David Enlow v. Salem-Keizer Yellow Cab Co., Inc., an Oregon Corporation

omitted) (alteration applicant’s that an testimony well settled is in original), “proper as per lacking credibility simply se attention to relevant country conditions because it includes details that are not set might lend credence to petitioner’s] [a as- asylum application.”). forth in the sertions of torture and cause the BIA to This view them in a light.” different Id. “agree[d] BIA also with the Immi- reasoning especially applicable in the gration Judge that lack of speci- [Taha’s] case, present where the credibility adverse ficity testimony was not resolved determination flimsy. was so In light of by degraded credibility.” [Taha] Kamalthas, it is clear that the BIA’s dis- contrary, A.R. at 2. To the Taha’s testimo- position of Taha’s Convention Against Tor- ny concerning his torture at the hands of ture claim contravened established circuit government quite specif- Sudanese law. ic, containing oftentimes horrific details. See, e.g., (“They at 133 put id. handcuffs 3. The case is remanded to the BIA for your put they hands and them back and proceedings consistent opinion. with this your legs. They on, handcuff you have sit Ventura, See v. INS 537 U.S. know, you bottles, Pepsi those small they (2002) curiam). 154 L.Ed.2d 272 (per you

have top sit on of that.... I stayed PETITION GRANTED and CASE RE- mean, there seven [for] hours and—I MANDED. you’re even go embarrassed to out on the your body street because from the rear is stuff.”).

all blood and sum, we conclude that the BIA exag- gerated significance of the “discrepan-

cies” testimony between Taha’s and his asylum application, and that it incorrectly testimony

determined Taha’s was not Thus, specific. the BIA’s adverse credibil- ENLOW, David Plaintiff-Appellant, ity determination was not supported by substantial evidence. See Kebede v. Ash- SALEM-KEIZER (9th CO., Cir.2004). YELLOW CAB

croft, 366 F.3d 810-11 INC., Oregon corporation, 2. BIA also erred failing Defendant-Appellee. to independently evaluate Taha’s Conven tion No. Against Torture claim. 02-35881. Both the IJ and BIA based their denial of Taha’s Con United States Appeals, Court of vention claim on the credibility adverse Ninth Circuit. finding respect asylum to his claim. INS, In Kamalthas v. 251 F.3d 1279 Argued and Submitted Nov. 2003. Cir.2001), however, we held that an ad Filed June 2004. credibility verse finding asylum con Amended Nov. 2004. text does not end the Convention inquiry. We noted that are “[w]e not comfortable

with allowing negative credibility deter

mination asylum in the context to wash claim,”

over the torture id. (quot at 1284 INS, ing Mansour v. (7th Cir.2000)) (internal quotation marks

Opinion by Judge ALARCÓN; Partial Judge Concurrence Partial Dissent FERGUSON.

ORDER 10, 2004, opinion, court’s filed June [371 F.3d amended 645] is as follows: paragraph slip second op. F.3d at [371 reads: 647] We affirm denial of his be- motion cause pre- we conclude that Yellow Cab sented gen- sufficient evidence to raise a uine issue of material fact regarding whether it terminated Mr. em- ployment temporarily without discrimi- natory intent. We reverse the order granting Yellow Cab’s motion for sum- however, mary judgment, because the district in concluding erred En-Mr. low failed present prima evi- facie dence that Yellow Cab acted with dis- criminatory motive or intent. is deleted.

The following paragraph shall be insert- page ed on [371 F.3d at 647]

substituted for the deleted text.

