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Baker v. Silver Oak Senior Living Mgt. Co., No. 08-1036 (8th Cir. Sept. 14, 2009)

| Sep 13, 2009 | Daily Developments in EEO Law |

How did this case slip by the district court? The Eighth Circuit reverses summary judgment in a termination case under the ADEA and Missouri Human Rights Act (MHRA), where the employer pounded into its managers — and plaintiff in particular — that it “should fire certain workers in their 50s and 60s” so that it could hire “younger workers” who would be “better workers, have more energy, be more enthusiastic and stimulate the residents.” The EEOC lends a helpful hand as amicus.

Baker v. Silver Oak Senior Living Mgt. Co., No. 08-1036 (8th Cir. Sept. 14, 2009): The employee Ms. Baker, hired at age 51, was fired two years later in 2005 at age 53, in spite of a “positive performance review, rating her ‘excellent’ in every category and describing her as ‘dependable,’ ‘knowledgeable,’ and a ‘leader.'” Her problem was a switch in management, who suddenly deemed Baker to old for the job.  According to the summary judgment record, her new supervisor (named Thomas) told her to “change her appearance because she ‘dressed like an old lady,’ and that everyone had to “keep up” with [co-workers] Lindsey and Upshaw, who were both in their early thirties. In addition, Thomas admits that she ‘teased’ Baker about walking slowly and having poor hearing.” Moreover, “[b]eginning in March 2005, Thomas asked Baker several times to terminate and discipline older employees, but Baker refused to do so.” Baker suffered through a higher workload, a disciplinary action (bogus, by Baker’s retelling), a poor performance evaluation, and finally termination for absenteeism.

While (astoundingly) a district court judge allowed this case to go out on summary judgment, the Eighth Circuit remands it for trial.  The panel noted, first, the intervening decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), but held that the record (litigated under the pretext method of proof) supported the plaintiff, regardless of the standard that applied.  Second, the record was replete with age animus:

“We conclude that Baker has presented a submissible case of age discrimination for determination by a jury. Most significant are statements of Lindsey and Thomas, who participated in the decision to terminate Baker, evincing a preference for the employment of younger workers over persons in the class protected by the ADEA. Lindsey’s statement to his management team that Silver Oak was ‘missing the boat by not hiring more younger, vibrant people,’ and that employees ‘should start looking over applications better and try to consider hiring younger people’ is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker’s termination. A jury likewise could find that Thomas’s attitude about employment at Silver Oak was biased against older workers, given her directions that Baker should fire certain workers in their 50s and 60s so that Thomas could hire ‘younger workers’ who would be ‘better workers, have more energy, be more enthusiastic and stimulate the residents.’

“Other comments by Lindsey and Thomas are open to interpretation, but on a motion for summary judgment, they must be viewed in the context of the foregoing statements. Lindsey’s desire to rid the company of ‘dead wood’ could be a legitimate preference to terminate unproductive workers regardless of age, but it could also be a manifestation of a discriminatory attitude against older workers in general. Thomas’s criticism of Baker for dressing ‘like an old lady,’ and exhortations to ‘keep up’ with younger executives like Lindsey and Upshaw might be given a benign gloss, but they also could be seen reasonably as further evidence of age-based bias. In light of statements by Lindsey and Thomas that clearly reflect a discriminatory attitude against older workers, statements that might otherwise be dismissed as harmless workplace banter assume greater probative value on a motion for summary judgment.”

There was also evidence that the employer did not genuinely believe the reasons it tendered for Baker’s discipline and discharge, and Baker pointed to contradictory explanations by the employer, as well.

The Eighth Circuit also finds that under the less-demanding standard of the MHRA, which requires only that age be a “contributing factor” in the decision, the employee was also entitled to a jury trial. Finally, the panel also reversed summary judgment on an ADEA/MHRA retaliation claim.  It reversed (as an abuse of discretion) the judge’s striking of the employee’s summary judgment affidavit — as supposedly contradictory of her deposition testimony — and held that “[c]onsidering the affidavit, there is sufficient evidence for a jury to find that Baker engaged in protected activity under the ADEA and the MHRA before she was terminated. By protesting to Thomas that it was wrong to terminate older employees, and that Silver Oak could not discharge employees ‘just because they are old,’ Thomas clearly opposed conduct that she reasonably believed to be unlawful age discrimination.”

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