(Yes, folks, it was either that or a riff on clown’s mouths and windmills).
When the plaintiff, in this case, took leave from his job after ankle surgery, he did so with certain medical restrictions on his physical activities. Thus, when the company learned that the plaintiff may be playing golf and coaching softball during his leave, it didn’t respond by buying the plaintiff some peanuts and crackerjack. Rather, the company’s third-party administrator investigated and confirmed that the plaintiff exceeded his physical work restrictions while on leave. Which led to the company firing the plaintiff.
And the plaintiff filed a lawsuit, because, of course. Except, rather than bring a disability discrimination claim, he solely contended that his former employer discriminated against him based on his age, which was forty-nine at the time of his termination.
Well, the plaintiff’s argument was he was replaced by a younger employee: a 42 year old.
How many of you are shaking your heads right now?
Still, the court let the plaintiff skate by with the seven-year age gap. However, once the company articulated a legitimate business reason for firing the plaintiff — that whole golf thing — the burden shifted back to the plaintiff to demonstrate that the company’s reason for firing him was pretextual. Unfortunately for the plaintiff, his deposition testimony wasn’t, shall we say, helpful:
Q. Did you believe before you went down to the EEOC that you had been
mistreated on the—because of your age?
A. I knew I was mistreated the day [Daves] harassed me in his hall.
Q. Yeah. But mistreated—on what basis? Because of—what was the
motivation for it in your mind at that time?
A. Well, he harassed me on my surgeries, plus said it was costing the
Q. Okay. He didn’t say anything about your age though did he?
Geez! The company’s attorney tossed the plaintiff a friggin’ softball, amirite? Dare I say, it was a two-foot putt. I can even picture the plaintiff’s lawyer — fist to mouth, teeth clenched — imploring his client with all of the Aquaman mental telepathy the attorney could muster, “Just say ‘age.’ Just say ‘age,’ goddammit!”
As you may imagine, the plaintiff failed to carry his burden, and the company prevailed.
Winning ain’t easy.
This case is another example of just how hard it can be for a plaintiff to prevail in an age discrimination case. The standard by which a court adjudicates these claims is “but for.” In Burrage v. U.S., Justice Scalia reduced it to a baseball analogy:
This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run.
So, if several reasons contribute to a firing, and age is but one of them, the plaintiff loses.