Opinion
No. 04-05-00663-CV
Delivered and Filed: July 5, 2006.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-04079, Honorable David Berchelmann, Jr., Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Patricia R. Harless appeals the summary judgment granted in favor of United Services Automobile Association ("USAA") in an age employment discrimination case. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Background
On April 28, 2003, Harless was informed that her position as a director would be eliminated in connection with a departmental restructuring. At the time, four director positions existed, and the restructuring required one director position to be eliminated. Harless's position was chosen based on a comparison of the four existing directors' skill sets. Harless was informed that she could continue working for forty-five days and apply for other available positions at USAA. Harless also was informed that she could post for another director's position that would be available when the current director retired on May 30, 2003. Harless continued working the forty-five days but chose not to post for any available positions, including the director's position.
After the vacant director's position was filled by Janel Richards, Harless sued USAA alleging that USAA discriminated against her because of her age in hiring Richards to fill the director position because Richards was younger and less qualified than Harless. USAA filed both a traditional and no-evidence motion for summary judgment which the trial court granted without specifying the grounds for the judgment.
Discussion
One of the grounds asserted by USAA in its motion for summary judgment was that there was no evidence that Harless was replaced by a younger employee or otherwise discriminated against on the basis of age. See Russo v. Smith Int'l, Inc., 93 S.W.3d 428, 435 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (listing replacement by someone younger or otherwise discharged because of age as an element of a prima facie case of age discrimination). Harless admitted that she did not post or apply for the director position for which Richards was hired, asserting her belief that the position should have been offered to her without her needing to apply for it.
If an employer has a formal system of posting vacancies and allowing employees to apply for such vacancies or an employer otherwise has publicized an open position, an employee who fails to apply for that position cannot establish a prima facie case of discrimination. See, e.g., Sembos v. Philips Components, 376 F.3d 696, 702 (7th Cir. 2004) (employer cannot be liable for failing to hire a person who does not apply for a job); Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004) (employee who fails to apply for particular position cannot establish prima facie case of discrimination where employer has formal posting system); Smith v. J. Smith Lanier Co., 352 F.3d 1342, 1345 (11th Cir. 2003) (employee who knew about open position could not establish prima facie case of age discrimination when she chose not to apply); Konowitz v. Schnadig Corp., 965 F.2d 230, 234 (7th Cir. 1992) (noting failure to promote does not lead to inference of discrimination where nothing in record suggested employee applied for other jobs); Wagner v. G.A. Gray Co., 872 F.2d 142, 147 (6th Cir. 1989) (noting former employee failed to state discrimination claim where he failed to apply for available position); Freeman v. Walgreen Co., 2006 WL 229869, at *3-4 (M.D. Ala. Jan. 31, 2006) (granting summary judgment on discrimination claim where plaintiff failed to apply for available positions); Hashimoto v. Dalton, 870 F. Supp. 1544, 1553-54 (D. Haw. 1994) (rejecting discrimination claim where plaintiff was given opportunity to apply for position but did not apply), aff'd, 118 F.3d 671 (9th Cir. 1997); see also Bowen v. El Paso Electric Co., 49 S.W.3d 902, 908 (Tex.App.-El Paso 2001, pet. denied) (noting Texas courts look to federal law in interpreting provisions of Texas Commission on Human Rights Act).
Although the rule for establishing a prima facie case of discrimination is different in contexts where the employee has no way of knowing of the availability of a position, the evidence is undisputed that USAA posted the position for which Richards was hired and that Harless was informed of her ability to post or apply for that position. Because Harless chose not to apply for the position, she cannot establish a prima facie case of age discrimination.
Conclusion
The trial court's judgment is affirmed.