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A GE D ISCRIMINATION : C ASE L AW U PDATE Locator: Firm 14/Advanced Employment Law / Age Discrimination – Case Law Update Advanced Employment Law and Litigation.

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Presentation on theme: "A GE D ISCRIMINATION : C ASE L AW U PDATE Locator: Firm 14/Advanced Employment Law / Age Discrimination – Case Law Update Advanced Employment Law and Litigation."— Presentation transcript:

1 A GE D ISCRIMINATION : C ASE L AW U PDATE Locator: Firm 14/Advanced Employment Law / Age Discrimination – Case Law Update Advanced Employment Law and Litigation February 27-March 1, 2014 Washington Plaza Hotel Washington, D.C.

2 T HE A UTHOR Robert B. Fitzpatrick, Esq.

3 S AME A CTOR D EFENSE

4 Beecham v. Wyndham Vacation Resorts, Inc., 2013 U.S. Dist. LEXIS (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 (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)).

5 A GE OF D ECISIONMAKER AND / OR C OMPETITORS A S C OMPARED TO P LAINTIFF

6 D ECISIONMAKER AND P LAINTIFF A RE C LOSE IN A GE Anders v. DolgenCorp, L.L.C., 2013 U.S. Dist. LEXIS (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 (6 th Cir (en banc) (applying Oncale to ADEA claim). Gaskins v. Rocktenn Co., 2013 U.S. Dist. LEXIS (S.D. Ohio Oct. 17, 2013) (applying Wexler to ADEA claim). For an outlier, see: Robles v. Cox & Co., 2013 U.S. Dist. LEXIS (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).

7 W HEN C OMPARATORS ARE S UFFICIENTLY Y OUNGER TO P ERMIT AN I NFERENCE OF A GE D ISCRIMINATION 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 (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 (7 th 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 Ye ars: 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. Si sler, 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 (D.N.J. July 19, 2013) (four year age difference sufficient). Von Rudenborg v. Di Giorgio Corp., 2011 U.S. Dist. LEXIS (D.N.J. Sep. 30, 2011) (three year age difference sufficient).

8 W HEN C OMPARATORS ARE S UFFICIENTLY Y OUNGER TO P ERMIT AN I NFERENCE OF A GE D ISCRIMINATION ( 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).

9 W HEN C OMPARATORS ARE S UFFICIENTLY Y OUNGER TO P ERMIT AN I NFERENCE OF A GE D ISCRIMINATION ( CONT ’ D ) Unspecified Age Difference Survives Summary Judgment : Burda v. Pa. Dep’t of Corr., 2013 U.S. Dist. LEXIS (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.”)

10 A GE VS. C OMPENSATION

11 A GE D ISCRIMINATION VS. C OMPENSATION - R ELATED D ECISIONS. 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, (7th Cir. 1994); Metz v. Transit Mix, Inc., 828 F.2d 1202, 1212 (7th Cir. 1987) (Easterbrook, J., dissenting)).

12 E MPLOYER R EMARKS AND I NQUIRIES

13 E MPLOYER I NQUIRES A BOUT E MPLOYEE ’ S I NTENT TO R ETIRE 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 (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).

14 A GEIST R EMARKS BY E MPLOYER Hudson v. Land’s End, Inc., 2013 U.S. Dist. LEXIS (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).

15 R ELEVANCE OF D ISCRIMINATORY R EMARKS, AND THE I DENTITY OF THE S PEAKER 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.”)

16 H ONEST B ELIEF, M ISTAKEN B ELIEF, AND B USINESS J UDGMENT R ULES

17 T HE H ONEST B ELIEF R ULE 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).

18 T ERMINATION P ERMISSIBLE E VEN IF B ASED ON M ISTAKEN B ELIEF 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 (4 th 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 (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)).

19 T HE B USINESS J UDGMENT R ULE Tokash v. Foxco Ins. Mgt. Servs., Inc., 2013 U.S. App. LEXIS (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 second- guessed 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).

20 I NTERSECTIONAL A GE D ISCRIMINATION

21 Doucette v. Morrison Cty., 2013 U.S. Dist. LEXIS (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).

22 P ERFORMANCE E VALUATIONS AS E VIDENCE OF D ISCRIMINATION

23 B OTCHED E VALUATION M AY E STABLISH P RETEXT Barker v. Ellington Board of Educ., 2013 U.S. Dist LEXIS (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).

