Nicholson v. Securitas Security Services, Inc., No. 15-10582 (5th Cir. July 18, 2016)

By Paul Mollica

Here’s another case involving a joint-employer relationship between a staffing agency and one of its clients. The Fifth Circuit reverses summary judgment, holding that There was a genuine dispute about whether the staffing agency should have known that the client asked it to reassign an employee for age-biased reasons.

Nicholson v. Securitas Security Services, Inc., No. 15-10582 (5th Cir. July 18, 2016): Ms. Nicholson contended that she was taken off an assignment – at a company called Fidelity – and later terminated because of age –

“There is evidence that Nicholson was ‘well-liked’ at Fidelity. Even so, in March 2012, Fidelity asked Securitas to remove her. Fidelity told Securitas that Nicholson was unable to perform new technology-related tasks. Securitas removed Nicholson from Fidelity on July 20, 2012. At the time, Nicholson was 83 years old. Nicholson’s replacement was age 29. Securitas then terminated Nicholson ten days later after determining There were no other positions Nicholson could fill.”

While the plaintiff sued both Fidelity and Securitas, the former settled, leaving the latter to defend the claim. The district court granted summary judgment, holding that Ms. Nicholson failed to prove Securitas was her employer and, in the alternative, Ms. Nicholson could not meet her ultimate burden to show Securitas would not have terminated her but-for her age.

The Fifth Circuit reverses in part. Initially, it holds that the district court erred in holding that Securitas was not an employer. Indeed, “Securitas twice admitted that it employed Nicholson, first in the contract it signed with Nicholson, and second in its answer to Nicholson’s complaint where it averred that Nicholson was its employee.”

Second, it holds that There was sufficient evidence for a jury to decide whether Securitas acted on an age-biased motive by honoring Fidelity’s request to reassign Ms. Nicholson. The panel notes that a joint-employer may be held liable for employment discrimination “participates in the discrimination, “or “knows or should have known of the client’s discrimination but fails to take corrective measures within its control.” It clarifies that “participation” means that a staffing firm “know[] or should have known the client’s reasons were discriminatory.”

The panel says that a jury could infer constructive (“should have known”) knowledge from the following facts: (1) “Securitas admits that it failed to investigate the circumstances of Fidelity’s reassignment request, including not even asking Nicholson for an explanation before removing her from Fidelity.” (2) Securitas may have “deviated from standard company practices by not investigating the reasons Fidelity wanted Nicholson removed.” (3) Securitas ignored its own guideline stating that “[i]nefficient or substandard performance” is an action that “normally do[es] not result in immediate termination” and instead is “addressed . . . through counseling.”

The panel affirms summary judgment on the plaintiff’s termination claim, because it was uncontested that There were no other positions Ms. Nicholson was qualified to fill.