Texas Parks & Wildlife Department v. Milburn Dearing Kenneth Head And Mike Warren, Individually, and on Behalf of All Others Similarly Situated

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00131-CV

Texas Parks & Wildlife Department, Appellant

v.

Milburn Dearing; Kenneth Head; and Mike Warren, Individually, and on behalf of all

others similarly situated, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN102867, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

O P I N I O N

This is an interlocutory appeal from the denial of a plea to the jurisdiction and the

certification of a class action asserting disparate-impact liability for age discrimination under the

Texas Commission on Human Rights Act (the "Act"). See Tex. Lab. Code Ann. § 21.051 (West

1996). Appellees Milburn Dearing, Kenneth Head, Mike Warren, and others (collectively Dearing) (1)

brought a class-action lawsuit against their employer, the Texas Parks and Wildlife Department,

asserting breach of contract and age discrimination resulting from the Department's reclassification

of their game warden positions. The lawsuit sought a mandamus, damages, and declaratory and

equitable relief. The Department filed a plea to the jurisdiction, asserting sovereign immunity and

Dearing's untimeliness and failure to exhaust administrative remedies. The district court granted

the plea as to the contract, declaratory-judgment, and mandamus claims but denied it as to the age-discrimination claim. The district court also entered an order granting Dearing's motion for class

certification of the age-discrimination claim. The Department appeals the denial of its plea and the

class-certification order. We affirm the district court's denial of the Department's plea to the

jurisdiction on the issues of timeliness and exhaustion of administrative remedies. We reverse the

order certifying the class because we conclude that the only cause of action for which it was

certified--a disparate-impact theory of liability for age discrimination--is not available under the

Act.

BACKGROUND

Milburn Dearing and his fellow employees are employed by the Department as game

wardens. Prior to 1994, there were four rungs on the Department's game-warden "career

ladder"--Game Warden I through Game Warden IV. Game wardens advanced from one rung to the

next every four years. The game warden advancements were based on years of service rather than

a competitive, promotional process. Only the legislature could create an additional rung on the

Department's ladder. In 1994, there were over a hundred game wardens at level IV, all with sixteen

or more years of service at the Department. In an effort to provide additional compensation to these

veteran game wardens, the Department reclassified 131 Game Wardens IV to the position "Field

Sergeant Game Warden." (2) The position of "sergeant" already existed at the Department; thus no

legislative action was required for the reclassification. The Department created some additional

duties for these newly classified sergeants, including the supervision of deer-decoy operations and

training of new officers. In 1995, the legislature passed a pay-parity rider, which required that "[t]he

Director of the Parks and Wildlife Department may not provide for the compensation of a state-commissioned peace officer at a rate less than the rate paid by any other state agency to a state-commissioned peace officer performing similar duties." See Act of May 25, 1995, 74th Leg., R.S.,

ch. 1063, 1995 Tex. Gen. Laws 5242 , 5857 (effective Sept. 1, 1995). Several months after this bill

was passed, the Department had done nothing to determine whether the Field Sergeant Game

Wardens were being paid in parity with officers performing similar duties in other law enforcement

agencies. After pressure from members of the legislature, the Department's Executive Director,

Andrew Sansom, appointed a committee to study the pay-parity issue. The committee returned a

finding that the Field Sergeant Game Wardens were performing similar duties to sergeants in the

Department of Public Safety (DPS) and that the game wardens should therefore be compensated the

same as the DPS sergeants. The Field Sergeant Game Wardens were then given a raise in early

1996.

In 1997, the legislature added a fifth rung to the game warden ladder--Game Warden

V--and adopted Salary Schedule C, which designated that the Game Warden V position be

compensated at the C-6 pay level. See Act of May 29, 1997, 75th Leg., R.S., ch. 1452, 1997 Tex.

Gen. Laws 5535 , 6341 (effective Sept. 1, 1997). In the same bill, the legislature also provided that

the adoption of Salary Schedule C could not result in a pay reduction for any classified employee,

including game wardens. See id. at 6345 (the pay rider). As of the effective date of the 1997 bill,

the Department reclassified the Field Sergeant Game Wardens to the newly authorized position of

Game Warden V, because their duties matched the legislative description of Game Warden V.

Moreover, as the only non-competitively acquired sergeant position in the Department, Field

Sergeant Game Warden was therefore not a "true" sergeant position, but more appropriately another

rung on the career ladder. However, because of the pay rider forbidding the reduction of any

employee's pay, the so-called "grandfathered" Game Wardens V continued to be paid at their

previous salary (equivalent to the then C-7 salary).

