First Circuit Revives Age Discrimination Claim Because Employer's Reasoning Could Be Considered Pretextual

In a recent affirmation of employee rights, the First Circuit Court of Appeals (covering cases arising in Massachusetts, Maine, New Hampshire, Rhode Island and Puerto Rico) ruled that an employee's age discrimination case should have survived summary judgment because the employer's reasons for termination could be viewed as pretextual and because a jury could find that the employer treated the employee's replacement differently with regard to discipline.  In Acevedo-Parilla v. Novartis Ex-Lac, Inc., 10-2276P-01A, decided on October 10, 2012, the First Circuit makes clear that an employer cannot protect itself in an age discrimination suit, merely by proffering evidence that the employee was terminated for misconduct that it documented.  Rather, employers that cite multiple incidents of misconduct or poor performance as the reasons for an employment termination are subject to findings of possible pretext if they are not able to show that each of the reasons given was fairly blamed upon the plaintiff and that they followed usual employment termination processes in relying on those incidents.  Similarly, if the employee who replaced the plaintiff is not held to the same tough standard as the plaintiff, a plainitiff can survive summary judgment (or have a summary judgment finding reversed) based on a showing of possible pretext.  Employers should be wary of listing multiple 'kitchen-sink' reasons for an employment termination.  Clear communication and performance management are the best ways to protect employers from discrimination claims.  Similarly, employers should be able to show uniform application of standards in evaluations and discipline when defending against claims of discrimnation related to performance-based employment terminations.