Questionable Reason for Firing Supports Age-Discrimination Verdict


By Jeffrey Rhodes July 23, 2019
Questionable Reason for Firing Supports Age-Discrimination Verdict

​Time Warner Cable's decision to fire a 60-year-old manager for directing a subordinate to change the date on their meeting form supported her $334,500 verdict for age discrimination, the 4th U.S. Circuit Court of Appeals held.

Summit Cable, a predecessor of Time Warner, hired the plaintiff, a black woman, in May 1985. The plaintiff worked for Summit and its successor corporations for more than 30 years until Time Warner fired her in August 2015. At that time, she was nearly 61 years old. Time Warner replaced her with a 37-year-old subordinate.

During her three decades of employment, the plaintiff performed well. In late 2013 and early 2014, Time Warner shifted its focus from customer service to sales. As part of this transition, the company implemented new expectations for record-keeping and quantitative metrics. Management assigned the plaintiff to a role that required her to interact more with customers and document her supervisory actions in detail. Time Warner also changed the plaintiff's direct supervisor.

After this transition, the plaintiff struggled to timely conduct and document newly mandated one-on-one meetings with her subordinates. Her 2014 performance rating was satisfactory, except in the category of growing and developing associates, for which she was rated as having partially met expectations. The plaintiff received a salary increase for 2015.

On July 21, 2015, the plaintiff conducted a one-on-one meeting with a 43-year-old subordinate. Six days later, on July 27, the plaintiff met again with the subordinate to memorialize the meeting. When the subordinate signed and dated the form July 27, the plaintiff whited out this date and asked the subordinate to write July 21, reflecting the date of their meeting. After the subordinate changed the date, the plaintiff e-mailed her new supervisor the altered form.

Days later, the plaintiff's supervisor met with the plaintiff's subordinates. The supervisor directed the plaintiff to take the day off, which she had never done before. In their meeting, the plaintiff's employee told the supervisor that the plaintiff had asked her to alter the date next to her signature. The supervisor reported this to HR, who then investigated the matter.

In early August, HR and the plaintiff's supervisor spoke with her and asked her about the changed date. The plaintiff explained that although she did not complete the form on July 21, she had completed the meeting with the employee on July 21, and this was why she had asked her to change the date on the form. According to the plaintiff, the supervisor told her "not to worry about it" and indicated that this discussion amounted to "just a slap on the wrist."

Shortly thereafter, Time Warner fired the plaintiff for falsification of a company record. This was communicated to the plaintiff by her former direct supervisor, who said to her as she was departing, "Oh, girl, you don't have nothing to worry about. You'll get another job. Just go home and take care of those grandbabies."

The plaintiff sued Time Warner for discrimination on the basis of race and age in violation of federal and state laws, including the Age Discrimination in Employment Act. At the first trial, the court granted Time Warner's oral motion for judgment as a matter of law on the race-discrimination claims. A jury hung on the age-discrimination claims, and the district court declared a mistrial.

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

At the retrial, a jury awarded the plaintiff $334,500 in damages. Time Warner renewed its motion for judgment as a matter of law, arguing that the plaintiff had presented insufficient evidence to prevail, a charge the court gave to the jury was inaccurate and prejudicial, and the court's questioning of witnesses caused a miscarriage of justice. The district court denied the motion, and Time Warner appealed to the 4th Circuit.

On appeal, the 4th Circuit found that Time Warner's questionable reason for discipline, alleged falsification of a record to correct the date of a meeting, and the former supervisor's comment to the plaintiff as she departed supported the jury's verdict. In dissent, one judge argued that the former supervisor was not involved in the firing decision, and thus there was no evidence of discrimination. The judge also argued that the district judge biased the jury against Time Warner. Nevertheless, the 4th Circuit upheld the plaintiff's verdict.

Westmoreland v. TWC Administration LLC, 4th Cir., No. 18-1600 (May 22, 2019).

Professional Pointer: Employers should closely scrutinize termination decisions for employees with long tenure. While courts generally do not assess the employer's reasons for termination, as this decision shows, a questionable basis may cause a court to let a jury infer age discrimination.

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


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