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.