A Manager’s Conversations About Retirement Supported An Inference Of Age Discrimination

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By: Karen L. Piper

Gerard Howley worked as a Dispatch Manager for Federal Express Corporation (“FedEx”). He was discharged in November 2013, consistent with FedEx’s Acceptable Conduct Policy, after he received three disciplinary letters in nine months. Howley sued for age discrimination under Michigan’s Elliott-Larsen Civil Rights.  Following the close of discovery, the federal district in Detroit dismissed the case. Howley appealed. The Sixth Circuit Court of Appeals reinstated the case. Howley v. Federal Express Corporation, (6th Cir. March 15, 2017).

The appeals court reviewed Howley’s work record and characterized the circumstances surrounding his discharge as “suspicious.” First, Howley had worked for FedEx for 21 years without any disciplinary action. Second, Howley had received three disciplinary letters in a nine-month period for conduct the court deemed “fairly innocuous.” The first disciplinary letter was for inappropriate language. Howley submitted evidence that younger employees, and even Howley’s manager, used inappropriate language “all the time” but were not disciplined. The second and third disciplinary letters were for failing to respond to one email from a subordinate employee requesting FMLA leave for a medical appointment and declining another employee’s request that he speak to a customer about a lost package. Howley offered evidence that no other employee, including younger employees, had ever been disciplined for these specific behaviors. The court posited that none of these three disciplinary letters warranted discipline. 

Howley also produced evidence that his manager had discussed retirement several times. Specifically, the manager: 1) asked Howley how much money he made and expressed surprise about the length of his employment; 2) asked employees in the work group about their retirement plans and asked why they were still working; and 3) expressed concern that employees were “being old and not keeping up with technology” and “still around and should have been retired.” The court observed that under “normal circumstances, the alleged remarks … might be viewed as simply too attenuated from the termination process to constitute direct evidence of discrimination. And … generally … statements about the impending retirement of employees are not, by themselves, sufficient to constitute direct evidence of discrimination.” However, coupled with the suspicious circumstances of Howley’s discharge, these discussions “gave rise to a negative inference of age discrimination.” The court reinstated Howley’s claim.

The manager’s conversations with a long-term employee about his retirement plans took on new meaning in light of the manager having disciplined the employee three times in a relatively short period of time. Whenever a long-term employee with a good record begins to have multiple performance or misconduct issues in a relatively short amount of time, the employer should carefully review the situation and consult with experienced employment counsel, such as the author, before terminating the employee.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information is included in the re-post of the article. May 2017.