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Age Discrimination - General
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A passenger on a city bus threatened the driver, who took six months off of work to recover from the resulting distress. His doctor then told him that he could go back to work, but not as a driver, so he asked for a light-duty job. While he was assigned one, the employer told him that before he returned to work he needed to fill out a provided form and report to a Leave Management Services office, which would give him required tests including a drug screening. He ignored those directions for some time. When he did comply, he was approved for work and retired five days later. Before visiting the leave management office, he filed an EEOC charge of age discrimination, claiming that during two years earlier he had seen persons younger than himself doing light-duty tasks. He then sued under the Age Discrimination in Employment Act, 29 U.S.C. 621-34. The trial court granted the employer summary judgment. A federal appeals court upheld this result. The biggest obstacle to his claim that age discrimination had somehow impeded or delayed his return to work in a light-duty job assignment, was his own failure, for a considerable period of time (over a year) to take the steps that the employer told him were needed before he could do so. Pickett v. Chicago Transit Authority, #18-2785, 2019 U.S. App. Lexis 21173, 2019 WL 3214078 (7th Cir.). After 15 years working as an undercover police detective, the plaintiff was hired by a county district attorney’s office as a detective. After performing satisfactorily for four years without incident, he was assigned to a new supervisor. At that time, and until his firing two years later, he was allegedly subject to several forms of age discrimination, including demotion, and placement in a space without a desk, working computer, or phone. Eventually, he was terminated. He sued the employer under the Age Discrimination in Employment Act, 29 U.S.C. 621 and for constitutional violations under 42 U.S.C. 1983, claiming that there was an established practice of targeting older detectives to force them out of their jobs. After appeals, his remaining claim stagnated for three years until after the death of his former supervisor, a key witness. The delay was caused by a clerical error which resulted in the docket remaining administratively closed after the U.S. Supreme Court denied review, despite the case being returned to the trial court. A federal appeals court overturned the dismissal of the lawsuit for failure to prosecute. It found that there was no evidence that the plaintiff was personally responsible for the delay or that the delay was part of any bad-faith tactic. While prejudice to the employer bears substantial weight in favor of dismissal, the court stated, it was not dispositive of the appropriateness of imposing the harshest sanction of dismissal. Evidentiary or other sanctions may have been sufficient, the court concluded, reinstating the lawsuit. Hildebrand v. Allegheny, #18-1760, 2019 U.S. App. Lexis 12123, 2019 WL 1783540 (3d Cir.). A lieutenant in the Massachusetts State police brought a lawsuit under state law claiming that he suffered discrimination when he was denied a transfer to a different troop station on the basis of his age, Asian race, or Chinese national origin. Others granted transfers to the unit he sought were younger than him. The trial court granted summary judgment in favor of the state police, ruling that he that did not meet his burden of showing that the denial of his request for a lateral transfer was an “adverse employment action.” The highest court in Massachusetts vacated that judgment, holding that, under certain circumstances, “where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment,” the failure to grant a lateral transfer to a preferred position may constitute an adverse employment action. Because the plaintiff met his burden of showing a prima facie case of discrimination— that he “would have greater opportunities to earn overtime and obtain paid details in the troop to which he seeks transfer” --the case was remanded to decide the issue of whether the denial of this request for a lateral transfer was motivated by discriminatory animus. Yee v. Massachusetts State Police, #SJC-12485, 481 Mass. 290, 2019 Mass. Lexis 20, 2019 WL 347521. The 2011 Virgin Islands Economic Stability Act (VIESA) attempted to reduce government spending by reducing payroll while continuing to provide necessary public services. It offered some of the government’s most expensive employees (with at least 30 years of credited service) $10,000 to choose to retire within three months. Those declining to retire were required to contribute an additional 3% of their salary to the Government Employees Retirement System starting at the end of those three months. Two members of the system with over 30 years of credited service who decided not to retire claimed that the 3% charge violated federal and territorial laws protecting workers over the age of 40 from discrimination based on their age. A federal appeals court ruled that the provision was valid because it did not target employees on the basis of their age under the Supreme Court’s 1993 decision in Hazen Paper Co. v. Biggin, #91-1600, 507 U.S. 604 (1993). Its focus on credited years of service entitled the government to the Age Discrimination in Employment Act of 1967 (ADEA)’s “reasonable-factor-other-than-age” defense. The appeals court further held that the Virgin Islands Supreme Court would find the provision consistent with existing territorial anti-discrimination statutes. Bryan v. Government of the Virgin Islands, #18-1941, 2019 U.S. App. Lexis 4816, 2019 WL 661822 (3d Cir.). The U.S. Supreme Court has ruled that the federal Age Discrimination in Employment Act (ADEA) applies to employers who are a state or a political subdivision of a state regardless of the number of employees the employer has. The case was brought by two firefighters (46 and 56 years old respectively) who were the oldest in their department. They claimed that their termination after a budget shortfall was based on their age, in violation of the statute. The trial court ruled that the employing fire district was too small to qualify as an employer under the statute, which defines employer as “a person engaged in an industry affecting commerce who has twenty or more employees.” The U.S. Supreme Court, however, noted that the statute also includes as an employer “(1) any agent of such a person, and (2) a State or political subdivision of a State” 29 U.S.C. 630(b). The Court acknowledged that reading section 630(b) to apply to states and political subdivisions regardless of size gives the ADEA broader reach than Title VII, but this disparity is a “consequence of the different language” Congress chose to use. The Equal Employment Opportunity Commission (EEOC) has for 30 years interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the states, the Court stated, also impose age discrimination bans on political subdivisions with no numerical threshold. Mount Lemmon Fire District v. Guido, #17-587, 2018 U.S. Lexis 6639, 2018 WL 5794639. A 56-year-old woman worked as a correctional officer until she became injured during fights with inmates. After she worked the maximum number of days of light duty provided for under the terms of a collective bargaining agreement, she was fired because no other suitable position was found for her. A federal appeals court found that the plaintiff's prima facie evidence of bad faith supporting her claim of failure to accommodate/disability discrimination was rebutted by the “incontrovertible” evidence that she could not have been reasonably accommodated, as she could not perform the essential duties of her prior job and no other suitable job was available. She similarly failed to show evidence of sex discrimination, and her age discrimination claim also failed because she did not produce evidence of a similarly situated younger person who was treated differently. Faulkner v. Douglas County, #17-1387, 2018 U.S. App. Lexis 28743 (8th Cir.). The issue in this case initiated by the EEOC was whether the contribution rates of the county’s age-based employee retirement benefit plan were permissible based on financial considerations or whether they violated the Age Discrimination in Employment Act. The trial court found that the county violated the ADEA by imposing disparate plan contribution rates based on age. A federal appeals court vacated an order denying the EEOC's request for retroactive monetary relief from the county. The court ruled that retroactive monetary awards, such as the back pay sought here, were mandatory legal remedies under the ADEA upon a finding of liability. The court's conclusion was not altered by the county’s contention that the EEOC unduly delayed the investigation. Therefore, the court ordered a determination of the amount of back pay to which the affected employees were entitled under the ADEA. EEOC v. Baltimore County, #16-2216, 2018 U.S. App. Lexis 26644 (4th Cir.). |
A man claimed that he was improperly rejected for a job as a Criminal Investigator with the U.S. Postal System in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. A federal appeals court, overturning the trial court’s dismissal of the ADEA claim, found that the plaintiff had adequately alleged a prima facie case of discrimination where he demonstrated that he had the educational and professional experience required for the position and was in the protected category (over 40). McPherson v. Brennan, #17-2098, 2018 U.S. App. Lexis 10959 (8th Cir.).
A new county fire chief terminated a 58-year-old division chief who was the oldest of the district’s six division chiefs. The terminated employee sued the employer for age discrimination under California law. A jury issued a special verdict finding that the plaintiff’s age was a substantial motivating reason for the termination of his employment and awarding damages for lost earnings. The plaintiff was awarded $597,629 in damages, $853,443 in attorney fees, and $40,733 in costs. On appeal, the employer argued that the trial court erroneously refused its request to instruct the jury pursuant to a provision in the Firefighters' Procedural Bill of Rights (section 3254 (c)). That provision states that “The removal of a fire chief by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, or for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute reason or reasons.” An intermediate appeals court interpreted section 3254 (c) and concluded the trial court did not err in refusing to instruct the jury pursuant to this provision because it pertains only to a jurisdiction's “fire chief,” and it was undisputed that the division chief was never the district’s fire chief. Corley v. San Bernardino County Fire Protection Dist., #D072852, 21 Cal. App. 5th 390, 2018 Cal. App. Lexis 206.
