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Possible Nondiscriminatory Motives Do Not Defeat Age-Bias Claims

By Robert E. Bettac  11/11/2013
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The trial court improperly dismissed the claims of two disappointed applicants for promotion who alleged their employer awarded the position to a younger candidate because of his age and because he had a close personal relationship with the decision-maker, the 5th U.S. Circuit Court of Appeals ruled.

George Leal and John Lozano worked for the federal government at the Corpus Christi Army Depot. With more than 20 years of service, Lozano had received accolades that he was “the most productive employee” in his division. Leal, who had a similarly long tenure, had consistently received the highest performance ratings for 17 years except for one instance when he was rated second highest.

In 2009, their federal employer announced two new positions at the GS-12 level. Both employees were omitted from the initial selection list but were added later, to no avail. The selecting official had already chosen two other candidates. One of those selected, John Clay, was about the same age as the plaintiffs, so the workers focused instead on the other successful candidate, Rudy Solis, who was substantially younger than they. There was evidence that Solis was actually chosen by the “official” decision-maker’s supervisor, Luis Salinas, who had a close personal relationship with Solis. Salinas had reportedly expressed a desire for “new blood” in his department, and Solis told his co-workers of his selection before it was announced.

The plaintiffs argued that deciding on the promotions before the second candidate list was created showed pretext because it violated agency procedures. Leal and Lozano also claimed that they were “clearly better qualified” than Solis and that this was another reason to find pretext. Nevertheless, the trial court dismissed the plaintiffs’ age-discrimination claims, holding that their allegations about Solis’ personal relationship with Salinas “defeat[ed]” those claims.

To understand the district court’s reasoning, one must examine the standard of proof required for an age-discrimination claim. In Gross v. FBL Financial Services, the Supreme Court ruled that Age Discrimination in Employment Act (ADEA) plaintiffs must prove that age was the but-for cause of the challenged employment action. This standard is more demanding than that applied to claims of discrimination brought under Title VII, for which the plaintiff need demonstrate only that his or her protected status was a “motivating factor.” The trial court reasoned, in essence, that by raising Salinas’ personal  relationship with Solis as a possible explanation for the promotion decision, the plaintiffs were presenting only a mixed-motive case, whereas the ADEA requires proof that, but for their ages, one of the plaintiffs would have received the promotion.

On appeal, the 5th Circuit explored the meaning of the but-for standard in age-discrimination cases. “But-for cause,” it said, does not mean “sole cause”; rather, the term may be defined as “the cause without which the event would not have occurred.” An employer may be liable under the ADEA even if other factors contributed to the adverse employment action, so long as “age was the factor that made a difference.” Thus, no matter how “close” Salinas and Solis may have been, it was the jury’s prerogative to decide whether one of the plaintiffs would have been chosen for the job “but for” his age.

The government agency argued that, even if age discrimination were shown, only one of the plaintiffs could be awarded the position given to Solis. Because relief could not be granted to both of them, it said, both claims should be dismissed. This was another reason to send the case to trial, the appeals court noted: A jury should decide which appellant was entitled to relief. The court also suggested that even the unsuccessful plaintiff might be entitled to recover attorney fees and costs when the federal government is the employer.  

There was an underlying issue in this case that the 5th Circuit expressly declined to decide. When setting forth the ADEA’s prohibitions against age discrimination, Congress used different language for private employers than it did for federal agencies, causing some to suggest that the easier mixed-motive test applies to age claims brought by federal employees, the same as under Title VII. The court bypassed this issue, however, noting that its ruling in the case would be the same even under the stricter but-for causation standard.

Leal v. McHugh, 5th Cir., No. 12-40069 (Sept. 26, 2013).

Professional Pointer: Although age-discrimination claimants are held to a higher standard of proof, employers must be as vigilant as ever. When the person being compared is substantially younger than the plaintiff, an age-discrimination claim is likely to go to trial, especially if a “stray remark” such as “new blood” enters the picture.

Robert E. Bettac is a shareholder in the San Antonio office of Ogletree Deakins, an international labor and employment law firm representing management.

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