Age Discrimination Plaintiff Gets Great Decision From Court of Appeals

It looks like a typical age discrimination scenario. A supervisor makes hostile remarks about older employees and expresses a preference for younger ones. An older employee with an excellent record gets fired for trumped-up reasons and a younger employee is hired to replace her.

What seems like an obvious case of age discrimination was not so obvious to the Federal District Court in the Western District of Missouri when it threw out the case of Baker v. Silver Oak Senior Living Mgt. Co. on summary judgment.

Fortunately, the Eighth District Court of Appeals reversed this month in an important opinion about the proper interpretation of evidence in an age discrimination case. 

What Happened In The Case

Kathy Baker worked as the director of assisted living at a center operated by Silver Oak since 2003. Her 2004 review was excellent in every category.

A few months later, Carolyn Thomas was hired as Baker’s new supervisor. After taking over, Thomas told Baker that:

• Silver Oak needed people that were “young and vivacious, not slow and old”
  

• Baker “needed to get rid of the dead wood”
  

• Employees who had been fired were “slow and old”

She also told Baker that:

• She dressed like an old lady

• Everyone had to “keep up with” two supervisors who were in their thirties

The CEO, Eric Lindsey, made similar remarks at meetings attended by Baker.

Thomas also admitted that she teased Baker about walking slowly and having poor hearing. She also repeatedly asked Baker to fire and discipline older employees.

When Baker told Thomas that  “you can’t get rid of employees just because they’re old,” Thomas responded that:

• “firing older employees would allow Silver Oak to hire younger employees for less money'”
  

• “younger employees would be better workers, have more energy, be more enthusiastic, and stimulate the residents”

After refusing Thomas’ demands to get rid of the older employees, Baker was disciplined and placed on indefinite probation.

The reason given was that Baker allegedly failed to get proper approval before admitting a special-needs resident and dismissed an employee without having an administrator present.

Baker claimed that that these allegations were false.

Following those events, Thomas gave Baker a negative performance evaluation and asked Baker whether she was going to quit. She said no.

A couple of months later, Baker went on an approved medical leave. She was called in at some point during her leave, told that she had been temporarily replaced and that she was being transferred to another city.

She was again asked if she wanted to quit and again she said no.

Shortly after that she was fired. The reason given was that she did not call in each day during her medical leave. Baker was 53 years old at the time.

Angela Thomas, age 30, temporarily took over Baker’s duties until a new director — 22 year old Starr McGinnes —  was hired to replace Baker a couple of months later.

The Lawsuit

Baker filed a lawsuit claiming age discrimination and retaliation under the Age Discrimination in Employment Act and under the Missouri Human Rights Act.

While it may seem hard to believe in the face of this record, the federal district court threw out the case and granted judgment in favor of Silver Oak on all claims stating that Baker:

• failed to present any direct evidence that age was a motivating factor in her termination (a misinterpretation of the Gross decision)

• offered no evidence that Silver Oak’s stated reasons for firing her were a pretext for age discrimination
  

• did not engage in any protected activity which would support a retaliation claim

The Court Of Appeals Reverses

Baker appealed the incomprehensible ruling of the district court. The Eighth Circuit Court of Appeals reversed on all counts and gave Baker her day in court.

Here’s the gist of what the Court had to say.

Evidence of Age Bias

Statements by Lindsey (CEO) and Thomas (supervisor) — who participated in the decision to fire Baker — were evidence of a preference for younger workers over those protected by the ADEA.

As stated by the Court:

Lindsey’s statement to his management team that Silver Oak was ‘missing the boat by not hiring younger, vibrant people,’ and that employees ‘should start looking over applications better and try to consider hiring younger people’ is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker’s termination.

Other evidence that the Court considered to support Baker’s age discrimination claim included:

• Thomas’ criticism of Baker for dressing like an old lady
  

• Thomas’ comments about keeping up with younger employees
  

• Baker’s refusal of Thomas’ directions to discipline older workers

Evidence of Pretext

The Court also found that Baker presented plenty evidence of pretext — meaning that the reasons given for the discharge were not believable. Evidence of pretext can give rise to an inference of age discrimination and can be proved circumstantially.  “Direct evidence” is not essential.

In this case, that evidence of pretext included:

• Baker’s explanation for why the probation was not warranted

• Silver Oaks’ failure to follow its normal progressive discipline policy

• Shifting explanations for why Baker was terminated:

As the Court stated:

Not every supplement to an employer’s initial statement of the reasons gives rise to an inference of pretext, but substantial variations raise suspicion.

[The evidence of pretext] is combined with evidence from which a jury could find that the management of Silver Oak harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce.

Viewing all of the evidence together, we conclude that Baker has presented a submissible case of age discrimination under the ADEA.

Retaliation Claim Survives

Baker claimed that she was retaliated against because she opposed Silver Oak’s conduct which she believed to be unlawful age discrimination.

Baker filed an affidavit in which she stated that she repeatedly told Thomas:

• That terminating older employees was wrong
  

• You can’t get rid of employees just because they’re old

It’s a technical argument but in sum, the district court ignored the evidence because it was presented in an affidavit and not in Baker’s deposition or other court pleadings.

The Eighth Circuit held that the district court made an error in striking Baker’s affidavit and allowed Baker’s retaliation claim to proceed.

What’s Important About This Case

Everything but here’s the big three:

1.The case gives excellent illustrations about the kind of evidence from which a jury may infer age discrimination — including hostility towards older workers and/or a preference for younger ones.

2. On the subject of pretext the Court makes note of a failure to follow normal progressive discipline policies, and shifting explanations for the discharge.

This kind of evidence is quite common in discrimination cases, and it’s very helpful for employees to have a Circuit Court of Appeals affirm it as proof of pretext.

3. While it’s a technical point, mostly for the lawyers, it’s extremely helpful that the lower court was reversed because it struck Baker’s affidavit.

Clients don’t always remember everything important about their case when interrogated in a lengthy deposition. Many times salient points are not ever asked.

Consequently, adding important evidence to the record by way of a sworn affidavit is often necessary to fill in the evidentiary gaps. The Eighth Circuit recognized this necessary practice and affirmed its propriety.

It’s really good news for plaintiffs in discrimination cases and their lawyers.

All in all, it’s just a great case for employees who are unfortunate victims of age discrimination. It should also be instructive to employers as to what illegal age discrimination can look like in front of a jury.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This post originally appeared in Employee Rights Post on September 28, 2009. Re-printed with permission by the author.

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