Fifth Circuit Rules for the EEOC in Age and Disability Discrimination Lawsuit

by U.S. Equal Employment Opportunity Commission (EEOC)

Federal Appellate Court Says Trial Court Erred In Granting Summary Judgment; Case Will Be Returned To Lower Court For A Trial On The Merits 

HOUSTON - In a unanimous decision issued on Friday, July 26, 2013, the U. S. Court of Appeals for the Fifth Circuit reversed a Beaumont, Texas, trial court judge's grant of summary judgment in favor of DynMcDermott Petroleum Operations Company (DM), a federal contractor, the U.S. Equal Employment Opportunity Commission (EEOC) announced.  The EEOC had sued the company, alleging that it discriminated against an applicant on the basis of age and disability.

The Fifth Circuit found that genuine issues of material fact precluded summary judgment in favor of DM.  It returned the lawsuit to the trial court for a trial on the merits. (EEOC v. DynMcDermott Petroleum Operations Company, No. 12-40424, on appeal from the United States District Court for the Eastern District of Texas, USDC No.1:10-CV-510).

The Fifth Circuit recounted the facts of the case in its decision.  DM is a privately-held corporation that provides maintenance and operations services for the Strategic Petroleum Reserve managed by the U.S. Department of Energy. Phillip "Mike" Swafford, a former planner/scheduler for DM, was recommended for an open planner/scheduler position at DM's facility in Winnie, Texas, by both his former supervisor and the manager in charge of hiring for the position.  

According to the opinion, despite these recommendations, the facility's director, who had direct supervisory authority over the hiring manager, repeatedly stated that Swafford should not be hired because of his age, then 56 years, and his wife's cancer, which the facility's director assumed would interfere with Swafford's ability to perform his job duties.  The Court noted that the director's discriminatory statements were made both verbally and in writing in emails to company officials in New Orleans, including his supervisor, the Human Resources Director, the CEO and the company's General Counsel.  

The director also threatened the hiring manager with disciplinary action for the hiring manager's "insubordination" related to the prospective hiring of Swafford.  Subsequently, the hiring manager hired a 35-year-old applicant with no prior experience with the company or its program-specific software.  

Such alleged conduct would violate Title I of the Americans With Disabilities Act (ADA), which prohibits discrimination against individuals because of their association with people with disabilities; and the Age Discrimination in Employment Act (ADEA).   The EEOC brought a lawsuit in 2010, after first attempting to settle the matter through its conciliation process.

The district court in Beaumont granted summary judgment for DM, holding that no genuine issues of material fact existed with regard to the EEOC's claims of age and disability discrimination.  

The Fifth Circuit reversed that decision and held that the district court erred in granting summary judgment to DM on the EEOC's claims for discrimination under the ADEA and the ADA and for liquidated and punitive damages.   The Fifth Circuit concluded that the evidence is such that a reasonable jury could return a verdict for the EEOC, finding that, but for Swafford's age and/or disabled wife, DM would have hired him.

"We very much appreciate the careful scrutiny that the court of appeals gave to the facts and arguments in the case," said Barbara Sloan, the EEOC attorney handling the appeal.

Connie Wilhite, EEOC senior trial attorney and the agency's attorney in charge of the case at the trial court level, added, "The Fifth Circuit held that the record evidence would support the EEOC's version of the facts that the site director and the alleged decision-maker violated the ADA and ADEA with regard to Mr. Swafford, while knowing that their actions were illegal.  Such facts rendered the case inappropriate for judgment without trial." 

The EEOC enforces federal laws prohibiting employment discrimination. Additional information about the EEOC and the laws it enforces is available on the agency's website at

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© U.S. Equal Employment Opportunity Commission (EEOC) | Attorney Advertising

Written by:

U.S. Equal Employment Opportunity Commission (EEOC)

U.S. Equal Employment Opportunity Commission (EEOC) on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.