REPORT OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT SUBCOMMITTEE OF THE AMERICAN BAR ASSOCIATION SECTION OF LABOR AND EMPLOYMENT LAW COMMITTEE ON FEDERAL LABOR STANDARDS LEGISLATION

February 19, 2009 Covering Developments from January 1, 2008 to December 31, 2008

CHAIR Jeremy J. Glenn

CONTRIBUTING CASE EDITORS Daniel Bell

Denise Fields

Ana Olman

Karen Cain

Eric Iskra

Jenna Rinehart Rassif

Christopher Carino

Spencer Kinderman

Melody Rayl

Douglas Darch

Martha Lemert

Felicia Reid

Kerry Davidson

Evan Lison

Amanda Wachuta

Glenn Duhl

Mia Martin

Kristen Weisse

Donna Galchus

Nikki Odom

Christina Winston

TABLE OF CONTENTS1 Page

Chapter 4.

Against Whom a Charge May Be Filed Under the ADEA.....................1

Chapter 6.

Retaliation...................................................................................................1

Chapter 7.

Hiring ..........................................................................................................7

Chapter 8.

Promotions................................................................................................10

Chapter 9.

Monetary Compensation .........................................................................11

Chapter 10.

Employee Benefit Programs....................................................................12

Chapter 11.

Exit Incentives and Early Retirement Programs..................................13

Chapter 12.

Mandatory Retirement............................................................................13

Chapter 13.

Reductions In Force.................................................................................14

Chapter 14.

Harassment...............................................................................................16

Chapter 15.

Constructive Discharge ...........................................................................17

Chapter 16.

Discharge ..................................................................................................17

Chapter 19.

Disparate Treatment................................................................................28

Chapter 20.

Adverse Impact ........................................................................................32

Chapter 21.

EEOC Structure Jurisdiction, and Process ...........................................37

Chapter 22.

Timeliness and Sufficiency of ADEA Administrative Charge.............37

Chapter 23.

Judicial Jurisdiction, Timeliness, and Venue ........................................41

Chapter 25.

Evidence ....................................................................................................42

Chapter 27.

Summary Judgment.................................................................................45

Chapter 28.

Jury Trials ................................................................................................48

Chapter 30.

Defenses.....................................................................................................49

Chapter 32.

Public Employee Litigation.....................................................................49

Chapter 35.

Arbitration................................................................................................53

Chapter 38.

Collective Bargaining Agreements and Union Obligations .................54

Chapter 39.

Remedies ...................................................................................................54

Chapter 40.

Attorneys’ Fees and Costs .......................................................................55

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Based on the Table of Contents from Barbara T. Lindemann and David D. Kadue, Age Discrimination in Employment Law (2003) with 2007 Cumulative Supplement (Jeremy J. Glenn, ed., BNA Books 2007).

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Chapter 4.

Against Whom a Charge May Be Filed Under the ADEA I.

Employers

Fichman v. Media Center, 512 F. 3d 1157, 102 FEP Cases 816 (9th Cir. 2008) The 9th Circuit affirmed that members of the Board of Directors and independent program producers for a community cable access channel were not “employees” under the ADEA. Accordingly, defendant did not employ a sufficient number of employees (20+) to be an “employer” subject to the requirements of the ADEA. Members of the Board were not ADEA employees for the following reasons: Media Center did not hire or fire directors, the Board selected its own members; the directors each had full-time jobs independent of Media Center and were not compensated by Media Center; Media Center did not supervise or regulate the directors’ work; directors did not share in the day-to-day responsibilities of Media Center staff, but rather spent approximately 2-4 hours a month on Media Center work; the Board was governed by bylaws that the Board itself adopts; the directors did not report to someone higher in the organization in any traditional way; and the committees of the Board reported to the Board, but not to a chief executive officer. Likewise, the directors’ understanding of their roles supported a conclusion that the directors were not employees. In depositions, the directors stated they considered themselves volunteers and not employees. The plaintiff did not produce any employment agreements or testimony to contradict these depositions or to suggest that Media Center intended its directors to be treated as employees. Furthermore, with respect to the independent producers, plaintiff produced no evidence of a traditional employer-employee relationship or master-servant relationship between Media Center and the producers. To the contrary, the record established that Media Center did not have the power to hire or fire the producers; it did not supervise them in a traditional employeremployee manner; and the producers were not paid a salary or entitled to employee benefits. Chapter 6.

Retaliation II.

The Parties A.

Person Retaliated Against

Vinnett v. General Elec. Co., 271 Fed. Appx. 908 (11th Cir. 2008) Former employee brought several discrimination claims against former employer, including age discrimination claim. Plaintiff was upset over a negative performance review he received and filed a complaint with the employer’s “internal dispute resolution process” that went to arbitration. The parties settled, and the plaintiff released all claims for an agreed amount of money and other consideration including the company continuing to “use [his] wife, Leena, as a contractor for GE Power Systems for six months, although she could be terminated for cause, which included GE's ‘discontinuation of Leena Vinnett’s services as the result of purchasing services through a company different from the one which currently employs Ms. Vinnett.’” The wife’s company’s contract was up for renewal with GE and it ultimately lost the contract to a competitor before the settlement agreement was signed. The wife did not tell her employer of the settlement agreement until after she was informed that she would be terminated. Several months later, plaintiff filed a charge with EEOC claiming retaliation and demanding his

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wife be given a “permanent position” with GE. After EEOC found no violation, plaintiff filed suit in federal court alleging age discrimination and retaliation. The district court found that the former employee had released all claims in the settlement agreement and that “[he] had no viable claim relating to Leena’s loss of employment because he had suffered no ‘adverse action,’” and there was no evidence of a causal connection between Leena’s loss of employment and his discrimination complaints. Plaintiff appealed. The 11th Circuit held the settlement agreement valid because plaintiff knowingly and voluntarily entered into it, and GE did not breach the agreement because it decided to purchase services through a company other than Plaintiff’s wife’s company. As to the retaliation argument, he claimed his wife’s termination was retaliation against him. The court affirmed summary judgment because there was no causal relationship between any statutorily protected activity by Plaintiff and actions taken by GE after it entered into the settlement agreement since the wife’s former employer, the decision-maker, did not know about the settlement agreement when it decided to terminate her. III.

The Participation Clause

Stone v. Geico Gen. Ins. Co., 2008 WL 2191777 (11th Cir. May 28, 2008) The 11th Circuit reversed summary judgment for the employer on Plaintiff’s unlawful retaliation claim, holding that Plaintiff had engaged in protected activity. Plaintiff claimed defendant terminated her in retaliation for reporting to a human resources manager that her direct manager had told her to scrutinize three employees who were over the age of 55 and that the manager had told her that she wanted one of the older employees “gone” because she was “too slow.” The Court held that Plaintiff’s report constituted protected expression under the ADEA because she had an objectively reasonable belief that her manager had engaged in unlawful employment practices when she made the report. That 8 months passed between Plaintiff’s report and her discharge did not destroy causation because the decision-maker who discharged Plaintiff had learned of the report only a month prior to the discharge. The pertinent date for measuring temporal proximity is the date that the individual decision-maker learned of the protected activity, and not the date that defendant knew of the report. B.

Challenged Employer Practice Need Not Be Unlawful

Amin v. Akzo Nobel Chemicals, Inc., 2008 WL 2796955 (2d Cir. July 22, 2008) Although the 2nd Circuit affirmed the trial court’s dismissal of Plaintiff’s age discrimination claims, it vacated and remanded his retaliatory discharge claim. First, the trial court erred in dismissing the retaliation claim for lack of administrative exhaustion. In reiterating that a “loose pleading” standard applies at the EEOC investigation stage, the court found that Plaintiff’s retaliatory discharge claim was “reasonably related” to his underlying age, religion and national origin discrimination claims. Although Plaintiff had not checked the retaliation box on the standard form, an EEOC investigation into the stated allegations would necessarily involve a review of the employer’s preferred reasons for the discharge. Second, the trial court erred in holding that Plaintiff’s complaints did not constitute protected activity. As the alleged conduct need not be unlawful, Plaintiff’s complaints referencing “discrimination,” “cultural 2

ladders,” and “racism” were sufficient. Third, suspicious timing of Plaintiff’s termination, which occurred after he was instructed to stop making complaints, raised a question of fact regarding the employer’s stated business reasons and prevented the entry of summary judgment in the employer’s favor (the employer claimed that the employee had a history of insubordination and difficulty working with others). V.

The Adverse Employment Action

Boland v. Town of Newington, 2008 WL 5220942 (2d Cir. Dec. 16, 2008) Plaintiff was terminated from a clerk position with her small town. She sued the town, claiming she was discharged because of her age. The case ultimately settled for a confidential sum and the execution of a release which provided a $5,000 penalty if either party breached the confidentiality provision. Plaintiff was subsequently appointed to fill a vacancy on the Town’s police department building committee. The next day, another local newspaper published an article about the committee and Plaintiff’s appointment and noted, without identifying a source, that Plaintiff had previously settled a lawsuit against the town for an estimated $40,000. Plaintiff assumed the Town had leaked the settlement amount and sued for $5,000 for breaching the confidentiality provision, and for retaliation under the ADEA. After confirming that Plaintiff could sue her former employer for retaliatory acts that occurred after the termination of the employment relationship, the court noted that the Supreme Court has said that the anti-retaliation provision of the ADEA protects an individual not from all retaliation, but from retaliation that produces an injury or harm. Specifically, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Plaintiff’s evidence of non-economic harm was unpersuasive because her alleged humiliation was wholly unconnected to the settlement sum. Furthermore, there was no evidence that the disclosure constituted material adversity, or that her humiliation was of a severity sufficient to dissuade a reasonable person in her position from filing a discrimination complaint. Lahar v. Oakland County, 2008 WL 5102411 (6th Cir. Dec. 4, 2008) Plaintiff claimed her employer retaliated against her by subjecting her to unjustifiable discipline and scrutiny after she filed an age discrimination lawsuit in state court. The 6th Circuit held that Plaintiff’s claim failed because (1) she could not show a materially adverse action took place; and (2) there was no causal link between the alleged adverse actions and her age discrimination lawsuit. The court explained that a “materially adverse action” is one that would dissuade a reasonable employee from making a charge of discrimination. For a negative performance evaluation to meet this standard, it must significantly impact an employee’s wages or prospect for advancement. Plaintiff lacked such a showing. Plaintiff next argued that a number of her job responsibilities decreased over a three-year span. These loss of responsibilities included: not being asked to serve as a representative at various conferences; not permitting her to contact certain individuals without prior permission; excluding her from observing the arbitration process of her subordinates; excluding her from the hiring process; needing approval before working unpaid overtime; not allowing her to adjust the programming of her section, and preventing her from meeting staff members without their supervisors present. These slights did 3

not to rise to the level of materially adverse as Plaintiff was not asked to do more work or even more arduous work, but instead was asked to do less work after filing her lawsuit. Even if Plaintiff could show a materially adverse action occurred, the Court held that causation was lacking. Normally, temporal proximity alone will not prove causation. In cases where temporal proximity is sufficient, a 5-month gap between the protected activity and the retaliation, as is the case here, is not enough. Moreover, the timing of Plaintiff’s reprimand, which occurred after she again failed to involve her supervisor in a decision, suggests an inference of non-retaliation. That is because an employer committed to retaliation likely acts as soon as the first opportunity arises and does not wait for a second or third problem to arise. VI.

The Causal Connection

Blume v. Potter, 289 Fed. Appx. 99 (6th Cir. 2008) Blume, a former employee of the United States Postal Service with a history of confrontations with co-workers, received a notice of proposed discharge after he violated the terms of a Last Chance Agreement addressing his continuing confrontation issue. The Postal Service decided to allow Blume to use his sick and annual leave up until his retirement on January 31, 2004, which was required under the Last Chance Agreement. Blume brought suit claiming employment discrimination on the basis of age and retaliation. The 6th Circuit affirmed summary judgment for the Postal Service on Blume’s age discrimination claim. Blume did not show that any similarly situated younger employee was treated differently than him. The four co-workers that Blume compared his treatment to were not similarly situated to him; one co-worker was over age 40 at the time of Blume’s termination and the other three were not on probationary status similar to Blume’s Last Chance Agreement. Further, the retaliation claim failed because Blume failed to present a causal connection between his protected consultation with the Equal Employment Office and his receipt of the notice of proposed discharge. A 6-month gap between the protected activity and the adverse employment action, without any other evidence of retaliation, could not support an inference of retaliatory motive. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 102 FEP Cases 889 (6th Cir. 2008) Plaintiff brought suit against his former employer claiming discrimination on the basis of age when his salary and benefits were reduced, and that he was discharged in retaliation for filing a charge with the EEOC. The 6th Circuit affirmed summary judgment because Plaintiff failed to show that defendant replaced him with a substantially younger worker. Plaintiff argued that an employee 21 years younger assumed some of Plaintiff’s duties. However, the record indicated that two older workers had assumed Plaintiff’s primary duties after his separation. The Court held that “a person is not replaced when … the work is redistributed among other existing employees already performing related work,” and affirmed the district court’s denial of the claim. On the retaliation claim, the Court reversed and remanded the trial court’s holding that Plaintiff failed to establish temporal proximity between the filing of the charge and the discharge. The Court determined that unique situations such as this, where Plaintiff was terminated immediately after defendant learned of his EEOC charge, are sufficient to raise an 4

inference that his protected activity was likely the reason for the adverse action, without any other evidence of retaliation. A.

Employer’s Knowledge

Cline v. BWXT Y-12, LLC, 521 F.3d 507, 102 FEP Cases 1859 (6th Cir. 2008) Cline alleged that because of his age his former employer failed to hire him for a technical-specialist position after he was laid off in a RIF. The trial court granted the employer’s motion for summary judgment. The 6th Circuit affirmed, agreeing that Cline’s failure to discredit the company’s stated reason for not hiring him precluded the need to determine whether Cline established a prima facie case. The Court determined that Cline’s status as an external candidate and his failure to list key credentials on his resume, while the three younger, hired individuals all were internal candidates and possessed Q-clearance and various certifications, gave the company “ample reason” not to hire him. However, the Court reversed and remanded Cline’s retaliation claim. Cline claimed that in 2005, after he filed his lawsuit against the company, Mack, a company supervisor, offered him a position to conduct a certification program. After offering Cline the position, Mack was told by another employee that the company was in litigation with Cline, and following company policy not to hire individuals with any current litigation against the company, Mack removed Cline’s offer. Although Mack claimed that he did not know the specific substance of the litigation when he removed Cline’s offer, the Court held that triable issues existed as to whether the company actually knew the specifics of Cline’s claim against the company when it failed to hire him. Triola v. Snow, 289 Fed. Appx. 414, 104 FEP Cases 691 (2d Cir. 2008) Triola, a former special services agent with the United States Customs Service, claimed retaliation on the basis of several events, some which occurred before November 25, 1998 and others which occurred afterwards. Triola’s post-November 25, 1998 claims relied upon the following alleged retaliatory acts: his transfer to JFK airport; a denied transfer request; his removal of assignment from an active case; certain detail assignments; and the retention of his personnel file and resulting delay in his retirement. The lower court dismissed the retaliation claims arising before November 25, 1998 at the close of Triola’s case at trial, and then dismissed the remaining retaliation claims at the end of the trial. According to the trial court, Triola failed to prove knowledge of his protected activity with respect to his pre-November 25, 1998 claims because Triola’s supervisor was not aware of his internal complaints. The 2nd Circuit disagreed and vacated this portion of the ruling. The knowledge requirement does not require anything more than “general corporate knowledge.” VII.

The Employer’s Rebuttal

Bothwell v. RMC Ewell, Inc., 278 Fed.Appx. 948 (11th Cir. 2008) Former employee appealed summary judgment for his former employer on claim of retaliation in violation of the ADEA. Plaintiff was a regional sales manager until the company merged with a sister subsidiary company. During the merger several employees lost their jobs or were reassigned. Plaintiff was initially reassigned to a new sales position. The president at the time of the reassignment stated to Plaintiff that “he wanted ‘younger blood’ at lower levels in the sales division, that Plaintiff “was slowing down and did not have the fire that he had when he 5

was younger.” Plaintiff also lost some of his job functions and he believed that this was the result of age discrimination. On March 19, 2003, his attorney sent a letter to the company president stating the same. The company president responded that “he had ‘lost all respect’ for [him].” The company president died 3 weeks later. In August 2003, Plaintiff filed an age discrimination complaint with the EEOC. He was discharged on November 2003. Plaintiff argued the district court was incorrect in ruling that he did not establish a prima facie case of retaliation. He complained of three adverse actions: (1) the president’s statement that “he had ‘lost all respect’ for [him];” (2) his “assignment to special projects” and (3) his discharge. The court said the statement in question “was not an action that a reasonable employee would find to be materially adverse.” Further, if there was animosity by the former president against Plaintiff, it ceased with his death. Second, even if he stated a prima facie case of retaliation on the other two adverse employment actions, the defendants are still entitled to summary judgment as defendant had a legitimate, non-discriminatory reason for reassigning Plaintiff and discharging him. Plaintiff failed to show the employer’s reasons for the adverse actions, the “deficiencies in his job performance,” his position becoming “redundant” after the merger and “his counterpart at the other [merged] subsidiary [being] more qualified” were pretextual. VIII. Plaintiff’s Proof of Pretext Imwalle v. Reliance Medical Products, Inc. et al., 515 F.3d 531, 102 FEP Cases 1184 (6th Cir. 2008) Imwalle was 62 when he was fired from his position as president of Reliance Medical Products, roughly three months after he filed a charge of age and national origin discrimination with the EEOC. Thereafter, he brought suit against his former employer and its affiliated companies for unlawful discrimination and retaliation. A jury awarded Imwalle $185,000 for his retaliation claim and approximately $250,000 more in attorney’s fees, costs, and interest. Defendants appealed the denial of their motion for judgment as a matter of law. The 6th Circuit affirmed, finding that Imwalle produced sufficient evidence to support the jury’s finding that his employer discharged him in retaliation for protected activity. Imwalle also proved that defendants’ asserted reason for his discharge, poor performance, was pretextual. Imwalle presented evidence to show that the company was satisfied with his performance at the time of termination. The year before Imwalle’s termination, 2003, was the company’s most productive year in its more than 100 years of existence. The jury reasonably could have disbelieved the employer’s explanation for Imwalle’s termination. Further, Imwalle sufficiently showed that retaliation was the greater motivator for his termination. The Court found persuasive the fact that at the opening of the business meeting in which Imwalle was informed of his termination, company officers specifically addressed Imwalle and their confusion over why he would bring a discrimination claim against them. This confrontation coupled with the fact that Imwalle was terminated only three months after he brought his EEOC claim permitted an inference of retaliation in favor of Imwalle.

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Sabinson v. Trustees of Dartmouth College, 542 F.3d 1, 104 FEP Cases 321 (1st Cir. 2008) Plaintiff, a professor, served as Chair of the Theater Department from 1999 to 2002, during which time colleagues, students and administrators complained about Plaintiff’s behavior. The Associate Dean of the Faculty for Humanities determined that the entire Theater Department needed an intensive review. The Associate Dean selected a review committee, which conducted interviews and “compiled an extensive report detailing the number of challenges facing the department.” Although Plaintiff was not mentioned in the actual report, in a confidential cover letter the “committee asserted that there had been widespread criticism of [Plaintiff]” and “strongly urged that she be offered a retirement package” or, in the alternative, “she should be marginalized to certain courses.” The Associate Dean, the Dean of Faculty and the college Provost met with Plaintiff to discuss these options and committee’s findings. The 1st Circuit affirmed summary judgment for the college on Plaintiff’s claims because Plaintiff failed to establish the college’s reasons for offering her early retirement and marginalizing her assignments were pretext for discrimination and Plaintiff failed to establish a prima facie case for retaliation. Plaintiff argued “that the college’s reliance on the review committee was pretextual because the committee was not genuinely examining her qualifications, but was rather appointed and taking action to provide cover for a predetermined adverse action.” The Court opined that Plaintiff’s “evidence did not tend to establish a discriminatory purpose, but rather tended to establish that a preexisting animus against her (unrelated to discrimination) was the reason for the adverse action.” Furthermore, the review committee’s recommendation to “marginalize” Plaintiff if she refused to accept the retirement package was made before Plaintiff filed her complaint. Therefore, the unattractive assignments Plaintiff received after her complaint was filed were the result of a plan implemented “well before” her complaint “and therefore not even arguably caused by the complaint.” The Court found that Plaintiff’s failure to demonstrate causation was fatal to her retaliation claim. Chapter 7.

Hiring II.

