FYI
 -----Original Message-----
From: 	V&E Newsletter <dtexar@velaw.com>@ENRON [mailto:IMCEANOTES-V+26E+20Newsletter+20+3Cdtexar+40velaw+2Ecom+3E+40ENRON@ENRON.com] 
Sent:	Thursday, March 15, 2001 5:15 PM
To:	Derrick Jr., James
Subject:	Vinson & Elkins Labor & Employment e-LERT

VINSON & ELKINS LABOR & EMPLOYMENT E-LERT
___________________________________________________________
Disregarding some federal cases to the contrary, the Supreme Court of Texas
has held that the correct standard of causation applicable in all TCHRA
discrimination cases is the "motivating factor" standard.  Accordingly, the
Court found that the trial court erred by refusing to give a "motivating
factor" instruction in this pretext case.  Prior federal court decisions
addressing Title VII "pretext" cases had required a plaintiff to demonstrate
that the protected characteristic was a "determining factor" in the decision
at issue. These federal cases indicated that the "motivating factor"
standard was applicable only to "mixed motive cases" in which the plaintiff
had direct evidence of discrimination.

Also troubling for Texas employers is the Court's secondary holding
regarding the plaintiff's evidence of age discrimination.  The company
terminated the plaintiff's employment for documented poor performance.
Because the plaintiff offered anecdotal evidence from co-workers suggesting
that he was a good performer, the court determined that he had produced
sufficient evidence of pretext to get to the jury, citing Reeves v.
Sanderson Plumbing Prods. Inc., 120 S.Ct. 2097 (2000).  As suggested by the
dissenting judges, this holding could mean that a plaintiff can avoid
summary judgment in a poor performance case by producing some evidence of
positive performance feedback

For a detailed summary of the decision, please see
http://www.velaw.com/pubs/labor/laboralert03-01b.htm
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