REVERSE and REMAND and Opinion Filed January 18, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00126-CV
WILLIAM J. KANEN, Appellant V. DEWOLFF, BOBERG & ASSOCIATES, INC., Appellee
On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-18-01228-D
MEMORANDUM OPINION Before Justices Schenck, Osborne, and Partida-Kipness Opinion by Justice Schenck In this age discrimination case, William J. Kanen appeals the trial court’s
summary judgment in favor of his former employer DeWolff, Boberg & Associates,
Inc. (“DeWolff”). In three issues, Kanen urges the trial court erred in granting
summary judgment because (1) he established a prima facie case of age
discrimination, (2) he presented evidence from which a jury could find DeWolff’s
proffered nondiscriminatory reason for terminating his employment was pretextual,
and (3) to the extent the trial court may have applied the same-actor interference to
conclude the termination of Kanen’s employment was not motivated by
discrimination, it erred in doing so. We conclude evidence within the summary judgment record raises a fact issue precluding summary judgment. Accordingly, we
reverse the trial court’s judgment and remand the case for further proceedings.
Because all issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.4.
BACKGROUND
DeWolff provides management consulting services to corporations. Among
its employees are market analysts who contact prospective clients to set up meetings
for DeWolff’s sales team.
DeWolff employed Kanen as one of its market analysts from August 19, 2010,
to September 28, 2015, and from May 16, 2016, to November 28, 2016. Kanen left
the employment of DeWolff in September 2015 after a disagreement with his then-
supervisor regarding compensation. Approximately eight months later, DeWolff
rehired Kanen. On November 28, 2016, DeWolff terminated Kanen’s employment.
Kanen was 69 years old at that time. DeWolff’s articulated reason for terminating
Kanen’s employment was poor performance, specifically that his set-to-held ratio1
was low for someone with his level of experience.
Approximately fourteen months after Kanen filed suit against DeWolff,
DeWolff filed a hybrid motion for summary judgment on traditional and no-
evidence grounds asserting (1) Kanen cannot show that he was treated less favorably
1 The set-to-held ratio is the number of meetings set by a market analyst versus the number of meetings that actually occur. –2– than a person outside of the protected age group, (2) an inference of non-
discrimination applies because the same person hired and fired him, and (3) Kanen
cannot show its nondiscriminatory termination reason was pretextual. DeWolff
supported its motion with the affidavit of Jonathan Compton, DeWolff’s Director of
Special Projects,2 summaries of various performance measures for DeWolff’s
market analysts, and Kanen’s interrogatory responses and disclosures.
In response, Kanen asserted he has evidence that (1) he was either replaced
by someone substantially younger or similarly situated employees who were
substantially younger were not terminated, and (2) DeWolff’s stated reason for
terminating his employment was pretextual. In support of his response, Kanen
presented his declaration and the declarations of three other former DeWolff
employees, various performance charts for DeWolff’s market analysts, and the
transcript of the deposition of DeWolff’s corporate representative.
The trial court granted DeWolff’s motion for summary judgment without
specifying the grounds therefore. This appeal followed.
DISCUSSION
I. Standard of Review
Because DeWolff moved for a traditional and a no-evidence summary
judgment, we set forth the standard of review for both grounds. See TEX. R. CIV. P.
2 DeWolff claims Kanen was hired and fired by Compton, who was 53 years old at the time Kanen was re-hired and 54 years old when Kanen was terminated. –3– 166a(c), (i). In a traditional summary judgment, the party moving for summary
judgment has the burden to establish that there is no genuine issue of material fact,
and it is entitled to judgment as a matter of law. Id. 166a(c); Provident Life & Acc.
Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). If the movant satisfies its
burden, the burden shifts to the nonmovant to present evidence that raises a genuine
issue of material fact. Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515,
519 (Tex. App.—Dallas 2011, pet. denied).
A party seeking a no-evidence motion for summary judgment must assert that
no evidence exists as to one or more of the essential elements of the nonmovant’s
claim on which the nonmovant would have the burden of proof. See TEX. R. CIV. P.
166a(i). Once the nonmovant specifies the elements on which there is no evidence,
the burden shifts to the nonmovant to raise a fact issue on the challenged
elements. See id.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
We review a no-evidence motion for summary judgment under the same legal
sufficiency standard used to review a directed verdict. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). Our inquiry focuses on whether
the nonmovant produced more than a scintilla of evidence to raise a fact issue on the
challenged elements. Id. at 751. Less than a scintilla of evidence exists when the
evidence is so weak as to do no more that create mere surmise or suspicion of a
fact. Id.
–4– We review the trial court’s summary judgment decision de novo. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In doing
so, we take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts in favor of the nonmovant. Nixon, 690
S.W.2d at 548–49.