The appropriations act of 1999 created salary increases for all peace-officer positions

in Texas. See Act of Apr. 23, 1999, 76th Leg., R.S., ch. 1589, 1999 Tex. Gen. Laws 5446 , 6262-6263 (effective Sept. 1, 1999). On September 1, 1999, the Department ceased classifying the

grandfathered Game Wardens V at the C-7 level and reclassified all employees in that group at the

C-6 level. As a result, the reclassified Sergeant Game Wardens, formerly paid at the C-7 level of

$42,084, received a salary increase to $44,600 (the new C-6 pay) instead of $51,600 (the new C-7

pay). It is this reclassification, from the C-7 to the C-6 level, that Dearing asserts was unlawful age

discrimination.

Milburn Dearing filed a complaint with the Texas Commission on Human Rights on

February 22, 2000, alleging that reclassification of the grandfathered Game Wardens V from the C-7

to the C-6 pay level constituted age discrimination because it had a disproportionate impact on

employees over the age of forty, (3) because none of the other sergeant positions at the Department

were reclassified. The complaint asserted a class-action claim. The Commission accepted Milburn

Dearing's complaint as timely; noted that the date of the discriminatory act was September 1, 1999;

acknowledged that the complaint was a class-action claim; and issued Milburn Dearing a right-to-sue

letter.

Dearing filed a class-action lawsuit in Travis County district court, alleging age

discrimination and breach of contract, seeking a declaratory judgment that the Department violated

the 1997 and 1999 appropriations acts, and seeking a mandamus to remedy the Department's abuse

in downgrading the grandfathered game wardens to pay level C-6. Dearing also filed a motion to

certify the class, defined as "all Field Sergeant Game Wardens employed by the Texas Parks and

Wildlife Department on September 1, 1999 who were reclassified from pay group C-7 to pay group

C-6 and from Field Sergeant Game Warden to Game Warden V."

The Department filed a plea to the jurisdiction, asserting that (1) the age-discrimination claim was barred because the complaint filed with the Commission was untimely,

plaintiffs failed to exhaust administrative remedies, and the reclassification was legislatively

mandated; (2) the breach-of-contract claim was barred due to sovereign immunity; (3) the mandamus

claim could not stand because a mandamus is an extraordinary remedy to be used only when there

is no other adequate remedy at law, and plaintiffs had asserted various other causes of action

sufficiently adequate; and (4) the declaratory-judgment claim could not stand alone as a cause of

action because the Texas Uniform Declaratory Judgments Act is merely a procedural device for

deciding cases already within the court's jurisdiction. The Department also filed a motion for

summary judgment on four grounds: (1) Milburn Dearing did not file a timely complaint with the

Commission; (2) Milburn Dearing did not file the lawsuit within the statute of limitations; (3)

Milburn Dearing did not exhaust administrative remedies; and (4) the reclassification at issue was

the result of a legislative mandate.

After a hearing, the district court granted the Department's plea to the jurisdiction on

the breach-of-contract, declaratory-judgment, and mandamus claims but denied it as to the age-discrimination claims. It denied the Department's summary-judgment motion. (4) The court also

granted Dearing's motion for class certification. The certification order decreed the trial plan for the

case: "the issues remaining to be tried in this case are: (a) Plaintiffs' disparate impact claims for age

discrimination in violation of Tex. Labor Code Ann. § 21.051 [and defendants' affirmative

defenses]." The Department brought this interlocutory appeal, (5) challenging the court's order

certifying the class and denial of its plea to the jurisdiction.

DISCUSSION

I. Plea to the jurisdiction

Standard of review

A plea to the jurisdiction challenges the trial court's authority to determine the subject

matter of a specific cause of action. Rylander v. Caldwell , 23 S.W.3d 132, 135 (Tex. App.--Austin

2000, no pet.). In order to prevail, the party asserting the plea to the jurisdiction must show that even

if all the allegations in the plaintiff's pleadings are taken as true, there is an incurable jurisdictional

defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to

confer jurisdiction on the trial court. See id. Because subject-matter jurisdiction presents a question

of law, we review the district court's decision de novo . Id. In reviewing a trial court's ruling on a

plea to the jurisdiction, we do not look at the merits of the case; rather, we "construe the pleadings

in favor of the plaintiff," look to the pleader's intent, and accept the pleadings' factual allegations

as true. Id. "The truth of the plaintiff's allegations is at issue only if the defendant pleads and proves

that the allegations were fraudulently made to confer jurisdiction on the court." Id. Further, "a court

deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider

evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep.

Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000).

