Age Discrimination: “When Are You Going to Retire?”

ADEA age discrimination retire retirement Alabama Employment Law
Asking an employee about his retirement plans could be evidence of age discrimination.

Sometimes, business planning runs afoul of the law.  For example, it is perfectly reasonable for an employer to want to make plans regarding the future of its work force.  So, it might seem reasonable to ask an older employee when he or she plans to retire.  Yet, one Alabama employer is facing potential liability for age discrimination, in part because a supervisor asked an older employee if he had “plans to retire.”  See Henry v. Vencore Srvcs and Sols., Inc., No. 5:16-cv-01814-AKK, 2018 WL 1456636 (N.D. Ala. Mar. 23, 2018).

Keith Henry retired from a career in the aerospace engineering profession at age 57 in 1992.  But, after the 2008 financial crisis, he went back to work for Vencore in 2010 at age 74.  In early 2014, Vencore transferred Henry to work as a stress analysis engineer on  a contract related to Army CH-47 helicopters.  The supervisor for the CH-47 project, Cliff Meyers, soon asked Henry whether he had “plans to retire.”  Henry received positive evaluations while working on the CH-47 project, but Vencore terminated his employment two-and-a-half years later, when he was age 79.

Vencore claimed that Army budget cuts required termination of one of the CH-47 project’s five team members.  Henry was 17 to 28 years older than the other four team members.  Cliff Meyers initially testified that he selected Henry “purely on his own view of each employee’s ‘capability.'”  But, Meyers later modified that testimony to add his belief that Henry could not perform “finite element analysis.”

United States District Court Judge Abdul Kallon found sufficient evidence to require a jury trial on the issue of age discrimination.  Judge Kallon relied upon the following facts:  (1) Meyers, the primary decision maker, asked Henry about his retirement plans; (2) Henry was the only team member laid off, even though he had as much or more experience than the rest of the team; (3) he was substantially older than the rest of the team; and (4) although Vencore laid off a younger individual several months later for economic reasons, it subsequently rehired that employee for the same position Henry held.

Judge Kallon was also not persuaded by Vencore’s “finite element analysis” defense.  Myers admitted that stress analysis engineers like Henry did not need to perform finite element analysis; a job posting for the position did not mention finite element analysis; and Henry’s positive evaluations never mentioned the need to perform finite element analysis.

Anything you say to an employee can, and will, be used against you in a court of law.  Asking about an employee’s retirement plans, by itself, is not enough to impose liability for age discrimination.  But, such questions can be one important piece of evidence in building a larger case.

Employees Suing For Discrimination Can’t Ignore Bad Comparators

comparators discrimination Alabama Employment Law
Employees suing for discrimination can’t focus solely on comparator employees who were treated better. Instead, if comparator employees were also treated worse, there may be no viable claim for discrimination

United States District Court Judge Madeline Haikala recently dismissed a discrimination claim because the employee failed to show that the majority of comparators (i.e., similarly situated co-employees outside the protected class) were treated better than him.  See Burton v. Miles College, No. 2:14-CV-02471-MHH, 2017 WL 6336327 (N.D. Ala. Dec. 12, 2017).  Abraham Burton was employed by Miles College as an assistant dormitory director.  He sued the college for gender discrimination and age discrimination, and claimed that Miles paid women and younger employees more than him.

In most employment discrimination cases, employees like Mr. Burton try to use circumstantial evidence to prove discrimination.  Employees can sometimes succeed in a circumstantial case by offering evidence of “comparators” — similarly situated individuals of the opposite sex or similarly situated, substantially younger employees.  Comparators must be “similarly situated in all relevant respects.”  That is, they must work in the same position with the same experience and same supervisors.  Usually, if an employee like Mr. Burton identified a comparator who was paid more favorably, a judge would find an inference that the difference in treatment was the result of discrimination.

