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In ruling that a plaintiff can defeat an employer’s summary judgment motion if he can show that an “illegitimate motive” played a role in his firing, the 5th U.S. Circuit Court of Appeals has made it a whole lot easier to get age discrimination suits in front of juries. Machinchick v. PB Power Inc., No. 04-20418. Writing for a unanimous panel, Judge Patrick Higginbotham said: “In a mixed motive case involving an employment decision based on a ‘mixture of legitimate and illegitimate motives,’ the plaintiff need only prove that the illegitimate motive was a motivating factor in the decision.” According to the opinion, PB Power Inc. hired Fred Machinchick in 1996 to serve as director of business development; Machinchick was to develop new energy-sector clients for the company. He received excellent performance reviews and was promoted to vice president in 1998. But in 2002, the New York-based engineering services company changed its business philosophy: Employees such as Machinchick were now required to generate new business clients and shepherd those prospects beyond the sales process. PB Power released a business plan in 2002 that stated its intention to “hand-pick employees whose mindset resides [sic] in the 21st Century, who are highly qualified to do their job, and who are motivated toward the success of the company.” Machinchick’s supervisor announced his desire to “strategically hire some younger engineers and designers to support and be mentored by the current staff.” The supervisor e-mailed a message to the company’s human resources department listing Machinchick’s alleged shortcomings, including a “low motivation to adapt to a rapidly changing business environment.” Machinchick, then 63, was terminated. However, he later agreed to stay in his position for a few weeks so he could assist in turning over his key client base to a 42-year-old employee, according to the opinion. Machinchick filed an employment discrimination suit in state district court, alleging that he was wrongfully terminated in violation of the Age Discrimination in Employment Act (ADEA) of 1967. PB Power contended that it had nondiscriminatory reasons for terminating Machinchick, including refusal to adapt to the company’s new business strategy, and had the case removed to a federal court in Houston. The court granted PB Power’s summary judgment motion, and Machinchick appealed to the 5th Circuit. Now the 5th Circuit has reversed and remanded the case for trial. According to Higginbotham, Machinchick had met his burden for overcoming the employer’s summary judgment motion. “When considered as a whole, we find that the evidence presented by Machinchick would allow a reasonable jury to find that his age was a motivating factor in PB Power’s decision to terminate him,” Higginbotham wrote. According to Scott Fiddler, a Houston solo who represents Machinchick, the 5th Circuit ruling makes the ADEA consistent with other courts’ Title VII of the 1964 Civil Rights Act appellate decisions that have held that for a plaintiff to overcome an employer’s summary judgment motion, he must only show that a single illegitimate motive contributed to his termination. “It does away with the plaintiff’s obligation to show that the reason for the discharge was a pretext,” Fiddler said. But Mike Maslanka, managing partner of the Dallas office of Atlanta-based Ford & Harrison who regularly defends companies in employment cases, said that Machinchick is just one in a series of 5th Circuit opinions that favors employees. “It’s important because it says that all an employee has to do is show the discrimination was a factor and not the principal factor,” Maslanka said. “Under this case, an employer can have 100 reasons to do what they did, 99 of them valid and one of them discriminatory, and the employee still gets to go to the jury.”

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