United States Court of Appeals

Fifth Circuit



## FILED

January 24, 2005

Charles R. Fulbruge III

Clerk In the United States Court of Appeals

For the Fifth Circuit

_________________________

No. 04-20418

_________________________

FRED MACHINCHICK,

Plaintiff - Appellant,

versus

PB POWER, INC. d/b/a/ PARSONS BRINCKERHOFF,

Defendant - Appellee.

_________________________

Appeal from the United States District Court

For the Southern District of Texas

_________________________

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A recently terminated employee brought suit against his former

employer asserting c laims for age discrimination pursuant to the

Age Discrimination in Employment Act (ADEA) and the Texas

Commission on Human Rights Act (TCHRA). Following a hearing, the

district court granted the employer’s motion for summary judgment

with respect to both o f the employee’s claims. We reverse and

remand for trial.

I

In 1996, Fred Machinchick was hired by PB Power Inc. to serve

as a director of busine ss development in the Houston area. His2

primary job duty was to develop new energy sector clients for PB

Power. In both 1997 and 1998, he received reviews describing his

job performance as “excellent,” and was promoted to Vice President

in 1998. In December 2001, Jim Knowlton, a Vice President located

in PB Power’s San Francisco office, became Machinchick’s new

supervisor. In January 2002, PB Power changed its business

development philosophy by implementing a “cradle-to-grave” strategy

under which busin ess development personnel such as Machinchick

would be required to initiate new business prospects, and shepherd

those prospects through the sales process to closing and beyond.

Prior to the implementation of this strategy, business development

personnel had been required only to develop new prospects, and then

turn those prospects over to other PB Power personnel who would

prepare sales presentations and close contracts.

In January 2002, PB Power released a business plan in which it

described as one of its competitive advantages its intention to

“hand-pick employees whose mindset resides [sic] in the 21st

Century, who are highly qualified to do their job, and who are

motivated toward the success of the company.” In an e-mail dated

April 7, 2002, Knowlton announced the continuation of his

“recruiting plan” to “strategically hire some younger engineers and

designers to support and be me ntored by the current staff.” On

April 9, 2002, Knowlton sent an e-mail to Elizabeth Erichsen in PB

Power’s human resources department delineating Machinchick’s

shortcomings as an employee, including the accusation that3

Machinchick possessed “[l]ow motivation to adapt to a rapidly

changing business environment and new company management style.”

On April 17, 2002, Knowlton informed Machinchick that he was

b eing terminated due to performance concerns. Although PB Power

had a written disciplinary policy providing that a supervisor

should engage in informal and formal discussions with a problematic

employee before termination, Machinchick received no warnings prior

to his termination. Machinchick was initially told that his last

day at PB Power would be on May 17, 2002, but he later agreed to

stay until May 31 to assist with the turnover of his key client

base and contacts to Mike Betz, an employee assigned to PB Power’s

Chicago office. At this time, Machinchick was 63 years old and

Betz was 42 years old.

Following h is termination, Machinchick sued PB Power in the

189th Judicial District Court of Harris Coun ty, Texas, alleging

that he had been unlawfully fired because of his age in violation

of both the ADEA and the TCHRA. PB Power removed the case to the

United St ates District Court for the Southern District of Texas,

and moved for summary judgment. The district court held two

hearings on PB Power’s motion, and granted it immediately following

the second hearing. Machinchick filed a timely notice of appeal.

II

We review a “grant of summary judgment de novo , applying the1 Bryan v. McKinsey & Co., Inc. , 375 F.3d 358, 360 (5th Cir. 2004).

2 Ce l otex Corp. v. Catrett

, 477 U.S. 317, 322-23 (1986) (quoting F ED

. R.

C IV

. P. 56(c)).

3 Bryan

, 375 F.3d at 360; Little v. Liquid Air Corp.

, 37 F.3d 1069, 1075

(5th Cir. 1994) (en banc) (“We resol ve factual controversies in favor of the

nonmoving party, but only when there is an actual controversy, that is, when both

parties have submitted evidence of contradictory facts.”).

4 29 U.S.C. § 623(a)(1).