We affirm denial of his motion be- cause we conclude that pre- Razor, John S. The Law Office of John sented sufficient evidence gen- to raise a Razor, OR, Salem, S. for the plaintiff-ap- uine issue of material fact regarding pellant. whether, as asserted its response to partial Enlow’s motion for Custis, LLP, Robert Kent J. Custis judgment, terminated Mr. Enlow’s Portland, OR, defendant-appellee. for the temporarily based on a bona occupational fide qualification (“BFOQ”) or because of fac- reasonable (“RFOA”). tors other than re-We verse the granting order Yellow Cab’s however, motion for judgment, ALARCÓN, FERGUSON, Before: concluding the district erred in RAWLINSON, Judges. Circuit that Mr. present Enlow failed to prima “seventy-three years old” for acted substitute that Yellow Cab facie evidence intent. the deleted text. discriminatory motive or awith slip op. 7623 F.3d [371 line of the sixth On slip op. 11 of F.3d at [371 On line substi- 648], “seventy-two” and delete following insert sentences after 650] text. for the deleted “seventy-three” tute “seventy.” the word 648], slip op. 7623 [371 On support In an affidavit filed in of his paragraph of the second sentence second summary judgment, motion Mr. En- .for reads: time low declared “[a]t conflicting evi- discuss below We me defendant offer an unconditional of- regard- parties dence further, re-employment.” fer of He of Mr. En- ing whether the termination “[m]y understanding at the stated that employment was intended be low’s time that I my of termination was was and whether permanent, temporary longer and terminated would be facially pursuant acted for the Defendant.” working employment practice to op. lines 16 of 7628 slip On 15 and [371 years seventy discharge employees over “by at F.3d delete the words 651] old. discriminatory employment practice” and deleted. is he was over the substitute “because be inserted following sentence shall seventy” for the deleted text. op. 648] at slip [371 on 7623 F.3d slip op. line Beginning with 16 of 7628 the déleted text: substituted for F.3d at delete: [371 651] conflicting the evi- discuss below We regard- by the presented parties dence relied on the direct employment ing whether Mr. Enlow’s employment his was terminated be- solely terminated permanently was cause Insurance did not the Star costs, Cab in- or whether Yellow save cover older than employees who were his tem- interrupt employment tended to age. seventy years This evidence was losing its in order to avoid busi- porarily inference by support sufficient to ness license. after terminating employment pur- his policy, Yel- chasing the Star Insurance fifth the on paragraph In the line of last practice of intention- adopted low Cab at 7623 F.3d delete “sev- slip op. 648] [371 ally discriminating against employees years “seven- enty-two old” substitute seventy years over years deleted text. ty-three old” Part One paragraph In the first op. slip [371 line 28 on Beginning with insert the slip op. 649] F.3d at [371 on F.3d at delete: 651] “in a motion for order to survive words trial, At Mr. Enlow will bear burden at the end judgment” by of fact persuading trier second sentence. that Yel preponderance the evidence begin- the paragraph In the line of first terminating En- low motive slip op. line F.3d at ning [371 8 on discriminatory. low’s opposition “In to the motion insert 650] Reeves, 143, 530 U.S. at S.Ct. See judgment,” the words before (“ persuad 2097 ‘The ultimate burden Enlow”. “Mr. ing trier of defendant intentionally against discriminated F.3d at slip op. line 7627 [371 On 10 of at times with the plaintiff remains all “seventy-two years old” and delete 650] ”) Burdine, plaintiff.’ (quoting 450 U.S. program in order to against discriminate 1089). 253, 101 S.Ct. persons forty over in violation of the Thus, ADEA. Mr. Enlow failed to estab Beginning slip with line 15 on op. 7629 [371 lish, required as Supreme Court’s delete the following 651-52] text to more decision, recent Hazen that Yellow 652], slip op. line 16 on F.3d at [371 upon formal, “relied facially dis Accordingly, Mr. Enlow’s reliance on criminatory policy requiring adverse Controls, Inc., UAW Johnson treatment” of older when it U.S. 113 L.Ed.2d purchased the Star policy. Insurance (1991) misplaced. In Johnson Hazen, 507 U.S. at 113 S.Ct. 1701 Controls, employer was aware of the added) (emphasis (explaining that Man- discriminatory provision when it adopted hart disparate case of treat an employment practice barring all ment because the “relied” on a women, except those whose infertility “formal” policy requiring discrimina documented, medically jobs tion). Mr. Enlow has not demonstrated involving potential actual or lead expo- “actually motivated [his] exceeding governmental sure standards. employer’s purchase decision” to a new 198-99, Id. at 111 S.Ct. 1196. Yellow insurance policy. Id. temporary Cab’s discharge of Mr. Enlow On line 21 and 22 of slip op. 7630 [371 F.3d was in reaction to unanticipated exi- at 652] delete: gent circumstance that threatened the “of legitimate, suspension nondiscriminatory of its license to conduct rea- busi- son for temporarily terminating ness. Mr. En- low’s employment.” Likewise, City Angeles Los Dept. On line 21 and 22 slip op. Manhart, Water & 7630 [371 Power v. F.3d 435 U.S. at 652] substitute (1978) the following 55 L.Ed.2d 657 deleted text: readily distinguishable. Manhart, Department of Water and “that Mr. Power employment Enlow’s was not knowingly and intentionally permanently adminis terminated.” retirement, tered a disability and death- On line 22 of slip op. 7630 [371 F.3d at 652] program benefit required its female insert after “Mr. Haley” the following text: employees to make larger contributions “, Yellow Cab’s personnel manager,” to pension fund that its male em One line of slip op. 7630 [371 F.3d at ployees. Id. at 98 S.Ct. 1370. The 652] delete the “alleged” word and substi- decision to adopt employment prac tute the word “declared” for the deleted tice that differently treated men from word. women carefully calculated, “[biased On line 5 of slip op. 7631 [371 F.3d at on study mortality tables and [the 652] delete “Mr. Anderson alleged”. In- Department’s] experience.” own Id. at sert Gary Anderson, “Mr. Yellow Cab’s 705, 98 S.Ct. 1370. Mr. Enlow pre Secretary/ Treasurer, declared” and sub- sented no evidence that establishes that stitute for the deleted text. had knowledge of the On line 20 of slip op. 7631 [371 F.3d at discriminatory provisions in the In Star insert 653] after “behalf.”, the word “Mr. surance policy it purchased when Anderson declared:”. policy. Nor has Mr. Enlow any evidence that Yellow Cab deliber On line 25 of slip op. 7631 [371 F.3d at ately adopted an employment practice 653], delete “of his termination from Yel-. in the most to light favorable “of the termi- Viewed and substitute low Cab” with Cab” Cab, Yellow employment nation of that it this evidence shows Yellow deleted text. for the En- permanently terminate Mr. did employment he was more low’s op. [371 F.3d slip line 31 of On 653], Instead, “de- “alleged” seventy years and substitute Yel- delete than old. clared”. En- evidence shows Mr. low Cab’s to temporarily discharged low was slip op. 7632 [371 paragraph termination of Yellow Cab’s busi- 653] that reads: avoid negotiated most license while it light favorable ness

Viewed Cab, it evidence shows that Yellow the' exclu- Insurance to Waive Star facially discrimi- explicit not have an policy. a dem- provisions its As sion natory practice to termi- employment protect Mr. of its intent onstration of taxi drivers employment nate the cab employment rights, Yellow Cab uld. seventy years who were more successfully temporary em- obtained Instead, that Mr. the evidence shows another com- him with cab ployment temporarily .discharged Enlow also obtained Star pany. of Yellow busi- avoid termination .agreement Insurance’s tentative negotiated license with Star ness while age-based exclusion of cover- waive exclusion Insurance to waive if submit to a age Mr.. Enlow would a demon- policy. in its As provisions re- physical examination. En- protect intent to stration its willingness to jected Star Insurance’s rights, low’s provi- exclusion waiving consider successfully temporary employ- obtained company. another pass physical ment for him with cab if he could exami- sions Cab obtained Star Insur- Yellow also nation. He also declined Yellow Cab’s agreement waive the ance’s tentative reemploy him. The offer to coverage of if Mr. age-based exclusion genu- by presents Yellow Cab offered physical to a exami- Enlow would submit fact regarding of material ine issue rejected Insur- nation. Mr. Enlow Star it can whether demonstrate trial waiving its to consider willingness ance’s “falls within employment decision if pass exclusion he could provisions to the ADEA’s exceptions one of the de- He also physical examination. v. Bar- EEOC Santa prohibitions.” reemploy offer to clined Yellow Cab’s (9th Cir.1982) bara, by offered Yellow him. The evidence (citations omitted). pro- The ADEA material presents genuine issue of Cab for -that shall not be unlawful “[i]t vides regarding fact whether termination ... to take action oth- temporary per- or employment of was this section prohibited erwise Yellow acted manent and whether Cab fide occupational is a bona where em- discriminatory against, animus reasonably necessary to qualification Ac- forty years age. over of ployees on operation normal of based cordingly, court did not err the district denying par- age....” Enlow’s motion for reasonable factors other judgment, summary 623(f)(1). tial validity § “The of 29 U.S.C. findings, BFOQ factual upon turns is deleted. jury.” EEOC by ones preferably insert- following paragraph shall be Boeing Company, 843 for slip op. F.3d at [371 653] ed on Cir.1988). the deleted text: BFOQ or RFOA Whether a defense will based on license that all of its judgment in favor of sustain a Yellow were by not covered automo- depend on liability Cab will the resolution of bile insurance. Mr. Enlow disputed only factual issues can present any which be failed to Yel- evidence that a trier of fact regarding pursuant resolved low acted to an explicit actually action employment facially discriminatory company practice as, took, whether taxi such Mr. Enlow’s dis- to fire cab drivers who were over charge temporary permanent, years Thus, seventy age. was the district test, subject to a medical did he court denying err in Mr. En- reinstatement, refuse partial an offer was he low’s motion summary judg- for solely necessary laid off for the time genuine ment. Because are there issues to obtain insurance coverage fact in dispute, reject material we him, prohibitively and whether it was request that we instruct insure expensive seventy. drivers over court grant district motion sharply summary We cannot decide on the disput- judgment. ed facts in record which version of following two paragraphs shall in- be persuasive be to a jury, facts will slip serted op. on 7632 [371 F.3d at 653] party prevail ap- and which should on op. slip 7633 [371 F.3d at 654] Thus, peal as a matter law. we ex- substituted the deleted material. press interlocutory stage no view this We conclude that Mr. Enlow regarding proceedings prin- these sufficient direct evidence to support ciples applicable that will of law be after inference that decision to jury findings has made its and we terminate his on based complete have a record the relevant the fact that he seventy was more than district facts. The court did not err in years reason, For that the dis- denying partial Mr. Enlow’s motion for trict court erred in granting Yellow judgment. Cab’s motion for judgment on paragraphs beginning

