Terminating a 57-year-old employee can be risky. Terminating a 57-year-old employee based on four disciplinary documents given to him on the same day, after calling him an “old fart” and making other age-related comments, isn’t too smart. It’s probably evidence of age discrimination, according to a recent case decided by the Fifth Circuit Court of Appeals in July.
Employee Maurice Goudeau began his career in 1993 as a mechanic and millwright. He was promoted to maintenance supervisor and terminated in 2011. About a year before his termination, Goudeau’s new supervisor, Mike Perkins, told Goudeau while smoking together one day, “There sure are a lot of old farts around here.” In that same exchange, Perkins inquired about the ages of two older employees whom he also supervised, and how long they had been working for the company. Perkins then said that he planned to fire both employees.
After complaining to human resources about these comments, Goudeau said his manager stopped socializing with him, reduced his managerial authority, and “really turned the heat up on (him).” Perkins also continued to make ageist remarks by referring to the smoking area as “where the old people meet,” remarking that Goudeau wore “old man clothes,” and referring to Goudeau as an “old fart.”
Then, for the first time in 18 years, Goudeau received a warning for failure to follow instructions, and a poor performance review. Goudeau claimed the review was retaliation against his comments to HR.
When Perkins then met with Goudeau to terminate him, Goudeau said he was presented for the first time with four write-ups, three of which were dated July 2011 and one August 2011. All warnings were signed by HR and Perkins on the same July date, but the incidents alleged in the warnings all occurred on different dates.
None contained Goudeau’s signature, even though there was an “acknowledgement of receipt of warning” section with a line for “employee signature.” Moreover, Goudeau contended that the infractions described in the write-ups did not involve tasks within his job duties. The fifth write-up — a second “Final Warning” — was dated the day before his termination.
Perkins also fired one of the other employees he called an “old fart.”
Goudeau sued under the Age Discrimination in Employment Act, and accompanying state law. The lower court dismissed the case against the employer, and the Goudeau appealed.
On appeal, he argued that the reasons offered by the defendant were a pretext for discrimination. The company argued that the law does not require warnings and that it could have fired an at-will employee like Goudeau for his first infraction or without any cause, so long as there was no discriminatory motive.
The court responded that, “(When) an employer opts to have a disciplinary system that involves warnings, failure to follow that system may give rise to inferences of pretext.”
In finding that the case could proceed to a trial on the issue of age discrimination, the Court offered a rare sample closing argument that Goudeau’s lawyer could offer at trial in support of its conclusion.
The court said Goudeau’s lawyer could argue that the company “says that it fired Goudeau because of his poor performance. Those complaints about Goudeau only started with this new boss after 18 years of a solid work record with the company. There is also corroborating evidence given that his signature does not appear in the employee acknowledgement section of any of the forms. The final four warnings involved duties that were not Goudeau’s responsibility. And those written warnings sure are suspicious because Goudeau never received them prior to being fired — what’s the point of that kind of warning — and three of them were signed by his supervisor on the same date, even though the infractions supposedly happened on different days.”
The court held, “We are convinced that the doubts that Goudeau has raised about the warnings, combined with the ageist comments that are potentially corroborated by the firing of both Goudeau and (the other employee), would allow a jury to conclude that age was the reason for the termination.”
This case is important to employers for several reasons. First, employers must take the “I can fire at will” fiction out of their vernacular. If an employer fires someone, it might have to prove the reason. Saying you don’t need a reason is a bad answer. I think of “at will” to mean that the employee can’t sue you for breach of contract, but can sue you for just about everything else.
Second, stray comments that reflect stereotypes and disrespect cannot be tolerated. Companies must take the time to train management that these types of remarks are not acceptable in their organization, and discipline those who make them.
Third, when an employee complains about a manager’s comments, the employer must do something about it. A simple investigation may resolve the conflict.
Finally, if you have a disciplinary protocol, then it must be followed. Exceptions to a company protocol smack of potential discrimination. Avoid policies that require progressive discipline (e.g., if you are tardy five times you will receive a verbal warning) because organizations need the flexibility to discipline based on the totality of the situation.