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No Discrimination When Age-Related Comments Made by Non-Decision Maker


By Allison Champagne

Alleged Discrimination
The employee worked as a leasing consultant for a company.  Her primary responsibility included renting apartments to tenants.  She was 61 years old when she was hired, and 63 years old when she was terminated.  According to the employer, the employee was terminated based on her poor job performance and low scores received during evaluations.  The employee, however, contended that she was fired based on her age.

Specifically, the employee claimed that during the meeting in which her supervisor advised her of her termination, the supervisor allegedly stated, “I think you’re getting too old for your job” or “I think you’re just getting a little too old for your job.” The employee also claimed that the supervisor made several derogatory age-related comments during the two months of her supervision, including calling the employee “Old Rose” on a couple of occasions, stating to the employee that she was “slipping” or “getting old” when she forgot something, and asking the employee on one occasion when the employee had to bend down to a bottom drawer if she was “too old to get down there.”

Employer’s Reasoning for Termination
The employer assessed its leasing consultants’ performance using anonymous telephone and video evaluations of the employee’s sales techniques and customer communication skills.  Evaluations were scored on a 100-point scale, and employees were expected to achieve a score of at least 90 on the telephone evaluations and at least 80 on the video evaluations.

According to the employer, the employee was terminated because her scores on these evaluations were considerably lower than expectations. Over the course of her employment, she received scores of 41 and 56 on video evaluations and scores averaging well below 80 on phone evaluations.  In addition, she failed to obtain identification from a prospective tenant before taking the prospective tenant on a tour of an apartment, which violated company policies. The employee received a written warning advising her to improve her future evaluations or face termination.  After receiving this warning, the employee obtained three additional poor phone evaluation scores.  As a result, the employee’s immediate supervisor consulted with the Regional Manager, the Regional Vice-President and Human Resources, who instructed the supervisor to place the employee on final probation, which required her, among other things, to attain a score of at least 90 on all future video and phone evaluations or face termination.

Subsequent to being placed on probation, the employee received yet another unacceptable phone evaluation score of 76, and violated two other policies. The Regional Manager recommended that the employee be terminated. This decision was approved by the Regional Vice President and Human Resources.

Establishing Age Discrimination
To establish age discrimination, an employee must show that: “(1) [s]he was at least 40 years old at the time of the alleged discrimination, (2) [s]he was subjected to an adverse employment action, (3) [s]he was qualified for the position, and (4) [s]he was rejected and someone outside her protected class (i.e. an under  40 year old candidate) was selected.”  

Sixth Circuit Finds No Discrimination
The employee argued the statements made to her by the supervisor were direct evidence of age discrimination. However, the Sixth Circuit declined to accept this argument. “At most, these statements show only that [the supervisor] felt that [the employee] was an elderly individual and that some stage of old age was correlated with a decrease in job performance.” Most importantly, the supervisor was not the decision maker regarding the employee’s termination.  Therefore, her alleged statements did not constitute direct evidence of age discrimination.

Further, the Sixth Circuit found the employer had a legitimate, non-discriminatory reason for terminating the employee based on her poor job performance and low evaluation scores. While the employee contended that this was merely pretextual, the court again noted the statements were not made by a decision-maker.

This case demonstrates for employers how neutral evaluations and independent decisions made by upper management can help an employer overcome an inference of discrimination.  Further, well-documented performance problems may also trump alleged discriminatory comments in the event an employee is terminated.

Read the case here.

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