Our review is limited to consideration of the evidence presented to the trial
court. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). When, as here, a summary judgment does not
state or specify the grounds upon which it relies, we may affirm the judgment if any
of the grounds presented in the summary judgment motion are meritorious. Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
II. Propriety of Summary Judgment in Age Discrimination Cases— Shifting Burdens of Production
Because this is an appeal from a summary judgment in an age discrimination
case, we adhere to the analysis established by the United State Supreme Court in
McDonnell Douglas Corp. v. Green, by which the burden of production is allocated
among the parties. 411 U.S. 792, 802–03 (1973). Under McDonnell Douglas, a
plaintiff must first establish a prima facie case of discrimination. Id. at 802; see also
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Armstrong v. City of
Dallas, 997 F.2d 62, 65 (5th Cir. 1993). The plaintiff’s burden at this stage of the
–5– case “is not onerous.” Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex.
2001) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If
the plaintiff meets his or her burden of producing evidence sufficient to constitute a
prima facie case, the burden of production shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its employment action. McDonald
Douglas, 411 U.S. at 802; St. Mary’s Honor Ctr., 509 U.S. at 506–07; Armstrong,
997 F.3d at 65. If the employer meets this burden, the presumption of disparate
treatment disappears, but the plaintiff can still prove disparate treatment by, for
instance, offering evidence demonstrating that the employer’s explanation is
pretextual. McDonald Douglas, 411 U.S. at 805–07. Texas courts use the
McDonald Douglas burden-shifting analysis in age discrimination cases under
Chapter 21 of the Texas Labor Code, commonly referred to as the Texas
Commission of Human Rights Act, the act under which Kanen seeks to recover.
Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 208 (Tex. App.—Dallas 2005, no
pet.). While this burden shifting is helpful to analyze whether a party is obliged to
come forward with evidence, the ultimate burden of persuasion remains unaffected.
Thus, where, as here, both parties have come forward with some evidence to satisfy
their respective burdens of production, we move forward to the ultimate question:
whether a fact finder might find unlawful discrimination. See St. Mary’s Honor Ctr.,
509 U.S. at 507.
III. Prima Facie Evidence
–6– In his first issue, Kanen asserts the trial court erred in granting DeWolff
summary judgment because he fulfilled his burden of establishing a prima facie case
of age discrimination.
A. Applicable Law
A prima facie case is fairly easily made out. Amburgey v. Corhart
Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991); see also City of Dallas
v. Siaw-Afriyie, No. 05-19-00244-CV, 2020 WL 5834335, at *13 (Tex. App.—
Dallas Oct. 1, 2020, no pet.) (mem. op.). To establish a prima facie case of age
discrimination, the plaintiff must show he (1) was a member of a protected class, (2)
was discharged, (3) was qualified for the job from which he was discharged,3 and
(4) was either replaced by someone outside the protected class, replaced by someone
younger, or was otherwise discharged because of his age. Stringer v. Grayson
Business Computers, Inc., No. 05-04-00822-CV, 2005 WL 906136, at *3 (Tex.
App.—Dallas Apr. 20, 2005, no pet.) (mem. op.).
With respect to Kanen’s ability to establish a prima facie case of age
discrimination, DeWolff challenged only the existence of evidence to support the
fourth element of Kanen’s claim. A plaintiff may satisfy the fourth element by
showing he was treated less favorably than similarly situated members of the
3 Performance and qualification are distinct concepts. See Kaplan v. City of Sugar Land, 525 S.W.3d 297, 304–05 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Berquist v. Wash. Mut. Bank, 500 F.3d 344, 350–51 (5th Cir. 2007) (concluding evidence plaintiff’s supervisors were not pleased with his performance did not prove lack of qualification at prima facie stage). –7– opposing class. AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008);
Machinchick v. PB Power, Inc., 398 F.3d 345, 353 (5th Cir. 2005) (retention of a
younger employee when an older employer is terminated satisfies the fourth prong
of the prima facie case). In addition, evidence the plaintiff was replaced by a person
substantially younger than the plaintiff also satisfies the fourth element. O’Connor
v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). A terminated employee
is replaced by another person when that person is assigned the terminated
employee’s former job duties. Dallas Indep. Sch. Dist. v. Allen, No. 05-16-00537-
CV, 2016 WL 7405781, at *8 (Tex. App.—Dallas Dec. 22, 2016, pet. denied) (mem.
op.). The “touchstone” of the analysis is the similarity of jobs held by the protected
class employee and the person who allegedly replaced him or her. Id. A prima facie
case can be satisfied by showing that a substantially younger person performed the
same job duties as the terminated employee. See id. It is possible for a terminated
employee to be replaced by someone who already works for the employer so long
as that employee completely takes over the terminated employee’s job duties. Tex.
Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 306 (Tex. 2020).
