An employer got sued for age bias. It admitted wanting to advance younger employees. It prevailed. HOW?!?

The U.S. Army employed a “septuagenarian civilian doctor.”

Well, at least it used to.

The Army ended his employment as Chief of Surgery and replaced him with a military officer half his age.

So, he sued the Army for age discrimination.

As part of discovery, the record confirmed that the Army’s decision to replace the plaintiff with a younger doctor was part of a hospital-wide policy change designed “to put uniformed personnel in the department leadership roles as career development opportunities for young Officers.”

About a week or so ago, I talked about direct evidence of discrimination. A statement or document that shows on its face that age (or some other protected class) motivated an adverse employment action is direct evidence of discrimination. Here, that preference for young Officers was part of an investigative report.

A literal smoking gun. Do you know how rare those are?

And the Army still won the case.

Here’s why

In cases with direct evidence of discrimination, “the burden shifts to the defendant to prove by a preponderance of the evidence that the same decision would have been made regardless of the discriminatory animus. Here, the Army did not deny the existence of the memo or the policy change designed “to put uniformed personnel in the department leadership roles as career development opportunities for young Officers.”

But the key word here is “officers.”

The plaintiff was a civilian. His replacement was an officer. I’ll let the Fifth Circuit Court of Appeals take it from here:

It is clear from the record that hospital leadership made a hospital-wide decision to replace civilian department heads with military officers. To be sure, there was an impermissible preference for “young” officers, and if [the plaintiff] were an older military officer who had been replaced by a young military officer, this could be a very different case. But [he] is not a military officer. Thus, regardless of his age, [the plaintiff] would have been replaced as Chief of Surgery because he is a civilian.

Therefore, the plaintiff could not prevail, and the court affirmed the dismissal of the age discrimination claim.

Can you believe it?