"No" as the Sixth Circuit recently explained again while reversing a district court's summary judgment in Moffat v Walmart:
An ADEA plaintiff need not show that she was treated less favorably than someone outside the protected class. See O'Connor v Consolidated Coin Caterers Corp, 517 US 308, 312-13 (1996)("The fact that one person in the protected class has lost out to another person in the protected class is ... irrelevant, so long as he has lost out because of his age ... [T]he fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class."). Rather, she must show circumstances that support an inference of unlawful age discrimination. Blizzard v Marion Tech College, 698 F3d 275, 283 (6th Cir 2012); Clay v UPS, 501 F3d 695, 703 (6th Cir 2007); see also Macy v Hopkins Co Bd of Educ, 484 F3d 357, 365 (6th Cir 2007)(stating that the fourth element requires a showing that a plaintiff "suffered [the adverse employment action] under circumstances which give rise to an inference of unlawful discrimination"), abrogated on other grounds by Lewis v Humboldt Acquisition Corp, 681 F3d 312 (6th Cir 2012). Such circumstances may, but need not, include an allegation that plaintiff was treated less favorably than an employee who is at least six years younger. Id. at 283-84; Grosjean v First Energy Corp, 349 F3d 332, 340 (6th Cir 2003)(establishing bright-line rule that "an age difference of six years or less between an employee and a replacement is not significant").
It appears that the district judge, among other mistakes, got all caught up in the specifics of what were considered erroneously to be a prima facie age discrimination case, not an uncommon error.
The Sixth Circuit's opinion in Moffat is unusual in that the majority is a per curiam opinion issued on behalf of Circuit Judges Helene White and Raymond Kethledge. District Judge Thomas Ludington of the Eastern District of Michigan, an appointee of President George W. Bush, issued a dissenting opinion.
