AGE DISCRIMINATION MAY BE INFERRED FROM POORLY DOCUMENTED REASONS FOR SEPARATION AND THE REDISTRIBUTION OF WORK DUTIES

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By:
JAMES M. REID

If you read my last article earlier this month (“A Well Drafted Job Description/Attendance Policy Proved to be Critical In Defending A Disability Discrimination Claim”), you understand how crucial advanced planning can be to defending a discrimination lawsuit.  Likewise, you can guess what happens when an employer poorly documents or makes inconsistent statements regarding the reason(s) for separation.  In Hrapkiewicz v Wayne State University Board of Governors (“WSU”) (Unpublished March 9, 2017), the Michigan Court of Appeals affirmed the trial court’s denial of WSU’s motions to overrule a jury verdict finding age discrimination.  It also found that the jury’s verdict of $300,000 in damages plus costs of $4,403.84 and attorney fees of $261,180 was supported by the evidence.

In this case, WSU terminated the employment of a 62-year-old employee despite “excellent” reviews and 37 years of service.  Although the employee acted disrespectfully toward others at times and had “interpersonal conflicts” with staff, the employee was never disciplined or given written warnings.  WSU ultimately terminated the employee primarily for a “snowy day incident” (the employee permitted students to “show up” for an exam despite the school being closed for inclement weather).  WSU also identified “classroom concerns” (throwing an eraser at a student) and “financial irregularities” regarding the employee’s sale of syllabi (although WSU never confronted the employee about this concern, never conducted an independent investigation, and did not interview any witnesses to verify the alleged irregularities prior to termination).

The employer defended the age discrimination allegations by arguing that there was no evidence that age was a factor and/or that the employee was not replaced by a younger employee.  The court determined that a jury could find circumstantial evidence of pretext for unlawful age discrimination as a result of the employee’s favorable record over many years of employment and the inconsistent reasons for separation.  The court also determined that a jury could find that the employee was replaced (even though a younger worked was not hired to fill the position) because a younger employee was reassigned to assume a majority of the employee’s duties.

This case is a helpful reminder for employers to (1) independently investigate incidents leading to disciplinary action, and (2) timely document performance concerns well in advance of terminating an employee’s employment, especially if the employee has a long-standing stellar performance record.  Failing to plan in advance or seek the advice of experienced employment counsel exposes employers to a high risk of liability. 

This article was written by JAMES M. REID, a member of the Legal Affairs Committee of Detroit SHRM, a Resource Partner and Director of MISHRM, and a shareholder of the law firm of Maddin Hauser Roth & Heller PC located in Southfield, Michigan. He can be reached at (248) 351-7060 or jreid@maddinhauser.com. Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee. March 22, 2017