Manager's Remarks Indicating Age Bias Critical to Age Discrimination Claim

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Manager's Remarks Indicating Age Bias Critical to Age Discrimination Claim

A constant theme of this blog is that stray remarks made by an employer can be critical in proving a discrimination case. The remarks, though, need to be made close to the time of the discriminatory act. A Louisiana case decided last week illustrates this point.

Louis Davis was a truck driver at Progressive Waste Solutions of LA, Inc., a waste collection and landfill disposal company. After missing five consecutive days of work he was terminated. Filing suit, Davis, who was 59 years old at the time of his termination, claimed that Progressive discriminated based on his age and based on his religion. Progressive tried to have the case thrown out, contending that he could not show that it had discriminated against him.

The federal court, on appeal, allowed the age discrimination claim to go forward, but nixed the religious discrimination claim. With regard to the age discrimination claim, the court found that two remarks made by a manager were crucial. Specifically, either during or immediately after the Davis's termination, the site manager told him to go "get a job as a Wal-Mart door greeter." Second, a fellow employee allegedly overheard the site manager say, on the day after the termination, "I'm the one that got rid of the old bastard."

Although Davis was terminated by his direct supervisor, not the manager who made the remarks, a reasonable jury could conclude that the site manager was a person "with authority over the employment decision" because he was in the room when Davis was terminated and he also claimed responsibility for the firing by declaring "I'm the one that got rid of the old bastard." For this reason, and because the comments were proximate in time to the employment decision and could be considered related to that decision, the case should be allowed to go to a jury.

On the other hand, the court did throw out the Title VII religious discrimination claim. Although Davis alleged that the site manager made several religious-based remarks during his employment, he offered no evidence that they were proximate in time to his termination. Nor was there any evidence that the remarks were related to his termination. He therefore lacked direct evidence of religious discrimination.

Also, according to the court, Davis failed to make out a prima facie case because he failed to allege that he was replaced by someone outside his protected class or was treated less favorably than a similarly situated employee of a different religion.

The takeaway: Remarks made by a manager indicating discriminatory intent are critical to an age or religious discrimination case, but they must be made close to the time of the adverse employment action to show a connection.

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