# Mitchell v. Texas Farm Bureau

> District Court, S.D. Texas · May 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10675442

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** May 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675442

## How later opinions describe it (automated extraction)

- describing the third element element as “the job remained open or was filled by someone younger”

## Opinion text

IN THE UNITED STATES DISTRICT COURT May 26, 2022
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

JOE MITCHELL, §
§
Plaintiff, §
§
VS. § CIVIL ACTION NO. H-20-3716
§
TEXAS FARM BUREAU, et al., §
§
§
Defendants. §

ORDER
Joe Mitchell applied for to work as a sales representative with the Texas Farm Bureau in
April 2019. Mitchell scored poorly on the standard aptitude test, but he convinced Texas Farm
Bureau to allow him to retake the test. He received a perfect score. Texas Farm Bureau then
proceeded with a month-long interview process, involving Mitchell, his wife, the Agency
Manager, and the District Sales manager. In the end, Texas Farm Bureau did not offer Mitchell a
job. Mitchell alleges that the Agency Manager expressed concern over his age during the interview
process. Mitchell sues Texas Farm Bureau, Texas Farm Bureau Insurance Companies, Texas Farm
Bureau Casualty Insurance Company, Texas Farm Bureau Mutual Insurance Company, Texas
Farm Bureau Underwriters, and Farm Bureau County Mutual Insurance Company of Texas,
(collectively, “Texas Farm Bureau”), for age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621, et seq., and Chapter 21 of the Texas Labor Code, also known
as the Texas Commission on Human Rights Act. Texas Farm Bureau moves for summary
judgment, arguing that Mitchell was not hired due to his lack of relevant experience and for
providing a misleading resume, not because of his age.
Based on the pleadings; the motions, responses and replies; the applicable law; the
summary judgment record; and the parties’ briefs, the defendants’ motion for summary judgment,
(Docket Entry No. 31), is granted. The motion to strike the surreply, (Docket Entry No. 40), is
denied. The motion to strike the exhibits in support of the motion for summary judgment, (Docket
Entry No. 43), is denied. The reasons are explained below.

I. Background

Mitchell applied for a sales representative position with Texas Farm Bureau in Waller
County, Texas in April 2019. (Docket Entry No. 39-1 at 2). Mitchell was 58 years old at the time.
(Docket Entry No. 39-1 at 4). The sales representative posting explained that Texas Farm Bureau
was “looking for motivated individuals to help grow our agency in Waller County and surrounding
areas.” (Docket Entry No. 39-2). There were no qualifications listed. Mitchell submitted his
application, which included his answers to a list of six screening questions and five demographic
questions. Mitchell answered “yes” to the question, “Have you had any previous sales training or
experience?” (Docket Entry No. 39-3 at 2). There were no other questions about previous
experience on the application. (Docket Entry No. 39-3 at 2).
After Mitchell submitted his application on April 11, 2019, Doug Light, the Agency
Manager for the Waller County agency, sent Mitchell a link to complete an online sales aptitude
assessment called the Predictor of Potential. (Docket Entry No. 31-2). On the grading scale of
one to five, Mitchell received a two. (Docket Entry No. 31-2 at 29). On that same day, Light
emailed Mitchell and explained that his application would not be moving forward. (Docket Entry
No. 39-5 at 2). Light included Mitchell’s aptitude test results in the email. (Docket Entry No. 39-
5 at 2). Mitchell called Light immediately and asked to take the aptitude test again and requested
an interview. (Docket Entry No. 39-6 at 4). Light agreed to allow Mitchell to take the test again
and to give him an interview. (Docket Entry No. 31-2 at 13, 69). Mitchell completed the aptitude
test a second time on April 23, 2019 and received a perfect score of five. (Docket Entry No. 39-9
at 2).
Texas Farm Bureau alleges that Light realized during the first interview that Mitchell had
limited overall sales experience and no direct experience. (Docket Entry No. 39-6 at 4). Light

interviewed Mitchell a second time. Following Texas Farm Bureau standard procedure, Light
asked Mitchell “to complete prospecting surveys and to generate a prospect list of 100 individuals
that may have insurance needs.” (Docket Entry No. 39-6 at 6). Mitchell emailed Light on April
26, 2019, that he had “made great headway on the Project 100 list.” He explained, “By my count
I have 100 filled out and I have many, many more names that I can add.” (Docket Entry No. 39-
12 at 2). On April 29, 2019, Mitchell emailed Light, “Doug, called your cell phone and left a
message. Just wanted to be sure you received my 100 list and ask you who my targets are for the
surveys.” (Docket Entry No. 39-12 at 2). Light interviewed Mitchell again on May 13, 2019 to
discuss the surveys and the next steps. (Docket Entry No. 39-6 at 4). On May 23, 2019, Light

