Transcript Age Discrimination: Case Law Update

Advanced Employment Law and Litigation
February 27-March 1, 2014
Washington Plaza Hotel
Washington, D.C.
AGE DISCRIMINATION:
CASE LAW UPDATE
Locator: Firm 14/Advanced Employment Law / Age Discrimination – Case Law Update
THE AUTHOR
Robert B. Fitzpatrick, Esq.
SAME ACTOR DEFENSE
SAME ACTOR DEFENSE


Beecham v. Wyndham Vacation Resorts, Inc., 2013
U.S. Dist. LEXIS 177762 (D. Haw. Dec. 18, 2013) (If
the inference applies, then plaintiff must present a
strong case of bias necessary to overcome this
inference. Where the same actor is responsible for
both the hiring and the firing of a discrimination
plaintiff, and both actions occur within a short period
of time, a strong inference arises that there was no
discriminatory motive).
Gaskins v. Rocktenn Co., 2013 U.S. Dist. LEXIS
160167 (S.D. Ohio Oct. 17, 2013) (noting that the
Sixth Circuit continues to recognize the same actor
inference, citing Wexler v. White’s Fine Furniture, 317
F.3d 564, 574 (2003) (en banc)).
AGE OF DECISIONMAKER AND/OR
COMPETITORS AS COMPARED TO
PLAINTIFF
DECISIONMAKER AND PLAINTIFF ARE
CLOSE IN AGE



Anders v. DolgenCorp, L.L.C., 2013 U.S. Dist. LEXIS 13306 (N.D. Ohio Jan. 10, 2013)
(Court declined to apply a same-group inference that one member of a group is unlikely to
discriminate against another member of the same group).
Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 361 (7th Cir. 2001) (“[T]he relative ages of
the terminating and terminated employee are relatively unimportant.”)
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (‘“Because of the many facets
of human motivation, it would be unwise to presume as a matter of law that human beings
of one definable group will not discriminate against other members of that same group.”’)
(quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)).

Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003 (en banc) (applying
Oncale to ADEA claim).

Gaskins v. Rocktenn Co., 2013 U.S. Dist. LEXIS 160167 (S.D. Ohio Oct. 17, 2013) (applying
Wexler to ADEA claim).

For an outlier, see:

Robles v. Cox & Co., 2013 U.S. Dist. LEXIS 167163 (E.D.N.Y. Nov. 23, 2013) (Plaintiff, 64
years old, was terminated by a 54 year old, and the court found that the 54 year old’s
participation in the decision to terminate precludes an inference of age discrimination).
WHEN COMPARATORS ARE SUFFICIENTLY
YOUNGER TO PERMIT AN INFERENCE OF AGE
DISCRIMINATION
Holdings on What Constitutes a Sufficiently Large Age Difference:

Over Ten Years:

Russell v. Mercer Cnty. Ass’n for the Retarded, 2011 U.S. Dist. LEXIS 90625 (W.D. Pa. Aug. 15, 2011) (finding 13 year age
difference could be sufficient to permit inference of age discrimination).

Royster v. Laurel Highlands Sch. Dist., 2014 U.S. Dist. LEXIS 4292 (W.D. Pa. Jan. 14, 2014) (while the plaintiff (over 60) and
the comparators (all in their 40s) were all over 40, the comparators were “sufficiently younger” than the plaintiff for these
purposes).

Ten Years:

Runyon v. Applied Extrusion Techs., Inc., 619 F.3d 735, 740 (7th Cir. 2010) (for the purposes of the ADEA, “substantially
younger” means “ten years or so.”).

Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 893 (7th Cir. 1997) (“a ten-year difference in ages (between the plaintiff and his
[comparators]) [is] presumptively ‘substantial.’”)

Eight Years:

Barber v. CSX Distribution Servs., 68 F.3d 694, 699 (3d Cir. 1995) (8 year age difference held to be sufficiently large).

Five Years:

Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (as little as 5 year age difference may be enough).

Bergen Commercial Bank v. Sisler, 723 A.2d 944 (N.J. 1999) (five year age difference sufficient).