Creating the Applicant Pool

McCullough v. Houston County Texas, 2008 WL 4613697, 104 FEP Cases 1516 (5th Cir. Oct. 16, 2008) Plaintiff sued Houston County and the District Attorney for race and age discrimination. Plaintiff was hired by the former district attorney for the county. Following the election of the new district attorney he faxed the clerks other than Plaintiff to see if they wanted to work for him. He thought that Plaintiff would want to work for him in light of the way she had treated him before he was elected. Plaintiff did not come to work or call in sick the first day the new district attorney took office. Plaintiff was replaced and several months later filed a charge of discrimination saying she had been discharged. She alleged that she had received a letter from the previous district attorney saying she had been down-sized and that her employment with the DA’s office would cease before the new district attorney took office. During this period Plaintiff continued to work for the District Clerk’s office and was ultimately fired. Plaintiff alleged retaliation. The district court granted summary judgment and the 5th Circuit affirmed.

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Plaintiff failed to make a prima facie case of discrimination regarding rehire because she did not seek to be rehired. Plaintiff claimed that any efforts by her would have been futile. The court held that her reliance on the “futile gesture doctrine” was misplaced because in the 5th Circuit she was required to show that she was deterred by a known and consistently enforced policy of discrimination and she failed to make this showing. The court also affirmed the summary judgment on her retaliation claim. III.

Selecting From the Applicant Pool

Austin v. Louisiana Generating LLC, 265 Fed. App. 207 (5th Cir. 2008) Plaintiffs were four former employees of Cajun Electric Power Cooperative, Inc. who were not offered the jobs they desired after Cajun sold its assets to Louisiana Generating, LLC. After purchasing Cajun’s assets, defendant downsized the company and decided not to offer plaintiffs the positions they held at Cajun. The court ultimately accepted defendant’s explanations as to why plaintiffs did not receive their desired positions. With regard to the first plaintiff, defendant stated that his communication skills were not as good as the selected individuals. The second plaintiff made known before the acquisition that he was less interested in working for the company after LG purchased the assets. Thus, he could not rebut defendant’s reason for not hiring him was because its management was under the impression that he did not want to work at defendant. The third plaintiff was not offered his original position because management believed he was unwilling to train at another facility. Plaintiff disputed his willingness to train, but he could not disprove that management indeed “believed” that he was unwilling to do so. The fourth plaintiff failed to offer any evidence to rebut defendant’s explanation that he did not have the technical skills that the selected individuals possessed. Cline v. BWXT Y-12, LLC, 521 F.3d 507, 102 FEP Cases 1859 (6th Cir. 2008) Cline alleged that because of his age his former employer failed to hire him for a technical-specialist position after he was laid off in a RIF. The trial court granted the employer’s motion for summary judgment. The 6th Circuit affirmed the district court’s holding, agreeing that Cline’s failure to discredit the company’s stated reason for not hiring him precluded the need to determine whether Cline established a prima facie case. Specifically, the Court determined that Cline’s status as an external candidate and his failure to list key credentials on his resume, while the three younger, hired individuals all were internal candidates and possessed Q-clearance and various certifications, gave the company “ample reason” not to hire him. Cossette v. U.S. Department of Agriculture, 2008 WL 4695119 (1st Cir. Oct. 27, 2008) Plaintiff, a job applicant for a resource assistant position with the Forest Service, sued the Department of Agriculture for failing to hire him due to age discrimination. Plaintiff alleged that the “specialized experience” required for the position was limited to “financially-based experience.” However, the record evidence established that the Department’s experience requirement “related to the natural resources associated with the position sought.” Plaintiff did not possess the requisite specialized experience for the position he sought. Therefore, the 1st

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Circuit affirmed summary judgment for the Department of Agriculture because Plaintiff could not establish a prima facie case of age discrimination. Yeschick v. Mineta, 521 F.3d 498, 102 FEP Cases 1729 (6th Cir. 2008) Yeschick brought suit against the former Secretary of the U.S. Department of Transportation, alleging that the Federal Aviation Administration (FAA) failed to hire him due to his age in violation of the ADEA. The district court granted the FAA summary judgment because 29 C.F.R. §1614.105 requires that an applicant for federal employment must consult the agency’s Equal Employment Opportunity (EEO) counselor within 45 days of any alleged age discrimination. Yeschick could not meet the administrative requirement because the FAA had labeled Yeschick’s application as “inactive” in 2000 due to inaccurate contact information on Yeschick’s file. Due to “inactive” status, Yeschick was no longer an applicant, and therefore could not have experienced any adverse employment action within the 45-days prior to contacting the agency’s EEO counselor in 2002. The 6th Circuit reversed, holding that a genuine issue existed as to whether Yeschick was still an applicant because the FAA had no official policy in which to invalidate applications. The FAA recruitment notice contained language that gave applicants reason to believe their application would remain active “in perpetuity”, and testimony from a FAA Human Resource Specialist indicated that the office policy was to retain “active” status for applicants even when contact information became inaccurate. Joseph v. City of Dallas, 2008 WL 1976619 (5th Cir. May 6, 2008) Joseph applied for a position as a police officer with the City of Dallas and passed the first 5 of 12 steps in application process. However, he failed to pass the 3-officer Applicant Interview Board. Joseph brought an ADEA claim against the city, the Police Chief, and the officers on the interview board. The district court granted summary judgment for the city. On appeal, the 5th Circuit held that the city had offered legitimate, non-discriminatory reason for failing to hire Joseph in that he had failing scores from his Board interviews. Hence, the decision of the district court was affirmed. IV.

Age as a Bona Fide Occupational Qualification for Hiring

Davis v. Indiana State Police, 541 F.3d 760, 104 FEP Cases 347 (7th Cir. 2008) At age 42, Plaintiff voluntarily left his job as a state trooper. Just two months later, he applied to return, but was denied rehire because Indiana regulations require that all applicants for state trooper be under the age of 40 when hired. The district court granted a motion to dismiss, but the 7th Circuit reversed. Although the ADEA contains an exemption for bona fide hiring plans for state law enforcement officers, the 7th Circuit noted that, “Having a bona fide plan is not enough; that plan must be applied to yield the contested decision.” The court noted that the Indiana regulations created an exception when the superintendent and the board deem that an exception is warranted. Because the district court did not examine Indiana’s use of such exceptions, the 7th Circuit remanded the case to permit plaintiff to collect and present evidence on whether the state acted pursuant to its rule.

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V.

Disparate Treatment Theory of Proof C.

The Direct Evidence, Mixed-Motive Model

Van Voorhis v. Hillsborough County Bd. of County Comm’rs, 512 F.3d 1296, 102 FEP Cases 513 (11th Cir. 2008) Plaintiff filed an action against the Defendant alleging age discrimination. Plaintiff, aged 50, applied for a helicopter pilot position. He met all the requirements for the job posting, including a specific requirement for 100 hours of agricultural spraying experience. The person in charge of hiring for the position withdrew the first posting of the position and substituted a new listing, eliminating the spraying requirement. A 40-year old candidate who did not have the spraying requirement was hired to fill the position. Plaintiff presented evidence that a county decision maker presented with plaintiff’s application allegedly said he “didn't want to hire an old pilot.” The 11th Circuit reversed summary judgment for the defendant, holding that the statement that a county decision maker “didn't want to hire an old pilot” is exactly the type of blatant remark that evinces unlawful bias. VI.

Adverse Impact Theory of Proof

McKnight v. Gates, 282 Fed. Appx. 394 (6th Cir. 2008) McKnight, a retired civil service employee, applied for a position with the Department of Defense (“DOD”). Two weeks after he accepted an offer, he received a telephone call that his hiring decision had been suspended due to a DOD hiring freeze. After initially filing a formal complaint with the EEOC, in which he failed to assert any class claim, McKnight filed a class action suit against the Secretary of Defense, alleging violations of Title VII and the ADEA. The 6th Circuit affirmed that McKnight failed to exhaust administrative remedies for his class action claim. A federal employee may not file suit in federal court for age discrimination without having exhausted his administrative remedies. As McKnight never provided EEOC with such notice before filing his class claim, the district court properly dismissed the class claim. The 6th Circuit also affirmed denial of McKnight’s individual ADEA claims under theories of disparate treatment and disparate impact. McKnight argued that age was a motivating factor in the DOD hiring freeze because “annuitant status depends on age and nearly all annuitants are over 40 years of age.” The court noted that federal employees may reach annuitant status in several ways which are independent of age; therefore, annuitants are not a protected group under the ADEA. Chapter 8.

Promotions Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 103 FEP Cases 708 (1st Cir. 2008)

Plaintiff applied for several promotions between 2002 and 2006; however, he was not chosen for any of them. As a result, Plaintiff sued his employer under the ADEA. The 1st Circuit upheld dismissal of Plaintiff’s time-barred claims. The court also rejected Plaintiff’s claim that age bias was the reason he was not promoted to a district manager position in 2006, because the position went to an employee older than Plaintiff. As for Plaintiff’s remaining claims, the court affirmed summary judgment for the employer because Plaintiff failed to establish that the employer’s legitimate reasons for not 10

promoting Plaintiff were pretext for age discrimination. The Court declined to infer an “ulterior motive” or “nefarious intent” behind the fact that an interviewer yawned during Plaintiff’s interview and commented that the position Plaintiff was applying for was “like stepping in a train station, sometimes the doors open and sometimes they don’t.” Finally, Plaintiff failed to provide any evidence that the candidates’ certification scores were used in the selection process apart from validating that each candidate was certified for the position. III.

The Plaintiff’s Qualifications

Barry v. New Britain Board of Education, 2008 WL 5063290 (2d Cir. Nov. 24, 2008) The 2nd Circuit affirmed summary judgment for the employer as to Plaintiff’s claim that his employer terminated his position and did not hire him for a Director of Human Resources position because of his age. Although technically qualified for the job, unlike the former and new Directors, Plaintiff did not have a law degree, which the company believed saved money and increased efficiency. The court held that it must respect the company’s unfettered discretion to choose among qualified candidates. Whitman v. Mineta, 541 F.3d 929, 104 FEP Cases 129 (9th Cir. 2008) An FAA employee claimed that his employer discriminated against him because of his age. The 9th Circuit affirmed summary judgment for the employer on Plaintiff’s claim that a younger employee was promoted to a position he desired. The court determined that Plaintiff could not state a prima facie case because he did not show that he possessed the requisite knowledge and experience to compete for a computer specialist position similar to that obtained by the younger employee. Indeed, the employer denied him the promotion because he lacked the relevant skills, did not show he would be able to handle the job responsibilities, and did not have one year of specialized experience. VI.

Statistical Proof: The Qualified Potential Applicant Pool

Maxwell v. Springer, 274 Fed. Appx. 186 (3d Cir. 2008) The 3rd Circuit affirmed summary judgment as to a federal employee’s ADEA failure to promote claim. Plaintiff applied for a position that would have provided him an immediate promotion to a higher pay grade but was not selected for the position. The 3rd Circuit noted that the record lacked evidence supporting the employee’s claim that he was not promoted due to his age and further noted that almost half of those hired in lieu of the employee were over 40. Chapter 9.

Monetary Compensation VI.

Proving Wage Discrimination

Mudholkar v. University of Rochester, 2008 WL 213888 (2d Cir. Jan. 25, 2008) The 2nd Circuit held that the claim preclusion doctrine applied as a bar to Plaintiff’s claims of wage disparity based on age. In 1997, Plaintiff had filed virtually identical claims against his employer. Applying the Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., the appellate court reasoned that “[a]llegations challenging the continuing disparate effects of discriminatory conduct that has been previously alleged do not constitute allegations of a new violation.” Therefore, claims that the plaintiff had “consistently” been paid less salary and 11

that certain wage inequities had “continued” were nothing new. Similarly, the dismissal of Plaintiff’s claim for failure to exhaust administrative remedies was also appropriate because the challenged “discrete act” occurred outside the 300-day statute of limitations. Even viewed as a hostile work environment claim based upon an “ongoing course of conduct,” Plaintiff failed to “file a charge within 180 or 300 days of any act that is part of the alleged hostile work environment.” Chapter 10. Employee Benefit Programs III.

Discrimination in Benefits After ADEA Amendment by the OWBPA

Kentucky Retirement System v. EEOC, 128 S. Ct. 2361, 103 FEP Cases 897 (2008) The Supreme Court upheld a provision in the Kentucky State pension plan which applied to employees who receive a disability retirement. Under the Kentucky plan, individuals who were disabled before they were retirement eligible were treated more generously than those individuals who were retirement eligible at the point they became disabled. Under the plan, individuals could retire at age 55 with five years of service or after 20 years of credited service. In cases of employees disabled before either of those two events occurred, the plan imputed the necessary number of years required to bring the employee’s credited service to meet the eligibility standards. Employees already eligible to retire received no imputed years of service credit. The case arose when an employee continued to work after age 55 and became disabled at age 61. His actual years of service at that point were 18. He was given a disability benefit and the plan did not impute any additional years of service. EEOC brought suit claiming the pension plan violated the ADEA. The District Court granted summary judgment for the defendant. A panel of the Sixth Circuit affirmed, but the Sixth Circuit granted rehearing en banc, reversed and remanded the matter for further proceedings. The Supreme Court by a 5-4 decision held the plan did not violate the ADEA. The majority turned to the Court’s earlier decision in Hazen Paper Company v. Biggins, 507 U.S. 604 (1993) which also involved the interplay between pensions and the ADEA. Id. at 2366. As the majority explained, in Hazen Paper, it held that discharging a 62-year-old employee with 9½ years of service in order to avoid paying pension benefits that would have vested after 10 years was not age discrimination. Id. It reasoned in Hazen Paper, that a dismissal based on pension status was not a dismissal because of age. The Court noted that in Hazen Paper it had left open “the special case when an employee is about to vest in pension benefits as a result of his age, rather than years of service.” It deemed the Kentucky pension plan a “variation” of the special case theme. Id. at 2367. The majority listed a number of reasons why the Kentucky Plan did not discriminate on the basis of age--some were statements of pure logic or policy. Specifically that pension eligibility under the ADEA was treated somewhat more “flexibly and leniently in respect to age”, the Court observed that Congress itself had approved programs that calculate permanent disability benefits that expressly took “account of age” citing to the Social Security Administration. Additionally, it noted that there was a “clear non-age related rationale” for the disparity in treatment at issue under the Kentucky plan. The Court noted the plan in some circumstances would work to the advantage of an older worker and it did not rely on any of the 12

types of “stereotypical assumptions that the ADEA sought to eradicate”. Id. at 2369. The Court specifically noted the limited reach of its decision, stating that this matter involved a “special case of differential treatment based on pension status.” Id. at 2369-2370. The four dissenters, Justices Kennedy, Scalia, Ginsburg and Alito, found that because age was a factor in an employee benefit plan, it violated the ADEA. The dissenters faulted the majority for failing to define any clear rule of law and relying instead on a “list of policy arguments”. The dissent also criticized the majority’s interpretation of Hazen Paper. Chapter 11. Exit Incentives and Early Retirement Programs III.

Types of Exit Incentive Programs B.

Voluntary Retirement Programs

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 103 FEP Cases 1232 (2d Cir. 2008) Paneccasio, who accepted an early retirement package, filed an age claim against his former employer. Specifically, Paneccasio alleged that Unisource had “induced” him to accept an early retirement package by first offering accelerated vesting of a deferred compensation plan, and then unlawfully terminating the plan (seven years after he retired). Because Paneccasio was not yet receiving any payments under the plan when it terminated, he received a lump sum reimbursement plus 6% interest rather than the present value of future benefits received by other plan participants. Paneccasio sought application of the equitable tolling doctrine to save his otherwise untimely claim. The 2nd Circuit held that equitable tolling was not appropriate. The brochure explaining the accelerated vesting provision of the benefits plan given to Paneccasio at the time he accepted the early retirement package was not false or misleading. Although it did not expressly state the employer’s right to terminate the plan, it did “call into question the continuing validity” of the plan. The brochure also contained a disclaimer incorporating the actual plan documents, including the termination clause. As Paneccasio could not show that he was “kept in ignorance by misleading conduct” by Unisource, his claim was barred because he failed to file a charge within 300 days of the allegedly unlawful employment practice. Chapter 12. Mandatory Retirement IV.

Statutory Exemptions to the ADEA’s Prohibition of Age-Based Mandatory Retirement

Breitigan v. Delaware, 2008 WL 4335948 (3d Cir. Sept. 24, 2008) Former police officer alleged his former employer’s mandatory retirement policy violated the ADEA. He claimed that application of the policy to eliminate his job was unlawful. The 3rd Circuit affirmed judgment entered in the police department’s favor. It found that while the ADEA prohibits age discrimination, it also provides that “governmental employers may adopt and enforce a mandatory retirement age for law enforcement officers and firefighters if certain requirements in § 623(j) are met.” If a “bona fide hiring or retirement plan” is created not to evade the ADEA, it is not unlawful to discharge individuals under those plans. The district court stated that a retirement plan is considered to be bond fide if it is untainted by bad faith, fraud, or deceit and it exists and pays benefits. At trial, the parties were unable to agree to a jury 13

instruction on fraud. On appeal, Plaintiff challenged this instruction. The 3rd Circuit rejected Plaintiff’s arguments and found that the lower court’s instruction was, in fact, “tantamount to the definition that [Plaintiff] urged [] upon district court.” Chapter 13. Reductions In Force I.

Disparate Treatment Claims A.

Prima Facie case

Gupta v. New York City Sch. Const. Auth., 2008 WL 5273120 (2d Cir. Dec. 19, 2008) The 2nd Circuit affirmed summary judgment for the employer on an employee’s claim that defendant failed to promote him on two occasions and fired him as part of a RIF while promoting and retaining younger employees. The court dismissed as mere speculation Plaintiff’s contention that discrimination could be inferred from defendant’s retention/promotion of employees who were less qualified or experienced, and further stated that the court must respect the employer’s “unfettered discretion” to choose among qualified candidates. Plaintiff also acknowledged that defendant’s pre-RIF statistical analysis showed a disparity of less than 2 standard deviations, which is generally insufficient to raise an inference of discrimination. Plaintiff argued there would be greater diversity had he not been fired. The court was quick to point out that the federal anti-discrimination laws do not mandate perfect diversity or a certain ratio of minority and majority groups in the workplace; they prohibit only discriminatory employment actions on the basis of a protected ground. B.

Employer’s Legitimate Nondiscriminatory Reasons

Hinds v. Sprint/United Management Co., 523 F.3d 1187, 103 FEP Cases 145 (10th Cir. 2008) The 10th Circuit affirmed summary judgment for the employer, finding that Plaintiff failed to present evidence from which a reasonable juror could discredit defendant’s legitimate, non-discriminatory reason for discharge. Plaintiff was hired as a senior supervisor in 1994 at age 40. Over the next 10 years, Plaintiff was promoted to a number of supervisory positions and received positive performance evaluations. In 2003, Plaintiff received a negative performance evaluation, which outlined a number of concerns regarding Plaintiff’s ability to effectively communicate with his peers, customers and other supervisors. Then Plaintiff’s immediate supervisor changed to a 42-year old man (at that time, plaintiff was 48). Shortly thereafter, Plaintiff received a second negative performance evaluation, which raised the same concerns regarding Plaintiff’s ability to effectively communicate with customers and other supervisors. Plaintiff rejected the evaluation, indicating that he had a different management style than his supervisors and that his communication style was irrelevant as long as he continued to meet and exceed his work objectives. In 2004, defendant conducted a RIF, eliminating Plaintiff’s entire department. Plaintiff was considered for but not selected for a different position. While defendant created a spreadsheet with each employee’s age, ethnicity, military status and disability, this information was not made available to the decision-makers who ultimately discharged plaintiff. Plaintiff claimed defendant retained younger, similarly-situated employees. Defendant explained that Plaintiff’s termination was the result of the decision to eliminate his department. The court held 14

that Plaintiff failed to proffer any evidence of pretext to undermine the employer’s business decision to eliminate the entire department. Diaz v. Eagle Produce L.P., 521 F.3d 1201, 103 FEP Cases 16 (9th Cir. 2008) Four farm workers sued their former employer under the ADEA after being laid off because of a seasonal slowdown in agricultural activity. Defendant operated a broccoli and melon farm in Arizona and had a fluctuating need for laborers due to the seasonal nature of its crops. Partially reversing summary judgment, the Ninth Circuit found that defendant produced legitimate, nondiscriminatory explanations for laying off 2 plaintiffs, and that 1 plaintiff failed to show his job performance was satisfactory, but defendant did not offer a legitimate, nondiscriminatory explanation for the layoff of the 4th plaintiff. The Court ruled that an employer’s explanation must explain why the plaintiff “in particular” was laid off. The explanation that an individual was discharged as part of a general RIF fails this requirement. Workforce reduction explains why defendant laid off a group of its workers, but it failed to explain why the 4th plaintiff was chosen to be part of that group. Accordingly, his claim was remanded for trial. C.

