Labor & Employment Law Daily 61-year-old female employee fired for rude, insubordinate behavior and replaced by younger male can’t revive bias claims
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Wednesday, May 13, 2020

61-year-old female employee fired for rude, insubordinate behavior and replaced by younger male can’t revive bias claims

By Marjorie Johnson, J.D.

The “mere mention or suggestion of retirement and, relatedly, a succession plan” showed only that her supervisor wanted her to “leave” the company; that her replacement was a substantially younger male was not enough, by itself, to create an inference of bias.

A 61-year-old radiology manager who was terminated ostensibly because of her history of rude and insubordinate behavior that culminated during a meeting with a software vendor, and was replaced by a male subordinate 22 years her junior, failed to convince the Eighth Circuit to reinstate her age and gender discrimination claims. Evidence that other employees did not view her behavior as offensive did not create a triable issue as to pretext since it did not show that the decisionmaker lacked a true belief, based on his first-hand observations, that her behavior was inappropriate. Moreover, even if she had shown that his justifications were unworthy of credence, the employer was still entitled to summary judgment because the employee failed to show that a reasonable inference of bias could be made (Main v. Ozark Health, Inc., May 11, 2020, Shepherd, B.).

Questioned about succession plan. The employee had worked as the radiology manager for her employer’s medical center since 2005. In 2012, the new chief operating officer (COO) became her direct supervisor. In their first conversation, he asked whether she had a succession plan and later asked her whether a male subordinate who was 22 years younger could be her replacement.

Purported performances issues. The COO purportedly received several complaints about the employee’s behavior from other personnel, including a radiology staff member who claimed the employee was bullying her and a maintenance worker who claimed that she made several condescending comments while he was installing cabinets. The employee also allegedly failed to complete certain tasks and had other performance issues, including complaints from two local clinics that were unable to access radiology reports. Nevertheless, the COO gave her positive reviews from 2012 to 2014.

Rude treatment leads to firing. The COO ultimately decided to terminate her after a meeting with a software vendor in April 2015. As the sales representative presented his company’s products, the employee purportedly asked him several questions that the COO felt were patronizing and inappropriate. The head of IT also testified that she made the attendees uncomfortable and repeatedly rolled her eyes at the sales representative. She also sent him a follow-up after the meeting with comments that the COO found condescending.

On June 3, the COO advised the employee that he wanted a change in management and to go in a “different direction.” He offered her the option of either retiring or being terminated, adding that if she announced her retirement that day, she might be allowed to perform as-needed work in the radiology department. She refused, and was terminated and replaced by the younger male subordinate. She filed the instant action.

No showing of pretext. The employer moved for summary judgment. It argued that she failed to create a triable issue as to whether its proffered reason for terminating her—her “rudeness and insubordination” which culminated in her “abominable” behavior at the vendor meeting—was pretext for age or gender bias. The district court agreed and granted the motion, and the Eighth Circuit now affirmed.

Didn’t refute COO’s “honest belief.” The employee failed to dispute that she behaved inappropriately at the vendor meeting by presenting testimony of other attendees—including the sales representative—that she was neither rude nor condescending. However, to prove that the COO’s explanation was pretext, she needed to show that he did not “truly believe” that she engaged in the alleged conduct. While the testimony of other meeting attendees may show that they did not find her behavior to be offensive, it did not create a triable issue as to whether the COO—the decisionmaker—truly believed that her behavior was rude or inappropriate.

No distinction for “first-hand” knowledge. The Eighth Circuit also squarely rejected the employee’s contention that the “honest belief rule” only applies when a decisionmaker relies on reports from third parties as opposed to first-hand observations. A plaintiff may not establish pretext simply by showing that the employer’s honest belief was erroneous, unwise, or even unfair, “regardless of whether the employer’s explanation is based on first-hand knowledge or third-party reports.” Thus, while the testimony of other meeting attendees might show that the COO’s observations of the employee’s behavior were mistaken or unfair, it did not show that he did not truly believe that her behavior was rude or inappropriate.

Also didn’t refute belief about prior behavior. The employee also failed to create a triable issue as to pretext by presenting evidence that her peers never witnessed her being rude or condescending. As with the vendor meeting, the fact that other staff members did not consider her to have a history of inappropriate behavior had no bearing on whether the COO truly believed that she did.

Her prior positive performance reviews also did not demonstrate pretext. Since the culminating event that led to her termination—the vendor meeting—took place after those evaluations, they were not inconsistent with the COO’s proffered reason for firing her. And while the reviews did not mention concerns about her behavior, the employer provided other evidence of misconduct, including complaints from a radiology staff member and a maintenance worker.

No inference of age or gender bias. The Eighth Circuit has recognized that it is not enough to merely discredit an employer’s proffered reasoning; the employee also must show that a reasonable inference could be made that she was terminated was because of her age and sex. Here, the “mere mention or suggestion of retirement and, relatedly, a succession plan” showed only that the COO wanted her to “leave” the company. Moreover, the fact that her replacement was a substantially younger male could not, by itself, create an inference that she was terminated based on her sex and age.

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