Texas Parks & Wildlife Dept v. Dearing

This is an interlocutory appeal from the re-certification of a class action following this Courts reversal and remand of the original certification order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (West 1997 & Supp. 2006). Appellees Milburn Dearing, Kenneth Head, and Mike Warren, individually and on behalf of others similarly situated (collectively, Dearing), sued their employer, the Texas Parks & Wildlife Department, alleging a disparate-impact theory of age discrimination under chapter 21 of the Texas Labor Code in regard to the Departments reclassification of their game-warden positions. See Texas Parks & Wildlife Dept v. Dearing, 150 S.W.3d 452, 466 (Tex. App.--Austin 2004, pet. denied) (Dearing I), cert. denied, 544 U.S. 960 (2005); see also Tex. Lab. Code Ann. § 21.051 (West 2006). The plaintiffs sought certification of a class of approximately 130 fellow game wardens whom they claim were similarly situated. Eighty-eight of the putative class members have since intervened as plaintiffs. The district court denied a plea to the jurisdiction and summary-judgment motions asserted by the Department and certified the class.