Earlier this month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an age discrimination and retaliation case where the employee had been terminated in a reduction in force. Sloat v. Hewlett-Packard Enterprise Co., No. 20-6169 (6th Cir. 2021). After five years of excellent performance evaluations, the plaintiff’s new manager had asked him at least 10 times when he planned to retire and encouraged staff to refer to him as “Uncle.” When confronted with whether he had a problem with the plaintiff’s age, he screamed, spoke to the plaintiff very little over the next four months, gave him the second worse possible mid-term evaluation and recommended him for termination. In short, the court concluded that the plaintiff had produced enough evidence that the jury—and not the trial judge -- should be able to decide what the employer’s true motivation was in terminating his employment.
According to the Court, the plaintiff trainer had worked
with stellar performance evaluations, incentive compensation and promotions
until he was transferred in November 2016 after 6 years to a new division,
which he had been told wanted him to roll out the training program that he developed. However, it was apparent that this was not
the true reason for his transfer because his new manager had no knowledge of or
interest in his training program and found his position to be redundant and
without any assigned responsibilities or recognition of achievements. The plaintiff
was the manager’s oldest direct report. The manager’s chief of staff called him by
the wrong name and then referred to him as “Uncle” thereafter, with support
from the manager. The manager asked him
at least ten times when he planned to retire and why he was still there and interacted
him on an extremely limited basis. After
the plaintiff complained about age discrimination, the manager then began
advocating for him to be terminated. In this mid-year performance evaluation, the
manager gave him the second lowest score. The manager also became very angry when the
plaintiff raised his concerns with HR and with the manager directly. HR refused to conduct any investigation of
the plaintiff’s concerns. The plaintiff
was informed of his termination by a different executive, who freely admitted
that he was merely the messenger and not the decisionmaker.
While the Court agreed that a few inquiries about retirement
plans could be necessary or prudent, badgering an employee – especially considering
their limited interaction – was evidence of age discrimination. That the employer attempted to explain the
inquiries was merely an attempt to shift the summary judgment burden and did
not give favorable inferences to the non-moving party:
That response is inexplicable: one or two inquiries along these lines from one’s boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. [The employer] also responds that [the manager] asked about [the plaintiff’s] retirement plans “in the context of [the manager] telling [the plaintiff] that he did not appreciate his constant emails.” Br. at 33. But that point merely views the evidence in a light favorable to [the employer]; that [the manager] complained about [the plaintiff’s] emails in these conversations does nothing to preclude the straightforward inference that [the manager] thought [the plaintiff] should retire because [the manager] thought he was too old for the job. In sum, [the plaintiff] has sufficient evidence that [the manager] was biased against him because of his age.
[The manager’s] inquiries about retirement also support an inference that [he] engaged in a series of actions, driven by bias, whose intended effect was to drive [the plaintiff] out of the company. At first (one could reasonably infer) [the manager] pushed to have [the plaintiff] leave voluntarily; to retire from a position is to leave it. That [the manager] gave [the plaintiff] “the lowest bonus of all his direct reports”—and told [him] as much directly—supports this view. So does the fact that, in March 2017, [the manager] asked [the plaintiff], “Why are you still here?” ([The manager] did not dispute that point either in his deposition.) But [the plaintiff] did not leave voluntarily, so (one could reasonably infer) [the manager] sought to terminate him. [His] first attempt took the form of a proposed one-person workforce reduction. . . —in which [the plaintiff’s] position alone would be eliminated. [The manager] abandoned that plan only after [HR] flagged it for “legal attention” and . . . advised him to wait for a company-wide workforce reduction that was then pending . ..
The Court also found sufficient evidence that the manager,
and not the executive, had been the decisionmaker or the executive had relied
on the manager’s recommendation and explanation for why the plaintiff should be
fired. The executive had limited and
only favorable impressions of the plaintiff’s work and had been unaware of how
he had been treated by the manager. There was no independent investigation and no
break in the chain of causation showing that the plaintiff had been terminated
for reasons unrelated to his manager’s alleged discriminatory animus. The Court concluded that a reasonable jury could
find that the manager’s discriminatory animus based on the plaintiff’s age was
the but-for causation, or had a determinative influence on the outcome of the
decisionmaking process.
The Court similarly found that the plaintiff could satisfy
his burden of proving that retaliation was a but-for cause for his termination:
As to that question, Sloat emphasizes that Hagler “scream[ed]” at him and was “furious” when (per Iyer’s advice) he told Hagler directly that he thought Hagler was discriminating against him because of his age. Sloat also has evidence that, after that conversation, Hagler avoided speaking with him (by Hagler’s count, they spoke seven times in the next four months), stripped him of all his remaining responsibilities as to Ropes, and gave him his worst performance review ever. Hagler also tried to get Sloat transferred off his team and—when that failed—sought to terminate him in a one-person “WFR.” Moreover, Iyer’s email flagging that “situation” for “legal attention” and an examination of “the rationale and any risks associated with it” supports an inference that even she thought the one-person “WFR” was potentially retaliatory. Thus, much of the same evidence that supports Sloat’s claim of age discrimination likewise provides sufficient support for his prima facie case for the retaliation claim.
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.
