Age Related Comment Made Shortly After Hiring Decision Could be Evidence of Discrimination

In King v. United States of America, et al., the U.S. Court of Appeals for the Eighth Circuit decided that a potentially ageist comment made shortly after an allegedly discriminatory hiring decision could be direct evidence of discrimination.

In early 2005, Ms. King and Ms. Evans both applied for a position with the U.S. Department of Agriculture. King was 54 years old when she submitted her application and Evans was 25. After interviewing both women, the Department's employment selection committee offered the position to Evans "based upon her undergraduate and graduate degrees, experience, 'go-getter' attitude, computer skills, and familiarity with the Department's operations." King sued alleging that the Department discriminated against her on the basis of her age when it offered the position to Evans.

At trial, King put on evidence that between 2003 and 2005 members of the selection committee were heard commenting that they "wanted to bring educated, young blood" into the Department and that the Department "had just hired a young, skinny blonde with a master's degree." King also elicited testimony from a co-worker, Ms. Triplett, who testified that she had a conversation with one of the committee members after Evans was offered the position about the member's "philosophy of hiring younger, educated people." In addition to this direct evidence of discrimination, King elicited indirect evidence of what she believed was an atmosphere of discrimination against older employees in the Department. The Department put on evidence, through the testimony of the committee members, that age was not a consideration in its decision to hire Evans.

The trial court found in favor of the Department, concluding that statements made by the committee members were not direct evidence of discrimination because they did not "demonstrate a specific link between the alleged discriminatory animus and the committee's decision to select Ms. Evans." The court failed to mention Triplett's testimony regarding the committee's "hiring philosophy." The trial court did, however, conclude that "statements made after the hiring decision was implemented, explaining why the decision maker chose one candidate over another, may be relevant." The trial court also concluded that King failed to overcome the Department's professed "legitimate, non-discriminatory reasons for the employment decision."

The appellate court remanded the case for further proceedings. Although the court determined that the earlier comments were not direct evidence of discrimination because they were made long before the hiring decision, the court was unable to conclude that the comment made shortly after the hiring decision - that it was one of the committee member's philosophy to hire "younger, educated people" - constituted direct evidence of discriminatory animus.

Failure-to-Promote Claim Fails Without Evidence of an Open Position

In Jones v. City of Springfield, Illinois, the Seventh Circuit Court of Appeals affirmed summary judgment in favor of the City on Mr. Jones' failure-to-promote claim. Mr. Jones, a Springfield, Illinois police officer, claimed that the City failed to promote him because he is white. On appeal, Mr. Jones argued that he presented sufficient evidence under both the direct and indirect proof models to survive summary judgment.

With respect to his direct proof, the court found that Mr. Jones failed to present evidence that any similarly situated officers received more favorable treatment. The court also found that Mr. Jones failed to present evidence that the City would have acted differently toward him had he not been white.

The court found Mr. Jones' indirect proof case (and the District Court's analysis of the indirect proof case) was also fatally flawed. Specifically, the court noted that ". . . the district court should have considered the availability of an open position under the prima facie case because in a failure-to-promote claim, a prima facie case presupposes the existence of an open position."

For an interesting article on Mr. Jones' exploits with the Springfield Police Department, see Dusty Rhodes, "Out of the Blue, Alan Jones, the new head of the Springfield Police Union, isn't a member of the old guard." Illinois Times, November 2, 2006.

Hostile Work Environment Not Necessarily Actionable Under Missouri Human Rights Act

In Gilliland v. Missouri Athletic Club, the Supreme Court of Missouri recently held that a hostile work environment is not actionable under the Missouri Human Rights Act unless the hostility is directed at the victim because of his or her race, color, religion, national origin, sex, ancestry, age or disability.

The plaintiff in the case, Tracy Gilliland, sued the Missouri Athletic Club for sexual harassment, race discrimination, and constructive discharge among other things. At trial, the jury found in favor of Mr. Gilliland on his constructive discharge claim and found the club liable for punitive damages. The jury rejected Mr. Gilliland's claims of race and sex discrimination. Mr. Gilliland appealed.

Affirming the trial court's judgment, the Supreme Court concluded that the jury's rejection of Mr. Gilliland's race and sex discrimination claims - and the fact that his jury instruction on constructive discharge made no mention of any category protected by the human rights act or other public policy - was fatal to his appeal.

For additional background on the case, see Kristen Hinman, "Taking it to the MAC," Riverfront Times, January 12, 2005, which was published while the case was pending.

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