4 same standard as the district court.” 1 Summary judgment is

appropriate when “there is no genuine issue as to any material fact

and

. . . the moving party is entitled to a judgment as a matter of

law.” 2 In making this determination, “we view the evidence and all

factual inferences from that evidence in the light most favorable

to the party opposing the motion and all reasonable doubts about

the facts are resolved in favor of the nonmoving litigant.” 3

Machinchick challenges the district court’s grant of summary

judgment as to both his ADEA claim and his TCHRA claim. We will

review the district court’s ruling on each of these claims in turn.

III

A

Under the ADEA, it is unlawful for an employer “to fail or

refuse to hire or to discharge any individual or otherwise

discriminate against any individu al with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 4 We have traditionally

bifurcated ADEA cases into distinct groups: those in which the

plaintiff relies upon direct evidence to establish his case of age5 See Sandstad v. CB Richard Ellis, Inc.

, 309 F.3d 893, 896 (5th Cir. 2002)

(“In employment discrimination cases, a plaintiff may present his case by direct

or circumstantial evidence, or both.”); Wallace v. Methodist Hosp. Sys.

, 271 F.3d

212, 219 (5th Cir. 2001) (same); Russell v. McKinney Hosp. Venture

, 235 F.3d 219,

223 (5th Cir. 2000) (same).

6 490 U.S. 228 (1989).

7 Sandstad , 309 F.3d at 896.

8 411 U.S. 792 (1973).

5 discrimination, and those in which the plaintiff relies upon purely

circumstantial evidence. 5 Plaintiffs presenting direct evidence of

age discrimination may proceed under the “mixed-motive” analysis

set forth in Price Waterhouse v. Hopkins

. 6 The mixed-motive

analysis requires only that a plaintiff produce direct evidence

that “discriminatory animus played a role in the decision at

issue,” after which the “burden of persuasion shifts to the

defendant, who must prove that it would have taken the same action

regardless of discriminatory animus.” 7

Plaintiffs producing only circumstantial evidence of

discriminatory animus, however, must negotiate the burden-shifting

analysis set forth in McDonnell Douglas Corp. v. G reen

. 8 Under

McDonnell Douglas , a plaintiff must first establish a prima facie

case of age discrimination by 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 by9 Rachid v. Jack in the Box, Inc. , 376 F.3d 305, 309 (5th Cir. 2004)

(citations and internal quotation marks omitted); see also Brown v. CSC Logic,

Inc. , 82 F.3d 651, 654 (5th Cir. 1996).

10 See

, e.g.

, West v. Nabors Drilling USA, Inc. , 330 F.3d 379, 384 (5th

Cir. 2003) (noting that once the plaintiff in an ADEA case has established a

prima facie case of age discrimination, the defendant must “produce evidence of

a legit imate, nondiscriminatory reason for its decision to terminate [the

plaintiff’s] employment”).

11 See Sandstad

, 309 F.3d at 896-97; Wallace

, 271 F.3d at 219; Russell

, 235

F.3d at 222-23.

12 See Sandstad

, 309 F.3d at 896-97; Wallace

, 271 F.3d at 219; Russell

, 235

F.3d at 222-23.

6 someone younger, or iii) otherwise discharged because of his age.” 9

Once the plaintiff establishes a prima facie case, the burden of

production shifts to the defendant to p roffer a legitimate

nondiscriminatory reason for its employment action. 10

If the defendant meets its burden, the presumption of

discrimination created by the plaintiff’s prima facie case

disappears and the plaintiff must meet its ultimate bur den of

persuasion on the issue of intentional discrimination. 1 1 A

plaintiff may meet this burden by prod ucing evidence tending to

show that the reason offered by the defendant is pretext for

discrimination. 12 In R eeves v. Sanderson Plumbing, Inc.

, the

Supreme Court found that a plaintiff need not produce evidence of

both pretext and actual discriminatory intent to create a fact

issue on an ADEA claim, holding instead that “a plaintiff’s prima

facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of13 530 U.S. 133, 148 (2000).