B. Analysis
Kanen produced evidence that DeWolff retained and hired market analysts
who were substantially younger than him following his termination.4 DeWolff
4 Kanen identified six existing employees who ranged in age from 31 to 56 and six new hires ranging in age from 24 to 55. –8– would not identify any specific individual who took over Kanen’s job
responsibilities, claiming market analysts are interchangeable so any one of them
could have taken over the territory that Kanen covered. An inference of age
discrimination may be created if at least one of the people replacing the terminated
employee is substantially younger. Flanner v. Chase Inv. Servs. Corp., 600 Fed.
Appx. 914, 919 (5th Cir. 2015). Because Kanen presented evidence DeWolff
retained and hired substantially younger market analysts after his employment was
terminated, and because DeWolff considers the market analysts to be
interchangeable and claimed Kanen’s accounts would be randomly assigned to other
analysts and conceded that Kanen’s replacement “could be anyone in the office,” a
jury could determine that Kanen’s job duties were distributed to younger workers.
In addition, contrary to DeWolff’s assertion of how accounts are assigned, Kanen
established market analysts are assigned to a specific outside salesperson and
territory. A jury could conclude that DeWolff’s explanation as to how accounts are
assigned is not credible and infer that the individual, or individuals, who took over
his accounts were among those Kanen identified as being substantially younger than
himself.
We conclude Kanen presented more than a scintilla of evidence to fulfill his
burden at the summary judgment stage of establishing a prima facie case of age
discrimination. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.
–9– 1996) (plaintiff need only make “a very minimal showing” to establish prima facie
case). Accordingly, we sustain Kanen’s first issue.
IV. Nondiscriminatory Reason for Discharge
Next, we address Kanen’s second issue in which he asserts he presented
evidence from which a reasonable jury could find DeWolff’s assertion that it had a
legitimate, nondiscriminatory reason for discharge was pretextual. To support its
reason for terminating Kanen’s employment, DeWolff presented Compton’s
affidavit, in which he stated that he decided to terminate Kanen’s employment
because his set-to-held ratio was very low for someone with his level of experience
and his performance had not improved despite being counseled on same.5
The plaintiff can prove the employer’s articulated reasons are pretext in two
ways, either (1) by persuading the court that a discriminatory reason more likely
motivated the employer or (2) indirectly by showing that the employer’s proffered
explanation is unworthy of credence. Hall v. Gillman Inc., 81 F.3d 35, 37 (5th Cir.
1996). The first of these alternatives is the alternative that is always open to the
plaintiff in an employment discrimination case: producing evidence from which a
trier of fact might reasonably conclude that the employer intended to discriminate in
reaching the decision at issue. Elliott v. Grp. Med. & Surgical Serv., 714 F.2d 556,
5 DeWolff claims that at the time it terminated Kanen, there were five market analysts, including Kanen, it considered to be experienced, that is having six or more month’s experience. Kanen’s set-to-held ratio was 20%, whereas the other experienced market analysts had set-to-held ratios ranging from 49% to 77%. Kanen was scheduling an average of 1.52 meetings per week, whereas the other experienced market analysts were scheduling meetings averaging between 1.66 and 2.55 per week. –10– 562 (5th Cir. 1983). The second, however, depends upon the resurrection of the
presumption initially created by the plaintiff’s prima facie case. By disproving
affirmatively the reasons offered by the employer to rebut the plaintiff’s prima facie
case, the plaintiff recreates the situation that obtained when the prima facie case was
initially established: in the absence of any known reasons for the employer’s
decision, the fact finder may fairly presume that the employer was motivated by
discriminatory reasons. Thornbrough v. Columbus and Greenville R. Co., 760 F.2d
633, 639–40 (5th Cir. 1985).
Kanen argues he met his burden to raise a fact issue as to whether DeWolff’s
assertion it terminated Kanen’s employment six months after his rehire due to poor
performance as compared to other experienced market analysts was a pretext by
presenting evidence (1) he was named “Tops in Set” and “Tops in Held” several
times, (2) he helped train other market analysts, (3) his sales pitch was included in
DeWolff’s training materials and management had new employees sit by him and
listen to him make calls, set appointments, and make confirmation calls, (4)
management also had new employees use copies of emails he created and had him
review and critique sales pitches developed by others, (5) other market analysts often
came to him for assistance, advice and guidance, (6) beginning in 2014 management,
including Compton, began to talk about hiring younger employees, (7) DeWolff
implemented the plan of hiring younger employees for some period of time and came
to realize that it was not working because the younger people were not able to
–11– effectively communicate with senior executives, (8) he was not provided any
warning or performance improvement plan before being terminated and was not told
to improve his set-to-held ratio, (9) comparing his ratio to other employees who
already had meetings set in the pipeline during the first months of his return skews
the results, and (10) some analysts were assigned meetings secured by other analysts
who left DeWolff’s employment before the meetings were held, Kanen was not one
of them. In addition, Kanen called into doubt the accuracy of the reports DeWolff
provided comparing market analysts’ set-to-held ratios because DeWolff refused to
provide the underlying data from which the numbers were derived.