A county offered retirement incentives to employees age 65 or older. Under one package, retirees were entitled to five years of supplemental health insurance (secondary to Medicare coverage) through a private insurer and could return to work, part-time, as at-will employees. The private health insurer later informed the county that if retirees working as part-time employees remained on the plan, the plan would no longer qualify for special exemptions under federal law and the county’s costs would skyrocket. The county notified all rehired retirees who were covered by the supplement insurance that their employment would end. The county was entitled to summary judgment on terminated employees’ age discrimination claims under the Age Discrimination in Employment Act and the equal protection clause. The key criterion that distinguished the terminated employees from all other county employees was not their age but rather their participation in the health insurance plan at issue. The county's action was rationally related to preserving supplemental insurance coverage for its retirees while avoiding further financial hardship, and there was no evidence that the county engaged in any prohibited stereotyping. Carson v. Lake County, #16-3665, 2017 U.S. App. Lexis 13494 (7th Cir.).
Employees of a fire district that was a subdivision of Arizona asserted claims for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. The two plaintiffs, both full time firefighters, were the two oldest firefighters when they were both terminated at ages 46 and 54 respectively. A federal trial court granted the employer’s motion for summary judgment, ruling that the fire district was not an employer within the meaning of the ADEA. A federal appeals court disagreed, reinstating the plaintiffs’ claims, and holding that the requirement that an employer have a minimum of 20 employees did not apply to employers that are political subdivisions of a state. Guido v. Mount Lemmon Fire District, #15-15030, 2017 U.S. App. Lexis 10764, 130 Fair Empl. Prac. Cas. (BNA) 336 (9th Cir.).
A man worked for a local city parks
department for 38 years before his employment classification was eliminated. He
and many employees were laid off. He applied to be rehired in a newly created
classification, but did not get a position. He then retired from city
employment, but sued for age discrimination, retaliation, and harassment. The
city asserted, with documentation, that its actions were taken for legitimate
nondiscriminatory reasons, in that he had refused to cooperate with the
implementation of a new departmental policy getting away from separate
recreational events for disabled members of the public and their enhanced
inclusion in general events. Summary judgment was upheld for the employer. The
plaintiff's opposition to policies he viewed as discriminating against disabled
members of the public was not protected activity because his opposition was not
directed at an unlawful employment practice, so no unlawful retaliation
occurred. Dinslage v. City and County of San Francisco, #A142365, 5 Cal. App.
5th 368, 2016 Cal. App. Lexis 970.
A city's Superintendent
of the Water Department claimed that he was fired in unlawful retaliation for
planning to testify against the city in an age discrimination lawsuit. The federal
appeals court rejected the city's argument that plaintiff's speech was not
speech as a citizen on a matter of public concern and so fell outside the First
Amendment's protections. In this case, his sworn statement and imminent
testimony were outside the scope of his ordinary job duties, which meant that
he was engaged in speech as a citizen for First Amendment purposes. The court
also concluded that the retaliation provision of the age discrimination in
employment statute did not preclude a plaintiff such as the one in this case
from bringing a First Amendment retaliation claim under 42 U.S.C. 1983. Given
the substantial difference between the levels of scrutiny afforded age
discrimination equal protection claims and First Amendment retaliation claims, the
court cannot assume that Congress intended the age discrimination statute to
affect the availability of section 1983 claims. Stilwell v. City of Williams,
#14-15540,, 2016 U.S. App. Lexis 14409 (9th Cir.).
A white male terminated county employee claimed
that a Hispanic voting block on the County Commissioners Court eliminated his
job because of his race, and in retaliation for age-related protected
activities while also violating his right to due process. A federal appeals
court ruled that he failed to prove his race discrimination claim. He had
earlier complained that the county’s health-insurance policy violated the Age
Discrimination in Employment Act (ADEA) because it provided dependent health
benefit coverage for dependent children of county employees. According to him,
older workers were less likely to have children, so the older workers received
"fewer County dollars per capita." This complaint was rejected by the
county. The appeals court ruled that the 21 months between his complaint about the
health insurance and his termination was too substantial a gap to support an
inference of causation. Heggemeier v. Caldwell Cnty., TX, #15-50485, 2016 U.S.
