“[C]ircumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant’s workplace . . . may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.”
Because a federal district court failed to view the record in the light most favorable to an employee, leading to an erroneous conclusion that he did not offer indirect evidence of age discrimination, the Sixth Circuit reversed the lower court’s grant of summary judgment against his ADEA claims. Finding genuine issues of material fact regarding pretext, the appeals court determined that a reasonable jury could conclude the employer did not fire the employee for the proffered reasons so that he met his burden of persuasion to demonstrate that age was the but-for cause of his termination (Willard v. Huntington Ford, Inc., March 11, 2020, Moore, K.).
The employee worked in automobile sales since 1997 and was a successful, veteran salesperson. He spent about half of his career at the dealership involved in this dispute. Although his performance was average in some respects, he was regarded as an excellent closer with new customers. Thus, he was one of the employer’s top salespersons, and received awards from Ford Motor Company and the dealership in recognition of his sales volume. The employee’s commission-based salary reflected his skill—while colleagues were earning roughly $40,000 annually, he earned $150,000.
The employee’s success won him one of the most visible desks in the dealership’s showroom, near the door where customers entered. He took full advantage of his location and pushed his customers’ paperwork through the dealership’s support staff.
Unwelcome ageist comments. Despite the employee’s professional accomplishments, he faced “relentless” unwelcome and inappropriate statements regarding his age and the imminence of his retirement from the general manager and from sales managers. He was about 63 years old at the time of his termination. He was also the oldest full-time new-car salesperson at the dealership.
The ageist statements began when the general manager asked the employee when he was going to retire. The employee responded that he did not intend to retire “anytime soon.” The sales managers also asked the employee when he planned to retire and used ageist insults like “grandpa,” “dinosaur,” and “over the hill.” Moreover, younger salespeople were favored over the employee in expediting their paperwork. When the employee complained, he was told that he could leave, but that not too many people were looking for a 65-year-old over-the-hill salesman. He was further told that he was “too old to be sitting by the door” and that “younger salesmen” should have that position. When the employee complained, he was told to stop taking new customers.
Confrontation and termination. In December 2016, the employee clashed with a support staff member when a dealer trade for one of his customers fell through. The employee lost his temper and an altercation ensued. Witnesses testified that the staff member escalated the situation, and was the aggressor. It was disputed whether the employee “behaved inappropriately.” Ultimately, the employee was issued a warning notice, and then later suspended for a week for aggressive behavior. He refused to sign an employee notice because it did not state the length of his suspension. When he returned to work a week later, he was terminated for failing to call in or show up on two days, and because of the argument with the support staff member.
After the employee was terminated, his desk sat empty for a few weeks until a 56-year-old salesperson was moved there. About a month after his termination, the employer hired a 52-year-old as a new-car salesperson.
The employee filed suit, alleging that the employer seized upon the incident with the support staff member and misled him about the length of his suspension so that it could terminate him because of his age. He brought claims under the ADEA and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The employer moved for summary judgment on both claims and the district court granted its motion.
Age claims. On appeal, the Sixth Circuit determined that a medley of ageist slurs by the dealership’s general manager and sales managers was compelling circumstantial evidence that the employer’s stated reasons for terminating the employee were pretextual. Analyzing each of the three stages of the burden-shifting framework for claims based on indirect evidence, the appeals court concluded that the employee had shown a genuine issue of material fact as to whether he was intentionally discriminated against because of his age.
A plaintiff establishes his prima facie case by showing that (1) he is a member of a protected group, (2) he was qualified for the position in question, (3) his employer took an adverse employment action against him, and (4) there are “circumstances that support an inference of discrimination.” In this instance, only the fourth factor was in dispute.
Indirect evidence. Because the employee pointed to evidence that the employer replaced him with a younger new-car salesperson after he was discharged and that younger salespersons were treated better, the appeals court concluded that he presented evidence to establish the fourth factor of his prima facie case.
First, the employee offered enough evidence to permit a reasonable jury to conclude he was replaced by a younger salesperson. Between January 2016 and January 2018, the employer hired three new-car salespersons. All three were at least 10 years younger than the employee. Second, the employee showed that he was treated less favorably than younger salespersons by a sales manager, which negatively impacted his ability to finalize sales. The sales manager’s preferential treatment of younger salespersons’ paperwork “support[s] an inference of discrimination” based on age at the prima facie stage. Accordingly, the appeals court concluded that the employee produced sufficient evidence for a reasonable jury could conclude he had met his prima facie burden.
The employer offered three reasons for the employee’s termination. He did not show up or call to explain his absences following a suspension; his behavior toward the support staff member was sufficient alone to justify his termination; and he had prior written and verbal disciplinary warnings.
Pretext. However, the employee pointed to evidence challenging each reason for his discharge and then provided general circumstantial evidence of age discrimination. Considering all the evidence he produced and drawing a reasonable inference in his favor, the appeals court determined that a jury could reject the employer’s proffered reasons for terminating him and could find that his age was the but-for cause of his termination. Accordingly, the appeals court reversed the judgment of the district court after concluding that the employee had met his burden to defeat summary judgment on his ADEA claim.
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