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The 9th U.S. Circuit Court of Appeals on Monday tossed a discrimination suit brought by former Quaker Oats Co. employees who claimed that a reorganization left older workers out in the cold. In upholding a lower court’s entry of summary judgment, a divided three-judge panel dismissed a statistical analysis showing that during a reduction in force, the company fired workers over age 40 at twice the rate of those under 40. The court also rejected as immaterial an Equal Employment Opportunity Commission finding that Quaker had violated the Age Discrimination in Employment Act, as well as a disparate impact claim that the court said was procedurally flawed. “[The plaintiffs] did not move to amend their complaints to add the disparate impact theory of liability until their reply to Quaker’s motion for summary judgment,” wrote Judge Diarmuid O’Scannlain for the majority. “Despite having hired a statistical expert years before the summary judgment motion and having received the first statistical report noting the disparities between the retention order of older and younger employees over a year before filing for summary judgment, the employees never moved to amend their complaint.” O’Scannlain was joined in Coleman v. The Quaker Oats Co., 00 C.D.O.S. 9270, by Senior Judge William Canby, while Senior Judge Betty Fletcher dissented. “The majority blinds itself to our own circuit precedent and what all the parties knew this case was about in refusing to look at disparate impact,” Fletcher wrote. In 1993, Quaker began to slash its work force, retaining people for higher-end marketing and analytical jobs while contracting out the work formerly done by field operatives, including routine checks of stores to make sure the company’s product was being displayed properly. To assess who would be retained, Quaker scored its employees with a system that emphasized workers with analytical skills. Several longtime employees were fired, including three who later filed suit in a federal district court in Phoenix. Statisticians noted that many more older workers were adversely affected by the test. But the 9th Circuit held that crunching numbers isn’t enough to sustain a case, saying other factors can explain the disparity, such as educational levels. “[Plaintiff Jerry] Jeney produced evidence showing that the likelihood that this disparity would occur by chance was three in 100 billion,” O’Scannlain wrote. “The problem, however, is that Quaker never contends that the disparity occurred by chance; just that it did not occur for discriminatory reasons.” Defense lawyers were happy with what amounted to a decisive victory. “That’s been said many times in many cases, but I think it’s repeated clearly here,” said defense lawyer Martin Harris, a partner at Chicago’s Connelly Sheehan Moran. “That type of simplistic analysis, that’s very popular among plaintiffs’ attorneys and experts, isn’t enough.” The court also held that an EEOC reasonable cause finding doesn’t create a factual dispute that would survive a motion for summary judgment. O’Scannlain noted in his opinion that even cases that the EEOC brings sometimes don’t survive a motion for summary judgment. “If the EEOC’s suing is insufficient to create a genuine issue of material fact, then, a priori, a conclusory EEOC reasonable cause letter, at least by itself, does not create an issue of material fact,” O’Scannlain wrote. Said Harris: “It’s a good statement of a rule that a number of other circuits have already adopted.” Plaintiffs’ attorneys did not return a phone call seeking comment.

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