On October 25, 2019, the Fifth Circuit Court of Appeals handed down its decision in Gill v. DIRTT Environmental Solutions Incorporated. In doing so, the court reiterated the legal principles governing claims for age discrimination in the workplace when the employee’s evidence is only circumstantial.
Facts in Gill
In 2005, DIRTT hired Gill as its government sales director to work with its sales representatives to secure government contracts. In 2014, DIRTT hired Antoinette “Toni” Pahl to be Gill’s co-director of government sales.
Gill alleged that DIRTT discriminated against her based on her age when it fired her in favor of Pahl, who is ten years younger than Gill.
However, from 2013 until Gill’s termination in 2015, DIRTT received numerous complaints from Gill’s coworkers, including Pahl, regarding her professional misconduct.
Based on these demonstrations of unprofessional behavior and Gill’s refusal to comply with company standards, DIRTT terminated Gill’s employment.
Gill proceeded to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that DIRTT discriminated against her because of her age. The EEOC mailed Gill a notice of right to sue.
The district court action.
Gill filed suit in federal district court asserting a claim under the federal Age Discrimination in Employment Act (“ADEA”). (Gill also sued under a similar Texas law, but this post will only address federal law.)
DIRTT filed a motion for summary judgment, arguing that even if Gill could make a prima facie case of discrimination, DIRTT had a legitimate, nondiscriminatory reason for terminating Gill, and Gill could not demonstrate that the reason was pretextual.
The district court agreed and granted summary judgment to DIRTT.
The Fifth Circuit affirms.
When an employee brings an age discrimination claim under the ADEA based only on circumstantial evidence, federal courts employ the McDonnell Douglas three-step burden-shifting framework.
First, the employee must prove a prima facie case of discrimination. In a typical case, this can be done by proving that the employee:
(1) was discharged;
(2) was qualified for the position;
(3) was within the protected class at the time of discharge (that is, 40 or older); and
(4) was replaced by someone either (i) outside the protected class or (ii) younger.
If the employee makes out a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decision.
Finally, if the employer meets its burden, the burden shifts back to the employee to show that the reason was “merely a pretext for discrimination.”
In this regard, the employee must show that age was the “but-for” cause of the challenged employment action. In other words, age has to be “the” reason for the adverse employment action, not simply one of several motivating causes.
In Gill, the parties essentially conceded that Gill had established a prima facie case and that DIRTT had proven a legitimate, non-discriminatory reason for firing her.
The Fifth Circuit’s focus, then, was upon whether Gill had met her burden of proving that DIRTT’s purported reason for firing her was merely pretextual and that her age was the real reason.
Pretext may be shown through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.
Gill’s evidence of pretext was insufficient.
First, Gill argued that DIRTT’s failed to investigate her claims in accordance with its Code of Conduct and Values. Although the Fifth Circuit had previously said “whether the employer followed its typical policy and procedures in terminating the employee” might be an “indicium of causation,” it later said this inference may be appropriate only if the plaintiff establishes some nexus between employment actions and the plaintiff’s age.
Therefore, a defendant’s failure to follow its own policy is not probative of discriminatory animus in absence of proof that the plaintiff was treated differently than other employees outside of the protected class.
Second, Gill argues that DIRTT misrepresented to the EEOC that it conducted an investigation. The court acknowledged that “we have held that erroneous statements in an EEOC position statement may be circumstantial evidence of discrimination.” But, here the Court found no such erroneous statements.
Finally, Gill asserted that DIRTT did not rely upon the complaints against her in good faith because DIRTT did not investigate any of the complaints or notify Gill of them.
The Fifth Circuit agreed that an employer needs to make a “reasonably informed and considered decision before taking the complained-of action” but that the employer need not leave “no stone unturned.”
Further, “we do not require an employer to make such an objectively verifiable showing to hold that the employer acted in good faith. Our discrimination laws do not require an employer to make proper decisions, only non-retaliatory ones.”
Thus, the Fifth Circuit affirmed the decision of the district court to dismiss Gill’s case.
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