Friday, March 14, 2014

Respect Your Elders: Lessons from Age Discrimination Cases

Age discrimination is an under-utilized tool for redressing workplace grievances, in part due to the perception by practitioners that it is difficult to prevail on claims under the Age Discrimination in Employment Act, (“ADEA”), 29 U.S.C. § 621, et seq. One sad consequence of this is that the body of law surrounding age discrimination is often overlooked when bringing claims related to other protected characteristics. This is unfortunate because, as with many other areas of life, our elders have much to teach us. This article is a discussion of some of the areas in which age discrimination case law can inform our approach to the litigation of discrimination based on other protected characteristics.


“The lawyer’s truth is not Truth, but consistency or a consistent expediency.”
- Thoreau

Pointing to inconsistent explanations proffered by an employer for an adverse employment action is a time-honored way of demonstrating pretext under the McDonnell-Douglas framework. Several recent age-related cases dealt with the circumstances under which inconsistent performance evaluations would be capable of giving rise to a similar inference of discrimination.

In Barker v. Ellington Bd. of Educ., No. 3:12-cv-00313, 2013 U.S. Dist. LEXIS 171324, 2013 WL 6331159 (D. Conn. Dec. 5, 2013), the plaintiff, an elementary school teacher, was terminated when her contract was not renewed. Plaintiff alleged that the decision not to renew her contract was due to age discrimination, and brought suit under the ADEA.

In defense of its non-renewal decision, the School Board cited poor performance evaluations received by Ms. Barker during the school year preceding her termination. Barker, 2013 U.S. Dist. LEXIS at *32-34. Ms. Barker argued that these evaluations were internally inconsistent in that the narrative comments and notes prepared in support of the evaluations contradicted the criticism of her performance made elsewhere in the evaluation and that, as such, it was permissible for the jury to infer that the School Board’s stated reason for termination was pretextual. Id. For example, one of the criticisms contained in Ms. Barker’s performance evaluation was that she did not give a “clear statement of her lessons”, but in the supporting description of Ms. Barker’s teaching, the evaluator noted that she “read[] an opening statement from the book” and “referr[ed] to a cork board describing the subject of the lesson.” Id. at 34-35 (internal quotations omitted).

Although recognizing that an employer’s termination decision need not be correct – or even rational – the Court nevertheless denied summary judgment to the employer. Id. at 38. The Court, citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), denied the employer’s motion for summary judgment, explaining that “discriminatory intent can be inferred from the falsity of an employer’s justification for its adverse action[,]” and that the internal contradictions in the plaintiff’s performance evaluation, upon which the employer had based its termination decision, were capable of giving rise to an inference of discriminatory intent. Id. at *37-*38.

Not all disagreements surrounding a performance review are sufficient to demonstrate the “falsity of an employer’s justification” sufficient to support an inference of discrimination. In Mattera v. JPMorgan Chase Corp., the federal district court for the Southern District of New York granted the employer’s motion for summary judgment based, in part, on its holding that neither “an employee’s disagreement with her employer’s evaluation of her performance” nor the “claim that he had received good performance evaluations in the past” were sufficient to create an inference of discrimination. 740 F. Supp. 2d 561, 576-77 (S.D.N.Y. 2010). In so holding, the Court explained that “[d]isagreements regarding poor performance evaluations and claims of prior good performance do not, as a matter of law or logic, mean that present poor performance reviews were unfounded.” Id. at 574. Similarly, in Godfrey v. Ethan Allen, Inc., the Second Circuit noted “[t]hat [plaintiff] had been favorably evaluated in the past is irrelevant.” No. 96-7978, 1997 U.S. App. LEXIS 12334 at *6 (2d Cir. May 23, 1997); see also Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991) (“Prior good evaluations alone cannot establish that later unsatisfactory evaluations are pretextual”).

