As appeared in the NJCCA’s FOCUS.
As part of a prima facie case, plaintiffs suing their former employers under the Age Discrimination in Employment Act (“ADEA”) must establish that they were replaced by employees “sufficiently younger” to permit an inference of age discrimination. The question of how much younger is “sufficiently younger” is often a contested issue in litigation. A recent decision, Gunnar Steward v. Sears Roebuck & Company, 231 Fed. Appx. 201 (3d Cir. 2007), holds that an employee may satisfy this element even if replaced by individuals who are, on average, not much younger than him or her.
Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” In order to establish a prima facie case, a plaintiff must demonstrate that he or she: (1) is older than 40; (2) is qualified for the position at issue; (3) was subjected to an adverse employment action; and (4) was replaced by a person “sufficiently younger” to permit an inference of age discrimination.
In 1979, defendant Sears Roebuck & Company (“Sears”) hired plaintiff Gunnar Steward as a Level I Technician. By 1998, after a series of promotions, he was a Technical Manager of Sears’ Wilmington, Delaware facility. In this position, he was responsible for supporting, organizing, directing, coaching, and developing the facility’s technical work force, which provided repair and maintenance services to customers at home and in the Sears service unit.
In July 2001, Sears terminated Steward’s employment. At that time, he was 50 years old. Another Technical Manager in the Wilmington facility, Tony Carter, was 45. At around the time of Steward’s termination, Mark DeWit, a 33 year old manager in the Wilmington facility, was promoted to a Technical Manager position.
The Trial Court
At trial, Sears did not dispute that Steward had established the first three elements of a prima facie case. Therefore, the judge instructed the jury to consider whether Steward proved that he had been replaced by someone substantially younger. If so, the jury was instructed to consider Sears’ proffered non-discriminatory reasons for discharging Steward and whether he proved that these reasons were pretextual. The jury returned a verdict for Steward, finding that Sears had willfully discriminated against him in violation of the ADEA, and awarded him front and back pay. Sears filed a motion for judgment as a matter of law or, in the alternative, for a new trial, arguing that Steward failed to establish the fourth element of a prima facie age discrimination case. The trial court agreed. The court explained that Steward had not established that his duties were assumed by “sufficiently younger” employees or that other, “similarly situated” employees were treated more favorably.
According to the court, the jury could have found that Steward’s duties had been assumed by Carter (age 45) and by Technical Managers at other Delaware facilities, Brian Merkel (35) and Joyce Sipple (60), with some assistance from DeWit (33). The average age of these four “comparators” when Steward was discharged was 43.25 years old, or 6.75 years younger than Steward. The trial court concluded that this 6.75 year average age difference was too small to establish a prima facie case of age discrimination, because the comparators were not “sufficiently younger” to permit an inference of discrimination.
The trial court entered judgment for Sears and Steward appealed.
The Third Circuit
The Third Circuit explained that it had not previously addressed whether a 6.75 year difference in age between a plaintiff and the workers who assume his or her responsibilities is sufficiently large to raise an inference of discrimination. The Court declined “to adopt a brightline rule that a 6.75 year average age difference between a plaintiff and those who assume his job duties is, as a matter of law, insufficient to give rise to an inference of age discrimination.”
The focus, according to the Court, should not be limited solely to the average age of the workers who assumed Steward’s duties, but also on “the age of each individual coworker who took over some portion of Steward’s duties, as well as what portion of Steward’s duties each assumed.” The Court stated that two of the employees who assumed Steward’s duties — DeWit (33) and Merkel (35) — were each at least fifteen years younger than Steward. Moreover, DeWit worked in the same location as Steward when Steward was discharged and eventually assumed the title of Technical Manager at the Wilmington facility. In addition, after Steward’s discharge, DeWit, as well as Carter, took over responsibility for supervising some of the technicians whom Steward had supervised. Sipple (60) was the only worker older than Steward who had assumed his job duties, and she worked at a different facility and there was no evidence as to what duties she assumed.
The Court indicated that the jury could have inferred that DeWit and Carter, who worked in Wilmington and assumed supervision of some of Steward’s technicians, took over a greater portion of his duties than Merkel and Sipple, who worked at different facilities. The Court observed that the jury “could have viewed DeWit and Carter as the primary replacements for Steward, and could have placed greater weight on the evidence of the age difference between Steward and DeWit and between Steward and Carter than on the average age difference between Steward and the four replacements.” Therefore, the Court concluded, the trial court erred in “categorically measuring the age difference between Steward and his replacements as 6.75 years.” According to the Court, based upon all of the evidence, “the jury could have found that Steward established the fourth element of a prima facie case of age discrimination.”
In Steward, even though the plaintiff’s duties were assumed by employees who were, on average, only 6.75 years younger and one of the employees was actually older than him, the Third Circuit held that the evidence was adequate to support a prima facie case. In so doing, the Third Circuit has created another obstacle to an employer seeking summary judgment.