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Comparable Employee Must be Close Match for Age Discrim Claim

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By Casey C. Sullivan, Esq. on May 07, 2015 3:53 PM

For a claim of age discrimination to withstand summary judgment, a plaintiff must show that he or she was treated differently from similarly, very similarly, situated employees because of his or her age, the Fifth Circuit reminded us yesterday. While those similar employees don't have to be identical they have to be fairly close.

James Hinga, a machinist who was let go after a recall, couldn't find a close enough match to support his age discrimination claim. Though he pointed to three younger employees, the fact that they had different roles and different discipline histories kept them from being appropriate comparators.

How Hinga Got Fired

Hinga worked as a machinist, manufacturing actuators for MIC Group. MIC's actuators control the flow of liquids and gasses. Since escaped gas can have explosive results, industry standards require exact specifications. Some MIC actuators didn't meet those specifications, the company discovered after a complaint. In particular, some had "lapping" issues -- the casing was not lapped or flattened enough at the machine's seams and could have permitted a spark to enter.

MIC recalled 662 actuators and, when inspecting those recalled items, found lapping violations in all of them. The company's investigation placed the blame on Hinga, who was 76 at the time, and a second employee. Both were asked to resign and did. Three years later, Hinga sued.

Close, But Not a Match

Hinga lost on summary judgment, with the district court ruling that he had failed to plead a prima facie case as he did not put forward any evidence of similarly situated employees who were treated differently. Under the Age Discrimination in Employment Act, a plaintiff must show that age was the "but-for" cause of his adverse treatment.

Hinga argued that he would not have been fired but for his age, since he was treated less favorably than "nearly identical" employees. Hinga alleged that three younger employees had committed similar violations without discharge. However, to be considered similarly situated, the Fifth Circuit notes, a employees must share similar responsibilities, share a supervisor and have comparable violation histories. Most importantly, the workers put forth by Hinga had different jobs -- Hinga was a machinist, they all worked on assembly.

Hinga's lapping errors and subsequent recall cost the company well over $100,000. None of the other employees had any history of reprimands, though one had been told to "pay more attention" to quality checks.

The case doesn't break any new ground in anti-discrimination law, but it does highlight the difficulty facing plaintiffs who allege discrimination but cannot find a directly analogous comparator.

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