‘Old fart’ loses age discrimination case
How can office talk about replacing the “old, gray-haired fart” not add up to a pretty strong age discrimination case when the object of scorn is later fired?
Try the boorish behavior of the old, gray-haired fart himself.
Sex harassment, senior style
Wayne Jackson is in the home stretch of life. In 2007, Jackson had reached the ripe old age of 69 and was wrapping up nearly twenty years as a manager at Cal-Western Packaging Corporation in Houston, Texas.
With retirement staring Jackson in the face, you’d think he’d be smart enough to steer clear of trouble.
Instead, Jackson started looking for trouble. At least that’s the picture that his coworkers painted.
Karen Hopper was one of those coworkers.
In May 2007, Hopper, emailed her supervisor, Cal-Western Controller Jim Rosetti, claiming that that Jackson had been engaging in behavior that made her “uncomfortable.”
Hopper alleged that Jackson had asked to see her breasts and had commented that her boyfriend must like “big boobs.” She claimed that that every time she saw Jackson he tried to touch her and that, on one occasion, he had actually cornered her and asked her to raise her shirt.
Rosetti took the allegations seriously and reported them to Chief Operating Officer Jimmy Phelps.
Phelps commenced an internal investigation and interviewed several employees who corroborated the allegations. An attorney hired to conduct an external investigation further confirmed the harassment allegations through employee interviews.
Needless to say, Cal-Western fired Jackson for breaching the company’s sexual harassment policy.
Knowing the way of the world, we might suspect that Cal-Western all along was fishing for a legitimate reason to give good old Wayne Jackson the boot. The problem was how to get that object accomplished without getting sued for age discrimination.
Unfortunately for Jackson, assuming his coworkers’ allegations of sexual harassment were true, he had just given his bosses more than enough legal grounds for dismissal.
The sexual harassment accusations didn’t stop Jackson from suing under the Age Discrimination in Employment Act.
On the face of it, Jackson seemed to have a case. He could certainly check off all the boxes for prima facie age discrimination.
Jackson was sixty-nine years old when he was terminated and Cal-Western replaced him with a 42-year-old. There was no dispute that Jackson was qualified for his managerial position.
And there appeared to be direct evidence of age discrimination.
Jackson alleged that Phelps — the Cal-Western COO –had told employee Donnie Sheets that Jackson was an “old, gray-haired fart” and that Sheets would be in charge when Jackson retired.
The problem for Jackson was that Phelps made the alleged comment in 2006 and Jackson wasn’t fired until June 2007.
ADEA case gets the boot
Last week, the 5th Circuit zeroed in on the timeline in affirming a summary judgment for Cal-Western on Jackson’s ADEA claim.
The court explained that “Jackson has provided no evidence that the comment was proximate in time to his firing or related to the employment decision at issue. Jackson maintains that Sheets told him of Phelps’s comment on a visit to Memphis in the summer of 2006, but it is unclear when Phelps actually made the comment….
“Still, even assuming that the comment was made soon before Sheets reported it to Jackson, it was made about a year before Jackson’s June 2007 termination. The comment appears wholly unrelated to Jackson’s termination, and Jackson has not presented any evidence to show otherwise.”
Dismissing Jackson’s key evidence of age discrimination as a “stray comment,” the court returned to the heart of the matter: Cal-Western had a strong case that Jackson sexually harassed coworkers.
Of course, Jackson denied the allegations of sexual harassment, claiming that they were merely a pretext for getting rid of him.
But the 5th Circuit concluded that Jackson’s denials were insufficient to get his case before a jury.
“Jackson’s self-serving statements that he did not commit sexual harassment are insufficient to create a triable issue of fact as to whether Cal-Western’s explanation is false,” the court said.
That pretty much summed up the matter.
“The overwhelming evidence shows that Jackson was fired for violation of Cal-Western’s sexual harassment policy, and Jackson’s only evidence to the contrary comes from his own assertions,” the court said. “Without more, we simply cannot conclude that there is a triable issue of fact as to whether Cal-Western discriminated against Jackson based on age.” (Jackson v. Cal-Western Packaging Corporation)
- Pat Murphy