was joined by his supervisor, Jon Sharp, the District Sales Manager, in the final interview. Both
Sharp and Light found Mitchell to be likeable, but they were concerned about his lack of prior
experience and “lack of advancement” in other jobs. (Docket Entry No. 39-6 at 4).
One week after his second and final interview, Mitchell called Light and asked whether
Texas Farm Bureau had acted on his application. Mitchell alleges that Light told him he was
concerned about how the younger salespeople would react to having “‘someone as old as
[Mitchell]’ working [alongside] them.” (Docket Entry No. 39-1 at 4). The next day, Mitchell
emailed Light:
I was thinking about the concern you expressed regarding my age and what the
younger agents would think. I can assure you that I won’t make them feel too bad
about their youth and inexperience ©
(Docket Entry No. 31-2 at 96). Light responded:
I appreciate that. I am pushing for a decision. Sorry for the delay, but I will let you
know what the powers that be decide.
(Docket Entry No. 31-2 at 95).
Light contends that he never expressed a concern about Mitchell’s age. He testified that
he had spoken with Mitchell about how he “was looking forward to getting that -- that last position
filled in the office so that -- and it would -- it would make some of those guys a little nervous
because now we could focus on production and not so much recruiting.” (Docket Entry No. 39-4
at 8). Light stated that “nothing was ever discussed about [Mitchell’s] age.” (Docket Entry No.
39-4 at 8). Texas Farm Bureau’s position statement before the EEOC sets out a slightly different
story. The Farm Bureau explained that age did come up in the conversation between Light and
Mitchell, but in a positive way:
Mr. Light mused that some of the younger and less experienced Sales
Representatives have grown complacent. Mr. Light opined that perhaps if someone
older like Charging Party were hired, it would make the younger Sales
Representatives “uncomfortable” in the sense that they would be shaken out of
complacency and improve their performance. In other words, Mr. Light was
suggesting that the hiring of someone older would be a positive contribution to the
Sales Representatives of Respondent’s Waller County operations.
(Docket Entry No. 39-6 at 5).
Light explained that he allowed Mitchell to proceed to the final stages of the interview
process because “he had a lot of service experience, so -- you know, customer service is a big part
of what we do,” and he was “very personable” and a “likeable guy” who “acted like he wanted to
work.” (Docket Entry No. 31-2 at 20-21). Light explained that he “had some concerns, but they
weren’t so much that I wanted to stop, you know, the process with him.” (Docket Entry No. 31-2

at 21). Light explained that he was concerned about whether Mitchell was “desperate” for a job.
(Docket Entry No. 31-2 at 22). Light was also concerned about the discrepancy between Mitchell’s
statement on his resume that he was working as a general contractor when he was actually building
his own house. (Docket Entry No. 31-2 at 21). Light explained that he was concerned about
Mitchell’s lack of direct sales experience, or at least “not recent [direct sales] experience.” (Docket

Entry No. 31-2 at 22). Texas Farm Bureau also explained to the EEOC that because it was hiring
only one sales representative for the Waller office, it “needed to fill this position with someone
who had a background in commissioned sales and experience performing successfully in a sales
environment.” (Docket Entry No. 39-6 at 5). Texas Farm Bureau also explains that had it “been
seeking more than one contract, it likely would have made an offer” to Mitchell. (Docket Entry
No. 39-6 at 5). Light also explained that although he was responsible for making the hiring
decision, Sharp had to approve it. (Docket Entry No. 31-2 at 21).
Light’s notes of one of Mitchell’s interviews describe the pros and cons of hiring Mitchell.
(Docket Entry No. 31-2 at 100). In the “pros” column, Light listed that Mitchell was likeable,

persistent, had customer-service experience, and has a “need for life insurance due to health issues
at this time.” (Docket Entry No. 31-2 at 100). In the “cons” column, Light wrote that Mitchell
had “lack of direct commission sales experience,” was “too persistent?? (Is he desperate for a
job?,” “out of work since 8/18” and asked “does he really believe in life insurance, or just wants
the job?” (Docket Entry No. 31-2 at 100). Light also noted: “Jon [Sharp] advised to pass”; that “I
have enough pool accounts for 1 agent”; and that the “[n]ext agent really needs to have more sales
experience – also concern for the lack of advancement in prior roles.” (Docket Entry No. 32-1 at
100).
About a week after Light made the comment to Mitchell about his age, Light left Mitchell
a voicemail explaining that Texas Farm Bureau would not be offering him a position. (Docket
Entry No. 39-6 at 5). Texas Farm Bureau has still not filled the sales representative position. Light
testified that “[w]e never found somebody that had enough sales experience to take on that role,
what we were looking for. And then COVID happened.” (Docket Entry No. 31-2 at 26). In its

position statement to the EEOC, Texas Farm Bureau explained that “[o]nce again, had Respondent
had more than one position to offer a contract, Respondent may very well have contracted
[Mitchell].” (Docket Entry No. 39-6 at 7).
Mitchell sued the defendants for age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and Chapter 21 of the Texas Labor Code,
the Texas Commission on Human Rights Act (“TCHRA”).
II. The Summary Judgment Legal Standard and Evidence
A. The Legal Standard
“Summary judgment is appropriate only when ‘the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Shepherd ex rel. Estate of Shepherd v. City of Shreveport, 920 F.3d 278, 282–83 (5th Cir. 2019)
(quoting Fed. R. Civ. P. 56(a)). “A material fact is one that might affect the outcome of the suit
under governing law,” and “a fact issue is genuine if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, LLC, 901 F.3d
605, 611 (5th Cir. 2018) (quotations omitted). The moving party “always bears the initial
responsibility of informing the district court of the basis for its motion,” and identifying the record
evidence “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely point
to the absence of evidence and thereby shift to the non-movant the burden of demonstrating’” that
“there is an issue of material fact warranting trial.’” Kim v. Hospira, Inc., 709 F. App’x 287, 288
(5th Cir. 2018) (quoting Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th
Cir. 2015)). The moving party must demonstrate the absence of a genuine issue of material fact,

