This is what is wrong with federal judges when it comes to employment law. In a recent deicison, the Fifth Circuit applied the discredited "stray remarks doctrine." Of course, a defense employment lawyer notes the application approvingly. See post. In Jackson v. Cal-Western Packaging Corporation, the Fifth Circuit Court of Appeals (federal) found a remark by management was not sufficiently related to the adverse personnel action to be admissible. Nonsense. The manager had referred to the Plaintiff Jackson a year ealier as "an old, grey-haired fart." So, a year later, when he was fired for inconsistent reasons, he claimed age discrimination. The remark shows clear age animus. Under normal circumstances, the remark would serve as direct evidence of age discriminatory motive. The burden would then move to the employer to show they would have fired the employee even without the age discriminatory motivation. That would be a dificult burden to meet. So, this discussion has real import.
The employee was 69 years old when he was terminated. He was replaced by a 42 year old employee. Jackson filed suit. The district court granted summary judgment, finding insufficient issues of fact to justify a trial by jury. Jackson was accused of sex harassment, which he denied. He claimed younger workers accused of sex harassment were not fired.
The Fifth Circuit's reasoning is wrong on several levels. First, it is simply not sensical to expect that an ageist remark from a year earlier would have no relevance at all to the decision to terminate. That simply does not reflect the reality most of us face in our everyday work lives. So, yes, this issue certainly should have gone to a jury.
Second, this reasoning by the Fifth Circuit represents the court's attempt to hang onto a discredited doctrine. The stray remark doctrine was overturned in another Fifth Circuit case from 2005. The doctrine is referred to as the "stray remark doctrine" because the remark is deemed so remote in time, and so irrelevant that is is simply a stray remark (as if stray remarks have no relevance).
In 2005, the Fifth Circuit's use of the stray remark doctrine was expressly overturned by the US Supreme Court in Reeves v. Sanderson Plumbing Products, 530 US 133, 151-152 (US 2005). In Reeves, the employee was described as "so old he must have come over on the Mayflower." The Fifth Circuit in that case had disregarded the statements saying they were not made in the context of Reeves' termination. The Supreme Court, however, found the court of appeals impermissibly substituted its judgment for that of the jury. That is, the Supreme Court found the Fifth Circuit evaluated the evidence when it should have left that function to the jury. The Supreme Court ruled that the jury should decide if the remark was too remote in time to be relevant.
So, this decision in Jackson is the Fifth Circuit's attempt to ignore Supreme Court precedent. Much to the detriment of employees who have to get by inn the real world. I have discussed this before. Some judges simply have little experience in the real world. The workplace can be venal, small and trivial. The life experiences of a judge do matter.
two lawyers who questioned his impartiality. See ABA Bar Journal report. The judge reportedly asked the plaintiff lawyer if he was being paid contingency and if so, he would not get a "house" out of the litigation. Judge McBryde says he meant the comments as a joke. 
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