Citing direct evidence of bias, Sixth Circuit reinstates case

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September 5, 2013

Citing direct evidence of bias, Sixth Circuit reinstates case 

Steven M. Sellers

After Tommy Sharp’s supervisor confirmed Sharp’s suspicions that he had been laid off because of his age, he filed suit. A federal district court granted summary judgment for the defense, but a unanimous Sixth Circuit held that Sharp had offered direct evidence that could support a jury determination that he was fired because of his age.

Tommy Sharp, 52, suspected his age was the reason he was laid off. When his supervisor confirmed those suspicions in two conversations, Sharp filed a complaint under the Kentucky Civil Rights Act. A federal district court granted summary judgment for the defense, finding that Sharp had failed to establish a prima facie case of age discrimination, but the Sixth Circuit unanimously reversed, holding that Sharp had offered direct evidence that could support a jury determination that he was fired because of his age. (Sharp v. Aker Plant Svcs., Inc., 2013 WL 4038583 (6th Cir. Aug. 9, 2013).)

Sharp worked for six years as an instrumentation designer for Aker Plant Services Group, a firm that provided services for a plant in Louisville, Ky. He and other employees were laid off in 2009, ostensibly because Aker had lost customers, but other factors caused Sharp to suspect that his age was the reason for his termination. He noted that his supervisor, Mike Hudson, had been training a younger employee, Bill Kirkpatrick, to fill a leadership position and recalled that Hudson had commented about “the advancing age of the design group.”

When a downturn in business caused Aker to institute a new “forced rating template” to rank employees against one another, management asked Hudson to decide which employees should be retained. He ranked Sharp near the bottom of the rankings, and in January 2009, Hudson told Sharp that he had been terminated. He added that he had been “grooming” Kirkpatrick because he was younger than other employees in the design group, including Sharp. That conversation prompted Sharp to audio-record a conversation with Hudson a few days later, when Hudson allegedly reiterated that Sharp’s termination was because of his age and “not that [his] ability all of a sudden became any less.” Hudson also allegedly told Sharp that the effort spent in training older workers would be lost when they retired.

Sharp sued in state court, but Aker removed the case to federal court, where it moved for summary judgment. The district court held that the termination did not reflect age bias but rather “a concern for maximizing the return on training costs by retaining the employees who would stay with the company longer.”

The Sixth Circuit reversed in a 3-0 ruling authored by District Court Judge David Lawson. Noting that the Kentucky Civil Rights Act bars employment discrimination against any person because he or she is 40 or over, Lawson saw Hudson’s conduct and statements as direct evidence of age bias. He also rejected Aker’s effort to minimize Hudson’s statements as spurious, “stray” remarks that had no bearing on the employment decision by his superiors. “Although Hudson was not the ultimate decision-maker, [his superiors] relied solely on Hudson’s forced rankings and recommendation of who Aker could fire without disrupting current projects,” wrote Lawson.

Aker had also argued that the average age of the Louisville staff increased after the layoffs. “Although the substance of the impact analysis might be convincing evidence to rebut a disparate impact claim, it does nothing to rebut the fact that Hudson’s recommendations served as a basis for the layoff decisions, and that Hudson stated he made his decision based on an illegal factor: age,” wrote Lawson.

Louisville attorney Donald Meade, who represented Sharp in the case and argued the appeal, called the case “an excellent example of how federal district courts continue to apply an extremely conservative view of employment discrimination cases and dismiss them at the summary judgment stage.” Meade explained that the grant of summary judgment had been startling because of the evidence adduced in support of Sharp’s claim. “Our proof was as strong as it could be,” Meade explained. “We had an audio recording of a key figure expressing that age was the primary factor, yet the case was still dismissed. . . . We were able to show that the remote decision-makers were poisoned by the supervisor on site. They had no information other than what had been supplied to them, and they were bound by it.”

Attorney Richard Seymour of Washington, D.C., agreed. “This decision goes to the heart of a frequent employer argument to take key evidence out of the case, to make it easier to grant summary judgment, and make sure a jury never hears that evidence,” said Seymour, who handles employment litigation and assisted with Sharp’s appeal. “When the courts toss out the plaintiff's best evidence, toss out other evidence on other grounds of this type, accept biased evaluations as nondiscriminatory explanations of a biased termination, survey the smoking ruins of the plaintiff's case, and then say there's nothing there, it is very hard for the plaintiff's claim to survive,” he said. “[This case] has leveled the playing field and allowed more plaintiffs' claims to be judged fairly on the merits.”

Meade added that when Sharp’s job was reopened, his application was denied because his audio recording of his supervisor violated plant policy. “We are also filing a retaliation claim,” said Meade.

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