Age Discrimination isn't a cover for lost trust

by on December 15, 2008 · 0 Comment POSTED IN: HR Info Center

Accused thief wanted his old job back and tried to use an ADEA lawsuit to get it.

Debbie Quinn thought she’d seen and heard everything. But this was unbelievable. As HR director of Ariel’s, a regional department store chain, it had fallen upon Debbie to tell Dave Penkower that he couldn’t have his job back. She felt like telling him she was surprised he had the nerve to ask for reinstatement. But she kept her cool.

Acquitted on a technicality. But sued for age discrimination?

“Dave, what I’m about to tell you should go without saying, but here you are.” Debbie braced herself for the unpleasant task. “You stole over $2,000 worth of stereo equipment from our warehouse.”

Dave cut in. “I was acquitted of theft.”

“On a technicality,” said Debbie. “I know, you know, your former coworkers and your boss knows you did it. You got caught red-handed.”

“The case was thrown out of court,” said Dave. “I’m innocent. And frankly, as the oldest supervisor in the entire region, I’m beginning to think that you wanted to get rid of me because of my age.”

“That’s groundless,” said Debbie. “And you know it!”

“Is it?” asked Dave. “Remember Frank Hoeber? He was convicted of stealing from the company, too. Frank was exonerated in court. And guess what. He was reinstated. Frank’s in his mid thirties. And here I am in my early fifties – like I said, the oldest in my group. I think you were only too happy to get rid of me because I’m the old guy around here!”

Debbie knew that Dave was right about being in a protected class and it was true that he was the oldest in his group. But she believed that Dave hadn’t been fired because he was older than his peers; he’d been fired because no one trusted him – and with good reason.

Dave sued Ariel’s for age discrimination. Did he win his case?

The decision

No. Dave lost his age discrimination lawsuit.

The court said that Dave wasn’t able to show any direct evidence of age discrimination. While it was true he was the oldest, and that he was fired, he couldn’t show the court that there was even a suggestion of age discrimination.

Dave’s primary argument was that another store employee – one who wasn’t in a protected class – had been reinstated after being accused of a similar offense and exonerated after a criminal trial.

But that argument didn’t fly. The decision to reinstate the other employee who’d been accused of stealing was made by another manager.

The circumstances weren’t exactly the same. Moreover, said the court, reinstating these two employees involved separate management decisions, and the court acknowledged that not all management decisions will be the same.

The court said “While evidence of disparate treatment can of course support an assertion of pretext, the employee with whom the plaintiff wishes to be compared must have been similarly situated to the plaintiff in all relevant respects.”

This case is a reminder that when an employee loses the trust of his managers, coworkers and customers, his employer is entitled to fire him – whether or not he’s a member of a protected class.

Cite: Britton v. City of Poplar Bluff, U.S. Court of Appeals, 8th Circuit, No. 00-2141, 3/30/01. Fictionalized for dramatic effect.

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