Worker's ‘gun comment’ defeats ADEA claim, but firing might not be for just cause under CBA
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Thursday, June 2, 2016

Worker's ‘gun comment’ defeats ADEA claim, but firing might not be for just cause under CBA

By Kathleen Kapusta, J.D. Although an employer may not have thought a 69-year-old employee was truly dangerous, there was evidence it terminated her because of her alleged statements about bringing a gun to work, and not because of her age, a federal district court in Illinois ruled, granting summary judgment against her ADEA claim. Her claim that the employer breached its collective bargaining agreement by terminating her without just cause survived, however, as a jury could reasonably conclude she never mentioned bringing a gun to work, or that even if she did, she made no real threat of violence in doing so (Singer v. Lewis University, May 26, 2016, Pallmeyer, R.). Threat. Hired at the age of 64, the university administrative assistant met with the HR director and a union steward five years later to discuss her concerns about being picked on and micromanaged at work. During the meeting, the university claimed she said she “understood why a person would bring a gun to work with them." The employee, however, claimed she said only that she could “understand how people snap” when they are humiliated, harassed, and bullied at work. She then purportedly reaffirmed the statement. Regardless of what she said, the parties agreed that the meeting ended cordially. Three weeks later, while the employee was on medical leave for a stomach condition, the union steward contacted an HR VP to discuss the alleged statement. She contended that after reflecting on the situation, she realized the statement did not “sound like something someone who’s in a rational mind should say and then repeat.” Claiming that another steward heard her mention bringing a gun to work during a conference call, the HR VP recommended that she be terminated. She was fired for repeatedly making threatening statements in violation of the university’s workplace violence policy. Besides the termination letter, there was no other documentation of threatening statements in her personnel file. She sued, asserting claims for age discrimination and breach of the CBA. Age discrimination claim. The university argued that the employee failed to meet its legitimate expectations because she repeatedly violated its workplace safety policy. Although she claimed she never mentioned bringing a gun to work, and even if she did, her statement that she understood why someone would was different from a statement that she would do so, the court found that because she was unable to carry her burden on the other elements of her ADEA claim, whether she created a fact issue on this element was of little consequence. Similarly situated. While the employee asserted that a younger employee who took over her job responsibilities was similarly situated to her, there was no evidence she made threatening statements or otherwise violated the workplace safety policy and the existence of a fact issue concerning whether the employee actually threatened workplace violence did not excuse her from identifying another individual who made similar comments or at least engaged in some form of threatening behavior. “The current record might permit a jury to infer that Plaintiff's firing was arbitrary or unjustified, but an inference that Plaintiff was fired because of her age would require evidence that a younger employee engaged in similar conduct but received more favorable treatment,” explained the court. Pretext. Nor was she able to show pretext despite some evidence suggesting the university did not believe her statement was as "threatening and ominous" as it later contended. Specifically, the meeting at which she allegedly made the statement ended cordially, she was allowed to continue working afterward, was allowed to drive onto the campus to retrieve her belongings after her termination, and the university never informed her colleagues prior to her termination about her alleged statement or otherwise suggested to them that she posed a threat to the workplace. Nevertheless, the university presented evidence that she was fired because of her alleged statements. The union steward testified she told the employee she would have to make a note of her statements and the HR VP testified that the HR director told her she felt she had to report the employee’s statement because "she would feel really terrible" if she remained silent and something happened. The fact that there were numerous conversations among upper management about her statement suggested that the employer had a genuine belief her statement was serious and warranted some type of response. Further, observed the court, the employee failed to provide any evidence that the true reason for her discharge was her age. Breach of the CBA. As to her claim that her termination violated the CBA’s provision requiring just cause for discharge, the court found that while there was no evidence to show the university was lying about its reason for firing her to cover up a discriminatory motive, it was much less clear that its proffered reason was a good one or that it constituted "just cause." A jury could reasonably conclude that her alleged threat was a fairly innocuous comment, said the court, finding at least a fact issue about whether the university had just cause to fire her.

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