Christian Hecky v. Richmond Motorcars, Ltd., Individually and d/b/a Momentum Volkswagen/Audi--Appeal from 113th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-357-CV

CHRISTIAN HECKY,

Appellant

v.

RICHMOND MOTORCARS, LTD.,

INDIVIDUALLY AND D/B/A

MOMENTUM VOLKSWAGEN/AUDI,

Appellees

From the 113th District Court

Harris County, Texas

Trial Court # 00-26232

MEMORANDUM OPINION

This is an age discrimination case. Summary judgment was granted against the employee, Christian Hecky. In the broadest issue possible from a summary judgment, Hecky complains that the trial court erred in granting the summary judgment motion. See Malooly Bros Inc., v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). We agree.

The parties have extensively cited federal precedent regarding the burden shifting procedure in suits brought under the Texas Commission on Human Rights Act. But the parties have virtually ignored precedent from this Court by which we are bound even in this transfer case. See McLendon v. Texas Dep t of Pub. Safety, 985 S.W.2d 571, 576 n. 6 (Tex. App. Waco 1998), rev d on other grounds, 35 S.W.3d 632 (Tex. 2000). We have recently written several opinions which set out the applicable law, including the shifting burden of going forward with evidence, the burden of persuasion on the whole case, the burden of proof, and the standard of review. Alayon v. Delta Air Lines, Inc., 59 S.W.3d 283 (Tex. App. Waco 2001, pet. denied); Crow v. Rockett Special Utility Dist., 17 S.W.3d 320 (Tex. App. Waco 2000, pet. denied); Jenkins v. Guardian Industries Corp., 16 S.W.3d 431 (Tex. App. Waco 2000, pet. denied). We believe the analysis in these cases controls the disposition of the issues in this appeal.

Richmond asserts that it presented evidence of a legitimate non-discriminatory reason for termination of Hecky that he did not sell enough cars. Richmond further contends that because: (1) ...Hecky fails to prove that Richmond s termination decision was in any way false,...; and (2) because Hecky did not meet his burden, that Richmond properly prevailed on summary judgment and we should, therefore, affirm the judgment. This is not a proper placement of the burdens on a summary judgment motion involving age discrimination.

Richmond does not dispute that Hecky established a prima facie case of discrimination. Richmond asserts that because it presented evidence of a non-discriminatory reason for termination of Hecky, that Hecky must then either present evidence that the non-discriminatory reason is demonstrably false or present direct evidence of a discriminatory motive. This is not the law. Id.

Unless its summary judgment evidence affirmatively negates as a matter of law one of the prima facie elements of Hecky s case of discrimination or conclusively establishes the non-discriminatory reason for termination, the proof of a prima facie case will get the plaintiff to a jury on the issue of discrimination. This is because proof of a prima facie case is some evidence of discriminatory motive. Thus, even without additional evidence of discrimination, it is left to the jury to weigh the evidence of the prima facie case against the evidence of a non-discriminatory motive to determine the ultimate question of whether unlawful discrimination was a factor in the adverse employment decision. See Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001).

We have reviewed the record and find that in presenting his prima facie case, Hecky has presented some evidence that age was a motivating factor in the termination decision. Richmond has not negated this proof as a matter of law nor did Richmond establish a non-discriminatory reason for termination as a matter of law. Accordingly, summary judgment should not have been granted against Hecky. The trial court s judgment is reversed and remanded for further proceedings consistent with this opinion.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Reversed and remanded

Opinion delivered and filed September 4, 2002

Do not publish

[CV06]