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Employer's shifting explanations may evidence discrimination

The Sixth Circuit's age discrimination decision in Gaglioti v. Levin group, Inc., Sixth Circuit Case No. 11-3744 (Dec. 13, 2012), held shifting explanations for discharging an employee may constitute evidence of age discrimination.  Joseph Gaglioti worked in the employer's accounting department.  After ten months of employment, he was fired.  The employer initially reasoned that Gaglioti was fired because his temporary employment had ended.  But after Gaglioti filed suit and alleged that his employer fired him by considering his age, the employer argued that he was terminated due to poor performance.  The district court concluded that Gaglioti established a prima facie of age discrimination, but granted summary judgment in favor of the employer when it found that the employer presented a legitimate non-discriminatory reason for its discharge decision and Gaglioti failed to present any evidence that the decision was pretextual.

After appealing, the 6th Circuit Court of Appeals reversed summary judgment on the age discrimination claim.  The court considered whether the employer's explanations for discharging Gaglioti presented a genuine issue of fact for trial.  The court concluded that Gaglioti presented sufficient evidence that the employer changed its reasons for terminating his employment after he filed his age discrimination claim.  At or near the date of discharge, the employer maintained that Gaglioti was discharged because his temporary assignment had ended.  However, the court observed that Gaglioti presented evidence that he was hired for a permanent position.  Moreover, the court found evidence that the employer shifted its reason for firing Gaglioti after he filed his lawsuit because it asserted he was fired because of poor work performance.  The court held that since the employer provided shifting reasons for its employment decision, there was a genuine issue of material fact whether the employer produced a legitimate non-discriminatory reason for its action.  Since any one of these reasons, or all of them combined, may have demonstrated evidence of pretext of discrimination, the court held a jury must decide how to resolve disputed factual issues.            

The Sixth Circuit also rejected the district court's conclusion that Gaglioti's age discrimination claim was barred by the "same actor" inference. This inference allows one to infer that the employer did not discriminate because the same individual who fired an employee also hired that same employee. The court stated that the "same actor" inference is not mandatory when a court is considering a summary judgment motion. If the employee raises a genuine issue of material fact, then summary judgment should be denied. Since there were genuine issues of material fact as to the reasons why Gaglioti was fired, the court held that the "same actor" inference was applicable at trial, but not at the summary judgment stage.

By: Merl H. Wayman

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