Dive Brief:

• Although a manager for FedEx provided some evidence that his supervisor made "ageist remarks" to him within six months of his termination, he failed provide enough information for a reasonable jury to conclude that age was the reason for his firing, the 11th U.S. Circuit Court of Appeals ruled (Melvin v. Federal Express Corp., No. 19-11872 (11th Cir. May 21, 2020)).
• Roddie Melvin sued his former employer, alleging age discrimination and retaliation. Melvin, who had worked for the company for 33 years, said that during his first meeting with the supervisor who let him go, the man asked Melvin his age, when he was going to retire and whether he would be able to keep up given his age. "Questioning whether Melvin 'really wanted to do this job anymore,' [the new manager] suggested he was too old and should let the young guys do it," according to the court's opinion. The same manager fired Melvin six months after the meeting, but also had issued him three disciplinary letters explaining various infractions
• A district court granted FedEx's request for summary judgment and the appeals court affirmed the decision. FedEx said it terminated Melvin's employment because of a pattern of insubordination and leadership failure that was documented in the disciplinary letters. Melvin argued the supervisor was merely trying to push him out, but the 11th Circuit disagreed. The appeals court said that even though Melvin "presented some evidence" that his manager made "ageist comments" within six months of the termination, Melvin had not presented enough evidence to show that reasons given in the letters were pretext for age discrimination.

Dive Insight:

Remarks, especially from managers, can sometimes provide evidence of discrimination. Generally, however, courts require they meet certain standards.

Earlier this year in a case dealing with allegations of race bias, the 5th Ciruit ruled that "stray remarks" made to an African-American worker were "offensive" but did not show that she was fired based on her race. The employer prevailed because it was able to show that she was fired because of time-clock fraud. In another instance, the 2nd Circuit concluded that despite age-related "stray remarks" from executives, two former employees of Adloox, Inc., were fired for poor job performance, not age discrimination.

On the other hand, the 6th Circuit allowed a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age to take her age bias claim to trial.

Employers may want to note, however, that the Age Discrimination in Employment Act's (ADEA) causation standard is under review following a U.S. Supreme Court ruling that ADEA plaintiffs must prove that age was the "but-for" cause of the adverse employment action in question.

Generally, however, when employers prevail in discrimination cases, it is often because they can show with thorough documentation that the adverse employment action was based on poor performance, rule breaking or a similar infraction. Experts have said that managers should be trained to document everything, and document it well.

Managers and supervisors should also be trained on compliance with applicable local, state and federal laws forbidding discrimination and retaliation. In addition, HR pros can conduct training to prevent stereotyping and offensive comments, as well as adopt policies to address such remarks if they occur.