App. Lexis 11531, 100 Empl. Prac. Dec. (CCH) P45586, 129 Fair Empl. Prac. Cas.
(BNA) 389 (5th Cir.).
Firefighters in a city who took a promotional
exam for Lieutenant or Captain but were not promoted sued under the Age
Discrimination in Employment Act and an Ohio statute, claiming that the process
had a disparate impact on firefighters over the age of 40. After a trial, a
jury found that both promotional processes adversely impacted applicants over
age 40 and that the city had not justified the age discrimination by
demonstrating a business necessity. Backpay of $616,217.75 was awarded, and the
trial court entered a permanent injunction against the age discrimination and
appointed a court monitor. A federal appeals court upheld the finding of
liability, reversed the backpay award for a new trial on the amount to be
awarded since the trial court used an incorrect start date to calculate the
back pay amount and other errors were made, and the court monitor's involvement
in the process was limited to one promotional cycle. Howe v. City of Akron,
#14-3352, 2015 U.S. App. Lexis 16529, 2015 Fed. App. 0231P (6th Cir.).
A border patrol agent claimed that the failure to
promote him was age discrimination. Reversing summary judgment for the
defendant employer, a federal appeals court acknowledged that the average age
difference between the plaintiff and the average selected Assistant Chief
Patrol Agent was eight years, which was presumably insubstantial, but the
plaintiff established a prima facie case of age discrimination by showing that
the agency considered age to be significant in making these promotions and that
the Tucson Chief Patrol Agent considered the plaintiff's age as specifically
pertinent in considering whether to promote him. There was also a factual issue
as to whether the Chief's articulated nondiscriminatory reasons for not
promoting the plaintiff--his lack of leadership and judgment required for the
position--were a pretext for age discrimination. France v. Johnson, #13-15534,
2015 U.S. App. Lexis 13487, 127 Fair Empl. Prac. Cas. (BNA) 1336 (9th Cir.).
A 51-year-old African American man served in a
city fire department since 1986 and was one of two district chiefs of Fire
Prevention. At one point, his duties were altered. While he did not receive
reduced pay or a reduction in rank, he perceived the realignment as
discrimination, which he believed was based on his race, color, or age, in
addition to being retaliation for having given a statement supporting an EEOC
claim against the assistant chief who altered his duties. A federal appeals
court upheld a determination that his lawsuit over the 2011 alteration of his
duties was not timely filed. However, even if it had been, he had failed to
establish a prima facie case of either discrimination or retaliation either for
the 2011 duty alteration or for his subsequent non-selection as District Chief
of Inspections in 2012. The roles of the position he held and the job he sought
were considered equivalent, and they were not different in working conditions,
benefits, or compensation. Jenkins v. City of San Antonio Fire Dept., 14-50483,
2015 U.S. App. Lexis 6510 (5th Cir.).
When the police chief announced his retirement,
the plaintiff, who sought the job, was 51, one year past being retirement
eligible, While he had the highest service score of the finalists, and an
unprecedented perfect 100 score from each commissioner, he was not selected, an
another candidate who had the same 143 point score total as the plaintiff, but
was 43 years old, was hired as chief instead. One commissioner said that
retirement eligibility "might have been a factor." A federal appeals
court found that issues of material fact on the plaintiff's age discrimination
claim precluded summary judgment for the city. Hilde v. City of Eveleth,
#14-1016, 2015 U.S. App. Lexis 1802 (8th Cir.).
A woman employed by a state corrections
department as a substance abuse counselor for 19 years lost her job when her
employer contracted out its counseling program to a private company. She
claimed that the private company's decision not to hire her stemmed from an
incident a year before when she and a coworker complained that their desks were
being used after hours to have sex on. She claimed that she was told that it
was "just" staff members, not inmates, having sex on the desks, and
that she could simply wash down her desk. It later was discovered that her
coworker and the Major in charge of custody were having an affair, which led to
both of them being fired, but the Major quickly returning to work at the prison
on a contract basis. When the coworker filed a sex discrimination lawsuit, the
plaintiff supported her. She now claimed that the failure to hire her back once
counseling was contracted out constituted sex discrimination, age
discrimination, and unlawful retaliation. Upholding summary judgment for the
defendant employer, the private company providing counseling at the prison, the
federal appeals court found that the plaintiff was merely the "unfortunate
victim" of a reduction in workforce, rather than retaliation or
discrimination. Ripberger v. Corizon, Inc., #13-2070, 2014 U.S. App. Lexis
23186, 125 Fair Empl. Prac. Cas. (BNA) 760 (7th Cir.).
