Six Years or Less Age Gap to Support Age Discrimination Claim

age-discriminationIt is a common and curious question as to what age gap is necessary to justify an age discrimination claim.  The Sixth Circuit Court of Appeals in the matter of Blizzard v. Marion Technical College (No. 3:09-cv-1643 Northern District Ohio) narrowed the age gap as to what is or is not a “significant” difference.  The Court held that the magic number of six years or less would not constitute a “significant” gap in age to make out a prima facie claim of age discrimination.

This case involves a lady named Peggy Blizzard born in 1951 who was hired in 1992 by Marion Technical College as part-time Associate Accounts Payable Clerk in the Business Office.  She was promoted in 1996 to Accounts Payable Clerk 1 and terminated in 2008 at the age of 57.  Defendant asserts that Blizzard failed to adapt to certain new technology the department was employing and was the legitimate non discriminatory basis for termination. Plaintiff contends that her supervisor consistently offered more favorable treatment to another employee born in 1964.  It was argued that Thomas received more more leniency for infractions and she was offered much more software training on the system while Blizzard was working additional hours to cover for her.  The complaints became formal when she communicated them in writing to upper management and expand the scope of her alleged discrimination claim in that additional younger employees were not receiving parallel progressive discipline for similar acts.  The supervisor in the department drafted a negative evaluation leading to her subsequent termination.  Thomas assumed some of Blizzard’s duties on a temporary basis until she was replaced by another female employee named Janice Teeter who was born in 1957 and  later determined not to be “significantly” older.

Blizzard proceeded to file a charge with the EEOC claiming laiming retaliation, age discrimination, and sex discrimination. On July 16, 2009, she filed a complaint against MTC and Nutter in the Northern District of Ohio, asserting claims for age discrimination and retaliation under the federal Age Discrimination Enforcement Act (“ADEA”) and Ohio law, as well as claims for “Breach of Policy” and intentional infliction of emotional distress. MTC moved for summary judgment.

The ADEA prohibits an employer from discharging an individual “because of such individual’s age.” 29 U.S.C. § 623(a)(1) and an employee must be 40 years old or older to file an age discrimination claim.  The burden is on Plaintiff to demonstrate a prima facie claim that the employee’s age was the “but for” cause of the adverse employment action by the employer. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).  The employee can support this claim with direct or circumstantial evidence.

To establish a prima facie case of age discrimination, a plaintiff must show: “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).   More aptly germaine to this claim is an allegation that the plaintiff was replaced by a younger individual which supports an inference of discrimination only if the difference in age is significant. Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir.2003).  Plaintiff argued that Thomas replaced her in that position to which the district court did not agree finding that Teeter was the replacement.  The Court stated that the terminated co-worker’s job duties did not constitute replacement for purposes of an ADEA claim. Id. (“A person is not replaced when … the work is redistributed among other existing employees already performing related work.” (internal quotation marks omitted)). Rather, a “`person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.'” Id. (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)). 

In its opinion, the Court of Appeals granted the employers motion for summary judgment finding that Blizzard met the first three elements of a prima facie age claim but reiterated its established  bright-line rule in Grosjean when it held that “in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant.”  The Court further held “that while an age difference of ten or more years is generally considered significant, replacement of the employee by a person who is six to ten years her junior must be considered on a case-by-case basis.  (explaining that bright-line rule “does not encroach on our precedent holding that eight years can be a significant age difference”). Thus, it found the district court properly applied Grosjean which essentially created a zone of discretion in age-discrimination cases involving replacement by a person who is between six and ten years younger than the plaintiff. 

An employee filing an age discrimination action claiming that a similarly situated employee was receiving more positive disparate treatment is not necesarily exempted from pursuing a claim if the other employee is less than six years younger.  The employee is expected to provide direct evidence to support an inference of discrimination if the replacement falls within the six year age gap.  The age old adage here does not apply that a fine wine grows with age.

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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