Non-Selection of Federal Employees because of Age
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an employer to discriminate “because of” an individual’s age. 29 U.S.C. § 623(a)(1). Simple enough, right? Hardly. Figuring out what this means in the context of federal employment can be daunting, so you should contact the McGrady Law Firm who has experience handling these types of cases. But if you insist on knowing more, here it is with more legalese than you may be able to tolerate.
The Supreme Court interpreted the language of § 623(a) in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). The Gross decision was newsworthy because, according to some commentators, it held age discrimination claimants to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of “a motivating factor.”
Nonetheless, the Gross holding was anchored to the meaning of the statutory language “because of such individual’s age.” 557 U.S. at 175. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Id. at 175-176 (quoting Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252 (2004)). Thus, based on the plain language of § 623(a), the Court held that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross, 557 U.S. at 176 (citations omitted).
However, the statutory language being interpreted in Gross covers private employment, not employment by the federal government. See Fuller v. Gates, Secretary of Defense, No. 5:06-CV-091, 2010 WL 774965, at *1-2 (E.D. Tx. 2010). Another section of the ADEA covers federal employment and uses entirely different language:
All personnel actions affecting employees or applicants for employment who are at least 40 years of age … shall be made free from any discrimination based on age.
29 U.S.C. § 633a(a) (emphasis added); see also Sosa v. Alvarez–Machain, 542 U.S. 692, 712 n. 9 (2004) (“when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”)
The Fuller Court found that the different language in the two sections of the ADEA demonstrated that Congress intended different meanings. Fuller, at *1-2; see also Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001) (concluding “[n]othing in the plain language of § 633a suggests that Congress intended the federal workplace to be less free of age discrimination than the private workplace. To the contrary, Congress’s actions show that it intended its mandate to reach more broadly in the federal sector than in the private sector”).
Furthermore, the Fuller Court determined that, based on its plain meaning, “free from any” must be construed as being broader than “because of,” such that the “mixed motive analysis” continues to apply in age discrimination claims against the federal government. Fuller, at *1-2.
Based on a review of Ninth Circuit precedence, there has only been one case that has plunged into the murky waters of interpreting the Gross decision and its impact on the “mixed motives analysis” first laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In Shelley v. Geren, the issue was whether the district court properly granted summary judgment to the United States on the plaintiff’s age discrimination claim for failure to promote. 666 F.3d 599 (9th Cir. 2012). The focus was on the burden of proof at the summary judgment stage. In reversing the district court’s grant of summary judgment, the court held “that nothing in Gross overruled our cases utilizing [the McDonell Douglas] framework to decide summary judgment motions in ADEA cases.” Shelley, 666 F.3d at 607.
Accordingly, the court concluded “to survive summary judgment on his claim for a violation of the ADEA under the disparate treatment theory of liability, [the plaintiff] must first establish a prima facie case of age discrimination.” Id. at 608. If successful, the burden of production shifts to the employer to articulate a legitimate non-discriminatory reason for its adverse employment action. Id. It is then the plaintiff’s task to demonstrate that there is a material genuine issue of fact as to whether the employer’s purported reason is pretext for age discrimination. Id.
However, the Shelley Court also stated “[a]t trial, he must carry the burden to prove that age was the ‘but-for’ cause of his non-selection.” Id. But it is important to note that the plaintiff in Shelley did not raise the issue of the different language used by Congress in 29 U.S.C. § 633a which states that the adverse employment decision must be made “free from any” discrimination, which is much broader than “because of.”
Nonetheless, turning to the mixed motives analysis, in a non-selection case a plaintiff may establish a prima facie case of age discrimination by producing evidence that he or she was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the position was given to a substantially younger person. Shelley, 666 F.3d at 608-09.
If the plaintiff meets his burden of presenting a prima facie case, then the agency has the burden to articulate legitimate, nondiscriminatory reasons for its actions. Id. at 609. If the agency meets this burden, then the complainant has the burden to demonstrate that the agency’s articulated reasons are a mere pretext for unlawful discrimination.
The plaintiff can prove pretext “(1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Id. at 609 (citations omitted); see also Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Evidence of pretext may include, but is not limited to, the following: “prior treatment of plaintiff…disturbing procedural irregularities (e.g., falsifying or manipulating…criteria); and the use of subjective criteria.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002).
Additionally, an employer’s pre-selection of a job candidate, in violation of its own procedures requiring fair consideration of qualified applicants, is “undeniably relevant to the question of discriminatory intent.” Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984). Statistical evidence is also relevant to a showing of pretext in disparate treatment actions. Id. at 709.