A county employee claimed that her employer
discriminated against her on the basis of her sex and age when they fired her.
The appeals court upheld the rejection of this claim, noting that the county
had a legitimate, non-discriminatory reason for her termination--that she
repeatedly made record keeping errors. The plaintiff failed to provide evidence
adequate to raise a genuine issue of fact as to whether the county's reason was
pretextual. Doucette v. Morrison County, Minnesota, #13-2424, 763 F.3d 978 (8th
Cir.).
A detective for a county prosecutor's office claimed
that his termination was part of the agency's "well-known and established
practice to push out older workers through termination or forced
resignation." He unsuccessfully pursued an internal grievance and received
a right to sue letter on his claims for age discrimination under the Age
Discrimination in Employment Act (ADEA). He sued for that, as well as for
violation of equal protection under 42 U.S.C. Sec. 1983. ADEA claims against
the county were properly dismissed as the plaintiff had not named the county as
a defendant on the EEOC intake questionnaire, and had not identified it as a
defendant on the age discrimination claim until after the deadline for doing so
had passed. ADEA claims against the district attorneys' office, however, were
improperly dismissed as he had properly named it as a defendant in a timely
fashion before the EEOC and adequately pleaded that he had exhausted available
administrative remedies. Age discrimination claims may not be brought by a
state or local government employee under Sec. 1983, but may only do so under
the ADEA. Hildebrand v. Allegheny Cnty, #13-1321, 2014 U.S. App. Lexis 12136
(3rd Cir.).
An employee of the Alabama Board of Pardons and
Paroles sued her employer for age discrimination in state court. The Board
removed the case to federal court. The federal court then entered judgment for
the Board on a claim under the Age Discrimination in Employment Act (ADEA), 29
U.S.C.S. §§ 621-634, on the basis of Eleventh Amendment sovereign immunity. A
federal appeals court upheld that result, finding that the defendant, as a
state agency, did not waive its immunity from liability for an ADEA claim by
voluntarily removing the case to federal court. The removal did not affect the
availability of a sovereign immunity defense, although the Board had waived its
defense of immunity from litigation in federal court. Stroud v. McIntosh,
#12-10436, 2013 U.S. App. Lexis 14868 (11th Cir.).
A city held promotional exams for fire department
positions of Captain and Lieutenant. Candidates were promoted in rank order
based on a score that combined exam scores and additional points for seniority.
After a hearing, a federal trial court concluded that the exam had adversely
impacted 12 white Captain candidates and three Lieutenant candidates on the
basis of race, and adversely impacted 11 Lieutenant candidates on the basis of
their age. The trial court ordered the promotion of 18 candidates, and awarded
each impacted Lieutenant candidate $9,000 in compensatory damages and $72,000
in front pay and each impacted Captain candidate $10,000 in compensatory
damages and $80,000 in front pay. A federal appeals court upheld this result,
finding that the plaintiffs met the standards for injunctive relief, as they
demonstrated that substantially delaying their promotions would irreparably
harm their careers. Howe v. City of Akron, #11-3752, 2013 U.S. App. Lexis 14745
(6th Cir.).
In a federal employee's mixed case against the
U.S. Department of Labor asserting claims for age and sex discrimination and
discriminatory removal, a federal appeals court improperly upheld the trial
court's dismissal for lack of jurisdiction, when the trial court said that the
employee should have filed her claim initially with The Federal Circuit U.S.
Court of Appeals. A federal employee, who claims that the employing agency's
action that can be appealed to the Merit System Protection Board (MSPB)
violates a federal antidiscrimination statute, can seek judicial review in a
federal district court regardless of whether the MSPB decided her case on the
merits or on procedural grounds. Kloeckner v. Solis, #11-184, 2012 U.S. Lexis
9420.