As additional support for his assertion DeWolff’s proffered termination
reason is pretextual, Kanen presented the declaration of a former Regional Vice
President of Sales who was employed by DeWolff from February 2000 through
October 2016, in which he declared:
[Kanen] did a good job at the call center operation and met expectations. He came to work early, was dependable, constantly performed well and was in the top tier of his peers, setting high quality executive meetings. He also had tenure and knew his job well.
On more than one occasion, in either sales meetings or sales conference calls, within about the last two and one-half years of my employment with [DeWolff], it was mentioned that hiring younger personnel for the Market Analyst position might be beneficial, as they may be easier to train. The project was not successful as young college graduates were not up to the tasks.
From all of this evidence, a reasonable jury might fairly conclude Kanen was
a good employee, DeWolff brought him back to train younger analysts and then,
–12– under the guise of poor performance, let him go when it accomplished its objective.
While it might also find otherwise, of course, Kanen was obliged to and did fulfill
his burden of presenting evidence to raise a fact issue as to whether DeWolff’s stated
reason for terminating Kanen’s employment was a pretext for discrimination. We
sustain Kanen’s second issue.
V. Same Actor Inference
In his final issue, Kanen contends application of the same-actor inference is
inappropriate in the summary judgment context and inapplicable in this case. The
United States Supreme Court has not spoken on the issue of whether the same-actor
inference should be recognized in discrimination cases, the lower federal courts are
divided on the issue of its application, and the Texas Supreme Court has not
addressed same. For purposes of our analysis, we will assume its potential
application.
The same-actor inference permits an inference that an employment decision
was not motivated by a discriminatory animus when an employee is hired and fired
by the same decisionmaker based on the theory that it is irrational for an employer
to show animus in termination but not in hiring. Spears v. Patterson UTI Drilling
Co., 337 Fed. App’x 416, 421–22 (5th Cir. 2009); Fenley v. Tex. Plumbing Supply
Co., Inc., No. 14-19-00851-CV, 2021 WL 1881273, at *5 (Tex. App.—Houston
[14th Dist.] May 11, 2021, no pet.) (mem. op.). The presumption created by the
same-actor inference “is not irrebuttable.” Spears, 337 Fed. App’x at 422.
–13– Kanen urges he rebutted DeWolff’s assertion of the same-actor inference by
establishing Compton, the individual DeWolff contends was responsible for both the
hiring and firing decisions, did not have the final authority to hire or fire anyone. At
this stage, however, we need not determine whether the same individual was
responsible for both decisions or whether DeWolff is entitled to the inference. If it
applies, the same-actor inference is relevant in determining whether discrimination
occurred and merely weighs against Kanen’s evidence of discrimination. Spears,
337 F. App’x at 422; Haun v. Ideal Ind., Inc., 81 F.3d 541, 546 (5th Cir. 1996).
Because we have determined—based on his prima facie case of discrimination
combined with evidence that DeWolff’s proffered reason was pretextual—Kanen
has raised a genuine issue of material fact as to whether his termination was
motivated by age discrimination, we cannot conclude DeWolff is entitled to
summary judgment on the basis of the “same-actor inference” without improperly
weighing the evidence now before the Court and improperly invading the province
of the jury. See Grelle v. City of Windcrest, SA-19-CV-00125-XR, 2021 WL
1910783, at *7 (W.D. Tex. May 12, 2021); see also Perez v. Thorntons, Inc., 731
F.3d 699, 709 (7th Cir. 2013) (common-actor or same-actor inference is a reasonable
inference that may be argued to the jury, but it is not a conclusive presumption that
applies as a matter of law and is thus not well settled in the summary judgment
context). Thus, whether or not the inference applies, DeWolff is not entitled to
–14– judgment as a matter of law on Kanen’s claim for discrimination based on age. We
sustain Kanen’s third issue.
CONCLUSION
We reverse the trial court’s Order Granting Defendant’s Traditional and No
Evidence Motion for Summary Judgment and remand the case to the trial court for
further proceedings.
/David J. Schenck/ DAVID J. SCHENCK JUSTICE
200126F.P05
–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIAM J. KANEN, Appellant On Appeal from the County Court at Law No. 4, Dallas County, Texas No. 05-20-00126-CV V. Trial Court Cause No. CC-18-01228- D. DEWOLFF, BOBERG & Opinion delivered by Justice ASSOCIATES, INC., Appellee Schenck. Justices Osborne and Partida-Kipness participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant WILLIAM J. KANEN recover his costs of this appeal from appellee DEWOLFF, BOBERG & ASSOCIATES, INC..
Judgment entered this 18th day of January 2022.
–16–