Labor & Employment Law Daily Supervisor’s remark at termination meeting was direct evidence of age bias
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Friday, August 28, 2020

Supervisor’s remark at termination meeting was direct evidence of age bias

By Marjorie Johnson, J.D.

The employee claimed that when he asked why he was being fired, his supervisor responded that “you’re kind of getting up there in years, you’re at retirement age,” which created a triable issue under both the “motivating factor” and “but for” causation standards.

A 60-year-old factory maintenance manager terminated after over 40 years of employment, ostensibly due to performance and behavior issues and because his position was no longer needed, revived his age bias claim under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). Reversing the district court’s grant of summary judgment against him, the Sixth Circuit ruled that his supervisor’s alleged age-based remark at his termination meeting constituted direct evidence of bias and the employer failed to establish as a matter of law that it would have terminated him regardless of any age-related animus (Lowe v. Walbro LLC, August 26, 2020, Gilman, R.).

The employee began working for Walbro as a stock handler at age 18 and over his 41-year tenure received several promotions. In 2014, he took on the role of area manager, where he was responsible for managing the maintenance of one of the employer’s plants, including its blow-molding machines and robotics equipment, as well as overseeing the janitorial staff.

New supervisor reduces responsibilities. In June 2016, the company hired a 35-year-old general manager (GM) at the plant, who claimed that he soon noticed that the employee’s understanding of the robotics and blow molding equipment was limited, requiring him to rely on two subordinates. Six months later, the GM removed those subordinates from the employee’s supervision, which left him managing only one portion of the building and conducting general facility maintenance.

Ageist comments. The employee claimed that during the two years that he and the GM worked together, the supervisor made several disparaging statements about his age. For instance, after he received an award recognizing his 40 years of employment, the supervisor commented loudly: “Old man, you been here longer than I am old. Aren’t you ready to retire?” He also referred to him as an “[o]ld man” and said that he was “losing a step.”

Elimination of position. In March 2018, a new HR manager purportedly reviewed the organizational charts and noticed that the employee had only a few janitors reporting to him, which led her to recommend that his position be eliminated. She also claimed that around the same time, she began to receive complaints that the employee had engaged in inappropriate behavior, such as bullying, vulgarity, and sexual innuendoes. She created a spreadsheet that catalogued six incidents of alleged inappropriate behavior, which spanned from 2015 to 2018. The final incident took place on June 19, 2018, when a subordinate reported that he made a lewd comment and inappropriate gesture during a meeting.

Termination. On June 28, 2018, the GM and HR manager met with the employee and, reading from a prepared script, the HR manager advised him that his position was being eliminated. The employee claimed that after he questioned why he was being terminated, the GM replied, “well, you’re kind of getting up there in years, you’re at retirement age, you go one way and the company’s going the other.”

Both the GM and HR manager denied that this exchange occurred. Rather, the company’s VP of HR claimed that the termination decision was a group decision made by several leaders and that the employee was fired because of a “culmination” of issues, including performance issues, the perception that his role was unnecessary, and his alleged harassing statements.

Standard of causation. Concluding that the employee’s direct-evidence argument had merit, the Sixth Circuit noted a discrepancy in Michigan caselaw as to whether an ELCRA plaintiff who brings a direct-evidence case involving mixed motives must prove “but for” causation or simply show that the animus was a substantial or motivating factor. However, here the difference was immaterial since a triable issue existed under either standard.

Remark was direct evidence. The district court erred in granting summary judgment based on its conclusion that even if the GM made the alleged ageist remarks, they were “too attenuated to rise to the level of direct evidence of discrimination.” The Sixth Circuit had “no difficulty” concluding that the “you’re kind of getting up there in years, you’re at retirement age” comment constituted direct evidence, noting it similarity to an on-point case decided by the Michigan Supreme Court.

Significantly, the alleged discriminatory remark was made by the employee’s supervisor at his termination meeting, and in direct response to his question about why he was being fired. Read in the light most favorable to him, the remark was a “literal statement” that his age was the actual reason why he was terminated, which is the “textbook definition” of the ELCRA’s prohibition against discharging an employee “because of” their age. The “most natural reading” of the remark was that his age was the reason the company fired him, regardless of which specific members of the decisionmaking team might have had an animus against him.

Mixed-motive analysis. The employer also failed to demonstrate that it undisputedly would have terminated the employee regardless of any age-related animus. First, the fact that the GM was not the only decisionmaker was not dispositive since there was evidence suggesting he gave significant input. And while it was plausible that the employer determined in good faith that his position was no longer necessary, a jury could also find that his supervisor was biased and did not actually have any serious concerns about his job performance. In particular, the jury could reason that if he did, there would have been some documentary evidence of the employee’s allegedly poor performance, which there was not.

Duties stripped to create excuse? A jury could also discount the employer’s contention that formal evaluations were not regularly conducted, especially in light of its employee handbook’s statement that employees would be “evaluated by [their] supervisor on a formal basis each year.” If so, the lack of any such evaluation could be deemed to undercut the employer’s contention that the employee’s deficient job performance was the reason why he was stripped of most of his responsibilities, which in turn bolstered the employee’s “two-step” theory that this initial action was intended to create an excuse for his later termination.

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