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Supervisor's Comments Doom Summary Judgment for Employer in Age Discrimination Case

August 30, 2013

In a case that illustrates how a supervisor’s ill-advised comments can result in liability for age discrimination; the U.S. Court of Appeals for the Sixth Circuit recently revived an age discrimination case by an employee who had been laid off in a reduction in force.  In Sharp v. Aker Plant Services Group, Inc., the plaintiff alleged age discrimination in his selection for a reduction in force while a younger employee, whom he had trained, was retained. The supervisor allegedly told the plaintiff that the company had a succession plan “where you bring in younger people, train them, so that when the older people leave, that you’ll have younger people.”  The employee also had a tape recording in which the supervisor was heard saying: “we’re all of the same age and we’re all going to retire and I had the opportunity to bring the next generation in, so that’s what we decided to do.”  The lower court dismissed the case, holding that the supervisor’s comments expressed only a concern for maximizing the return on training costs by retaining employees who would stay with the company longer.  On appeal, however, the Sixth Circuit disagreed, stating that the supervisor’s comments could be considered direct evidence of age bias, and that the supervisor’s comments showed that the employer’s asserted business concern – i.e., potential longevity with the company – was nothing more than a proxy for age.  Another factor that the court stated was indicative of pretext was the fact that, despite stating that the younger employee was a better performer, the supervisor wrote a letter of recommendation stating that the plaintiff performed all of his duties at a high level.  Thus, the supervisor’s ill-advised statements and his action in writing a letter of recommendation created a fact issue as to whether the employee’s age played into the termination decision.