but it need not need to negate the elements of the nonmovant’s case. Austin v. Kroger Tex., LP,
864 F.3d 326, 335 (5th Cir. 2017) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075, 1076 n.16
(5th Cir. 1994) (en banc)). “If the moving party fails to meet [its] initial burden, [the summary
judgment motion] must be denied, regardless of the nonmovant’s response.” Pioneer Expl., LLC
v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Kee v. City of Rowlett, 247 F.3d
206, 210 (5th Cir. 2001)).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot
survive a summary judgment motion by resting on the mere allegations of its pleadings.” Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010). The nonmovant must identify specific evidence

in the record and articulate how that evidence supports that party’s claim. Willis v. Cleo Corp., 749
F.3d 314, 317 (5th Cir. 2014). “A party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.” Lamb v. Ashford Place
Apartments LLC, 914 F.3d 940, 946 (5th Cir. 2019) (quotations omitted). In deciding a summary
judgment motion, “the evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his or her favor.” Waste Mgmt. of La., LLC v. River Birch, Inc., 920 F.3d 958,
972 (5th Cir. 2019) (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)).
When the facts are undisputed, the court “need only decide whether those undisputed facts are
material and entitle the movant to judgment as a matter of law.” Flowers v. Deutsche Bank Nat.
Tr. Co., 614 F. App’x 214, 215 (5th Cir. 2015).
B. The Summary Judgment Evidence and Objections
Texas Farm Bureau submitted the following evidence in support of its motion for summary
judgment:

 Joe Mitchell’s application;
 an email about the invitation to complete assessment on April 11, 2019;
 Doug Light’s deposition;
 Joe Mitchell’s Predictor of Potential Results, dated April 11, 2019;
 an email from Doug Light with Mitchell’s Predictor of Potential Results dated April
11, 2019;

 excerpts from Mitchell’s deposition;
 an email from Light to Mitchell dated April 11, 2019;
 Mitchell’s resume;
 Mitchell’s application paperwork;
 Mitchell’s confidential 360 Review;
 Mitchell’s Predictor of Potential Results dated April 23, 2019;
 emails between Mitchell and Light on May 9, 2019;
 emails between Mitchell and Light on May 13 and 30, 2019; and
 Light’s interview notes.
(Docket Entry No. 31-2).
Mitchell submitted the following responsive evidence:
 Mitchell’s affidavit, (Docket Entry No. 39-1);
 Texas Farm Bureau’s job posting, (Docket Entry No. 39-2);
 Mitchell’s job application, (Docket Entry No. 39-3);
 excerpts from Light’s deposition, (Docket Entry No. 39-4);

 an email from Light to Mitchell, dated April 11, 2019, (Docket Entry No. 39-5);

 Texas Farm Bureau’s position statement to the EEOC, (Docket Entry No. 39-6);
 an email between Light and Mitchell dated April 11, 2019, (Docket Entry No. 39-
7);

 emails between Light and Mitchell dated April 17 and 18, 2019, (Docket Entry No.
39-8);

 emails between Light and Mitchell dated April 23, 2019, (Docket Entry No. 39-9);

 Mitchell’s Predictor of Potential Results, dated April 23, 2019, (Docket Entry No.
39-10);

 emails between Light and Mitchell dated April 23 and 25, 2019, (Docket Entry No.
39-11);

 emails between Light and Mitchell dated April 29, 2019, (Docket Entry No. 39-
12);

 emails between Light and Mitchell dated May 1 and 9, 2019, (Docket Entry No.
39-13);

 emails between Light and Mitchell dated May 30, 2019, (Docket Entry No. 39-14);

 excepts from Mitchell’s deposition, (Docket Entry No. 39-15);
 Texas Farm Bureau’s answers and objections to Mitchell’s first set of
interrogatories, (Docket Entry No. 39-16);

 Mitchell’s defalcation fund application, (Docket Entry No. 39-17);
 the declaration of Jeremy West, a former Texas Farm Bureau sales agent at the
Waller office, (Docket Entry No. 39-18);

 the declaration of Travis Hance, a former Texas Farm Bureau sales agent at the
Waller office, (Docket Entry No. 39-19);
 the declaration of Richard Ayala, a former Texas Farm Bureau sales agent in Harris
County, (Docket Entry No. 39-20);

 the declaration of Adam Bryant, a former Texas Farm Bureau sales agent in
Harrison County, (Docket Entry No. 39-21);

 the declaration of Danny Cathey, a former Texas Farm Bureau sales agent in
Randall County, (Docket Entry No. 39-22);

 the declaration of Heather English, a former Texas Farm Bureau sales agent in
Jones County, (Docket Entry No. 39-23);

