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The 5th U.S. Circuit Court of Appeals made it a whole lot easier to get age discrimination suits in front of juries recently when it ruled 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. Machinchick v. PB Power Inc., decided on Jan. 24, is the latest in a series of opinions from the 5th Circuit that favor employees in discrimination cases, two employment lawyers say. The opinion sets out the following facts: 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 by implementing a “cradle-to-grave” strategy. As part of that plan, employees such as Machinchick were required to generate new business clients and shepherd those prospects beyond the sales process. PB Power also released a business plan in 2002 that stated its intentions 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,” according to the opinion. Machinchick’s supervisor also announced his desire to “strategically hire some younger engineers and designers to support and be mentored by the current staff.” But the supervisor also 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,” according to the opinion. Machinchick’s supervisor informed him that he was being terminated. But Machinchick, then 63, 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 later filed an employment discrimination suit in state district court, alleging he was wrongfully terminated in violation of the Age Discrimination in Employment Act (ADEA) of 1967. PB Power denied the claims and had the case removed to a U.S. District Court in Houston. PB Power contended that it had nondiscriminatory reasons for terminating Machinchick, including that he refused to adapt to the company’s new business strategy, according to the opinion. U.S. District Judge Lynn Hughes eventually granted PB Power’s summary judgment motion, and Machinchick appealed to the 5th Circuit. In the 3-0 opinion, 5th Circuit Judge Patrick Higginbotham found that Machinchick had met his burden for overcoming the defendant’s summary judgment motion. The 5th Circuit decision reverses Hughes’ summary judgment ruling and remands the case for trial. “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,” wrote Higginbotham in an opinion joined by Judges Jerry Smith and Fortunato “Pete” Benavides. “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. ON TO TRIAL Scott Fiddler, a Houston solo who represents Machinchick, says the 5th Circuit ruling makes the ADEA consistent with other courts’ Title VII 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 says. Daryl G. Dursum, a partner in Houston’s Adams & Reese who represents PB Power, did not return two telephone calls seeking comment before press time on Feb. 3. But Mike Maslanka, managing partner of the Dallas office of Ford & Harrison who regularly defends companies in employment cases, says 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 says. “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.” “Part of this case bothers me a great deal,” Maslanka says. “The 5th Circuit talks about the inability to adapt, and being inflexible is evidence of age discrimination. Well, you can say that about a 21-year-old slacker, too.” Fiddler says Machinchick, who has yet to find other work, is “excited about the opportunity to go to trial.”

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