Blog Post

Berube v. Great Atlantic & Pacific Tea Company, Inc., No. 08-1229 (2d Cir. Oct. 15, 2009)

Posted by: Paul Mollica
October 15, 2009
Topic: Daily Developments in EEO Law

At least in the Second Circuit, the indirect/burden-shifting method of proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), presently appears safe under the ADEA.

Berube v. Great Atlantic & Pacific Tea Company, Inc., No. 08-1229 (2d Cir. Oct. 15, 2009): Although Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009) -- the decision that rejected extension of the Price Waterhouse mixed-motive method of proof to the ADEA -- is said to be casting a shadow on all ADEA cases, so far no U.S. Court of Appeals has been willing to go so far as to say that McDonnell Douglas does not apply to ADEA cases. We've seen good decisions so far from Third, Sixth, Seventh, and Tenth all continuing to apply standard methods of proof to ADEA cases. This unpublished Second Circuit decision-- though it does not cite Gross -- continues in that vein.

The court reversed summary judgment in a decision where the district court held that the employee failed to make out his prima facie case in an ADEA termination case. The issue came down to whether the employee identified comparable, younger employees who treated less severely than he was on a disciplinary matter. The district court believed that the employee had to show that the disciplinary actions were for the same violations, but the panel holds instead that the violations only need to be of "comparable seriousness."

The panel writes that "Berube identifies at least four comparators, Brian Badlowski, Ryan Fleet, Sid Prasad, and Frank Sengotta, who were liquor store managers younger than he and who were cited for violating A&P's workplace rules around the same time plaintiff was fired. . . . " It then shows how a jury could weigh the facts:

"Berube need only demonstrate that the conduct for which the comparators were disciplined was of 'comparable seriousness' to his recordkeeping transgressions. [Cite.] There are certainly differences between the evinced conduct and that of Berube: Badlowski had a smaller invoice discrepancy and Fleet and Prasad were mostly cited for being 'sloppy,' while Sengotta's larger inventory discrepancy may have been partially due to the conduct of coworkers. Yet these differences are not so significant that a reasonable juror would be precluded from deciding that these employees engaged in conduct of comparable seriousness. Fleet and Prasad's messiness resulted in the loss of 'Rip logs' used to track the store's performance, much like Berube's invoices. To determine relative severity of conduct between Berube and Badlowski, it is difficult to tell whether the $2,300 discrepancy in a single week of Badlowski's invoices should be compared to the $15,000 swing in Berube's 'inventory,' or rather to the $1,395.97 discrepancy reflected in random invoices selected from a month of Berube's records. As for Sengotta, even if other co-managers were partially responsible he was still the only store manager at a store with a $95,000 short inventory, making his conduct facially similar to if not more serious than Berube's. This is a sufficient showing to meet the minimal burden imposed by McDonnell Douglas's first step. We express no view as to steps two and three, which the district court did not reach."

Practitioners in the Second Circuit for the time being have authority that McDonnell Douglas remains the standard for individual, disparate treatment cases.