No Evidence of Age Bias when Job Was Eliminated as Part of Reduction in Force

Posted on Jun. 22 2017.

The Fifth Circuit, in Lay v. Singing River Health System, No. 16-60431, 2017 U.S. App. LEXIS 10758 (5th Cir. June 19, 2017), recently upheld the district court’s grant of summary judgment in favor of the defendant employer in an age-discrimination case because it agreed with the lower court that the plaintiff had failed to raise a material issue of fact that her termination, which was part of a reduction in force, was pretextual. This case is particularly instructive to companies facing a reduction in force when employees being considered for reduction are members of a protected class.

Virginia Lay began working as director of managed care at Singing River in 1999, a position in which she reported directly to the chief financial officer. In 2013, the managed care department was moved to the clinical-integration department and Lay began reporting to Chris Morgan, then age 50, the vice-president of clinical integration. In early 2014, the company discovered through an audit that it faced an $88 million shortfall caused by overstatements of its accounts receivables. This caused the company to renegotiate all its managed care contracts and reevaluate and restructure all its operations. Part of that restructuring included combining Morgan’s and Lay’s jobs into one position. Morgan decided to leave the company and Lay stated that she did not apply for the new position because it required a master’s degree, which she did not have. However, Lay was encouraged to retire but was permitted to stay on through June 2014 to maximize her retirement benefits. While there appears to have been some dispute about how the retirement option was presented to her and when she was told her position was going to be eliminated, it was undisputed that she retired from Singing River and eventually took a full-time job paying $3,000 per month, significantly less than the $160,000 salary she was making at Singing River.

Meanwhile, back at Singing River, a new CFO initially oversaw some of Lay’s former duties along with his own job responsibilities but in early 2015, Singing River hired Jason Rickley, then 32, to take over the newly-developed, combined position that replaced Morgan’s and Law’s positions. He was initially paid $110,000 and was enrolled in a master’s degree program in health administration at the time he was hired.

In April 2015, Lay filed an age discrimination suit under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 632(a)(1), in the Southern District of Mississippi and the court eventually granted Singing River’s motion for summary judgment because it determined that Lay had not raised any genuine issues of material fact to rebut Singing River’s proffered legitimate, non-discriminatory reason for eliminating Lay’s position. Lay then appealed to the Fifth Circuit.

The appeals court began its analysis by stating that under the ADEA, Lay was required to demonstrate that but for the discriminatory act, she would not have been terminated and noted that its review required it to employ the “more than well-known burden-shifting analysis,” wherein the plaintiff must first state a prima facie case of discrimination, which then shifts the burden to the defendant to proffer a reasonable-non-discriminatory reason for the termination. Under the test, if such a reason is proffered, the burden then shifts back to the plaintiff who must then meet her ultimate burden of persuasion on the issue of intentional discrimination. As to Lay’s specific case, the court also noted that if a plaintiff is terminated during a reduction-in-force, as here, the elements of the prima facie case are “(1) that [s]he is within the protected age group; (2) that [s]he has been adversely affected by the employer’s decision; (3) that [s]he was qualified to assume another position at the time of the discharge; and (4) evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.”

Both the district court and the appeals court presumed that Lay had met her initial burden. As such, the appeals court began its analysis by examining Singing River’s proffered reason for eliminating Lay’s position. The court noted that the record evidenced the multi-million dollar shortfall and then stated that it was not the court’s place to question how an entity handled a financial crisis and that the law does not require that a company’s decisions be proper, only that they are non-discriminatory. It then stated that because Lay’s job was not the only one eliminated and because the elimination was part of a restructuring in response to the financial hardship, Singing River had presented a legitimate, non-discriminatory reason for the negative employment action.

In response to Singing River’s proffer, Lay offered nothing more than conclusory statements and hearsay. She first claimed that she was replaced by someone “half her age” and that the new position “entailed 99.9% of her former job duties under a different title” but later admitted that she estimated that total from reading the job profile online and that she did not know the full responsibilities required for the new position. Further, the court noted that the person that filled the newly-created position was not, in fact, half her age. The court stated that because a reasonable fact-finder would not be “persuaded by pure conjecture,” she had not raised a genuine, material fact.

She also claimed that she was “forced” to retire based on her age and pension status but the appeals court quickly disposed of this argument by stating that the record evidenced that the discussion regarding her retirement took place after she had been told that her position was going to be eliminated and that at most, the discussion was made in “a helpful spirit.” As such, the court determined that she had not demonstrated that she had been “forced” to retire and therefore had not raised a genuine fact for trial on that claim.

Finally, the court determined that other claims made by Lay regarding alleged age-derogatory statements allegedly made by members of Singing River’s management were inadmissible hearsay that could not create a genuine issue of material fact. Based on its analysis then, the appeals court affirmed the district court’s grant of summary judgment to Singing River.