Even Confession of Age Discrimination Not Sufficient for Summary Judgment in Favor of Employee

The plaintiff worked for a taxi company.?? The company bought a new insurance program that excluded people over 70 years of age. ?On the day the new policy took effect, the company discharged the plaintiff because it ?no longer had insurance for him. ?At some point, the Company reinstated his employment. ?The plaintiff sued for age discrimination. Both parties moved for summary judgment.?? The district court granted the Company?s motion for summary judgement, and denied the plaintiff?s. ?On appeal, the panel reversed the grant of summary judgment for the employer. The opinion contains some unfortunate language that cases involving direct and circumstantial evidence are analyzed differently. ?On the other hand, it correctly ruled that it can be error for a court to apply McDonnell Douglas Burdine, as it was here. ?By a 2-1 margin, also the panel denied the plaintiff?s motion for summary judgment.?? The majority ruled ?that? it ?was? unclear? that? the? company? had? a? bad motive. ?In dissent, Judge Ferguson argued that the ADEA is violated per se when a company terminates an employee ?because of? age if it relies on a facially discriminatory policy. ?David Enlow v. Salen Keizer Yellow Cab Co., Inc., No. 02-35881 (06/10/04; Alarcon, Ferguson, Rawlinson)