Frappied v. Affinity Gaming Black Hawk, LLC

After Affinity Gaming Black Hawk, LLC (Affinity) (defendant) purchased the Golden Mardi Gras Casino, Affinity terminated many casino employees. It then advertised to fill the vacancies. Nine terminated employees (the workers) (plaintiffs) sued Affinity for employment discrimination. Eight were female, one was male, and all were over 40. All nine filed claims for age discrimination under the Age Discrimination in Employment Act. The women also brought disparate-impact and disparate-treatment claims under Title VII of the Civil Rights Act of 1964 (Title VII), alleging they were terminated because they were women over 40. Regarding the Title VII claims, the district court dismissed the disparate-impact claim, concluding that a sex-plus-age claim was not cognizable under Title VII because Title VII did not protect against age discrimination. The district court also dismissed the disparate-treatment claim, stating both that a sex-plus-age claim was not viable and that the complaint did not sufficiently allege sex discrimination. The complaint contained statistical data, most of which compared older women to younger women and the overall treatment of women to the overall treatment of men. It also stated the ages of terminated employees versus retained employees. Aside from the statistical data, the only allegations of sex discrimination were conclusory statements that Affinity viewed older females less favorably than older males and that its actions had a discriminatory impact on older female employees. The workers appealed the district court’s dismissal of their Title VII claims.