A 54-year-old federal employee, having been
rejected for an interview and promotion in favor of a 42-year-old co-worker,
stated a valid claim for age discrimination. Once an employee or applicant
shows a prima facie case of age discrimination, the employer has the burden of
production of articulating a legitimate non-discriminatory reason for the
allegedly adverse employment decision. The employee, in response to the
statement of such reason must then show that there is a disputable issue of
fact as to whether the reason given is a pretext for age discrimination. In
this case, the fact that a supervisor inquired about the two employees' future
retirement dates was sufficient to suggest that other reasons given could be a
pretext. The framework for deciding motions for summary judgment set forth in
McDonnell Douglas Corporation v. Green, #72-490, 411 U.S. 792 (1973), remains
available for application in federal age discrimination in employment cases
despite the subsequent case of Gross v. FBL Financial Services, Inc., #08-441,
129 S. Ct. 2343 (2009) under which the trial court improperly granted summary
judgment against the plaintiff on the basis that he had not shown that he would
have received the promotion "but for" his age. Shelley v. Geren,
#10-35014, 666 F.3d 599 (9th Cir. 2012).
Under a collective bargaining agreement entered
into by a prison system and a union, an early retirement incentive system had
an "age 55 cliff." Under it, if employees retire at 55, the employer
continues to make unreduced contributions towards their health and dental
insurance costs. Employees who continue to work past 55, however, are denied
such contributions. A federal appeals court upheld the EEOC's position that
this arrangement constituted a violation of the Age Discrimination in
Employment Act (ADEA). The court ruled that a so-called "safe harbor"
exception to the law for voluntary early retirement programs "consistent
with the purposes" of the ADEA did not apply, since the plan here was
based solely on the age of the retiring employees. It was therefore at odds
with the statute's purpose of avoiding age discrimination. EEOC v. Minnesota
Department of Corrections, #10–2699, 2011 U.S. App. Lexis (8th Cir.).
The Indiana State Police's hiring plan, which
limits the rehiring rights of former officers to those under age 40, falls
under an exception to the federal age discrimination statute exempting bona
fide hiring or retirement plans not intended as a subterfuge to evade the law.
The court ordered further proceedings, however, on the issue as to whether the
decision to not rehire the plaintiff officer was made "pursuant" to
the plan, or whether the State Police exercised discretion to hire other former
officers over the age limit despite the plan, and used that same discretion to
not rehire the plaintiff officer. Davis v. Whitesell, #10-2617, 2011 U.S. App.
Lexis 13719 (Unpub. 7th Cir.).
In a 5-4 holding, the Supreme Court ruled
that plaintiffs in a "mixed motive" age discrimination case must
prove, by a preponderance of the evidence, that age was the "but-for"
cause of the challenged adverse employment action. The burden of persuasion
does not shift to the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some evidence that age
was a motivating factor in that decision. Gross v. FBL Financial Services,
#08-441, 129 S.Ct. 2343, 2009 U.S. Lexis 4535.
EEOC challenges a fire
district policy that disallowed credit toward a pension for firefighters over
65. The district amended its program in late 2006 to allow firefighters to earn
service credit without regard to age, but did not allow retroactive credits.
EEOC v. Eaton’s Neck Fire Dist., #08-5089, complaint (E.D.N.Y. 12/18/08).
Section 623(d) of the ADEA specifically prohibits
retaliation by non-federal employers. Initially some courts ruled that federal
employees lacked a remedy for retaliation. The Supreme Court specifically
overruled those cases. Gomez-Perez v. Potter, #06-1321, 128 S.Ct. 1931 (2008).
EEOC revises ADEA regulations to conform to
General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004); the 6-to-3 holding
had rejected the claims of employees in their 40s who would not receive the
same retirement health benefits as the employer's older employees. Coverage
Under the Age Discrimination in Employment Act, EEOC Amendment to 29 C.F.R.
Part 1625, 72 (129) Fed. Reg. 36873 (7/6/07).
City's "Leave Donation Program," under
which employees can donate excess leave to coworkers who have medical problems,
violates the ADEA because workers age sixty or older could not participate.
EEOC v. City of Independence, #05-4489, 2006 U.S. App. Lexis 31499 (8th Cir.
