Terminating Disruptive Employee Wasn’t Age Discrimination


By Stephen J. Dunn January 15, 2019

​A federal district court found no evidence of age discrimination when an employer cited a laboratory technician's numerous complaints about management among the reasons she was selected for termination in a reduction in force.

In 2015, Badger Mining Co. faced serious financial difficulties and decided to implement a reduction in force. The company chose to include the plaintiff because of her negativity and frequent complaints, which made other employees uncomfortable. The plaintiff's co-workers and managers described her as "snippy," "rude" and "a schoolyard bully."

On one occasion, the plaintiff became upset with a co-worker on a phone call and e-mailed her in all caps, "Did your Mom ever tell you it is not nice to hang up on people!!!!!!" The plaintiff allegedly complained that she was treated like a "peon" and accused her supervisor of "speaking out of both sides of her mouth."

The plaintiff acknowledged being critical of the company's management but insisted she was only speaking her mind. She filed an age-discrimination lawsuit accusing the company of treating her less favorably than similarly situated younger employees. She emphasized her positive reviews as evidence that performance could not have been a factor in the decision to let her go.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In its motion for summary judgment, the employer conceded that the plaintiff was good at the technical aspects of her job but explained that she was selected for reduction because of her negative and disruptive attitude. The court agreed, finding that an analysis of an employer's legitimate expectations includes not just an individual's actual job performance but also other factors such as insubordination and workplace camaraderie.

The plaintiff argued that she had never received formal disciplinary action, but the court noted she was fired not for misconduct but rather as part of a reduction in force. In that context, the court ruled, it was not surprising the company would focus more on an employee's overall fit than her technical abilities or number of write-ups.

While observing that more-favorable treatment of similarly situated younger employees could be indicative of discriminatory intent, the court found that the company retained other technicians who were older than the plaintiff. It also held that comments made by the plaintiff's supervisors about an "old guy" and the company's need to be "younger" were stray remarks made long ago and unrelated to the termination decision. Finally, the court concluded that offering older employees an early retirement is not indicative of age discrimination.

The court granted the company's motion for summary judgment and dismissed the plaintiff's age-discrimination claims.

Hart v. Badger Mining Corp., W.D. Wis., No. 12-cv-560-jdp (Nov. 16, 2018).

Professional Pointer: Employers considering a reduction in force should document the reasons for selecting affected employees. This is useful not only in defending against discrimination claims but also in ensuring that the process is deliberate and fair.

Stephen J. Dunn is an attorney with Van Hoy, Reutlinger, Adams & Dunn, the Worklaw® Network member firm in Charlotte, N.C.


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