Employer's Notes Which Suggested a Discriminatory Intent to Terminate a 77 Year Old Employee Doom Employer's Motion for Summary Judgment

Wheat v. Rogers & Willard, Inc. - United States District Court, Southern District of Alabama, South Division

Facts:  Ralph Wheat ("Wheat") was employed by Rogers & Willard, Inc. ("Rogers") as a project manager/estimator until he was terminated at the age of 77.  Wheat subsequently filed suit against Rogers on the grounds that he was terminated because of his age, in violation of the Age Discrimination in Employment Act ("ADEA").

In support of his claim, Wheat replied upon notes that Mike Rogers (majority owner of Rogers & Willard, Inc. along with Steve Willard) made at a conference approximately a year before Wheat was terminated.  (Mike Rogers and Steve Willard made the decision to terminate Wheat.)  The notes that Mike Rogers made at the conference included the following:  

1. Immediately under the heading, "Attracting and Retaining employees," Rogers wrote "'Fire all the old people.'  Fiat president."; 
2. Next to that statement, Rogers wrote, "many large companies bringing in new bloo[d]"; 
3. Three bullet points later, Rogers wrote, "Older guys - Ralph & Jerry - Mentor to their replacements - same with Diane."; and
4. Four bullet points later, Rogers wrote, "'Paint' a vision of what company will look like in three years, i.e. new, younger employees...."

Rogers subsequently filed a motion for summary judgment on Wheat's ADEA claim.

Holding:  For those unfamiliar with the ADEA, a plaintiff may establish a valid illegal age discrimination claim via either direct or circumstantial evidence.  As has previously been held, "For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision."  

In this case, there was no dispute that Mike Rogers was a decision maker in regard to Wheat's termination.  As a result, the focus of the Court's analysis turned on whether the notes that Mike Rogers constituted direct evidence of a discriminatory intent.  Three reasons were offered by Rogers in regard to why the notes could not constitute direct evidence of age discrimination:  1) the notes were too vague in that they did not explicitly say "Fire Ralph"; 2) Rogers offered an innocent explanation for the notes (that he was joking); and 3) the notes were written almost a year before Wheat was eventually terminated.

The Vagueness of the Notes

The District Court promptly did away with all three reasons offered by Rogers.  First, Rogers argued the notes made at the conference did not really mean what they said.  In short, Mike Rogers was only writing down what he heard spoken in jest at the conference, only intended for older employees to mentor younger project managers, and that the company was only taking steps to prepare for the future (presumably when older employees retired).  However, the Court pointed out that direct evidence is evidence which, if believed, proves the existence of a fact without inference or presumption.  In this case, if a jury were to believe that when Mike Rogers wrote "fire all the old people" that he identified Wheat as an "older guy", that statement alone could lead a jury to find that Wheat was terminated because of his age.

An Innocent Explanation?

As well, the Court rejected the argument that Rogers could use a "just kidding" defense in so much that the notes did not mean what they actually said.  The Court noted that while Rogers could attempt to go behind the words and address the context of the thought process of Mike Rogers when he expressed them, a jury is not required to accept such "self-interested" explanations over the plain meaning of the words themselves.

The One Year Gap

In regard to the approximate year gap in between when the notes were written down and when Wheat was terminated, the Court recognized that there was some ambiguity in terms of the time frame required for discriminatory statements to be tied to a termination rooted in discrimination.  However, the Court held that no published Eleventh Circuit decision had ever developed a temporal limitation on the use of direct evidence when the statement was sufficiently explicit and sufficiently tied to a particular employment decision.  Therefore, the "staying power" of the statements and the employment decision could be measured in years.

Judgment:  The District Court denied the employer's motion for summary judgment on the grounds that direct evidence existed which established an allegedly discriminatory intent by the employer (by way of notes that one of the majority owners made at a conference) to unlawfully terminate the 77 year old employee because of his age, in violation of the ADEA.

The Takeaway:  Do not get me wrong, I do not author this blog so that employers can utilize it as a resource on how to get away with unlawfully terminating their employees.  With that being said, employers, never, never, NEVER write down that you want to fire old employees, have them mentor younger replacements, or make plans for the company's future with younger employees.  Common sense should tell you those notes (as the Court noted, whether in jest or not) will inevitably come back to haunt you.

Of course, keep in mind this was not a trial, let alone a court of appeals affirming judgment in favor of the employee.  Instead, this was the District Court looking at the facts in the record (and viewing all evidence in the light most favorable to the non-movant, Wheat...as is the standard when a Court considers a motion for summary judgment) and finding sufficient fact issues to deny the motion for summary judgment.  This was not the final day in court for either party.  Rather, this is the Court recognizing genuine issues of material fact exist such that the matter should proceed ahead to a trial on the merits.

Majority Opinion Judge:  Judge Steele

Date:  September 26, 2017

Opinion:  http://hr.cch.com/eld/WheatRogers092617.pdf