When supervisors make remarks about an employee’s age, a direct hit isn’t always neces- sary to send an employer reeling into court. Sometimes even a glancing blow, rhetorically speaking, could propel a lawsuit — and the employer under fire — all the way to trial. Case in point: Scheick v. Tecumseh Public Schools.

Troubling evaluation

The plaintiff was hired in July 2004 as a school principal. In 2010, at the age of 56, his employer decided against renewing his contract.

The school alleged that the decision was based on his poor performance as well as budget cuts. It had received complaints from parents, staff and school board members regarding the plaintiff’s job performance and lack of leadership. Also, one of his performance evaluations noted that the school had failed to meet state-mandated requirements for two years because of clerical errors on the plaintiff’s watch. His attendance at school functions was deemed deficient, too.

Some of these issues were raised formally with the plaintiff. But no further disciplinary actions had been taken at the time of the evaluation in question.

Making statements

The plaintiff argued that his contract wasn’t renewed because of his age. He claimed that the school’s superintendent, who decided against renewing the contract, made statements to him suggesting age-based animus on three occasions.

First, during a performance review, the superintendent stated that the school board wanted the plaintiff to retire so it could hire a principal who would take over as superintendent after a few years. The superintendent also asked the plaintiff how long he intended to work. The second incident occurred in a conversation between the plaintiff and superintendent before the plaintiff received the contract nonrenewal notice. Here, the superintendent allegedly said the board wanted someone younger as principal. In the third incident, the superintendent allegedly commented that the board wanted someone younger in both the principal and superintendent positions.

The superintendent, who was 10 years older than the plaintiff, claimed that he had made all of these comments with respect to his own job, not the plaintiff’s position. He further stated that the contract nonrenewal decision had nothing to do with the plaintiff’s age.

The district court granted summary judgment in the defendants’ favor, holding that the plaintiff failed to present direct evidence that age was the “but for” cause of his nonrenewal. (In age discrimination cases, the standard for finding a violation is that the adverse action would not have occurred “but for” the plaintiff’s age.) The plaintiff appealed.

Offering evidence

The U.S. Court of Appeals for the Sixth Circuit reversed and remanded the lower court’s decision. The appellate court found that the plaintiff had, in fact, offered direct evidence of age discrimination in the form of the superintendent’s statements alleging an existing desire to find someone younger for the job of principal.

The Sixth Circuit held that these statements weren’t ambiguous and, if believed, would require the conclusion that age was the “but for” cause of the school’s decision not to renew the contract. Uncertainty over whether the superintendent was referring to the plaintiff’s position or both his and the plaintiff’s positions didn’t prove ambiguity, the court stated. In either case, the superintendent was at least partly referring to the plaintiff’s position.

The court concluded that the evidence, taken as a whole and in the light most favorable to the plaintiff, was sufficient to permit a reasonable juror to conclude that age was the “but for” cause of the contract nonrenewal. Therefore, a genuine issue of fact did exist for trial.

Doing enough

It’s not enough to train managers and supervisors to refrain from making age-related comments to employees specifically about their respective jobs. As this case shows, you also must instruct and remind management to avoid such statements even when the words in question aren’t directed solely toward an individual employee.