Delete the after the ground that Mr. Enlow failed to slip op. [371 “Conclusion” F.3d at present any evidence that Yellow Cab slip op. 653] and F.3d at [371 654] acted with animus. that read: We hold presented also that Yellow Cab We that Mr. presented conclude Enlow sufficient evidence to raise a genuine sufficient to support direct evidence disputed issue of regarding fact whether inference that Yellow Cab’s decision to Mr. permanently Enlow was discharged terminate his was motivat- age, because his or whether it has a by ed discriminatory animus. For that BFOQ viable or a RFOA affirmative reason, district court erred in grant- the defense based on its evidence that ing for summary motion temporary discharge was necessary to judgment the ground that Mr. Enlow losing avoid its business license because failed present to evidence that Yellow all of its were covered with discriminatory acted animus. liability automobile insurance. dis- The We also that presented hold Yellow Cab trict court did not in denying err Mr. sufficient evidence to partial demonstrate that summary for motion its temporary of Mr. discharge judgment. Enlow Because there are genuine intent, without issues of material fact in dispute, we to solely losing avoid reject request business Mr. Enlow’s in-we Enlow concluding in that Mr. failed grant his erred court to the district struct facie evidence that Yel- present prima to summary judgment. for motion a discriminatory mo- low Cab acted amendments, Judge Alarcon these With tive or intent. deny to have voted Judge Rawlinson legal rehearing. Judge Fergu- analyze questions the raised We petition for One, Part appeal separately. for we grant petition has voted to son explain why voted to we conclude that district Rawlinson has rehearing. Judge en banc. Yellow Cab’s mo- rehearing granting for court erred deny petition Two, peti- summary judgment. In Part that the tion for recommended Judge Alarcon presented be denied. we consider whether Yellow Cab rehearing for en banc tion to En- response Ferguson recommended sufficient evidence Judge summary granted. partial judg- for rehearing for en banc be low’s petition motion. genuine to of material ment raise issue of the full has been advised court requiring parties have their judge en No rehearing petition banc. which day party court to determine to requested a vote on whether rehear prevail. should P. R.App. Fed. 35. the matter en banc. peti- and the petition rehearing Background Facts and Procedural DENIED. rehearing en banc are tion for prior rep- Sometime June from the Bell Anderson insur- resentative OPINION Tacoma, Washington agency in con- ance ALARCÓN, Judge. Circuit if it would be tacted Yellow Cab see product the order appeals David Enlow in a new insurance interested amount denying partial significant motion could save Yellow Cab a Age Discrimina- judgment regarding money premi- on its annual insurance (“ADEA”) claim, Act Employment considering quoted premi- tion in ums. After um, accept Yel- new granting and the order Salem-Keizer Yellow Cab decided to (“Yellow Cab”) undisputed cross-motion policy. low Cab Co.’s It is Yellow Cab summary judgment. con- from Mea- purchased the insurance Group that he was entitled Insurance because- tends dowbrook Insurance, he direct evi- judgment product, because cost of Star its new $10,000 dis- than the permanently dence less was more of his charged solely paid previously him had amount Yellow Cab (“Reliance In- the Reliance Insurance.Co. motion affirm the denial of his be- We surance”). accept- At the time Yellow pre- we that Yellow Cab cause conclude offer, it had no ed the Insurance Star genu- evidence to raise sented sufficient policy excluded cover- knowledge that regarding ine issue of material twenty- than age employees younger of whether, response to asserted as seventy years age. of three older.than .or. summary partial judg- Enlow’s motion to to license ment, employ- Mr. order obtain a business it terminated “[vjehicle hire,” the City of temporarily based on operate a bona a fide ment Salem, cab (“BFOQ”) Oregon requires taxi or occupational qualification be- liability carry insur- age company than automobile cause of factors other reasonable (“RFOA”). employed as grant- person that covers each reverse the order We ance “[tjaxicab Code, Revised driver.” Salem motion for ing Yellow Cab’s 34.010(d). 34.002(1),(j), Yellow however, Title the district Ch. judgment, because In- liability coverage employment practice under Star to discharge employ- Cab’s seventy years to policy was take effect ees over old. scheduled surance 25, 1999, the date that its on June same Enlow complaint filed a in the dis- policy Insurance was due to ex- Reliance September 21, trict on court 2000 which $13,200 paid Yellow Cab to Star pire. alleged he Yellow Cab had violated Insurance, representing pay- down 20% Oregon the ADEA and Revised Statutes policy, on the new and was scheduled ment 659.030(l)(a) (renumbered § making monthly payments on that begin to 659A.030(2)(a) 2001), Oregon’s parallel 1,1999. July on policy age prayed discrimination statute. He pay. front and back City required of Salem May On filed a it planned inform it of the to insurance partial summary judgment motion for on no later than 1999. use June Yellow argued ADEA claim in which he suspension of li- Cab faced its business he had “a prima established facie case” of provide on that if it not cense date could age discrimination under the ADEA proof insurance for each taxi cab driver presenting evidence that seventy- he was employ.1 in its old, years job had performed three his 24, 1999, p.m. At 4:00 June Star satisfaction, his employer’s and was dis- Gary Anderson, agent Insurance called when charged his obtained less Secretary/Treasurer, to in- Yellow expensive liability automobile did not policy form him its new cover cover drivers over younger twenty-three or seventy, while younger employees were re- age, seventy years older than and that tained. He maintained that he was enti- eligible Mr. Enlow was not for insurance prevail tled to action because his new because he was sev- was the “but for” cause of his termination. enty-three years old. Prior June Cab filed a Yellow cross-motion sum- copy Cab had not Yellow received mary judgment on June 2001 in which it policy, Star Insurance nor had it reviewed argued entitled to policy’s underwriting the Star Insurance judgment because Mr. not pro- Enlow had guidelines or restrictions. any duced evidence that Cab in- Yellow learning

After of the limitation in tended to against discriminate him based policy, the Star Insurance Yellow Cab’s on It stated: “For David Enlow personnel Haley, manager, Richard called prevail, satisfy he must not only Mr. Enlow discharged into his office and prima requirements facie ADEA of an claim, him. We conflicting discuss below the evi- produce but must evidence that Yel- presented by parties dence regarding low ‘intended’ against to discriminate whether termination Mr. Enlov/s him age.” Cab main- employment was temporary intended to be tained that because Mr. Enlow failed to or permanent, and allege produce whether evidence of discriminato- pursuant facially discriminatory motive, acted to a ry he prevail could not under a Code, 1. Salem Revised validity Title Ch. 30.124 of the issued under license requires as follows: chapter. Upon receiving this information is, reason, any ... any that such Whenever for of insurance is effect, required longer any in in full connection with license re- force and the di- title, quired summarily suspend this the rector shall maintenance thereof such li- full in force and a effect shall be condition cense.

