Many employment discrimination cases are dismissed from court via “summary judgment,” where the court finds no evidence to suggesting a factual dispute or a violation of law. In a recent U.S. District court case, the court took the unusual direction of refusing to dismiss the case because it did find a factual dispute that should be decided by a jury. Age discrimination cases rarely survive the summary judgment process, but they have a chance if employees have sufficient evidence. Employees should preserve all documents and other information given to them during their employment, thereby making proof of facts easier during litigation.

In Glaus v. Speedway SuperAmerica, LLC, Magistrate Judge Stephen L. Crocker of the U.S. District Court for the Western District of Wisconsin denied the employer’s motion to dismiss Randy Glaus’s age discrimination complaint through the well-worn summary judgment procedure. In denying the motion, Magistrate Judge Crocker cited the U.S. Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc. in which the Court held the federal Age Discrimination in Employment Act required “but-for” causation to sustain a plaintiff’s complaint. That is, a terminated employee must show his “age was not simply one reason for the employer’s adverse action, but that the action would not have occurred “but for” the employee’s age.

Without any employer comments or documents citing his age as a reason for the termination, Glaus was required to use the so-called “indirect” or “circumstantial” method of proving age discrimination. To successfully employ this method, an employee must establish:

1. he was over forty years of age;
2. he was meeting his employer’s legitimate expectations;
3. he suffered an adverse employment action; and
4. similarly situated, substantially younger employees were treated more favorably

Speedway conceded Glaus was over forty years of age and had suffered an adverse employment action (he was fired). The remaining issues before the court were a) whether Glaus was meeting Speedway’s legitimate expectations and b) whether similarly situated, substantially younger employees were treated more favorably.

Speedway asserted the supervisor fired Glaus for allowing an employee back to work following a workplace injury, but without the approval of the company’s Human Resources department. The court concluded this was a legitimate, non-discriminatory reason. The burden then fell on Glaus to establish the articulated reason was “pretexutal.” Magistrate Judge Crocker emphasized a plaintiff can establish pretext only if he shows the asserted reason was not true and was, in fact, “a deliberate falsehood.” The court went on to explain a plaintiff can show a decision is pretextual if he establishes any of the following:

• the stated reason did not actually motivate the decision,
• the employer “grossly exaggerated” the seriousness of an incident,
• defendant violated its own policies and procedures,
• the employer’s stated reason had no basis in fact, or
• other evidence showing that the employer’s stated reason is false.

Speedway initially asserted Glaus violated company policy in allowing an employee to return to work without H.R. authorization. It then asserted Glaus had been terminated for a “pattern of misconduct” or “repeated violations” of company policy. At the same time, Glaus produced evidence a substantially younger employee (also a manager) violated the same policy but was not terminated. Speedway raised several alleged reasons for the differential treatment but ultimately the Court relied on the standards applicable to summary judgment motions, holding that a “reasonable jury” could conclude the reasons asserted by Speedway for the termination and differential treatment of Glaus had “shifted,” raising a question for the jury about whether those reasons were untrue. Accordingly, Glaus “stave[d] off” the summary judgment motion. The court allowed Glaus’s case to proceed to a trial before a jury.

If you are forty years of age or older and believe you have been a victim of age discrimination in your workplace, please contact one of Hawks Quindel’s employment attorneys at (608) 257-0040.

Nicholas Fairweather

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