Friday, July 2, 2010

Plaintiff Loses ADEA Appeal Accusing Employer of Discrimination in Refusing Reinstatement

An interesting case out of the Tenth Circuit where a 56-year-old former UPS driver did not contest his termination but contested that UPS committed age discrimination when it refused to reinstate him when at least one younger employee committed a similar offense and was reinstated by the same supervisors. The Tenth Circuit ultimately upheld the district court's grant of summary judgment for the employer finding that the difference in outcomes for the plaintiff and the younger employee had nothing to do with age and more to do with remorsefulness in the aftermath of the company policy violations.

As we all remember, the plaintiff's burden in ADEA claims changed after the SCOTUS' decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) where it was held that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. The Tenth Circuit found that the plaintiff failed to meet this "but-for" standard:

His main point, that failure to admit fault was the only operative basis for his decision not to reinstate Medlock, obviously weighs against age even being a factor. His hypothetical qualification–that had Medlock admitted fault, something else might have led Cortez not to grant reinstatement–does not deny the causal operation of the stated justification on the actual facts, much less substitute age as the but-for cause to satisfy Gross. Cortez merely acknowledged that some other, unspecified consideration(s) could count against reinstating Medlock, so that Medlock’s failure to admit fault, though the operative basis for denying reinstatement here, may not constitute a but-for cause for doing so. But that is immaterial under Gross: it is not UPS’s burden to show that its justification was the but-for cause for its challenged action, i.e., that it would have reinstated Medlock but for his failure to admit fault; rather, Medlock must show that age was the but-for cause, i.e., that UPS would have reinstated him, despite his failure to admit fault, but for his age.
The court found likewise to be true for the other comparators and also found the plaintiff's other evidence of pretext to not present any triable issues and found that the plaintiff also did not present any material direct evidence.

The case is Medlock v. United Parcel Service, Inc. and the full opinion is here.

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