David Yates Apr. 1, 2013, 10:17am

On Thursday the Ninth Court of Appeals of Texas affirmed a summary judgment ruling in favor of Motiva Enterprises in an age discrimination lawsuit.

As previously reported, Tyler resident Kurt Floersheim filed suit against his former employer, Motiva Enterprises, on April 15, 2011, in Jefferson County District Court, alleging he was laid off so that two younger men could replace him.

A year later, on April 25, 2012, Judge Bob Wortham, 58th District Court, granted a summary judgment motion brought by Motiva.

Court records show that Floersheim appealed the ruling on May 15 to the Ninth District Court of Appeals.

On March 28 justice issued a memorandum opinion affirming the lower court’s ruling.

Motiva filed its motion for summary judgment on Jan. 16, 2012, asserting that Floersheim waited 351 days to file his discrimination charge with the EEOC after he was notified that he would be laid off.

The motion states the charge must be filed not later than the 180th day after the alleged unlawful employment practice occurred.

Justices agreed.

“After considering the parties’ arguments, we conclude Motiva’s traditional motion conclusively established that Floersheim’s 180-day filing period commenced on June 15. Further, we conclude that Floersheim failed to demonstrate that a fact issue existed regarding his tolling defense; alternatively, we conclude that Floersheim waived his tolling claim because that claim is not supported by Floersheim’s pleadings,” writes Justice Hollis Horton.

“All of Floersheim’s issues are overruled, and we hold the trial court properly granted Motiva’s motion for summary judgment. The trial court’s judgment is affirmed.”

The incident began on June 15, 2009, when Motiva informed Floersheim that he was being included in a reduction in force. He alleges that the day after he was laid off, Motiva hired two younger specialists to replace him.

“Defendant’s selection process for its reduction in force resulted in the three oldest engineers being laid off (ages 50-65),” the suit states. “No process engineers under 40 were laid off.”

Floersheim is seeking damages for his emotional pain and lost wages.

Houston attorney Gregg Rosenberg represents him.

Motiva is represented by attorney Robert Hambright of the Orgain, Bell & Tucker law firm in Beaumont.

Trial case No. A189-793

Appeals case No. 09-12-00229-CV

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