Generalized Statements Were Insufficient to Show Discriminatory Intent

By John T. Ellis September 29, 2021
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​An employer's termination of an employee for violating policy after receiving prior discipline was enough to establish a legitimate nondiscriminatory reason for discharge, according to the 8th U.S. Circuit Court of Appeals.

The plaintiff worked as a private fleet safety manager for the employer in Iowa. In January 2016, the plaintiff was issued a third written warning after he disclosed an employee's medical condition during a training session. This meant the plaintiff could be fired if disciplined again.

About one year later, the plaintiff violated the employer's hazardous materials endorsement (HME) policy when he allowed a driver to continue working for 30 days after failing to obtain an HME without informing the employer. The employer gave the plaintiff the option to resign or be dismissed. The plaintiff resigned. He then sued the employer under Iowa law, alleging age discrimination.

The plaintiff presented no direct evidence of discrimination, and the district court granted summary judgment to the employer. On appeal, the plaintiff argued that the employer's reason for terminating his employment—violating the HME policy after receiving a third written warning—was a pretext for discrimination.

The plaintiff argued that his former supervisor made disparaging comments about older individuals, but the former supervisor was not involved in the decision to terminate the plaintiff's employment and the comments the plaintiff identified took place months before his termination.

The 8th Circuit also dispensed with the plaintiff's argument that his positive performance history did not warrant termination because the plaintiff's performance had not been exclusively positive and the employer relied on his recent infractions. The plaintiff was unable to show that similarly situated employees were not disciplined for violating the HME policy.

The appeals court also found the plaintiff's statistical evidence insufficient. The plaintiff showed that most safety managers who had been recently fired by the employer were over 40, but he did not provide the contextual information necessary to show discriminatory intent.

The employer's consistent and supported explanation that the plaintiff was terminated for violating the HME policy after receiving a third written warning was sufficient to overcome the plaintiff's general arguments that the employer had terminated him for discriminatory reasons. The 8th Circuit found that no reasonable juror could find the employer's reason for termination was a pretext for discrimination.

Gardner v. Wal-Mart Stores Inc., 8th Cir., No. 20-1831 (June 23, 2021).

Professional Pointer: Employers should use clear and consistent factual explanations when terminating employees. When an employer documents performance issues appropriately and consistently, a former employee will need more than generalized statements to successfully prosecute a lawsuit against the employer.

John T. Ellis is an attorney with Ufberg & Associates, LLP, the Worklaw® Network member firm in Scranton, Pa.

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