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

389 F.3d 802 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. Amended November 2, 2004. COPYRIGHT MATERIAL OMITTED John S. Razor, The Law Office of John S. Razor, Salem, OR, for the plaintiff-appellant. Robert J. Custis, Kent Custis LLP, Portland, OR, for the 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: ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges. 1 Opinion by Judge ALARCÓN; Partial Concurrence and Partial Dissent by Judge FERGUSON. ORDER 2 The court's opinion, filed June 10, 2004, [ 371 F.3d 645 ] is amended as follows: 3 The second paragraph on slip op. 7621 [ 371 F.3d at 647 ] that reads: 4 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…

Opinion by Judge ALARCÓN; Partial Concurrence and Partial Dissent by Judge FERGUSON.

ORDER

The court’s opinion, filed June 10, 2004, [ 371 F.3d 645 ] is amended as follows:

The second paragraph on slip op. 7621 [ 371 F.3d at 647 ] that reads:

is deleted.

The following paragraph shall be inserted on page 7621 [ 371 F.3d at 647 ] and substituted for the deleted text.

On the sixth line of slip op. 7623 [ 371 F.3d at 648 ], delete “seventy-two” and substitute “seventy-three” for the deleted text.

On slip op. 7623 [ 371 F.3d at 648 ], the second sentence of the second paragraph reads:

is deleted.

The following sentence shall be inserted on slip op. 7623 [ 371 F.3d at 648 ] and substituted for the déleted text:

In the fifth line of the last paragraph on slip op. 7623 [ 371 F.3d at 648 ] delete “seventy-two years old” and substitute “seventy-three years old” for the deleted text.

In the first paragraph under Part One on slip op. 7624 [ 371 F.3d at 649 ] insert the words “in order to survive a motion for summary judgment” at the end of the second sentence.

In the first line of the paragraph beginning on line 8 on slip op. 7627 [ 371 F.3d at 650 ] insert “In his opposition to…

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. But I dissent from the majority’s denial of summary judgment to plaintiff David Enlow. The majority have bought Yellow Cab’s implosive position that when it purchased a new insurance policy that reduced its premium payments by more than $10,000 per year, it did not know the terms or conditions of the new policy or *816 why it was so much less expensive than its old policy. The Age Discrimination in Employment Act (“ADEA”) does not protect an employer whose deliberate indifference toward its business policies leads it to terminate employees in violation of the ADEA.

Additionally, the majority have bought another implosive belief that the ADEA does not apply when an employee covered under the ADEA is discharged only temporarily for economic reasons. Temporary termination is not a defense under the ADEA; it qualifies under neither the bona-fide-occupational-qualification (“BFOQ”) exception nor the reasonable-factor-other than-age (“RFOA”) exception to the ADEA. Whether the termination was temporary or permanent will…