14 Sandstad

, 309 F.3d at 897; see Reeves

, 530 U.S. at 148-49 (finding that

when determining whether judgment as a matter of law is appropriate with respect

to plaintiff’s ADEA claim, a court may consider “the strength of the plaintiff’s

prima facie case, the probative value of the proof that th e employer’s

explanation is false, and any other evidence that supports the employer’s case

and that properly may be considered on a motion for judgment as a matter of

law”); Evans v. City of Houston , 246 F.3d 344, 350 (5th Cir. 2001) (“In making

her showing on [the] ultimate question [of intentional discrimination], the

plaint i ff can rely on evidence that the employer’s reasons were a pretext for

unlawful discrimination, and the fac tfinder may still consider the evidence

establ ishing the plaintiff’s prima facie case and inferences properly drawn

therefrom.” (citations and internal quotation marks omitted)); but see Reeves

, 530 U.S. at 148 (noting that in rare circumstances, showing of pretext may not

be sufficient to infer discrimination, such as when “the record conclusively

reveal[s] some other, nondiscriminatory reason for the employer’s decision, or

if the plaintiff created only a weak issue of fact as to whether the employer’s

reason was untrue and there was abundant and uncontroverted independent evidence

that no discrimination occurred”).

15 Rachid , 376 F.3d at 310; s ee also Reeves

, 530 U.S. at 141 ( “When a

plaintiff alleges disparate treatment, ‘liability depends o n whether the

p rotected trait (under the ADEA, age) actually motivated the employer’s

decision.’ That is the plaintiff’s age must have ‘actually played a role in [the

employer’s decisionmaking] process and had a determinative influence upon the

outcome.’” (quoting Hazen Paper Co. v. Biggins

, 507 U.S. 604, 610 (1993))); West

, 330 F.3d at 385 (“The plaintiff must prove that age ‘actually plated a role in’

and ‘had a determinative influence on’ the employer’s decision-making process.”

(citations and internal quotation marks omitted)).

7 fact to conclude that the employer unlawfully discriminated.” 13

Followi ng the Supreme Court’s decision in R eeves

, we have

found that “[e]vidence demonstrating the falsity of the defendant’s

explanation, taken together with the prima facie case, is likely to

support an inference of discrimination even without further

evidence of [the] defendant’s true motive.” 14

With respect to causation, we have required that a plaintiff

advancing an ADEA claim using only circumst antial evidence prove

that discriminatory animus was the “determin ative basis for his

termination.” 15 As a practical matter, this requirement dictates

that the plaintiff put forward evidence rebutting each one of a16 See Wallace

, 271 F.3d at 220 (“The plaintiff must put forward evidence

rebutting each of the nondiscriminatory reasons the employer articulates.”);

Rutherford v. Harris County

, 197 F.3d 173, 184 (5th Cir. 1999) (A plaintiff “must

provide some evidence, direct or circumstantial, to rebut each of the employer’s

proffered reasons and allow the jury to infer that the employer’s explanation was

a pretext for discrimination.” (quoting Scott v. Univ. of Miss. , 148 F.3d 493,

504 (5th Cir. 1998), overruled on other grounds by Kimel v. Fl. Bd. of Regents

,

528 U.S. 62 (2000))); see also Sandstad

, 309 F.3d at 899 (“[The plaintiff] must

point to evidence creating an issue of fact as to the pretextual nature of the

[employer’s] explanation. Merely disputing [the employer’s] assessment of his

performance will not create an issue of fact.”).

17 See Rachid , 376 F.3d at 309-310.

18 539 U.S. 90 (2003).

19 376 F.3d at 311.

8 defendant’s nondiscriminatory explanations for the employment

decision at issue. 16 Thus, a plaintiff relying upon evidence of

pretext to create a fact issue on discriminatory intent falters if

he fails to produce evidence rebutting all of a defendant’s

proffered nondiscriminatory reasons. This approach differs from

that used in the mixed-motive analy sis, under which a plaintiff

need only prove that discriminatory animus was a “motivating

factor” in an adverse employment decision. 17

In Ra chid v. Jack in the Box

, I nc.

, we altered our ADEA

jurisprudence in response to the Supreme Court’s decision in Desert

Palace v. Costa 18 by holding that direct evidence of discrimination

is not necessary in order for a plaintiff to receive a mixed-motive

analysi s for an ADEA claim. 1 9 We developed an “integrated” or

“modified McDonnell Dougl a s ” approach under which a plaintiff

seeking to establish an ADEA claim using circumstantial evidence

must still demonstrate a pr i ma facie case of20 Rachid

, 376 F.3d at 312 (c itations, internal quotation marks and

alteration omitted).

