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Age Discrimination & Disability Discrimination: Fifth Circuit Court of Appeals Corrects a Major Blunder by Trial Court.

On Behalf of | Sep 18, 2013 | Age Discrimination, Disability Discrimination, Gender Discrimination, LGBTQ Discrimination, Military Status Discrimination, National Origin Discrimination, Pregnancy Discrimination & Maternity Rights, Race Discrimination, Religious Discrimination |

Cleveland, Ohio Disability Discriminate Law Firm

All employment attorneys are cognizant of the fact that, every once in awhile, judges in Courts at every level can make incorrect decisions. Dockets can become insurmountable and pressure from deadlines can lead to hastily made decisions. In other words, judges are human and mistakes are inevitable, but there is practically no excuse for the decision rendered by the trial court in EEOC v. DynMcDermott Petroleum Operations Company (“DynMcDermott”).

In DynMcDermott, the plaintiff brought claims under the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”), after he was laid off from a job position at DynMcDermott, was recommended for an open job position at DynMcDermott by his former supervisor and the manager in charge of hiring for the open position. The site director at his location, however, did not want the plaintiff for the job and repeatedly asserted “that [the plaintiff] was too old and his wife had cancer.” The site director also stated that he thought someone younger who did not have a disabled spouse should fill the position. Then, after the site director threatened the hiring manager with insubordination regarding the plaintiff’s prospective hiring, DynMcDermott hired a 35 year-old with no experience. The exchange went like this:
Wood replied that those requirements were in violation of the law and said Lewis could do the hiring himself. Lewis testified during his deposition that, when he told Wood at the meeting he was opposed to hiring Swafford, “Ray literally kind of starting [sic] screaming, ‘Tim, you’re telling me to – you’re telling me to commit a felony. Tim, you’re telling me to commit a felony. Tim, you’re telling me to commit a felony.’” To which, Lewis responded, “[l]ook, Mike is old.”
The facts substantiating the plaintiff’s case, in DycMcDermott, because there was evidence that the site director’s discriminatory statements were made both verbally and in writing in emails to company officials in New Orleans, including his supervisor, the Human Resources Director, the CEO and the company’s General Counsel. These emails included:
We have only had about two, maybe three other applications. Everyone seems to be at least in their 50’s. Now I don’t have a problem with “young folks” but I need to have someone that will be here for a long, long time.
And …
As you know, we lost one of our three schedulers a week or so ago. I stopped the hiring of a person who used to work here several years ago and who was riffed. He also had bad attendance record and a very ill spouse (cancer).
Essentially, in the email messages, a direct supervisor stated he did not want to hire the plaintiff because he was too old and his wife had cancer. As such, there were multiple forms of direct age and disability discrimination evidence.

The when the hiring manager continued to oppose the age and disability discrimination, he was removed from the hiring committee and the site director wrote him up with insubordination documents.

Every employment discrimination lawyer, would tell you that this case should make it past a motion for summary judgment, which ask the trial court to determine if there is any evidence whatsoever to support the plaintiff’s case. In determining a motion for summary judgment, the trial court must presume all fact in favor of the non-moving party, which in this case was the plaintiff. It should be pretty clear in this case, right? Yet, DynMcDermott moved for summary judgment on the age and disability discrimination claims.

And, in a move that probably shocked the attorneys on both sides, the trial court granted summary judgment for DynMcDermott, finding that no genuine issues of material fact existed which could lead a jury to determine that the plaintiff would have been hired but for his age and his wife’s disability. For those of you who are not attorneys, the trial Court basically ruled that there was absolutely no way that a jury could rule for the plaintiff.

Luckily, in a twenty-page opinion, the Fifth Circuit Court of Appeals overturned the Trial Court’s decision and sent the case back down for trial, holding:

the evidence is such that a reasonable jury could return a verdict for the EEOC, finding that but for Swafford’s age and disabled wife, DM would have hired him. Thus, a genuine issue of material fact exists and the district court erred in granting summary judgment for DM on the claims of discrimination under the ADEA and the ADA. Therefore, we reverse.
While we will now be able to see precisely how a Texas jury feels about the plaintiff’s situation, I am afraid we will be forever robbed of knowledge as to how a Trial Court could grant summary judgment to an employer after an employee’s supervisor specifically requests a younger individual without a disabled spouse to be hired, in writing.

If you are an employee over the age of 40 and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated and replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently.

If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.


The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to any age or disability discrimination claim questions or any particular employment law issue that you may have. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm or any individual attorney.

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