Jottings By An Employer's Lawyer

Monday, February 16, 2004

5th Circuit - Pretext Plus Does Live For TCHRA Claims

Or at least that is how I read a surprising reversal of an earlier outcome in Pineda v. United Parcel Service, Inc. (5th Cir. 2/16/04) [pdf]. Although less than six weeks ago the 5th Circuit affirmed a jury verdict in Pineda's favor, today it grants rehearing and reverses and renders in favor of UPS. What was the magic bullet that turned the case around? The Texas Supreme Court decision in Canchola v. Wal-Mart, which I reported on here last September.

The money quote from the 5th Circuit is found in footnote 8:
Although the Texas Supreme Court based its conclusions in Canchola on its interpretation of the Supreme Court’s decision in Reeves v. Sanderson, 530 U.S. 133, 120 S. Ct. 2097 (2000), it did so for purposes of the TCHRA only. As only Texas law is implicated in this case, we do not consider whether the Texas Supreme Court correctly interpreted Reeves. Further, our ruling in this case should not be interpreted as an adoption of Canchola for purposes of federal civil rights law.
In short, don't think pretext plus lives under Title VII, but bring your case under the TCHR in federal court, and be prepared to establish more than just pretext.

Pineda turns out to be a double victory for employers, it re-affirms pretext plus for TCHR claims and it limits the employer hostile Quantum holding that motivating factor is the applicable standard to substantive discrimination claims, while applying the less employee friendly 'but for' test to retaliation claims.

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