Employer Allowed To Submit 'Subsequent Good Act' Evidence

October 31, 2003 (PLANSPONSOR.com) - A "subsequent good act" of hiring an older worker after firing another worker alleging age discrimination may be submitted as relevant evidence in a discrimination case.

The US 3rd Circuit Court of Appealsfound that trial judges have the discretion to allow such evidence of a “subsequent good act.”   With the ruling, the appellate court rejected the argument made by the plaintiff that evidence of a subsequent hiring is always irrelevant to the issue of an employer’s intent as a matter of law in Ansell v. Green Acres Contracting Co, according to a Legal Intelligencer report.

Rather, the appellate court found that since the plaintiff is free to present evidence of an employer’s conduct toward other workers to show pretext, the defense must also be allowed to point to its treatment of other workers both to rebut the plaintiff’s arguments and to bolster the explanations offered by the defense. “Evidence regarding an employer’s treatment of other members of a protected class is especially relevant to the issue of the employer’s discriminatory intent,” Circuit Judge D Brooks Smith said in the court’s opinion.

Further, Smith rejected the plaintiff’s argument that the defense evidence was an improper attempt to establish the company’s “propensity.”   “The evidence offered by both defendants and Ansell was not predicated upon an inference that [the company representative] had a propensity to act in a certain way. Indeed, [the company representative] ‘sactions were never in dispute,” Smith wrote.

“Rather, the sole question was [the company representative]’s intent when he acted, or, more precisely, whether the reason offered by [the company representative] was pretextual,” Smith continued.

Case History

Harry Ansell began working for Green Acres Contracting Co as a seasonal laborer on highway maintenance jobs in 1993, and was rehired each season until December 1997 when he was permanently laid off.   At the time of the layoff Ansell was 45 and claimed a new foreman sought to increase the crew’s productivity by replacing older workers with younger workers.

To support this contention, Ansell introduced testimony that the foreman also laid off two older workers and replaced them with younger employees.   To refute this point, the lawyers for Green Acres told the jury that the foreman terminated Ansell for legitimate, non-discriminatory reasons.   As evidence, the defense attorneys pointed to four incidents of alleged insubordination on Ansell’s part.

The defense then tried to present evidence of the foreman’s treatment of other employees over the age of 40. However, attorneys for Ansell argued in a motion that such testimony should be inadmissible “other acts” evidence, offered to show propensity under Federal Rule of Evidence 404(b).

Senior US District Judge William Standish sided with the Green Acres’ defense team, noting that since Ansell had offered evidence of the hiring of younger workers, the defense must be allowed to offer evidence of hiring older workers.   The 3rd Circuit upheld this decision.