Mr. Burton pointed to two comparators — a younger assistant dormitory director and a female assistant dormitory director — who were paid more than him.  But, Judge Haikala refused to rely solely upon those comparators when determining whether discrimination occurred.  Instead, she relied upon a case from the Third Circuit Court of Appeals to hold that “[a] plaintiff may not pick from a valid set of comparators only those who allegedly were treated more favorably, ‘and completely ignore a significant group of comparators who were treated equally or less favorably than [he].'”  Burton, 2017 WL 6336327  at *3 (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 646-47 (3d Cir. 1998).

In this case, Miles College paid one female assistant dormitory director better than Mr. Burton, but paid five other female assistant dormitory directors worse than Mr. Burton.  Similarly, the college paid one younger assistant dormitory director better than Mr. Buton, but also paid three substantially younger assistant dormitory directors better.  Thus, Judge Haikala concluded:  “These circumstances do not give rise to an inference of discrimination ….”

It will be interesting to see if other judges in Alabama adopt Judge Haikala’s rationale.  For the time being, however, she has provided employers with an additional way to fight employment discrimination claims.


Age Discrimination: “Fire All the Old People”…”Just Kidding.”

ADEA Age Discrimination Alabama Employment Law Just Kidding
There is no “just kidding” defense in age discrimination law suits.

If one of your executives writes “Fire All the Old People,” you can expect difficulty in defending a claim under the Age Discrimination in Employment Act.  (“ADEA”)  Moreover, the odds are very slim that you can win your law suit by claiming that your executive was “just kidding.”  Those are the hard lessons that an Alabama employer learned in Wheat v. Rogers & Willard, Inc., No. 16-0282-WS-B, 2017 WL 4278347 (S.D. Ala. Sep. 26, 2017).

Ralph Wheat was a 77-year-old project manager/estimator when he was fired on May 2, 2014.  The termination decision was made by the majority owners of his company, Mike Rogers and Steve Willard.  One year prior, May 2013, Rogers attended a conference and made notes.  Under a heading titled “Attracting and Retaining employees,” Rogers wrote “‘Fire all the old people.’ Fiat President.”  Next to that statement he wrote:  “many large companies bringing in new bloo[d].” Rogers also wrote:  “Older guys — Ralph & Jerry — Mentor to their replacements — same with Diane.”  Finally, Rogers wrote:  “‘Paint’ a vision of what company will look like in three years, i.e., new, younger employees ….”

United States District Court Judge William Steele found that those notes were direct evidence of Mr. Rogers’ discriminatory intent under the ADEA.  In attempting to defend the case, Rogers & Willard offered an affidavit from Rogers for the proposition that he did not really mean what his notes said.  Based upon that assertion of Rogers alleged true intent, Rogers & Willard asked to have the case dismissed at the summary judgment stage.  Judge Steele soundly rejected that argument:  “The defendant offers no legal authority for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote — a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense. …[T]he Court rejects the defendant’s unsupported argument.”

Judge Steele’s ruling means that a jury will decide whether Mike Rogers was biased against older people, and whether Ralph Wheat’s termination violated the ADEA.  The Wheat case simply reinforces an important point that I’ve written about before:  Anything you say can and will be used against you.  The Wheat case might have turned out differently if Mr. Scott never made those notes.  But, once he put his thoughts on paper, he provided the terminated employee with enough ammunition to send the case to trial.

Employee Can’t Sue for Getting the “Silent Treatment”

silent treatment discrimination Alabama Employment Law employee
An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you:  “If you can’t say something nice, say nothing at all.”  In the workplace, this is sometimes great advice.  Rather than unleashing your true feelings on a co-worker, you can elect to ignore him.  Nevertheless, you can’t make everybody happy.  So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against.  The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated.  She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012.  She then took disability leave in June and July 2012.   Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs.  Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work.  In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.  But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions.   As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Here’s One Strategy for Challenging EEOC Document Requests

EEOC documents
In appropriate circumstances, employers can challenge the EEOC’s requests for documents

The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.  In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim.  If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.

A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request.  EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017).   In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion.  Even though she possessed no claims, the employee refused to sign the release.  As a result, the franchisee withdrew the promotion offer.  Thereafter, the employee claimed that withdrawal of the promotion was discriminatory.  The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.

