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

Earlier this week, the EEOC issued a press release emphasizing that: 

1.  Private sector bias charges hit an all-time high in FY 2011.  A total of 99,947 charges of employment discrimination were filed in 2011.  Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465.  In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed. 

2.  A record amount of money was recovered in FY 2011.  The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation.  This is $51,000,000 more than FY 2010.  The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief.  ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000.  This was a 35.9% increase from FYI 2010.

3.  The pending inventory of charges was reduced for the first time in 10 years.  In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges. 

Practice pointer.  Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them.  There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC.  Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel.  For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there". 

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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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Today, in Gross v. FBL Financial Services, Inc., the United States Supreme Court, in a 5-4 opinion, issued an opinion distinguishing the Age Discrimination in Employment Act (ADEA) from Title VII, finding that the text of the ADEA does not authorize a mixed-motives age discrimination claim.  The facts of the case are as follows:  Gross began working for FBL in 1971, and in 2001 he was a claims administration director.  In 2003, at the age of 54, he was reassigned to the position of claims project coordinator.  Many of Gross' job responsibilities were transferred to a newly created position: claims administration manager, which was filled by a female in her early 40's, who had previously been supervised by Gross.  Although the two positions paid the same, Gross believed he was demoted because of the reallocation of his former job responsibilities.  Gross filed a lawsuit alleging a violation of the ADEA, and at trial, introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL alleged that the job reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills.  Gross was awarded $46,945 at trial, and the 8th Circuit reversed and remanded based FBL's challenge of the jury instructions given at trial, that the jury "must return a verdict for Gross if he proved , by a preponderance of the evidence, that FBL "demoted him to claims project coordinator' and that his 'age was a motivating factor' in FBL's decision to demote him".  The jury was also instructed that they must find for FBL "if it has been proved by the preponderance of the evidence that FBL would have demoted Gross regardless of his age". 

Justice Thomas, writing for the majority,  found that the burden of persuasion does not shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.  Justice Thomas further found that the ADEA is materially different with respect to the relevant burden of persuasion from Title VII, and as such, Title VII decisions do not control the construction of the ADEA.  Finally, the text of the ADEA does not authorize a mixed-motives age discrimination claim.

Practice Pointer.  This decision is favorable to employers in the ADEA context.  This interpretation will make it more difficult for plaintiff's to successfully prosecute ADEA claims.  It is important to remember that Alabama has it's own age discrimination statute, and that this opinion should also apply to cases pending in state court since the statute basically adopts federal law. 

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