A civilian DoD employee lost her age-discrimination case last month, even though she successfully proved that her second-line supervisor was biased against older workers. In Jernagin v. McHugh (No. 1:12-cv-1285), the U.S. District Court in Alexandria found that even though Lavina Jernagin established the existence of age bias on the part of her second-line supervisor, she failed to establish a causal nexus between that supervisor’s age bias and another supervisor’s decision to rate Jernagin a “2 out of 5” on a performance appraisal.
Jernagin was employed as a Logistics Management Specialist with the U.S. Army, where she had consistently received “Outstanding” or “Excellent” performance ratings during her 10+ year career. In 2007, when she was nearly 60 years old, Jernagin unexpectedly received a rating of “Fair” (2 out of 5) on her annual review. Prior to this review, Jernagin’s second-line supervisor, Mary Costa, had made several derogatory, age-based comments toward Jernagin and her coworkers, such as asking older employees about their age at initial meetings, asking Jernagin, “are you that old that you can’t remember what I told you to do?” and calling various employees “old timer” and “dinosaur”. Jernagin believed that Costa had ordered her first-line supervisor, Larry Lawson, to give her a low rating due to Costa’s apparent bias against older employees.
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to discriminate against any employee age 40 or older on the basis of the employee’s age. In order to prevail on a cause of action under the ADEA, a plaintiff must prove “but for causation” by a preponderance of the evidence; in other words, the evidence has to show that were it not for the employer’s motive to discriminate against the employee because of his age, the employee would not have suffered the adverse employment action (in this case, the low performance rating).
Following a three-day trial, the district court concluded that the testimony of Jernagin and three of her coworkers regarding Costa’s alleged comments was credible; accordingly, a preponderance of the evidence supported the existence of age bias on the part of Jernagin’s second-line supervisor. Critically, however, it was Jernagin’s first-line supervisor—Lawson, not Costa—who gave her the low rating. The court found that Jernagin failed to establish a causal nexus between Costa’s apparent age bias and Lawson’s decision to rate her a “2”. In fact, the “2” rating was consistent with the first-line supervisor’s interim review, which noted concerns with the timeliness of Jernagin’s work, etc.
This decision highlights an important truth of employment litigation: even if you’re a member of a protected class who has suffered a clearly adverse employment action, it’s not enough to prove merely that your boss is an ageist, sexist, or racist. You must also connect the proverbial dots by showing that your employer’s bias or prejudice was the actual reason behind the unfavorable treatment. This “difficult, but narrow, motivational issue” is often the determining factor in these cases.