A Few Alleged Discriminatory Comments About an Employee’s Age Were Not Sufficiently Severe or Pervasive to Constitute Age Based Discrimination Under the ADEA
Amini v. Rite Aid Corporation - Sixth Circuit Court of Appeals
Facts: Michael Kheibari (“Kheibari”) began working at Rite Aid as an assistant manager in 2007. From 2007 - 2011, Kheibari interacted with his supervisors, store managers, and co-workers without incident, but received mixed performance reviews. In late 2011, Kheibari began reporting to a new district manager, Daniel Snyder (“Snyder”). Snyder allegedly made disparaging comments toward Kheibari including calling Kheibari “too old” and criticizing Kheibari’s abilities because of his age. Snyder also allegedly made derogatory comments about Kheibari’s Middle Eastern heritage and suggested he should “go home.” Kheibari’s immediate supervisor Beth Spirko (“Spirko”) thereafter became less friendly with him and downgraded his performance.
In one instance, when Kheibari met with Snyder for what Kheibari thought was a promotion interview, Snyder allegedly remarked that Kheibari was too old, his accent was a problem, and he should “go home.” Kheibari later reported these comments to a different supervisor, called Snyder to say that he would be his “right hand”, and reported Snyder’s comments to Rite Aid’s CEO and other higher ups.
After a few suicide attempts which required hospitalization and medical leave, Rite Aid terminated Kheibari’s employment based upon his failure to return to work. Kheibari thereafter filed an Equal Employment Opportunity Commission charge and brought suit against Rite Aid based upon age based discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), national origin based harassment under Title VII and the ELCRA, and retaliatory harassment under the ELCRA. The district court granted summary judgment in Rite Aid’s favor and the subsequent appeal followed.
Holding: (Note, this case brief only analyzes the age discrimination portion of Kheibari’s case.)
For a claimant to prevail on a claim that he was harassed because fo his age in violation of both the ADEA and ELCRA, he must show that 1) he was 40 or older; 2) he was subjected to harassment based on age; 3) the harassment had the effect of unreasonably interfering with his work performance and creating an objectively intimidating, hostile, or offensive work environment; and 4) there exists some basis for liability on the part of the employer.
In this instance, the Court of Appeals recognized that the case turned on the third element. To establish a hostile work environment, the complained of conduct must be so severe or pervasive that it rendered the plaintiff’s work environment such that a reasonable person would find it abusive or hostile. Under Sixth Circuit precedent, a court is to divide the inquiry into two steps: 1) determine the relevant facts that constitute age based harassment and 2) asses whether that conduct is sufficiently severe or pervasive to create a jury question.
The relevant facts in this case centered on Snyder allegedly slighting Kheibari in various way, a poor performance evaluation, and Snyder allegedly calling Kheibari “too old” several times. Even though Kheibari claims that Snyder visited the Rite Aid store where Kheibari worked and went out of his way to ignore Kheibari, there was no evidence that Kheibari’s age motivated Snyder’s conduct. As for the poor evaluation, the Court of Appeals could find no evidence of age based harassment in the review. Turning to Snyder’s alleged comments about Kheibari being “too old”, the Court recognized that these comments could constitute age based conduct.
That led the Court to determine whether this conduct was severe or pervasive. Courts are to consider the totality of the circumstances to determine whether the cumulative effect of the complained of conduct constitutes a change in employment conditions. Notably, the complained of conduct must be extreme, otherwise the ADEA would be a “general civility code.” The Court quickly concluded that the comments were not sufficiently severe or pervasive to qualify as harassing conduct under the ADEA. For starters, the comments did not taunt, tease, or ridicule Kheibari. Harsh, rude, or offensive criticism from a supervisor, without more, cannot constitute severe harassment. As the Court pointed out, while these comments might have been offensive and rude, that did not make them severe. In addition, while there were allegedly five or six comments made toward Kheibari about his age over a nine month period, this was not pervasive. A handful of harsh age based comments was not found to made a work environment hostile.
Judgment: The Sixth Circuit Court of Appeals affirmed summary judgment in favor of Rite Aid on the grounds that a few alleged comments about an employee’s age over a nine month period, poor performance evaluation, and alleged slighting by a district manager were not sufficiently severe or pervasive to establish an age discrimination claim under the ADEA or Michigan law.
The Takeaway: This case serves as a good reminder that just because an employee experiences rude or unfriendly comments/conduct from a superior, that does not automatically mean an actionable harassment claim exists. I would go so far as to call Snyder’s alleged comments to be bordering on harassment. However, as the Court of Appeals pointed out, just because conduct is harsh, rude, or offensive, that does not qualify as harassment. Further, the fact that the ADEA is not to be construed or applied as a “general civility code” should clue readers into the fact that there is somewhat of an elevated standard applied when considering whether complained of conduct is sufficiently severe or pervasive. While this should not spur employers to thinking they can act with impunity, a few unsavory comments, such as in this case, will likely not amount to an actionable claim under the ADEA.
Majority Opinion Judge: Judge Cook
Date: July 7, 2020
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