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Donald Kilgore’s employment was terminated at the end of his second multi-year stint as a school bus driver in Brookeland ISD.  Though he was 72 at the time and his employer allegedly made a comment regarding his eligibility for retirement, a district judge held that Kilgore was not a victim of age discrimination.  Judge Judith Guthrie demonstrated the analysis courts are likely to apply in employment discrimination cases.

“School districts, like other employers, are often faced with difficult employment decisions due to budget constraints,” said Jesse Blakley, an associate attorney in the Houston office of Walsh, Anderson, Gallegos, Green & Treviño, P.C.  “A perception that an individual was discriminated against simply because he or she alleged it in a lawsuit can only be corrected with facts relevant to the employment decision.”

In the case of Donald Kilgore, relevant facts included shrinking resources that called for the paring down of bus routes.  One route was to be eliminated.  There were two drivers who had “performance issues” and the district chose to terminate Kilgore’s employment.  Thus, the district cited the elimination of a route, along with the previous performance issues in support of its decision.  When the financial situation became more clear, the district decided to reinstate the eliminated route, but did not rehire Kilgore to drive it.  “If a district makes an employment decision based upon a legitimate, nondiscriminatory reason and without discriminatory motive…the district’s decision will be ultimately validated in court,” said Blakley.

Uniquely suited to comment on the ins and outs of the Kilgore decision is Blakley: the lead litigator in the Houston office where he works is Jim Byrom, who served as lead counsel for Brookeland ISD in this case.  I asked Blakley if good-natured ribbing about, say, a person’s age, could present problems for employers and their lawyers later on.  “Regardless of the intent of a comment…all school district personnel should refrain from taking part in any conduct that could be perceived as discriminatory.”

Central to Judge Guthrie’s decision was the question of whether or not the employer’s alleged comment concerning Kilgore’s retirement eligibility constituted a direct and unambiguous statement of discrimination.  She did not think so, writing that “it requires an inference that Plaintiff’s age played a part in the decision to terminate his employment.”

Referring to the Age Discrimination in Employment Act, Blakley noted that “an age-based comment is only probative of an employer’s discriminatory intent if the comment is direct and unambiguous and would permit a jury to conclude without any inferences or presumptions that age was an impermissible factor in the employment decision at issue.”

That said, Blakley went on, employees are more likely to file a claim if their perception of the work experience was negative, and it is in everyone’s best interests to avoid “inaccurate perceptions.”  Along those lines, employers must not assume that an employee is not up to a task based solely on age.  “Employers should always be certain to objectively evaluate an employee’s performance.”

Meanwhile, Donald Kilgore’s attorney has filed a Notice of Appeal in the Fifth Circuit, so we may hear about this case again.  Look for updates in future issues of Texas School Administrators’ Legal Digest.


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