811 Hill, 1024, Morgan 1030 theory liability. treatment disparate .2004). Enlow that Mr. failed Cir asserted Cab any evidence that present to ADEA, may not employers Under the animus, or discriminatory acted with any or ... discharge “fail or refuse to hire terminating reasons for his proffered least years old] individual is at forty [who pretext for merely were employment against any indi or otherwise discriminate impermissible discrimination. compensation, respect vidual court Mr. Enlow’s The district denied terms, conditions, employ privileges summary judgment and partial motion ment, age.” because of such individual’s summary Cab’s motion for granted Yellow 623(a)(1). Paper § 29 U.S.C. In Hazen 26, 2001. The judgment on November dis- 604, v. 507 U.S. 113 S.Ct. Biggins, Co. Enlow “failed to trict held Mr. court 1701, (1993), Supreme L.Ed.2d of a mo- provide evidence employ Court identified two theories of part of the Defendant tive [on] disparate ment discrimination: treatment Mr. En- to terminate Plaintiff.” decision 609, 113 disparate impact. Id. at S.Ct. timely appeal low notice of filed Int’l Bhd. v. (citing Teamsters order Yellow Cab’s cross-motion granting States, 15, 324, n. United 431 U.S. 335-36 judgment, the order de- summary (1977)). 97 S.Ct. 52 L.Ed.2d 396 summary nying partial his motion for appeal, solely Enlow on the relies judgment.2 theory liability. disparate treatment Part One Disparate treatment is demon “ dis contends simply strated when ‘[t]he in granting trict erred Yellow Cab’s court oth people favorably treats some less He main judgment. motion for race, color, religion [or ers because of their ” required produce tains not that he was (sec protected other Id. characteristics].’ proof upon by relied evidence Team original) (quoting ond alteration justify the termination of 1843). sters, n. at 335 97 S.Ct. U.S. pretext imper was a employment the Court recently, More instructed “ discrimination in order survive missible ‘liability disparate claim] treatment [in He judgment. ar motion trait protected depends on whether familiar gues Douglas that the McDonnell (under ADEA, motivated age) actually ” burden-shifting analysis apply should v. Sand employer’s decision.’ Reeves direct to this case because he Prods., Inc., Plumbing erson 530 U.S. that Yellow terminated his (2000) 2097, 147 L.Ed.2d 105 S.Ct. because of his added) Hazen, 507 (emphasis (quoting U.S. 1701). held The Court grant a district court’s of at We review actually “the have’ plaintiffs novo. Frank v. must summary judgment de Airlines, Inc., employer’s decision- played [the F.3d role United 849(9th Cir.2000). making] process and had may affirm the dis a determinative We ” (alteration Id. summary judg influence on the outcome.’ granting trict court’s order Hazen, original) 507 U.S. (quoting in the supported ment on basis that is 1701). 610, 113 City S.Ct. Jose Christian Coll. record. San (“Issues (9th Cir.1999) ap- appeal, 2. Mr. Enlow has abandoned On this aban- Big pealed briefed are deemed claim. See but not his state discrimination Summit, Inc., doned.”). Lodging Bear Ass’n v. Snow 812 248, 254, plaintiff alleges dispa 1089,

aWhen U.S. 101 S.Ct. 67 L.Ed.2d (1981). 207 Douglas, based on direct evidence in Under McDonnell if rate treatment employee presents an claim, prima facie circum apply we do not the an ADEA bur discrimination, stantial evidence of the analysis set forth in McDon den-shifting “ burden shifts to employer ‘pro the Green, 792, Corp. v. 411 Douglas U.S. nell evidence that plaintiff duce] the was re (1973) 1817, 36 L.Ed.2d 668 93 S.Ct. jected, or preferred, someone else was the evidence is suffi determining whether ” legitimate, nondiscriminatory reason.’ summary judg a motion for cient to defeat Reeves, 142, 530 U.S. at 120 S.Ct. 2097 Airlines, In Trans World Inc. v. ment. (alteration Burdine, in original) (quoting Thurston, 105 469 U.S. S.Ct. 1089). 450 U.S. at This (1985), Supreme the L.Ed.2d Court burden-shifting designed scheme is to as Douglas instructed that “the McDonnell “ ‘plaintifflhas] sure that day inapplicable plaintiff test is where the court despite unavailability of direct direct evidence of discrimination.” presents ” Airlines, evidence.’ Trans World 613; 121, 105 Id. at S.Ct. see also AARP v. (alteration U.S. at 105 S.Ct. 613 Inc., 996, 1000 Group, 943 F.2d n. Farmers Textron, original) Inc., (quoting Loeb v. (9th Cir.1991) (stating that “[ojrdinarily, (1st 1003, 1014 Cir.1979)). 600 F.2d however, there is direct when evidence of opposition In his to the motion for sum- discrimination, provisionfof such as when a mary judgment, Mr. Enlow di- pension plan] is on its rect permanently evidence that Yellow Cab face, prima analysis inap facie case employment terminated his because he evidence, Direct in the plicable”) context of “ seventy-three years old and the new claim, an ADEA is defined as ‘evidence did not cover by persons or statements in conduct over the age seventy. In an affidavit decision-making process in the volved in support filed of his motion for summary directly as may reflecting be viewed judgment, Mr. Enlow declared that “[a]t alleged discriminatory attitude suffi no time did the defendant offer me an permit cient to infer fact finder unconditional offer of re-employment.” likely that attitude was more than not a further, “[m]y He stated that understand- motivating employer’s factor in the deci ” ing at the of my time termination was that sion.’ v. Douglas Walton McDonnell I was longer terminated and would no be (8th Cir.1999) Corp., 167 F.3d working Thus, for the Defendant.” (alteration added) original, emphasis Enlow carried his “initial burden of offer- Mills, (quoting Radabaugh Zip v. Feed ing adequate evidence to create an infer- Inc., (8th Cir.1993)). ence that employment decision was Douglas The McDonnell formula based on a discriminatory criterion illegal applies employ under the ADEA where Teamsters, under the Act.” U.S. rely ee must on circumstantial 97 S.Ct. 1843. old, forty years he or she was at least a plaintiff [W]hen a pri- established