While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all:  (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012.  When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.

The EEOC’s subpoena authority is broad.  It can obtain any information that is :  (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation.  42 U.S.C. § 200e-8(a).  Most disputes with the EEOC focus on the relevancy requirement.  In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance.  While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.

The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014).  In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.”  Id. at 760.  The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.”  Id. at 761.  But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.

Employers should carefully consider whether to resist a request for documents from the EEOC.  In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases.  But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case.   The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.



Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.


Earnhardt!!! Junior’s Car Dealership Wins Discrimination Case

NASCAR discrimination
Dale Earnhardt, Jr.’s car dealership won a recent discrimination case.

In a sweeping victory for NASCAR fans, the Eleventh Circuit Court of Appeals recently affirmed dismissal of a discrimination law suit against Dale Earnhardt, Jr. Chevrolet.  Wilson v. Dale Ernhardt, Jr. Chevrolet, No. 15-15352, 2016 WL 6211818 (11th Cir. Oct. 25, 2016).  (It appears that the parties or the Court incorrectly spelled Dale, Jr’s name “Ernhardt”).

Glenda Wilson claimed that Earnhardt Chevrolet refused to promote her to a guest service manager position because she was black and older than the three women hired for the position.  Yet, Ms. Wilson’s discrimination claims were undermined by her own actions.   After Ms. Wilson filed a charge of discrimination with the EEOC, the general manager of the car dealership twice asked if she would like the position.  On the second occasion, Ms. Wilson said that she was not interested in the position.

Additionally, Ms. Wilson never applied for the guest service manager position.  She argued that it would be futile to apply because an operations manager told her that she would suffer a reduction in wages if she accepted the position.  But, she never asked other service managers what they made, so that she could compare salaries.  Moreover, the general manager testified that he actually told Ms. Wilson she would not suffer a reduction in pay.

Based upon all of the those facts, the Eleventh Circuit affirmed a decision by the trial court to dismiss Ms. Wilson’s claims.  Wilson provides a useful lesson for employers faced with discrimination claims.  Many times, the best way to combat a discrimination claim is to offer the  employee what they want when you learn about the claim.  If the employee rejects that offer, then their claim for damages is severely reduced.  By offering Ms. Wilson the position she desired, the dealership also created valuable evidence that helped negate the discrimination claim.

Age Discrimination: Applicants Cannot Assert Disparate Impact Claims


Age Discrimination ADEA Disparate Impact

The Eleventh Circuit Court of Appeals has ruled that job applicants cannot assert claims for disparate impact discrimination under the Age Discrimination in Employment Act (“ADEA”).  Villareal v. R.J. Reynolds Tobacco Co., No. 15-10602, 2016 WL 5800001 (11th Cir. Oct. 5, 2016).

Most employment discrimination claims are “disparate treatment” claims.  Under a “disparate treatment” theory, an employee or job applicant claims that an employer intentionally discriminated on the basis of a protected characteristic — like race, gender or age.  In contrast, a “disparate impact” theory does not require proof of intentional discrimination.  Instead, the employee or applicant must demonstrate that a neutral policy disproportionately impacts people with a protect characteristic.

In Villareal, a job applicant claimed that hiring guidelines of R.J. Reynolds disproportionately impacted older applicants for positions.  Those guidelines suggested that a “targeted candidate” should be someone “2-3 years out of college,” who “adjusts easily to changes.” The guidelines also told a contractor reviewing applicants to “stay away from” applicants “in sales for 8-10 years.”

Villareal was a 49-year-old whose job application was rejected by R.J. Reynolds.  He sued under the ADEA and claimed that the hiring guidelines had a disparate impact on older applicants.  Nevertheless, the Eleventh Circuit found that the ADEA categorically does not permit disparate impact claims for job applicants.

In particular, the Court found that the ADEA only permits disparate impact claims under Section 4(a)(2) of the Act.  But, Section 4(a)(2) only applies to “employees” by making it “unlawful for an employer … to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”  29 U.S.C. 623(a)(2).  Because job applicants, by definition, are not yet “employees,” they cannot sue for disparate impact.

