February 28, 2017 Practice Points

Sixth Circuit Requires Prima Facie Evidence as It Dismisses ADEA Claim

By Van D. Turner Jr.

Many employment attorneys are familiar with the prima facie standard for race discrimination cases. However, employment attorneys should also be aware of the prima facie requirements applied to ADEA claims as well. The Sixth Circuit Court of Appeals gave us an example of its unwillingness to relax prima facie standards in Abnet v. Unifab Corp., No 06-2010 (6th Cir. Feb. 3, 2009).

In Abnet, a former purchasing agent for a Michigan metal fabricator was unable to demonstrate that he was laid off in violation of the Age Discrimination in Employment Act (ADEA), even though Unifab Corporation was looking for a “change agent” and gave the former employee’s job to a much younger individual. The Abnet Court held that Abnet met three (3) elements of a prima facie case of age discrimination under the ADEA, he failed to demonstrate that he was “replaced” by the younger employee who took over the purchasing operation. The Sixth Circuit found that Unifab’s economic justification for laying off Abnet was not pretext for age discrimination.

Company Sought “Change Agent”
Abnet began his career with Unifab in 1966 and served as the company’s purchasing agent for more than 20 years before his layoff in February 2004 at 66 years old. Abnet earned approximately $30,000 per year when he was laid off.

Unifab had been experiencing a downturn in its business for some time, and as a result, had laid off several employees over the years. The company’s staff fell from 69 employees in 2000 to 25 employees by January 2005. In 2003, Unifab hired a new general manager, Robert Seely, to obtain new financing and to improve the company’s performance. Seely laid off Abnet in February 2004 and approximately five months later, hired Robert Payne, a 23-year-old college graduate. Payne, who was reviewed by an independent consulting firm, was recommended because the company was seeking “a change agent who [could] constantly shake up the status quo”. Payne started with a salary of $38,000, and he assumed Abnet’s purchasing responsibilities as well as other duties. Abnet filed an age-discrimination lawsuit under the ADEA, and the trial court granted summary judgment for the company. Abnet appealed to the Sixth Circuit.

Sixth Circuit Did Not Find Pretext
The Sixth Circuit in its opinion stated that to make a prima facie case under the ADEA, Abnet had to prove: “(1) he belonged to a protected age class; (2) he suffered an adverse employment action; (3) he was qualified for [the] position; and (4) he was replaced by a younger individual.” Although it was undisputed that Abnet met the first three requirements, the appeals court found that Payne was not Abnet’s replacement because Payne performed not only Abnet’s purchasing job, but also “many other significant responsibilities.”

Abnet went on to highlight Seely’s remarks about bringing in a “change agent” or “new blood” as evidence of age bias. The Sixth Circuit, however, did not find that to be the case. The court stated that the proof indicated that the company was attempting to “implement new programs and processes” and that the “change agent” comments were consistent with Seely’s plans. Further, the Sixth Circuit pointed to the fact that Unifab had significantly reduced its workforce, eliminated some positions, and cross-trained Payne in different departments to perform a variety of tasks, as evidence that Unifab’s decision was not pretext for age discrimination.

Sixth Circuit Did Not Consider New Employee’s Performance
The Sixth Circuit further held that Abnet’s claim that Payne’s performance reviews revealed deficiencies was unpersuasive. The court wrote: “Whether Payne was successful for Unifab . . . does not impact our decision on whether plaintiff’s termination was motivated by age discrimination.” Accordingly, the appeals court found that Abnet failed to raise any genuine issues of material fact concerning his claim of pretextual termination of his employment, and the court concluded that Unifab was properly granted summary judgment on Abnet’s age-discrimination claims.

The Sixth Circuit also affirmed the trial court’s dismissal of Abnet’s retaliation claim. Abnet alleged that after his layoff, Unifab offered to return him to work on a temporary basis. Abnet, however, claims that the company withdrew the offer because of the ADEA lawsuit. The Sixth Circuit, agreeing with the trial court, said there was no prima facie retaliation because Abnet did not respond to the company’s offer. In conclusion, employers should be cognizant of the fact that the prima facie evidence standard must be met by claimants alleging not only race-discrimination claims but also age-discrimination claims as well.

Van D. Turner Jr., is a partner in the firm of Bruce and Turner, PLLC in Memphis Tennessee.

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