Sufficient Direct Evidence That School District Failed To Renew Bus Driver's Contract Because Of His Age And Not Safety Concerns

In October 1994, the Liberal R-II School District hired George Trout as a school bus driver. At that time, Trout was 66 years old. On April 20, 1998, the District's Board of Education voted 4-1 not to rehire Trout for the following school year. The Board hired three additional bus drivers between the ages of 39 and 43. A 67-year old bus driver was reassigned to drive Trout's former route.

The Board had the sole legal authority to make the District's hiring and firing decisions. Notwithstanding, the District's superintendent, H.G. Gretlein, also had employee responsibilities. During the April 20 board meeting, Gretlein recommended all employment contracts be renewed, including Trout's. Gretlein was the only non-board member present during the Board's closed-door meeting to deny renewal to Trout, but did not participate in the Board's discussion. He was also responsible for informing employees of the Board's decision and indeed informed Trout that the Board had decided not to renew his contract. Gretlein also represented the Board in opposing Trout's application for unemployment benefits.

In May or June 1998 (after the Board's April 20 meeting), Trout alleges he asked Gretlein why he was not going to be employed the following school year and Gretlein said "that the Board thought that [Trout] was too old." Trout also claims Gretlein informed him the Board "felt" he "was too old to drive a bus." Gretlein denies saying Trout was fired because he was too old. The Board members deny age was discussed and deny Trout's age entered into their decision, citing instead safety concerns.

The Equal Employment Opportunity Commission (EEOC) sued the District for violating the Age Discrimination in Employment Act (ADEA). At trial, the District claimed Trout was not rehired because of safety reasons and explained the Board discussed only safety-related issues when deciding not to renew Trout's employment contract. The District provided evidence Trout drove a bus full of children the wrong way on a highway entrance ramp. Trout claimed the ramp's signs were mismarked. The District presented evidence Trout cut off another driver, but Trout claimed another bus driver was involved in that incident. The District also alleged Trout pulled out in front of another driver, but Trout claimed the other driver was mistaken. In the face of evidence showing Trout was an unsafe driver, the EEOC offered evidence that (1) not all Board members knew about all of these safety issues and (2) the District had not removed younger drivers when safety complaints had been lodged against them. The district court granted summary judgment to the District. The EEOC appealed. Finding that the EEOC had provided sufficient direct evidence of age discrimination to create an issue of material fact, the 8th Circuit reversed:

The EEOC has two methods available to prove the District intentionally discriminated against Trout based on his age. First, the EEOC can utilize the Price Waterhouse method by producing direct evidence that age "played a motivating part in [the District's] employment decision." If the EEOC can produce such direct evidence of age discrimination, "the burden then rests with the [District] to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor."

The second method available to the EEOC to prove intentional age discrimination is the well-established McDonnell Douglas three-part burden shifting analysis, which is used solely for cases devoid of direct evidence of discrimination.

Has the EEOC presented direct evidence of discrimination in this case so that the Price Waterhouse standard applies? We believe so.

The Supreme Court has defined direct evidence in the negative by stating that it excludes "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself." This circuit has stated that "direct evidence may include evidence of actions or remarks of the employer that reflect a discriminatory attitude." In addition, "[c]omments which demonstrate a 'discriminatory animus in the decisional process' ... or those uttered by individuals closely involved in employment decisions may constitute direct evidence within the meaning of Price Waterhouse." As we recently stated, "[t]he direct evidence required to shift the burden of proof is evidence of conduct or statements by persons involved in making the employment decision directly manifesting a discriminatory attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude that attitude more likely than not was a motivating factor in the employment decision." Finally, the EEOC "must present evidence showing a specific link between the discriminatory animus and the challenged decision."

We are presented with a troublesome case. Although we recognize the EEOC may not have a particularly strong case for a jury, we are not the jury. Our duty is to view the record in the light most favorable to the EEOC while giving the EEOC the benefit of all reasonable inferences. In doing so, we find genuine issues of material fact such that summary judgment is improper.

Because we hold that the EEOC has presented direct evidence of discrimination, the Price Waterhouse standard applies and we need not address the McDonnell Douglas standard.

Equal Employment Opportunity Comm'n v. Liberal R-II Sch. Dist.

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

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