Timeliness of complaint

The Department argues that its plea to the jurisdiction should have been granted

because Dearing did not timely file his administrative complaint with the Texas Commission on

Human Rights, a prerequisite to suit. See Specialty Retailers, Inc. v. DeMoranville , 933 S.W.2d 490,

491-92 (Tex. 1996). A complaint with the Commission must be filed no later than 180 days after

the alleged unlawful employment practice occurred. Tex. Lab. Code Ann. § 21.202 (West 1996).

A complaint filed with the Commission is mandatory and jurisdictional. Schroeder v. Texas Iron

Works, Inc. , 813 S.W.2d 483, 485-86 (Tex. 1991). In other words, a person claiming that an

employer has violated the Act must file a complaint with the Commission and otherwise exhaust

administrative remedies before filing a civil action alleging violations of the Act. Id. at 488 . The

complaint filed with the Commission must be filed within 180 days after the "alleged unlawful

employment practice occurred," or the complainant's claim is time-barred. DeMoranville , 933

S.W.2d at 491-92 .

Here, the alleged unlawful practice was the reclassification of the game wardens from

C-6 to C-7, which occurred on September 1, 1999--the date on which the 1999 appropriations act

took effect. Until that date, the Department did not have the authority to downgrade the

grandfathered game wardens because such action would have resulted in a decrease in their pay,

which was specifically prohibited in the 1997 appropriations act. See Act of May 29, 1997, 75th

Leg., R.S., ch. 1452, 1997 Tex. Gen. Laws 5535 , 634. Even though the Department may have made

the decision to reclassify the wardens in early August 1999, as evidenced by an inter-office

memorandum, it could not legally do so until the 1999 act became effective. Milburn Dearing's

complaint was filed on February 22, 2000--within 180 days after the 1999 act's effective date of

September 1.

Nonetheless, the Department argues that Dearing's complaint was untimely because

the limitations period begins to run when the employee is informed of the allegedly discriminatory

employment decision, not when that decision comes to fruition or when the consequences of the act

became most painful. See id. at 492-93 . The Department asserts that Dearing knew of the

reclassification by at least August 10, 1999, when he attended a mandatory meeting of game wardens

held in New Braunfels. At this meeting, according to evidence submitted by the Department, the

topic of reclassification "was discussed," and it was "made known to those in attendance" that the

reclassification would become effective September 1, 1999. Alternatively, the Department asserts

that Dearing knew of the reclassification as early as either the 1997 legislation or the 1999

legislation. Each of the three dates the Department asserts began the running of the limitations

period would push Dearing's complaint out of the 180-day filing window and make it untimely. We

disagree with the Department's assertion.

The statute clearly hinges the running of the limitations period on the date of the

"unlawful employment action." See Tex. Lab. Code Ann. § 21.202 . Although DeMoranville holds

that the limitations period begins to run on the date the employee is informed of the unlawful action,

that case concerned an employer's established company policy and unequivocal communication to

the employee that the policy would be enforced as to her, rather than an employer's decision to take

a future action based on new legislation giving it authority for the first time to do so. See

DeMoranville , 933 S.W.2d at 492-93 (holding that employee's notification that she would be

terminated if she did not return to work within one year of start of her medical leave began

limitations period running, rather than date on which she was actually terminated). We find this

distinction significant.

Furthermore, whether Dearing knew definitively of the reclassification prior to

September 1 is a fact question. A trial court must accept the allegations in a plaintiff's pleadings as

true, unless the defendant pleads and proves that they were fraudulently made to confer jurisdiction.

Bland , 34 S.W.3d at 554 . The only evidence in the record going to what Dearing knew prior to

September 1 is slim and does not establish that Dearing knew of the reclassification at any time

before it actually occurred, on September 1. We also conclude that it is unlikely any reasonable

person in Dearing's position would have known prior to September 1 of the reclassification. See

Johnson & Johnson Med., Inc. v. Sanchez , 924 S.W.2d 925, 928 (Tex. 1996) (in wrongful

termination case, statute of limitations begins running when employee receives unequivocal notice

of termination or when reasonable person should have known of his termination). Lastly, the

Commission accepted Dearing's complaint as timely and identified the date of discrimination as

September 1, 1999. See Tex. Lab. Code Ann. § 21.202 (West 1996) (Commission must dismiss

untimely complaint); Gorges Foodservice Inc. v. Huerta , 964 S.W.2d 656, 664 (Tex. App.--Corpus

Christi 1997, no writ) (jury could rationally infer from Commission's issuance of right-to-sue letter

that complaint was timely filed). We therefore hold that Dearing's complaint was timely filed with

the Commission and overrule the Department's first issue.

