This employment case involved only Texas state law, but it was removed on the basis of diversity jurisdiction. Slip op. at 1. Greystar moved for summary judgment on McCann’s age and disability discrimination claims, arguing that the 63 year-old apartment maintenance technician had not suffered an adverse employment action, had not been replaced by someone outside the protected class, was neither disabled nor perceived as disabled, and was subjected to adverse action (if there was any) for legitimate non-discriminatory reasons, vis, he had failed to secure a trash trailer that was later stolen. Id. McCann submitted evidence that, in response to the trailer theft, he was given the choice of resigning or termination, thus raising a fact issue on adverse employment action. Id. at 6. McCann demonstrated that his replacement was much younger and, therefore, outside the protected class. Id. at 7. Deposition testimony from a Greystar manager undercut the trailer incident as a basis for his threatened termination. Id. at 10. In combination with McCann’s testimony that his supervisor called him an “old man,” suggested he had Alzheimer’s, and fretted he might die in one of the apartments, Magistrate Judge Austin determined the evidence created a fact issue over whether Greystar’s professed reasons were pretext for discrimination. Id. at 9-10. He therefore recommended that Judge Yeakel deny Greystar’s motion. Id.