21 Machinchick held a bachelor’s degree in mechanical engineering from

Villanova University, an MBA from Loyola University, and had 35 years of

experience in relevant fields. In addition, he had received excellent job

reviews and had received no warnings concerning his performance at the time his

9 discrimination; the defendant then must articulate a

legitimate, non-discriminatory reason for its decision to

terminate the plaintiff; and, if the defendant meets its

burden of production, the plai n tiff must then offer

sufficient evidence to create a genuine issue of material

fact either (1) that the defendant’s reason is not true,

but is instead a pretext for discrimination (pretext

alternative); or (2) that the defendant’s reason, while

true, is only one of the reasons for its conduct, and

another motivating factor is the plaintiff’s protected

characteristic (mixed-motive alternative). If a

plaintiff demonstrates that age was a motivating factor

in the employment decision, it th en falls to the

defendant to prove that the same adverse employmen t

decision would have been made regardless of

discriminatory ani mus. If the employer fails to carry

this burden, plaintiff prevails. 20

Under this integrated appro a ch, a plaintiff relying on

circumstantial evidence has two options for survivin g summary

judgment in an ADEA case: (1) the plaintiff may offer evidence

showing that the defendant’s proffered nondiscriminatory reasons

are false; or (2) the plaintiff may offer evidence showing that his

age was a motivating factor for the defendant’s adverse employment

decision.

B

Applying the integrated approach, we first find t hat

Machinchick met his initial burden of establishing a prima facie

case of age discrimination. He produced uncontroverted evidence

that he was qualified for his j ob, 2 1 was terminated, and was awas terminated.

22 Under the ADEA, the protected class is limited to persons at least 40

years of age or older. S ee 29 U.S.C. § 631(a). As noted above, Machinchick was

63 years old when he was terminated.

23 Palasota v. Haggar Clothing Co. , 342 F.3d 569, 576 (5th Cir. 2003)

(quoting Bodenheimer v. PPG Indus., Inc. , 5 F.3d 955, 957 (5th Cir. 1993)).

24 Machinchick, incidentally, was n ot one of the employees originally

copied on the e-mail.

10 member of the protected class at the time of his termination. 22 PB

Power contends that Machinchick failed to meet the fourth prong of

his prima facie case – that he was replaced by a younger worker –

because it d id not hire or reassign an individual to assume his

position. Rather, PB Power contends that Machinchick’s position

was eliminated following his termination, and that Be tz served

merely as a temporary intermediary between PB Power and

Machinchick’s former clients.

We need not decide whether Betz replaced Machinchick because

Machinchick may establish the fourth prong of his prima facie case

with evidence that he was “otherwise discharged because of his

age.” 23 Machinchick presented evidence showing that weeks before

he was terminated, Knowlton sent an e-mail to several PB Power

employees 24 discussing his intent to go forward with his plan to

“strategically hire some younger engineers and designers.”

Although PB Power argues that this plan applied only to engineers

and designers hired in its San Francisco office, Knowlton testified

in his deposition that the hiring plan was represented in PB

Power’s business plan for 2002

– which applied generally to all of25 Bienkowski v. Am. Airlines, Inc.

, 851 F.2d 1503, 1507 n.4 (5th Cir.

1988); see Rachid

, 376 F.3d at 315 (“Comments to look ‘sharp’ and co mments

concer ning an employee’s willingness to ‘adapt’ to new systems are rather

nebulous, but they allowed Bienkowski to avoid summary judgment.”); Hansard v.

Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1466 (5th Cir. 1989) (“Indirect

references to an employee’s age can support an infere nce of age

discrimination.”).

11 PB Power’s operations

– via the goal of hiring employees whose

mindsets reside in the “21st Century.” Taken together, Knowlton’s

e-mail and PB Power’s business plan provide evidence that PB Power

intended to assemble a younger workforce, creating an inference

that Machinchick’s age was a factor in his termination.

