830 F.3d 186
5th Cir.2016Background
- Helen Nicholson, age 83, was employed by Securitas and assigned as a receptionist at Fidelity under a staffing agreement allowing Fidelity to request replacements.
- Fidelity asked Securitas in March 2012 to remove Nicholson, alleging inability to perform new technology tasks; Securitas removed her July 20, 2012 and terminated her 10 days later after failing to place her elsewhere. Her replacement at Fidelity was 29.
- Nicholson sued under the Age Discrimination in Employment Act (ADEA) against Fidelity and Securitas; she settled with Fidelity and proceeded against Securitas alleging discriminatory termination.
- The district court granted summary judgment for Securitas on two grounds: (1) Fidelity, not Securitas, was the employer; (2) Nicholson failed to prove but-for causation (pretext). Neither party briefed the first ground initially.
- On appeal, the Fifth Circuit held Securitas had admitted it was Nicholson’s employer and reversed the district court on that point; it then analyzed whether Securitas could be liable under the ADEA for (a) honoring Fidelity’s request and (b) subsequently firing Nicholson.
- The court found genuine factual disputes about whether Securitas should have known Fidelity’s reasons were discriminatory (because Securitas failed to investigate and deviated from its usual practices), reversing summary judgment as to liability for honoring the reassignment; it affirmed summary judgment as to the termination decision, subject to reconsideration if factual findings on the first issue change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Securitas was Nicholson’s employer for ADEA purposes | Nicholson: Securitas employed her (employment contract, Securitas answer) so it is her employer | Securitas/district court: Fidelity controlled work conditions, so Securitas not the employer | Court: Securitas admitted it employed Nicholson; district court erred in finding otherwise — employer identity ruled for Nicholson |
| Whether Securitas is liable for honoring Fidelity’s request to remove Nicholson (participation or failure to act) | Nicholson: Securitas failed to investigate and deviated from standard practice, so it should have known of discrimination and is liable | Securitas: No actual knowledge of discrimination and merely honored client request; no participation | Court: Staffing firm liability requires actual or constructive knowledge; factual dispute exists whether Securitas should have known (failed investigation/deviation from practice) — reversed summary judgment on this ground |
| Whether Securitas is liable for firing Nicholson after failing to place her elsewhere | Nicholson: Firing was motivated by age; she was not offered alternatives (e.g., security card) | Securitas: No other positions available; Nicholson refused or was unsuitable for alternative roles; no discriminatory motive | Court: Affirmed district court’s conclusion that summary judgment on the termination was appropriate, but instructed district court to reconsider in light of any new findings on whether Securitas should have known of discrimination |
Key Cases Cited
- Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015) (staffing agency liable if it participates in client discrimination or knows/should know and fails to act)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for circumstantial discrimination evidence)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standards)
- Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983) (single-employer/right-to-control factors)
- Templet v. HydroChem, Inc., 367 F.3d 473 (5th Cir. 2004) (review standards when new evidence is submitted post-judgment)