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Today, our employment discrimination lawyers take a look at the recent case of Flowers v. United Parcel Service, Inc., No. 22-2025, 2022 WL 17258431 (10th Cir. Nov. 29, 2022). In this case out of the United States Court of Appeals for the Tenth Circuit, Randy Flowers was employed by UPS as a business manager at UPS’s distribution facility in Las Cruces. As you can imagine, a company as big as UPS is big on making sure that all the appropriate documents are completed, especially when it comes to safety and training. Well, back in 2017, Randy got a wee bit behind on the training and related documentation. This caught up to him on August 3, 2017, when another employee tipped off Randy that safety auditor would be making a surprise visit that afternoon. Depending on who you believe, Randy either instructed two other employees to “recreate” paperwork that was missing or instructed them to completely forge safety documentation for training that may or may not have happened. Either way, the two employees reporting to Randy generated the documents and undisputedly forged the drivers’ signatures. Needless to say, this is bad.

After the two subordinate forgers repented and reported the bad acts to management while pointing the blame at Randy, UPS investigated and interviewed a bunch of witnesses, who not surprisingly had different stories to tell.

Importantly, when confronted with his conduct and the conduct of those under him whom he bore responsibility, Randy told the investigators investigating him that was being discriminated against based on his age and that he was planning on reporting OSHA violations. Thus, in response to being investigated for participating in the forgery of safety documents, Randy shot potential claims for age discrimination and whistleblowing across his employer’s bow. Specifically, it appears that Randy was attempting to set up that any adverse actions taken against him following that interview would be retaliatory for raising his age discrimination and whistleblowing complaints.

As a reminder, the Age Discrimination in Employment Act of 1967 (“ADEA”), much like Title VII, contains provisions that prohibit employers from retaliating against employees who complain, oppose, or participate in investigations regarding discrimination or harassment based on a protected class, which in this case would be based on the fact that Randy was 52 years old

However, given the opportunity, Randy could not point to any age-related comments or harassment, promotions given to younger employees, or similarly situated employees that were paid more.

The employer completed the investigation and then fired Randy for his role in the forgeries. Randy, as foreshadowed during his investigation, sued for wrongful termination.

Best Lawyer Blogs On Point:

Can I avoid being fired by reporting discrimination?

Sure, reporting discrimination or harassment when your job is on the line may work on occasion, but it will not always work – especially when there is no evidence to back it up. It did not work for Randy. The United States Court of Appeals for the Tenth Circuit held:

Flowers emphasizes that he complained of age discrimination to Woodruff (the investigator who interviewed him) in August 2017, after which Woodruff placed him on administrative leave. Then he filed a corporate complaint of age discrimination with UPS, followed by an EEOC charge. He complained about age discrimination again in a follow-up interview in February 2018, and for the last time in his termination hearing in March 2018. All of this, he says, shows temporal proximity, and is therefore evidence of pretext.

Temporal proximity is usually discussed as evidence of retaliation, not discrimination. Perhaps temporal proximity would be relevant to a discrimination claim if an employer fired an employee shortly after learning that the employee is a member of a protected class (e.g., the employee has a disability). But Flowers does not claim that Moore only

Id. at *5–6. Essentially, the Tenth Circuit Court of Appeals held that no reasonable juror could conclude that when an employee first reports allegations of discrimination and OSHA violations at investigation into his forgery of documents, that the timing alone will create an inference of discrimination nor retaliation. Given that Randy had not real other evidence other than the timing, his claim failed.

Best Attorney Blogs On Point:

Do I have a legal claim for age discrimination after getting fired?

Best Ohio Age Discrimination Law Firm Answer: If you are an employee over the age of 40 years old and believe that you have be wrongfully terminated or fired because of your age, you may have an age discrimination claim under state law or the federal Age Discrimination in Employment Act (“ADEA”). To find out if you have a viable age discrimination or wrongful termination case, 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?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our wrongful termination lawyers right now.

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This lawyer’s employment law website is an advertisement. The age discrimination and whistleblower blog and on this employment law website are only for informational purposes. Nothing on this website is intended to give you direct legal advice. To get direct legal advice about your workplace situation, your best option is to call our employee’s rights lawyers 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.