Why it matters: Just two statements made by a decision maker evidencing discriminatory motive were sufficient to overcome an employer’s summary judgment motion in an Age Discrimination in Employment Act (ADEA) suit, the D.C. Circuit Court of Appeals recently concluded. A 71-year-old security guard at a retirement home sued his former employer and introduced evidence of two statements made by the person who effected his termination, including a comment that the “older guards” were found asleep from time to time. Rejecting the employer’s argument that the comments were not enough to show discriminatory motive – and addressed performance issues, not age – the federal appellate panel reversed summary judgment for the employer. If the plaintiff could prove that the statements had been made, a reasonable fact finder could conclude that age-based discrimination led to his termination, the court said. The decision sets a low bar for ADEA plaintiffs to establish sufficient discriminatory motive with only two comments allegedly made by a decision maker.

Detailed Discussion

At the age of 69, Theodore Wilson began working at the Armed Forces Retirement Home in Washington, D.C., as a security guard. Wilson had served 23 years in the Air Force and Army, and the retirement home – as well as a sister facility located in Mississippi – provided both residences and services for retired members of the Armed Forces.

After a year and a half of working at the retirement home, Wilson also became a resident. At the time, the home operated a resident employee program under which residents could also work at the home.

But two years later, a new chief operating officer (COO) decided to replace the resident employee program with a resident stipend program, under which residents were capped at monthly earnings of $120; any additional work was considered a donation. Wilson, then 71 years of age, was terminated.

He filed suit, alleging his termination violated the ADEA. In support of his claim, he provided two statements from the COO. First, he quoted him from a meeting with all of the residents about abolishing the employee program, at which the COO stated, “you didn’t come here to work, you came here to retire.”

In a subsequent conversation with his Equal Employment Opportunity counselor, Wilson was told, “[a]nother issue [the COO] had with the older guards at Armed Forces Retirement Home, ‘was that they were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency in DC, what with all the threats since 9/11.’ ”

The home filed a summary judgment motion, arguing that the decision to end the employee program – and terminate Wilson’s employment – was made to save money, ameliorate concerns about the capabilities of the home’s security staff, and attain operational consistency with the Mississippi facility, which did not have an employee program. A U.S. District Court agreed, finding the comments related to concerns about performance and not age.

But the D.C. Circuit Court of Appeals reversed.

“Wilson has produced two statements that constitute direct evidence of age discrimination, entitling him to proceed to trial,” the three-judge panel wrote. “Both statements came from [the COO], who made the decision to terminate the resident employee program, causing Wilson’s discharge.”

A reasonable fact finder could conclude that discriminatory intent motivated the decision to abolish the resident employee program, the court said. “Both statements indicate the sort of ‘inaccurate and stigmatizing stereotypes’ that led Congress to enact the ADA. In particular, as the Supreme Court has explained, it ‘is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.’ ”

The COO’s comment about being “here to retire” and not “here to work” exhibited just such a discriminatory stereotype, the court noted, particularly as “[i]n Wilson’s case, the opposite was true: Wilson became a resident of the Home in part precisely because he could continue working there as a security guard. Wilson was there to work, not to retire.”

As for the second comment, the panel said the COO testified about only one incident finding a security guard asleep on the job while other witnesses said they had never heard such reports. “Even if [the COO] in fact knew of one instance in which a guard fell asleep on the job, a statement indicating a generalized concern about older guards as a group, based on one incident alone, is suggestive of impermissible, inaccurate stereotyping,” the court wrote.

The two statements “constitute direct evidence of discrimination entitling Wilson to proceed to trial,” the court concluded, reversing summary judgment for the employer.

To read the opinion in Wilson v. Cox, click here.