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Federal Appeals Court Refuses to Allow Worker Alleging Age Bias His Day in Court

AARP’s friend-of-the-court brief supported an older worker alleging age discrimination in the loss of his television station job.


Jerry Sander worked at a television station in Kentucky from 1981 to 2008. In 2004 (at the age of 58) he had secured an eight-year contract and a promotion to senior reporter, and he was known for his reports on election and medical topics. Two years later, under a new supervisor, he had been removed from those topics, his title was removed and he was assigned to a different shift.  Sander said that his supervisor repeatedly asked about retirement plans, referred to him as “old school” or “old” and made comments indicating he was “ashamed of having gray-haired reporters on his staff.”

After an incident where Sanders says he was humiliated in front of the station staff and left the newsroom, hinting that he might be quitting in the future, he was informed that his “resignation” had been accepted. Sanders filed a lawsuit alleging violations of the federal Age Discrimination in Employment Act (ADEA) and a similar state law. A trial court dismissed his case, finding voluntary departure and disagreeing that he had been replaced with a younger worker since that worker could have been filling slots left by others. Sanders appealed the summary dismissal.

A panel of the U.S. Court of Appeals for the Sixth Circuit split 2-1 in upholding both of the lower court’s finding. Dissenting Judge Merritt pointed out that the parties’ stories diverged on key issues and therefore a jury trial was proper and summary dismissal wrong, citing the differences in the two stories and noting that “the reason we have juries in our civil and criminal cases is to resolve disputes based on conflicting inferences and disputes concerning intent.” Sanders asked for a rehearing by the full 6th Circuit.

AARP’s brief, filed by attorneys with AARP Foundation Litigation, supported the rehearing, arguing that Sander should have the opportunity to have a jury hear the different stories and assess the evidence. It noted that if Sanders could prove he had not intended to quit or if he could prove that age discrimination was a motivating factor, an ADEA claim was proper.  AARP’s brief also argued that the panel had used an improper standard and that under precedent, Sander did not need to show that age discrimination was the only motivation in the termination, but that it was one of the motivating factors

The 6th Circuit declined to review the panel’s decision.

What’s at Stake

There is a tendency in many federal courts to dismiss evidence of age discrimination in the workplace. It is very rare to find a “smoking gun” these days wherein an employer directly makes comments about age in making employment decisions, so it is all the more important that the facts in a case be fully aired and a full hearing be held on the merits of a dispute.

Case Status

The U.S. Court of Appeals for the 6th Circuit denied a rehearing of Sander v. Gray Television Group, Inc.

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