Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Recently, the 11th Circuit issued an opinion addressing the Alabama Age Discrimination In Employment Act (AADEA) in the case of Ehrhardt v. Haddad Restaurant Group.  Ehrhardt, a General Manager, was demoted due to poor sales and profits at the restaurant and his poor management of employees.  Ehrhardt challenged and rebutted the latter, and the court found that there was little evidence indicating that he had problems with staff.  The Court found that the restaurant did not discriminate against Ehrhardt by demoting him from General Manager to Beverage Director based on declining sales.  Ehrhardt was subsequently terminated as Beverage Director since the restaurant, based on an economic decision, decided there was no reason to continue to employ and pay commissions to a Beverage Director in a restaurant that was losing money. 

Under the AADEA, "no employer...shall discriminate against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment".  The analytical framework of the AADEA is the same as the federal Age Discrimination In Employment Act.  The Court examined this case pursuant to the Supreme Court's Gross decision, holding that in order to establish a disparate treatment claim under the ADEA, "a plaintiff must prove by a preponderance of the evidence...that age was the "but-for" cause of the challenged employer decision".  Although the Gross decision did not answer the question of whether the evidentiary framework of the McDonnell Douglas case is appropriate in the ADEA context, the 11th Circuit used both the Gross decision and the McDonnell Douglass decision to review Ehrhardt's claim.  Under McDonnell Douglas, there is a three prong test to analyze discrimination claims:  first, a plaintiff must establish a prima facie case of discrimination; second, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action; and third, the plaintiff must proffer evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action.  Based on the facts above, the 11th Circuit affirmed the granting of summary judgment in favor of the restaurant on Ehrhardt's' AADEA claim.  The restaurant was represented by one of my partners, Kyle Smith.

Practice pointer.  The "but for" test adopted in the Gross decision is a concept favorable for employers.  The 11th Circuits' use of both the Gross and McDonnell Douglas tests lays the groundwork for evaluating claims brought under the AADEA as well as the ADEA.

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For only the second time, the Alabama Court of Civil Appeals addressed the merits of the Alabama Age Discrimination in Employment Act (AADEA) in the case of Lambert v. Mazer Discount Home Centers, Inc. In a 30 page opinion, the Court noted that Mr. Lambert had worked for Mazer for 29 years, and at the time of his termination, was vice president of marketing, responsible for purchasing building materials, deal buying and planning and purchasing times for the types of advertising for Mazer products and stores. Mike Mazer took over as president of Mazer in 2005, and spoke with Lambert on more than one occasion about him being away from the office working on a vacation home and a rental home he had in Florida. It also appeared that he was distracted from his work at Mazer due to the extensive renovations the rental home needed. In early 2006, Issues arose concerning Lambert ordering kitchen and bath products improperly. Lambert admitted that Mike Mazer expressed his displeasure over the kitchen and bath problems. Finally, Mike Mazer became increasingly dissatisfied with Lambert's handling of the advertising for Mazer. In May, 2006, when Lambert was 47, he was discharged, refused to accept a severance package, and his job duties were assigned to 3 existing employees, 2 older than him and one younger. Lambert sued Mazer under the AADEA.

In proving an AADEA claim, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff is successful, the defendant must articulate a nondiscriminatory reason for the employees rejection. The plaintiff must then have an opportunity to prove by a preponderance of the evidence that the reason offered by the defendant was a pretext for discrimination.

In order to prove his prima facie case of discrimination, the court held that Lambert was not required to prove that he was replaced by a younger employee. Instead, the plaintiff must prove 1) that he was in a protected group and was adversely affected by an employment decision; 2) that he was qualified to assume another position at the time of discharge; and 3) evidence that supports a reasonable inference of age discrimination. Lambert met the first two elements, but failed to prove an inference of discrimination. Although Lambert offered age-related comments made by Mazer, these comments were not about  Lambert or his performance, and therefore failed to support his claim. Furthermore, the fact that one of the three employees who were assigned Lambert's job duties was younger did not amount to substantial evidence demonstrating age discrimination. Lambert's age discrimination claim therefore failed as a matter of law.

Practice pointer. The Alabama Court of Civil Appeals did an excellent job of following federal law applicable to the federal Age Discrimination in Employment Act, which governs the AADEA. As more AADEA claims are filed in state court, I anticipate that more decisions will be rendered by the Alabama Court of Civil Appeals and ultimately the Alabama Supreme Court.

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