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Lessons from the 9th Circuit to Avoid Discrimination Claims

Posted Tuesday, February 25, 2020 6:28 am

The Ninth Circuit Court of Appeals’ recent ruling in favor of a terminated employee alleging age discrimination provides employers with helpful reminders to avoid being caught in a similar position.  Kocienski v. NRT Technologies (9th Cir. 2019).

John Kocienski claimed that NRT Technologies terminated him because of his age.  NRT articulated a nondiscriminatory explanation for his termination.  The question, then, was whether NRT’s reason was pretextual.  The Court held that Kocienski provided sufficient evidence to create a genuine issue of material fact that warranted going to trial.  The Court relied upon the following:

  • Kocienski alleged that during his employment, company executives made numerous remarks about his age. His direct supervisor testified that NRT’s president expressed a desire to fire Kocienski because he was “just too old.”  The Court made particular note of this testimony because it came from Kocienski’s supervisor as opposed to Kocienski himself.
  • The Court noted that NRT’s stated rationale for Kocienski’s termination was not provided to him at the time he was fired. “[D]oubt is cast on an employer’s proffered reasons for why an employee was laid off where a straightforward answer was not given when he or she was terminated, but later is provided during litigation.”
  • Kocienski provided evidence that NRT deviated from its progressive discipline policy when it terminated him.


  • Be consistent with enforcing disciplinary policies.
  • If there is a straightforward reason for terminating an employee, you may want to tell the employee the reason at the time of termination.
  • Ensure all of your employees, including executives, are appropriately trained on preventing discrimination and harassment. HEC can help.
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