Wednesday, October 28, 2009
Baker v Silver Oak Senior Living Mgmt Co, LC, ___F.3d___(8th Cir. September 14, 2009), is an interesting case. The 8th held that plaintiff, a discharged 53-year-old employee presented enough evidence of age-based discriminatory animus to get her ADEA and state law claims to a jury. Under any test, the employee raised a genuine issue for trial on the ultimate question of age bias vel non. Most significant were statements showing preference for younger workers made by the employee's supervisor and the CEO: the management team was "missing the boat by not hiring more younger, vibrant people"; they "should start looking over applications better and try to consider hiring younger people"; and instructions that the employee fire certain workers in their 50s and 60s so that "younger workers" could be hired who would be "better workers, have more energy, be more enthusiastic and stimulate the residents." The clearly reflected age-based bias in these statements infected other remarks that might otherwise be subject to interpretation. There was also ample evidence of pretext given the employee was placed on probation for reasons the evidence suggested were false and known to be false, and she was asked twice during her probation if she intended to resign, suggesting a quest to end her employment.
Mitchell H. Rubinstein