Sixth Circuit: Plaintiff’s Evidence Sufficient to Show Pretext of Age Discrimination Even Though Plaintiff’s Work Was Absorbed by Remaining Employees

Last week, the Sixth Circuit issued a decision reversing summary judgment given to an employer on an age discrimination claim, although it affirmed dismissal of the ADA and ERISA claims that the plaintiff was fired because of the health insurance costs incurred because of his wife’s disability.   Gaglioti v. Levin Group, Inc.,  No. 11-3744 (6^th Cir. 12-13-12). The Court found that the plaintiff produced enough evidence for the jury to find pretext because the employer informed him and insisted throughout the litigation that it had terminated him because his position had been temporary even though the plaintiff denied this and he received health insurance like a regular employee.   Further, the employer did not argue until the litigation phase that his termination was motivated by his poor performance.  The employer also raised late in the process that there was not enough work for the plaintiff to do even though the evidence established that two younger accountants had been hired after the plaintiff and the small department continued to grow after plaintiff’s termination.  Finally, the employer’s two decisionmakers each gave different reasons for why the plaintiff was terminated.  While none of the evidence proved that the plaintiff was terminated on account of his age, the evidence was sufficient for a jury to reject the employer’s business explanation for his termination.   Moreover, the Court concluded that it was not required to grant summary judgment under the same actor inference – i.e., because the same person that hired the plaintiff in 2008 was the same person who fired him in 2009 regardless of his age.

One of the interesting issues in this litigation was that the Courts concluded that the plaintiff could prove a prima facie case even though no younger employees were hired after his termination.  Instead, his work was distributed among two younger accountants hired after he was hired, but months before he was fired.  The employer had argued that – unlike the plaintiff -- they had always been designated as permanent, regular employees.  Because the Court ultimately found there was a factual dispute as to whether the plaintiff had been hired as a temporary employee, it rejected the employer’s argument.  However, this argument has been successful in countless other cases where the plaintiff was indisputably a regular employee and was terminated for a lack of work, so it’s unclear why the plaintiff’s temporary status was even relevant.   “The district court was correct to find that the retention of two younger accountants while [the plaintiff] was terminated is sufficient for [him] to meet his modest burden of proving a prima face case of  discrimination.”

Interestingly, the Court rejected the plaintiff’s argument that pretext could be shown by the employer’s differing explanations for his termination.  The employer contended on some level from the date of his termination through litigation that the plaintiff had been terminated because his position had been temporary.  At the EEOC level, the employer added that there was no further need for his services.  It was not until the summary judgment stage of the litigation that the employer produced evidence of poor performance partially motivating its decision (based on a complaint from a single individual that plaintiff was too slow).   Because the employer never abandoned the temporary position argument, the Court refused to find that the employer’s differing explanations, by itself, was enough to create sufficient evidence of pretext for a jury to consider.  (Not so coincidentally, the plaintiff conceded the truth that a complaint had been about him).  Nonetheless, the Court was clearly troubled by the inconsistencies in the employer’s justifications. “While this fact may not be enough to show a changing rationale, it would allow the jury to view the performance argument as a litigation strategy, as opposed to the real reason for the action.”

The key decisionmakers also could not agree on whether poor performance motivated the plaintiff’s termination.  The Company president said his poor performance played a role, while the plaintiff’s supervisor insisted that it was the temporary nature of his position and lack of work that motivated the termination.  “Inconsistent reasons given by key decision-makers as to the reason for the firing can provide evidence of pretext.”

What the Court focused on was the fact that the plaintiff received health insurance from his first day of work even though the employer’s employee handbook said this benefit was only for regular employees.   The company’s president also testified that he understood that the plaintiff had been a regular employee.   The only evidence that the plaintiff had ever been informed that he was merely a temporary employee came solely from the company’s president and the plaintiff’s supervisor.  Thus, the jury could infer that the later characterization of the plaintiff as a temporary employee was a post-hoc explanation created to disguise the real motivation for the plaintiff’s termination.

More fundamentally, to survive summary judgment, Gaglioti is not required to disprove the contention that his employers always viewed him as a temporary employee to—he simply has to show that it would be reasonable for a juror not to believe Levin Group’s claim. The discrepancy between Gaglioti’s official job classification and Levin Group’s purported understanding of his role is a reason to doubt Levin Group’s account, particularly when the only evidence to support this explanation is the potentially self-serving testimony of Levin and Pursley.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.