Velez v. Thermo King de Puerto Rico, No. 08-1320 (1st Cir. Oct. 16. 2009)

By Outten & Golden LLP
Oct 16, 2009

The First Circuit becomes the latest U.S. Court of Appeals to reject defense efforts to expand Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), beyond its banks.

Velez v. Thermo King de Puerto Rico, No. 08-1320 (1st Cir. Oct. 16. 2009): Continuing in the vein of yesterday's post, the First Circuit issues a published opinion signalling its intention to continue to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), method of proof in ADEA cases.

The district court granted summary judgment, holding as a matter of law that the employee was fired for a valid reason that the plaintiff could not rebut, i.e., accepting, and selling for personal gain, promotional items given to him by vendors, such as knives. The plaintiff had also been under investigation for stealing paint, knives and other equipment, but the employer did not immediately advance this as the reason for his termination.

The panel reverses, and begins by stating that Gross did not demand departure from the unbroken chain of cases applying the McDonnell Douglas inferences to the ADEA:

"In Gross, the Supreme Court noted that it 'has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context." Gross, 129 S.Ct. at 2349 n.2; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (assuming arguendo that the McDonnell Douglas framework applies to an ADEA claim, and applying it to such a claim, '[b]ecause the parties do not dispute the issue.'). This circuit, however, has long applied the McDonnell Douglas framework to ADEA cases. [Citations omitted]. Other circuits also apply the framework in the ADEA context. See, e.g., Martino v. MCI Commc'n. Servs., Inc., No. 08-2405, 2009 WL 2224914 at *3 (7th Cir. Jul. 28, 2009); Smith v. Medpointe Healthcare, Inc., No. 07-1753, 2009 WL 2055104 at *3 (3d Cir. Jul. 16, 2009) (unpublished); Oliver v. Federated Mut. Ins. Co., No. 08-5416, 2009 WL 2031863 at * 1 (6th Cir. Jul. 15, 2009) (unpublished). Until

told otherwise by the Supreme Court, we shall continue to do so."

The panel then applies the framework to this case. It first holds that the district court misanalyzed the prima facie case. It holds that, notwithstanding the decision below, the plaintiff met his burden of establishing his qualifications for the job by his 24-year-long spotless track record and in particular the eight years in his current job as Tool Crib Attendant. Moreover, "by concluding that Vélez was not qualified because he had not disproved the honesty of Thermo King's belief that he had violated company rules, the magistrate judge and the district court erroneously accepted for the purpose of the prima facie analysis Thermo King's stated reason for firing Vélez as proof that he was not qualified for the . . . job."

The panel also finds evidence of pretext sufficient to warrant a jury trial to sort out:

"We find several aspects of the evidence that, taken together, are more than sufficient to support

a factfinder's conclusion that Thermo King was motivated by age based discrimination, and which thus raise a genuine issue of material fact that defeats summary judgment. These include Thermo King's shifting explanations for its termination fo Velez, the ambiguity of Thermo King's company policy and the resulting uncertainty as to whether Velez violated it, and, most importantly, the fact that in response to arguably similar conduct by younger employees, Thermo King took no disciplinary action."

Regarding the final issue, the employer had argued that because the younger employees faced disciplinary action for different kinds of violations than the plaintiff, they were not "comparable" for purposes of pretext. But the panel holds that "A rational jury could view this distinction as so meaningless that it masks a different purpose for distinguishing among the employees -- their ages."