“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects. Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit Judge Robert J. Luck dismissed an assistant county attorney’s claim that he was fired due to age discrimination. The November 2021 2-1 decision in Thompson v. Dekalb County means that the attorney will not be able to present his case in front of a jury, even though strong evidence exists that the county fired him due to his age.
The attorney, Mark Thompson, was suddenly let go in 2015 at age 54.. Several years before, the county had hired a new head attorney, Overtis Brantley. Immediately after her hiring, Brantley held a meeting with the entire county law department where she stated that the county’s leadership was “tired of looking at all these old people” and that she “wanted to hire baby lawyers in the law department.”
In May 2015, Brantley abruptly fired Thompson, telling him that it was due to his withdrawal from a case he had been arguing. Thompson had withdrawn from the case seven months prior with Brantley’s approval, after expressing differences of opinion over what material to include in court filings. However, Thompson’s termination letter did not even mention the withdrawal, stating instead that he was fired for allegedly “hostile” and “arrogant” behavior. Soon after Thompson’s firing, Brantley hired several younger attorneys in their thirties.
Thompson sued the county, alleging that Brantley illegally fired him because of his age, in violation of the Age Discrimination in Employment Act (ADEA). Thompson claimed that the county’s given reasons for firing him were pretextual—only given to cover up the fact that he was fired due to ageism. As evidence, he cited the county’s failure to provide a consistent reason for firing him, the fact that he was well-liked by his co-workers, and that the county replaced him with younger lawyers.
The District Court dismissed Thompson’s claims on summary judgment, without a trial, stating that Brantley’s “‘ageist’ remarks were not directed at Thompson” and that he failed to show specific examples of younger employees being treated better. A divided Eleventh Circuit panel affirmed the lower court’s ruling.
Writing for the majority, Trump Judge Luck stated that because the county gave what he called “legitimate, non-discriminatory reasons” for firing him, Thompson needed to “address the county’sreasons ‘head on and rebut [them].’”
Luck contended that Thompson failed to meet this burden for several reasons. Luck stated that Thompson’s evidence didn’t specifically show that age-related reasons were the cause of his termination. Although Brantley’s given reasons for firing Thompson may have appeared inconsistent, Luck maintained, an employer may fire an employee “so long as its action is not for an unlawful reason.” Therefore, Luck argued, because Thompson didn’t provide sufficient proof that Brantley’s other stated reasons were invalid, his claims should not go to a jury.
Judge Robin Rosenbaum strongly dissented, arguing that Thompson’s case raised questions that should be decided by a jury, not by judges. Rosenbaum stated that Thompson’s consistently positive performance reviews and the fact that the county waited seven months to fire him after his withdrawal from the case led her to question whether either of the explanations the county gave were true. While “a jury could…find Brantley’s explanations credible and reasonable”, Rosenbaum wrote, it is the “jury’s prerogative” and not a court’s to decide such disputed issues of fact. Therefore, the majority erred in immediately dismissing Thompson’s claims.
Age discrimination is a sadly common occurrence in the American workforce, with over three-quarters of American workers saying they have witnessed or experienced it at some point. Brantley’s statements about wanting to hire “baby lawyers,” combined with her aggressive hiring of younger lawyers after firing Thompson, suggest that Thompson’s dismissal may well have been a part of this discriminatory trend.
Due to Trump Judge Luck’s opinion, however, Thompson will never get the opportunity for a jury of his peers to examine whether he was indeed fired due to his age. The decision also sets a troubling precedent in age bias cases that will hurt working people in all the states covered by the Eleventh Circuit (Florida, Georgia, and Alabama). This case underscores the need, as part of our fight for our courts, to ensure that the Senate confirms fair-minded judges who will fairly listen to workers’ claims and preserve their constitutionally guaranteed right to a jury trial.
Note: Andrew Kliewer is a law student fellow at People For the American Way.