And, in other interesting EEOC news, the EEOC recently brought a lawsuit against Kaplan Higher Education Corporation, accusing it of discriminating against black job applicants through the way it uses credit histories in its hiring process.  The EEOC alleges that Kaplan’s rejection of job applicants based on their credit history has “disparate impact” on black applicants.

Accordingly, Fox’s claims for age discrimination under the Age Discrimination and Employment Act (ADEA) and under North Carolina state law can proceed to trial.  This decision is a significant victory because North Carolina federal courts rarely rule for employment law plaintiffs when deciding summary judgment motions.  Fox is represented by Joshua Van Kampen.

More from the opinion below: 

This is an age discrimination action against Alexander County filed under the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Employee Retirement Security Act, 29 U.S.C. §§ 1001-1461 (“ERISA”), along with a supplemental state claim arising out of the Plaintiff’s demotion from his supervisory role with the Alexander County Emergency Medical Services (“EMS”) on April 18, 2006.

Ultimately, “the burden of establishing a prima facie case is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. Though Alexander County presented evidence that Terry  [*24] Fox was not meeting its expectations, Terry Fox countered with evidence that is at least sufficient to create a question of fact that Alexander County’s expectations were indeed “legitimate.” Accordingly, this court finds that Fox has met the “relatively easy test” of making out a prima facie case and will proceed to the second step of the McDonnell-Douglas framework.

Here, looking at the totality of the circumstances, there is ample evidence from which a reasonable juror could conclude that, in the words of the Reeves Court, Alexander County’s “asserted justification is false.” In determining whether an employer’s justification is pretextual, the Court may consider similar facts to those it considered in adjudicating the prima facie case. See Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) [*28] (holding a plaintiff failed to show pretext “for the same reasons that he could not make that showing with respect to his discriminatory discharge claim”). Fox points to at least thirteen facts from which a jury could infer that Alexander County’s reasons for demoting Fox were pretextual. This court finds that at least three of the arguments put forward by Fox would allow a reasonable juror to conclude that the justifications given by Alexander County were pretextual.

Because there is a genuine issue of fact which precludes a grant  [*33] of summary judgment on Fox’s ADEA claim, the Court must also deny Alexander County’s motion with respect to Fox’s state law claim under N.C. Gen. Stat. § 143-422.2. See Alderman v. Inman Enterprises, Inc., 201 F. Supp. 2d 532, 546 (M.D.N.C. 2002)(“In determining the parameters of an age discrimination claim under N.C. Gen. Stat. § 143-422.2, the Court should apply the same standards that apply under the ADEA.”), aff’d, 58 Fed. App’x. 47 (4th Cir. 2003).