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Can Discriminatory Remarks Prove A Discriminatory Failure To Hire Case?

Annoyed young male employee argue with nervous old age colleague

Through their decades of experience handling employment discrimination cases, our employment discrimination lawyers in Marion County, Florida know that discriminatory failure to hire cases can be difficult to prove. The inherent difficulty in proving a discriminatory failure to hire case is that job applicants generally have limited personal knowledge or information regarding the circumstances surrounding an employer’s failure to hire them. For example, job applicants generally are not given a reason for the failure to hire, do not know who made the decision not to hire them, do not know the identity of the person ultimately hired, the qualifications of the person ultimately hired, or the reason for selecting the person ultimately hired. Consequently, discriminatory failure to hire cases often require discriminatory remarks which serve to illuminate such otherwise unknown factual information.

In this article, our employment discrimination lawyers in Marion County, Florida explain how the decision in Jaffrey v. PorterCare Adventist Health System, 2017 WL 1230469 (D. Colo. April 4, 2017) illustrates the role discriminatory remarks play in proving a discriminatory failure to hire case.

Discriminatory Failure To Hire Case

In that case, a man named Jaffrey brought a discriminatory failure to hire claim against his prospective employer, PorterCare Adventist Health System (“PorterCare”), pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA protects job applicants and employees from discrimination on the basis of age. Jaffrey, who was seventy-six years old when he filed the lawsuit, alleges that PorterCare did not hire him because of his age in violation of the ADEA.

In 2014, Jaffrey began working as a part-time oncologist at PorterCare’s facility, Mile High Oncology (“MHO”). Soon after his 2014 start date, Jaffrey began negotiating a two-year position at MHO with PorterCare’s agents, Novissimo and LeBlanc. Thought not entirely clear, it appears that these discussions occurred largely in May, June, and July 2014. According to Jaffrey, Novissimo offered him the job on July 8, 2014, despite ongoing negotiations. Jaffrey maintains that the parties had negotiated all essential terms of the agreement, including compensation, signing bonus, work schedule, benefits, length of employment, and coverage at other clinics, and that, upon his return from his July 11, 2014 vacation, a completed contract would be ready for his signature. Conversely, PorterCare contends that the parties had yet to reach an agreement as to Jaffrey’s compensation and signing bonus, his on-call responsibilities, his work schedule, or a 90-day termination provision. According to PorterCare, it is only after the parties reach an agreement on all terms that it offers a contract to the potential employee.

Nevertheless, Jaffrey alleges that, on July 21, 2014, Novissimo and LeBlanc called and informed him that PorterCare was terminating employment negotiations. Jaffrey claims that Novissimo and LeBlanc told him that PorterCare was revoking their offer because the company desired to offer the position to a “younger physician.” Both Novissimo and LeBlanc denied making this statement.

Evidence Of Discriminatory Failure To Hire

PorterCare filed a motion with the trial court seeking dismissal of Jaffrey’s discriminatory failure to hire claim. In moving for dismissal, PorterCare argued that it decided not to hire Jaffrey because the parties failed to reach a mutual agreement not because of Jaffrey’s age. The trial court denied PorterCare’s motion for dismissal and ruled that Jaffrey had presented sufficient evidence to establish that he was not hired because of his age to proceed to a jury trial.

In denying PorterCare’s motion for dismissal, the trial court focused on the alleged age-based discriminatory remark by Novissimo and LeBlanc. The trial court explained that “age-related comments referring directly” to Jaffrey “may support an inference of age discrimination,” so long was Jeffrey could “demonstrate a nexus between the discriminatory statement and the decision not to hire him.” In applying this principle, the trial court observed that “it is undisputed” that Novissimo and LeBlanc “participated in the decision” not to hire Jaffrey. The trial court also pointed out that Jaffrey “testified that the reason given for the decision” not to hire him was that PorterCare “desired to offer the position to a younger physician.” Based on this evidence, the trial court reasoned, Jaffrey had established a causal relationship between the alleged age-related comment and the decision not to hire him. Thus, the trial court concluded that it was for a jury to decide whether PorterCare’s proffered reason for not hiring Jaffrey was a pretext for age discrimination.

Marion County Discrimination Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment discrimination attorneys in Marion County, Florida have litigated employment discrimination cases in Florida courts for more than two decades. If you have been subjected to discrimination in the workplace or have questions about your protection from workplace discrimination under employment discrimination law, please contact our office for a free consultation with our employment discrimination lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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