Not sure I’m buying it.

Two out of three judges on a panel from my own U.S. Court of Appeals for the Fourth Circuit recently affirmed a jury verdict in favor of a woman who claimed that she was terminated because of her age.

I agree with the panel majority that some of the facts were arguably “iffy,” which generally means that they’re for the jury to decide. The plaintiff, who was 60, violated a workplace rule. But she had a plausible reason for what she had done, and the offense did not have to result in termination under the employer’s policies. And she’d been there for about 30 years and had been an overall satisfactory performer with only two unspecified “infractions.”

So there was that.

Also, her replacement was in her 30s.

So there was that.

But here is the part that bothered me. After the plaintiff was terminated and a supervisor was escorting her to her car, the supervisor said, “Oh, girl, you don’t have nothing to worry about. You’ll get another job. Just go home and take care of those grandbabies.”

The panel majority said that this “condescending and age-related” comment was evidence of age discrimination.

Granted, the supervisor who said that is the one who had told the plaintiff that she was being terminated, and had signed the termination paperwork. However, it does not appear that she was a true “decision maker.” She was not the plaintiff’s direct supervisor, and there was apparently no evidence that she participated in making the decision to terminate the plaintiff’s employment. She communicated the termination decision because she was on site and the decision makers weren’t. In other words, it appears that her “involvement” was only pro forma.

I’m very well into the protected age group (have I told you about my grandson?), and I cannot see this comment as anything more than an attempt to offer a little comfort and kindness to a colleague who had just been fired after 30 years on the job. If the plaintiff had been 35 years old, I can easily imagine this supervisor saying, “Oh, girl, you don’t have nothing to worry about. You’ll get another job. Just go home and enjoy some quality time with your kids.”

And then she’d get sued for sex discrimination, I guess.

Does this mean that you can’t offer any words of encouragement to a terminated employee on his or her way out the door apart from “Goodbye, and good luck”?

If the person doing the escorting is “involved” in the termination decision — no matter how tangentially — the answer would seem to be yes.

PS – What about the fact that this supervisor also called the plaintiff “Girl,” and said she’d be able get another job? It seems to me that these cut against an inference of age discrimination.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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