Is Replacement by An Older Employee Considered Age Discrimination ?
In Greene v. Safeway Stores, Inc. (10th Cir. 1996) 98 F.3d 554, the court reversed a directed verdict in favor of the employer, holding that the plaintiff had presented sufficient evidence that his employment was terminated based upon his age, despite the fact that he was replaced by a person named King, who was older than the plaintiff, and also in the protected class.
The plaintiff presented evidence that in 12 months following the appointment of a new president and chief executive officer, eight top level executives who were over the age of 50 were replaced by younger persons ( id. at pp. 560-561), and the new chief executive officer told the plaintiff when he was discharged that he "didn't fit in with the new culture." ( Id. at p. 561.)
The court explained that "these evidentiary showings altogether raised a fact question for the jury which could justify the trier of fact in disregarding King's status as an older replacement and in nevertheless finding age discrimination." ( Id. at p. 562.)
The court observed that other decisions had also held that "replacement by an older employee has been viewed as not fatal to an age discrimination claim. " (Ibid.; citing Loeb v. Textron, Inc. (1979) 600 F.2d 1003, 1013, fn. 9; Alphin v. Sears, Roebuck & Co. (11th Cir. 1991) 940 F.2d 1497, 1500-1501;
see also Pitre v. Western Elec. Co., Inc. (10th Cir. 1988) 843 F.2d 1262, 1272 [noting that fact that member of the protected class was hired or promoted in place of a title VII plaintiff, "has repeatedly been held insufficient to insulate that employer from liability"]; Douglas v. Anderson (9th Cir. 1981) 656 F.2d 528, 533 [holding that replacement by a older person "will not necessarily foreclose prima facie proof if other direct or circumstantial evidence supports an inference of discrimination"]; Walther v. Lone Star Gas Co. (5th Cir. 1992) 952 F.2d 119, 123.)
Although no California decisions have specifically addressed the question whether under the FEHA (Fair Employment and Housing Act) evidence that a plaintiff is replaced by an older person also in the protected class conclusively precludes an inference of age discrimination, in Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal. App. 4th 1735 [52 Cal. Rptr. 2d 620], the court, in the context of a race discrimination claim, explained that although "proof regarding 'similarly situated' employees outside the protected class . . .. may be one way of raising an inference of intentional discrimination, it is not the only way. . . . to state that a plaintiff may never establish a prima facie case if the plaintiff fails to produce evidence that similarly situated employees outside the protected class were promoted, restricts unfairly the circumstances from which discrimination may be inferred." ( Id. at p. 1755.)
The court concluded: "Although the characteristics of the employee replacing a discharged or demoted employee are certainly relevant in evaluating an employer's motive for an employment decision, we believe those characteristics go to the weight of the evidence rather than its legal sufficiency." ( Id. at p. 1756, italics added.)
This analysis is entirely consistent with the federal decisions we have already discussed. (See also Hersant v. Department of Social Services, supra, 57 Cal. App. 4th 997, 1002-1003, fn. 3 [court observed, in dicta, although plaintiff established a prima facie case by showing among other things that he or she was replaced by a significantly younger person, evidence of replacement by a younger person may not be necessary if the employee offers other evidence "such that a reasonable inference of age discrimination arises"].)