Labor & Employment Law Daily Forced to quit after asking much younger woman out, account manager advances ADEA claim
Monday, October 26, 2020

Forced to quit after asking much younger woman out, account manager advances ADEA claim

By Joy P. Waltemath, J.D.

The 54-year-old account manager already had apologized repeatedly for poor performance and questionable judgment when he asked a 21-year-old employee of the business next door for a date.

Despite documented poor sales performance and unprofessional behavior, a 54-year-old male account manager for Presidio avoided summary judgment on his age discrimination claim that he was forced by the company to resign just after he asked a 21-year-old female employee for a neighboring company out to dinner. A federal district court in Virginia considered evidence that the VP of sales, and decisionmaker in the account manager’s forced resignation two days later, allegedly asked him “why are you asking a woman much younger than yourself out to dinner? You’re as old as me and you asked her out to dinner!” and concluded this was direct evidence of age bias (Granet v. Presidio, Inc., October 20, 2020, Gibney, J. Jr.).

Unprofessionalism. By the time of his forced resignation, the account manager, who was 54 when he was hired, had only worked for Presidio for eight months. His employer had already expressed several concerns about his performance and judgment. He allegedly had spoken “incoherently” during an important lunch meeting with clients (for which he apologized and attributed his behavior to medication); he emailed that same account “proprietary internal pricing information” (for which he also apologized and attempted to recall the email); and he made inappropriate comments to a colleague at a professional dinner (for which he apologized, saying he was ashamed of his behavior that “has no place in the workplace).

Job performance. In addition, the company was concerned about his performance, noting a presentation at a quarterly business meeting where he did not stick to the slides and apologized for not meeting the VP’s expectations; his failure to accurately forecast his business within the company’s system, for which he apologized; and at six months’ tenure, falling $175K below his VP’s expectations of the margin he should generate. But the account manager countered with evidence of several big projects that closed shortly after his resignation, including two larger deals with margins over $900K.

The dinner invitation. A consulting company operated in the office suite next door to Presidio, and the account manager visited it two to three times a week to speak with one of its employees, who allegedly had a very good relationship with a potential client. The account manager also “interacted with” a 21-year-old female employee of the consulting company “during each visit” and eventually sent her a LinkedIn message, writing “I love chatting with you and I like you. Maybe we could grab dinner sometime or do you think I might be too young for you??”

She rebuffed his advance, saying it made her very uncomfortable, and notified her company’s HR the following day, who notified the company president, who upon seeing the account manager in his office again, escorted him out and told him not to return because of his “unacceptable and inappropriate” behavior.

Age-related remarks. The consulting company president also informed Presidio’s VP of sales of this interaction. According to the account manager, the VP then asked him “why are you asking a woman much younger than yourself out to dinner? You’re as old as me and you asked her out to dinner!” The VP also sent the account manager home, saying “you’re probably going to lose your job.” Two days later HR and the VP called the account manager at home and advised him he could resign or be terminated. He resigned that same day.

Direct evidence. In addressing the company’s motion for summary judgment against the account manager’s resulting ADEA claim, the court concluded that there was direct evidence of age discrimination sufficient to withstand summary judgment. The account manager argued that he was forced to resign because he asked out a younger woman at another company—and that he would not have been forced to quit over the same behavior if he were younger. And the court agreed that the comment suggested that the dinner overture was deemed “all the more inappropriate because of [the account manager’s] age.”

Specifically, the court reasoned that the ageist comment related to the account manager; happened only two days before his forced resignation; the VP who hired and fired him made the comment; and the comment called the account manager’s dinner proposition “the last straw” for his continued employment.

Pretext. Presidio’s position was that the employee’s unprofessional, inappropriate workplace conduct and substandard performance motivated it to force the account manager’s resignation—and indeed, the court found ample evidence of that behavior. But because the VP’s comment came on the same day that he sent the account manager home, and the VP’s email to HR even mentioned the young woman’s age in referencing the account manager’s “harassing” behavior, the court agreed that a jury could find that but for his age the account manager would have remained employed.

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