The U.S. 6th Circuit Court of Appeals (whose rulings apply to all Ohio employers) affirmed summary judgment (dismissal without a trial) in favor of an employer and held claims filed under the Age Discrimination in Employment Act (ADEA) must continue to be judged using a “but-for” standard.
Melanie Pelcha was employed as a bank teller by Watch Hill Bank. A new supervisor instituted a policy that her direct reports must submit written requests for time off approximately one month in advance.
Pelcha sought to take time off from work, but she didn’t complete the request form until one day before the time off. Although she ultimately completed the form, she lamented to her supervisor that the employee handbook didn’t require her to fill out a written request.
The next day, the supervisor told the bank president about Pelcha’s failure to submit the form in accordance with the policy and other workplace issues, such as her “negative attitude and failure to timely complete tasks.” The president stated he had zero tolerance for insubordination and fired Pelcha.
Pelcha filed a lawsuit, alleging she was terminated based on her age in violation of the ADEA. The trial court dismissed her claim on summary judgment, and the 6th Circuit affirmed the decision.
Court’s Decision
On appeal, the court first analyzed the standard for determining whether an employee was terminated in violation of the ADEA. Pelcha argued that in light of the United States Supreme Court’s recent decision in Bostock v. Clayton County, she was no longer required to show age was the sole reason she was terminated. Instead, she argued she had to show age was only one of the reasons she was terminated.
By way of background, the Supreme Court held in Bostock that Title VII of the Civil Rights Act of 1964 doesn’t require an employee to prove sex was the only reason for her termination. Instead, she merely needs to show sex was one of the reasons for her termination.
The 6th Circuit rejected Pelcha’s argument and held an employee who files suit under the ADEA must establish age was the “but-for” cause of the allegedly unlawful employment practice. The court reasoned the holding in Bostock was narrowly tailored to the facts of the case and there’s still binding Supreme Court case law stating an employee must show “but-for” causation in an ADEA case.
Once the court identified the applicable legal standard, it turned to the merits of Pelcha’s case. It held she didn’t establish—by direct or circumstantial evidence— she was terminated based on her age in violation of the ADEA.
With respect to direct evidence, the court held Pelcha couldn’t show statements made by the bank president rose to the level of direct evidence. She argued, among other things, that statements he made six months before her termination about another elderly employee having a “limited shelf life” and “reaching her expiration date” constituted direct evidence of discrimination. The 6th Circuit disagreed, holding that vague, isolated statements such as these didn’t rise to the level of direct evidence.
The court next considered whether Pelcha established a violation of the ADEA using indirect evidence. Although it held she established a prima facie (minimally sufficient) age discrimination case, it also concluded the employer provided a nondiscriminatory reason for her termination: her insubordination. As a result, the onus was on her to show the employer’s proffered reason for the termination was pretextual (not the real reason). The court found none of her arguments persuasive and ultimately ruled in favor of the employer. Pelcha v. MW Bancorp, Inc., 984 F.3d 1199 (6th Cir., 2021)
Takeaways
This case is a win for employers in the 6th Circuit that were concerned the Supreme Court’s decision in Bostock would alter the standard for age discrimination claims filed under the ADEA. Despite the employee’s best efforts, the court reaffirmed the “but-for” standard for claims filed under the Act. You should still be mindful, however, that you don’t expose yourselves to legal risk when terminating, disciplining, or otherwise taking adverse action against employees over the age of 40.
Arslan S. Sheikh is an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio. He can be reached at asheikh@porterwright.com.
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