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Memo to management: Please don’t ask them when they are going to retire

May 2nd, 2013  |  Joy Waltemath

The conventional wisdom is that age discrimination claims are difficult to prove. Age must be the motivating factor for the discriminatory act; a mixed motive won’t cut it. Moreover, direct evidence of age discrimination is hard to find. Employers rarely make self-incriminating remarks … or do they?

In the last several months, at least four federal district courts have considered whether employer comments – specifically questions about older employees’ retirement plans – were enough to get these employees in front of a jury on their age discrimination claims. Every time, the answer was “yes.”

“You should be retired now, playing golf.” In mid-April, the federal district court in Colorado allowed the oldest and highest-paid store manager in his district, a 60-year-old who was fired after others complained about his yelling and use of profanity, to avoid summary judgment against his age discrimination claim. The employee had worked for the store for 40 years. In addition to evidence that no other managers had been fired solely for using profanity (in fact, the district manager who fired him regularly used profanity at work), the court was persuaded by evidence that several managers made comments about his age and inquired into when he planned to retire. For example, a retail operator asked, “Why are you still working? You should be retired by now, playing golf.” Two district managers asked when he was going to retire. For these reasons, and because there was also a question on whether he was performing his job satisfactorily, a reasonable jury could find that the store’s decision to fire him was not based on profanity but was motivated by his age (Roach v Safeway, Inc, DColo, April 18, 2013).

“At your age … you hadn’t even thought of retiring?” Just a few days earlier, the Southern District of Mississippi found a vice president’s comment that he couldn’t believe an employee hadn’t considered retirement “at his age” was direct evidence of age discrimination. After almost 40 years with the company, the 73-year-old employee was terminated when he refused to retire, resign, or accept an offer from his employer to stay in his current position for another couple of months to transition his responsibilities to others. His termination notice came one week after this conversation with the vice president, who asked him about his retirement plans and said, “At your age, David, you hadn’t even thought about retiring?” The court found it noteworthy that the vice president’s comment not only spoke of the employee’s retirement but also specifically referenced his age. This direct evidence of discrimination created a question of fact that precluded summary judgment (Hawthorne v Truck Trailer and Equipment, Inc., SDMiss, April 15, 2013).

We’re thinking along the lines that you’ll be retiring. Similarly, in March the Eastern District of Pennsylvania ruled that comments made by decision-makers – hospital executives who expressed their belief that the 63-year old physician whose contract they refused to renew would be retiring – were sufficient to give rise to a plausible inference that the hospital acted with age bias. When the physician’s contract was not renewed after more than 30 years, his position was replaced by one for a hospitalist, and that position was then filled by a 29-year-old physician. That evidence was enough for the court to deny the hospital’s motion for summary judgment on the employee’s age discrimination claims (Sesso v Mercy Suburban Hospital, EDPa, March 13, 2013).

Do you plan to retire soon? Finally, an older pharmacist terminated ostensibly for performance issues could advance his age discrimination claims based on pretext evidence of his supervisor’s age-related comments, the Northern District of Alabama ruled in late January. In essence, the employee alleged that his district supervisor made age-related remarks, and that after he complained about them to his supervisor’s superior, he suffered a series of reprimands that led to his termination. Over a period of three years, there were three age-related comments alleged, with the most recent uttered months before the employee’s termination, so the court wasn’t convinced these were direct evidence of age discrimination. However, they amounted to significant circumstantial evidence; for example, during his first annual review, the supervisor asked him when he planned to retire, and at his next annual review, the supervisor asked how old he was now. He also called the pharmacist an “old man” in front of other workers. Because the supervisor was the decision-maker in his termination, and a reasonable jury could infer age-related bias from his remarks, the jury could also infer that the supervisor continued to harbor age-related bias when he made his decision (Harris v CVS Caremark Corporation aka CVS Pharmacy, NDAla, January 29, 2013).

To be fair, in most of these cases the comments by management weren’t the only evidence of age discrimination. But in every case, they were found to be significant evidence. So can we agree that, at the very least, it really isn’t a good idea anymore to ask our older employees when they plan to retire?