The Pretext Phase

Sanders v. Southwestern Bell Tele., L.P., 544 F.3d 1101, 104 FEP Cases 833 (10th Cir. 2008) As a result of a loss of business, employer underwent three separate reductions in force (“RIF”) in 2001 and 2002. Plaintiffs, all women between 45 and 56 years of age, were selected for the third RIF, and subsequently filed suit. The district court granted summary judgment in favor of the employer on all claims. The 10th Circuit affirmed in part and reversed in part. The first issue addressed on appeal is the proof of discrimination requirement. One plaintiff presented direct evidence that she was surplused because of her age, yet the district court analyzed her claim using the McDonnell Douglas framework to determine whether summary judgment should be granted. The Court of Appeals held that the district court erred in analyzing plaintiff’s claim under McDonnell Douglas, since that approach applies only to cases based on circumstantial evidence. Accordingly, the court reversed summary judgment as to this single claim under the ADEA. The court then addressed the argument that the employer’s RIF was a pretext for discrimination. The court reasoned that in the context of a RIF, evidence of pretext may take several forms, including but not limited to: 1) the surplus was inconsistent with RIF criteria established by the employer; 2) the RIF criteria was inconsistently applied; and 3) procedural irregularities in the RIF process. In this case, very specific RIF criteria had been established by the employer and were adequately adhered to during the RIF process. A plaintiff cannot establish pretext by claiming that she would not have been surplused if different criteria had been used. Finally, where statistics fail to take into account other nondiscriminatory explanations, those statistics cannot be used to infer pretext.

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Tratree v. BP North American Pipelines, Inc., 2008 WL 1924171, 103 FEP Cases 603 (5th Cir. May 2, 2008) Tratree alleged that during his employment he was the victim of race and age discrimination. Tratree’s district manager testified that the President of BP remarked at a company meeting that “BP does, in fact, discriminate against age.” Further, Tratree presented evidence that a BP personnel representative indicated that Tratree’s position was eliminated because of rumors that he was about to retire. Three months before Tratree was eligible for an early retirement pension, he was informed that his position was being eliminated. Another employee less senior than Tratree continued to perform Tratree’s job functions. This employee was placed in a new classification that Tratree contended he was trained for. Tratree filed suit. The district court granted BP’s Motion for Summary Judgment on his ADEA failure to promote claim, but found that he presented sufficient evidence on his ADEA discrimination and retaliation claims. At trial, however, the court granted BP’s Motion for Judgment on the Law at the close of Tratree’s case. On appeal, the 5th Circuit reversed on the ADEA discrimination claim stating that Tratree presented a question of material fact whether BP’s proffered explanation was the actual reason it eliminated his position because Tratree presented evidence that he had done this job without any complaint about his work performance, and there was thus no question that he was able to do the job. On the retaliation claim, the court found that Tratree did not engage in protected activity because he did not put BP on notice that he was complaining of age discrimination when he complained that the individual that replaced him was being given preferential treatment regarding training for and eventual elevation to the new position. Thus, the decision of the district court was affirmed on the retaliation and failure to promote claim. II.

Adverse Impact Claims

Tubergen v. St. Vincent Hospital and Health Care Center, 517 F.3d 470, 102 FEP Cases 1261 (7th Cir. 2008) The 7th Circuit ruled that a doctor was not discriminated against on the basis of his age when he was subject to a RIF affecting 300 people after restructuring took place within the hospital. Comment made by a decision-maker about getting rid of the “old guard” was not direct evidence because the decision-maker was talking about a different group within the hospital and the term “old guard” does not necessarily refer to old age but to old structures. Also, the doctor's failure to apply for new positions was fatal to his indirect case of age discrimination as the employer had a legitimate, non-discriminatory reason for not placing him in a new position. Chapter 14. Harassment II.

Elements of Prima Facie Cases of Age Harassment B.

The Adverse Employment Action

Francis v. Elmsford School Dist., 2008 WL 345489 (2d Cir. Feb. 8, 2008) Francis, a teacher, filed ADEA claims based upon disparate treatment in reassignment and also under a hostile work environment theory on the basis of age. Francis alleged that she was: a) transferred from teaching second grade in a class room to teaching special education courses in a hallway; b) unfairly transferred among several different teaching assignments; c) 16

provided an uncomfortable chair; d) not given a job description; e) forced to store her personal belongings in a remote area; and f) denied a budget for teaching materials. The trial court granted summary judgment for the employer on both counts, which was affirmed by the 2nd Circuit. Although the appellate court found that Francis had set forth a prima facie case of age discrimination, she had not shown that the employer’s stated reasons were pretextual and motivated by an age-based animus. With respect to Francis’ harassment claim, the appellate court found that the employer promptly remedied the situation when Francis complained. Also, the challenged conditions were not evidence of discrimination, intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim’s employment in any event. Chapter 15. Constructive Discharge II.

The Requirement of Intolerable Working Conditions

Torrech-Hernandez v. General Electric Co., 519 F.3d 41, 102 FEP Cases 1551 (1st Cir. 2008) Torrech, a former plant manager, sued under the ADEA alleging he was terminated or alternatively, subjected to constructive discharge because of his age. The 1st Circuit affirmed summary judgment for the employer. Torrech argued that he was forced to resign under circumstances that amounted to constructive discharge, citing to comments about his “lack of energy” and use of the term “dinosaur” to describe local operations as proof that he would have been fired eventually had he not resigned. The 1st Circuit held that, other than Torrech’s subjective belief, the working conditions at the plant were not so unpleasant Torrech would have felt compelled to resign, nor was there any basis to conclude Torrech’s termination was imminent. The court held that “apprehension of future termination is insufficient to establish a claim for constructive discharge” and further opined that the employer’s unwillingness to accede to Torrech’s increasingly unreasonable demands for severance did not transform Torrech’s resignation into a termination. Chapter 16. Discharge II.

Disparate Treatment Discharge Cases

Kilpatrick v. Tyson Foods, Inc., 2008 WL 624032 (11th Cir. Mar. 10, 2008) Plaintiff alleged that he was fired after 27 years of service and replaced by a much younger person. The District Court granted summary judgment for the defendant, concluding that Plaintiff did not bring sufficient evidence of discrimination. Plaintiff argued that the lower court did not apply the correct definition of “direct evidence,” rejected a showing that the employer’s reason for termination was pretextual, and acted as the ultimate trier of fact. The Court of Appeals affirmed the District Court ruling. Plaintiff presented as direct evidence of discrimination only an email from defendant’s mill manager to his supervisor, where the manager said that he “do[es] understand [Plaintiff’s] years of service with the company but at this point [Plaintiff] is not effectively doing his position.” The Court held that email did not constitute direct evidence of age discrimination. Moreover, Plaintiff acknowledged that he never heard any member of management make any derogatory comment about his age. Plaintiff’s attempt to show a pattern and practice of age discrimination also was rejected. Plaintiffs’ statistical evidence intended to show a pattern of getting rid of older workers. But, 17

said the court, the evidence improperly bunched together all individuals who left defendant for any reason, including those who were fired and those who left voluntarily to take other jobs. Because many of the individuals represented in the statistic left for purely voluntary reasons, the statistic was invalid to show discrimination in a discharge case. B.

Plaintiff’s Prima Facie Case 2.

The Adverse Employment Action [Renamed Topic]

Dewalt v. Meredith Corp., 288 Fed. Appx. 484, 103 FEP Cases 1582 (10th Cir. 2008) Plaintiff worked nearly 30 years as a news photographer for a CBS TV station (Channel 5 in Kansas City). In 2002, the station changed its programming format to focus more on live reporting. After that change, Plaintiff was moved from day shift to night shift, given a series of written and verbal reprimands and subjected to ageist comments from superiors. Plaintiff alleged that the company president “called us dinosaurs over at Channel 5” and “referred once to Old Meredith, which I would think would be the older employees.” Later, a non-manager stated “jokingly” that Plaintiff had been moved to an overnight shift “because you guys are old.” Plaintiff quit in 2004 and filed EEOC charges followed by a lawsuit. The district court dismissed some claims for lack of jurisdiction and granted summary judgment as to the remaining claims. Plaintiff appealed, and the 10th Circuit affirmed. As a threshold matter, the Tenth Circuit agreed that claims based on actions that occurred more than 300 days prior to Plaintiff’s EEOC complaint were untimely, it found that the timeliness issue was an affirmative defense rather than jurisdictional. This error was found to be harmless however, where the issue was properly raised and Plaintiff was afforded full opportunity to litigate it. Therefore, dismissal of certain claims as untimely was affirmed. The 10th Circuit next considered Plaintiff’s disparate treatment claim, and whether any conduct by the employer constituted an adverse employment action. The court stressed that an adverse employment action is an act that constitutes a significant change in employment status, and does not include mere inconvenience or a change in job responsibilities. Plaintiff alleged he expressed a desire to take unused vacation time, and received no response from his supervisor. The court found that if Plaintiff had submitted a formal request for vacation, and that request had been denied, then such an act would be considered an adverse employment action as a denial of benefits. However, no request was submitted in this case. Further, written and verbal reprimands are considered an adverse employment action only if they actually affect the employee’s job status. Such was not the case here. Plaintiff also claimed he suffered an adverse employment action in that he was constructively discharged. The court found that while Plaintiff’s working conditions and move to night shift were unpleasant, they were not such that a reasonable person would have felt they had no choice but to quit. This is particularly true where Plaintiff took no steps to have his shift changed and was never threatened with termination or further disciplinary action. Stressing the need to “filter out offhand comments, and isolated incidents, as well as the sporadic use of age-related jokes and occasional teasing,” the court found that the ageist remarks alleged by Plaintiff were insufficient to show that the “workplace was permeated with discriminatory insult.”

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Dyer v. Paxson Comm. Corp., 2008 WL 596790 (11th Cir. Mar. 6, 2008) Plaintiff appealed the District Court’s grant of summary judgment for the Defendant. Plaintiff claimed the District Court erred in finding that she unsuccessfully presented a prima facie case of age discrimination. The Court of Appeals affirmed, finding, regardless of the formulation used, the Plaintiff failed to present evidence establishing a prima facie case of age discrimination. Her best evidence was that she complained of age discrimination once to Defendant’s human resources manager, and at some point in that conversation, the manager told her that she was “different” from the other employees in her department but did not say how. The Court said that evidence cannot support an inference of age discrimination because it does not indicate how the manager thought Plaintiff was different. Moreover, Plaintiff failed to present evidence that she sought and failed to obtain a promotion, or that a substantially younger person later filled her position after her termination. Hudson v. Shaw Environmental & Infrastructure, Inc., 2008 WL 596762 (11th Cir. Mar. 6, 2008) Plaintiff brought an action against his former employer alleging age discrimination and the District Court granted summary judgment for the employer. Plaintiff asserted that he satisfied the requirements of a prima facie case of age discrimination based upon his age of 69 years, his qualifications for his position, and remarks made by a coworker alluding to his age. The Court of Appeals affirmed the District Court’s decision stating that the Plaintiff failed to establish a prima facie case. Defendant presented evidence that Plaintiff was terminated after disciplinary action had been taken against him and that the defendant had not replaced him with a person outside of his protected class. C.

Employer’s Legitimate Nondiscriminatory Reason

Atanus v. Perry, 520 F.3d 662, 102 FEP Cases 1655 (7th Cir. 2008) Government employee’s age discrimination claims using indirect method of proof failed on appeal. Plaintiff, a contract administrator, claimed that a 10-day suspension, a letter of instruction, verbally abusive language in a meeting and a job transfer were adverse employment actions taken on the basis of Plaintiff's age. The court found that the letter of instruction, the verbal reprimand and the transfer to another position were not adverse employment actions. Verbal language used during a personnel meeting, even if loud and unprofessional in tone, was not based on age, and was not sufficiently severe or pervasive to be a hostile environment. Finally, while the 2-week disciplinary suspension was an adverse employment action, there was no evidence that the employer’s legitimate, non-discriminatory reasons for issuing the suspension were pretextual. Plaintiff’s failure to respond to earlier discipline and cease her insubordinate, disorderly and rude conduct toward co-workers, her supervisors, boss and others in the workplace was an honest reason for the 2-week suspension. Plaintiff failed to show that any employees under 40 had engaged in obtrusive conduct similar to Plaintiff's and not been subject to discipline. Cupples v. AmSan, LLC, 282 Fed. Appx. 205 (4th Cir. 2008) The 4th Circuit affirmed summary judgment in an ADEA suit in which a sales manager alleged that the company’s investigation into sexual harassment allegations made against him was pretextual and that he was discharged because of his age. A female coworker alleged that 19

the sales manager sexually harassed her and the company subsequently conducted an investigation that resulted in the sales manager’s discharge. Plaintiff alleged the investigation was pretextual because the company failed to explore the female coworker’s veracity, it failed to examine what kind of person Plaintiff was, it sought out additional complaints against him and accepted as true the information obtained. The employer contended that Plaintiff failed to heed its warnings that he not speak to the female coworker and that Plaintiff did not keep the complaint or investigation confidential pursuant to company policy. The 4th Circuit noted that the employer presented a legitimate nondiscriminatory reason for the termination. Specifically, there were multiple complaints made against the sales manager; the sales manager breached confidentiality policies; and he ignored the company’s request that he not speak with the female coworker. The court noted that while the sales manager was 62 years old and a member of the protected class, there was no evidence that he received greater discipline than those outside of the protected class or that his misconduct was comparable to that of those outside of the protected class. Lastly, the court rejected Plaintiff’s contention that the investigation was overly aggressive and noted that it would not second-guess the employer’s business judgment. Goldstein v. Sprint United Mgmt. Co., 2008 WL 2914967, 103 FEP Cases 1699 (10th Cir. July 30, 2008) The 10th Circuit affirmed summary judgment for the employer, finding that Plaintiff was unable to show that the employer’s legitimate, non-discriminatory reason for firing him was a pretext for age discrimination. Plaintiff held various management positions in the marketing and advertising department. After 18 years of positive performance evaluations, Plaintiff received a review indicating that his performance had fallen below expectations, placing him within the bottom 10% of defendant’s employees. Plaintiff protested the evaluation and complained that he was being discriminated against on the basis of his age. Immediately after the complaint, Plaintiff was told that the evaluation was the result of “‘errors in judgment . . . by [the] management team.’” Plaintiff was assured that he was meeting expectations and that his job was safe. Nevertheless, Plaintiff’s managers refused to change the substance of the written evaluation, placing Plaintiff within the bottom 10% of all employees. One week later, Plaintiff was told that he had 90-120 days to find new employment because of defendant’s RIF. Plaintiff complained that he was being discriminated against on the basis of his age and in retaliation for his previous complaints of age discrimination. Plaintiff was assured that his job was safe, but that his prior evaluation would remain the same because it reflected accurately plaintiff’s job performance. In 2003, defendant underwent a major company reorganization. At the last minute, after all management positions had been filled, Plaintiff was transferred to the finance department. However, because all of the management positions were filled, Plaintiff did not receive a new position. Plaintiff, along with the other employees who were not selected, was told that he could seek other positions. Plaintiff was unable to find a different position and was terminated. Defendant proffered two legitimate, non-discriminatory reasons for Plaintiff’s termination: (1) by the time Plaintiff was transferred into the finance department, all of the management positions had already been filled; and (2) Plaintiff was not qualified to work in the finance department. The 10th Circuit affirmed summary judgment for the employer, holding that

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Plaintiff failed to proffer evidence to rebut the employer’s legitimate, non-discriminatory reasons for discharge. Hunter v. Rowan Univ., 2008 WL 4874469 (3d Cir. Nov. 12, 2008) Former university administrative assistant alleged she was subjected to retaliation and race, age, and national origin discrimination in violation of federal and state laws, including the ADEA. Plaintiff was a Caucasian female. The district court granted summary judgment for the employer on her federal claims for retaliation and for race, age and national origin discrimination and on her state law claims for race and age discrimination. The 3rd Circuit affirmed the lower court holding that its review was subject to McDonnell Douglas framework. It held that Plaintiff had “adduced only her speculation and disappointment to meet her initial … burden.” It noted that “federal courts are not arbitral boards ruling on the strength of ‘cause’ for discharge. The question is not whether the employer made the best or even a sound, business decision; it is whether the real reason is discrimination.” Jenkins v. Lifetime Hoan Corp., 2008 WL 77775 (7th Cir., Jan. 8, 2008) Summary Judgment for the employer was upheld on appeal. Despite suggestions by the decision-maker that the employee should retire, this did not constitute direct evidence of age discrimination. Further, the employer was found to have legitimate reasons for demotion and later termination of Plaintiff in sales position due to Plaintiff’s failure to use e-mail, make sales appointments and failure to follow procedures for submitting appointment lists. Malloy v. Potter, 266 Fed. Appx. 424 (6th Cir. 2008) Malloy, a discharged Postal Service employee, alleged reverse gender discrimination, age discrimination, and retaliation in violation of the ADEA, as well as a combined claim of harassment and hostile work environment against his former employer. The district court granted employer’s motion for summary judgment because Malloy failed to establish a prima facie case on any of his claims. The 6th Circuit affirmed. Malloy failed to establish that similarly situated non-protected employees were treated more favorably. Nothing in the record supported a finding that employees under 40 were not reprimanded for the unauthorized use of overtime or failure to complete their duties. Further, the court agreed that even if Malloy established a prima facie case of age discrimination, he failed to show that the Postal Service’s non-discriminatory reasons for disciplining and firing him (absenteeism and poor work performance) were pretext for discrimination. Notably, Malloy’s personnel file included numerous documents evidencing warnings and meetings regarding his performance. Mauskopf v. District 20 of the New York Dept. of Ed., 2008 WL 4858810 (2d Cir. Nov. 10, 2008) The 2nd Circuit affirmed summary judgment for the employer where the employer offered uncontradicted evidence that it terminated Plaintiff’s employment because of an unsatisfactory performance review and written complaints by students and teachers alleging verbal abuse and corporal punishment. The court dismissed as speculation and conjecture Plaintiff’s claim that the documents were forged and must have been created for nefarious purposes. The court further noted that the unsatisfactory rating in her performance review,

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without any accompanying evidence of negative consequences, did not demonstrate that Plaintiff was discharged in retaliation for her intervening complaint alleging age discrimination. Mincey v. University of Rochester, 2008 WL 190506 (2d Cir. Jan. 23, 2008) Mincey, a hospital employee, filed an age discrimination claim under the ADEA after she was terminated for fighting with a younger co-worker. The co-worker, who Mincey claimed “hit her first,” was not terminated. The trial court granted summary judgment in the employer’s favor based upon Mincey’s failure to establish a prima facie age discrimination claim or rebut her employer’s proffered reason for her termination. In affirming the trial court’s decision, the 2nd Circuit held that Mincey had met her prima facie burden. The record showed that both employees were guilty of the same infraction, yet only Mincey was terminated. However, the 2nd Circuit agreed that no genuine issue of fact existed regarding the employer’s decision to terminate Mincey for fighting. Even if the hospital was incorrect as to who started the fight, this would not constitute age discrimination. In addition, Mincey provided no support for her conclusory allegations that the employer’s investigation was biased and failed to rebut the employer’s proof that it uniformly terminated employees for fighting. Papasmiris v. District 20 of the New York Dept. of Ed., 2008 WL 4845094 (2d Cir. Nov. 10, 2008) After she was terminated, Plaintiff sued her former employer claiming that her negative performance reviews were a pretext for discrimination based on plaintiff’s age, and that they were issued in retaliation for her filing a charge with the EEOC. However, the employer provided evidence of several non-pretextual reasons supporting termination including letters from parents complaining plaintiff behaved inappropriately on a school trip, evaluations by the school principal citing multiple incidents of misconduct such as yelling at a student, remaining in the building with her class during a fire drill, writing letters to parents and filling out report cards during class, and not providing adequate classroom instruction. Plaintiff presented no evidence that age was a factor in her evaluation. The district court granted the defendant summary judgment and the 2nd Circuit affirmed. As for her retaliation claim, the district court found that Plaintiff began receiving negative performance evaluations prior to filing her EEOC charge. Furthermore, her EEOC claim followed several newspaper articles reporting that other teachers had alleged age discrimination against the school district superintendent. Under these circumstances, gradual job actions that began well before the plaintiff had ever engaged in any protected activity do not give rise to an inference of retaliation. Phillips v. Aaron Rents, Inc., 2008 WL 111038 (11th Cir. Jan. 11, 2008) Plaintiff appealed a grant of summary judgment in favor of Defendant based upon his claim of termination due to age discrimination. Plaintiff was terminated in 2004 when the employer decided to eliminate his position company-wide. The employer did not hire a replacement for the position. The employer did hire a younger individual in the position of assistant manager, and that person assumed many of the duties once performed by the Plaintiff. The Court of Appeals affirmed, finding that Plaintiff failed to demonstrate the reasons given by the employer for termination were pretextual. Evidence that an employer had additional reasons for terminating an employee, even if those reasons were undisclosed, does not 22

prove pretext. If an employer offers different reasons for terminating an employee, those reasons must be “fundamentally inconsistent” in order to constitute evidence of pretext. Plaintiff admitted that he was never told that he was terminated due to his age, and he offered no basis for a belief that the defendant’s decision-makers were biased against him due to his age. Wooler v. Citizens Bank, 274 Fed. Appx. 177 (3d Cir. 2008) The 3rd Circuit affirmed summary judgment as to Plaintiff’s age discrimination claims. Plaintiff was fired for poor performance and subsequently sued based upon two off-color remarks that were made to her: (1) her supervisor stated in front of other staff at a birthday party that he and Plaintiff were too old to remember their fortieth birthdays and (2) Plaintiff’s supervisor asked her whether she had Alzheimer’s disease when she could not locate a form. Plaintiff claimed that her work performance was positive and that she was discharged in retaliation for her complaint regarding these two comments. In affirming the district court’s grant of summary judgment, the court noted the supervisor who allegedly made the comments left the company four months before Plaintiff’s discharge and that she was warned regarding her performance and was given an opportunity to improve her performance and her failure to do so was a legitimate non-discriminatory reason. D.