2006). [N/R]
Because a sheriff's benefits plan resulted in
younger workers who were disabled to receive higher benefits than older workers
would receive, the EEOC established a prima facie violation of the ADEA,
because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's
Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA)
180, 2006 FED App. 0405P (6th Cir.). {N/R}
A federal employee that elected to pursue an age
discrimination appeal before the Merit Systems Protection Board is obliged to
follow that route through to completion, to the exclusion of any other remedy
that otherwise might be available. Stoll v. Principi, #05-2483, 2006 U.S. App.
Lexis 13962 (1st Cir. 2006). {N/R}
Federal court upholds a proposed EEOC
Regulation [68 (134) Fed. Reg. 41542-49] that will allow employers to provide retirees
65 and older with health benefits that are inferior to the benefits given to
younger retirees. AARP v. EEOC, #05-CV-509, 2005 U.S. Dist. Lexis 21495
(E.D.Pa. 2005), relying on language in National Cable v. Brand X, 125 S.Ct.
2688 (2005).
The EEOC notes that rising health care costs and
a larger numbers of workers nearing retirement age created an incentive for
employers to eliminate all health benefits for retirees. {N/R}
Sixth Circuit rejects an EEOC age discrimination charge
brought against a county because disability pensions are restricted to workers
under age 55 and the disabled applicant was a 61 year-old deputy sheriff. EEOC
v. Jefferson Co. Sheriff's Dept., #03-6437, 424 F.3d 467, 2005 U.S. App. Lexis
20053, 2005 FED App. 0397P, 96 FEP Cases (BNA) 801 (6th Cir. 2005). {N/R}
A retirement incentive plan that excludes persons
over age 65 violates the Age Discrimination in Employment Act and is
discriminatory on its face. Jankovitz v. Des Moines Sch. Dist., #04-3401, 421
F.3d 649, 96 FEP Cases (BNA) 695, 2005 U.S. App. Lexis 18557 (8th Cir. 2005).
{N/R}
Federal appeals panel rejects an age bias suit
where a city worker failed to establish that she was subjected to a severe or
pervasive hostile work environment, because of her superior's "silent
treatment" of her and various age-related remarks. MacKenzie v. C&C of
Denver, #02-1468, 414 F.3d 1266, 2005 U.S. App. Lexis 14225, 96 FEP Cases (BNA)
357, 16 AD Cases (BNA) 1616 (10th Cir. 2005). {N/R}
Appeals court declines to enforce a release and
waiver of rights under the ADEA because the wording was unclear and the
employer declined to explain what it meant. Thomforde v. IBM, # 04-1538, 406
F.3d 500, 2005 U.S. App. Lexis 7592, 95 FEP Cases (BNA) 1145 (8th Cir. 2005).
[2005 FP Aug]
U.S. Supreme Court rules 5-to-3 that employers
can be sued under the ADEA for employment actions that have a disparate impact
on older workers. However, the Jackson, Mississippi, police officers and
dispatchers who brought this particular case failed to prove their claim. Smith
v. City of Jackson, #03-1160, 2005 U.S. Lexis 2931, 125 S.Ct. 1536 (2005).
{N/R}
Employer was not entitled to terminate a 73
year-old driver because a new insurance policy excluded drivers over age 70.
Enlow v. Salem-Keizer, #02-35881, 371 F.3d 645, 2004 U.S. App. Lexis 11428, 93
FEP Cases (BNA) 1601 (9th Cir. 2004). {N/R}
EEOC approves a final regulation that allows
employers to reduce or end health benefits when a retiree becomes eligible for
Medicare or under a comparable state retiree health plan, without violating the
Age Discrimination in Employment Act. Age Discrimination in Employment Act:
Retiree Health Benefits, 29 CFR Parts 1625 & 1627, RIN 3046-AA72, 72 (40)
U.S. Law Week 2640 (2004). {N/R}
Supreme Court holds that an employer may provide
different benefits for retired workers, for those over age 50, and those under
50. The ADEA, which protects workers who are age 40 and older, offers no
protection for younger workers against enhanced benefits for older employees,
because it was enacted to protect older, not younger, workers. Gen. Dynamics
Land Sys. v. Cline, No. 02-1080, 2004 U.S. Lexis 1623, 72 U.S.L.W. 4168 (2004).
