Impossible Hurdles for Age Discrimination Plaintiffs

One wonders how the plaintiffs might have persuaded  the federal appeals court panel that they were the victims of age discrimination absent a futuristic device that reads an  employer’s mind.

A three-judge panel of the U.S. District Court of Appeals for the Third Circuit in Philadelphia recently granted a pre-trial motion to dismiss an age discrimination lawsuit because the plaintiffs failed to prove the employer’s stated reason for firing them was a pretext or a  lie.

Assistant District Attorneys Edward Gallen, 65, and Robert Miller, 57, were fired shortly after the 2011 election of District Attorney Tom Hogan in Chester County, Pennsylvania.   Hogan requested the termination papers prior to taking office. He fired the men for “poor performance.” He then made public statements that he planned to reorganize the office and establish a “modern” prosecutor’s office.

The appeals court panel ruled that “no reasonable factfinder should infer an intent to discriminate in hiring based on age from Hogan’s platitude about modernizing the District Attorney’s Office.”

Moreover, Hogan fired a total of four assistant district attorneys in their 50s and 60s, including Gallen and Miller, and then hired five younger attorneys in ages ranging from 27 to 42.  The appeals court panel agreed that “on the surface” this looked bad but said it fell short of what was needed to show age discrimination.  The court said the plaintiffs failed to show that Hogan had refused to hire more experienced attorneys who were older.

The third circuit panel said the plaintiffs were required to “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reasons … or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s actions.”

The ruling raises a question about whether it is even possible for an age discrimination plaintiff to withstand a motion for summary judgment in the third circuit without direct evidence, such as a memo from a supervisor stating that employee is being fired because s/he is too old.

Is it realistic today to expect savvy employers to commit their illegal intentions to paper?

Technically, it’s not supposed to be a high bar for plaintiffs to withstand a motion for summary judgment, which is a pretrial motion filed by the employer to dismiss the case prior to trial  because “there is no genuine dispute as to any material fact.”  Under federal rules, judges are required to give the plaintiffs (not the employer) every benefit of the doubt. Traditionally, it has been thought that questions of intent and decisions about a witness’ credibility are best left to juries, not to  federal judges who have lifetime tenure and don’t have to worry about a new guy taking office and firing them because they’re too old.

The decision was issued by Judge Thomas Ambro,  Chief Judge Thomas  A. McKee and  Senior Circuit Judge Anthony Joseph Scirica.  It seems worth noting that Scirica is 76 and voluntarily accepted semi-retired status in 2010, at which time he began collecting a fat government pension plus his earnings as a part-time federal judge.

The third district covers Delaware, New Jersey and the Eastern, Middle and Western districts of Pennsylvania.

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