A recent case from the United States District Court for the Eastern District of Virginia, Richmond Division, demonstrates that employers must always choose their words carefully, especially when they’re about to fire poor-performing employees.
In Granet v. Presidio, Inc., Civil Action No. 3:19-cv-821, the plaintiff was a 54-year old account manager who alleged that his former employer forced him to resign due to his age. Presidio countered that plaintiff was terminated due to a string of mishaps, including: “speaking incoherently throughout most of the lunch” with an important client due to an apparent over-prescription of a sleep medication; sending an email containing “proprietary internal pricing information” to a client; failing to act professionally in the workplace; and failing to meet sales goals. Despite these difficulties, plaintiff remained employed with Presidio. The final straw, however, came when plaintiff asked out a young woman who worked next door. After several informal chats with the young woman, who was a 2018 college graduate, plaintiff sent her a message on LinkedIn that stated “I love chatting with you and I like you. Maybe we could grab dinner sometime or do you think I might be too young for you?? :).”
The young woman rebuffed this advance and reported it to her HR Department, which in turn contacted Presidio the next day. Plaintiff was called into the Vice President of Sales’ Office, who reportedly said “Why are you asking a woman much younger than yourself out to dinner? You’re as old as me and you asked her out to dinner! You have no right to do that I’m so pissed off right now.” The Vice President continued to state that he had “already called [human resources], and this ball is in motion. You’re probably going to lose your job.” The Vice President’s reaction, while perfectly understandable and rooted in common-sense, would end up equipping the Plaintiff with a viable age-discrimination claim. Two days later, Plaintiff was given the ultimatum of resigning or being terminated. He chose to resign. The company later hired a 30-year old as plaintiff’s replacement.
In denying Presidio’s summary judgment motion, the judge found that Plaintiff had introduced direct evidence of age discrimination in the form of the derogatory comments made by the Vice President. These derogatory comments were (1) “related to the protected 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.” Jackson v. Cal Western Packaging Corporation, 602 F.3d 374 (5th Cir. 2010).
Even though Presidio introduced other compelling evidence of why it fired plaintiff, it could not avoid the fact that the Vice President’s comments regarding plaintiff’s age came on the same day that he sent the plaintiff home and got the ball rolling on his forced resignation. As such, plaintiff’s age discrimination claim could be considered a but-for cause of his termination, and was able to survive a motion for summary judgment.
Had the Vice President refrained from commenting about the Plaintiff’s age, the company would have stood a far better chance of prevailing on summary judgment instead of preparing for the expense of a jury trial. The lesson for employers: be careful what you say, and be careful how you say it.