Less Than Five Years:

Brown-Marshall v. Roche Diagnostics Corp., 2013 U.S. Dist. LEXIS 101179 (D.N.J. July 19, 2013) (four year age difference
sufficient).

Von Rudenborg v. Di Giorgio Corp., 2011 U.S. Dist. LEXIS 112403 (D.N.J. Sep. 30, 2011) (three year age difference
sufficient).
WHEN COMPARATORS ARE SUFFICIENTLY
YOUNGER TO PERMIT AN INFERENCE OF AGE
DISCRIMINATION (CONT’D)
Age Differences Held to be Insufficiently Large:

Bernard v. Bethenergy Mines, Inc., 837 F. Supp. 714, 717 (W.D. Pa.
1993) (seven and four year age difference not enough).

Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 333 n.9 (3d Cir. 2000)
(one and six year difference insufficient).

La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405
(7th Cir. 1984) (four years younger was “too close in age”).

Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978 (N.D. Ill. 2013) (less
than three years younger is not “sufficiently younger”).

Hicks v. Tech Industries, 512 F. Supp. 2d 338, 347 (W.D. Pa. 2007)
(while there’s no bright line rule, a two year age difference alone is
too insignificant).
WHEN COMPARATORS ARE SUFFICIENTLY
YOUNGER TO PERMIT AN INFERENCE OF AGE
DISCRIMINATION (CONT’D)
Unspecified Age Difference Survives
Summary Judgment:

Burda v. Pa. Dep’t of Corr., 2013 U.S. Dist. LEXIS 20207 (M.D. Pa. 2013)
(“The briefs do not state the age difference between Burda and his
replacement however, for the purposes of summary judgment, it will be
assumed that the person hired to replace Burda was sufficiently
younger.”)
AGE VS. COMPENSATION
AGE DISCRIMINATION VS. COMPENSATIONRELATED DECISIONS.

Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978 (N.D.
Ill. 2013) (‘“[B]ecause age and [compensation levels]
are analytically distinct, an employer can take
account of one while ignoring the other, and thus it is
incorrect to say that a decision based on…
compensation level is necessarily ‘age based.’’… [F]or
wage discrimination to constitute age discrimination,
wage must ‘depend[] directly on age, so that the use of
one is a pretext for the other.’”) (quoting Hazen Paper
Co. v. Biggins, 507 U.S. 604, 611 (1993); Anderson v.
Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th
Cir. 1994); Metz v. Transit Mix, Inc., 828 F.2d 1202,
1212 (7th Cir. 1987) (Easterbrook, J., dissenting)).
EMPLOYER REMARKS AND
INQUIRIES
EMPLOYER INQUIRES ABOUT EMPLOYEE’S
INTENT TO RETIRE



DeBarr v. Cleveland Clinic Found., 918 F. Supp. 2d 656
(N.D. Ohio Jan. 15, 2013) (Court found inquiries as to when
plaintiff was planning to retire to not be direct evidence of
discrimination).
Doucette v. Morrison Cty., 2013 U.S. Dist. LEXIS 75177 (D.
Minn. May 29, 2013) (Court held that an inquiry as to
whether plaintiff intended to retire did not indicate
discriminatory intent, citing Cox v. Dubuque Bank & Trust
Co., 163 F.3d 492, 497 (8th Cir. 1998)).
Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992)
(refusing to infer age bias from two retirement inquiries,
noting that a company has a legitimate interest in learning
its employee’s plans for the future).
AGEIST REMARKS BY EMPLOYER