Plaintiff’s Burden to Show Pretext

Carras v. MGS 728 Lex, Inc., 2008 WL 5273278, 105 FEP Cases 137 (2d Cir. Dec. 19, 2008) Plaintiff, a 62 year old CFO, filed suit under the ADEA after he was terminated by his employer, purportedly for financial reasons. The district court granted summary judgment to the employer. The 2nd Circuit reversed, holding that a jury could find the company’s reasons were pretext for discrimination. In light of the defendant’s poor financial condition, Plaintiff had offered to take a pay cut to $60,000, which is less than defendant paid his replacement, a man 40 years his junior. In addition, Plaintiff’s replacement admitted that he and Plaintiff’s boss had openly joked about Plaintiff’s age on several occasions. Furthermore, Plaintiff’s co-worker repeatedly complained to the boss about Plaintiff’s age. When the boss fired Plaintiff, he stated that he had had enough of that co-worker. The court determined that a jury could reasonably infer from that comment that the boss was influenced by the co-worker and no longer wanted to listen to the co-worker’s frequent complaints about Plaintiff’s age. Dowlen v. Sec. of Veterans Affairs, 2008 WL 2766138 (11th Cir. July 17, 2008). The 11th Circuit affirmed summary judgment for an employer because Plaintiff failed to demonstrate that the reasons offered for his termination were pretextual. Plaintiff, a physician, was terminated because he saw only 10-12 patients per day, rather than the expected 20-25 patients per day, and because he was otherwise inefficient in his work. Plaintiff testified the Chief of Surgery had told him that he was “too fixed in his ways,” and that another doctor had told him that the Chief of Surgery said he wanted only young doctors. The other doctor’s statement was hearsay, and both statements combined to form a “mere scintilla of evidence,” which is insufficient to overcome summary judgment.

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Dowling v. Citizens Bank, 2008 WL 4492640 (3d Cir. Oct. 8, 2008) Plaintiff, a former bank manager, sued his employer for asserting claims under several antidiscrimination laws, including the ADEA. As a bank manager, Plaintiff was responsible for the bank’s operations and supervised a staff of 10-15 employees. The bank initiated an awards program to provide incentives to its employees to open new consumer checking accounts. Plaintiff won a vacation to the Caribbean. Thereafter, the bank received an anonymous letter informing it that Plaintiff was allegedly engaging in improper actions to meet her goals. An investigation pursued and it was revealed that Plaintiff, along with other employees, had improperly opened checking accounts. Plaintiff and another employee were terminated. The bank did not discharge one employee that had engaged in the same activity because she was acting under instruction from Plaintiff and was a less experienced non-management employee. Plaintiff argued the bank had offered inconsistent and shifting reasons for her termination and that, in and of itself, was indicative of pretext. She noted that the bank told her she was terminated because her supervisor had lost confidence in her as a manager. During the EEOC proceeding, Plaintiff pointed out that the bank claimed she was terminated for improper gaming in checking accounts and failure to properly supervise her staff. The 3rd Circuit acknowledged that inconsistency can be indicative of pretext, but in this case the bank’s reasoning was entirely consistent. Specifically, it stated that the EEOC statement simply specified the reasons why Plaintiff’s supervisor lost confidence in her managerial abilities. Next, Plaintiff argued that she did not intentionally violate company policy and, therefore, the bank’s reliance on her “gaming” activities was pretextual. Likewise, the court dismissed this argument stating that as long as the company’s reason for termination “was not motivated by discriminatory animus, we defer to it.” Additionally, Plaintiff claimed that the bank’s reasoning was pretextual because it treated other similarly situated employees more favorably. She identified a male 30-year branch manager whose failure to audit his tellers resulted in a loss to the bank. The 3rd Circuit noted that Plaintiff’s negligent supervision was compounded by her own inappropriate behavior and distinguishable from the other branch manager. It also rejected Plaintiff’s comparison to the other employee who engaged in gaming activities inapposite. That employee was a non-management employee under Plaintiff’s supervision. Accordingly, the bank had a legitimate reason to view that employee as less culpable. Finally, Plaintiff attempted to discredit the bank’s reasoning for her termination by suggesting discrimination more likely than not motivated the bank’s decision. She argued that testimony showed the bank was hiring younger employees to replace older branch managers. This testimony was admittedly based on rumor and nothing more. Plaintiff also offered statistical evidence that only 8 persons over the age 50 were hired out of a total of 39 applicants. The 3rd Circuit found that “[t]his evidence falls short of demonstrating that discriminatory animus was more likely than not a motivating factor in Citizen’s decision to fire” Plaintiff. Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486, 102 FEP Cases 1249 (7th Cir. 2008) The 7th Circuit Appellate overturned summary judgment for the employer as Plaintiff showed a prima facie case of age discrimination. Plaintiff was a material handler replaced by a substantially younger worker. The employer argued that Plaintiff was removed from position because he could not meet all of essential functions after a functional capacity evaluation. It 24

showed he could not lift amount required in job description. The court rejected this argument finding that the job description requiring lifting of 97 lbs. “occasionally,” and 73 lbs. “frequently,” were not essential parts of the job. Pretext could be found from the company's inconsistent litigation positions that Plaintiff met the prima facie case component of meeting the employer’s legitimate business expectations but that it had, nonetheless, a legitimate nondiscriminatory reason for removing Plaintiff from the position due to a purported inability to perform the job. The court also found evidence of pretext where Plaintiff had performed his job even during work restrictions for 7 months and also after the functional capacity evaluation completed. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 103 FEP Cases 1241 (7th Cir. 2008) The 7th Circuit affirmed summary judgment for Sears on a former store manager’s age discrimination claim, finding she failed to provide sufficient evidence of pretext to survive summary judgment. Plaintiff was evaluated regularly to determine the performance of her store. If a district manager felt that a store manager was underperforming, the store manager would be placed on an improvement plan. Plaintiff twice was placed on an improvement plan. Plaintiff did not dispute that she had a history of underperforming. She instead argued that younger store managers with similar issues were given a chance to improve while she was not. The court rejected the notion that any other store managers had a comparable set of failings, such as a long history of poor customer services, an inability to motivate their team, poor management, and mismanaging two important promotional events. Moreover, observing that two store managers who were older than plaintiff adequately performed their job, the court reasoned that a pattern where some protected class members do better and some do worse is not evidence of age discrimination. The 7th Circuit’s approach in such cases is to combine the second element (meeting the employer’s legitimate expectations) and fourth element (favorable treatment of similarly situated employees under age 40) of the prima facie case with the pretext analysis. Thus, if the plaintiff cannot present sufficient evidence of pretext, she cannot show that she was meeting Sears’s legitimate expectations. Sears demonstrated that plaintiff had a record of consistently poor performance and that she poorly executed two marketing events. Her managerial deficiencies were well documented, and she was placed on performance improvement plans. Because no other store manager in the area was similarly situated to plaintiff, she could not raise a genuine issue of material fact. Filar v. Board of Education, City of Chicago, 526 F.3d 1054 (7th Cir. 2008) Plaintiff, an untenured, full-time substitute teacher for bilingual education brought claim against school board under ADEA when she was moved to a roving substitute status. The Court of Appeals held that the teacher had failed to state a mini-RIF-based ADEA claim which requires a showing that the employee's position had been absorbed by remaining younger co-workers and not eliminated in its entirety. But the court did find that Plaintiff could show that two younger teachers were similarly situated to her though she was not tenure track and they were recently placed on tenure track. This was due to the fact that tenure track could be declared by the employer at any time and thus could change the respective seniority of employees in a potentially discriminatory fashion. As a result, the 7th Circuit reversed a grant of summary judgment for the employer on the ADEA claim as a material fact issue existed as to whether the 25

Board's reasons for displacing Plaintiff were pretextual given the timing of the tenure decisions and the displacement of the Plaintiff. Maughan v. Alaska Airlines, Inc., 2008 WL 2372486, 103 FEP Cases 1069 (10th Cir. June 12, 2008) The 10th Circuit reversed summary judgment for the employer, finding a genuine issue of fact as to whether the employer’s stated reason for terminating the plaintiff was a pretext for age discrimination. After working for four years in the same position for defendant, Plaintiff applied for a new managerial position within the company. During Plaintiff’s interview, he was asked to discuss his career goals for the next five years. Plaintiff responded that he planned to be retired by that time. Plaintiff was not selected for the position. Plaintiff’s supervisor stated that he heard the reason Plaintiff did not receive the position was because of Plaintiff’s plan to retire within five years. Plaintiff’s subsequent performance evaluations were negative, despite a history of positive performance evaluations. Plaintiff was terminated based on the negative evaluations. At that time, Plaintiff complained of age discrimination, but defendant failed to conduct an investigation into the complaint. The 10th Circuit found an issue of fact as to pretext. Although employers may inquire into employees’ retirement plans, additional evidence rebutted defendant’s legitimate, nondiscriminatory reason for terminating Plaintiff. Such evidence included: Plaintiff’s supervisor’s statement that he heard Plaintiff was not selected for the position because he planned to retire within five years and evidence indicating plaintiff’s signature on his negative evaluation was forged and defendant altered the evaluation by subsequently attaching additional material further documenting Plaintiff’s performance deficiencies. Falsifying or manipulating criteria may constitute evidence of pretext. Furthermore, defendant acted contrary to its written antiharassment and discrimination policy by failing to investigate Plaintiff’s complaint of age discrimination. Minetola v. Commonwealth Tel. Co., 2008 WL 4748216 (3d Cir. Oct. 30, 2008) The 3rd Circuit upheld summary judgment for employer finding Plaintiff failed to present any issue of material fact that his termination was due to his age. Former employee was reassigned from his manager position to an account executive position and ultimately terminated for poor performance (age 48). The lower court found that Plaintiff failed to offer sufficient evidence of pretext. The record contained evidence of Plaintiff’s performance problems. Plaintiff had not improved his performance and notably failed to even meet his own projected sales forecast. The court rejected Plaintiff’s assertion that a letter from human resources stating that Plaintiff had done his best to sell the product, but the market did not allow him to do so was proof of age discrimination. The court emphasized that the issue is not whether an employer makes the best or even a sound business decision, but rather whether the real reason is discrimination. Finally, it found Plaintiff’s argument that other younger employees were given more time to improve after being placed on a performance improvement plan unpersuasive. The 3rd Circuit noted that both of the employees identified were only a few years younger than Plaintiff and, therefore, did not provide a basis of age discrimination as it did not satisfy the sufficiently younger standard.

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Ramsey v. Labette Co. Medical Ctr., 2008 WL 4672248, 104 FEP Cases 1260 (10th Cir. Oct. 23, 2008) The 10th Circuit affirmed summary judgment for the employer. Plaintiff, in her early 50s, had worked for the hospital for 30 years, rising to the level of Director of Radiology. In 2004, after suffering significant financial loss, the hospital hired a39-year-old as Chief Executive Officer. Plaintiff was counseled by the CEO about her perceived inability to supervise her employees and her open resistance to his proposals for change. Shortly thereafter, the CEO was informed that Plaintiff was advising her employees how to circumvent hospital directives, and Plaintiff was terminated. The 10th Circuit found that while the specificity of the employer’s reasons differed over time, pretext was not shown where the differences were merely elaborations and not inconsistencies. Even where the employer may have been mistaken about its reasons for termination, a mistaken reason may still be a legitimate, non-pretextual reason if the employer honestly believed it and was acting in good faith reliance upon it. Therefore, Plaintiff’s evidence that the employer’s reasons were inaccurate is irrelevant unless it can be shown that the employer knew of the inaccuracy at the time of termination. Williams v. Dover Downs, Inc., 288 Fed.Appx. 29 (3d Cir. 2008) The 3rd Circuit affirmed summary judgment as to two employees’ ADEA claims. The two employees (ages 55 and 52) were discharged after they watched an illegal drag race between two coworkers. The employer stated that the two were discharged because (1) they had recently been issued a warning for insubordination; (2) they failed to report the incident as required by their positions; (3) they blocked entry to the race to prevent interference; and (4) they were held to a higher standard because “of their age and experience.” The 3rd Circuit affirmed summary judgment because the supervisor’s statement that Plaintiffs “had a greater degree of responsibility ... because of their age and experience” is not direct evidence as Plaintiffs were merely discharged because of the “longevity of service” and not their age. Furthermore, Defendant presented a legitimate non-discriminatory reason for the employees’ discharge in that Plaintiffs (1) held positions of some responsibility; (2) blocked entry to the race to prevent interference; and, (3) failed to report the drag race. Hughes v. Brinker Intern’l Inc., 2008 WL 2325645 (5th Cir. June 6, 2008) Hughes contended that he was terminated because of age rather than poor performance and sexually harassing another employee. The record documentation demonstrated that Hughes had received low evaluations on his performance and had been warned about sexual harassment right before his termination. Additionally, Hughes argued that he was not put on probation or suspended prior to termination. However, he failed to show that he was treated differently from others. Hence, Hughes failed to establish pretext. Also, Hughes presented statistical evidence that only 22 of 88 managers in his area were over the age of 40. The court found that, without more, this bare statistic failed to establish pretext. Finally, Hughes argued there was a fact issue as to who made the decision to terminate him under a “cat’s paw” theory but the court rejected that because he failed to show age-based animus by any employee. Hence, the court affirmed the district court’s grant of summary judgment.

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Chapter 19. Disparate Treatment III.

The Prima Facie Case C.

Factors Suggesting A Causal Connection

Baloch v. Kempthorne, 2008 WL 5396825 (D.C. Cir. Dec. 30, 2008) Plaintiff, a Water Rights Specialist for the Department of the Interior, sued for discrimination, retaliation, and hostile work environment under the ADEA, Title VII and the Rehabilitation Act. Affirming summary judgment for the Department, the Court of Appeals agreed that Plaintiff’s discrimination and retaliation claims could not be sustained due to a lack of any adverse action taken against him by his employer. There is no adverse action “merely because an employer adds more people to the team assigned to a particular task, particularly when the addition simply brings the team back to its former numbers.” Here, Plaintiff’s employment duties had been reduced solely due to the expansion of his office to include another Water Rights Specialist as well as a direct supervisor. This change simply restored the office to the same structure and level of manpower that it had four years prior. The Court found the reduction of the Plaintiff’s duties insufficiently severe to constitute the “significantly different—and diminished—supervisory and programmatic responsibilities” that constitute discrimination. As for Plaintiff’s retaliation claim, the court found no materially adverse action in the fact that Plaintiff’s supervisor imposed sick leave requirements, proposed disciplinary suspensions, criticized the plaintiff’s job performance, and engaged in angry outbursts in response to Plaintiff’s infractions. The court affirmed summary judgment on the hostile work environment claim, finding that none of the allegedly offensive conduct targeted a protected status of Plaintiff, and such conduct was not sufficiently severe or pervasive to have effected a change in the conditions of Plaintiff’s employment. 1.

Replacement by Someone “Younger”

Adamson v. Multi Community Diversified Servs., 514 F.3d 1136, 102 FEP Cases 1061 (10th Cir. 2008) The 10th Circuit affirmed that Plaintiff failed to establish a prima facie case of age discrimination and affirmed the entry of summary judgment for defendant. Plaintiff, the CEO of a non-profit organization, was terminated from his position at age 56 and replaced by a long-term employee who was 63 at the time. Plaintiff argued that his circumstances were exceptional and therefore, he was not required to prove that he was replaced by a younger person. Plaintiff argued that the fact that he was replaced by an older individual was not fatal to his prima facie case because he had informed members of the board and directors that he intended to retire some time in the future. Plaintiff argued that this evidence gave rise to an inference that the board’s subsequent decision to terminate plaintiff’s employment was discriminatorily motivated regardless of Plaintiff’s replacement being 7 years older. The court disagreed that Plaintiff’s disclosure to the board that he planned to retire at some later date evidenced discriminatory animus.

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Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 102 FEP Cases 889 (6th Cir. 2008) Mickey brought suit against his former employer, Zeidler, claiming that Zeidler discriminated against him on the basis of age when his salary and benefits were reduced, and that Zeidler discharged him in retaliation for filing a charge of age discrimination with the EEOC. The 6th Circuit affirmed summary judgment on the age discrimination claim because Mickey failed to show that Zeidler replaced him with a substantially younger worker. Mickey argued that Patrick Rheine, an employee 21 years younger than Mickey, assumed some of Mickey’s duties. However, the record indicated that two older workers had assumed Mickey’s primary duties after his separation. The court held that “a person is not replaced when … the work is redistributed among other existing employees already performing related work,” and affirmed the district court’s denial of the claim. IV.

Defendant’s Articulation of a Nondiscriminatory Reason

Brillinger v. City of Lake Worth, 2008 WL 3864383 (11th Cir. Aug. 21, 2008) The 11th Circuit affirmed summary judgment for the City on a former police officer’s claims of wrongful termination and retaliation because the officer failed to establish a prima facie case of discrimination or retaliation. Plaintiff was terminated for submitting a falsified request for call-out pay. Plaintiff appealed the termination under his collective bargaining agreement, and the City reinstated him in accordance with an arbitrator’s decision. Plaintiff was reinstated with a demotion and corresponding decrease in pay. But Plaintiff could not establish a prima facie case because he failed to offer a similarly situated employee who was treated differently. The City had terminated two other officers for submitting falsified pay requests along with Plaintiff. Additionally, the officers who had not been terminated for such conduct were not the same rank as Plaintiff and had fewer years on the force and fewer instances of prior discipline. Plaintiff offered no evidence that any sergeant under the age of 40 with a lengthy disciplinary record had falsified payroll slips after having received a warning not to do so and was yet retained by the City. Plaintiff’s retaliation claim failed because he could not prove that the reasons offered by the City were pretextual. The City terminated the officer because he falsified documents, was derelict in his duties, and was untrustworthy. The City reinstated him with less pay because the City’s policy for demoting officers required a minimum of a 5% reduction in pay upon demotion. These constituted legitimate, non-discriminatory reasons for the termination and the officer’s decreased pay upon reinstatement. Holder v. Nicholson, 2008 WL 2812481 (11th Cir. July 23, 2008) The 11th Circuit affirmed summary judgment for the employer. Plaintiff based her claim of age discrimination on the fact that she did not receive a bonus. Her employer said that she did not receive a bonus because she had received a disciplinary action earlier in the year. The court held that Plaintiff failed to rebut this legitimate, non-discriminatory reason for the employer’s decision. Although Plaintiff argued that another employee had received a reprimand and a bonus, she did not provide evidence for this proposition and even admitted that she had no personal knowledge of whether the other employee had actually received the bonus.

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The court also upheld summary judgment as to Plaintiff’s claim of unlawful retaliation based on the employer’s refusal to promote her. The employer’s reasons were legitimate and non-discriminatory because the employer genuinely believed that the selected candidate was better qualified than Plaintiff. The court further held that the employee had failed to exhaust her administrative remedies with regard to her claim for wrongful termination because she did not present it to an EEO counselor within 45 days of her termination. V.

