How Hard Summary Judgment Can Be In A Mixed Motive Case -4th Cir. Provides An Example of "Dueling Notes"

Posted 8:10 AM by Michael Fox

In a mixed motive case, where there is some evidence that an illegal decision played a role, the burden on the employer to obtain summary judgment, every defendant's goal, is heavy. Summarized in the penultimate sentence of EEOC v. Warfield-Rohr Casket Co. (4th Cir. 4/8/04) [pdf] Chief Judge Wilkins, not one to uphold summary judgment where an employer has established its right to prevail, states the standard simply:

Although the record contains evidence of plausible, nondiscriminatory reasons that might have supported Warfield-Rohr's decision to terminate Kuehnl, that evidence does not conclusively show that the company would have terminated him if his age had not been considered.

Unfortunately, for employers, that sentence could be copied verbatim and transposed in far too many cases -- along with the holding of summary judgment reversed, or at the trial court, denied.

Here there was direct evidence of age discrimination in the form of the plaintiff's testimony, backed up by his contemporaneous journal notes of the termination meeting:

[Ayres] said to me, you're fired. You're getting too f---ing old, you're making too much f---ing money. Get the f--- out. I said, Howard, can't I work less time and less pay to keep my job until 65? He says, no, get the f--- out. I said, why can't you get rid of Matt [Moore] instead of myself? He said to me, Matt could give him more years and he needed a job. I said, I need a job, too. (Deletions contained in the original, whether as a matter of practice in the 4th Circuit, or a bow to post Super Bowl sensibilities is unknown.)

Surprisingly (said with tongue planted firmly in cheek), the employer's notes, prepared 'to include everything that I had to say to [Kuehnl] and make sure I said them accurately to him, " spoke only of the financial inability to continue his employment with no mention of his age.

In one bright spot for employers, the Court does note that since this is a case under the Age Discrimination in Employment Act, direct evidence probably remains necessary to utilize a mixed-motive argument, unlike Title VII where the argument died in Costa v. Desert Sands. However, even on this point, the Court makes clear that remains an open question, which it need not and does not reach here.

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