In the workplace, one problem can often lead to another. Such was the case in Jackson v. Cal-Western Packaging Corporation, where the U.S. District Court for the Fifth Circuit had to rule on whether a 69-yearold man terminated because of sexual harassment claims was the victim of age discrimination.
INVESTIGATING THE COMPLAINTS
The plaintiff was employed by Cal-Western Packaging in various managerial positions from 1999 until June 2007. In May 2007, one of the manager’s female coworkers e-mailed the company’s controller asserting that the plaintiff had engaged in behavior that made her “uncomfortable.”
She stated that the manager had “on many occasions” made inappropriate statements or comments in front of her and her female co-workers. In addition, she told her supervisor that, every time she saw the plaintiff, he tried to touch her and that he’d once cornered her and asked her to raise her shirt.
Cal-Western’s Chief Operating Officer (COO) began an internal investigation and interviewed several employees who corroborated the allegations. To confirm the findings, the COO hired an attorney to conduct an external investigation into the manager’s behavior. Her interviews also confirmed the harassment allegations. In addition, when the attorney interviewed the plaintiff, he admitted that he was “vindictive” and would try “legally” to get back at those making allegations against him.
In June, the COO terminated the manager for his noncompliance with the company’s sexual harassment policy. The plaintiff was 69 years old when he was terminated and his replacement was 42.
DEMONSTRATING A CASE
The manager brought suit against Cal-Western for age discrimination. The district court granted CalWestern’s motion for summary judgment, and the plaintiff appealed.
Under the McDonnell Douglas approach, a plaintiff must first demonstrate a prima facie case of age discrimination. The defendant then has the burden of articulating a legitimate, nondiscriminatory reason for terminating the plaintiff. If the defendant meets this burden, the plaintiff then has the ultimate burden of proving that either:
- The defendant’s reason was pretextual, or
- The defendant’s reason was only one cause of the conduct and another motivating factor was the plaintiff’s protected characteristic.
The only question before the appeals court was whether the manager had shown that there was a genuine issue of material fact as to whether CalWestern’s reason for terminating him was pretextual or whether age was otherwise a factor in his termination. The plaintiff argued that prextext was shown by his contention that he hadn’t made sexually harassing comments as well as by the COO purportedly saying that the manager was an “old, gray-haired fart.”
But the appeals court found that the manager’s selfserving statements that he hadn’t engaged in sexual harassment were insufficient to create a triable issue of fact as to whether Cal-Western’s explanation was false. The court explained that the issue was not the truth or falsity of the allegation but “whether the employer reasonably believed the employee’s allegation and acted on it in good faith.”
The court noted that Cal-Western had a plethora of evidence that the plaintiff was violating the company’s sexual harassment policy. Meanwhile, the manager failed to present evidence that the company’s reliance on the evidence against him was in bad faith.
PARSING HIS COMMENTS
Finally, the appeals court turned to the COO’s alleged comment. The court explained that comments are only evidence of discrimination under four circumstances — that is, if they are:
- Related to the protected class of persons of which the plaintiff is a member,
- Proximate in time to the complained-of adverse employment decision,
- Made by an individual with authority over the employment decision at issue, and
- Related to the employment decision at issue.
Comments that don’t meet these criteria are considered “stray remarks” and, standing alone, are insufficient to defeat summary judgment.
The appeals court found that, though the COO’s alleged comment met the first and third criteria, it was allegedly uttered at least a year before the manager’s June 2007 termination. Thus, the court found that the comment wasn’t proximate in time to the plaintiff’s firing or related to the employment decision at issue. Therefore, the appeals court affirmed the summary judgment.
EXPECTING SOME PAYBACK
It’s not unusual for the accused perpetrator of sexually harassing conduct, when terminated for that conduct, to turn around and accuse his or her employer of discrimination. This demonstrates the importance of conducting a thorough investigation and documenting your findings in these circumstances.
SIDEBAR: COURTS’ VIEWS OF COMMENTS AREN’T CONSTANT
Courts don’t always view comments as stray remarks, as they did in Jackson v. Cal-Western Packaging Corporation. (See main article.) One example can be found in Wharton v. Gorman-Rupp Co., a case heard by the U.S. Court of Appeals for the Sixth Circuit.
When a 58-year-old female Gorman-Rupp employee applied for a promotion, she interviewed with a committee of executive officers, including the V.P. of Human Resources. Approximately two months later, the V.P. told the applicant that, though her interview went well, Gorman-Rupp didn’t select her for the position because “[w]e were looking down the road, we wanted longevity.”
When the applicant asked what the V.P. meant by “longevity,” he asked how old she was and how much longer she had to work before she retired. The V.P. also remarked that she would be retiring “before too long” and that the company “went with a younger person.”
Gorman-Rupp contended that the V.P. wasn’t a “decision maker” and, therefore, his comments were “stray remarks.” The appeals court explained that, regardless of whether he was a decision maker, he’d witnessed all of the hiring process and had implicated all members of the committee when he explained the committee’s decision using the firstperson plural “we.” Thus, the court concluded that the V.P.’s comments were direct evidence of age discrimination.