Hudson v. Land’s End, Inc., 2013 U.S. Dist. LEXIS 32788 (W.D. Wis. Mar. 6,
2013) (Supervisor allegedly told plaintiff, about 3.5 months before he was fired,
that he was the “wrong person” for the position, and that the “right person
would be younger and would know how to market to a younger customer.” The
court held that the remark, and its temporal proximity to the termination,
among other evidence, were enough for the plaintiff’s claim to survive summary
judgment.)
Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1553, 1558 (11th Cir. 2004)
(finding references by supervisors to employees as old farts, old bastards, and
old cows and his calls for new blood and that everyone over 35 should be sacked
was circumstantial evidence).
Dixon v. The Hallmark Co., 627 F.3d 849, 855 (11th Cir. 2010) (applying
Castle, finding that direct evidence can be shown through a scrap of paper
saying “Fire Rollins – she is too old.”)
Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Com’rs., 512 F.3d 1296, 1300
(11th Cir. 2008) (finding that the statement of a decisionmaker, a manager in
charge of hiring, that he didn’t want to hire any old pilots, qualified as direct
evidence).
RELEVANCE OF DISCRIMINATORY REMARKS,
AND THE IDENTITY OF THE SPEAKER

Sharp v. Aker Plant Servs. Group, 726 F.3d 789
(6th Cir. 2013) (citing several 6th Circuit
opinions, for the propositions that (a)
“[d]iscriminatory remarks by decision makers
and those who significantly influence the
decision-making process can constitute direct
evidence of discrimination”; but (b) “only the
most blatant remarks, whose intent could be
nothing other than to discriminate on the basis of
age,” satisfy this criteria.”)
HONEST BELIEF, MISTAKEN
BELIEF, AND BUSINESS
JUDGMENT RULES
THE HONEST BELIEF RULE


DeBarr v. Cleveland Clinic Found., 918 F. Supp. 2d 656
(N.D. Ohio Jan. 15, 2013) (Court applied 6th Cir. honest
belief rule, that is, where employer reasonably relied on
particularized facts that were before it at the time the
decision was made, the employee cannot establish pretext,
even if the employer’s reason is ultimately found to be
mistaken, foolish, trivial, or baseless).
Hodges v. City of Milford, 918 F. Supp. 2d 721 (S.D. Ohio
2013) (“In order to determine whether the employer had an
honest belief, it is necessary to consider whether the
employer can establish its reasonable reliance on the
particularized facts that were before it at the time the
decision was made... [W]e do not require that the decisional
process used by the employer be optimal or that it left no
stone unturned.”) (internal quotations and citations
omitted).
TERMINATION PERMISSIBLE EVEN IF
BASED ON MISTAKEN BELIEF



Tavernier v. Health Mgmt. Assocs., Inc., 498 Fed. Appx. 349 (4th Cir. 2012) (“In
our view, the record evidence permits only the conclusion that Tavernier’s
supervisor actually believed – even if erroneously – that Tavernier was a poor
performer and was a good candidate for early retirement, and that Tavernier’s
supervisor acted on that belief.”) (citing Bonds v. Leavitt, 629 F.3d 369, 386 (4th
Cir), cert. denied, 132 S. Ct. 398 (2011); DeJarnette v. Corning, Inc., 133 F.3d
293, 299 (4th Cir. 1998) (“[I]t is not our province to decide whether the reason
was wise, fair, or even correct, ultimately, so long as it truly was the reason.”)).
Celluci v. RBF Citizens, N.A., 2013 U.S. Dist. LEXIS 177282 (E.D. Pa. Dec. 18,
2013) (“[A] plaintiff ‘must show, not merely that the employer’s proffered
reason was wrong, but that it was so plainly wrong that it cannot have been
the employer’s real reason.”’) (quoting Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1109 (3d Cir. 1997)).
Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978 (N.D. Ill. 2013) (‘“The main
inquiry in determining pretext is whether the employer ‘honestly acted’ on the
stated reason rather than whether the reason for the [adverse employment
action] was a correct business judgment.’… ‘[E]ven if the busines decision was
unreasonable, pretext does not exist if the decisionmaker honestly believed the
nondiscriminatory reason.’”) (quoting Atanus v. Perry, 520 F.3d 662, 674 (7th
Cir. 2008); Stockwell v. City of Harvey, 597 F.3d 895, 902 (7th Cir. 2010)).
THE BUSINESS JUDGMENT RULE

