By Lorene D. Park, J.D.
Overruling its prior “over 40/under 40” rule in age discrimination suits under the West Virginia Human Rights Act (WVHRA), the West Virginia Supreme Court adopted the “substantially younger” rule for raising a prima facie inference of age bias. Because a lower court rejected comparator evidence by a terminated hospital employee that younger workers (who were also over 40) were treated more favorably and that she was replaced by workers 24 and 12 years her junior, respectively, summary judgment on her discrimination claim was reversed and the case remanded for consideration of her comparator evidence under the newly adopted “substantially younger” analysis (Knotts v. Grafton City Hospital
, April 14, 2016, Ketchum, M., II).
Fired for asking if patient is “okay.”
The housekeeping employee, who worked for hospital for seven years, recognized an emergency room patient as someone who had lived with her for a year. Indeed, the patient testified that the employee was “like a mother to me.” The employee asked: “[A]re you okay? . . . What’s the problem?” A nurse overheard and admonished the employee for inquiring about the patient’s condition. The employee then walked into the hallway and saw the patient’s son, who was crying. She hugged him and asked: “Is everything okay?” He responded: “Mom’s sick.” This was also overheard by the same nurse, who made a formal incident report. The hospital’s HIPAA compliance officer investigated, and without having spoken to the employee, recommended that she be fired for violating the hospital’s patient confidentiality policy. She was terminated one day after the alleged violations.
Age discrimination suit.
The employee filed suit in state court, claiming she was fired due to her age (65) in violation of the WVHRA. Opposing the hospital’s summary judgment motion, she argued that she raised an inference of bias by showing: she was fired for conduct that did not violate HIPAA or policy; that the hospital did not fire substantially younger employees “guilty of real and substantive” violations; and that her replacement was substantially younger.
Granting summary judgment, the state circuit court found that the employee did not make out a prima facie case. The court gave no weight to the comparators or replacement employees because they were all over the age of 40 and thus members of the same protected class. The court relied on a 2010 state supreme court per curiam
ruling, Young v. Bellofram Corp.
, which applied an “over 40/under 40” rule. Thus, even though the employee’s replacements were 12 years and 24 years younger, respectively, the age difference did not support an inference of age bias.
Prima facie case under WVHRA.
Appealing to the West Virginia Supreme Court, the employee argued that the court should adopt the “substantially younger” rule articulated by the U.S. Supreme Court in O’Connor v. Consolidated Coin Caterers Corp.
As an initial matter, the state high court noted that the McDonnell Douglas
paradigm applied. Thus, to make out a prima facie case under the WVHRA, a plaintiff must show: (1) he/she is a member of a protected class (age 40 or older); (2) the employer made an adverse decision concerning the plaintiff; and (3) but for the plaintiff’s age, the adverse decision would not have been made.
“Over 40/under 40” rule rejected.
Here, the issue was how to prove the third element. The employee argued that the “over 40/under 40” rule was inconsistent with O’Connor
, which held: “[b]ecause the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.”
Agreeing with the employee, the West Virginia high court found “good and sufficient cause” to depart from its ruling in Young
. First, the “substantially younger” approach was more legally sound. In addition, the WVHRA is governed by the same analytical framework as the ADEA, and other jurisdictions follow O’Connor
. Also, the “over 40/under 40” rule could lead to the absurd scenario of a 40-year-old relying on evidence that his/her replacement was 39, while a 65-year-old replaced by a 40-year-old could not offer replacement evidence.
“Substantially younger” test applied.
Adopting the “substantially younger” test, the court explained that a WVHRA plaintiff who is age 40 or older may satisfy the third prong of the prima facie test with evidence: (1) that he/she was replaced by a substantially younger employee; or (2) that a substantially younger employee, who engaged in similar conduct for which the plaintiff faced an adverse employment decision, received more favorable treatment. While the term “substantially younger” was not defined, the state high court found that a rigid standard would be inappropriate. Instead, courts are to make determinations based on the circumstances of each case. However, age differences of 10 or more years would generally be “substantial.”
Applying that test to this case, the court found that the employee presented evidence of numerous “substantially younger” replacement and comparison employees. The circuit court had not given any weight to this evidence, so remanding the case and allowing it to reassess the evidence under the new standard was in order.