By Marjorie Johnson, J.D.
A PetSmart employee was terminated for failing to adhere to the company’s “Dignity in the Workplace Policy” despite several counseling sessions, and not because of her age (approximately 60 years old) or complaints that the company preferred young people, a federal district court in Indiana ruled in dismissing her ADEA claims on summary judgment. Though she argued that the company “accommodated” younger workers through its social media policy and willingness to tolerate tattoos and piercings, it did so without reference to their age. Moreover, it was undisputed that management fielded numerous complaints about the employee’s mistreatment of other employees, including a younger associate who she “assumed was gay” but said her dislike of him “had nothing to do with that” (Wyss v PetSmart, Inc., November 26, 2018, Springmann, T.).
Issues working with others. The employee began working for PetSmart as a pet trainer in 2009 and was later promoted to area pet trainer. In 2011, she was coached on her ability to work with a new trainer and improper attempts to have that individual fired or moved to another store. Concluding that her behavior could have led to “creating a hostile work environment,” management advised her to review the company’s Dignity in the Workplace (DW) policy.
Complains about hiring of “young kids.” In January 2014, a cashier filed a written complaint recounting how the trainer treated her “like dirt.” That September, the store manager also documented that the employee had been speaking negatively about a store associate. She did not deny the comments or that she did not like working with him, but instead complained that the store was hiring “young kids” and was phasing out “old people.” Management responded by reminding her of the DW policy and its prohibition against discrimination based on age, race, appearance, or sexual orientation.
Repeated counseling. On October 7, the employee was again counseled about her treatment of the associate, who had reported that he felt harassed by her. Admitting that she did not want to work with him, she stated that she assumed he was gay but that her dislike of him had nothing to do with that. Management again reviewed the DW policy with her. Two days later, she complained about the other employees’ “childish, immature and unprofessional behavior” and management’s acceptance of their “displaying tattoos and piercings, and unprofessional behavior, including gossiping and cliques.” She also asked that management “get rid of [the associate], or at the very least, do not schedule me with him” and said that she had no intention of treating him any differently.
Several days later, she complained about the company’s use of social media, stating that it was “nonsense” and that the store wanted all young people working there. She was again admonished for speaking about employees’ ages and reminded of the DW policy. About a month later, she was once again counseled after several employee complaints regarding comments she had made. She complained that there was a double standard because the younger people could joke around and she couldn’t. In the end, management did not believe that she had committed to treating team members with dignity in the workplace and decided to terminate her.
No bias. The employee failed to present sufficient evidence that she was fired based on her age. Though she complained about the store manager’s purported favoritism toward younger coworkers—such as casually conversing with them and bringing them candy—it was just as likely that nondiscriminatory reasons (such as personal affection) prompted the behavior. Moreover, there was no evidence that the store had a “preference for hiring employees under forty” beyond her assertion that every other employee was younger than 40.
Allowing tattoos not age preference. The court also rejected her contention that younger employees “were granted accommodations” geared towards appealing to younger employees since previously forbidden practices (such as openly displaying tattoos, piercings, and unnatural hair color) were now permitted. She argued that such practices were “more common and stereotypical of people in their teens, twenties and thirties rather than an individual in their forties, fifties and sixties.” In contrast, her one requested accommodation—not to be scheduled to work with the associate—was denied.
However, PetSmart did not require that she begin displaying tattoos, piercings, or any other practice “stereotypical” of younger people but simply allowed others to do so, regardless of their age. Moreover, her requested “accommodation” appeared to go directly to the reason she was terminated and lent credence to management’s belief that she harbored an unfounded, personal dislike for an associate that impacted him and other staff. An employer’s willingness to tolerate tattoos and piercings—but not disrespectful treatment—did not suggest age bias.
No pretext. She also failed to cast doubt on the assertion that she was terminated for violating the DW policy. In the meetings leading up to her discharge, the policy was repeatedly cited, and she was repeatedly told that it was inappropriate to comment on people’s age. Though she argued that she consistently received positive performance reviews, the issue was whether she was meeting the store’s expectations at the time it decided to terminate her. Additionally, statements about her competency as a dog trainer did not address her issues with coworkers. Moreover, it was undisputed that management fielded numerous complaints from other employees that she was mistreating them, and she continued to express her dislike of the associate.
ADEA retaliation. The employee argued that she also brought a retaliation claim, but undisputedly did not include such a claim in her lawsuit. However, even if she properly sought to amend her complaint, her request would be denied as futile since she could not show that the proffered reason for terminating her was pretext for retaliation.
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