‘Dinosaur Age’ Comment Keeps Plaintiff’s Discrimination Claim Alive

 

By Jeffrey Rhodes June 4, 2019
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​A 59-year-old former employee's discriminatory discharge claim could proceed to trial based on a supervisor's alleged comment to the employee that the company needed to move away from his "dinosaur-age-related theories," a federal district court ruled.

The plaintiff began his employment with the company, Hannaford Trucking Company (HTC), in 1983. He worked at the company's distribution center in South Portland, Maine, which receives, stores and delivers grocery items using commercial trucks. In 2014, HTC's ownership converted HTC into a new limited liability company, Delhaize America Transportation (DAT), which retained the plaintiff as a dispatch supervisor at the distribution center.

As a dispatch supervisor, the plaintiff managed truck fleet maintenance, working with the trucks' onboard computers and monitoring drivers' activities and hours for violations of company policy or U.S. Department of Transportation (DOT) regulations. The plaintiff worked in this role until his termination on July 8, 2016.

DOT regulations limit the hours that truck drivers can work and impose record-keeping requirements for drivers' on-duty time. As of 2016, the company used two timekeeping systems to track drivers' hours and activities: an onboard software system hardwired into each truck's engine that monitored the truck's location, motion and speed, and the driver's on- and off-duty time, and a separate system that collected the data through a cellular network. The trucks frequently experienced network connectivity issues, which would prevent the two systems from communicating and sometimes resulted in inaccurate logs of drivers' daily hours and activities.

In February 2016, the plaintiff's second-level supervisor initiated a conversation with him about his retirement plans. The plaintiff, then age 59, responded that he would not be retiring until he turned 67. Following that conversation, according to the plaintiff, the supervisor began to give him the "cold shoulder" and ended one of his long-term projects without consulting him.

Then, the supervisor convened a staff meeting regarding the need to eliminate truck drivers' speeding violations. DAT policy prohibited drivers from exceeding 70 miles per hour even where the speed limit allowed such a speed. The plaintiff expressed his opposition to this policy, stating that he did not want to reprimand drivers for doing something that was not illegal. The supervisor allegedly responded by saying that they needed to move away from the plaintiff's "dinosaur-age-related theories."

The supervisor later met with the plaintiff to discuss concerns about his job performance. This was the first performance counseling in his 33-year career with the company. The supervisor issued the plaintiff a performance improvement plan (PIP), which the plaintiff signed and did not appeal.

While the plaintiff was still subject to the PIP, DAT's transportation safety and compliance manager conducted a companywide audit of drivers' DOT hours-of-service compliance. It appeared from his review that in June 2016, there were seven occasions when the plaintiff altered a driver's log to avoid a DOT hours-of-service violation. When asked about the alterations by his supervisor, the plaintiff could not recall exactly why he made the edits, and the supervisor suspended him pending further investigation.

The supervisor claimed that he further investigated by discussing the alterations with managers from other distribution centers, but those managers did not recall specifically reviewing any documentation. The plaintiff complained that DAT was discriminating against him because of his age. The supervisor then terminated the plaintiff for falsifying driver logs in violation of company policy.

The plaintiff alleges that the defendants violated the Maine Human Rights Act by retaliating against him for complaining of age discrimination and discriminating against him based on his age. The plaintiff also alleged defamation and slander by falsely accusing him of falsifying records.

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

The defendants sought summary judgment, which the court granted on all counts except for the age-discrimination claim. The court found contradictions between the supervisor's version of the audit investigation and the accounts of others, which might show that he fired the plaintiff for a different reason. The plaintiff's evidence, including the supervisor's "dinosaur-age-related theories" comment, could support a jury finding of age discrimination.

Cyr v. Hannaford Bros. Co. LLC, D. Maine, No. 2:17-cv-00321 (March 12, 2019).

Professional Pointer: A supervisor must particularly avoid ageist or other discriminatory comments, as a careless statement by a decision-maker carries significant weight in a court's analysis of whether a former employee has presented enough evidence to go to a jury.

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

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