Plaintiff’s Proof of Pretext

Fuentes v. Postmaster Gen. of U.S.P.S., 282 Fed.Appx. 296, 102 FEP Cases 906 (5th Cir. 2008) Plaintiff was a 30-year employee of the U.S. Postal Service. Despite a few performance issues, Plaintiff’s supervisor nominated plaintiff for a merit-based award. When a new supervisor, Pamplin, came in, she observed problems with Plaintiff’s performance that she felt affected Plaintiff’s department. Pamplin audited Plaintiff’s department and the results revealed several areas of concern. Because some of the problems were not in Plaintiff’s control and because she had no prior discipline, Human Resources (HR) suggested that Plaintiff be placed on a performance improvement plan. Instead of implementing this plan, Pamplin chose to “detail” Plaintiff to a different department. Soon after, Plaintiff filed charges with EEOC and a worker’s compensation claim for a hand injury and work-related stress and depression. During the pendency of these charges, USPS attempted to return Plaintiff to her previous position and, after passing a fitness-for-duty examination, Plaintiff returned to work in that capacity. The 5th Circuit focused its analysis solely on the pretext stage. USPS asserted that Plaintiff was transferred to another department because of performance issues evidenced by the audit, and that any delay in returning to her original position was caused by the fitness-for-duty examination (which was required under USPS policy) and that Plaintiff needed to be reacquainted with the position’s responsibilities. Plaintiff argued that the reasons behind her transfer were pretextual as HR acknowledged that many of the recommendations from the audit were not in Plaintiff’s control. The court ultimately rejected Plaintiff’s argument, and noted that HR did not address the performance issues in the audit that were attributable to Plaintiff, which Plaintiff conceded existed. While transferring Plaintiff rather than placing her on a performance improvement plan permits a “tenuous inference of pretext,” this was not enough to overcome summary judgment. Ruleford v. Tulsa World Publishing Co., 2008 WL 467808 (10th Cir. Feb. 22, 2008) The 10th Circuit affirmed summary judgment for the defendant and held that Plaintiff did not establish pretext merely by showing that the reasons provided at the time of termination arguably conflicted with the reasons later advanced by the employer during litigation. At the time of termination, Plaintiff was told that he was being let go because management had lost faith in his abilities as an advertising manager. Specifically, the employer stated that Plaintiff failed to seek more business from potential advertisers; allowed rampant absenteeism in his department; increased costs, including commissions for salespeople; had problems with employee use of business phone lines; and failed to implement performance standards for the department. During litigation, however, the employer argued that it fired Plaintiff because

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annual revenues had declined by approximately six million dollars, yet commissions paid to salespeople had increased by 28 percent and payroll expenses by 11 percent. On appeal, Plaintiff argued that because the reasons given at discharge time and in litigation were different, he established pretext. The 10th Circuit held that while inconsistent rationales may constitute pretext, the mere variety of reasons for a termination decision does not alone show pretext. The reasons provided by the employer at discharge and during litigation were not inconsistent, and thus, no pretext was established. Moreover, for Plaintiff to establish pretext by stating that the reasons provided at time of termination were inaccurate, Plaintiff would have to prove that the employer knew that the reasons provided were indeed false. VI.

Proof Through Direct Evidence in Mixed-Motive Cases

Adam v. Kempthorne, 2008 WL 4190267 (9th Cir. Sept. 9, 2008) After a bench trial, the court entered judgment in favor of the defendant, the Secretary of the U.S. Department of the Interior, as to 16 employees’ age discrimination claims stemming from a reduction in force (RIF), and the Ninth Circuit affirmed. On appeal, plaintiffs argued that the district court erred in several respects, including because it did not apply the mixed-motive analysis set forth in Costa v. Desert Palace. The Ninth Circuit stated that the mixed motive analysis is only applicable when a protected characteristic was a motivating factor in the employment action, and the district court found that there was no evidence that the decision makers were acting in on age-based animus. Thus, there was no error. D.

Application of Price Waterhouse to the ADEA

Gross v. FBL Financial Servs., Inc., 526 F.3d 356, 103 FEP Cases 518 (8th Cir. 2008) The 8th Circuit reversed a judgment entered on a jury verdict for Plaintiff, based on the fact that the district court gave a final jury instruction on the “same decision” defense that told the jury its verdict must be for the employer, “if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” The court found this instruction was improper because “[t]he Price Waterhouse rule calls for a shift in the burden of persuasion only upon a demonstration by direct evidence that an illegitimate factor played a substantial role in an adverse employment decision.” (Emphasis in original.) Because Plaintiff “conceded that he did not present ‘direct evidence’ of discrimination . . . a mixed motive instruction was not warranted under the Price Waterhouse rule.” The court found the error was not harmless because the instruction improperly shifted the burden to the defendant on a key issue in the case; accordingly, the court reversed and remanded for a new trial. In reaching its decision, the court rejected Plaintiff’s argument that “the Civil Rights Act of 1991 and the Supreme Court’s decision in Desert Palace, Inc. v. Costa supersede Price Waterhouse and our precedents applying Price Waterhouse to the ADEA.” The court noted § 2000e-2(m) only applies to claims under Title VII, not the ADEA, and explained, “Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable.”

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3.

Modified McDonnell Douglas Approach [New Topic]

Henwood v. Unisource Worldwide, Inc., 2008 WL 2415261 (2d Cir. June 13, 2008) The 2nd Circuit affirmed summary judgment for the employer based upon Plaintiff’s failure to show that the employer’s stated reasons “were not the only reasons and the prohibited factor was at least one of the ‘motivating factors.’” The 2nd Circuit found that Plaintiff, a former sales representative, had not put forth any evidence to call into question 1) his employer’s decision to remove him from an account based upon client preferences; 2) pay him commissions on a different account on which no sales personnel received commissions; 3) pay him certain commissions because it believed those payments to be “disengagement fees”; or 4) make certain arrangements for Plaintiff due to his intervening resignation. While the appellate court found that the company’s president had prevented Plaintiff from developing accounts and called into question Plaintiff’s six month “trial period” for purposes of transitioning to new accounts, this did not meet his prima facie burden. Such evidence “[brought] him no closer to showing that unlawful discrimination was one of Unisource’s motivating factors.” Chapter 20. Adverse Impact II.

Application of Adverse Impact Model of Proof to ADEA E.

Reasonable Factor Other Than Age Provision

Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 103 FEP Cases 908 (2008) The Supreme Court addressed the burdens of proof in a disparate impact claim under the ADEA. The precise issue was whether an employer defending against a disparate impact claim on the basis it had acted on a “reasonable factor other than age” (“RFOA”) was required to bear the burden of proof on this issue. Knolls operated an atomic power facility for the U.S. Government and was obligated by the government to reduce staffing at the facility. The RIF occurred in 1996. Knolls adopted a ranking system for its managers to use when scoring subordinates. The ranking system consisted of three scales: performance, flexibility, and critical skills. The scores on these three scales were summed along with points given for years of service. The totals determined who would be laid off. Of the 31 salaried employees laid off, 30 were at least 48 years old. Twenty-eight of the 31 salaried employees sued alleging that Knolls designed and implemented the ranking system “to eliminate older employees” and that in any event and regardless of intent, the process had a discriminatory impact on ADEA protected employees. A jury found for Meecham on the disparate impact claim but found for the employer on the disparate treatment claim. The Court of Appeals affirmed. Knolls sought certiorari which was granted to the extent the Court vacated the judgment and remanded the decision for further proceedings in light of its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). On remand the same Court of Appeals panel ruled in favor of Knolls, over a dissent. The panel majority found its prior ruling “untenable” because it had applied the business necessity standard described in Ward Cove Packing Company v. Atonio, 490 U.S. 642 (1989) rather than the “reasonableness” test imposed by City of Jackson.

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The Supreme Court deemed the RFOA exemption to the general prohibitions against age discrimination as an affirmative defense. The Court restated the rule that when a “provision … carves an exception out of the body of a statute or contract those who set up such exception must prove it”. Examining the ADEA prohibition and its various affirmative defenses, the Court concluded that the RFOA clause was an affirmative defense and as a consequence the burden of persuasion fell on the employer. The Court noted that the RFOA defense in a disparate impact case is focused on whether the factor relied upon was a “reasonable” one for the employer to be using. Id. at 2403. The Court flatly rejected the suggestion that the business necessity defense had a role in an ADEA disparate impact case. Id. at 2404. Finally, the Court restated its prior holding that it was the plaintiff-employee’s burden “to identify which particular practices allegedly caused an observed disparate impact.” Id. The Court acknowledged that its decision, “putting employers to the work of persuading fact finders that their choices were reasonable” made it harder and costlier to defend disparate impact claims under the ADEA, but instructed that employers’ concerns would have to be directed at Congress rather than the Court. III.

Application of Adverse Impact Model of Proof - Federal Employees

Aliotta v. Bair, 576 F. Supp.2d 113 (D.D.C. 2008) Plaintiffs brought a class action challenging their layoff from the Federal Deposit Insurance Corporation on both disparate treatment and disparate impact grounds. The court noted the legal uncertainty as to whether a disparate impact claim is legally cognizable against a federal employer, with members of the D.C. Circuit themselves divided on the issue. The court assumed arguendo that such a claim is cognizable and proceeded to affirm summary judgment in favor of the FDIC on the merits. (See further discussion in section IV.C. below.) IV.

Elements of Proof in Adverse Impact ADEA Cases B.

The Plaintiff’s Prima Facie Case 1.

Identification of Specific Employment Practice

Adam v. Kempthorne, 2008 WL 4190267 (9th Cir. Sept. 9, 2008) After a bench trial, the court entered judgment in favor of the defendant, the Secretary of the U.S. Department of the Interior, as to 16 employees’ age discrimination claims stemming from a reduction in force (RIF), and the Ninth Circuit affirmed. The plaintiffs contended that the district court erred when it found the employees’ statistical evidence did not show a significant disparate impact on older employees. The district court held that the employees had not established a prima facie case of disparate impact because they failed to isolate and identify the specific employment practice responsible for the disparate impact. Analyzing the impact of a generalized policy is not specific enough. The district court found that the RIF at issue could be broken down into different elements and that statistical analysis of the RIF as a whole was therefore insufficient to meet the employees’ burden. The court noted that in analyzing the disparate impact claim, the district court recited the “business necessity” test which the U.S. Supreme Court recently found in Meacham v. Knolls Atomic Power Lab. has “no place in ADEA disparate-impact cases.” However, the court also held the employees failed to establish a prima facie case which was sufficient grounds for affirming the decision.

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Allen v. Highlands Hospital Corp., 545 F.3d 387, 104 FEP Cases 934 (6th Cir. 2008) Plaintiffs, aged 63 and 53 at the time of their terminations, brought an ADEA disparate impact claim against their former employer. Allen had been employed as a nurse and administrator, and Slone as a radiology transcriptionist. Each was terminated after Allen convinced Sloan to release her grandson’s x-rays to her without the requisite release by the child’s mother. The hospital also had implemented at the time cost-cutting measures that included increasing employee turnover and termination of more senior employees who earned higher salaries. The district court granted summary judgment and the Sixth Circuit affirmed, holding that the plaintiffs had failed to establish a prima facie case of disparate impact due, inter alia, to their failure to identify a specific practice that disproportionately disadvantaged older employees. The court observed that the specific practice requirement “is not a trivial burden,” and involves more than simply “point[ing] to a generalized policy that leads to such an impact.” The policy identified by the plaintiffs was the hospital’s policy favoring termination of the highest paid employees as a cost-cutting measure. The court held that this fell short of identifying a specific practice, reasoning that the plaintiffs had simply identified a generalized policy reflecting a desire to reduce costs associated with highly paid senior employees. They had failed to establish that this desire had evolved into an identifiable practice. Aliotta v. Bair, 576 F. Supp.2d 113 (D.D.C. 2008) Plaintiffs brought a class action under the ADEA on both disparate impact and disparate treatment grounds, challenging their terminations from the Federal Deposit Insurance Corporation (FDIC) as part of a reduction in force. The FDIC had determined that it had “excess staff” because of its decreased workload. To diminish its workforce, FDIC used both a buyout program and then a RIF. The plaintiff class included both employees who had voluntarily accepted buyouts and those who had lost their jobs in the RIF. The district court granted FDIC’s motion for summary judgment, finding that plaintiffs had failed establish a prima facie case, in part because they failed to identify a specific policy or practice leading to a disparate impact on older workers. As to this element, plaintiffs pointed to the voluntary buyouts and the involuntary RIF terminations. The court held that in analyzing these two programs as a single action, plaintiffs had failed to isolate and identify the specific adverse employment practice within the downsizing that resulted in a disparate impact. 2.

Threshold Showing of Adverse Impact

Allen v. Highlands Hosp. Corp., 545 F.3d 387, 104 FEP Cases 934 (6th Cir. 2008) Plaintiffs, aged 63 and 53 at the time of their terminations, brought a disparate impact claim against their hospital employer. The hospital had implemented cost-cutting strategies measures that included termination of more senior employees who earned higher salaries. The district court granted summary judgment and the Sixth Circuit affirmed, holding that the plaintiffs had failed to establish a prima facie case of disparate impact due, inter alia, their failure to proffer statistics showing that the hospital’s policy favoring termination of the highest paid employees as a cost-cutting measure disproportionately harmed older workers. The court found that between July 1998 and December 2004, the percentage of total workers in the protected age category employed by the hospital actually increased from 40.6% to 50.4%, and workers under the age of 40 had been terminated in significantly higher proportion than those 34

over 40. The court rejected plaintiffs’ argument that disparate impact existed by statistics showing that terminations of protected age employees increased from 14.3% to 62.5% between 2002 and 2003. The court did not find this difference statistically significant because the pools from which the percentages were drawn were very small – 21 terminations in 2002 and 16 terminations in 2003. Furthermore, the number of individuals under 40 terminated in 2002 was “abnormally large” creating “aberrational data” and small numerical differences that translated into large percentage swings. The court concluded that there was no material evidence to support the plaintiffs’ disparate impact claim. Adams v. Lucent Technologies, Inc., 2008 WL 2776787 (6th Cir. July 17, 2008) A group of former employees of Lucent’s Columbus Works manufacturing facility sued for age discrimination on a disparate impact theory. Lucent had entered into merger discussions with a French competitor, Alcatel. Meanwhile, Lucent announced that it planned to engage in a significant RIF, the first stage of which was a voluntary reduction of those employees who chose to accept a “Special Voluntary Offer” (SVO) of a severance package, which was offered to the most senior employees. Plaintiffs were among the group that accepted the SVO. Merger negotiations broke down the same day as the deadline for acceptance of the SVO, but Lucent did not publicly announce the breakdown until after the SVO acceptance deadline. Employees laid off in later rounds of layoffs at the facility received more generous packages than the SVO. The district court granted Lucent’s motion for summary judgment and the Sixth Circuit affirmed. Plaintiffs alleged that Lucent’s delay in announcing the collapse of the merger talks and its use of the SVO led to the termination of the more senior employees, thereby causing a disparate impact on older workers. Plaintiffs offered evidence that the employees who accepted the SVO had the most seniority. The court held that seniority alone does not exactly correlate with age, and thus plaintiffs failed to establish a prima facie case of disparate impact. 3.

Appropriate Method of Comparison

Aliotta v. Bair, 576 F. Supp.2d 113 (D.D.C. 2008) Plaintiffs brought a class action under the ADEA on both disparate impact and disparate treatment ground, challenging their terminations from the Federal Deposit Insurance Corporation (FDIC) as part of a reduction in force, some through voluntary buyouts and some through a subsequent reduction in force. The district court granted FDIC’s motion, finding that plaintiffs had failed establish a prima facie case, both in failure to identify a specific policy or practice leading to a disparate impact on older workers and to make out a threshold showing of disparate impact. The plaintiffs’ statistical evidence examined all employees departures in 2005, including retirements, resignations, and others not associated with the RIF, and showed that prior to this period, 65.1% of the workforce was over age 50, whereas 75.7% of those who departed in 2005 were over 50. The court declined to address this showing. Instead, it concluded that the undisputed evidence established that the RIF disproportionately affected younger (not older) employees because FDIC had considered seniority in its retention decisions, and while 56.1% of the employee subject to the RIF were over 50, only 42.9% of those laid off fell into that age group. In addition, the average age of the workforce did not decrease significantly: it was 51.96 years before the buyout period and 51.81 years after the RIF.

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C.

The Employer’s Defense

Meacham v. Knoll Atomic Power Laboratories, Inc., 128 S. Ct. 2395, 103 FEP Cases 908 (2008) The Supreme Court clarified that the RFOA is an affirmative defense, and as such, it is a defense on which the employer bears the burden of persuasion. (See detailed discussion of the Court’s reasoning in section II.E above.) Aliotta v. Bair, 576 F. Supp.2d 113 (D.D.C. 2008) Plaintiffs brought a class action under the ADEA on both disparate impact and disparate treatment ground, challenging their terminations from the Federal Deposit Insurance Corporation (FDIC) as part of a RIF, some through voluntary buyouts and some through a subsequent reduction in force. The district court held that plaintiffs failed to rebut FDIC’s RFOA defense. FDIC’s evidence indicated that the 2005 downsizing was based on reduced workload due to a decline in receiverships in the banking industry and thus less need for the services of the laid off employees in the principal division targeted for layoff. It was this, not the fact that this division was the “oldest division in the FDIC,” that led to the terminations. Plaintiffs attempted to rebut this showing by arguing that the employer’s RFOA was in reality a pretext for age discrimination, because FDIC really wanted to open up its recruitment efforts on college and university campuses. The court did not hold, as others have, that pretext is irrelevant to disparate impact claims. Instead, it found plaintiffs’ evidence insufficient to rebut the RFOA because the campus recruitment efforts had begun three years before the RIFs and nearly all of the hiring through these programs was in divisions not affected by the RIFs, in positions with different responsibilities and lower pay. Summers v. Winter, 2008 WL 5227192 (11th Cir. Dec. 16, 2008) The plaintiff naval officer filed suit against the Navy, alleging age discrimination and retaliation based on a new, more rigorous training program implemented in response to the September 11th attacks. The 11th Circuit affirmed summary judgment for the Navy, holding that the officer failed to establish a prima facie case. The court held that implementation of the new training program was not a serious or material enough change in the terms, conditions, and privileges of employment to constitute an adverse employment action. Also, Plaintiff failed to show that he was treated differently than younger employees, who were also subjected to the new program. Plaintiff also alleged age discrimination on a disparate impact theory. However, Plaintiff failed to show that the program had a significant disparate impact on the older officers, as all the officers completed the program regardless of age. Also, the Navy implemented the program in response to the attacks of September 11, which was a reasonable, non-age basis (RFOA) for its decision to require a more rigorous training program. Finally, Plaintiff failed to show that the Navy denied his request for early retirement in retaliation for his filing a claim with the EEOC. Plaintiff failed to establish a prima facie case of retaliation because he could not show a causal link between his claim and the denial of his request. The temporal proximity of several months, in isolation, was insufficient to demonstrate causation. Moreover, Plaintiff failed to rebut the Navy’s offered reason for denying his request: that it would have been prohibited from filling his position after he left.

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Chapter 21. EEOC Structure Jurisdiction, and Process IV.

EEOC Enforcement Process A.

Charge Processing System

Venetian Casino Resort, LLC v. E.E.O.C., 530 F.3d 925, 103 FEP Cases 1025 (D.C. Cir. 2008) The D.C. Circuit Court of Appeals held that the casino was entitled to an injunction preventing EEOC from disclosing the casino’s confidential commercial information without prior notice. This case arose out of numerous ADEA complaints filed by the casino’s employees, which required the casino to supply confidential information about its business operations to EEOC for investigation purposes. At that time, EEOC maintained a policy of allowing disclosure of an employer’s confidential information obtained in the process of investigating ADEA complaints to a third party, without first providing prior notice to the employer, as long as disclosure was deemed appropriate or necessary in order for EEOC to perform its functions under the ADEA. The casino brought an action in District Court to enjoin EEOC from disclosing its confidential records under this policy, arguing that the policy violated the Administrative Procedure Act (“APA”), the Freedom of Information Act (“FOIA”), and the Trade Secrets Act (“TSA”). The District Court granted summary judgment for EEOC. But the Court of Appeals reversed, finding that this policy violated the APA’s prohibition of administrative rulemaking (i.e., “final agency action”) that is arbitrary and capricious. Specifically, the court found that the policy conflicted with EEOC’s own FOIA regulation requiring it to provide notice to an employer prior to disclosing that employer’s otherwise confidential commercial information pursuant to a FOIA request. In other words, although EEOC would normally be required, in response to an FOIA request, to notify the employer of the proposed disclosure as well as allow the employer to contest disclosure, EEOC policy allowing disclosure of any information whenever deemed “appropriate or necessary” created a “back door” to avoid FOIA compliance. The court did not find the policy contrary to the TSA, however, as the casino presented no evidence showing that EEOC had ever disclosed trade secrets in violation of that law, in contrast with EEOC’s stated practice of assessing whether information subject to disclosure constitutes trade secrets. Chapter 22. Timeliness and Sufficiency of ADEA Administrative Charge I.

Requirements of Timely State FEP and EEOC Charge Filing C.

