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Crediting non-discriminatory reasons December 10, 2015

older workers are at risk for workplace discrimination.The judicial function at the summary judgment stage is to decide whether a jury could reasonably find in the employee’s favor on the claim at issue. In making its decision, a court follows certain rules. One such rule is that the record must be examined as a whole. Another is that inferences must be drawn in the employee’s favor. And another is that the court may not make credibility determinations. Too often, however, courts focus on select pieces of the record to the exclusion of others, draw inferences in the employer’s favor, and make credibility determinations that favor the employer. The result can be dismissal even where the employee has produced powerful evidence of discrimination. These dismissals frequently occur under the cover of “but-for” causation, the causation standard applicable in federal age cases and non-age cases involving retaliation (other than SOX cases).

Consider an example involving a 62 year-old employee who was terminated without warning after 30 years of good performance. The employee testifies that his relatively new 44 year-old supervisor, the decisionmaker, consistently called him an “old fart” and said he should “retire because he is old” and because he needed to “make room for new, young talent.” The employee further testifies that the decisionmaker made frequent comments such as “old people are low energy, tired and forgetful.” The decisionmaker even sent an email telling the employee to “dress younger” at work. The employer denies that these comments were made and says that it fired the employee because of insubordination, citing an incident where the employee refused to follow one of his supervisor’s instructions. The employee admits he did not follow the instruction in question, but contends that the real reason he was fired was his age.

The employer moves for summary judgment. Pointing to the undisputed evidence of “insubordination,” the employer argues that the employee cannot prove that but-for his age, he would still be employed. The court agrees and dismisses the case.

In dismissing the case, the court has violated all three rules governing summary judgment. First, it has not considered the record as a whole, but only a portion of the record favoring the employer. Second, the court has failed to draw reasonable inferences in the employee’s favor, one certainly being that age discrimination tainted the termination decision. Third, the court has made a credibility determination. It has credited the employer’s stated reason for terminating the employee – insubordination. A jury, however, would not be required to credit that reason. A jury could find it unworthy of credence for any number of reasons, including intangible ones like witness demeanor at trial. A jury could also simultaneously believe that the employee was insubordinate, but that age discrimination was the but-for cause of the termination.

When courts stray from the three rules governing summary judgment, cases that should proceed to trial instead get dismissed. Employee rights lawyers must be vigilant in protecting their clients against unjust dismissals at the summary judgment stage.

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