Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case
It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of Mora v. Jackson Memorial Hospital.
Facts Of The Case
Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital (“Hospital”) as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion.
Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.
At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:
I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]
In addition, one employee heard Rodriguez tell Mora:
You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.
Another employee heard Rodriguez say “she’s too old to be working here anyway” in reference to Mora.
In the course of Mora’s lawsuit filed under the Age Discrimination in Employment Act, (“ADEA”) Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.
The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.
The Eleventh Circuit Reverses
Mixed Motive Analysis Wrongfully Applied
Part of the reason why the Eleventh Circuit reversed the decision was because it found that the district court wrongfully applied a Title VII mixed motive analysis to an ADEA case.
The discussion involves a lot of complicated and tortured law, but here’s the simplest I can make it.
In the landmark Supreme Court case of Price Waterhouse v. Hopkins decided in 1989, the evidence showed that the partners at Price Waterhouse made sexist remarks and engaged in gender stereotyping when they denied Ann Hopkins partnership in the firm. In other words, there was direct evidence of discrimination.
In its holding the Supreme Court set out a new standard which could be applied to cases with direct evidence of discrimination. In sum, when a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to prove that it would have made the same decision anyway (in the absence of the discriminatory motive.)
Since the Price Waterhouse decision, this kind of discrimination case is often referred to as a “mixed motive case” with a “same decision defense.”
In Moro’s case, the district court applied the Price Waterhouse mixed motive analysis and ruled that the Hospital proved its “same decision” defense. It concluded that Mora ‘s termination was inevitable given the number and severity of her workplace problems and that no reasonable jury could find otherwise. And so she lost as a matter of law.
The problem with the district court’s ruling — according to the 11th Circuit — is that the Supreme Court’s decision in Gross v. FBIS Financial Services (2009) held that the Price Waterhouse mixed motive burden shifting analysis only applied to discrimination claims brought under Title VII and did not apply to the Age Discrimination in Employment Act. ( I wrote about the awful Gross case here and here)
Consequently, since the mixed motive burden shifting analysis was wrongly applied, the defense was not entitled to its same decision defense, and the district court’s reliance on that defense in finding against the plaintiff was reversible error.
The Jury Should Decide Whether Mora Was Fired Because Of Her Age
After the 11th Circuit explained why the district court’s analysis was wrong, it went on to explain what the correct analysis is – and unlike the above discussion, it’s all very straightforward from there.
A plaintiff in an ADEA case may prove illegal age discrimination with either direct or circumstantial evidence. Moro testified that she was fired because of her age, and two co-employees substantiated her. The Hospital denied that the comments were made which meant that material facts were in dispute and the case properly belonged in front of a jury.
As the Court put it:
The resolution of this case depends on whose account of the pertinent conversations a jury would credit. …..
A reasonable juror could find that Rodriguez’s statements should be taken at face value and that he fired Plaintiff because of her age. For us to conclude otherwise would be to deny Plaintiff the benefit of resolving all reasonable inferences in her favor as the nonmoving party.
Given the disputed question of material fact, Defendant was unentitled to a summary judgment.
It’s awfully common for people to be let go because they are considered by some to be too old and too expensive. I can’t count the number of times I have represented people who were fired for just those reasons.
In this case, Josephine Mora was told, “you’re too old. I need to find someone younger and cheaper.” If it’s not a case of age discrimination, I don’t know what is.
It’s both astounding and disheartening that forty three years after the passage of the Age Discrimination in Employment Act, a court faced with such strong evidence of age discrimination could throw the plaintiff out, grant judgment in favor of the employer, and deprive the employee of her right to a jury trial
It’s a good thing the Eleventh Circuit fixed the mistake and published this opinion, because if this woman can’t get her age discrimination case in front of a jury, I have a hard time figuring out who can.
About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.