Single-filing rule

The Department next asserts that the district court erred in not granting its plea to the

jurisdiction because none of the plaintiffs exhausted their administrative remedies prior to filing suit,

depriving the district court of subject-matter jurisdiction. The Department argues that even if

Milburn Dearing's complaint with the Commission was timely filed, none of the other plaintiffs filed

a complaint, and his complaint may not substitute for individual filings by each potential class

member. Because we have concluded that Milburn Dearing's complaint was timely filed, we

proceed to a discussion of whether the other plaintiffs may "piggyback" on his complaint, under the

so-called "single-filing rule." See Mooney v. Aramco Servs. Co. , 54 F.3d 1207, 1223 (5th Cir. 1995);

Anson v. University of Tex. Health Sci. Ctr. , 962 F.2d 539, 540-41 (5th Cir. 1992).

Under federal law, the single-filing rule allows a plaintiff who has not filed a charge

with the Equal Employment Opportunity Commission (EEOC) to piggyback on the EEOC complaint

filed by another person who is similarly situated. Mooney , 54 F.3d at 1223 . Two conditions must

be met for one or more plaintiffs to join individual claims if the named plaintiff filed a timely

administrative charge: the persons attempting to piggyback must be similarly situated to the person

who actually filed the EEOC charge, and the charge must provide notice of the collective or class-wide nature of the charge. Id. Although no Texas court has had occasion to consider applying the

single-filing rule to cases involving complaints filed with the Commission, "it is proper to look to

interpretation of parallel federal laws" when interpreting the Act. Stinnett v. Williamson County

Sheriff's Dep't , 858 S.W.2d 573, 576 (Tex. App.--Austin 1993, writ denied); see also Austin State

Hosp. v. Kitchen , 903 S.W.2d 83, 87-88 (Tex. App.--Austin 1995, no writ) ("Because the Act seeks

to promote federal civil rights policy and because Texas has little case law interpreting the Act, this

Court looks to analogous federal law when appropriate.").

Section 21.201 of the Act provides support for the single-filing rule: "A person

claiming to be aggrieved by an unlawful employment practice or the person's agent may file a

complaint with the commission." Tex. Lab. Code Ann. § 21.201 (West 1996) (emphasis added).

We hold that, under this statute, a person's "agent" could reasonably include a class representative.

The statute at issue in the federal cases provides that "[n]o civil action may be commenced by an

individual under this section until 60 days after a charge alleging unlawful discrimination has been

filed with the [EEOC]. Such a charge shall be filed . . . within 300 days after the alleged unlawful

practice occurred." 29 U.S.C.A. § 626 (d) (West 1999) (emphasis added); Anson , 96 F.2d at 541.

The Texas statute, like the federal one, does not specifically include or exclude the single-filing rule.

Because it is proper to look to interpretation of parallel federal laws, we adopt the single-filing rule

fashioned by federal courts.

The policy behind the federal single-filing rule persuades us that it should apply to

state complaints filed with the Commission:

[I]t would be wasteful, if not vain, for numerous employees, all with the same

grievance, to have to process many identical complaints with the EEOC. As long as

the EEOC and the company are aware of the nature and scope of the allegations, the

purposes behind the filing requirement are satisfied and no injustice or contravention

of congressional intent occurs by allowing piggybacking.

Mooney , 54 F.3d at 1223 (internal quotations and citations omitted). We find that the same policy

applies to a class-action suit filed under the Act when the single, filed complaint adequately puts the

investigative agency and employer on notice of the extent of the allegations. It would be wasteful

of resources for each of numerous plaintiffs to file separate complaints when the grievances are the

same and one complaint could serve the same purpose. Here, there is no dispute that Milburn

Dearing's complaint stated its intent to make the age-discrimination claim against the Department

a class action. We hold that the single-filing rule applies to complaints filed with the Commission,

that all members of the purported class are similarly situated, and that Dearing's complaint

adequately stated its class-action intent. We overrule the Department's second issue.

In a third issue, the Department asserts that its actions in reclassifying the Sergeant

Game Wardens were legislatively mandated and that the legislature's actions were rationally related

to a legitimate state interest, thus not subject to an attack based on age discrimination under Kimel

v. Florida Bd. of Regents . See 528 U.S. 62, 83-84, 91 (2000) (noting that rational-basis review

applies to age discrimination by states and holding that ADEA does not abrogate states' sovereign

immunity from suit by private individuals). However, the Department's reliance on Kimel is

misplaced because the Supreme Court explicitly noted that its holding did not foreclose plaintiffs'

ability to sue states under state age-discrimination statutes. Id. at 91-92 . Furthermore, the

Department has not pointed us to any legislative or statutory references from which we can conclude

that its reclassification actions were required by law. We therefore overrule this issue.

