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Loss of confidence, not age or gender, was cause of attorney’s discharge

By Brandi O. Brown, J.D.

A female attorney in her 60s, who was employed as Deputy General Counsel for Amtrak—and who alleged that it was her age and gender rather than her reputation as a “naysayer” and the employer’s loss of confidence in her work that led to her discharge—was unable to revive her DCHRA discrimination claims on appeal to the D.C. Circuit. Although she was ultimately replaced with a much younger, less experienced male, the appeals court, in agreement with the court below, found no evidence that would allow a reasonable jury to conclude it was her protected characteristics, rather than the employer’s given reason, that led to her termination. The district court’s grant of summary judgment was affirmed (Ranowsky v. National Railroad Passenger Corp., August 14, 2018, Pillard, C.).

New leadership. The Office of the Inspector General for Amtrak, an autonomous body whose mission is to provide oversight, includes an Office of General Counsel. The employee was Deputy General Counsel in that office when new management, including a new Inspector General and a new Deputy Inspector General, took charge in 2009. Five years later, shortly after the Deputy Inspector General took over for his retiring predecessor, she was fired. According to the employer, this was part of an ongoing effort to correct problems identified by the new leadership, which led to dismissal of two-thirds of the staff between 2010 and 2015. The employee’s supervisor, who was General Counsel, was also fired. According to the Inspector General, the employee was selected for termination because he had developed reservations about her work, including her communication style and demeanor, and he had lost confidence in her. In particular, he and his team appeared to resent that she was a “naysayer,” and he complained that she “kept raising obstacles” to the things he wanted to accomplished.

Summary judgment granted. The employee filed a charge with the EEOC. In February 2015, a new General Counsel was hired. In the meantime, a recent law school graduate from another department was brought in to pick up the employee’s work. After the new General Counsel was brought in, he hired a male Deputy General Counsel who had nine years of experience. The employee had applied for the new position but was not interviewed. She also applied for a contract attorney position but was not interviewed. She filed suit in 2015 against the employer and individual defendants. After discovery, the defendants moved for, and were granted, summary judgment. The employee appealed.

No pretext evidence. Considering the age and sex discrimination claims as one, the appeals court affirmed. The dispute in this case, the court explained, focused on whether the employee produced sufficient evidence to allow a reasonable jury to find that the employer’s given nondiscriminatory reason was not the real reason for her discharge. The appeals court agreed with the district court that she had not met that requirement. The grounds offered by the employee as evidence that the given reason was pretextual were not supported by the evidence, the court explained.

Concerns, not capabilities. The employee’s attempt to rely on the positive performance review she received just weeks before her termination did not raise a material factual dispute. Although the decisionmaker had signed off on the performance review, which was written by the General Counsel, that fact did not suffice to raise an inference of pretext. The positive performance reviews were made by the General Counsel and his positive reviews of his deputy did not conflict with the Inspector General’s lack of confidence in her. The Inspector General was entitled to discharge the employee for any lawful reason or for no reason—she was an at-will employee. In fact, he dismissed many employees across the office and on the same day that he fired the employee, he also fired her boss. As a client, he and his office were “entitled to select lawyers in whom they feel they can place their trust and confidence.” While the employee appeared to defend her decisions to push back, the court explained that there was no need to “gainsay” her capabilities in order to conclude that nothing in the record contradicted the reason given for her discharge—that the Inspector General and his assistants had concerns and reservations about her based on her reputation as a “naysayer” and that they lacked confidence in her.

Different decisionmaker. Furthermore, the qualification disparity between the employee and her replacements, including the interim replacement, failed to raise a pretext issue. The temporary replacement was just there to fill the spot until a new General Counsel could be hired. The new General Counsel then hired a new Deputy. The latter decision was made without the influence of the Inspector General and the employee pointed to no evidence from which a jury could conclude those decisions were based on age bias. Also, the employee’s contention that there was general age bias, based on the employer’s efforts at succession planning, was evidence only of routine business planning and did not raise an inference of discrimination.

No shift. Also rejected was the employee’s argument that the employer offered “shifting explanations” for its decision. The employee based her argument on the fact that her dismissal was coded as a “reduction in force” by the head of human resources. It was undisputed, however, that the HR did so to show the employee was eligible for severance pay. The explanation given by the decisionmaker, however, had “remained entirely consistent” throughout.

The court also concluded that summary judgment was appropriate on the retaliation and aiding and abetting claims. The appeals court also affirmed a decision by the district court to deny sanctions based on Amtrak’s failure to appear at a disputed Rule 30(b)(6) deposition.