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Suggesting older workers retire to avoid layoffs supports constructive discharge claim

By Lorene D. Park, J.D.

A county road department employee who claimed he was constructively forced, at age 68, to retire from his position after working there 23 years avoided summary judgment on his ADEA claim. According to the employee, he only retired after his supervisor repeatedly made it clear that older road department workers should retire lest a budgetary crisis force him to make layoffs. Denying the employer’s motion, the federal district court in Mississippi found the nature of the supervisor’s suggestion “troubling,” particularly considering the effect was that the five oldest members of the department retired in short order, leaving no one under the age of 64 in the department (Dockery v. Tunica County, Mississippi, December 1, 2016, Mills, M.).

Older workers encouraged to retire. According to the long-time employee, his supervisor repeatedly suggested that older workers should consider retiring, lest the county force him to make layoffs due to the budget crisis. In a March 2014 meeting, the supervisor told the employee that his longtime partner was retiring and asked what he planned to do. While the employee responded that he planned to retire as well, he and his daughter subsequently made it clear to county employees that they felt he was being forced out. He retired on March 31, but soon filed an EEOC charge and subsequent lawsuit under the ADEA.

Constructive discharge? Moving for summary judgment, the employer argued that the employee’s subjective belief that the supervisor “did not like old people” or was trying to force him to retire was not evidence of age discrimination. He was repeatedly told he did not have to retire and there was no evidence the supervisor ever mistreated him. While the court acknowledged the employer’s substantial arguments and did not regard the employee’s claim as a strong one, it nevertheless found a triable issue on whether the supervisor exerted sufficient pressure for the employee to retire so as show constructive discharge.

Supervisor’s approach raises concerns. In reaching this conclusion, the court explained that the approach taken by the supervisor raised significant concerns under the ADEA. In the court’s view, “raising the specter that a particular employee’s failure to retire might effectively make him responsible for layoffs suffered by himself or his co-worker[s] constituted a quite significant degree of mental coercion to retire.” This was especially true when the pressure was repeated and sustained. It was also troubling to the court that during the supervisor’s tenure, the five oldest members of the road department chose to retire.

In addition to the supervisor’s admitted appeals to employees to consider retiring to avoid layoffs, it also appeared that in a March 7, 2014 meeting, he pressured the employee individually to retire, and he did retire less than a month after that meeting. Moreover, even though the employee was repeatedly assured by county employees that he did not have to retire, the employer offered no evidence that the threat of layoffs was ever rescinded. Based on the foregoing, the court concluded that it was better to let a jury decide the issues.