A question many scholars have been asking in recent years is whether judges have put themselves in the place of jurors, violating the Constitutional right to a jury. This has clearly been demonstrated in an age discrimination case I recently handled. I believe an appeals court wrongly agreed with fabricated reasons a company put forth for firing a veteran employee.
After 33 successful years with FedEx, the company assigned a new manager to the employee. Within the first conversation, the manager told the employee that he should retire and let younger workers take over. When the employee refused and reported this to the company, the company did nothing. A month later, the new boss wrote up the high-level management employee for administrative level tasks that had been the work of his administrator – who was out on leave for cancer. The employee again complained, and the employer took no remedial steps. The new boss a month later again wrote up the employee – and attempted to fire him, but was blocked by the legal department, who said it was "too soon" to terminate him and to wait forty-five days. Exactly forty-five days later, the new boss terminated this employee for a multitude of reasons, many of them made up.
Despite complaints by the employee of discrimination at each step, FedEx took no steps to investigate the discrimination. These facts, when relayed to any person in the community, are enough to demonstrate discrimination. Multiple focus groups agreed. The 11th Circuit determined that as a matter of law – no reasonable person could find in favor of the employee – and dismissed his right to a jury trial, without even the benefit of oral argument. The employee filed his complaint in 2017 after receiving comments from his boss that he should relinquish his job to a younger employee. Suddenly, my client began getting formal warning letters in retaliation for complaining about the ageist remarks. My client said the complaint letters alleged he had improperly demoted an employee and parked his personal vehicle in an unapproved spot. These were just pretext smokescreens for the company to discriminate against my client because of his age.
A three-judge panel heard our appeal of a lower court that granted summary judgment in favor of the employer on my client's age discrimination and retaliation claims under the Age Discrimination in Employment Act. My client was 58 when he was fired. The court agreed that he made a baseline case and met his initial burden of proving that he was subjected to ageist remarks by his boss only months before being fired. But the judges said my client failed to show how a series of complaints about his performance were a smokescreen for age bias.
We urged the appeals court in 2019 to consider what we called the "convincing mosaic" of circumstantial evidence that would show that my client's age was the actual motivating factor in his termination. But the panel didn't agree.
As I told Employment Law 360, I believe the ruling shows the Eleventh Circuit's unconstitutional attempt to be both judge and jury. I said, "The 11th Circuit, despite being admonished on several occasions by the [U.S.] Supreme Court, continues to apply a pretext plus analysis to employment discrimination cases and putting itself in the place of a jury, violating the 7th Amendment." In other words, they accept the smokescreens employers put forward as facts. In this case, FedEx refused to resolve the case, because it said that it was so confident that this Circuit would dismiss the case. FedEx had successfully had its cases dismissed at summary judgment, by having its legal department follow the lockstep approach laid out by the courts to avoid trials on discrimination cases, no matter the underlying facts. By pushing back the termination to a later date and not investigating the discrimination complaints, FedEx had "solved" being held responsible for discrimination and retaliation, protecting a harasser who had been accused more than seven times before of discrimination at FedEx.
As my previous studies have illustrated, this might indicate that employment cases can sometimes be some of the most difficult cases – even where there is sufficient evidence of discrimination, if judges appear to lean towards believing the employer over an aggrieved worker and frequently dismiss the case at summary judgment rather than allowing the case to go to a jury to decide. We are willing to take such cases as far as we must in order to help our clients get what they deserve.
Major organizations like Lexis-Nexis and Westlaw now promise analytics that show how to convince a judge how to rule, by using their own words to influence them. Analytics show how judges will rule in certain scenarios, and litigants make decisions on how to handle cases based solely on the judge drawn on the case. A study at Georgia State University showed that the facts aren't the determinative outcome in whether a case will survive summary judgment, but instead is who the judge is on the case. When our founding fathers declared independence and created this judicial system, it was to exactly avoid this outcome.
If you believe that you have been discriminated against because of age, we invite you to reach out to us at 404-487-0903. One of our experienced attorneys will be glad to talk through your situation with you and advise you about what steps you may be able to take to protect yourself.