On October 15, 2007, the Sixth Circuit reversed a summary judgment which had been entered in favor of an employer in an age discrimination case and began its opinion as follows:
"When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can."
In Blair v. Henry Filters, Inc., No. 05-2437, the court returned the case to the district court for trial. The employer lost on appeal even though it showed that it had laid off two under-40 employees at the same time as plaintiff (and had reduced its workforce from 143 employees to just 52 employees in only two years) and the employer's witnesses denied the plaintiff’s version of events and that the decisionmaker was the same person making the ageist comments alleged by the plaintiff. However, courts are not permitted to weigh credibility at the summary judgment stage.
The appellate court noted that the comment about the plaintiff being “too old” to be handling the employer’s Ford account was direct evidence of his removal from the Ford account on account of his age, but was not direct evidence that he was terminated on account of his age. However, the cumulative effect of the comments and the fact that a twenty-year old salesperson was hired in some capacity four months later were enough to create a circumstantial case of age discrimination. The court also noted that plaintiffs in a RIF case had a lower burden of proof than in the typical discrimination case:
"We recognize that this holding comes close to permitting a plaintiff in a reduction-in-force case to get to a jury merely by creating a genuine issue of material fact regarding the prima facie case. But to create a genuine issue of material fact regarding the employer’s actual motivation, a plaintiff must still provide evidence from which a reasonable jury could conclude that an illegal motivation was more likely the reason for the adverse employment action. To create a genuine issue of material fact regarding the prima facie case in a case involving a reduction-in-force, a plaintiff’s standard is lower. The plaintiff must supply evidence tending to indicate that the employer singled the plaintiff out for impermissible reasons. Accordingly, creating a genuine issue of material fact regarding the prima facie case is not a free pass to a jury, even in a reduction-in-force case."
The employer could take some solace in the fact that the appellate court affirmed the dismissal of the plaintiff's hostile work enviornment claims on the grounds that the same discriminatory comments which created the circumstantial evidence of age discrimination were insufficient to interfere with his job performance.
Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/052437p.pdf.
