Eighth Circuit Finds Pretext When Employer Fires Employee For Yelling But Did Not Ordinarily Fire Other Employees For the Same Reason
An employer can generally avoid liability in an age discrimination lawsuit if it can articulate a legitimate, non-discriminatory reason for its actions. Examples of legitimate non-discriminatory reasons for terminations are poor performance, misconduct and insubordination. Articulating a legitimate, non-discriminatory reason is an effective way to win summary judgment in a lawsuit and get the case dismissed. Once the employer provides this reason, it is up to the employee to demonstrate that the employer’s stated reason is a disguise or “pretext” for unlawful discrimination, which is often difﬁcult for the employee to establish.
A district court concluded that Lyle Ridout failed to show that his former employer’s non-discriminatory reasons for terminating his employment were a pretext for age discrimination. As a result, the district court granted the employer’s motion for summary judgment. Ridout was successful, however, when he appealed his case to the Eighth Circuit in Ridout v. JBS USA, LLC.
Ridout worked as a rendering superintendent at a pork processing plant owned by JBS. One day, during the ﬁrst shift, an employee who operated a machine called a prehoger, which was used to grind scraps and bones of pork in order to create a material known as crackling, reported to Ridout that there were problems with the machine. Ridout instructed the maintenance department to work on the machine during the overnight shift break, a common time to do maintenance work. The machine broke down entirely before the repairs could be made, however. The second shift supervisor had to shut down production for several hours, and a signiﬁcant backlog of product piled up before the prehoger was restored to operation by the end of the third shift.
The next day, the plant engineer, plant manager, general manager, and Ridout went over to the prehoger on the factory ﬂoor to discuss its failure from the previous day. The general manager claimed that Ridout became visibly upset and raised his voice during their discussion and that he complained that management wanted to “point ﬁngers.” Ridout admitted that he was frustrated with his supervisors; however, he denied that he ever behaved in an aggressive manner. He claimed he raised his voice because the conversation took place directly next to a large piece of equipment and employees in that area had to speak loudly to be heard over the noise. He also noted that he had experienced considerable hearing loss due to working in the JBS factory for over 40 years and that his hearing loss caused him to speak loudly.
Ridout was subsequently suspended without pay. When he met with the plant manager and human resources a few days after the incident, he expressed remorse regarding the conversation, agreed that he could have handled the situation differently, and asked to come back to work. He said that if he could no longer be the rendering superintendent, he would accept a demotion. Rather than demote Ridout, his supervisors decided to terminate his employment.
The general manager replaced Ridout with an employee who was between the ages of 35 and 38 years old. This employee was demoted a year and a half later due to inadequate performance. Thereafter, the general manager hired a 33-year-old former employee. JBS had ﬁred this employee ﬁve years earlier for making a mock Ku Klux Klan hood out of industrial materials and displaying it to a black employee.
Ridout alleged JBS discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act and the Iowa Civil Rights Act when it terminated his employment. JBS presented two non-discriminatory reasons for terminating Ridout’s employment: (1) he had raised his voice to his supervisors; and (2) his performance had declined. The district court concluded that Ridout did not demonstrate that JBS’ non-discriminatory reasons were pretext for age discrimination and ruled in favor of JBS by granting summary judgment.
Ridout appealed to the Eighth Circuit. The court ﬁrst noted that it was undisputed that Ridout successfully made out a prima facie case of age discrimination. He produced evidence that: (1) he was over 40 years old when JBS terminated is employment (Ridout was 62 years old); (2) he had been meeting JBS’s reasonable expectations when he was terminated; and (3) he was replaced by a younger individual. Second, the court determined that JBS met its burden of articulating a legitimate non-discriminatory reason for terminating Ridout: declining performance and insubordination. Finally, the court considered whether JBS’s proferred reasons were a mere pretext for age discrimination.
The Eighth Circuit concluded that a jury/trier of fact could ﬁnd that declining performance was not a true reason for his termination. Ridout presented evidence that JBS considered his performance satisfactory until he was suspended without pay. He had never been counseled or warned about any declining performance prior to his termination. In fact, his performance was rated as “meets expectations” in his last review.
The Eighth Circuit came to the same conclusion regarding the claimed reason of insubordination. The court noted that an employee may demonstrate pretext by showing that “it was not the employer’s policy or practice to respond to such problems in the way it responded in the plaintiff’s case.” Ridout’s supervisors admitted it was common to raise one’s voice on the factory ﬂoor where the noise may drown out quieter voices. Additionally, although heated arguments involving swearing were relatively common among employees, none of the supervisors could recall a single other instance where any employee had been terminated for yelling or swearing.
Ridout also produced evidence that younger employees were treated more leniently. For example, the younger individual who immediately replaced Ridout was similarly accused of poor performance and was demoted, not terminated. Moreover, JBS was lenient when it rehired the employee previously ﬁred for racist behavior. He also showed that a number of other older employees were terminated around the same time as him, and four of the ﬁve salaried, supervisory employees JBS terminated during that same year were over 40 years of age.
Ultimately, the Eighth Circuit found that Ridout’s evidence was sufﬁcient to allow a rational factﬁnder to ﬁnd that JBS’s proffered reasons for terminating him were pretext for unlawful discrimination. The court found that the determination of whether Ridout’s termination was the result of unlawful discrimination was not one for summary judgment as his evidence was entirely consistent with a reasonable inference of age discrimination. Consequently, the court reversed the grant of summary judgment and remanded the case to the district court.
This case demonstrates that an employer may not win summary judgment if the employee can establish that the employer responded to the employee in an atypical manner or provides evidence that the employer treated younger employees more leniently.