met requisite qualifications job, for the ma disparate facie inference of treat- discharged younger while employ through ment direct or circumstantial Reeves, ees were retained. 530 U.S. at evidence, he will necessarily have raised 142, 120 S.Ct. 2097. It a pre “creates genuine issue of material fact with sumption unlawfully dis respect legitimacy to the or bona fides of against criminated employee.” Texas employer’s articulated reason for its Dep’t Burdine, Cmty. decision.... When ev- [the] Affairs City Mon circumstantial, 1111(quoting Lowe v. consists F.2d idence, or direct of (9th Cir.1985)). rovia, 775 F.2d Douglas than McDonnell more al- will question a factual presumption, Part Two respect always most exist The nondiscriminatory reason. Enlow also reversal of the claim of a Mr. seeks question denying partial of material his for sum- of this order motion existence granting claim. ordinarily preclude mary judgment his ADEA He will summary judgment. maintains that he is entitled to summary a trial he judgment without because Mach., Inc., 80 v. Columbia Schnidrig presented employ- that his direct evidence Cir.1996) (alterations 1410(9th F.3d employees ment was terminated because added, emphasis internal original, first old seventy years who are more are omitted) (quoting marks Sischo- quotation poli- covered under the Insurance not Star Dist., Cmty. Merced Nownejad v. Coll. cy. requests He instruct the dis- we (9th Cir.1991)). 1104, 1111 F.2d court to enter in his favor. judgment trict in oppo presented Yellow Cab evidence undisputed Cab did not It is that Yellow partial Enlow’s sition to motion Mr. in or- purchase the Star Insurance it reason summary judgment the sole against der to discriminate Enlow’s em temporarily terminated Mr. twenty-three younger than and older than prevent City Salem ployment was seventy years supplemental In his it closing its business doors because court, brief to this Mr. Enlow concedes that each of drivers was proof lacked was of the Star that Yellow Cab not aware reviewing court’s In the district insured. discriminatory provision policy’s Insurance Yellow motion for grant decision to it. purchased when it the evi judgment, we must view reviewing In the denial of Mr. Enlow’s Mr. light most favorable to dence in the partial summary judgment, we motion Co., Quaker Enlow. Coleman Oats light in the most must view evidence (9th Cir.2000). 1271, 1287 Coleman, to Yellow favorable Cab. In to Mr. granted response at 1287. Enlow’s court Yellow Cab’s F.3d district motion, summary judgment Yellow Cab offered evidence motion employment perma- not pro Mr. Enlow’s was that Mr. Enlow failed concluded Haley, nently a dis terminated. Mr. Yellow duce that Yellow had evidence declared terminating personnel manager, Mr. Cab’s criminatory motive why Mr. reaching only that “the reason employment. affidavit Enlow’s conclusion, erroneously Enlow was terminated was because court district a switch in auto insurance company made applied Douglas the McDonnell burden- and the new carrier did insure Mr. carriers shifting analysis. twenty-three years of an in drivers under support direct that would saving seventy. terminat over ference that only expense rea- seventy. premium annual he was over the ed because insurance.” why in favor of son switched By judgment granting time alleged Cab, Mr. also that “[a]t the district denied He court “ carrier search for an insurance respect in court day Enlow his ‘with in order not insure older workers who did [Yellow or bona fides legitimacy position with the employ to terminate reason for its Cab’s] articulated ” that: Haley further stated Sischo-Noumejad, company.” ment decision.’ a ... spoke representatives Mr. Enlow was commissioned em- Anderson with ployee. paid percentage they He was of Star Insurance to see if would waive in. All age the fares he took of his taxes the restriction their policy so paid out expenses were of his share Mr. Enlow could be Mr. reemployed. gross Terminating of the fares. Mr. Anderson declared: “I was able to talk the any Enlow did not have direct economic insurance into En- considering carrier Mr. benefit in that Cab did not low for if he expe- willing Yellow insurance would be to savings unpaid submitting consider rience salaries or to a medical check- Indeed, terminating up.” benefits. driver Yellow Cab then En-Mr. actually made Cab one low with option taking Yellow more the of a physical hope driver short. examination with that Star Insur- ance to agree would insure Mr. Enlow on Anderson, Gary Yellow Cab’s Secre- Mr. the basis clean of a bill of health. Mr. tary/Treasurer, declared Yellow Cab Anderson stated his “Mr. affidavit that adopted the Insurance policy new Star Enlow indicated he would not to agree knowledge that did not without insure a physical and declined the offer to return seventy of age drivers over the to This directly Yellow Cab.” con- age twenty-three. He stated that flicts with allegation Mr. Enlow’s that he Yellow did not learn limita- Cab 'permanently was terminated from his em- on the p.m., day until 4:00 before it tion ployment solely age. because of his proof required provide to of insurance was or face City the loss of to Salem its the light Viewed in most favorable license. Mr. Anderson declared business Cab, to Yellow this evidence that it shows possibility renewing its old did not permanently En- terminate Mr. longer “was available” employment low’s because he more was the time learned of the new Instead, than seventy years old. Yellow age limitation. policy’s Cab’s evidence shows that Mr. Enlow was Yellow also produced Cab evidence that temporarily discharged to avoid termi Haley had indicated to Mr. Mr. Enlow that nation of Yellow Cab’s business license employment the termination of it negotiated while with Star Insurance to only “temporary coverage until could be waive provisions exclusion in its Immediately resolved or obtained.” fol- policy. As a demonstration of its intent lowing termination, Mr. Enlow’s Mr. protect employment rights, Mr. Enlow’s phone Anderson made several calls Mr. successfully tempo Cab obtained Anderson behalf. Mr. declared: rary employment for him with another cab personally Cherry City “I called cab com- company. Yellow Cab also obtained Star pany in to find Mr. order Enlow work agreement Insurance’s tentative to waive while we out the insurance coverage sorted age-based exclusion of coverage if Mr. problem.” Mr. Anderson was successful in physical Enlow to a would submit examina securing job interview Mr. Enlow rejected tion. Mr. Enlow Star Insurance’s Jay the Blue Cab Company. with Mr. willingness to waiving consider ex begin Enlow was work hired to with the if provisions clusion he pass could a physi Jay Blue within a Company week of cal examination. He also declined Yellow employment the termination reemploy Cab’s offer to him. evi Yellow Cab. dence offered presents Finally, genuine Yellow Cab introduced evidence material regarding issue of Enlow, that after it Mr. discharged whether it can demonstrate at trial that its inference that Yellow Cab’s decision “falls within one decision employment prohibi- based on ADEA’s terminate his exceptions Barbara, seventy v. Santa the fact that he was more than tions.” EEOC omitted). Cir.1982) (citations reason, For that the district years be shall not provides “[i]t ADEA mo- granting Yellow Cab’s court erred ... take unlawful summary judgment ground on the tion prohibited under otherwise action present any failed to evi- occupa- fide age is a bona section where dence that Yellow Cab acted with discrimi- to reasonably necessary qualification tional natory animus. particular of the operation normal presented also hold that Cab We business, or where the differentiation genuine to raise a issue sufficient evidence factors other than on reasonable based disputed fact whether Mr. regarding of 623(f)(1). § va- age....” 29 U.S.C. “The discharged be- permanently Enlow was factual BFOQ upon find- lidity of a turns a age, cause of or whether it has viable jury.” by ones a EEOC ings, preferably BFOQ RFOA affirmative defense or a Boeing Company, 843 temporary on a based its evidence that Cir.1988). necessary losing to its discharge avoid was BFOQ RFOA defense will or Whether employ- because all of its business license judgment in of Yellow favor sustain by ees were not covered automobile liabili- disputed on the depend will resolution did not ty insurance. The district court only can be resolved factual issues which motion denying partial err Mr. Enlow’s regarding employ- a trier of judgment. there summary for Because took, actually action Yellow such ment fact in dis- genuine are issues of material as, discharge Mr. Enlow’s whether pute, reject request we Mr. Enlow’s subject permanent, or to temporary grant instruct the district court to we test, did an he refuse offer medical judgment. summary motion for reinstatement, solely was he laid off granting the order We VACATE necessary Yellow Cab to ob-

