Best Ohio Age Discrimination Attorney Answer: Is it age discrimination if my boss tells me that I need to retire because I am getting too old to keep working? What should I do if I’m fired after my manager tells me that I should be enjoying retirement? Can I sue for wrongful termination if I was fired today because my boss said they wants to get younger?
Sometimes age discrimination is subtle in the form of differential treatment for one employee versus another. Other times, age discrimination is more overt and direct in the form of ageist comments made by a supervisor against an employee. The following is an example of the latter:
In McCartt v. Kellogg USA, Inc., the United States District Court for the Eastern District of Kentucky denied an employer’s motion for summary judgment (which is when a defendant asks the court to dismiss the case before it gets to a jury) as to an employee’s age discrimination claims after finding that the employee set forth sufficient “direct” evidence of age discrimination by his employer.
In McCartt, the employee was hired by Kellogg in 1979 as a Territory Manager in the Lexington, Kentucky area. In 2013, McCartt complained to Kellogg about some alleged discriminatory statements that McCartt’s boss Kevin Grzanka made to him based on his age. Soon thereafter, around March, 2013, Kellogg terminated McCartt, who was over sixty years old at the time. As part of his complaint, McCartt complained that Kellogg discriminated against him based on his age. Specifically, McCartt claimed that Grzanka made ageist comments towards him during his employment, which were causally related to his termination.
The Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age. One way to prove age discrimination under the ADEA is for the employee to set forth “direct” evidence of age discrimination. Direct evidence of age discrimination includes an employer’s comments referring directly to an employee’s age. Ohio’s age discrimination laws, R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14, follow the same approach to proving employment discrimination.
In McCartt, the employee alleged that Grzanka’s alleged statement concerning the employee to District Manager John Taylor at Taylor’s mid-year evaluation in summer 2012 was direct evidence of age discrimination. In Taylor’s deposition, he claimed that Grzanka stated, “Mr. McCartt is too old and set in his ways to make the changes necessary. We need to, more or less, move in different directions.” Kellogg argued that Grzanka’s statement could not save McCartt from summary judgment because it was at best an isolated comment. The Court rejected this argument.
Specifically, the Court found that Grzanka’s statement was directly related to McCartt’s age and thus evidence of age bias. The Court stated:
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. The present action is also unlike, 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. 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.”
Second, Grzanka’s statement suggests animus because it directly concerns the plaintiff and the adverse employment decision at issue. Taylor alleges that Grzanka specifically mentioned “Mr. McCartt” in a discussion of the plaintiff’s work skills. This is unlike Gagne and Kahl, where the statements at issue did not concern the plaintiff. Grzanka’s statement is also dissimilar to Peters and Hopkins, where the speaker never mentioned the possibility of an adverse employment decision. Here, however, Grzanka allegedly stated a need to “move in a different direction.”
While Grzanka’s statement is not as blatant as that in LaPointe, where the decision-maker stated that the employees needed to get out, it sufficiently suggests illegitimate bias to create an issue of material fact for the jury to decide. Taylor’s reaction to the remark supports this fact, as he was so “shocked” and “upset” that he informed co-workers at Kellogg of the interaction. Moreover, Grzanka’s statement has a closer nexus to an adverse employment decision than the statement in Wells, where the speaker merely noted that a “younger person could do more” after remarking on the plaintiff’s being “too old.” Here, Grzanka allegedly stated the need to “move in a different direction,” away from the plaintiff’s “old and set” ways. Because Grzanka’s remark suggested an impermissible motive, directly concerned the plaintiff, and related to an adverse employment decision, it is not ambiguous. Thus, this factor weighs in favor of a finding of sufficient direct evidence.
Next, the Court looked at Grzanka’s role in McCartt’s termination:
Grzanka “contributed significantly” to the decision to terminate the plaintiff. Human Resources relied entirely on the scores Grzanka gave McCartt in deciding to terminate him. The present action is similar to Sharp, which involved a forced ranking system for reducing labor. In both cases, the decision-makers relied completely on evaluations conducted by the speaker of the biased statement. Thus, the “discriminatory information flow” began with Grzanka and influenced the decision to terminate him “downstream.” If Kellogg wished to “insulate” itself, it should have relied on evaluations by others, or it should have ensured that objective criteria were used, rather than rely on Grzanka’s word. While this case is different from Sharp because the speaker in that case knew that the rankings would be used for the plaintiff’s termination, the Court does not find this distinction to be legally relevant. A reasonable supervisor would be on notice that a nationwide assessment of RSRs might—and likely would—lead to adverse employment decisions for those with low scores. *** Because Grzanka played a significant role in the decision to terminate the plaintiff, this factor weighs in favor of a finding of sufficient direct evidence of discrimination.
Finally, the Court looked at the “temporal proximity” (timing) between Grzanka’s comment and McCartt’s termination. The Court stated the following:
Because Grzanka’s allegedly-biased remark was unambiguous and asserted by someone who “contributed significantly” to McCartt’s termination, the plaintiff has presented sufficient direct evidence to withstand summary judgment on his ADEA and KCRA claims. Thus, the Court will deny summary judgment on Counts I and II.
So, what have we learned? Comments by bosses, managers, supervisors can be viewed in different lights. If age based comments can be viewed as playing into the firing of an older worker, a good age discrimination claim should be considered. Whether or not age based comments directed at older employees will be suffiecient to support a wrongful termination claim may be difficult to determine or unclear to non-lawyers. If you are not sure if you have an age discrimination or wrongful termination claim, it is best to ask an employment law attorney.
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.”
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