A recent 9th Circuit Court of Appeals decision shows just how little a plaintiff must plead to avoid dismissal of an age discrimination case. In Shepard v. Evans and Associates, http://www.ca9.uscourts.gov/datastore/opinions/2012/09/12/11-35164.pdf, the plaintiff’s complaint included the following allegations in support of her age discrimination claim: (1) she was at least forty years old; (2) her performance was satisfactory or better and that she received consistently good performance reviews; (3) she was discharged; and (4) her five younger comparators kept their jobs.
The Oregon District Court granted the employer’s motion to dismiss on the grounds that the employee failed to state a claim. On appeal, the 9th Circuit reversed, finding that the plaintiff’s allegation that her five younger comparators kept their jobs gave rise “to an inference of age discrimination because it plausibly suggests: that [the employer] had a continuing need for the [employee’s] skills and services… and that employees outside plaintiff’s protected class were treated more favorably than the plaintiff.” Based on these conclusions, the 9th Circuit found that the plaintiff had adequately stated a claim for age discrimination and reversed the lower court’s dismissal.
The take-away from this opinion is limited. However, it does serve as a reminder that the 9th Circuit Court of Appeals continues to be extremely “employee friendly” even when the Oregon District Court is not.