II. Class Certification

Standard of review

A trial court's decision to certify a class must be reviewed for an abuse of discretion,

but a reviewing court must not indulge every presumption in favor of the trial court's ruling. Henry

Schein, Inc. v. Stromboe , 102 S.W.3d 675, 691 (Tex. 2002). Although a trial court has discretion

to rule on class-certification issues, and some of its determinations must be given the benefit of the

doubt--like those based on its assessment of the credibility of witnesses, for example--the trial

court's exercise of discretion cannot be supported by every presumption that can be made in its

favor. It is actual, not presumed, conformance with Rule 42 that must govern. Id. at 691 ;

Southwestern Ref. Co., Inc. v. Bernal , 22 S.W.3d 425, 435 (Tex. 2000); see Tex. R. Civ. P. 42.

Disparate impact

The trial court certified this class to bring an age-discrimination claim based on a

disparate-impact theory of liability. The Department asserts that the class-certification order should

be vacated because disparate-impact claims--the only cause of action for which the class was

certified--are not viable under the Texas statute prohibiting age discrimination. In 1971, the United

States Supreme Court held that disparate-impact claims may be brought under Title VII. Griggs v.

Duke Power Co. , 401 U.S. 424, 431 (1971). Disparate-impact claims arise from "employment

practices that are facially neutral in their treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justified by business necessity." Hazen Paper Co.

v. Biggins , 507 U.S. 604, 609 (1993) (quoting International Bhd. of Teamsters v. United States , 431

U.S. 324 , 335-36 n.15 (1977)). Under a disparate-impact theory, liability may result even without

an employer's discriminatory motive; disparate-treatment claims, by contrast, require proof that age

actually motivated the employer's decision. Id. at 609-10. Although Griggs made disparate-impact

claims available under Title VII, the federal courts have struggled with the applicability of disparate-impact claims under the ADEA. Because the state statute directs us to follow judicial interpretation

of the ADEA in determining the availability of a state disparate-impact theory, we must review this

debate between the federal courts of appeal. But first we begin our discussion with a close

examination of the Texas statute.

Dearing seeks to sue under section 21.051 of the Act. That section prohibits unlawful

employment discrimination on the basis of race, color, disability, religion, sex, national origin, or

age. See Tex. Lab. Code Ann. § 21.051 . Section 21.122 of the act, which specifically addresses

disparate-impact cases, reads:

(a) An unlawful employment practice based on disparate impact is established

under this chapter only if:

(1) a complainant demonstrates that a respondent uses a particular employment

practice that causes a disparate impact on the basis of race, color, sex,

national origin, religion, or disability and the respondent fails to

demonstrate that the challenged practice is job-related for the position in

question and consistent with business necessity[.]

. . . .

(b) To determine the availability of and burden of proof applicable to a disparate

impact case involving age discrimination , the court shall apply the judicial

interpretation of the Age Discrimination in Employment Act of 1967 [ADEA]

and its subsequent amendments ( 29 U.S.C. Section 621 et seq.).

Id. § 21.122 (West 1996) (emphasis added). Subsection (a), which establishes disparate-impact

claims, glaringly omits employment practices based on age discrimination. Subsection (b) addresses

age discrimination separately and hinges the availability of a disparate-impact cause of action on

judicial interpretation of the analogous federal act, the ADEA. The legislature specifically parsed

disparate-impact cases into two categories: those involving age discrimination, addressed in

subsection (b), and those involving any of the six other unlawful acts of discrimination, covered in

subsection (a). Thus, we must review "judicial interpretation" of the ADEA to determine whether

a disparate-impact claim involving age discrimination is available under the Act.

The United States Supreme Court has not directly ruled on the availability of a

disparate-impact cause of action for age discrimination under the ADEA. In Hazen , the Court

focused on legislative intent to prevent age discrimination based on inaccurate and damaging

stereotypes and declined to address disparate-impact claims: "[W]e have never decided whether a

disparate impact theory of liability is available under the ADEA and we need not do so here." See

Hazen , 507 U.S. at 609 (citation omitted). Nevertheless, Hazen cast some doubt on the future of

disparate-impact claims. The Court noted that "disparate treatment . . . captures the essence of what

Congress sought to prohibit in the ADEA." Id. at 610 . The court continued, "[W]hen the

employer's decision is wholly motivated by factors other than age, the problem of inaccurate and

stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age,

as pension status typically is." Id. at 611 . Three concurring justices opined, "[T]here are substantial

arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA."

Id . at 618 (Kennedy, J., concurring). After Hazen , the United States Court of Appeals for the

Seventh Circuit, which had originally recognized disparate-impact suits, reversed its position.