Villareal provides a victory to employers, because it eliminates an entire class of potential discrimination claims.  Nevertheless, Villareal does not provide complete protection for policies like the guidelines used by R.J. Reynolds.  Potentially, the job applicant in Villareal could have sued for age discrimination under a disparate treatment theory.  But, those claims were barred because Villareal failed to file a charge of discrimination with the EEOC within 180-days of denial of his application.


Judge Acker Continues To Limit Wrongful Termination Claims

Wrongful Termination
Wrongful Termination Claims

In two previous posts, I wrote that United States District Court Judge William Acker provided employers with a weapon against employees making multiple claims of wrongful termination: Judge Acker’s Weapon  , Judge Acker Softens Position.  In ADA, ADEA, and Title VII retaliation cases, employees must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.  Judge Acker’s earlier rulings prohibited employees from filing complaints that claimed they were terminated because they were disabled, or old, or made claims of discrimination.

On May 26, 2016, the Eleventh Circuit Court of Appeals reversed Judge Acker’s reasoning in Savage v. Secure First Credit Union, No. 15-12704, 2016 WL 2997171 (11th Cir. May 26, 2016). The Court found that Rule 8(d) of the Federal Rules of Civil Procedure expressly permits plaintiffs to plead alternative and inconsistent claims.  So, employees are allowed to file a complaint claiming that they were terminated because they were disabled, or old, or made claims of discrimination.

Undeterred, Judge Acker issued a new opinion last Friday:  Jones v. Allstate Ins. Co., No. 2:14-cv-1640-WMA, 2016 WL 4259753 (N.D. Ala. Aug. 12, 2016).  Judge Acker found that Savage merely prevented him from applying his “but for” analysis at the beginning of a case at the motion to dismiss stage.  Nevertheless, he found that Savage did not control at the summary judgment stage — when depositions and discovery are complete.  As a result, he dismissed wrongful termination claims under the ADA, FMLA retaliation and Title VII retaliation.  Effectively, he found that each of those claims cancelled the others out.

Almost certainly, the employee in Jones will appeal, and it will be interesting to see how the Eleventh Circuit addresses Judge Acker’s analysis.  For now, however, Judge Acker’s analysis effectively forces employees to limit the number of discrimination claims that they pursue.


Goodykoontz v. Diamond’s Gentleman’s Club



Sometimes, fate smiles upon us.  Thus, in my never-ceasing efforts to provide entertaining, yet informative, updates on Alabama employment law, I was pleased to see the reported decision of Goodykoontz v. Diamond’s Gentleman’s Club, No. 15-0553-WS-B, 2016 WL 2743530 (May 10, 2016).  Goodykoontz discusses the perils of age discrimination in the gentleman’s entertainment industry.

Ms. Goodykoontz was retained as a dancer at Diamond’s Gentleman’s Club.  After starting work, she was asked her age and reported that she was “almost 41.”  After a shift, the general manager of the club “invited her not to come back.”  When Ms. Goodykoontz inquired further, the general manager said:  “You don’t fit the profile I’m wanting here.”  When Ms. Goodykoontz asked why, he “snarled”:  “Because YOU’RE TOO OLD!!!!”

Diamond’s Gentleman’s Club filed a motion to dismiss Ms. Goodykoontz’s complaint, but that motion was denied.  The club argued that it did not employ the sufficient number of employees to be subject to liability under the Age Discrimination in Employment Act and that Ms. Goodykoontz was an independent contractor instead of an employee.  Nevertheless, the federal judge reviewing the motion found sufficient allegations in the complaint to allow the action to proceed.

Goodykoontz is still in the early stages of litigation.  If the club can demonstrate that it does not employ 20 employees, or if it can prove that Ms. Goodykoontz was an independent contractor, it will probably win the case at summary judgment.  Nevertheless, if the club fails on those issues, the statements by the general manager are probably direct evidence of age discrimination that will allow the case to proceed to trial.