Appeals court rules no pretext found in ADEA discrimination case

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The Tenth Circuit recently ruled that pretext would not be found if an employer terminated an employee based on a genuine belief that the employee had violated company policy.

Background

Linda Tatom was 56 years old when she began working as an at-will employee at the Guthrie Job Corps Center (GJCC) in Guthrie, Oklahoma, in 2006. She taught various courses at the facility until she became involved in an altercation with C.F., a male trainee, on October 28, 2011. Tatom filled out an incident report and made a typewritten statement regarding the incident, but she did not indicate whether the altercation amounted to a Level I infraction, which would have required the trainee’s immediate separation from GJCC, or a lesser Level II infraction. After filing the report, Tatom was permitted to go home for the remainder of the day.

Tatom informed GJCC’s academic manager and human resources manager that she would not return to work as long as C.F. remained on the GJCC premises. On November 4, 2011, the HR manager sent her a letter informing her that she was in violation of GJCC’s policy of job abandonment and that she had until 8:00am on Wednesday, November 9, 2011, to report to the HR office or else Res-Care, the company who operated the center, would classify her actions as “job abandonment” and report them as a “voluntary resignation.” Tatom reiterated that she would not come to work if C.F. was on the premises.

When Tatom failed to report on November 9, she was terminated. At the time of her termination, she was 61. Res-Care used substitute teachers to temporarily fill Tatom’s position, but ultimately hired two preexisting teachers, Doug Ford, aged 56, and Jill Zimmer, aged 53, to take over her duties. Tatom brought action against Res-Care claiming (1) age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and (2) retaliatory wrongful discharge in violation of Oklahoma public policy.

Prima facie case, but no pretext

Under the ADEA, an employer may not “discharge any individual . . . because of such individual’s age.” In order to make a claim under the ADEA, Tatom must first show (1) membership in a protected class and (2) an adverse employment action that (3) took place under circumstances giving rise to an inference of discrimination. If an employee can prove these initial three facts, the burden then shifts to the employer, who must assert a legitimate nondiscriminatory reason for its actions. The employee must then introduce evidence that the stated nondiscriminatory reason for the employer’s actions is pretext for discriminatory intent.

Here, Tatom proved that she was in a protected age group and that she was performing her job duties satisfactorily prior to her altercation with the trainee. It was not disputed that Tatom was terminated and replaced by younger employees. Thus, the court found that Tatom made a prima facie case under the ADEA. Res-Care, however, was able to show that they terminated Tatom for missing eight consecutive workdays after her altercation with C.F., which the court deemed a legitimate non-discriminatory reason. Thus, in order for her claim to survive, Tatom had to show that Res-Care’s reasons her for termination were pretextual.

Pretext may be shown if the terminated employee can produce evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in an employer’s proffered legitimate reasons for its employment action, such that a reasonable person “could rationally find them unworthy of credence and hence infer that the employer did not act for the non-discriminatory reasons.”

Tatom claimed that Res-Care’s proffered reasons for her termination were pretextual because (1) Res-Care violated its own Policy and Practice Manual in terminating her, (2) GJCC underplayed the severity of C.F.’s infractions, (3) Res-Care failed to handle C.F.’s infractions in a timely fashion, and (4) Res-Care and GJCC employees and former employees lied in an attempt to cover up the real reason for her termination. Specifically, Tatom alleged that pursuant to Res-Care’s policies, her absences were excused, and thus, by terminating her, Res-Care violated its own policies. The court disagreed, finding that “the issue is not whether the decision to terminate [Tatom] was wise, fair or correct, but whether [Res-Care] reasonably believed at the time of the termination that [Tatom] had violated company policy, and acted in good faith upon that belief.” Tatom missed eight consecutive days without requesting a leave of absence, and failed to report to HR even when told that a failure to report would be treated as a voluntary resignation. These actions gave Res-Care reason to genuinely believe Tatom violated company policy, which in turn allowed for her lawful termination.

The takeaway

If an employer genuinely believes that an employee has committed a terminable offense, or violated a company policy, the employer may terminate the employee without the inference of pretext, even if the employer acted in an unwise or unfair manner.

  • Linda Tatom v. Res-Care, Inc., No. 14-6125 (10th Cir., Jan. 24, 2015)