Jottings By An Employer's Lawyer

Friday, December 05, 2008

A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court

Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory.

For the latter, the Court sticks with the "nearly identical" test. For "stray remarks" the Court re-articulates a four part test that the comments must be:
  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.

The Court adds some clarification for both issues, including emphasizing that the context of the stray comments may be important.

Today's opinion is the end of the road for what started out as a million dollar jury verdict, which had been reduced to bring it within statutory caps by the trial judge and affirmed in this decision by the 13th Court of Appeals.

The case was tried in Brownsville and is a good example of a strategic issue faced by a plaintiffs' attorney in Texas. In a large number of cases, particularly South of San Antonio, plaintiffs' counsel will work very hard to ensure that the case stays in state court, including explicit disavowals in the pleadings of any federal claim and adding individual defendants to destroy diversity. While state court procedures and juries may seem more hospitable to plaintiffs, the ultimate backdrop in Texas is review by the Texas Supreme Court which has shown it is not adverse to reversing jury verdicts. At a minimum it makes for interesting dynamics in settlement discussions.

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