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A jury may conclude an employee was terminated because of her age even though the trial judge conceded the evidence was "thin," the Seventh U.S. Circuit Court of Appeals ruled Aug. 18.

And because the decisionmaker had been a labor and employment lawyer, the jury was entitled to find he discharged her "knowing (or not caring) that such a decision was in violation" of the Age Discrimination and Employment Act, Judge Ilana Diamond Rovner wrote for the three-judge panel in Appelbaum v. Milwaukee Metropolitan Sewerage District (01-2977).

So the jury's "willfulness determination and award of liquidated damages were reasonable," Rovner said.

Doris Appelbaum was 60 when the district terminated her, ostensibly because she had talked about another employee's termination despite warnings against doing so.

She sued under the Age Discrimination in Employment Act, alleging a motivating factor was her age. A jury awarded her $115,000 in lost wages and an additional $87,660 for willful violation of the ADEA.

The trial judge rejected the sewer district's motion that there was insufficient evidence - writing, however, that "the evidence of age discrimination received at Appelbaum's trial was thin." The district appealed.

The Seventh Circuit panel upheld the verdict for three reasons.

It noted the sewer district had tried earlier to terminate Appelbaum in favor of a much younger employee who later was terminated for poor performance; that the district changed the reason for Appelbaum's termination, dropping a claim of poor work performance; and that her purported violation on confidentiality could be regarded as a pretext.

When a colleague asked her if she had heard another employee had been terminated, she said she had.

"When asked whether she had hear about [the] suspension, Appelbaum said that she had. Arguably, Appelbaum's response simply confirmed that she had heard the same rumor that prompted the inquiry, without either validating the rumor or disclosing any of the confidential information within her knowledge," Judge Rovner wrote.

"Nonetheless, we do not question that Appelbaum's conduct would suffice as a nondiscriminatory reason for her discharge. We are not, after all, a super-personnel department that sits in judgment of the wisdom of an employer's employment decisions," she said.

"Rather, our sole task is to decide whether evidence permitted the jury to conclude that Appelbaum's breach of confidentiality was not the true reason for her termination. . . .

"Looking to the record, we find the evidence more than sufficient to support the jury's determination," Rovner concluded.
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Publication:Liability & Insurance Week
Date:Sep 2, 2003

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