Second, Machinchick point s to Knowlton’s use of “age

stereotyping remarks” as evidence that he was terminated because of

his age. In his e-mail to Elizabeth Erichsen describing

Machinchick’s shortcomings, Knowlton claimed that Machinchick had

a “[l]ow motivation to adapt” to change. Knowlton expounded upon

t his claim in his deposition, describing Machinch ick as

“inflexible,” “not adaptable,” and possessing a “business-as-usual

attitude.” We have found that purely indirect references to an

employee’s age, such as comments that an employee needed to look

“sharp” if he were going to seek a new job, and that he was

unwilling and unable to “adapt” to change, can support an inference

of age discrimination. 2 5 Thus, Knowlton’s description of

Machinchick in both his e-mail and deposition gives rise to an

inference that Machinchick was terminated because of his age.

Third, Machinchick produced evidence that PB Power treated him26 We have found that a plaintiff may satisfy the fourth prong of a prima

facie case in a Title VII suit by presenting ev idence that he was terminated

while “others who were not members of the protected class remained in similar

positions.” Meinecke v. H&R Block of Houston , 66 F.3d 77, 82 (5th Cir. 1995).

With respect to ADEA claims, however, we have held that a plaintiff may satisfy

the fourth prong of his prima facie case w ith evidence that he was “otherwise

discharged because of his age.” See West , 330 F.3d at 384; Palasota , 342 F.3d

at 576. Although the ADEA test differs from the Title VII test, evidence of

disparate treatment may sti ll logically suggest a discriminatory motive for

purposes of establishing a prima facie case of age discrimination.

27 See Guthrie v. J.C. Penney Co.

, 803 F.2d 202, 208 (5th Cir. 1986)

(finding that an employer’s repeated and harassing inquiries into a 60 year-old

employee’s retirement plans constituted some evidence of discriminatory intent).

12 in a disparate manner by terminating hi m while retaining the

younger, similarly situated Mike Betz. Although we do not address

whether Betz replaced Machinchick, we find that his retention

coupled with Machinchick’s termination gives rise to an inference

that Machinchick was terminated because of his age. 26

Fourth, Machinchick presented evidence that, immediately

following his first meeting with Knowlton, he was asked by Knowlton

when he planned on retiring. This inquiry, although potentially

innocuous, constitutes some evidence giving rise to an inference of

discriminatory motivation behind Machinchick’s termination. 27

By presenting evidence sufficient to establish a prima facie

case of age discrimination, Machinchick shifted the burden of

production to PB Power to articulate a le gitimate, nondiscriminatory reason for its decision to terminate him. PB Power

met this burden by alleging that Machinchick was terminated due to

his inadequate performance under the new “cradle-to-grave” business

plan, his refusal to adapt and modify his personal marketing plan28 On appeal, PB Power raised additional reasons such as Machinchick’s lack

of interest in preparing presentations, h abit of continuously marketing old

contacts, failure to conduct himself in a profession al manner and set a good

example for other employees, failure to work well with PB Power’s Regional Vice

President in Houston, and failure to follow-up on a business development

opportunity with Tractebel. Because we can find no indication that these reasons

were adequately raised below, we will not consider them on appeal. S ee Abbot v.

Equity Group, Inc.

, 2 F.3d 613, 629 n.56 (5th Cir. 1993 ) (limiting review on

grant of summary judgment to the “record before the district court when it

ruled.”); Topalian v. Ehrman

, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992) (“This

court’s inquiry is limited to the summary judgment record before the trial court:

the parties cannot add exhibits, depositions, or affidavits to support their

positions on appeal, nor may the parties advance new theories or raise new issues

to secure reversal. Facts not presented at trial cannot be asserted on appeal.”

(citations omitted)).

13 in order to implement the cradle-to-grave strateg y, and his

“business-as-usual” attitude after the new strategy was

implemented. 28

Because PB Power articulated legitimate, non-discriminatory

reasons for its decision to terminate Machinchick, the presumption

of discrimination created by Machinchick’s prima facie case drops

from the case, leaving him with the ultimate burden of proving

intentional discrimination. As we have observed, Rachid provides

that an ADEA plaintiff may now meet his ultimate burden by

producing circumstantial evidence sufficient to create a fact issue

as to whether the employer’s non-discriminatory reasons are merely

pretext for discrim ination, or whether the plaintiff’s age was a

motivating factor in his employer’s decision to terminate him.

