Federal employment discrimination claims are on the rise across the United States. For an employee to file a successful discrimination lawsuit against their employer, the employee must establish a very regimented, step-by-step claim, especially for retaliation and age discrimination claims.
An employee’s claim for age discrimination must satisfy four factors: (1) the employee was 40 years of age or older at the time of termination; (2) the employee was qualified for the job and performing in accordance with the employer’s legitimate expectations; (3) the employer discharged the employee; and (4) the employee’s job duties were absorbed by other employees not in the protected class or the employer did not treat the plaintiff’s protected characteristics neutrally when deciding to terminate the plaintiff. Guessous v. Fairview Prop. Invs., 828 F.3d 208, 219 (4th Cir. 2016).
The first three criteria are the most straightforward (although, often, as discussed in this article, if an employee is a poor performer, the employer will argue that the employee was not meeting the employee’s legitimate expectations). Generally, the employee’s age, job performance, and job status can be determined by the employer’s records or through internal communications. However, the fourth factor has proven to be a barrier for plaintiffs. In the case, Farley v. CMFG Life Insurance Company (“CUNA”), the U.S. District Court for the Western District of Virginia hinged its decision of a discrimination lawsuit on this fourth factor.
In Farley, the Plaintiff was a 58-year-old employee of CUNA, which sells insurance and other financial services. The Plaintiff was one of three sales managers. CUNA management implemented a review of the three sales positions, with the intention of consolidating them into just two positions. The Plaintiff alleged this consolidation was merely a pretext for his termination because of his age. During CUNA’s review, the Plaintiff attempted several times to raise his concerns of possible age discrimination. Nevertheless, the Plaintiff was terminated, and he filed suit alleging age discrimination and retaliation.
The court’s opinion explained “the first three elements of Farley’s prima facie case are not in dispute. CUNA does not contest that Farley was over 40 years old, that he was performing his job satisfactorily, and that CUNA terminated Farley’s employment. Ultimately, the court dismissed the lawsuit, ruling that the Plaintiff could not establish that CUNA divided the Plaintiff’s job duties among other employees not in the protected class. Rather, the Plaintiff’s duties were absorbed by three other employees who were all no more than seven years younger. Further, the Plaintiff offered no evidence suggesting his age was the “but for” cause of his termination. Without establishing these critical factors, the court held that Plaintiff had not established a prima facie case of age discrimination.
The court applied a similar analysis to the Plaintiff’s second claim of retaliation, explaining the Plaintiff “fail[ed] to show a causal connection between his protected activity and his termination.” The Plaintiff failed to adequately rebut CUNA’s legitimate business reason for downsizing and consolidating the sales manager positions.
The Farley case casts light on the regimented factors required to establish a prima facie case for age discrimination and retaliation. Without even just one of the factors, the lawsuit is incomplete, and it will not survive a motion to dismiss/summary judgment stage of litigation.
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