 Terry Gardiner’s declaration, a former Texas Farm Bureau sales agent in Callahan
and Shackelford Counties, (Docket Entry No. 39-24);

 the declaration of Juan Gonzalez, a former Texas Farm Bureau sales agent in
Cameron County, (Docket Entry No. 39-25);

 the declaration of Joshua Harris, a former Texas Farm Bureau sales agent in
Henderson County, (Docket Entry No. 39-26);

 the declaration of Erin Hartgrove, a former Texas Farm Bureau sales agent in Harris
County, (Docket Entry No. 39-27);

 the declaration of Joe Hawley, a former Texas Farm Bureau sales agent in Harris
County, (Docket Entry No. 39-28);

 the declaration of Tanya Noriega, a former Texas Farm Bureau sales agent in Fort
Bend County, (Docket Entry No. 39-29);

 the declaration of David Perez, a former Texas Farm Bureau sales agent in Nueces
County, (Docket Entry No. 39-30);

 the declaration of Debra Sickels, a former Texas Farm Bureau sales agent in Hunt
County, (Docket Entry No. 39-31);

 the declaration of Lacie Smith, a former Texas Farm Bureau sales agent in San
Jacinto County, (Docket Entry No. 39-32);

 the declaration of Jennifer Thomason, a former Texas Farm Bureau sales agent in
McLennan and Parker County, (Docket Entry No. 39-33); and

 the declaration of Austin Vass, a former Texas Farm Bureau sales agent in Smith
County, (Docket Entry No. 39-34).
Mitchell objects to the the Texas Farm Bureau Exhibits D, E, H, J, and N as unauthenticated
hearsay. (Docket Entry No. 40). Texas Farm Bureau need not authenticate evidence at the
summary judgment stage if it can be authenticated at trial. See Maurer v. Indep. Town, 870 F.3d
380, 384 (5th Cir. 2017) (“At the summary judgment stage, evidence need not be authenticated or
otherwise presented in an admissible form.”). And Texas Farm Bureau provided an affidavit from

Light authenticating the exhibits. (Docket Entry No. 45 at 8). The motion to strike based on lack
of authentication is denied.
Exhibit D is Mitchell’s Predictor of Potential score and Exhibit E is an email exchange
between Light and Mitchell about the score. (Docket Entry No. 31-2 at 28, 35). The court is not
relying on these statements for their truth, but only as evidence of the parties’ knowledge. Exhibits
H, J, and N are: Mitchell’s resume with Light’s handwritten annotations; a form with Light’s notes
about Mitchell’s insurance needs; and Light’s notes from his interview with Mitchell. (Docket
Entry No. 31-2 at 71, 78–81, 100). These statements are admissible to the extent they show Light’s
present sense impressions. Fed. R. Evid. 803(1).

The objections to the exhibits are overruled and the motion to strike is denied.
III. Analysis
The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). The Texas Act prohibits discrimination in employment based on “race, color, disability,
religion, sex, national origin, or age.” See Tex. Lab. Code § 21.001. The Texas Act was intended
to “correlate ‘state law with federal law in the area of discrimination in employment,’” so “we look
to analogous federal precedent for guidance when interpreting the Act.” NME Hospitals, Inc. v.
Rennels, 994 S.W.2d 142, 144 (Tex. 1999) (quoting Schroeder v. Texas Iron Works, Inc., 813
S.W.2d 483, 485 (Tex. 1991)).
A. The Existence of an Employment Relationship
Texas Farm Bureau argues that Mitchell’s claim fails as a matter of law because he applied
to be an independent contractor, not an employee of Texas Farm Bureau. Only an “employer”

may be held liable under the ADEA. 29 U.S.C. § 630(b). The Act defines an “employer” as “a
person . . . who has twenty or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year [and] any agent of such a person,” and
an “employee” as “an individual employed by any employer[.]” Id. § 630. A “person” under the
ADEA includes corporations. Id. An independent contractor is not an “employee.” Hickey v.
Arkla Indus., Inc., 699 F.2d 748, 753 (5th Cir. 1983) (the ADEA does not protect independent
contractors because they are not employees). To determine whether an employer-employee
relationship exists, the Fifth Circuit applies a hybrid economic realities and common law control
test. Deal v. State Farm Cnty. Mut. Ins. Co. of Texas, 5 F.3d 117, 118–19 (5th Cir. 1993). “The

right to control an employee’s conduct is the most important component of this test.” Id. at 119.
The Fifth Circuit applies a number of factors to determine whether the right to control exists,
focusing on “whether the alleged employer has the right to hire and fire the employee, the right to
supervise the employee, and the right to set the employee’s work schedule.” Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 227 (5th Cir. 2015). “The right to control an employee’s
conduct is the most important component of this test.” Burton v. Freescale Semiconductor, Inc.,
798 F.3d 222, 227 (5th Cir. 2015). “The economic realities component of our test has focused on
whether the alleged employer paid the employee’s salary, withheld taxes, provided benefits, and
set the terms and conditions of employment.” Id.
Texas Farm Bureau points to Mitchell’s employment application, which that that he was
applying “to be contracted as an independent contractor.” (Docket Entry No. 31-2 at 74). In its
statement to the EEOC, the Texas Farm Bureau explained that Mitchell applied to be an
independent contractor sales representative who would “manage[] his or her own day-to-day
schedule, and [could] even hire and fire their own staff to assist them in their work.” (Docket

