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Ninth Circuit Focuses On Individual Supervisor To Find An Inference Of Age Discrimination And Rejects Employer's Explanation For Discharge

Volume 7, Issue 5
April 18, 2008

On April 4, 2008, in Diaz v. Eagle Produce Limited Partnership, the United States Court of Appeals for the Ninth Circuit found that although an employer's statistics for hiring and layoff, as a whole, did not support an inference of age discrimination under the Age Discrimination in Employment Act ("ADEA"), discriminatory animus could be inferred due to the change in the employer's age statistics after a new supervisor began making personnel decisions.

The plaintiffs in Diaz were four farm workers who were discharged due to a reduction in force. They contended that they were chosen for discharge because of their ages -- 55, 63, 65, and 66. The employer argued that all four plaintiffs were hired while they were in their fifties and sixties, that it hired a large number of older workers, that the average age of the 16 employees laid off was 48.4, and that three of the laid-off employees were under 40 (specifically ages 20, 21 and 30). The Court agreed that this evidence belied a finding of age discrimination.

However, the Court then drilled down and analyzed the hiring and discharge statistics of the new supervisor who chose the plaintiffs for discharge. The Court determined that the disparity between the average age of those hired and those laid off once that particular supervisor started to make personnel decisions supported an inference that he used his authority to replace older workers with younger counterparts. Additionally, the Court relied upon evidence that the supervisor failed to lay off younger workers who had less experience than the plaintiffs and failed to consider length of employment in violation of company policy.

The Court also rejected the employer's legitimate and nondiscriminatory reason for discharging one plaintiff. The Court determined that an employer who engages in a layoff must be able to state a specific legitimate and nondiscriminatory reason for choosing each employee to be laid off. Here, the employer failed to provide a specific explanation as to why it chose one employee for lay off but was able to show that others were chosen because they had damaged company property.

This case provides a good reminder of the level of detail involved in discrimination cases and provides solid justification for continual internal analysis of employment decisions and practices. While this employer appeared to have fairly strong defenses to an age discrimination case, it is now required to try these cases due to the Court's view of one supervisor's personnel decisions and his failure to follow the employer's policies regarding layoff. This case also instructs employers to be prepared to explain why each employee in a layoff group was chosen and makes clear that simply asserting a layoff as the reason for discharge will not be sufficient to rebut a prima facie case of discrimination.

The full text of the Ninth Circuit Court's opinion can be found at: http://www.kzalaw.com/engine/file_writing/file_uploads/dyzoAUy1APWYv12e.pdf

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