Statistical and Comparative Evidence of Age Discrimination and Supervisor?s Failure to Follow Company Policy Making Layoff Selections Not Sufficient Evidence of Pretext

The employees in this case were four Latino seasonal farm workers.?? ?They worked for a commercial broccoli and melon grower. ?Workers are? periodically? laid? off? in? seasonal? agriculture. The plaintiffs claimed they were selected for lay- off ?because ?of ?their ?ages.???? The ?district ?court granted summary judgment to the employer.?? On appeal the panel ruled that one of the plaintiffs could not make out a prima facie case because no jury could find he was satisfactorily performing his job ?due ?to ?his ?admitted ?violations ?of? Company rules.?? There was evidence that other employees had?? violated?? the?? same?? rules?? but?? were?? not disciplined. ?The panel?s holding is clearly wrong and would eviscerate any discriminatory discipline case. ?Also troubling is the panel?s seemingly high threshold for proof of a prima facie case, although it held that the three remaining plaintiffs met the standard. ?The court looked to statistical evidence showing a pattern of terminating older workers as evidence and the plaintiffs? superior qualifications compared with their replacements as evidence of a prima facie case but not evidence of pretext. Therefore the panel accepted the employer?s claim that it laid-off two of the plaintiffs because one had negligently caused damage to the employer?s property? and? there? was? no? need? for? the? other?s skills.? ?The court did not consider any of the statistical ?or ?comparative ?evidence ?showing ?age?discrimination as evidence of pretext.? ?It also affirmed summary judgment against these two plaintiffs despite its recognition that their supervisor?s admission that he failed to follow the Company handbook was evidence of pretext. The court reversed summary judgment as to the fourth plaintiff because the Company did not explain why he personally was selected for a lay- off. ?Diaz v. Eagle Produce Ltd. P?ship, 521 F.3d?1201 ?(9th?? Cir. ?2008) ?(Smith, ?Canby, ?Larson sitting by design.)