A question in Kanen v. DeWolff, Boberg & Assocs. was whether the plaintiff presented a fact issue about a prima facie case of age discrimination; specifically, as to whether he had been “replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of his age.” The Fifth Court found a sufficient question to avoid summary judgment on that point, noting two matters in particular. First –

“Because Kanen presented evidence DeWolff retained and hired substantially younger market analysts after his employment was terminated, and because DeWolff considers the market analysts to be interchangeable and claimed Kanen’s accounts would be randomly assigned to other analysts and conceded that Kanen’s replacement ‘could be anyone in the office,’ a jury could determine that Kanen’s job duties were distributed to younger workers.”

And second –

“In addition, contrary to DeWolff’s assertion of how accounts are assigned, Kanen established market analysts are assigned to a specific outside salesperson and territory. A jury could conclude that DeWolff’s explanation as to how accounts are assigned is not credible and infer that the individual, or individuals, who took over his accounts were among those Kanen identified as being substantially younger than himself.”

No. 05-20-00126-CV (Jan. 18, 2022) (mem. op.).

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