Entry No. 39-6 at 7).
Mitchell points to the declarations of two former sales representatives at the Texas Farm
Bureau Waller location. (Docket Entry Nos. 39-18–19). One representative, Jeremy West,
explained that Light and Sharp told him that he would be able to set his own schedule, but in
reality, Light controlled the hours that West was required to be in the office. (Docket Entry No.
39-18 at 2). Light required West to be in the office Monday through Friday from 9 a.m. to 5 p.m.,
so he had to meet with customers or visit properties outside regular business hours. (Docket Entry
No. 39-18 at 3). Sales agents were also required to serve as the “Agent on Duty” one or two days
each week, answering phone calls and helping other customers in the office. (Docket Entry No.

39-18 at 3). West was paid on a commission but about half of his work did not pertain to his own
sales and was not compensated. (Docket Entry No. 39-18 at 4). West explained Texas Farm
Bureau limits its agents to selling only Texas Farm Bureau policies or policies of its affiliates and
restricts the software that agents use to do their work. (Docket Entry No. 39-18 at 4–5). As a
result, West could process payments only in the office, adding to the hours he was required to
spend at work. (Docket Entry No. 39-18 at 4). Light described the sales position to Mitchell
consistent with West’s description of his responsibilities—”general office work, answering
phones, doing paperwork on the computer, making sales calls, meeting with customers, writing up
and processing their purchase, and doing pretty much everything except collecting payment.”
(Docket Entry No. 39-1 at 3).
The second representative, Travis Hance, worked at the Waller agency during the same
period. In his declaration, he described the same work environment that West described. (Docket
Entry No. 39-19).

Mitchell also points to the declarations of 15 other sales representatives working at
different Texas Farm Bureau locations. These declarations were filed in support of an overtime
collective action against the Texas Farm Bureau in the U.S. District Court for the Western District
of Texas. (Docket Entry Nos. 39-20–34).
Texas Farm Bureau responds that there is no evidence that these other sales representatives
had personal knowledge about the position that Mitchell applied for, including whether it would
have been similar position to their positions. Texas Farm Bureau also points to Mitchell’s
testimony that he did not know the other Texas Farm Bureau Sales representatives whose
declarations he relied on or have any personal knowledge about their working conditions or

compensation. (Docket Entry No. 31-2 at 42–54).
Texas Farm Bureau has pointed to evidence that the posting for the position Mitchell
applied for was for an independent contractor. A posting or title does not determine whether the
position is for an employee or an independent contractor. Parrish v. Premier Directional Drilling,
L.P., 917 F.3d 369, 388 (5th Cir. 2019) (“Citing well-established precedent from our circuit, the
court, correctly, chose not to rely on any contractual agreement.”). “[T]he focus is on economic
reality, not contractual language.” Id. Mitchell has provided evidence that Texas Farm Bureau
hires and fires the sales agents, controls the policies that sales agents can sell and the software they
can use to sell them, requires the agents to do office tasks outside their sales roles, closely
supervises these daily tasks, mandates a specific work schedule, and expects the sales agents to do
a significant amount of noncompensated work. Neither party has submitted other evidence about
the pay or benefits structure.
The present record is inadequate to permit the court determine whether, as a matter of law,
the position Mitchell applied for was as an employee or independent contractor. The restrictions

on the sales agents’ abilities to sell competing products weighs in favor of finding an employee
relationship. Hopkins v. Cornerstone Am., 545 F.3d 338, 344 (5th Cir. 2008). See also Haskett v.
Percheron, LLC, CV G-14-257, 2016 WL 1054396, at *4 (S.D. Tex. Mar. 9, 2016) (the
worker’s ability to offers their services to others supports that there was no employer-employee
relationship). The evidence shows that Texas Farm Bureau exercised significant control over its
sales agents in the Waller office. Mitchell has shown least factual disputes material to deciding
whether the sales representative position was for an independent contractor or an employee that
precludes summary judgment on that basis.
B. The ADEA and TCHRA Claims

