In a 2-1 unpublished decision, in Adam v. Kempthorne (9th Cir. 2008) 04-17458, the Ninth Circuit upheld the lower court's decision rejecting plaintiff scientists' Age Discrimination in Employment Act ("ADEA") and other federal claims against the U.S. Geological Survey ("USGS") where direct evidence of age-based animus permeated the work environment. Some of the evidence from the record included the following:
* The Director of the USGS, Dr. Gordon Eaton, asking an audience, "What is the difference between Jurassic Park and the Geological Division of the Geologic Survey?"and responding with the answer, "One is an amusement park filled with dinosaurs and the other is a movie." 
* A poster about a meeting to discuss the USGS' workforce reduction with a cartoon caption stating "You gotta help me, Mom...This assignment is due tomorrow, and Gramps doesn't understand the new tricks." Click on the graphic to the right to see this poster.
* A 1993 official report explaining the USGS' "Vision for the 21st Century" describing that "[s]ome segments of the USGS currently are suffering from an aging, high-grade workforce", which is "a critical problem that must be addressed...."
Despite such direct evidence of age-based animus, the court determined that the decision makers did not part take in any of the age-based discriminatory comments. Instead, the court concluded the plaintiff scientists were laid off due to a legitimate reduction in force. The court, however, did award two of the plaintiffs a total of $340,000 in damages.
The original claim was filed about a decade ago in 1998, and involved sixteen scientists in their 50s and 60s. The case went to trial in 2003 and plaintiffs subsequently appealed the federal district court's decision on several grounds. One of the grounds for appeal was that the use of the McDonnell Douglas v. Green (1973) 411 U.S. 792, framework was inappropriate since direct evidence of age discrimination existed. While agreeing with this assertion, the court determined that the method of analysis made no difference under the facts. Despite the use of the McDonnell Douglas framework, the court held that the critical issue of whether the employees proved intentional discrimination was addressed by the lower court and therefore had satisfied the requisite burden.
Judge Stephen Reinhardt dissented in part, stating that he could not acquiesce to the majority's finding that "there is no evidence that the relevant decision makers were acting in accordance with age-based discriminatory animus. (Click here to read Judge Reinhardt's dissent.) According to a San Francisco Chronicle article, the lawyer for the discharged scientist employees, Mary Dryovage, intends to ask the full Ninth Circuit appeals court for a rehearing.
This decision demonstrates how tenuous proving a prima facie case can be for plaintiffs in employment discrimination cases even where direct evidence exits. It remains to be seem exactly what level of direct evidence is sufficient to show that decision makers' adverse employment actions are influenced by age-based animus when they do not directly participate in discriminatory activities or comments.
-- Mythily Sivarajah
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