Shoulder-Shrugging Employee’s Age Claim Is Revived

By Amelia J. Holstrom Nov 9, 2015

An employee’s discrimination claims under the Age Discrimination in Employment Act (ADEA) may proceed to trial because there was a question of fact as to whether the reason the employer gave for the employee’s termination—that he shrugged his shoulders in response to a question, which the employer considered to be insubordination—was the real reason, according to the 5th U.S. Circuit Court of Appeals.

Marcelino Salazar began working for Cargill Meat Solutions in the mid-1980s. In 2007, Salazar became a feeder-truck driver in Cargill’s feed department. In this role, he delivered cattle feed. The supervisor of the feed department had regular morning meetings with all feed department staff.

On June 25, 2012, Filiberto Polanco, supervisor of the feed department, held the usual morning meeting. All of the feed department staff were present, including Salazar, who was then 56 years old, as well as two younger employees, 19-year-old Stephen Gonzalez and 29-year-old Justin David. At the meeting, as he often did, Polanco asked the truck drivers if they were having any problems with their trucks. When Polanco posed the question to Salazar, he shrugged his shoulders in response. Salazar claimed that he had coffee in his mouth, but Polanco perceived Salazar’s action to be a refusal to answer his question and deemed it insubordinate conduct. Salazar, who had been an employee of the company for more than 20 years and had not been subject to any previous disciplinary action, was immediately terminated, even though company policy indicated that a warning or formal write-up should occur prior to termination. Cargill then replaced Salazar with 19-year-old Gonzalez.

Cargill moved to dismiss Salazar’s ADEA claim in court, arguing that Salazar was not entitled to go to trial because he did not provide any evidence to suggest that the reason Cargill gave for his termination was not the real reason. The district court ruled in favor of Cargill and dismissed Salazar’s claim. Salazar appealed.

The 5th Circuit Court of Appeals disagreed with the lower court. It noted that to survive a motion for summary judgment, Salazar only needed to present some evidence suggesting that Cargill’s explanation for the termination was untrue. The court noted that Salazar had done this. Specifically, Salazar presented evidence showing that he had not been subject to any disciplinary action in more than 20 years of employment with Cargill; that individuals shrugged their shoulders routinely at the company, and no one had ever been terminated for this behavior before; that Cargill failed to follow its ordinary disciplinary procedures; and that he was replaced by a younger employee. As a result, the 5th Circuit concluded that Salazar’s ADEA claim could proceed to trial.

Salazar v. Cargill Meat Solutions Corp., 5th Cir., No. 15-10097 (Oct. 8, 2015).

Professional Pointer: This case highlights how important it is for employers to follow their company policies. When policies, especially disciplinary action policies, are not applied consistently and fairly, employers open themselves up to costly discrimination lawsuits.

Amelia J. Holstrom is an attorney with Skoler, Abbott & Presser, the Worklaw® Network member firm in Springfield, Mass.


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