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Age Discrimination: Beating the Odds of Indirect Evidence

By Robyn Hagan Cain | Last updated on

Yesterday, we told you about Robert Back, a former employee at Nestlé's Mount Sterling, Ky. "Hot Pocket" plant. The Sixth Circuit Court of Appeals recently upheld a district court's dismissal of Back's age discrimination suit against Nestlé.

Back offered two types of evidence to support his claims under the Kentucky Civil Rights Act: Direct evidence and circumstantial evidence. As we discussed previously, the courts ruled that his direct evidence -- the Human Resources Director's alleged statement that upper management had decided to get rid of the three oldest employees -- was inadmissible hearsay.

The appellate court also considered Back's circumstantial evidence on appeal. That's the evidence we're discussing today.

A circumstantial evidence case involves "proof that does not on its face establish discriminatory animus, but does allow a fact finder to draw a reasonable inference that discrimination occurred." Courts use a three-step, burden-shifting framework to analyze age-discrimination claims based upon circumstantial evidence.

Here, Nestlé conceded (for purposes of the appeal) that Back established a prima facie case of discrimination, but Nestlé offered evidence that it had a legitimate, non-discriminatory reason for terminating Back.

During the nine years that Back worked at the plant, he received both positive and negative reviews. Even when Back's reviews were positive overall, he received comments that he needed to delegate more tasks to his subordinates, improve in holding his subordinates accountable, and generally supervise and lead those working under him better so that their skills would grow rather than stagnate as occurred when he did their work for them. His reviews became increasingly negative in 2006, and he was disciplined three times that year. After a five-day suspension in 2007, and performance issues after a June 2007 explosion, Nestlé fired Back.

Since Nestlé offered a non-discriminatory reason for Back's termination, the burden shifted back to Back to "identify evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext for unlawful discrimination." Back needed to prove pretext "by showing that the proffered reason (1) had no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct."

Back made arguments on all three points, but the Sixth Circuit concluded that Back's assertions failed to satisfy the burden of proof to survive summary judgment.

Pretext is not an easy sell in a wrongful termination case. If a prospective client's former employer can admit a laundry list of performance issues into evidence, it will be difficult to prove an age discrimination claim based on indirect evidence.

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