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Kristin Brightmire, Editor
Doerner, Saunders, Daniel & Anderson, LLP
Vol. 15, No. 10
October 2007
AGE DISCRIMINATION
Grouch gets canned by employer, then court
N. Lance Bryan
An airline employee failed to bring forth enough evidence that her employer's stated reason for firing her ― her rudeness to customers ― was actually a pretext for age discrimination, the Tenth Circuit recently concluded.
Rude remarks irk customers
Doris Riggs was an airline agent for AirTran in Wichita, Kansas. Her duties included working at the front ticket counter and the gate counter and sometimes loading and unloading luggage on the ramp. Her problems began when a large group of minor
children traveling together as a choir group showed up to check in for a flight.
After Riggs and three coworkers checked in the large group with some difficulty, a chaperone approached her about checking in a choir girl who was running a bit late. Riggs said she couldn't check the girl in until she was present at the gate. A
heated exchange apparently ensued. Several days later, AirTran received an angry letter from the choir's travel agent demanding that something be done about the service the group had received.
Riggs' supervisor began an investigation. Two of Riggs' coworkers later told the supervisor that Riggs was rude to the customer. "I might have been a little short with them," she previously admitted to the supervisor, "but those damn kids wanted all
their seats switched around, and I wasn't about to do that."
On the supervisor's recommendation, Riggs was fired for being rude to the customers. She then filed a lawsuit claiming that her termination was an act of age bias under the Age Discrimination in Employment Act (ADEA).
Employee tries to link termination to her age
Riggs, who was 67, claimed that she was treated differently after her younger supervisor learned her age. She claimed that her supervisor made comments about her age and assigned her to less-demanding duties. The Tenth Circuit noted that her claims
revolved around three incidents:
- the supervisor told Riggs that she didn't look her age;
- the supervisor told Riggs that she was too old to be lifting heavy luggage; and
- at Riggs' request, the supervisor tried to assign her to a less-demanding gate rather than the
loading ramp.
The court found it "difficult to see this treatment as anything less than benevolent" and saw no "direct link between this treatment and the termination decision."
Lacking direct evidence of age discrimination, Riggs had to rely on circumstantial evidence. AirTran conceded that she had established a prima facie (or minimally sufficient) case. The burden then fell on the airline to show a legitimate,
nondiscriminatory reason for firing her. She didn't dispute that her rude behavior with the customer was such a reason. To survive dismissal of her claims, she had to offer evidence that the airline's reason was a pretext for age bias. In looking at
the issue of pretext, the court stated:
We do not ask whether the employer's reasons were wise, fair, or correct; the relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them. Court finds no pretext in decision to
fire employee without getting her side of story
Among other things, Riggs tried to show pretext by offering evidence that AirTran normally would have sought her response to the customer complaint but didn't do so in this case. The court stated there was no written policy in place requiring the
airline to seek her response and that the supervisor had in fact asked her and coworkers about the incident.
The Tenth Circuit also noted that Riggs was on vacation when the decision to fire her was made. Under that circumstance, the court held that failing to contact her to get her side of the story wasn't a "disturbing procedural irregularity" sufficient
to prove pretext. The court found that the evidence didn't "suggest that AirTran's stated reasons for terminating [her] were false."
Riggs also tried to show pretext by contending that AirTran treated her less favorably than six similarly situated employees who were allowed to respond to the allegations against them. The court found that three of the employees hadn't violated
rules of "comparable seriousness" and weren't similarly situated to Riggs. She submitted only inadmissible hearsay evidence about a fourth employee. Finally, she complained that two coworkers were interviewed about the incident, but not her. The
court found no evidence that the coworkers were interviewed as suspects. As a result, there was no basis on which a reasonable jury could conclude that they were similarly situated. Riggs v. AirTran Airways Inc., Case No. 06-3250 (10th Cir., 8/8/07).
Employer's honest belief is key to defense
AirTran prevailed because it could prove that its reasons for firing Riggs were legitimate and not a pretext for age discrimination. The bottom line is that when deciding legitimate versus pretextual reasons for a termination, the court will focus on
whether the decisionmaker honestly believed its reasons and acted on them in good faith. If the decisionmaker keeps a good written record of the reasons, it will be much easier to show that the termination was legitimate and not pretextual.
Finally, this case shows that disgruntled employees will seize on any perceived procedural irregularity or seemingly unfair treatment to support their case. Those kinds of irregularities will be offered as a manifestation of some discriminatory
intent against the employee. As this case shows, interviewing an employee about an incident isn't strictly required in the absence of a policy to do so. The better course of action, however, is to get her side of the story. Even if she is still
terminated, the fact that you've listened to her before deciding to fire her will help ensure the employee feels that she has been treated fairly.
The author may be reached at nbryan@dsda.com.
Find out more about age discrimination in the subscribers' area of www.HRhero.com, the website for Oklahoma Employment Law Letter. You have access to an HR Executive Special Report on the subject:
"How to Manage Your Aging Workforce." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.
Copyright 2007 M. Lee Smith Publishers LLC
OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma
employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.
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