Employment Law Report
The Sixth Circuit’s Blizzard Opinion Might Chill Frivolous Claims
Any employer facing an age discrimination claim should review the bright-line rules and employer-friendly standards explained in the Sixth Circuit’s recent Opinion in Blizzard v. Marion Technical College, 698 F.3d 275 (6th Cir. 2012). Defendant Marion Technical College (“MTC”) fired Peggy Blizzard for poor job performance. Blizzard sued MTC claiming age discrimination and retaliation. The district court granted summary judgment to MTC and the United States Court of Appeals for the Sixth Circuit affirmed.
The Sixth Circuit cited Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009), for the burden of persuasion in age discrimination cases: the plaintiff must show that “age was the ‘but-for’ cause of the employer’s adverse action.” Blizzard, at 283. See also Fleishman v. Continental Casualty Company, 698 F.3d 598, 604 (7th 2012)(relying on Gross in holding that plaintiffs in ADEA cases must “show evidence that could support a jury verdict that age was a but-for cause of the employment action at the summary judgment stage,” and collecting similar cases in other circuits). The Court then analyzed Blizzard’s prima facie case: Blizzard is over age forty (she was born on January 18, 1951), MTC took adverse action against her by firing her, Blizzard is qualified for her job, and a significantly younger worker outside the protected class replaced her.
In the Sixth Circuit, “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.” Blizzard, at 284, quoting Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003). On the other hand, an age difference of 10 years or more is generally considered significant. Id. There is a “zone of discretion” in ADEA cases involving replacement by a person who is between six and ten years younger than the plaintiff. Id. Furthermore, “[a] person is not replaced when . . . the work is redistributed among other existing employees already performing related work.” Id. (internal quotation marks omitted). The Sixth Circuit upheld the district court’s determination that Blizzard’s replacement, who was 6.5 years younger than Blizzard, was “significantly younger” under the facts and circumstances of the case.
After Blizzard made out her prima facie case, it was up to MTC to articulate legitimate business reasons for Blizzard’s dismissal. MTC claimed:
Blizzard failed to follow proper procedures in using the new software systems, which resulted in unmanageable vendor lists, duplicate payments to vendors and errors in processing accounts payable receipts. She was unaccountably absent from her work area, she failed to perform necessary functions of her job and exhibited a general unwillingness to cooperate with other employees in the business office or to attend meetings and training on the new software systems. She resisted changes to what she perceived to be the duties of the Accounts Payable Clerk job.
Based on this evidence, even if Blizzard could create an issue of fact as to the quality of her performance, MTC would still be entitled to summary judgment under the “modified honest belief” rule. Id. at 286. The rule provides that “‘for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.’” Id. (citations omitted). The employee, in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’” Id. (citations omitted). To overcome the employer’s invocation of the honest belief rule, the employee “must allege more than a dispute over the facts upon which [the] discharge was based. He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.” Id. (citation omitted). Under this standard, Blizzard’s disagreement with MTC’s business judgment regarding her work is insufficient evidence of pretext. Id. citing Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).
Blizzard also failed to establish that a decision-maker made relevant ageist remarks. Comments that are ambiguous or unrelated to the decision to terminate Blizzard’s employment are not evidence of discrimination. Blizzard, at 287. “[S]tatements by decisionmakers unrelated to the decisional process itself cannot suffice to satisfy the plaintiff’s burden…of demonstrating animus.” Id. quoting Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998).
As to retaliation, Blizzard claimed that she had a number of conversations with co-workers and supervisors in which she complained about age discrimination, and that these discussions constituted protected activity. The Court held that MTC did not know about the co-worker conversations, that most of the conversations were too vague to place MTC on notice of Blizzard’s age discrimination claim, and that all of the conversations took place more than a year before Blizzard was fired. The long gap between Blizzard’s alleged protected activity and MTC’s decision to fire her “does not raise the inference that [the] protected activity was the likely reason for the adverse action.” Blizzard, at 289, quoting Lindsay v. Yates, 587 F.3d 407, 418 (6th Cir. 2009). See also Anderson v. Donohoe, 699 F.3d 989, 996 (7th Cir. 2012) (a three month gap between protected activity and discipline is not, on its own, enough to create a jury issue on the inference of retaliation).