Machinchick first contends that he met his ultimate burden by

presenting evidence rebutting each of PB Power’s non-discriminatory

reasons for terminating him. In response to PB Power’s allegation

that he failed to perform adequately under the cradle-to-grave29 Although PB Power correctly notes that its policy is not mandatory, and

that Machinchick was an at-will employee, these facts do not eliminate the

inference of pretext raised by its failure to follow an internal company policy

specifically stating that it should be “followed in most circumstances.”

30 In his deposition, Mike Betz indicated that it would take six months

for an employee to develop a sufficient track record under the cradle-to-grave

plan in order to be comprehensively evaluated.

14 marketing plan, Machinchick presented evidence that he had

developed five “key prospects” as of April 2002, and had closed a

sale to Marathon Oil only months before his termination. In

addition, he offered as evidence of his good performance the fact

that he was terminated without being afforded a single verbal or

written wa r ning pursuant to PB Power’s progressive discipline

policy, 29 and that he received compliments from Knowlton’s superior,

Rod Ragan, for his work on the Marathon sale. Finally, he produced

evidence that he was given insufficient time to be comprehensively

evaluated under the cradle-to-grave plan, 30 and that his accounts

were transferred to Mike Betz, a less-experienced employee who had

not closed a sale under the cradle-to-grave plan.

PB Power contends that Machinchick’s evidence fails to rebut

its accusation that he maintained a “business-as-usual” attitude

following the implementation of the cradle-to-grave strategy, and

that he generally failed to adapt to the new strategy. Machinchick

counters that the new philosophy was “not much different” from what

he had been doing all along, and that he had “no problem adapting

to a new company management style.” This evidence is not

sufficient to raise a fact is sue as to Machinchick’s willingness31 Rachid

, 376 F.3d at 310 (citations and internal quotation marks

omitted).

32 Id

. at 312; see Mooney v. Aramco Servs. Co.

, 54 F.3d 1207, 1217 (5t h

Cir. 1995) (“[U]nder [the mixed-motive analysis], once a plaintiff presents

direct evidence of discrimination, the burden of proof shifts to the employer to

show that the same adverse employment decision would have been made regardless

of discriminatory animus.”).

33 Mooney

, 54 F.3d at 1216 (“Although Price Waterhouse can be characterized

as a method to prove discrimination, the mixed-motives theory is probably best

viewed as a defense for an employer.”); see also Price Waterhouse , 490 U.S. at

246 (“[T]he employer’s burden is most appropriately deemed an affirmative

defense: the plaintiff must persuade the factfinder on one point, and then the

employer, if it wishes to prevail, must persuade it on another.”). By requiring

the plaint iff to prove that discrimination was a motivating factor, and then

placing the burden of proving that the employment decision would have been made

even absent discrimination on the employer, we effectively empl oy a “but-for”

standard of causation. However, once the presence of discrimination as a motive

has been established, the burden of persuasion rests with the employer to

disprove that such discrimination had a determinative or causal effect upon its

decision. S ee Price Waterhouse

, 490 U.S. at 249 (noting that a court that finds

for the plaintiff under this standard “has effectively concluded that an

illegitimate motive was a ‘but-for’ cause of the employment decision.”).

15 and ability to adapt to the cradle-to-grave strategy.

We need not rest here, however, because Machinchick also

argues that he raised a fact issue as to whet her his age was a

motivating factor in PB Power’s decision to terminate him. In a

mixed-motive case involving an employment decision based on a

“mixture of legitimate and illegiti mate motives,” the plaintiff

need only prove that the illegitimate motive was a moti vating

factor in the decision. 31 Once the plaintiff meets this burden, the

employer may seek to avoid liability by proving that it would have

made the same employment decision in the absence of the

illegitimate discriminatory motive. 32 The employer’s burden on this

score is effectively that of proving an affirmative defense. 33

When considered as a whole, we find that the evidence3 4 See Robinson v. Guarantee Trust Life Ins. Co.

