Employee Not Terminated Due to Age Discrimination

April 29, 2013 (PLANSPONSOR.com) – An appeals court ruled that an employer did not terminate an employee due to age discrimination.

In Marsh v. Associated Estates Realty Corp. et al., the 6th U.S. Circuit Court of Appeals ruled that despite age-related comments allegedly made by the employer/defendant, these comments were not proven to be the reason for the employee/plaintiff’s termination. Rather, the ruling cited the fact that proper documentation had been provided by the employer to prove that the employee had been terminated for reasons not related to age.

The court said that while the employee had established a prima facie case under the standards of McDonnell Douglas Corp. v. Green, the employee did not provide sufficient evidence under those standards. Therefore the employee could not prove her termination was related to several age-related statements that were allegedly made to her and in violation of the Age Discrimination in Employment Act (ADEA).

The  court also pointed out that the person who made the alleged statements was not someone with the authority to make termination decisions, and cited Rowan v. Lockheed Martin Energy Sys., Inc., which found when “an individual is not a decision-maker in connection with the discharges, whatever statements [they] made are irrelevant and thus will not constitute direct evidence.”

In addition, the employer provided sufficient documentation to prove the employee’s termination was due to performance issues. The employer used a third-party contractor to evaluate employees’ sales techniques and customer communication skills through anonymous phone calls and video evaluations. The evaluation results of this particular employee were found to be consistently below the levels that the employer found acceptable and the employee was made aware of this prior to her termination.

The plaintiff, Rosemary Marsh, was hired as a leasing consultant by Associated Estates Realty Corporation in March 2004, left under good terms a year later, and then was hired back in May 2005. She was terminated from employment in December 2007. When initially hired, Marsh was 60 years old, 61 upon her rehiring and 63 when she was terminated. Marsh alleged that several age-related statements were made to her and believed her termination was therefore due to age discrimination.

The district court noted that “at most these alleged statements permitted the inference that Marsh’s termination was due to age discrimination and thus did not constitute direct evidence.”

The full text of the opinion can be found here.