Tokash v. Foxco Ins. Mgt. Servs., Inc., 2013 U.S.
App. LEXIS 24025 (3d Cir. Dec. 3, 2013) (The
court reaffirmed its 1992 holding in Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1083 (3d Cir.),
where the court stated that defendants
managerial decision should not be secondguessed under the cover of the ADEA, and that in
the absence of evidence indicating defendant
acted with discriminatory intent, the court
“cannot understand how this reasonable business
judgment can give rise to liability under the
ADEA) (citation omitted).
INTERSECTIONAL AGE
DISCRIMINATION
INTERSECTIONAL AGE DISCRIMINATION

Doucette v. Morrison Cty., 2013 U.S. Dist. LEXIS
75177 (D. Minn. May 29, 2013) (Court recognized
that no federal appellate court had yet recognized
an intersectional age claim, and that several
district courts in the 8th Circuit had recognized
such claims, and thus proceeded to adopt the
concept).
PERFORMANCE EVALUATIONS AS
EVIDENCE OF DISCRIMINATION
BOTCHED EVALUATION MAY ESTABLISH
PRETEXT

Barker v. Ellington Board of Educ., 2013 U.S.
Dist LEXIS 171324 (D. Conn. Dec. 5, 2013)
(Genuine issue of material fact as to pretext is
raised by evidence that plaintiff’s evaluation was
internally inconsistent, contradictory, and
undermined by testimonial observations).
PAST POSITIVE EVALUATIONS HELD TO
NOT ESTABLISH PRETEXT

Barker v. Ellington Board of Educ., 2013 U.S.
Dist LEXIS 171324 (D. Conn. Dec. 5, 2013)
(Relying on Mattera v. JPMorgan Chase Corp.,
740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010) and
Godfrey v. Ethan Allen, Inc., 1997 U.S. App.
LEXIS 12334 (2d Cir. 1997) (unpublished table
decision) (holding that a jury could not find
pretext on the basis of a past positive evaluation).
DUTY TO MITIGATE DAMAGES
DEPRESSION SATISFACTORILY EXPLAINED
FAILURE TO MITIGATE

Harris v. CVS Caremark Corp., 2013 U.S. Dist.
LEXIS 11591 (N.D. Ala. Jan. 29, 2013) (where
plaintiff testified that after accepting a job,
depression prevented him from starting work, the
court concluded that a reasonable jury could
decide that plaintiff’s efforts were reasonable
under the circumstances).
EARNINGS FROM “INFERIOR” JOB HELD
NOT TO OFFSET BACK PAY AWARD

Villacorta v. Cemex Cement, Inc., 221 Cal App. 4th
1425 (Cal App. 2013) (In a wrongful termination
and national origin discrimination case, holding
that “[w]ages actually earned from an inferior job
may not be used to mitigate damages because if
they were used then it would result ‘in
senselessly penalizing an employee who, either
because of an honest desire to work or a lack of
financial resources, is willing to take whatever
employment he can find.”’) (quoting RabagoAlvarez v. Dart Industries, Inc., 55 Cal. App. 3d
91, 99 (1976)).
RIFS AND COMPARATORS’
SIMILARITY TO PLAINTIFF
PLAINTIFF REPLACED IN THE
CONTEXT OF A RIF





