The Fourth Circuit Court of Appeals upheld summary judgment in favor of Family Dollar in a suit brought by a former employee who alleged age discrimination and retaliation. The plaintiff, a 48-year old female, was fired after two “no-call, no-show” absences on consecutive days. She was terminated by a 27-year-old female manager.
The crux of the plaintiff’s case was that the manager made several comments regarding plaintiff’s age, including that she wanted to “get rid of old employees” in order to hire younger people. The manager was also alleged to have told the plaintiff that she was “too old to stock” or “too old to sweep” and purportedly mocked the plaintiff for moving slowly.
The Fourth Circuit addressed both the circumstantial evidence of age discrimination, as well as direct evidence presented by the manager’s statements. In assessing circumstantial evidence, the Fourth Circuit applied the burden shifting framework of McDonnell Douglas v. Green, which follows three steps:
(1) the plaintiff must establish a prima facie case of discrimination or retaliation;
(2) if the plaintiff presents a prima facie case, then the burden shifts to the defendant to show a legitimate non-discriminatory or non-retaliatory reason for the adverse employment action; and
(3) if the defendant shows such a reason, then the burden shifts to the plaintiff to prove that the reason is pretextual.
The Fourth Circuit held that even assuming plaintiff had established a prima facie case, she did not raise a genuine issue of material fact that Family Dollar’s stated reason for termination – two consecutive no call/no show absences – was pretextual.
In assessing the direct evidence of the manager’s age-related comments, the Fourth Circuit reiterated that derogatory comments regarding age are direct evidence of discrimination if they are:
(1) related to the protected class of persons of which the plaintiff is a member;
(2) proximate in time to the complained-of adverse employment decision;
(3) made by an individual with authority over the employment decision at issue; and
(4) related to the employment decision at issue.
A plaintiff still must prove by a preponderance of the evidence that age was the but-for cause of the termination. In other words, if there are other legitimate factors for the termination, the plaintiff must show that these other legitimate factors were not the reason for the firing. If age is one of multiple motives, then the age discrimination claim will fail. The Fourth Circuit held that while the plaintiff established that age was a factor in her termination, she did not establish that it was the but-for cause of her termination, as she was fired for two consecutive no-call/no-show absences. The opinion is available here.