Employment Law Daily Supervisor’s ‘dinosaur’ remark, context of discharge suggests discrimination
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Monday, March 18, 2019

Supervisor’s ‘dinosaur’ remark, context of discharge suggests discrimination

By Nicole D. Prysby, J.D.

A driver raised triable issues on his state-law age discrimination claim based on comments that the company needed to move away from his “dinosaur age” theories and on inconsistencies in the details of the investigation leading to his termination.

Denying summary judgment on a 59-year-old employee’s Maine Human Rights Act (MHRA) age discrimination claim, a federal district court in Maine reasoned that a jury could review the totality of the circumstances and find that the stated reason for his discharge (falsification of truck driver logs) was pretextual, given inconsistencies in the evidence regarding the investigation (such as who the supervisor interviewed) and the supervisor’s comment that the employee had “dinosaur age related theories.” The employee’s retaliation claim failed, though because there was no evidence the decisionmaker knew he complained to HR that he was being targeted because of his age. His defamation claim also failed, because it was based on internal documents protected by conditional privilege (Cyr v. Hannaford Bros. Co. LLC, March 12, 2019, Singal, G.).

Age-related remarks. The employee worked as a dispatch supervisor for a trucking company. In 2015, he confided in a coworker that he did not like the direction the company was going, and he was considering retiring in 2016. Word of that conversation got to the employee’s supervisor, who asked him about his retirement plans. The employee (then age 59) responded that he did not intend to retire until age 67.

Following that conversation, the supervisor began giving the employee the cold shoulder and criticized his views about company policy by saying the company needed to move away from the employee’s “dinosaur age related theories.”

Put on PIP, audited. In early 2016, the employee was put on a PIP after criticizing a lateral management hire made by the employer. His supervisor also took other actions against the employee, such as requiring that he change his schedule and taking away one of his projects. In the summer of 2016, the employer conducted an audit of the drivers’ logs and identified a number of edits made to the logs by the employee, which appeared to be falsifications to avoid a DOT violation for hours of service by the driver.

Termination and lawsuit. The employer confronted the employee, who could not recall why he made the edits in question, given that he routinely made hundreds of edits each month. He asked for time to research the edits, but the employer placed him on administrative suspension pending further investigation. The employee complained that he was targeted in the audit because of his age. He was fired less than two weeks later.

The employee brought MHRA claims, alleging age discrimination and retaliation. He also brought a defamation claim, alleging that the employer falsely accused him of falsifying records.

MHRA retaliation. The retaliation claim turned on whether the employee could establish causation. Granting summary judgment on this claim, the court found he could not, because there was no evidence the decisionmakers who fired him knew he had complained to HR.

Age discrimination claim survives. Summary judgment was denied on the MHRA discrimination claim, though. While the bulk of the actions about which the employee complained were not materially adverse (the cold shoulder treatment, a PIP that didn’t change the terms or conditions of employment, a suspension with no lost pay), his claim could proceed with respect to his termination.

The court found that under the totality of the circumstances, the employee could demonstrate that the employer’s stated reason for the termination (falsification of logs) was a pretext. There were internal contradictions about the investigation of the employee’s edit logs (such as who the supervisor interviewed and what document he shared) and it was possible that his supervisor (the key decisionmaker) misrepresented the breadth of his inquiry to mask that it never actually convinced him of the employee’s guilt, and that he fired the employee for a different reason.

The discriminatory comment from the supervisor was further evidence; it was difficult to interpret the supervisor’s “dinosaur age related theories” comment as anything other than disdainful of the employee’s advanced age. The comment was highly probative of discriminatory animus because: (1) the decisionmaker in the employee’s termination made it, (2) it was temporally proximate to that adverse action, and (3) it was causally connected to that action. In addition, the employee was replaced with a younger worker.

Defamation claim. The employer argued that the defamation claim failed because any intracompany communications involving accusations that the employee falsified documents are protected by conditional privilege. The court agreed, and also rejected the employee’s argument that supervisors abused the privilege. The employee failed to identify a particular statement by a manager that he claimed was defamatory, or that any statements made were solely out of spite or ill-will.

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