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Poor word choice trumps legit reasons for not rehiring long-time seasonal worker

By Lorene D. Park, J.D.

A general manager’s admittedly poor word choice in telling a long-time employee that she would not be rehired the following season based on a consultant’s recommendation that the town hire “younger” people for its snack bar was direct evidence of age discrimination under the ADEA, ruled a federal district court in Maryland, making it unnecessary for the employee to rebut each of the arguably legitimate reasons for the rehiring decision. The employer’s motion for summary judgment was denied (Gott v Town of Chesapeake Beach, Maryland, August 26, 2014, Quarles, W, Jr).

The seasonal employee, who was born in 1939, had worked at Chesapeake Beach Water Park’s snack bar since 1995. Until 2009, the then-administrator rehired her and gave her a raise each year. In 2009, she was promoted to snack bar manager. Thereafter, a new town administrator took over, hired a new general manager (GM) of the water park, and things began to change.

During the 2010 season, the GM had several “performance” issues with the employee. The GM wanted a new menu but the employee disagreed and went over her head to the administrator. The employee also hired her grandson, unaware of his criminal background. The employee fired him after the administrator learned he had been accused of theft at Walmart. She also fired workers responsible for a $200 theft from the snack bar and offered to pay the money back herself. The administrator declined the offer but a new process for handling money was adopted.

Meanwhile, the employee hired her sister as assistant manager. The sister locked out lifeguards for misusing the snack bar’s freezer and they complained to the GM. A mother also complained when her daughter, who worked at the snack bar, didn’t get a portion of the tips from the tip jar. The employee said that tips were only split between employees who worked the entire summer, including the last week, but she was the one who set that schedule.

Poor word choice. In March 2011, the GM informed the employee she would not be rehired. The GM said it was “nothing personal,” but they were “just looking for younger people” based on the advice of consultants hired to evaluate the snack bar. The employee asked if her sister would be rehired and the GM responded “She’s older than you.” Thereafter, the GM hired a 47-year-old to replace the employee and an 18-year-old to replace the employee’s sister. The employee and her sister met with the mayor to discuss the termination and he confirmed that the GM said they needed “younger” people; he explained she had used “a poor choice of words.”

Age discrimination. In the employee’s subsequent age discrimination suit under the ADEA, the employee claimed that the GM’s words constituted direct evidence of age discrimination. Moving for summary judgment, the employer argued that even assuming the statements were made, the employee still failed to meet her burden because the statements did not constitute direct evidence of discrimination and she could not establish that age was the but-for cause of the rehiring decision.

Denying the motion, the court pointed out that the discriminatory statements allegedly made by the GM were made during the meeting where the GM was explaining the reasoning for not rehiring the employee. This created a sufficient nexus for the jury to conclude that the GM and others used age as the reason not to rehire the employee. Moreover, because the employee had direct evidence of discrimination, she could prevail without rebutting the employer’s assertion that its decision was based on the incidents that happened during the 2010 season.