Dive Brief:

• Comments HR made to a long-time employee about her retirement after she said she was going to retire didn't suggest she was fired because of her age, the 6th Circuit Court of Appeals held (Sims-Madison v. Dana Commercial Vehicle Manufacturing, LLC, No. 21-5706 (March 28, 2022)).
• The employee worked as a materials handler for a Kentucky manufacturer. Two years before she was fired, co-workers began complaining that she spoke to them in a disrespectful manner and allegedly "hurl[ed] expletives" at them. Despite disciplining the employee, HR kept getting complaints. During a meeting to discuss a second suspension, she told the HR manager she was going to retire in a few months, according to court documents. The company gave her a final warning. It fired her after the complaints continued.
• The worker sued for age discrimination under Kentucky law. A federal district court ruled for the employer. On appeal, the 6th Circuit upheld the ruling. It found that the retirement comments were innocuous and the evidence showed she was fired because of her misconduct, not her age.

Dive Insight:

Retirement talk can be a sensitive subject. Sometimes, it's appropriate, like when HR needs to follow up with employees about their stated plans to retire. That was the case here, except that the employee also had a history of disciplinary problems, which continued despite repeated warnings. When faced with a second suspension, she told the HR manager she was going to retire in five months.

There was little question the company wanted her gone: In emails uncovered during discovery, the HR manager wrote that he wanted her behavior to stop or that her final warning had to be written "so tight that the next reported and signed complaint will be termination." This, however, suggested he wanted her fired due to her conduct, rather than her age, the 6th Circuit said.

Nor did HR's retirement comments suggest age discrimination. Instead, they consisted of harmless remarks, more akin to "mere inquiries of potential retirement" than evidence of age bias, the court said. After she said she planned to retire, a member of the HR staff approached her to ensure she got her retirement paperwork and noted that she hadn't set a retirement date. The HR manager also told her that "this could be yours," referring to a retirement celebration he was setting up.

That retirement talk was innocuous, and there was no other evidence showing the employee's termination was motivated by age, the court said. In scenarios of age bias, the court noted, remarks are often accompanied by other actions, like stripping a good performer of duties, name-calling or making remarks like, "you have old skills."

That's what happened in a case where the supervisor repeatedly badgered an employee about retiring. In that case, the 6th Circuit said the supervisor's other actions reinforced an inference that he badgered the employee to retire because he felt the employee was too old for the job and that a jury would have to decide the claim.

Recently, allegedly more blatant and aggressive attempts to get rid of older workers showed up in court filings involving an age discrimination claim against IBM. Emails in the case revealed an alleged "top-down plan to retain younger workers in an effort to improve IBM's demographic makeup," HR Dive reported. One email revealed an exec's intent to "accelerate change by inviting the 'dinobabies' (new species) to leave" and make them an "extinct species."

In the Kentucky case, it's worth noting, as the 6th Circuit did, that the employer's win was also based on practices that help ensure fair treatment and undercut bias claims. When its initial discipline, a one-day suspension, didn't work and the complaints kept coming, the employer issued the employee a five-day suspension with an intent to discharge. But after investigating the situation, hearing her side of the story, weighing her 15 years' seniority and considering her stated intent to retire soon, it reduced the discipline to a one-day suspension with a final warning.

After the employee violated the final warning and failed to respond to the employer's offer to accommodate her retirement request, it fired her. These practices hardly suggest age discrimination, the court said.