Supervisor’s ‘dinosaur’ comment keeps age discrimination claim rolling

Employee was a 59-year-old dispatch supervisor for a trucking company.  Following an ownership conversion, Employee told a fellow employee that he didn’t like the way the company was headed and was thinking about retiring.  Employee’s supervisor heard about this and questioned Employee to which Employee responded that he would not be retiring until he turned 67.

Following this conversation, Supervisor began to give Employee the “cold shoulder.”  At a subsequent meeting regarding truck drivers’ speeding violations, Employee stated his opposition to the proposed policy. Supervisor responded that the company needed to move away from Employee’s “dinosaur age related theories.”  A couple months later Employee was put on a performance improvement plan after criticizing a lateral management hire made by the employer. Supervisor also took other actions against Employee, including requiring that he change his schedule and taking away one of his projects.  

Shortly thereafter, the employer conducted an audit of the drivers’ logs and identified a number of edits made to the logs by Employee, which appeared to be falsifications to avoid a DOT hours of service violation by the driver.  The employer confronted Employee, who could not recall why he made the edits in question, given that he claimed he routinely made hundreds of edits each month. He asked for time to research the edits, but the employer placed him on administrative suspension pending further investigation.  

Employee complained that he was targeted in the audit because of his age.  He was fired less than two weeks later for “falsifying” driver logs in violation of company policy.  Employee then sued the employer for age discrimination, retaliation, defamation, and slander.

Court’s Decision

On a motion for summary judgment, the court began by ruling in favor of the employer on the retaliation claim, noting that there was no evidence that the employer knew about Employee’s complaints before he was terminated.  The court also ruled in the employer’s favor in regard to the defamation and slander claims. The court recognized that, under the applicable state law, statements made in the course of an investigation into an employee’s actions for disciplinary purposes are conditionally privileged, and to beat that privilege, a showing of malicious intent or a sole purpose of ill-will or spite must be made.  Here, the only time that the alleged defamatory statement regarding falsification of company records was made was during the termination meeting, and the court determined that once again there was not enough evidence produced to meet the burdens of the law.

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In regard to the age discrimination claim, however, the court ruled in favor of Employee.  The court held that, while the majority of the actions that Employee complained about were not materially adverse (the cold shoulder treatment, a PIP that didn’t change the terms or conditions of employment, a suspension with no lost pay), the age claim was allowed to continue based on the “dinosaur” comment.  The court found that the “dinosaur” comment was “highly probative” of discriminatory animus because it was: (1) made by the decisionmaker in Employee’s termination; (2) causally connected to the termination; and (3) made within six months of the termination.  Additionally, Employee was replaced by a younger worker. There were also multiple contradictions about the investigation into Employee’s edit logs which became the basis for the termination. With all of these facts, the court determined that there was enough evidence of age discrimination to send this claim to a jury.

Takeaway

An important thing to note here is that, while, in retrospect, the “dinosaur age” comment seems inappropriate and the inconsistencies in the investigation report should have been fixed, in isolation or the spur of the moment, the conduct complained of may be “par for the course.”  It is important to make sure that once disciplinary actions begin to take place and/or when termination is being considered, a detailed and accurate record is maintained. Furthermore, managers and supervisors need to be aware of the types of comments that are unsuitable for the workplace.  Such “off-hand” or alleged joking can, such as in the case in question, be taken as serious evidence of discrimination. Training of managers and supervisors in regard to discrimination and harassment legal standards, including being conscious of the type of comments or remarks that can be hurtful and also evidence of alleged discrimination, is quite simply a necessary preventative measure companies should take. It is advisable to consult with experienced legal counsel or other consultants to help ensure that managers and supervisors are properly trained to handle these situations appropriately and know how to address employees properly.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.