Sixth Circuit upholds dismissal of age discrimination claim
Regina Provenzano sued LCI Holdings, Inc., (the Liz Claiborne Outlets) claiming that she was discriminated against because of her age (she was born in 1958). She had worked for the company for more than a decade and she held a high school diploma and an Associates Degree in retailing. She sued after she was twice passed over for a promotion in favor of a younger person and after she was reduced to a part-time sales associate in a "company-wide restructuring." She pointed to the fact that the later of the two promotions went to a woman who did not have a high school degree (listed in the job description as an apparently mandatory requirement) and to the contemporaneous move by the company to adopt a "younger look" aiming its fashions toward customers of a younger age.The Court of Appeals held that while Provenzano had met the minimal standard of establishing a prima facie case of discrimination, she had not adequately addressed LCI's evidence of a legitimate non-discriminatory motive in bypassing her. The court noted that the Defendant's duty to present evidence of a non-discriminatory motive is merely a burden to present evidence and not a shifting of the burden of persuasion. While Provenzano presented "other evidence" of discrimination (the memo about presenting a more youthful facade and fashions) and a substantial reduction in the age of management employees, this evidence wasn't adequate to establish that the defendant's claimed motive was a pretext for discrimination.
Even though Provenzano showed that the age of supervisory employees in her store was substantially reduced through this process (by more than 10 years for each of three positions), the appellate judges (while theoretically not "weighing the facts"--which would be the jury's province) concluded that under a "factual inquiry [that] proceeds to a new level of specificity" her disciplinary record established a valid basis for choosing the younger management candidate.
The panel also held that while LCI was not required to persuade the court that its proferred motivation was actually its true motivation, Provenzano was required to demonstrate that LCI's claimed explanation was not the "true" reason. The panel weighed the facts (although it claimed not to) and deemed Provenzano's evidence could not persuade a reasonable person that she was "the plainly superior candidate." Finally, the panel concluded that "going for a 30-something look...instead of a 50-year old look" in marketing was not evidence of age discrimination against existing employees.
This case leaves one with the sense that it is further evidence of employees and individuals losing their constitutional right to a jury trial. While the appellate panel may be entirely correct that Provenzano simply lost out to a more attractice candidate for the management position, there is ample evidence to support the opposite conclusion: this was a question for the jury to resolve under our Constitution, but layers of legalese have been relied upon to rationalize the erosion of this right.