the time and him, judgment motion for coverage tain insurance Mr. Enlow’s denying AFFIRM the order prohibitively expensive to whether it was summary judgment. seventy. We motion for partial drivers over cannot insure facts in this sharply disputed on the decide its Each shall bear own costs. side the facts will be record which version of persuasive jury, party to a and which FERGUSON, concurring Judge, Circuit prevail appeal as matter should dissenting part. part Thus, no view at this express we law. majority’s I concur in the decision stage proceedings interlocutory of these summary judgment grant vacate the of law will be regarding principles Salem-Keizer Yellow favor defendant made its find- jury after applicable majority’s But I dissent Cab. complete have a record of the ings and we judgment plaintiff denial court relevant facts. The district bought majority The have David Enlow. motion for denying err in Mr. Enlow’s position that when implosive Yellow Cab’s partial summary judgment. policy purchased it a new Conclusion payments by more premium reduced its $10,000 know the per year, did not than conclude We support terms or conditions the new direct sufficient expensive ing much less why exigent it was so its circumstances excused Age Discrimination in policy. prohibited old actions. The ADEA age dis- (“ADEA”) Employment Act does not pro- crimination carefully enumerating while tect an whose deliberate indiffer- several exceptions to the rule. See 29 policies 623(f). ence toward its leads it to § business U.S.C. None of exceptions these in violation terminate of the applies majority’s here. implicit cre- ADEA. exception ation of a new discrimi- nation taken to reduce insurance costs di- majority

Additionally, bought have lutes protections Congress sought implosive another belief that the ADEA provide for older workers. employee apply does not covered when discharged only under the ADEA is tem- I.

porarily reasons. Temporary for economic termination is not defense under the Yellow Cab contends that Mr. Enlow did ADEA; qualifies it the neither not establish the intent re bona-fide-occupational-qualification quired disparate for an ADEA treatment (“BFOQ”) nor the exception reasonable- claim, by as described Hazen Paper v.Co. (“RFOA”) factor-other than-age exception Biggins, 604, 507 113 U.S. S.Ct. 123 to the ADEA. Whether termination (1993). case, L.Ed.2d In that the Su temporary or will permanent have an preme that an employer Court held does damages effect on the amount eventual- not by violate the ADEA terminating an ly a awarded but is not factor determin- employee older prevent order to ing liability. pension vesting, benefits from pen even if sion status is correlated with age. facts establish a Id. at uncontested viola- 611-12, Enlow, 1701. 72-year- tion of the ADEA. Mr. a S.Ct. The Court rea soned cabdriver, age pension old that and discharged from status are Yellow “analytically Cab distinct” and noted company’s because the new that younger who policy employee over has worked not cover drivers 70. The particular employer his majority this case to entire remands district career might be qualifying court to closer to for pension determine whether Yellow Cab employee newly benefits than an older temporarily terminated Mr. Enlow on the 611, 113 hired. basis of an Id. at S.Ct. 1701. exception. ADEA Yet it makes no liability regarding difference for dis- here, too, Yellow claims that Cab it dis crimination whether termination was charged Mr. Enlow based on a classifica permanent temporary. only ques- insurability—that analytically is dis tion— whether, tion to be resolved is as a matter tinct from age. Unlike the situation in law, the ADEA is violated where an Hazen, however, there merely is not employer a 72-year-old terminates em- age correlation and qualification between ployee company’s because the chosen in- coverage, for insurance but absolute identi policy surance does cover drivers over fication: qualify Mr. Enlow did not 70. Yellow Cab’s new insurance policy because question

