Alaska Employment Law

In Diaz v. Eagle Produce Limited, ___F3rd___, No, 05-35877, slip op. at 3519 (9th Circuit April 4, 2008), summary judgment against four farm workers in Phoenix was affirmed in part, reversed in part, and remanded for trial on one worker’s claim that he was laid off improperly from agriculture work in violation of the ADEA, 29 U.S.C.  Section 621 et seq.  Due to the seasonal nature of farming, the company’s need for workers fluctuated and employees either were transferred elsewhere or laid off during yearly farming slowdowns.  All plaintiffs, ages 51, 63, 65, and 68, were laid off and sued the company for age discrimination. 

Three plaintiffs established a primafacie case of disparate treatment, each showing he was (1) at least 40, (2) was performing satisfactorily, (3) was discharged, and (4) either was replaced by a substantially younger employee with equal or inferior qualifications or was discharged under other circumstances giving rise to an inference of age discrimination.   The fourth employee failed to show the second element, performance, because he ran a check cashing business for employees on company grounds, despite having been warned not to do so.  As is usually the case, the employer brought up every possible previous performance issue, even if old, lacking merit, not punishable at the time, etc.

The court looked at statistical evidence of the ages of employees laid off from the crew in 2001 and 2002, and found it was not persuasive where plaintiffs were older when hired, and the average age of the employees hired was approximately 9 1/2 years younger than the average age of those laid off–38.75 years versus 48.4 years.  The court did not consider this disparity so stark as to suggest bias, in particular because the two data sets of 16 workers was too small for reliable analysis. 

The court did consider the data in another light, however–that of supervisor Brandt for Crew 94, who was hired in May of 2001.  Before Brandt took over the hiring, the average age of the workers was 44.29; after he was made the sole hiring authority, the average age dropped to 35.28.  The difference in age between those hired and those laid off increased from under two years to nearly 16, once Brandt started making personnel decisions.  This view of the evidence did indicate Brandt used his authority to replace older workers with younger ones, raising an inference of discrimination.  Brandt was found to have information about the general disparity in ages, because he observed all the employees in the crew.  By not acknowledging this inference, the District Court did not construe the evidence in the light most favorable to plaintiffs.  The decision not to lay off younger, less experienced workers also supported the inference of discrimination. 

Moving on to the second stage of the McDonnell Douglas analysis, the court cited the recent case of Davis v. Team Electric Co. (discussed in this blog on March 31, 2008). To suffice as a legitimate non-discriminatory reason for the discharge, the employer’s explanation must state why the plaintiff  ”in particular” was laid off.  The general explanation that the layoff was part of a reduction in force does not meet the requirement to explain why the individual was chosen.  In the case of Plaintiff Diaz, where no other explanation was given, the employer did not meet its burden at stage two of the analysis, and his case was remanded for trial.  Individualized explanations were given for the other remaining plaintiffs, so the analysis moved on to the third, or pretext, stage.

At the last stage, the court rejected the plaintiffs’ argument that inconsistencies between the explanations for the layoffs rendered the employer’s explanations for the layoffs not credible.  The court noted that the two justifications–an overall workforce reduction and performance deficiencies–were different, but not inconsistent.  Further, the court’s conclusion that performance reasons motivated the individual discharges at stage three was not inconsistent with the findings at the first stage that the plaintiffs provided sufficient evidence of satisfactory job performance to avoid summary judgment.  The focus of the pretext inquiry is not to determine whether the company was correct that the employee’s job performance was unsatisfactory, but whether performance was the real reason for the termination.  The summary dismissals of the remaining two plaintiffs’ ADEA claims were affirmed.