Sixth Circuit: Many Ways to Defeat an Age Discrimination Claim

Last month, the Sixth Circuit affirmed the dismissal of an age discrimination claim that had been filed in 1999. Lefevers v. GAF Fiberglass Corp., No. 00-5567 (6th Cir. 1/11/12). The case had been around so long because it had been stayed during the employer’s bankruptcy proceedings. In it, the Sixth Circuit methodically rejected each argument that the plaintiff asserted in favor of finding direct evidence of discrimination and pretext. Moreover, it started with an interesting Tolstoy quotation: “We do not beat the Wolf for being gray, but for eating the sheep.” In other words, firing an older worker is illegal when it is based on age, not when it is based on another reason (such as a reduction in force and/or inadequate job performance).

The plaintiff first complained about a number of age-related comments made by managers (other than, of course, the decision-maker). One comment referred to “old” Bob Dole running against “dumb” Bill Clinton. Another concerned an inquiry into retirement plans. An HR manager inexplicably said that something needed to be done in the next year with the older supervisors. Yet another manager denied any plan to eliminate older supervisors because they were needed to run the plant. “Statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [can not] suffice to satisfy the plaintiff’s burden . . .’ of demonstrating animus.” The Court had no trouble finding that the statements were too unrelated in time and place to have influenced the individual who ultimately decided to terminate the plaintiff. Moreover, “questions concerning an employee’s retirement plans do not alone constitute direct evidence of age discrimination.” (emphasis added).

Next, the Court had no difficulty accepting the employer’s explanation that the plaintiff had been selected for termination during a reduction in force because of his inadequate performance. Among other things, he was not the only individual to lose his job, open jobs went unfilled and, obviously, the employer had ultimately sought bankruptcy protection (a drastic step if it was just to hide illegal discrimination against one employee). There were also numerous documents reflecting the employer’s opinion of his job performance, even if the plaintiff disagreed with those assessments. His “disagreement with GAF’s “assessment of his performance . . . does not render [GAF’s] reasons pretextual.” Moreover, poor job performance coupled with a reduction in force is a legitimate reason to terminate employment.

In addition, the Court found that the employer was actually motivated by his performance evaluations because three of the remaining peer supervisors were older or close in age to the plaintiff. Finally, it was insufficient to show that a younger supervisor absorbed some of his former job duties (on top of his existing job duties) when no one had been hired to replace him.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.