Open season on anyone forty or over.

Sieber v. Carson and Brookshire Grocery Company (Published Memo): If you are forty or over when you get hired, it’s presumed that there’s no age discrimination if you get fired.

Sieber got hired at age sixty seven when he granted hunting privileges to a Brookshire’s manager.  Five years later, Sieber revoked the privileges on grounds that the manager and his son were bringing too many other people onto the land.  The manager vowed to get Sieber.  Six years later, after several write ups, the manager canned the seventy-eight year old Sieber.  Sieber sued, claiming retaliation, intentional infliction of emotional distress, and age discrimination.

The retaliation claim fails.  The law protects employees from certain types of on-the-job retaliation.  Disputes over hunting privileges isn’t one of them. See Tex. Lab. Code Ann. § 21.055 (Vernon 2006).  I suppose this means that the manager could have fired Sieber immediately without there being any unlawful retaliation.

An intentional infliction of emotional distress claim requires more than a typical employment dispute.  By the way, unpleasant and unfair actions are part of a typical employment dispute.  Even if Sieber was terminated over his age or the hunting privileges, that’s not “atrocious, and utterly intolerable in a civilized community.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).

The worst of it is that, since Sieber was over forty when he was hired, it’s presumed that Brookshire’s didn’t discriminate based on age.  Ouch.  I turn forty this month.

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