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Kragor v. Takeda Pharmaceuticals, No. 11-16052 (11th Cir. Dec. 19, 2012)

In this ADEA case, the Eleventh Circuit affirms the simple truth under employment discrimination law that when the decision-maker later (reportedly) disavows the very reasons that the employer gives for firing an employee, this circumstance presents a witness credibility issue that cannot be decided on paper alone, and only a jury can properly resolve.

Kragor v. Takeda Pharmaceuticals, No. 11-16052 (11th Cir. Dec. 19, 2012): Let's recap the basic legal analysis that federal courts apply to age-discrimination cases, in the absence of direct or circumstantial evidence of age bias. An employee age 40 or over establishes a prima facie case of age discrimination by showing that he/she was otherwise qualified for employment, and fired or otherwise mistreated while other, substantially younger employees were treated better. The employer must then advance a (putatively) legitimate and NON-discriminatory reason for the adverse action. After that, the employee may prevail at trial by showing that the reason(s) given merely mask (are a "pretext" for) age discrimination.

A common way of establishing pretext is to present evidence that the employer - more specifically, its agents - did not itself truly believe the reason. So if an employee is terminated as a supposedly poor-performer, but the manager who made the decision gave the employee nothing but glowing reviews up until termination, a jury could conclude that the employer made-up the "performance" reason to masquarade its age-biased purpose.

This more or less what the employee Ms. Kragor claimed in this case. She was fired from her job from the pharmaceutical allegedly for two integrity violations (providing doctors with improper gifts). Ms. Kragor, though, produced a sworn statement from a witness who allegedly was told by her manager, Mr. Orlando, that he did not believe the plaintiff was guilty of any violations:

'After Barbara Kragor was fired by Takeda I made numerous phone calls to upper level management in order to make clear that Barbara Kragor had nothing to do with buddy passes. I received a telephone call from [Mr.] Orlando. [Mr.] Orlando told me that Barbara Kragor was an exceptional employee, that she had done nothing wrong, that she had done everything right, and further indicated that she should not have been fired."

The district court concluded that this declaration did not rebut the company's sincerely-avowed belief that Ms. Kragor violated the rules, but the Eleventh Circuit reverses. The panel holds, in a brief opinion, that it is the jury's job to resolve the contradiction between the company's defense in litigation versus what the executive who made the decision reportedly said at the time of the termination.

"When the employer's actual decision maker, after terminating an employee for misconduct (or the appearance of misconduct), says without qualification that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired, that contradiction-when combined with a prima facie case - is enough to create a jury question on the ultimate issue of discrimination."

The panel remanded the case for trial.

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