Ageist Comments Not Enough to Defeat Summary Judgment

Kollman & Saucier
Kollman & Saucier

A supervisor’s use of the words “old school” and “historically” were not enough to get a  50 year old employee’s claim of discriminatory termination to a jury.  In  a June 12, 2015 ruling, the  United States Court of Appeals for the Eighth Circuit affirmed a grant of summary judgment to the employer, Gallup Inc.  Wagner v. Gallup Inc., No. 14-2746 (8th Cir. 6/12/15).

The terminated employee, Rodd Wagner, worked for Gallup as  a subject matter expert and author. He alleged that his 35 year old supervisor fired him in 2011 because of his age.  Gallup defended its termination decision on the grounds that Wagner was difficult to work with and had a reputation as being “self-oriented.”

The only evidence Wagner offered in support of his age discrimination claim was his assertion that, in a phone conversation, his manager referred to him as “old school” and used the word “historically” during the conversation.  The 8th Circuit Court of Appeals held that, when viewed in context, the words were not indicative of ageist motives.  “Old school” was used in connection with a reference to whether Wagner’s constant references to books he authored would appear “old school” to clients; “historically” was used in reference to the need to get Wagner to think differently about certain concepts.  The appellate court ruled that “there is simply too great a leap from the context of these word usages to the establishment of a specific link between an alleged age animus and Wagner’s termination.”

The cautionary tale for employers is that, while summary judgment was ultimately affirmed, Gallup had to litigate this case all the way through the appellate stage.  While employer cannot completely sanitize their workplaces of all possibly offensive language, supervisors need to be careful not to use words and phrases that can be taken out of context to bolster an otherwise flimsily claim of discrimination.

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