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Telling employee to go “get job as Wal-Mart door greeter” direct evidence of age bias

By Lorene D. Park, J.D.

Two remarks made about a truck driver around the time he was terminated, including a site manager telling him to go “get a job as a Wal-Mart door greeter” and a coworker’s report that the same manager said he was “the one that got rid of the old bastard,” could be considered direct evidence of age discrimination, concluded a federal district court in Louisiana, in denying an employer’s motion for summary judgment on the employee’s ADEA claim. The motion was granted on his religious discrimination claim (Davis v Progressive Waste Solutions of Louisiana, Inc, September 10, 2014, Engelhardt, K).

The employee was a truck driver at a waste collection and landfill disposal company. After missing five consecutive days of work he was terminated. Filing suit, the employee, who was 59 years old at the time of his termination, claimed that the employer discriminated based on his age and based on his religion. The employer moved for summary judgment, contending that he could not show that its legitimate reason for firing him was pretextual.

Denying the motion with respect to the age discrimination claim, the court noted that its determination was unaffected by the fact that the parties disputed whether the employee was given permission by his supervisor to miss work in order to attend to car insurance issues. In the court’s view, the motion could be resolved under the direct evidence paradigm based on two comments made by the site manager within a day of the employee’s termination.

Ageist remarks. Specifically, either during or immediately after the employee’s termination, the site manager told him to go “get a job as a Wal-Mart door greeter.” Second, a fellow employee allegedly overheard the site manager say, on the day after the termination, “I’m the one that got rid of the old bastard.”

Although the employee was terminated by his direct supervisor, a reasonable jury could conclude that the site manager was a person “with authority over the employment decision” because he was in the room when the employee was terminated and he also claimed responsibility for the firing by declaring “I’m the one that got rid of the old bastard.” For this reason, and because the comments were proximate in time to the employment decision and could be considered related to that decision, summary judgment was not appropriate on the ADEA claim.

Religious discrimination. On the other hand, the court granted the motion with respect to the Title VII religious discrimination claim. Although the employee alleged that the site manager made several religious-based remarks during his employment, he offered no evidence that they were proximate in time to his termination. Nor was there any evidence that the remarks were related to his termination. He therefore lacked direct evidence of religious discrimination.

Under the burden-shifting paradigm, the employee failed to make out a prima facie case because he failed to allege that he was replaced by someone outside his protected class or was treated less favorably than a similarly situated employee of a different religion. Even assuming he made out a prima facie case, he could not show that his excessive absences constituted a pretextual reason for his termination. As a result, summary judgment was appropriate on this claim.