Employment-Sixth Circuit Rules That Plaintiff Did Not Make Out A Case Of Age Discrimination Under ADEA

June 19, 2013

In Marsh v. Associated Estates Realty Corp., No. 12-1594 (6th Cir. 2013), plaintiff Rosemary Marsh ("Marsh") was appealing the district court's order granting summary judgment in favor of defendant Associated Estates Realty Corp. ("AERC"). Marsh sued in the district court after AERC fired her, alleging violations of the Age Discrimination in Employment Act (the "ADEA").

In this case, Marsh was hired as a leasing consultant by AERC in March 2004. Approximately one year later, she voluntarily left her position to pursue employment opportunities elsewhere. She resumed her position with AERC in May 2005. However, Marsh's tenure of employment was shortened when her employment was involuntarily terminated in December of 2007. Marsh was sixty years old when she was initially hired, sixty-one years old when she was rehired, and sixty-three years old when she was terminated. While employed, Marsh had received certain evaluations which were below AERC expectations, and she had violated company policy more than once. Marsh contends that, at the meeting at which she was terminated, it was suggested by an AERC employee that Marsh was getting too old for the job. This suit ensued.

In analyzing the case, the Sixth Circuit Court of Appeals (the "Court") said that, to prevail on an ADEA claim, a plaintiff must prove by a preponderance of the evidence -which may be direct or circumstantial- that age was the "but-for" cause of the challenged employer decision (here the termination). The only evidence of age discrimination here are the suggestions by the AERC employee that Marsh was getting too old. The Court ruled that these suggestions do not constitute direct evidence of age discrimination, primarily since they were made by someone other than a decision maker, or an individual with authority to fire Marsh, at AERC. Also, applying the McDonnell Douglas framework to determine if those suggestions constituted circumstantial evidence of age discrimination, the Court ruled that Marsh failed to meet the requirements of this framework, primarily since AERC rebutted the inference of age discrimination with the evaluations it had made and the violations of company policy it had in its records. As such, given that Marsh had no evidence of age discrimination, the Court concluded that Marsh could not prevail on its ADEA claim, and it affirmed the district court's summary judgment in AERC's favor.