The answer to that is result, without he was over as a and the compa question. employer Where an ny intentional- fired him. company The cab acknowl ly uses as a criterion for an employ- edged that but for Mr. age, he decision, ment it not a Thus, is defense that would not have discharged. been employer only to sought save costs. Nor requirement meets Hazen’s can employer escape liability by claim- that an employee age “actually show parties third are also involved decision- whether employer’s played [the role discrimination.” Id. at a determinative in the making] had process too, Here, S.Ct. 3492. is the outcome.” U.S. influence on violating the ADEA 610, 113 responsible less 1701. S.Ct. response it to an did so insur separate out attempt Yellow Cab’s from a third ance selected unavailing. insurability from is party. & Angeles Dep’t. Water City Los Manhart, Furthermore, assuming that even Supreme Court Power v. stigmatiz- was not motivated rejected employer’s argument company workers, stereotypes of older larger ing to make plan requiring women the ADEA. Hazen ex- monthly pension plan to a violated contributions plains very essence of on the factor of “[i]t than men was “based employee discrimination for older to be longevity rather than sex.” U.S. (1978). fired because the believes that 55 L.Ed.2d 657 S.Ct. any productivity competence decline with plain The Court stated: “It is age.” on a 113 S.Ct. 1701. expectancy life is based old U.S. individual’s factors, only Congress enacted the ADEA in order to number of which sex is that “older workers say cannot actuarial address concern one.... [0]ne being on the entirely deprived on sex is based were distinction based stigmatizing than sex. is basis of inaccurate ster- on other factor other Sex eotypes.” Id. at 712- Id. Hazen further stated that exactly what it is based on.” 1370(internal 13, “wholly an decision is employer’s citations omit- where S.Ct. ted). too, Here, by age,” factors the an individual’s insurance motivated other factors, problem by stereotyping is on but Mr. such risk based numerous 611, inability “disappears.” for Id. S.Ct. qualify added). 1701(emphasis on coverage solely based insurability splice cannot out company cab interpretation of the ADEA’s ratio- This Manhart, where, prof- as in the from nale, however, not shield Yellow does Cab. employment practice for its fered basis majority that to establish dis- believes absolutely protected a trait. coincides treatment, must Mr. Enlow still parate escape liability by preponder- a of fact a persuade Nor can Yellow Cab trier of the that Yellow shifting to the insurance carrier ance blame terminating him intentional- coverage the limits. The Su motive established is years discriminatory. precedent But clear preme twenty ly Court held more than discrimination, a the employer Title VII that in case of facial ago that an violated protected use trait as criteri- plans explicit where retirement offered to its the monthly employer’s for the action establishes employees provided lower bene on intent, women, of the though discriminatory regardless the fits to even discrimina subjective motivations. tory supplied by private employer’s conditions were employment practice Tax an involves Governing insurers. Ariz. Comm. “Whether through explicit facial Annuity Comp. disparate treatment & Deferred Deferred Norris, why the depend does Plans v. 463 U.S. discrimination (1983). rather on the 77 L.Ed.2d The em discriminates but the discrimination.” Int’l responsibility explicit terms of ployer “cannot disclaim Controls, Inc., Union, Johnson discriminatory of the insurers’ UAW v. the features options” “regardless and violates Title VII 499 U.S. S.Ct. (1991) employer’s (finding espoused workers, by an stereotypes

L.Ed.2d 158 of older policy to be sex discrimina- fetal-protection dismissing Mr. Enlow because of an insur- tion in of Title where it ex- violation VII policy that ance did not cover drivers over of child-bearing capacity cluded women 70, Yellow Cab ratified the insurance com- lead). There, jobs them exposing pany’s categorical judgment that drivers Supreme Court noted that “the ab- 70 were not competent. over sence of a malevolent motive does not con- rights Whatever the the insurance discriminatory policy vert a into a facially business to set coverage limits as it deems policy....” neutral Id. See also Frank v. appropriate, Yellow Cab’s termination Airlines, Inc., United employee older on the poli- based new (9th Cir.2000) (reaffirming that “where a cy’s exclusion implicated stigmatiz- discriminatory claim of treatment based ing stereotypes to which Hazen refers. upon policy applies which on its face less Mr. Enlow’s falls squarely dismissal within favorably gender plaintiff to one range of discriminatory employment presence need not otherwise establish the sought prevent. actions the ADEA intent”). applied principle, This Court II. cases, first in Title established VII Although Mr. Enlow’s dismissal consti- employer’s subjective motivations are not facial discrimination tutes in a case of facial controlling discrimina- ADEA, majority believes tion In to claims under the ADEA. EEOC Cab’s decision to terminate Mr. po- Inc., Borden’s, example, we stated tentially falls within an established ADEA where a severance denied a exception. particular, majority sug- older, benefit to 55 and workers show- gests qualifies ing of ill will employer’s toward older BFOQ ADEA, or a RFOA exception people required.1 F.2d 1393 both of which insulate defendant from Cir.1984), grounds overruled on other liability for discrimination. The majority, Employees Sys. Pub. Ret. Ohio v. of however, misconstrues both ADEA Betts, excep- 158, 2854, 492 109 106 U.S. S.Ct. discharging employee, tions: if (1989), even superseded by L.Ed.2d 134 revision only temporarily, to justi- save costs never 621, to 29 §§ U.S.C. 623. age-based fies discrimination under Indeed, good is to there reason find exception. employer’s intent where an decision or policy discriminates on its face: A. Bona Fide Occupational Qualifica- where differential treatment based on a (‘BFOQ”) tion Exception protected is open explicit, trait older stigmatized workers matter, are on account of a preliminary As the affirmative their age BFOQ 4(f)(1) of the regardless employer’s § sub- defense set forth in of the jective Moreover, although motivations. inapplicable ADEA is in this case because there is no evidence that Yellow Cab itself Yellow Cab failed it in to raise its motion Hazen, 1. policy Borden’s held that a that denied sev sepa after the Third Circuit found a pay only erance eligi to were who inquiry subjective employer's rate into an mo ble disparate for retirement constituted treat unnecessary age tivations ain case of facial ment. holding 724 F.2d 1393. While that discrimination. See DiBiase v. SmithKline Hazen, may analysis not survive the Bordens 719, (3d Corp., Beecham 726 Cir. required of the intent in facial discrimination 1995). Moreover, apt. cases is still ain case decided BFOQ applies only Supreme particular, the defense The summary judgment. BFOQ in situations where who dis- described repeatedly Court defense, age on the demon- Johnson criminates basis as an affirmative defense occupation- is a fide Controls, Inc., “age strates that bona 499 U.S. at S.Ct. Airlines, necessary qualification reasonably al to the Inc. v. Thur Trans World ston, 111, 112, particular normal of the operation busi- U.S. 623(f)(1). Thus, § (1985), one of the Federal ness.” 29 U.S.C. which L.Ed.2d 523 invoking to the elements that defendant requires Procedure be Rules Civil 8(c). BFOQ satisfy age- must is that its defense specifically pleaded. Fed.R.Civ.P. “particu- to a an affirmative defense based discrimination relates plead Failure business,” Supreme which in a of that de lar Court waiver therefore results Le-Israel, job particular B.M. defined in Thurston as the See Bank Leumi fense. (7th Cir.1991). Lee, protected from which the individual is ex- plead cluded. 469 U.S. 105 S.Ct. 613. specifically did not Yellow Cab Since BFOQ in its motion for sum defense Thurston, more specifically, the Su- effectively mary judgment, Yellow Cab preme Court held that Trans World Air- waived defense. (“TWA’s”) discriminatory lines’ transfer 4(f)(1) § permissible not even if Yellow Cab importantly, More BFOQ “partic- not a for the BFOQ age raise defense because is permitted to were flight Id. court, position engineer. ular” The the defense would none- district major- policy explicitly airplane transfer allowed fail a matter of law. The theless as BFOQ captains displaced reasons other than de- ity believes that establish engineers. fense, “bump” flight less senior only prove need captains disqualified and not Id. Those their temporarily Enlow terminated Mr. reaching how- majority repeatedly position The after in bad faith. Cab, ever, privilege transfer according were denied the states Id. altogether tem- their The was to be termination of BFOQ defense explain, Court determined porary. opinion does however, BFOQ not a was meritless because this would make differ- why flight engineer. Id. at prohibits age position discrimi- ence. ADEA actually 613. had compensation, to ... S.Ct. TWA respect nation “with engineers terms, conditions, employed flight at least who privileges employ- 623(a)(1). old, years thereby defeating § It were over 60 ... ”. 29 does ment U.S.C. years 60 captains the contention that over only prohibit “permanent” termination. not contested, performing or Thus, incapable fact it is old were too old although this Id. flight engineers. as n. 18. requiring not a us remand material case. Here, too, discriminatory Yellow Cab’s permissible is not policy insurance Supreme Court has established 4(f)(1) BFOQ for age § is not BFOQ exception is a narrow defense driver. Yel- only special particular position of cab the ADEA that applies Controls, Inc., acknowledge pleadings 499 low Cab’s own Johnson situations. See Enlow, employee 1196; nineteen-year Air Mr. at 111 S.Ct. Western U.S. Criswell, 400, 412, job Lines, per- maintained a solid company, Inc. v. 472 U.S. (1985); addition, sup- In Yellow Cab’s 321 formance. 105 S.Ct. 86 L.Ed.2d Rawlinson, 321, 334, to this Court reiterated plemental brief Dothard 433 U.S. (1977). Mr. company that the did not consider In cab 97 S.Ct. 53 L.Ed.2d 786 820 costs, In According- an unsafe driver. be effort save

