Statements About Older Workers Evidence of Discriminatory Intent

By Michael Murphy and John Bolesta Jul 2, 2014

An employer generated a triable issue of fact under the Age Discrimination in Employment Act (ADEA) when a supervisor responsible for the termination of a 71-year-old security guard employed by the Armed Forces Retirement Home (AFRH) made two statements that were indicative of a discriminatory motive, the U.S. Circuit Court of Appeals for the D.C. Circuit ruled.

The statements, when viewed in the light most favorable to the nonmoving former employee at the summary judgment stage, tended to reinforce impermissible stereotypes that older workers should not want to work and could not perform their jobs adequately, the court said.

In May 2001, when he was 69 years old, Theodore Wilson was hired as a security guard at the retirement home where he was a resident, after spending 23 years of service in the Air Force and Army.At the time, the retirement home operated a resident employee program under which residents could work at the home in various positions, including in security and health care services. Wilson had decided to become a resident in part because he could continue his employment at the home as a security guard. The home's chief of security described Wilson as a “very good employee.”

In 2002, Timothy Cox became the home’s chief operatingofficer, and decided to replace the resident employeeprogram with a resident stipend program, which limited residents’ earning capacity to no more than $120 per monthfor twelve hours of work in a “supportive role,with anyadditional work being considered an uncompensateddonation to the home. In January 2004, as a result of thedissolution of the resident employee program, the home terminated Wilson's employment. At the time of his termination, Wilson was 71 years old.

In a meeting about his decision to abolish the resident employee program, Cox told the home's residents, “You didn't come here to work, you came here to retire.” Cox also discussed his decision in a telephone conversation with Wilson's equal employment opportunity (EEO) counselor, and intimated that another issue with the older guards at the home “was that they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in D.C., what with all the threats since 9/11.” When asked to explain this statement to the EEO counselor, Cox elaborated that the home “allowed the residents to work to make them feel productive, not because they were entitled to the positions.” Cox later testified that he decided to eliminate the resident employee program in order to save costs, assure a better trained workforce, and achieve consistency with AFRH's Gulfport, Miss. facility, which had no resident employee program.

After the EEOC issued a right to sue letter and the Merit Systems Protection Board denied Wilson relief, Wilson reacted by filing a lawsuit, arguing that his termination violated the ADEA, among other claims. Prior to Wilson engaging in any discovery, thedistrict court granted summary judgment to the employer on Wilson’s ADEA claim, concluding that the plaintiff had failed to demonstrate that the employer’s stated legitimate, nondiscriminatory rationales were a pretext for discrimination. Wilson appealed the granting of summary judgment to the D.C. Circuit.The D.C Circuitreversed and remanded the dismissal of the lawsuit, pointing out that a reasonable fact-finder could conclude from Cox’s two statements that a discriminatory intent motivated the decisionto abolish the resident employee program and terminateWilson's employment. According to the court, both statements indicate the sort of “‘inaccurate and stigmatizing stereotypes that led Congressto enact the ADEA.Inparticular, as the Supreme Court has explained, it is thevery essence of age discrimination for an older employee tobe fired because the employer believes that productivity andcompetence decline with old age.’” Such statements, therefore, give rise to triable issues of fact, precluding summary judgment.

In addition, Cox's statement to the EEO counselorthat one of his problems with the older guards at the home “was that they were not doing theirjobs properly, as from time to time they would be foundasleep” gave rise to a triable issue of fact, holding that “[a] reasonable fact-finder could conclude thatCox attributed sleepiness to all older guards as a classand terminated the resident employee program on thatdiscriminatory basis.Consequently, the D.C. Circuit reversed and remanded the dismissal of Wilson’sADEA claim.

Wilson v. Cox, D.C. Cir., No. 12–5070 (June 3, 2014).

Professional Pointer: The court found that despite the employer’s stated legitimate, nondiscriminatory rationales, the insensitive comments from the decision-maker constituted direct evidence of discrimination entitling Wilson to proceed to trial.While most employers have implemented EEO training, this case reinforces the importance of refresher training.

Michael Murphy and John Bolestaare attorneys in the Washington, D.C., office of Ogletree Deakins, an international labor and employment law firm representing management.


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