No Age Discrimination When Replacement Not Substantially Younger

August 01, 2007

Summary
One of the articles in our "Employment Law Briefing newsletter highlighting important issues in Employment Law, featuring the following articles: 1. No age discrimination when replacement not substantially younger 2. Be wary when dealing with perceived disabilities 3. Employer’s Employer’s failure to act on a complaint leads to Title VII liability 4. Is closeness in time enough to establish retaliation?

The Eighth Circuit had to decide whether a university dean could establish a prima facie case of age discrimination when his replacement was younger by only wo-and-a-half years.

Retirement rumors
In Lewis v. St. Cloud University, a history rofessor was promoted to dean of the college at age 62. Three years later, when e returned to work after suffering a mild heart attack, his supervisor told him the university had heard rumors that he anted to retire and had developed a plan o replace him. The dean denied the rumors in writing to the president, stating that he found hem “profoundly disturbing” and that the president was clearly “trying to force” him to resign and was creating “a hostile work environment” that constituted “blatant age discrimination.”

Suit thrown out
About a year later, the provost told the dean to plan to retire from the deanship and asked him to propose an exit strategy by the following week. The dean and his lawyer worked with the provost on an exit, but reached no agreement. Five months later, the university terminated the dean’s appointment. He alleged violation of the Age discrimination in Employment Act (ADEA). The trial court threw out the suit without a trial.

The university, when it terminated the dean’s deanship, temporarily replaced him with the associate dean, who was six-and-a-half years younger than the dean. Eight months later, the university appointed a permanent replacement who was just two-and-a-half years younger than the dean. The university stressed that it chose the dean’s permanent replacement after conducting a nationwide eight-month search.

Eighth Circuit weighs in
To prove age discrimination, the dean had to show that:
1. He was at least 40 years old,
2. He had suffered an adverse employment action,
3. He was meeting his employer’s reasonable expectations when the adverse employment action occurred,
and
4. His replacement was substantially younger.

The university conceded that he met the first three requirements but didn’t meet the last because his permanent replacement wasn’t substantially younger. The trial court had determined that the dean had met his burden because the university had also temporarily filled the position with the associate dean, who was six-and-a-half years younger. But the Eighth Circuit held that the important factor was the age of the dean’s permanent replacement. So the court concluded that the dean had failed to establish a case of age discrimination because his permanent replacement was only two-and-a-half years younger.

The burden shifts
But even if the dean had met his burden, the university produced three legitimate nondiscriminatory reasons for removing him as dean:
1. He created a divisive environment between the faculty and the administration.
2. He handled interpersonal faculty confl icts ineffectively.
3. He engaged in favoritism and bias in some of his personnel evaluations.
This shifted the burden back to the dean to show that the proffered reasons were a mere pretext for discrimination. So the dean cited the “retirement rumors” and being told to start planning his “retirement from the deanship” as evidence that “age was a determinative factor in the adverse employment decision.” Specifi cally, the dean argued that the word “retirement” connotes age. But the Eighth Circuit relied on its previous decision in Sprenger v. Federal Home Loan Bank. That opinion held that “reasonable inquiries into an employee’s retirement plans do not permit an inference of [age] discrimination.”

Raising an inference?
To buttress his case, the dean also pointed to his positive annual performance reviews. While favorable reviews could provide pretext evidence, the court found that past positive reviews — by themselves — don’t necessarily raise an inference of age discrimination. The court found that the dean’s reviews, the last of which his previous supervisor had prepared about a year before he was removed, hadn’t created an inference because the university based its proffered removal reasons on incidents that the dean didn’t dispute, some of which occurred after his last evaluation. So the Eighth Circuit, affirming the trial court’s decision, concluded that a reasonable jury couldn’t have found that the dean’s deanship was terminated because of age discrimination.

Avoid assumptions
This case demonstrates the importance of relying on performance criteria when making adverse employment decisions rather than making assumptions about someone’s capabilities simply because of age. The employer here was prepared to prove it had legitimate performance-related reasons for removal and didn’t have to rely on the fact that the replacement wasn’t substantially younger.