Fired Employee Didn't Prove Age Discrimination or Retaliation

​A longtime employee of an insurance company failed to show that his termination was the result of age discrimination or retaliation for expressing disagreement with the outcome of a sexual-harassment investigation, the 1st U.S. Circuit Court of Appeals ruled. The company presented legitimate, nondiscriminatory reasons for the firing—improper cellphone use and the alleged theft of food from a company facility—and the employee failed to show that the employer's asserted reasons were a pretext for discriminatory or retaliatory motivation. As to the retaliation claim, the court stressed that temporal proximity between an employee's protected conduct and their termination is not enough by itself to prove pretext.

The employee worked for a commercial property insurer for about 35 years. At the time of his termination, he was president and CEO of one of the insurer's corporate subsidiaries. In 2015, an employee of the subsidiary filed a sexual-harassment complaint against her supervisor. HR investigated but declined to discipline the supervisor.

The employee told HR that he disagreed with the outcome of the investigation. In February 2018, the employee alleging harassment filed a second complaint, resulting in a second investigation. The employee told HR that he had seen the supervisor who was the subject of the complaint acting aggressively toward different men and women and that other employees had previously expressed concerns regarding the workplace environment created by the supervisor. HR again concluded that it lacked sufficient evidence to determine that the supervisor had violated company policies.

In July 2018, the company began an audit of employees' cellphone accounts and discovered that the employee had three cellphone lines, two of which belonged to his wife and daughter and had been charged to the company's account for several years. The employee never reimbursed the company for these expenses.

While the investigation into the cellphone expenses was ongoing, the employee transferred his wife and daughter's cellphone lines from the company plan to a personal account. He later told company investigators that none of his family members had phone lines charged to the company account, without telling them that the phone lines had been charged to the company until the previous month.

Concurrently with the cellphone investigation, the company opened an inquiry into the employee's frequent visits to a company-owned building outside normal business hours. Surveillance footage showed the employee entering the facility's cafeteria on several occasions carrying an empty bag and leaving shortly thereafter with a full bag. The company found evidence that the employee had visited the facility at least 87 times in the previous two years, frequently after work hours or on weekends.

The company concluded that the employee had likely been stealing food from the facility for several years.

In September 2018, the company terminated the employee on the stated grounds of violations of the company's code of conduct and misappropriation of company services and property.

The employee subsequently sued the company, alleging age discrimination and retaliation under Massachusetts law. The district court dismissed the lawsuit before trial, and the employee appealed.

Age Discrimination Claim Fails

The 1st Circuit ruled that the district court was correct in concluding that the employee could not go forward with his age bias claim. The 1st Circuit found the employer had articulated legitimate, nondiscriminatory reasons for the employee's termination and the employee had failed to show that this stated rationale was pretextual.

In trying to demonstrate pretext, the employee alleged that a subordinate of his who also had multiple cellphones charged to the company was not terminated. However, the 1st Circuit said that because the other worker was the employee's subordinate, they had fewer responsibilities and lower compensation and so was not similarly situated to the employee.

Retaliation Claim Lacks Evidence

As to the retaliation claim, the appeals court similarly ruled that the employee failed to show that the employer's asserted reasons for terminating him were a pretext for a retaliatory animus stemming from his objection to and participation in the two sexual-harassment investigations.

The employee claimed that the close temporal proximity between his participation in the second investigation and his termination showed the employer's explanation was not the true one but was a pretext for a retaliatory motive.

The 1st Circuit, however, stated that while evidence of temporal proximity between a protected activity and an adverse employment action can, in some cases, give rise to an inference that an employer's stated basis for the decision was pretext masking for retaliatory motive, that evidence must be considered alongside the rest of the record.

Here, the appeals court said, the employee presented no other evidence that the company's asserted reasons for his termination were not the real reasons. The 1st Circuit affirmed the district court's ruling dismissing the retaliation claim before trial.

Dusel v. Factory Mutual Ins. Co., 1st Cir., No. 21-1609 (Nov. 1, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.