What Constitutes a Charge

Federal Express Corp. v. Holowecki, 128 S. Ct. 1147, 102 FEP Cases 1153 (2008) The Supreme Court addressed how to determine whether documents filed with EEOC constitute a charge. The Court noted the “immediate question” was the timeliness of the suit. The resolution of this question involved a comprehensive review of the deference to be given to an administrative agency under a variety of different scenarios. Holowecki and 13 current and former Fed Ex couriers filed suit alleging that two productivity based programs adopted in 1994 and 1995 violated the ADA. The plaintiffs sought

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to represent a class of all couriers over the age of 40 who were subject to acts of age discrimination by Fed Ex. The plaintiffs alleged that the two productivity programs were veiled attempts to force older workers out of the company before they could receive retirement benefits. Allegedly these initiatives were a pretext for “harassing and discriminating against older couriers in favor of younger ones”. Id. at 1153. Against that backdrop the Court turned its attention to two distinct questions: “What is a charge as the ADEA uses that term? And, were the documents Respondent filed in December 2001 a charge?” Id. at 1153. The Court’s analysis began with the statute, which while requiring the filing of the “charge”, 29 U.S.C. § 626(d), did not define “charge”. The Court observed that while EEOC had adopted regulations which gave some content to the term “charge”, the regulations fell short of a “comprehensive definition”. Nonetheless, the Court determined that to the extent the regulations address the issue, the regulations were subject to Chevron deference. Turning to the regulations issued by EEOC, the Court noted that while the regulations had defined a charge, in one section, see 29 C.F.R. § 1626.3 (2007), in the next subsection of the regulation EEOC had qualified the definition. 29 C.F.R. § 1626.8(b). The Court concluded “even with the aid of the regulations, the meaning of charge remains unclear.” Id. at 1154. The Court also applied the rule that an agency is entitled to deference when it “adopts a reasonable interpretation of regulations it has put in force.” Citing Auer v. Robbins, 519 U.S. 452 (1997). Based on that deference, the Court accepted EEOC’s position that its regulations did not “identify all necessary components of the charge; and [that] it follows that a document meeting the requirements of [EEOC regulations] Section 1626.6 is not a charge in every instance.” Id. at 1155. Given that EEOC’s regulations did not state all the elements the charge had to contain, the Court was left to ponder an answer to the question “what additional elements are required”. Id. EEOC proposed that the proper test is “whether the filing, taken as a whole, should be construed as a request by the employee for the Agency to take whatever action is necessary to vindicate her rights.” Id. This argument ran face-on into the proper deference to be given to EEOC’s position. Since the regulations did not speak to the filers’ intent, Auer deference to EEOC’s position was inappropriate. Rather, at that point the term “charge” did not involve the construction of agency regulations, but rather the term used by Congress in the underlying statute. The Court concluded, nonetheless, that deference to EEOC was appropriate, as EEOC was the agency charged with the construction of statutory term. This was true, even assuming that the interpretive statements by EEOC in its compliance manual and internal directives were not entitled to “full Chevron deference”, because they could be resorted to “for guidance”. Id. at 1156. As such, this body of experience and informed judgment were entitled to a “measure of respect” under the “less deferential Skidmore standard.” (Skidmore v. Swift & Company, 323 U.S. 134 (1944)). A Skidmore analysis required determining whether the agency had applied its position with consistency. Individuals who come to EEOC complete an “intake questionnaire” during their initial visit rather than completing a charge form. The Court concluded that there were “deficiencies in the agency’s administration of the statute”. Id. It noted however that some degree of inconsistent treatment was unavoidable. The Court overcame these inconsistencies and deficiencies because of EEOC’s “distinct statutory functions of enforcing antidiscrimination laws and disseminating information about those laws to the public”. Id. at 1157. Ironically it

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was because of EEOC’s need for “efficient operations” that the Court determined the agency required some mechanism to separate information requests from enforcement requests. Because of this need for efficiency, the Court determined that the plaintiff’s proposed standard -- that a charge need only contain an allegation of discrimination, and the name of the employer -- fell short of being a charge. Giving the nod to EEOC’s efficiency in operations argument, the Court concluded that EEOC’s position that a charge had to contain “a request to act” was “reasonable” and “consistent with the statutory framework.” Id. at 1157. Thus, for a filing to be deemed a charge “it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise to settle a dispute between the employer and the employee.” The filing, said the Court, must be examined from the standpoint of an “objective observer and the construction of the terms were to be “reasonable”. Id. at 1158. The Court rejected Fed Ex’s argument that EEOC had not treated the plaintiff’s filing as a charge. It noted that the ADEA did not condition an individual’s right to sue “upon the agency taking any action”. Id. at 1159. On the facts before it, the Court examined whether the documents filed with EEOC by the plaintiff constituted a charge under the adopted standards. The Court stated “were the intake questionnaire the only document before us we might agree its handwritten statements did not request action”. It noted that the intake questionnaire on its face did not give rise to the inference that the employee requested action against the employer, and noted that the agency was not required to treat every completed intake questionnaire as a charge. The Court, however, noted that the questionnaire was supplemented with a detailed 6-page affidavit. This affidavit concluded with the request from the plaintiff to “[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created in their application of the challenged programs.” The Court held this request constituted a “request for the agency to act”. Id. at 1160. Holender v. Mutual Industries North Inc., 527 F.3d 352 (3d Cir. 2008) The 3rd Circuit considered what constitutes a “charge” in light of the Supreme Court’s holding in Federal Express Corp. v. Holowecki. Holender submitted a two-page document to the EEOC. The first page was an EEOC Form 5 titled “Charge of Discrimination” and bore the “Charge Number.” This document provided Holender’s identifying information and Holender checked the box indicating “Age” under the heading “Cause of Discrimination Based On.” Holender signed the form in two places but did not check the box next to the statement that “I want this charge filed with both the EEOC and the State or local Agency, if any...” The second page also signed by Holender was an affidavit entitled “EEOC Complaint of Morris Holender” and contained the particulars of the alleged age discrimination. Roughly two months after Holender submitted the two pages, EEOC sent to him a letter requesting “certain additional/supporting information” in order to begin its investigation and to formally docket the matter. EEOC further advised Holender that it would “review [his] response to determine whether or not this inquiry should be formalized as a charge” upon the receipt of this information. Holender never provided the applicable documentation and instead filed suit. The defendant moved to dismiss the complaint, arguing that Holender failed to exhaust his administrative remedies prior to bringing the suit because he failed to provide EEOC with requested information.

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The 3rd Circuit noted that the document submitted to EEOC “must be construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” The 3rd Circuit held that there was “no question” that Holender met the requirements of Holowecki as he submitted an EEOC Form 5 which contains multiple references to the fact that it is itself a charge and that he sought legal relief. The court also rejected defendant’s contention that the information submitted should not have been construed as a charge because EEOC did not treat the initial submission as a charge and instead requested additional information. II.

When the Charge and Amendments are Filed

Eidenbock v. Charles Schwab & Co., Inc., 2008 WL 25127633 (9th Cir. June 24, 2008) The 9th Circuit affirmed dismissal of plaintiffs’ ADEA claims because some of the plaintiffs did not file an EEOC charge within 300 days of the last discriminatory act and the remaining plaintiffs did not file suit within 90 days of receiving a right-to-sue letter. Plaintiffs argued that the right-to-sue letters did not trigger the 90-day filing period because EEOC did not wait 60 days after the charge was filed to issue the right-to-sue notice. Plaintiffs also argued that the issuance of a notice before the end of the conciliation period should not preclude a charging party from amending a charge. The court rejected this argument because once a right-to-sue notice issues, further proceedings are terminated, including the possibility to amend. VI.

Tolling of the Charge Filing Period and Estoppel

Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 103 FEP Cases 1232 (2d Cir. 2008) Paneccasio, who accepted an early retirement package, filed an age discrimination claim. Specifically, Paneccasio alleged Unisource “induced” him to accept an early retirement package by first offering accelerated vesting of a deferred compensation plan, and then unlawfully terminating the plan (seven years after he retired). Because Paneccasio was not yet receiving any payments under the plan when it terminated, he received a lump sum reimbursement plus six percent interest rather than the present value of future benefits received by other plan participants. Paneccasio sought application of the equitable tolling doctrine to save his otherwise untimely claim. The 2nd Circuit held that equitable tolling was not appropriate. The brochure explaining the accelerated vesting provision of the benefits plan given to Paneccasio at the time he accepted the early retirement package was not false or misleading. Although it did not expressly state the employer’s right to terminate the plan, it did “call into question the continuing validity” of the plan. The brochure also contained a disclaimer incorporating the actual plan documents, including the termination clause. As Paneccasio could not show that he was “kept in ignorance by misleading conduct” by Unisource, his ADEA claim was statutorily barred because he failed to file a charge within 300 days of the allegedly unlawful employment practice.

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Chapter 23. Judicial Jurisdiction, Timeliness, and Venue III.

Scope of the Charge v. Scope of Complaint Amin v. Akzo Nobel Chemicals, Inc., 282 Fed. Appx. 958, 2008 WL 2796955 (2d Cir. July 22, 2008)

The 2nd Circuit vacated and remanded the trial court’s dismissal of Plaintiff’s retaliatory discharge claim. The court held that the trial court erred in dismissing the retaliation claim for lack of administrative exhaustion. In reiterating that a “loose pleading” standard applies at the EEOC investigation stage, the court found that Plaintiff’s retaliatory discharge claim was “reasonably related” to his underlying age, religion and national origin discrimination claims. Although the plaintiff had not checked the retaliation box on the standard form, an EEOC investigation into the stated allegations would necessarily involve a review of the employer’s preferred reasons for the discharge. Ximines v. George Wingate High School, 516 F.3d 156, 102 FEP Cases 1284 (2d Cir. 2008) Ximines, a math teacher, filed an age discrimination claim based upon the fact that she was not promoted to an assistant principal position. Ximines was passed over for interim appointments, and then interviewed, but not selected, for the position. Her complaint was based upon the interim denials and she did not allege that she had filed an EEOC charge. When her employer moved for judgment on the pleadings, Ximines sought to amend the complaint to include a failure to promote claim based upon the final selection decision. In denying this request and dismissing the complaint, the trial court held that the amendment would be futile because Ximines had not exhausted her administrative remedies with respect to this claim. On the EEOC form, Ximines had alleged that she was interviewed for the position, but she did not claim she had been denied the promotion. Under the reasonable relationship test, the 2nd Circuit held that the trial court erred in denying Ximines’ leave to amend. Although it was undisputed that the employer never actually received the last page of the charge (a narrative contesting the final appointment decision), the appellate court held that the charge “gave the EEOC adequate notice to investigate the plaintiff’s grievance concerning the . . . promotion.” VII.

Timely Filing of Private Civil Action – 90 Days From Notice of Right to Sue

Eidenbock v. Charles Schwab & Co., 2008 WL 25127633 (9th Cir. June 24, 2008) The 9th Circuit affirmed dismissal of plaintiffs’ ADEA claims because some of the plaintiffs did not file an EEOC charge within 300 days of the last discriminatory act and the remaining plaintiffs did not file suit within 90 days of receiving a right-to-sue letter. Plaintiffs argued that the right-to-sue letters did not trigger the 90-day limitation period because the EEOC did not wait 60 days after the charge was filed to issue the right-to-sue notice. The court rejected this argument because the 60-day conciliation period is not a limit on the power of the EEOC to act within 60 days.

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Chapter 25. Evidence II.

Evidence Giving Rise to an Inference of Age Discrimination

Montano v. Christmas by Krebs Corp., 293 Fed. Appx. 625 (10th Cir. 2008) Plaintiffs, a 57-year-old man and a 60-year-old woman, were long-term employees who were terminated in 2004 as part of a RIF. Both plaintiffs then filed for social security disability insurance benefits, claiming they were totally disabled even prior to their termination. One plaintiff was awarded benefits in April 2005 and the other in June 2006. Both Plaintiffs also filed suit in April 2006 alleging ADEA violations. The district court granted summary judgment to employer based on the doctrine of judicial estoppel in that Plaintiffs’ statements of total disability to the Social Security Administration were in direct conflict with their claims under the ADEA that they were qualified to perform their jobs. Plaintiffs appealed and the 10th Circuit reversed. The Court of Appeals relied on Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). That case involved a plaintiff who was awarded social security disability benefits while also asserting claims under the Americans with Disabilities Act that she was qualified to work. The Supreme Court found that it is appropriate for a plaintiff to assert inconsistent legal claims, providing there is a sufficient explanation, because it may not be known in advance which legal theory will be successful. In this case, both Plaintiffs were awarded benefits after termination, and in both cases the employer conceded they were qualified to perform their job at the time of termination. The 10th Circuit adopted the “whatever works” philosophy, and found there was sufficient explanation for the inconsistency. Summary judgment was reversed, and the case was remanded to determine whether there was a legal basis for the ADEA claims. A.

Evidence Giving Rise to an Inference of Age Discrimination 2.

Comments as Direct Evidence of Discrimination

Steele v. Kroenke Sports Enterprises, L.L.C., 2008 WL 360614, 102 FEP Cases 1291 (10th Cir. Feb. 11, 2008) The 10th Circuit affirmed summary judgment for the defendant finding that Plaintiff was neither discriminated nor retaliated against on the basis of her age when she was not hired for another position. In this case, Plaintiff, whose employer had a partnership with another entity, discussed the possibility of Plaintiff filling a position with the partner-entity. Though no salary or commission arrangements were agreed upon, Plaintiff believed she had been offered and had accepted a position with the partner-entity. The partner-entity however, did not agree Plaintiff could fill the position. After being rejected by the partner-entity, Plaintiff learned that someone working for the partner-entity had said that Plaintiff was “not young and hip enough for the job.” A few days later, Plaintiff’s supervisor notified Plaintiff that due to declining sales, her salary would be restructured, cutting her base salary and increasing her commission percentage. Plaintiff was terminated approximately six months later. Finding inconsistencies between Plaintiff’s deposition transcript (in which she stated she and her employer had not discussed compensation for the new position) and Plaintiff’s affidavit submitted in opposition to summary judgment (in which plaintiff claimed that she viewed the 42

partner-entity position as taking on additional responsibilities with the potential to make more money), the 10th Circuit discounted Plaintiff’s affidavit and concluded that because the partnerentity position would not have been more lucrative than her current position, Plaintiff’s failure to obtain the position did not constitute an adverse employment action. Moreover, the court held that even if the position allegedly offered was more lucrative for Plaintiff, there was insufficient evidence to attribute the comment by an unnamed individual of her employer’s partner to her employer. The court further noted that Plaintiff’s employer could not be held directly liable for comments not made by its personnel. B.

Age-Based Discriminatory Conduct Towards Other Employees

Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140, 102 FEP Cases 1057 (2008) Mendelsohn was a 13-year employee of Sprint when she was terminated as part of a company-wide RIF. Mendelsohn sued claiming disparate treatment based on her age. Following a trial, Sprint prevailed. Mendelsohn sought to introduce testimony of five former Sprint employees who claimed their supervisors had discriminated against them because of age. None of the five employees worked in the same group with Mendelsohn and none had worked under the supervisors in her chain of command. None of the proffered witnesses reported hearing discriminatory remarks by the three levels of supervisors immediately above Mendelsohn. Sprint moved in limine to exclude the testimony of these five former employees. The District Court granted the motion in relevant part. On appeal to the 10th Circuit, the parties’ arguments focused on the basis for and scope of the District Court’s order (which had been orally amended during the trial). In the end, the District Court had barred testimony or evidence of discrimination against Sprint employees who were not similarly situated, i.e., did not have the same supervisor as Mendelsohn, but allowed testimony which would establish that the RIF was a pretext for age discrimination. The 10th Circuit treated the District Court’s minute order as the application of a “per se rule” that evidence regarding other supervisors was irrelevant. The 10th Circuit determined that a “similarly-situated” employee analysis was inapposite when the claim was that of a companywide policy of discrimination. In light of this determination, the 10th Circuit held the evidence Mendelsohn sought to introduce was relevant and was not unduly prejudicial and reversed and remanded the case for a new trial. The Supreme Court granted certiorari to decide whether in an “employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.” 128 S. Ct. at 1144. The Court concluded that the 10th Circuit erred when it concluded the District Court had applied a per se rule to exclude the testimony of the five nonparty witnesses. The Court said the 10th Circuit should have “remanded the case to the District Court for clarification”. Id. The Court criticized the 10th Circuit for not according the district court the deference prior Court decisions had described as the “hallmark of abuse of discretion review”. Id. at 1145. The Court then spent a substantial portion of its opinion dissecting the district court’s 43

opinion/minute order, the arguments made by the parties to the 10th Circuit on appeal, and the appropriate presumptions regarding a district court ruling. Notably the Court instructed that Appellate Courts “should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential.” Id. at 1146. The Court concluded its opinion by noting that had the District Court applied a per se rule excluding the evidence, the “Court of Appeals would have been correct to conclude that it has abused its discretion”. The Court stated that under Rules 401 and 403, relevance and prejudice are to be determined in the context of “the facts and arguments in a particular case”. Id. at 1147. Turning then to the issue on which certiorari was granted, the Court ruled that “whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiffs circumstances in theory of the case. … [whether] evidence is prejudicial also requires a fact-intensive, content-specific inquiry.” Id. Since the required inquiry was “within the providence of the District Court in the first instance” the matter was remanded with instructions for the District Court to clarify the basis for its evidentiary rulings.” Id. Warrillow v. Qualcomm, Inc., 2008 WL 538923 (9th Cir. Feb. 28, 2008) Following a jury verdict in favor of defendant, the 9th Circuit affirmed the district court’s denial of Plaintiff's Rule 50(b) motion for judgment as a matter of law (“JMOL”) and Rule 59 motion for a new trial. Plaintiff failed to make the required motion for a JMOL pursuant to Rule 50(a) prior to the submission of her case to the jury. Accordingly, she was precluded from later challenging the sufficiency of evidence through a renewed motion for JMOL or on appeal. In any event, the court found that, even if it could review the sufficiency of the evidence, Plaintiff could not show that the jury plainly erred and that the verdict resulted in a “manifest miscarriage of injustice.” The court also rejected a number of Plaintiff’s challenges to the lower court’s evidentiary rulings. Namely, the court held that the district court did not abuse its discretion in excluding the testimony of prior Qualcomm employees who also claimed to have experienced age discrimination because the district court correctly determined that the testimony would unfairly prejudice the defendant and would distract the jury from the real issues at trial. E.

Positive and Adverse Employment Actions by “Same Actor”

Fitzgerald v. Action, Inc., 521 F.3d 867, 103 FEP Cases 30 (8th Cir. 2008) The 8th Circuit affirmed summary judgment for the employer on Plaintiff’s ADEA claim. The court noted Plaintiff had to prove not just pretext, but also that “age was a determinative factor in [the employer’s termination] decision.” Evidence of age-based animus included comments by Plaintiff’s supervisor that “they were getting ‘too old for that type of work’ and ‘needed to retire’ ”; that Plaintiff was replaced with “younger kids”; and that “he ‘usually [didn’t] hire older guys … because [younger guys] are cheaper to work, cheaper labor.’ ” The court deemed these comments “stray remarks,” and relied on the same-actor inference (because the same supervisor who terminated Plaintiff hired him when he was 50 years old) to “conclude the evidence [wa]s insufficient to create a reasonable inference age was a determinative factor in [Plaintiff’s] termination.” The court explained “it is unlikely a supervisor would hire an older employee and then discriminate on the basis of age, and such evidence creates a presumption against discrimination.” 44

Chapter 27. Summary Judgment V.

