Two oldest employees dumped; 29-yr. old kept, despite abseentism; "no age discrimination"

The semantic hurdles utilized by some judges to assure that age discrimination claimants don't get a jury decision by their peers were on full display in Schoonmaker v. Spartan Graphics Leasing.  In an opinion written by Judge Suhrheinrich, the Sixth Circuit upheld the dismissal of the 11 year veteran's age discrimination claim because she failed to provide adequate proof of age bias, according to Suhrheinrich.  The fired woman pointed out that Spartan fired two workers, aged 58 and 65, when they felt they came to a "general consensus..nothing official" that work was slow and they should let someone go. 

The Spartan executives kept a 29-year old with a record of discipline for "excessive absenteeism" the previous year, even though their handbook stated that length of service would be given a preference in lay-offs if two potential employees were equally qualified considering factors including "productivity, attendance and general performance."   The immediate manager suggested that he made the decision based on the fact that he thought the 29-year old would be "more productive" despite her absenteeism record, but he had no records to support that claim. 

To prevail in a claim of this nature by circumstantial evidence (i.e., if the employer doesn't admit discrimination--either intentionally or by stupidity) an employee must prove that:  1.  he or she is a member of a protected class; 2. that she (in this case) was discharged; 3. that she was qualified for the job; and 4. that she was replaced by a person outside the protected class.  It was uncontested that Schoonmaker met the first three requirements. In the context of deciding whether the case can go to a jury, the Court may not consider the employer's alleged non-discriminatory reason for taking the adverse employment action--even if it is a "work force reduction."  Nevertheless, since she wasn't "replaced" in the "down-sizing," the victim was required to show by additional direct, circumstantial, or statistical evidence " that she was singled out for discharge for impermissible reasons.

Suhrheinrich held, however, that firing the two oldest employees in the group considered for lay-off did not constitute statistical evidence of discrimination! He justified this rationalization with the claim that the statistical sample was too small to be probative (I guess that depends on whether you are part of that small sample).  He also rationalized away the fact that the company did not follow its own rules or review personnel files in making the lay-off decision, and the fact that it offered contradictory explanations for its actions as a "pretext," even though prior courts have looked to this type of behavior for corroborative support adequate to warrant jury analysis.

In other words, Schoonmaker and her lawyers put before the Court precisely the documentation that other courts have held is necessary to establish a jury-triable claim of age discimination, and an activist Court denied her the right to a jury trial based on semantic rationalizations.  When you hear the Chamber of Commerce grousing about  "activist" judges keep this case in mind:  in truth, there are far more examples of judicial activism among doctrinaire Republican demagogue-appointees than there are among "liberal" judges.