Claims brought under the ADEA involving circumstantial evidence are evaluated under the
McDonnell Douglas burden-shifting framework. Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d
470, 474 (5th Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973)). As the claimant, Mitchell must make a prima facie showing that
“(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class
at the time of discharge; and (4) he was either i) replaced by someone outside the protected class,
ii) replaced by someone younger, or iii) otherwise discharged because of his age.” Harris, 27 F.4th
1120, 1123 (5th Cir. 2022) (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir.
2004)). Texas Farm Bureau then must articulate a “legitimate, nondiscriminatory reason” for its
employment decision. Id. Finally, Mitchell must raise a genuine issue of material fact as to
whether Texas Farm Bureau’s proffered reason was merely a pretext for age discrimination. Id.
To prevail under the ADEA, “a plaintiff must prove that age was the ‘but-for’ cause of the
employer’s adverse decision.” Id. (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009)). The Texas Act requires a less demanding showing as a plaintiff can prove discrimination

at the third stage by establishing that “either (1) the reason stated by the employer was a pretext
for discrimination, or (2) the defendant’s reason, while true, was only one reason for its conduct
and discrimination is another motivating factor.” Goudeau, 793 F.3d at 475.
1. Mitchell’s prima facie showing that he was discharged because of age
The parties dispute whether Mitchell must show that Texas Farm Bureau selected someone
younger for the job. Texas Farm Bureau argues that Mitchell cannot make a prima showing
because the sales representative position remains open. The parties cite to different recitations of
the prima facie rule in the Fifth Circuit. Compare Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th
Cir. 1993) (describing the third element element as “the job remained open or was filled by

someone younger”) with Medina v. Ramsey Steel Co., 238 F.3d 674, 680–81 (5th Cir. 2001)
(“another applicant not belonging to the protected class was hired”). McDonnell Douglas
described the prima facie showing as requiring that “after his rejection, the position remained open
and the employer continued to seek applicants from persons of [the] complainant’s qualifications.”
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310 (1996) (quoting McDonnell
Douglas, 411 U.S., at 802). In O’Connor, the Court explained that for purposes of an ADEA
clam, “the fact that one person in the protected class has lost out to another person in the protected
class is [] irrelevant, so long as he has lost out because of his age.” Id. at 312. O’Connor shows
that a prima facie showing of age discrimination does not require evidence that the position was
filled by a younger person. Other courts have concluded that evidence of a younger replacement
is one way, but not the only way, of showing age discrimination. See Hixson v. Houston Indep.
Sch. Dist., No. 4:09-CV-3949, 2011 WL 3648104, at *13 (S.D. Tex. Aug. 17, 2011); Gonzalez v.
Koch Ref. Co., 43 F.3d 670 (5th Cir. 1994); Sweatt v. Union Pac. R. Co., 796 F.3d 701, 709 (7th
Cir. 2015); Bodkin v. Town of Strasburg, Virginia, 386 F. App’x 411, 414 (4th Cir. 2010); see also

Bright v. GB Bioscience, Inc., No. CV H-06-1633, 2007 WL 9759953, at *3 (S.D. Tex. Nov. 20,
2007), report and recommendation adopted, No. CV H-06-1633, 2007 WL 9759951 (S.D. Tex.
Dec. 4, 2007), aff’d, 305 F. App’x 197 (5th Cir. 2008) (“Filling the position with a non-minority
may be one way to create such an inference, but it is plainly not the only way.”).
Mitchell’s claim does not fail solely because the position has remained unfilled. But
Mitchell still must make a prima facie showing that he was not selected because of his age. See
Harris, 27 F.4th at 1123. Mitchell points to Light’s comment that he “did not know how the
younger salespeople would react to having ‘someone as old as me’ working [alongside] them.”
(Docket Entry No. 39-1 at 4). Light made this comment a week before he told Mitchell that he

was not selected for the position. At the prima facie stage, a plaintiff can show discrimination
based on comments showing “(1) discriminatory animus (2) on the part of a person that is either
primarily responsible for the challenged employment action or by a person with influence or
leverage over the relevant decisionmaker.” Goudeau, 793 F.3d at 475–76. Mitchell points to the
fact that Light was responsible for making the hiring decision and that Light did not dispute that
he mentioned a concern about Mitchell’s age when Mitchell emailed him about it. (Docket Entry
No. 31-2 at 95). Viewing the evidence most favorable to Mitchell, Mitchell has made a prima
facie showing that Light was concerned about hiring him because of his age.
2. Mitchell’s qualifications
Texas Farm Bureau argues that Michell has failed to make a prima facie showing that he
was qualified for the sales representative position because he lacked sufficient direct sales
experience. Mitchell complains that the defendants have not pointed to any evidence about the
qualifications for the position, let alone explained how Mitchell did not meet them.

A plaintiff must meet a job’s qualifications to make a discrimination claim arising from the
failure to be hired for that job. Otherwise, ADEA would effectively guarantee a job to all those
belonging to any protected class when they are discriminated against, whether or not they were
qualified for that job. Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 260 (5th Cir. 2001). The
Fifth Circuit has explained that a “review of our ADEA jurisprudence indicates that ‘qualified’ has
a broadly colloquial meaning in this context; it refers to objective job qualifications (e.g., training,
experience, and physical capacity), not ‘essential functions’ or any other term of art associated
with the term’s counterpart in the Americans with Disabilities Act.” Wooten v. McDonald Transit
Assocs., Inc., 788 F.3d 490, 499 (5th Cir. 2015) (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344,