Geiger v. Tower Auto., 579 F.3d 614, 623 (6th Cir. 2009) (‘“A work force reduction situation occurs
when business considerations cause an employer to eliminate one or more positions within the
company. An employee is not eliminated as part of a work force reduction when he or she is
replaced after his or her discharge.’ A person is considered replaced ‘only when another employee
is hired or reassigned to perform the plaintiff’s duties.’ A person is not considered replaced when
his duties are absorbed by another person ‘or when the work is redistributed among other existing
employees already performing related work.” (quoting Barnes v. GenCorp., 896 F.2d 1457, 1465
(6th Cir. 1990)).
Hansen v. Crown Golf Properties L.P., 826 F. Supp. 2d 1118, 1121 (N.D. Ill. 2011) (“[A]n employer’s
decision in a period of economic downturn to let one employee go and to divide that employee’s
duties among other existing employees plainly poses a much greater hurdle for a pretext argument
than a decision to hire a younger person to supplant an older employee.”)
Fratturo v. Gartner, Inc., 2013 U.S. Dist. LEXIS 5767 (D. Conn. Jan. 15, 2013) (Where a
substantial portion of the plaintiff’s duties were transferred to younger employees, such evidence
may be sufficient to establish a prima facie case of age discrimination).
Knowles v. Trans Union LLC, 2005 U.S. Dist. LEXIS 30957 (N.D. Ill. Nov. 21, 2005) (plaintiff ‘must
show that her duties, at the very least, were absorbed mostly by employees not in her protected
class.”) (emphasis in original).
Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978 (N.D. Ill. 2013) (“An employee may thus establish
the fourth prong of her prima facie case by showing simply that [her] responsibilities were
absorbed by employees not in the protected class.”) (internal quotations and citations omitted).
COMPARATORS ONLY NEED BE ALIKE IN ALL
RELEVANT RESPECTS, NOT IDENTICAL


Royster v. Laurel Highlands Sch. Dist., 2014 U.S. Dist. LEXIS
4292 (W.D. Pa. Jan. 14, 2014) (holding, under 3rd Circuit
precedent, that comparators must only be alike in all relevant
respects, not identical, and that “[d]etermining whether an
individual is similarly situated to another individual is a caseby-case, fact-intensive inquiry, where the focus is on the
particular criteria or qualifications identified by the employer
as the reason for the employment decision”) (internal
quotations and citations omitted).
Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978 (N.D. Ill.
2013) (citing 7th Circuit precedent in holding that
comparators must be “similar enough that any differences in
their treatment cannot be attributed to other variables, such
as distinctions in positions, performance, or supervisors”, and
that “similarly situated employees must be directly
comparable to the plaintiff in all material respects”) (internal
quotations and citations omitted).
PLAINTIFF’S QUALIFICATIONS
DETERMINING WHETHER PLAINTIFF IS
QUALIFIED FOR RELEVANT JOB


Isolato v. Kelly Servs., 945 F. Supp. 2d 825, 829 (E.D.
Mich. 2013) (“At the prima facie stage, ‘a court should
focus on a plaintiff’s objective qualifications to
determine whether he or she is qualified for the
relevant job.’”) (quoting Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 575 (6th Cir. 2003))
(emphasis in original).
Celluci v. RBF Citizens, N.A., 2013 U.S. Dist. LEXIS
177282 (E.D. Pa. Dec. 18, 2013) (“When evaluating
the plaintiff’s prima facie case, courts should consider
a plaintiff’s ‘objective job qualifications,’ but should
leave ‘the question of whether an employee possesses
a subjective quality, such as leadership or
management skill,… to the later stage of the
McDonnell Douglas analysis.”’) (quoting Weldon v.
Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)).
PLAINTIFF TAKES INCONSISTENT POSITIONS IN
SEPARATE PROCEEDINGS REGARDING
QUALIFICATIONS


Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999)
(while allowing a plaintiff to pursue SSDI and ADA claims
concurrently, where the plaintiff took inconsistent positions
in those two proceedings, holding that the plaintiff would
have to bear the burden of offering an explanation for the
“apparent contradiction” that arose from the plaintiff’s
position in the two cases.)
Isolato v. Kelly Servs., 945 F. Supp. 2d 825, 830-31 (E.D.
Mich. 2013) (Citing the Cleveland case, above, in a case
where the plaintiff claimed in an ADEA case that he was
qualified to perform the job duties in question, but had
claimed in a separate SSDI claim that he was unable to
work due to his condition. The court found that given the
above, the plaintiff was estopped from claiming that he was
qualified to perform the duties of the job in question).
DISPARATE TREATMENT CLAIMS
DISMISSAL OF YOUNGER EMPLOYEES
HELD TO REFUTE AGE CLAIM

