By Marjorie Johnson, J.D.
A college’s insufficient and inconsistent explanations for a professor’s discharge, along with evidence that he was replaced by someone younger and that a supervisor directly involved in the decisionmaking process made repeated discriminatory remarks about older workers, provided sufficient evidence to create a triable issue as to pretext, the D.C. Circuit ruled in reversing dismissal of the professor’s age discrimination lawsuit on summary judgment. While a reasonable jury might ultimately find in favor of the college, which claimed it discharged the professor due to budgetary constraints and performance issues, it might also credit the professor’s version of events and find in his favor (Steele v. Mattis, August 10, 2018, Millett, P.).
Complaints about teaching methods. The Department of Defense (DOD) hired the 47-year-old professor to serve a three-year term at the National Defense University’s College of International Security Affairs. Halfway through his probationary year, a dispute arose with his superiors over his teaching methods. Although he agreed to bring his instructional methods into conformity, the complaints resurfaced about a month later, which led to a “heated academic debate” with his superiors.
Supervisor’s comments. The professor’s supervisor also purportedly made negative comments about older employees, which included labeling them as “stubborn,” “difficult to work with” and “cantankerous.” She also allegedly “pointed to a particular older person as a case study in why it’s not good to have lots of older employees” at the college. In contrast, she commended young colleagues as being “a breath of fresh air” and “eager to please,” and remarked that the college had become “much better” because “all these younger people” were hired.
Budget cuts. Toward the end of his first academic year, the college was hit with budgetary cuts, resulting in the decision to terminate three positions from its six-member probationary faculty. Though it decided to terminate the professor and two others, it never advised him of the reason for his discharge. He resigned to avoid being labeled as terminated from a government position.
Shortly thereafter, the college hired two new associate professors who were under the age of 40. Within a year, it also hired a third younger professor who took over teaching most of the professor’s courses. The professor subsequently brought the instant action asserting age discrimination, which the district court dismissed on summary judgment.
Prima facie case not relevant. At the outset, the D.C. Circuit explained that it need not decide whether the professor made out his prima facie case since the DOD proffered a legitimate nondiscriminatory reason for the termination—the required budget cuts. Therefore, the court could “skip ahead to the third step” and determine if there was sufficient evidence to show age discrimination. The legal question of whether a prima facie case existed was no longer relevant.
Higher pretext burden was error. The district court erroneously held that the college was “to be given heightened deference,” resulting in the professor facing an “even heavier burden of showing pretext than usual.” To impose the heightened pretext burden, the decision must have involved “a distinctly academic judgment” and the college did not assert that it terminated the professor based on the type of “substantive academic evaluation of his scholarship that courts are ill-equipped to second guess.” Rather, it pointed to budgetary reasons and/or his deviations from a prescribed syllabus. But even if some degree of heightened deference applied, triable issues still existed as to whether age played a role.
Insufficient rationale. First, a reasonable juror could infer pretext by disbelieving the college’s stated budgetary rationale. While the budget reductions seemingly required the termination of three faculty members, the college did not provide an individualized explanation for why or how it chose the professor. Its rationale could “ring especially hollow” when combined with its refusal to tell the professor at the time of his termination why he had been targeted.
Younger hires. The professor also identified two substantially younger probationary employees who were unaffected by the budget cuts. Though they had diverse backgrounds, the professor himself brought his own special experience to bear, resulting in the college having pursued him for years. In addition, “last minute reductions” enabled the hiring of two younger faculty members, as well as the younger instructor later selected to teach most of his courses.
Inconsistent explanations. The college’s inconsistent explanations also suggested pretext. While officials originally “kept their lips sealed,” evidence surfaced during the EEO grievance process indicating that the professor might have been fired because of performance issues. The chancellor referred to him as “very irresponsible” and there had recently been contentious debates about his teaching methods. The inconsistencies and insufficiencies, especially when combined with the professor’s younger replacement, could spark reasonable disbelief.
Ageist comments. Finally, the professor presented direct evidence of age bias on the part of his supervisor. Though she denied making the ageist comments, credibility determinations would be for the jury. Moreover, since she was his immediate supervisor and admittedly “in the discussions” and meetings about his termination, the “cat’s paw” theory of liability could be applied to her animus.
Moreover, the alleged remarks were not mere “stray remarks” since, just a few months before the first adverse reports on the professor’s work, the supervisor allegedly gave voice to the very type of “arbitrary” stereotypes and prejudices about older workers’ abilities that Congress enacted the ADEA to halt. Had similar statements been made about workers based on their race or gender, they undoubtedly would have been treated as powerful evidence of discrimination. Thus, her alleged open hostility to older workers should have been recognized as direct evidence of illegal discrimination.
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