349–50 (5th Cir. 2007) (the plaintiff had made out a prima facie case of ADEA discrimination by
showing that he “possessed the same job qualifications when [his employer] terminated him as
when [it] assigned him to [his last] position,” as evidenced by the employee meeting “the objective
criteria listed in a job posting” and holding a similar job title for two years).
In Medina v. Ramsey Steel Co., the defendant argued that the plaintiff was not qualified for
the job because he failed to meet the “substantial sales experience” requirement. 238 F.3d 674,
680 (5th Cir. 2001). The district court granted summary judgment and concluded that the plaintiff
had not made the prima facie showing that he was qualified for the job. Id. at 681. The Fifth
Circuit reversed, explaining that an employer cannot “defeat an employee’s claim via summary
judgment at the prima facie case stage by claiming that he failed to meet entirely subjective hiring
criteria.” Id. The court explained that while subjective criteria “may serve legitimate functions,
they also provide opportunities for unlawful discrimination” because the criteria itself may be
pretext for age discrimination. Id. (quoting Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th
Cir.1993)). ”As we have indicated before, an employer may not ‘utilize wholly subjective

standards by which to judge its employees’ qualifications and then plead lack of qualification when
its promotion process . . . is challenged as discriminatory.” Id. (quoting Crawford v. Western Elec.
Co., 614 F.2d 1300, 1315 (5th Cir.1980)). At the prima facie stage, “it is inappropriate to decide
as a matter of law that an employee is unqualified because he has failed to meet entirely subjective
hiring criteria.” Id. Mitchell must demonstrate only that he meets the objective hiring criteria at
the prima facie case stage. Id. The subjective hiring criteria is relevant at the pretext stage. Id.
Mitchell points to the defendants’ argument to the EEOC that they would have hired him
if there were more positions available. (Docket Entry No. 39-6 at 5). Mitchell notes that the
application did not have any criteria other than seeking motivated candidates. Mitchell points to

his work history that included sales experience, his perfect score on the aptitude test the second
time he took it, and that he made it through the interview process to the fourth-round with the
District Sales Manager. Mitchell argues that this shows that he has at least made a prima facie
showing that he was qualified.
The defendants point to evidence that Mitchell’s prior experience was mostly in customer-
service related positions rather than direct sales. Light noted during Mitchell’s interview that he
lacked “direct commission sales experience.” (Docket Entry No. 31-2 at 100). Mitchell testified
that he had had only one sales representative position from 2006 to 2010 when he applied for the
Texas Farm Bureau sales representative position in 2019. (Docket Entry No. 31-2 at 38). His
resume is consistent. (Docket Entry No. 31-2 at 38, 71–72). Light testified that direct sales
experience was a qualification for the sales representative position because it required
“prospecting, finding customers, and taking [customers] through the sales process.” (Docket Entry
No. 31-2 at 22). Light believed that Mitchell’s sales experience mostly involved existing
customers, but admitted that Mitchell had sales experience. (Docket Entry No. 31-2 at 22). Texas

Farm Bureau has pointed to only subjective assessments of Mitchell’s experience, which are not
properly considered at the prima facie stage. There is no evidence in the record of what objective
sales experience Texas Farm Bureau was seeking, and Texas Farm Bureau has not pointed to any
evidence of other objective qualifications that Mitchell was lacking.
Mitchell has made a prima facie showing that he was qualified for the job.
3. The legitimate, nondiscriminatory reasons and pretext
Texas Farm Bureau has explained that it did not hire Mitchell because he did not have
sufficient direct sales experience and some of the information in his materials about his prior work
was misleading. (Docket Entry No. 31-2 at 21–22). Mitchell’s resume says that he was a general

contractor, which Texas Farm Bureau argues typically means a position requiring direct sales
experience. In reality, Mitchell was building his own home and gaining no sales experience.
(Docket Entry No. 31-2 at 21–22). Texas Farm Bureau has met the burden of producing a
legitimate, non-discriminatory reason for not hiring Mitchell.
In the context of a failure to hire claim, a plaintiff can demonstrate pretext by showing that
either (1) the candidate “was clearly better qualified (as opposed to merely better or as qualified)
than the employees who are selected” or (2) “the employer’s proffered explanation is false or
unworthy of credence.” Miller v. Novo Nordisk, Inc., No. 21-20237, 2021 WL 5913095, at *2 (5th
Cir. Dec. 14, 2021). Because another person has not been hired, Mitchell must show that Texas
Farm Bureau’s explanation was “false or unworthy of credence.” Id. “The pretext inquiry asks
whether there is sufficient evidence ‘demonstrating the falsity of the employer’s explanation, taken
together with the prima facie case,’ to allow the jury to find that discrimination was the but-for
cause of the termination.” Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 478 (5th Cir.
2015). “The strength of the prima facie evidence may also be considered at the pretext stage.” Id.