To leverage inconsistent performance reviews into evidence supporting an inference of discrimination, employees should simply focus on how the inconsistencies identified meet the traditional burden of demonstrating the falsity of the proffered reason for termination. The most obvious of such circumstances is when the evaluation which led to the adverse action is, itself, internally inconsistent, as was the case in Barker. Even if the evaluation is not internally inconsistent, unfavorable evaluations might still give rise to an inference of discrimination in context with other data – for example, if the unfavorable review states criticisms distinct from those contained in a termination memo, if they are inconsistent with objective performance metrics generated around the same time as the performance review, or if the criticisms in the performance evaluation are otherwise provably false.


“I adore adverbs; they are the only qualifications I really much respect.”
- Henry James

To establish a prima facie case of age discrimination, a plaintiff must show, among other things, that she was qualified for the job in question. See Blizzard v. Marian Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012). At this stage, however, the plaintiff can carry this burden by demonstrating that her qualifications are “at least equivalent to the minimum objective criteria for employment in the relevant field.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003). Although these qualifications can vary, they generally include such criteria as education, experience, and demonstrated possession of the pertinent skills. Id. at 576. Significantly, the question of whether an employee possesses a “subjective” quality – such as leadership or management skill – is left to a later stage of the McDonnel Douglas analysis. See Celluci v. RBF Citizens, N.A., Civ. No. 12-6038, 2013 U.S. Dist. LEXIS 177282 (E.D. Pa. Dec. 18, 2013) quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990).

In Isolato v. Kelly Servs., the federal district court for the Eastern District of Michigan addressed whether a plaintiff’s claim for Social Security Disability Insurance (“SSDI”) benefits prevented him from demonstrating he was qualified for a particular job. 945 F. Supp. 2d 825, 830, 834-35 (E.D. Mich. 2013). Prior to initiating litigation, plaintiff had filed for SSDI benefits as an individual who was “totally disabled”, and indicated in that filing that he was “disabled and unable to perform any substantial gainful activity[.]” Id. at 835.

In approaching this question, the Court in Isolato first noted that, under the Supreme Court’s analysis in Cleveland v. Policy Mgmt. Sys. Corp., 326 U.S. 795 (1999), the receipt of SSDI benefits did not automatically estop the recipient from pursuing an ADA claim, but that such receipt did create a “strong presumption” against the success of such a claim that the recipient must rebut. Isolato, 945 F. Supp. 2d at 830. The Court found that this analysis applied equally to claims under the ADEA. Id. at 831; see also McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 463-64 (5th Cir. 2005) (applying Cleveland to ADEA claims); Detz v. Greiner Indus., Inc., 346 F.3d 109 (3d Cir. 2003) (same).

Finding that Plaintiff had not presented an explanation for the statements made in his application for SSDI benefits and the instant lawsuit, the Court granted defendant’s motion for summary judgment. Id. at 835. In so holding, the Court distinguished the holding of the Sixth Circuit in Kiely v. Heartland Rehabilitation Servs., 359 F.3d 386 (6th Cir. 2004) in which the Sixth Circuit had found that plaintiff’s assertion that he was “legally blind” was not necessarily inconsistent with his assertion that he was qualified to perform his job. In Kiely, the Court noted that a reasonable juror could find that plaintiff’s claim for SSDI was based upon his blindness, not an inability to work. Id. at 390.

To preserve claims for employment discrimination, whether under the ADEA, ADA, or otherwise, counsel should make note of the distinction, identified by the court in Isolato, between an assertion that an employee’s disability entitles them to benefits and an assertion that an employee’s inability to work entitles them to benefits. To the extent possible, an applicant for SSDI benefits should focus the claim on proving that the applicant meets the criteria listed for one or more particular disability(ies), rather than on an inability to find work. See Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992) (holding that an award of SSDI benefits based on a particular disability was not inconsistent with a claim of discrimination). Even to the extent that an SSDI benefits applicant cannot so phrase such claims, the applicant should be careful about the statements made in the application regarding the applicant’s ability to perform work.