{N/R}
If an employee cannot show lost wages, he cannot recover any damages in an ADEA
action because "the ADEA does not permit a separate recovery of
compensatory damages for pain and suffering or emotional distress."
Beverly v. Desmond Hotel, #02-6712, 2004 U.S. Dist. Lexis 353 (E.D. Pa. 2004).
{N/R}
A divided Fifth Circuit holds that age-differentiated
pay increases were not subject to challenge under a "disparate
impact" test, but could be challenged under a "disparate
treatment" theory. Smith v. City of Jackson, MS, No. 02-60850, 2003 U.S.
App. Lexis 23125 (5th Cir. 2003). [2004 FP Jan]
Reverse discrimination: a divided Sixth Circuit
has held that the ADEA allows younger workers to sue when older employees were
given benefits they are denied. The U.S. Supreme Court has agreed to hear an
appeal. Cline v. General Dynamics, 296 F.3d 466, 2002 U.S. App. Lexis 14643,
2002 FED App. 0242P (6th Cir.); cert. granted, 123 S.Ct. 1786, 2003 U.S. Lexis
2949 (2003). {N/R}
Federal appeals court declines to overturn a
$246,774 ADEA verdict because the plaintiff's economic expert allegedly lacked
"sufficient facts and data, scientific principles, and reliable
methods" to render a valid opinion. Hartley v. Dillard's, #02-1298, 2002
U.S. App. Lexis 23727 (8th Cir. 2002). {N/R}
The EEOC plans to allow ADEA complainants to file
a lawsuit, 60 days after filing of a charge with the Commission, and without
waiting for a Notice of Dismissal or Termination to be issued. Procedures - Age
Discrimination in Employment Act, 29 CFR Part 1626, 67 (155) Federal Register
52431-52433 (Aug. 12, 2002). {N/R}
Employers cannot be sued for a suicide
following an allegedly age-biased reduction in the workforce. Kulling v.
Grinders, #99-74339, 115 F.Supp.2d 828, 2000 U.S. Dist. Lexis 15134 (E.D.
Mich.). [2001 FP 19]
$5,956,751 in back pay and statutory penalties
awarded to a terminated executive (then 62 years-old). Jury found the defendant
company wanted a younger image. Riseman v. Advanta Mortgage, unreported,
verdict described in The Legal Intelligencer 12/7/2000 (E.D. Pa.). {N/R}
Older workers who did not receive an offer of a
severance package did not suffer an adverse employment action as long as the
employer retained their services. Cooney v. U.P.R.R., #No 00-3425, 258 F.3d
731, 2001 U.S. App. Lexis 16271, 86 FEP Cases (BNA) 829 (8th Cir. 2001). {N/R}
Two Federal Circuits rule against public
employees who brought civil rights suits to set aside transfers allegedly
motivated by advancing age. ADEA, not Sec. 1983, provides the appropriate
remedy for age based discrimination claims. Izquierdo Prieto v. Mercado Rosa,
894 F.2d 467 (1st Cir. 1990).
U.S. Supreme court upholds arbitrability of
statutory employment discrimination claims (under the A.D.E.A.); employee
waives right to sue in court. Gilmer v. Interstate/Johnson Lane Corp., 111
S.Ct. 1647 (1991). {N/R}
Juries awarding substantial verdicts for
emotional distress in age discrimination suits. Shapiro v. Halmar, Hampden Co.
Super. Ct. #84-1836 (1988).
Federal appeals court establishes formula for
computing damages in age discrimination cases. Wages earned in other employment
are deducted from double back pay award. Kossman v. Calumet County, 849 F.2d
1027 (1988).
Firefighter who was denied promotion due to age
must receive all the benefits of higher rank; no need to demote others. Civil
Service Cmsn. of Waterbury v. Cmsn. of Human Rights and Opportunities, 195
Conn. 226, 487 A.2d 201 (1985).
Federal court upholds an EEOC subpoena for
allegedly irrelevant documents in an ADEA inquiry. "A party may not defeat
an agency's authority to investigate by raising what could be a defense if the
agency subsequently decides to bring an action against the party." EEOC v.
Delaware State Police, 618 F.Supp. 451, 1985 U.S. Dist. Lexis 15275, 39 FEP
Cases (BNA) 81 (D. Del.). {N/R}