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Employment Law Click here for the full text of this decision The trial judge’s submission in the jury charge of the phrase “one of the reasons” instead of “motivating factor” for discharge was not error. FACTS:In Thomas A. Gilley’s age discrimination claim against the Dallas County Sheriff’s Department, the trial court submitted the following instruction to the jury: “Do you find that Thomas Gilley was at least 40 years old, that he was not promoted to Deputy Sheriff, and that his age was one of the reasons that he was not promoted?” The jury ruled that Gilley was not promoted to deputy sheriff due to age discrimination, and the department appeals. HOLDING:Affirmed. The court disagrees with the department’s argument that the phrase “motivating factor” should have been used in the jury charge instead of “one of the reasons.” Under the Age Discrimination in Employment Act, it is “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The trial court’s instruction tracked the federal pattern instructions; and even though the Texas pattern jury charge uses the phrase “motivating factor,” that term is later defined as being “a reason for making the decision at the time it was made. “ The court also rules the trial court did not abuse its discretion by excluding one of the department’s exhibit, a memo from a department sergeant to its legal counsel, as hearsay. The department’s argument for why it should be allowed at trial �- as a reflection of the witness’ then-existing state of mind -� does not coincide with its argument on appeal -� that the memo was a public record. Even if the trial court’s ruling was incorrect, it did not lead to an improper judgment, the court finds, because its contents were cumulative of other evidence. OPINION:Whittington, J.; Whittington, Richter and Rosenberg (sitting by assignment), JJ.

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