Enlow to ultimately adopted did not affect a new ly, policy insurance Mr. 70, and, that did not cover over carry out his duties drivers ability to for Yellow consequently, against discriminated Cab; incapable perform- he was neither though Enlow. Even previ- Yellow Cab’s Controls, job, see ing his Johnson U.S. policy ous insurance covered drivers over that an (explaining at 70, Yellow Cab nonetheless chose a new BFOQ age-based defense must relate to policy effectively saved the company including employee’s occupation, $10,000 in premiums. annual added), job) (emphasis ability to do the But Yellow Cab made this business deci- risk, Criswell, potential safety nor a see discriminatory sion Mr. Enlow’s ex- S.Ct. (finding U.S. employer’s An pense. deliberate indiffer- BFOQ age-based purportedly jus- that an ence toward a new it policy safety tified interests must be “reason- chooses to adopt is therefore no for excuse ably necessary” overriding to the interest age discrimination. Thus, public safety). Mr. Enlow’s dis- missal, despite ability, his continued violat- B. Reasonable Other Age Factors than ed “particular requirement business” (“RFOA”) Exception BFOQ of the defense. invoked, Although Yellow Cab and both Furthermore, we have refused to consid- addressed, parties the affirmative RFOA BFOQ er economic costs basis for a as defense their for motions majority opinion defense. The recites at judgment, the defense fails as a matter length Yellow Cab’s claim it laid off law as well. Yellow Cab asserted below solely necessary the time Enlow that its decision fell within the Cab both to avoid termination ADEA exception for actions taken “where negotiate of its business and to license the differentiation is based on reasonable waive Star Insurance to ex- age.” factors other 29 U.S.C. provisions policy. clusion its EEOC 623(f)(1). Here, however, § v. County Los Angeles, differentiated Mr. Enlow other driv- however, Cir.1983), we stated precisely only ers because of his age— “[ejconomic considerations ... [could making the inapplicable. defense See be a BFOQ precisely not] the basis for Inc., EEOC v. & Higgins, Johnson — those the tar- among considerations were (2d Cir.1996) (“By terms, gets result, of the Act.”2 As is irrele- supplies statute an exception ‘age-neu- vant whether Yellow Cab terminated Mr. tral’ decisions based on other factors such temporarily or because it failed to health as that might even education be judgment exercise rational in pur- business correlated with an exception chasing an insurance the terms and policies explicitly reasonably but Moreover, of which not conditions it did know. on age.”). discriminate based lection, criterion”); agree 2. Other circuits that consid- economic v. Smallwood United Air erations, concerns, job-related safety Lines, unlike Inc., (4th Cir.1981) F.2d BFOQ are not a basis for the See defense. (holding that the economic burdens involved Coll., v. State F.2d Harris-Stowe Leftwich hiring pilots grounds older was not (8th Cir.1983) (stating "eco- BFOQ exception justified United Airlines' savings discharging nomic derived from older age-based policy against hiring discrimination legitimate justifica- cannot serve as pilots). older tion under the ADEA for se- by invoking action cially discriminatory Opportunity Com- Employment Equal and loss (“EEOC”) profit line of statement. interpreting bottom regulations mission fac- that the “reasonable ADEA state defense unavailable age” tors other practice uses “employment

where ” limiting 29 C.F.R. criterion.... as 1625.7(c). § also regulations provide EEOC average on based a “differentiation Ismail; HAMOUI; Hanan Safouh ...” [workers] older employing cost of Hamoui; Hamoui; Sozan Nadin exception. under this qualify not does Hamoui, Petitioners, Rham 1625.7(f). Citing regulation, § C.F.R. rejected a cost-sav Eleventh Circuit v. identical a case with almost ings defense ASHCROFT, Attorney John Tullis v. us. facts as case before General, Respondent. Sch., Inc., Cir. Lear 1989), 66-year-old fired a private school Hamoui; Ismail; Hanan Nadin Safouh its insurance carrier driver because bus Hamoui, Hamoui; Petitioners- Rham younger. 65 or only covered drivers Appellants, ruled the school’s Eleventh Circuit v. on the driver was based decision dismiss 1490-91, Director; in Johnston, age, id. District William Immigration insurance cost the school and Naturalization creased Service, exempt complying Respondents-Appellees, Id. at 1490. ADEA. Wilson, Respondent. Aaron G. III. Ismail; Hamoui; Hanan Nadin Safouh Enlow’s claim discrimination Hamoui; Hamoui, Rham Petitioners- granted summary judgment. should be Appellees, facts for a trier There are material law, a matter of fact to determine. As Wilson, Di- Interim District Aaron G. he is employee of an

termination Immigration rector; Bureau of employ- than the limitation of his older Enforcement, Respondents- Customs ADEA, violates the policy er’s insurance Appellants. policy if the chose that even money. Had Yellow Cab terminated save 02-72480, 03-35082, Nos. 03-35286. employee because its insurance a female of Appeals, States Court United women, discharged did not cover Ninth Circuit. because its insurance employee an Asian Asians, re- surely would have excluded we March 2004. Argued and Submitted certainly, As Yel- those actions. pudiated 8, 2004. Filed Nov. 72-year- to terminate a low Cab’s decision its new insurance old cabdriver because our cen- drivers over 70 deserves

excluded law mean Anti-discrimination would sure. a fa- justify if an could nothing

Case Details

Case Name: David Enlow v. Salem-Keizer Yellow Cab Co., Inc., an Oregon Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 2, 2004

Citation: 389 F.3d 802

Docket Number: 02-35881

Court Abbreviation: 9th Cir.