Employees of the Veterans Administration were not selected to fill patient aligned care team pharmacist positions, and were denied opportunities to train and qualify for those positions. They sued for employment discrimination, asserting claims for age discrimination, as well as gender discrimination. A federal appeals court upheld summary judgment for the employer, since the plaintiffs were not objectively qualified to perform the duties of the positions. They had no experience providing mid-level care with independent prescription authority. Trask v. Secretary, Dept. of VA, #15-11709, 2016 U.S. App. Lexis 6168 (11th 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.).
     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.).
     An age discrimination lawsuit was filed by San Francisco police officers over 40 years old who qualified for consideration for promotion to Assistant Inspector based on a 1998 exam. They claimed that a police department policy abandoning that exam as the basis for certain assignments constituted age discrimination on the basis of disparate impact. A federal appeals court found that the trial court's denial of the certification of a class in the lawsuit amounted to an abuse of discretion. The trial court improperly addressed the merits of the plaintiffs' claims and also disregarded the presence of common questions of law and facts. Stockwell v. City and County of San Francisco, #12-15070, 2014 U.S. App. Lexis 7694 (9th 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.).
     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).
     A 49-year-old Cape Verdean black female employee of a county sheriff's department failed to show that she had been subjected to age, gender, race or national origin discrimination when she was passed over for promotion to computer programming jobs that were given to two younger white employees, one male and the other female. One had a computer-related associate's degrees and both had years of experience in intranet/internet user interface development. While the plaintiff also had a similar associates degree, her experience in a computer-related job was eleven years ago, and her experience was with a now long outdated DOS-based computer system that is no longer used. Additionally, she received the lowest exam and interview scores. Her current position as a budget administrator did not involve any use of computer skills. The court agreed that she simply wasn't qualified for the position she sought. Goncalves v. Plymouth County Sheriff's Department, #10-2063, 2011 U.S. App. Lexis 20397, 113 Fair Empl. Prac. Cas. (BNA) 805 (1st Cir.).
     Federal court rejects the ADEA claims of seven DEA employees who sought promotions as special agents, which has an entry age limit of 37. Albert v. Holder, #08-13289, 2009 U.S. Dist. Lexis 96770 (E.D. Mich).
     State appellate court finds that a provision in a bargaining unit, requiring that a person transferring to the Fire Investigations Unit to spend at least five years in that capacity, unlawfully discriminates against employees who will reach retirement age before five years. Campolieti v. Cleveland Dept. of Public Safety, #92238, 2009 Ohio 5224, 2009 Ohio App. Lexis 4417 (8th Dist.).
     Federal court rejects an ADEA action brought by a 51 year old that was not selected for a promotion in the Marshal's Service. The successful candidate, who was 37, achieved a higher merit-promotion score, earned a law degree and was more experienced in collateral duties than other applicants. Witkowich v. Gonzales, #05 Civ. 7756, 2008 U.S. Dist. Lexis 19827 (S.D.N.Y.).
     DHS did not discriminate against an acting assistant director because of her race and age when management selected a younger, white woman for the position. The agency proffered a non-discriminatory reason for its decision. Barnette v. Chertoff, # 04-5443, 2006 U.S. App. Lexis 16948, 98 FEP Cases (BNA) 609 (D.C. Cir. 2006). {N/R}
     New Jersey's labor board rejects an age discrimination challenge to a new requirement that lieutenants who are promoted to captain must possess a bachelor's degree. N.J. State Police and Superior Officers Assn., #SN-2006-030, PERC #2006-68, 32 NJPER 41, 2006 NJPER (LRP) Lexis 39 (2006). [2006 FP Sep]      Liquidated damages are recoverable from local governments for willful age discrimination. Cross v. N.Y. City Transit Auth., #04-2912, 417 F.3d 241, 2005 U.S. App. Lexis 15849 (2d Cir. 2005). {N/R}
     Even though an officer promoted to sergeant was only six years younger than the plaintiff, there was sufficient evidence that the chief had manipulated an oral promotional exam to discriminate against older officers, and that the plaintiff experienced retaliation for complaining; the court denied a defense motion for summary judgment. McInnis v. Weston, #3:03CV1803, 375 F.Supp.2d 70, 2005 U.S. Dist. Lexis 12704 (D. Conn. 2005). (D. Conn. 2005). {N/R}
     Federal appeals court overturns a large age discrimination verdict for a detective who was not selected as a civilian property room technician. The job paid less; the fact he could have also collected a police pension was irrelevant. He suffered no adverse personnel action. Moore v. Columbus, #04-3224 (Unpub. 6th Cir. 2005). [2005 FP Aug]
     Fifth Circuit upholds an ADEA jury verdict of $109,222 to a 57-year old District Chief who was denied a promotion to Asst. Chief because of age. Although Title VII requires that plaintiffs receive an EEOC right-to-sue notice, the ADEA has no such requirement. Julian v. City of Houston, #01-20541, 2002 U.S. App. Lexis 25427 (5th Cir. 2002). {N/R}
   A Texas county probation dept. has settled a failure-to-promote age bias claim for $5,000. The plaintiff was 40 years old when she was passed over. EEOC v. Bexar County Juvenile Probation Dept., #SA-01CA0474, 40 (1975) G.E.R.R. (BNA) 895 (W.D. Tex. 2002). {N/R}
     Jury awards a district fire chief $109,222 because he was repeatedly passed over for promotion because of his age. Julian v. City of Houston, #H-99-0628, 38 (1866) G.E.R.R. (BNA) 719 (S.D. Tex.). [2000 FP 115]
     Federal court in Indiana rejects a claim that the city violated the ADEA when it laterally reassigned a detective and replaced him with a younger officer. Bailey v. Canan, 82 F.Supp.2d 966, 2000 U.S. Dist. Lexis 2205, 81 FEP Cases (BNA) 1711 (S.D.Ind.). [2000 FP 67]
     Federal judge upholds a jury's finding that a 60-year-old police officer suffered emotional distress, resulting from an age-based reassignment. The award was reduced from $139,000 to $100,000. Fernandez v. City of N.Y., #96 Civ. 4215, 20 F.Supp.2d 655, 1998 U.S. Dist. Lexis 15186 (S.D.N.Y.). [1999 FP 19]
     NJ appellate court upholds use of college credits for promotional purposes; ADEA complaint by older officers is rejected. Esposito v. Twp. of Edison, 306 N.J. Super. 280, 703 A.2d 674, 1997 N.J. Super. Lexis 495. [1998 FP 57-9]