E.E.O.C. v. Francis W. Parker Sch. , 41 F.3d 1073, 1076-77 (7th Cir. 1994). Both the Third and

Sixth Circuits have expressed considerable doubt as to whether a disparate-impact claim based on

age discrimination survives after Hazen , but in neither opinion was the issue squarely before the

court. See Lyon v. Ohio Educ. Ass'n , 53 F.3d 135 , 139 n.5 (6th Cir. 1995); DiBiase v. SmithKline

Beecham Corp. , 48 F.3d 719, 732 (3d Cir. 1995).

Those federal courts of appeal that have found disparate-impact claims available

under the ADEA have based their determination on the similarity between the language in Title VII

and the ADEA. See Criley v. Delta Airlines, Inc. , 119 F.3d 102 , 105 (2d Cir. 1997); Lewis v.

Aerospace Cmty. Credit Union , 114 F.3d 745 , 750 (8th Cir. 1997); E.E.O.C. v. Local 350 , 998 F.2d

641 , 648 n.1 (9th Cir. 1993). However, the majority of federal appellate courts have relied on

distinctions in both the language and the legislative intent behind Title VII and the ADEA to hold

that the disparate-impact theory crafted in Griggs is not actionable under the ADEA. Mullin v.

Raytheon Co. , 164 F.3d 696, 700-01 (1st Cir. 1999), cert. denied , 528 U.S. 811 (1999); Ellis v.

United Airlines, Inc. , 73 F.3d 999, 1006-07 (10th Cir. 1996); Adams v. Florida Power Corp. , 255

F.3d 1322 , 1325-26 (11th Cir. 2001).

The United States Court of Appeals for the Fifth Circuit has recently joined this

majority in concluding that a disparate-impact theory of liability is not actionable under the ADEA

in this circuit. See Smith v. City of Jackson, Miss. , ___ F.3d ___, No. 02-60850, 2003 U.S. App.

LEXIS 23125 , at *34, (5th Cir. Nov. 13, 2003). We proceed to a consideration of the reasoning

behind the holding in Smith and the opinions that it follows.

Smith begins by noting the similarity between the ADEA and Title VII, the statute that

gave rise to the disparate-impact theory of liability based on race-disparate impact, regardless of

motive . Id. at *11 . The language of the ADEA closely parallels that of Title VII, indeed "the

prohibitions of the ADEA were derived in haec verba from Title VII." Lorillard v. Pons , 434 U.S.

575, 584 (1978). It is this similarity that persuaded the Second, Eighth and Ninth Circuits to

recognize disparate-impact claims under the ADEA. See Geller v. Markham , 635 F.2d 1027, 1031-32 (2d Cir. 1980); Leftwich v. Harris-Stowe State Coll. , 702 F.2d 686 , 690 (8th Cir. 1983); Douglas

v. Anderson , 656 F.2d 528 , 531 n.1 (9th Cir. 1981). However, Smith reaches a different conclusion

by noting that the text of the ADEA differs from Title VII in an important respect: Section 623(f)(1)

of the ADEA explicitly provides that an employer may "take any action otherwise prohibited . . .

where the differentiation is based on reasonable factors other than age." See 29 U.S.C.A. § 623 (f)(1)

(West 1999); Smith , 2003 U.S. App. LEXIS 23125 , at *16-17. Neither this exception nor any

parallel provision is found in Title VII. See Smith , 2003 U.S. App. LEXIS 23125 , at *16-17. As the

Fifth Circuit recognized, this difference amounts to "a critical asymmetry" between the two statutes.

Id. ; see also Adams , 255 F.3d at 1325; Mullin , 164 F.3d at 701-02 . When the "other reasonable

factors" exception in the ADEA is read together with its general prohibition against age

discrimination, the resulting construction follows: It is unlawful to "discriminate against any

individual . . . because of such individual's age," except when that employment action is "based on

. . . factors other than age." Smith , 2003 U.S. App. LEXIS 23125 , at *18 (citing Mullin , 164 F.3d

at 702 ). The general prohibition and exception, read together, allow for discrimination against the

protected age group if the discrimination is based on some factor other than age. The Fifth Circuit

reasoned that, if the ADEA exception is not understood to preclude disparate-impact liability, "it

becomes nothing more than a bromide to the effect that 'only age discrimination is age

discrimination.'" Id. at *18-19 (quoting Mullin , 164 F.3d at 702 ). "Such a circular construction

would fly in the teeth of the well-settled canon that 'all words and provisions of statutes are intended

to have meaning and are to be given effect.'" Mullin , 164 F.3d at 702 (citation omitted).