Robles v. Cox & Co., 2013 U.S. Dist. LEXIS
167163 (E.D.N.Y. Nov. 23, 2013) (The fact that
younger employees, as well as the 64 year old
plaintiff, were dismissed in a RIF refuted
Plaintiff’s age claim).
INDIRECT EVIDENCE OF YOUNGER EMPLOYEES
RECEIVING BETTER TREATMENT

Staffieri v. Northwestern Human Servs., 2013 U.S.
Dist. LEXIS 72115 (E.D. Pa. May 22, 2013) (Citing
Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994), in
which the court held that the plaintiff demonstrated
the presence of an adverse action, by showing indirect
evidence that other younger people were not
transferred when he was, nor were younger people
fired when he was terminated, concluding that the
“inference of age discrimination may not be
overpowering, but we cannot say as a matter of law it
is insufficient.” Based on that holding, the Court in
Staffieri found that the Plaintiff had set forth a prima
facie case of age discrimination, where it was
unquestioned that the Plaintiff was the only employee
terminated and that younger employees were
retained.”
SELECTIVELY APPLIED DISCIPLINE

Nabors v. Wells Fargo, 2013 U.S. Dist. LEXIS
84632 (N.D. Ind. June 17, 2013) (“[T]he Seventh
Circuit has created a narrow exception excusing
plaintiffs from showing that they met their
employer’s legitimate expectations ‘when a
plaintiff alleges that other employees were also
not meeting the employer’s expectations but the
employer selectively punished the plaintiff, or
punished the plaintiff more severely, for
discriminating reason.’”) (quoting Peele v.
Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.
2002)).
EMPLOYER TREATS UNION MEMBERS
DIFFERENTLY THAN NON-UNION MEMBERS

Gaskins v. Rocktenn Co., 2013 U.S. Dist. LEXIS
160167 (S.D. Ohio Oct. 17, 2013) (plaintiff was
not a union member – court held that a
comparator that was a union member was not
similarly situated to the plaintiff, citing Davis v.
Ineos ABS USA Corp., 2011 U.S. Dist. LEXIS
30568 (S.D. Ohio Mar. 24, 2011) for the
proposition that “[n]o discriminatory intent may
be inferred from [an employer’s] decision to treat
differently union members and non-union
members.”)
TIME-BARRED CONDUCT AS
EVIDENCE OF DISCRIMINATORY
INTENT
TIME-BARRED CONDUCT CAN STILL BE
EVIDENCE OF DISCRIMINATORY INTENT

Fratturo v. Gartner, Inc., 103 U.S. Dist. LEXIS
5767 (D. Conn. Jan. 15, 2013) (citing cases from
the Supreme Court, the 2nd Circuit, and the
District of Connecticut, for the proposition that
“[t]ime-barred conduct may still be offered as
evidence of discriminatory intent to support
timely claims.”)
CAUSATION
CAUSATION AND CAT’S PAW



Sims v. MVM, Inc., 704 F.3d 1327 (11th Cir. 2013) (“Because
the ADEA requires a but-for link between the discriminatory
animus and the adverse employment action as opposed to
showing that the animus was a motivating factor in the
adverse employment decision, we hold that Staub’s proximate
causation standard does not apply to cat’s paw cases involving
age discrimination. In so holding, we follow the same holding
by the Tenth Circuit in Simmons [v. Sykes Enters., Inc.], 647
F.3d [943,] 949-50 [10th Cir. 2011].”)
See also Sims, 704 F.3d at 1336 n.10 (Noting that “[t]he Court
in Staub left open the issue of whether the biased supervisor
must intend the precise adverse employment action that
resulted or whether it would suffice to have intended an
adverse, though different, employment action.”)
Collins v. Compass Group, Inc., 2013 U.S. Dist. LEXIS 122825
(N.D. Ala. June 14, 2013) (applying Sims in ADEA case.).
THE GROSS BUT-FOR CAUSATION
STANDARD IS NOT SOLE CAUSE