“That terrible mood of depression of whether it’s any good or not is what is known as the Artist’s Reward.”
- Ernest Hemingway

An employee claiming damages for lost wages is required to make efforts to mitigate his or her damages by obtaining comparable employment. Waver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527-28 (11th Cir. 1991). These efforts must be “reasonable under the circumstances”. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982).

In Harris v. CVS Caremark Corp., No. 1:11-cv-732, 2013 U.S. Dist. LEXIS 11591, 2013 WL 365259 (N.D. Ala. Jan. 29, 2013), the federal district court for the Northern District of Alabama was faced with the question as to whether, and to what extent, mental impairments suffered by the plaintiff impact the nature of efforts which are reasonable “under the circumstances”. In Harris, the plaintiff had, in fact, accepted a job, but failed to actually start in that position due to his depression over his termination. Id. at *10. It is not clear from the decision whether or not plaintiff had received a clinical diagnosis of depression. In any event, the Court held that this testimony, as well as other testimony from plaintiff regarding the negative impact that defendant’s termination of his employment had on his mental state, created a triable issue of fact as to whether plaintiff had taken reasonable steps under the circumstances to mitigate his damages. Id. at *35.


“Fools ignore complexity. Pragmatists suffer it. Geniuses remove it.”
- Alan Perlis

The Supreme Court first recognized that Title VII extended to discrimination against identifiable sub-groups of protected classes in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). In Phillips, the court held that Title VII prohibited discrimination against a sub-group of women who had pre-school-age children. Id. at 544. The holding in Phillips has since been expanded to include other sub-groups. E.g. Jefferies v. Harris Cty. Community Action Ass’n, 615 F.2d 1025 (5th Cir. 1980) (combination of race and sex discrimination); Sprogis v. United Airlines, 444 F.2d 1194, 1194-98 (7th Cir. 1971) (marital status); see also Minna J. Kotkin, Diversity & Discrimination: A Look at Complex Bias, 50 Wm. & Mary L. R. 1439 (April 2009); Bradley Allen Areheart, Intersectionality and Identity: Revisiting a Wrinkle in Title VII, 7 Geo. Mason U. Civ. Rts. L.J. 199, 201-202 (2006); Darren Lenard Hutchinson, Identity Crisis and the Development of an Adequate Theory of Subordination, 6 Mich. J. Race & L. 285, 308-309 (2001); Rosalio Castro & Lucia Corral, Comment: Women of Color and Employment Discrimination: Race and Gender Combined in Title VII Claims, 6 La Raza L.J. 159, 162 (1993); Virginia W. Wei, Note, Asian Women and Employment Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined Factors of Race, Gender & National Origin, 37 B.C.L.R. 771, 776 (1996); Elizabeth V. Spelman, Inessential Women: Problems of Exclusion in Feminist Thought, 114-32 (1988); Elaine W. Shoben, Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination, 55 N.Y.U. L. R. 793, 793-98 (1980); Joanne Song, Between the Cracks: Discrimination Laws and Older Women, Univ. Cal. At Irvine Dept. of Economics (April 2011) (available at: (accessed March 13, 2014).

While such intersectional claims are broadly recognized, some courts have resisted attempts by plaintiff to “combine the protected categories[.]” See Ganaway v. Pittsburgh Dept. of Public Safety, No. 2:05-cv-1657, 2008 U.S. Dist. LEXIS 8077 (W.D. Pa. Feb. 4, 2008); Taylor v. Procter & Gamble Dover Wipes, 184 F. Supp. 2d 402, 407 (D. Del. 2002); Floyd v. New Jersey, Civ. No. 89-5293, 1991 U.S. Dist. LEXIS 10102 ((D.N.J. July 16, 1991) (all holding that Title VII protects sex or race, each of which must be analyzed separately); but see Shazor v. Prof’l Transit Mgmt., Ltd., No. 13-3253, 2014 U.S. App. LEXIS 2943, 2014 WL 627406 (6th Cir. Feb. 19, 2014) (allowing an intersectional sex-plus-race claim to proceed, holding that “Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds”); Chadwick v. Wellpoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009) (noting that “sex plus” claims are permitted when not all members of a disfavored class are discriminated against).

