On March 11, 2022, the United States Court of Appeals for the Fifth Circuit affirmed summary judgment, dismissing a Texas city employee’s claim that he had been unlawfully terminated from his job because of his age. The Fifth Circuit held that age discrimination comments must contain age-specific references, and a factfinder cannot infer age discrimination without clear evidence of age bias.

Brief Background

In Harris v. City of Schertz, No. 20-50795 (5th Cir. March 11, 2022), Michael Harris (“Harris”) brought suit against his former employer the City of Schertz, Texas (“the City” or “City”). Harris was employed as City Marshall who supervised the City’s Animal Services Department as part of his duties for approximately three years. In December 2016, a manager complained to Harris about the behavior of another employee, and Harris relayed the information to senior authorities. The City opened an investigation and discovered Harris had been present and even participatory when sexually and racially inappropriate language was used in the workplace. The City demoted Harris for his alleged involvement in fostering an inappropriate work environment. Two months later, the City terminated Harris for allegedly placing a concealed camera at the City’s Animal Services Department.

Harris filed suit in the Western District of Texas alleging unlawful discrimination on account of his sex, in violation of Title VII, and age, in violation of the Age Discrimination in Employment Act (“ADEA”). The district court found Harris established he was discharged because of his age, relying on his superior’s testimony that Harris “had not been adequately prepared or mentored” or “taught to be a leader”, and that Harris “struggled to engage and to learn more” despite the City needing a manager with a higher level of sophistication and leadership than Harris. The district court rejected the City’s offered reason for Harris’ termination – that they intended to demote Harris for the work environment at the City’s Animal Services Department and the discovery of the hidden camera – because it was unclear if Harris had actually ordered the camera to be hidden. Notwithstanding, the district court ultimately dismissed Harris’ sex and age discrimination claims by granting the City’s summary judgment because he (1) failed to provide evidence that a similarly situated employee outside of his protected class was treated more favorably to establish sex discrimination, and (2) failed to prove “but-for” causation between his age and the termination to establish age discrimination. Harris only appealed the district court’s dismissal of his age-based discrimination claim.

Fifth Circuit’s Decision

The Fifth Circuit affirmed summary judgment in favor of the City, including dismissal of Harris’ age discrimination claim. Concluding the testimony about Harris’ performance did not contain sufficient age-specific bias for a factfinder to infer Harris was terminated because of his age, the Fifth Circuit agreed that Harris’ termination did not amount to age discrimination. Harris argued the testimony that he was largely unqualified for the responsibilities of his position would allow a factfinder to infer that Harris was terminated because he was “old and slow.” The Fifth Circuit disagreed, stating “[s]uch an inference would be pure speculation.” Citing their own precedent, the Fifth Circuit concluded that when a decision-maker’s comments are “sufficiently suggestive of age bias”, the comments contain more age-specific references than the testimony about Harris’ leadership deficiencies, citing examples like referring to a plaintiff as an “old fart” or “old goat”, or describing his appearance as “old man clothes.” Thus, the Fifth Circuit held that a reasonable factfinder would not be justified to infer that Harris was terminated because of his age.

Key Takeaways

The Fifth Circuit confirmed that a factfinder must have evidence of age-specific bias, not mere inferences, in order to permit an age discrimination claim to survive dismissal. Thus, an employer’s decision to terminate an employee for poor performance will not be usurped by an age discrimination claim if there is an absence of age-specific bias by the decision-maker.

 

 

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Photo of Nicole Eichberger Nicole Eichberger

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents…

Nicole A. Eichberger is a partner in the Labor and Employment Law Department and head of the New Orleans office. She is a member of the Class & Collective Actions and Wage and Hour Groups. Nici is an experienced trial lawyer and represents clients in all types of employment-related matters, from single-plaintiff and complex employment to large, complex class and collective actions alleging discrimination, non-compete violations, and wage and hour disputes.

Nici has significant experience assisting clients in the defense of numerous class and collective actions. She frequently counsels employers, fiduciaries, and trustees on employment, wage and hour and benefit issues.

In addition to her litigation practice, Nici assists in conducting workplace investigations and audits related to discrimination, managerial training, non-competes and employee classification. She is adept to counseling clients on a wide array of issues including reviewing and drafting employee handbooks, wage and hour issues, employee leave and training policies.

She is a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations and litigation strategies.

Nici recently completed a three-year term was on the ABA’s Standing Committee on Pro Bono & Public Service and serves as the Pro Bono Co-Coordinator for Proskauer’s New Orleans office. She is a prolific writer, frequently contributing to Proskauer’s Law and the Workplace Blog and a sought-after speaker on collective/class action topics.

Photo of Atoyia Harris Atoyia Harris

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result…

Atoyia Harris is a special employment law counsel in the Labor and Employment Department and a member of the Employment Litigation & Counseling Group. With bench trial, jury trial, and administrative hearing experience, Atoyia approaches each matter strategically to provide the best result for her clients. She has successfully defended matters on a wide variety of issues.

Atoyia advises clients and conducts investigations and trainings on issues related to discrimination, harassment, and retaliation. Her practice also includes counseling clients on reductions-in-force, Covid-19 related matters, issues arising out of social movements including Black Lives Matter and #MeToo, and other sensitive employment issues.

Atoyia is co-chair of the Firm’s Black Lawyers Affinity Group, serves as a member of the Firm’s Associate Council, and is on the Proskauer Women’s Alliance Steering Committee.

Active in the New Orleans legal community, Atoyia is a member of the Young Lawyers Board for the Federal Bar Association’s New Orleans Chapter and other organizations. She is also a member of the national Defense Research Institute’s Membership Committee and Diversity and Inclusion Planning Committee.

Atoyia received her J.D. with an International Law Certification from Loyola University New Orleans College of Law. Atoyia served as the Moot Court Selection Chair and staff member of the Loyola Law and Technology Journal. While in law school, Atoyia interned as a law clerk for the Honorable Jay C. Zainey at the United States District Court for the Eastern District of Louisiana and the Honorable Robin Giarrusso at the Orleans Parish Civil District Court. Atoyia was also a member of the award-wining Robert F. Wagner Labor and Employment Moot Court Team.

Prior to law school, Atoyia received her Bachelor of Music in Industry Studies with emphasis in classical piano from Loyola University New Orleans and was member of the Loyola University women’s basketball team.

Photo of E. Sydney Cone E. Sydney Cone

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and…

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and Wohl, LLP, focusing on white collar criminal and civil litigation.