Was he fired for grousing or in retailiation for an ADEA lawsuit?

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

Age Discrimination and Performance Evaluations

“We can’t have this. I mean we really…just…can’t…have…this,” HR Director Eileen Whitehurst told sales rep Carl Kramer. She was repeating herself, something she usually didn’t do. Carl had been so far out of line, she couldn’t help it.

“When you go around bad-mouthing the company to customers, you hurt our reputation and risk losing us important business,” Eileen said. “That would be a firing offense anywhere.”

“What do you mean, bad-mouthing?” Carl asked with pretended surprise.

“You know exactly what I mean,” Eileen said. “Telling people over at Parker Enterprises that your managers are out to get you, and you’re, quote, ‘gonna sue the pants off’ us over being demoted from regional rep.”

Repeated complaints

“According to the people I spoke to, you’ve been going on and on about suing for $10 million,” Eileen went on. “One of them said that’s all you talk about on your calls.”

I’m not admitting a thing,” Carl said. “But what if I did mention suing? I’ve got the right to sue for age discrimination, because that demotion was all about me being over 40. And I’ve got the right to talk about the wrong that was done to me.”

“I guess you’ve got the right to sue, all right,” Eileen said. “Even though you know very well you were demoted for poor performance, not your age. But in any case, you do NOT have the right to ruin our business with your grousing. You’re fired.”

“You’ve cooked your own goose,” Carl riposted. “I was just going to sue for age discrimination, but now you’ve committed retaliation, too.”

Carl added a charge of retaliation to his ADEA lawsuit.

Did he prevail on that claim?

No, the court threw out Carl’s retaliation charge. Carl’s comments to the customer about his age discrimination complaint weren’t protected under the Age Discrimination in Employment Act (ADEA), the court said.

Why? Because there was no evidence Carl specifically told the customer his employer demoted him because of his age.

According to the customer’s employees, Carl said his managers were out to get him, and his lawsuit would “get their attention.”

For employees to be protected from retaliation from their employer, their complaints have to specifically allege discriminatory employment practices. That wasn’t the case here.

Doing damage

Disgruntled employees can cause a lot of damage, especially when they’re in regular contact with customers. That’s one of the reasons why you should quickly investigate any claim of discrimination – to defuse the alleged victim’s resentment, as far as possible.

If, however, employees do make a discrimination complaint to the EEOC or in court, you need to be very careful before punishing them for talking about it – even to customers.

In this case, HR Director Eileen did the right thing. She checked to see what Carl had said, determined it wasn’t protected speech, and appropriately disciplined him.

Cite: Fox v. Eagle Distributing Co., No. 07-5203, 6th Cir., 12/14/07. Fictionalized for dramatic effect.

Issue 6.16

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