Who is “significantly younger” than you?

This week we’ve been reviewing the 5th  Circuit’s decision in Ross v. Judson ISD in which a former principal pursued claims of race, sex, and age discrimination. Today we focus on the age discrimination claim.

To get to first base on this claim, Ms. Ross had to show that she was replaced by someone “significantly younger.”  Now there is an elastic standard!  When we speak of significant age differences, context matters a great deal.  I speak from experience.  I married a woman three years my senior. When we first started dating that seemed like a big deal. Now?  Hah!

Speaking of dating, a friend shared a formula with me for calculating when a dating relationship qualified as “scandalous” due to an age gap.  The formula requires you to take the older person’s age, divide by two, and add six.  It’s “scandalous” if you date someone younger than that.  So if you are 50, steer clear of anyone under 31.  I don’t know if there is any science behind that, but it sorta sounds right, although a little generous toward the older person.

But let us get back to the business of the law. What does “significantly younger” mean under the law?  In this case, the 5th Circuit noted decisions from other circuits that focus on a ten-year gap.  However, the 5th Circuit has no “bright-line rule.”  Dadgummit.  Giving legal advice would be so much easier if the court would adopt a “bright-line rule.”

In the Judson case, the gap was six years.  Ms. Ross was 55 when she lost her job with the district, and her permanent replacement was 49.  Is 49 “significantly younger” than 55?  The court did not answer the question.  Double Dadgummit! Life would be so much easier if courts would answer the questions that they raise!

The court did not answer the question because there was another way to resolve this case. Remember that all this litigating is about establishing a “prima facie” case. Think of that as getting to first base.  Even if you get there, it does not mean you win. It only means that the burden of proof shifts to the other party.  The defendant then carries the burden of asserting legitimate, non-discriminatory reasons for the adverse employment action. If the defendant does that, the burden shifts back to the plaintiff to show that those “reasons” are bullroar, or in legal terminology, a “pretext” to hide the discriminatory intent.

The district asserted beaucoup legitimate, non-discriminatory reasons for Ms. Ross’s nonrenewal.

This was all addressed in the nonrenewal hearing in which the district provided the results of its investigation into financial practices. This included evidence that the principal charged kids money, or allowed faculty to do so, to attend various school events, and to get temporary IDs; that she charged faculty members for wearing jeans; and deposited all this money into a petty cash fund that she used to pay non-school expenses. There was more: a bottle of booze in her car on school property; a report of drunkenness at a school event, and other things.

The court did not establish that any of those charges were true.  The case was not yet at that stage. But the assertion of these legitimate, job-related, non-discriminatory reasons for the nonrenewal of a principal tossed the burden of proof back to the plaintiff.  The court:

Because JISD provided legitimate reasons for the nonrenewal of Ross’s contract, the burden shifted back to Ross to present at least some evidence that JISD’s stated reasons for terminating her employment were pretextual.  Ross fails to do so.

So that was it.  These discrimination cases are like a tennis match, with the ball (the burden of proof) going back and forth between the parties.  When the school hit the ball back over the net, and Ms. Ross failed to hit it back, her case was over.

All of which leads me to point out two things: first, all of your personnel decisions must be based on legitimate, job-related, non-discriminatory and non-retaliatory reasons.  That’s our mantra.  Second, this case required a lot of good lawyering and I’m pleased to let you know that that lawyering came from our firm’s San Antonio office: Katie Payne, Craig Wood, Bob Russo and Jameson Baker.