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‘Baby Lawyers’ Case to Test Proof Needed for Workplace Age Bias

July 28, 2020, 9:01 AM

Workers suing for age bias under federal law don’t need to show a younger replacement assumed all of their job duties to prevail, a former senior assistant county attorney in Georgia and the EEOC will tell the Eleventh Circuit today.

The test the U.S. Supreme Court established for evaluating a worker’s prima facie proof of discrimination was intended to be adjusted to the particular circumstances of a given case, Mark Thompson and the Equal Employment Opportunity Commission said in briefs filed with the appeals court. A lower court mistakenly applied the test rigidly in Thompsons’s case, they said.

Thompson worked in a government law office where staffing assignments could be and were reshuffled based on need, the EEOC said.

The “practical realities” of that workplace don’t mean the next lawyer DeKalb County hired, three months after firing Thompson, didn’t replace him just because the new lawyer wasn’t assigned Thompson’s former caseload, the agency said.

Thompson was 54 when county attorney Overtis Brantley fired him. The next lawyer Brantley hired was 30, the agency says.

A lower court adhered to “a hyper-stringent definition of ‘replacement’” in finding he failed to show the “younger replacement” needed to prove an Age Discrimination in Employment Act claim, Thompson said. He seeks reinstatement of his lawsuit.

Requiring proof a younger worker took over an older worker’s caseload could lessen the ADEA obligations of law offices, consultants, and similar project-based employers by weakening one of the ways age-bias plaintiffs can prove unequal treatment relative to a worker outside the protected class, he and the EEOC said.

It could similarly weaken the ADEA’s protections for workers in customer-based sales jobs, Thompson said.

Comments, Hiring, Firings Raise Jury Issue

The lower court also wrongly discounted evidence of Brantley’s ageist comments, including saying the office needed to “fill the nursery” with “baby lawyers,” as “stray remarks,” the EEOC said.

Those comments, and evidence of Brantley’s pattern of firing older lawyers and replacing them with younger ones, could convince a jury age bias prompted Thompson’s discharge after more than 11 years as a county attorney, according to Thompson and the EEOC.

Every lawyer Brantley hired after he left was in their 30s, and all seven of the lawyers over 40 who staffed the 15-attorney office when Brantley arrived in 2013 soon either resigned, were fired, or left, Thompson said.

Office Also Needed Junior Lawyers

But according to the county, that turnover was due to Brantley’s recognition when she assumed the helm that the office didn’t have any junior-level attorneys.

So she sought to bring in lesser-experienced lawyers to perform entry-level assignments and team with the existing crew of veteran attorneys, the county said.

The majority of Brantley’s hires were entry-level assistant county attorneys, not senior ACAs like Thompson, it said. In 2015, the year Thompson was fired, the office had 10 lawyers or staffers who were 49 or older, including the 61-year-old Brantley and a 72-year-old attorney, the county said.

Thompson left Brantley no choice but to fire him when he began behaving antagonistically and unprofessionally after disagreeing with a strategic litigation decision in a case he was handling, the county said. Brantley, a top deputy, and outside counsel all backed that strategy and Thompson showed he wasn’t a team player by challenging it and insisting on being allowed to withdraw from the case, the county said.

It was the biggest case he had and his reaction amounted to a “temper tantrum” in Brantley’s view.

A “pattern of arrogant and hostile conduct” ensued and eventually caused her to tell Thompson to look for another job, the county said.

It was only after he failed to set a date for leaving that Brantley terminated Thompson, according to the county.

‘Baby Lawyers’ Comments Innocuous

Brantley’s references to “baby lawyers” were simply her description for less-experienced attorneys, the county said.

Her testimony is backed up by two others in the office, it said.

And simply because Brantley wanted to hire younger attorneys doesn’t mean she wanted to fire older ones, the county said.

That’s borne out by the overall rise in the number of attorneys during Brantley’s tenure from 16 to 21, it said.

That the county’s acting chief executive officer may have remarked on the age of the office’s employees doesn’t matter because he wasn’t involved in the decision to fire Thompson, the county said.

The lower court applied the prima face case test flexibly, not rigidly—Thompson’s evidence just wasn’t enough, it said.

Legare Attwood & Wolfe LLC represents Thompson. Taylor English Duma LLP represents the county. EEOC attorneys in Washington represent the commission.

The case is Thompson v. DeKalb Cty., 11th Cir., No. 19-11260, oral argument 7/28/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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