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Wilson v. Cox, No. 12-5070 (D.C. Cir. June 3, 2014)

Courts sometimes get confused about who, in our American system of civil justice, gets to decide whether an adverse employment decision was taken because of the employee's age. That decision belongs to a jury. So even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decision maker also tells the terminated employee that "you didn't come here to work, you came here to retire," it is the jury - not the judge - that is allowed to decide whether it's age discrimination.

Wilson v. Cox, No. 12-5070 (D.C. Cir. June 3, 2014): In May 2001, when the plaintiff Wilson was 69 years old, the Armed Forces Retirement Home-Washington (the "Home"), a federally-managed residence, hired him as a security guard. About a year later, Wilson moved into the residence himself and continued to work as a guard. Cox, the Chief Operating Officer, decided to eliminate the paid position in favor of giving a stipend to a Home resident to do guard duty. This put Wilson out of a job.

There was evidence that Cox was motivated by Wilson's age and age bias:

"Cox met with the Home's residents about his decision to abolish the resident employee program. In the meeting, Cox told the residents, 'you didn't come here to work, you came here to retire.' Cox also discussed his decision in a telephone conversation with Wilson's Equal Employment Opportunity (EEO) counselor. According to the counselor, '[a]nThere issue Mr. [C]ox had with the older guards at Armed Forces Retirement Home, 'was that they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in DC, what with all the threats since 9/11.''"

The district court, granting summary judgment to the employer, held that Wilson's job was eliminated for entirely legal reasons (economics), and that the age-biased comments (suggesting that an older guard is just looking to retire, and prone to sleep on the job) were really just criticisms of Wilson's performance.

The panel reverses and remands the case for trial. Considering Cox's two statements, "[a] reasonable factfinder could conclude from those statements that a discriminatory intent motivated the decision to abolish the resident employee program and terminate Willson's employment. Both statements indicate the sort of 'inaccurate and stigmatizing stereotypes' that led Congress to enact the ADEA." 

The retirement comment might be subject to an innocent interpretation, as the agency argued. Yet while "defendants are fully free to advance that argument at trial ... at the summary judgment stage, an alternative interpretation of that kind cannot overcome the need to draw inferences in the non-moving party's favor."

Likewise, the "older guards" comment - even if it concerns performance (sleeping on the job) as well as age - was for a jury to weigh and consider. There was also evidence in the record that the performance explanation was unsupported by the facts:

"While Cox in that statement expressed a general concern about a perceived tendency of older guards to fall asleep, he testified that he had heard about only one such incident. Additionally, the chief of resident services testified that he had never heard any reports about any guard sleeping on the job. Even if Cox in fact knew of one instance in which a guard fell asleep on the job, a statement indicating a generalized concern about older guards as a group, based on one incident alone, is suggestive of impermissible, inaccurate stereotyping. A reasonable factfinder could conclude that Cox attributed sleepiness to all older guards as a class and terminated the resident employee program on that discriminatory basis."

Thus, because There was fairly conspicuous evidence of an age biased motive, There was no need - on summary judgment - to evaluate the agency's allegedly non-discriminatory reason for eliminating Wilson's position. "At trial, the parties will have a fresh opportunity to present evidence about the motivation for abolishing the resident employee program and terminating Wilson's employment, and the factfinder will assess and determine, in light of all of that evidence, whether the decision stemmed from a discriminatory motive."

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