Tag Archives: Age Discrimination

Dear Dawg: I’ve applied for SEVEN different jobs and they haven’t even given me an interview! After 38 years in the business, I know age discrimination when I see it. What do you think???? TIRED IN TUPELO.

The Tupelo Public School District decided to “outsource” services to the Fillmore Center, an alternative school in May, 2010. The entire staff was let go, and told to apply for available positions elsewhere in the district.  Just one year later, the district dumped the outsourced company, and opened up all the jobs at Fillmore. The former director of the program was re-hired, but his assistant, Mary Alice Stennett, was not. Ms. Stennett, then 66 years old, with beaucoup administrative certifications and 38 years of experience (20 in Tupelo) inquired about a job at Fillmore, and formally applied for seven other positions that were available within the district.

She got two interviews, and no offers.  Each of the seven jobs went to someone much younger.  Ms. Stennett also noticed that none of the four oldest employees from Fillmore found fulltime work anywhere in the district.  She sued, alleging age discrimination.

The federal district court tossed the case out, granting summary judgment in favor of the district. The 5th Circuit reversed, and its ruling is a must read for HR directors.

The court held that Ms. Stennett had established a “prima facie” case, and supplemented that with sufficient evidence to cast serious doubt on the district’s claim that age had nothing to do with it.  The “prima facie” part of this is not too hard to establish.  Ms. Stennett had to show that 1) she was rejected for a job that she applied for; 2) she was qualified for the job; 3) she was over 40; and 4) they hired someone “substantially younger.”  Ms. Stennett made her “prima facie” case seven times, based on the seven open jobs she did not get.

On top of that, the court cited four factors that cast doubt on the district’s position. First, Ms. Stennett produced “comparatively exemplary qualifications” for the seven jobs. The court cited her three advanced degrees, four administrative and teaching certifications, 38 years of experience and 20 within Tupelo. The court concluded that “measured in terms of education and experience, Stennett was more qualified than each of the successful younger applicants, except one.”

Second, the court noted with emphasis the district’s refusal to even interview Ms. Stennett for five of the seven jobs.  Given her experience and credentials, this did not appear to make sense.

Third, the court observed that the district explained its decisions based on criteria that was not listed in the job postings. For example, one principal noted that she favored another applicant over Ms. Stennett because of the applicant’s background in STEM. The job posting said nothing about that.

Fourth, the court noted that Ms. Stennett was just one of four old fogeys at Fillmore who did not land another fulltime job.

Ms. Stennett has not won her lawsuit. But her victory at the 5th Circuit, reversing the lower court’s decision in favor of the district, certainly moves her in the right direction, jacks up the cost of an out of court settlement.

For people involved in the hiring process, this is a great case study. The case is Stennett v. Tupelo Public School District, decided by the 5th Circuit on July 30, 2015.  You can find it at 2015 WL 4569205.



Dear Dawg: I’m 64 and got fired by the school district last year.  Now they have gone and replaced me with a young fella.  He’s 63. Do I have an Age Discrimination case?  NOT THAT OLD. 

DEAR NOT THAT OLD:  We’d have to know a lot more about your situation before we’d express any opinion about that. But let’s just start out by saying it would probably be a stretch to convince a court that the school was motivated by age when they replaced an elderly 64-year old with a spring chicken of 63.

This issue came up in a case recently decided by the Houston Court of Appeals.  A charter school teacher was let go, and she alleged that it was based on age. She was 64.  The majority of the Court held that she failed to allege a “prima facie” case because she admitted that she was replaced by a 50-year old.   The Court said that a prima facie case requires allegations to show four critical facts: 1) that you are older than 40; 2) that you are qualified for the job; 3) that your employment was terminated; and 4) that you were replaced by someone younger than 40, or that similarly situated people were treated differently.

The teacher had no problem with the first three factors, but she lost her case based on the 4th factor.  Since her replacement was 50, rather than 39 or younger, the case was doomed to failure.

A dissenting judge asserted that the majority got it wrong.  He cited a Texas Supreme Court case that said the 4th factor was not about being under 40—it was about being younger than the plaintiff. See Mission CISD v. Garcia, 372 S.W.3d 629 (Tex. 2012).  Thus the dissenting judge said that the teacher alleged a prima facie case, and should have been allowed to proceed with her case.

Even if the plaintiff had gotten past that “prima facie” hurdle she would have borne the burden of proving that age was the motivating factor in the termination decision. So to get back to your question, we think that burden of proof would be particularly difficult if the age differential was just one year.

The case is Rosenberg v. KIPP, Inc.  decided by the Court of Appeals for Houston, the 14th District, on January 29, 2015.  We found it at 2015 WL 410454.