In support of this rationale, the Fifth Circuit notes the Supreme Court has held that

a similar exception in the Equal Pay Act precludes disparate-impact claims under that act. See

County of Washington v. Gunther , 452 U.S. 161, 169-71 (1981). Section 206(d)(1) of the Equal Pay

Act provides that wage discrimination on the basis of gender is prohibited, unless the wage

"differential is based on any other factor other than sex." See 29 U.S.C.A. § 206 (d)(1) (West 1998).

Each of the federal circuits that has disallowed disparate-impact claims under the ADEA has relied

on Gunther 's interpretation of the similar "any other factor" exception in the Equal Pay Act to cast

doubt on the availability of disparate-impact claims under the ADEA. See Smith , 2003 U.S. App.

LEXIS 23125 , at *23-24; Adams , 255 F.3d at 1325; Ellis , 73 F.3d at 1008 ; Mullin , 164 F.3d at 702 ;

Francis W. Parker Sch. , 41 F.3d at 1077 . Although the ADEA exception references " reasonable

factors other than age," while the Equal Pay Act omits the word reasonable, both the Fifth and

Eleventh Circuits have found that the ADEA exception makes it more like the Equal Pay Act than

Title VII, which has no such exception. See Smith , 2003 U.S. App. LEXIS 23125 , at *27-28; Adams ,

255 F.3d at 1325 n.6.

Secondly, Smith notes that the legislative history of the ADEA is different from that

of Title VII. The ADEA was enacted after the Secretary of Labor issued a report on age

discrimination recommending that Congress ban arbitrary discrimination, such as disparate treatment

based on stereotypical perceptions of the elderly, but that factors affecting older workers, such as

policies with disparate impact, be addressed in alternative ways. Smith , 2003 U.S. App. LEXIS

23125 , at *31; Mullin , 164 F.3d at 702-03 ; see U.S. Dep't of Labor, The Older American Worker:

Age Discrimination in Employment 2, 6, 21-25 (1965) (Congress should prohibit "arbitrary

discrimination" based on age and age stereotypes, but factors that "affect older workers more

strongly, as a group, than they do younger workers" should be addressed through programmatic

measures to improve opportunities for older workers.). Title VII, on the other hand, had a broad

remedial purpose: To "achieve equality of employment opportunities and remove barriers that have

operated in the past to favor an identifiable group of white employees over other employees."

Griggs , 401 U.S. at 429-30 , quoted in Smith , 2003 U.S. App. LEXIS 23125 , at *31-32; Adams , 255

F.3d at 1325-26 ("history of the ADEA differs from the legislative history of Title VII, which the

Supreme Court in Griggs relied on to find a cause of action for disparate impact"); Ellis , 73 F.3d at

1008 ("legislative history of the ADEA suggests it was not enacted to address disparate impact

claims"). "The cornerstone of Griggs's holding that disparate impact is cognizable under Title VII

is thus the link between the history of educational discrimination on the basis of race and the use of

that discrimination to continue to disadvantage individuals on the basis of their race." Smith , 2003

U.S. App. LEXIS 23125 , at *33 (citing Griggs , 401 U.S. at 432 ). "[A]bsent from the scope of the

ADEA are the historical and remedial concerns that, in the Title VII context, led to the recognition

of disparate impact claims directed at overcoming the consequences of past societal discrimination."

Id.

This distinctive legislative intent to allow disparate-impact claims for Title VII

discrimination but not necessarily for age discrimination is further revealed by comparing subsequent

amendments to Title VII and the ADEA. Congress explicitly added a disparate-impact cause of

action to Title VII in the 1991 Civil Rights Act. See Civil Rights Act of 1991, Pub. L. No. 102-166,

105 Stat. 1071, 1074-75 (1991) (codified at 42 U.S.C.A. § 2000e-2(k) (West 2003)) (hereinafter

cited as Civil Rights Act of 1991); see Ellis , 73 F.3d at 1008 ; Mullin , 164 F.3d at 703 . Although we

can understand little of legislative intent from a body's failure to act, Congress added no such

parallel provision to the ADEA, despite its amendment of other portions of the ADEA. See, e.g. ,

Civil Rights Act of 1991 at 115, 105 Stat. at 1079 (amending time period within which an employee

may file civil actions); Civil Rights Act of 1991 at 302(2), 105 Stat. at 1088 (extending coverage of

ADEA to congressional employees). While courts should ordinarily "tread slowly in premising

statutory construction on the action (or inaction) of subsequent Congresses . . . [,]what transpires in

a later legislative session sometimes constitutes a useful source of guidance in statutory

interpretation cases." Mullin , 164 F.3d at 703 (citations omitted). Therefore, "Congress'[s] insertion

of an express provision for a disparate impact cause of action in Title VII renders the absence of such

a provision in the ADEA--which was undergoing revision at the same time by the same committees

and in the same bill--highly significant." (6) Id.

