by Michael Fox
When plaintiff made his prima facie case of age discrimination in failing to rehire him after he had been riffed, the burden shifted to the employer to provide a legitimate explanation. Unfortunately, it originally took the position that it had a policy of not rehiring drivers who had been let go in a reduction force in both an administrative proceeding, their answers to discovery and in their initial brief on summary judgment. On their reply brief, they introduced a second rationale, that they only hired from union referrals. And just to make matters worse, at oral argument they tried to make a third argument. The conflict between the different rationales was enough for the court to feel the their justification was "fishy" and reverse the summary judgment below. Zaccagnini v. Chas. Levy Circulating Co. (7th Cir. 7/29/03) [pdf].