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Are You Ever “Too Old” For Cereal? Kellogg’s Thinks So. And Got In Trouble.

Kellogg USA finds itself facing a jury trial.  In McCartt v. Kellogg USA, Inc., No. 5:14-318-DCR (E.D. Ky. Oct. 14, 2015), a former sales representative, James McCartt, was over age 60 when he was fired in a corporate downsizing. He sued for age discrimination because his manager, Kevin Grzanka, had made an age based comment about his performance.  His unwise manager had said that Mr. McCartt was “too old and set in his ways” and that Kellogg and Mr. McCartt needed to move in different directions.  Although his manager did not say this to McCartt directly, he said it about Mr. McCartt during a midyear performance review discussion with other managers about ten months prior to his layoff.  Mr. McCartt learned of the comment from his former district manager, who apparently was so upset when he first heard it, that he he told other co-workers about it.

The trial court judge found, not surprisingly, that the manager’s statements were direct evidence of possible age bias. The statement was unambiguous and “clearly suggest[ed]” a negative view of McCartt’s age.  Even though the manager was not the ultimate decision-maker, the human resources department relied upon scores that Grzanka had given to McCartt when it selected him for layoff.  Even if Grzanka may not have known the scores were going to be used for a layoff decision, the trial court found it was reasonable to expect that a manager would know the scores may lead to an adverse employment decision.

Lesson here?  Age comments, or any comments in the workplace that speak negatively to an individual’s protected characteristics, will not be easy to work around, avoid, or hide.  Make sure your managers in particular, but all of your workforce, understand that such comments benefit no one and will not be tolerated.  And take action if made.

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