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Category Archives: Age discrimination

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An employer’s failure to comply with the plain language of its own policy is enough to raise a genuine dispute of material fact as to the true reason for firing an employee.

Posted in Age discrimination, Pretext
“In light of Pate’s wrongful interpretation and application of its Policy, and its failure to discharge a younger driver with four violations in a two-year period, a reasonable jury could disagree that Defendant’s stated reason for Plaintiff’s discharge was the true or real reason for terminating him, and find that the stated reason was pretext… Continue Reading

Failure to retain other older employees, Plaintiff who was 66, another who was 60, and two other older employees, after “outsourcing,” while retaining younger employees bolsters an inference of pretext.

Posted in Age discrimination, Pretext
“Although this evidence on its own likely would not support an inference of pretext, a rational juror could conclude that [Defendant’s] failure to re-hire these employees on a full-time basis further weakens the credibility of [Defendant’s] proffered rationale for not hiring [Plaintiff], thus buttressing a reasonable inference that the failure to rehire [Plaintiff] was based… Continue Reading

Evidence that the hiring decisions were based on subjective considerations such as, “looking for…a candidate…to kind of complement [him]” or “felt that [the successful] applicant would be a good instruction leader for her teachers,” may be pretext for age discrimination.

Posted in Age discrimination, Pretext
“[W]e have recognized that subjective hiring criteria “ ‘provide opportunities for unlawful discrimination’ because the criteria itself may be pretext for age discrimination.” Id. at 11, citing Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir.2001) (quoting Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir.1993)).       Stennett v. Tupelo… Continue Reading

Rating an applicant as more qualified based on a false statement of education on the applicant’s resume casts doubt on the employer’s stated reason if the employer never asked about education during the interview.

Posted in Age discrimination
“While the district court cites cases for the propositions made by an applicant and has no duty to verify information, it is worth noting that Thomas was not even asked about his education during the interview.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 446(5th Cir. July 26, 2013) (Davis, Graves, and Higginson,… Continue Reading

In a failure to hire case, an applicant does not have to show that he or she is “clearly better qualified, but simply that the employer’s explanation for the employment decision is pretext.

Posted in Age discrimination, Disability discrimination
“As we have noted, while a showing that a plaintiff is clearly better qualified is one way of demonstrating that the employer’s explanation is a pretext, it is not the only way … the question is whether the assessment, even if incorrect, was the real reason for the action.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co.,… Continue Reading

Assurances from another manager that decisionmaker will not be retaliated against by discriminating supervisor does not negate the influence of the discriminating supervisor.

Posted in Age discrimination, Disability discrimination
“After Lewis disagreed with Wood’s desire to Swafford, Wood repeatedly informed Lewis that he was violating federal law because Lewis was discriminating based on age and disability.  Also the record indicates that Hojem did not make any assurance to Wood regarding retaliation until weeks later—after Wood had already decided to interview Thomas, who he had… Continue Reading

Two statements made by non-supervisor, proximate to the termination, are enough to create a genuine issue of material fact regarding direct evidence under Medina test.

Posted in Age discrimination
“Here, [Employee] alleges two statements in particular as evidence of age discrimination. First, [employee] asserts that McKinley, during or immediately after [employee’s] termination, declared: ‘[G]o get a job as a Wal–Mart door greeter.’ Second, [employee] alleges that a fellow employee overheard McKinley say, on the day immediately following [employee’s] termination, ‘I’m the one that got… Continue Reading

Statement from decisonmaker’s direct supervisor that person should not be hired because of the person’s age and illness of that person’s spouse is direct evidence of age and disability discrimination.

Posted in Age discrimination, Disability discrimination
“[T]he remarks appear to meet the other requirements of direct evidence.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 444 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).… Continue Reading

Facts showing that discriminating manager was the decisionmaker’s direct supervisor, who was responsible for discipline of decision maker, performance reviews that determined the decisionmaker’s raise, and had power to change decisionmaker’s job duties allows that manager’s discriminatory animus to be imputed to the decisionmaker.

Posted in Age discrimination, Disability discrimination
“There is no dispute that Lewis was Wood’s direct supervisor and was responsible for Wood’s performance evaluations and implementation of disciplinary actions…. Woods pay and any raises were merit-based and dependent on performance reviews done by Lewis.  There is additional evidence … that Lewis had refused to communicate with Wood and had removed some of… Continue Reading

The stray remarks doctrine can only be applied after the court determines that the plaintiff has failed to produce substantial evidence of pretext.

Posted in Age discrimination, Disability discrimination
“Here, the district court applied the stray remarks doctrine before determining whether the plaintiff had failed to produce substantial evidence of pretext and then refused to consider those remarks in determining pretext.” E.E.O.C. v. DynMcDermott Petroleum Ops. Co., 537 Fed. Appx. 437, 443 (5th Cir. July 26, 2013) (Davis, Graves, and Higginson, JJ.).… Continue Reading

Along with evidence of pretext, statements after termination that an employee would be fine because she was old enough to receive Social Security and was an old lady slow to make decisions constitutes evidence of age discrimination.

Posted in Age discrimination
“[Employee] told Plaintiff that she would be okay financially because she was old enough to receive Social Security benefits … [and] that training Plaintiff was ‘not a priority’ and that she and [Employee] were ‘old ladies’ who were ‘slow to make decisions’ … [T]he statements are evidence that, combined with other evidence discussed above, raises… Continue Reading

Where three of six employees interviewed corroborate that something racially offensive was stated, this was sufficient evidence to create a summary judgment question.

Posted in Age discrimination
“Plaintiffs presented evidence showing that at least three … out of the six employees present in the break room heard Koopman say something that could have been perceived as racially offensive…  Viewing this evidence in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have presented sufficient evidence to create a fact issue….”… Continue Reading

In ADEA cases, plaintiff’s replacement does not have to be under the age of forty.

Posted in Age discrimination
“Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.” Huske v. Tyson Foods, Inc., 4:12CV583,… Continue Reading

A disputed account as to whether supervisor said employee was “too old” and supervisor was “not comfortable” with promoting employee because he was so much older can constitute direct evidence.

Posted in Age discrimination
“Mr. Obasogie claims that, when he asked his supervisor, Frank Baldwin, why he had not been promoted, Mr. Baldwin told him that he was ‘too old’ and that he was ‘not comfortable’ as Mr. Obasogie’s manager because Mr. Obasogie was ‘too much older than him…. The Court believes that the comments could constitute direct evidence… Continue Reading

An employee may establish a prima facie cause of age discrimination by presenting evidence that her hours were gradually reduced while younger employees’ remained the same, she was discharged, and the younger employees were trained to move into her position.

Posted in Age discrimination
“Hall presented evidence that younger employees were trained to move into positions that assumed the duties of the food prep position—a position that Hall presented evidence was being phased out of RDSL’s corporate structure. Hall further presented evidence that unlike her younger counterparts, she was not trained for this new position. This evidence is the… Continue Reading