Skip to main content

Pascal and Pretext: Court Reinstates Age Discrimination Claim

By Robyn Hagan Cain on December 20, 2012 | Last updated on March 21, 2019

The Eleventh Circuit Court of Appeals is sending us into the new year with Pascal quotes and contradictions.

This week, the appellate court concluded that an employer’s contradictory statements were enough to support a pretext argument. Judge Adalberto Jordan wrote, “It may be that a ‘contradiction is not a sign of falsity, nor the lack of contradiction a sign of truth’ … But under the Age Discrimination in Employment Act, a contradiction of the employer’s proffered reason for the termination of an employee is sometimes enough, when combined with other evidence, to allow a jury to find that the firing was the result of unlawful discrimination.”

Barbara Kragor began working for Takeda Pharmaceuticals in 1999. In 2008, Takeda began investigating whether Kragor had provided a doctor with improper gifts and benefits. A few months later, Dan Orlando, a Takeda vice-president, terminated Kragor because she had violated, or at a minimum had engaged in behavior that appeared to violate, the company's conduct policies.

Kragor, who was 49 years old at the time of the termination, believed that she had been the victim of age discrimination, and sued.

The district court granted summary judgment in favor of Takeda because Kragor did not present sufficient evidence from which a jury could conclude that Takeda's nondiscriminatory reason for the termination, that Kragor appeared to violate the company's conduct policies, was pretextual.

The Eleventh Circuit Court of Appeals, however, found that Orlando's statements about Kragor suggested otherwise.

As you well know, summary judgment is appropriate only when "there is no genuine dispute as to any material fact." A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."

Here, there was no dispute that Kragor established a prima facie case of age discrimination under the ADEA: she was a member of the protected age group; she was discharged by Takeda; she was replaced by a younger person who was outside the protected age group; and she was qualified for the position from which she was terminated.

It was also undisputed that Takeda presented evidence of a legitimate, nondiscriminatory reason for terminating her: The company said that Kragor appeared to violate its policies governing employee interactions with doctors.

The narrow issue on appeal was whether Kragor presented sufficient evidence of pretext to create a genuine issue of material fact as to whether Takeda unlawfully discriminated against her because of her age.

Here, Orlando later said that Kragor was an exceptional employee who had done nothing wrong, had done everything right, and should not have been fired. The Eleventh Circuit agreed with Kragor that such evidence, when combined with a prima facie case, was enough to send the age discrimination claim to a jury.

Related Resources:

Copied to clipboard