Nabors v. Wells Fargo, 2013 U.S. Dist. LEXIS 84632 (N.D. Ind. June
17, 2013) (Rejecting employer’s argument that the Gross but-for
causation standard requires a showing of sole causation. The
employer attempted to argue that, based on a sole causation
standard, plaintiff could not pursue an age discrimination claim,
together with race, sex, and disability claims, as if age was the
determining factor in the employer’s decision to take an adverse
action, then race, sex, and disability could not be the reasons for that
same action. The Court rejected that argument.)
Girten v. Town of Schererville, 819 F. Supp. 2d 786, 803 (N.D. Ind.
2011) (“plaintiff’s diabetes need not be the sole cause of his
termination to be the but-for cause).
United States v. Hatfield, 591, F.3d 945, 948 (7th Cir. 2010) (“but for”
cause defined as “necessary condition”).
United States v. Dyer, 216 F.3d 568, 570 (7th Cir. 2000) (“But for”
causation is a very weak sense of causation” and “[i]t is poles apart
from “sole cause.”)
CONSTRUCTIVE DISCHARGE
WHETHER EMPLOYEE WAS
CONSTRUCTIVELY DISCHARGED

Hodges v. City of Milford, 918 F. Supp. 2d 721 (S.D.
Ohio Jan. 18, 2013) (An employee has been
constructively discharged where a reasonable person
would have felt compelled to resign under the same
circumstances. Factors to consider, either singly or in
combination, include whether there was (1) a
demotion; (2) a reduction in salary; (3) a reduction in
job responsibilities; (4) reassignment to work under a
younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage
the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less
favorable than the employee’s former status.)
DEFINITION OF “SUPERVISOR”
COURT ASSUMES, WITHOUT DECIDING, THAT VANCE
DEFINITION OF “SUPERVISOR”
APPLIES TO ADEA CLAIMS

Jones v. Unipres, U.S.A., Inc., 2013 U.S. Dist.
LEXIS 154889 (M.D. Tenn. Oct. 28, 2013) (“Here,
although Vance concerned only Title VII claims,
the parties assume that the Vance standard for
vicarious liability applies to Jones’ ADEA
harassment claim. Therefore, for purposes of its
analysis, the court will assume, without deciding,
that the Vance standard applies to the ADEA
claims asserted here.”)
DIRECT EVIDENCE AND BURDEN
OF PROOF
DIRECT EVIDENCE AND BURDEN OF
PROOF


Celluci v. RBF Citizens, N.A., 2013 U.S. Dist. LEXIS
177282 (E.D. Pa. Dec. 18, 2013) (“Even before the
Gross decision, proving discrimination by direct
evidence was a ‘high hurdle,’ as it required that the
evidence ‘reveal a sufficient discriminatory animus” to
render any shift in the burden of production
unnecessary.’”) (quoting Glanzman v. Metro. Mgmt.
Corp., 391 F.3d 506, 512 (3d Cir. 2004)).
Anders v. DolgenCorp, L.L.C., 2013 U.S. Dist. LEXIS
13306 (N.D. Ohio Jan. 10, 2013) (Direct evidence is
evidence that proves the existence of a fact without
requiring any inferences or, put another way,
evidence from the lips of the defendant proclaiming
his or her animus).
LOCAL NOTICE REQUIREMENTS
LOCAL LAW REQUIRING NOTICE TO
GOVERNMENT BODY OF CLAIM

Banigo v. Board of Educ. Of Roosevelt Union Free
Sch. Dist., 962 N.Y.S. 2d 896 (N.Y. Sup. Ct. Nassau
Cty. Apr. 15, 2013) (State statute required, as
condition precedent to filing an action against a
school board, its members, or its employees, that
written notice be given to the governing body of the
district, within a set time, and that such notice be
alleged in the complaint. Such notice was not given
here. The court noted that there was “some Federal
case authority that an EEOC complaint may serve as
a substitute” for such notice. But the Court noted
that the plaintiff did not cite any state court cases,
not involving claims of discrimination (as all such
claims had been dismissed from this matter) to which
this relaxed standard had been applied. And, the
EEOC charge was untimely in any event.)