, 389 F.3d 475, 4 81 n.3

(5th Cir. 2004) (“Failure adequately to brief an issue on appe al constitutes

waiver of that argument.”).

35 T EX

. L AB

. C ODE A NN . § 21.125(a) (Vernon 1996) (emphasis added).

36 47 S.W.3d 473, 481 (Tex. 2001).

16 presented by Machinchick would allow a reasonable jury to find that

his age was a motivating factor in PB Power’s decision to terminate

him. As a result, PB Power could prevail on summary judgment only

by establishing that it wou ld have terminated Machinchick even

absent considerations regarding his age. PB Power has neither

briefed nor argued this point on appeal. 34 Thus, we find that

summary judgment was not proper with respect to Machinchick’s ADEA

claim.

IV

In his second point of error, Machinchick argues that the

district court erred in granting summary judgment on his TCHRA

claim. The TCHRA provides that an “unlawful employment practice is

established when the complainant demonstrates that

. . . age

. . .

was a motivating factor for an employment practice, even if other

factors also motivated the practice.” 35 In Q uantum Chemical Corp.

v. Toennies

, the Texas Supreme Court held “that ‘a motivating

factor’ is the correct standard of causation for the plaintiff in

all TCHRA unl a wful employment practice claims,” regardless of

whether the plaintiff relies on direct or indirect evidence to

bui ld his case. 3 6 Case law following T oennies has confirmed that37 See Wal-Mart Stores, Inc. v. Canchola

, 121 S.W.3d 735, 739 (Tex. 2003)

(“In discrimination cases that have not been fully tried on the merits, we apply

the burden-shifting analysis established by the United States Supreme Court.”);

accord Kokes v. College

, 148 S.W.3d 384, 391 (Tex. App.–Beaumont 2004, no pet.);

City of Austin Police Dep’t v. Brown

, 96 S.W.3d 588, 596 (Tex. App.–Austin 2003,

pet. dism’d); Russo v. Smith Int’l, Inc.

, 93 S.W.3d 428, 433-34 (Tex.

App.–Houston [14th] 2002, pet. denied).

38 See Russo v. Smith Int’l, Inc. , 93 S.W.3d 428, 435 (Tex. App.–Houston

[14th] 2002, pet. denied); Hartis v. Mason & Hanger Corp. , 7 S.W.3d 700, 705

(Tex. App.–Amarillo 1999, no pet.).

39 Kokes , 148 S.W.3d at 391; Russo , 93 S.W.3d at 437.

40 Kokes

, 148 S.W.3d at 393. The Kokes court phrased this requirement in

more general terms as follows: “If the employer meets its burden of production,

the only relevant question is whether the plaintiff presented evidence the

17 at summary judgment, the McDonnell Douglas burden-shifting analysis

still applies to discrimination claims brought under the TCHRA. 37

In order to establish a prima facie case of age discrimination

under the TCHRA, a plaintiff must prove that she “(1) is a member

of a protected class; (2) was discharged; (3) was qualified for the

position from which she was discharged; and (4) was either replaced

by someone outside the protected class, re placed by someone

younger, or was otherw ise discharged because of her age.” 3 8 Once

the plaintiff establishes a prima facie case, the “bu rden of

production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the disparat e treatment.” 3 9 If the

employer comes forward with nondiscriminat o ry reasons for the

employment decision, the plaintiff is “required to show either 1)

the reasons were not true but, rather, were a pretext for

discrimination, or 2) even if the reasons were true, another

motivating factor was . . . age.” 40employer made its decision based on race, gender or age, despite the employer’s

proffered explanation.” I d. at 391 (citing Raytheon Co. v. Hernandez

, 540 U.S.

44 (2003); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 507-08 (1993)).

18 We can detect no meaningful distinction between this analysis,

and the one we now apply to ADEA claims following our decision in

Rachid

. Thus, we find that summary judgment was improper on

Machinchick’s TCHRA claim for the same reasons that it was improper

on his ADEA claim.

V

Because Machinchick presented sufficient evidence to raise

genuine fact issues under both the ADEA and the TCHRA with respect

to whether his age was a motivating factor in PB Power’s decision

to terminate him, we reverse the judgment of the district court and

remand this case for trial on the merits.

REVERSED and REMANDED for trial.