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The employee claimed that he was bothered by the comments and reported the incident to the store manager who took no action because the manager determined that the supervisor was “just kidding.”

The supervisor allegedly made additional age-related comments to the employee in the weeks immediately preceding his termination and asked the employee how much longer he planned to remain an employee with the company.

The Court stated in a court Order, “[a]lthough those comments do not have the indicia of age-based animus on their face, the duplicative nature of the comments, passive ratification by [the employee]’s store manager, and fact that they came from an employee in a position of authority over [the employee] cumulatively weigh in favor of [the employee’s] argument.

In Florida, can a supervisor make a joke about an employee’s age without the company getting sued for age discrimination?

A recent case should be used by business owners in Florida to train their managers/supervisors to not even joke about an older worker’s age.

A 54 year-old employee worked for an employer for 22 years. During his last year, the employee’s performance review rated him as a “Top Performer” or “Valued Associate” in all categories. However, during that year he received two Progressive Discipline Notices (“PDNs”). Also approximately six weeks before the employee was fired, he began manipulating inventory records. Although the “corporate office” fired the employee for manipulating the inventory records, the employee’s supervisor told him, “Don't worry about it. You’ve been a long, loyal employee, [you will] probably get a coaching and that will be the end of that.” A coaching is the lowest level of employee discipline offered by the company.

After the employee was fired, he filed a lawsuit, alleging among other things, violations of the Age Discrimination in Employment Act (ADEA). In the lawsuit the employee recalled that in the months prior to his termination, his supervisor made multiple age-related comments to him. On one occasion, the employee claimed that he confronted his supervisor about the comments and reported them to another store manager.

The employer filed a Motion for Summary Judgment which focused on two elements of Plaintiff’s prima facie case:

(1) whether the employee was performing his job satisfactorily; and

(2) whether he was replaced by a younger employee or other circumstances give rise to an inference of age discrimination.

Element (2): Inference of Age Discrimination

In this case, the employee offered no evidence that he was replaced by a substantially younger employee, but rather argued that the circumstances surrounding his discharge give rise to an inference of age discrimination based on age-related comments directed towards him in the workplace.

Specifically, the employee asked the Court to infer age discrimination based on comments from one of his superiors, an assistant manager. The employee claimed that months prior to his termination, the supervisor observed the employee returning an electric shopping cart designed for elderly and disabled individuals, and commented to the employee, “I knew the time would come when you would have to use that.”

Element (1): Job Performance

The employer argued that the employee was unable to show that he was satisfactorily performing his job. The employer’s position was that the employee admitted to committing the major policy violation leading to his termination and that he received two PDNs for violations prior to his termination. However, the employee argued that the PDNs were for conduct unrelated to the suggested reason for his termination and his most recent performance review demonstrates that he was performing at or above a satisfactory level. The performance review, rated him as a “Top Performer” or “Valued Associate” in all measured categories. There were no categories in which the review rated the employee’s performance as “Improved Needed.”

The federal Court ruled that this review was sufficient to establish, for purposes of considering the employer’s summary judgment motion, that the employee was performing his job satisfactorily.

How little does it take for a court to assume age discrimination from a supervisor’s comments?

Essentially the judge ruled that these comments by a supervisor amounted to sufficient evidence such that a jury could draw the inference that the employer possessed an improper age-based motive in the employment decision to fire the employee.

Therefore, the Court found that the employee made a prima facie showing, and the burden shifted to the employer, which satisfied its burden by offering a legitimate, nondiscriminatory reason for the employee’s termination – because he adjusted company inventory records.

At that point the burden shifted back to the employee to show that the employer’s articulated reason was pretextual. The employee argued that his actions underlying the policy violation were in furtherance of his employment objectives, because his primary job duty was to make sure that the items were always in stock on the shelves. The employee also argued that his manager viewed his actions as an offense warranting only minimal discipline.

As a result, the Court found that the employee met his burden of introducing sufficient evidence at the summary judgment stage to raise a genuine issue of material fact as to whether the employer’s articulated reason for his termination was pretextual. The employer lost its Summary Judgement Motion on this ADEA claim. The above “facts” were taken from the Court’s Order in the case, White v. Home Depot USA Inc., No. CV-16-01185-PHX-JAT, 2018 U.S. Dist. LEXIS 18467 (D. Ariz. Feb. 5, 2018).

Florida employers should train their managers and supervisors that even joking about an employee’s protected status, such as age, can be used by an employment lawyer against the business in a lawsuit.

If you need help with training managers, email the labor and employment Law Office of David Miklas, P.A. to arrange for training in Florida or call us at 1-772-465-5111

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