Tuesday, June 7, 2016

Age Discrimination Case Allowed to Proceed Where Older Workers Referred to as "Dinosaurs" and "Old Son of a Bitches"

An employee, Stephen Jecker, of some 32 years of a company, Monumental Life Insurance Company, sued alleging age discrimination and retaliation under both the Age Discrimination in Employment Act ("ADEA") and the Kentucky Civil Rights Act.  Both the plaintiff and defendant filed for summary judgment.  The employee's retaliation claim was dismissed under summary judgment as Jecker was not able to establish that he engaged in protected activity (the plaintiff had to establish 1) he "engaged in a protected activity"; 2) Monumental knew that he had engaged in the protected activity; 3 Monumental "took an adverse employment action against" Jecker; and 4) "there is a causal connection between the protected activity and the adverse action")

The Court did, however, allow Jecker's age discrimination claim to proceed, stating that this claim is slightly stronger, "but not strong enough to warrant summary judgment in his favor."  What ultimately carried the day for Jecker in his age discrimination claim is a number of ageist remarks alleged to have been said by various individuals who worked at Monumental.  The former Regional Vice President testified that he overheard another senior officer tell the plaintiff's direct supervisor that, "[I]t's time you got rid of those old son of a bitches," to which he replied, "[G]ive me some time, we're working on it right now."  This former VP also testified that after Jecker's termination, his former supervisor made a comment about Jecker's age, saying "it was time for [Jecker] to go and that um, we need to have, you know, younger people in the organization to run it.  This former VP also testified that this supervisor frequently referred to older employees as "dinosaurs."  Jecker's former supervisor denied making these comments, which created a dispute of material fact.

Another issue of material fact was whether Jecker was replaced by a younger employee or whether his former job duties and responsibilities were absorbed by other, current employees, as this spoke to whether Jecker was a reduction in workforce or not.  If Jecker was terminated as part of a work force reduction, he would have to "provide 'additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled [him] out ... for discharge for impermissible reasons.'"

The case is Jecker v Monumental Life Ins Co, WDKy, May 23, 2016, Hale, D.

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