David Enlow v. Salem-Keizer Yellow Cab Co., Inc., an Oregon Corporation

David Enlow appeals from the order denying his motion for partial summary judgment regarding his Age Discrimination in Employment Act (“ADEA”) claim, and the order granting Salem-Keizer Yellow Cab Co.’s (“Yellow Cab”) cross-motion for summary judgment. Mr. Enlow contends that he was entitled to summary judgment because he presented direct evidence that Yellow Cab permanently discharged him solely because of his age.

We affirm the denial of his motion because we conclude that Yellow Cab presented sufficient evidence to raise a genuine issue of material fact regarding whether it terminated Mr. Enlow’s employment temporarily without discriminatory intent. We reverse the order granting Yellow Cab’s motion for summary judgment, however, because the district erred in concluding that Mr. Enlow failed to present prima facie evidence that Yellow Cab acted with a discriminatory motive or intent.

We analyze the legal questions raised in this appeal separately. In Part One, we explain why we conclude that the district court erred in granting Yellow Cab’s motion for summary judgment. In Part Two, we consider whether Yellow Cab presented sufficient evidence in response to Mr. En-low’s motion…

concurring in part and dissenting in part:

I concur in the majority’s decision to vacate the grant of summary judgment in favor of defendant Salem-Keizer Yellow Cab. I dissent from the majority’s denial of summary judgment to plaintiff David En-low. The uncontested facts establish a violation of the Age Discrimination in Employment Act (“ADEA”). In ruling otherwise, the majority fundamentally misconstrues the discriminatory intent that must be shown in a case of facial discrimination.

Mr. Enlow, a 72-year-old" cabdriver, was discharged from Yellow Cab because the company’s new insurance policy did not cover drivers, over 70. The majority remands this case for a fact finder to determine whether Yellow Cab acted with discriminatory animus. Yet there are no material facts in dispute. The only question to be resolved is whether, as a matter of law, the Age Discrimination in Employment Act (“ADEA”) is violated where an employer terminates a 72-year-old employee because the company’s chosen insurance policy does not cover drivers over 70.

The answer to that question must be yes. Where an employer intentionally uses age as a criterion for an employment decision, engaging in facial…

371 F.3d 645 David ENLOW, Plaintiff-Appellant, v. SALEM-KEIZER YELLOW CAB CO., INC., an Oregon corporation, Defendant-Appellee. No. 02-35881. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 4, 2003. Filed June 10, 2004. COPYRIGHT MATERIAL OMITTED John S. Razor, The Law Office of John S. Razor, Salem, OR, for plaintiff-appellant. Robert J. Custis, Kent Custis LLP, Portland, OR, for defendant-appellee. Appeal from the United States District Court for the District of Oregon; Donald C. Ashmanskas, Magistrate Judge, Presiding, * D.C. No. CV-00-01331-AS. Before: ALARCON, FERGUSON, and RAWLINSON, Circuit Judges. ALARCON, Circuit Judge: 1 David Enlow appeals from the order denying his motion for partial summary judgment regarding his Age Discrimination in Employment Act ("ADEA") claim, and the order granting Salem-Keizer Yellow Cab Co.'s ("Yellow Cab") cross-motion for summary judgment. Mr. Enlow contends that he was entitled to summary judgment because he presented direct evidence that Yellow Cab permanently discharged him solely because of his age. 2 We affirm the denial of his motion because we conclude that Yellow Cab presented sufficient evidence to raise…