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Message to Employers: When Terminating an Employee Never Mention Anything Relating to the Employee’s Age

Brazil v. Volkert, Inc., 2012 U.S. Dist. LEXIS 164601 (N.D. Ala. Nov. 19, 2012).

Employers should carefully prepare what they say to employees who they intend to terminate before actually saying it. Often, employers use terms that should be excluded from their vocabulary when in those delicate situations. Employers who fail to do so, may face age discrimination claims.

In Brazil v. Volkert[1], the Plaintiff, a real estate specialist, brought suit against his employer, an engineering, planning, and environmental consultation firm, claiming age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) after the Defendant terminated his employment.  The Plaintiff’s claim arose after the parties argued over the Plaintiff’s refusal to relocate to New Orleans in order to complete a project.

Shortly after the back and forth, the sixty-five year old Plaintiff was terminated.  At the time of his termination, Mrs. Harmening, Defendant’s Assistant Vice President of the Real Estate Division, called the Plaintiff to inform him that Volkert intended to terminate his employment. Although the parties dispute as to what was actually said during the conversion, they agreed that at some point in the conversation Mrs. Harmening said, “younger people are the future of the company.”[2]  The Plaintiff then sued the employer alleging that the termination was due to his age. The Defendant, however, argued that the Plaintiff was fired “because he would not go where the projects were . . . because he would not go to New Orleans” and not “because of his age.”[3]

In general, the ADEA makes it “unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).   Employer liability typically depends on whether the protected trait (here, the Plaintiff’s age) “actually motivated the employer’s decision.”[4]

Under the Supreme Court’s McDonnell Douglas[5] framework, a plaintiff must first establish a prima facie case of age discrimination by showing that: “(1) he was a member of the protected group of persons between the ages of 40 and 70; (2) he was subject to adverse employment action; (3) he was qualified to do the job; and (4) he was replaced by a younger individual.”[6]  Moreover, the Supreme Court clarified that “[t]o establish a disparate-treatment claim under the plain language of the ADEA,” a plaintiff must also prove “that age was  the ‘but-for’ cause of the employer’s adverse decision.”[7]

In deciding whether to grant Summary Judgment in favor of the Defendant, the Court found that the Plaintiff met all four elements of a prima facie case of discrimination under the ADEA:

(1) [The Plaintiff] was sixty-five years old when he was fired; (2) Volkert’s termination of Mr. Brazil’s employment constitutes an adverse employment action; (3) [The Plaintiff] was qualified as a Real Estate Specialist/ Right of Way Consultant; and (4) [The Plaintiff] was replaced by Mark Jones, who was thirty-eight  years old when Volkert terminated [The Plaintiff]. ”[8]

Likewise, the Court also determined that, based on the record, the Plaintiff raised a genuine issue of material fact as to whether “age was the ‘but-for’ cause of the employer’s adverse decision” primarily because “a reasonable juror could accept that [Ms. Harmening] made the discriminatory-sounding remarks and that the remarks are sufficient evidence of a discriminatory motive.” Therefore, because Ms. Harmening’s “comment that the future of Volkert was with younger people in itself creates a genuine issue of material fact,” the Court denied the Defendant’s motion for Summary Judgment.[9]

If you or your institution has any questions or concerns regarding the termination of one of your employees, or any other employment related issues, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357-3753. Cullen and Dykman regularly lectures on the topic of hiring/firing of employees.

A special thanks to Sean Gajewski, a law clerk at Cullen and Dykman LLP, for help with this post.

  1. [1] Brazil v. Volkert, Inc., 2012U.S. Dist. LEXIS 164601 (N.D.Ala. Nov. 19, 2012)
  2. [2] Id. at *11.
  3. [3] Id. at *12.
  4. [4] Id. at *17-18.
  5. [5] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)
  6. [6] Id. at *19 (internal marks and citations omitted).
  7. [7] Id. at *19-20.
  8. [8] Id. at *20-21.
  9. [9] Id. at *26.