Wednesday Federal Employment Law Update

Welcome back to my blog!  I hope you are enjoying some of the visual enhancements I have made.  It’s great to see my firm pumping some money into this project!  (Just kidding, WordPress actually is a great site with many free enhancements).

Today is federal employment Wednesday, so I want to discuss the recent opinion in Harrison v. Formosa Plastics Corp. Texas, 2011 WL 864843 (S.D. Tex. March 10, 2011).  Harrison was a case brought for age discrimination and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 623 (“ADEA”).  The ADEA protects workers over 40 from discrimination in the workplace. 

Plaintiff Harrison was a factory worker for the defendant, and was hired at the age of 51.  It appears from the facts that he and his fellow co-workers engaged in regular heckling banter.  Harrison would be called names such as “old man” or “old fart,” while he called his co-workers “young punks,” “whippersnappers,” “baby duck,” etc.  According to the record, Harrison went so far as to request that his co-workers call him “Pa Pa” and had the same inscribed on his hardhat.  Harrison stated, however, that the comments would rise beyond friendly banter, testifying that he was sometimes called “fat old bastard” or “old son of a bitch.”   Harrison did not initially report these comments to his supervisor or to human resources, though the company had a procedure in place for the reporting of discriminatory abuse. 

Starting in late 2006, Harrison began receiving written warnings for work-based infractions unrelated to his relationships with colleagues.  After his second warning, which subjected him to termination upon any further infractions, he reported the ageist comments to his new shift supervisor.  Harrison states that not only did his supervisor refuse to take action, but he started making similar comments.  After making a second complaint to the supervisor (Crenshaw), Harrison threatened to report Crenshaw’s inaction to human resources. 

Two weeks later, an incident occurred where, due to the absence of a co-worker, Crenshaw assigned Harrison to what appeared to be an unfavorable job task.  Harrison refused to do the assignment, ultimately filling out paperwork stating he was ill and went him from his shift.  Crenshaw documented the incident and, two days later, Harrison was suspended.  After human resources conducted an independent investigation, including investigation of Harrison’s claims of age-related abuse.  After the investigation was completed, Harrison was terminated.

After exhausting his administrative remedies through the EEOC, Harrison sued for age discrimination and retaliation, specifically alleging that 1) he was terminated based on his age; and 2) he was terminated in retaliation for threatening to report his supervisor’s inaction in response to his age-based complaints. 

Defendant moved for summary judgment on both claims.  The motion was granted, but primarily due to evidentiary issues.  Specifically, in trying to make his prima facie case, Harrison relied on two forms of hearsay.  One, he relied on statements from unnamed co-workers who said he was replaced by one or more younger employees.  Without identifying the employees, he could not establish them as employees authorized to speak on behalf of the company and, therefore, the statements did not qualify as “admissions against interest,” a hearsay exception.  Two, Harrison elicited evidence that, under Crenshaw,  he was subjected to work assignments normally reserved for new employees.  In support, Harrison relied on testimony from his former supervisor.  However, the former supervisor did not directly observe these assignments, but rather relied entirely on hearsay statements from Harrison. 

Aside from his hearsay problems, the ageist remarks from his co-workers were tabbed as non-actionable “stray remarks,” since they were not made by anyone with authority over the decision to fire him, nor were they related to his termination.  Harrison’s final attempt to avoid summary judgment was the “cat’s paw” theory, which avers that the actual decisionmaker is in effect rubber-stamping the recommendations of another employee bearing a discriminatory animus, in this case Harrison’s supervisor Crenshaw.  The District Court disagreed, citing to human resources’ independent investigation. 

This is an interesting case for many reasons.  One, it is a reminder that the friendly ridicule we may have with our friends outside the workplace has no place within the workplace, no matter how harmless it may seem.  While yes, the defendant prevailed, it surely paid a hefty price in legal fees to do so.  Second, it was encouraging to see the District Court boldly apply the law and to rule on summary judgment.  In most instances, the trial court will pass on summary judgment in a case with these types of alleged comments, particularly from the Plaintiff’s supervisor.  Harrison, however, could not overcome his evidentiary issues.

Explore posts in the same categories: Federal Employment Law Updates

2 Comments on “Wednesday Federal Employment Law Update”

  1. K O'Malley Says:

    For those of us in the cheap seats, this is the second case you have mentioned using the cats paw arguement, can you post a nice longer explanation of where it came from et al.


    • Craig Salner Says:

      Hi Kevin,

      The “cat’s paw” theory applies where someone, who is not technically the decisionmaker, still is in a position of such extensive influence that the actual decisionmaker is but a mere figurehead rubber-stamping the recommendation of the biased supervisor. Like in the case I discussed, if the decision came from some corporate office in New York based only on the report of the supervisor who was calling this guy an old SOB, summary judgment probably would not have been granted. However, in this case the company’s HR department did an independent onsite investigation before terminating Harrison.

      I hope this helps and thanks for continuing to follow my blog.

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