Even some judges mistake how easy it is for an employee to claim age discrimination


Last month, I explained how easy it is for an employee to plead a discrimination claim under the Age Discrimination in Employment Act. Yet, last night, I read an opinion in which the Fifth Circuit Court of Appeals had to correct not one but two judges on the pleadings standards.

What happened?!?

An employee representing herself alleged that she applied for 80 internal positions in 2018 and interviewed for 25 of them. Still, her employer never selected her despite her 25 years of education experience, including 12 years of experience as an Instructional Coach and Department Chair. She alleged that, as an Instructional Coach, she had helped the teachers she coached “double or even triple” scores on statewide math testing and that she had obtained a master’s degree in Public School Administration in May 2001. The plaintiff further alleged that the defendant filled seven positions with candidates under 40.

The defendant moved to dismiss the complaint. A magistrate judge recommended dismissal, and a district judge accepted that recommendation.

The EEOC came to her aid after the plaintiff appealed to the Fifth Circuit. On behalf of the plaintiff, the EEOC argued to the appellate court that the judges erred by applying heightened “summary judgment-like scrutiny” that was inappropriate at the pleading stage.

When a plaintiff files a complaint in federal court for age discrimination or otherwise, she need only state a plausible claim. It’s not an exacting standard.

After discovery (interrogatories, document requests, and depositions), a plaintiff alleging age bias must show that she was qualified for the position she sought and was treated less favorably than younger applicants. But, the initial complaint need not satisfy this prima facie evidentiary standard, which the two judges had erroneously applied.

Instead, at the motion to dismiss stage, a plaintiff in the Fifth Circuit must plead two “ultimate elements” to support a disparate treatment claim: (1) an ‘adverse employment action, (2) taken against a plaintiff because of her protected status. Here, the Fifth Circuit concluded that  the defendant was on notice of her age discrimination claims:

The “facts alleged in the complaint are far more than ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.’ They raise at least an inference that [the plaintiff], who alleges that she had significantly more experience [with the defendant] and as an educator than many of the candidates who were hired…was not hired due to her age.”

The appellate court acknowledged that “[w]hether she can make out a prima facie case and whether [the defendant] had non-discriminatory reasons for hiring other, younger candidates are questions for summary judgment rather than a motion to dismiss.”

But, like I said before, pleading a claim of age discrimination isn’t that hard.

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