Tenth Circuit Finds that a Lack of Direct Evidence Does Not Bar Finding Willful Discrimination under the ADEA

By Jordan Brickman, March 3, 2022

On February 28, 2022, the Tenth Circuit re-affirmed that circumstantial evidence is sufficient to prove pretext of willful discrimination under the Age Discrimination in Employment Act (“ADEA”).[1]  In their claim against United Airlines, Inc. (“United”), two flight attendants alleged that they were targeted and ultimately terminated by United because of their respective ages. At the time of their termination, United claimed that the decision to terminate the attendants was because they were watching videos on duty and failed to follow uniform guidelines, however, at the trial, United changed its initial justification, and instead told the jury its decision to terminate was based on the attendants’ dishonesty and various safety violations committed by the attendants. The attendants capitalized on United’s inconsistencies and presented circumstantial evidence of age discrimination.

 The jury relied upon United’s inconsistencies to find that its testimony was not credible and that the reasons provided were merely a pretext[2] for United’s decision to terminate the attendants.  This initial determination severely disadvantaged United’s attempt to claim that it had legitimate, non-discriminatory reasons for terminating the attendants. By establishing pretext, the attendants were able to largely undermine the credibility of United’s witnesses, essentially negating its attempts to contradict the attendants’ claims of targeted and willful age discrimination.

United appealed the jury verdict, asserting that the attendants failed to produce evidence to prove willful discrimination.  On appeal, United argued that the jury’s verdict improperly relied upon insufficient evidence, as there was no direct evidence of discrimination, only the attendants’ mere speculation that they felt their termination was because of their respective ages. United’s arguments, fail however, as the Tenth Circuit has long held that circumstantial evidence, as presented by the attendants, is sufficient to prove pretext of willful discrimination under the ADEA.[3] The Court went further to explain that “a jury is entitled to infer from [an employer's] pretextual explanations for its actions that it knew its conduct was unlawful and, thus, find the employer acted willfully.” As such, United failed to persuade the Court that the jury erred in finding that it willfully discriminated against the attendants because of their age.

 Takeaway

Under the ADEA, the Tenth Circuit does not require a plaintiff to show an elevated level of proof in establishing that an employer’s adverse action was willful. Instead, a plaintiff may prove willfulness with the same evidence that they used to determine whether the employer violated the ADEA.   The Tenth Circuit’s ruling stresses the importance of employers to maintain well-documented justifications for its employment actions decisions.

[1] Stroup v. United Airlines, Inc., No. 19-1373, 2022 WL 589387, at *11 (10th Cir. Feb. 28, 2022).

[2] Pretext exists when an employer does not honestly represent its reasons for terminating an employee.

[3] The courts have recognized that a plaintiff may use the same evidence in addressing the admittedly distinct inquiries into whether the employer violated the ADEA in the first place, and, if so, whether the employer committed a “willful” violation.