Summary Judgment Against Claims Based on Circumstantial Evidence

Medeiros v. Pratt & Whitney Power Systems, Inc., 2008 WL 904896 (2d Cir. April 4, 2008) In examining the selection criteria used to terminate Medeiros, an older worker, during a RIF, the trial court noted the “particularly close review” required, based upon the subjective nature of the performance assessment process. The court also recognized that the reviewing supervisor had not familiarized himself with educational backgrounds or prior work experience of the employees and that another supervisor, who purportedly agreed with the assessments, did not recall such meeting. Nevertheless, the trial court held this to be “fairly weak” evidence and entered summary judgment for the employer. The 2nd Circuit held that the trial court’s ruling conflicted with the guidance of the Supreme Court that circumstantial evidence suggesting the employer’s explanation is not credible “may be quite persuasive.” The appellate court further held that the affidavit of another manager who had supervised Medeiros in the past (but not during the relevant evaluation period) should not have been excluded by the trial court. While the value of such evidence could be minimal because it might not actually prove a difference in credentials to show that a reasonable person could not have made the same decision, it was nevertheless probative of pretext and should have been considered. Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 104 FEP Cases 1482 (6th Cir. 2008) The 6th Circuit ruled that Plaintiff, a technician discharged after 37 years, was entitled to a trial of her claims that she was fired because of her age or because she filed a charge of discrimination against the employer. Plaintiff had no discipline prior to the ascension of a new CEO. The new CEO, however, immediately noted work issues with Plaintiff. He called Plaintiff into his office and complained about Plaintiff’s use of the Federal Express account, her attitude, personal relationships, and salary. He informed Plaintiff that he was reducing her salary by more than $15,000. Plaintiff was among three women over the age of 40 that received salary reductions, while all other employees received salary increases. Plaintiff filed a charge of age discrimination. Two weeks later, the CEO told Plaintiff that the lab was closing. He offered her an entry level position. Plaintiff accepted the position. Plaintiff then wrote a letter requesting that she be permitted to keep certain responsibilities and be considered for others. After receiving the letter, the CEO fired Plaintiff. Plaintiff alleged the CEO mentioned her EEOC charge in the termination meeting. The 6th Circuit reversed summary judgment, ruling that the trial court’s description of the similarly-situated standard was too narrow because an “exact correlation” between two employees is not required. Plaintiff need only show that a younger employee’s situation was similar in all relevant aspects. Because questions of fact remained as to whether plaintiff could make this showing, summary judgment was improper. For both the ADEA and retaliation claims, the court stated that the district court improperly made factual findings rather than viewing the evidence in the light most favorable to plaintiff.

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D.

Plaintiff’s Rebuttal Showing Reasons Are Pretext for Discrimination 2.

Failure to Hire or Promote Cases a.

Reliance on Subjective Criteria

Wingate v. Gage County Sch. Dist., No. 34, 528 F.3d 1074, 103 FEP Cases 927 (8th Cir. 2008) Plaintiff, a part-time teacher with the School District, attributed to age discrimination the District’s failure to hire her for a full-time teaching position after she applied four times and did not once receive an interview, each position ultimately being filled with a candidate in her late twenties/early thirties. The district court, however, granted summary judgment to the District, finding Plaintiff could not establish the District’s legitimate non-discriminatory reason (Plaintiff was not the best qualified candidate) was a pretext for age discrimination. The 8th Circuit affirmed, stating Plaintiff “presented no evidence sufficient to reject the Defendants’ proffered reasons for not hiring her as pretextual.” In response to Plaintiff’s criticism of the District’s reliance on subjective criteria, the court stated: Although we have cautioned against the advancement of subjective considerations because they are easily fabricated, we have not outright prohibited their use. With that said, the Defendants here did not rely exclusively on subjective criteria; rather, they also relied on objective criteria and legitimate educational considerations in making their hiring decisions. Thus, any use by the Defendants of subjective considerations does not give rise to an inference of age discrimination. 3.

Discharge Cases b.

Employee’s Misconduct

Bearden v. Int’l Paper Co., 529 F.3d 828, 103 FEP Cases 1032 (8th Cir. 2008) Plaintiff was terminated for altering a purchase requisition without employer authorization. The district court granted summary judgment to the employer, and Plaintiff appealed, claiming her employer’s stated reason was a pretext for age discrimination. The 8th Circuit affirmed the district court’s rejection of Plaintiff’s pretext argument, which had been supported with a mere conclusory allegation that she was replaced by a younger employee. In fact, the employer submitted evidence that Plaintiff was replaced by an employee who was 8 years older. The court also noted the absence of any record evidence that a younger employee had ever committed the same infraction and been retained, and noted the employer’s “imposition of different sanctions on employees with different job duties who failed to comply with rules of varying levels of seriousness does not permit an inference that [Plaintiff’s] termination was merely a pretext for a discriminatory motive.” Loeb v. Best Buy Co., 537 F.3d 867, 104 FEP Cases 15 (8th Cir. 2008) When Plaintiff was terminated, Human Resources (HR) told him that his position was eliminated “to reduce labor costs,” “reduce head-count,” and “streamline processes.” Best Buy also gave slightly different reasons for termination to the EEOC. The record at the summary judgment stage reflected that in fact, the termination decision-makers terminated him “because 46

they believed that he would not enjoy and was not well-suited for the next phase of the . . . project” on which he had been working. Appealing from the district court’s adverse summary judgment ruling, Plaintiff argued Best Buy’s articulated reasons for terminating him were a pretext for age discrimination, relying on the rule that “[p]retext may be shown with evidence that the employer’s reason for the termination has changed substantially over time.” The 8th Circuit acknowledged that the termination reasons given to Plaintiff were not accurate, but found this did not demonstrate pretext because the persons who articulated the reasons (HR) were not the termination decision-makers. Further, the court found the reasons given to the EEOC were not inconsistent with other reasons given, but rather, were “elaborations.” The court also rejected Plaintiff’s secondary argument that the termination decision-makers were ageist because one of them asked him how old he was, and when he told her, she was surprised because he looked and acted younger. The court found this statement not indicative of age-based animus. Finally, the court rejected Plaintiff’s pretext argument based on his younger, allegedly less qualified replacement. The court found insufficient evidence that the person “replaced” Plaintiff, or that he was less qualified than Plaintiff in any event. Roeben v. BG Excelsior L.P., 545 F.3d 639, 104 FEP Cases 1153 (8th Cir. 2008) Plaintiff was terminated by his employer, the Peabody Hotel, after he was found in unauthorized possession of a great deal of hotel property (towels, toiletries, etc.). When the employer confronted him, Plaintiff denied he stole the property, and claimed he received it as gifts from hotel vendors (although he admitted not reporting the “gifts” to his employer, as was required by hotel policy). The district court granted summary judgment to the employer, and Plaintiff appealed, arguing “the Peabody’s proffered reason for his termination was a pretext because the Peabody failed to provide conclusive evidence that he stole hotel property.” Plaintiff also claimed the Peabody had a pattern of discriminating against older employees, and relied on two age-related comments (about him being “too old” to lift boxes). The 8th Circuit rejected the employee’s argument and affirmed, noting, “Even if [Plaintiff] could show that the Peabody’s investigation was poorly conducted or that its decision was impetuous, that alone would not allow him to survive summary judgment.” The court further rejected the two age-related comments as stray remarks by a non-decision-maker. Finally, the court found Plaintiff’s claim of a pattern of age discrimination lacking in support, citing examples of terminations of younger employees for comparable misconduct, and dismissing Plaintiff’s comparators as not similarly situated. Shannon v. Barilla America, Inc., 2008 WL 5048559 (8th Cir. Dec. 1, 2008) Plaintiff was terminated from his position of forklift operator after causing several collisions. The district court granted summary judgment to the employer, and Plaintiff appealed, claiming the employer’s proffered reason was a pretext for age discrimination. Plaintiff claimed two younger employees had accidents but were not terminated, and also complained that his employer did not adequately counsel him on safety, and that the employer failed to follow its own progressive discipline policy. The 8th Circuit affirmed, rejecting Plaintiff’s arguments. First, the court rejected Plaintiff’s comparators as not similarly situated in all relevant respects. Second, the court rejected Plaintiff’s criticism of the adequacy of his employer’s counseling, focusing on the 47

undisputed facts that the collisions occurred, and Plaintiff was verbally counseled for safety at least three times. Finally, the court rejected Plaintiff’s argument about the progressive discipline policy, noting “the policy expressly noted that the company reserved the right to immediately terminate an employee,” and explaining, “In any event, we have said that an employer can certainly choose how to run its business, including not to follow its own personnel policies regarding termination as long as it does not unlawfully discriminate in doing so.” Chapter 28. Jury Trials Tolbert v. Jefferson County Comm’n, 2008 WL 4649388 (11th Cir. Oct. 22, 2008) Plaintiff, a budget analyst, alleged age discrimination by her former employer in disciplining and ultimately terminating her. The jury found for the employer, and the district court denied the employee’s motion for a new trial. The 11th Circuit affirmed the denial, because the jury’s verdict was not contrary to the great weight of the evidence presented at trial. Although the defendant employer conceded that the employee established a prima facie case of discrimination, the employee failed to rebut its legitimate, non-discriminatory reasons for her dismissal. The employer argued that it terminated her for failing to comply with its policies and her unprofessional conduct. The Court noted that all of the employee’s evidence of discriminatory animus was contradicted by witnesses that discredited the evidence. III.

Jury Instructions

Gross v. FBL Financial Servs., Inc., 526 F.3d 356, 103 FEP Cases 518 (8th Cir. 2008) The 8th Circuit reversed a judgment entered on a jury verdict for Plaintiff, based on the fact that the district court gave a final jury instruction on the “same decision” defense that told the jury its verdict must be for the employer, “if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” The court found this instruction was improper because “[t]he Price Waterhouse rule calls for a shift in the burden of persuasion only upon a demonstration by direct evidence that an illegitimate factor played a substantial role in an adverse employment decision.” (Emphasis in original.) Because Plaintiff “conceded that he did not present ‘direct evidence’ of discrimination … a mixed motive instruction was not warranted under the Price Waterhouse rule.” The court found the error was not harmless because the instruction improperly shifted the burden to the defendant on a key issue in the case; accordingly, the court reversed and remanded for a new trial. In reaching its decision, the court rejected Plaintiff’s argument that “the Civil Rights Act of 1991 and the Supreme Court’s decision in Desert Palace, Inc. v. Costa supersede Price Waterhouse and our precedents applying Price Waterhouse to the ADEA.” The court noted § 2000e-2(m) only applies to claims under Title VII, not the ADEA, and explained, “Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable.”

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Chapter 30. Defenses V.

Preclusion and Collateral Estoppel

Kelley v. Humble Independent School District, 2008 WL 4472935 (5th Cir. Oct. 3, 2008) Kelley filed an ADEA charge of discrimination with the EEOC. EEOC sent a right- tosue letter saying they were unable to conclude that the information obtained established violations of the statutes. Subsequently, Kelley filed an ADEA action against the school district in state court and the court granted summary judgment. Kelley appealed and the Texas Supreme court denied her petition for review. Having fully litigated her claim in state court she then filed her second ADEA action against the school district in federal court. The 5th Circuit affirmed the district court’s decision that having been fully litigated in state court the doctrine of claim preclusion prevented Kelley’s from relitigating her claim in federal court. Chapter 32. Public Employee Litigation I.

Federal Employee Litigation

Whitman v. Mineta, 541 F.3d 929, 104 FEP Cases 129 (9th Cir. 2008) An FAA employee claimed that his employer discriminated against him because of his age and, after he complained, retaliated against him. The district court dismissed the retaliation claim on the ground that the federal employee provision of the ADEA does not waive the federal government’s sovereign immunity for a retaliation claim. The 9th Circuit reversed based on Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008), which permits federal employee retaliation claims. Kuzdrowski v. Nicholson, 2008 WL 3272138 (3d Cir. Aug. 11, 2008) Former staff nurse brought action against the Department of Veterans Affairs (“VA”) alleging age discrimination and retaliation in violation of the ADEA. She claimed that the VA considered and denied her a promotion when she was 52 years old. The district court granted summary judgment for the VA on both claims. Specifically, it dismissed Plaintiff’s retaliation claim on jurisdictional basis finding that Congress had not waived sovereign immunity for such a claim for federal employees. Regarding Plaintiff’s age discrimination claim, the district court found that she failed to meet her burden of demonstrating a prima facie case of discrimination. The 3rd Circuit vacated the lower court’s ruling on Plaintiff’s retaliation claim based on the Supreme Court’s recent decision in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) (ADEA authorizes federal employees to bring retaliation claims). Regarding Plaintiff’s age discrimination claim under the ADEA, the 3rd Circuit affirmed the district court’s finding that Plaintiff was not similarly situated to the other employees who were promoted because she was considered in a different year than those employees and the decision was made by different decision makers. Stremple v. Nicholson, 2008 WL 3919376 (3d Cir. Aug. 27, 2008) Plaintiff, an army veteran and former Chief of Surgery at Veteran Affairs Health Care System (“VA”) in Pittsburgh, alleged he was subject to unlawful age discrimination and retaliation under federal and state law, including the ADEA. The matter was heard and ruled on by a magistrate judge after conducting a nine-day bench trial. The magistrate judge reject 49

Plaintiff’s hostile work environment claim, but found that he had established age discrimination and retaliation and awarded him $1,020,031.25 (an amount equaling 6.25 years of his Chief of Surgery salary representing compensation for the amount of time that he planned on working before retirement). The Secretary appealed the magistrate judge’s decision raising three issues: (1) the ADEA does not provide a cause of action for retaliation; (2) Plaintiff failed to meet the standard for establishing constructive discharge; and (3) Plaintiff did not properly mitigate his damages because he allowed his medical license to lapse. On the first issue, the 3rd Circuit held that this issue had been resolved by the Supreme Court’s decision in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008). Likewise, the court reviewed the magistrate judge’s credibility and an assessment of the evidence and held his constructive discharge ruling should not be disturbed. Finally, it rejected the Secretary’s claims that Plaintiff failed to properly mitigate his damages. A.

Coverage

Gomez-Perez v. Potter, 128 S. Ct. 1931, 103 FEP Cases 494 (2008) In a case involving a federal employee, the Supreme Court held that the ADEA allows a cause of action for retaliation against the federal government. Gomez-Perez was a clerk for the U.S. Postal Service (USPS) and thus a federal sector employee. In 2002, she was working full time at the post office in Dorado, Puerto Rico. She requested a transfer to another post office in order to be closer to her mother. The transfer was approved and in November she began working at the new post office on a part-time basis. That same month Gomez-Perez requested a transfer back to her old job at Dorado. Her supervisor, however, converted the Dorado position to part time, filled it with another employee and denied Gomez-Perez’ application for transfer. Gomez-Perez first sought relief by filing a grievance under her union contract. This effort was unsuccessful for reasons not disclosed in the record. She then filed an age discrimination complaint through the internal USPS complaint procedure. Gomez-Perez claimed that following the filing of the complaint she was subjected to “various forms of retaliation”. She responded to the alleged retaliatory conduct by filing a lawsuit in federal court claiming USPS had retaliated against her for filing the internal age discrimination complaint. USPS moved for summary judgment arguing the United States had not waived sovereign immunity for ADEA retaliation claims and that the ADEA federal-sector provision did not reach retaliation. The District Court agreed and granted summary judgment. Id. at 1935. The Court of Appeals affirmed on the ground that the federal-sector provision’s prohibition of discrimination did not cover retaliation. Id. at 1935-36. The Supreme Court found its decision (in favor of Gomez-Perez) was compelled by an earlier decision, Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). The claim in Sullivan arose under 42 U.S.C. § 1982. In that case, the Court had held that advocacy by a white man on behalf of an African American was “advocacy” which resulted in discrimination was cognizable under § 1982. More recently, in Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005), the Court extended Sullivan to Title IX of the Education Act of 1972. Again, “retaliation for advocacy” in the Court’s view constituted discrimination, just as retaliation for advocacy in Sullivan had been discrimination on the basis of race. Id. at 1937. The Court also noted that it

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had just ruled that retaliation claims under 42 U.S.C. § 1981 were cognizable. See CBOCS West v. Humphries, 128 S.Ct. 1960 (2008). Strackbein v. Wynne, 2008 WL 2463835 (7th Cir., June 18, 2008) An Air Force reserve non-dual status technical (NDST) brought action against the Air Force for his removal from job as a result of his being eligible to receive unreduced retirement benefits after he turned 55. Plaintiff argued the statute language covering Air Force retirement, in U.S.C. § 10218 (a)(3)(B)(ii), required retaining him in the NDST status until he was 60. The 7th Circuit upheld a decision in favor of the Air Force, finding that Plaintiff's removal from his position was not due to his age and that he did not have to be 60 years old prior to his removal despite language in the statute referencing that as a mandatory removal date. The court held that the removal of the Plaintiff at age 55 did not violate the ADEA because the Air Force statutory mandate post-dated the enactment of the ADEA and supersedes the ADEA as it is a more specific statute effecting Air Force personnel. Further, the court found that the Plaintiff's removal promoted the efficiency of the service and was not arbitrary or capricious. Triola v. Snow, 289 Fed. Appx. 414, 104 FEP Cases 691 (2d Cir. 2008) Triola, a former special services agent with the United States Customs Service, claimed retaliation on the basis of several events, some which occurred before November 25, 1998 and others which occurred afterwards. Triola’s post-November 25, 1998 claims relied upon the following alleged retaliatory acts: his transfer to JFK airport; a denied transfer request; his removal of assignment from an active case; certain detail assignments; and the retention of his personnel file and resulting delay in his retirement. The lower court dismissed the retaliation claims arising before November 25, 1998 at the close of Triola’s case at trial, and then dismissed the remaining retaliation claims at the end of the trial. According to the trial court, Triola failed to prove knowledge of his protected activity with respect to his pre-November 25, 1998 claims because Triola’s supervisor was not aware of his internal complaints. The 2nd Circuit disagreed and vacated this portion of the ruling. The knowledge requirement does not require anything more than “general corporate knowledge.” On the other hand, the appellate court affirmed the proper rejection of Triola’s evidence pertaining to events after November 25, 1998. Several of the alleged actions (the transfer to JFK and his detail assignments) were not materially adverse and the court properly credited the employer’s non-discriminatory reasons. B.

Administrative Exhaustion and Notice

Bowers v. Nicholson, 2008 WL 828845 (5th Cir. Mar. 28, 2008) Bowers applied for two positions with the Department of Veterans Affairs. After not being selected, he filed two informational complaints with the Office of Resolution Management. The EEO counselor working on his case sent him an Unreachable Notice, a Notice of Rights and Responsibilities, an Alternative Dispute Notice, and Notice of Withdrawal for each of his complaints. The counselor placed bright green sticky notes on the withdrawal forms, indicating that he should only sign the withdrawal forms if he did not want to follow through with the complaints. Bowers signed the withdrawal forms. The cases were closed and Bowers contended that he mistakenly signed the withdrawal forms. The EEO counselor then sent him forms for formal complaints, which he filed. The complaints were dismissed on the basis that he had withdrawn the informal complaints. 51

Bowers appealed to the EEOC which upheld the dismissal of his complaints. On appeal to the district court, the court found that Bowers had failed to exhaust his administrative remedies by knowingly and voluntarily withdrawing his claims. Hence, the district court dismissed his Title VII, ADEA and Rehabilitation Act claims with prejudice. The Fifth Circuit found that even if there were no sticky notes on the withdrawal forms the text of the forms provided a clear warning. On the top, in large bold print, the withdrawal form states “NOTICE OF WITHDRAWAL OF EEO COMPLAINT”. Additionally the form stated his signing the form was voluntary. Hence, Bowers did not exhaust his administrative remedies. Smithers v. Wynne, 2008 WL 53245 (11th Cir. Jan. 4, 2008) Smithers argued that he was not promoted due to age and gender discrimination. He further stated that, although he had exhausted his claims, the fact that he continued to receive a paycheck after not getting promoted was a new violation. He appealed from the district court’s grant of summary judgment in favor of the Air Force in his discrimination, retaliation and hostile environment suit under the ADEA. Smithers was unable to state what the exact comments were; he only stated that he heard that his supervisor was making derogatory comments while not in his presence. The Court of Appeals affirmed the decision of the district court because they concluded that Plaintiff’s paychecks were not continuing violations of the alleged past acts of discrimination and retaliation. Being passed over for a promotion is a discrete act and a charge of discrimination must be brought in a time manner thereafter. Interestingly, the Court stated that Smithers’ non-promotion claims were similar to the disparate pay claim made in Ledbetter v. Goodyear Tire & Rubber, 550 US 618 (2007), because he asserted that his pay would be higher but for the past discrete instances of discrimination. Thus, concluded the court, Smithers’ paychecks are not continuing violations of the alleged past acts of discrimination and retaliation. Accordingly, we affirm the district court's ruling that the failure to promote were not properly exhausted and are time-barred. However, Ledbetter was overruled when President Obama, on January 29, 2009 signed the Lilly Ledbetter Fair Pay Act (Pub. L. No. 111-2). The Ledbetter Fair Pay Act amended the ADEA in Section 7(d) by adding at the end the following: (3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

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II.

State and Local Employee Litigation C.

Sovereign Immunity

Lombardo v. Pa. Dep’t Pub. Welfare, 540 F.3d 190, 104 FEP Cases 259 (3d Cir. 2008) Plaintiff, an employee at a state-operated facility for the developmentally disabled, alleged that he was passed over for a promotion due to his age (61). After he filed ADEA claims in state court, the Commonwealth removed to federal and sought partial dismissal on sovereign immunity grounds. The district court denied the Commonwealth’s motion to dismiss holding that it waived its Eleventh Amendment immunity by voluntarily removing the case to federal court and thereby invoking that court’s jurisdiction. The 3rd Circuit reversed and remanded the case to the lower court instructing it to grant the Commonwealth’s motion. The 3rd Circuit found that state sovereign immunity includes both immunity from suit in federal court and immunity from liability. States derive sovereign immunity from suit in federal court from the Eleventh Amendment, while sovereign immunity from liability is derived from state law. State sovereign immunity preexisted the Constitution and remains intact today. Pennsylvania’s General Assembly had not waived immunity for ADEA violations. Accordingly, the 3rd Circuit found that while the Commonwealth’s voluntary removal to federal court waived its Eleventh Amendment immunity, it had not waived its sovereign immunity for liability that existed prior to the Eleventh Amendment. Chapter 35. Arbitration I.

