600 F. App'x 914
5th Cir.2015Background
- Lloyd Flanner, a financial advisor, took FMLA leave for heart surgery (dec 2009), returned April 5, 2010, and resumed prior productivity. He was 59 at return.
- In June 2010 Flanner bought a $25 money order from behind a bank teller line for an attorney’s assistant; management later investigated and suspended him.
- JPMS terminated Flanner on August 9, 2010, citing violation of §6.2 of its Code of Conduct (prohibiting non-nominal loans/borrowing). JPMS filed a FINRA Form U5 describing the discharge as for violating investment-related industry standards.
- Flanner sued under the ADEA (age discrimination), FMLA (retaliation), ADA (disability discrimination), and Louisiana defamation (Form U5 statement). The district court granted summary judgment for JPMS on all claims; Flanner appealed.
- The Fifth Circuit: affirms summary judgment on FMLA and ADA claims; reverses and remands ADEA and defamation claims for trial (genuine disputes of material fact exist on pretext and falsity/privilege abuse).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADEA (age discrimination) — prima facie and pretext | Flanner: replaced by substantially younger employee(s) (one 27 years younger) and proffered reason (Code violation) was pretextual based on inconsistent enforcement | JPMS: legitimate nondiscriminatory reason — violation of §6.2; replacements not substantially younger to infer age bias | Reversed/Remanded: Flanner made a prima facie case (one replacement substantially younger) and raised triable issues of pretext; summary judgment improper |
| FMLA (retaliation) — causal link | Flanner: termination four months after FMLA leave supports causation/inference of retaliation | JPMS: temporal gap too long; no other evidence of causation | Affirmed: four-month lapse, without more, insufficient to establish prima facie causation; summary judgment for JPMS affirmed |
| ADA (disability discrimination) — regarded-as or actual disability | Flanner: JPMS knew of his heart surgery so could be regarded as disabled | JPMS: no evidence he was disabled or perceived as disabled; he returned to same productivity | Affirmed: no competent evidence JPMS regarded him as disabled or that he was actually disabled; summary judgment for JPMS affirmed |
| Defamation (Form U5 statement) — falsity and privilege | Flanner: statement that he violated an investment-related industry standard was false or at least disputed; JPMS abused qualified privilege (knew or recklessly disregarded falsity) | JPMS: statement true or, alternatively, protected by a conditional (qualified) privilege and made in good faith | Reversed/Remanded: genuine disputes whether statement was false and whether JPMS abused its conditional privilege; summary judgment improper |
Key Cases Cited
- O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) (replacement by substantially younger worker more reliable indicator of age discrimination)
- Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (plaintiff must prove age was the but-for cause)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (prima facie case plus evidence rebutting employer’s reason may permit finding of discrimination)
- Breeden v. {Nottingham?} 532 U.S. 268 (2001) (temporal proximity must be very close to infer causation)
- Kennedy v. Sheriff of East Baton Rouge, 935 So. 2d 669 (La. 2006) (private-plaintiff defamation by non-media defendant requires proof of negligence; conditional privilege analysis)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standards)