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Thursday, October 25, 2012

Shelley v. Geren: Ninth Circuit Applies McDonnell Douglas Burden Shifting, Reverses Grant of Summary Judgment in Age Discrimination Case

I recently attended an employment law update presented by Patrice Goldman and Andrew Friedman, and they noted several cases that I missed over the course of the last year. I will be discussing those cases over the next few weeks.

In Shelly v. Geren, 666 F.3d 599 (9th Cir. 2012), the plaintiff sued the Secretary of the Army and the United States Army Corps of Engineers (the Corps) for violating the Age Discrimination in Employment Act (ADEA) by failing to interview him and rejecting his applications for two promotions. The district court granted the Corps' motion for summary judgment:

The court declined to analyze the motion in accordance with McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), finding it inapplicable to ADEA cases after the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Relying on Gross, the district court held that Shelley put forth insufficient facts that his age was the "but-for" cause of his non-selection for the 120-day position and for an interview for and promotion to the permanent position.
Id. at 604. The Ninth Circuit reversed. First, the Court found that Shelly exhausted his administrative remedies by timely filing with the EEOC. Id. at 605-606. Next, the Court held that the district court inappropriately applied Gross, which concerned instructions at trial, rather than the parties' burdens on summary judgment. Id. at 607. The Court explained that McDonnell Douglas remains good law on summary judgment: 

Thus, to survive summary judgment on his claim for a violation of the ADEA under the disparate treatment theory of liability, Shelley must first establish a prima facie case of age discrimination. If he is successful, the burden of production shifts to the Corps to articulate a legitimate non-discriminatory reason for its adverse employment action. It is then Shelley's task to demonstrate that there is a material genuine issue of fact as to whether the employer's purported reason is pretext for age discrimination. At trial, he must carry the burden to prove that age was the "but-for" cause of his non-selection.
Id. at 608. 

The Court held that Shelly presented a prima facie case of age discrimination and that the Corps presented a non-discriminatory reason for its decisions, shifting the burden back to Shelly to raise a genuine factual question as to whether the Corps' proffered reason was pretextual. Id. at 608-609. The Court concluded that Shelly presented both direct and indirect evidence of pretext, meeting his burden on summary judgment. Id. at 609-612.

The opinion is available here.  

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