The 7th Circuit’s recent opinion in Martino v. MCI (No. 08-2405, 7th Cir., 2009) represents the first opportunity for that court to apply the U.S. Supreme Court’s recently clarified standard for determining liability in disparate-treatment cases brought under the Age Discrimination in Employment Act (ADEA).
Together, the two decisions make it harder for employees to win some age discrimination lawsuits.
In June 2009, in Gross v. FBL Financial Services, Inc., the Supreme Court made it more difficult for employees to win age discrimination cases by holding that an employee “… must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”
That’s different from what employees suing under Title VII must prove. Those employees need to show only that their protected status was a “motivating factor” in the employer’s decision.
The 7th Circuit case
Guy Martino was hired by MCI when he was 54 years old as a business solutions consultant. Less than 18 months later, MCI terminated him in a reduction in force.
Martino sued MCI under the ADEA, claiming MCI selected him for termination because of his age. He argued that because his immediate supervisor—the same person who had hired him—had sometimes referred to him as an “old-timer,” that was evidence that his age played a role in his termination.
MCI claimed it let Martino go because his skills were obsolete and his performance was poor. The trial court agreed with MCI. Martino appealed.
The 7th Circuit agreed with the trial court that there was no direct evidence of discrimination. The use of the term “old-timer” by Martino’s supervisor was simply not enough.
Moreover, Martino’s immediate supervisor hadn’t decided who was to be terminated in the RIF. Rather, a higher-level manager made recommendations (with input from the supervisors) and those recommendations were then reviewed by an even more senior manager, who ultimately decided whom to terminate.
A case of the ‘cat’s paw’?
Martino argued that his immediate supervisor’s influence in the recommendations—coupled with his use of the term “old-timer”—was evidence that the supervisor had improperly influenced Martino’s termination on the basis of his age.
Such cases, where an individual who is not the ultimate decision-maker nonetheless influences the ultimate decision-maker’s decision, are referred to as “cat’s paw” cases.
The 7th Circuit held that, in order to succeed under the cat’s paw theory, Martino had to show that his supervisor had a “singular influence” over the decision to terminate him. In this case, both of the higher-level managers had independently reviewed relevant nondiscriminatory factors to determine whom to discharge in the RIF. There was no evidence that the ultimate decision-maker was even aware of Martino’s age.
Plus, Martino’s supervisor had hired him when Martino was 54 years old, so it would make no sense for him to then fire Martino when he turned 55.
No indirect evidence either
Martino couldn’t show that he was terminated because of his age by indirect evidence, either.
Martino had to show that his work performance was satisfactory and that similarly situated younger employees were treated more favorably. He could not. Martino had consistently failed to meet his monthly sales quotas and his skill sets would soon be obsolete because the company had merged with another company that used a different business strategy.
Besides, 34 other employees were terminated in the RIF, many of them significantly younger than Martino.
The 7th Circuit went on to explain that under the new Supreme Court decision:
[I]t’s not enough to show that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse action would not have occurred. Martino cannot handle that. At best, he has done no more than show that his age possibly solidified the decision to include him in the RIF.
Bottom line: It is now much more difficult for a plaintiff to prevail on an age discrimination claim brought under the ADEA pursuant to the “but-for” standard.
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