By Lorene D. Park, J.D. An "inartfully" drafted policy classifying patient transporters as acceptable or unacceptable based on their driving histories within the three years prior to "the date of application" indicated to a federal court in Texas that the policy applied only to applicants, not to employees who had worked as drivers thereafter. Because violation of this policy was an employer’s only reason for firing a 73-year-old employee who had three accidents in three years, and it did not fire a much younger driver who had four accidents in two years, summary judgment was denied on the employee’s ADEA claim. The employer’s motion was granted on his sex discrimination claim for lack of a female comparator or other evidence of bias (a misapplied policy was not enough). His retaliation claim failed because he did not timely exhaust his administrative remedies on that claim (Jones v. Pate Rehabilitation Endeavors, Inc., June 17, 2016, Lindsay, S.). When hired as a patient transporter in 2005, the employee was over 40 years old. Over the years, he was involved in several accidents. In March 2009, the company vehicle he was using for personal reasons was struck by another car. In April 2012, he hit a parked car while backing out of an apartment complex. In October 2012, the van in which he was transporting three patients was hit from behind. Another accident happened in December 2013. License verification policy. Meanwhile, the employer had a "License Verification Policy" classifying drivers as acceptable, marginal, or unacceptable based on the number of accidents or moving violations "within the past three years from the date of application." An acceptable driver could have up to one accident or moving violation and a marginal driver up to two. A driver would be "unacceptable" after three or more, and could also be unacceptable due to a suspended license or to a conviction for reckless driving, DUI, or similar infraction. Disciplinary policy. The employer also had a corrective action policy outlining disciplinary procedures. Successive steps for unacceptable behavior included verbal discussion, then first written warning, then second written warning, and finally termination if performance had not improved within 12 months after a second written warning or there was another policy violation. Disparaging remarks. According to the employee, coworkers "embarrassed and discriminated" against him because of his age and called him "old" in front of clients. Two female supervisors allegedly called him "old man," and said he couldn’t load vans due to his age. One would hold up her little finger and talk about his "little eeny-weeny penis." For his birthday in 2011, he was given a card signed by several employees. It had a rubber thimble and a Viagra pill taped inside and the phrase "Hardy’s Condom" was written under the thimble. Employee’s complaints. The employee did not complain until early 2013, when he confronted one supervisor and told her to stop talking about his penis and calling him old. On January 18, he received a written warning for unsafe driving and insubordination based on incidents from December. He complained to the other supervisor in March but the comments did not stop. Later that year he complained of ageist remarks by coworkers. Soon thereafter, he received a second written warning when he was overheard cursing and arguing with a coworker. He was fired on December 11, after his third car accident in a three-year-period. He was 73 years old at the time. Age discrimination claim proceeds. Denying summary judgment on the ADEA claim, the court first noted evidence that while the employee was fired under the three-accident rule, a much younger driver, who had four accidents in two years, was not. That was enough for a prima facie case. And while violation of a business’s policies is a legitimate reason for termination, the employer’s misapplication of its policy here suggested pretext. In the court’s view, a plain reading of the policy suggested it applied only to applicants because it referred to the number of accidents within three years "from the date of application." Nothing in the record indicated the policy applied to a driver who worked for the employer once the three-year period elapsed and the employer failed to explain why its "inartfully drafted" policy even applied to the employee. While there might have been legitimate reasons for firing the employee, the reason relied on by the employer was simply not supported by the record. Due to the employer’s wrongful interpretation and application of its policy, as well as its failure to discharge a younger driver who had four violations within only two years, a reasonable jury could find that the real reason for firing the employee was age discrimination. Sex discrimination claim fails. Although the employee made out a prima facie case of sex discrimination based on the fact that he was disciplined after the three-year period for which the disciplinary policy was applicable, the employer provided a nondiscriminatory reason for the termination. In response, the employee failed to show this was pretext for sex discrimination because the employer’s rule was misapplied as to both the employee and a female driver, and making an erroneous decision is not, by itself, evidence of bias. Even had it applied its policy correctly, the female comparator to which the employee pointed would not have been fired because she had only two accidents in a three-year period.
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