By Kathleen Kapusta, J.D.

Notes written by a decisionmaker in the termination of a 77-year-old employee during a conference 11 months prior to the termination decision, stating among other things “Fire all the old people,” constituted direct evidence of age discrimination, a federal district court in Alabama ruled, finding no subtlety or ambiguity in the statement and rejecting the employer’s “just kidding” defense. Denying summary judgment on the employee’s ADEA claim, the court observed that while it was not clear any published Eleventh Circuit decision has ever developed any temporal limitations on the use of direct evidence, several decisions have established that, “at least when (as here) the statement is sufficiently explicit and sufficiently tied to a particular employment decision, its staying power as direct evidence is measured in years” (Wheat v. Rogers & Willard, Inc., September 26, 2017, Steele, W.).

Notes. The year before the employee was terminated by the majority owners of the company, one of the owners attended a conference. In his notes from that conference, under the heading “Attracting and Retaining employees” he wrote “Fire all the old people.” Next to that statement he wrote “many large companies bring in new blood.” Three bullet points later, he wrote “Older Guys – Ralph & Jerry – Mentor to their replacements – same with Diane.” It was undisputed “Ralph” referred to the employee. Finally, he wrote “Paint’ a vision of what company will look like in three years, i.e., new, younger employees ….”

Most blatant of remarks. In rejecting the employer’s contention that the notes were not direct evidence of age discrimination because they were too vague, the court explained that while direct evidence is not limited to “fire [the plaintiff], he’s too old,” that was exactly what the owner’s notes said. To “fire all the old people” is to fire them precisely because they are old. Further, identifying the employee as an “older guy” directly marked him for termination because of his age. “There is not the slightest subtlety or ambiguity in this statement,” said the court, finding it fell easily within the “most blatant” of remarks.

Just kidding. The employer, relying on the owner’s affidavit, next argued that he did not really mean what the notes said as he was only remembering what he had heard spoken in jest at the conference. The owner’s affidavit testimony, the employer asserted, “provides the true meaning of his notations, which Plaintiff cannot dispute.” Disagreeing, the court observed that while it is permissible for a defendant to go behind the words to address their context or the author’s thought process in expressing them, the jury is not required to accept such self-interested explanations over the plain meaning of the words themselves. “The defendant offers no legal authority for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote – a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense,” the court explained.

Timing. Finally, the court rejected the employer’s assertion that because the notes were written almost a year before the employee’s termination, they were not direct evidence of age discrimination. This argument was foreclosed by the Eleventh Circuit’s 1985 decision in Lindsey v. American Cast Iron Pipe Co, which held that a statement made approximately one and a half years before the adverse employment action was direct evidence of age bias. Under Lindsey, said the court, the plaintiff’s direct evidence was not transformed into circumstantial evidence by the lapse of time.

Although the court acknowledged there were two more recent unpublished Eleventh Circuit decisions that might suggest that the passage of time downgraded the notes from direct to circumstantial evidence, it did not find them persuasive. In light of Lindsey, said the court, the declaration in Williamson v. Adventist System/Sunbelt, Inc., that only statements made “concurrently with the adverse employment event” may constitute direct evidence could not be credited. Williamson provided no rationale for this restriction, the court here observed, noting further that published Eleventh Circuit decisions were irreconcilable with it.

As to Jones v. BE&K Engineering, the other unpublished decision, while it addressed the significance of timing in the determination of whether a statement constitutes direct evidence, it did so in less precise terms than Williamson. Pointing out that Lindsey and other Eleventh Circuit decisions establish that when the statement is sufficiently explicit and sufficiently tied to a particular employment decision, its staying power as direct evidence is measured in years, the court found that neither Jones, the cases it cited, nor the cases citing it offered any reason to believe otherwise.


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