by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Lefevers v. GAF Fiberglas Corporation, handed down on 1/27/12 (see 2012 U.S. App. LEXIS 1477), in which the 6th Circuit affirmed the district court’s ruling of summary judgment favoring GAF. This case illustrates two key elements that make or break an age discrimination termination claim, particularly in layoff (or RIF) cases. Element #1 is direct evidence of age-based derogatory remarks by key decision makers in close temporal proximity to termination. Element #2 is indirect (or circumstantial) evidence that older workers are treated less favorably than similarly situated younger employees (e.g., terminating only older workers for cause and/or reassigning younger but not older workers to other jobs). George Lefevers, who was laid off in a RIF at age 58, failed on both elements.

On Element #1, Lefevers cited statement made by a younger co-worker (John Stromme), a human resources manager (Mary Hall), and a regional plant manager (John Toms). Stromme asked Lefevers "When are you going to retire?" and he told older shift supervisors "We realize you guys are getting old and would like to know if any of you are going to retire." Hall stated in a staff meeting "There are some elderly supervisors that we have to do something with within the next year", and Toms said "I don't understand why you older employees—old employees think we're trying to get rid of you. We need you to run this plant." Stromme’s statements were deemed insufficient because he was not a decision maker. The court also ruled that “questions concerning an employee's retirement plans do not alone constitute direct evidence of age discrimination.” Hall and Toms were decision makers, but Hall’s statement was made two years prior to the termination and Toms’ statement was deemed favorable toward older workers.

On Element #2, Lefevers could not prove that the stated reasons for his termination were pretext. Specifically, GAF asserted that “Lefevers was selected for discharge as part of a reduction in force because his job performance was inadequate”, and presented evidence including poor performance evaluations, documented warnings concerning his behavior, and his failure to reach performance goals. Other documented reasons were provided. But the key here was that the burden of proof (for pretext) was on Lefevers, and he could not prove that similarly situated older employees were treated less favorably than similarly situated younger employees. In fact, GAF retained several employees who were as old and older than Lefevers in positions that were similar to his.

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