In Doucette v. Morrison Cnty., No. 12-cv-00373, 2013 U.S. Dist. LEXIS 75177, 2013 WL 2359660 (D. Minn. May 29, 2013), the Court addressed a case of intersectional, “sex-plus” age discrimination under the Minnesota Human Rights Act, Minn. Stat. § 363A.01, et seq. Although the Minnesota Supreme Court has not held that age is a criteria which an employer could use to discriminate against some members of one sex but not the others, the Court noted that “district courts within this circuit have recognized sex-plus-age claims[.]” Id. at *35-*36; see also Hall v. Mo. Highway & Transp. Comm’n, 995 F. Supp. 1001, 1005 (E.D. Mo. 1998). In Doucette, the Court found that, even if a sex-plus-age claim had been properly pled, that it would fail to survive the employer’s motion for summary judgment. Doucette, 2013 U.S. Dist. LEXIS 75177 at *36. The evidence adduced by plaintiff included a claim that younger women were treated more favorably than plaintiff and that older men were likewise treated more favorably than plaintiff due to the “old boys club.” Id. at *36-*37. This evidence, however, did not demonstrate that the adverse disciplinary actions taken against plaintiff were on account of her age and sex, or that the stated reasons for her termination were a pretext for discrimination.

On the federal level, it is not yet clear whether the ADEA, as opposed to Title VII, can support a claim for “intersectional” discrimination. The Second Circuit, in Gorzynski v. JetBlue Airways Corp., the Court seemed to accept such a claim, explaining that “there is no need for us to create an age-plus-sex claim independent from [plaintiff’s] viable ADEA claim. Even if some subset off employees protected by the ADEA were not subject to age-based discrimination were not subject to age-based discrimination, [plaintiff] may still have encountered such discrimination.” 596 F.3d 93 (2d Cir. 2010). In Wittenburg v. Am. Express Fin. Advisors, Inc., No. 04-922, 2005 U.S. Dist. LEXiS 29471 (D. Minn. Sept. 19, 2005) the court denied summary judgment on plaintiff’s combined sex-plus-age discrimination. On appeal, the Eighth Circuit divided the claims and considered them individually, finding each sufficient standing alone, and did not comment on the district court’s alternate analysis. Wittenburg v. Am. Express Fin. Advisors, Inc., 464 F.3d 831 (8th Cir. 2006).

Two cases from the Eastern District of Pennsylvania further illustrate the approach courts have taken to this issue. In Arnett v. Aspin, the federal district court for the Eastern District of Pennsylvania noted that such “sex-plus” under Title VII do not “allege that an employer discriminated against a protected class as a whole, but rather that the employer disparately treated a subclass within the protected class.” 846 F. Supp. 1234, 1238 (E.D. Pa. 1994). In Arnett, the defendant argued that plaintiff’s claims of age discrimination under the ADEA and sex discrimination under Title VII should be construed as two separate claims. Id. at 1237. While noting that age discrimination claims could be brought only under Title VII, the Court nonetheless allowed a “sex-plus-age” claim to proceed under Title VII. Id. at 1240-41.

The next year, the Eastern District of Pennsylvania addressed the question of whether an “age-plus” claim was cognizable under the ADEA, rather than Title VII. See Kelly v. Drexel Univ., 907 F. Supp. 864 (E.D. Pa. 1995). Recognizing that Arnett had not specifically addressed this issue, the Court held that there was “no authority to recognize an “age-plus-disability” discrimination claim under the ADEA. Id. at 875 n.8. As such, plaintiff was not entitled to protection as a subclass of older, disabled, workers. Id. For further discussion of the decision in Kelly, see Kotkin, 50 Wm. & Mary L. Rev. at 1480.

