Supervisor’s Comment About Older Workers Didn’t Show Age Bias

By Jeffrey Rhodes September 11, 2018
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  • A supervisor's criticism about older workers may have been directed at employees with more tenure rather than those of advanced age and consequently didn't show discrimination.
  • The supervisor who made this remark didn't make the decision to fire the plaintiff. Instead, senior managers made the decision over performance concerns.
  • A dissenting judge highlighted other comments by the supervisor and said there was enough evidence to send the case to a jury.

 

A supervisor's comment that older workers were harder to train did not show that the company fired an older pharmaceutical representative due to age discrimination, the 9th U.S. Circuit Court of Appeals ruled.

The plaintiff started working for Jensen Pharmaceuticals Inc. (JPI) in 2002 as a sales representative. For 10 years, he was considered an outstanding sales representative. In 2011, however, JPI adopted a new sales model, and in 2012 the plaintiff reported to a new supervisor. 

The plaintiff had difficulty adapting to the new sales model. His sales results were poor, and his performance consistently fell short. He was counseled that he needed to change his sales approach and was placed on a performance improvement plan (PIP) when his sales did not improve. 

Once the plaintiff was placed on a PIP in 2014, his supervisor repeatedly noted that the plaintiff failed to incorporate the new selling model, did not do adequate precall planning and did not consistently implement suggestions. A different manager found similar problems: The plaintiff's calls were ineffective, and he failed to do adequate precall planning. 

The plaintiff's performance did not markedly improve while on the PIP, and he was the lowest-performing representative in his district when the company decided to fire him.

The plaintiff brought an action alleging that his termination was due to his supervisor's age bias. The district court, however, granted summary judgment for JPI, finding that the plaintiff had not shown that he was performing competently, and there was no direct evidence of discrimination.

The plaintiff did not deny that his sales were down but nonetheless asserted that the real reason for his termination was age discrimination. He alleged that his supervisor said that "older reps were the hardest reps to train [and] were most challenging."  

The district court found that the comment did not show discriminatory animus. It was unclear whether the comment referred to employees with more tenure or those of advanced age and was not necessarily demeaning, the court said.

Moreover, the court found that the supervisor was not the decision-maker regarding the plaintiff's termination. Rather, the record showed that several senior managers expressed concern that the plaintiff was not implementing the new sales model. 

The 9th Circuit upheld the district court's decision, finding that the plaintiff had not raised a genuine issue of material fact and that the plaintiff's evidence of any age-based animus was weak.

In dissent, one judge argued that there was evidence that the supervisor also stated that the plaintiff was "slower than other reps" and "outdated." Among other things, the plaintiff stated in his declaration that the supervisor called him "oldie," referred to him as "the only real oldie" on the team and told the plaintiff that he was outdated in his ways. The dissenting judge noted that the supervisor did not deny making the comments and thus argued that there was sufficient evidence of age discrimination to go to a jury.

Wexler v. Jensen Pharmaceuticals Inc., 9th Cir., No. 16-56348 (July 10, 2018).

Professional Pointer: Employers must be careful to train managers not to make discriminatory comments of any type, even comments based on employee tenure or length of service. Thoughtless comments by a non-decision-maker can be cited as evidence of discrimination and grounds for performance-based discipline or discharge.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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