2) qualified for his employment position; (3) terminated by the employer; and (4) replaced by someone younger. Id. at 642. A plaintiff who is replaced by someone older is unable to meet the fourth element of the prima facie case and must present direct evidence of discriminatory animus to survive a plea to the jurisdiction. See id. (explaining that a plaintiff who is replaced by older worker can still prove age discrimination via direct evidence). We note that one of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964; therefore, analogous federal statutes and interpretative cases guide our reading of the TCHRA. Id. at 633–34.

the Texas Supreme Court determined that only the prima facie elements of the plaintiff’s case are jurisdictional. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635–38 (Tex. 2012).

C. Analysis 1. The Trial Court Did Not Grant More Relief Than Requested Bazaldua first argues that the trial court erred in granting the City more relief than it was entitled under the law. Specifically, Bazaldua maintains that the City’s plea to the jurisdiction “solely attacked [Bazaldua’s] age claims under the McDonnel Douglas [circumstantial evidence] method of proof.” Therefore, Bazaldua claims that “the issue of whether [Bazaldua] failed to allege an age discrimination claim . . . through the direct evidence method was never presented to the trial court.”

In support of his argument, Bazaldua relies on Lehmann v. Har-Con Corp., in which the Texas Supreme Court explained in dicta that “[a] judgment that grants more relief than a party is entitled to is subject to reversal[.]” 39 S.W.3d 191, 200 (Tex. 2001). The court’s statement was made in reference to the following hypothetical: “[I]f a defendant moves for summary judgment on only one of four claims asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted, the judgment is final—erroneous, but final.” Id. In contrast to the hypothetical posed in Lehmann, the City’s plea to the jurisdiction sought dismissal of Bazaldua’s sole age- discrimination claim. For that reason, Lehmann offers no guidance for this case.

The City’s plea to the jurisdiction asserted that the trial court lacked subject matter jurisdiction and presented evidence negating an element of Bazaldua’s prima facie case by way of Moreno’s affidavit in which she avers that Bazaldua was replaced by an older worker. See Garcia, 372 S.W.3d at 642 (holding that “a plaintiff who is replaced by an older worker does not receive the inference of discrimination that the prima facie case

affords”). Bazaldua did not challenge this evidence; therefore, he was required to present direct evidence sufficient to raise a fact question on the issue of discriminatory intent. See id. (“[The] evidence negated one of the essential elements of the prima facie case, thus triggering [the plaintiff’s] duty to raise a fact question on the issue of discriminatory intent.”). Bazaldua attempted to meet his burden by presenting evidence that Lopez would routinely refer to him as “viejo.” Therefore, the trial court was required to determine whether such evidence created a fact question regarding discriminatory intent. See id. 2. No Direct Evidence Of Discrimination Bazaldua argues that Lopez’s routine use of the word “viejo” constitutes direct evidence of discrimination; therefore, the trial court erred in granting the City’s plea to the jurisdiction. The City responds that this evidence constitutes a “stray remark” and is not direct evidence of discrimination as a matter of law.

By his affidavit, Bazaldua testified: “When [Lopez] addressed me, he would not call me by name. Instead, he would call me ‘viejo,’ a Spanish word which means ‘old man.’ For example, [Lopez] would routinely instruct me by saying, ‘Viejo, go do this . . .

Viejo, go do that . . .’”

Direct evidence of discrimination “is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n.6 (5th Cir. 2004) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)); see also Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653–54 (Tex. App.—Dallas 2012, no pet.). “If an inference is required

for the evidence to be probative as to the employer's discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct.” Jespersen, S.W.3d at 653–54. Statements and remarks may serve as direct evidence of discrimination only if they are (1) related to the employee's protected class, (2) close in time to the employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue.4 AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 593 (Tex. 2008); see Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996). If the alleged workplace comment does not meet these four requirements, the comment cannot be considered direct evidence of discrimination and is treated as a “stray remark.” Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010).

Bazaldua has provided no evidence that the use of the term “viejo” was proximate in time to his firing or related to the employment decision at issue. Bazaldua provided no specific examples of when Lopez allegedly called him “viejo.” He claims only that Lopez generally referred to him in that manner. The comments appear wholly unrelated to Bazaldua’s termination, and he has not presented any evidence to show otherwise.

See AutoZone, 272 S.W.3d at 593; see also Schweers v. Best Buy, Inc. 132 Fed. Appx. 322, 324 (11th Cir. 2005) (not selected for publication) (concluding that the supervisor's references to plaintiff as “old man” and “senior member of the management team” was not direct evidence of age discrimination); Chargois v. Fair Grounds Corp., 161 F.3d 8

We conclude that Bazaldua’s evidence does not constitute direct evidence of discrimination; therefore, he failed to raise a fact question on the issue of discriminatory intent. See Garcia, 372 S.W.3d at 642; AutoZone, 272 S.W.3d at 593.

3. Summary Bazaldua was replaced by an older worker; therefore, he is unable to establish a prima facie case of age discrimination. See Garcia, 372 S.W.3d at 642. Furthermore, we cannot consider the remarks made by Bazaldua’s supervisor as direct evidence of discrimination because the remarks fail to meet the AutoZone criteria. See AutoZone, 272 S.W.3d at 593. By failing to create a fact question through circumstantial or direct evidence, Bazaldua did not invoke the TCHRA’s limited waiver of immunity, and the trial court was deprived of jurisdiction over the suit. See Garcia, 372 S.W.3d at 636. We overrule Bazaldua’s sole issue on appeal.

III. CONCLUSION We affirm the judgment of the trial court.

GREGORY T. PERKES Justice Delivered and filed the 1st day of September, 2016.