24 P AST P OSITIVE E VALUATIONS H ELD TO N OT E STABLISH P RETEXT Barker v. Ellington Board of Educ., 2013 U.S. Dist LEXIS (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 (2d Cir. 1997) (unpublished table decision) (holding that a jury could not find pretext on the basis of a past positive evaluation).

25 D UTY TO M ITIGATE D AMAGES

26 D EPRESSION S ATISFACTORILY E XPLAINED F AILURE TO M ITIGATE Harris v. CVS Caremark Corp., 2013 U.S. Dist. LEXIS (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).

27 E ARNINGS FROM “I NFERIOR ” J OB H ELD N OT TO O FFSET B ACK P AY A WARD Villacorta v. Cemex Cement, Inc., 221 Cal App. 4 th 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 Rabago- Alvarez v. Dart Industries, Inc., 55 Cal. App. 3d 91, 99 (1976)).

28 RIF S AND C OMPARATORS ’ S IMILARITY TO P LAINTIFF

29 P LAINTIFF R EPLACED I N THE C ONTEXT OF A RIF Geiger v. Tower Auto., 579 F.3d 614, 623 (6 th 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 (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).

30 C OMPARATORS O NLY N EED BE A LIKE IN A LL R ELEVANT R ESPECTS, N OT I DENTICAL 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 case- by-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).

31 P LAINTIFF ’ S Q UALIFICATIONS

32 D ETERMINING W HETHER P LAINTIFF I S Q UALIFIED FOR R ELEVANT J OB 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 (6 th Cir. 2003)) (emphasis in original). Celluci v. RBF Citizens, N.A., 2013 U.S. Dist. LEXIS (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)).

33 P LAINTIFF T AKES I NCONSISTENT P OSITIONS IN S EPARATE P ROCEEDINGS R EGARDING Q UALIFICATIONS 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, (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).

34 D ISPARATE T REATMENT C LAIMS

35 D ISMISSAL OF Y OUNGER E MPLOYEES H ELD TO R EFUTE A GE C LAIM Robles v. Cox & Co., 2013 U.S. Dist. LEXIS (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).

36 I NDIRECT E VIDENCE OF Y OUNGER E MPLOYEES R ECEIVING B ETTER T REATMENT Staffieri v. Northwestern Human Servs., 2013 U.S. Dist. LEXIS (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.”

37 S ELECTIVELY A PPLIED D ISCIPLINE Nabors v. Wells Fargo, 2013 U.S. Dist. LEXIS (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)).

38 E MPLOYER T REATS U NION M EMBERS D IFFERENTLY T HAN N ON -U NION M EMBERS Gaskins v. Rocktenn Co., 2013 U.S. Dist. LEXIS (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 (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.”)

39 T IME -B ARRED C ONDUCT AS E VIDENCE OF D ISCRIMINATORY I NTENT

40 T IME -B ARRED C ONDUCT C AN S TILL B E E VIDENCE OF D ISCRIMINATORY I NTENT 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.”)

41 C AUSATION

42 C AUSATION AND C AT ’ S P AW 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,] [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 (N.D. Ala. June 14, 2013) (applying Sims in ADEA case.).

43 T HE G ROSS B UT -F OR C AUSATION S TANDARD IS NOT S OLE C AUSE Nabors v. Wells Fargo, 2013 U.S. Dist. LEXIS (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.”)

44 C ONSTRUCTIVE D ISCHARGE

45 W HETHER E MPLOYEE W AS C ONSTRUCTIVELY D ISCHARGED 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.)

46 D EFINITION OF “S UPERVISOR ”

47 C OURT A SSUMES, W ITHOUT D ECIDING, T HAT V ANCE D EFINITION OF “S UPERVISOR ” A PPLIES TO ADEA C LAIMS Jones v. Unipres, U.S.A., Inc., 2013 U.S. Dist. LEXIS (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.”)

48 D IRECT E VIDENCE AND B URDEN OF P ROOF

49 Celluci v. RBF Citizens, N.A., 2013 U.S. Dist. LEXIS (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 (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).

50 L OCAL N OTICE R EQUIREMENTS

51 L OCAL L AW R EQUIRING N OTICE TO G OVERNMENT B ODY OF C LAIM 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.)


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