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Can I Sue If My Boss Makes An Age Based Comment And Then Fires Me? I Need A Lawyer!

On Behalf of | Nov 27, 2015 | Age Discrimination, Employment Discrimination, Wrongful Termination |

Best Ohio Age Discrimination Attorney Answer: Can I sue for wrongful termination if my manager makes age comments and soon after I am fired? What if the supervisor who made the comment did not make the decision to fire me? Can I sue for wrongful termination if I’m fired because my boss thinks I’m too old?

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As our employment discrimination attorneys have previously blogged about, the Age Discrimination in Employment Act (“ADEA“), at the federal level, as well as Ohio employment law statutes (R.C. § 4112.02(N), R.C. § 4112.05, R.C. § 4112.14) make it unlawful for an employer to discriminate against individuals based on age (being over 40 years old). These laws apply at all phases of the employment process, from hiring to firing. (see Age Discrimination: A Good Verdict.; Age Discrimination: Clarifying A Misconception About Damages; How Do I Sue My Employer For Age Discrimination At Work? I Need A Lawyer!; Age Discrimination Video; and I Was Fired Because I’m Turning 60. I Need The Best Lawyer!)

One of the most important pieces of evidence in age discrimination claims come from supervisors or other managers that make age-based comments prior to an employee over the age of 40 getting terminated or otherwise discriminated against. Of course, this evidence is not required to bring a claim of age discrimination, but this type of evidence can be especially damning to prove that age was a factor in the termination or other adverse action (i.e. suspension, discipline or demotion).

However, if the supervisor who made the age-based comment was not directly involved in the termination or other adverse action, does that age-based comment become any less important in the case? An ongoing age discrimination lawsuit may have shed some light as to whether or not the manager who made the age-based comment has to be involved in the adverse action to allow the age discrimination claim to get to trial.

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In McCartt v. Kellogg USA, Inc. out of the Eastern District of Kentucky, McCartt sued his former employer, Kellogg, after McCartt was terminated soon after his supervisor made an age based comment. McCartt, who was 60 years of age, was terminated in what Kellogg labeled as a “corporate downsizing.” Approximately ten months prior to McCartt’s termination, McCartt’s manager told a group of other managers that McCartt was “too old and set in his ways” and that Kellogg and McCartt needed to move in a different direction. While McCartt wasn’t at the meeting, the meeting was held to determine McCartt’s midyear review, and the awful age-based comment was shared with McCartt by another manager.

Kellogg claimed that the age-based comment by McCartt’s manager does not prove that McCartt’s termination was motivated by age because the manager that made the comment was not the decision-maker that decided that McCartt should be terminated. Thus, even though the comment was obviously discriminatory, it was not related to the actual termination and Kellogg argued that the case should be thrown out before even getting to a jury.

Not surprisingly, the trial court disagreed with Kellogg’s view of the case. The trial court found that the manager’s statements were direct evidence of age bias. The court held the statement was “unambiguous” and “clearly suggested” a negative view of McCartt’s age:

[A]supervisor’s suggestion that the plaintiff should retire because of her age may constitute “strong evidence of an illegitimate motive.” Danielson v. City of Lorain, 938 F.2d 681 , 684 (6th Cir. 1991) (affirming directed verdict for the employer due to strong evidence that the plaintiff performed poorly). In addition, a decision-maker’s remarks that “oldtimers” with “thirty years” out to “get their ass out” strongly suggested age discrimination. LaPointe v. United Autoworkers Local 600, 8 F.3d 376 , 380 (6th Cir. 1993) (reversing summary judgment for the employer). Further, comments that an employee is “too old to do the job” or that a “younger person could do more” are clearly direct evidence of age bias. Wells v. New Cherokee Corp., 58 F.3d 233 , 237 (6th Cir. 1995).

Grzanka’s statement is more analogous to the cases finding direct evidence of age bias. First, the statement clearly suggests a negative view of McCartt’s age, unlike Peters, where the speaker merely observed the fact that the plaintiff was old and that he had announced his retirement. 285 F.3d at 477 . The present action is also unlike Scott, 182 F. App’x 521 , [182 F. APP’X 521], 2006 WL 1524742 , at *5, where the speaker could have merely been suggesting that the plaintiff leave, rather than suggesting that he leave because of his age, as the speaker did in Danielson. 938 F.2d at 684 . Instead, Grzanka’s statement is similar to the supervisor’s statement in Wells, where the speaker said that the employee was “too old to do the job.” 58 F.3d at 237 .

 The court also rejected Kellogg’s claim that the comment should not be factored in because the offending manager was not involved in the termination. Even though the manager was not the ultimate decision-maker, Kellogg’s HR Department relied on negative scores the manager gave McCartt when it decided to terminated McCartt. Even if the manager may not have known the scores would be directly used to determine McCartt’s termination, the court determined that it was reasonable for the manager to know that negative review scores could lead to a termination or other adverse action:

Kellogg contends that, because Grzanka did not make the ultimate decision to terminate McCartt, and because he did not know the ultimate purpose of the assessment completed for McCartt, his statement cannot be attributed to the plaintiff’s termination. [Record No. 56, p. 7] Kellogg relies on McDonald v. Union Camp Corp., which held that a “statement by an intermediate level management official is not indicative of discrimination when the ultimate decision to discharge is made by an upper level official.” 898 F.2d 1155 , 1161 (6th Cir. 1990). However, Wells refines McDonald, holding that “[w]hatever the formal hierarchy” of the employer might be, the focus of the inquiry is whether the speaker “contributed significantly” to the decision. 58 F.3d at 238 (finding that speaker contributed significantly when he worked closely and consulted with the ultimate decision-maker on personnel decisions). The Wells court reasoned that this rule keeps companies from “insulat[ing[ themselves from liability for discriminatory discharges.” Id .

Similarly, in Sharp v. Aker Plant Servs. Grp., the court found that where two upper-level management officials relied entirely on the speaker’s recommendation of whom to terminate, the allegedly-biased statement at issue constituted direct evidence of discriminatory animus. 726 F.3d 789 , 797 (6th Cir. 2013). Sharp involved a “forced ranking” system employed by the defendant for reducing labor. Id. at 794 . The court reasoned that, even though the speaker was not the ultimate decision-maker, the “discriminatory information flow” began with him and “influenced the decisions made downstream.” Id. at 797 . While the employer contended that it conducted a “multi-step, independent review of the layoff decisions,” that review was ineffective to purge the bias because it consisted “simply of comparing information submitted by [the speaker] to other information submitted by [the speaker].” Id.

This case illustrates why it is important to immediately seek out an experienced employment attorney when there is any inkling that you are being discriminated against because of age. As the McCartt case illustrates, any age-based comments are important when it comes to age discrimination claims and talking to a lawyer immediately could make a huge difference when it comes to protecting your job and your rights.

If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”


This employment law website is an advertisement. The materials available at the top of the age discrimination blog page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “What should I do …”, “I’m being discriminated against …”, or “How do I …”, your best option is to contact an Ohio attorney to obtain advice with respect to any age discrimination claim questions or any particular employment law issue that you may have. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship for your employment law needs. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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