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
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
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.