Generally when a manager says an employee is an "old man" and
had "a lot of years in", such comments would raise a red flag
indicating possible age discrimination, but in a
case handed down by the Eight Circuit this week, they weren't enough to
sustain a case.
Donald Rickard had worked for Swedish Match North America since 1984. He
retired in 2011 at the age of 55. Four years prior to his retirement,
a slightly younger man became his manager. He contended that the manager
scrutinized him more closely than others and threatened his termination
The manager also made comments about Rickard's age, calling him "old
man" and telling him that he had "a lot of years in." Another
time he told him "you know, you've been here long enough, you've
got a lot of age on you and you've been here long enough, and you
know that I'm going to hold you at a higher level than I do some of
these that have not been here but a year." Rickard began to experience
health problems, which he attributed to stress related to working with
the manager. In late January 2011, the manager issued him a final warning.
Rickard took leave, including medical leave, and in early May retired.
He sued the company, alleging a hostile work environment based on his
age and sex, as well as constructive discharge, retaliation, and disparate
The district court threw out his case, and he appealed. The Eighth Circuit
Court of Appeals affirmed the district court's ruling, finding that
"most of his criticisms" amounted "to little more than
an attack" on the manager's "crude managerial style."
Rickard was unable to show that the age-based comments actually altered
the terms or conditions of his employment. The statements, "even
if intentionally disparaging," were "not severe enough to be
actionable." A reasonable person would not find that the comments
and incidents described resulted in a hostile work environment under the
law, the court explained. In a footnote, it acknowledged that Rickard
had presented testimony from other employees agreeing with his theory
regarding older employees being pushed out. However, the allegations were
unsupported and amounted to nothing more than "company gossip."
And witness statements that Rickard was discriminated against based on
his age were nothing more than conjecture without support.
The upshot: Courts differ on how to interpret the law. It is quite likely
another court would have reached the opposite result. Age discrimination
is a pervasive problem in the workplace, but it is not always easy to prove.