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Age Discrimination Claim Survives Even Though Position Offered to Older Worker

It is well settled that if an employer fires an employee over 40 and replaces him with a younger worker, that fact pattern constitutes evidence of age discrimination. But what if the employer first offers the job to an employee over 50, who declines the offer, and then hires the younger worker. Does that ruin the employee's case?

No, according to a federal court in Washington State. Jonathan Holtz had worked for Skanska USA for over 17 years, most recently as the senior director of learning in charge of developing core training curricula, teaching classes, managing the department budget, and more.

In 2011 he began developing a new learning management system, working with a project manager who reportedly had a "constant struggle" with his performance. The project manager complained to his female supervisor, who was also frustrated with his performance. She allegedly counseled him regularly in 2013 about focusing on one assignment at a time, among other issues, and she took offense when he compared her to an assassin character from the "Kill Bill" movies. Despite all this, Holtz received satisfactory performance reviews and was given the maximum bonus every year possible.

In the summer of 2013, Holtz's supervisor decided to reorganize learning and talent management at the company and the company advertised for a senior manager position that listed all of the Holtz's duties. The supervisor offered the position to a man who was around 50 years of age but he declined the offer. She then offered the job to a 34-year-old woman, who accepted. She did not consider Holtz for the position because he had offended her. Instead, she told the chief of HR that they should terminate the employee and he was terminated at his mid-term review on August 14. Holtz sued for age and sex discrimination.

The company tried to have the case thrown out, claiming other that the fact that the position was offered to a man over the age of 40 was clear indication that no age discrimination was occurring. According to the court, however, there was no precedent supporting an argument that offering the position to someone within the same protected class (a worker over 40) defeats a prima facie case. In any event, the 50 year old potential employee was still 10 years younger than Holtz.

The takeaway: In an age discrimination case, the fact that your job was first offered to a worker who is also over age 40 does not necessarily compromise your case, especially if the substitute worker was still younger than you.

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