Defeating Age Discrimination Claims

By: Storrs Downey

Employers may be successful in defending discrimination claims by providing evidence that similarly situated employees were not treated more favorably than the plaintiff.

In McDaniel v. Progress Rail Locomotive, Inc., No. 18-3565 (7th Cir. 10/9/19), plaintiff was a 55 year-old material specialist for a diesel-electric locomotive and diesel-powered engine manufacturer. He was terminated in March 2017 for violating a company policy prohibiting employees from lifting over 35 lbs. without a mechanical lift device.

Plaintiff filed a claim with the EEOC alleging he was fired because of his age and subsequently retaliated against for complaining that he was treated unfairly because of his age. He later filed suit in federal district court.

The plaintiff failed to present evidence that fellow material handlers who were under 40 years old were treated more favorably than him.

On this basis alone, the district court found plaintiff failed to establish a viable claim for age discrimination or retaliation; on appeal, the 7th Circuit agreed.

Practice Tip: Employers can potentially avoid viable discrimination claims (whether based on age, race, disability or some other protected class), by treating employees in a consistent and similar manner. Providing your defense counsel with evidence that plaintiff(s) were not treated less favorably than their fellow employees is important.

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