at 477.
Mitchell argues that the Texas Farm Bureau’s explanation is false because it has changed
from Light arguing that Mitchell did not have direct sales experience—meaning “going out
prospecting, finding a customer, and taking them through the sales process”—to arguing that
Mitchell did not have “experience with commissions-based sales.” (Docket Entry No. 39 at 20).
“It is true that an employer’s shifting reasons for its employment decision can raise an inference
of pretext.” Miller, 2021 WL 5913095, at *2. But Mitchell has not pointed to evidence that the
direct sales experience and commission-based sales are different. Mitchell argues that “Light
defined ‘direct sales experience’ as something fundamentally different than ‘lack of commission-

based sales experience.” (Docket Entry No. 39 at 21). Mitchell has not shown how Light defined
the terms differently or explained how the types of sales experience differ. Mitchell has not
pointed to evidence showing that he had sales experience that was relevant to the sales
representative role or that Texas Farm Bureau ignored such evidence. Nor has he pointed to other
evidence showing that Texas Farm Bureau’s conclusion that he lacked relevant experience was
false or unreasonable. Texas Farm Bureau has explained that the experiences listed on Mitchell’s
resume did not provide sufficient experience for the job Mitchell applied for, and this was
confirmed during the multiple interviews. Texas Farm Bureau submitted the interview notes,
which noted a “lack of direct commission sales experience” and the need to hire at least one person
with sales experience. (Docket Entry No. 31-2 at 100). The notes also reveal that Light was “on
the fence” but Sharp advised him “to pass.” (Docket Entry No. 31-2 at 100). Light testified that
he found Mitchell “likeable” and “persistent.” (Docket Entry No. 31-2 at 20–21). He explained
“I had some concerns, but they weren’t so much that I wanted to stop, you know, the process with
him. When we got to this point, I kind of wanted my district manager’s feedback.” (Docket Entry

No. 31-2 at 20–21).
The evidence shows that Light was torn on hiring Mitchell but, with the advice of his
district manager, decided not to offer Mitchell the job based on his lack of experience and because
he may have misrepresented his sales experience. Texas Farm Bureau has maintained that it would
hire Mitchell if it had more spots available, which supports the inference that Mitchell’s lack of
experience, not his age, was the reason he was not hired for the only open sales representative
position. “This is simply not a case where the defendant relies on nothing more than a[n]
unexplained interview score that might be consistent with discriminatory intent.” Joseph v. City
of Dallas, 277 F. App’x 436, 441 (5th Cir. 2008).

Mitchell argues that Light’s testimony explaining that Mitchell did not have sufficient
experience is not credible because Light denied making any comment about Mitchell’s age, which
was inconsistent with Texas Farm Bureau’s statement to the EEOC. Light testified that he “didn’t
discuss [Plaintiff’s] age” at any point during Mitchell’s interview process, nor did he ever become
concerned about Mitchell’s age. (Docket Entry No. 39-4 at 11). Texas Farm Bureau argued to the
EEOC that Light meant the reference to Mitchell’s age to be a positive attribute, inspiring the
younger employees to work harder. (Docket Entry No. 39-6 at 5). Mitchell emailed Light to
address Light’s “concern” with his age, and Light responded that he “appreciated” the email.
(Docket Entry No. 39-14 at 2). This dispute about whether Mitchell’s age came up and whether it
was a positive or a negative comment shows that there may have been a misunderstanding about
the conversation, or it may even provide a basis to question Light’s credibility. But this dispute
does not address Light’s and Sharp’s documented concerns with Mitchell’s lack of prior
experience and lack of advancement in other jobs. Mitchell’s resume provides support for those
concerns. (Docket Entry No. 31-2 at 71–72). Even accepting Mitchell’s interpretation that Light

meant that Mitchell’s age was a negative factor, this does not provide a basis to infer that Texas
Farm Bureau’s proffered reasons were false.
Even if Light had questionable credibility, Mitchell still “must produce sufficient evidence
of implausibility to permit an inference of discrimination, not merely an inference that [the]
proffered reason is false.” Owens v. Circassia Pharms., Inc., No. 21-10760, 2022 WL 1515087,
at *6, *10 (5th Cir. May 13, 2022). Even if Mitchell had “established a prima facie case and set
forth sufficient evidence to reject the [Texas Farm Bureau’s] explanation,” summary judgment is
proper if no rational factfinder could conclude that the action was discriminatory. Id. at *6.
Mitchell has not pointed to sufficient evidence to reject Texas Farm Bureau’s reasons, let alone to

conclude that a rational factfinder could find that the action was discriminatory. “The ADEA
cannot protect older employees from erroneous or even arbitrary personnel decisions, but only
from those decisions which are unlawfully motivated.” Joseph, 277 F. App’x at 443 (quoting
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)). Mitchell has not
shown, under either the but-for standard in the ADEA or the motivating-factor standard in the
TCHRA, that there is a factual dispute material to determining whether Texas Farm Bureau’s
reasons were pretextual.
IV. Conclusion
The motion to strike the surreply, (Docket Entry No. 40), and the motion to strike the
summary judgment exhibits, (Docket Entry No. 43), are denied. Texas Farm Bureau’s motion for
summary judgment, (Docket Entry No. 31), is granted. All claims are dismissed with prejudice.
Final judgment is entered by separate order.
SIGNED on May 26, 2022, at Houston, Texas.

Lee H. Rosenthal
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675442. Public record. Not legal advice.