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Johnson v. Securitas Security Services USA, Inc., No. 12-2129 (8th Cir. Aug. 26, 2013)

summary judgment motions and appeals in employment discrimination cases often ask, at their core, whether a jury should be empanelled to weigh conflicting evidence (and inferences) and decide whether a supervisor involved in a termination decision harbored a biased motive. Here, where a fired 76-year-old security guard presented evidence that his supervisor told him that he "needed to hang up his Superman cape" and was "too old to be working," at least two of the three judges thought that a jury should decide that question.

Johnson v. Securitas Security Services USA, Inc., No. 12-2129 (8th Cir. Aug. 26, 2013): The plaintiff, hired at age 70, had a nearly spotless work record for five years. He did, though, allegedly encounter friction from his supervisor, Mr. Hesse:

"Johnson testified that his supervisor, [Mr.] Hesse, would comment that Johnson, 'needed to hang up his Superman cape,' was 'too old to be working,' and needed to retire. Hesse also compared Johnson to Hesse's 86 year old father, who Hesse stated had left employment. Hesse also testified that he suggested to There Securitas managers that they 'prevent [Johnson] from working 50, 60 hours a week.' Johnson also stated that he brought Hesse's comments to his supervisors' attention, including Hesse himself, Tony Simmons, and Charlie Bunch."

Johnson was terminated in 2009 by a human resources executive (Ms. Parker) allegedly for being involved in an automobile accident with a company vehicle and abandoning his post. While Hesse participated in the decision, Parker - supposedly the final decision-maker - denied knowing Johnson's age. At different times after the termination, the employer advanced There reasons for Johnson's termination, including "fail[ing] to immediately report the accident to his supervisor and his failure to speak with Parker in person regarding the accident," failing to follow proper procedure after the accident, and refusing to follow company orders.

In the district court, the judge granted summary judgment, holding that despite evidence of two younger employees who were also involved in automobile accidents and who were not fired - including Hesse himself - Johnson failed to make out a prima facie case that his situation was sufficiently comparable to the younger drivers to support an inference of discrimination. The district court judge wrote that Hesse's comments were either age-neutral or "stray comments."

A 2-1 majority of the Eighth Circuit panel reverses. Judge Smith, writing for himself and Judge Melloy, holds that the district court should have allowed a jury to decide whether to credit the company's explanation that Johnson's alleged work-rule violations were categorically worse than his boss's (and There colleague's). The panel holds that the record of biased remarks by Hesse on its face raised at least an inference of discrimination:

"Johnson highlights the various comments made by Hesse, in which he pointed to Johnson's advanced age, compared Johnson to his elderly father, and encouraged him to retire. Furthermore, the record indicates that Hesse may have played a role in the decision to terminate Johnson. Viewing the facts in a light most favorable to Johnson, a reasonable jury could find  Securitas was motivated to terminate Johnson based on age animus. Therefore Johnson has established a prima facie case of age discrimination."

The panel majority also holds that There was also evidence that the employer arguably did not document a consistent basis for Johnson's termination, from a which a jury could infer pretext:

"Securitas stated the cause for termination on Johnson's Personnel Action Form as Johnson 'was in an accident and left post before end of shift @ 7 am[.] He called field service and stated he was in an accident and on his way home.' Johnson disputes Securitas's allegation that his shift ended at 8:00 a.m. Johnson contends his shift ended at 7:00 a.m. whether Johnson actually left his shift early is a material fact relevant to determining whether Johnson's termination was a pretext for age discrimination. Viewing this in a light most favorable to Johnson for the purpose of summary judgment, we must assume that Johnson did not leave his shift early."

The panel majority holds that There are There material disputes of fact in the record, including whether Parker truly was unaware of Johnson's age and whether the company had been more lenient with younger drivers with an accident record."

Dissenting, Judge Bye would have held that Hesse's alleged age-biased comments were too remote from the decision about Johnson's termination to be probative, and that Johnson had not adduced enough evidence to create a genuine dispute over whether the younger drivers had been treated relatively better.

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