Age and Race Discrimination: Third Circuit Reverses Trial Court, Finds Evidence that a Younger Caucasian Employee was Treated Diffferently than Older African Amercian Establishes Pretext

Employment law attorneys are frequently asked how you can prove employment discrimination when no member of management every makes negative comments about an employee’s age or race or sex or any other legally protected criteria and management never admits that a legally protected criteria was the reason for taking action against the employee. The answer is that employment discrimination can be shown by indirect evidence. A recent decision from the United States Court of Appeals for the Third Circuit demonstrates that when a Plaintiff employee is able to show that employees who are a member of a different protected class (i.e. substantially older or a different race) are treated differently, courts must consider this evidence as being pretextual and not grant summary judgment to the defendant employer. In Johnson v. Delaware County Juvenile Detention Center, 2013 U.S. App. LEXIS 23743(3rd Cir. November 26, 2013), a 56 year-old African-American male detention officer was fired for being allegedly absent from his assigned duty station when he conducted a cellular telephone call for approximately 5 minutes in an area inaccessible to inmates containing a stairwell and staff lockers. The Plaintiff alleged that he was discriminated against based on his race and age because a younger, white detention officer was not terminated for leaving his work station without supervisory permission and before Plaintiff was fired, no other employee had been fired for violating the cellular phone policy.

In reversing the trial court, the Third Circuit applied the burden-shifting test required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), where a plaintiff must first establish a prima facie case (he was qualified for the position, is a member of a protected class and he was treated differently than a person outside the protected class) and then the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. If the defendant does so, the presumption of intentional discrimination disappears, but the plaintiff can still prevail by showing that the employer’s proffered reason is merely a pretext for discrimination. The Third Court found that the District Court incorrectly applied the last stage of the burden-shifting framework because the plaintiff employee put forth sufficient evidence of pretext by providing evidence that would allow a fact finder to reasonably disbelieve the employer’s articulated legitimate reason, or believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer’s action. The Third Circuit found that the Plaintiff presented sufficient evidence to dispute the proffered explanation, casting sufficient doubt on the Detention Center’s reasons for termination by presenting evidence that cell phone use in the area where he used his cell phone was not prohibited and that a younger, white employee, was not terminated for leaving his work area without supervisory permission, thereby permitting an inference of unlawful which can be used to show pretext under Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). Importantly the Third Circuit found that the “[P]rima facie case and pretext inquiries often overlap. As our jurisprudence recognizes, evidence supporting the prima facie case is often helpful in the pretext stage, and nothing about the McDonnell Douglas formula requires us to ration the evidence between one stages or the other.”

For more information on age discrimination, race discrimination and Abramson Employment Law see,


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Filed under Age Discrimination, Race Discrimination

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