Treatment of Direct Evidence in Age Discrimination Cases Under the ADEA

The federal Sixth Circuit Court of Appeals recently opined on how direct evidence of age discrimination under the ADEA is to be addressed on summary judgment. In Scheick v. Tecumseh Public Schools, Case No. 13-1558 (6th Cir., Sept. 2, 2015), the district court granted summary judgment in favor of the employer Plaintiff’s evidence consisted, among other things, of statements that “[t]he Board wants you to retire”  and that the employer "wanted someone younger.” The district court granted summary judgment, finding these statements not direct evidence of age discrimination.

The Sixth Circuit reversed based on the second set of statements, explaining as follows:

To prevail on a claim under the ADEA, it is not sufficient for the plaintiff to show that age was a motivating factor in the adverse action; rather, the ADEA’s “because of” language requires that a plaintiff “prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141-43, 147 (2000)). *** [A]fter Gross, we now look to whether evidence, if believed, requires the conclusion that age was the “but for” cause of the employment decision.

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The first statement, made during the performance review, did not constitute direct evidence of age discrimination. As the district court found, McAran’s statement that the Board wanted Scheick to retire would require an inference to conclude that retirement was a proxy for age (as opposed to either years of service or a desire that he leave the position voluntarily). See, e.g., Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t you retire and make everybody happy” did not constitute direct evidence of age discrimination).

In contrast, McAran’s other two statements about wanting “someone younger” are not ambiguous and, if believed, do not require an inference to conclude that age was the but-for cause of the decision not to renew Scheick’s contract. First, the statements by McAran to Scheick on February 26 and March 15, respectively, represent direct references to age. See Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 794 (6th Cir. 2013) (involving statement “we want someone younger”). Moreover, the statements are not ambiguous despite the lack of an explicit statement that “the Board” wanted someone younger. Cf. Fuhr, 710 F.3d at 674 (finding ambiguities required inferences about what part of the “old boys network” took which unspecified retaliatory actions).

The Sixth Circuit, however, rejected the notion that presentation of direct evidence will always defeat an employer’s motion for summary judgment under the ADEA.

Thus, even when direct evidence of age discrimination has been offered, the question to be asked in deciding an employer’s motion for summary judgment is whether the evidence, taken as a whole and in the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 178.

The Court ultimately concluded that “the evidence, taken as a whole and in the light most favorable to Scheick, is sufficient to permit a reasonable juror to conclude that Scheick’s age was the but-for cause of TPS’s decision not to renew the contract for his services.”