Directive that CEO get rid of ‘old son of a bitches’ and other remarks support ADEA claim
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Wednesday, June 1, 2016

Directive that CEO get rid of ‘old son of a bitches’ and other remarks support ADEA claim

By Lorene D. Park, J.D. Denying cross-motions for summary judgment on the ADEA and state-law age discrimination claims of a longtime employee and senior VP, a federal district court in Kentucky found triable issues as to whether he was terminated based on his age under both the direct and indirect evidence standards, in light of ageist remarks by the CEO and a directive from his boss to get rid of the “old son of a bitches.” The employee’s retaliation claim failed, however, because there was no evidence that his complaint to a parent company’s general counsel was ever relayed to his employer (Jecker v. Monumental Life Insurance Co., W.D. Ky., May 23, 2016). Promotion but no raise. The longtime insurance company employee held various positions and eventually became the “Senior Field Vice President” (SFVP). The CEO believed he had “communications skills, enthusiasm, tenacity,” and other strengths. As an SFVP, his duties included overseeing a sales associate program, developed in 2008 to save costs by recruiting agents who would work as independent contractors. Just before assuming the position, he was a “Senior Regional” VP, as were two other individuals (ages 61 and 67). All three reported to the CEO and were promised raises when the employee was promoted and the other two took on his former responsibilities. When the raises did not materialize, the employee complained to the CEO, the CFO, and the business unit general counsel (GC) for the parent company. He remarked to the GC that at his age (then 57), he had few superiors to which he could complain. “Granted” retirement. According to the CEO, in mid-2009 the employee lost conviction in the success of the sales associate program. He sent the CEO emails in September asking to resume his old duties in addition to program duties, stating: “I don’t see myself at that Finish Line . . . but rather at the Finished Line! . . . . I will continue to do my best with the MSA Program throughout this next year . . . but if (or when) the time comes, let’s agree to be respectful and treat each other with dignity . . . and remember some great times! . . . It’s been a great run!!” The CEO claimed the employee said in October 2009: “[G]et me to [age] 58 and I am out of here,” though the employee denied it. Summoned to a meeting in November, the employee thought he was being promoted, but he was told that he was “going to get [his] wish” and the CEO was going to “grant” his retirement request. The employee resisted but was terminated December 31. Age discrimination claims survive. Summary judgment was denied on the employee’s ADEA and Kentucky Civil Rights Act (KCRA) age discrimination claims. First, the court found no direct evidence of bias. The employee alleged many ageist comments by the CEO and CFO, including that certain employees were too old and the company needed “new blood.” Also, a former regional VP testified that he overheard the CEO’s superior tell the CEO “[I]t’s time you got rid of those old son of a bitches,” in reference to the employee and his two counterparts who were in their 60’s, to which the CEO responded “we’re working on it right now.” However, the only comment that might be considered direct evidence was the CEO’s remark to a regional VP that it was time for the employee “to go” and the company should be run by “younger people.” While that tended to prove discriminatory intent without any inference, the CEO denied making that statement, raising a triable question of fact. The employer was also denied its motion because there were material questions as to whether he was replaced by someone outside of his protected class or was singled out for a reduction in force due to his age. Although the employer claimed his duties were assumed by two existing employees, the employee had evidence suggesting that, soon after he was fired, a 36-year-old was hired to replace him. There were also questions beyond the prima facie case. While cost reduction is a legitimate reason for a reduction in force, evidence of the ageist remarks by the CEO and his superior suggested pretext. Even though the CEO denied that the exchange regarding the “old son of a bitches” took place, a jury would have to decide who to believe. No retaliation. Granting summary judgment, however, against the employee’s claim that he was fired in retaliation for complaining of age bias to the parent company’s general counsel and to the CEO, the court explained that he failed to show his employer was aware of his complaint to the GC. The employee argued that the GC was a “major corporate executive” so knowledge could be imputed, but the case he cited did not stand for that proposition. Nor did he offer evidence that the GC relayed his complaint to the CEO—the sole decisionmaker—or anyone else in a position of authority with his employer. Moreover, the GC didn’t even work for his employer, but rather worked for the parent company. Summary judgment was also appropriate because the employee’s deposition testimony showed that he did not complain of age discrimination to the CEO as he claimed. He relied on one conversation he had during a meeting in Dallas but, when asked specifically about the meeting, he stated that he “didn’t have a complaint” at that time about age discrimination. Consequently, this conversation did not constitute a protected activity.

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