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October 2019

Laura De Santos and Cristina Guerrero Successfully Obtained Summary Judgment on behalf a Plumbing Supply Company

Houston attorneys Partner Laura E. De Santos and Senior Counsel Cristina Guerrero successfully obtained summary judgment in Harris County District Court on behalf of Gordon & Rees' client, a plumbing supply company.

Gordon & Rees' client hired the plaintiff as a sales person when he was 70 years old.  Within a few weeks, he suffered an on the job injury.  Several months later, the plaintiff was discharged for being the lowest performing sales person across all of the client's locations. 

The plaintiff claimed Gordon & Rees' client violated Section 451 of the Texas Labor Code because he was purportedly terminated from his employment in retaliation for filing a workers' compensation claim.  In the alternative, the plaintiff claimed that he was unlawfully terminated from his employment because of his age (70s) and alleged disability (back problems/work injury to finger) in violation of Chapter 21 of the Texas Labor Code.

The plaintiff alleged that the defendant regularly told him that he worked "too slow" and that he was "too old" for the job. The plaintiff also claimed that the defendant gave him a "hard time" about his doctor's appointments related to his work injury and ultimately fired him to hire a younger sales person. None of those allegations were corroborated and, of course the employer denied any such statements were made to the plaintiff.  

Gordon & Rees' attorneys successfully argued that any alleged comments regarding the plaintiff's productivity and doctor's appointments were not related to the plaintiff's age or work injury because the comments were made to all employees in the context of offering prompt service to customers and working during the peak morning hours.  Additional argument was made that the alleged "too old" comment was insufficient to prove pretext under the heighten standard of the same-actor inference rule, where there is a presumption against discrimination when the same person who hired the plaintiff is the same person who terminated the plaintiff.  Further argument was based on the fact that the plaintiff was not "replaced" by a younger sales person. Even though a younger sales person was transferred to the same location a couple of months after the plaintiff was terminated, the younger sales person took on outside sales duties, and did not assume the plaintiff's old duties. Lastly, Gordon & Rees' attorneys argued that the plaintiff's unspecified back problems were not disclosed and did not qualify as a disability; moreover, that the plaintiff was not disabled at the time of his termination because his medical records indicated he had no impairments at the time he was terminated. 

Gordon & Rees filed a Motion for No-Evidence and Traditional Summary Judgment, both of which were granted, along with their objections to the plaintiff's summary judgment evidence. As a result, all of the plaintiff's claims against the defendant were dismissed. The Houston team was pleased to deliver this result for our client, who was happy to get the matter resolved in their favor.

Laura E. De Santos
Cristina Guerrero