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Still Have Age Discrimination Case After Texting Boss “F*ck You”? Yep

by | Apr 25, 2022 | Age Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |

The evening after having an argument at work, David Feeback sent his boss a text message that said, “F*ck you.” The employer that Feedback worked for, Swift Pork Company, suspended him and then fired him a few days later. At first glance, cussing out your boss seems like a reasonable basis for termination. Indeed, when the 64-year-old Feedback sued for age discrimination and wrongful termination, the trial court dismissed the case on summary judgment and blocked the case from reaching a jury. Again, not a shocking result given that the employer stated reason for firing Feedback was insubordination.

But the lesson in employment discrimination cases is to look deeper into the facts and circumstances, which is what the Iowa Court of Appeals did when it reversed the trial court’s dismissal and ordered the age discrimination case to be heard by the jury.

Let’s break this down a bit.

What laws protect against age discrimination in employment?

Best Employment Discrimination Lawyer Answer: Under the Age Discrimination in Employment Act of 1967 (“ADEA”), it is unlawful for employers to discriminate against employees based on the employees age. Specifically, the ADEA prevents discrimination by companies against applicants and employees who are 40 or more years old from discrimination in hiring, promotion, discharge, discipline, pay, as well as the terms, conditions and privileges of employment. (Best Law Read: Can I Be Forced Out Of My Job Because Of My Age?; What Are Examples Of Age Discrimination In The Workplace?)

How do you prove age discrimination at work?

Best Age Discrimination Attorney Answer: An employee can prove a discrimination case through either direct or circumstantial evidence. Under the first approach, direct evidence is proof of the conduct or statements by a decision maker that openly demonstrate a discriminatory motive for the adverse employment action. (Best Law Read: What Is An Adverse Employment Action?). Stated another way, direct evidence is evidence that establishes discrimination on its face without the need for any inference or consideration of other evidence.

Where the employee relies on circumstantial evidence, age discrimination claims are proved using the three-part burden-shifting test originally established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the first part of the McDonnell Douglas test, an employee must present evidence on four prima facie elements. (Best Law Read: How Do You Win A Discrimination At Work Lawsuit?). These elements of a prima facie case of age discrimination are that the employee: (1) is at least forty years old; (2) suffered an adverse employment decision; (3) was qualified for the position in question; and (4) either was ultimately replaced by another employee who was sufficiently younger or treated materially different than an employee or group of employees who was sufficiently younger. See Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.2013). Where the employer does not replace the employee, the employee can satisfy the fourth element by presenting evidence if otherwise unexplained, show more likely than not that the employer considered impermissible factors.

Courts have universally held that the prima facie case is not “intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). The United States Supreme Court further held that: “Thus, when all legitimate reasons for rejecting an applicant [or firing an employee] have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race. Id. at 577.

Once the employee presents prima facie evidence, the burden shifts to the employer for the second step of the McDonnell Douglas test to simply state a legitimate, nondiscriminatory business reason for the adverse employment action. (Best Law Read: What Is An Adverse Employment Action?).

The McDonnell Douglas test then shifts the burden back to the employee to show that the employer’s stated business reason is pretext. (Best Law Read: Employment Discrimination Question: What Is Pretext?). Essentially, the employ must show that employer’s stated reason is false, or if true, not the real motivating reason for the adverse employment action.

If the employee presents evidence of pretext, the case will go to a jury to decide the factual issues of who is telling the truth.

What is an example of age discrimination at work?

Best Wrongful Termination Lawyer Answer: Let’s get back to Feeback, Swift Pork, and the Iowa Court of Appeals. In this case, it was undisputed that Feeback is at least forty years old, was  fired; and, as a middle manager, was qualified for his job. The case does not discuss a replacement for Feeback but instead focuses on evidence of disparate treatment.

Feeback and his boss had a disagreement over whether Feeback should have scheduled training on New Year’s Eve day. As part of the argument, the boss called Feeback into his office to aggressively berate Feeback. When Feeback tried to defend himself, Mulgrew said that “he should be sitting there with his mouth shut and arms wide open.” That night, again New Year’s Eve, Feeback sent two text messages to his boss: “FUCK You!” and “Believe who and what you want.” At the start of the next workday, HR questioned Feeback about the text message, and he indicated that the messages were intended for someone else, and he was going to explain it to his boss that morning but hadn’t had the opportunity to since being called in to HR first thing. Without any further investigation, Swift Pork suspended Feeback and then fired him the next day.

Feeback presented the following evidence to establish pretext:

  • The text was sent by mistake.
  • The undisputed evidence was that harsh and offensive language was ingrained in Swift Pork’s workplace culture.
  • Younger employees received lesser or no disciplinary action for using offensive language. (Best Law Read: Can Unequal Progressive Discipline Prove Discrimination?).
  • Feeback’s own observations that there was a pattern of older employees being terminated, demoted, or otherwise forced out before retirement.

Based on the above, the Iowa Court of Appeals cited the longstanding legal principal that courts must view the evidence in a light most favorable to the employee when faced with a motion to dismiss: “Mere skepticism of a plaintiff’s claim is not a sufficient reason to prevent a jury from hearing the merits of a case.” Id. at * 5 (quoting Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 841 (Iowa 2005). Based on this standard, the Court of Appeals reversed the dismissal of the age discrimination claim and sent the case back for a jury trial:

No doubt, insubordination could prompt a termination. But there’s a fact question about who Feeback meant to text. As soon as he was confronted by Charboneau, Feeback insisted Mulgrew was an unintended recipient. And other evidence arguably supports the mistake theory. One of the two messages did not make perfect sense in context. Granted, Mulgrew had rebuked Feeback earlier that day. But the central dispute did not revolve around competing versions of truth. So the second text—“Believe who and what you want.”—did not fit with the conversation. Indeed, Mulgrew later agreed the second message seemed off and there could have been a “possible” alternative recipient.

Given the potential misunderstanding, a reasonable jury may have credited Feeback’s version when presented with Swift’s hasty response. Rather than investigate a possible miscommunication, Charboneau suspended Feeback on the spot. And within days he was fired. Considering Feeback’s decades with the company, the ax fell with surprising speed. Indeed, during a deposition, Mulgrew admitted the precipitous decision was “concerning” and that he “would expect someone to look” into the situation before acting. What’s more, a text exchange between the supervisors suggested Carl welcomed Feeback’s rapid departure. Beyond the possibility that the texts were not intended for Mulgrew and the cursory investigation, there’s the company culture. Swearing was common. According to Feeback, “pretty much anything went when it came to language” and he notes over seventy-five instances when younger employees swore “at or in front of supervisors.” Indeed, Swift doesn’t contest this phenomenon; Mulgrew agreed cursing was not unusual in their workplace. In sum, a reasonable jury— considering the workplace norms, Feeback’s ambiguous intent, and the lack of investigation—could find the quick termination was pretextual.

What should I do if I was fired for being too old?

Best Ohio Age Discrimination Law Firm Answer: 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 someone 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 Spitz, The Employee’s Law Firm as quickly as possible to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our wrongful termination lawyers right now.


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 on wrongful termination. If you are still asking “What should I do if I was forced out of my job because of my age”, “I’m being discriminated against since I turned 60 years old”, or “How do I stop age discrimination at work”, 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 The Spitz Law Firm, Brian Spitz, or any individual attorney.

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