May 4, 2012
Sixth Circuit Age Discrimination Case Offers Primer
An age discrimination (ADEA) case decided by the Sixth Circuit Court of Appeals on April 17, 2012 provides a succinct primer regarding federal age discrimination cases, procedural balancing tests and common evidentiary issues. The case provides a good, concise opportunity to review and refresh our recollection about these issues.
The case is Brooks v. Davey Tree Expert Company, and it was filed in the Middle District of Tennessee. The District Court granted summary judgment to the employer, finding that the employer had presented a legitimate, non-discriminatory reason for terminating the Plaintiff's employment, and that the Plaintiff had not presented sufficient evidence from which a jury could reject that reason. The Court of Appeals reversed the summary judgment and remanded the case for trial.
In this case, the employee was a long-term employee who was assigned a new supervisor in 2007. The employee said that the new supervisor made multiple age-biased comments to him and about him, such as "you're too old to be doing that kind of stuff any more," and "I still think you're too old." The employee also submitted evidence that, after his termination, the supervisor said he was "firing the old guys and bringing in the new guys because they were more teachable."
The employer said that the Plaintiff's employment was terminated following an accident, and that the accident might have been prevented if the Plaintiff had conducted a required job briefing and had not been away from the scene when the accident occurred. The Plaintiff argued that these were pretextual reasons.
The Court of Appeals recited the familiar "three-step framework developed in McDonnell Douglass... and modified by Burdine" for discrimination cases based upon circumstantial evidence. It then discussed how a Plaintiff-employee can refute the "legitimate, nondiscriminatory reaons" offered by the employer. Specifically, the Plaintiff-employee can show that the employer's reason or explanation: (1) had no basis in fact (that is, the Court said, the events never happened or the explanation was factually false); (2) did not actually motivate the employer's decision (that is, the Court said, the sheer weight of circumstantial evidence of discrimination makes it more likely than not that the employer's reason was a pretext or coverup"); or (3) was insufficient to warrant the employer's decision (that is, the Court said, other employees were not subjected to the same employment action for similar conduct).
The employer argued that it had an "honest belief" that its termination decision was proper, and therefore, was non-discriminatory, based upon Seventh Circuit authorities. The Court explained that the Sixth Circuit follows the "modified honest-belief approach," which requires an examination of the "particularized facts" before the employer at the time of the decision. The ultimate question is whether the employer made a "reasonably informed and considered decision," in light of those particular facts? If so, then the employer's decision was not motivated by discriminatory motives.
The Court also explained that, on the one hand, courts are not to "micro-manage" the employer's decisions, but on the other hand, they are not to "blindly assume that an employer's description of its reasons is honest."
Finally, the Court discussed the effect of the alleged age-biased remarks by the supervisor. The supervisor was not the eventual decision-maker regarding Plaintiff's termination. The Court noted that, in the Sixth Circuit, "discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext." In considering the relevance of the alleged remarks, the court should focus on (1) the identity of the speaker (including whether the speaker may have played a "meaningful role" in the decision), (2) the substance of the remarks, and (3) whether they were singular or multiple.
Once again, this case has been remanded for further proceedings and possibly for trial. However, the Sixth Circuit Court of Appeals' decision gives us a good opportunity to look at the basics and common issues in a fairly typical ADEA age discrimination case.