Fifth Circuit discusses evidence of pretext in age…
Fifth Circuit discusses evidence of pretext in age discrimination case, other issues, following jury verdict for plaintiff
Affirming jury verdict finding willful age discrimination, Fifth Circuit in Nabors v. West Drilling USA, Inc. (5th Cir. 5/2/03) relied in part on fact that while employer alleged plaintiff was terminated for misconduct, “employee status change form” showed reason as “layoff.” Another fact supporting conclusion that employer’s stated reason was pretextual was supervisor’s admission at trial that he had made false statement in an affidavit. This apparently came out on cross-examination when factual impossibility of statement was established.
This case shows how employer’s effort to establish legitimate nondiscriminatory reason for termination can be undermined by shorthand reason given for termination on routine human resources paperwork. Care should be taken to ensure that if there is a job performance or disciplinary reason, this is stated. Inaccurate designation of such a termination as “layoff” or “resignation,” while perhaps appealing to human resources for various reasons, can later be substantial and harmful evidence of pretext.
It also shows danger of creating affidavits for summary judgment which supervisors will not be able to truthfully affirm at trial. Before signing, they should be encouraged to think carefully about having to affirm each and every statement in the affidavit under skillful and aggressive cross-examination.
Case also discusses: evidence of more favorable treatment of other employee of comparable age; standard of proof of willful violation of ADEA; failure to mitigate damages by seeking comparable employment; impact on attorney’s fee award of partial reversal due to failure to mitigate; and payment of costs for travel and videographer.
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