The Fourth Circuit holds (2-1) that there was sufficient evidence for a jury to find liability under the ADEA for a 60-year-old plaintiff with over 30 years of service fired for an arguable, possibly spurious reason. The panel majority uses the occasion to tweak the oft-cited truism that courts do not sit as "super-personnel departments."
Westmoreland v. TWC Admin. LLC, No. 18-1600 (4th Cir. May 22, 2019): Plaintiff Westmoreland began working at a predecessor to TWC in 1985. "During her three decades of employment, Westmoreland performed well, committing just two minor infractions prior to July of 2015." The trouble began when she was assigned "to a role that required her to interact more with customers and document her supervisory actions in detail." The documentation requirements were challenging for Westmoreland, but her performance remained rated "satisfactory."
The fateful moment came in July of 2015, when she conducted a one-on-one meeting with a 43-year-old subordinate (Sherrill). When they documented their meeting six days later, Westmoreland whited-out the current date and had Sherrill write in the prior date of the meeting instead. Westmoreland submitted the form.
The whited-out date soon came to light, though plaintiff's supervisor (Busgith) told her "not to worry about it." But by the next month, she was fired for making a "false statement" on a company document. While company policy permitted lesser sanctions for such a violation, four management employees agreed to impose termination. Sherrill was not fired. One of the managers told Westmoreland to "just go home and take care of those grandbabies." Plaintiff was replaced by a 37-year-old subordinate.
After two trials (the first was declared a mistrial), plaintiff won and a jury awarded Westmoreland $334,500 in damages.
The Fourth Circuit affirms. Because no one challenged the application of the McDonnell Douglas test to examine sufficiency of the evidence for the jury verdict, the panel majority holds that the question presented is whether a jury could find that the employer's proferred reason for the discharge was pretextual. The opinion summarizes:
"Westmoreland ... was nearly 61 years of age when fired, TWC terminated her after 30 years of consistently satisfactory work, it replaced her with a 37-year-old, the supervisory TWC official who delivered the news and signed the termination paperwork made a condescending and age-related remark immediately after the firing, and all TWC decisionmakers were aware of Westmoreland's advanced age. Moreover, although TWC's sole justification for its action was Westmoreland's backdating of a form in violation of company policy, the offense was isolated, lesser sanctions were available, and company officials had advised her that the offense was not serious and she had nothing to worry about."
Although the employer attempted to reargue some of the facts on appeal, the jury "appears to have instead credited the evidence on which Westmoreland relied, which included her trial testimony and the admissions by TWC supervisors in their trial testimony." The employer also argued that in an ADEA case, the plaintiff had an extra burden to present evidence beyond their prima facie case that "showed a specific and discriminatory motive," but the panel majority notes that this "pretext-plus" standard was put to rest by the Supreme Court nearly twenty years ago in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 1330 (2000).
While the employer repeatedly sought to couch the dispute as one about the plaintiff's integrity, rather than just a post-dated document, the panel majority rejoins that "TWC's witnesses uniformly conceded that Westmoreland had served the company and its predecessors ably for more than three decades, during which time her supervisors never discerned any issues regarding her integrity." A jury thus could have found it implausible after 30 years that the company might suddenly have discovered a deep flaw in plaintiff's character.
The panel majority also tweaks, in footnote, the cliche in discrimination cases that courts don't sit as "super-personnel departments":
"Of course, it would be improper for a jury to rule for an employee because it believed her firing was not a 'wise' or 'prudent' employment decision. But nothing bars a jury from considering an employee's tenure and performance in evaluating whether her employer's justification for her termination is so flimsy as to be untrue or implausible, and thus asserted in an attempt to mask a discriminatory motive."
The panel majority also rejects challenges to the jury charge (finding that it correctly, if somewhat inartfully, set forth the respective burdens of proof and production) and alleged prejudice by the trial judge during examination of the defense witnesses (which defendant never objected to at trial, and which did not rise to fundemental unfairness).
Dissenting, Judge Niemeyer believes that the jury was encouraged to decide this case based unfairness to the plaintiff, rather than age discrimination. The dissent points to the judge's intervention in the questioning of defense witnesses and a jury charge that stated that the "issue for you to determine is whether the alleged backdating was a legitimate business reason for terminating plaintiff's employment." The dissent concludes that "Congress would croak to learn that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., would entitle an employee to recover in the circumstances of this case. I too croak, in harmony."