The Enforceability of Individual Agreements to Arbitrate

Lambert v. Austin Indus., 544 F.3d 1192, 104 FEP Cases 740 (11th Cir. 2008) Plaintiff alleged age and race discrimination and unlawful retaliation. The employer filed a motion to compel arbitration under its arbitration policy, and the district court denied the motion. The 11th Circuit reversed, enforcing the employer’s “Open Door dispute resolution program” and compelling the parties to arbitrate the dispute. The Open Door policy was a company-wide workplace dispute resolution program. The application for employment, completed prior to employment, required all new hires to agree “to be bound by and accept as a condition of employment the terms of Open Door.” Also, all new hires were given a pamphlet regarding Open Door at orientation, which stated that employees “agree to waive their rights to a trial in a court of law, and agree instead to resolve all legal claims … through Open Door.” Similarly, the employer agreed to waive its rights to a trial and to resolve all disputes through Open Door. Under the program, if an employee was unable to resolve a dispute through discussion with his or her supervisor, the employee could contact an “Open Door facilitator” for assistance. The Open Door policy provided: “You should consult your Open Door facilitator to determine if your workplace dispute is appropriate for presentation to an arbitrator. If so, the facilitator will contact the AAA to initiate the process.” Plaintiff argued that the agreement to arbitrate failed for lack of consideration because the employer’s promise to arbitrate was illusory. Plaintiff argued that, through the Open Door facilitator, the employer could decide when and if an

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employee could arbitrate a dispute. The court found that the facilitator’s role within the program was to act, not as a gatekeeper with ultimate authority as to arbitrability of a dispute, but as a mentor or advisor for employees. Under the terms of the policy, employees could initiate arbitration without the assistance of the facilitator. Thus, the employer could not decide whether a dispute was arbitrated, and its agreement to arbitrate was not illusory. Plaintiff also argued that the Open Door program did not apply to claims for wrongful termination because such claims arose after employment ended. The court disagreed. Because termination is the final stage of a “workplace dispute,” and “aris[es] from or relate[s] to employment,” disputes over termination were included within the program. Plaintiff was required to arbitrate his claim for wrongful termination. Chapter 38. Collective Bargaining Agreements and Union Obligations V.

Relationship Between Arbitration and the ADEA B.

CBA Arbitration of Statutory Claims of Age Discrimination

Miller, et. al. v. American Airlines, Inc., 525 F.3d 520 (7th Cir. 2008) Plaintiffs, former flight engineers of American Airlines, brought a claim for age discrimination when the airline did not offer them a position at a comparable salary when their flight engineer jobs were eliminated. They claimed the comparable salary was required by the collective bargaining agreement. The case was originally preempted by the Railway Labor Act and arbitrated. The contract language upon which the engineers relied stated "[s]uch [salary] guarantee will be in effect until his normal flight engineer retirement date, and thereafter, his salary will be governed by the compensation plan applicable to the new position." The arbitrator interpreted this language in favor of the airline and ruled that Plaintiffs were not discriminated against by being transferred and not paid their original flight engineer salary as both were over the normal flight engineer retirement age of 65. The court deferred to the Arbitrator’s interpretation of the key contract language. The court recognized that while an ADEA lawsuit maybe brought in federal court, if the success of the claim is dependent on the interpretation of the labor agreement, the court cannot consider it. Alternatively, Plaintiffs tried to argue that they were bringing a facial challenge to the collective bargaining agreement as it identified a normal retirement age of 65, in violation of the ADEA. But the court refused to consider this claim as it was not brought before the EEOC in the original charge. Chapter 39. Remedies VI.

Compensatory Damages

Collazo v. Nicholson, 535 F.3d 41, 103 FEP Cases 1448 (1st Cir. 2008) An employee of the Department of Veterans Affairs sued for age discrimination, claiming he suffered mental and emotional distress as a result of the hostile work environment created by Defendant. Plaintiff sought compensatory damages for mental anguish, pain, suffering, humiliation and loss of enjoyment. The district court granted summary judgment because Plaintiff failed to establish that his work conditions were sufficiently severe or pervasive to create a hostile work environment. The First Circuit affirmed summary judgment for Defendant on alternate grounds, holding that, even if Plaintiff’s allegations were true, the remedy 54

he sought was not available under the statute. Although hostile work environment claims can be brought under the ADEA, “the remedy provisions of the ADEA allow awards for only those pecuniary benefits connected to the job relation, including unpaid wages or overtime compensation.” Plaintiff made no claim for pecuniary benefits related to his job or any equitable relief. Therefore, even if he were able to establish damages for pain and suffering, those damages were not available under the ADEA. Chapter 40. Attorneys’ Fees and Costs I.

In Private ADEA Litigation B.

Prevailing Defendants Not Entitled to Attorneys’ Fees Under the ADEA

Lawver v. Hillcrest Hospice, Inc., 2008 WL 5007189 (11th Cir. Nov 24, 2008) A former employee brought claims of gender discrimination, violations of the Equal Pay Act, and age discrimination. The district court granted summary judgment for her former employer as to all of her claims and awarded attorney fees to the employer as well. The 11th Circuit affirmed the summary judgment, but reversed the award of attorney fees. The court held that Plaintiff’s claims, while weak, were not frivolous or unreasonable. Her male coworker was not terminated, and the employees asked to cover her patients after her termination were younger than her. Also, two other employees stated that they had observed gender discrimination by the employer. Although the evidence did not establish prima facie case of discrimination, Plaintiff’s speculations that she was terminated based on discrimination were reasonable. N:\shared\GlennJ\Books\ADEA for ABA MidWinter Meetings\2009 ADEA Report Los Cabos\2009 ADEA 020409 mtm.doc

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TABLE OF AUTHORITIES

Cases Adam v. Kempthorne, 2008 WL 4190267 (9th Cir. Sept. 9, 2008) ..................................... 34, 37 Adams v. Lucent Technologies, Inc., 2008 WL 2776787 (6th Cir. July 17, 2008) ....................................................................................................................................... 38 Adamson v. Multi Community Diversified Servs., 514 F.3d 1136 (10th Cir. 2008) ....................................................................................................................................... 31 Aliotta v. Bair, 576 F. Supp.2d 113 (D.D.C. 2008) ........................................................ 36, 38, 39 Allen v. Highlands Hospital Corp., 545 F.3d 387, 104 FEP Cases 934 (6th Cir. 2008) ................................................................................................................................. 37, 38 Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 103 FEP Cases 708 (1st Cir. 2008) ........................................................................................................................ 11 Atanus v. Perry, 520 F.3d 662 (7th Cir. 2008) ........................................................................... 21 Auer v. Robbins, 519 U.S. 452 (1997) ......................................................................................... 42 Austin v. Louisiana Generating LLC, 265 Fed.Appx. 207 (5th Cir. 2008) ................................ 8 Baloch v. Kempthorne, 2008 WL 5396825 (D.C. Cir. 2008)..................................................... 31 Barry v. New Britain Board of Education, 2008 WL 5063290 (2d Cir. Nov. 24, 2008) ....................................................................................................................................... 12 Bearden v. Int’l Paper Co., 529 F.3d 828 (8th Cir. 2008) ......................................................... 51 Blume v. Potter, 289 Fed. Appx. 99, (6th Cir. 2008) .................................................................... 4 Boland v. Town of Newington, 2008 WL 5220942 (2d Cir. Dec. 16, 2008) ............................... 3 Bothwell v. RMC Ewell, Inc., 278 Fed.Appx. 948 (11th Cir. 2008)............................................. 6 Breitigan v. Delaware, 2008 WL 4335948 (3d Cir. Sept. 24, 2008).......................................... 15 Brillinger v. City of Lake Worth, 2008 WL 3864383 (11th Cir. Aug. 21, 2008) ...................... 32 Carras v. MGS 728 Lex, Inc., 2008 WL 5273278, 105 FEP Cases 137 (2d Cir. Dec. 19, 2008)......................................................................................................................... 26 CBOCS West v. Humphries, 128 S.Ct. 1960 (2008)................................................................... 56 Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) ..................................... 46 Cline v. BWXT Y-12, LLC, 521 F.3d 507 (6th Cir. 2008)......................................................... 5, 9 Collazo v. Nicholson, 535 F.3d 41, 103 FEP Cases 1448 (1st Cir. 2008) ................................. 60 Cossette v. U.S. Department of Agriculture, No. 08-1245, slip op., 2008 WL 4695119 (1st Cir. Oct. 27, 2008). ............................................................................................ 9 Cupples v. AmSan, LLC, 282 Fed. Appx. 205 (4th Cir. 2008).................................................. 22 Davis v. Indiana State Police, 541 F.3d 760, 104 FEP Cases 347 (7th Cir. 2008)................... 10 i

Cases Dewalt v. Meredith Corp., 288 Fed. Appx. 484, 103 FEP Cases 1582 (10th Cir. 2008) ....................................................................................................................................... 20 Diaz v. Eagle Produce L.P., 521 F.3d 1201, 103 FEP Cases 16 (9th Cir. 2008) ...................... 16 Dowlen v. Sec. of Veterans Affairs, 2008 WL 2766138 (11th Cir. July 17, 2008)................... 26 Dowling v. Citizens Bank, 2008 WL 4492640 (3d Cir. Oct. 8, 2008) ....................................... 26 Duncan v. Fleetwood Motor Homes of Indiana, Inc., 518 F.3d 486 (7th Cir. 2008) ....................................................................................................................................... 27 Dyer v. Paxson Communications Corp., 267 Fed. Appx. 901, 2008 WL 596790 (11th Cir. Mar. 6, 2008) ......................................................................................................... 21 Eidenbock v. Charles Schwab & Co., Inc., 2008 WL 25127633 (9th Cir. June 24, 2008) ........................................................................................................................... 44, 45 Faas v. Sears, Roebuck & Co., 532 F.3d 633, 103 FEP Cases 1241 (7th Cir. 2008) ....................................................................................................................................... 28 Fichman v. Media Center, 512 F. 3d 1157 (9th Cir. 2008) ......................................................... 1 Filar v. Board of Education, City of Chicago, 526 F.3d 1054 (7th Cir. 2008) ........................ 28 Fitzgerald v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008).................................................... 49 Francis v. Elmsford School Dist., 263 Fed. Appx. 175, 2008 WL 345489 (2d Cir. 2008) ............................................................................................................................... 18 Fuentes v. Postmaster Gen. of U.S.P.S., 282 Fed.Appx. 296, 102 FEP Cases 906 (5th Cir. 2008)................................................................................................................. 33 Goldstein v. Sprint United Management Co., 2008 WL 2914967, 103 FEP Cases 1699 (10th Cir. July 30, 2008) ................................................................................... 22 Gomez-Perez v. Potter, 128 S. Ct. 1931, 103 FEP Cases 494 (2008)................................... 54, 55 Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 2008) .................................... 34, 53 Gupta v. New York City School Construction Authority, 2008 WL 5273120 (2d Cir. Dec. 19, 2008) ................................................................................................................. 15 Hazen Paper Company v. Biggins, 507 U.S. 604 (1993) ...................................................... 13, 14 Henwood v. Unisource Worldwide, Inc., 282 Fed. Appx. 26, 2008 WL 2415261 (2d Cir. 2008)......................................................................................................................... 35 Hinds v. Sprint/United Management Company, 523 F.3d 1187, 103 FEP Cases 145 (10th Cir. 2008)............................................................................................................... 15 Holder v. Nicholson, 2008 WL 2812481 (11th Cir. July 23, 2008) .......................................... 33 Holender v. Mutual Industries North Inc., 527 F.3d 352 (3d Cir. 2008).................................. 43 Hudson v. Shaw Environmental & Infrastructure, Inc., 267 Fed. Appx. 892, 2008 WL 596762 (11th Cir. Mar. 6, 2008) ........................................................................... 21 ii

Cases Hughes v. Brinker Intern’l Inc., 2008 WL 2325645 (5th Cir. June 6, 2008)........................... 30 Hunter v. Rowan Univ., 2008 WL 4874469 (3d Cir. Nov. 12, 2008) ........................................ 23 Imwalle v. Reliance Medical Products, Inc. et al., 515 F.3d 531 (6th Cir. 2008)........................ 7 Jackson v. Birmingham Bd. of Ed., 544 U.S. 167 (2005)..................................................... 55, 56 Jenkins v. Lifetime Hoan Corporation, 259 Fed. Appx. 863, 2008 WL 77775 (7th Cir., Jan. 8, 2008) .......................................................................................................... 23 Joseph v. City of Dallas, 2008 WL 1976619 (5th Cir. May 6, 2008) ........................................ 10 Kentucky Retirement System v. EEOC, 128 S. Ct. 2361 (2008) ................................................ 13 Kilpatrick v. Tyson Foods, Inc., 268 Fed. Appx. 860, 2008 WL 624032 (11th Cir. Mar. 10, 2008)................................................................................................................ 19 Kuzdrowski v. Nicholson, 2008 WL 3272138 (3d Cir. Aug. 11, 2008) ..................................... 54 Lahar v. Oakland County, 2008 WL 5102411 (6th Cir. Dec. 4, 2008) ....................................... 3 Lambert v. Austin Indus., 544 F.3d 1192 (11th Cir. 2008)........................................................ 58 Lawver v. Hillcrest Hospice, Inc., 2008 WL 5007189 (11th Cir. Nov 24, 2008)...................... 60 Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) .......................................................................................................... 13, 57 Loeb v. Best Buy Co., 537 F.3d 867 (8th Cir. 2008) .................................................................. 51 Lombardo v. Pa. Dep’t Pub. Welfare, 540 F.3d 190 (3d Cir. 2008) .......................................... 58 Malloy v. Potter, 266 Fed. Appx. 424 (6th Cir. 2008)................................................................. 23 Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 104 FEP Cases 1482 (6th Cir. 2008)............................................................................................................... 50 Maughan v. Alaska Airlines, Inc., 2008 WL 2372486, 103 FEP Cases 1069 (10th Cir. June 12, 2008) ...................................................................................................... 28 Mauskopf v. District 20 of the New York Dept. of Ed., 2008 WL 4858810 (2d Cir. Nov. 10, 2008)................................................................................................................. 24 Maxwell v. Springer, 274 Fed.Appx. 186 (3d Cir. 2008) ........................................................... 12 McKnight v. Gates, 282 Fed. Appx. 394 (6th Cir. 2008) ........................................................... 11 Meacham v. Knoll Atomic Power Laboratories, Inc., 128 S. Ct. 2395, 103 FEP Cases 908 (2008) .................................................................................................................... 39 Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008).................................... 35 Medeiros v. Pratt & Whitney Power Systems, Inc., 272 Fed. Appx. 78, 2008 WL 904896 (2d Cir. 2008)............................................................................................................ 49 Mickey v. Zeidler Tool and Die Company, 516 F.3d 516 (6th Cir. 2008) .............................. 5, 32 Miller, et. al. v. American Airlines, Inc., 525 F.3d 520 (7th Cir. 2008) .................................... 59 iii

Cases Mincey v. University of Rochester, 262 Fed. Appx. 319, 2008 WL 190506 (2d Cir. 2008) ............................................................................................................................... 24 Minetola v. Commonwealth Tel. Co., 2008 WL 4748216 (3d Cir. Oct. 30, 2008) ................... 29 Montano v. Christmas by Krebs Corp., 293 Fed. Appx. 625 (10th Cir. 2008) ......................... 46 Mudholkar v. University of Rochester, 261 Fed. Appx. 320, 2008 WL 213888 (2d Cir. 2008)......................................................................................................................... 12 Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 103 FEP Cases 1232 (2d Cir. 2008)................................................................................................................... 14, 44 Papasmiris v. District 20 of the New York Dept. of Ed., 2008 WL 4845094 (2d Cir. Nov. 10, 2008)................................................................................................................. 24 Phillips v. Aaron Rents, Inc., 262 Fed. Appx. 202, 2008 WL 111038 (11th Cir. Jan. 11, 2008) ......................................................................................................................... 25 Ramsey v. Labette Co. Medical Ctr., 2008 WL 4672248, 104 FEP Cases 1260 (10th Cir. Oct. 23, 2008) ........................................................................................................ 29 Roeben v. BG Excelsior L.P., 545 F.3d 639 (8th Cir. 2008)...................................................... 52 Ruleford v. Tulsa World Publishing Co., 2008 WL 467808 (10th Cir. Feb. 22, 2008) ....................................................................................................................................... 34 Sabinson v. Trustees of Dartmouth College, 542 F.3d 1, 104 FEP Cases 321 (1st Cir. 2008) .......................................................................................................................... 7 Sanders v. Southwestern Bell Telephone, L.P., 544 F.3d 1101, 104 FEP Cases 833 (10th Cir. 2008)............................................................................................................... 17 Shannon v. Barilla America, Inc., 2008 WL 5048559 (8th Cir. Dec. 1, 2008) ........................ 52 Skidmore v. Swift & Company, 323 U.S. 134 (1944)............................................................ 42, 43 Smith v. City of Jackson, 544 U.S. 228 (2005)............................................................................ 36 Smithers v. Wynne, 2008 WL 53245 (11th Cir. Jan. 4, 2008).................................................... 57 Sprint/United Management Company v. Mendelsohn, 128 S. Ct. 1140 (2008) .................. 47, 48 Steele v. Kroenke Sports Enterprises, L.L.C., 2008 WL 360614 (10th Cir. Feb. 11, 2008) ................................................................................................................................. 46 Stone v. Geico Gen. Ins. Co., 2008 WL 2191777 (11th Cir. May 28, 2008)............................... 2 Strackbein v. Wynne, 282 Fed. Appx. 443, 2008 WL 2463835 (7th Cir., June 18, 2008) ................................................................................................................................. 56 Stremple v. Nicholson, 289 Fed. Appx. 571, 2008 WL 3919376 (3d Cir. Aug. 27, 2008) ................................................................................................................................. 54 Sullivan v. Little Hunting Park, 396 U.S. 229 (1969)................................................................. 55 Summers v. Winter, 2008 WL 5227192 (11th Cir. Dec. 16, 2008 ............................................. 40 iv

Cases Tolbert v. Jefferson County Comm’n, 2008 WL 4649388 (11th Cir. Oct. 22, 2008) ....................................................................................................................................... 52 Torrech-Hernandez v. General Electric Co., 519 F.3d 41, 102 FEP Cases 1551 (1st Cir. 2008) ........................................................................................................................ 19 Tratree v. BP North American Pipelines, Inc., 2008 WL 1924171, 103 FEP Cases 603 (5th Cir. May 2, 2008) ......................................................................................... 17 Triola v. Snow, 289 Fed. Appx. 414, 104 FEP Cases 691 (2d Cir. 2008)............................. 6, 56 Tubergen v. St. Vincent Hospital and Health Care Center, 517 F.3d 470 (7th Cir. 2008) ............................................................................................................................... 18 Van Voorhis v. Hillsborough County Bd. of County Comm’rs, 512 F.3d 1296, 102 FEP Cases 513 (11th Cir. 2008) ..................................................................................... 10 Venetian Casino Resort, LLC v. Equal Employment Opportunity Commission, 530 F.3d 925 (D.C. Cir. 2008)............................................................................................... 40 Vinnett v. General Elec. Co., 271 Fed. Appx. 908 (11th Cir. 2008)............................................. 1 Ward Cove Packing Company v. Atonio, 490 U.S. 642 (1989) .................................................. 36 Warrillow v. Qualcomm, Inc., 2008 WL 538923 (9th Cir. Feb. 28, 2008) ............................... 48 Whitman v. Mineta, 541 F.3d 929, 104 FEP Cases 129 (9th Cir. 2008)............................. 12, 54 Williams v. Dover Downs, Inc., 288 Fed.Appx. 29 (3d Cir. 2008)............................................ 30 Wingate v. Gage County Sch. Dist., No. 34, 528 F.3d 1074 (8th Cir. 2008)............................. 50 Wooler v. Citizens Bank, 274 Fed.Appx. 177 (3d Cir. 2008) .................................................... 25 Ximines v. George Wingate High School, 516 F.3d 156, 102 FEP Cases 1284 (2d Cir. 2008)......................................................................................................................... 45 Yeschick v. Mineta, 521 F.3d 498 (6th Cir. 2008)......................................................................... 9

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