?Takeaway: Employers should train supervisors as to what constitutes age discrimination and related retaliation to help ensure a workplace free from unlawful discrimination.
?The 5th U.S. Circuit Court of Appeals recently reversed summary judgment for a plaintiff’s age discrimination and retaliation claims arising out of her termination, as well as her retaliation claim arising out of a withdrawal of a job offer. The court dismissed all other claims and remanded the case for further proceedings.
The plaintiff was hired in April 2018 as a carrier assistant at the U.S. Postal Service’s (USPS) North Central Carrier Station in New Orleans. She was fired before her probationary period ended. She initiated an informal equal employment opportunity (EEO) complaint regarding her termination, alleging the firing was related to her age, marital status and disability. She also alleged a hostile work environment.
In November 2018, the complaint was resolved, and the plaintiff was reinstated. In January 2019, the plaintiff initiated another informal EEO complaint, alleging age discrimination and retaliation for her prior EEO action. While working at Central Station, the plaintiff interviewed twice for USPS positions in Metairie, La., and once in Marrero, La.
The USPS again fired the plaintiff, alleging poor performance. In March 2019, she filed a formal EEO complaint, alleging that her second termination was based on her age, as well as retaliation for her earlier EEO activity. She amended her complaint to include claims for age discrimination and EEO retaliation, based on her nonselection for the other positions. In addition, she alleged a May 2019 rescission of a job offer at the Metairie post office was retaliatory.
In October 2019, the USPS dismissed the plaintiff’s EEO claims and advised her of her right to file a civil action. In January 2020, the plaintiff filed suit in district court, alleging various claims of age discrimination and retaliation. The USPS moved for summary judgment on all claims, and the district court granted the motion in full. The plaintiff appealed.
The court of appeals held there were only three claims on appeal: age discrimination and retaliation as to the plaintiff’s second termination, and retaliation as to her second “nonhiring” in Metairie. The court further said that the plaintiff “did not specify in her briefing before us which dismissals by the district court she appeals,” and therefore, “not all of her claims are adequately briefed, and failure to brief an issue on appeal constitutes waiver of the issue.”
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) prohibits employers from firing, refusing to hire or otherwise discriminating against any individual with respect to compensation, terms, conditions or privileges of employment because of age. Under the law’s federal employee provision, which covers USPS, actions affecting employees or applicants who are at least 40 years of age must be made “free from any discrimination based on age … and untainted by any consideration of age.” At the time of her employment, the plaintiff was 53 to 54 years old.
To establish her ADEA case, the court said the plaintiff had to show that she was: 1) discharged, 2) qualified for the position, 3) part of the protected class when she was discharged, and 4) either replaced by someone outside the protected class, replaced by someone younger or otherwise discharged because of age.
The appellate court concluded that “there are issues of fact precluding summary judgment for USPS” on the ADEA claim.
Citing the Supreme Court, the court wrote that the ADEA’s federal-employee provision “prohibits retaliation against a federal employee who complains of age discrimination.” To establish her retaliation claim, the court said the plaintiff had to show: 1) she engaged in a protected activity, 2) she suffered an adverse employment action, 3) there is a causal link between the protected activity and the adverse employment action, and 4) she was qualified for the position.
With respect to the claim relating to the plaintiff’s second firing, the court said “the only element of her prima facie case at dispute on appeal is her showing that there was a causal link between her protected activity and her discharge.” The appellate court found a “reasonable jury could find,” based on evidence presented by the plaintiff, that USPS’ reason for terminating the plaintiff “was pretext for retaliation based on her EEO activity.” The court held that the district court erred in granting summary judgment on this claim.
The court also found that “material factual disputes preclude summary judgment” on the plaintiff’s retaliation claim as to a May 2019 rescission of a job offer at the Metairie post office. The court said affidavit testimony about remarks made by two USPS employees “constitutes direct evidence of retaliation,” and a reasonable jury could, based on this evidence, determine that “the plaintiff offer for the Metairie station was rescinded in retaliation for her protected EEO activity.” The court reversed summary judgment as to this claim.
Allen v. United States Postal Service, 5th Cir., No. 22-30297 (March 21, 2023).
D.M. Fera is a freelance writer in the Washington, D.C., area.