Dearing insists that the reasoning of the Smith court is irrelevant because, unlike the

federal scheme, the Texas legislature chose to prohibit age discrimination in the same statute that

prohibits discrimination based on race, color, sex, national origin, religion, or disability, and thus

disparate-impact claims should apply equally to all claims of discrimination. Dearing would have

us ignore section 21.122, which states that disparate-impact claims are available for age

discrimination in this state only if they are available under the ADEA. See Tex. Lab. Code Ann.

§ 21.122 . Furthermore, the language in the Act--added in 1995--mirrors the language added to

Title VII in 1991 codifying disparate-impact cases under Title VII, except that the Texas Act treats

disparate impact on the basis of age distinctly by removing it from the list of other forms of

discrimination that give rise to disparate-impact liability. Compare Tex. Lab. Code Ann. § 21.122 ,

with 42 U.S.C.A. § 2000e-2(k) (West 2003). We conclude, therefore, that the textual distinction

between the ADEA and Title VII noted in Smith is specifically mirrored in the Act. Smith has

declared that disparate-impact claims may not be redressed under the ADEA in this circuit. See

Smith , 2003 U.S. App. LEXIS 23125 , at *34. We find the reasoning of the Fifth Circuit persuasive

and hold that there is no disparate-impact theory of liability under the Texas Act. (7)

The trial plan contained in the district court's order certifying the class states that the

plaintiffs' disparate-impact claims for age discrimination and the defendants' affirmative defenses

to such claims are the only issues remaining to be tried in this class action. Because the only

certified class-action claim may not be redressed under the Act, the certification order is therefore

vacated, and the cause is remanded for further proceedings consistent with this opinion. See Warner-Lambert Co. v. Mills , 117 S.W.3d 488, 494 (Tex. App.--Beaumont 2003, no pet. h.) (holding that

causes of action for which class was certified were preempted by federal law and thus court lacked

subject-matter jurisdiction to certify class). (8)

CONCLUSION

The district court's denial of the Department's plea to the jurisdiction was proper

because Milburn Dearing's complaint was timely filed with the Commission on Human Rights and,

under the single-filing rule, met the filing requirements for the other class members. However,

because the only cause of action for which the class was certified, a disparate-impact theory of

liability, is not available under the Texas Commission on Human Rights Act, we reverse the class

certification and remand the cause to the district court for further proceedings consistent with this

opinion.

Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed in Part; Reversed and Remanded in Part

Filed: January 8, 2004

1. We will refer to Milburn Dearing by his full name when referring to him in his individual

capacity.

2. There is evidence in the record to suggest that the Department's reclassification of the 131

employees fulfilled a return promise made by the Department or its former Executive Director,

Andrew Sansom, to the Texas Game Warden Association in exchange for the Association's help

with a legislative matter in 1993.

3. Section 21.101 of the Act provides that discrimination on the basis of age is prohibited

against individuals age forty or older. See Tex. Lab. Code Ann. § 21.101 (West 1996).

4. The Department's summary-judgment motion also asserted official immunity on the part

of Andrew Sansom, the Department's Executive Director at the time of the relevant actions

underlying the suit. The district court granted summary judgment in favor of the Department on this

ground only.

5. Although only final judgments are typically appealable, certain interlocutory orders are

appealable by statute, including orders certifying or refusing to certify a class and orders granting or

denying a governmental unit's plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014 (a)(3), (8) (West Supp. 2004).

6. The Fifth Circuit did not accord much significance to the congressional inaction in adding

a disparate-impact claim to the ADEA but merely noted in passing the distinction with Title VII.

Smith v. City of Jackson, Miss. , ___ F.3d ___, No. 02-60850, 2003 U.S. App. LEXIS 23125 , at *7

n.1, (5th Cir. Nov. 13, 2003).

7. Dearing argues that this Court is not bound by Fifth Circuit precedent on issues of federal

law. See Penrod Drilling Corp. v. Williams , 868 S.W.2d 294, 296 (Tex. 1993); Barstow v. State ,

742 S.W.2d 495 , 500-01 n.2 (Tex. App.--Austin 1987, writ denied). While we acknowledge the

holdings of Penrod and Barstow , we find that the overwhelming majority of "judicial interpretation"

of the ADEA is in accord with the decision reached in Smith .

8. Because we reverse the order certifying the class on jurisdictional grounds, we do not reach

the Department's final issue of whether the plaintiffs have met the numerosity, commonality,

predominance, and superiority requirements of Rule 42. See Tex. R. Civ. P. 42.