Crediting non-discriminatory reasons

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...

EEOC has good day on ADA case in Fifth Circuit

President George H.W. Bush signing the landmark Americans with Disabilities Act in 1990.  24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team...

Eighth Circuit blows summary judgment appeal

Sometimes a court makes a decision so off-the-charts wrong, so at odds with the facts, and so heedless of the governing legal standard, one can only wonder what prejudice or stereotype motivated the court's thinking.  The dismissal of Caryln Johnson's age discrimination case by a majority of the Eighth Circuit Court of Appeals is one of those decisions. Caryln Johnson, born in 1932, joined Securitas Security Services USA as a security officer in 2003. Throughout his seventies Johnson earned a reputation as a dependable employee who never refused a shift. Johnson did not have a regular schedule or post, but was instead offered shifts by field service managers Robert Hesse and Charlie Bunch when they needed someone to fill in for security guards at the sites for which they were responsible. Hesse was impressed by Johnson's dependability and called him Superman. Hesse, however, had concerns about Johnson's advancing age. On several occasions over a three year period Hesse told Johnson he "needed to hang up his Superman cape." Hesse "also said [that Johnson] was too old to be working." On one occasion, when Johnson's wife called Hesse to advise him that her husband was in the hospital, Hesse commented that Johnson "should retire," "was 'too old' to continue...