Other courts have reviewed the evidentiary requirements for such intersectional or “complex” discrimination claims in more detail. For example, in Jefferies v. Thompson, the federal district court for the District of Maryland addressed a situation in which the plaintiff, an African American woman, claimed discrimination based on her age, sex, race, and her “race and gender combined”. 264 F. Supp. 2d 314, 319 (D. Md. 2003). While finding sufficient direct evidence to deny summary judgment as to the plaintiff’s race claim, the court was more skeptical regarding her “complex” claim of race and gender discrimination. In analyzing this claim, the court noted that “the more specific the composite class in which the Plaintiff claims membership, the more onerous [the plaintiff’s burden of persuasion] becomes.” Id. at 327. This is, at least in part, due to the difficulty in collecting sufficient evidence to permit a meaningful comparison between the plaintiff’s sub-group and employee’s in general. Id. at 328.

Employment attorneys should be aware of the remedies for intersectional discrimination. In particular, the Fifth Circuit in Jefferies and the Sixth Circuit in Shazor both took strong stands against allowing plaintiffs to “fall through the cracks” merely because biases against their race, sex, or other protected characteristic was, in essence, triggered by another characteristic, whether protected or unprotected. Plaintiffs may want to adopt the phrasing of the Second Circuit in Gorzynski, when it held that plaintiffs are protected from discrimination, whether under Title VII, the ADEA, or otherwise, based on their protected characteristics regardless of whether other individuals who shared those protected characteristics experienced discrimination.


“Retirement may be looked upon either as a prolonged holiday or as a rejection, a being thrown on to the scrap-heap.”
- Simone de Beauvoir

While perhaps less broadly applicable than the other subjects dealt with herein, one additional issue faced by older workers involves retirement-related inquiries by their employers. Several courts have addressed the question of whether such inquiries are capable of giving rise to an inference of discrimination. The reasoning behind the refusal of courts to use such inquiries to infer discriminatory intent on the part of employers is instructive in other matters involving employer inquiries regarding unprotected activities or characteristics correlated with protected characteristics.

In DeBarr v. Cleveland Clinic Found., the federal district court for the Northern District of Ohio granted the employer’s motion for summary judgment on the employee’s claim of age discrimination. 917 F. Supp. 2d 676, 683 (N.D. Ohio 2013). In that case, the plaintiff had relied, in part, on several inquiries from his employer over a period of years regarding if and when plaintiff was planning to retire. Id. In each instance the plaintiff-employee indicated he had no plans to retire. Id. The Court found that these exchanges did not provide direct evidence of age discrimination “because they do not require the conclusion that plaintiff was terminated because of his age, and require inferences by a fact finder.” Id.

In Colosi v. Electri-Flex Co., the plaintiff asked the court to infer discriminatory intent from, among other evidence, two occasions on which plaintiff’s supervisor asked him when he was intending to retire. 965 F.2d 500, 502 (7th Cir. 1992). Noting first that “[t]here is no direct evidence of age discrimination” the Seventh Circuit held that the retirement-related exchanges did not create an inference of discrimination because “a company has a legitimate interest in learning its employees’ plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful conduct.” Id. Similarly, in Doucette, the federal district court for the District of Minnesota found that a retirement inquiry did not provide evidence of discriminatory intent, reasoning that “[t]he question itself was neutral, and [plaintiff] makes no effort, beyond repeating it, to indicate how it demonstrates discriminatory intent.” 2013 U.S. Dist. LEXIS 75177 at *38-*39.

In sum, employees will face an uphill battle in using evidence of inquiries related to legitimate employer interests as either direct or indirect evidence of discrimination, even if those inquiries are tangentially related to protected characteristics. Of course, some laws, such as the Genetic Information Non-Discrimination Act, 122 Stat. 881 (May 21, 2008) (“GINA”) prohibit a broad swathe of what might otherwise be potentially legitimate inquiries, so it is important that employment lawyers think beyond traditional Title VII remedies when representing clients in such circumstances.

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